Volume 182 — South Western Reporter

<p>Appeal from Lubbock County Court; E. B. Haynes, Judge.</p> <p>Action by J. O. Jones against the Panhandle & Santa Fé Bailway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Vendor and Purchaser <&wkey;54 — Passing of Title — Retention of Lien.</p> <p>Where land is conveyed by deed retaining an express lien to secure part of the purchase money, legal title to the land remains in the vendor until the purchase money is paid.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 85; Dec. Dig. <&wkey;>54.]</p> <p>2. Homestead <&wkey;96 — Purchaser’s Right.</p> <p>Such a vendee cannot hold the land as a homestead against such vendor holding vendor’s hen notes for part of the purchase money.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. <@=»96J</p> <p>3. Exemptions @=334 — Proceeds of Insurance.</p> <p>Money paid upon an insurance policy upon a house not the insured’s homestead is not exempt from garnishment for the payment of the insured’s debts.</p> <p>. [Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 36, 37, 74; Dec. Dig. <@=»34.]</p> <p>4. Homestead <&wkey;88 — Equitable Estates or Titles.</p> <p>An equitable title founded upon a conveyance in which an express lien is retained to secure unpaid purchase money may be the subject of a homestead, and exempt from the payment of ordinary debts.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 126; Dee. Dig. &wkey;>88.]</p> <p>5. Homestead &wkey;>79 — Extent of Exemption-Insurance Monet.</p> <p>Where land was conveyed with express reservation of a vendor’s lien to secure the unpaid portion of the price, there being no agreement that the purchaser, who occupied the place as a homestead when he insured it, should do so for the benefit of the vendor, upon burning of the house the purchaser was entitled to the insurance money, and not the vendor, to satisfy the unpaid balance on his foreclosure judgment, since insurance money on a homestead, in the absence of an agreement that the policy was for the benefit of the vendor holding the superior title and note for unpaid purchase money, is not subject to the payment of the indebtedness.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 111; Dec. Dig. <&wkey;>79.]</p> <p>6. Vendor and Purchaser &wkey;>295 — Vendor’s Lien — Election to Foreclose — Effect.</p> <p>Where the vendor of realty by deed reserving a vendor’s lien foreclosed, he could not thereafter claim that he continued to hold the superior title for the purpose of making out his right to the insurance money payable for burning of the house, since a vendor has only the election to abandon the contract and recover the land, or to aifirm and have judgment for his debt with foreclosure of his lien.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 831; Dec. Dig. <&wkey;>295.]</p> <p>7. -Appeal and Error <&wkey;877 — Party Entitled to Allege Error.</p> <p>The vendor of realty, who had no interest in the insurance money payable the purchaser for burning of the house, could not complain of the amount of recovery allowed the purchaser against the insurance company in the vendor’s garnishment proceeding against it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. &wkey; 877.]</p> <p>8. Garnishment <&wkey;191 — Costs — Recovery by Garnishee.</p> <p>In a vendor’s garnishment proceeding against the insurer of the realty, where the answer of the garnishee was not denied, and it was discharged from the garnishment upon its answer, although judgment went against it for the purchaser, such garnishee was entitled to recover of the vendor its costs, including a reasonable attorney’s fee, under Rev. St. 1911, art. 307, providing that, where the garnishee is discharged upon his answer, costs, including reasonable compensation to the garnishee, shall be taxed against plaintiff.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 372-379; Dec. Dig. &wkey;191.]</p>

<p>1. Appeal and Error <&wkey;1060 — Trial &wkey;> 120 — ARGUMENT OP COUNSEL — PREJUDICIAL Effect — Duty op Court.</p> <p>Eor plaintiff’s counsel in argument to the jury to say, relative to cross-examination by M., another counsel for plaintiff, of L., seeking an admission that L. had made a statement to M.contrary to his testimony, that there is a prejudice against lawyers going on the stand in their own cases about matters to which witnesses have testified, to dispute them, and that M. would as soon jump out of the window as to have been guilty of putting questions to a witness to deceive any one into believing that the witness had admitted to him what agreed with his theory of the case, was, in effect, an assertion, without evidence to justify it, that the witness had testified to facts directly variant from his former statements, constituting improper conduct, likely prejudicial, so that the court, on objection, should have arrested the argument and directed the jury to disregard it.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <&wkey;106O; Tidal, Cent. Dig. §§ 285-287; Dec. Dig. &wkey;</p> <p>2. Trial &wkey;>118 — Argument op Counsel.</p> <p>So far as argument of counsel, in a case submitted to the jury on special issues, explains to the jury the legal effect of their answers, it is improper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §| 290-293; Dec. Dig. &wkey;118.]</p>

Suit by Mrs. S. A. Feegles and others against C. O. Slaughter and others for the construction of a will and the recovery of property. From a judgment for defendants, plaintiffs appeal.

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action by P. B. Wyatt, administrator, against W. J. Chambers, who died pending action, which was then defended by his ad-ministratrix. From judgment for defendant, plaintiff appeals.</p>

<p>1. Pleading &wkey;>290 — Admission .by Failure to Deny undee Oath in Reply.</p> <p>In an action against a railroad for injuries to a passenger on its car, where the defendant, pleaded that plaintiff was guilty of contributory negligence in standing in the aisle, which plea was not denied under oath, the action of the court in refusing to instruct a verdict for defendant was proper; it being unnecessary for a plaintiff to traverse allegations in the answer which are the mere converse of those in the petition.</p> <p>[Ed. Note. — For other cases, sée Pleading, Cent-Dig. §§ 859-863, 886y2 ; Dec.Dig. &wkey;290.]</p> <p>2. New Trial @=^96 — Grounds—Absence oi? Witnesses.</p> <p>Where motion for new trial was made by defendant for its inability to obtain the testimony of witnesses summoned by plaintiff, but who were not called by him, and who, when informed by plaintiff, at the close of his evidence at about 10 o’clock in the morning, without knowledge that their further attendance was desired by defendant, that they were excused, left the courtroom, with defendant’s knowledge, which failed to ask process for their return, though the witnesses, were within one hour’s drive by automobile, while defendant did not conclude its evidence until 3 o’clock in the afternoon, and asked no continuance, postponement, or delay of the trial in order to obtain the testimony, the motion was properly denied.</p> <p>[Ed. Note. — Por other cases, see New Trial, Cent. Dig. §§ 172, 190-194; Dec. Dig. ©=390.]</p> <p>3. Tbial ©=> 133 — Argument ox Counsel.</p> <p>In a personal injury case against a railroad, where the improper, but not inflammatory, language of plaintiff’s counsel in his address to the jury was immediately withdrawn by him upon objection while the court, on his request, instructed the jury to disregard it, in the absence of anything in the size of the verdict or the record to indicate that the remarks had any effect on the jury to influence them to find for plaintiff, or to award larger damages, there was no error.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. § 316; Dec. Dig. ©¿>133.]</p>

<p>Appeal and Error <&wkey;1002 — Revew — Verdict on Conflicting- Evidence.</p> <p>A verdict on conflicting testimony, justifying a verdict either way, according to which witnesses are believed, will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dee. Dig. 1002.)</p>

<p>1. Limitation or Actions <S=>185( — Pleading — Defenses—Denial.</p> <p>Under Bev. St. 1911, art. 1829, providing that if any special defense is pleaded, the plaintiff shall be required to answer, and that any fact so pleaded which is not denied shall be taken as confessed, plaintiff, in an action against a carrier for damages to household goods, whose petition fixed the date of the accrual of her cause of action within two years next preceding the filing of her suit, was not required to. repeat such allegation by a special denial of defendant’s plea of the two-year statute of limitations.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 694; Dec. Dig. 185.]</p> <p>2. Careiers @=136 — Delay in Delivery — Question for Jury.</p> <p>Evidence, in an action for damages to household goods and wearing apparel, held to make defendant’s negligence in not delivering the goods to plaintiff after their arrival at destination a question for the jury.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 478, 596-598; Dec. Dig. @=>136.]</p>

<p>Appeal from District Court, Matagorda County; Sami. J. Styles, Judge.</p> <p>Action by W. L. McCamley against G. M. Magill and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Brazoria County ; Samuel J. Styles, Judge.</p> <p>Suit by Ed. S. I-Iughes against the Houston & Brazos Valley Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Jefferson County; W. H. Davidson, Judge.</p> <p>Action by W. M. Carroll against H. L. Williams, County Treasurer of Jefferson County, and others. From a judgment for plaintiff, defendants, appeal. Judgment reformed and</p>

. Appeal from District Court, Henderson County; F. L. Hawkins, Judge. Action by the City of Athens against the Athens Telephone Company. From a permanent injunction against collecting a telephone rental of more than $1.50 per month from the citizens of Athens, defendant appeals.

Briggs, Judge. Action by Ernest Wegner, Sr., against the Houston Chronicle Publishing Company, continued after plaintiff’s death by his widow and children. Judgment for plaintiffs, and defendant appeals.

<p>Action by S. A. Fuhrman against F. B. Gilbert. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.</p> <p>Action by E. J. Conway against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p> <p>This was a suit by appellee against appellant for damages for personal injury suffered by him, in which judgment was rendered in his favor for $20,000. It was commenced in the district court of Harrison county, from which, on application of appellant, it was removed to the United States District Court for the Eastern District of Texas, which, on motion of appellee, remanded it to the court in which it was commenced.</p> <p>It appears from the record that during the night of April 3, 1914, appellee, in the performance of his duty as a switchman in appellant’s yards at Bonham, stepped upon the footboard attached to the tender ofl the engine then being used in switching cars. The footboard should have been level, but, instead, as the testimony conclusively showed, it was “very badly bent towards the ground,” which “gave it a slanting position.” Because of the position of the board, appel-lee’s foot slipped from and went under it when he stepped upon it. He testified:</p> <p>“In attempting to get on the footboard my left leg was caught between the footboard and the rail. My left hand was a hold of the grabiron on the flat car. My right hand was going everywhere trying to catch something. My left knee and leg was inside the rail, and my foot dragging on the ties. The footboard caught my knee, and was pressing my knee against the rail. I was dragged in this position, as near as I could estimate, about 70 feet. I realized at the time the danger-1 was in. It was hold on or get killed. I certainly realized the situation. I held on the best I could to the flat car with my left hand. I knew that I was in danger. but couldn’t tell what would be the result. My strength held out, and I didn’t get hung up on anything to tear my hold loose. I was a very strong man and had a very strong arm, and that was the only thing I had to rely on. It inflicted severe injuries on my leg. It sprained the left knee and ankle, and also my side, and caused a sprain of the shoulder. I could not raise the shoulder for several days. On the outside of the left knee the skin was scratched off and showed the white bone in one place, a cut across the cap here and one here. The right shin had a four-inch skin wound across it, and the big toe there was bruised on the right foot. The wheel caught the shoe here and the shoe bursted. The ligaments and muscles were twisted and torn. It twisted my leg like a rope. When my right foot came loose it threw me back down and left me hanging with one hand. My left leg was fastened between the rail and foot board, and was twisted.”</p> <p>The judgment involves findings, and we find that appellant, as charged against it, was guilty of negligence, which was a proximate cause of the injury to appellee, in that it permitted the footboard to become and be out of repair as stated above; that the risk appellee incurred in stepping upon the foot-board as he did was not one he assumed; and that he was damaged in the sum of $20,-000.</p>

<p>1. Boundaries <@=»20 — Lot on Platted Street — Vacation—Title in Street.</p> <p>Where one of plaintiff heirs sold to defendant railroad company her lot abutting on a platted, but unopened, street, the conveyance being after an ordinance was passed by the city giving defendant the right to construct buildings and tracks over and across all streets crossing its yards, within which the lot in question was embraced, defendant acquired title to the middle of such street in front of the lot, since neither the existence of the street nor the rights of abutting owners thereon were' affected by the city’s abandonment of any rights it may have had therein.</p> <p>[Ed. Note. — Eor other cases, see Boundaries, Cent. Dig. §§ 123-130, 132; Dec. Dig. <©=o20.]</p> <p>2. Dedication <®=>65 — Streets — Abandonment-Reversion.</p> <p>Where, in a partition of land among heirs, the tract was platted, reserving a strip for a street upon which the allotments were made to abut, but the street was never opened, and the city afterwards abandoned its rights therein by an ordinance granting a railroad company the right to erect buildings and tracks thereon, the absolute fee did not thereby revert in common to the heirs, since their vested abutting rights as distributees were not dependent upon whether the public accepted the dedication of the street, or abandoned its rights therein.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. § 103; Dec. Dig. <S¿»65.]</p> <p>3. Eminent Domain <@^317 — Abutting Lot —Condemnation—Title in Street.</p> <p>The condemnation by the railroad of other of such lots also passed title to the middle of such street, though the property was described in the proceedings simply by lot and block number, since the description which in a deed would include the vendor’s rights in a street is sufficient to pass title thereto in condemnation proceedings.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 834-840; Dec. Dig. <§=> 317.]</p>

<p>Error from District Court, Harris County; Norman G. Kittrell, Special Judge.</p> <p>Action by O. A. Alexander against Mrs. V. D. Hardee. From a judgment for plaintiff, defendant brings error.</p>

<p>1. Appeal and Error <§=742 — Assignment op Ekeob — Statement op Objection.</p> <p>An assignment of error in the admission of evidence cannot be considered, where the statement following it does not show what objection was made to the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742.]</p> <p>2. Libel and Slandeb <§=103 — Action—Evidence.</p> <p>In an action for libelous publication, including what tools place in plaintiffs room, the officers arrested him on suspicion that he might be guilty of a murder committed in another state, undertaking to describe with great particularity what happened at that time, it was permissible for plaintiff to show the untruth of the publication by testimony as to the actual occurrences when he was arrested.</p> <p>[Ed. Note. — For other cases, • see Libel and Slander, Cent. Dig. § 281; Dec. Dig. <§=103.]</p> <p>3. Appeal and Ekeob <§=>742 — Assignments op Eebok — Suppiciency of Statement.</p> <p>In an action for libel, an assignment of error in permitting plaintiff and another witness to testify that plaintiff had not been taken before a magistrate after his arrest was not supported by a statement that plaintiff, on direct examination as to whether the officer read any warrant to him when he was arrested, answered that they did not have any warrant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <§=742.]</p> <p>4. Libel and Slandeb <§=>7 — Actionable Words — Charge op Cbime.</p> <p>A publication in a daily newspaper of large circulation that plaintiff, who had come from Atlanta, Ga._, had acted so peculiarly as to attract the attention of detectives, and had been arrested and imprisoned without a warrant upon a mere unfounded suspicion that he was guilty of the murder of a girl who had been killed in Atlanta, and for whose murderer a reward had been offered, and of the finding of a girl’s bloodstained clothing hanging from the window sill of the room occupied by plaintiff, with a personal description of plaintiff and a publication of his picture and that of the murdered girl in the same issue, was libelous per se.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dec. Dig. <§=7.]</p> <p>5. Libel and Slandeb <§=55 — Actionable Libel — Damages.</p> <p>The publication and circulation of matter libelous per se as to the plaintiff entitled him to actual damages, even though a part of the publication was privileged.</p> <p>[Ed. Note. — For other cases, _see Libel and Slander, Cent. Dig. § 333; Dec. Dig. <§=55J</p> <p>6. Libel and Slandeb <§=5 — Malice — Damages.</p> <p>Plaintiff, libeled by the publication of an article libelous per se, was entitled to recover actual damages, and was not required to prove malice except as a basis for the recovery of exemplary damages.</p> <p>[Ed. Note. — For other casgs, see Libel and Siander, Cent. Dig. § 278; Dec. Dig. <§=5.]</p> <p>7. Trial <§=194^-Instructions — Weight op Evidence.</p> <p>In an action for libel, defendant’s requested charge that, the plaintiff having failed to show by a preponderance of the evidence that defendant in publishing the article was actuated by express malice, defendant was not liable, was properly refused, a,s being on the weight of the evidence, in that it assumed that plaintiff had failed to prove malice by a preponderance of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, .446-454, 456-466; Dee. Dig. <§=194.]</p> <p>8. Libel and Slandeb <§=4 — “Malice.”</p> <p>“Malice,” in an action for libel, means an act done with a bad or wicked intent and the specific intention to injure, or an act done with such wanton or gross indifference as to indicate an utter disregard of consequences.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 111; Dec. Dig. <§=4.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Malice.]</p> <p>9. Trial <§=260 — Instruction — Requests —Damages.</p> <p>In an action for libel, defendant’s requested charge on the issue of exemplary damages was properly refused, where the court’s main charge thereon was sufficiently full and fair to protect the defendant in all its rights.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <§=260.]</p> <p>10. Libel and Slander <§=42 — Privilege— Judicial ob Administrative Proceedings.</p> <p>The publication of plaintiff’s unwarranted arrest and imprisonment by police officers on a mere suspicion of his connection with a murder then being investigated in another state was not, in the absence of malice, privileged as a publication of a proceeding in the administration of law, where the entries on the police blotter showing the time of arrest, plaintiff’s name, occupation, and residence, that he was being held and that he was released, was not shown to be required by any ordinance or shown to have been made in a proceeding in the administration of the law; and, even if that were so, nothing contained in the entries justified the publication that plaintiff had been arrested and imprisoned for the murder by a certain named person.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 127-129; Dec. Dig. <§= 42.]</p> <p>11. Libel and Slander <§=5 — “Malice”— What Constitutes.</p> <p>In an action of libel, it is not necessary that malice be shown by proof of ill will, animosity, or hatred, or by willful or wanton act of gross indifference or an act done with the specific intent to injure the person injured; but it may be inferred from the fact that the publication was made with such utter recklessness as to indicate a disregard of the consequences.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 278; Dec. Dig. <§=5.]</p> <p>12. Libel and Slander <§=112 — Action — ¡Sufficiency op Evidence op Malice.</p> <p>Evidence, in an action for libel in publishing plaintiff’s unwarranted arrest and imprisonment on the mere suspicion of his connection with a murder committed in another state, held sufficient to show actual malice, justifying an award of exemplary damages.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 325-341; Dec. Dig. <§= 112.]</p>

<p>Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.</p> <p>Action by R. H. Yarbrough against the Camden Fire Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Wills @=608 — Construction— Estates Created — Rule in Shelley’s Case.</p> <p>Where the testator devises a life estate in lands to his son and the remainder to his heirs, and his heirs predecease the devisee, the life tenant takes the fee under the rule in Shelley’s Case.</p> <p>LEd. Note. — Eor other eases, see Wills, Cent. Dig. §§ 1372-1378; Dec. Dig. @=608.]</p> <p>2. Wills @=682 — Construction — Estates Created — Trusts.</p> <p>A will devising lands to trustees to control and manage the property and to pay the income for the support of a son and his family, the remainder on his death to his heirs does not create a life estate in the son, but he is only a beneficiary of the trust.</p> <p>[Ed. Note. — Eor other cases, see Wills, Cent. Dig. §§ 1602, 1607-1611; Dee. Dig. @=682.]</p> <p>3. Trusts @=114 — Executed Trusts.</p> <p>In such case, where the will provided that the devise should be used for the benefit of all children lawfully born to the son, the trust was not executed; no time being stated for the ascertainment of the children of the class.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 164; Dec. Dig. @=114.]</p> <p>4. Evidence @=58 — Presumptions — Possibility oe Issue.</p> <p>In ascertaining when children of a class not otherwise determined shall be ascertained, it is presumed, under the common law, that a man or woman is capable of having issue until his death.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 80; Dec. Dig. @=58.]</p>

<p>Appeal from 'District Court, Nacogdoches County; L. D. Guinn, Judge.</p> <p>Action by J. C. Shipp against Leonidas Cartwright and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Appeal and ERiror <&wkey;759 — Assignments oe Error — Requisites and Sueetciency— Motion eor New Trial.</p> <p>Under Rev. St. 1911, art. 1612, requiring that plaintiff in error file with the clerk of the court below all assignments of error distinctly specifying the grounds on which he relies, Court of Civil Appeals rule 29 (142 S. W. xii), requiring that the brief shall separately present each ground of error under the proper assignment, and rule 161a (159 S. W. xi), providing that where a motion for a new trial is filed the assignments contained in such motion shall constitute the assignments of error, assignments of error presented in the brief of plaintiff in error need not be considered, where they are not portions of or copied from the motion for new trial.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. c&wkey;759.]</p> <p>2. Carriers <&wkey;34S — Injury to Street Cab Passenger — Instruction on Unavoidable Accident — Evidence.</p> <p>Where, in a street car passenger’s action for injuries from falling from the running board of a car, plaintiff’s testimony that his fall was due to the act of defendant’s conductor in attempting to pass between him and the side of the car was denied by the conductor, and by another witness who testified that the conductor was not near plaintiff, and also by a witness who testified that plaintiff lost his balance and fell while attempting to climb around other persons standing on the running board, an instruction that plaintiff could not recover if his injuries were caused by an unavoidable accident was authorized by the evidence.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1403-1405; Dec. Dig. <&wkey;>348.]</p> <p>3. Appeal and Error <&wkey;1066 — Harmless Eirror — Instructions.</p> <p>Under Court of Civil Appeals rule 62a (149 S. W. x), providing that a judgment shall not be reversed for error not affecting the result, the giving of such instruction, even if it were not authorized by the evidence, would not require a reversal of a judgment for defendant.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <@=»1066.]</p> <p>4. Trial <&wkey;253 — Instructions — Ignoring Issues — Lack oe Evidence.</p> <p>Where, in a street car passenger’s action for injuries from- falling from the running board of a car, the only negligence as to which there was evidence was the act of the conductor in attempting to pass between him and the car, an instruction that plaintiff could not recover, unless he was thrown from the car by such act of the conductor, was not erroneous for failure to take into consideration defendant’s alleged negligence in failing to furnish plaintiff with a seat and permitting the running board to be overcrowded.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. &wkey;253.]</p> <p>5. Carriers <&wkey;296 — Injury to Street Car Passenger — Actionable Negligence — Failure to Furnish Seats.</p> <p>The failure of a street car company to furnish a passenger with a seat in the car is not actionable negligence, where the fact that all the seats are occupied is apparent to the passenger when he takes his position on the running board, from which he thereafter falls.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1200-1203; Dec. Dig. &wkey;296.]</p> <p>6.Trial <&wkey;243 — Conelicting Instructions —Negligence.</p> <p>In a street car passenger’s action for injuries from falling from the running board of a car, an instruction to find for defendant if plaintiff’s injury was caused by unavoidable accident, or if defendant was not guilty of the negligence charged by plaintiff, was not in conflict with an instruction to find for defendant if plaintiff was contributorily negligent in attempting to pass around another passenger on the running board of the car.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Uig. §§ 564, 565; Dec. Dig. <&wkey;>243.]</p>

Action by C. P. Harrison against Chas. Lucas and others. From a judgment for plaintiff on appeal to the county court from a like judgment rendered in a justice’s court, tlie defendant named and another appeal.

<p>Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.</p> <p>Action by W. R. I-Iorn against the County of Matagorda and Matagorda County Road District No. 2. From a judgment against the latter defendant, it appeals.</p>

<p>Appeal from District Court, Jefferson County; Robert G. Street, Judge.</p> <p>Action by J. -E. Broussard and others against E. J. Le Blanc and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Potter County; Hugh L. Umphres, Judge.</p> <p>Action by Flaviano Cosio against the Chicago, Rock Island & Gulf Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Ax>peal from Johnson County Court; B. Jay Jackson, Judge.</p> <p>Baylor Looper was convicted of a misdemeanor, and he appeals.</p>

<p>Appeal from District Court, Tarrant County; W. J. Oxford, Judge.</p> <p>Tom McGee was convicted of assault with intent to murder, and appeals.</p>

<p>1. Homicide <&=o310 — Instructions—Aggravated Assault — Evidence.</p> <p>Where the evidence showed that A. resisted the attack of defendant with his fists, but at no time sought to use any weapon upon defendant, that defendant then tried to get A. to come out of a saloon and renew the difficulty, that A. declined, that defendant left saying that he was going to get his gun and shoot him, that he waylaid A. on Ms way home with others, reminded him that he was going to shoot him, and shot away his hand and put out his eye while he was dodging behind his horse, there was no error in refusing to submit the issue of aggravated assault.</p> <p>[Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. <®^310.]</p> <p>2. Homicide @==>230 — Assault to Murder-Intent — Sueficiency oe Evidence.</p> <p>Evidence held to show that defendant, when he shot and injured another, had a specific intent to kill.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 478; Dec. Dig. @¿>230.]</p> <p>3. I-Iomioide <S^>90 — Nature oe Instrument Used — “Deadly Weapon.”</p> <p>A gun used as a firearm within carrying distance and at such range that it shot off a hand of the prosecuting witness and put out one of his eyes, was a “deadly weapon.”</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 119; Dec. Dig. @=>90.]</p>

<p>Ckiminax. Law &wkey;1090 — Statement oe Pacts — Bills oe Exception — Necessity.</p> <p>Where the an under the law, no questions are reviewable without a statement of facts or a bill of exceptions.</p> <p>[Ed. Note. — For other cases, see' Criminal Law, Cent. Dig. §§ 2653, 27&9, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. &wkey; 1090.]</p>

B. Minor, Judge. Action by the Gulf National Bank against T. H. Bass and others, in which H. H. Shelton and others were garnished. Prom a judgment for garnishees, plaintiff appeals.

<p>Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.</p> <p>E. L. Ozment was convicted of crime, and he appeals.</p>

<p>Appeal from District Court, Shelby County; W. C. Buford, Judge.</p> <p>Henry Armstrong was convicted of violating the local option law, and he appeals.</p>

<p>Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.</p> <p>M. Smith was and</p>

Umphres, Judge. Action by the Chicago, Rock Island & Gulf Railway Company and another against the Liberal Elevator Company and others. Prom a judgment for defendants, plaintiffs appeal.

<p>Appeal from Orange County Court; D. C. Bland, Judge.</p> <p>Action by J. S. Turner against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Gray County Court; Siler Faulkner, Judge.</p> <p>Action by I. D. Hughey against the Southern Kansas Railway Company of Texas and another. From a judgment for plaintiff, defendants appeal.</p>

H. Milam, Judge. Action by Tom Adams against the Kansas City, Mexico & Orient Railway Company of Texas, begun in justice court and appealed to county court, where it was consolidated with another action. Prom a judgment for plaintiff, defendant appeals.

<p>Appeal from Denton County Court; Fred M. Bottorff, Judge.</p> <p>Action by Shell Jackson against E. C. Barton for injunction. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Harrison County; H. T. Byttleton, Judge.</p> <p>Action by D. O. Craver against T. A. Greer and others, in which the National Bank of Dain-gerfield and others intervene. From a decree of sale plaintiff and certain others appealed. Affirmed (178 S. W. 609) and certified to the Supreme Court.</p>

<p>Appeal from Van Zandt County Court; R. M. Lierley, Judge.</p> <p>Action by the Spaulding Manufacturing Company against B. H. Kuykendall. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Victoria County Court; J. P. Pool, Judge.</p> <p>Action by John Koch against F. J. Noster. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Adverse Possession <§=>16 — What Constitutes.</p> <p>Where land lay in a sparsely settled community and was available only for lumbering purposes, defendant’s predecessor, who built a logging railroad across the land, cut timber therefrom and at times maintained feed sheds and pens for its oxen, and small cabins for its workmen, had adverse possession of the land within Rev. St. art. 5674, prescribing a 5-year period of limitation.</p> <p>[Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 82-89; Dec. Dig. <@=>16.</p> <p>Eor other definitions, see Wbrds and Phrases, Eirst and Second Series, Adverse Possession.]</p> <p>2. Adverse Possession <§=>82 — Color of Title — Recordation of Deed.</p> <p>Rev. St. arts. 6786, 6789, 6790, respectively, declare that county clerks shall be recorders, that when any instrument authorized to be recorded shall be deposited, the recorder shall enter it, and that the recorder shall, without delay, record every instrument deposited with him for record. Article 6791 declares that every instrument in writing shall be considered as recorded from the time that it is deposited for record; and article 5674 declares ' that every suit to recover real estate as against any person having peaceable and, adverse possession shall be instituted within 5 years after the cause of action accrues, but that this article shall not apply to one in .possession of land who would deraign title through a forged deed. Held, that a deed, duly deposited with the recorder for record, must be considered as recorded within the 5-year statute.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 468 — 471; Dec. Dig. <§=> 82.]</p> <p>S. Appeal and Error <§=3169 — Assignments of Error — Consideration.</p> <p>An assignment, not presented in trial court, cannot be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1018-1084; Doc. Dig. <§=> 169.]</p> <p>4. Adverse Possession <§=>112 — Evidence-Burden of Proof.</p> <p>One relying on adverse possession has the burden of proving it.</p> <p>[Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 651, 658, 654, 657-</p> <p>659, 661-668, 665, 666; Dec. Dig. <§=>112.]</p> <p>5. Adverse Possession <§=>85 — Presumptions.</p> <p>Adverse possession is to be taken strictly, and every presumption is in favor of a possession in subordination to the rightful owner.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 313, 498-503, 656, 657, 660, 668, 688-690; Dec. Dig. <§=>85.]</p> <p>6. Adverse Possession <§=357 — Action—Evidence — Sufficiency.</p> <p>Where defendant set up adverse possession under the 5-year statute (Rev. St. art. 5674), evidence held insufficient to show that defendant or its predecessor had for any continuous period of 5 years held the land adversely.</p> <p>[Ed. Note. — For other eases, see Adverse Possession, Cent. Dig. §§ 277, 278, 655, 667, 687; Dec. Dig. <§=>57.]</p>

<p>1. PARTNEnSFcXP €~4S-EvIDENeE. Declaration which B. made in a contract of sale of a business, drawn up and signed by him in the absence of W., that they were partners therein, is inadmissible against W.</p> <p>[Ed. Notc.-For other bases, see Partnership, Cent. Dig. §~ 66, 68-73; Dec. Dig. ~48.]</p> <p>2. PAYMENT ~47-APPLIOATION.</p> <p>Where, pending a sale by B. to defendants of a stock of goods, on which plaintiff had a lien as security for a note given by B., it was agreed by B. and plaintiff that the purchase price should be applied first to payment of certain debts, including said note, but not a later debt of B. to plaintiff, it was plaintiff's duty, receiving a payment from such purchase price, to so apply it, whether or not defendants ia maldag the purchase assumed the payment of the note. [Ed. Note.-For other cases, see Payment, Cent. Dig. §~ 127, 129; Dec. Dig. g~i47.]</p> <p>3. Evini~o~ ~271 - OONVERSATIONS WITI{ ANOTJaEX~.</p> <p>~tatements and discussions between plaintiff and his attorney in the absence of defendants are inadmissible on the question of the</p> <p>[Ed. Note.-For other cases, see Evideuce~ Oent. Dig. §~ 1068-1079, 1081-1104; Dee. Dig. ~271.]</p> <p>4. CONTRACTS ~229 CoNsTRUCTIoN - PAYMRNT OF DEBT.</p> <p>Defendants merely agreeing that if p1ainti~ paid off a judgment against a stock of goods which they were buying of B., he should be paid out of such money as might be due B. after other creditors were paid, were not liable for any more than was so due B.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1045-1057, 1059-1066, 1070,1077; Dec. Dig. <@=5229.]</p> <p>5. Feattd (§=>11 — -Presentations—Opinions.</p> <p>A representation as to the amount that would be due another, appearing under the evidence to have been only an opinion, the parties understanding that it was doubtful how much would be due, will not support an action of deceit.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 12, 13; Dec. Dig. <§=11J</p> <p>6. Chattel Mortgages (§=>243 — Release — Signing Bill oe Sale.</p> <p>A mortgage lien on a stock of goods is not released by the mortgagee joining in a bill of sale of the goods, it being agreed with the purchasers that it should not be delivered till the mortgagee was paid.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 508; Dee. Dig. <§=>243.]</p> <p>7. Fraudulent Conveyances ¡§=>182 — Bulk Sale — Liability of Purchaser.</p> <p>Rev. Civ. St. art. 3972, places no personal liability for the debts of the seller on the purchaser of a stock of goods in bulk.</p> <p>_ [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 568-577; Dee. Dig. <§=>1S2.]</p> <p>8. Fraudulent Conveyances (§=o182 — Bulk Sale — Right oe Mortgage.</p> <p>Though the purchaser of a stock of goods in bulk does not assume a mortgage debt thereon, the mortgagee, not having waived his lien, may foreclose.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 568-577; Dee. Dig. (§=>182.]</p> <p>9. Partnership (§=>29 — Buying Business.</p> <p>Persons, though agreeing to purchase a business and conduct it as partners, do not become partners, so that one can bind the others by contracts or representations, till the purchase is made and the business delivered them; the agreement between them being till then merely executory.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 30-33; Dee. Dig. @=>29.]</p>

W. Walling, Special Judge. Action by C. A. Heldenfels against the Trustees of School District No. 7, San Pa-tricio County. Cross-action by defendants against plaintiff, L. W. Franks, and the General Bonding & Casualty Insurance Company. From a judgment that plaintiffs take nothing and for defendants against L. W. Franks, but without recovery against the bonding company, plaintiff and Franks appeal.

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by Ernest P. Behles against Max Blum and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Action by Julius Sievert against the San Antonio Brewing Association. From a judgment for plaintiff, defendant appeals.</p>

Error from District Court, Bexar County; S. G. Tayloe, Judge. Action by T. H. Green against tbe San Antonio, Uvalde & Gulf Railroad Company, in which Duval West was made a party by amendment pendente lite, as receiver for the defendant company. From a judgment for plaintiff, defendant brings error.

<p>1. UsuRY @=»75 — Nature of Usury.</p> <p>Where the original transaction was usurious, that vice will follow a debt based on such usury in whatever form it may assume.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. § 148; Dec. Dig. <&wkey;75.]</p> <p>2. Usury @=337 — Agreements—What Constitute — “Interest.”</p> <p>Where plaintiff invested a sum of money in a land deal under an agreement providing after deduction of the expenses for payment of the principal and twice the amount thereof as profits, in case there were profits, such agreement is not in violation of the usury statutes, the provision for payment of profits not being for the payment of “interest,” defined by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4973, as the compensation allowed by law or fixed by the parties for the use of money, for in case there were no profits plaintiff would be entitled to nothing.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. § 92; Dec. Dig. &wkey;>37.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Interest.]</p> <p>3.Contracts &wkey;>32d — Actions—Defenses.</p> <p>Where defendants wholly repudiated their agreement to invest a portion of the profits to which plaintiff was entitled in another transaction in a second deal, claiming that plaintiff was entitled to nothing, an action by plaintiff to recover the amount to which he was entitled under the first deal cannot be defeated on the ground that it was not then due.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1511, 1585-1588; Dee. Dig. &wkey; 329.]</p>

<p>Appeal from District Court, La Salle County; J. F. Mullally, Judge.</p> <p>Action in trespass to try title by S. R. Walker and another against W. I. Nicholson and another, in which A. T. Galloway and another intervened. From a judgment for defendant O’Callaghan and the interveners for the land, that plaintiffs take nothing on their prayers against the named defendant, and that the vendor’s lien retained by the named defendant against the named plaintiff be canceled, plaintiffs appeal.</p>

<p>1. Master and Servant &wkey;>270 — Actions for Injuries — Issues, Proof, and Variance.</p> <p>Where an employé was directed by his foreman to use a running board in oiling machinery, this constituted a furnishing of the board for such use within an allegation that the board was so furnished; and hence evidence as to such direction was not inadmissible, though there was no specific charge of negligence in giving such direction.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. &wkey;^270.]</p> <p>2. Master and Servant &wkey;>235 — Liability for Injuries — Contributory Negligence —Duty of Inspection.</p> <p>An employs directed by his foreman to use a running board in oiling machinery was not compelled by law to make an inspection to see whether or not the board had been fastened to its supports, but had a right to assume that it was secure.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 710-722; Dec. Dig. <5&wkey; 235.]</p> <p>3. Trial <&wkey;412 — Errors—Waiver).</p> <p>In an employS’s action for injuries, caused by a running board on which he was standing slipping, a witness testified for plaintiff, over objection, that the running board was replaced and fastened after plaintiff fell from it. Defendant introduced a photograph made after the accident showing conditions to be exactly the same as at the time of the accident, with certain minor exceptions, and a witness testified without objection concerning the running board as shown in the photograph. Held, that any error in admitting the testimony that the board was replaced and fastened after the accident was waived.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 182, 974-977; Dec. Dig. &wkey;412.]</p> <p>4. Trial &wkey;>120 — Argument op Counsel — Propriety op Remarks.</p> <p>In an employé’s action for injuries, he testified on cross-examination that he had refused C.’s request that he submit to a physical examination by physicians other than his own physician, and on redirect examination that tha employer never asked Mm to submit to examination by any other doctor, that C. did not purport to represent the employer, that the representatives of the employer made no such request. In his argument plaintiff’s counsel, referring to plaintiff’s refusal to submit to an examination by a physician chosen by C., asked who C. represented, stating that the employer did not claim him and was ashamed of him, and that he did not know whom he represented. One of defendant’s attorneys remarked that C. was attorney for the defendant; whereupon plaintiff’s counsel replied that he was also attorney for somebody else. It was claimed that this was calculated to induce the jury to believe that C. was representing presumably an insurance company. The court refused to restrain plaintiff’s counsel or warn the jury not to consider the remarks, but in his written charge instructed them not to consider those remarks. Held that, in view of plaintiff’s testimony, which was not controverted, the argument was not improper, especially as the jury was instructed not to consider it.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 285-287; Dec. Dig. &wkey;120.]</p> <p>5. Trial <&wkey;125 — Arigument of Counsel-Propriety of Remarks.</p> <p>In an action against a corporation for injuries, plaintiff’s counsel, referring to a request that plaintiff submit to an examination by a physician other than Ms own physician, said that this was a scheme which corporations resorted to, but upon objection by defendant he remarked that he would withdraw the word “corporations” and submit “this corporation.” Held that, even though these remarks were unsupported by proof, they did not constitute reversible error, where no probable harm was shown.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 303-307; Dec. Dig. &wkey;125.]</p> <p>6. Trial <&wkey;125 — Argument of Counsel — Propriety of Remarks.</p> <p>In an employé’s action for injuries, plaintiff’s counsel in his argument stated that defendant should apply to the payment of plaintiff’s doctor bill, which it owed, money it was paying to a stenographer to take down his argument. Held, that the remark that defendant justly owed the bill was not improper, and it was not likely that the mere hiring of the stenographer to report the argument aroused any prejudice against defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 303-307; Dec. Dig. &wkey;12o.]</p>

<p>1. Sheriffs and Constables <&wkey;157 — Unofficial Character of Seizure.</p> <p>AVhere a constable, under direction of his writ of execution, levied upon and sold 39 bales of cotton as the property of a tenant farmer, making due return, and thereafter he took into his actual possession four bales of the cotton, which had been sold, as specified in his return, such seizure was not an official act and the sureties on his bond as constable, who had bound themselves only for the faithful performance of his official acts, were not liable therefor.</p> <p>[Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 354-371; Dec. Dig. t&wkey;>157.]</p> <p>2. Execution <&wkey;461 — Unauthorized Character — Levy after Sale .by Debtor.</p> <p>For an unauthorized levy of execution against a tenant farmer on cotton which the latter had sold to the landlord, the landlord was entitled to recover the value of all cotton appropriated by virtue of the execution and levy, whenever and by whomsoever the appropriation was made.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 13S7,1388; Dec. Dig. &wkey;461.]</p> <p>3. SHERIFFS A1ÍD CONSTABLES &wkey;157 — UNAUTHORIZED Levy — Liability on Bond.</p> <p>Under Rev. St. 1911, art. 5475, giving a landlord a preference lien on his tenant’s crop to secure his advances to enable the tenant to make such crop, where execution against a tenant farmer was levied on 39 bales of cotton, to enable him to make which the landlord had made advances, there being $200 or $300 yet due him at the time of the levy, such levy and the sale thereunder by the constable was unauthorized as against the landlord, and a later actual seizure of four bales of the cotton by the buyer .at execution sale or by his. agent, whether the ■constable who made the levy or another, was unlawful, and amounted to a conversion for which the landlord could recover; the legal wrong relating back to the levy and rendering the constable and his sureties liable.</p> <p>[Ed. Note. — For other cases, see Sheriffs and ■Constables, Cent. Dig. §§ 354-371; Dec. Dig. ■&wkey;157.]</p> <p>4. Execution <&wkey;191 — Levy on Property Not Wholly the Debtor’s — Statute.</p> <p>By direct provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3740, levying on and ■sale under execution of property in which the debtor has merely an interest, without right to ■exclusive possession, is made by giving notice to the person entitled to the possession, and a levy made by taking actual possession cannot stand as legal on the ground that the debtor had an interest in the property, though not exclusive.</p> <p>[Ed. Note. — For other cases, see Execution, •Cent. Dig. § 500; Dec. Dig. &wkey;3l91.]</p> <p>.5. Execution <&wkey;268 — Levy on Pledged Crop — Statute.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3744, providing that chattels pledged, assigned, or mortgaged as security may be levied upon or sold on execution against the pledgor, ■etc., and that the purchaser shall be entitled to the possession, when it is held by the pledgee, on complying with the condition of the pledge, where a tenant farmer pledged his half interest in a cotton crop to the landlord to secure advances, a judgment creditor of the tenant, who levied execution upon the cotton in the tenant’s hands, buying thereunder, was not entitled to its possession without a compliance with the •conditions of the pledge, since the landlord was at least in the position of a mortgagee in possession under a pledge on the tenant’s part that the proceeds of his interest in the cotton should ie applied to payment of his debt to the land-ord.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 762-767; Dee. Dig. &wkey;268.]</p> <p>6. Assignments eor Benefit of Creditors &wkey;>52 — Character of Transaction — Statute.</p> <p>Where a tenant orally agreed with his landlord that the latter should pay for completing and sell the tenant’s cotton crop and apply the proceeds to reduction of the tenant’s debt to the landlord for advances to make it, accounting to the tenant for any excess, the transaction was not within Rev. St. 1911, art. 91, requiring assignments by insolvent debtors for the benefit of creditors to be in writing.</p> <p>[Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. § 212; Dec. Dig. &wkey;52.]</p>

<p>Appeal from Erath County Court; A. P. Young, Judge.</p> <p>Suit by the Dublin Fruit Company and others against R. P. Neely. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.</p> <p>Action by E. Weinstein against the Acme Laundry. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Yal Verde County; W. C. Douglas, Judge.</p> <p>Action by C. L. Watts against the Galveston, Harrisburg & San Antonio Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error <@=^1058— Harmless Error — Exclusion op Evidence.</p> <p>The exclusion of an expert witness’ testimony in a personal injury case, was harmless, where not only was the same witness permitted later to swear to the same facts, but another expert medical witness testified to practically the same facts.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dee. Dig. &wkey;1058.]</p> <p>2. Appeal and Error &wkey;>730 — Assignment op Error— Sufficiency — Instructions.</p> <p>An assignment of error, complaining that an instruction was “uncertain, confusing, and misleading, and was calculated to mislead the jury and was prejudicial to plaintiff,” was too general and uncertain to be considered by the appellate court.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. <&wkey; 730J</p> <p>3. Steam &wkey;>6 — Explosion of Locomotive-Evidence.</p> <p>In an action for injuries to plaintiff from being thrown to the floor of her house when a locomotive in defendant’s roundhouse exploded and hurled a great mass of débris against the house, evidence that the explosion was caused by excessive steam pressure did not demand a verdict for plaintiff, in the absence of proof that such excessive pressure was chargeable to defendant’s negligence.</p> <p>[Ed. Note. — Por other cases, see Steam, Cent. Dig. §§ 4r-ll; Dec. Dig. <§=»6.]</p> <p>4. Steam &wkey;>6 — Explosion of Locomotive— Cause — Excessive Steam Pressure — Sufficiency of Evidence.</p> <p>Evidence, in an action for injuries to plaintiff from being thrown to the floor of her home in consequence of the explosion of a locomotive in defendant’s roundhouse, held not to require a finding that the explosion was due to excessive steam pressure.</p> <p>[Ed. Note. — For other cases, see Steam, Cent. Dig. §§ 4r-ll; Dee. Dig. &wkey;>6.]</p> <p>6. Steam &wkey;?6 — Explosion of Locomotive— Proof.</p> <p>Where plaintiff alleged that the explosion was caused by excessive steam pressure created by defendant’s negligence, the burden was on her to prove such allegation by facts rather than by mere speculation.</p> <p>[Ed. Note. — Por other cases, see Steam, Cent. Dig. §§ 4-11; Dec. Dig. <&wkey;6.]</p> <p>6. Steam <&wkey;6 — Explosion of Locomotive-Pleading and Proof.</p> <p>Where the petition alleged that the explosion was caused by excessive steam pressure, and it was not shown that nothing but steam pressure could have caused the explosion, plaintiff could not recover, except on proof that the explosion was caused as alleged.</p> <p>[Ed. Note. — Por other'cases, see Steam, Cent. Dig. §§ 4-11; Dec. Dig. &wkey;6J</p> <p>7. Steam <&wkey;6 — Explosion of Locomotive-Cause — Presumption.</p> <p>Mere proof of the occurrence of such explosion could not authorize the presumption that the explosion occurred on account of excessive steam pressure.</p> <p>[Ed. Note. — For other cases, see Steam, Cent. Dig. §§ 4r-ll; Dec. Dig. <&wkey;6.]</p>

<p>1. Steam &wkey;>6 — Boiler Explosion — Presumption op Negligence.</p> <p>Where, in an action for injuries to plaintiff, while walking along the street, from the explosion of a locomotive boiler in a roundhouse, it appeared that the locomotive was under the management of defendant and that such accidents do not happen in the ordinary course of things if those having the management use proper care, and no explanation of the accident was given by defendant, the presumption was that the explosion was due to defendant’s negligence, though there was no direct proof thereof.</p> <p>[Ed. Note. — For other cases, see Steam, Cent. Dig. §§ 4-11; Dec. Dig. <&wkey;6.]</p> <p>2. Steam &wkey;>6 — Boiler Explosion^Plead-ING AND PROOF.</p> <p>Where the petition alleged that the explosion was due to the negligence of defendant’s employés, but did not specify any particular acts of negligence, it being stated that the particular acts were unknown to plaintiff and peculiarly within defendant’s knowledge, proof of general negligence was sufficient, and it was not essential that plaintiff prove any particular negligent acts.</p> <p>(Ed. Note. — For other eases, see Steam, Cent. Dig. §§ 4-11; Dec. Dig. &wkey;6.J</p>

<p>Appeal from District Court, Potter County; Hugh L. Umphres, Judge.</p> <p>Action by Carrie Sewell and others against H. P. Canode. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Bexar County ; R. B. Minor, Judge.</p> <p>Action by James Ross Webb against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Knox County Court; E. R. Howell, Judge.</p> <p>Action by J. T. Dunivan against the West Texas Supply Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. ExecutioN &wkey;>172 — Restraining Sale on Execution — Necessary Parties.</p> <p>In a suit to restrain a constable from selling property under execution to satisfy a judgment, the judgment creditor was a necessary party defendant, as the constable was but a ministerial officer acting for the owner of the judgment, who was the only party interested in its collection.</p> <p>[Ed. Note. — Eor other cases, see Execution, Cent. Dig. JJ 519-539; Dec. Dig. &wkey;172J</p> <p>2. Injunction &wkey;>7 — Restraining Execution Sale — Right to Maintain.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4643, authorizing the issuance of an injunction where it shall appear that the party applying for the writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant, a party whose property is levied on under execution against another party is entitled to sue for an injunction to restrain the sale thereof, and is not limited to her statutory remedy of trial of rights of property.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 6, 34; Dec. Dig. &wkey;7.]</p>

<p>1. Master and Servant &wkey;>286 — Action tor Injury — Sufficiency of Evidence.</p> <p>On evidence, in a railroad employe’s action for injuries when the sides of a ditch he was working in caved in on the grounds of defendant’s negligence in having it dug so deep and narrow without propping the sides, that defendant knew it was dug through filled land hut failed to warn and instruct plaintiff, who did not know it, that defendant knew the work was dangerous but did not warn plaintiff of the danger, and that defendant was negligent in not inspecting the ditch to discover the probability of a cave-in, held, that there was no error in overruling defendant’s motion to instruct a verdict.</p> <p>[Ed. Note. — Eor 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>2. Master and Servant <&wkey;278 — Action for Injury — Sufficiency of Evidence — Knowledge of Danger.</p> <p>Evidence, in such action, held to justify a finding that the dangers incident to the work in which plaintiff was engaged were known to defendant and its foreman and were not known to plaintiff.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. &wkey;278.]</p> <p>3. Master and Servant <&wkey;101, 102 — Master’s Duty — Safe Place to Work.</p> <p>A master is bound to exercise ordinary care to furnish a safe place for his servants to work.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. &wkey;101, 102.]</p> <p>4. Master and Servant &wkey;>205 — Assumption of Risk — Reliance on Care of Master-Railroads.</p> <p>A servant is not required, to inspect the place where his master has put him to work, but has the right to assume that the place furnished by the master is safe.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 547-549; Dec. Dig. i&wkey; 205.]</p> <p>5. Trial <&wkey;260 — Instructions — Requests Covered.</p> <p>In a railroad employé’s action for injury from a cavo-in of the sides of a ditch in which he was working, the refusal of an instruction, that if the dangers and risks incident to the work were obvious to a person of ordinary intelligence and prudence situated as plaintiff was at the time of his injury he could not recover, was not error, where the court charged that plaintiff while in defendant’s employ assumed the risks ordinarily incident to the services which he undertook and such risks as he knew or by the exercise of ordinary care- should have known of, and that if plaintiff knew of the dangers of his work, or should have known of them, he could not recover.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]</p> <p>6. Trial ¡&wkey;194^-lNSTRUCTiONS — Weight of Evidence.</p> <p>A requested instruction which was on the weight of the evidence was properly refused.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446^154, 456-466; Dec. Dig. <&wkey;194.]</p> <p>7. Trial <&wkey;260 — Requested Instructions— Given Instructions.</p> <p>The refusal of a requested instruction was not error, where the law involved therein was sufficiently given in the court’s main charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]</p> <p>8. Damages <&wkey;208 — Instructions—Mental Anguish and Physical Pain — Evidence.</p> <p>Evidence, in a railroad servant’s action for permanent injury to his collar bone and abdomen, held sufficient to justify a submission of the question of his future mental anguish and physical pain.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, 533, 534; Dec; Dig. &wkey;208.]</p> <p>9. Damages <&wkey;50 — Elements—Mental Suffering.</p> <p>Mental suffering will be implied from illness or injuries accompanied by physical pain, and may arise from a sense of discomfort or inconvenience.</p> <p>[Ed. Note. — Eor other eases, see Damages, Cent. Dig. §§ 100, 255, 257-259; Dec. Dig. &wkey; 50.]</p> <p>10. Witnesses <&wkey;344 — Impeachment—Civil Action.</p> <p>A witness in a civil action cannot be impeached by requiring him to testify to discreditable acts on his part having no material bearing on the issues involved in the case.</p> <p>[Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. &wkey;>344.]</p> <p>11. Witnesses <&wkey;344 — Party to Civil Suit as Witness — Impeachment.</p> <p>In a railroad employé’s action for personal injury, where plaintiff, on cross-examination, testified that he had left another state looking for work and not because he had been indicted or had jumped bond, the exclusion of the testimony of a private detective, who would have stated that plaintiff told him he left the other state in the nighttime after he had gotten away from two officers, one of whom was the sheriff, and that a whisky charge was then pending against him, offered in support of defendant’s claim that plaintiff was not injured at all, and upon whether he was able to labor, and whether he was the kind of man who would seek work, and whether since his injury he had sought work, together with an instruction not to consider any of the testimony under those issues, was proper.</p> <p>[Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. &wkey;344.]</p>

<p>Appeal from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Action by R. Reinhart against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Corporations <&wkey;99 — Stock Subscription —‘ ‘Issue’’- — Statutes.</p> <p>Stock was subscribed for, and at the same time two notes given to the promoter for the corporation, one for part of the subscription price payable to the promoter and realized upon by him, and the other for the balance payable to the corporation and attached to which was an agreement that the stock subscribed for be held as collateral security for the note. At the same time it was agreed between the promoter and the subscriber that the stock and certificate were to be held until the notes should be paid, which was accordingly done, but in the meantime the stock was voted in the subscriber’s name under proxy contained in the subscription contract, dividends declared upon it and credited upon the note, and the subscriber notified by the corporation from time to time of its condition, meetings, etc. Held, in an action upon the note, that it was valid and given in a valid transaction, and that the stock was not delivered and did not “issue” within the meaning of Const, art. 12, § 6, and Vernon’s Sayles’ Ann. Giv. St. 1914, art. 1146, prohibiting corporations from issuing stock except for money paid, labor done, or property actually received, because the transaction constituted but a subscription to stock with a future promise to pay, which is not prohibited by the constitutional and statutory provisions stated.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 444-446; Dec. Dig. &wkey;>99.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Issue.]</p> <p>2. Corporations <&wkey;123 — Pledge op Stock.</p> <p>Such a transaction vests the subscriber with but a qualified right to the stock, not capable of being pledged.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 481, 491, 507-512, 537, 539-546, 569, 618; Dec. Dig. &wkey;123.]</p> <p>3. Chattel Mortgages <&wkey;17 — Corporate Stock.</p> <p>Such a transaction vests the subscriber with but a qualified right to the stock, not capable of being mortgaged.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 55-58; Dec. Dig. <&wkey;> 17.]</p> <p>4. Corporations <&wkey;77 — Stock Subscription —Construction.</p> <p>A stock subscription agreement, a note, and an agreement attached thereto to hypothecate the stock subscribed, all simultaneously executed and delivered, constitute but a single subscription contract.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 210-212, 219-243, 255; Dec. Dig. &wkey;77.]</p> <p>5. Corporations <&wkey;94 — Stock — “Certiei-oate oe Stock.”</p> <p>A “certificate of stock” is not the stock itself, but an acknowledgment of the interest of the shareholder in the corporate property, and operates to transfer nothing to the shareholder, but merely affords him evidence of his rights.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 435; Dec. Dig. <&wkey;>94.</p> <p>For other definitions; see Wbrds and Phrases, First and Second Series, Certificate of Stock.]</p> <p>6. Corporations <&wkey;99 — Stock Subscriptions — Statutes—Construoion.</p> <p>The purpose of Const, art. 12, § 6, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1146, prohibiting corporations from issuing stock except for money paid, labor done, or property actually received, is to insure for the protection of the purchasing public an equivalent in corporate property for such stocks or bonds of the corporation as are emitted or circulated, and thus made a commodity of purchase.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 444-446; Dec. Dig.' &wkey;*99.]</p> <p>7. Appeal and Error <&wkey;1011 — Inferences From Facts.</p> <p>Mere conclusions or inferences from facts, ■which are not findings of fact upon conflicting evidence as contemplated by statute, will not be approved.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. &wkey;1011J</p> <p>On Motion for Rehearing.</p> <p>8. Appeal and Error <&wkey;1095 — Oversight oe Undisputed Facts — Prejudicial Error.</p> <p>An oversight of undisputed facts in reviewing the evidence does not constitute prejudicial error, as such facts may be considered by the Supreme Court with or without a finding by the Court of Civil Appeals.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4268, 4329, 4330; Dec. Dig. <&wkey;>1095.]</p>

<p>Appeal from District Court, Wichita County; Edgar Scurry, Judge.</p> <p>Action by T. B. Dinwiddie against the J. M. Guffey Petroleum Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Master and Servant <©=5278 — Injuries to Servant — Liability oe Master — Evidence —SUEEICIENCY. . , .</p> <p>. , . Evidence held insufficient to show liability of a railway company for injuries to a cax inspector received when inspecting a locomotive on a turntable, when the turntable was moved without warning, in spite of the custom to give warning when the turntable operator could see that any ono was about the engine, where the evidence also showed that the injured servant could not have been seen had the operator looked.</p> <p>[Ed. Note. — For other cases, seo Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. <®^27S.]</p> <p>2. Master and Servant <@=>293 — Injuries to Servant — Liability oe Master — Actions— Instructions.</p> <p>Where a car inspector was injured while inspecting a locomotive on a turntable which was moved without warning in spite of custom to give warning if any one could be seen about the engine, it was error to refuse to instruct that the employé could not recover if, had the turntable operator looked, ho could not have seen the employé.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. <@=>293.]</p>

B. Thomas, Judge. Action by Cowboy State Bank & Trust Company against A. E. Bogart and wife, in which the National Stock Yards Bank of Ft. Worth and the Ft. Worth National Bank intervened, seeking judgments against the defendants Bogart. Judgment for interveners, and that defendants take nothing on their plea of homestead. Defendants aiipeal.

<p>Appeal from District Court, Potter County; Hugh L. Umphres, Judge.</p> <p>Action by the First National Bank of Amarillo against H. K. MeWhirter. Judgment for plaintiff, and defendant appeals.</p>

Marvin H. Brown, Judge. Suit by the Auto Transit Company and others against the City of Ft. Worth and others. From an order refusing to continue a temporary injunction, plaintiffs appeal.

<p>Appeál from Hidalgo County Court; W. H. Gossage, Judge.</p> <p>Suit by the San Antonio Machine & Supply Company against Marvin Evans. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Cameron County ; W. B. Hopkins, Judge.</p> <p>Action by the Bank of Washington against the El Fresnal Irrigated Land Company. From a judgment for the plaintiff, the defendant appeals,</p>

<p>Error from District Court, Hale County; L. S. Kinder, Judge.</p> <p>Suit by R. F. Ivey and wife against the Farmers’ & Merchants’ National Bank of Abilene. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. MUIilCIPAL CORPORATIONS <&wkey;821 — INJURY to Pedestrian — Ditcii in Street — Negligence-Questions eor Jury.</p> <p>Under the evidence in an action for injury to a pedestrian in attempting to cross a ditch in a street dug by a gas company, held, that whether she acted and relied on invitation of the company’s foreman in such attempt, and whether he, in so inviting her, was guilty of negligence proximately contributing to her injury, and whether she exercised ordinary care for her safety, were questions for the jury.</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 1745-1757; Dec. Dig. <©=3821.]</p> <p>2. Trial &wkey;>252 — Instructions—Applicability to Evidence.</p> <p>There being no evidence that plaintiff’s injury was caused by a weakened condition of her arm, though it had previously been broken, a requested instruction predicated on a finding of such fact was properly refused.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252.]</p> <p>3. Trial <&wkey;251 — Instructions—Applicability to Pleading-r Contributory Negligence.</p> <p>Defendant, having specifically pleaded certain acts as contributory negligence, was not entitled to have other acts submitted to the jury as a basis for finding contributory negligence.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. &wkey;251.j</p>

<p>1. Principal and Agent <&wkey;145 — Liability ow Undisclosed Principal — Ratification.</p> <p>Where the brother of the owner of cattle, having charge of them, rented lands for grazing purposes, and the owner reaped all the benefits of the contract with knowledge that his cattle were pastured on another’s land, and ratified the contract by refunding the brother the amount he paid thereon, such owner was liable for the rent of the grazing lands.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 499, 513-520; Dec. Dig. <&wkey;145.]</p> <p>2. Evidence <&wkey;207 — Admissions.</p> <p>In an action for the rent of grazing lands, the admissions of defendant as to the pasturage of his cattle thereon, made in another suit between him and another than the adverse party in the present suit, were admissible in evidence, since the voluntary admissions of a party, wherever and however made, can be used in any suit to which he is a party.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §$ 707-712; Dec. Dig. &wkey;207.]</p>

<p>1. Pleading i&wkey;34^-PETiTi0N — Sufficiency.</p> <p>As against general demurrer, every intendment will be indulged in favor of the petitioner.</p> <p>[Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. &wkey;34J</p> <p>2. Judgment &wkey;>2G0 — Pleading to Sustain.</p> <p>A judgment cannot be upheld, where the petition did not state a cause of action against the parties, regardless of what the evidence showed.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. <5&wkey;250.]</p> <p>3. Com?ORAtions <&wkey;268 — Stockholders—Actions Against.</p> <p>A petition by plaintiff, who rendered services for a corporation, by which he sought recovery against the corporation and its stockholders, alleged that defendants were the principal stockholders, and as such received and had the benefit of the services rendered, and by reason thereof became liable to plaintiff for his services. The petition contained no averments showing the stockholders liable, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1198, for unpaid stock, or bringing the case within articles 1206, 1208, on the ground of insolvency and dissolution. Held that, as a shareholder always receives the benefit of contracts made by the corporation, the petition did not state a cause of action against the defendant shareholders, notwithstanding every intendment must be taken in its favor.</p> <p>[Ed. Note. — For oth.er cases, see Corporations, Cent. Dig. §§ 1129, 1131, 1133-1147, 2276; Dec. Dig. &wkey;?268.]</p>

L. Yates, Judge. Action by the Rio Grande Canal Company against W. H. Bennett and another, in which defendant M. M. Biggs filed a cross-action. Judgment for plaintiff against defendant Bennett, and against plaintiff as to defendant Biggs, and against defendant Biggs on his cross-action, and defendants appeal.

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by the Vogt Hardware Company against Carl Klabunde. From a judgment for plaintiff on appeal from a justice, defendant appeals.</p>

<p>1. BANKRUPTCY &wkey;>407 — DISCHARGE—“FALSE” Statement.</p> <p>A “false” statement in obtaining credit, which under Bankr. Act July 1, 1898, c. 541, § 14b (3), 30 Stat. 550, as amended by Act June 25, 1910, c. 412, § 6, 36 Stat. 839 (U. S. Comp. St. 1913, § 9598), will prevent discharge of bankrupt, must not only have been untrue, but knowingly made.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 729-731, 737, 738, 740-751, 758, 760, 761; Dec. Dig. &wkey;>407.</p> <p>Eor other definitions, see Words and Phrases, Eirst and Second Series, Ealse.]</p> <p>2. Appeal and Error <&wkey;1008 — Review — Eindings.</p> <p>Findings not being attacked, the evidence will not be looked to on appeal, to give them other than their apparent meaning.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3955-3960, 3962-3969; Dec. Dig. &wkey;sl008.]</p>

<p>1. Estoppel &wkey;>70 — Equitable Estoppel— What Constitutes.</p> <p>Where the federal court on discharging the receiver and returning, the property to a railroad company required the railroad company, pursuant to its offer, to assume payment of claims arising during the receivership, plaintiff’s failure to assert his claim by intervention in the receivership suit before discharge, coupled with his delay for two months thereafter, during which the railroad expended relatively small sums in the betterment of its property, works no estoppel preventing assertion thereafter.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 183-187; Dec. Dig. &wkey;70J</p> <p>2. Receivers <&wkey;65 — Appointment of Receiver — Effect.</p> <p>The appointment of a receiver and his administration of the affairs of a railroad company impounds the property of the company, so that while it remains in the custody of the court, the receiver’s possession cannot be disturbed by any other court.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 114, 115; Dec. Dig. &wkey;65.]</p> <p>3. Courts <&wkey;493 — Receivers—Appointment —Power of State Courts.</p> <p>After discharge of a receiver appointed by the federal court, and during the pendency of the receivership suit, a state court may appoint a receiver who can hold the property to the exclusion of the power of the federal court to appoint a second receiver for it.</p> <p>[Ed. Note. — For other cases, see Courts, Cent Dig. §§ 1346-1352; Dec. Dig. &wkey;493.]</p> <p>4. Courts <&wkey;500 — Receivers — Power of State Courts.</p> <p>Pending a receivership in the federal court, a state court may determine a claim against the railroad company whose property was so impounded, if it does not inter-fere with the receiver’s custody of the property.</p> <p>[Ed. Note. — For other cases, see Courts, Cent Dig. §§ 1407, 1408; Dec. Dig. &wkey;500.]</p> <p>5. Courts <&wkey;501 — Receivers — Action in State Court.</p> <p>Under Act Cong. Aug. 13, 1888, c. 866, § 3, 25 Stat. 436 (U. S. Comp. St. 1913, § 1048), claimants against receivers of a railroad company appointed by the federal court may bring suit in the state court without consent of the appointing court, and it cannot, sitting as a court of equity, deprive claimants of that right.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1409; Dec. Dig. <&wkey;501.]</p> <p>6. Railroads <&wkey;212 — Receivers — Discharge — Action Against Railroad .</p> <p>Under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 2141, declaring that all parties and corporations whose property has been placed in the hands of a receiver, and which has been delivered back to the original parties or corporations without sale, shall be liable and held to _ pay all the unpaid liabilities of the receiver arising out of the receivership, a shipper whose claim arose while the property of a railroad company ■was in the possession of a receiver appointed by a federal court may, after termination of the receivership and return of property to the railroad company, sue the railroad company.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 702-706; Dec. Dig. &wkey;212.]</p> <p>7. Receivers <&wkey;204^-DxscHARGE — Jurisdiction of Court.</p> <p>Where the federal court appoints a receiver for a railroad company, such court acquires jurisdiction of all claims presented by petition or intervention, and the discharge of .the receiver does not of itself release such jurisdiction.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 319, 407, 40S; Dec. Dig. &wkey;204.]</p> <p>8. Receivers <&wkey;60 —Discharge—Jurisdiction Retained.</p> <p>In such case, the reservation of jurisdiction is necessarily limited to controversies pending in the federal court, and by such reservation that tribunal cannot acquire jurisdiction over claims not filed, for a court of equity has no inherent jurisdiction beyond that conferred by the Constitution and the statutes.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent Dig. §§ 106-107; Dec. Dig. &wkey;60.]</p> <p>9. Railroads <@=3265 — Receivers — Discharge-Return of Property — Effect of Order.</p> <p>Where the federal court, which had appointed a receiver for the property of a railroad company, returned the property to the company on an application whereby the company agreed to accept the property subject to all liabilities or indebtedness accruing, or to accrue against the receiver of every kind, and the order of return provided that the company should assume all liabilities incurred by the receiver, the company was liable for claims against the receiver growing out of negligence in the operation of a train, notwithstanding the federal court reserved all questions not disposed of.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 838-853; Dec. Dig. <&wkey;>265.]</p> <p>10. Railroads <&wkey;265 — Receivers—Removal.</p> <p>Where a federal court removed a receiver of a railroad company, returning the property to the company, one having a claim against the receiver, arising out of negligence in the mismanagement of the road, may have the benefit of Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 2141, making the company liable on such claims, though the federal court, on ordering return of the property, reserved jurisdiction as to matters undetermined.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 838-853; Dec. Dig. <@=3265.]</p> <p>11'. Railroads &wkey;>265 — Receivers — Parties to Action.</p> <p>Where receipts were not personally liable, and had been discharged, they are not necessary parties to an action against a railroad company for damages, for negligent injury to a shipment during the receivership.</p> <p>[Ed. Note. — For other cases, see Railroads, Oent. Dig. §§ 838-853; Dec. Dig. &wkey;>265.]</p>

Error from District Court, Dimmit County; J. F. Mullally, Judge. Action by A. Eardley and John Eardley, composing the firm of Eardley Bros., against F. S. Burt and another. To review a judgment for the named and against the unnamed defendant, plaintiffs bring error.

<p>Error from District Court, Ellis County; F. L. I-lawkins, Judge.</p> <p>Proceeding by Bettie Kidd and others against E. B. Prince and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>Appeal from District Court, Swisher County; R. C.. Joiner, Judge.</p> <p>Action by J. H. Truitt, Sr., against James R. Delay. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Reeves County Court; Ben Randals, Judge.</p> <p>Action by A. Y. Lindsay against E. L. Col-lings. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Martin County Oourt; A. C. Eidson, Judge.</p> <p>Action by A. D. Estes against S. D. Mc-Whorter. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Evidence <&wkey;420 — Parol Evidence — Delivery on Condition.</p> <p>In an action for goods sold and delivered on an order given by the buyer to a seller’s salesman, parol evidence was admissible to show that the written order was not to he delivered to the seller to be filled within 30 days.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1728, 1795, 1800, 1804, 1815, 1821,. 1929-1944; Dec. Dig. &wkey;420.]</p> <p>2. Principal and Agent <&wkey;103 — Sales <&wkey; 85 — Order—Verbal Agreement op Seller’s Salesman — Effect.</p> <p>On an order for the sale of goods to he shipped at the seller’s earliest convenience, the verbal agreement of the seller’s salesman that the order should not be delivered to the seller within SO days is binding upon the seller, and the contract is avoided by a violation of the agreement.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 278-293, 353-359, 367; Dec. Dig. <i&wkey;103; Sales, Cent. Dig. §§ 236-238; Dec. Dig. <@=¿>85.]</p> <p>On Motion for Rehearing.</p> <p>3. Sales <&wkey;387 — Action foe Price — Evidence.</p> <p>In an action for goods sold and delivered, defended on the ground that the buyer’s order for goods to be shipped at the seller’s earliest convenience had been given to the seller’s salesman on condition that it would not be put in within 30 days, the buyer’s letter to the seller, omitting the terms of the contract, was for the jury on the question of his credibility as to making a contract upon a precedent condition of delivery.</p> <p>[Ed. Note. — Eor other cases, see Sales, Cent. Dig. § 1108; Dec. Dig. <§=»387J</p>

<p>Appeal from District Court, Sabine County; A. E. Davis, Judge.</p> <p>Wilson Crockett was convicted of manslaughter, and he appeals.</p>

<p>Criminal Law <@=>112íL-Appea:[>-Review— Statement oe Facts.</p> <p>Where no statement of the evidence on the trial accompanies the record, and no bill of exceptions is contained therein, there is nothing in the motion for a new trial which the Court oí Criminal Appeals can review.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. <@=j1124.]</p>

<p>Appeal from Fayette County Court; George Willricli, Judge.</p> <p>J. M. Martin was convicted of aggravated assault, and lie appeals.</p>

<p>1. Robbery <@=>17 — Indictment — Description of Property — Sufficiency.</p> <p>Under Code Cr. Proc. 1911, arts. 458, 468, providing that a general description of property by name, kind, quality, number, and ownership shall be sufficient, and that in indictments for theft, etc., of coin or paper current as money it shall be sufficient to describe the property in general terms as money, an indictment for robbery of “$11 in money, which * * * passed current as money of the United States, * * * and 0f the value of $11,” sufficiently described the property.</p> <p>[Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 16-23, 26; Dec. Dig. <§=>17.]</p> <p>2. Criminal Law <@=>1092 — Bill of Exceptions — Time to File.</p> <p>Bills of exceptions, approved and filed after the time fixed by orders allowing the filing of bills after adjournment of court, cannot be considered, but must be stricken out on motion.</p> <p>[Ed. Note. — For other cases, sae Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dee. Dig. <§=>1092.]</p>

<p>Appeal from Presidio County Court; H. H. Kilpatrick, Judge.</p> <p>Action by Rafael Marquez against D. Herrera and others, with writ of sequestration by plaintiff and replevy by defendants. Judgment for plaintiff against defendants, and the surety on their replevy bond, and they appeal.</p>

L. Hawkins, Judge. Trespass to try title by Mrs. M. E. Ham-lett against Mrs. M. B. Coates. From a judgment for plaintiff to recover possession of the property sued for, and, in accordance with the jury’s verdict agaiust her, for damages awarded defendant on her plea in re-convention, plaintiff appeals.

<p>Appeal from District Court, Lubbock County ; W. R. Spencer, Judge.</p> <p>Action by J. H. Standefer against W. S. Miller. From a judgment for defendant, plaintiff appeals.</p>

It. Spencer, Judge. Suit by L. D. Sowell and others against C. C. Hoffman and others, with cross-petition by defendants. Judgment for defendants, and plaintiffs appeal.

<p>1. COURTS @=>169— COUNTY COURTS — Jurisdiction — Amount in Controversy.</p> <p>Under the express provision of Act Thirty-Third Legislature, increasing the civil jurisdiction of the county court of Stonewall county by giving it original concurrent jurisdiction with the justice courts in all civil matters, such court had jurisdiction of an action for $150, alleged to be due upon an oral lease of land with claim of a pasturer’s lien.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dee. Dig. @=>169.]</p> <p>2. Trial <@=327 — Verdict—Parties.</p> <p>In action, a verdict for one of two defendants, silent as to the other defendant, was sufficient to sustain a judgment for both defendants.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 768%-770; Dec. Dig. @=>327.]</p> <p>3. Appeal and Error <&wkey;648 — Transcript— Time of Filing — Statute.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. art. 1608, providing that in any appeal the appellant shall file the transcript with the clerk of the Court of Civil Appeals within 90 days from the perfection .of the appeal, the court could not consider an exception to the charge, when the part of the transcript containing the purported bill of exceptions was inserted by the clerk of the county court after the transcript had been filed in the Court of Civil Appeals, without authority of the latter court, and more than 90 days after the appeal bond had been perfected.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2803-2806; Dec. Dig. <&wkey; 648.]</p> <p>4. Appeal and Error <&wkey;1001 — Review —</p> <p>Verdict.</p> <p>In a suit for the sum alleged to be due upon an oral lease of pasture land for six months, and for a pasturer’s lien upon defendant’s cattle, where defendant denied the contract pleaded, the verdict for defendant would not be disturbed by reason of his admission that he had put cattle in the pasture, and that he owed pasturage for same head of cattle.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. <&=>1001.]</p> <p>5. Contracts <&wkey;346 — Pleading—Recovery</p> <p>on Quantum Meruit.</p> <p>Under a petition based on an alleged oral contract for the lease of pasture land, plaintiff could not recover on a quantum meruit.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1131-1138; Dee. Dig. &wkey;348.]</p>

<p>Appeal from District Court, Ward County; S. J. Isaaeks, Judge.</p> <p>Trespass to try title by J. C. Phelps against the Pecos Valley Southern Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by Mrs. M. E. Freeman and others against the Texas & Pacific Railway Company. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Trial @=>260 — Bequested Instructions— Given Instructions.</p> <p>In an action for the death of a railway engineer, killed when his engine left the track, wherein the track was alleged to have been uneven and unsafe, where the jury found that the track was unsafe and that the defendant was negligent in having it in such condition, and that the locomotive by which deceased was billed was not a reasonably safe one for use along the track when handled with ordinary care, defendant’s requested charge as to whether the locomotive operated by deceased at the time of the wreck in which he was killed was dangerous for the character of the work in which it was then used, was properly' refused, as it could have added nothing to the charge given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. @=>260.]</p> <p>2. Trial @=>350 — Special Issues — Submission.</p> <p>In such action where the jury found that the track was not safe and that defendant had not used ordinary care to keep it safe for such a locomotive as deceased was using when killed, and that the locomotive was not a reasonably safé one, the submission of a special issue as to whether or not the unsafe track, if it was unsafe, or the unsafe locomotive, if it was unsafe, was the proximate cause of the accident, or whether both were the proximate cause, was not injurious to defendant, as no intelligent jury could have been misled thereby.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. @=>350.]</p> <p>3. Trial @=>350 — Special Issues — Submission.</p> <p>_ In such action where the court submitted an issue as to whether the engineer at the time of the derailment was using ordinary care in handling the locomotive by which he was killed, and where the rate of speed was found in answer to another issue, the defendant’s requested issue as to whether deceased was exercising ordinary care to run his engine at a safe rate of speed was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig.'§§ 828-833; Dec. Dig. @=>350;]</p> <p>4. Trial @=>260 — Action por Death — Be-quested Charges — Given Charges.</p> <p>A special charge was properly refused when it was covered by the other charges given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. @=>260.]</p>

<p>Appeal from District Court, Reeves County; S. J. Isaacks, Judge.</p> <p>Action by Ella Frazer against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from District Court, Grayson County; Jas. P. Haven, Judge.</p> <p>Action by the Interstate Cotton Oil Refining Company against the People’s Ice & Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from Jasper County Court; C. C. Brown, Judge.</p> <p>Suit by I. S. Bean against G. W. Cook and wife. From an adverse judgment, plaintiff appeals. Affirmed.</p>

<p>Appeal and Error <@=254 — Error Apparent op Recoed — Objection.</p> <p>Where an exception was erroneously sustained to plaintiff’s first amended petition, on the ground that it did not state an action within the jurisdiction of the county court, and all costs accruing up to and including such petition were assessed against plaintiff, the error is one apparent of record which will be corrected, though plaintiff did not then except or except on trial to a similar order, or raise the matter in his motion for new trial; the petition clearly showing that it stated a cause of action within the jurisdiction of the county court.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent Dig. §§ 1486, 1487; Dec. Dig. <@= 254.]</p>

<p>Appeal from District Court, Potter County; Hugh L. Umphres, Judge.</p> <p>Action by W. H. Biswell against R. L. Gladney and others. Judgment for defendants, and plaintiff appeals. Affirmed.</p>

Action by Wm. D. Cleveland & Sons against J. B. Jamison. Judgment for defendant in justice court, and on appeal to the county court, and plaintiffs appeal. Reversed and rendered.

<p>Appeal from District Court, El Paso County; Ballard Coldwell, Judge.</p> <p>Action by Walter Mansell against the Western Union Telegraph Company. Prom a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>Appeal from Robertson County Court; J. L. Goodman, Judge.</p> <p>Action by R. R. Holbert against the Houston & Texas Central Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from District Court, Grayson County; M. H. Garnett, Judge.</p> <p>Action for injunction by C. C. McCarthy against C. T. McElvaney and others. From an order refusing a temporary injunction, plaintiff appeals.</p>

<p>Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.</p> <p>Action by Helen Jones and others against the Ft. Worth Belt Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed. See, also, 166 S. W. 1130.</p>

<p>Appeal from District Court, Lubbock County; W. R. Spencer, Judge.</p> <p>Action by W. H. Bledsoe and others against E. C. Baker and others. From Judgment for plaintiffs, defendants appeal. Affirmed.</p>

<p>Judgment <&wkey;106 — Default—Substitution: on New Plaintiffs — Effect.</p> <p>On the substitution of new plaintiffs on motion alleging assignment to them of the cause of action by the original plaintiffs, and the adoption by the substituted plaintiffs of the petition of the original plaintiffs without adding any allegations relating to the assignment, the entry of judgment by default against the defendant without service and without permitting an opportunity to answer, his offer to answer the original plaintiffs and to deny the cause of action and the assignment having been refused, was érror.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 160, 162, 180-197; Dec. Dig. &wkey; 106.]</p>

<p>1. MARRIAGE &wkey;>58 — YAMDITY—DURESS.</p> <p>A marriage taking place through fear of, or to stop a prosecution for seduction, will not be set aside for duress.</p> <p>■ [Ed. Note. — For other cases, see Marriage, Gent. Dig. §§ 115-123; Dec. Dig. &wkey;58.)</p> <p>2. Marriage &wkey;>59 — Validity—Duress.</p> <p>A marriage induced by fear of physical violence will not be set aside where the parties lived together as husband and wife after the threatening influences, were removed.</p> <p>[Ed. Note. — For other eases, see Marriage, Dee. Dig. <&wkey;59.]</p> <p>3. Marriage &wkey;>60 — Annulment—-Evidence.</p> <p>In an action to annul a marriage, evidence held sufficient to support either the theory that plaintiff married to escape prosecution, or that he recognized defendant as his wife for a considerable time.</p> <p>[Ed. Note. — For other cases, see Marriage, Gent. Dig. §§ 125-128, 130-135; Dec. Dig. &wkey; 60.]</p>

Yon Rosenberg, Jr., Judge. Action by Walter Tips, prosecuted after his death by Mary J. Tips and others, his heirs, against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals.

P. Dickson, Judge. Action by L. A. Stearns against the Commonwealth Bonding & Casualty Insurance Company. There was a default judgment for plaintiff, and, from an order denying a motion for new trial and to set aside the default judgment, defendant appeals.

<p>Appeal from District Court, El Paso County; Ballard Coldwell, Judge. Action by the El Paso & Southwestern Company against Mrs. Allen Taylor. From a judgment dissolving a temporary injunction, plaintiff appeals.</p>

<p>Apjpeal from District Court, County; Robt. G. Street, Judge. T. Noonan was convicted of sodomy, and he appeals.</p>

<p>Appeal from District Court, Cameron County; W. B. Hopkins, Judge. Application by Ramon Pizana for a writ of habeas corpus.</p>

<p>Appeal from District Court, Red River County; Ben H. Denton, Judge. Edgar Harris was convicted of perjury, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County ; Robt. B. Seay, Judge. Jackson Drake, alias Jack Drake, was convicted of manslaughter, and appeals.</p>

<p>Appeal from District Court, El Paso County ; Ballard Coldwell, Judge. Action by the El Paso & Southwestern Company against Claude J. Taylor and others. From a judgment dissolving a temporary injunction, plaintiff appeals.</p>