Volume 201 — South Western Reporter

<p>1. Juey <S=>70(8) — Venire—Discharge—Spe-cial Venire.</p> <p>Where there were 84 jurors selected for the term and 60 were discharged without being drawn or serving on a venire, the drawing of the remaining 24 and the adding of 24 names by the sheriff, in a capital case, was not a compliance with Code Cr. Proc. 1911, art. 661, relating to drawing of special venire, and a conviction cannot stand.</p> <p>2. Juey @=^82(3) — Capital Cases — Punishment Imposed — Right oe Dependant.</p> <p>That the jury imposed imprisonment, instead of death, in capital case, does not affect the right of the defendant to a venire in accordance with law relating to capital cases.</p> <p>3. Homicide @==>164 — Blindness oe Deceased-Evidence.</p> <p>In homicide case, evidence that deceased was nearly blind is inadmissible unless defendant knew of the blindness.</p> <p>4. Criminal Law @=>552(1) — Blindness oe Deceased — Knowledge oe Accused — Circumstantial Proof.</p> <p>That defendant in homicide case had knowledge that deceased was nearly blind may be shown from circumstances.</p>

<p>Appeal from District Court, Denton County; C. if. Spencer, Judge.</p> <p>Willie Johnson was convicted of theft from the person, and he appeals.</p>

<p>Appeal from Goliad County Court; H. J. Passmore, Judge.</p> <p>Suit by B. W. Martin against the Magnolia Cotton Oil Company. Judgment for plaintiff, ■and defendant appeals.</p>

<p>1. Municipal Corporations <§=155 — Mayor —Power to Discharge Appointee.</p> <p>Power given a mayor by charter to appoint to office carries with it power to discharge, subject to limitations in the charter.</p> <p>2. Municipal Corporations <§=>156 — Discharge oe Appointee — Belief of Unfitness.</p> <p>Under provision of charter that the mayor may, for any reason he may deem sufficient, discharge any appointee, provided that no one may be discharged for political reasons, if the mayor thinks the person incompetent and unfit, and for that reason discharges him, the discharge is legal, though he be fit and competent.</p> <p>3. Municipal Corporations <§=156 — Discharge of Appointee — Belief of Unfitness-Evidence.</p> <p>Evidence that an appointee discharged by a mayor was competent and fit, and that there were political reasons which could have inclined him to desire the discharge, does not prove that the mayor believed him competent and fit, this rendering invalid the discharge made on the assigned ground of incompetency and unfitness.</p> <p>4. Municipal Corporations <§=156 — Discharge of Appointee — Reasons.</p> <p>That a mayor has political reasons for which he might desire the discharge of an appointee, but which under the charter he cannot make for such reasons, does not prevent him making the discharge for another reason.</p> <p>5. Municipal Corporations <@=165 — Action Against^-Notice of Claim.</p> <p>A claim of a discharg-ed city officer for salary on the ground of illegal discharge is not of the class of claims of which, under the charter, notice must be given as a condition precedent to right to sue.</p> <p>6. Pleading <§=376 — Admitted Facts — Proof.</p> <p>Facts admitted by the pleadings of both par-tios need never be proved.</p> <p>7. Municipal Corporations <§=162(5) — Illegal Discharge of Appointee — Right to Salary — Tender of Services.</p> <p>For a city officer illegally discharged to recover salary, it is not necessary for him to tender his services.</p> <p>8. Appeal and Error <§=204(1), 499(3) — Review — Introduction of Evidence — Objection and Bill of Exceptions.</p> <p>That one may complain on appeal of introduction of improper evidence he must have objected to it at the time, and preserved the objection by bill of exceptions.</p> <p>On Rehearing.</p> <p>9. Municipal Corporations <®=185(9) — Discharge of Officer — Reasons—Evidence.</p> <p>Mere evidence that the mayor presided at a meeting, the object of which is not shown, at which a speaker said the name of city marshal was a stench in the nostrils of the people, and that he had appointed officers to intimidate voters, is inadmissible on the issue whether the mayor removed the marshal for political reasons, or because he considered Mm incompetent and unfit.</p> <p>10. Municipal Oorporations <§=185(9) — Discharge of Appointee — Reasons—Evidence.</p> <p>That the mayor intended to discharge the marshal and that Ms political platform promised the discharge is inadmissible on the issut whether he discharged Mm because he deemed Mm incompetent and unfit or for political reasons.</p>

<p>Appeal from District Court, Liberty County; L. B. Hightower, Judge. .</p> <p>Trespass to try title by H. Masterson and another against D. Sullivan and others. From .the judgment rendered, Sullivan appeals.</p>

<p>1. Street Railroads t&wkey;l03(l) — -Injuries to Persons — Last Clear Chance Doctrine.</p> <p>No recovery can be had under the last clear chance doctrine in the absence of proof that defendant’s motorman discovered deceased’s peril in time, by the exercise of due care and the use of the means at hand, to have prevented injury.</p> <p>2. Street Railroads <&wkey; 103(1) — Injuries to Persons — Last Olear Chance Doctrine-Knowledge, oe Danger.</p> <p>In action against railroad for death of a person on the track, under the discovered peril doctrine, negligence in failing to discover deceased’s perilous situation is immaterial.</p>

<p>Appeal from Travis County Court; D. J. Pickle, Judge.</p> <p>Action by Henry Prince against Wyatt Green. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Teiad <&wkey;333 — Veedict — Amount—Responsiveness to Issues and Evidence.</p> <p>Where plaintiff was entitled to judgment for $294.74, tho difference between contract and market prices of cotton on .date defendant breached delivery, or nothing, a verdict for plaintiff for $50, presumably based upon a compromise offer before suit, is not responsive to either issues or evidence, and must be set aside.</p>

<p>Appeal from District Court, Hill County; Norton B. Porter, Judge,</p> <p>Suit by H. G. Taylor against the Texas Power & Light Company. Judgment for plaintiff. Defendant appeals.</p>

<p>Trial <®=^329 — Verdict— Determining Issues.</p> <p>The issue drawn by the pleadings and evidence being, virtually, which party was right as regards the terms of the contract, _ and it being impossible for both to have verdict, one finding for defendant was a finding against plaintiff as effective as an express finding, the charge, though not really submitting the case on special issues, putting the issue in a double form.</p>

<p>Appeal from District Court, Williamson County; Ireland Graves, Judge.</p> <p>Action by Frank Riha against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

J. Clark, Judge. Action between Martin Jefferson and the Missouri, Kansas & Texas Railway Company of Texas. From an adverse judgment, the company appeals, and appellee files motion to dismiss.

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Suit by Leslie A. Needham, as trustee, against Robert G. Werner and others. From the decree rendered, defendants appeal.</p>

M. Richey, Special Judge. Suit by the M. M. Graves Company, Incorporated, against the Early-Foster Company. Judgment for plaintiff for partial relief, and both parties appeal.

<p>Appeal from Robertson County Court; W. M. Johnson, Judge.</p> <p>Suit by Sallie Thomas against James A. Baker, Receiver of the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Jefferson County Court; D. P. Wheat, Judge.</p> <p>Suit by T. L. Jemison against James Sum-mergilL and others. Judgment against defendant named, and he appeals.</p>

C. Scott, Judge. Action by Hattie Boyed individually and as next friend of Anthony Boyed, a minor, against the San Antonio & Aransas Pass Railway Company, Judgment for plaintiff in her representative capacity, and defendant appeals.

<p>1. Appeal and Error <@=31002 — Scope—Findings de Fact.</p> <p>The court on appeal will not disturb a verdict rendered upon conflicting evidence sufficient to authorize the judgment.</p> <p>2. Deeds <@=>206 — Evidence—Sueeiciency.</p> <p>In suit to cancel a quitclaim deed, evidence held to show that plaintiff intentionally and with full knowledge of the nature, character, and consequences of his act, and without any mistake of facts, executed and delivered the deed intending to divest himself thereby of his interest in the land.</p> <p>•3. Deeds <S=>58(2), 65 — Delivery—Efeect.</p> <p>Delivery of a deed expressing consideration of love and affection by a grantor who understood the nature and consequences of Ms act to an agent, who delivered it to the grantee, who had it recorded, was a sufficient delivery and acceptance to pass the title.</p>

<p>Appeal from District Court, Liberty County ; J. Llewellyn, Judge.</p> <p>Action by Jesse Snow against the Houston East & West Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on ¡condition that remittitur be filed.</p>

<p>1. Statutes <§=>205 — Construction — Intent.</p> <p>The intent of a statute must be determined from a construction of all of its provisions.</p> <p>2. Licenses <®=>7(1) — Motor Vehicles — Revenue Measures.</p> <p>Acts 35th Leg. c. 190, and chapter 207, as amended at First Called Session 35th Leg. c. 31, together establish a state highway department, create a state highway commission, provide for the registration of motor vehicles, and declare that motor vehicles shall not be operated or driven on the public highways without having displayed thereon number plates bearing the registration number assigned to such vehicle by the highway department. The acts provide for the payment of fees for licenses, and authorize the highway commission to expend such fees in the construction of roads. Held, that the Legislature has the power to provide for such use of the funds, leaving the expense of policing, regulating, and administering the law in regard to the use and operation of motor vehicles on the highways to be paid out of other funds, and the fact that the proceeds of licenses are to be used in constructing roads, does not render the license provisions a tax.</p> <p>3. Constitutional Law <§=>48 — Reasonableness ojt License Fee — Presumption.</p> <p>As there was nothing in the law itself showing that the license fees were excessive and unreasonable, and there was no evidence to support such conclusion, it must be presumed that the fees prescribed were neither excessive nor unreasonable.</p> <p>4. Licenses <&wkey;7(l) — Revenue Measure.</p> <p>That the fees collected under the acts would produce a sum 12 times the amount necessary for registration, regulation, policing, and administration of the law with respect to motor vehicles does not show that the registration fees prescribed were taxes, for the license was required as a condition precedent to the exercise of the privilege of operating motor vehicles on the highways.</p> <p>5. Constitutional Law <&wkey;42 — Right to Question Statute.</p> <p>One who has no interest in the subject of a statute and is not injuriously affected by its provisions cannot question its constitutionality.</p> <p>6. Statutes <&wkey;64(8) — Partial Invalidity.</p> <p>As section 27 declares that if any section, subdivision, or clause of the act shall be unconstitutional, such decision shall not affect the validity of the remaining portions of the act, the possible invalidity of the provision of Acts 85th Leg. c. 190, § 16, that the state highway department shall formulate rules for determination of weights governing license fees established for commercial vehicles, does not invalidate those provisions of the section imposing license fees on noncommercial vehicles according to horse power.</p> <p>7. States <&wkey;131 — Appropriations.</p> <p>In view of long-continued past construction of Const, art. 8, § 6, declaring that no money shall be drawn from the treasury except in pursuance of specific appropriations made by law, Acts 85th Leg. c. 190, § 23, declaring that all funds coming into the hands of the state highway commission, derived from registration fees prescribed for motor vehicles, or from other sources, shall be deposited with the state treasurer to the credit of a special fund designated as the “state highway fund” is a valid appropriation, though not, of course, specifying the amounts to be realized; similar provisions for contingent amounts having long been recognized as valid appropriations.</p> <p>8. Licenses &wkey;s7(2) — Uniformity — Motor Vehicles.</p> <p>License fees for the operation of motor vehicles may be fixed according to horse power, regardless of Const, art. 8, §§ 1, 2, requiring uniformity of taxation and forbidding the assessment of property for taxes elsewhere than in the county where it is situated; for such sections relate to the ordinary ad valorem taxes, and not to license taxes or fees.</p> <p>9. Constitutional Law <&wkey;48 — Construction Favoring Validity.</p> <p>An act of the Legislature should not be declared unconstitutional unless it clearly appears to be so, and every reasonable doubt as to its validity must be resolved in favor of sustaining the act.</p> <p>On Motion for Rehearing.</p> <p>10. Statutes &wkey;>64(8) — Partial Invalidity.</p> <p>Though Acts 35th Leg. c. 190, % 16, prescribing fees for private motor vehicles and for commercial vehicles according to capacity, and allowing the state highway department to formulate rules for the determination of weights governing license fees established for commercial vehicles, is invalid as to the last provision as an unauthorized delegation of legislative power, the invalidity of that provision does not affect the license fees already prescribed by the act for commercial vehicles, but merely deprives the commission of authority to change them.</p> <p>11. Statutes <&wkey;64(8) — Partial Invalidity.</p> <p>As the license fees on motor vehicles provided by Acts 35th Leg. c. 190, would, if not validly appropriated, be covered into the state treasury and await appropriation by some future Legislature, the provisions for collection of the fees cannot be .attacked on the ground that there was no valid appropriation.</p> <p>12. Statutes &wkey;>119(3) — 'Validity—Title of Act.</p> <p>The provision of the caption of Acts 35th Leg. c. 190, that fees and charges should constitute part of the fund for the support of the state highway commission is sufficient, under Const, art. 3, § 35, declaring that no bill shall contain more than one subject, which shall be expressed in its title, to warrant an appropriation of the fees and charges for the use of the state highway department.</p>

Suit by L. M. Crawford, trustee, against the El Paso Land Improvement Company, and cross-action by the Land Improvement Company against Crawford, as trustee. Judgment for defendant in the first action, and for plaintiff in the second, and Crawford, trustee, appeals. Reversed and remanded.

F. Mullally, Judge. Suit by H. W. Binder against W. I-X. Milli-kin, in which J. R. Black intervened. From the judgment rendered, plaintiff appeals, and intervener files a brief.

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by G. B. Dawson against the San Antonio, Uvalde & Gulf Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

L. Hawkins, Judge. Suit by the City of Ennis and others against the Houston & Texas Central Railroad Company and others. Erom a decree for plaintiffs, defendants appeal.

<p>1. Botjkdabies &wkey;?47 (1) — Estoppel.</p> <p>Where' plaintiff’s ancestor in title owned two tracts, and conveyed one by deed, after having the land surveyed, or after pointing out the lines, plaintiff would be bound thereby.</p> <p>2. Trespass to Try Title <&wkey;45(l) — Instructions — Conformity with Evidence.</p> <p>In trespass to try title by one who took by inheritance from his mother and gift from his father, instruction that he could not recover unless his father could was not erroneous as instructing to find for defendant because the father was making no claim.</p> <p>3. Appeal and Error <&wkey;232(2) — Objections in Lower Court — Evidence—Plats.</p> <p>In trespass to try title, where defendant offered a deed which referred to a plat, and the plat, as an integral part of the deed, which was received without objection, error could not be predicated on admission of the plat, as being a written instrument not proven up by competent evidence.</p> <p>4. Evidence <&wkey;474(l) — Opinions—Knowledge.</p> <p>In trespass to try title, where one claimant testified that he had previously seen a certain map, and that a road shown thereon had been pointed out to him, his statement that the map looked all right to him was admissible as upon sufficient qualification.</p> <p>5. Trespass to Try Title <&wkey;59 — Evidence-Admissibility.</p> <p>In trespass to try title, there was no error in admitting defendants’ testimony as to what they were told as to title on the issue of their good faith in making improvements.</p> <p>6. Evidence <&wkey;474(15) — Opinions—Knowledge.</p> <p>In trespass to try title, there was no prejudicial error in permitting witnesses to testify as to the appearance of cuts and marks on trees, and the age thereof; such being matters of common knowledge.</p> <p>7. Appeal and Error <&wkey;634 —»Pereecting Record.</p> <p>Where the files were lost, and appellant made no attempt to substitute records under Vernon’s Sayles’-Ann. Civ. St. 1914, arts. 2157-2163, and his bills and assignments showed no error, he was not entitled to remand for new trial “to permit intelligent consideration by the Court of Civil Appeals.”</p>

<p>Appeal from Bell County Court; W. 8. Shipp, Judge.</p> <p>Action by J. J. Hegman against Miss Lustre Roberts. From an adverse judgment, on appeal from a justice, plaintiff appeals.</p>

<p>Appeal from District Court, Bell County; F. M. Spann, Judge.</p> <p>Action by Mrs. E. B. Carpenter, adminis-tratrix of E. B. Carpenter, deceased, against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Tkial &wkey;>253(4) — Instructions Ignoring Issues.</p> <p>In action for injuries in collision, where plaintiff alleged defendant was violating Pen. Code 1911, art. S15, by driving in excess of 18 miles per hour, and article 816, prohibiting excessive or dangerous speed and dangerous driving, it was error to submit only recovery under article 815, since the speed, though less than 18 miles per hour, might have been dangerous.</p> <p>2. Trial <&wkey;>253 (4) — Instructions Ignoring Issues.</p> <p>In action for injuries in collision, where plaintiff alleged defendant was violating Pen. Code 1911, art. 815, by driving in excess of 18 miles per hour, and article 816, prohibiting excessive or dangerous speed and dangerous driving, it was error to submit only recovery under article 815, in.view of evidence that defendant was driving on the wrong side of the road, since that might have been dangerous, though he drove slowly.</p> <p>3. Appeal and Error &wkey;>918(3) — Presumption — Amendment of Pleading During Trial.</p> <p>Trial amendment of petition, reciting that it was filed with leave of court, will be presumed to have been filed upon proper leave.</p> <p>4. Evidence <&wkey;116 — Streets — Speed of Travel.</p> <p>In action for injuries in automobile collision, where defendants alleged the car.involved was not theirs, and that they were present in their office and a witness said he was in their office and received a check at the time of the accident, the check was admissible in evidence.</p>

<p>Dissenting opinion.</p>

Suit by Ferd Staffel and others against the San Antonio School Board of Education and others. From a decree denying a temporary injunction, plaintiffs appeal.

<p>1. Deeds &wkey;>114(5) — Construction — Land Conveyed.</p> <p>A deed conveying all the certain part or parcel of land and containing 640 acres, more or less, located for one W. by virtue of certificate No. 1450, and providing that it was understood that the 640-acre tract was a one-half undivided interest out of survey No. 1123, which contained 1,280 acres, more or less, indicated an intent to convey an undivided one-half interest in the survey, and not any specific number of acres undivided out of it.</p> <p>2. Vendor and Purchaser &wkey;>165 — Shortage in Acreage — Recovery by Purchaser.</p> <p>Where land is conveyed in gross, the purchaser takes the risk as to the acreage and ean-not recover a shortage without allegation and-proof of fraud or mutual mistake.</p> <p>S. Pleading <&wkey;246(l) — Parol Evidence — Varying Terms of Deed.</p> <p>In trespass to try title to two tracts of land out of a survey, the allowance of a trial amendment that plaintiff held title to the premises by virtue of a deed from defendant, and that when the land was conveyed it was understood to contain a certain acreage and that the grantee should acquire an undivided one-half of a survey, was erroneous, as the amendment attempted to vary and limit the terms of the deed without alleging mutual mistake, accident, fraud, duress, or undue influence, etc., so as to bring the action within the principles of equity covering such matters.</p>

<p>Appeal from Difetrict Court, Collin County; M. I-I. Garnett, Judge.</p> <p>Action by P. G. Rogers against the Missouri, Kansas & Texas Railway Company oí Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Bills and Notes &wkey;343 — Innocent Pur-CHASEK.</p> <p>If the purchaser of a note, who had knowledge that it had been given for machinery, title to which was to remain in payee, also knew or was charged with notice that the machinery had been warranted and might wholly fail to meet warranties, he could not become an innocent purchaser.</p> <p>2. Bills and Notes &wkey;>525 — Innocent PURCHASER— SUEEICIENCY OE EVIDENCE.</p> <p>Evidence held insufficient to show that plaintiff purchaser of note knew, or was charged with notice, that dredge, for which note was given, had been warranted and might fail to meet warranties.</p> <p>3. Bills and Notes &wkey;342 — Failure oe Consideration — Evidence.</p> <p>That note stated that it was part of purchase money for a dredge, title to which was to remain in payee, would not be notice to purchaser that consideration had or would fail, where dredge was not delivered until four months later.</p> <p>4. Bills and Notes <&wkey;497(2) —Innocent Purchaser — Burden oe Proox.</p> <p>Although note stated that it was part of purchase money for a dredge, title to which was to remain in payee, the burden was on defendant to show some additional fact requiring purchaser to anticipate probable failure of dredge.</p> <p>5. Bills and Notes &wkey;489(7) — Variance.</p> <p>That petition described note as payable to iron works company and note introduced in evidence was payable to iron works did not constitute a variarce, where the parties concerned used the names interchangeably.</p>

<p>Appeal from District Court, Austin County; Frank S. Roberts, Judge.</p> <p>Suit by Edward Palm against Charles Theumann. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Cameron County; W. B. Hopkins, Judge.</p> <p>Suit by D. B. Pierson and another against the Farmers’ State Guaranty Bank. Fron& a judgment for plaintiffs, defendant appeals.</p>

<p>1. Appeal and Error 034 — Premature Filing op Suit — Harmless Error.</p> <p>Where defendant insurer admitted actual receipt of proof of loss before suit was filed, there could be no possible injury to it from premature filing- of suit, where costs were adjudged against plaintiffs.</p> <p>2. Appeal and Error ©=1006 — Refusal to Submit Issue — Prejudicial Error.</p> <p>Refusal to submit issue whether defendant insurer waived proof of loss could not have materially affected defendant’s rights, where de-fondant admitted that proof of loss was furnished by plaintiffs before suit; there being no complaint that proof was defective.</p> <p>3. Insurance ©=60S(14) — Fire Insurance-Proof of Loss — Fraud and False Swearing — Evidence.</p> <p>That plaintiffs in their proof of loss to defendant insurer had placed the value of furniture before the fire and the amount of loss at a higher figure than found by the jury, would not show plaintiff’s fraud or false swearing in respect thereto.</p> <p>4. Evidence <®=>1S — Common Knowledge-Value of Household Goods.</p> <p>It is a matter of common knowledge that the valuation of household furniture and ladies’ wearing- apparel is, to a large extent, a matter of opinion.</p> <p>On Motion for Rehearing.</p> <p>5. Pleading ©=228 — Special Exceptions— Matters not Appearing on Face of Petition.</p> <p>Petition, not indicating on its face that suit was brought sooner than 60 days after proof of loss, contrary to provisions of fire policy, was g'ood against special exception on the ground that it appeared from the face of the petition that suit was prematurely brought.</p>

<p>Appeal from District Court, El Paso County; Ballard Coldwell, Judge.</p> <p>Action, by Robert de la Cruz against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.</p>

D. Guinn, Judge. Action by C. N. Cummings and. another, a partnership known as the Turner-Cummings Hardwood Company, against the Phillip A. Ryan Lumber Company, in which C. H. Harrell and John P. Renfro were brought into the case by plaintiffs. Brom a judgment, plaintiff and Renfro appeal.

<p>Appeal from. District Court, Cameron County; W. B. Hopkins, Judge.</p> <p>Certiorari by Margaret R. McAllen in the district court to review an order of the county judge of Cameron county, on his own motion, appointing A. Wayne Wood temporary guardian of the estates of Mildred, Salome, Eldred and Argyle McAllen. Prom a judgment affirming the order of the county judge and denying the petitions of Margaret R. Mc-Allen and an intervener, Martha Rohde, to be appointed guardians, the latter appeal.</p>

<p>Cabeiebs <s=»382(6) — Ejection oe Passengeb —Exemelaey Damages.</p> <p>The mere retention in employment by a railroad company of a conductor, after knowledge that he has wrongfully ejected a passenger from its train, does not allow the passenger to secure judgment for exemplary damages against the company; such retention alone not being an adoption or ratification of the malice or violent conduct of the conductor.</p>

Appieal from District Court, Anderson County; John S. Prince, Judge. Petition for injunction by G. E. Mann against A. D. Brown and others. From an order dissolving a temporary writ of injunction, the petitioner appeals.

<p>1. Frauds, Statute of @=323(4) — Promise to Answer for Debt of Another — Original Undertaking. -</p> <p>Where defendant injured a boy, and took him to plaintiff’s hospital, and requested plaintiff to treat the boy’s broken leg, defendant’s agreement to pay plaintiff for his services was an original undertaking of defendant’s, not within the statute of frauds as to a promise to pay for the debt, default, or miscarriage of another.</p> <p>2. Trial <@=237(1) — Instruction—Burden of Proof.</p> <p>In a physician’s action for hospital services rendered a boy injured by defendant, the court’s special charge held clearly to have instructed the jury that only in the event they should find from a preponderance of the evidence that plaintiff had proven his cause of action could they render verdict for him.</p> <p>3. Trial @=^260(2) — Instructions—Repetition.</p> <p>The trial court is not required to give a general charge, independent of the special charges given, where such special charges fairly cover all the issues called for by the pleadings and evidence.</p>

G. Tayloe, Judge. Suit by Mrs. W. A. Lanning against L. Jones and wife. From a judgment for plaintiff for part of the relief sought, defendants appeal and plaintiff assigns cross-errors.

<p>1. Appeal and Error ®=»733 — Assignments of Error — Generality.</p> <p>An assignment of error that “the court erred in rendering a judgment contrary to law” is too general to be considered as a proposition within itself, and violates Rev. St. art. 1612, and rules 24, 25, and 26 for Courts of Civil Appeals (142 S. W. xii), as to necessity of assignments of error pointing out the specific error complained of.</p> <p>2. Appeal and Error <⅞=3742(6) — Assignments of Error — Generality.</p> <p>An assignment of error that “the court erred in rendering a judgment contrary to law,” not being sufficiently specific to be considered as a proposition, violates rule 30 (142 S. W. xiii), in that it is not followed by any proposition.</p> <p>3. Appeal and Error <®=>742(6) — Assignments of Error — Statement Accompanying Assignment.</p> <p>Plaintiff’s assignment of error that “the court erred in rendering a judgment contrary to law,” not being followed by statement showing what, if any, evidence was introduced, to sustain the allegations of plaintiff’s petition, violates rule 31 (142 S. W. xiii), in regard to briefing cases.</p> <p>4. Appeal and Error <§=^281(1) — Assignment of Error — Presentation on Motion for New Trial.</p> <p>An assigned error not called to the attention of the conrt in a motion for new trial cannot he considered.</p> <p>5. Appeal and Error ⅞=»729 — Assignment oe Error — Generality.</p> <p>An assignment of error “because the court erred in instructing a verdict contrary to law,” held to violate Rev. St. art. 1612, requiring distinct specification of errors and rules for preparing a cause and briefs (142 S. W. xii).</p> <p>6. Appeal and Error <§=>729—Assignment oe Error—Generality.</p> <p>An assignment of error “because the court erred in charging the jury as follows,” setting out a peremptory instruction, Mid to violate Rev.. St. art. 1612, requiring distinct specification of errors, and rules for preparing a cause and briefs (142 S. W. xii).</p> <p>7. Appeal and Error <§=>730(1) — Assignment of Error—Generality.</p> <p>An assignment of error that the “court erred in failing to give the special charges,” referring to them by number, held to violate Rev. St. art. 1612, requiring distinct specification of errors, and rules for preparing a cause and briefs (142 S. W. xii).</p> <p>8. Appeal and Error ©=263(3), 730(2)—Set-ting Out Charges Refused—Assignment of Error—Exception to Refusal to Give Charges.</p> <p>An assignment of error that “the court erred in failing to give the special charges,” numbering them, was insufficient because the special charges requested and refused were not set out in the assignment itself, nor in the statement following the same, and because it did not appear that appellant excepted to the refusal of the court to give such special charges, as required by Rev. St. art. 2061.</p> <p>9. Appeal and Error <§=>212 — Assignment of Error—Objections to Charge,.</p> <p>An assignment of error to a peremptory instruction for appellee would not be considered; it not appearing that appellant objected to the giving of the charge complained of, as required by Rev. St. art. 1971.</p>

<p>Appeal from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Action by Bessie Frazier against Mattie L. Jones, temporary administratrix. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Chattel Mortgages ©=8 — Construction op Agreements — Eppect.</p> <p>A written agreement, whereby plaintiff in consideration of $60 bargained, sold, and delivered certain personal property to defendant, and a contemporaneous agreement, reciting that the bill of sale was executed to secure the $60, and agreeing that the property should be transferred to plaintiff on his payment .of the $60, were in effect a chattel mortgage and not a pledge, under which either party, by agreement, might have possession of the property.</p> <p>2. Sequestration <§=>21 — Personal Property-Damages.</p> <p>In a suit for damages for the wrongful sequestration of personal property shown to have a particular use to the owner, his peculiar damage from its seizure and detention was recoverable, though in an ordinary case the owner might be entitled only to the wrongful rental value of the property during the period of detention.</p> <p>3. Sequestration <§=>21 — Wrongful Sequestration of Personal Property — 'Verdict — Evidence.</p> <p>On evidence in a suit for damages for the wrongful sequestration of personal property, judgment for plaintiff for $419.70, in view of the restoration of the property to him, held grossly excessive.</p>

<p>1. Schools and School Districts &wkey;>68 — Higi-i School — Selection oe Site.</p> <p>Under Acts 34th Leg. e. 36, amending Acts 32d Leg. c. 26 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 2749a-2749i, 2849b, 2849bb), which declares in section 2 (article 2749a) that the general management and control of public schools in each county is vested in the county trustees and in sections 3, 4, and 5 (articles 2749b, 2749c, 2849b), authorizes the trustees to classify the schools into elementary and high schools for the purpose of promoting the efficiency of the elementary schools and establishing high schools at convenient places, the trustees being given authority formerly exercised by the county commissioners’ court the county trustees must, all acts in conflict having been repealed by section 15 (article 2749Í), be deemed alone to Have authority to establish a high school; consequently the district trustees cannot select the site for such school.</p> <p>2. Schools and School Districts <&wkey;68 — Public Schools — Trustees—Statutes—Repeal.</p> <p>Although Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 2824, providing for the election of district trustees, declares that the trustees shall determine h'ow many schools shall be maintained in their district and at what points they shall be located, such statute must, in view of the power to locate high schools conferred on county trustees by Acts 34th Leg. c. 36, amending Acts 32d Leg. c. 26, be deemed to apply only to elementary schools; section 15 of the later act (Vernon’s Ann. Civ. St. Supp. 1918, art. 27491), repealing all acts in conflict.</p>

<p>Mortgages <&wkey;338 — Foreclosure by Power —Restraining Exercise — Petition — In-terpleader.</p> <p>Petition to restrain sale under power in mortgage given by plaintiff to defendant’s deceased husband, based on the theory that plaintiff was ready to pay, but did not desire to pay to defendant, because it was doubted that she had authority to give valid releases, is insufficient, it, while alleging she was executrix, and that assignments from deceased to her of the secured notes had been recorded, stating onÉ information and belief that they were obtained by duress and while deceased was mentally incapable, and that they were merely transferred to her in trust, and that action in which the plaintiff therein claimed to own the notes had been brought against her, and that another had been appointed guardian for her infant children, who it was alleged on information and belief owned four-fifths of the amount of the notes, it not being alleged that she would not give releases as executrix, trustee and individual, and there being an adequate remedy by inter-pleader, with payment of the money into court.</p>

<p>Appeal from Galveston Oountty Court ; Geo. E. Mann, Judge.</p> <p>Suit by F. B. Luhning and wife against J. S. Scott and another. From decree for defendants, plaintiffs appeal.</p>

<p>1. Justices pe the Peace <&wkey;164(3) — Appeal —1Transcript—Making and Piling.</p> <p>Although, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2396, upon granting appeal to county court, the justice shall immediately make and transmit a transcript, and under article 2395 appeal is perfected upon filing bond, appellant must cause transcript to be filed as required by article 2397.</p> <p>2. Justices oe the Peace >&wkey;16G(2) — Appeal —Dismissal—Negligence oe Appellants.</p> <p>On failure of justice of the peace to make and transmit a transcript upon appeal to the county court, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2396, and within time required by article 2397, appellant must compel the same by mandamus, failure to do which for several subsequent terms is negligence justifying dismissal.</p> <p>3. Justices oe the Peace <&wkey;i6G(3) — Appeal — Dismissal oe Appeal — Motion to Dismiss-Time eor Filing.</p> <p>On appeal from a. justice of the peace to the county court the appellee cannot file a motion to dismiss until the transcript has been filed.</p> <p>4. Justices oe the Peace <&wkey;166(2) — Appeal —Dismissal—Delayed Transcript.</p> <p>Failure to file appeal transcript from justice with county court within time prescribed in Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2397, will not always be ground for dismissal, since article 2400 provides mode of procedure in district and county courts shall control in justice’s court, unless procedure is otherwise prescribed, where for good cause more than 90 days may be allowed.</p>

<p>Appeal from District Court, Matagorda County; Sami. J. Styles, Judge.</p> <p>Action, by S. H. Salley and another against C. M. Hudson and another, with cross-action by Hudson. From an adverse judgment, Hudson appeals.</p>

T. Sluder, Judge. Suit by the City of San Antonio against the Trinity Methodist Episcopal Church to recover taxes and foreclose a lien. Judgment for plaintiff, and defendant appeals.

Error from District Court, El Paso County; Ballard Coldwell, Judge. Action by H. D. Camp and another against D. W. Gourley and others. To review a judgment on the merits in favor of Gourley against plaintiffs, plaintiffs bring error.

<p>1. Railroads @=>411(15) — Injuries to Animals Running at Large — Liability.</p> <p>Where plaintiff’s horse was running at large within the corporate limits of a town, as fixed by the county surveyor, contrary to the ordinance of such town, defendant, not being required to fence within corporate limits, would not be liable, unless the horse was killed because of the negligence of its servants operating the motorcar.</p> <p>2. Trial @=>251(3) — Misleading Instructions.</p> <p>In suit against defendant to recover for a horse killed by its motorcar within city limits, an instruction submitting question whether city was incorporated as required by law, an issue not raised, was misleading.</p> <p>3. Appeal and Error @=>1066 — Submitting Issue Not in Controversy — Harmless Error.</p> <p>In suit against defendant to recover for a horse killed by its motorcar within city limits, submitting question whether city was incorporated as required by law, an issue not raised, cannot be held harmless, where it cannot be said that it did not improperly influence jury and •produce an erroneous result.</p>

E. Ashe, Judge. Suit by Mary Boberts and others against the Houston & Texas Central Kailway Company and others. From judgment against the named defendant, it appeals.

<p>1. Principal and Agent &wkey;>149(2) — Assuming to Act as Agent — Individual Liability.</p> <p>Recovery cannot be had against one assuming to be an agent, for liquidated damages stipulated in a contract, but .recovery can be had for consequential damages, or the value of services rendered.</p> <p>2. Principal and Agent i&wkey;149(2) — Unauthorized Contracts — Eiability—Damages.</p> <p>Whore one falsely represents that he is agent for another and enters into a contract, the other party can sue him on his warranty without tendering performance to the supposed principal.</p>

<p>Appeal from District Court, Victoria County; Jno. M. Green, Judge.</p> <p>Suit in pature of an interpleader by John J. Welder against the Gordon-Jones Construction Company and others. From a judgment, certain defendants appeal.</p>

E. Mann, Judge. Suit by T. L. Kennedy against May and W. E. Nelson. Defendants had the American Indemnity Company made a party defendant. Judgment for plaintiff against May and W. B. Nelson, and in their favor over against the Indemnity Company, and it appeals.

Error from District Court, Harris County; Chas. E. Ashe, Judge. Action by H. R. Decker against the Texas Company and another, others being inter-pleaded by the Texas Company. Peremptory instruction was given for plaintiff, and John A. Kirlicks and others bring error.

<p>Appeal from District Court, Pecos County; Joseph Jones, Judge.</p> <p>Trespass to try title by Elizabeth B. Neighbors and others against J. H. Nations and another. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Trusts <&wkey;371(2) — Actions —Pleading — Creation and Existence of Trusts.</p> <p>An amended petition, alleging that an attorney, who had purchased property sold for taxes, had done so to retain it for his client, -defendant, but which fails to allege defendant’s ownership and right of possession, or any consideration for the agreement, does not show an enforceable trust.</p> <p>2. Attorney and Client <&wkey;123(l) — Compensation — Dealings.</p> <p>Although an attorney orally promised to permit his client to redeem property the attorney had purchased under tax sale, out of which the attorney’s fees were to be paid, yet when the 'client, without offering to redeem, refused an offer from another for the full value of the property, the attorney’s obligation terminated.</p> <p>3. Judgment <&wkey;203 — Conclusions — Statute.</p> <p>A judgment awarding' land to claimant under tax title, and the city judgment -for taxes accruing since claimant’s purchase, and reciting that it does not affect former tax adjudications against parties other than claimant, is a final judgment, not violating the - law against rendering two judgments in a cause.</p> <p>4.Taxation <&wkey;620 — Sale under Junior Assessment-Barring Prior Tax Liens.</p> <p>The refusal of the trial court to foreclose any liens for taxes due prior to judgment for taxes under which the property was sold was correct, since a valid sale under a junior assessment cuts off all prior tax liens.</p>

<p>Appeal from District Court, Dallas County ; Kenneth Foree, Judge.</p> <p>Suit by Winifred A. Conroy, Nora C. Davenport, and Sam Davenport, her husband, and Mary B. Blankenship, against the Oak Cliff State Bank & Trust Company and M. L. Morris. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Evidence <§=>320 — Based on Hearsay.</p> <p>In action to rescind a personal property sale because the seller misrepresented the amount of an indebtedness which the buyer assumed as part of the purchase price, the buyer’s testimony regarding the amount of such indebtedness, based on conversations with the seller’s creditors, held inadmissible, because hearsay.</p> <p>2. Appeal and Eeeoe ©=>1052(2) — Haemless Error — Evidence.</p> <p>In action to rescind a sale because of the seller’s misrepresentations regarding an indebtedness which the buyer assumed, error in admitting hearsay testimony as to the size of such indebtedness, is not rendered harmless by the appellee testifying the seller admitted making misrepresentations, where the seller denied making such admission.</p> <p>3. Sequestration ©=>12 — Affidavit—Suefi-cienoy.</p> <p>A sequestration affidavit reciting that affi-ant, who was described as plaintiff in a specified suit, was sworn and stated that he was the owner of the property “sued for as aforesaid,” held sufficient, since the quoted words, by referring to the recital, make the recital substantially sworn matter.</p> <p>4. Sequbstbation ©=>12 — Affidavit—Sufei-CIENCY.</p> <p>Under a statute requiring a sequestration af-fiant to state that he fears the defendant or the person in possession of property will remove it from the county, etc., an affidavit stating that he feared defendant would do so held sufficient, although the property was then in another person’s possession.</p> <p>5. Sequestration <⅜=12 — Bond—Clerk’s Approval.</p> <p>Where a clerk of court files a sequestration bond and issues process thereon, his approval, though not indorsed on the bond, will be presumed, in absence of a showing that he did not approve the bond and that the writ was improvidently issued.</p> <p>6. Exchange of Property <®=11 — Rescission-Misrepresentations.</p> <p>The right to rescind a sale which involved the exchange of personal property is not lost merely because the exchange had taken place, where the parties could be restored to their former position.</p>

<p>1. Dedication <@=35(3) — Stbeets — Acceptance.</p> <p>Where a triangular piece of land, dedicated to street purposes, was thereafter incorporated within the limits of a city, which improved a portion of the street, but not the triangular parcel, there was a sufficient acceptance of the dedication by the city.</p> <p>2. Evidence <®=508(1) — Stbeet Dedication— . Acceptance.</p> <p>An assistant city engineer’s testimony tending to show that the city had not accepted a triangular portion of a street held not binding upon the city, and only entitled to such weight as the trial court might give to his opinion.</p> <p>3. Dedication <§=39 — Streets—Estoppel.</p> <p>Where a landowner fenced a small portion of an adjoining city street with knowledge that such street had been publicly used for about 27 years, the city is not estopped from soon thereafter disputing the right of the landowner to maintain such inclosure.</p>

Proceeding under the Workmen’s Compensation Act by James Evans and others against the General Accident, Fire & Life Assurance Corporation, Limited. An award was confirmed by the district court, and the company appeals.

<p>Appeal from District Court, Bexar County ; S. G. Tayloe, Judge.</p> <p>Suit by F. W. Church against Denio B. Hayner and wife. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Good Will <&wkey;6(2) — Sale—Violation op Contract.</p> <p>Covenant of good will in a sale of a transfer and storage business is not violated by the seller’s devisee and heir renting her stables to others engaged in the same business and permitting them to use the telephone number formerly used by the seller.</p> <p>2. Witnesses <&wkey;129 — Competency—Action by Heir — Transaction with Deceased.</p> <p>The action on a note given deceased is within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, prohibiting either party to an action by heirs of decedent in which judgment may be rendered for or against them as such, testifying against the other as to a transaction with or statement by deceased; the petition, alleging he died leaving a will “bequeathing all his property to petitioner, petitioner being his only heir, and by reason thereof is the owner and holder of the note,” showing plaintiff brought the action and claimed ownership both as legatee and sole heir.</p> <p>3. Witnesses <&wkey;159(5) — Competency — Transaction with Decedent.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, proxuoiting either party to an action by an heir testifying against the other as to his transaction with decedent, applied to defendants’ testimony, in an action on a note given to deceased for price of a business, showing that he had failed to deliver to them the goods he had agreed to deliver.</p>

<p>1. MUNICIPAL CORPORATIONS <&wkey;721(2) — Public Parks — Appropriation for Sidewalk — Abutting Owners — Injunction.</p> <p>A union depot company, owning and operating a station abutting a regularly dedicated city park on which it has, under agreement with the city, spent thousands of dollars for grading, fencing, and beautifying, is entitled to injunction against appropriation of any part thereof for sidewalk purposes.</p> <p>2. Municipal Corporations <&wkey;721(2) — Public Parks — Change of Use — Charter Provisions — Injunction.</p> <p>Under El Paso Special Charter, § 54, providing that all parks owned by the city are inalienable, and no part thereof shall ever be devoted to other than park purposes, the appropriation of park grounds for streets or sidewalks will be enjoined.</p> <p>3. Municipal Corporations &wkey;>721(l) — Public Parks — Improvements—Limitation to Park Use.</p> <p>While the city of El Paso has exclusive control over its parks, and may lay out sidewalks therein where necessary for park purposes, such right does not extend to diverting park grounds to general street and sidewalk purposes.</p> <p>4. Municipal Corporations <&wkey;721(3) — Public Parks — Delegation of Control — Maintenance.</p> <p>While the city of El Paso may not delegate its authority and control of public parks to create in a union depot company a vested right to keep and maintain the same, and prohibit the city’s control and improvement thereof, yet the city may contract for maintenance of park.</p> <p>5. Municipal Corporations <&wkey;1021, 1022-Ordinances — Construction — Presentation of Claim Precedent to Action.</p> <p>El Paso City Charter, § 71, providing that no suit of any nature shall be maintained against the city, without averring and proving previous application to city council for redress, being in derogation of the common-law right, must be strictly construed.</p> <p>6. Municipal Corporations <&wkey;1021, 1022— Actions — Presentation of Claim Precedent to Action — Injunction.</p> <p>El Paso City Charter, § 71, providing that no suit of any nature shall be maintained against the city, without averring and proving-previous application to city'council for redress, does not apply to equitable remedy by injunction to prevent irreparable injury to abutting owners by diversion of park property to other -uses.</p> <p>7. Constitutional Law <&wkey;106 — Vested Rights — Remedy—Construction.</p> <p>While remedies, remedial rights, and process are subject to legislative control, to construe a law, requiring presentation of claim to the city counsel for redress precedent to suit for injunction for irreparable injury, would make it invalid as amounting to a denial of all remedy.</p>

<p>Appeal from District Court, Anderson County; John S. Prince, Judge.</p> <p>Suit by George W. Burkitt against Charles E. Bailey and another. From a judgment for plaintiff, the named defendant appeals.</p>

<p>1. SEQUESTRATION <&wkey; 16 — FINDING OF VALUE of Chattel — Necessity.</p> <p>In suit to recover title and possession of an automobile and in the alternative for the purchase price thereof, with foreclosure of lien, plaintiff suing out writ of sequestration under which the automobile was seized, but later re-plevied by defendant, the failure of verdict and judgment for plaintiff against defendant and the sureties on the replevin bond to find the value of the automobile was reversible error.</p> <p>2. Appeal anp Error <&wkey;301 — Questions in Trial Couri^-New Trial — Apparent Error.</p> <p>Such failure was an error in law apparent on the face of the record requiring reversal, though not raised in the motion for new trial.</p> <p>3. Payment <&wkey;12(%) — Remedy of Seller-Payment of Price — Invalid Medium.</p> <p>The purchaser of an automobile for $550, who engaged to pay with “Constitutionalists’ money” at the rate of 20 cents on the dollar, impliedly warranted that the money paid by him was valid currency of the particular sort, and in the seller’s action to recover title and possession of the car, and in the alternative for the price with foreclosure of lien, it is immaterial whether there were any representations as to the genuineness of the money.</p> <p>4. Trial <&wkey;13ih~JuRY Question — Issue of Fact.</p> <p>If an issue of fact is raised as to any material question in the case, it must be submitted to the jury.</p> <p>5. Sequestration <&wkey;>16 — Payment in Counterfeit Currency — Exchange by Agent for Valid Money — Rights of Buyer.</p> <p>Where the sale of an automobile was negotiated by an agent, and the buyer paid in counterfeit currency, and the seller paid his agent $100 therein, which the agent exchanged for an amount of United States currency, the buyer, when sued by the seller, can predicate no rights on the amount of United States currency received by the agent, since it is the duty of the seller to redeem the spurious money he delivered to the agent, who must likewise redeem the money from the party to whom he exchanged it.</p>

<p>Appeal from District Court, Harris County ; J. D. Harvey, Judge.</p> <p>Suit by Mrs. Sallie Glass and others against the Texas & New Orleans Railroad Company. Judgment for plaintiffs, and defendant appeals.</p> <p>Reversed, unless remit-titurs be filed.</p>

<p>Appeal from Bexar County Court for Civil Cases; Jno. H. Clark, Judge.</p> <p>Suit by the Iowa City State Bank against M. E. Foster. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from. District Court, Anderson County; John S. Prince, Judge.</p> <p>Action by Mrs. Y. E. Miller against the P. W. Ezell Mercantile Company. From? an adverse judgment, plaintiff appeals.</p>

<p>Evidence &wkey;s420(7) — Bills and Notes — Defenses — Varying Written Instruments.</p> <p>In an action on promissory notes, defendant’s allegations that the parties orally agreed the notes should not become effective, unless plaintiff advanced certain credit to one of the defendants, and that plaintiff had failed to do so, present a good defense, since it does not seek to vary the written notes, but only to postpone their effective date.</p>

<p>Appeal from San Patricio County Court; M. A. Childers, Judge.</p> <p>Suit by C. J. Torno against John D. Cochran. From an order granting defendant’s plea of privilege, plaintiff appeals.</p>

Howzer, Judge. Abe Mulkey was convicted of violating the quarantine order, by the live stock sanitary commission for the eradication of ticks, and he appeals.

<p>1. Evidence <®=»157(6) — Admissions — Best and Secondary Evidence.</p> <p>In a suit to recover half interest in land by one claiming a§ heir by adoption of defendants’ stepmother’s first husband, defendants claiming under will of their stepmother, who, unless plaintiff were legally adopted, inherited her first husband’s undivided half interest in the land, parol proof of oral admissions by the alleged adopting parent and the stepmother in their lifetime that they had adopted plaintiff as their son were admissible as against the objection that it was secondary evidence only, that a written instrument of adoption was the best evidence, and that no sufficient predicate was laid for introduction of secondary evidence of its contents.</p> <p>2. Adoption <®=j17 — Evidence — Generad Reputation.</p> <p>In such action plaintiff could not prove legal adoption by general reputation of the adoption.</p> <p>3. Evidence <©=»236(3) — Admissions — Best and Secondary Evidence.</p> <p>In such action, plaintiff having offered evidence that his stepmother was required by her second husband to deed him all her land, her statements that she owned but a half interest in the land in controversy and deeds by which she conveyed to her second husband only a half interest therein were admissible as showing she recognized that plaintiff owned the other half-interest; such admissions by her being admissions against her interest and binding upon defendants, claiming title through her and her first husband.</p>

<p>Appeal from District Court, Jasper County; W. R. Blackshear, Judge.</p> <p>. Suit by H. 0. Howell against R. B. Ellis and wife. Judgment for defendants and plaintiff appeals.</p>

Read, Judge. Proceeding by Elizabeth Poinbeouf and another to probate the last will and testament of Mrs. Laura Stewart Hardy, deceased, contested by E. B. Stewart and others, wherein contestants, pending their appeal to the Court of Civil Appeals, questions having been certified to the Supreme Court, apply to the Court of Civil Appeals for injunction.

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Suit by A. J. Boedefeld ¿gainst A. J. Johnson, O. W. Johnson, and another, in trespass to try title. Judgment for defendants, plaintiff appeals.</p>

<p>1. Mandamus &wkey;3l51(l) — Proceeding against County purveyor to Compel* Survey — Necessary Parties.</p> <p>The owners of three surveys abutting on a river bed were necessary parties to a mandamus proceeding against the county surveyor to compel him to survey the river bed as appropriated to. the public free school fund, that plaintiff might purchase it, such proceeding necessarily involving the determination of whether or not the river bed, lying between the owners of the surveys, was public land and subject as such to survey and purchase since, on an application for mandamus, all known parties in interest should be summoned to come in and defend, and third parties . claiming an adverse interest, so that a conflict exists in the subject-matter, should be joined as respondents without regard to the validity of their claims.</p> <p>2. Navigable Waters <@=>44(3) — Abandoned Bed of Navigable Stream.</p> <p>Where a navigable river gradually left its old bed and formed a new one, the abandoned bed was not state land; when the water left the old channel, such channel ceased to be the bed of a navigable stream, lost any character of public property it might have had before, and became an accretion or reliction to the land on either side; the new boundary line being the center of the channel before the water left it.</p> <p>On Motion for Behearing. ’</p> <p>3. Navigable Waters <&wkey;45 — Violent Changes in Courses of Bivers — Effect on Abutting Property.</p> <p>Where changes in the courses of rivers occur by the sudden and violent avulsive method, the property lines of abutting or riparian owners remain the same as before.</p>

<p>1. Street Railkoads &wkey;114(9) — Collision with Street Car — Evidence.</p> <p>In action for personal injuries, evidence held sufficient to sustain a finding that a street car actually struck a wagon loaded with hay and caused it to turn over, and that the wagon was not overturned by a mere frightening of the horses.</p> <p>2. Trial <&wkey;260(l) — Repetition in Instructions.</p> <p>Where the court gave a requested instruction, it was not error to refuse another instruction whose substance was the same.</p> <p>3. Appeal and Error &wkey;>215(l) — Matters Review able — Saving- Objections.</p> <p>Complaint cannot be made for the first time on appeal that a charge was inconsistent, conflicting, contradictory, confusing, and misleading.</p> <p>4. Appeal and Error &wkey;>233(l) — Bills oe Exceptions — Objections to General Charge.</p> <p>While a formal bill of exceptions is not necessary, it is essential to show that objections to the general charge were made in writing, presented to opposing counsel and the court, before submission of the charge to the jury, and that the court did actually overrule them.</p> <p>5. Limitation oe Actions &wkey;sl82(4) — Pleading <&wkey;252(2) — Amendment oe Petition— Dieeerent Cause oe Action.</p> <p>A first amended abandoned petition is no part of a second amended petition, and that the second alleges a different cause of action from the first can be raised only by plea and proof, on the question of limitations.</p>

<p>Appeal from District Court, Tyler County; W. R. Blackshear, Judge.</p> <p>Suit by the Fidelity Lumber Company against Alma Adams and others. From the judgment, the named defendant appeals, while plaintiff assigns cross-errors.</p>

Scott, Judge. Action by Frank Chappel against the Gulf, Colorado & Santa Fé Railway Company and others and action by Clara Chappel against the same defendants were consolidated. From judgment for plaintiffs, defendants appeal.

<p>Appeal from District Court, Clay County; W. N. Bonner, Judge.</p> <p>■ Action by K. N. Hapgood and wife against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

E. Monteith, Judge. Action by V. Liuzza against the Galveston, Harrisburg & San Antonio Railway Company, begun in justice court and appealed by defendant to county court. Prom a judgment there in favor of plaintiff, defendant appeals.

Steed, Judge. Action by the Bonnett-Brown Sales Service Company against the Denison Morning Gazette. Judgment for defendant, and plaintiff appeals. Reversed .and remanded. There was a preliminary motion for certio-rari to bring up certain original papers.

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Suit by Julia H. Bass against Lee Joseph, administrator of the estate of Antonio P. Steguin and Emilia Seguin, deceased. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Appeal and Error <§=>215(1) — Presumption.</p> <p>Failure to object to an instruction raises the presumption that the party so failing approved it.</p> <p>2. Master and Servant <§=>204(2) — Federal Employees’ Liability Act — Assumption oe Risk.</p> <p>Under the federal Employers’ Liability Act April 22, 1908, e. 149, 35 Stat. 65 (U. S. Comp. St. 1916, 8657-S665), when the negligence for' which damages are sought does not amount to a violation of the terms of the federal statutes enacted for the safety of the employés, known as the Safety Appliance Acts, the defense of assumed risks at common law is left intact, so that such defense may be set up in action for injuries on railroad turntable, as against allegations that the handle was too short, there was insufficient light, the electric turner was out of order, and the current was left on therein when plaintiff was ordered to turn the table by hand.</p> <p>3. Master and Servant <§=>217(1) — Federal Employers’ Liability Act — Assumption of Risk.</p> <p>It is a well-settled rule of the common law that a servant assumes, not only the risks ordinarily incident to performance of duties of his employment, but also those arising from the negligence of the master, if he knows or in the proper discharge of the duties of his employment necessarily must have known of such negligence and of the dangers incident thereto in performing such service.</p> <p>4. Master and Servant <§=>217(20) — Federal Employees’ Liability Act — Assumption of Risk.</p> <p>A roundhouse helper who had worked for over two years about engines and a turntable, which was always lighted the same way, the lever handle of which had always been the same length, and the electrical turner had for months been in the same condition, all of which he knew, assumed the risk of injury from such conditions.</p> <p>5. Master and Servant <§=>286(32) — Federal Employers’ Liability Act — Assumption of Risk.</p> <p>Where injured servant’s petition charged negligence in ordering him to operate turntable by hand while the electric current was turned on in the machine turner, without the servant’s knowledge, there was an issue of negligence for the jury, since the servant did not assume such risk.</p> <p>6. Master and Servant <§=>217(1) — Federal Employers’ Liability Act — Assumption of Risk..</p> <p>To subject servant to defense of assumed risk, it is not necessary that he understand operation of a complicated machine, but only that he know the dangerous condition thereof, or should know it, in the exercise of reasonable care.</p> <p>7. Trial <§==>253(9) — Injuries to Servant-Instructions.</p> <p>Where injured servant’s testimony disclosed that he was legally chargeable with knowledge of some of the dangerous conditions, it was error to charge that he could recover if the master was negligent.</p> <p>8. Trial <§=>252(11) — Injuries to Servant-Instructions — Warning Servant.</p> <p>Where injured servant’s testimony disclosed that he was legally chargeable with knowledge of some of the dangerous conditions, requested instruction that he did not assume the risk if he acted under orders without time to appreciate the danger was improper.</p>

<p>Appeal from Bosque County Court; W. A. York, Judge.</p> <p>Action by Annis E. Bernhardt and. husband against Mary A. Lynch and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from Liberty County Court; C. N. Smith, Judge.</p> <p>Suit, by P. C. Campbell against A. E. Bush. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.</p> <p>Action by B. F. Dawson against the City of Houston. From judgment for defendant, plaintiff appeals.</p>

<p>1. Pabent and Child ©=>14 — Transactions Between Steffather and Stepdaughter.</p> <p>Neither the relationship of stepdaughter and stepfather nor the fact that the stepdaughter lived in the stepfather’s home and that he bought her certain items of clothing, books, and scholarship in a business college, etc., would deprive her of the right of ownership in money loaned him by her.</p> <p>2. Infants ©=328 — Gifts—Acceptance.</p> <p>An infant is capable of being a donee of property, and in a case of a gift to an infant no formal acceptance is necessary, but if the gift is for his advantage, the law accepts it for him, and will hold the donor bound; while, if the gift is not for the infant’s advantage, the law will repudiate it, at his instance, even though he in terms has accepted it.</p> <p>3. Infants ©=>31(1) — Purchase of Person-alts'.</p> <p>A purchase of personalty by an infant is voidable at his option, but the adult seller cannot avoid the transaction.</p> <p>4. Fraudulent Conveyances ©=96(1) — Gift by Father to Minor Child — Solvency.</p> <p>A gift of personal property by a father to a minor child, at a time when the father is solvent, is valid even as against a creditor.</p> <p>5. Parent and Child ©=>14 — Stepchildren —Gifts.</p> <p>As respects a stepdaughter’s right to money given or paid her by her stepfather for services rendered, and by her loaned to him, it is immaterial whether she had been emancipated by him, or whether, under the circumstances, he was in loco parentis to her and entitled to her services.</p> <p>6. Parent and Child ©=>14 — Emancipation.</p> <p>Emancipation of a stepdaughter by her stepfather does not necessarily make her liable for board and for clothing purchased by him while she was living with him, where there was no understanding by either that a charge was to be made therefor,</p> <p>7. Appeal and Error ©=>1052(5), 1056(4), 1068(1) — Harmless Error — Evidence—Instructions.</p> <p>If the verdict of the jury is the only proper verdict that could have been returned under the evidence, any errors shown as to the admission of testimony, or the giving or refusal of instructions, etc., are harmless, and do not constitute an error for reversal.</p>

<p>1. Evidence <©=>249(1) — Admission — Let-tee Written by Partner.</p> <p>Where one member of a partnership, m response to plaintiff's telegram, directed her sister to write plaintiff, and plaintiff in an action for breach of contract of employment relied thereon, such letter, it appearing that plaintiff received it and handed it to the other partner, is admissible as against objections that it contained unauthorized terms and that its contents were unknown to the partner who directed it to be written.</p> <p>2. Master and Servant <®=>41(6) — Breach op Contract op Employment — Matters op Defense.</p> <p>In an action for breach of contract of employment, the facts showing mitigation of damages by reason of the employe’s earnings after termination of the contract must be pleaded and proven by the employer.</p> <p>3. Trial <©=>350(4) — Special Issues — Submission — Answers.</p> <p>In an action for breach of contract of employment, where the defendants did not plead as mitigation earnings by the employs after termination of the contract, it is improper to submit that issue to the jury and the finding thereon should be disregarded.</p> <p>4. Appeal and Error <©=1033 (9) — Review-Harmless Error.</p> <p>Where plaintiff requested deduction of part of the recovery, although defendants were not entitled thereto, defendants not having objected cannot complain of the deduction; it being to their advantage.</p>

B. Minor, Judge. Suit by Kate Robinson and others against Margaret Faville and others for the cancellation of a deed. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from Bexar County Court for Civil Cases; Jno. H. Clark, Judge.</p> <p>Suit by Carrie B. Stewart against S. J. Watts and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Taxation <⅝=>593(3) — Actions foe Taxes —Ageeed Statement of Facts.</p> <p>An action for taxes was brought against the N. Company, and the petition alleged that defendant was incorporated under the laws of Nevada. Defendant answered under the name of the N. Company of Nevada without suggesting a misnomer. An agreed statement of facts stated that the defendant N. Company was organized under the laws of Nevada; that an inventory of property and statement of taxes attached thereto were made a part thereof; that the taxes in controversy were assessed by duly qualified and proper officers, and the assessment had been approved by the county commissioners’ court; that the taxes were unpaid; and that the property consisted of a dredging plant and its equipment, which were engaged in the performance of "a dredging contract in Galveston Bay in pursuance of the business of the defendant. The inventory mentioned indicated that it was made in the name of the N. Company of Texas, but there was nothing else to show that there were two companies of that name. Held, that, while the facts shown by the agreed statement were meager, they were sufficient to sustain a finding that the property rendered and assessed and upon which the taxes were due was the property of defendant and was duly rendered and assessed.</p> <p>2. Taxation <§=»593(3) — Actions foe Taxes— Ageeed Statement of FIacts.</p> <p>The statement in the agreed statement of facts that the property was engaged in the performance of a dredging contract in pursuance of the business of defendant was an admission that the property upon which the assessment was made was defendant’s property.</p> <p>3. Pleading <®^290(2) — Veb'ification — Necessity of Answeb undee Oath.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1906, subd. S, requires the answer to be verified, where it contains a denial of the execution by defendant of an instrument in writing upon which any pleading is founded and which is charged to have been executed by him or by his authority. Article 3710 provides that, when any petition or answer is founded in whole or in part on any instrument in writing, charged to have been executed by the other party, such instrument shall be received' as evidence without proof of its execution, unless the party by whose authority the instrument is charged to have been executed shall file his affidavit in writing denying its execution. Held, that an allegation in the petition that the taxes were duly and lawfully assessed and levied, as shown by exhibits thereto attached and made a part thereof, was, in the absence of a special exception, an allegation that the N. Company, against whom the suit was brought, made the rendition shown by one of the exhibits, and where defendant answered without objection to the name given in the petition, if 'the rendition was not made by it or its authority, it should have so pleaded under oath, and, having failed to make such a plea, could not deny that it made the rendition.</p> <p>4. Taxation <⅜»93(5) — Pbobebty Subject to Taxation — Peopeety of Noneesident.</p> <p>A state cannot levy taxes upon personal property of a nonresident temporarily within its borders.</p> <p>5. Taxation ®^98 — Peopeety Subject to ■ Taxation — Vessels and Boats.</p> <p>A vessel plying between ports of different states engaged in coastwise trade has its situs for taxation at the domicile of its owner, unless it has acquired an actual situs in another state. 6. Taxation <©=^593(2) — Actions foe Taxes— Burden of Peoof.</p> <p>Where a dredgeboat and its equipment, owned by a Nevada corporation, was in the state of Texas and rendered for taxation by the corporation, the burden was on it when sued for the taxes to show that the property was not taxable in Texas, which burden was not sustained where it did not appear how long the dredge had been in Texas or that it was ever used elsewhere than in the county where it was assessed, and it was only shown that the corporation’s business consisted of using its dredgeboats for dredging purposes in all navigable waters of the various states and in foreign countries and waters.</p>

<p>Error from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Suit by the State of Texas against the North American Dredging Company of Nevada. Judgment for plaintiff, and defendant brings</p>

<p>Appeal from District Court, Tarrant County; B. B. Young, Judge.</p> <p>Suit by the Sanitary Manufacturing Company against Charles Gamer. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, El Paso County; Ballard Coldwell, J.udge.</p> <p>Suit by Mrs. L. H. Clay, wherein John L. Dyer, administrator and personal representative of the estate of L. H. Clay, deceased, intervened against the Atchison, Topeka <& Santa Fé Railway Company. From judgments of dismissal, plaintiff and intervener appeal.</p>

<p>Appeal from District Court, El Paso County; W. B. Ware, Special Judge.</p> <p>Action by James S. Stephens against the Southern Pacific Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Guaranty <®=>16(1) — Consideration.</p> <p>The extension of a note, or the release of security, is sufficient consideration for written guaranty of the note.</p> <p>2. Guaranty <®=»92(1) — Action — Question por Court — Consideration.</p> <p>In action on written guaranty of a note, where the evidence as to valuable consideration for the guaranty by extension of the note was in the main undisputed, the issue of consideration was one of law for the court.</p> <p>3. Guaranty @=>17 — Failure op Consideration.</p> <p>Where, in'consideration of written guaranty of note of guarantor’s deceased brother, the note-holder extended the note and waived a lien on deceased’s horses under the mortgage securing the note, which horses the guarantor’s son was to use in hauling to secure funds to pay the note, the consideration for the guaranty did not fail because the deceased brother’s administrator took possession of the horses.</p> <p>4. Attachment <§=>154^-Writ — Amendment.</p> <p>The rule allowing amendment of writs of attachment to remedy clerical errors does not permit correction of a clerical error in reciting in the writ an amount in excess not only of the amount recited in the affidavit, but also in excess of the jurisdiction of the court, for the amount recited in the writ is a jurisdictional allegation, and, if in excess of jurisdiction, renders the writ 'void, not only as to the excess, but in toto, and therefore incapable of amendment.</p>

<p>1. Appeal and Error <®=v>743(]) — Assignments oj? Error — Form.</p> <p>An assignment of error containing no reference to the record, showing that the assignment was part of the motion for new trial in tlie court below, will not be considered.</p> <p>2. Appeal and Error <©=725(2), 737 — Assignments of Error — Form.</p> <p>An assignment which presents error in overruling defendant’s demurrer, both general and special, to the petition, is multifarious, uncertain, and too general to entitle it to consideration.</p> <p>3. Appeal and Error <©=3759 — Record on Appeal — Assignments.</p> <p>Under court rule 29 (142 S. W. xii), providing that assignments of error as presented in the brief shall be numbered from the first to the last, in tlieir consecutive order, and unless they are so numbered the court of Civil Appeals need not consider them, the court will not consider any assignment subsequent to the first where 3 is the next number after 1.</p> <p>4. Telegraphs and Telephones <©=365(1)— Action for Damages — Pleading.</p> <p>In an action against a telegraph company for failure to promptly deliver a death message, a petition alleging the language of the message, that plaintiff’s wife was the daughter of the deceased, referred to in the message, that, if she hail received it promptly, she would have been enabled to have attended the funeral, that defendant's servants knew or could have known plaintiffs place of residence, and that by reason of defendant’s negligence plaintiff was caused great pain and suffering, was good as against a general demurrer.</p> <p>5. Appeal and Error <©=3719(4) — Question for, Review — Special Exceptions.</p> <p>While the suggestion that a pleading is not good as against a general demurrer raises a question of fundamental error, the rule does not apply to objections raised by special exception.</p> <p>6. Appeal and Error <©=3742(3) — Assignments of Error — Sufficiency.</p> <p>A proposition under an assignment of error in an appeal by a telegraph company from a judgment against it for failure to deliver a death message, based upon the sufficiency of the petition, to the effect that in an action of this character 'the petition should formally disclose that defendant had sufficient notice of the peculiar circumstances affecting the damages from which both parties would reasonably have in Contemplation the injury which would ordinarily follow from a breach of the contract, is bad as being too general.</p> <p>7. Appeal and Error <©=743(1) — Assignments of Error — Sufficiency.</p> <p>A proposition under an assignment of error which is not a copy of any ground set out in the motion for new trial, and does not show by the record where it may be found, nor that any exception was taken to the ruling thereon, will not be considered.</p> <p>S. Appeal and Error <©=3991 — Assignments of Error — Sufficiency.</p> <p>On a telegraph company’s appeal from a judgment against it for failure to deliver a death message, an assignment of error which insists that the verdict is contrary to law and evidence, because it did not appear that addressee’s wife would have been able to catch a train to bring her to funeral, merely raises a question of fact and presents no error.</p> <p>9. Appeal and Error <©=3301 — Assignments of Error — Sufficiency.</p> <p>An assignment of error raising an issue not raised in a motion for a new trial will not be considered.</p>

<p>1. Husband and Wins <§=>169(1) — Authority off Wife — Abandoned Wife.</p> <p>An abandoned wife may mortgage her separate estate.</p> <p>2. Husband and Wife <§=>304 — '“Abandonment of Wife.”</p> <p>The sentence of a husband to the penitentiary is equivalent to the abandonment of a wife.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Abandonment.]</p> <p>3. Homestead <§=>110 — Conveyances—Abandoned Wife.</p> <p>An abandoned wife, without minor children or single daughters living with her, or other constituent members of a family, may mortgage her homestead.</p> <p>4. Witnesses <§=>164(3) — Competency — “Transactions with Decedent.”</p> <p>Testimony that decedent was the person who signed note in suit is not testimony as to a transaction with the decedent within Vernon's Sayles’ Ann. Civ. St. 1914, art. 3690.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transaction.]</p> <p>5. Witnesses <§=»144(13) — Competency — Transactions with Decedent — Agent of Corporation.</p> <p>Vernon’s Sayles’ Ann. Civ. St 1914, art. 3690, forbidding a survivor as against a personal representative to testify as to transactions with the decedent, does not apply to agents of a corporation with whom decedent had business relations, even though the business was transacted wholly through the agent.</p> <p>6. Husband and Wife <®=>85(1) — Notes— Validity — Necessaries.</p> <p>A note executed by an abandoned wife stands on the same footing as if it was executed for necessaries, where the proceeds were used in the purchase of necessaries.</p>

<p>1. Afpeal and Error 3=3694(2) — Assignments oe Erbob— Statements.</p> <p>Where the statement merely sets out the petition, without the evidence, under a proposition that court erred in not directing verdict, the assignment will not be considered.</p> <p>2. Carriers §=320(31) — Agreements Between Roads — Question for Jury.</p> <p>In action against two railroads for personal injuries, where it appeared that one had been running trains over the track of the other for 14 years, the court did not err in submitting to the jury the question as to whether there was an agreement between the roads.</p> <p>3. Railroads §=260 — Lessees and Licensees.</p> <p>A railroad is liable for negligence of other roads using its tracks, whether licensees or lessees.</p> <p>4. Appeal and Error 3=994(1) — Weight of Evidence.</p> <p>The appellate court cannot weigh each fact and decide as to the credibility of the several witnesses.</p>

<p>1. Railroads <©=>396 (1) — Injuries to Persons — Hot Cinders — Burden oe Prooe.</p> <p>One into whose eye a hot cinder is thrown by an engine 174 feet distant has the búrden of proving negligence.</p> <p>On Motion for Rehearing.</p> <p>2. Appeal and Error 3=51177(2) — Remanding Cause — Necessity.</p> <p>Where a case has been tried on an improper theory, the cause must be remanded, where it appears that under a proper view of the case, the appellee might make out,a case, although, as tried, he did not.</p>

<p>Appeal from District Court, Tarrant County; R. B. Young, Judge.</p> <p>Action by R. T. Stuart against the International Life Insurance Company and others. From judgment for plaintiffs, the named defendant appeals.</p>

Petition by W. S. Berkshire for appointment as ancillary administrator and personal representative of the estate of Robert S. Her-rington, deceased. After appointment the Atchison, Topeka & Santa Fé Railway Company intervened, filing its protest. Prom a judgment of the district court which affirmed the action of the probate court in denying the protest, intervener appeals.

<p>1. Evidence <§=>372(6) — Ancient Instruments.</p> <p>As delivery and acceptance is essential, an ancient deed against which a plea of non est factum is interposed is not, without proof of execution, admissible in evidence or effective as a conveyance; it having been found among the papers in the county clerk’s office, and no rights having been claimed or exercised thereunder until many years after its execution.</p> <p>2. Deeds <§=>53 — Execution—Juey Question —Speculative Issues.</p> <p>Where there was no evidence of the execution of an ancient deed offered against which a plea of non est factum was interposed, the question whether title passed should not be submitted to the jury as it would depend on speculation.</p> <p>3. Deeds <§=>193 — Actions—Plea oe Non Est Factum.</p> <p>Where a plea of non est factum is interposed as against a deed, the burden of establishing the execution as at common law is cast on the party relying on the deed.</p> <p>4. Deeds <§=>207 — Execution—Evidence.</p> <p>Execution of a deed against which á plea of non est factum is interposed is not established by proof that after the date of its alleged execution taxes were assessed against the grantee named, for such evidence is at best only hearsay and shows no claim of ownership or assertion of rights under the deed by the grantee.</p> <p>5. Evidence <§=>324(3) — Hearsay — What Constitutes.</p> <p>Evidence that after the purported execution of a deed the land was assessed against the grantee is hearsay.</p> <p>6. Evidence <§=>343(3) — Copies — Records —Admissibility.</p> <p>Where the original conveyance was not produced or accounted for, a certified copy of such deed as it appeared in the records is not admissible, particularly where the book containing the deed was shown to have contained copies of other instruments confessedly and admittedly forged.</p> <p>7. Evidence <§=>324(3) — Reputation—Admissibility.</p> <p>In an action involving title to land, testimony by a witness that it was generally understood in her family that the deed to her father, the original of which was not produced, was executed in payment of legal services was improperly admitted, where it did not appear that the witness’ father ever asserted any claim to the land, but it was shown that the witness never saw any of her father’s papers, and that she was too young when he died to understand anything of the matter.</p>

<p>1. Appeal and Error <⅜=»389(3) — Perfecting Appeal — Inability to Pay Costs — Proof.</p> <p>Proof of inability to pay costs in perfecting an appeal required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 209S, to be made before the court trying the case, must he before the court, if in session, and it must affirmatively appear that it was thus made to give the appellate court jurisdiction.</p> <p>2. Appeal and Error <§=⅛)89(3) — Perfecting Appeal — Inability to Pay Costs — Proof.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 209S, requiring proof of inability to pay costs in perfecting appeal to be made before the court trying the case, the judge has no power to hear proof after adjournment for the term.</p> <p>3. Appeal and Error ®^389(3) — Perfecting Appeaj>-Inability to Pay Costs — Proof.</p> <p>Hearing, while in session, proof of inability to give cost bond in the trial court would not cure irregularity in perfecting appeal in hearing proof of inability to pay costs after the court has adjourned.</p> <p>4.Appeal and Error |⅝=>792 — Dismissal on Court’s Own Motion.</p> <p>An appeal will be dismissed on the court’s own motion, where absence of jurisdictional requirements appear on the face of the record, though called to the court’s attention by a motion to dismiss, which under the rules need not be entertained.</p>

<p>Error from District Court, Milam County; J. C. Scott, Judge.</p> <p>Suit by the Rogers Lumber Company against J. B. Sypert. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Gaming <§=>48(1) — Speculative Transactions — Pleading.</p> <p>A petition alleging the ordinary transaction of the purchase by plaintiff from defendant of 15 bales of cotton for delivery October 15th, and the making by plaintiff of a contract for the resale of the cotton, also calling for delivery October 15th', which delivery plaintiff was unable to make because of defendant’s breach, did not show on its face that the transaction was a gambling one, though it alleged that in order to prevent his being forced to pay a sum in redemption of his resale contract, plaintiff replaced the cotton at a price per pound higher than he had contracted to pay defendant.</p> <p>2. Appeal and Error <§=>1056(3) — -Harmless Error — Exclusion op Evide'ncb.</p> <p>In an action for breach of contract for the sale of cotton, if certain, testimony was admissible as tending to corroborate defendant’s testimony on a collateral issue, its exclusion did not constitute reversible error, where additional evidence on the collateral issue could not have induced the jury to believe defendant’s testimony on the main issue.</p> <p>3. Appeal and Error <§=>544(1) — Record-Requests for Special Charges — Exception to Refusal.</p> <p>In a case tried before Acts 35th Leg. c. 177 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974), as to the effect of the refusal of the court to give special instructions, went into effect, where there are no bills of exception in the record disclosing that special charges were presented at the time and in the manner required by law, and the refusal to give same excepted to, the assignments relating to such charges must be overruled.</p>

<p>Appeal from District Court, Harris County ; Wm. Masterson, Judge.</p> <p>Suit by J. C. Hutcheson, against H. T. D. Wilson and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Collin County; M. H. Garnett, Judge.</p> <p>Will Dye, alias Red, was convicted of theft, and he appeals.</p>

<p>Appeal from District Court, Smith County; J. R. Warren, Judge.</p> <p>Phil Red was convicted of violating the local option law, and he appeals.</p>

<p>Appeal from El Paso County Court; E. B. McClintock, Judge.</p> <p>Suit by the Southwestern Liquor Company against B. F. McKinney.- From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from El Paso County Court; E. B. McClintock, Judge.</p> <p>Suit by the. Janssen Ostertag Manufacturing Company against Nelson I-Iémman. From a judgment for plaintiff, defendant appeals.</p>

E. Alouteith, Judge. Suit by the J. W. Carter Music Company against H. E. Kahn, begun in justice court, and appealed by defendant to county court. From a judgment of the county court for plaintiff, defendant appeals.

<p>1. Judgment ⅞=453 — Action to Set Aside— “Privity.”</p> <p>In an action of trespass to try title to 320 acres of land, warrantors, who were vouched in, believing plaintiffs’ representations that they were the sole heirs of the land in controversy, paid them $5,000 therefor, upon which the court entered its compromise judgment vesting title in the warranted owners and releasing the war-rantors from further liability on their warranty. Later suit was instituted by other heirs, and it appeared that plaintiffs in the former suit had title to but 132 of the 320 acres. The warranted owners, defendants in the former suit, sued to set the compromise judgment aside as having been procured by fraud and through mistake. Hold, plaintiffs in the instant suit were in privity with defendants' therein, plaintiffs in the former action, “privity” being defined as “a connection or bond of union between parties as to some particular transaction; mutual or successive relationship to the same right of property.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Privity.]</p> <p>2. Judgment €=>461(5) — Action to Set Aside — Evidence.</p> <p>In action to set aside a compromise judgment for fraud and mistake, evidence held to show fraud and mistake.</p> <p>3. Covenants €=>130(4) — Breach oe Warranty-Damages.</p> <p>The measure of damages in a suit upon general warranty of title to land is the purchase money, with interest at the legal rate from date of payment.</p> <p>4. Covenants €=>130(7) — Breach of Warranty-Damages.</p> <p>Where title to only a part of land sold under general warranty of title fails, the vendor is liable upon his warranty for damages bearing the same proportion to the'whole purchase money as the value of the part as to which title fails bears to the whole premises, estimated at the prices paid.</p> <p>5. Covenants €=>130(7) — Breach of Warranty-Damages.</p> <p>In an action of trespass to try title to 320 acres of land, warrantors, who were vouched in, believing plaintiffs’ representations that they were the sole heirs of the land in controversy, paid them $5,000 therefor, upon which the court entered its compromise judgment vesting title in the warranted owners and releasing the warrantors from further liability on their warranty. Later suit was instituted by other heirs, and it appeared that plaintiffs in the former suit had title to but 132 of the 320 acres. The warranted owners, defendants in the former suit, sued to set the compromise judgment aside as having been procured by fraud and through mistake. As to the warrantors, the court granted warrantees the relief only of canceling the release, in the former judgment, of warrantor’s liability in excess of $5,000. Held error, for, having by payment of the $5,000 obtained title to but 132 of the 320 acres for the warrantees, war-rantors were entitled to release of only 132/32o of their warranty liability for the purchase money with interest, and not to the extent of $5,-000 thereof absolutely.</p> <p>6. Judgment €=>401(3) — Action to Set Aside — Evidence.</p> <p>In action to set aside compromise judgment releasing plaintiff’s warrantors from liability, evidence held to show the amount of purchase price paid the warrantors.</p> <p>7. Judgment €=>461(3) — Action to Set Aside — Evidence.</p> <p>In action to set aside compromise judgment as having been procured by fraudulent representations of plaintiffs in such former suit as to their title, inducing purchase by defendants therein, evidence held to show that such defendants did not purchase a “chance of title.”</p>

R. Price, Judge. Action by Elsie Kinney and another against the Tri-State Telephone Company, wherein Nellie Kinney intervened. From judgment for the intervener, plaintiffs appeal.