Volume 181 — South Western Reporter

<p>1. Rape <&wkey;52 — Statutory Rape — Sufficiency op Evidence.</p> <p>On a trial for rape on a girl under the age of consent, evidence held sufficient to support a conviction.</p> <p>[Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-74, 76; Dec. Dig. &wkey;52.]</p> <p>2. Criminal Law <&wkey;1160 — Appeal—Review —Questions op Fact.</p> <p>Where, under a proper charge and on evidence sufficient, if believed, to support the verdict, the jury finds a verdict of guilty, and the verdict is approved by the trial judge, whose duty it is to set the verdict aside if not satisfied of the_ guilt of accused, the verdict will not be set aside on appeal, unless clearly wrong.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 4519; Dec. Dig. <&wkey;1160.]</p> <p>3. Rape <&wkey;6 — Elements—Force.</p> <p>To constitute rape upon a female under the age of consent, no more force is required than that necessarily involved in the act of penetration.</p> <p>[Ed. Note. — For other cases, see Rape, Cent. Dig. § 6; Dec. Dig. <&wkey;6.]</p> <p>4. Rape &wkey;>13 — Elements—Force.</p> <p>Carnal knowledge of a female under the age of consent who is not the wife of the party having such cai'nal knowledge- is “rape,” no matter what the circumstances, and it is immaterial whether the carnal knowledge is had with her consent or by force, threats, or fraud.</p> <p>[Ed. Note. — For other cases, see Rape, Cent. Dig. § 12; Dec. Dig. &wkey;>13.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Rape.]</p> <p>5. Criminal Law <&wkey;1091 — Bill op Exceptions — Matters Presented por Review.</p> <p>A bill of exceptions not showing any ruling by the court on the state’s objection to testimony offered by defendant presented nothing for review.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, .2824, 2828-2833, 2843, 2931-2933, 2943; Dec! Dig. <&wkey;1091.]</p> <p>6. Rape <&wkey;38 — Evidence—Admissibility.</p> <p>On a trial for rape on a girl under the age of consent, the exclusion of evidence that the girl’s mother sent her.to ask defendant to meet the mother was not error, as this would be no excuse or justification.</p> <p>[Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 48-50; Dec. Dig. &wkey;38.]</p> <p>7. Criminal Law &wkey;>1144 — Appeal — Presumptions in Support op Judgment.</p> <p>The legal presumption is that the ruling of the trial court on an objection to evidence was correct unless the bill of exceptions shows otherwise.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. &wkey;1144.]</p> <p>8. Rape <&wkey;40 — Evidence—Admissibility.</p> <p>Qn a trial for rape on a girl under the age of consent, evidence that a merchant had run the girl away from his place, and that she pulled up her clothes and exhibited her person to a witness, was properly excluded as immaterial.</p> <p>[Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 55-59; Dec. Dig. &wkey;40.]</p> <p>9. Criminal Law &wkey;>419, 420 — Evidence— Hearsay Evidence.</p> <p>On a trial for rape on a girl under the age of consent, testimony that the mother said she sent the girl to defendant’s home to awaken him and get some groceries was properly excluded as hearsay, where it did not appear that it was offered to impeach or that any predicate was laid for its introduction, especially where probable injury was not shown.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <&wkey;419, 420.]</p> <p>10. Criminal Law <&wkey;451 — Evidence—Facts or Conclusions.</p> <p>On a criminal trial defendant could properly testify that the prosecuting witness said if he did not let her have some groceries he would be sorry, but the deductions from this remark could be drawn by the jury, and his testimony that he understood her to mean that she and her people would begin a criminal prosecution against him was properly excluded.</p> <p>[Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 1040-1042; Dec. Dig. &wkey;451.]</p> <p>11. Criminal Law <&wkey;1091 — Bills of Exceptions — Sufficiency.</p> <p>A bill of exceptions taken to the exclusion of testimony must disclose the relevancy and materiality of the proposed evidence, and inferences will not be indulged to supply the omission of such essentials.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2S23, 2824, 2828-2833, 2843, 2931-2933, 2943; Dee. Dig. <&wkey;>1091.]</p>

<p>1. Statutes <&wkey;114 — Workmen’s Compensation Act — Constitutionality.</p> <p>The Workmen’s Compensation Act (Acts 33d Leg. c. 179), entitled “An act relating to employers’ liability and providing for the compensation of certain employes and their representatives and beneficiaries, for personal injuries” and death in the course of employment, etc., is not violative of Const, art. 3, § 35, providing that no bill shall contain more than one subject, which shall be expressed in its title.</p> <p>[Ed. Note. — Eor other cases, see Statutes, Cent. Dig. §§ 145, 147-149; Dec. Dig. &wkey;114.]</p> <p>2. Constitutional Law <@=>245, 301 — Master AND SERVANT <@=>16%, New, VOl. 16 Key-No. Series — Workmen’s Compensation Act — Constitutionality.</p> <p>Workmen’s Compensation Act, modifying the common-law defense of contributory negligence in a servant’s action for injuries, by providing that it may be shown only in mitigation, and abrogating the defenses of assumed risk, and that the. injury was caused by a fellow servant’s negligence, is not unconstitutional as denying •equal protection of the laws or taking property without due process.</p> <p>[Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 702, 848-850, 857; Dec. Dig. &wkey;245, 301.]</p> <p>3. Statutes <@=>G4 — Invalidity op Part.</p> <p>The court is not warranted in declaring a whole statute void if its valid provisions are perfectly distinctive and separable from those that are invalid.</p> <p>[Ed. Note. — For other eases, see Statutes, Cent. Dig. §§ 58-66, 195; Dec. Dig. &wkey;64.]</p> <p>4. Master and Servant <@=>250%, New, vol. 16 Key-No. Series — Statutes <&wkey;64 — Injury to Servant — Actions — Pleading — Workmen’s Compensation Act.</p> <p>In view of the provisions of the Workmen’s Compensation Act that if any part thereof be held inoperative, no other part of it shall thereby be alfected; that employés whose employers are not, at the time of an injury, subscribers to the insurance association, cannot participate in its benefits, but shall be entitled to bring suits and recover judgments against such employers for all damages sustained by reason of any personal. injury; and that the provisions of section 1 of the act, denying to the employer the defense of the negligence of a fellow servant, and assumed risk, and modifying his right to avail himself of the right of the defense of contributory negligence, shall apply where the employer was not a subscriber to the insurance association — where the only effect claimed for the act by an injured servant in his action was that it rendered unavailable to the employer the common-law defenses, the plaintiff’s allegations that defendant employed large numbers of employés and was not a subscriber to the insurance association were proper, and not erroneous as pleading an unconstitutional act, since, if the sections of the act authorizing the creation of the insurance association were in violation of the Constitution of the state, such sections could and should be eliminated without impairing the sections relating to contributory negligence, etc., relied upon by plaintiff.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 58-66, 195; Dec. Dig. &wkey;64.]</p> <p>5. Appeal and Error <@=>1039 — Harmless Error — Pleading.</p> <p>In an injured servant’s action against his employer who had not accepted the Wprkmen’s Compensation Act, any error in the unnecessary allegations by plaintiff that defendant employed large numbers of employés, and that it was not a subscriber to the act, was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent.Dig. §§ 4075 — 4088; Dec.Dig. <@=>1039.]</p> <p>6. Master and Servant <@=>185 — Sape Place to Work — Nondelegable Character op Duty.</p> <p>The duty resting upon a coal mining company to furnish a miner a reasonably safe place to work was nondelegable, and the negligence of a fellow servant, whose duty it was to timber the roof for the miner’s protection, was the company’s negligence.</p> <p>[Ed. Note. — For other cases, see Master & Servant, Cent. Dig. §§ 385-421; Dec. Dig. <@=>185.]</p> <p>7. Master and Servant <@=>118 — Sape Place to Work — Duty op Master — Progressive Character op AYork.</p> <p>. Where a coal miner, when injured by a falling roof, was merely shoveling loose coal from the floor of the room in which he was working into a car, and had been engaged in that character of work practically all day, which work in no manner contributed to the injury, the case did not come within the rule that where a servant is engaged in work of a character progressively changing his environment, the master is not bound to protect him against dangers resulting from the changes.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 177, 202, 209; Dec. Dig. &wkey;118.]</p> <p>8. Master and Servant <&wkey;278 — Sape Place to Work — Sufficiency of Evidence.</p> <p>In1 a coal miner’s action for injuries, evidence held sufficient to show that the roof of his room might have been made safe by the exercise of ordinary care.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. &wkey;278.]</p> <p>9. Trial <&wkey;260 — Injuries to Servant — Action — Instructions.</p> <p>In a coal miner’s action for injuries by a falling roof, where the court correctly defined ordinary care, negligence, contributory negligence, preponderance of the evidence, and proximate cause, and submitted in proper form the issues whether plaintiff was injured by a falling roof; whether defendant’s servants could have timbered such roof reasonably safe by exercise of ordinary care; whether such servants did, by timbering, make such roof reasonably safe; whether they exercised ordinary care by timber-ing, or otherwise, to do so; whether, if they did not make the part of the roof which fell on plaintiff reasonably safe, they were guilty of negligence in failing to do so; whether such negligence, if any, was the proximate cause of plaintiff’s injuries; and whether he was guilty of contributory negligence; and the issue as to the amount of damages — which issues comprehended all issues refused by the refusal of special charges to the effect that defendant was not an insurer, and that it was not incumbent upon it to make the roof absolutely safe, but only to use ordinary care — the refusal of the requests was not erroneous, since the submission of the issues was as favorable and fair as defendant was entitled to, and required the jury to answer the specific questions sought to be asked by defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]</p> <p>10. Master and Servant <&wkey;101, 102 — Injury to Servant — Safe Place to Work— “Ordinary Care.”</p> <p>The “ordinary care” which a master must exercise to provide his servant with a safe place to work is that degree of care which a person of ordinary prudence would exercise in the same or similar circumstances.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. &wkey;101, 102.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Ordinary Care.]</p> <p>11. Trial <&wkey;251 — Injuries to Servant — Action — Instructions—I ssues .</p> <p>In an action by a miner for injuries received from a falling roof, where the case was submitted on special issues, among which were issues requiring findings as to whether defendant could have supported the roof by timbering to make it reasonably safe, and whether defendant failed to exercise due care to do so, the refusal of the court to instruct specifically that it was not the employer’s duty to make the roof absolutely safe, and that the employer was not an insurer of its employés’ safety, but was only required to use ordinary care', was not erroneous, though the charges were correct, since that defendant was not an insurer and was not required to make the roof absolutely safe were principles of law for application by the court, knowledge of which by the jury was not essential.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. &wkey;251J</p> <p>12. Master and Servant <&wkey;101, 102 — Saits Place to Work — Measure oe Duty.</p> <p>A coal mining company is not an insurer of the safety of its employés, and need not render the roofs of rooms absolutely safe for the protection of those working therein.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1S5, 171, 174, 178-184, 192; Dec. Dig. <@==>101, 102.]</p> <p>13. Trial <&wkey;252 — Injuries to Servant — Instruction — Applicability to Evidence.</p> <p>In a coal miner’s action for injuries from a falling roof, where the evidence tended to show that shortly before the accident defendant’s servants under duty to support the roof with timbers examined it and observed it was likely to fall, and that, by exercising ordinary care, they could have timbered it properly, the refusal of the instruction that the mere happening of an accident is not proof of negligence was proper.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252.]</p> <p>14. Appeal and Error <&wkey;106S — Harmless Error — Instruction.</p> <p>In a coal miner’s action for injuries from a falling roof, where the jury found that plaintiff was not guilty of contributory negligence, a charge that in estimating damages, if the jury should find that plaintiff was guilty of contributory negilgence, they should diminish the amount of his damages in proportion to the amount of his negligence, if erroneous, was harmless.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. <&wkey;>1068.]</p> <p>15. Damages <&wkey;216 — Injuries to Servant— Triai^Instruction.</p> <p>In a coal miner’s action for injuries in a slate fall, where the court, after telling the jury specifically and properly what they might consider in estimating damages, closed with the words, “and also any other facts in evidence, if any,” such charge was not erroneous, as it did not constitute an affirmative misdirection of the jury.</p> <p>[Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 548-555; Dee. Dig. &wkey;216.]</p> <p>16. Appeal and Error <&wkey; 1062 — Harmless Error — Refusal of Special Issue.</p> <p>In a coal miner’s action for injuries, where the court submitted the issue whether the plaintiff was guilty of contributory negligence, which, together with the instructions in relation to it, comprehended a requested issue whether plaintiff exercised ordinary care, the jury finding the plaintiff was not guilty of contributory negligence, the court’s action in refusing the submission of the issue of ordinary care was without injury to defendant, since the issue, in substance, was submitted in a way to invoke the jury’s finding on it.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <&wkey;> 1062.]</p> <p>17. Trial <&wkey;350 — Refusal of Issue.</p> <p>In a coal miner’s action for injuries, where the evidence was insufficient to justify a finding that plaintiff’s leg was paralyzed, or he was otherwise injured as a result of disease, the refusal to submit the issue whether his injuries were the direct result of any cause other than the fall of coal on his back was proper.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. &wkey;350.]</p> <p>18. Damages &wkey;>132 — Personal Injuries— Excessive Verdict.</p> <p>Where plaintiff, a coal miner, a strong and healthy young man regularly earning $3 a day, was injured by the fail of a piece of coal upon his back and hips, which rendered him insensible and injured the vertebrse and connecting nerves so as to produce almost constant hic-coughing and much physical and mental suffering and paralysis of the leg, the injuries being permanent, rendering plaintiff a cripple for life and incapable of earning a livelihood, verdict for 811,000 was not excessive.</p> <p>[Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. &wkey;132.]</p> <p>19. New Trial <&wkey;108 — Grounds—New Evidence.</p> <p>Where, after verdict for plaintiff coal miner, in his action for injuries, based on showing in evidence that he had been rendered a cripple for life, defendant mining company produced the evidence of one who stated that he had seen plaintiff fishing without a crutch five miles from home, and that he thought it was him, but might have been mistaken, the refusal of new trial on the ground of newly discovered evidence was not an abuse of the court’s discretion.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. &wkey;108.]</p> <p>20. Master and Servant &wkey;?278 — Injuries to Servant — Sufficiency of Evidence.</p> <p>In coal miner’s action for injuries from a falling roof, evidence held sufficient to support judgment against defendant mining company for $11,000.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 954, 956-9.58, 960-969, 971, 972, 977; Dec. Dig. &wkey;278.] '</p>

<p>Appeal from District Court, Tarrant County ; R. B. Young, Judge.</p> <p>Action by C. Rasmussen against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Bills and Notes <&wkey;519 — Actions—Evidence — Sufficiency.</p> <p>In an action on a note which defendants indorsed before negotiation, evidence held to warrant a finding that they were primarily liable.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 1802; Dec. Dig,. <5&wkey;519.]</p> <p>2. Confusion of Goods &wkey;>ll — Commingling of Assets — Rights of Ceeditoes.</p> <p>A bank to which contractors were indebted being approached by defendants to negotiate a note given by the contractors refused to do so but consented to negotiate a new note executed by the contractors and on which defendants became primarily liable. The bank promised if possible to protect defendants under the securities which it held. The contractor and another firm which was indebted to the bank each mortgaged its mules and horses. A second mortgagee without consent carried off a number of the animals, and thereafter the bank, finding all of the animals commingled, foreclosed its mortgages thereon. It applied the proceeds of such sale to its own securities in such a manner as to leave defendants liable. Held, that recovery on the note by the bank could not be defeated on the theory that it had improperly commingled goods.</p> <p>[Ed. Note. — For other eases, see Confusion of Goods, Cent. Dig. §§ 12, 13; Dec. Dig. <&wkey;ll.]</p>

<p>1. MASTER AND SERVANT <&wkey;278 — SUEIiTCXEN-ot of Evidence — Safe Place to Work.</p> <p>Evidence in a servant’s action for injury from an explosion in the master’s cement plant held to support a finding of negligence in failing to furnish a safe place to work.</p> <p>[Ed. Note. — Eor other eases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. &wkey;278.]</p> <p>2. Trial <&wkey;260 — Requested Instructions— Given Instructions.</p> <p>In a servant’s action for injury, the refusal of defendant’s charges that negligence must be proven and cannot be assumed, and that the plaintiff must prove the specific acts of negligence alleged before he can recover, was not error, where the court charged affirmatively that the jury must believe from a preponderance of the evidence that the explosion which injured plaintiff was caused as charged in the petition.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]</p> <p>8. Trial <&wkey;191 — Instruction—Assumption oe Facts.</p> <p>In a servant’s action for injury from an explosion in defendant’s cement plant, alleging negligence in not furnishing a safe place to work, in that defendant allowed explosive coal dust, etc., to accumulate, an instruction on the assumption of risk that, if the jury found that the accumulation of coal dust, causing the explosion, was an ordinary incident of the work, and if the defendant exercised ordinary care to avoid its accumulation, plaintiff could not recover, but that, if there were practical means of preventing its accumulation in quantities to cause an explosion-which defendant fails to use, the plaintiff did not assume the risk, was not objectionable as assuming the accumulation of coal dust as alleged.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. &wkey;191.]</p> <p>4. Master and Servant <&wkey;293 — Instruction —Safe Place to Work.</p> <p>Such instruction was not objectionable as-imposing upon defendant a greater burden than was required by law with regard to what it should have done to provide a safe place for work.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. <&wkey;293.]</p> <p>5. Evidence <&wkey;481 — Opinion Evidence — Safe Place to Work — Similarity op Conditions.</p> <p>In a servant’s action for injury from defendant’s failure to furnish a safe place to work, in that it allowed explosive coal dust, etc., to accumulate, opinion of a chemical engineer that the conditions of grinding coal, found when he examined defendant’s plant, did not render it safe, and as to means which might have been discovered to be practicable and useful in removing the danger of ignition, and that the pulver-izer was the initial source of danger, was admissible, where the conditions at the time of his: inspection were the same as at the time of the: accident.</p> <p>[Ed. Note. — For other eases, see Evidence,. Cent. Dig. §§ 2248-2254; Dec. Dig. &wkey;481.J</p> <p>6. Evidence <&wkey;481 — Opinion Evidence — Sape Place to Work.</p> <p>In such action where the engineer had testified as to how close a pulverizing machine was to the fire in the drying furnace, which nearness was the initial source of danger, his answer to a question as to different means discovered to render such place safe for work, following his testimony as to conditions rendering the place unsafe, and his testimony that if forced ventilation to draw off the air and dust, etc.,'had been used, it would have made it safer without isolating the pulverizer, was admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2248-2254; Dec. Dig. &wkey;481.]</p>

<p>1 Navigable Wateks <&wkey;36 — Title to Bed oe Stbeam — Bindings.</p> <p>In an action by riparian owners against a •city for injunction, and damages incurred in the abatement of structures alleged to obstruct the flow of the stream, the jury’s finding that the river was of an average width of 30 feet had the same effect as a finding that the river was navigable, so far as the title to riparian lands was concerned.</p> <p>[Ed. Note. — Por other cases, see Navigable Waters, Cent. Dig. §§ 180-200; Dec. Dig. <&wkey; 36.]</p> <p>2. Navigable Watebs <&wkey;43 — Water Courses — Rights to Bed oe Stream — 1“Pubpe.es-ture.”</p> <p>Where riparian owners placed fillings and buildings in the bed of a navigable river, which is owned by the state, they created a purpres-ture, and were liable to judgment restraining them from continuing the trespass and authorizing the removal of the obstructions, whether or not the flow of the river was so obstructed as to cause overflows dangerous to the public.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 104, 256-265; Dec. Dig. •<&wkey;43.</p> <p>Por other definitions, see Words and Phrases, First and Second Series, Purpresture.]</p> <p>3. Appeal and Error @=1122 — Support oe Judgment Below — Making Findings.</p> <p>Where there is evidence to support a finding that will support the judgment below and submission of the issue was not requested, the Court of Appeals must make such finding.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4420; Dec. Dig. <@=1122.]</p> <p>4. Navigable Waters <&wkey;43 — Obstruction oe Stream — Abatement—“Depri vatio n. ”</p> <p>Where a riparian proprietor filled in and built upon the bed of a stream, so as to constitute a nuisance by creating a danger of overflow through inadequate outlet for high water, such nuisance was open to abatement by the city, whether the river was navigable or not, since preventing the owner from using his property so as to injure others is not a deprivation to him of such property or its use.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 104, 256-265; Dee. Dig. ■@=43.</p> <p>For other definitions; see Words and Phrases, First and Second Senes, Deprivation.]</p> <p>5. Navigable Waters <&wkey;43 — Obstruction oe Stream — Abatement — Right to Damages.</p> <p>Where defendant city tore down plaintiff ■riparian owners’ structures in the bed of a stream constituting a dangerous obstruction thereof in time of flood, but did not take the material or destroy it, an emergency existing in the near prospect of a flood justifying the summary action, plaintiffs could not recover damages for the removal of the obstructions, since no compensation can be required when a nuisance is summarily abated in an emergency justifying summary steps, while the regulation of the use of property or the destruction thereof under a proper exercise of the police power is not a taking of - property without making compensation within the Constitution.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent.Dig. §§ 104,256-265; Dec.Dig. @=43.]</p> <p>6. Trial <@=251 — Refusal oe Instruction.</p> <p>Where the case was submitted on special issues, the court did not err in refusing a charge not drawn so as to be applicable to any particular issue, but calling for a general verdict.</p> <p>[Ed. Note. — For other cases, see. Trial, Cent. Dig. §§ 587-595; Dee. Dig. @=251.]</p> <p>7. Waters and Water Courses @=58 — Obstruction — Right to Abate.</p> <p>It is not the law that no relief can be had by the public, against an obstruction to the flow of a river on the ground that it is a nuisance dangerous to life if overflows would occur in the absence of such obstruction, since it might greatly increase the amount of the overflow, and the danger and destruction caused thereby.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 49; Dee. Dig. <@= 58.]</p> <p>8. Trial <@=251 — Instruction—Comeormity to Pleadings.</p> <p>A charge is properly refused, unless pleadings justify it.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. &wkey;251.]</p> <p>9. Appeal and Error <@=1062 — Harmless Error — Submission oe Special Issues— Form.</p> <p>In an action by riparian owners against a city to enjoin the further, and recover damages for the past, removal of alleged obstructions placed in the bed of a stream, where the jury found that the width of the river was 30 feet on the average, which, so far as fixing the boundaries of the stream was concerned, was equivalent to a finding that it was navigable, any error in the form of questions submitting the issue of navigability was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <&wkey;> 1062.]</p> <p>10. Appeal and Error @=1062 — Harmless Error — Special Issues — Form.</p> <p>In an action by riparian proprietors to enjoin a city from removing structures in a bed of a river, where the city made out a case of nuisance whether plaintiffs’ line extended to the center of the stream or only to the water line, any error in the form of questions submitting the issue of the navigability of the stream was harmless error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212^-4218; Dec. Dig. @= 1062.]</p> <p>11. Appeal and Error <@=231 — Reservation oe Grounds oe Review — Objection to Instruction.</p> <p>In a suit by riparian owners to enjoin a city from removing structures placed in the bed of a river, an objection made to the charge of the court that the definitions of the terms “channel” and “bed” were incorrect was too general ,to predicate error upon.</p> <p>[Ed. Note. — For other cases,-see Appeal and Error, Cent. Dig. §§ 1299, 1352; Dec. Dig. <@=</p> <p>12. Appeal and Error <&wkey;742 — Assignment oe Error — Sufficiency.</p> <p>Where the only proposition under an assignment of error was that a definition should be clear, plain, and accurate, no reason in law being disclosed why appellants’ special charge should have been given, and the court being left to study the definition offered by appellants and that given, and to determine whether appellants’ charge should have been given, the assignment pointed out no error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <&wkey;>742.]</p> <p>13. Appeal and Error &wkey;>759 — Assignment op Error — Copying Out oe Order.</p> <p>The copying of assignments in the brief out of their regular order is not permissible under the rules of the court of Civil Appeals.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. <&wkey;>759.]</p> <p>14. Appeal and Eeeoe <&wkey;>719 — Assignments oe Eeeoe — Necessity.</p> <p>Appellants desirous to contend that the evidence fails to support an affirmative answer to an issue, or that there was no evidence justifying such issue’s submission, must raise such questions by proper assignments.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dee. Dig. 4&wkey;719.]</p> <p>15. Trial &wkey;>352 — Special Issues — Submission — Form.</p> <p>In a suit by riparian proprietors to enjoin a city from removing structures in the bed of a river, where the evidence was sufficient to support a finding that the true bed or channel extended further than a certain survey line of 1S91, but the city only sought to open the river to such line, it was proper for the court in submitting a special issue to mention such survey line to identify the disputed strip of land.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. &wkey;352.]</p> <p>16. Appeal and Eeeoe >&wkey;1070 — Harmless Eeeoe — 'Verdict.</p> <p>In a suit by riparian proprietors for damages and to enjoin a city from further tearing down structures in the bed of a river, where plaintiffs were not entitled to recover the value of the buildings torn down, error by the jury in estimating such value was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. <&wkey; 1070.]</p> <p>17. Appeal and Eeeoe &wkey;^73G. — Assignment oe Eeeoe — Multifaei'ousness.</p> <p>Multifarious assignments of error will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. <&wkey; 736.]</p> <p>18. Appeal and Eeeoe &wkey;>742 — Assignments oe Eeeoe — Support by Abstract Proposition.</p> <p>Assignments of error followed only by an abstract proposition of law will not be considered.</p> <p>[Ed. Note. — For .other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;742.]</p> <p>19. Appeal and Eeroe @=>742 — Assignments oe Eeeoe — Specification of Eeeors.</p> <p>Assignments of error, relating to evidence, merely complaining of the introduction of evidence set out in a certain bill of exceptions, being following by an abstract proposition that, if any one of a series of objections is tenable, the evidence should be rejected, the statements showing that many objections were made in each instance, will not be considered, since the court cannot be expected to take up each reason given in excepting to evidence and dispose of the same, unless propositions are urged showing a particular rule of law relied on to show error.</p> <p>[Ed. Note — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <&wkey;742.]</p>

<p>Appeal from District Court, Reagan County ; J. W. Timmins, Judge.</p> <p>Suit by J. A. Talley against A. E. Bailey. .Judgment for defendant, and plaintiff appeals.</p>

C. Douglas, Judge. Trespass to try title by Owen B. Shields and others against Thos. L. I’errine and others. From a judgment for defendants, plaintiffs appeal.

<p>Appeal from District Court, Harris County; N. G. Kittrell, Special Judge.</p> <p>Sequestration by the J. I. Case Threshing Machine Company against O. M. Lipper. From a judgment for the defendant, plaintiff appeals.</p>

<p>Error from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by Mrs. Florence R. Angelí against the Carter-Mullaly Transfer Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Mastee and Seevant &wkey;>163 — -In.tueies to Seevant — Duty oe Mastee.</p> <p>It is the duty of the master to use ordinary care to see that there are sufficient servants present at a particular piece of work to insure the safety of all engaged therein.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 328-330; Dec. Dig. <&wkey;> 163.]</p> <p>2. Mastee and Seevant &wkey;>278 — Intueies to Servani^Evidence — Sufficiency.</p> <p>Evidence in a servant’s action for injuries that he was ordered by his foreman to lift a crank pin, that he had never lifted such a pin, and did not know its weight, that it was the master’s custom to have such pins lifted, and that he, therefore, must have known that the pin was too heavy for two men to lift, and that after the servant had lifted the pin the car on which it was resting was withdrawn, so that he could not let it down, was sufficient to sustain a verdict for the plaintiff servant.</p> <p>[Ed. Note — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 969-969, 971, 972, 977;. Dec. Dig. &wkey;27S.]</p> <p>3. Mastee and Seevant <&wkey;293 — Injuries to Seevant — Liability oe Master — Actions— Insteuctions.</p> <p>Refusal of an instruction in a servant’s action for personal injuries caused by being ordered to lift a crank pin too heavy to be lifted that, if the foreman thought the pin was too heavy for the men to lift, the employer would not be liable for his placing an inadequate force to lift it, if a man of ordinary prudence would so have acted, was not error, since it was the duty of the master to know whether the pin could be lifted as ordered, and the servant cannot be held liable for the master’s ignorance of a matter which it was his duty to know, or to have assumed the risk in acting under the foreman’s orders as he did.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. <&wkey;293.]</p> <p>4. Master! and Servant <&wkey;278 — Injuries to Servant — Liability of Master — Evidence.</p> <p>Evidence in a servant’s action for injuries caused by being ordered to lift a crank pin too heavy to be lifted that the pin belonged to the master, that the foreman knew that it weighed from 260 to 280 pounds, that the employer was in the habit of having them handled, and must have known the weight of the pins and what number of men could safely handle one of them, was sufficient to show knowledge of the employer that two men could not lift the pin and consequent lack of ordinary care in ordering two men to lift it.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-989, 971, 972, 977; Dec. Dig. &wkey;278.]</p> <p>5 Master and Servant <&wkey;149 — Injuries to Servant — Negligence.</p> <p>Where two servants were ordered to lift a crank pin from a truck, and the pin was so heavy that after lifting it one of the servants was injured, the question whether removing the car so that the pin could not be lowered to it was negligence was immaterial, since the negligence of the master was shown by ordering the lifting of the pin.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 291-295; Dea Dig. &wkey;> 149.]</p> <p>6. Master and Servant &wkey;>190 — Injuries to Servant — Liability of Master — Negligence — Defenses.</p> <p>That a foreman ordered five men to lift a crank pin was no defense to the action of one of two men whom he allowed to lift it for injuries caused by the weight of the pin; for it was negligence of the foreman to permit less than the number ordered, to lift the pin.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 449^-474; Dea Dig. <&wkey;> 190.]</p> <p>7. Damages <&wkey;130 — Injuries to Servant-Excessive Damages.</p> <p>A verdict for $11,500 in an action by the injured servant, rendered on evidence inconclusive as to the permanency and gravity of his injuries, the evidence as to the permanency of the injury being by one witness on subjective symptoms only, was excessive, and reduced to $7,500.</p> <p>[Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. &wkey;130.]</p>

<p>Appeal from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Action by F. T. Walsh against the Bond-Reed Hardware Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Animals <&wkey;52 — Running at Laege — Action fob Death.</p> <p>In an action for the death of plaintiff’s horse by falling into a cistern on defendant’s premises, alleged to have been negligently left unfeneed and unprotected, an ordinance, prohibiting the running at large of live stock contrary to its provisions, was a complete defense if the horse was running at large in violation thereof, unless the defendant was guilty of gross negligence in permitting his cistern to remain open.</p> <p>[Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 172-174; Dec. Dig. &wkey;52.j</p> <p>2. Municipal Corporations &wkey;jl22 — Ordinance — Proof of Publication.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 819, providing that every ordinance imposing a penalty, shall, after its passage, be published, and that proof thereof shall be made by the printer’s or" publisher’s affidavit, filed with the secretary of the city or town, which shall be prima facie evidence of publication in all courts, and that ordinances so published shall be in force thereafter, and article 821, declaring that all ^ordinances printed and published by authority of the city council shall be admitted in all courts without further proof, a penal ordinance was inadmissible where its publication was not shown either by affidavit, or by its publication by authority, as a predicate; and it could not be admitted on1 proof of an ordinance book entitled “Minutes of City Council,” showing its passage by the council on a certain day.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 281-289; Dec. Dig. <@=>122.]</p> <p>3. EvidisNoe <&wkey;32 — Judicial Notice — Ordinances.</p> <p>The courts do not take judicial notice of municipal ordinances, but they stand on the same footing as private and special statutes, the laws of other states, and of foreign countries, and must be averred and proved like other facts.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 42; Dec. Dig. <&wkey;32.]</p> <p>4. Appeal and Eeror <@=»216, 263 — Exceptions to CHARGE — Fundamental Eeeor.</p> <p>Under Acts 33d Leg. c. 138 (Vernon’s Ann. Code Cr. Proc. 1916, art. 735 et seq.), requiring a party complaining of the charge to suggest to the court the errors therein, and his objections and exceptions thereto, the action of the court in granting certain special charges, in the absence of objection and exception thereto, could not be considered as fundamental error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §$ 1516-1523, 1525-1532; Dec. Dig. &wkey;216, 263.]</p>

<p>1. Master and Servant <§=300 — 'Torts oe Servant — Injuries to Third Persons — Liability.</p> <p>A master is liable for the wrongful acts of his servant done in the course of employment.</p> <p>[Ed. Note. — For other cases, see' Master and Servant, Cent. Dig. § 1209; Dec. Dig. <¿=5300.]</p> <p>2. Master and Servant <§=302 — Torts oe Servant — Liability—Autii ority.</p> <p>Where a servant has authority to do a certain thing, and in doing it does a wrong, the master is liable therefor, but not if the servant does not act in the master’s interest or within the scope of his authority.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. <§=302.]</p> <p>3. Master and Servant <§=¿306 — Injuries to Third Persons — Torts oe Servant.</p> <p>A master is not liable for injury due to wrongful or malicious acts of his servant not done in the course of his employment.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1230-1232; Dec. Dig. <§=306.]</p> <p>4. Master and Servant <§=308 — Torts oe Servant — Intent.</p> <p>An express willful intent to do an injury, resulting in damages, cannot be imputed to the master when injury is inflicted by the employé, and the wrongful act is neither authorized nor ratified.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1234; Dec. Dig. <@=308.]</p> <p>5. False Imprisonment <§=39 — Torts oe Servaniv-Liability — Question for Jury.</p> <p>Evidence held sufficient to carry a case to the jury on the question of the liability of a master for the act of his servant in the alleged wrongful arrest and detention of the plaintiff.</p> <p>[Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 116-118; Dec. Dig. > <§=39.]</p>

<p>Appeal from District Court, Hardeman County; J. A. Nabers, Judge.</p> <p>Action by the Acme Cement Plaster Company against the American Cement Plaster Company and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Appeal and Error <&wkey;542 — Record—Refusal to File Findings.</p> <p>Upon an assignment of error in the court’s refusal to file finding's of fact and conclusions of law, after due request to do so in the time and manner prescribed by law,- where there was no statement of facts in the record or any bill of exceptions showing such request and the court’s failure to file findings, an affidavit that after judgment defendant requested the judge to file findings which were not filed, that the trial judge had died within the time allowed for obtaining a bill of exceptions, and that the request for findings had not been noted on the docket, could not preserve the record of a request for findings.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2408, 2462; Dee. Dig. &wkey;> 542.]</p> <p>2. Appeal and Error c&wkey;>656 — Record —• Inquiry and Correction.</p> <p>A Court of Civil Appeals cannot correct the record of a case by hearing testimony, nor inquire into acts occurring subsequent to the judgment, and not made a part of the record, unless it is a matter affecting jurisdiction within Rev. St. art. 998.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2826-2828; Dec. Dig. <&wkey;>-656.]</p> <p>3. Appeal and Error <&wkey;905 — Record—Presumption — Rulings.</p> <p>A party seeking a reversal of a judgment must bring to the appellate court a record of the proceedings sufficiently full to clearly show the error of which he complains, and, whore his-record shows the proceedings only in part, every reasonable presumption will be indulged in favor of the court’s ruling, and the case will not be reversed unless it appears that upon no possible state thereof could the ruling be upheld.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3672; Dec. Dig. &wkey;>905.]</p> <p>4. Appeal and Error &wkey;>907 — Record—Request por Ruling.</p> <p>In the absence of a bill of exceptions, it will be presumed that the trial judge knew nothing of any request to file findings of fact and conclusions of law.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2809, 2911-2916, 3673, 3674, 3676, 3678; Dec. Dig. &wkey;907.]</p> <p>5. Courts <&wkey;116 — Records—Correction.</p> <p>A trial court has a continuing power, after adjournment for a term, to make its minutes and records speak the truth, which may be done by nunc pro tunc orders in some instances, though no written memorandum of the proceeding- can be found to support such order.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 369, 371-373; Dec. Dig. &wkey;116.]</p> <p>6. Courts <&wkey;116 — Correction oe Records— Application to Succeeding Judge.</p> <p>There is no objection to an application to a succeeding judge to make the record speak a fact actually existent in a judicial proceeding, and which in some manner should be a part of the record.</p> <p>[Ed. Note. — Por other cases, see Courts, Cent. Dig. §§ 369, 371-373; Dec. Dig. &wkey;116.]</p> <p>7. Evidence <&wkey;43 — Judicial Notice — Record.</p> <p>In an action on vendor’s lien notes, where the transcript showed defendant’s objection to any judgment upon an award of arbitrators and orders, overruling the objection reciting defendant’s objection against judgment “as per agreement on file,” and final judgment, reciting that the court read the agreement of counsel filed at a former term, and where a purported agreement and award were substituted on account of loss, but were not included in the transcript except as a part of a statement of facts, or in a bill of exceptions, the court could not judicially know that the judgment was rendered upon the agreement for arbitration and the award, and hence could not consider an assignment of error thereon.</p> <p>[Ed. Note. — Por other cases, see Evidence,' Cent. Dig. §§ 62-65; Dec. Dig. &wkey;343; Appeal and Error, Cent. Dig. §§ 2959, 2960.]</p> <p>8. Pleading &wkey;>387 — Prooe to Sustain.</p> <p>Proof of an essential fact not averred will not sustain a judgment.</p> <p>[Ed. Note. — Por other cases, see Pleading, Cent. Dig. §§ 1300-1304; Dec. Dig. &wkey;387.]</p> <p>On Motion for Rehearing.</p> <p>9. Appeal and Error <&wkey;659 — Record—Making New Record.</p> <p>An assignment of error, in a motion for a rehearing upon the court’s overruling appellant's assignment of error, asking the privilege of going before the trial judge and having the deficiency of the record presented to him in accordance with the court’s opinion and obtaining his ap-px-oval of the bill of exceptions, having it filed nunc pro tune, and having the record completed on certiorari, would be overruled as a request for a writ to make a record and then bring it up.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2834-2843; Dec. Dig. <&wkey; 659.]</p> <p>10. Appeal and Error <&wkey;643‘ — Record— Amendment.</p> <p>Even where there is a record to correct, an application to amend it is too late after the judgment of the Court of Civil Appeals has been rendered in the cause.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2791-2794; Dec. Dig. <&wkey; 643.]</p>

<p>Appeal from District Court, El Paso County; C. B. Hudspeth, Judge.</p> <p>Action by D. W. Schoonmaker against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from Brewster County Court; A. M. Turney, Judge.</p> <p>Action by the James A. Dick Company against George Ahlrep. There was judgment for plaintiff, and defendant brings error.</p>

A. Judkins, Special Judge. Action by the Midland Mercantile Company against the Texas & Pacific Railway Company, begun in justice court and appealed by defendant to county court. The appeal being there dismissed, defendant appeals.

O. Rouse, Judge. Action by the Dimmit County Bank against G. W. Vaughn and another, in which judgment was rendered foreclosing a chattel mortgage. R. S. Conley filed a claimant’s affidavit and bond to recover a cow seized under the foreclosure. From the judgment for the Bank, claimant appeals.

<p>1. Habeas Corpus <@=»117 — Custody of Child.</p> <p>Where, in a former controversy between the father and the maternal grandparents of a child, the court decreed that the grandparents have custody of the child, on the ground that the father was less than 21 years of age_, unsettled in life, and possessing the characteristics of a boy, which judgment was affirmed on the father’s appeal, and thereafter the father brought habeas corpus against the grandparents for the custody of the child at a time when he was living on his mother’s farm under a 2-year lease, in possession of property, having settled down to steady work, the former judgment was not conclusive of the grandparents’ right to the custody of the child, in view of the change in the circumstances and conditions of the parties.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 119, 120; Dec. Dig. <®^117.]</p> <p>2. Habeas Corpus <@=3>99 — Custody of Child —Right of Father.</p> <p>Where the custody of the infant daughter of a father less than 21 years old was given to the maternal grandparents on account of the father’s boyishness and unsettled character, and thereafter such father settled down upon his mother’s farm, acquiring property, he was, at the age of 23, entitled to the custody of his child, then aged four, since the father is the natural guardian of a child, and ordinarily entitled to its custody, unless manifestly unworthy and incompetent to discharge his obligations.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. <@=>99.]</p>

<p>1. Pleading <S^>290 — Verification—Failure oe Consideration.</p> <p>Under the express provisions of Rev. St. 1911, art. 1906, § 10, an answer, setting up failure of consideration as a defense to tlie cause of action on debt and to foreclose vendor’s lien notes, should have been sworn to.</p> <p>TEd. Note. — For other cases, see Pleading, Cent.Dig. §§ 859-863, 886% > Dec.Dig. <®==>290.]</p> <p>2. Appeal and Error <®=>1039 — Harmless Error — Withdrawal of Answer.</p> <p>Where, in an action for debt and to foreclose vendor’s lien notes, the answer, setting up failure of consideration, was not verified, and hence would not have prevented the taking of a default judgment, defendant was not injured by withdrawal of the answer by his attorney.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. <§=> 1039.1</p>

<p>1. Partnership ©=>191 — Injury to Partnership Property by Member oe Eirm — Right oe Action.</p> <p>Where sheep owned by a partnership were seized on a writ of sequestration issued by the president of the bank which held a mortgage on them, who was also a member of the firm owning them, and such sheep were damaged by reason of their being negligently handled by the officer at the direction of the bank president, his partner could recover against the bank for expenditures made necessary thereby.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 349-353; Dec. Dig. ©=191.]</p> <p>2. Appeal and Error ©=>742 — Assignment of Error.</p> <p>On defendants’ appeal in an action against a bank and its president, the first proposition under an assignment of error, reading, “The fact that the affidavit may have been untrue could not make * * * appellant bank liable in view of the provisions of its mortgage,” did not confine the assignment to the bank only, and waive it as to its codefendant, its president, since the submission of propositions under an assignment does not waive all points not covered thereby.</p> <p>[Ed. Note. — For other cases, see Appeal and Iprror, Cent. Dig. § 3000; Dee. Dig. ©=742.]</p> <p>3. Banks and Banking ©=>105 — Authority of President — Contracts—Dealings Adverse to Bank.</p> <p>Where the president of a bank, member of a partnership owning sheep upon which the bank held a mortgage, agreed with his partner that, if the latter would ship certain sheep to the market, and apply the proceeds of the sale to the payment of a firm note due the vendor, who had a mortgage on the sheep prior to that of the bank, the partner could withdraw the same number of sheep from the partnership in substitution, that the bank would release its mortgage as to such sheep, and that he himself would release his interest therein, such agree-, ment was not binding upon the bank in the ab-' senee of special authority.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 249-252; Dec. Dig. ©=>105.]</p> <p>4. Sequestration ©=>21 — Wrongful Sequestration-Right of Action.</p> <p>Where a bank held a mortgage on sheep, neither the bank nor its president could be charged with actual damages on account of the president’s improper affidavit to secure issuance and levy of a writ of sequestration, since the bank had a right to the writ.</p> <p>[Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 59-54; Dec. Dig. ©=21J</p> <p>5. Sequestration ©=21 — Wrongful Sequestration-Right of Action.</p> <p>Where the president of a bank holding a mortgage on sheep, in pursuance of a writ of sequestration, the issuance of which was authorized by the bank, provided an inadequate, pasture for the sheep, and directed the sheriff to use such pasture, the bank and the president were liable for damages to the sheep occasioned thereby.</p> <p>[Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 59-54; Dec. Dig. ©=>21.]</p> <p>6. Damages ©=87 — Exemplary Damages — Support by Actual Damage.</p> <p>In an action against a bank and its president for the wrongful sequestration of sheep under a mortgage thereon held by the bank, where the award of actual damages was for the expenditure by the owner made necessary by the negligent handling of the sheep under the direction of the president, an award of exemplary damages, based on the president’s making the affidavit for sequestration without probable cause, was improper as a finding of exemplary damages without actual damages occasioned by the same wrong to sustain them.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 188-192; Dec. Dig. ©=>87.]</p> <p>7. Banks and Banking ©=>112 — Tort of President — Liability of Bank for exemplary Damages.</p> <p>To render a bank liable for exemplary damages resulting from acts of its president, authorized to bring suit and make affidavit for sequestration of property on which the bank held a mortgage, other than his so doing, the bank must have authorized or consciously approved his act, since the principal is not liable in punitory damages for the torts of its agent, unless it authorized the same, or, with knowledge of the wrong committed and its nature, adopted or ratified it.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 271, 272; Dee. Dig. ©=> 112.]</p> <p>8. Sequestration ©=>21 — Wrongful Sequestration-Measure of Damages.</p> <p>In an action by the owner of sheep for damages to the animals seized under an illegally issued and levied writ of sequestration, the money expended by such owner in earing for the sheep was a proper measure of damages.</p> <p>[Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 59-54; Dec. Dig. ©=>21.]</p> <p>9. Sequestration ©=>21 — Wrongful Sequestration — Damages.</p> <p>In an action by an owner of sheep for damages to the animals when seized under an illegally issued and levied writ of sequestration, the value of lambs which would have been born but for the ill treatment of the ewes in getting insufficient pasturage was not a proper element of damages, as too remote.</p> <p>[Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 50-54; Dec. Dig. ©=>21.]</p>

W. Yeale, Special Judge. Trespass to try title by Ralph Crawford, continued after his death by Ralph D. Crawford and another, against Charles McCor-mack. Judgment for plaintiffs and defendant appeals.

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by E. M. Heath against D. D. Book, Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Travis County; George Calhoun, Judge.</p> <p>Action by the State of Texas against the Orange & Northwestern Railway Company and another. From a judgment for defendants, plaintiff appeals.</p> <p>The state brought this suit against the Orange & Northwestern Railway Company and Frank Andrews, the receiver in possession of and operating the railroad belonging to that company. The cause of action asserted arose out of alleged violations of what is known as the state Safety Appliance Law, enacted by the Legislature of this state in 1909. There was a non jury trial, which resulted in a judgment for the defendants, and the state has appealed. The evidence supports the trial judge’s findings of fact, and we adopt the same, which are as follows:</p> <p>“ (1) That the defendant Orange & Northwestern Railway Company is a railway corporation organized and doing business under and by virtue of a charter issued by the state of Texas and under the laws of the state of Texas, and owning a line of railway in part extending from and between the towns of Bessmay, Tex., and Newton, Tex.</p> <p>“ (2) That on the 9th day of July, 1913, Frank Andrews was duly appointed as receiver of the defendant Orange & Northwestern Railway Company, and has qualified and acted as such receiver since said date.</p> <p>“(3) That on or about the 17th of November, 1913, defendant company’s train No. 335 contained cai-s which were not equipped with couplers coupling automatically by impact and which could be coupled and uncoupled without the necessity of men going between the ends thereof, because the coupling apparatus with which said cars were equipped was of such a nature and in such defective condition as not to come within the requirements of the provisions of section 2 of the act of the Legislature of Texas, being chapter 26 of the Acts of the Regular Session of the Thirty-First Legislature (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2849a-2849o).</p> <p>“(4) That on the 17th and 19th days of November, 1913, defendants’ trains Nos. 333 and 310 were not operated with power or train brakes to be used or operated or that could be used or operated by the engineers of said trains, and that less than 75 per centum of the cars in said trains were not equipped with power or train brakes, as required by section 1 of the Legislature of Texas, chapter 26, of the Acts of the Regular Session of the Thirty-First Legislature.</p> <p>“(5) It was admitted by the plaintiff, and the court concludes as a fact, that on said 17th and 19th days of November, 1913, the defendants, the Orange & Northwestern1 Railway Company and the said Frank Andrews, receiver, were engaged in interstate commerce.</p> <p>“(6) That prior to the 9th day of July, 1913, said defendant company, and thereafter said receiver, published and filed with the Interstate Commerce Commission tariffs, rules, and regulations, and concurrences in the tariffs, rules, and regulations so filed and published by other carriers governing and applying to fixing and establishing the rates, fares, and charges for the handling, carriage, and transportation of interstate commerce.</p> <p>“(7) That the hauling, carriage, and transportation, of all such traffic and commerce was done and performed by said defendant company and by said receiver on and prior to said 17th and 19th days of November, 1913, and ever since said dates, in accordance with the tariffs, rules, and regulations so filed and published and concurred in by the defendants, and that the rates, fares and charges demanded and collected by said defendants for the hauling, carriage, and transportation of such traffic on and prior to said 9th day of July, 1913, and on the 17th and 19th days of November, 1913, were the rates, fares, and charges so fixed and established, and that on all of said dates said defendant company and its said receiver were common carriers by railroad and engaged in interstate commerce.</p> <p>• “(8) That on the dates hereinbefore referred to a large portion of the cars in the trains complained of by plaintiff in this suit were standard skeleton logging cars, used solely for the carriage and transportation of logs from the woods or from points on the line of the carriers near the woods to the mills, and that in the equipment of said cars said defendant company complied with the rules and regulations of the Interstate Oommerce Commission with regard to logging ears.”</p>

<p>1. Municipal Cobpokations <&wkey;654 — Public Alleys — Pbesckiption.</p> <p>In a suit to remove a cloud from title to a strip of land, evidence held to warrant a finding that the land had become a public alley by prescription.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1428; Dec. Dig. <&wkey;> 654.]</p> <p>2. Advebse Possession <&wkey;45 — Pbesckiption —Running op Statute.</p> <p>Where, during the life of an owner who was laboring under no disability, prescriptive use of land began, the fact of an intervening disability will not defeat the prescriptive right.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 232-254; Dec. Dig. <&wkey;> 45.]</p> <p>3. Dedication <&wkey; 18 — Deeds.</p> <p>Where a vendor of land agrees with the purchaser that it is bounded by a street or alley, such purchaser as against the vendor and those taking with notice, has an easement in the property represented as a street or alley.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 33-36; Dec. Dig. <&wkey;18.]</p>

A. Wilcox, Judge. Action by the State of Texas against the Enid, Ochiltree & Western Railway Company and others. From a judgment for plaintiff, defendants appeal. This is a suit by the state of Texas to perpetually enjoin the appellants from taking up and removing the ties and rails on the Enid, Ochiltree & Western railroad, from Dalhart, in Hartley county, Tex., to Wilcoe in said county, a distance of about 13 miles.

<p>1. Appeal and Error <&wkey;263 — Reservation of Grounds of Review — Exceptions.</p> <p>The Practice Act of 1913, amends Rev. St. 1911, art. 1971, to provide that the charge shall be submitted to the parties for inspection and a reasonable time given in which to present objections thereto, which objections shall, in every instance, be presented to the court before the charge is read to the jury, and that all objections not so made and presented shall be considered as waived. Article 1974, which formerly provided that refused instructions should be filed and constitute a part of the record, subject to revision for error “without the necessity of taking any bill of exception thereto,” is amended by omitting the quoted provision. 'Article 2091, which formerly provided that the giving or refusal of instructions should be regarded as excepted to in all cases, is amended to provide that such rulings shall be regarded as approved, unless excepted to “as provided for in the foregoing articles.” Article 1972, which is not amended, provides that charges given shall be regarded as excepted to and subject to revision for errors, without the necessity of taking any bill of exception thereto. Articles 2058-2000 provide that whenever in the progress of a cause either party is dissatisfied with any ruling or action of the court, he may except thereto at the time, and at his request time shall be given to embody such exception in a written bill, and prescribe the requisites of bills of exceptions. Held, that though timely objections to the charge were presented and overruled, and though special charges were requested and refused, the giving and refusal of' instructions could not be reviewed, where no exception was reserved, as article 1972, so far as it conflicts with amended article 2061, is repealed thereby, and the reference in article 2061 to the “foregoing articles” refers to articles 2058-2060, and not to the other articles amended by the act of 1913.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. <@=j263.]</p> <p>2. Statutes <&wkey;148r-Amendment of Provisions of Revised Statutes.</p> <p>When the Legislature amends an article of the Revised Statutes by referring to it by number, and providing that it shall thereafter read as therein set forth, the article as amended takes the place in the Revised Statutes formerly occupied by the superseded article.</p> <p>[Ed. Note. — Eor __other cases, see Statutes, Cent. Dig. § 217; Dec. Dig. &wkey;?148.]</p> <p>3. Constitutional Law <&wkey;70 — Determination of Validity of Statutes — Judicial Authority.</p> <p>The courts cannot substitute their judgment for that of the Legislature, and decline to enforce a statute merely because they deem it unwise.</p> <p>[Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. &wkey;?70.]</p>

<p>1. TELEGRAPHS AND TELEPHONES &wkey;>37 — DELAY in Transmission op Messages — Excuse.</p> <p>Where a telegram is sent to an addressee in care of a third person or a corporation, delivery to either relieves the telegraph company of liability.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. @=>37.]</p> <p>2. Telegraphs and Telephones <&wkey;66 — De-lav in Transmission op Messages — Findings.</p> <p>That a telegraph company did not deliver a message consigned to the care of a telephone company to that corporation or disclose the contents of the message, warrants a finding that the telegraph company did not use ordinary care to deliver the message.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. @=>66.]</p> <p>3. Evidence <&wkey;121 — Telegraphs and Telephones @=>57 — Res Gestae — Delay* in Transmission op Messages — Liability.</p> <p>Where the agent of a telegraph company, instead of delivering a message to a telephone company to which it was consigned, attempted to discover the addressee’s whereabouts through the agency of the telephone company, the telegraph company was liable for the negligence of the telephone company, and conversations between the servants of the telephone company and the telegraph company’s agent, as well as conversations between the employes of the telephone company are admissible as part of the res gestro, so a conversation showing that had the contents of the message been disclosed to the employes of the telephone company it might have been delivered is admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dec. Dig. <&wkey;121; Telegraphs and Telephones, Cent. Dig. § 38; Dec. Dig. @=>57.]</p> <p>4. Evidence <@=5156 — Admissibility — Conversations.</p> <p>Where in an action against a telegraph company for delay in transmission of messages, it appeared that the telegraph company made a telephone company its agent to ascertain the addressee’s whereabouts and parts of conversations between the telegraph company’s agent and employes of the telephone company were received in evidence, the whole of such conversations should be received.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 446-458, 2148; Dec. Dig. &wkey;155.]</p> <p>5. Appeal and Error <&wkey;1053 — Review — Harmless Error.</p> <p>Where the agent of a telegraph company testified that he did not remember or understand a purported conversation whereby a telephone operator told him that if he would disclose the purport of a message she would deliver it to the addressee’s father-in-law or wife, and it would be received, and evidence of her statements to that effect was improperly received, a charge that such evidence could not be considered unless the conversation was transmitted to and understood by the telegraph company’s agent rendered its admission harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. <&wkey; 1053.]</p> <p>6. Trial @=>314 — Conduct — Custody oe Jury.</p> <p>Where the court as a matter of pleasantry in directing the jury to attempt to agree, told them that they had the whole world to agree upon and the whole week, and it was not shown how long they had been deliberating or how soon thereafter they returned their verdict, the remark was not erroneous, notwithstanding the general rule that remarks having a tendency to leave an impression upon members of the jury that the court intends to coerce them constitute reversible error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 472, 473, 747, 748; Dec. Dig. &wkey;314.]</p> <p>7. Appeal and Error <&wkey;1046 — Review — Harmless Error.</p> <p>Where the jury in an action for delay in delivery of a death message agreed as to all the issues but that of damages, a remark by the court intended as a pleasantry, that the jury had the entire world to agree upon and the entire week, does not constitute reversible error where there was no showing how long, after the remark was made and the jury sent back, they deliberated, and there was no contention that the award of damages was excessive.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. @=>1046.]</p>

<p>1. Exchange of Property <&wkey;5 — Hands — Remedies — Rescission for Fraud.</p> <p>The owner of lands in Texas who was induced to exchange them for lands in Mexico by misrepresentations of the owner and his agent that such lands in Mexico were good and smooth, while, in fact, they were rough and worthless, had a cause of action to rescind the contract for fraud.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. <S=35.]</p> <p>2. Exchange oe Property &wkey;>5 — Remedies— Rescission por Fraud — Representations.</p> <p>Where the owner of land in Mexico, proposing to exchange them for lands in Texas, when asked by the Texas owner regarding the Mexican lands, stated that he had not been in Mexico, had not seen the land, and knew nothing personally about it, but referred the Texas owner to a third person then present for definite information, who confirmed the Mexican landowner’s previous assertions that the land was good and smooth, possessing value, such representations, in fact false, the Mexican land being worthless, were of a character to -support a suit for rescission of the contract of exchange for fraud, although what one states to another merely as his information touching the subject of a transaction will not support an action for rescission.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. &wkey;>5.]</p> <p>3. Exchange op Property &wkey;>8 — Remedies— False Representations — Sufficiency of Evidence.</p> <p>In a suit to rescind an exchange of lands as having been induced by defendant owner’s false representations, evidence held sufficient to sustain a finding that defendant and his agent made positive misrepresentations of fact.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. <&wkey;>8.]</p> <p>4. Trial <&wkey;351 — Refusal of Special Issues.</p> <p>The refusal of a special issue requested by a party is not erroneous where the same question was submitted and answered.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §jj 829, 834r-S39; Dec. Dig. &wkey;351.]</p> <p>5. Appeal and Error <&wkey;216 — Reservation of Grounds of Review — Instructions.</p> <p>An appellant who did not prepare and ask a special charge cannot take advantage of error in the charge given.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. &wkey;>216; Trial, Cent. Dig. §§ 627-641.]</p> <p>6. Trial <&wkey;260 — Instruction Covered by Those Given — Burden of Proving Fraud.</p> <p>In action to rescind an exchange of lands as having been induced by false representations, where the general charge contained a charge upon the burden of proof, the refusal to defendant of a special charge that fraud is never presumed, but must be proved by competent evidence, was proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]</p> <p>7. Exchange oe Property <&wkey;5 — Remedies— Rescission for Fraud — Fraud.</p> <p>Where the owner of lands in Mexico, proposing to exchange them for Texas lands, recklessly stated that his Mexican lands were good and valuable, which was false, having no knowledge of the truth or falsity of the statement, so that it was calculated to convey the impression that he knew it to be true, such representation was fraudulent, supporting the other owner’s suit for rescission of the exchange.</p> <p>[Ed. Note. — For other eases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. <&wkey;5.]</p> <p>8. Exchange oe Property <&wkey;8 — Remedies— Rescission eor Fraud— Judgment — Support by Finding.</p> <p>In suit to rescind an exchange of lands as having been procured by fraud, where plaintiff plead defendant’s misrepresentations, and the testimony of witnesses was confined to the statements charged, which were all material, without anything in the record indicating that the jury considered anything not material in reaching their verdict, their answer to a special issue that the representations were relied upon by plaintiff’s agent was not insufficient to support judgment for plaintiff in that it could not be ascertained whether the representations taken into consideration were matters of opinion, or those upon which an action for fraud could be based.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 14 — 18; Dec. Dig. <S&wkey;8J</p>

<p>Appeal from District Court, Lipscomb County; Frank Willis, Judge.</p> <p>Suit to foreclose a vendor’s lien by N. Fennimore against G. B. Ingham and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Swisher County; R. C. Joiner, Judge.</p> <p>Action by J. W. Greenwood against J. C. Lofland. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by John Atlir and another against Frank Foster and another. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from Potter County Court; T. W. McBride, Judge.</p> <p>Action by J. D. Stinson against the Pecos & Northern Texas Railway Company. From a judgment for plaintiff, defendant appeals.</p>

R. Hamblen, Special Judge. Action by the Southern Gas & Gasoline Engine Company against J. J. Richolson and another, who cross-complained, in which the Foos Gas Engine Company intervened. From a judgment for defendants on their cross-complaint, plaintiff and intervener appeal.

<p>1. Injunction @==>70 — Rights of Stockholders—Ultra Vires Acts.</p> <p>The stockholders of a corporation may restrain it from engaging in enterprises beyond the purposes or manner provided by its charter, since it is in fact only their business agent with a limited authority and has contracted with them to spend their money only as provided, in the charter.</p> <p>[Ed. Note — Por other cases, see Injunction, Cent. Dig. 136, 137; Dec. Dig. @=>70.)</p> <p>2. Corporations @=>388 — Public Corporations — Ultra Vires Acts — Estoppel.</p> <p>The doctrine of estoppel of a corporation to plead its ultra vires act as a defense in an action on an obligation incurred thereby does not apply to public corporations, since, where the public is interested, assent of the stockholders is of no avail in permitting corporate acts beyond the powers.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1556-1567; Dee. Dig. @=>388.)</p> <p>3. Corporations @=>388 — Powers — Ultra Vires Acts — Rights op Stockholders.</p> <p>In an action between a corporation or its stockholders and third parties, the corporation is estopped to plead its ultra vires acts the same as if it were a natural person, where the public has no interest in the litigation, except that the doctrine of estoppel does not apply where the act is one which the corporation could not do under any circumstances.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1556-1567; Dec.. Dig. @=>388.) .</p> <p>4. Corporations @=>370 — Powers op Corporations — Implied Powers.</p> <p>The powers of a corporation are not restricted to those expressly conferred by its charter, but include as necessary all those powers which are appropriate.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1511-1518; Dec. Dig. @=>370.)</p> <p>5. Corporations @=>460 — Powers op Corporation — Implied Powers — Borrowing Money.</p> <p>The implied powers of a private trading corporation include that of borrowing money and giving security therefor.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1813; Dee. Dig. @=>460.)</p> <p>6. Corporations @=388 — Powers—Borrowing Money — Purpose.</p> <p>A corporation whose declared purpose was to buy, feed, and sell cattle, which borrowed money and executed a mortgage to secure it, and used the money for another purpose, acted within its power, though it acted wrongfully, so that it was estopped thereafter to deny liability in an action by the lender for its recovery.</p> <p>[Ed. Note. — For other'cases, see Corporations, Cent. Dig. §§ 1556-1567; Dec. Dig. @=>388.)</p> <p>7. Corporations @=388 — Corporate Debts— Liability op Stockholders.</p> <p>Where all the stockholders in a corporation assent to the borrowing of money for a wrongful purpose and to the execution of a mortgage to secure it, the corporation is liable as the aggregation of its stockholders.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1556-1567; Dec. Dig. @=388.)</p> <p>8. Corporations @=388 — Corporate Debts— Assent of Stockholders — Evidence.</p> <p>Where one individual owned all but two shares of stock in a corporation, the other two shares being given by him with the intent that they should be retransferred to him, so that the purported stockholders had no interest in fact in the business, and where one of such stockholders and the principal owner consented to the giving of a mortgage to secure a loan and the other stockholders became such after the securing of the loan, the doctrine fixing liability of the corporation for the debt on assent of all its stockholders was applicable.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1556-1569; Dec. Dig. @=388.)</p> <p>9. Corporations @=>388 — Ultra Vires — Es-toppel.</p> <p>A corporation which receives the consideration for a mortgage and retains it without offer to return it or which by retaining it destroys its value, receives a consideration for the mortgage, so that it is thereafter estopped to plead ultra vires.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1556-1567; Dec. Dig. @=388.)</p> <p>10. Corporations @=388 — Powers—Actions —Estoppel.</p> <p>Where a corporation borrows money and gives its mortgage therefor, it cannot in order to defeat the mortgage thereafter allege that the mortgagee was in pari delicto with it, knowing that it acted wrongfully and without its express powers, where the contract was fully executed by the mortgagee, especially under the rule that the mortgagee knew that the mortgagor could bind itself if all of its stockholders assented.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1556-1567; Dec. Dig. @=388.)</p> <p>11. Homestead @=31 — Residence — Necessity.</p> <p>While actual residence is not necessary to fix the homestead character upon land, the mere intention to occupy land in the future as a homestead, unaccompanied by affirmative acts evidencing the intention, is insufficient to create a homestead.</p> <p>[Ed. Note. — For other cases, see. Homestead, Cent. Dig. § 39; Dec. Dig. @=>31.)</p>

<p>Appeal from Dawson Oounty Court; George W. Poster, Judge.</p> <p>Action by C. E. Brown against J. S. Crump-ton. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Judgment <@=>256 — Support by Verdict.</p> <p>In a suit against railroads and the receiver of one of them for damages to plaintiff’s lands from defendants’ failure to provide proper and necessary sluices and culverts in their roadbeds for the drainage of surface water between them, where the jury found against each of the railroads in the sum of $546, no mention being made of the receiver, judgment against the receiver was improper; the verdict being in his favor by reasonable implication.</p> <p>[Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. <@=>250. ]</p> <p>2. Trial <@=>333 — Veedict Partly against Weong Party.</p> <p>In an action against railroads and the receiver of one of them, where damages properly assessable against the receiver as having accrued to plaintiff for the wrongful acts of a road since the receivership were included in the verdict against the road, there was error in the verdict in the amount of damages that should have been rendered against the receiver.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 784, 786; Dec. Dig. <@=>333.]</p> <p>3. Appeal and Eeeoe <@=>1151 — Determina-tio'n os Cause — Ooeeection oe Veedict.</p> <p>Where separable damages were assessable against codefendants, but the verdict assessed the whole award against one, the appellate court cannot correct the error by calculating what the jury should have awarded against the defendant not mentioned in the verdict.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4498-4506; Dec. Dig. <S=> 1151.]</p> <p>4. Watees and Watee Coueses <@=>126 — Injury to Adjoining Pbopebty — Drainage— Statutoey Requieements — Insteuction.</p> <p>In an action against railroads and the receiver of one of them for damages to plaintiff’s lands by defendants’ failure to provide necessary culverts for the drainage of surface water between their roadbeds, the only questions were whether defendants had failed to comply with their statutory duty as to the construction and maintenance of necessary culverts, and whether damages had resulted to plaintiff as the natural consequence of such failure, and such issues should have been submitted to the jury without any reference to the exercise of ordinary care by defendants, which was not in the case.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 139, 141, 142; Dec. Dig. <@=>126.]</p>

<p>Appeal from District Court, Wood County; Barney Briggs, Judge.</p> <p>Action by Rube Mooney against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>Railroads <&wkey;327 — Death at Crossing — Contributory Negligence.</p> <p>Where plaintiff’s decedent, while driving an automobile along a much-traveled highway and approaching a double crossing with a traction and a steam railroad, where trains and cars frequently passed to his knowledge, there being nothing to obstruct his view of approaching cars in ample time to avoid collision, ran without swerving from his course directly into a traction car as it was crossing the highway, he was guilty of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1043-1056; Dec. Dig. &wkey;327.]</p>

<p>Error from Colorado County Court; J. J. Mansfield, Judge.</p> <p>Action by H. Bruñe against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Pleading <&wkey;376 — Allegation op Answer — Admissions—Necessity of Proof.</p> <p>Acts 33d Leg. c. 127, relating to the manner of pleading in the district and county courts, provides that if any special matter of defense shall be pleaded by defendant, the plaintiff shall answer each paragraph, either admitting or denying it, or denying knowledge or information sufficient to form a bglief, and that any fact so pleaded by defendant and not denied by plaintiff shall be taken as confessed. Plaintiff suing as a surviving partner upon an open account, denied the allegations of the several paragraphs of the answer, except those contained in the paragraph setting up that defend-, ant on balancing accounts between himself and plaintiff, found that he owed plaintiff a certain amount and that plaintiff, and his firm, and former partner owed him a certain amount, leaving a balance due plaintiff. Held, that either before or after the statute, plaintiff, without putting defendant’s answer in evidence, was entitled to a judgment for the sum admitted by the answer to be due.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1225-1227; Dec. Dig. &wkey;376.]</p> <p>2. Appeal and EhROR <&wkey;117'5 — Disposition.</p> <p>In such ease it was the duty of the Court of Civil Appeals under the statute to render the judgment which should have been rendered in the county court, so that it would reverse the judgment and render judgment for plaintiff for the sum admitted to be due.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573^587; Dec. Dig. &wkey; 1175.]</p>

<p>1. Appeal and Erroe <&wkey;1011 — Review — Finding.</p> <p>Where the evidence was conflicting, a finding by the court will be upheld.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. &wkey;> 1011.] .</p> <p>2. Attachment <&wkey;375 — Wrongful Attach ment — Damages.</p> <p>Where plaintiff attached defendant’s property, defendant cannot for wrongful attachment recover damages for the loss of an advantageous sale, having later made a sale at the same price.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1378-1385, 1387, 1393, 1394, 1398, 1399; Dec. Dig. &wkey;375.]</p> <p>3. Tender <&wkey;12 — Sufficiency.</p> <p>Where the holder of a note providing for attorney’s fees instituted suit thereon, a tender of the principal and interest due, but without the-attorney’s fees or accrued costs, is insufficient.</p> <p>[Ed. Note. — For other cases, see Tender, Cent. Dig. §§ 21-28; Dec. Dig. &wkey;12.]</p> <p>4. Appeal and Erkob <&wkey;759-1AssiGNMENTS op Error— Sufficiency.</p> <p>Assignments of error in the brief, which are not substantial copies of those set forth in the motion for new trial, will not be considered.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Oent. Dig. § 3094; Dee. Dig. &wkey;>759.]</p>

<p>1. Evidence <&wkey;208—Pleading as Evidence.</p> <p>Where in an action of libel defendant had filed a plea asserting the truth of the published charge, that plaintiff had confessed to participation in a homicide, but such plea was subser quently abandoned and superseded by an amended answer, and plaintiff filed no plea counting on such former answer as a libel, it was error to allow plaintiff to introduce the former answer in evidence, since it constituted no part of his cause of action.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 713-725; Dec. Dig. <&wkey;>208.]</p> <p>2. Evidence <&wkey;208—Pleading as Evidence.</p> <p>Plaintiff having sued in such action for actual damages only and not for punitory damages, such former answer was not admissible in evidence for any purpose.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 713-725; Dec. Dig. <®=s208.]</p> <p>3. Trial <&wkey;251—Instructions—Applicability to Pleading.</p> <p>A charge in such action that the jury might, in assessing damages, consider the fact that defendant had filed and withdrawn such r answer was error, since in the absence of a de- I mand for punitory damages, the measure of damages was limited to compensation for the actual injury caused by the original libelous publication on which the action was based.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent Dig. §§ 587-595; Dec. Dig. <&wkey;>251.]</p> <p>4. Libel and Slander <&wkey;7— Confession to Murder — Charge Libelous Per Se.</p> <p>Where defendant published in a newspaper that plaintiff had after 25 years silence confessed to taking part in a homicide, saying that he was getting old and wanted to clear his mind of the affair, and at the time of such publication there were persons living who knew that it was generally understood that the homicide was murder, and it was a well-known fact that the person killed was assassinated in the nighttime by one or more persons, such publication was libelous per se as charging the confession of a crime.</p> <p>[Ed. Note. — Por other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dee. Dig. <&wkey;7.]</p>

<p>1. Clerks oe Courts <&wkey;70 — Accrual of Liability ON ORDER 03? COURT.</p> <p>In a suit to foreclose a chattel mortgage, in which the mortgagor and a purchaser of the mortgaged property were made defendants, a writ of sequestration was issued and the mortgaged property was sold and the proceeds thereof deposited with the clerk. Thereafter the defendant secured an order dismissing the suit, quashing the sequestration proceedings, and directing the clerk to pay the proceeds in the hands of the sheriff to the defendant purchaser. The order of dismissal was thereafter, on appeal of the plaintiff without supersedeas, reversed, but prior to such reversal the clerk paid over the proceeds in accordance with the order of the court. Thereafter the cause was again tried, and a judgment was rendered against the mortgagor alone, and the clerk was directed to pay the proceeds of such sale to the plaintiff. Hold, that no action would lie on the latter judgment until the issue between the plaintiff and the other defendant as to the ownership of the property had been determined.</p> <p>[Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. §§ 109-118; Dec. Dig. <&wkey;> 70.]</p> <p>2. Judgment <&wkey;194 — Finality — “Final Judgment.” '</p> <p>A judgment which does not dispose of all the parties and issues is not final.</p> <p>[Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 354-350; Dec. Dig. <@=^194.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Final Judgment.]</p> <p>3. Judgment <&wkey;903 — Accrual of Action to Enforce.</p> <p>No action can be brought to enforce a judgment which is not final.</p> <p>[Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 1722, 1723; Dec. Dig. &wkey;903J</p> <p>4. Clerks of Courts &wkey;>70 — Custody of Funds — Duty to I-’ay Over.</p> <p>Where after judgment decreeing certain moneys to one of the parties the other appealed and filed his cost bond, but filed no supersedeas bond, it was the duty of the clerk of court in whose hands the moneys were lodged to pay over to the successful party in the judgment such moneys as he had.</p> <p>[Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. §§ 109-118; Dec. Dig. <&wkey;> 70.]</p> <p>5. Clerks of Courts <&wkey;70 — Custody of Funds — Jurisdiction — Exclusiveness of Remedy.</p> <p>Although under Rev. St. 1911, art. 1769, the county court has- power to hear motions against officers of that court for failure to pay over moneys under its process, the remedy provided is cumulative and does not prohibit separate suit against such officer in any other court having jurisdiction.</p> <p>[Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. §§ 109-118; Dec. Dig. <&wkey;> 70.]</p> <p>On Motion for Rehearing.</p> <p>6. Pleading &wkey;>35 — Surflusage—Effect.</p> <p>Where a petition to enforce a county court judgment contained further allegations of fraud and conspiracy, but no evidence was introduced to sustain such allegations nor any request made for such a finding, such allegations did not change the character of the action.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 76-80; Dec. Dig. &wkey;>35.]</p> <p>7. Clerks of Courts <&wkey;70 — Custody of Funds — Payment—Condition of Cause.</p> <p>Though, in a suit to foreclose a chattel mortgage, in which a writ of sequestration was issued and the proceeds of a sale of the property were paid into the registry of the court, the lien of the chattel mortgagee attached to the proceeds of the sale, an appeal by plaintiff without supersedeas from an order dismissing the suit and directing the clerk to pay the proceeds to one of the defendants, who claimed the property as purchaser from the mortgagor, did not excuse the clerk from paying over the money as directed.</p> <p>[Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. §§ 109-118; Dec. Dig. <&wkey;> 70.]</p>

<p>1. Telegraphs and Telephones <&wkey;67 — Breach oh Contract — Measure oh Dam- ■ AGES.</p> <p>A contract to furnish cotton market reports, when breached, entitles the other party to all damages which proximately result from the breach, but'-excludes all damages not so resulting, and all which did not flow from the breach in ordinary and natural sequence without other intervening cause.</p> <p>[Ed. Note.- — Eor other cases, see Telegraphs and Telephones, Cent. Dig. §§ 64-68; Dec. Dig. <&wkey;67.]</p> <p>2. Telegraphs and Telephones &wkey;>67 — Breach oh Contract — Measure oh Damages — Speculative Damages.</p> <p>Where defendant agreed to furnish plaintiff cotton market reports for a consideration, and failed to do so, plaintiff could not recover any damages incurred by his purchase of cotton above the market price, the breach of contract not being the proximate cause of the damage, which was due either to his reliance on other reports or his assumption of knowledge of the market price, which was in itself negligence.</p> <p>[Ed. Note. Eor other cases, see Telegraphs and Telephones, Cent. Dig. §§ 64-68; Dec. Dig. <&wkey;67J</p>

<p>Appeal and Error &wkey;j272 — Presentation op Grounds op Review in Court Below — Exceptions — Necessity.</p> <p>Under Rev. St. art. 1971, as amended by Acts 33d Leg. c. 59, providing that all objections to the charge shall, in every instance, he presented before the charge is read to the jury, and that all objections not so made shall be considered as ‘waived, and article 2061, also as amended, providing that the giving, refusing, or qualifying of charges shall he regarded as approved, unless excepted to as provided, a defendant, to have reviewed the giving of a peremptory instruction, must except before it is submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§1611-1619; Dec. Dig. <&wkey;> 272; Trial, Cent. Dig. § 680.]</p> <p>Harper, C. J., dissenting in part. '</p>

Error from Bell County Court; W. S. Shipp, Judge. Action by W. A. Ghanslor & Son against G. W. Cox, Sr., and another. Judgment for plaintiff against the defendant named, and such defendant brings error.

<p>Appeal from District Court, Dallas County; T. F. Lewis, Special Judge.</p> <p>Action by the Lingo Lumber Company against Fred C. Garvin and Royal Smith. From a judgment in favor of the last-named defendant, plaintiff appeals.</p>

Roberts, Judge. Action by Jolly & Terry against J. K. Miller, in which A. M. Clopton made claim to certain attached property. From a judgment against the claimant, he appeals.

W. Goodwin, Judge. Action by W. P. Hawkins against J. M. Johnson. Judgment for defendant, and plaintiff appeals. W. P. Hawkins, as plaintiff, sued J. M. Johnson, as defendant; the cause of action being founded upon a promissory note, executed by Johnson and made payable to Hawkins. The defendant presented an answer which, among other things, raised the issues of fact which were submitted by the court to the jury.

Error from Dallas County Court; W. M. Holland, Judge. Action by the Stebbins, Lawson & Sprag-gins Company against the Bray Company begun by attachment. Defendant filed a replevy bond with the American Surety Company of New York as surety! There was judgment by default against defendant and the surety, and the surety brings error. Question certified to the Supreme Court in 180 S. W. 101.

B. Lewis, Judge. Action by the Ajax-Grieb Rubber Company against B. A. Hubbard, who filed a cross-action. From a judgment for Hess than the amount claimed, plaintiff appeals.

<p>Appeal from District Court, Navarro County ; H. D. Stone, Special Judge.</p> <p>Action by C. C. 'Stephenson and others against the St. Louis Southwestern Railway Company of Texas and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Error from District Court, El Paso County; M. Nagle, Judge.</p> <p>Action by Clark Bishop and others against Anna Gestean and others. Motion by defendants, plaintiffs in error, to certify the cause to the Supreme Court upon the dissent of Chief Justice Harper (181 S. W. 480) from the majority opinion (180 S. W. 302) of the Court of Civil Appeals.</p>

Error from District Court, Hamilton County ; J. H. Arnold, Judge. Action by the Peck-Hammond Company against the Hamilton Independent School District. From a judgment sustaining a demurrer to the complaint, and dismissing the suit, plaintiff brings error.

<p>Error from Jefferson County Court; R. W. Wilson, Judge. .</p> <p>Action by A. L. Eastham against the Southern Wells Sales Company, begun in justice court and appealed to county court. There was a judgment for plaintiff in county court, and defendant brings error.</p>

Littler, Special Judge. Action by the Home National Bank against Billie Good, principal, and L. O. Dunn, surety. Judgment for plaintiff, and for defendant Dunn over against his codefendant, and defendant Dunn appeals.

<p>1. Appeal and Error <§=^930 — Receiver — Discharge — Peremptory Instruction — Presumptions.</p> <p>Where suit for wrongful death was brought against the receiver of a railroad and afterwards the railroad was joined as a party defendant, the failure to give a peremptory instruction in-favor of the receiver who had been discharged was not reversible error on appeal from a verdict and judgment against the railroad alone, since the jury will not be presumed to have been influenced in fixing the amount of their verdict by the supposed fact that there were two defendants liable to the judgment.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. <©=> 930.]</p> <p>2. Marriage <@=»50 — Common-Law Marriage —Evidence—Suebtciency.</p> <p>In an action against a railroad to recover for wrongful death, where the defense as to some beneficiaries was that they were illegitimate because decedent had a common-law wife living at the time of his marriage to their mother, evidence held to warrant a finding that no such common-law marriage existed.</p> <p>[Ed. Note. — Eor other cases, see Marriage, Cent. Dig. §§ 79-89; Dec. Dig. <®=>50.]</p>

<p>Appeal from District Court, Nacogdoches County; D. D. Guinn, Judge.</p> <p>By judgment of the district court, reversing the judgment of the county court, the claim of S. G. Dreyfus Company against the estate of E. R. Stallings, deceased, was given priority, and the Stoughton Wagon Company appeals.</p> <p>This case is presented to us upon an agreed statement, as follows:</p> <p>“It is agreed by the parties hereto that this cause was tried -in the district court of Nacog-doches county, Tex., February 12, 1915, and the following agreement is submitted to the court of Civil Appeals and the Supreme Court for determination, waiving formalities:</p> <p>“First. E. R. Stalling, who was engaged in general mercantile business at Garrison, Nacog-doches county, Tex., died intestate on February 10, 1913.</p> <p>“Second. That his wife, Ida Stalling, was appointed as temporary administratrix, February 26, 1913, under the following order entered by the probate court of said county: ‘Mrs. Ida Stalling, having made application for appointment as temporary administratrix of the estate of .E. R. Staffing, deceased, she is hereby appointed temporary administratrix of the estate of E. R. Staffing, deceased, with full authority to exercise the following rights and powers with regard to said estate: (a) She shall have authority to collect all life insurance policies owned by said E. R. Staffing at the time of his death on his fife. * * * (b) The said Mrs. Ida Stalling, temporary administratrix, is further authorized and impowered to take charge of and carry on the mercantile business at Garrison, Tex., belonging to the estate of B. R. Stalling, and to make such purchases of merchandise in order to carry same on and pay out such amounts of money for all purchases so made’ and for the purchases made prior to the death of said E. R. Staffing, as may be necessary to successfully carry on said business, (c) The right to collect and receipt for all debts which may be due the estate. * * * ’</p> <p>“Third. That Mrs. Ida Stalling was appointed by the court April 22, 1913, permanent admin-istratrix and duly qualified as such.</p> <p>“Fourth.' The administratrix filed an inventory May 20, 1913, showing assets $10,173.83, and liabilities $7,668, and of this amount there is listed in the inventory the stock of merchandise $9,000, but by the appraisers discounted 40 per cent., and inventoried at $5,400.</p> <p>“Fifth. The administratrix carried on said mercantile business, buying and selling merchandise, until about the 25th of December, 1913, when she sold same at public sale, receiving net from the stock of goods realized from private and public sale, $4,061.04.</p> <p>“Sixth. All of the assets consist of cash on hand, $4,061.04, and the estate owes about $16,-000.</p> <p>“Seventh. That the appellee sold the adminis-tratrix, as a wholesaler, goods, wares, and merchandises, after she qualified as administratrix, and while she was carrying on said business, for the purpose of enabling her to carry it on.</p> <p>“Eighth. That said estate owes appellant the Stoughton Wagon Company, on open account, $44.75, and one note for $627, dated January 16, 1913, due October 15, 1915, bearing 8 per cent, interest and which account and note represents the purchase price of wagons sold E. R. Staffing in his lifetime by the Stoughton Wagon Company, against which wagons there was a mortgage lien taken, which was duly registered in chattel mortgage records of Nacogdoches county, Tex., April 12, 1913, in Mortgage Book N, No. 947 and it was an indebtedness made prior to the death of E. R. Stalling, but not agreed that said wagons were on hand when said Stalling died.</p> <p>“Ninth. That the- claims of both appellants and appellee were properly made out and in due time filed and docketed on the claim docket of said court in said cause, but not classified, but in due time were presented for classification, by both appellant and appellee.</p> <p>“Tenth. At the November term, 1914, of the county court, S. G. Dreyfus Company et al. presented their application to the court, ashing the court to enter an order classifying all claims made by the administratrix in carrying on said mercantile business, as second-class claims, and that they be preferred over the pre-existing indebtedness of said estate, and be paid in full before the payment of any funds of said estate on any other ordinary pre-existing claims, and to which petition Stoughton Wagon Company, appellant, and others, filed written objections, asking that said claims be not so classified, but be prorated among all the creditors of E. E. Stalling estate, and upon a hearing thereof said probate court entered a decree as follows: ‘ * * This day coming on to be considered the report of administratrix, filed September 17, 1914, showing her conduct of the affairs of the estate, and showing cash in her hands amounting to $4,061.04, same is not acted on; and at the same time coming on to be heard the petition of S. G. Dreyfus Company, a creditor of the estate for debts incurred by the administratrix for mercantile purposes, for the estate’s commercial business since the opening of this administration, asking that said claim be preferred over the preexisting indebtedness of said estate, and be paid in full before the payment of any fund of the estate on pre-existing claims; and at the same time coming on to be heard similar petitions for the following named like creditors, viz.: S. G. Dreyfus Company, Tom Padgett Company, Na-cogdoches Grocery Company, Ardis & Co., Collins County Milling & Elevator Company, Har-grove Manufacturing Company, Eice-Stix Dry Goods Company, and said petitions being heard and considered by the court, the same are not granted, but denied. And it is the opinion of the court, and so adjudged, that the duly proven claims of general creditors of said E. E. Stalling before his death, and the claims as reported in said report by the administratrix as debts incurred by her in carrying on the mercantile business of the estate, amount to $8,621.05, are all fourth-class claims against said estate, 'and of equal standing, and all entitled to be paid in the same proportion, and to receive an equal pro rata distributive payment of the funds of said estate. And the administratrix is ordered to pay, according to law, this judgment; after reserving an amount necessary to pay the costs of administration. To this judgment of the court on classification of claims, the petitioners, S. G. Dreyfus Company, Tom Padgett Company, Na-cogdoches Grocery Company, Ardis & Co., Collins County Milling & Elevator Company, in open court excepted and gave notice of appeal to the district court of Nacogdoches county.’</p> <p>“Eleventh. The appellee herein, S. G. Dreyfus Company, appealed from said judgment to the district court of Nacogdoches county, Tex., and on February 12, 1915, said cause was submitted to the district court on the facts herein stated, and the court rendered judgment as follows: ‘February 12, 1915. The issues herein involved, as hereinafter sot out, coming on to be heard this day on appeal of S. G. Dreyfus Company from the judgment of the county court in the matters as set out in the pleadings of said Dreyfus Company, petitioners, as contested by the Stoughton Wagon Company, which judgment of the county court was against the appellant, S. G. Dreyfus Company, and other parties joining in said petition, and ordered the administratrix of this estate to pay all claims against said estate owing before the death of deceased, and all claims growing and made by the administratrix of said estate in carrying on the mercantile business of the estate in equal proportions, and all as fourth-class claims against said estate, and parties plaintiff and defendant appearing, by their counsel announced ready for trial and submitted the matters in controversy, as well of fact as of law to the court, and, the evidence and argument of counsel being heard and considered, it is the opinion of the court that the judgment of the county court, as rendered therein on November 27, 1914, as the same appears in the minutes of said court, Book No. O, p. 106, was erroneous and not justified by the law. It is the opinion of this court that the law is with petitioner S. G. Dreyfus, which petition sets out that said Dreyfus Company is the creditor of the administratrix of the estate of E. E. Stalling for the amount of $2,706.13, for goods sold to said administratrix for said estate in the continuance and carrying on of the mercantile business of said estate, and asked the payment of said indebtedness as a preferred claim over the general debts of said estate due to creditors, or existing before the death of said E. E. Stalling, and that such ordinary debts against said estate, existing before the death of said E. E. Stalling, be not paid or any portion of them, until the satisfaction of the said petitioners’ debts, and other similar indebtedness incurred by said ad-ministratrix in carrying on and the management of said mercantile business. Wherefore it is ordered, adjudged, and decreed by the court that the said claim of said S. G. Dreyfus Company, when duly and legally established as an indebtedness against said estate, incurred by the ad-ministratrix for merchandise purchased by her in carrying on and continuing the mercantile business of E. E. Stalling, deceased, and all other similar claims against such estate, when duly established, be and the same shall be paid by the administratrix of said estate in preference to all fourth-class claims existing against said estate, as incurred by the said E. E. Stalling, deceased, before his death, and that the said fourth-class claims for indebtedness of said E. R. Stalling, incurred by him before his dehth, shall not be paid out of funds on hand, held or to be held by said administratrix, until the said preferred indebtedness of said Dreyfus Company, and other similar claims, duly approved, shall be fully paid up and discharged. It is further ordered, adjudged, and decreed by the court that the Stoughton Wagon Company pay all costs herein incurred on this appeal, and in this court, for which execution may issue. And the clerk of this court is ordered to make a certified copy of this judgment and transmit it to the county court of Nacogdoches county for observance of the matters involved.’</p> <p>“Twelfth. The Stoughton Wagon Company filed its motion for new trial, which was duly presented, and by the court, on the 26th day of March, 1915, overruled, to which defendant excepted and gave notice of appeal.</p> <p>“Thirteenth. It is agreed that the district court judgment shall be affirmed, provided the court should hold that the claims which have been properly, proven up and made by the ad-ministratrix in carrying on said mercantile business should be paid before and in preference to the debts made by E. E. Stalling in his lifetime.”</p>

Error from District Court, Hamilton County ; J. H. Arnold, Judge. Action by C. F. Oliver against D. M. Oliver and others. There was a judgment awarding plaintiff an amount fixed, but denying sale for partition, and he brings error.

<p>1. Appeal and Error <@=797 — Motions to Dismiss — Time por Motion.</p> <p>Where a case was filed in the Court of Civil Appeals on June 7th, a motion filed on October 2d to dismiss the appeal because the sheriff’s return did not show service of a copy of the petition for the writ of error on defendants in error was made too late.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3149-3154; Dec. Dig. <@= 797.]</p> <p>2. Appeal and Error <@=655, 660 — Record-Motions to Strike Out.</p> <p>Defendants in error filed motions to strike out the transcript and to strike therefrom purported findings of fact on the ground that they were never filed by the court or authorized by him to be filed, that they were prepared to assist plaintiff in error’s counsel in preparing his motion for a new trial, and not for the purpose of appeal or as conclusions of law and fact for filing, and that on the motion for a new trial the question whether a fact not mentioned in such findings was proved was discussed, whereupon the trial judge stated that he remembered the proof of such fact, and thereupon overruled the motion. The motion to strike out was supported by the trial judge’s affidavit and accompanied by a judgment of the trial court purporting to expunge the findings. Held, that the only way such matters could be brought before the Court of Civil Appeals was by certiorari, and the motions would be overruled.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2823-2825, 2829, 2844-2847; Dee. Dig. <@=655, 660.]</p> <p>3. Judgment <@=250 — Conformity to Pleadings and Proof.</p> <p>Where a buyer of railroad ties was to have the right of inspection, and its inspector refused the ties, the seller could not recover for the ties refused without pleadings and proof warranting such recovery.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. <@=250.]</p> <p>4. Judgment <@=251 — Conformity to Pleadings.</p> <p>Where, as found by the trial court, plaintiffs sold certain railroad ties which defendants refused to accept, plaintiffs could not recover on a petition alleging that the sale was made to defendants by C. and P., and that the account for the ties was transferred by C. and P. to plaintiffs.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. <@=251.]</p> <p>5. Sales <@=214 — Refusal of Goods by Buyer-Remedies of Seller.</p> <p>Where defendants ordered lumber from plaintiffs to be manufactured to order, defendants to have the right of inspection, the lumber remained the property of plaintiffs until accepted by defendants, though tendered to defendants and refused on report of their inspector, and plaintiffs’ cause of action, if any, was for damages for breach of the contract.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 571-573; Dec. Dig. <@=214.]</p> <p>6.Sales <@=379 — Refusal to Accept — .Election of Remedies — Pleading and Proof.</p> <p>Whether parties suing on account of defendants’ refusal to accept railroad ties purchased by them were the sellers or purchasers of the account from the sellers, they could not recover without pleadings and proof showing an election by them to store and preserve the ties subject to defendants’ order and recover the purchase price, to sell the ties as defendants’ agent and recover the difference between the price received and the contract price, or to retain the ties as their property and recover the difference between the market price of the ties and the contract price thereof.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1094; Dec. Dig. <@=379.]</p>

<p>Appeal from District Court, Burleson County ; Ed R. Sinks, Judge.</p> <p>Action by Rudolph Prazak and wife against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, McLennan County; E. J. Clark, Judge.</p> <p>Action by W. P. DriskiU against J. H. Boyd. From an order dissolving a temporary Injunction and refusing to appoint a receiver, plaintiff appeals.</p>

<p>Appeal from McLennan County Court; Geo. N. Denton, Judge.</p> <p>Action by John Padgett and wife against tBe St. Louis SoutBwestern Railway Company of Texas. Judgment for plaintiffs, and defendant appeals.</p>

N. Denton, Judge. Action between the St. Louis Southwestern-Railway Company of Texas and J. C. McKeteh-am and others. There was a judgment for the latter, and the former appeals. Affirmed.

<p>Ceiminal Law <&wkey;871 — Verdict—Form.</p> <p>In a criminal prosecution, where the court submitted three forms of verdict — one if the jury found defendant not guilty, a second if they found her guilty, and recommended a suspension of sentence, and a third if they found her, guilty and recommended that sentence be not suspended — the filling out the blank in the latter form signed by the foreman, and received by the court without exception, was a good verdict.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2079-2081; Dec. Dig. &wkey;S71.]</p>

<p>1.Animáis <§=32 — Destruction of Diseased Animals.</p> <p>A county is not liable for either the willful or negligent act of its officers, unless such liability is created by statute expressly or by necessary implication, so that an allegation that the county judge unlawfully ordered the killing of plaintiff’s mules and horse without alleging that he did so under Rev. St. arts. 7161-7164, authorizing the killing of diseased animals stated no cause of action against the county.</p> <p>LEd. Note. — Eor other cases, see Animals, Cent. Dig. § 82; Dec. Dig. <®=32.]</p> <p>2. Animals <®=32 — Destruction of Diseased Animals.</p> <p>Defendant killing plaintiff’s mules and horse on an order of the judge of the county court, who believed they were affected with glanders, was not liable to plaintiff in damages, where it was not shown that proceedings prescribed by Rev. St. arts. 7161-7164, were not had, or that defendant was not a sheriff, deputy, etc., of the county.</p> <p>[Ed. Note. — Eor other cases, see Animals, Cent. Dig. § 82; Dec. Dig. <@=32.]</p> <p>3. Evidence <®=83 — Presumption—Performance of Official Duty.</p> <p>In the absence of allegation and proof to the contrary officers are presumed to do their duty.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. <@=83.]</p>

<p>1. Pleading <©=>236 — Amendment — Discretion of Court.</p> <p>The right to file an amended petition is not an absolute right, but is within the discretion of the trial court.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 601, 605; Dec. Dig. <^»236.]</p> <p>2. Trespass to Try Title <®=>6 — Evidence-Title Provable.</p> <p>Under a petition in trespass to try title, any title except title by limitation can be shown, and facts supporting any character of title may be introduced in evidence, unless they rest upon limitation alone.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dee. Dig. <&=6.]</p> <p>3. Appeal and Error <§=>1041 — Harmless Error — Amendment of Pleadings.</p> <p>The original petition in an action was in the ordinary form of a petition in trespass to try title and for damages to timber cut and converted. On the day the ease was set for trial, plaintiff presented an amended petition, alleging that defendants were estopped, by reason of certain alleged facts, to set up title against plaintiff, and offering to do equity. The court refused to permit the filing of this amended petition, but plaintiff on the trial was permitted in open court to make the same offer to do equity made in the amended petition, and to introduce all of the evidence claimed to show an estoppel. Held, that it did not appear that plaintiff suffered any injury from its failure to file its amended petition, or from the absence of any tender in the original petition.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. <§=> 1041.]</p> <p>4. Public Lands <§=>172 — Forfeiture of Purchase — Effect.</p> <p>Where a purchase of land from the state was forfeited by the Commissioner of the General Land Office for nonpayment of interest on the purchase price, the title acquired by the purchase was extinguished, and the land was restored to the public domain of the state.'</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 523-543; Dee. Dig. <¿¿>172.]</p> <p>5. Estoppel <§=>49 — Assets and Rights Subsequently Acquired.</p> <p>T. purchased land from the state as an actual settler in 1896, and in 1901 conveyed to plaintiff’s grantors by warranty deed in consideration of a cash payment and the assumption by plaintiff’s grantors of the obligation to the state for the unpaid purchase money and interest thereon. The interest was not paid, and the purchase was forfeited for nonpayment of interest, and the land was again placed on the market for sale, reappraised, and again sold to T. as an actual settler. T. Subsequently completed his purchase and acquired a patent. Held, that he was qualified to purchase the land from the state upon its resale, and the title so acquired did not pass to plaintiff by estoppel, as there was no breach of T.’s covenant of warranty, and plaintiff’s title was lost through its own neglect and default, especially as title could not pass by estoppel at the date of the second purchase, since plaintiff, a corporation, could not be an actual settler and could not comply with the conditions upon which title could be obtained, while to hold that title passed when T. completed his 3 years’ occupancy would require a holding that plaintiff had a right to require T. to live on the land for 3 years and spend his money in making permanent and valuablé improvements for its benefit.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 119; Dec. Dig. <¿¿>49.]</p> <p>6.Public Lands @=>172 — Forfeiture of Purchase — Right of Reinstatement.</p> <p>Where land purchased from the state was ■forfeited for nonpayment of interest, and the right of those claiming under the purchaser to reinstate the purchase had never been exercised, the naked right to reinstate did not amount to a title.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 523-543; Dec. Dig. <^=172J</p>

<p>1. Master and Servant <@=>124^-Mastee’s Duty oe Inspection.</p> <p>The master is not relieved of the general duty he owes his servant to inspect the place of work to discover dangerous conditions unless by his contract of employment the servant is required to perform the duty of inspection himself, and such duty is one of the primary objects of the employment.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §jj 235-242; Dec. Dig. <®=> 124.]</p> <p>2. Master and Servant <©=>217 — Injury to Servant — Assumption of Risk — Duty of Inspection.</p> <p>Where the employé of an electric lighting company, one of whose duties, among others, was to take down and replace any unsafe poles, was killed by the breaking off and falling of a pole against which he had been warned and which he had climbed to adjust a wire, which pole, of white cedar, had been put in new some four years before, the light company was not liable for such employé’s death, since he had assumed the risk of injury as the duty of inspecting the pole rested on him.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. <©=> 217.]</p>

<p>1. Partition <@=5 — Parol Partitions — Validity.</p> <p>A verbal partition of land followed by delivery of possession is valid.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. <@=5.]</p> <p>2. Infants <@==>58 — Contracts — Disabttbm-anoe.</p> <p>Where an infant who was entitled to share in lands was a party to a verbal partition, he must, if desirous of disaffirming, disaffirm within a reasonable time after reaching his majority; a reasonable time being such a time as a person of ordinary prudence and diligence would under similar circumstances require to disaf-firm the contract.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 149-160; Dee. Dig. <@=35S.]</p> <p>3. Costs <@=68 — Award — Discretion oj? Court.</p> <p>Under Rev. St. 1895, arts. 1425, 1438, declaring that the prevailing party shall be entitled to all costs, and authorizing the court on good cause to adjudge costs otherwise, it is not an abuse of discretion where plaintiff, who sought recovery of the value of % of the timber cut from a parcel of land, recovered only V22 °f V2 °f the value of the timber, to award 21/2 2 of costs in favor of the defendant.</p> <p>[Ed. Note. — For other eases, see Costs, Cent. Dig. §§ 287-289; Dec. Dig. <@=68J</p>

<p>1. Pleading <@=>271 — Answer—'Verification —Amendment.</p> <p>Where plaintiff moved for judgment on the pleadings because the answer had not been verified, the court may properly allow the answer to be verified by way of amendment and then deny the motion.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 819; Dec. Dig. <§¿=>271.]</p> <p>2. Pleading <@=>345 — Judgment on Pleadings.</p> <p>Where the complaint seeking partition set forth plaintiff’s chain of title, the answer which, while admitting that plaintiff was the heir of the deceased owner of the property, averred that the owner made a partition during her lifetime, and that plaintiff received other lands and was not entitled to share in the property claimed, is a sufficient denial of the averments of the complaint to preclude judgment on the pleadings.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1055-1059; Dec. Dig. <@=>345.]</p> <p>3. Teial <@=>403 — Findings ox Facts and Conclusions ox Law — Filing.</p> <p>Where plaintiff requested written findings of fact and conclusions of law, and the same, being prepared by defendant and signed by the judge, were presented to plaintiff’s counsel within the time allowed, plaintiff’s counsel, having neglected to file them with the clerk according to the custom, cannot complain that they were not filed in time.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 913, 954-956; Dec. Dig. <@=>403.]</p> <p>4. Descent and Distbibution <@=^93 — Adv an cement — Expect.</p> <p>Where a landowner distributed her property before her death among her children, and plaintiff received and accepted her share, the transaction was an advancement, and plaintiff could not thereafter claim a share in the remaining property.</p> <p>[Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. § 889: Dec. Dig. <®=> 98.]</p>

<p>Appeal from District. Court, Williamson County; C. A. Wilcox, Judge.</p> <p>Action by Marie Trochta and others against the Missouri, Kansas & Texas Railway Company of Texas. Judgment.for plaintiffs, and defendant appeals.</p>

Action by P. O. Beard and others against L. B. Pierson and others. From a judgment for plaintiffs, defendants appeal.

<p>Appeal from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by Ben F. Dancer against the /Etna Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Masted and Servant <&wkey;286 — Question foe Jury — Negligence.</p> <p>In a servant’s action for injuries in removing a broken plate glass window, evidence held sufficient to warrant submission to the jury of defendant’s negligence, as the proximate cause of the injux*y, in failing to warn plaintiff of the dangers of the work, in failing to furnish a' safe place and sufficient workmen to do the work, and in improperly directing the work.</p> <p>[Ed. Note — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. <i&wkey;2S6.]</p> <p>2. Master and Servant <§=293— Warning to Servant — Instruction.</p> <p>In such an action, an instruction as to defendant’s failure to warn plaintiff of the dangers must be qualified by advising that a recovery can be had on such ground only if plaintiff did not know1 of the dangers, or would not have known of them by exercising ordinary care in performing the work.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. <&wkey;293.]</p> <p>8. Trial <&wkey;296 — Instructions — Construction as a Whole.</p> <p>In a servant’s action for injuries, an instruction on defendant’s failure to warn of the dangers of the work, without qualifying as to plaintiff’s knowledge of the dangers, or his acquiring such knowledge by exercising ordinary care, does not constitute error, if such qualification is supplied in subsequent portions of the general charge referred to.</p> <p>[Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. &wkey; 296.]</p> <p>4. Master and Servant <&wkey;26A-PLEADiNG— Proximate Cause.</p> <p>In a servant’s action for injuries, an allegation that he was inexperienced^ in the work required of him, and ignorant of its dangers, is a sufficient allegation as to the proximate cause to support the admission of Ms testimony on the question of assumed risk, as tending to show his ignorance of the dangers encountered im performing the work as directed.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. <&wkey;> 264.]</p> <p>5. Damages <&wkey;131 — Amount oe Yerdict.</p> <p>Where a servant was severely cut on his hands and arms by glass, and suffered great pain, medical expenses, loss of time,'and earning capacity, a verdict for $964 held, not excessive.</p> <p>[Ed. Note. — For other eases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. &wkey;131.]</p> <p>6. Trial <&wkey;133 — Misconduct oe Counsel. _</p> <p>_ If the evidence or size of a verdict indicates that the jury were influenced by improper remarks of counsel in intimating the defendants were protected by indemnity insurance, and that any judgment recovered against them would be paid by the insurance company, a judgment for plaintiff should be reversed, notwithstanding an objection was sustained to such remai-ks, and the counsel making them reprimanded.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dee. Dig. &wkey;133.]</p>

<p>Appeal from District Court, Orange County ; A. E. Davis, Judge.</p> <p>Action by E. E. Sandefur against the Orange County Irrigation Company and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Harris County; John A. Read, Judge.</p> <p>Action by Lewis E. Sampson against J. A. Friedman. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Drains <&wkey;40 — Drainage Districts — Taking op Private Property.</p> <p>As private property cannot be taken or damaged without adequate compensation to the owner, the construction of a drain which would overflow private property will be enjoined, where there is no provision for compensation to the owner and the drainage district has no funds to make compensation.</p> <p>[Ed. Note. — For other cases, see Drains, Cent. Dig. § 59; Dec. Dig. <&wkey;>40.]</p> <p>2. Eminent Domain <&wkey;69 — Establishment op Drains — Order op Commissions Court.</p> <p>While drainage laws give the commissions court jurisdiction over the establishment of drainage districts, such courts do not have jurisdiction in adopting the specifications for a drain to authorize the taking of private property without due compensation.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 171-179; Dec. Dig. <&wkey; 69.]</p> <p>3. Courts <&wkey;472 — Injunction — Jurisdiction op District Court.</p> <p>Where the plan adopted for the construction of a drainage system necessitated the overflow of private property, and the drainage district had made and could make no compensation; the district court, notwithstanding the exclusive jurisdiction of the commissions court over the organization of drainage districts, has jurisdiction to issue an injunction restraining constrúction of the drain.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 442, 451, 459, 465, 619, 1199-1202, 1204-1224, 1247-1259; Dec. Dig. &wkey;472.]</p>

<p>Drains <&wkey;40 — Right to Injunction — Damages.</p> <p>Where the construction of a drainage ditch would destroy á dam on plaintiff’s property, greatly to his injury, and the drainage district had not and was unable to make compensation for the injury, the work will be enjoined.</p> <p>[Ed. Note. — For other eases, see Drains, Cent. Dig. § 59; Dec. Dig. <&wkey;>40.]</p>

<p>Appeal from Trinity County Court; C. M. McKinnon, Judge.</p> <p>Suit by Bud Redden and others against L. D. Vance. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Action by Charles líales against David Fahey to set aside a sale of real estate. Judgment for plaintiff, and defendant appeals.</p>

B. Hightower, Judge. Action by C. N. Smith, with Ab J. Jett, and. another as interveners, against Jacob C. Baldwin and others, to try title to land. Cross-bill by defendant Baldwin asking for a judgment of title in him. Judgment for plaintiff and interveners, and Baldwin appeals.

<p>CORPORATIONS <&wkey;432 — ACTS OP OPPICEBS — INDIVIDUAL ob Corporate Act — Evidence.</p> <p>In an action for the conversion of three bales of cotton mortgaged to plaintiff, and received from mortgagor’s wife by defendant’s manager, who was also .a cotton speculator for himself, evidence held to warrant a finding that the cotton was delivered to and received by the manager, as such, for defendant corporation, and not by the manager in his individual capacity.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. &wkey;432.]</p>

Odom, Judge. Action by Hugh A. Warren against the National Live Stock Insurance Company. From judgment for plaintiff, defendant appeals. Affirmed.

H. Burney, Judge. Application by O. Thallman against the Buckholts State Bank and others for a writ of injunction against order of sale. From an order transferring the cause to another county, petitioner appeals.

<p>Appeal from District Court, Harris County; A. R. Hamblen, Special Judge.</p> <p>Action by E. E. Sapp and another against Joseph Poutra. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Telegraphs and Telephones <&wkey;65 — Failure to Deliver Telegram — Mental Anguish — Action—Proof Required. ■</p> <p>Where, in an action to recover for mental anguish occasioned by the failure of a telegraph company to deliver a message sending money to plaintiff’s daughter to enable her to come home from another town, sent by plaintiff in response to a telegram from her that she was sick, the anguish being occasioned by the fact that she was prevented from coming home by the failure to deliver the message, and that plaintiff feared she would not have proper attention, and that she would have come home had she received the money, it appeared that the daughter had proper attention and would not have come home had she received the money, plaintiff cannot recover, since under the rule that one cannot recover damages for mental anguish based upon imaginary conditions which in fact do not exist, laintiff was required to show that had his aughter received the money she would have returned home.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54^60; Dec. Dig. &wkey;»65.]</p> <p>2. Telegraphs and Telephones <&wkey;57 — Joint Agent Taking Message — Liability.</p> <p>Where plaintiff delivered such message for sending to the joint agent of the telegraph company and railroad company who sent it over the railroad company’s wire to the railroad agent at destination because there was no money office of the telegraph company at the sending point, of which facts plaintiff was unaware and not informed by the agent, defendant could not escape liability for failure to deliver, on the ground that the message had never been delivered to it, since a telegraph company holds itself out as a dispatcher of messages for hire, which is not true of a railro.ad company, and plaintiff therefore had the right to presume that his delivery to such joint agent was proper.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 3S; Dec. Dig. <&wkey;> 57.] .</p>

Error from District Court, Jefferson 'County; John M. Conley, Judge. Action by C. J. Sehevoight and wife against the Texarkana & Ft. Smith Railway Company. There was judgment for plaintiffs, and defendant brings error.

<p>Appeal from Coleman County Court; W. Marcus Weatherred, Judge.</p> <p>Action by J. O. Thomason against Fred Crum. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Bills and Notes <&wkey;342 — Purchase-Money Note — Breach oe Warranty.</p> <p>That notes showed on their face that they were given in part payment for land on which a vendor’s lien was retained did not preclude a purchaser of the notes from being an innocent purchaser thereof without notice and entitled to enforce samé free from the maker’s defense of breach of warranty.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 830-841; Dec. Dig. <&wkey;> 342.]</p> <p>2. Bills and Notes <&wkey;332 — “Innocent Pub-ciiasek.”</p> <p>That, a purchaser of notes secured by a vendor’s lien knows of a grant of the land to a third person prior to that under which the vendor claimed does not alone prevent him from being an innocent purchaser of the notes.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 805, 815, 816; Dec. Dig. &wkey;332.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Innocent Purchaser.]</p> <p>3. Bills and Notes &wkey;344 — Overdue Interest — Deeenses—Injunction.</p> <p>That when the holder of notes acquired same the interest thereon was past due did not entitle the maker of the notes, who claimed a good defense to them, to enjoin the holder from suing, where the notes were acquired by the holder in good faith for valúe and before maturity; the maker’s defense as against the overdue interest being as available against the holder as against the payee.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 866-868; Dec. Dig. <S&wkey; 344.]</p>

<p>Appeal from Coleman County Court; W. Marcus Weatherred, Judge.</p> <p>Action between Fred Crum and G. W. Meyers. From a judgment for the latter, the former appeals.</p>

<p>1. Limitation oar Actions <&wkey;2 — Running of Statute — Foreign Statute.</p> <p>Plaintiff, while working for defendants in the state of Douisiana, received personal injuries. The Louisiana statute prescribed, a one year’s limitation or prescription. Plaintiff and all of defendants resided within the state of the forum since the date of the injury. Held, that the Louisiana limitation statute did not apply to an action in the forum brought within the time prescribed by the local statute.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 4-8; Dec. Dig. &wkey;>2.]</p> <p>2. Appeal and Error &wkey;>999 — Review — Findings.</p> <p>Findings of the jury on contested fact issues should not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921, 3923, 3924; Dec. Dig. &wkey;?999J</p> <p>3. Master and Servant <s=»288 — Injuries to Servant Assumption of Risk — Jury Question.</p> <p>In an action by a servant for-injury while on a ladder which was used by the master’s servants, and which slipped, causing the injury,. held, that under the evidence whether plaintiff assumed the risk of injury because the ladder was unfastened was for the jury; there being evidence that' other servants did not know it was unfastened.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. <&wkey;>288.]</p> <p>4. Master and Servant &wkey;>286 — Injuries to . Servant — Jury Question.</p> <p>Where a servant claimed that his injuries were caused by the master’s negligent failure to fasten a -ladder leading to a fuel oil. tank, the question whether the master was guilty of negligence in that respect held properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. &wkey;>286.]</p> <p>5. Trial <&wkey;3'50 — Special Issues — Submission.</p> <p>In such case a special issue was proper which submitted to the jury the question whether plaintiff, before injury, knew that the ladder was unfastened.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. .Dig. §§ 828-833; Dec. Dig. &wkey;350.]</p> <p>■ 6. Master and Servant <@=^289 — Injuries to Servant — Jury Question.</p> <p>In an action by a servant injured while climbing a ladder to a fuel oil tank, the question whether he was charged with constructive notice that it was not fastened held properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant,- Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. c&wkey;>289.]</p> <p>7.Master and Servant >&wkey;235 — Injuries to Servant — Safe Place of Work.</p> <p>It is the duty of a master to exercise ordinary care to provide for his servants a safe place to work, and the servant is entitled to assume that the master has done his duty in that respect. Therefore a servant required to use a ladder leading to a fuel oil tank is entitled to assume that the master has properly secured the ladder.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 710-722; Dec. Dig. <&wkey;></p> <p>8. Trial <&wkey;296 — Injuries to Servant — Assumed Risk.</p> <p>Where plaintiff was injured in mounting a ladder to see if a fuel oil tank was empty, and the court in submitting the issue whether he was charged with constructive notice that the ladder was not fastened informed the jury that a servant was not required to inspect the ladder, or to use ordinary care to see if it was fastened to the tank unless, under the terms of his contract, it became his duty to do so, further charges in submitting the issue whether plaintiff by the exercise of ordinary care would have discovered that the ladder was not fastened, that by “assumed risk” was meant the ordinary risks of service not caused by the negligence of the master, and that when the servant enters his employment he is entitled to rely upon the assumption that the appliances are reasonably safe, and need not use ordinary care to ascertain that fact, sufficiently submitted to the jury the question of assumption of risk.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. &wkey; 296.]</p> <p>9. Master and Servant &wkey;?286 — Injuries to Servant — Jury Question.</p> <p>Where plaintiff, who was injured while he was on a ladder furnished by the master, claimed that the master was negligent in failing to inform him that the ladder was not fastened, and the evidence on thkt issue was conflicting, the question whether the failure to warn was negligence was for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. <&wkey;=>2S6.]</p> <p>10. Appeal and Error &wkey;>882 — Invited Er- ' ror — Right to Complain.</p> <p>Wlhere defendants requested the court to submit an' almost identical proposition, they cannot complain of the submission on a special issue of a similar proposition.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. &wkey; 882.]</p> <p>11. Trial <&wkey;3'50 — Injuries to Servant — Special Issues.</p> <p>Where a servant was injured while on a ladder leading to a fuel oil tank, which he was using to look into the tank to see whether the oil had run out, the submission of the special issue whether the fact that the ladder was not attached to the tank was open1 and obvious to-one possessing ordinary senses, and would have been discovered by one in the service of defendants for two weeks as the servant had been, was proper; the negligence alleged being that the master failed to fasten the ladder.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. &wkey;350.]</p> <p>12. Trial &wkey;>350 — Injuries to Servant — Special Issues.</p> <p>In such case, it was proper to submit to the jury the question as to whose duty it was to fasten1 the ladder; the evidence on the issue being conflicting.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 82S-833; Dec. Dig. &wkey;>350.]</p> <p>13. Trial <&wkey;260 — Insikuctions—KefusaIí.</p> <p>The refusal of a charge covered by the charges given is not error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]</p> <p>14. Appeal and Error &wkey;>1004 — Review— Verdict.</p> <p>Where it did not appear the result of passion or prejudice, an award of damages in a personal injury action will not be disturbed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. &wkey;> 1004.]</p>

E. Davis, Judge. Action by J. O. Toole against the Orange Lumber Company, which impleaded the American Lumber Company, and in which J. M. West was made a party defendant. Judgment for plaintiff against the Orange Lumber Company and J. M. West as its trustee jointly and severally, and in favor of such defendants over against their codefendant, and the defendants appeal.

Masterson, Judge. Trespass to try title by Mrs. Mary H. Emory and. others against W. H. Bailey and others. Judgment for defendants, and plaintiffs appeal.

Error from District Court, Newton County; A. E. Davis, Judge. Trespass to try title by the Houston Oil Company of Texas against R. H. Griggs and others. There was a judgment in favor of the named defendant, and plaintiff brings error.

<p>Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.</p> <p>Action by Ann Clemmons and another J. S. Edwards. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Waters and Water Courses <&wkey;119 — Obstruction — Right of Way — “Act of God.”</p> <p>A flood not shown to have been higher than previous floods, hut which plaintiff claimed injured his premises because the defendant railroad company had partially filled in trestles of a dirt embankment causing the water to back up, is not an act of God excusing the railroad company from liability.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 131-134; Dec. Dig. <&wkey;>119.</p> <p>Por other, definitions, see Words and Phrases, First and Second Series, Act of God.]</p> <p>2. Waters and Water Courses <&wkey;12G — Obstruction — Right of Way — Damages.</p> <p>In an action against a railroad company for destruction of plaintiff’s crops which he claimed resulted from an embankment partially filling railroad trestles, which caused flood waters to back up and inundate his land, evidence held, insufficient to show that the fill caused the damage.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 139, 141, 142; Dee. Dig. &wkey;>126.]</p> <p>3. Waters and Water Courses <&wkey;125 — Verdict — Conjecture.</p> <p>Where plaintiff’s crops would have been inundated in any event, but fills under a railroad trestle caused the waters to stand longer on plaintiff’s land, an award for destruction of crops cannot stand, being based on pure speculation, there being nothing to show what part of the damage resulted from the fills holding the water.</p> <p>[Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. § 140; Dee. Dig. &wkey;125.]</p> <p>4. Evidence &wkey;>472— Opinion Evidence — Conclusion.</p> <p>Where plaintiff claimed that fills under a railroad trestle prolonged the inundation of Ms farm and resulted in the destruction of his crops, testimony that the water on plaintiff’s land was backwater, is admissible, but the witness cannot testify that such backwater was caused by the fills, that being a question for the jury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. &wkey; 472.]</p> <p>•5. Trial <&wkey;85 — Objections—Sufficiency.</p> <p>Where part of the answer was admissible, the overruling of an objection to the entire answer was not error, but part of it was improper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. &wkey;85.]</p> <p>6. Evidence <&wkey;472 — Opinion Evidence.</p> <p>Where it was claimed that fills under railroad trestles caused flood waters to back up and inundate plaintiff’s land, testimony that the water was higher on the upper side of the fills than it was on the lower, is not subject to objection that the witnesses attributed the depth of water solely to the fills.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. '&wkey; 472.]</p> <p>7. Appeal and Error <&wkey;1048 — Review — Harmless Error.</p> <p>Where the witness had already testified to a fact assumed in a question, the assumption is harmless error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. <&wkey;>1048.]</p> <p>8. Evidence <&wkey;471 — Opinion Evidence — Conclusions.</p> <p>Where plaintiff’s land was inundated by flood waters and fills under the railroad trestles retarded the escape of the waters, testimony that plaintiff would have lost only part of his crops had there been no fills, is improperly received, being a conclusion of the witness on a matter for determination by the jury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. <§==>471; Witnesses, Cent. Dig. §§ 833-836.]</p> <p>9. Trial <&wkey;252 — Instructions—Refusal.</p> <p>Where it was claimed that fills under a railroad embankment caused waters to back up, prolonging the inundation of plaintiff’s land, and there was no evidence showing other obstructions; which caused the backing up of the water, the refusal of a charge requiring a verdict for defendant if the jury should be unable to determine what portion of the damages was caused by defendant’s fills and what part by other obstructions, is proper. ;</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252J</p>

Error from Tyler County Court; A. G. Reid, Judge. Action by C. M. Davis, doing business as the Davis Company, against E. E. Jeanes and another, in which the L. C. Malone Lumber Company was garnished. Prom a judgment against the garnishee, it brings error.

E; Davis, Judge. Trespass to try title by E. M. Davis and others against the Houston Oil Company of Texas and others. Judgment for plaintiffs, and the named defendant appeals.

<p>1. Sales t&wkey;38—Action for Price—Defense —False Representations.</p> <p>That one buying an automobile was not damaged by the false statements made by the seller’s agent to bring about the sale that the buyer’s wife desired him to make the purchase did not prevent the buyer from setting up such statements as a defense in an action on a check and notes given in payment and the mortgage securing the same; the rule that fraud, to be the basis for recovery of damages, must have resulted in some pecuniary injury not applying in sucia case.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 65-77, 85; Dec. Dig. ©=538.]</p> <p>2. Evidence ©=5434 — Action eor PRICE — MISREPRESENTATIONS 03? AGENT — EVIDENCE.</p> <p>In an action on a check and notes given in payment for an automobile, evidence that plaintiff’s agents represented to defendant prior to the purchase that defendant’s wife told the agents to get defendant to make the purchase, and that she was pleased with the machine, was properly admitted, notwithstanding a provision of the sale contract that plaintiff would not be responsible for any undertakings, promises, or warranties made by their agents beyond those expressed in the contract; such provision not operating to prevent defendant from showing that the contact was procured by false representations of the agents.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Dec. Dig. ©=5434.]</p> <p>3. Evidence ©=5317 — Hearsay—Sales.</p> <p>In an action for the price of an automobile, wherein the defense was that plaintiff’s agents had falsely stated that defendant’s wife desired him to buy the machine, defendant’s testimony as to what his wife told him relative to what she said to the agents, being hearsay, was improperly admitted.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174=1192; Dec. Dig. ©=5317.]</p> <p>4. Appeal and Erbob ©=51050 — Harmless Error — Hearsay Evidence.</p> <p>The admission of such evidence was harmless, however, where defendant’s wife testified fully to the same facts.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. ©=51050.]</p> <p>5. Sales ©=52 — Action jpor Price — Evidence.</p> <p>Where, in an action on instruments given for the price of an automobile, the defense was that the sale was procured by false representations as to statements made by defendant’s wife to plaintiff’s agents, defendant’s wife was properly permitted to detail the conversation between herself and such agents when they showed her the car with a view of selling it to defendant.</p> <p>[Ed. Note. — For other cases, see Sales, Gent. Dig. §§ 118-144, 1045; Dec. Dig. ©=552.]</p> <p>6. Trial ©=525 — Argument—Right to Open and Close — Pleading.</p> <p>Under Rules of Practice in the District and County Courts, rule 31 (142 S. W. xx), relative to the right to open and close the argument, where in an action on instruments evidencing the price of an automobile defendant admitted execution of the instruments, and in avoidance thereof pleaded fraud of plaintiff’s agents, and further pleaded “that but for the facts set out in this answer the plaintiff would be entitled to recover, * * * and defendant assumes the burden of proving his defense, and claims the right of opening and closing the argument,” defendant was entitled to open and close the argument.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 44-74; Dec. Dig. ©=525.]</p>

C. Buford, Judge. Action by W. O. Samford against the Houston, East & West Texas Bailway Company. Judgment for plaintiff, and defendant appeals. Appellee, a section hand, was injured while in the performance of his duties on a hand car, by reason of the hand car’s colliding with the rear of a passenger train on the main line.

<p>1. Insurance <©=>638 — Fire Insurance — Action — Petition—“Cause oe Action.”</p> <p>The petition alleging insurance by defendant in a certain sum of plaintiff’s building, and its total destruction by fire, whereby, under Vernon’s Sayles’ Ann. .Civ. St. 1914, art. 4874, the policy became a liquidated demand to the full amount, does not, in the absence of an averment of nonpayment, state a cause of action; averment of breach being an essential of a statement of a “cause of action” on a contract.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1607; Dec. Dig. <¿=>638.]</p> <p>On Rehearing.</p> <p>2. Pleading <©=216 — Petition—Demurrer— Supplemental Petition.</p> <p>In determining whether demurrer to petition should be sustained, the supplemental petition cannot be considered; its office, under district court rule 10 (142 S. W. xviii), being to make response to defendant’s pleading, and an amendment being necessary for cure of the defect of the petition.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 535-539; Dec. Dig. <@=>216.]</p> <p>3. Appeal and Error <@=>1170 — Harmless Error — Ruling on Demurrer.</p> <p>Under Court of Civil Appeals rule 62a (149 S. W. x), providing' that judgment shall not be reversed for error of law in the trial, unless the appellate court be of opinion that it amounted to a denial of rights reasonably calculated to cause, and probably causing, an improper judgment, erroneous overruling of demurrer to the petition, because of it not alleging nonpayment of the amount of fire insurance sued for, is harmless; the supplemental petition, averring nonpayment, properly pleaded to matters in the answer, forming a proper basis for rendition of judgment for plaintiff.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. <@=1170.]</p> <p>4. Insurance @=>282 — Eire Policy — Condition to Insurance — Title Deed.</p> <p>The provision of a fire policy that it shall be void if the insured building be on ground not owned by insured in fee simple and the title be not evidenced by deed is a valid condition precedent to insurance attaching, not satisfied merely by insured being the owner in fee simple.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 601-636; Dec. Dig. @=>282.]</p>

<p>Error from Bowie County Court; Lee Tid-well, Judge.</p> <p>Action by Matthew1 Johns .against the Grand Court of Texas Independent Order of Calanthe. Judgment for plaintiff, and defendant brings érror.</p>

<p>1. Counties <@=»165 — Incurring “Debt”— Provision for Payment.</p> <p>Within Const, art. 11, § 7, inhibiting a county from incurring a debt unless provision is made at the same time for levying and collecting a tax for its payment, .a warrant for a courthouse site is a “debt,” being a pecuniary obligation imposed by contract, to be satisfied out of its revenues for the second year thereafter.</p> <p>[Ed. Note. — Eor other cases, see Counties, Cent. Dig. §§ 246-248; Dec. Dig. <©=ol65.</p> <p>For other definitions, see Words and Phrases, First and' Second Series, Debt.]</p> <p>2. Counties <@=»222 — Action Against^-Petttion — Provision fob Payment- of Debt.</p> <p>The petition against a county for a debt is bad if not showing that provision for its payment was made when it was created, as required by Const, art. 11, § 7.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 355-359; Dec. Dig. <®cm222.]</p> <p>3. Counties @u^165 — Incurring Debt — “Provision” fob Payment.</p> <p>The drawing of a warrant against the county’s general fund for the second year thereafter is not “provision” within Const, art. 11, § 7, inhibiting a county incurring debt unless provision is made at the same time for levying and collecting a tax for its payment.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 246-248; Dee. Dig. <®=^165.</p> <p>For other definitions, see Words .and Phrases, First and Second Series, Provision.]</p> <p>4. Counties <®=167 — Purchase of Dots — Invalid Warrant — Rights of Assignee.</p> <p>Assignment of a county warrant, given for the purchase price of lots for a courthouse, and invalid because provision for its payment was not made as required by Const, art. 11, § 7, gives the assignee no right of the assignor, vendor of the lots, to have title to the lots divested out of the county.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 249; Dec. Dig. <®=>167.]</p>