Volume 199 — South Western Reporter

<p>Appeal from District Court, Runnels County; J. O. Woodward, Judge.</p> <p>H. F. Alexander was convicted of an offense, and lie appeals.</p>

<p>1. Judgment <©=5953 — Former Adjudication —Finding—Evidence.</p> <p>In trespass to try title to a strip of 15½ feet off the east side of lot 20, evidence held to sustain a finding that a default judgment in a former suit by the defendant against the plaintiff for a strip of that width upon the east side of lot 21 did not bar the plaintiff’s right to all of lot 20, including the claimed excess of 15½ feet on its western side.</p> <p>2. Appeal and Eeeob <©=5931(6) — Admission of Evidence — Trial by Coubt.</p> <p>Assignments of error in the admission of evidence, in view of the fact that the trial below was before the court without a jury, need not be discussed.</p> <p>3. Appeal and Eeeob <©=5l 051(1) — Admission of Evidence — I-Iaemless Eeeob.</p> <p>Judgment would not be reversed because of any error in the admission of evidence, where the evidence admitted without objection sufficiently supported the trial court’s conclusions of fact.</p>

<p>Appeal from District Court, Bexar County; W. IP. Ezell, Judge.</p> <p>Action by Isabella Castle and another against the San Antonio Water Supply Company and Ed. Dreiss, in which each of the defendants pleaded (a cross-action against the other for any damages which might be found for plaintiffs. From a judgment for plaintiffs against the first-named defendant, it appeals.</p>

<p>Appeal and Error ®=»101(1) — Appeal from “Order” Appointing Receiver,</p> <p>The order from which appeal is authorized by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2079, declaring that appeal shall lie from an interlocutory order appointing a receiver in a cause, provided it is taken within 20 days from entry of such order, is the order adjudging that the property be taken from the. possession of defendant and appointing a receiver; and the removal of such receiver for disqualification, and appointment of a successor, does not extend the time for appeal from the first order, or authorize appeal from the order appointing the second receiver.</p> <p>[Ed. Note. — For other definitions,. see Words and Phrases, First and Second Series, Order.]</p>

<p>1. Dismissal and Nonsuit <§=^54 — When Proeer.</p> <p>Where petition was brought as one in trespass to try title, but was insufficient therefor clearly showing that plaintiff had neither legal nor equitable title, yet if it alleged sufficient a¿ against general demurrer to sustain a suit for specific performance of a contract to convey land, the cause should not be dismissed, but should be retained as the suit for specific performance.</p> <p>2. Specific Performance <§==>104 — Venue op Action.</p> <p>Where a petition set up trespass to try title, but was insufficient therefor, and was sufficient as against general demurrer to sustain suit for specific performance of a contract to convey land, the question of venue of the suit must be determined as though its sole object was specific performance.</p> <p>3. Yenue <§=>22(1) — Specific Performance.</p> <p>In suit for specific performance of contract to convey land, the proper venue of the suit was the county of the residence of the defendants when they set up the plea of privilege to be sued therein.</p> <p>4. Judgment <§=^298 — Amendment—Powers of Court.</p> <p>The court has full authority during the term to set aside a judgment if erroneous and render proper judgment, and it may do so on its own motion.</p> <p>5. Pleading <®=72 — Disclaimer—Right to Judgment.</p> <p>Where certain defendants disclaimed before the petition was assailed, if the plaintiff desired judgment as to the disclaiming parties he must demand judgment.</p>

<p>1. Pleading- <®=>214(1) — Demurrer — Admissions.</p> <p>A demurrer admits the truth of statements in the pleading against which it is directed.</p> <p>2. Bills and Notes <⅜=382 — Theft — Defense against Bona Eide Purchaser.</p> <p>A negotiable instrument stolen from the maker before it has become effective as an actual obligatibn by actual or constructive delivery cannot be enforced by any subsequent innocent holder.</p> <p>3. Banks and Banking <§=>146 — Payment of Stolen Paper — Recovery—Acquiescence.</p> <p>Plaintiff drew checks for a milling company of which he was manager, and in the regular course of business drew a check payable to B. or order. The check was never delivered to B. but was taken from plaintiff’s office without his fault and presented to defendant bank by an unknown person, which bank paid the check on a forged indorsement. Defendant bank then under an indorsement, ‘‘Pay to the order of any bank or banker all prior indorsements guaranteed,” transmitted the check to the bank on which it was drawn, which bank paid the same and charged it to the account of the milling company. Thereupon the milling company charged the amount of the cheek to plaintiff’s account, and. he acquiesced in the charge. J-Ield that, . as, if plaintiff had not acquiesced in the charge, the milling company would not have been liable, and the bank on which the chock was drawn could have had recourse against defendant, plaintiff cannot recover from defendant having voluntarily acquiesced in the charge, for such acquiescence must be deemed a ratification and a voluntary payment.</p>

<p>Divorce <®=>130 — 1“Cruel Treatment” — Sufficiency of Evidence.</p> <p>Evidence Jield insufficient to support a decree of divorce under R. S. 1911, art. 4631, subd. 1, requiring that “cruel treatment” be such as to render living together insupportable; there being no evidence that defendant’s conduct was such as to impair plaintiff’s health. ,</p>

<p>Error from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Action by Matt Ulrich against the Galveston-Seeburg Electric Piano Company, which counterclaimed. Prom a judgment for defendant, plaintiff brings error.</p>

S. Cumings, Judge. Action by Charles Hranicky against Albert Sell. Judgment for defendant in the justice court was affirmed by the county court, and plaintiff accepts.

<p>1. Telegraphs and Telephones @=>35 — Failure to Deliver Message — Liability.</p> <p>Where sender of telegram telephoned it to the company’s agent, who wrote it upon blanks containing provisions limiting liability, such provisions were not binding as a part of the contract.</p> <p>2. Telegraphs and Telephones @=>35 — Notice.</p> <p>In such case the telegraph operator taking the telegram by phone and writing it for transmission does not act as the agent of the sender so as to bind him to the conditions upon the blank.</p> <p>3. Courts @=>91(1) — Jurisdiction—State Supreme Court.</p> <p>A judgment of the Supreme Court of Texas that Act Cong. June 18, 1910, c. 309, 36 Stat. 539, does not supersede the state law as to the liability of a telegraph company for negligence in delivery of an interstate message is controlling authority upon-the Court of Civil Appeals unless and until the contrary be held by the Supreme Court of the United States.</p> <p>4. Telegraphs and Telephones @=>37(7) — Failure to Deliver Message — Mistake in Initials.</p> <p>Notwithstanding a mistake in initials of addressee, it is the telegraph company’s duty to use ordinary care to make seasonable delivery of the message, and negligence in the discharge thereof is actionable.</p> <p>5. Telegraphs and Telephones @=>37(8)— Failure to Deliver Message — Duties oe Company.</p> <p>Where telegram was addressed, “H. S. P., N. C. R. Co., 414 O. St.,” the full duty of the telegraph company was not discharged by tendering delivery at the address at which its messenger learned that the addressee was no longer at that address, and was given his correct address.</p>

<p>1. Venue <@=322 (1)— Place of Defendant’s Residence—1“Trespass.” ■</p> <p>Since Rev. St. art. 1830, authorizes suits to be brought out of the county of defendant’s domicile, where the foundation is a trespass for which a civil action in damages may lie, and since there áre no accessories in trespass, but all parties concerned are principals, and a trespass is any unauthorized entry upon the realty of another to the damage thereof, where one defendant leased land to plaintiff, and the other three defendants were in possession of the land and refused to yield possession, their act, though an unauthorized entry, when not connived in by the lessor, did not make her a trespasser or a joint tort-feasor, and she was privileged to be sued in the county of her residence.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Trespass.]</p> <p>2. Venue «¡¡==>31 — Joint Defendants — Effect.</p> <p>Rev. St. art. 1830, subd. 4, providing that where there are two or more defendants residing in different counties suit may be brought in any county where any defendant resides, applies only where the cause of action as to all the parties is the same.</p> <p>3. Venue <§=21 — Breach of Contract — Residence of Defendant.</p> <p>If a lessee has a cause of action against his lessor for breach of his lease, the lessor is entitled to be sued in the county of her residence.</p> <p>4. Landlord and Tenant <§=>180(3) — Wrongful Dispossession — Action — Pleading — Sufficiency.</p> <p>In action by a lessee for wrongful dispossession from land, the allegation that on account of the trespasses plaintiff was wrongfully deprived of the use and benefit of the land with its improvements, and prevented from raising a crop thereon, and thereby greatly damaged, was sufficient, as alleging a proper measure of damages.</p> <p>'5. Damages <§=>62(1) — Duty to Minimize.</p> <p>Where the lessee was deprived of possession by the wrongful act of third persons, it being his duty to use reasonable means to minimize his damages, the jury should determine what amount plaintiff earned, or by the exercise of reasonable effort ho could have earned, in the same or a similar business elsewhere.</p> <p>6. Landlord and Tenant <⅜=180(6) — Wrongful Dispossession — Measure of Damages — Questions for Jury.</p> <p>In the lessee’s action for damages by wrongful dispossession, there being nothing to show whether he could under his lease sublet the premises, it was not error to refuse to submit whether he had arranged to sublet the premises.</p> <p>7. Trial <§=>192 — Instruction — Assuming Facts.</p> <p>The authority of an agent being undisputed, it is not error for the court to assume such authority in his charge.</p> <p>8. Landlord and Tenant <⅜=>180(6) — Wrongful Dispossession — Measure of Damages.</p> <p>In the lessee’s action for wrongful dispossession by third person, if ho had agreed to sublet a part of the land to his sons, it was error to refuse to submit the question of damages, limited by the fact that he had so agreed to sublet the premises.</p> <p>9. Landlord and Tenant <§=>180(4) — Wrongful Dispossession — Measure of Damages.</p> <p>Value of pasturago upon land of which a lessee was wrongfully dispossessed by third persons was a proper element of damages.</p> <p>10. Damages <§=>62(1) — Measure—Trespass.</p> <p>It being incumbent upon plaintiff in his action for damages by wrongful dispossession of land to minimize his loss, his damages should he reduced by the amount that he made or could have made in using the same implements, machinery, etc., that He purchased, and would have used upon the land leased.</p> <p>11. Damages <§=>221 — Landlord and Tenant <§=>180(4) —■ Wrongful Dispossession of Tenant — Measure of Damages — Submission to Jury.</p> <p>While in the lessee’s action for damages by wrongful dispossession by third parties, the expense to which he was put thereby is a proper measure of damages, the question submitted to the jury “what expense was he put to by reason of his failure to- get possession of the land” was too general.</p> <p>12. Judgment <§==>256(¾ — Conformity to Findings.</p> <p>In an action for damages by wrongful dispossession of the lessee, the finding of the jury that the lessor had not conspired with the dispossessors did not require judgment for all the defendants.</p> <p>13. Landlord and Tenant <§=>180(1) — Wrongful Dispossession — Liability—Defenses.</p> <p>That the lessee who was wrongfully deprived of possession would have sublet part of the land is no defense to his action against the dispossessors, though it is a defense on the part of the lessor.</p>

<p>1. Deeds <§r=>38(1) — Description — Stjeet-ciency. ■</p> <p>A deed describing land as commencing at the beginning corner “about two miles from the courthouse of Harris, called the city of Houston,” and beginning on a pine tree 22 inches in diameter, thence west 443½ varas to another pine 20 inches in diameter, thence north 2,-628½ varas to a pin oak, thence east 443½ varas to a pine 24 inches in diameter, thence south 2,628⅜ varas to the place of the beginning, was properly admitted in evidence, there being nothing in the record to show that the land intended to be conveyed was not accurately described, the deed not bearing any ambiguity on its face, and it not appearing that any ambiguity or uncertainty arose when the description was applied to the ground.</p> <p>2. Appeal and Error <S==o742(1) — Statement —Necessity.</p> <p>Under rule 31 for Courts of Civil Appeals (142 S. W. xiii) declaring that to each of the propositions there shall be subjoined a brief statement, in substance, of such proceedings or part thereof contained in the record as will be necessary and sufficient to explain and support the proposition with a reference to the pages of the record, an assignment of error need not be considered, where the propositions were not supported by a statement of the germane facts, the court not being required to search the record for such matters.</p> <p>3. Trial <§=339 — Documentary Evidence— Notice and Piling oe Copies.</p> <p>Where plaintiff, in accordance with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3700, filed copies of deeds with the papers of the case, and gave three days’ notice before trial of intention to introduce them in evidence, defendant, the purpose of the statute having been fulfilled, may, on plaintiff’s failure, introduce such deeds in evidence, although he did not file the copies or give, the notice provided for.</p> <p>4. Appeal and Error <§=31032 (2) — Review-Harmless Error.</p> <p>In an action for trespass to try title, the exclusion of deeds offered by defendant, though erroneous, is harmless, where it prima facie appeared from the statement that the deeds showed the chain of title from the sovereignty to the admitted common source of title under whom both parties claimed.</p> <p>5. Judgment <§=3707 — Conclusiveness—Persons Bound — Evidence.</p> <p>A copy of an opinion rendered in an action between other parties, that one under whom plaintiff claimed did not have title to certain lands, including that in controversy, is inadmissible as against plaintiff, for plaintiff, not being a party, is not bound by the judgment.</p>

<p>1. Abatement and Revivad <§=>82 — Plea oe Privilege — What Constitutes.</p> <p>An agTeement in open court that a ease might be transferred to another county, as if on a plea of privilege, held equivalent to such a plea in so far as waiving the right thereafter to plead to the court’s jurisdiction over the subject-matter.</p> <p>2. Abatement and (Revival <§=>82 — Dilatory Pleas — Order.</p> <p>Under Rev. St. 1911, arts. 1909 and 1910, requiring pleas to be filed in due order, etc., a plea of privilege waives the right to thereafter plead to the court’s jurisdiction over the subject-matter.</p> <p>3. Courts <§=>122 — Jurisdictional Amount-Pleading.</p> <p>A judgment for an amount under the court’s jurisdiction is valid, unless the allegations of the petition that the jurisdictional amount was involved are attacked as fraudulent.</p> <p>4. Courts <§=>122 — Jurisdiction — Allegations op Pleading.</p> <p>Where the allegations that the jurisdictional amount was involved were .not attacked as fraudulent, the court had jurisdiction to change the venue.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Suit by L. M. Crawford, trustee, against Bernard Schuster and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Jeff Davis County; Jos. Jones, Judge.</p> <p>Suits by O. L. Shipman against W. T. Jones and W. S. Crow. From judgments of dismissal, plaintiff appeals; the appeals being consolidated on motion.</p>

<p>1. Carriers <§=105(2) -Carriage oe Goods— Damages.</p> <p>Where defendant carrier was notified that delay in transporting goods would cause plaintiff's employés to be idle, it is liable for special damages thereafter caused by delay and consequent idleness of employés.</p> <p>2. Trial <®=261 — Requested Instructions.</p> <p>Refusing a requested instruction constituting a paragraph of a general charge, some portions of which were incorrect, is not erroneous.</p> <p>3. Carriers <@=>184 — Carriage oe Goods — Variance.</p> <p>There is no variance between'proof that defendant carrier delayed shipments at junction point with another carrier at a certain date, and allegations that the goods were delivered to defendant a month previous to such date.</p> <p>4. Carriers <@=>187 — Carriage oe Goods — Title.</p> <p>Evidence regarding goods consigned to plaintiff by third party held to make a jury question whether goods belonged to plaintiff or third party during transit.</p> <p>5. Carriers <@=76 — Carriage oe Goods — Delay — Eight to Sue.</p> <p>The owner of material may sue a carrier for delay during transit, although the shipment was made in another’s name.</p> <p>6. Appeal and Error <@=>1053(3) — Harmless Error — Admission oe Evidence — Cure by Instruction.</p> <p>In an action for delay against a carrier, admitting evidence that goods were paid for by plaintiff instead of consignor, etc., held not erroneous where jury was instructed that plaintiff must establish his title to recover.</p> <p>7. Carriers <@=3176 — Carriage oe Goods — Connecting Lines:</p> <p>In action against a carrier for refusing to forward goods via a connecting line, an erroneous statement of route in the billing does not excuse defendant, who knew such statement was erroneous and refused to forward for other reasons.</p> <p>8. Evidence <@=>13S — Admissibility—System.</p> <p>While ordinarily evidence regarding similar wrongs inflicted on others is inadmissible, yet evidence showing a universal "rule or system is admissible.</p> <p>9. Carriers <@=>185(2) — Carriage op Goods— Evidence.</p> <p>In action against a carrier for refusing to deliver goods to a connecting line, evidence that it constantly refused to make such deliveries is admissible, where evidence conflicted regarding defendant’s refusal to deliver and its reasons therefor.</p> <p>10. Carriers <@=>185(1) — Carriage oe Goods —Connecting Lines.</p> <p>Under Rev. St. 1911, arts. 6687-6691, requiring carriers to forward goods via connecting lines provided empty cars be exchanged for the loaded forwarded cars, defendant has burden of showing that its failure to forward was excused by not receiving empty cars.</p> <p>11. Evidence <@=>96(1) — Statutes <@=>279 — Exceptions — Burden of Proof.</p> <p>Ordinarily, a defendant seeking exceptions from liability under a statutory proviso has the burden of pleading and proving such exception.</p> <p>12. Carriers <@=>176— Carriage oe Goods — Connecting Lines.</p> <p>Under Rev. St. 1911, arts. 6687-6691, requiring connecting carriers to forward goods within a reasonable time and authorizing the railroad commission to fix such time, a carrier transferring goods within the time fixed by the commission is not liable, although it might reasonably have done so sooner.</p>

<p>1. Tbespass to Try Title &wkey;>47(3) — Reformation of Instruments.</p> <p>Where a defendant’s title in trespass to try title is dependent upon the correction of mistake, an instrument, upon proper pleading and if the proper parties are before the court, can be reformed.</p> <p>2. Trespass to Try Title <&wkey;47(l) — Reformation of Instruments — Pleading.</p> <p>In trespass to try title, the court can reform an instrument relied upon to support title under a general prayer for equitable relief, where the proper facts are pleaded, although there is no prayer for reformation.</p> <p>3. Reformation of Instruments &wkey;>6 — Sheriffs’ Deeds — Mortgages.</p> <p>Where an improper description is put in a mortgage and foreclosure is had and the mistake is carried into the sheriff’s deed, the sheriff's deed cannot be reformed, but, to get title, the mortgage itself should be reformed and another foreclosure had.</p> <p>On Motion for Rehearing.</p> <p>4. Frauds, Statute of <&wkey;129(9) — Yerbal Mortgage — Foreclosure — Necessity of Possession and Improvements.</p> <p>Where the wrong lot was inserted in a mortgage and the mistake carried through to a sheriff’s deed, the transaction was no more than a verbal transfer, and valuable improvements were necessary in addition to possession to acquire an equitable title to the lot intended to be mortgaged.</p> <p>5. Reformation of Instruments &wkey;>33 — Parties — Mortgages.</p> <p>In trespass to try title wherein defendant’s title depends on a mortgage with an incorrect description carried through to the sheriff’s deed, the mortgagor, or his legal representative, is a necessary party to a reformation of such mortgage.</p> <p>6. Appeal and Error <&wkey;1177(3) — Reversal to Allow Additional Parties — Issues.</p> <p>In trespass to try title, where it incidentally appeared that if proper parties were in the case the defendant might he entitled to affirmative relief by reforming a mortgage through which he was claiming, the judgment will not be reversed for the purpose of allowing defendant for the first time to make application to make additional parties.</p>

<p>1. Election of Remedies &wkey;>10 — ¡Mistake— . Effect>-Trusts.</p> <p>That an attorney was mistaken as to the rights of his clients, in filing a suit to establish a lien on land, will not defeat their rights in an action to enforce a parol trust afterwards properly alleged and proved, but only goes to the weight to be given to the evidence.</p> <p>2. Trusts <&wkey;44(3) — Parol Trusts — Suits-ciency of.Proof — Certainty.</p> <p>In proving a parol trust on land, the question is, not as to the amount of the _ evidence, but does the evidence adduced make it reasonably clear and certain that the verbal trust was made.</p> <p>3. Trusts &wkey;44(l) — Verbal Trusts of Land —Sufficiency of Evidence.</p> <p>Evidence held sufficiently clear and certain to support" the finding of a chancellor that there was a verbal trust on land. '</p> <p>4. Trusts <&wkey;35(2), 43(1) — Verbal Trusts— Parol Evidence.</p> <p>A verbal agreement to pay part of the purchase price of lots, for half interest, made prior to delivery of deed to defendant’s husband alone as grantee, will subject ihe property to the confidence'or trust confided in defendant’s husband, and such agreement can be shown by parol.</p> <p>5. Trusts <&wkey;35(2) — Parol Trusts — Proof.</p> <p>Where it was verbally agreed that title should be taken jointly to lots, it is immaterial, in an action by one to have a trust declared for a portion thereof, that the other had taken a deed in his name alone.</p> <p>6. Limitation of Actions &wkey;>103(2) — Trusts —Repudiation.</p> <p>Limitations do not run against an express trust until the trustee repudiates the trust by word or acts which will bring knowledge thereof to the beneficiary.</p> <p>7. Partition <&wkey;12(3) — Homestead—“Heirs” —Constitutional Law.</p> <p>Const, art. 16, § 52, prohibiting partition of homestead by heirs during lifetime of surviving wife, does not apply where the wife buys the children’s interest, and partition is prayed by a third party against the wife under a claim that the husband was. holding an interest therein in trust; the wife not being an heir.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and .Second Series, Heirs.]</p>

Briggs, Judge. Action by Alva Stubbs and another, by next friend, Mrs. J. E. Gowland, against tbe Southern Surety Company, on a policy issued under the Texas Workmen’s Compensation Act. Judgment for plaintiffs, and defendant appeals.

<p>1. Railroads <S&wkey;344(l) — Operation—Crossing FLAGMAN.</p> <p>Where petition alleged that view of travelers approaching crossing in village was obstructed by cars and temporary depot, it was not error to overrule special exception to the petition charging negligence in failing to have a flagman or watchman at the crossing.</p> <p>2. Appeal and Error <&wkey;742(3) — Scope — Preservations oe Exceptions.</p> <p>Assignment of error to overruling a special exception found in the special answer referred to and made a part of the assignment, but not followed by proposition or statement, the court being asked to adopt the proposition and statement under the previous assignment, neither the exception nor the paragraph appearing in the brief, which made no reference to the transcript or statement of facts where the necessary facts might be found, could not be’ considered.</p> <p>3. Evidence <&wkey;244(10) — Declaration—Authority of Corporate Officer.</p> <p>In an action for death” of wagon driver when struck by a train at crossing in village, under allegation of negligence in failing to have crossing flagman, conversation of division superintendent and trainmaster discussing advisability of putting in warning bell at such crossing was admissible, though it occurred prior to destruction of permanent depot and erection of temporary one, which was in existence when the accident occurred.</p> <p>4. Appeal and Error <&wkey; 1052(5) — Harmless Error — Evidence—Admissibility.</p> <p>In action for death of 60 year old man earning $3,000 a year, error, if any, in permitting his son to testify that he was of a long-lived stock of people was not prejudicial, where the verdict was for only $6,500.</p> <p>5. Railroads <&wkey;350(13) — Injuries to Persons — Crossing Accidents — Contributory Negli’gence — Questions for Jury.</p> <p>Evidence held to present a question for the jury as to contributory negligence of one killed at a railroad crossing.</p> <p>6. Railroads <&wkey;350(5) — Crossing Flagman —Question for Jury.</p> <p>In action for death of wagon driver on crossing in village, under allegations that a temporary depot and a crossing track not ordinarily occupied by cars obstructed the view, it was error to submit the issue of negligence in failing to have a crossing flagman; there being; no statute or ordinance requiring the employment of a flagman.</p> <p>7. Trial &wkey;330(5) — Yerdict — Several Counts.</p> <p>Rule that, if proof is sufficient to show negligence of defendant in any one of three acts charged, judgment for plaintiff should be sustained, does not apply where the case was submitted upon a general charge, the verdict was general, and there was nothing to show upon which charge of negligence the verdict was returned.</p> <p>8. Railroads &wkey;350(8) — Injuries to Persons — Questions for Jury — Warning.</p> <p>In action for death of wagon driver when struck by train at crossing in village, it was for the jury whether the railroad was negligent in having no lookout on the rear car of the train which backed into and upon deceased, and, in view of conflicting evidence, whether the bell of the train was rung.</p> <p>9. Death &wkey;18(3) — Right to Damages — Dependency.</p> <p>The mere fact that a daughter of deceased was a school-teacher and capable of supporting herself does not bar her right to recover for her father’s death if she suffered pecuniary loss by reason thereof.</p>

<p>1. Statutes <&wkey;S1/(!(l) — Special Acts — Public Schools — Notice.</p> <p>Under Const, art. 7, § 3, declaring that the Legislature may provide for the formation of school districts by general or special law, without the local notice required in other cases, of special legislation, and all such school districts whether created by general or by special law may embrace parts of two or more counties, and the Legislature shall be authorized to pass laws for the assessment and collection of taxes in all said districts, Sp. Act April 1, 1913 (Loe. & Sp. Acts 33d Leg. c. 138), creating a special school district and providing for assessments for school purposes, etc., though enacted without the notice required by Oonst. art. 3, §§ 56 and 57, is valid, the authority to provide for the formation of school districts including the power to make effective the creation and formation of such districts.</p> <p>2. Schools and School Districts <&wkey;106— Public Schools — Assessments—Defenses.</p> <p>Though the maintenance tax levied for the newly created district was in part applied to the ■debts of the old district included in the new district, such fact does not warrant taxpayers in refusing to pay the assessment, but at most gives an action for unlawful diversion of the school fund.</p> <p>3. Constitutional Law <&wkey;42 — Public Schools — Assessments—Defenses—Constitutionality of Statute.</p> <p>In an action on an assessment levied by special school district created by special act, a taxpayer may plead the unconstitutionality of the act.</p> <p>4. Statutes <&wkey;76(2) — Special Districts — Yalidity.</p> <p>Sp. Act April 1, 1913 (Sp. & Loc. Acts 33d Leg. c. 138), creating a special school district, and including therein a district already indebted which provided for the repeal of all laws and parts of laws in conflict therewith in so far as they may relate to it, cannot be held invalid as conflicting with a pre-existing general statute (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2856b) declaring that no school district shall be diminished, changed, or abolished while having outstanding against it an authorized debt.</p>

D. Harvey, Judge. Application by C. D. Beadle for the probate of the will of Mamie Reynolds, deceased, opposed by Kitty McCrabb, who appealed from an order of the probate court admitting the will to probate. Thereafter Mary Wilkens and another intervened as contestants. From a judgment denying the will probate, proponent appeals.

<p>1. Appeal and Error <§=»719(1) — Plea of Privilege — Assignment oe Error.</p> <p>Where neither the assignment of error nor the proposition contended that a defendant failed to establish the truth of his plea of privilege, or assailed the verdict for defendant on the ground that the evidence was insufficient to support it, no question was presented on ap^ peal.</p> <p>2. Appeal and Error <3=o1005(3) — Verdict— Plea of Privilege.</p> <p>Where the evidence upon a plea of privilege was contradictory, its determination was for the jury, which has the exclusive right to pass upon the weight of the testimony and the-credibility of the witnesses; and where the trial judge refused to set the verdict aside it is the duty of the Court of Civil Appeals to affirm: the judgment.</p>

Suits by E. W. Bishop against John C. Greek, guardian of W. W. Greek, Jr., and by W. W. Greek, Jr., against E. W. Bishop. The causes were consolidated, and judgment rendered in favor of W. W. Greek, Jr., and against E. W. Bishop, and Bishop appeals.

<p>■Criminal Law <§=51094 — Absence of Statement of Eact — Extent of Review.</p> <p>Where there is neither statement of facts, nor bills of exception, and the points raised cannot be considered in the absence thereof, the judgment of conviction will be affirmed.</p>

<p>Appeal from District Court, Bowie County; H. E. O’Neal, Judge.</p> <p>Laura Newton was convicted of theft from the person, and she appeals.</p>

<p>Appeal from Kaufman County Court; J. P. Coon, Judge.</p> <p>Charley Baldwin was convicted of unlawfully carrying a pistol, and appeals.</p>

<p>1. Railroads <§=>440 — Injuries to Animals —Pleading—Allegations—Proof and Variance.</p> <p>Where plaintiff alleged that the horse was killed by the negligent operation of defendant’s train, he could not recover, in the absence of evidence showing such negligence.</p> <p>2. Railroads <®=»439 (1) — Injuries to Animals — Pleading—General Allegations— Facts Particularly Within Knowledge oe Adverse Party.</p> <p>Where plaintiff had to rely upon circumstantial evidence to establish the killing of the horse, and it would be impossible for Mm to allege the specific act done or omitted constituting negligence of defendant railway, he could rely upon a general allegation of negligence; it being the rule that, where acts are particularly within the knowledge of defendant and not within the knowledge of plaintiff,, plaintiff can rely upon a general allegation of negligence.</p> <p>3. Railroads <§=^452 —Killing or Stock — Attorney's Fees—Rroof or Value.</p> <p>In an action for the value of a horse killed by a locomotive or cars of defendant, plaintiff could not recover attorney’s fees, without evidence as to what would be a reasonable attorney’s fee under the statute.</p> <p>4. Damages «£^>174(2) — Pbooe — Market Value.</p> <p>In an action for the value of a horse killed by defendant’s locomotive or cars, proof as to the value of the horse should be confined to its market value. ,</p>

Error from District Court, Harris County ; C. E. Ashe, Judge. Action by N. D. Jamison and others against J. B. Keefer and others. Judgment for plaintiffs, and certain defendants bring error.

<p>Railroads <£=v440 — Injury to Animals — Variance — Joint Ownership.</p> <p>Where plaintiff sued as sole owner of certain cows to recover for their death, and the proof was that he was not such owner, but was a joint owner, he could not recover; as one joint owner had no right to maintain an action and recover .the value of the cows.</p>

<p>1. Caebiees @=3135 — Injubies to Apples in Tkansit Measube op Damages.</p> <p>In an action for damage to a carload of apples in transit, the proper measure of damages, in the absence of pleading- or evidence authorizing the recovery of special damages, is the difference in .the market value of the apples in the condition in which they arrived, and their market value at the time and in the condition they would have arrived but for negligence in transportation, and if there was no market value, then the reasonable value of the apples would be the basis of estimating the damages.</p> <p>2. Judgment @=3256(2) — Confoemity to Special Issue.</p> <p>If what plaintiff would have realized from the sale of his apples damaged in transit was the proper measure of damages, no judgment could have been entered on the jury’s answer to an issue as to what plaintiff would have realized, because the expense which should have been deducted from the amount was unknown.</p> <p>3. Caebiees @=3135 — Injubies to Apples in Tbansit — Damages—Maeket Value at Retail.</p> <p>Where plaintiff did not receive a carload of apples in their damaged or worthless condition, so that the expense of retailing them was not incurred, the market value of the apples,' if sold at retail, was not the proper measure of recovery from the railroad fpr injuring the shipment.</p> <p>4. Caeeiees @=3122 — Duty op Consignee to Accept Injubed Shipment.</p> <p>If a Carload of apples were not rendered practically ■ worthless in transit, it was the consignee’s duty to have accepted them on arrival at destination, and if his refusal to accept them was wrongful, he should suffer the loss incident to the further holding of the apples until they could be legally disposed of by the railway, but the consignee could still recover as damages the difference in the value of the apples in the con-, dition in which they should have arrived, and’ their value in their condition at the time of arrival and tender by the road.</p> <p>5. Evidence @=391, 96 (1) — Bueden on Plain - tipp and Dependant.</p> <p>The burden was on plaintiff to establish the issues on which he relied for recovery, and on defendant to establish the affirmative defenses relied on to defeat recovery.</p> <p>6. Tbial @=3242 — Confusing Insteuction.</p> <p>In an action for damage to apples in transit, the instruction that the burden of proof was on plaintiff to prove his case by a preponderance of the evidence, and on defendants to prove their defense by the preponderance of the evidence,' was apt to confuse the jury, as it might deprive defendant of the benefit of its general and special denials, which did not constitute affirmative matters of defense as to which the burden of proof is on defendant, and might lead the jury to decide that the burden as to plaintiff’s right to recover would shift on his making a prima facie case by his own evidence.</p> <p>7. Gabeiebs @=>124½ — Oabkiage op Fbeight — Injuries in Tbansit — Offsetting FKEIGnT Chabges.</p> <p>In an action against a railroad for damages to a carload of apples in transit, the railway can recover its unpaid freight, and if plaintiff should recover damages, such recovery may be set off by the amount due as freight charges, with judgment against the party owing the other after such set-off-.</p>

<p>Railroads <⅜=>440 — Injuries to Animals— Pleading.</p> <p>Where a railroad has its right of way properly fenced, it is necessary, to admit proof that hogs were killed on the track, to allege' that the railroad was negligent.</p>

<p>1. Justices of the Peace <§=>159(10) — Ab-peal — Bond—Abandonment.</p> <p>Where the attorney for the appellant obtained from the justice the appeal bond, together with the original papers and transcript, and failed to return them to the justice until six terms of the-county court had passed, the appeal from the justice’s judgment will be treated as abandoned, even though it is the justice’s duty to file such appeal bond, etc., in the county court, hence execution may be issued on the justice’s judgment.</p> <p>2. Justices oe the Peace <§=>174(6), 176(1) — . Trial de Novo on Appeal — Reception oe Evidence — Amendment oe Pleading.</p> <p>Where the District Court on appeal from a justice of the peace heard evidence and took the case under advisement, and later advised the attorneys of his decision, and that judgment would be entered on a certain date, a party was properly denied leave at the date fixed for rendition of the judgment to file an amendment and offer additional evidence.</p>

<p>Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.</p> <p>Action between Celso Arispe and others and- Forrest Clark and others. From the judgment, Arispe and others appeal.'</p>

<p>Appeal-- from Bee County Court; Chas. Troy, Judge.</p> <p>Action between A. L. Stocking and C. F. Laas. From the judgment, Stocking appeals.</p>

<p>Appeal from Hale County Court; Charles Clements, Judge.</p> <p>Action by Ross Harp against the Panhandle & Santa Fé Railway Company and others. From a judgment for plaintiff, defendants appeal.</p>

<p>. Appeal from Milam County Court; John Watson, Judge.</p> <p>Condemnation proceedings by the Texas Power & Light Company against Chas. Moer-be and wife. Defendants, being dissatisfied with the damages awarded by the commissioners, appealed to the county court, and, from the decision there rendered, plaintiff appeals.</p>

<p>Appeal from District Court, Angelina County; L. D. Guinn, Judge.</p> <p>Suit by Jessie Runnels and others against David L. Gallup. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Suit by E. A. Wallace, trustee, and others, against T. H. Bass. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Insurance i®=3668(5) — Material Provisions in Policy — Questions oe Pact.</p> <p>Under Rev. St. 1911, art. 4947, providing that false statements in contracts of insurance will not constitute a defense unless material, and a provision in a fire policy that it would be void if the insured was not the sole unconditional owner, it was a question of fact whether such provision in the policy was material where the insured was only a mortgagee.</p> <p>2. Appeal and Error <⅞=>1010(1) — Review— Findings — 'Weight oe Evidence.</p> <p>Where there is sufficient evidence in the record to support a finding of fact by the court, the appellate court cannot disturb it.</p> <p>3. Insurance tg^378(l) — Estoppel—Knowl-edge oe Agent.</p> <p>Where an insurance agent at the time of issuing or renewing a policy knew and had in mind the fact that the insured was not the owner, hut only a mortgagee, of the insured property, the company is estopped to deny that it waived a provision in the policy that the policy would be void if insured was not the unconditional owner.</p>

<p>1. Cabriebs @=^11 — Baggage—Samples oe Traveling Salesmen as Baggage — “Freight’ ‘ ‘Property. ’ ’</p> <p>Under the act creating the Railroad Commission, delegating to it power to classify and subdivide all freight and property that may be transported over railroads, and despite the statute providing that each railroad passenger shall have an allowance of baggage not to exceed 100 pounds, it was within the power of the commission to classify and subdivide baggage, and to fix the articles included, determining that baggage shall consist of wearing apparel, etc., and articles carried as samples by traveling salesmen, since if baggage does not come within the term “freight,” it comes within the term “property.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Freight; Property.]</p> <p>2. Carriers <§=3397½ — Carriage of Baggage —Liability for Loss.</p> <p>Where a passenger’s suit case, containing baggage, as defined by the Railroad Commission, was delivered to a railroad for transportation, but the articles of baggage were not found in it when the suit case was returned to the passenger, the road was liable for their value.</p>

Dannebaum, Judge. Suit by J. M. West and R. C. Duff against William Carlisle, who brought a cross-action. From judgment for defendant on his cross-action, plaintiffs appeal.

Error from District Court, McLennan CQunty; H. M. Richey, Special Judge. Action by Mrs. May Collins and others against James A. Baker, receiver of the International & Great Northern Railway Company. To review a judgment for plaintiffs, defendant brings error.

<p>1. Judgment <®=3256(7) — Conformity to Verdict — Interest.</p> <p>In an action for negligence in transporting cattle, interest was properly included in the judgment, though -the special verdict contained no finding respecting interest.</p> <p>2. Appeal and Error <®=oli71(4) — Trivial Errors — Amount op Recovery — Interest.</p> <p>Where plaintiff prayed for interest from April 1st, and the court allowed interest from March 31st, the error involved such a trivial amount that the maxim, “De minimis non curat lex,” applied.</p> <p>3. Costs 3=238(2) — On Appeal — Modification op Judgment.</p> <p>The correction of the judgment with respect to the amount of interest allowed would not prevent the taxing of the costs of appeal against appellant who failed to seek a correction in the trial court.</p> <p>4. Appeal and Error 3=1040(11) — Harmless Error — Overruling Exception to Petition.</p> <p>In an action for negligence in transporting a. shipment of cattle, the overruling of a special exception to an allegation not averring any fact, but stating the legal duties devolving upon the carriers by reason of their undertaking to transport the cattle, could not have harmed defendants.</p> <p>5. Appeal and Error 3=1062(1) — Trial <@= 352(5) — .Special Issues — Assumption op Facts — Harmless Error.</p> <p>In an action for negligence in transporting cattle, the court’s charge preceding the special issues defined negligence, and positively told the jury that plaintiff could not recover for an injury or damage, unless occasioned by defendant’s negligence. . A special issue was submitted as to whether defendants were guilty of negligence, and this issue was singled out and emphasized by an instruction not to answer any further questions if they answered such issue “No.” Issues were also submitted as to what the market value of cattle which died would have been at the time of the arrival of the shipment had they been transported with ordinary eare. Meld that, while objections to these last-mentioned issues should have been sustained because technically they assumed that the cattle were not transported with ordinary care, the wording of the issues was harmless.</p>

<p>1. Deem @=338(1) — Description — Patent Ambiguity.</p> <p>A deed describing the land as “lying and being situated in Tyler county, said state, on the waters of Billums creek; beginning at the S. W. corner of William Pool land; thence east 1,220 varas to the Lewis league; thence south 1,050 varas to the beginning, containing 226 acres, more or less” — was not void for patent ambiguity, it showing an obvious omission of two calls which might be supplied with reasonable certainty by taking the two lines as given, recurring to the beginning point, running south a distance equal in length, and closing this third line and second line by a straight line, thus constructing a parallelogram containing the acreage called for.</p> <p>2. Evidence <§⅜3451 — Parol Evidence — Un-CEETAINTY IN DESCRIPTION.</p> <p>Where the defect in the description of a deed is patent on the face of the instrument and is such that the instrument does not convey any land described, the deed is void, and extrinsic proof cannot be resorted to make the description certain.</p> <p>3. Evidence <⅜=>452 — Parol Evidence — Inadequate Description.</p> <p>Where the description of a deed omitted two calls, but did not show on its face that the land could not be located by extrinsic proof, the court properly admitted extrinsic evidence in support of the description.</p> <p>4.. Acknowledgment ¡s=^3 — Certificate— Identity — Knowledge of Notary — Evidence.</p> <p>The court properly admitted in evidence a deed from husband and wife, the notary’s certificate to the wife’s acknowledgment failing to state that she was known to him, or that proof was made of her identity; the certificate in question having been made May 2, 1879, before the statute requiring certificates to state that the person acknowledging was known to the officer took effect.</p>

<p>Appeal from Milam County Court; John Watson, Judge.</p> <p>Suit between the Herrick Hardware Company and W. B. Beard and another. The former appeals.</p>

<p>1. Evidence <§=>10(1) — Judicial Notice — Geographical Facts^-Policy op Spanish and Mexican Governments.</p> <p>The court judicially knows that the land in controversy in an action in trespass to try title, in Webb county, is in a dry and semiarid portion of the state, and that it was the policy of the Spanish and Mexican governments, in making grants, to give a front, if possible, on some stream or river.</p> <p>2. Navigable Waters <®=>44(3) — Land Added by Accretion — Title.</p> <p>Where the receding- of a river and the consequent accretion of land are gradual and slow, the added land becomes a part of the adjoining land.</p> <p>3. Boundaries <§=>14 — Designation op Homestead — Call oe Description as on River.</p> <p>Where a written designation of homestead gaye one call of the description as on the bank of á river, the designation called for the river wherever it was at the time, and the homesteader’s grantee of the remainder of the homesteader’s land obtained title only as to what remained after such designation.</p> <p>4. Boundaries <®=>3(3) — Conteol of Coubse and Distance by Calls fob Natural Objects.</p> <p>Course and distance in a survey of land yield to calls for natural and ascertained objects, such as a river, a spring, or even a marked line.</p> <p>5. Evidence <©=>390(3) — 'Varying Deed — Con-STBUCTION OF SURVEY OF HOMESTEAD BY ' Source of Title.</p> <p>In an action of trespass to try title, construction of the office survey of his homestead by the common source of title was properly ignored by the court.</p>

<p>Appeal and Error <§=>504(5) — Exceptions, Bill op <©=>43(2) — Time por Filing Bills op Exceptions.</p> <p>Statutes prescribing the time for filing bills of exception and statements of fact are mandatory, and it is no defense to motion to strike that the trial court and the attorneys were mistaken as to the time, or that the appellant was misled ,by the opposing counsel.</p>

<p>1. Criminal Law <©=>704 — Right to Make Opening Statement.</p> <p>Under Code Cr. Proc. 1911, art. 717, subd. 6, providing that the nature of the defense relied upon shall be stated by counsel for the defendant and what are the facts expected to be proved in their support, there rests in the court a judicial discretion to control the opening statement and limit it to its proper scope; but when accused in a timely manner seeks to avail himself of the privilege of making an opening statement, and does not seek to abuse the privilege by commenting upon improper or inadmissible facts, converting it into argument or otherwise misusing such privilege, it should be accorded, and its denial cannot be sanctioned.</p> <p>2. Criminal Law <©=370A — Right to Make Opening Statement.</p> <p>That defendant’s motion for leave to make an opening statement was accompanied by a written, memorandum outlining his proposed statement did not militate against his right to make it, but, on the contrary, was appropriate in advising the trial court of its scope.</p> <p>3. Homicide <©=>269 — Questions for Jury-Intent and Character of Weapon Used— “Deadly Weapon.”</p> <p>Under Pen. Code 1911, art. 1147, providing that the instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the offender, and that, if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears, a pocketknife, with which defendant stabbed deceased, was not per se a “deadly weapon,” and its character as such, and the intent of accused in using it, were questions of fact.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Deadly Weapon.]’</p> <p>4. Homicide <©=>307(2) — Instructions — Aggravated Assault.</p> <p>Where a homicide apparently took place .in a sudden quarrel, and defendant claimed that he was defending his life against three assailants, and deceased was stabbed in two places with a pocketknife, one wound not being fatal and the other severing an artery, and there was evidence that both wounds were made from a position facing deceased, whom defendant claimed was ' attacking him with a chair, the court should have charged on the law of aggravated assault.</p> <p>5. Witnesses <©=3372(2) — Impeachment of Witness — Cross-Examination.</p> <p>Cross-examination of an important witness for defendant, to show that he had tried to get two of the state’s witnesses drunk and thereby to discredit them, was within the rule permitting cross-examination of an adverse witness, to show his bias and mental attitude and interest, and was not a violation of the rule excluding collateral matters not shown to have taken place with the knowledge of defendant,.</p> <p>6. Criminal Law <©=>404(4) — Demonstrative Evidence — Clothing Worn by Deceased.</p> <p>. On a trial for homicide, deceased’s bloody clothing is admissible, where same tends to solve some controverted issue, but not otherwise.</p> <p>7. Criminal Law <©=3404(4) — Demonstrative Evidence — Clothing Worn by Deceased.</p> <p>Where there was a controversy as to whether a homicide was committed on the gallery of a house, or in one of the rooms of the house, and there was evidence that there was little or no blood in the room in which the state claimed the stabbing took place, deceased’s bloody clothing was admissible to meet the inference, favorable to defendant, to be drawn from this evidence, by showing that the clothes absorbed the blood.</p> <p>8.Criminal Law <£=⅛715 — Argument — Exhibiting Bloody Clothing.</p> <p>Where deceased’s bloody clothing is admitted in evidence on a trial for homicide, same should not be used in the argument to inflame the minds of the jury.</p>

<p>1. Criminal Law ©=1091(4) — Bill ox Exceptions— Suxetciency — Admission ox Evidence.</p> <p>A bill of exceptions reciting that defendant objected to the question and answer as to what prosecuting witness said about who cut him, for the reason that the statement was not made in defendant’s presence and not acquiesced in by him, was too indefinite, where it did not show the circumstances under which the statement was made, so as to show that it was inadmissible as part of the res gestae.</p> <p>2. Criminal Law ©=1091(3) — Bill ox Exceptions— Suxetoiency.</p> <p>A bill of exceptions reciting that the state asked defendant upon cross-examination if it was not a fact that he had tended bar in a saloon, to which question and answer defendant objected because it was irrelevant, immaterial, and prejudicial, he not having put his reputation in issue, was not sufficiently specific, where it did not show the absence of circumstances making the testimony legitimate.</p> <p>3. Criminal Law ©=31091(4) — Bill ox Exceptions — Suxeioiencx.</p> <p>General exceptions for irrelevancy and immateriality of testimony should not be sustained, where the testimony is admissible for some purpose.</p> <p>4. Criminal Law ©=>1091(3) — Bill ox Exceptions— Suxxiciency.</p> <p>A bill of exceptions reciting that defendant objected to being asked on cross-examination how many times he had been charged with theft, on the ground that there had been no direct examination with reference thereto, and that the testimony was immaterial, irrelevant, and calculated to prejudice his rights, was not sufficiently specific; the grounds of objection not being verified by the court or stated as facts.</p>

<p>Appeal from District Court, Coryell County ; J. H. Arnold, Judge.</p> <p>Alfred Hollingsworth was "convicted of incest, and he appeals.</p>

<p>L Criminal Law <S=>564(3) — Venue—Proof.</p> <p>Yenue in a criminal action may be shown by circumstantial evidence, and need not be proven beyond a reasonable doubt.</p> <p>2. Criminal Law <§=>1117 — Appeal—Venue op Action — Presumption.</p> <p>Under Code Cr. Proc. 1911, art. 938, providing that on appeal venue will be presumed to have been proven, unless made an issue in the court below, to review the question as to whether venue was proved, the bills of exceptions must certify either that venue was not proved, or set out all the evidence bearing on the issue.</p> <p>3. Criminal Law <§=>564(1) — Venue—Proop.</p> <p>In a prosecution for perjury before the grand jury, evidence held sufficient to establish the fact that the crime had been committed in the county charged.</p> <p>4. Perjury <§=>33(1) — Proof— Sufficiency.</p> <p>Evidence held sufficient to support a conviction of perjury.</p> <p>5. Witnesses <§=>337(6) — Credibility—Cross-Examination.</p> <p>In a prosecution for perjury, it was admissible, as affecting credibility, to ask defendant on cross-examination if he had been charged with seduction.</p> <p>6. Criminal Law <§=>720(3) — Comment by Prosecuting Attorney — Evidence.</p> <p>In a prosecution for perjury, evidence that defendant got a certain female drunk on whisky which he was charged with having testified falsely to have bought from a certain person, having told the girl that he bought it one place but for her to say he got it somewhere else, being part of the res gestae and admitted without objection, it was proper for the district attorney to comment thereon.</p>

F. Mullally, Judge. Suit by M. Coppard and others against W. T. Gardner, Sheriff, and others. Judgment for plaintiff as against certain defendants and in favor of defendant Gardner. Exceptions by F. Yandervoort, the Memphis Coffin Company, and A. P. Johnson sustained. Plaintiff and cross-defendants Kell Milling Company, J. E. Doran, and J. A. Birdsong appeal. Affirmed as between plaintiff and defendant Gardner.

<p>Appeal .from District Court, Cameron County; W. B. Hopkins, Judge.</p> <p>Action by Jack Sprague against Wells Fargo & Co. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from McLennan County Court; Geo. N. Denton, Judge.</p> <p>Suit by Gip Howard and wife against the Provident National Bank of Waco. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Courts i&wkey;97(5) — Former Decisions as Authorities — Decisions oe Federal Courts.</p> <p>The decisions of the federal courts arc controlling on a state court in determining whether a federal statute had taken effect at the time an interstate shipment was made.</p> <p>2. Statutes <s&wkey;255 — Time oe Taking Effect.</p> <p>The Cummins amendment to the Interstate Commerce Act approved by the President March 4, 1915 (Act Cong. March 4, 1915. c. 176. 38 Stnt. 1196 [U. S. Comp. St. 1916, §§ 8592, 8604a]), and which by the terms of section 2 was to take effect and bo in force from 90 days after its passage, was in effect when a shipment was made on June 2, 1915, as the date of the passage of the act must be included in computing the time when the act became operative.</p> <p>3. Trial &wkey;>202 — Instructions — Preparation — Duty of Court.</p> <p>It was not improper for the court to adopt as its main charge a charge prepared by plaintiff’s counsel.</p> <p>4. Trial <&wkey;263 — Requested Instructions— Presentation and Allowance.</p> <p>That special charges requested by plaintiff were prepared, filed, and marked, “Given,” on the evening before they were read to the jury was not error, where defendants wore afforded ample opportunity to file objections before the charges were read. '</p> <p>5. Appeal and Error <&wkey;662(3) — Bill of Exceptions — Conclusiveness.</p> <p>Though the bill of exceptions showed that after the jury had retired to deliberate they returned into court and asked a further charge, and that the court called their attention to the written charge and made some explanation in answer to the jury’s question, the court’s statement therein that he gave no additional instructions was controlling.</p>

<p>1. Appeal and Error <&wkey;499(4) — -Review-Refusal of Special Requested Charge— Statute.</p> <p>Under Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1973, 2061). declaring that either party may present, in writing, such instructions as he desires, which the judge shall give or refuse, provided they shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the main charge is given for examination, and declaring that the ruling of the court in giving, refusing, or qualifying instructions shall be regarded as approved, unless excepted to as provided, the refusal of a special requested charge will not be reviewed on appeal where the record fails to show that it was presented to opposing counsel for examination and objection as by the statutes required.</p> <p>2. Caeeieks <&wkey;321(14) — Carriage of Passengers — Injuries—Instruction.</p> <p>The charge that the jury would not be warranted in returning a verdict for defendant railway, alleged to have injured plaintiff’s wife, unless they believed that the railway’s servants stopped the train at the wife’s destination a reasonable and sufficient length of time for her to alight safely, unless they also believed that the servants in making, a second stop did not negligently stop the train suddenly with a jerk, and unless they believed that the servants, in carrying plaintiff’s wife past her destination, and forcing her-to alight at the place and in the manner and with the means furnished, were not guilty of negligence as negligence had been defined, was not erroneous as requiring the jury to believe, before they could find for plaintiff, that the railway’s servants were guilty of negligence both in the manner of stopping the train where plaintiff’s wife alighted and in requiring her to take a long and dangerous step in alighting, being an effort to group the facts under which verdict might be returned for the railroad, and, if error at all, not being calculated to cause rendition of an improper verdict and judgment.</p> <p>3. Trial <&wkey;296(3) — Harmless Error —Instructions.</p> <p>"Where the issues of negligence on the part of defendant railway’s servants with respect to the manner in which the train was stopped where plaintiff’s wife alighted, and with respect to the place, manner, and means furnished for the wife to alight, were submitted disjunctively, and the jury distinctly told that if they should find either of the issues for the plaintiff to return vfe'rdict ior lnm; the jury could not have been misled to plaintiff’s prejudice by another paragraph of the charge submitting such issues conjunctively.</p> <p>4. Trial ⅞⅛3295(1) — Instructions— Construction Together.</p> <p>The charge of the court should be considered and construed as a whole.</p> <p>5. Appeal and Erkor <⅜=»1027 — Harmless Error — Reversal.</p> <p>Error not calculated to cause and which did not probably cause rendition of an improper judgment does not authorize reversal.</p>

A..Nabers, Judge. Action by S. H. Crossley and others, as trustees of the Methodist Episcopal Church South at 'Chillicothe, Texas, as successors of O. H. Dodson and others, former trustees, against A. M. Garrett and others, wherein the Decatur Cornice & Roofing Company of Decatur, Alabama, intervened. From a judgment for plaintiffs, defendants appeal.

<p>Appeal from District Court, Navarro County ; H. B. Daviss, Judge.</p> <p>Suit by É’. W. Munsey and others against the Marnet Oil & Gas Company and others. From judgment for plaintiffs, they appeal.</p>

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by Carlotta Mendez against the San Antonio Traction Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Raileoads &wkey;>424 — Fencing Right of Wat —Animals—Negligence.</p> <p>In a city where there is a valid ordinance prohibiting stock from running at large, the owner of stock killed on a railroad track must prove negligence, although the railroad has not fenced its right of way, but in localities where there is no such law the railroads cannot defend, where the track is unfenced.</p>

<p>1. Time <&wkey;8—“Day.”</p> <p>As a general rule, the term “day,” as used in legislative enactments, or in contracts, means the whole 24 hours, that is, from midnight to midnight; particularly in reference to official services except where it is in some way restricted or limited.</p> <p>[Ed. Note.—Por other definitions, see Words and Phrases, First and Second Series, Day.]</p> <p>2. Prisons <&wkey;18(S)—Ghar&e of Sheriff foe Prisoners—Statute—“Day.’ ’</p> <p>Under Acts 32d Leg. c. 64, allowing the sheriff for each prisoner for each day such amount as may be fixed by the commissioners’ court, if reasonably sufficient as compensation, not less than 40 cents per day for each prisoner, nor more than 50 cents, the term “day” means days and fractions thereof, so that the sheriff is entitled to full compensation for a prisoner under his contract with the commissioners’ court, though the prisoner is in custody, only a part of a day.</p>

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Suit by the Commonwealth Bank & Trust Company of San Antonio against Henry Limburger, Jr. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Suit by H. A. Paine and another against the Hart-Parr Company. judgment fof plaintiffs, and defendant appeals.</p>

<p>Appeal from Taylor County Court; E. M. Overshiner, Judge.</p> <p>Action by the First State Bank & Trust Company of Abilene and others against John Sayles and others. Proceeding by defendants to vacate the judgment. From an order denying the motion, defendants appeal.</p>

P. Young, Judge. Action by the Dublin Fruit Company against R. P. Neely and others, begun in justice’s court and appealed to county court. There was a judgment there for plaintiff, and defendant Neely appeals.

<p>1. Appeal and Error <⅜=>1215 — Proceedings after Remand — Decision of Appellate Court — Instruction.</p> <p>Where an appellate court has rendered _ a decision and remanded a cause, the district court should confine its trial to the issues remanded, and, the others being res judicata, it was error not to instruct the jury to find in accordance with the opinion.</p> <p>2. Railroads «©=>9(2) — Commissioners—Construction of Judgments.</p> <p>A judgment setting aside an order of the Board of Railroad Commissioners without prejudice to a former order or the right to make such future orders as it may deem just and reasonable held not to foreclose the board from proceeding under a subsequent order providing an apportionment of costs of building a union depot, differently from order set aside.</p> <p>3. Railroads ®=58 — Location of Depot — Orders of Commission — Evidence — Instruction.</p> <p>Where railroads objected to a union depot location fixed by the Railroad Commission, it devolved upon them to show a more suitable and less costly site, and, failing to do so, the issue was not raised by the evidence, and the court should have so instructed the jury.</p> <p>4. Railroads <S=58 — Location of Depot-Apportionment of Costs.</p> <p>The apportionment between three railroads of the costs of a union depot upon the basis of user is proper.</p>

<p>Appeal from El Paso County Court; E. B. McClintock, Judge.</p> <p>Action by A. L. Thornton and wife against R. L. Daniel and others. Judgment for defendants, and plaintiffs appeal.</p>

Error from District Court, Harris County; Wm. Masterson, Judge. Suit by the Christopher & Simpson Iron Works Company against Henry S. Fox, Jr., and others, as owners, and against the ¿Etna Engineering & Construction Company, the National Surety Company, and J. B. Cochran, to enforce a subcontractor’s lien. Judgment for plaintiff, and the defendants, other than the Construction Company, bring error.

E. Ashe, Judge. Action by W. R. Cramer against J. M. Frost & Sons, a firm composed of J. M. Frost, J. M. Frost, Jr., and H. G. Frost, in which R. E. Brooks intervenes. Judgment for plaintiff against J. M. Frost & Sons, and in favor of plaintiff, and J. M. Frost & Sons against intervener, and defendants J. M. Frost & Sons and the intervener appeal.

<p>Appeal from District Court, Bell County; F. M. Spann, Judge.</p> <p>Action by M. O. H. Park, trustee in bank-rutcy, against, the South Bend Chilled Plow Company. Demurrer to petition sustained, judgment thereon, and plaintiff appeals.</p>

S. Prince, Judge. Action between Mrs. Annie B. Hassell and others and Mrs. M. E. Rose and others. Judgment for the latter, and the former appeal.

<p>Appeal from District Court, Bell County; E. M. Spann, Judge.</p> <p>Suit by M. C. H. Park, trustee, against the John Deere Plow Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Tbial <@=3397(4) — Findings of Fact — Evidence.</p> <p>Where it is assigned as error that the court did not make certain findings of fact, and such assignments involve facts contradictory to findings made, such assignments will be overruled where the findings made are supported by the evidence.</p> <p>2. Appeal and Error <@=>219(2) — Findings of Fact — Necessity for Request.</p> <p>Where no request is made for findings on a . certain issue, error cannot be assigned for failure to make findings on such issue.</p> <p>3. Dedication <@=339 — Estoppel — Statements and Declarations.</p> <p>An agent for sale of town-site lots is not estopped to claim ownership by purchase of a certain lot by statements that such lot was public property, where no one was induced to purchase lots thereby.</p>

Calhoun, Judge. Action by Herman Becker against Frank P. Thelander and wife and another. Judgment for plaintiff, and defendants Thelander and wife appeal.

<p>Appeal from District Court, Hall County; Hon. J. A. Nabers, Judge.</p> <p>Action by A. D'. Crow against J. W. Phillips and another. Prom a judgment for plaintiff, defendants appeal.</p>

<p>1. Libel and Slander @=38(3) — “Privileged Publication” — Pleadings in Civil Actions.</p> <p>Pleadings in civil actions are “privileged publications” and.do not support action for libel.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, First and Second Series, Privileged Publication.]</p> <p>2. Statutes @=236 — Construction—Remedial Statutes.</p> <p>Remedial statutes will be liberally construed to accomplish the legislative purpose, especially as Rev. St. 1911, Final Title, § 3, expressly so provides.</p> <p>3. Libel and Slander @=38 (3) — Defense — Statutes — Revision.</p> <p>Although Acts 27th Leg. c. 26, defining “libel,” giving newspapers certain defenses, and preserving existing defenses, was incorporated in Rev. St. 1911 without the phrase about existing defenses, such revision did not destroy the previously existing defense that civil pleadings are privileged.</p>

L. Hawkins, Judge. Action by Mrs. M. E. Fears, prosecuted after her death by T. P. Whipple, executor, against the- Southern Traction Company. Judgment for plaintiff, and defendant appeals.

<p>1. Appeal and Error <©=5725(2) — Assignments op Error — Sufficiency.</p> <p>An assignment that the trial court erred in its findings of fact presents nothing for review, where the case was dismissed upon demurrer.</p> <p>2. Appeal and Error <©=>719(4) — Necessity op Assignments — Fundamental Error.</p> <p>Sustaining a demurrer to a petition presents fundamental error authorizing review, without assignment of error, where the judgment recites the ruling, the exception thereto, and notice of appeal.</p> <p>3. Telegraphs and Telephones <S=>56(2)— Persons Entitled to Damages.</p> <p>A telegraph company is liable for erroneously duplicating a message to plaintiff sender’s agent, although there is no direct contractual relationship between the sender and the company as to the unauthorized message delivered."</p> <p>4. Telegraphs and Telephones <©=>56(2) — , Liability.</p> <p>Defendant telegraph company which erroneously duplicated plaintiff’s message to his brokers, causing them to use his standing deposit in closing his account, etc., cannot avoid liability upon ground that it is responsible only to the brokers.</p> <p>5. Telegraphs and Telephones <§=>65(2)— Messages — Petition.</p> <p>Allegations that defendant telegraph company erroneously duplicated a message to plaintiff’s brokers, causing them to close his account, and that plaintiff when notified of such action could not countermand it because of deranged wire service, etc., do not affirmatively show that plaintiff ratified the brokers’ action or failed to minimize his losses.</p>

<p>Appeal from District Court, Leon County; S. W. Dean, Judge.</p> <p>Action by A. D. Dickinson, Jr., against L. Comstock and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Action by Julia C. Humphrey and husband against the National Fire Insurance Company of Hartford, Conn. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Contracts <®^211 —Time as of Essence.</p> <p>Where plaintiff agreed to begin the work at once and complete the repair of the bridge within 100 days, time was of the essence of the contract, and there could be no recovery thereunder in the absence of pleading or proof showing that plaintiff had been released from its provisions.</p> <p>2. Work and Labor <®=>14(3) — Failure to Perform — Quantum Meruit. ■</p> <p>Where plaintiff did not repair bridge within time provided by contract, if he could recover at all for what he paid for materials, it would have to be upon a quantum meruit.</p> <p>3. Limitation of Actions <@=»49(5) — Money Paid.</p> <p>Where, under contract providing that plaintiff should purchase and defendant pay for the materials, plaintiff paid for the materials, the materials became his property, and a suit for money paid therefor was barred, where not brought within two years subsequent to the date of the purchase and appropriation by defendant.</p>

<p>1. Pleading <®=^258(1) — Answer — Amendment.</p> <p>Striking defendant railroad’s amended answer filed immediately before the trial, which asserted that petition alleged a wrong measure of damages for mules killed, held erroneous, since plaintiff could not have been taken by surprise or the trial delayed.</p> <p>2. Damages <§=5>113 — -Killing Mules — Measure.</p> <p>In action against a railroad for negligently killing mules, the measure of damages is their market, and not their reasonable, value.</p> <p>3. Railroads <®=>482(1) — Ownership op Mules — Supficiency op Evidence.</p> <p>Testimony of plaintiff and another witness held to sustain a verdict that plaintiff owned the mules killed by defendant railroad, although both witnesses had made contrary statements before the trial.</p> <p>4. Trial @=^352(5) — Special Issues.</p> <p>Submitting a special issue whether defendant railroad negligently permitted its fence to be removed, and negligently failed to prevent stock coming upon its right of way, held erroneous because embracing distinct issues capable of different answers.</p> <p>5. Trial <S=352(5) — Special Issues.</p> <p>Submitting a special issue whether defendant railroad negligently permitted its right of way to be unfenced and negligently ran down plaintiff’s mules, held erroneous because embracing distinct issues admitting different answers.</p> <p>6. Trial <s=»352(5) — Special Issues.</p> <p>A special issue of fact submitted for a yes or no answer should not embrace distinct questions capable of different answers.</p>

Error from District Court, San Jacinto County; L. B. Hightower, Sr., Judge. Suit by A. G Stevens against the Liberty Hardwood Lumber Company. Judgment for plaintiff, new trial denied, and defendant brings error.

<p>1. Insurance <§=>128(1) —< Life Insurance —“John Doe” Application — Effect.</p> <p>Where plaintiff made a “John Doe” application for life insurance, and defendant accepted it and instructed him to make formal application in his own name upon which the policy would be issued, there was a contract to insure.</p> <p>2. Insurance <§=>128(2) — Life Insurance— “John Doe” Application — Effect.</p> <p>Allegations that plaintiff made a “John Doe” application and was instructed to make formal application and he would be accepted, that plaintiff submitted to examination and was passed, and that he was refused solely on account of facts disclosed by the “John Doe” ap.-plication, sufficiently show that the examination conformed to the “John Doe” application. 8. Insurance <§=>128(1) — Life Insurance-Consideration.</p> <p>Submission to physical examination by one who had made a “John Doe” application was sufficient consideration to support an agreement to issue policy.</p> <p>4. Insurance <§=>128(1) — Life Insurance-Contract — Execution.</p> <p>Where plaintiff made a “John Doe” application for life insurance, and defendant instructed him to make formal application and the policy would be issued, and plaintiff submitted to examination but defendant refused to issue policy except at accelerated rate, there was a breach, of contract to insure, and defendant was liable in damages.</p> <p>5. Damages <§=>120(1) — Breach of Contract for Insurance.</p> <p>Where an applicant contracts, for a certain character of insurance policy and such policy is refused, and he can then only obtain a like policy at an increased annual premium, the proper measure of damages is the difference between the premiums of the policy contracted for and the policy he can get.</p>

<p>1. Brokers <§=43(1) — Right to Commissions —Statute of Frauds.</p> <p>Contract employing a broker to negotiate a sale of land, to mereljr entitle him to commissions, need not be in writing, under the general statute of frauds, though it must be for Mm to execute a binding contract of sale.</p> <p>2. Pleading <§=>403(3) — Complaint Cubed by Answer.</p> <p>Any insufficiency of description, in broker’s complaint for commissions, of the lands plaintiff was authorized to sell, is cured by the answer identifying them.</p>

<p>Appeal from District Court, Anderson County; John S. Prince, Judge.</p> <p>Suit by J. A. Fain and others against E. T. McCain, Clerk of District Court. Suit dismissed, and plaintiffs appeal.</p>

<p>Appeal and Error ®^54 — Jurisdiction — Amount Involved — 1“Interest.”</p> <p>Accrued interest on the judgment sued upon is “interest” within Rev. St. 1911, art. 1589, subsec. 3, giving Courts of Civil Appeals appellate jurisdiction over judgments exceeding $100, exclusive of interest and costs, and such interest cannot be included to make tbe jurisdictional amount.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and .Second Series, Interest.]</p>

<p>Appeal from El Paso County Court; E. B. McClintoek, Julge.</p> <p>Suit in conversion by Andreas Chavez against J. J. Schairer. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Sabine County; W. R. Blackshear, Judge.</p> <p>Action by II. M. Maund against the Watson-Ohristensen Lumber Company and others. Judgment for plaintiff, and defendants appeal.</p>

Roberts, Judge. Action by L. D. Brown, trustee in bankruptcy of the estate of Staches Yacek, a bankrupt, against the First State Bank of Weimar, Tex., and the Schuhmacher Company. Judgment for defendants, and plaintiff appeals.

<p>Appeal from District Court, Ellis County; P. L. Hawkins, Judge.</p> <p>Ike Lewis was convicted of murder, and he appeals.</p>

<p>1. Estoppel <§=>112 — Pleading — Sufficiency.</p> <p>It is sufficient to plead the facts relied on tó show estoppel.</p> <p>2. Contracts <®=>309(1) — Performance—Excuses — Impossibility.</p> <p>Generally, where performance becomes impossible subsequent to execution of contract, the promisor is not discharged, unless performance is prevented by a law subsequently passed.</p> <p>3. Carriers ⅞=>83 — Loss of Goods — Liability.</p> <p>Where shipping company, knowing Mexican law required delivery to custom house, induced plaintiff to ship lumber with bill of lading with draft attached, agreeing to surrender lumber' only on surrender of bill of lading, and delivered lumber to custom house, which delivered it without bill of lading,, the company was liable-for the loss.</p>

<p>Appeal from Harris County Court, at Law; Murray B. Jones, Judge.</p> <p>Action by Jessie Erankel against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

Error from District Court, El Paso County; P. R. Price, Judge. Suit by E. H. Terrell, trustee in bankruptcy of the Goldoft Biquor Company, against the Commercial National Bank of El Paso, Tex., and others. Judgment for plaintiff for partial relief only and he brings error.

<p>1. Appeal and Error. <§=>500(4) — Review-Record — Matters Presented.</p> <p>Objections to the general charge and to the action of the court in submitting special issues will not be considered on appeal unless by proper authentication the record discloses that the objections were presented in the court below within the time prescribed.</p> <p>2. Trial <§==3253(6) — Instructions—Refusal.</p> <p>A special charge ignoring an issue of fact clearly presented by the evidence is properly refused.</p> <p>3. Release <§=>18 — 'Validity—Fraud.</p> <p>On the day of her husband’s burial, who was run down by defendant’s car, plaintiff, a widow, who was a deaf-mute, was induced to enter into a settlement with defendant. Plaintiff did not have sufficient funds to pay for her husband’s burial, and defendant’s agent represented that, if the charges were not paid, the body would be exhumed and thrown into the potter’s field, and defendant’s agent further represented that the plaintiff had no cause of action whatsoever, and that the only sum which she might receive was mere gratuity. Held, in view of the situation of the parties and the fact that plaintiff reproached herself for having directed her husband to go on the tracks of the defendant, the settlement which was inadequate in amount must be deemed the result of fraud and coercion, and cannot be sustained.</p> <p>4. Trial <§=3143 — Toby Question — Conflicting Evidence.</p> <p>Where the evidence is conflicting, the question is for the jury.</p> <p>5. Trial <§=3253(6) — Instructions—Refusal.</p> <p>In an action for wrongful death, where defendant set up a release which plaintiff attacked on several grounds, including fraud and duress as well as mental incapacity at the time the release was* entered into to understand its purport, the court submitted only the issue of mental incapacity to the jury, though the evidence raised the other issues. Held, that the failure of the court to submit the other issues relating to the validity of i;he release did not destroy plaintiff’s right to have them passed upon either by the court or the jury, and did not warrant the giving of special charges which ignored such issues.</p> <p>6. Trial <§=>139(1) — Peremptory Instruction-Propriety.</p> <p>Where the evidence raised issues of fact, the direction of a verdict for defendant is improper.</p> <p>7. Release <§=>21 — Contracts — Ratification.</p> <p>Where the evidence tended to show that plaintiff, when she executed a release, was the victim of fraud and duress, as well as that her mental condition at the time might have been such as to preclude her from understanding the, terms of the release, there was no ratification by reason of plaintiff’s subsequent acceptance of the sum mentioned in the release where at the time of ratification plaintiff had not learned of her rights; for there can be no binding ratification of a voidable contract so long as plaintiff was subject to the disabilities which made the contract voidable.</p> <p>8. Railroads <§=3400(14) — Injury to Persons on Tracks — Actions — Evidence — Discovered Peril.</p> <p>In an action for the wrongful death of plaintiff’s husband, who was run down by defendant’s car, question of whether defendant’s motorman was guilty of negligence after discovering the husband’s peril held, under the evidence, for the jury.</p> <p>9. Railroads <§=>377 — Injury to Persons on Tracks — Presumption.</p> <p>The rule that those in charge of trains have a right to presume that persons walking on the track will observe the usual danger signals and seek a place of safety has no application when those in charge of cars know or have good ground for knowing that for some reason the warnings were not heard or will not be observed.</p> <p>10. Railroads <§=>390 — Injury to Persons on Tracks — Discovered Peril.</p> <p>Eor one walking on railroad tracks to come within the doctrine of discovered peril requiring those in charge of trains to exercise care for one in a position of peril, it is not necessary that the pedestrian should be in actual danger; it being sufficient if it is apparent that he is about to enter into a perilous situation.</p> <p>11. Appeal and Error <§=>218(2) — Presentation of Grounds of Review in Court Be; low — Necessity.</p> <p>Whore defendant’s motorman testified that deceased was in his observation continuously from the time he was within 400 or 500 yards from him- until he was struck, a special issue submitting the question whether the motorman on discovering deceased’s peril used all means at hand consistent with the safety of his car to avoid striking deceased, calling, as it did, for a categorical answer, was not objectionable as on the weight of the evidence in assuming that deceased was in a position of peril, and defendant, not having requested the submission of the issue of deceased’s position of peril, cannot raise the objection on appeal.</p>

<p>Appeal from Smith County Court; Jesse F. Odom, Judge.</p> <p>Action by the Woldert Grocery Company against the Texas &i Pacific Railway Company. Prom judgment for plaintiff, defendant appeals.</p> <p>The appellee company was the shipper of a carload of second-grade peaches from 'Clyde, Tex., consigned to Geo. H. Hitz & Co., Indianapolis, Ind. The appellant company issued a bill of lading reciting that it— “received from the Woldert Grocery Company 414 bushel baskets of Elberta peaches consigned to Geo. Hitz & Co., Indianapolis, Indiana, to be routed over the St. Louis, Iron Mountain & Southern Railway and Big Pour Railway at a rate of 69 cents per hundred pounds, the car to be iced to full capacity to destination showing a refrigeration of twenty thousand pounds.”</p> <p>It was proven by appellee that the peaches were in good condition when loaded in the A. R, T. car at Clyde, and should have carried in that condition from 60 to 72 hours under proper refrigeration. It was shown that the peaches reached Indianapolis on the morning of August 9, 1913, and that they were in an overripe condition, bruised, and showing decay. The consignees refused the shipment, and on telegraphic order of appel-lee made sale thereof for the appellee. The peaches were sold by the consignees for $612.30; and after deducting the freight, car service, cartage, icing, and commissions, they remitted the appellee the balance amounting to $318.10. The appellee brought the suit for damages for $302.90 and interest, alleging that the defendant company negligently (1) failed to furnish a suitable and properly equipped ear; (2) failed to transport the peaches safely and within a reasonable time and with due and proper care; and (3) failed and refused to properly ice the car in transit. The defendant, besides denial, pleaded a want of negligence on its own part and on the part of its connecting carriers, and the stipulation that no carrier should be liable for loss or injury not occurring on its own road or on its portion of through route, and the stipulation respecting the computation of the loss or damage for which any carrier was to he liable. The court peremptorily instructed a verdict for the plaintiff.</p>

<p>Error from District Court, Hardin County; L. B. Hightower, Judge.</p> <p>Suit by M. L. Patterson against the Houston Oil Company of Tesas and others. Judgment for plaintiff, and defendants bring error.</p>

Porter, Judge. Petition by G. S. Melton and others against the Hill County School Trustees and others for a writ of mandamus and to restrain the execution of certain orders. Judgment for petitioners, and respondents named appeal.

<p>1. Municipal Corporations @=106(2) — Enactment of Ordinance — Reading Requirement — 1 ‘Franchise’ ’ — “License. ’ ’</p> <p>It was not necessary that an ordinance regulating jitney busses be read at three regular meetings of board of commissioners, etc., as required by city of Dallas charter in the case of ordinances granting franchises; such ordinance not granting a franchise but a mere license and not naming any certain persons or grantees, but the grant including all persons wishing to engage in such business. A “license” is an official permit to carry on a business or trade or perform other acts forbidden by law except to persons obtaining such permit. The term “fran-ehise” was not contemplated as applying to such regulation, as jitneys are not permitted to appropriate any part of streets to their exclusive use, as do railway, telegraph, telephone, and gas companies, to which the term “franchise” applies.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Franchise ; License.]</p> <p>2. Municipal Corporations <S=>61A-Regu-lation of Jitneys — Ordinance.</p> <p>Under City of Dallas Charter, art. 2, § 2, subd. 1, empowering such city to enact and enforce ordinances necessary to protect health, life, and property, etc., and article 2, § 3, subd. 24, granting power to license, tax, and regulate all trades, occupations, and callings and to require bonds in such cases, and article 2, § 3, subd. 33, permitting regulation of motor vehicles, and article 2, § 7, subd. 4, giving power to regulate use of streets and alleys, an ordinance regulating and licensing jitney busses and requiring a surety bond by the operators was valid, and the fact .that such ordinance prohibited passengers from riding, on the doors of motor busses and that it denied the transfer of a license to another bus did not invalidate it; the commissioners having the power to do anything respecting such subjects that the Legislature itself could do. The provision relating to the giving of a bond making the operators liable to third parties for damage, etc., was ilot derogative of the common law, which by Rev. St. 1911, art. 5492, is declared to be the law in so far as not inconsistent with state laws and Constitution unless later repealed by the Legislature, since the Legislature, having empowered the city to control streets and license persons doing business thereon for profit, in effect repealed the common law relating thereto.</p> <p>3.Constitutional Law @^>63(2) — Regulation of Jitneys — Legislative Power to Confer Authority.</p> <p>The Legislature had the power to confer authority on the city of Dallas to regulate and license jitney busses.</p>

<p>Appeal from Harrison County Court; W. H. Strength, Judge.</p> <p>Suit by L. W. Debenbam against F. Short and another. Judgment for plaintiff for tbe sum claimed, but t refusing to foreclose a statutory lien. Plaintiff appeals.</p> <p>September 1, 1916, A. Demetrack sold tbe crockery, cutlery, tables, chairs, counters, mirrors, stoves, and other furnishings used in tbe operation of a restaurant in Marshall, known as tbe “Elite Café,” to F. Short for $800. Tbe sale was on credit; and to secure tbe payment of tbe purchase price Short, on tbe day it was made, executed and delivered to Demetrack a mortgage on tbe property, which tbe latter forthwith filed for registration in tbe office of the county clerk. Short employed one Brown as a cook and appellant and one Gilbert as waiters to assist him in tbe operation of tbe restaurant, and became indebted to them, respectively, in sums aggregating $111.45, which be failed to pay as agreed upon, whereupon each of them undertook by a compliance with tbe requirements of article 5645 Vernon’s Statutes, to fix a lien upon tbe property specified above. Brown and Gilbert thereafterwards duly assigned their claims to appellant, who by this suit sought a recovery of tbe $111.45 as against Short, and a foreclosure of tbe lien be claimed on tbe property as against Short and Demetrack. Tbe appeal is by ap-, pellant from a judgment in bis favor against Short for tbe $111.45, but refusing to foreclose tbe statutory lien be claimed against tbe property.</p>

Suit by the First Guaranty State Bank of Overton against B. H. Hull and others. Judgment for plaintiff against certain defendants, and for the defendant Hull against the Western Cotton Oil & Gin Company, and partners in such company, and for the receivers of the International & Great Northern Railway Company against Hull for freight charges. The Western Cotton Oil & Gin Company and members thereof appeal.

<p>1. Deeds <®=o8 — Interest in Estate During Lifetime of Person.</p> <p>Where no certificate entitling to land as a headright was issued to a woman previously to 1862, and there was no sale or transfer by her of any such certificate or of an interest therein to her heir, such heir had no right to pass any title from the woman through his deed dated 1854, 1862 being the earliest possible date for the woman’s death, since during the lifetime of a person no one can have a vested or certain interest in his estate.</p> <p>2. Evidence <§=»317(2) — Hearsay Statements by Living Third Persons as to Their Family Connections.</p> <p>Statements by a living third person concerning himself and family connections are hearsay.</p>

<p>Appeal from District Court, Brown County; Jno. W. Goodwin, Judge.</p> <p>Suit by William Poindexter, executor, against B. C. Lightfoot and others. From the judgment, certain defendants appeal.</p>

<p>1. Libel and Slander @=338(1) — Newspapers — “Absolute Privilege.”</p> <p>Rev. St. 1911, art. 5597, providing that certain publications of newspapers shall be deemed privileged and cannot be made the basis of action without proof of malice, does not give newspapers an “absolute privilege,” because “absolute privilege” is based upon the theory that the publication of defamatory matter must be protected in the interest of and for the necessities of society, even though it be both false and malicious.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First Series, Absolutely Privileged; .Second Series, Absolute Privilege; Absolutely Privileged Communication.]</p> <p>2. Libel and Slander @=3101(1) — Newspapers — Court Proceedings — Burden op Proof.</p> <p>Under Rev. St. 1911, art. 5597, providing that newspapers can publish accounts of court proceedings, etc., the burden is on one suing for libel to show falsity and unfairness, or that a publication was actuated by malice, because the statute protects the publications therein designated with a presumption of fairness and truthfulness.</p> <p>3. Libel and Slander ⅞=71 —• Statutes — Defense's — Newspapers.</p> <p>Rev. St. 1911, arts. 5595-5597, relating to libel, did not destroy any common-law defense to libel, but rather added to the same so far as newspapers and periodicals are concerned.</p> <p>4. Libel and Slander @=3105(1) — Publication of Court Proceedings — Scope of Examinations.</p> <p>In an action against a newspaper for libel in which the truth and fairness of an account of proceedings in court was not assailed, but only the fairness of comment and criticism thereon, it was proper to inquire into the circumstances surrounding plaintiff and the occasion that called for the comment as well as caused the publication of the court proceedings.</p> <p>5. Libel and Slander @=48(3) — Candidate for Office — Publications Concerning Fitness.</p> <p>A newspaper has the right to publish, in good faith and within reasonable limits, the fitness and qualifications of any candidate for a public office.</p> <p>6. Appeal and Error @=1067 — Candidate for Office — Public Concern — Instructions.</p> <p>Where a candidate for public office sued a newspaper for unreasonable comment on a certain court proceeding concerning his qualifications for office, it was prejudicial error not to instruct that such comment was about matters of public concern.</p> <p>7.Libel and Slander @=48(3) — Truthful Report of Court Proceedings — Unfair Comment,</p> <p>Although a report of a court proceeding was true, a newspaper did not have the right to base unreasonable and unfair comment and criticism thereon, although the subject of criticism was a candidate for public office.</p>

A. Ward, Judge. Action by L. B. McCaslin against Phil Veasy and another. Prom judgment for dej fendants, plaintiff appeals. This was a suit of trespass to try title. It was brought by appellant against appellees. The land involved, according to the allegations in the petition, was 307.6 acres in the northeast corner of the Mary Hays survey in Camp county.

Denton, Judge. Suit by T. H. Wells against J. H. Foreman for specific performance of a1 parol contract for the sale of land. Judgment for defendant, and plaintiff appeals. The appellant agreed to give appellee two gasoline engines and certain other personal property of the total value of $750 for a horse and a jack and certain real estate of the total value of $750, the appellee to make a deed of conveyance to appellant for the real estate.

<p>Appeal from District Court, Upshur County; J. R. Warren, Judge.</p> <p>Action by Earnest Johnson against the St. Louis Southwestern Railway Company of Texas. Prom a judgment, defendant appeals.</p>

<p>Appeal and Error cg=j547(1) — Overrulinu Motion for Continuance — Failure to Present in Bill of Exceptions.</p> <p>Where the ruling of the trial court in overruling motion to continue made by defendant when the cause was reached for trial ⅛ not presented in a bill of exceptions, as required by rule 55 (142 S. W. xxi) for the government of dis. trict and county courts, the Court of Civil Appeals cannot revise it. .</p>

<p>1. Descent and Distribution &wkey;>155 — Rights of Creditors of Heirs — Effect of Advancement.</p> <p>Under Rev. Civ. St. art. 2467, relative to bringing advancement into hotchpotch, a father had a legal right during his lifetime to make an advancement to a son that would supersede the son’s inheritable interest in the estate remaining at the death of the father, and where he did so, the son had no interest in the father’s estate subject to execution, though theie was no record evidence of the fact that he was excluded from any share in the estate.</p> <p>2. Frauds, Statute of <&wkey;129(9) — Part Performance-Possession and Improvements.</p> <p>A parol gift of land from a father to his son followed by actual possession of the premises by the1 son, and the making of valuable improvements, invested him with a good title, without any written conveyance.</p> <p>3. Descent and Distribution &wkey;>117 — Advancements — Sufficiency of Evidence.</p> <p>Where a father gave his son a tract of 200 acres of land, but executed no conveyance, and the son wont into possession, made valuable improvements, and occupied the land as a homestead for many years, and continuously until his father’s death, and paid the taxes and claimed the land as his own, and after his death it was agreed by the widow and children that he had no interest in any of the lands owned by the father at the time of his death, and that the tract so given to him was an advancement, the facts justified the trial court in finding that the son received such land as an advancement and had no further interest in the father’s estate.</p>

<p>Appeal from Disfcict Court, Fannin County; Ben. I-I. Denton, Judge.</p> <p>Action by A. L. Perdue against W. J. Butler. From judgment for plaintiff, defendant appeals.</p>

O. Beard, Judge. Action by A. B. Duncan against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. At 7 o’clock p. m. of October 3, 1916, the appellee entered the service of appellant at Marshall as special night watchman of the premises inside of the roundhouse and outside around the front and back of the same.

<p>Appeal from District Court, Cass County; H. F. O’Neal, Judge.</p> <p>B. W. Lewis appeals from a judgment against him and in favor of J. M. McDowell and others.</p>

<p>Appeal from Titus County Court; J. W. Tabb, Judge.</p> <p>Action between the Brotherhood of American Yeoman and W. M. Jaggers. From a judgment, the Brotherhood of American Yeoman appeals.</p>

<p>Courts <&wkey;488(4) — County and District Courts — Statutes.</p> <p>Acts 32d Leg. c. 54, conferred upon the district court of Harrison county jurisdiction in civil cases theretofore in the county court of Harrison county. Acts 33d Leg. c. 53, restored to said county court exclusive original jurisdiction in civil cases involving between $200 and $500, and ordered transfer to that court from the district court of pending causes of such amount. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 268, provides that when an attachment issued from a county court has been levied upon land no order or decree foreclosing the lien thereby acquired shall be necessary, but that the judgment, briefly reciting the issuance and levy of such attachment, shall be sufficient to preserve the lien, and that the land may be sold under execution after judgment. When action for $490 was commenced in the district court shortly after the 1911 enactment, writ of attachment was levied on land belonging to defendant, and the action was tried and judgment entered in that court after the 1913 act took effect. Held, that, the proviso in article 268 not being inapplicable because the writ was issued out of the district rather than county court, the district court had no jurisdiction to render the judgment, since the required transfer to the county court would not have divested plaintiff of a right he had acquired to have the land subjected in that suit to the payment of any judgment he might obtain against defendant,</p>

<p>1. Taxation <&wkey;345 — Assessment—Name oe Deceased Ownee.</p> <p>Under Rev. Civ. St. art. 7527, providing that all real property subject to taxation shall be assessed to the owners thereof in the manner herein provided, but no assessment of real property shall be considered illegal by reason of the same not being listed or assessed in the name of the owner, an assessment against property in the name of a deceased person was valid as against subsequent purchasers from the heirs.</p> <p>2. Municipal Coepobations &wkey;>978 (7) — Actions eob Taxes — Limitations.</p> <p>Under a city charter providing that suits for taxes shall be brought within four years from the time they become due, limitations began to run against a city from the 1st day of February of each year; each year’s taxes forming the basis of an independent and separate cause of action. ■</p>

<p>Appeal from Polk County Court; B. P. Bean, Judge. Sandy Johnson was convicted of violating the local option law, and he appeals.</p>

<p>Appeal from District Court, Houston County; John S. Prince, Judge. Action by W. J. Patton against the Louisiana & Texas Lumber Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Eastland County; Joe Burkett, Judge. Bluford Dorsett was convicted of hog theft, and he appeals.</p>