Volume 203 — South Western Reporter

<p>Appeal from Criminal District Court, Williamson County; James 'R. Hamilton, Judge.</p> <p>A. H. Solomon was convicted of burglary of a private residence at nighttime, and he appeals.</p>

<p>1. Courts <&wkey;247(11) — Appellate Jurisdiction — Amount in Controversy.</p> <p>Where plaintiff, in an action for conversion of personal property, asked for $100 for mental anguish, but did not allege injury to person, and hence was not, on face of pleading, entitled to damages for mental anguish, the $100 will not be considered in determining amount in controversy, for purpose of appeal to Court of Civil Appeals.</p> <p>2. Damages <s^49 — Conversion — Mental Anguish.</p> <p>In an action for conversion of personal property, where no injury to person is alleged, plaintiff can recover no damages for mental anguish.</p> <p>3. Courts <&wkey;247(11) — Appellate Jurisdiction-Amount in Controversy — Addition of Interest.</p> <p>Where plaintiff in justice court could not have added interest without exceeding the jurisdiction of the justice court, she cannot amend in the county court by claiming interest, so as to bring the amount in controversy within the appellate jurisdiction of the Court of Civil Appeals.</p>

<p>Appeal from District Court, Harrison County; P. O. Bear<j, Judge.</p> <p>Suit by Millie Ann .Smith against P. W. Patillo. Judgment for defendant, and plaintiff appeals.</p> <p>Appellant was the wife of Louis Smith. Eighteen or twenty years prior to March 14. 1910, they purchased 65 acres of land of Oakes Ames on credit. Thereafterwards until about six years before said date, when they ceased to live together as husband and wife, they occupied and used the land as their homestead; and after they separated, until she was evicted therefrom as hereinafter stated, appellant continued to occupy and use the land as her homestead. March 14, 1910, judgment was rendered by the district court of Harrison county in favor of Ames against Louis Smith for $275, that being the amount unpaid of the purchase money, and foreclosing a vendor’s lien retained by Ames and ordering a sale of the land to satisfy the sum adjudged in his favor. At a sale made by the sheriff June 8, 1910, in accordance with the order, John Copeland was the purchaser for $337. He conveyed the land to appellee by a quitclaim deed dated June 17, 1910, in consideration, it seems, of $347 paid to him by appellee. Appellant and her husband claimed that Copeland by the deed from the sheriff, and appellee by the deed from Copeland, took title to the land as mere trustees for them, and that they were entitled, on paying to appellee the sum he paid Copeland,' to have the title vested in them. It was on this theory, appellee refusing to concede that he was their trustee, that by a petition filed February 12, 1915, they commenced a suit against appellee. In that petition they alleged:</p> <p>That, being unable to pay the Ames judgment, to prevent a sacrifice of the land, “they_ procured,” quoting from the record, “the said F. W. Patillo, in connection with John Copeland, to arrange for the advancement of said funds to satisfy said Ames judgment and to be present at said sale and buy the land in for the use of said Louis Smith and wife ; that it was agreed by and between said Louis Smith and wife and F. W. Patillo that John Copeland should buy in the land, and the deed executed to him by the sheriff should be a mortgage, and the deed executed to F. W. Patillo by Copeland should also be a mortgage as security for the money so advanced, and said Louis Smith and wife should have time to pay said mortgage, with same bearing interest from date at the rate of 10 per cent, per annum; that said Copeland did bid in said land for $337 on the 8th day of June, 1910, and received deed from the sheriff which Copeland did then agree should be a mortgage, and that said Copeland, in pursuance of said agreement, deeded the land to said Patillo by quitclaim deed; that said Louis Smith and wife, relying upon said agreement, did. not bid on said land at said sale, but accepted the agreement between them and said Copeland and Patillo, and allowed Copeland to bid in the land; that said Patillo actually knew that the deed to be made to Copeland by the sheriff should be a mortgage, and that said land was then the home of said Louis Smith and wife; that said Louis Smith and wife had. paid said Patillo on said indebtedness $300 in cotton, which was agreed should be a credit on said debt and mortgage; that said Patillo agreed to keep an account of the payments and advise said Smith and wife of the amount; that said Patillo refused to release said land to them, and that said Smith and wife theretofore had requested him to accept the amount due on said indebtedness which they alleged to be the sum of $113, which they tender into the registry of the court, or, if they be mistaken as to the amount due said Patillo, they tender such amount as shall be found by the court to be due; that they now bring this suit for the purpose of having a decree establishing the deeds to Copeland and Patillo mere mortgages and to redeem their said land from said debt, and for general relief.”</p> <p>That suit resulted in a judgment, rendered March 3, 1916, in appellee’s favor, and thereupon appellant was evicted from the land. The judgment contained recitals as follows:</p> <p>“The plaintiffs having failed to appear, and the court being informed that plaintiffs’ attorneys had withdrawn from the cause, and the defendant insisting upon said cause being tried, the court proceeded to the trial of said cause. And the court, after hearing the pleadings and the evidence, which consisted of the depositions of Louis Smith to the effect, in substance, that the allegations of plaintiffs’ petition were not true, and that the alleged agreement that the deeds referred to in plaintiffs’ petition were mortgages were not true,” etc.</p> <p>This suit was commenced and prosecuted by appellant alone against appellee alone. It was to set aside the judgment above referred to on the ground that it was procured by collusion between appellee and appellant’s husband and for the purpose of defrauding her. Appellant also prayed that the deeds to Copeland and appellee be held to be mortgages, and that she be permitted to redeem the land by paying to appellee the part, if any, not already paid to, him of the sum he paid to Copeland for the land. The court thought the testimony “insufficient to establish plaintiff’s cause of action,” and instructed the jury to return a verdict in ap-pellee’s favor. The appeal is from a judgment in accordance with such a verdict.</p>

<p>1. Assault and Batteky <&wkey;15~-1Trespasser.</p> <p>Plaintiff, in assanlt and battery, employed by defendant for service in the house, having after her discharge by him been granted a reasonable time to leave, was not a trespasser, when thereupon she telephoned for a baggage-man.</p> <p>2. Cbiminal Law &wkey;>163 — Eobmeb Jeopabdy —Punitive Damages.</p> <p>Defendant, though convicted of assault and fined, is liable to exemplary damages in a civil suit; this not being a double punishment for the same offense, in view of Const, art. 16, § 26.</p>

<p>Appeal from District Court, Toung County ; Wm. N. Bonner, Judge.</p> <p>Suit by D. G. Vick against the heirs of Jacob Werts, wherein defendants filed a cross-complaint. Judgment for plaintiff, and defendants appeal.</p>

M. Smith, Judge. Action by H. A. Knox and another against L. A. Sides. • Judgment for plaintiffs, and defendant appeals. On April 30, 1912, the appellant executed a note for 8750 to H. A. Knox and a note for $500 to Henry Ward.

<p>1. Appeal and Error <&wkey;193(5) — Foreclosure.</p> <p>In suit to foreclose chattel mortgage, failure to allege the value of the property mortgaged to secure the debt is fundamental error apparent of record, requiring reversal, whether or not there was an exception, plea, or other objection to the petition on that ground in the court below.</p> <p>2. Courts <&wkey;T70 — Pleading»—“Amount in Controversy.”</p> <p>Where petition seeking foreclosure of chattel mortgage alleged that a third person set up some claim to the property, the value of'the property, and not the debt due from mortgagor to mortgagee, was the “amount in controversy”; and, if such value was not alleged, the petition did not affirmatively show jurisdiction as to the third person.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Amount in Controversy.]</p> <p>Appeal from Wichita County Court; Harvey Harris, Judge.</p>

<p>Appeal from District Court, El Paso County; W. D. Howe, Judge.</p> <p>Action by the Copper State Mining Company against the Kelvin Dumber & Supply Company and others. From a judgment for plaintiff, defendants appeal.</p>

W. Nicholson, Judge. Action by Noble Meade, by next friend, against the Wichita Halls Motor Company for personal injuries. Judgment for plaintiff, and defendant' appeals.

Suit by O. S. Martin and wife against Fred W. Frost to cancel an oil and gas lease. Judgment for plaintiffs, and defendant appeals.

<p>1. Limitation op Actions &wkey;>145(5) — Parol AGREEMENT TO EXTEND DATE OP PAYMENT— Consideration.</p> <p>A new consideration is essential to a parol agreement, extending the date of payment of a note in order to postpone the beginning of the period of limitation.</p> <p>2. Limitation op Actions <&wkey;27 — Agreement to Extend Date op Payment.</p> <p>A parol agreement by payee, extending date of payment in consideration of the payment of interest to extended date, is a new contract, and limitation for such contract is not that for note, but that for parol agreement.</p> <p>3. Limitation op Actions &wkey;> 141 — Acknowledgment op Debt — Statute.</p> <p>Rev. St. 1911, art. 5705, providing for extension of the period of limitations, by a written acknowledgment, has no application where payee of a note, by parol agreement, had extended the date of payment in consideration of the payment of interest to extended date; this being a new contract superseding note.</p>

E. L. Roy, Judge. Petition by Newton H. Phillips against May Phillips for a bill of review to set aside a judgment in a divorce action. From a decree for plaintiff, defendant appeals.

<p>Appeal from District Court, Tarrant County ; Bruce Young, Judge.</p> <p>Suit by the Feeders’ Supply Company against the Cuero Cotton Oil & Manufacturing Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Harris County; J. D. Harvey, Judge.</p> <p>Suit by Annie L. Bowers against Herbert Bennett and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Appeal and Eeeob &wkey;?837(l) — Continú-anos <&wkey;47 — Mattebs Reviewable — Affidavits.</p> <p>Affidavit used in answer to a motion to postpone a hearing may be considered by the trial court, and the appellate court may look to the supporting affidavits to determine whether the trial court erred in overruling the motion.</p> <p>2. Appeal and Ebbob &wkey;>931(4) — Findings of Fact — Peesumptions.</p> <p>In overruling a plaintiff’s motion to withdraw announcement of ready for trial, the court must be presumed to have found in favor of defendant’s contention as contained in his affidavit in answer thereto.</p> <p>3. Limitation of Actions <&wkey;51(2) — Default in Installment — Acceual of Action.</p> <p>Where paving certificate payable in installments, and city charter, provide that all installments shall become due on default of one installment, where one installment is in default, but is paid, limitations start to run as to the others from the default.</p> <p>4. Limitation of Actions &wkey;>180(2), 183(1)— Pleading.</p> <p>No special form is prescribed for a plea of limitations, and such defense may be made by plea, or, in case the petition on its face discloses the accrual of the statutory period, by special exception.</p> <p>5. Limitation of Actions &wkey;>185 — Pleading —Sufficiency.</p> <p>A plea that plaintiff’s cause of action, if any, having accrued more than two years before suit, and defendant pleads the two-year statute of limitations, was good as against a general demurrer, and sufficient basis for evidence of failure on defendant’s part to pay an installment until it was in default, on a paving certificate which became wholly due on default in payment of one installment.</p> <p>6. Continuance <&wkey;29 — Suepbise.</p> <p>A litigant must be prepared to prove such issues of fact as he might reasonably foresee from the nature of the case, and is not entitled to withdraw announcement of ready for trial on the ground of surprise as to such matters, in the absence of any misleading acknowledgment or declaration of the adverse party.</p> <p>7. Continuance <&wkey;29 — Geounds—Suepbise.</p> <p>■ One suing on a paving certificate is held chargeable with notice of a stipulation in such certificate, and the city charter, that such certificate became wholly due on default on one installment, and cannot claim surprise, where defendant introduces evidence under a general plea of limitations to show that an installment was paid after due date.</p> <p>8. Limitation of Actions <S=^13 — Estoppel to Plead.</p> <p>Parties by their acts, not evidenced by any writing, may estop themselves from setting up the statute of limitations.</p> <p>9. Appeal and Ebboe <&wkey;966(2) — Overruling Motion fob Continuance — Abuse of Discbetion.</p> <p>Where the affidavits of the very witnesses relied on by a party to show that defendant was estopped to' set up the statutes of limitations were before the court in entering judgment, it will not be said, as a matter of law, that the court abused its discretion in overruling a motion for continuance, especially in a court case.</p> <p>On 'Motion for Rehearing.</p> <p>10. Municipal Corporations t&wkey;519(l) — Liens — Statutes.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695 (Acts 33d Leg. [1st called Sess.] c. 27, § 1), relating to renewal and extension of liens, in view of Const, art. 3, § 35, does not apply to a paving certificate and also because in referring to “either of the foregoing articles,” strictly speaking, the two preceding articles only were meant.</p> <p>11. Appeal and Error <&wkey;671(2) — Matters Review able — Record.</p> <p>Although record does not contain original petitions in consolidated actions, where transcript contains agreement that only the amended petitions and answers shall be included, and plaintiff's motion to withdraw its announcement of ready for trial stated “suit was instituted February 19, 1915,” it cannot be said there was not sufficient showing of the time of commencement of the action to warrant the appellate court in holding the action barred by limitations.</p>

<p>1. Witnesses <i&wkey;240(4) — Leading Questions.</p> <p>A question, “Did you * * * sign this document * * * upon the representations made by D.?” and a question, “Now Mrs. T. state to the jury whether or not at the time you * * * signed this agreement or voucher, you relied upon the representations and statements made by the claim agent, and the representations made by Dr. E. with reference to tho injuries,” were leading and suggestive.</p> <p>2. Appeal and Error <&wkey;1048(3) — Prejudicial Error — Leading Questions.</p> <p>Where defendant’s doctor told plaintiff her injuries were slight and advised her to settle, and defendant’s claim agent advised her to settle because her injuries were slight, admission of answers to such leading questions, could not be held to be harmless, where there was no other testimony tending to show the same facts.</p> <p>3. Release <&wkey;17(2) — Damages to Person— Representations by Physician.</p> <p>Advice of a physician of a railroad to settle, or his false representations as to extent of injuries, are not grounds for setting aside a release, where the physician had nothing to do with obtaining releases and the claim agent had no knowledge of the false representations and advice, or did not knowingly take advantage of the injured person’s confidence in the physician.</p> <p>4. Trial <&wkey;260(2) — Instructions — Requests. •</p> <p>Where all the issues and principles of law are contained in the general charge, it was proper to refuse requested instructions.</p>

<p>1. Insurance t&wkey;513 — Indemnity Insurance —Actions Against Insurer.</p> <p>Where indemnity company refused to defend a suit as specifically agreed in a separate paragraph of the policy, and insured had to employ attorneys and others to defend, insured could recover obligations so incurred, although not yet paid, regardless of a no-action clause in the policy, providing that no action should lie against the insurer except to recover money actually expended, etc., because assured could not have supposed that the insurer would breach its contract at the outset.</p> <p>2. Insubance <&wkey;513 — Indemnity Policies —Breach by Insurer — Damages.</p> <p>Where insured in indemnity policy had to defend a suit because of failure of the insurer to do so it could not recover railroad fare and hotel bills expended by an investigator, where competent investigators could have been employed at the .place where the investigation took place.</p>

<p>Judgment- <&wkey;143(9) — Setting Aside Default— Gkotjnds fob.</p> <p>Where a defendant had filed an answer on a former trial, and Ms codefendant promised to have his attorney represent him op the trial in question, but failed to do so, and default was entered, and there was only one issue which the jury decided in favor of such codefendant, the court erred in not setting aside a default judgment.</p>

<p>Appeal from Harris County Court; 'W. E. Monteith, Judge.</p> <p>Action for debt by Peter Ludtke against Mrs. Idah Sam, executrix of the estate of' Joe M. Sam, deceased. Judgment -or plaintiff, and defendant appeals.</p>

Actions by the Wichita Falls Sash & Door Company and by J. L. Jackson against Nick Pappas and others were consolidated. From an adverse judgment, the plaintiff company appeals.

Error from District Court, Tarrant County ; R. E. L. Roy, Judge. Suit by B. M. Mosber against Mrs. Margaret Ann Holloway, individually and as executrix of the estate of H. C. Holloway, deceased, A. S. Dingee, and others. Judgment for defendants, and plaintiff .brings error.

<p>1. Limitation of Actions <&wkey;>167(l) — Action to Enforce Right of Action Pledged — Bar of Debt.</p> <p>Though a pledge can be subjected to payment of a debt already barred, where the contract of bailment gives the pledgee the right to sell the article in case the debt is not paid, recovery cannot be had on a collateral note, where resort must be had to the court to establish the original debt and enforce the rights, and such debt is barred.</p> <p>2. Limitation of Actions <&wkey;146(l) — Verbal Acknowledgment.</p> <p>Mere verbal extension of past-due note without further consideration is within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5705, providing that acknowledgment of justness of claim after it is due, unless in writing, shall not toll the running of the statute.</p> <p>3. Limitation of Actions <S=o167(2)— Foreclosure of Mortgage — Bar of Debt.</p> <p>The debt secured being barred by limitations, action to foreclose mortgage is barred.</p>

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Suit by Andrew J. Fleming against the Galveston, Houston & Henderson Railroad Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Agriculture <&wkey;l — Searches and Seizures <&wkey;7 — Police Power — Unreasonable Seizure of Personal Property.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4459, making it unlawful to keep a citrus plant infected with disease, and authorizing destruction thereof by commissioner of agriculture or his representative, is within the police power of that state, and cannot be held to authorize an unreasonable seizure of private property contrary to Constitution.</p> <p>2. Constitutional Law &wkey;>320 — Due Process oe Law — Taking Private Property.</p> <p>Although the method provided by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4459, for destruction of citrus plants infected with diseases, does not have all the elements of judicial trial, it is not in violation of Constitution as to taking private property without due process of law.</p> <p>3. Constitutional Law &wkey;>251’— Public Welfare.</p> <p>Constitution, as to taking property without due process of law, has a different meaning when applied to. controversies between citizens than it has when property is taken or destroyed by the government for public' use or public welfare.</p> <p>4. Constitutional Law <&wkey;251 — Police Power.</p> <p>When the Legislature, in the exercise of police power of state, interferes with the use and enjoyment of private property, all that is necessary to make the interference valid is that it be justified by established rules applicable to the special case.</p> <p>5. Constitutional Law &wkey;>81 — Police Power.</p> <p>Every one’s rights to the use and enjoyment of property is limited, in an organized society, by consideration of public welfare and safety,- and the Legislature, in exercise of police power of the state, can enforce such limitation by any reasonable method appropriate to its accomplishment, and the citizen must submit.</p> <p>6. Eminent Domain <&wkey;2(l) — Constitution-Taking Private Property for Public Use.</p> <p>The contention that Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4459, as to destruction of citrus plant infected with disease, is in violation of constitutional inhibition against taking private property for public use without compensation, cannot be sustained, since such constitutional provision applies only where the state takes private property under powers of eminent domain, and is not a limitation upon the police power of the state.</p> <p>7. Constitutional Law <&wkey;316 — Constitutional Right of Appeal.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4459, as to destruction of citrus plant infected with disease being an appropriate exercise of police power, it was competent to provide that decision of commissioner of agriculture as to existence of disease should be final, the constitution not requiring that a right to appeal be given.</p>

<p>1. Evidence <&wkey;353(3) — Recitals in Void Judgment and Deed.</p> <p>Though because of lack of power of the probate court to decree specific performance of a contract to convey land, its order that D.’s administrator make title to land. to O., and the administrator’s deed in compliance therewith, are void, the recitals therein that D. held the title in trust for O., as shown by a certain instrument executed by D., are admissible as circumstances tending to prove that D. acquired the title for O., and held it in trust for him, and by an instrument in writing, which had . been lost, acknowledged the beneficial title to be in O.</p> <p>2. Evidence >§==186(2) — Lost Paper— Secondary Evidence.</p> <p>A paper being lost so that it could be proved by parol, a written statement of its contents, made at time of its examination by witness, which he could swear was correct, was admissible.</p> <p>3. Evidence <&wkey;353(3) — Recitals in Ancient Instruments.</p> <p>Recitals in ancient instruments: Petition of O. to court for D.’s administrator to make deed to O., and deed of O. to O., that D. held the title in trust for O. and C. — are, in action involving title, not objectionable as self-serving declarations, hearsay, and immaterial.</p> <p>4. Infants <&wkey;24 — Adverse Possession — Running of Statute.</p> <p>Where adverse possession commenced in the lifetime of the owner, minority of his heirs does not affect the bar or interrupt running of the statute.</p> <p>5. Adverse Possession >@=3101 — Possession of One of Two Conveyed Tracts.</p> <p>Where deed conveys two separate tracts, one farm land, the other woodland, actual possession by the grantee of the farm land only is not sufficient to continue the grantor’s adverse possession as to the woodland.</p>

<p>1. Limitation of Actions <&wkey;127(4) — Liability or Indorsee — Amendment or Pleading.</p> <p>A petition setting up payee’s execution of notes and liability of indorser, but not excusing failure to sue maker before second court term after maturity, required by Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 579, stops the running of the statute of limitations, and an amended petition supplying the allegations does not constitute a new cause of action.</p> <p>2. Bills and Notes <&wkey;>408 — Liability or Indorsee — Remedy or Holder — Statutes.</p> <p>The remedy of the holder of a promissory note under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 579, to secure and fix the liability of an indorser by suit against maker before the first term of court to which it can be brought after accrual of cause or before the second term by excusing delay is a cumulative remedy, and is not exclusive of the right to fix liability of in-dorser by pi’otest and notice under the law merchant.</p> <p>3. Bills and Notes t&wkey;299 — Liability oe Indorsee — Insolvency oe Maker as Excusing Delayed Suit.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 579, requiring suit against maker at first or second term after accrual of cause of action to fix liability of indorser, the insolvency of the maker excuses compliance with the statute.</p> <p>4. Bills and Notes <&wkey;299 — Liability oe Indorsee — Excusing Delayed Suit — Waiver oe Indorsee.</p> <p>Under such statute indorser may waive holder’s duty to sue.</p>

<p>Appeal from District Court, Erath County; W. J. Oxford, Judge.</p> <p>Suit by J. B. McAdams against O. B. Hester. Judgment for plaintiff, and defendant appeals.</p>

<p>■ Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by Ben Ransaw and another against the Pullman Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Mines and Minerals <&wkey;78(l) — Oil and Gas Leases — Construction.</p> <p>An oil and gas lease provided that after drilling operations had been begun operations might be suspended for 30 days without forfeiture of the lease, and that after drilling operations were begun no tender of the stipulated payment should be necessary when the operations were being carried on in good faith, that if lessee should sink a well and discover oil in paying quantities the lease was to remain in full force for 10 years from such discovery and as much longer as oil should be produced in paying quantities, and, having made such discovery, the lessee was to he exempt from forfeiture, except after judicial ascertainment that he had failed to perform his duty, and that regardless of any other provisions in the lease drilling, when commenced, should be prosecuted with reasonable diligence. Held, that the lease was subject to forfeiture on account of the suspension of drilling following the completion of a well by the lessee, and that the sinking of one well did not make the lease absolute, so that thereafter the. lessee was merely bound to prosecute drilling 'operations with reasonable diligence.</p> <p>2. Mines and Minerals <&wkey;78(7) — Oil and Gas Lease — Forfeiture.</p> <p>Where an oil and gas lease was made subject to forfeiture on account of the suspension for 30 days of drilling following the completion of a well, unless a stipulated cash payment was made, but providing that reasonable opportunity for preventing forfeiture should be given after a judicial ascertainment thereof, and the lessee suspended drilling for more than 30 days without tendering the cash payment, judgment of cancellation should have been entered, giving the lessee an opportunity to prevent forfeiture by complying with the lease.</p> <p>3. Mines and Minerals <&wkey;78(l) — Oil and Gas Lease — Construction.</p> <p>Where an oil and gas lease provided that forfeiture might be avoided by the payment of a stipulated sum in cash every six months, an absolute obligation on the part of the lessee to prosecute the drilling or to pay the stipulated amount was not imposed; the only contractual liability imposed by the contract being that following a termination thereof.</p> <p>4. Mines and Minerals <&wkey;78(7)-~Oil and Gas Lease — Breach—Judgment.</p> <p>.Where an oil and gas lease provided that forfeiture could be prevented by the payment of a stipulated sum or by resumption of the drilling, the lessor was not entitled, where the lease was breached, to judgment both for cancellation and for the cash payment.</p>

Briggs, Judge. Separate applications by Mrs. Bettie C. Ward and Eugene Compton, praying to be appointed guardian of the person and estate of Mrs. Matilda Compton. From a judgment appointing Eugene Compton as guardian, Mrs. Ward appeals.

<p>1. Principal and Surety <&wkey;6 — Surety-ship Distinguished prom Guaranty.</p> <p>Whore a defendant, a claimed guarantor, with his codefendant, the principal debtor, signed an instrument reading that in consideration of the extension of further time to pay an account, and of the creditor’s extending further credit to the debtor, tho undersigned jointly and severally guaranteed to the creditor unconditionally the payment in full of the balance due the creditor on account, as shown by its bhoks at the date of the acceptance of the contract, etc., such contract was one of sure-tyship, and not of guaranty.</p> <p>2.'Principal and Surety &wkey;>152 — Joinder as Dependants.</p> <p>Under Rev. St. 1911, arts. 1842, 1843, 6336, 6337, the latter two sections providing that no surety shall be sued unless his principal is joined .with, him, etc., a creditor company properly joined in one suit its debtor and the surety who signed with the debtor a purported guaranty of the account; it being a general doctrine that the rights, of ail parties in the subject-matter of litigation, and all matters growing out of the same transaction, should be settled in one suit.</p> <p>3. Contracts &wkey;>136, 137(1) — Illegality.</p> <p>Where the contract grows out of. and is connected with an illegal or immoral act, a court' of equity will not enforce it; and if the contract is in part only connected with the illegal transaction, and growing immediately out of it, though in fact a mere contract, it is equally tainted by it.</p> <p>4. Contracts <&wkey;>137(4) — In Restraint op Trade — Separation op Legal and Illegal Parts.</p> <p>Where a company sold merchandise to its agent for resale under a contract violative of the anti-trust act (Acts 28th Leg. c. 94), in that it provided he should have no other business, and subsequently sold the same under a new contract, which was free from illegality, the amount due under such valid contract being susceptible of separation, the company could recover judgment against such agent for the amount due under the valid contract.</p> <p>5. Monopolies <&wkey;>17(2) — Anti-Trust Act-Contract — Restricting Purchases.</p> <p>A company’s contract for the sale of merchandise to its agent, whereby the agent agreed “to have no other business or employment,” not only required him to devote his entire time to the pursuit of the business, but restricted him to making purchases of merchandise from the company only, and so was violative of the antitrust act and void.</p> <p>Higgins, J., dissenting in part.</p>

<p>1. Marriage <&wkey;50(l) — Common-Law Marriage — Evidence.</p> <p>Evidence held conclusive that a common-law marriage existed.</p> <p>2. Marriage i&wkey;22 — Common-Law Marriage —Duration oe Relation.</p> <p>No fixed or continuous period of time of cohabitation is necessary to constitute a common-law marriage.</p> <p>3. Marriage &wkey;>51 — Common-Law Marriage —Question of Fact.</p> <p>That a railroad man had a sweetheart in every town, and kept other women at intervals at other places, does not make the question of whether there was a common-law marriage one for jury, where there was otherwise positive uneontradicted evidence of a common-law marriage with the woman in question.</p>

<p>Appeal from Wichita County Court; Harvey Harris, Judge.</p> <p>Action by Sidney, Webb against the Canadian Oil & Gas Company and others. Judgment for plaintiff, and defendant Canadian Oil & Gas Company appeals,</p>

W. Swayne, Judge. Action by C. H. Bencini, doing business under the trade name1 of the Hico Oil Company, against the Southwestern Surety Insurance Company. Judgment for plaintiff, and defendant appeals.

<p>Appeal from District Court, Tarrant County ; Ben M. Terrell, Judge.</p> <p>Suit by W. E. Herring, as guardian, against A. C. Barber and others. From a judgment for defendants Barber, plaintiff appeals.</p>

<p>1. Taxation &wkey;241(2) — Exemptions — Statute — “Pueelt Public Charity.”</p> <p>A hospital organized by some members of a church parish, having the general purpose to provide for and nurse sick and destitute persons, to which all persons in need of treatment were freely admitted whether they could pay or not, though such as were able to pay were expected to do so, as the hospital had no source of revenue other than such fees and donations to it, was a “purely public charity” whose land and buildings were exempt from taxation under Vernon’s Sayles’ Ann. Civ. 'St. 1914, art. 7507. § 6, and Const, art. 8, § 2.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Purely Public Charity.]</p> <p>2. Taxation &wkey;>251 — Charities—Purpose ox Ciiarge — Sufficiency ox Evidence.</p> <p>In suit by a charitable hospital against the tax collector and other officers of the county to restrain them from enforcing the collection of taxes, evidence held not to show 'that the charge ma'de by the hospital against patients financially able to pay was made with a view to profit, but rather that it was made to carry out the dominant purpose and general beneficent design of the founders of the hospital.</p>

<p>1. Courts <&wkey;>170 — Jurisdiction as to Amount — Petition.</p> <p>Where, in one count of petition, plaintiff sued for $150 as the value of a house, and in another count alleged house to be worth $250, and sued for that amount in conversion, the petition, on its face, did not show that less than $200 was involved, and was sufficient to give jurisdiction to county court.</p> <p>2. Limitation of Actions <&wkey;180(2) — Facts as Snows by Petition.</p> <p>A cause of action is not shown by the petition to have been barred by limitation, so as to be subject to special exception, where petition alleges, as the date of conversion, a date less than two years prior to the bringing of the action.</p> <p>3. Frauds, Statute of <&wkey;63(l) — Parol Reservation of House — Interest in Land.</p> <p>Where land is conveyed by a warranty deed containing no reservations, a parol agreement reserving title to a house on such land is in effect a parol sale of an interest in land, and within the statute of frauds (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3965).</p> <p>4. Frauds; Statute of .<&wkey;144r—Estoppel-Promise of Grantee.</p> <p>Where land is conveyed by a warranty deed containing no reservations, but grantor by parol reserves the right to remove a house sold to another prior to the conveyance, grantee is not estopped to assert the statute of frauds, where his promise to permit removal of house was not made with fraudulent intent.</p> <p>5. REFORMATION OF INSTRUMENTS &wkey;>31—JU-RISDICTION.</p> <p>Where title to a house on land conveyed by warranty deed is reserved by parol, a court having jurisdiction will reform deed to include reservation, but such jurisdiction is in the district court, and not in the county court.</p> <p>6. Frauds, Statute of &wkey;>125(2) — Parol Sale of Interest in Land — Action Thereon.</p> <p>Where land is conveyed by warranty deed, but by parol agreement grantor reserves right to remove house sold to another prior to the conveyance, such agreement being within the statute of frauds, grantor cannot recover damages for breach thereof.</p>

<p>1. Carriers &wkey;47(l) — Agents — Authority to Contract to Furnish Cars.-</p> <p>A railroad station agent has authority to contract to furnish freight cars at a certain time and place.</p> <p>2. Carriers <&wkey;228(5) — Damage to Stock — Negligence of Shipper.</p> <p>Evidence held sufficient to sustain a finding that a shipper of hogs had no knowledge of a shortage in cars at the time he placed his hogs in railroad stock pens.</p> <p>3.. Carriers &wkey;129 — Contract to Furnish Cars — Discrimination.</p> <p>A carrier knowing of a car shortage cannot evade its obligation to furnish cars for hogs where it so contracted, where it did not notify the shipper of such shortage, to the shipper’s damage, by showing that it would have been a discrimination against other shippers.</p> <p>4. Appeal and Error &wkey;>932(l) — Matters Reviewable — Oral Findings.</p> <p>In the absence of a special finding on rendering a general judgment, it will not be presumed that the trial court allowed more than was asked for in the petition for certain items of damages, although the court orally stated that damages on such items were an amount in excess of that asked for.</p> <p>5. Appeal and Error <&wkey;926(7) — Qualification of Witnesses — Presumptions.</p> <p>Where no objection was made as to the qualification of witnesses to express opinions, it will be presumed that the court satisfied himself of their qualification, and that appellant was satisfied 'therewith.</p> <p>6. Appeal and Error &wkey;>931(9) — Findings —Requests—Re view.</p> <p>Since statute requires a party who desires specific findings of fact to make requests therefor when the case is tried before the court, in the absence of such requests, the appellate court will view the evidence in the light most favorable to the judgment.</p> <p>7. Appeal and .Error <&wkey;553(l) — Statement of Facts — Bills of Exceptions — Review.</p> <p>A bill of exception cannot be considered as a part of the statement of facts, nor as part of the judgment, nor as a finding of fact by the court upon which the judgment is based.</p>

B. Hopkins, Judge. Consolidated suits between Augustine Ce-laya and others and the City of Brownsville. Btrom the judgment rendered, certain of the former appeal.

W. Dean, Judge. Trespass to try title by R. W. Barkley and others against Mrs. Sallie E. Gibbs and others. Judgment for defendant Sallie E. Gibbs, and plaintiffs appeal.

Mann, Judge. Action by Thomas Goggan & Bro. against W. M. Mills, wherein the Westchester Eire Insurance Company was garnished. Judgment for plaintiff against the garnishee, and the garnishee appeals.

D. Harvey, Judge. Action by F. Scheppelman against the Houston Belt & Terminal Railway Company. Prom a judgment for plaintiff and a denial of new trial, defendant appealed to the Court of Appeals for the First 'Supreme Judicial District. On transfer to the Ninth Supreme Judicial District.

<p>Appeal from District Court, Tarrant County ; Ben M. Terrell, Judge.</p> <p>■Suit by James M. Ellis against the Houston & Texas Central Railway Company. Relief denied, and plaintiff appeals.</p>

<p>Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.</p> <p>Action by the Colorado Canal Company against the Union Warehouse & Elevator Company, W. L. Blair being substituted as defendant. From an adverse judgment, defendant Blair appeals.</p>

Action by the Peden Iron & Steel Company against E. G. Jenkins and others. Judgment for defendants, motion for new trial overruled, and plaintiff appeals.

B. Keith, Judge. Suit by the Cooper Grocery Company against Frank Neblett and J. W. Neblett. The last-named defendant dying .after institution of suit, Mrs. E. A. Neblett, as his executrix, was substituted as a party defendant. From a judgment against the first defendant, but in favor of the executrix, plaintiff appeals.

<p>PROHIBITION <S&wkey;9 — To Prevent Trial of Suit.</p> <p>Prohibition will not issue to prevent a lower court from entertaining a suit to set aside, for fraud and perjury, a judgment recovered by relator, on the ground that the allegations in the petition in the spit to set aside do not state a cause of action; for such petition is subject to amendment, and to so summarily dispose of the cause of action would be to pass upon its merits without giving the party his day in the trial court.</p>

<p>Appeal from Taylor County Court; E. M. Overshiner, Judge.</p> <p>Action by J. E. Sanders and another against the Beaumont Cotton Oil Mill Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Taylor County Court; E. M. Overshiner, Jud'ge.</p> <p>Action by R. H. Reeves against the Beaumont Cotton Oil Mill Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Error from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Suit by L. II. Crawford and others against W. B. Gibson and others. Judgment for defendant named, and plaintiffs and Mrs. Lucy M. Crawford bring error.</p>

<p>Error from Coryell County Court; H. E. Bell, Judge.</p> <p>Action by John E. Davidson against the Modern Order of Prtetorians. Judgment for plaintiff, and defendant brings error.</p>

<p>Limitation of Actions <S=>148(3) — Extension of Note-Statutes.</p> <p>Acts 33d Leg. c. 123 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5693-5695), extending the running of the statute of limitations as to notes and deeds of trust, where duly executed contract of extension has been filed of record, does not require contract to be recorded at any particular time, and an extension filed for record some years after its execution, but before renewed obligation was barred by limitation, held sufficient.</p>

<p>Appeal from District Court, Dallas County ; W. F. Whitehurst, Judge.</p> <p>Action by Boren-Stewart Company and others against Detroit Fire & Marine Insurance Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Hamilton County Court; Joe H. Eidson, Judge.</p> <p>Suit by O. C. Baker against the Stephen-ville, North & South Texas Railway Company. Erom judgment for plaintiff, defendant appeals.</p>

<p>1. Aliens <@=14, 16 — Property Rights — Statute.</p> <p>Acts 5th Leg. e. 70, carried forward into Vernon’s Sayles’ Ann. Civ. St. 1914, art. 15, providing that no alien shall acquire title to or own any land in the state except as otherwise provided, but that they shall have such rights as to personal property as are accorded citizens of the United States by the laws of the nation to which the alien shall belong, or by treaties of such nation with the United States, except as the same may be affected by the act and the general laws of the state, is cumulative, and not. restrictive of the common and general laws of the state, permitting, aliens to inherit personal property and to sue therefor.</p> <p>2. Aliens @=10 — Property Rights — Statute.</p> <p>Under such statute the provisions of the state laws must first be looked to in determining the rights which would, in any event, accrue to an alien, regardless of whether or not his own country grants reciprocal rights to citizens, and if it did and accorded more, the state laws, in the absence of restrictive provisions, express or implied, would ipso facto expand to comprehend the additional benefits allowed by that of the alien’s domicile.</p> <p>3. Master and Servant <©=361 — Workmen’s Compensation Act — Right oe Nonresident Aliens.</p> <p>Under the Workmen’s Compensation Act (Acts 33d Leg. c. 179 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz]), not excluding nonresident aliens from recovering the benefits thereby provided, and under Acts 5th Leg. c. 70, carried forward into Vernon’s Sayles’ Ann. Civ. St. 1914, art. 15, giving aliens such rights to personal property as are accorded citizens of the United States by the nation to which the alien may belong, or by treaties, etc., except as the same may be affected by the general laws of the state, nonresident •aliens are entitled to recover the benefits provided by the Workmen’s Compensation Act.</p>

<p>Ai>peal from District Court, Travis County; Geo. Calhoun, Judge.</p> <p>Suit by Ed. J. Walsh against J. A. Stroburg. Judgment for plaintiff, and defendant appeals.</p>

P. Alexander, Judge. Action by W. B. Lawson, as administrator of W. T. Weaver, deceased, against the Grand Lodge, United Brothers of Friendship of Texas and Sisters of Mysterious Ten; William Dials, Thos. Darden, and others intervening. Judgment for plaintiff, and the interveners named, and the defendant appeals.

Masterson, Judge. Action by Jesse Edwin Robinson and others against the Galveston, Harrisburg & San Antonio Railway Company. The two suits were consolidated, and there was judgment on verdict for defendant, and plaintiffs appeal.

<p>Appeal from McLennan County Court; Geo. N. Denton, Judge.</p> <p>Suit by G. Stratton against M. M. Mosley and wife. Judgment for plaintiff, and defendant M. M. Mosley appeals.</p>

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Action by Mary S. Smith against the American Central Life Insurance Company. From judgment -for plaintiff, defendant appeals.</p>

Suit by the Jeff Bland Lumber & Building Company,’ a private corporation, against the Railroad Commission of Texas. From the sustaining of a demurrer to the petition, plaintiff appeals.

<p>Appeal from District Court, Dallas County ; W. F. Whitehurst, Judge.</p> <p>Habeas corpus by W. B. Slaughter and wife against C. E. Oakes and others. From judgment for defendants, plaintiffs appeal.</p>

<p>1. Justices oe the Peace &wkey;>174(26) — Evidence Admissible under Pleadings.</p> <p>In an action tried first in the justice court, and later, on appeal, in the county court, evidence as to a written contract was admissible, although written contract was not pleaded, no pleadings being required by statute in the justice court or on appeal in the county court.</p> <p>2. Justices oe the Peace &wkey;»174(23) — Judgment — Notice to Defendant.</p> <p>Where it is apparent, from a judgment for the plaintiff in the justice court, that it was founded on a written contract, such judgment shows that such contract must have been pleaded in that court, and is notice to the defendant, in an appeal action in the county court, that plaintiff is seeking to recover on a written contract.</p> <p>3. Pleading <&wkey;403(3) — Deeects—Cube bt Pleadings oe Adverse Party.</p> <p>Where defendant’s pleading denies the existence of a written contract, such denial raises the issue of whether such contract ever existed, although contract was not pleaded by plaintiff, and evidence tending to show whether it existed is competent.</p> <p>4. Contracts <&wkey;29 — Question for Jury-Existence oe Contract.</p> <p>Question of whether a certain written contract ever existed is for the jury.</p> <p>5. Appeal .and .Error1 <&wkey;1050(4) — Secondary Evidence — Harmless Error.</p> <p>The introduction of a copy of a letter in evidence, without notice to produce the original, was harmless error, where such letter did not contradict evidence of the adverse party.</p> <p>6. Appeal and Error <&wkey;1056(l) — Harmless Error — Exclusion of Evidence.</p> <p>The refusal to permit a witness to testify that plaintiff did not effect a compromise in a lawsuit, if error, was harmless, where witness testified that he effected compromise through 1 correspondence with the opposing attorney, such evidence excluding the idea of plaintiff assisting in the settlement.</p> <p>7. Contracts <&wkey;29 — Execution — Jury Question.</p> <p>Where there is a material difference between the terms of a contract as testified to by plaintiff and as testified to by defendant, it was reversible error for the'court to refuse to submit to jury the issue of whether contract as testified to by plaintiff was executed and delivered.</p>

<p>Appeal from Jim Wells County Court; L. Broeter, Judge.</p> <p>Suit by J. P. Reed against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

B. Blair, Judge. Suit between Bluford Baker and others and Geo. W. Cole, Jr. From a decree of county court on appeal from justice court the former appeal.

Ballard Coldwell, Judge. Action between Lee Harlan and others and the Acme Sanitary Flooring Company and others. Judgment for the latter and the former appeal.

<p>Appeal from District Court, Bexar County; W. S. Anderson, Judge.</p> <p>Suit by J. L. Cunningham against F. T. Alexander, the Alamo Trust Company, and others. Judgment for plaintiff, and defendant Alamo Trust Company appeals.</p>

<p>Appeal from District Court, Travis County; Ireland Graves, Judge.</p> <p>Trespass to try title by A. Robinson, trustee, against Mrs. M. V. J. McGuire and husband. Judgment for defendants, and plaintiff appeals.</p>

Llewellyn, Judge. Suit by the Bradford Hicks Lumber Company against the Kirby Lumber Company and others for injunction. Judgment for plaintiff, and- defendants appeal.

<p>1. Chattel Mortgages <@=>277 — Foreclosure — Supplemental Petition — General Demurrer.</p> <p>A supplemental petition in reply to defendants’ answer, in a suit on notes and chattel mortgage on machinery given by the purchaser thereof, held sufficient when tested by general demurrer.</p> <p>2. Sales <&wkey;168% (6) — Remedies por Breach —Notice.</p> <p>Where the seller of machinery stipulated in the contract that the buyers must notify it by registered letter of any defects therein within six days of the first use of the engine, the stipulation was reasonable, and the buyers were bound thereby.</p> <p>3. Judgment <&wkey;256(2) — Authority op Court to Enter — Special Verdict.</p> <p>Although the trial judge is required to render judgment in conformity to a special verdict, yet where the verdict finds issues in favor of one or the other party, and it finds facts supported by the evidence which clearly entitle one to a judgment, the court should so render judgment.</p> <p>4. Sales &wkey;>121 — Acceptance — Time eor Returning Goods — Waiver of Right to Rescind.</p> <p>Where the undisputed evidence shows that the defendants used the machinery for several months, after knowing of the defects therein, without offering to rescind, they confirmed the contract of purchase and waived the right to rescind.</p> <p>5. Chattel Mortgages <@=>79 — Fraud and Deceit — Evidence.</p> <p>Evidence, in a suit upon notes and chattel mortgago given to purchase of machinery, held insufficient to show that fraud or deceit was practiced inducing defendants to sign the contract.</p> <p>6. 'Sales <&wkey;>418(19) — Breach oe 'Contract.</p> <p>Where the seller of machinery did not agree to pay for labor or repairs thereon, the buyer cannot recover therefor.</p> <p>7. Sales <&wkey;418(19) — Breach oe Conte act-damages — Speculative Damages.</p> <p>In a suit by seller to recover on notes and chattel mortgage given by buyer for purchase of an engine and plows, the defendant cannot recover damages for breach because of defects in machinery, preventing them from plowing for others; the profits thereof being conjectural and speculative.</p> <p>8. Sales <&wkey;4X8(19) — Breach op Contract-Damages.</p> <p>In a suit for price of engine and plows, the buyer cannot recover damages resulting from inability to plow for others due to defects in machinery, where the buyer did not inform the seller at the time of purchase that he expected to plow for others.</p>

<p>1. Insurakcb <&wkey;448 — Lire Insurance — Murber oe Insured by Beneficiary.</p> <p>Despite Const, art. 1, § 21, and Rev. St. 1911, art. 2465, providing that no conviction shall work forfeiture of estate, the beneficiary named in a life insurance policy, who feloni-ously kills insured to accelerate the due date of the policy and collect the money, cannot recover the proceeds of the policy against the insurance company issuing it.</p> <p>2. InsubaNce i&wkey;448 — Life Insurance— Murder of Insured by Beneficiary — Cancellation of Liability.</p> <p>A life insurance company’s liability on a policy is not canceled because the beneficiary named in the policy feloniously kills the insured.</p> <p>3. Property <&wkey;4 —Life Insurance — Proceeds as Personalty.</p> <p>The proceeds of a life insurance policy is in the nature of, or constitutes, personal property.</p> <p>4. Descent and Distribution <&wkey;51 — Proceeds of Insurance — Causing Death of Intestate.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2465, providing that no conviction shall work corruption of blood or forfeiture of estate, and that there shall be no forfeiture by reason of death by casualty, and article 2462, providing that in the absence of any child or children or their descendants, the whole of the personal estate of one dying intestate shall pass to his surviving wife, where a wife, the beneficiary of her husband’s life insurance policy, feloniously killed such husband, who died intestate and without children, to accelerate the due date of the policy and obtain the insurance money, the liability of the insurance company to the husband’s estate not being canceled, and the proceeds of the policy being personalty, the wife was entitled to them.</p>

<p>Appeal from District Court, Harris County; Wm. Master son, Judge.</p> <p>Suit by Sophie Durfee against Duke Crawford and others. Judgment for defendants, and plaintiff appeals.</p>

Kittrell, Special Judge. Suit by J. E. Edmondson, as County Attorney, for himself and in behalf of the county, to restrain G. S. Cumings knd oth-. ers, as members of the Commissioners’ Court, and the County Clerk of Austin County, from allowing county officials to pay for postage stamps out of the county fund. Judgment for defendants, and plaintiff appeals.

<p>1. Trial <@=>139(1) — Instruction of Verdict.</p> <p>The court cannot peremptorily instruct a verdict on any issue as against a party to a suit, where there is some evidence in his favor on the issue involved.</p> <p>2. Trespass to Tar Title <@=>41(4) — Identity op Grantee — Sufficiency of Evidence.</p> <p>In trespass to try title to and to recover possession of a league of land granted by the Mexican government to one John Moore, evidence held insufficient to warrant finding that the John Moore under whom plaintiffs claimed was the original grantee of the land.</p> <p>3. Appeal and Error <®=>1003 — Review-Finding on Conflicting Evidence.</p> <p>The Courts of Civil Appeals are not authorized to disturb a jury’s verdict or finding on an issue of fact which has reasonable support in the evidence, though apparently against a preponderance of the evidence.</p> <p>4. Appeal and Error <@=v1003 — Review-Verdict — Setting Aside.</p> <p>Where the evidence relating to a jury’s verdict on a question of 'fact so clearly and overwhelmingly preponderates against the verdict as to make it clear to the appellate court that such verdict was wrong, it should be disregarded and set aside.</p> <p>5. Appeal and Error <@=>212 — Objection to Peremptory Instruction.</p> <p>Where defendant in error presented in writing a request to the trial court for a peremptory instruction, which was given without objection from plaintiffs in error, plaintiffs in error cannot complain of the court’s action in giving the instruction.</p>

B. Hightower, Sr., Judge. Mandamus by Cobb & Gregory, a firm composed of O. E. Cobb and J. A. Gregory, against W. W. Dies, County Judge, and another. From judgment for defendants, plaintiff appeals. On motion by appellees to strike out a portion of appellant’s brief.

<p>1. Counties <&wkey;52 —County Commissioners —“QUORUM.”</p> <p>Under Rev. St. 1911, art. 22.37, providing that the commissioners’ court shall be composed of the commissioners, together with the county judge, and that the county judge, when present, shall be the presiding officer, and article 2238, providing “that any three members of said court including the county judge” shall constitute a quorum for the transaction of any business except that of levying a county tax, three members of the, commissioners’ court, one of whom must be the county judge, may constitute a quorum, or in the absence of the county judge the presence of all the commissioners is necessary to a quorum.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Quorum.]</p> <p>2. Statutes &wkey;>225% — Re-enactment after Judicial Construction.</p> <p>Where a judicial construction has been placed on a statute and the laws have been subsequently revised and the . construed provision re-enacted without material change, it will be conclusively inferred that the lawmaking body intended that the same construction should be placed on the language of the statute in the future.</p> <p>3. Counties &wkey;>213 — Actions — Conditions Precedent — Audit by Commissioners’ Court — “Neglect or Refusal to Audit Claim.” ■</p> <p>Where the commissioners’ court of a county has prevented action upon a claim against a county by intentionally refusing to attend the meetings so as to form a quorum, such conduct constitutes a neglect or refusal to audit claims so as to authorize the bringing of suit within Rev. St. 1911, art. 1366, providing that no county shall be sued unless the claim upon which such suit is founded shall have first been presented to the county commissioners’ court for allowance and such court shall have neglected or refused to audit and allow the same.</p> <p>4. Mandamus <&wkey;3(l) — Other Adequate Remedy.</p> <p>Mandamus will not lie where the petitioners have another plain and adequate remedy.</p>

<p>Appeal from District Court, Nueces County; Walter P. Napier, Special Judge.</p> <p>Action by J. H. White against the Texas Motorcar & Supply Company, R. H. Welder, and J. J. Welder, in which W. A. Saunders filed a petition in intervention. Prom the judgment, plaintiff and intervener appeal.</p>

<p>Appeal and Eekok <&wkey;493 — Judgment Ap-pealable — JURISDICTIONAL AMOUNT.</p> <p>In action to recover $169, in the absence of showing that the action was ever tried in justice court, an appeal from the county court will be dismissed; such amount being below the original jurisdiction of the county court.</p>

<p>Appeal from District Court, Harris County; Henry J. Dannanbaum, Judge.</p> <p>Suit by the County of Harris against M. B\ Hammond and others. From the judgment rendered, plaintiff appeals.</p>

<p>1. Sheriffs and Constables <&wkey;71 — Maximum Amount of Fees — Accounting — “Fees of Office.”</p> <p>Allowances made the sheriff by commissioners’ court for safekeeping and maintenance of prisoners in jail are not “fees of office,” within the maximum fee bill (Acts 33d Leg. c. 121, § 1 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3881-3883, 3887, 3889, 3893, 3897, 3898]), and need not be reported or accounted for by him by provisions of said bill.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Fees.]</p> <p>2. Sheriffs and Constables <&wkey;71 — Accounts fob Keeping Prisoners — Sufficiency.</p> <p>A sheriff’s accounts for keeping prisoners, giving the name of each person, the date and hour committed, the offense, when and how released, the number of days in jail, and arriving at the amount of the bill by multiplying the number of days by the per diem allowance per prisoner, was not required to be more fully itemized, under Code Or. Proc. 1911, art._ 1148, requiring accounts presented to commissioners’ court for keeping prisoners to state the name of each prisoner and each item of expense incurred On account of each prisoner.</p> <p>3. Pkisob-s i&wkey;18(l) — Charges off Sheeieb^-“Day.”</p> <p>The sheriff is entitled to per diem allowance of, 40 cents for a prisoner under his contract with commissioners’ court, where a prisoner is in jail for any substantial part of a day, though not an entire day.</p> <p>[Ed. Note. — For other definitions; see Words and Phrases, First and Second Series, Day.]</p>

R. Hamblen, Special Judge. Suit by Harris County against H. M. Cur-tin, in which the • state intervened, and in which defendant filed a cross-action against plaintiff. From the judgment rendered Cur-tin appeals.

Roberts, Judge. Action by the City of San Marcos, against the International & Great Northern Railway Company and others; dismissed as to the Company, and prosecuted against James A. Baker, as receiver of such Company. Judgment dismissing the action, and the City appeals.

<p>Appeal from Harris County Court; Murray B. Jones, Judge.</p> <p>Action by TV. R. Eckhardt and another against Otis W. Paine. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Insurance <&wkey;668 (4) — Trial — Direction op Verdict.</p> <p>It is error to direct a verdict for insured if there is evidence that the premises were vacant, sufficient to make a jury question.</p> <p>2. Trial &wkey;>139(l) — Direction op Verdict.</p> <p>If it could reasonably be supposed that the minds of unprejudiced’ men of ordinary intelligence might differ, as to weight of testimony or the deductions therefrom, the question is for the jury.'</p> <p>3. Insurance <&wkey;668 (4) — Eire Policy — Vacancy — Question for Jury.</p> <p>Evidence, in action on fire policy, held -insufficient to raise jury question as to whether premises insured were vacant at the time of the fire.</p>

<p>Appeal from District Court,, McLennan County; E. J. Clark, Judge.</p> <p>Trespass to try title by Moses Byrd against Nora Shumaker and others.. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Williamson County Court; Richard Critz, Judge.</p> <p>Action by E. D. Gerding against H. P. Mansfield and others. From a judgment for plaintiff <>n appeal from a justice of the peace, defendants I-I. P. Mansfield and C. E. Shults appeal.</p>

<p>Appeal from Bell County Court; M. B. Blair, Judge.</p> <p>• Action by T. H. Collins against J. B. Con-lisk. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Frio County; Covey C. Thomas, Judge.</p> <p>Action by Kellam Bros, against the Cum-mer Manufacturing Company. From an adverse judgment, defendant appeals.</p>

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by H. Kanner and wife against A. G. Startz and others, consolidated with an action by A. G. Startz against Kanner and others. From an adverse judgment, plaintiffs H. Kanner and wife appeal.</p>

<p>Appeal from Harris County Court; Murray B. Jones, Judge.</p> <p>Action by the National Trust & Credit Company against C. B. Oliver. Judgment for defendant, and plaintiff appeals.</p>

Error from District Court, San Augustine County; A. E. Davis, Judge. Suit by the Houston Oil Company of Texas against Wesley Lane and others, in which W. T. Lakey and another intervened. Judgment for defendants, and plaintiff brings error.

W. Taylor, Judge. Suit by William Gregory against D. McN. Turner and' others. Judgment after trial without jury for plaintiff, and defendants appeal.

<p>Appeal from District Court, Harris County; J. D. Harvey, Judge.</p> <p>Action by John Schmidt against the Houston Electric Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, 'Mitchell County ; W. W. Beall, Judge.</p> <p>Suit by M. E. Lasseter and husband against J. Blackwell and otliers. Judgment for plaintiffs, and defendants appeal..</p>

<p>Appeal from Coryell County Court; H. E. Bell, Judge.</p> <p>Suit by J. S. Clements against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

H. Arnold, Judge. Suit by Mrs. Dora Watts to restrain Dr. E. B. Baker and others from selling stock levied on under execution. Judgment for defendants, and plaintiff appeals.

<p>Criminal Law @=>1090(8) — Appeai^Record — Bill op Exceptions — Statement of Facts.</p> <p>In the absence from the record of a statement of facts or bill of exceptions, sufficiency of the evidence to sustain the verdict cannot be reviewed.</p>

<p>1. Evidence <§=>587 — Circumstantial Evidence.</p> <p>A fact may be proved by circumstantial evidence alone which does not exclude every other hypothesis; it being sufficient if the ■ circumstances establish a preponderance of the evidence in favor of the fact to be proved.</p> <p>2. Cabkieks <§=>228(5) — Shipment oe Stock-Evidence.</p> <p>In shipper’s action for negligent handling of carload of bulls, evidence held not to show defendant was negligent.</p> <p>3. Cabriebs <§=>217(2) — Shipments oe Stock —Contributory Negligence.</p> <p>If the negligence of plaintiff shipper, in placing vicious bulls unconfined in a car together, contributed to injury to them, he could not recover, and his negligence need not have been the sole proximate cause of injury.</p> <p>4.Negligence <§=>82 — Action—Defense.</p> <p>Contributory negligence is a complete defense to an action based on defendant’s negligence, whether it caused the injury alone or concurred with the negligence of defendant in producing the result.</p>

<p>lAppeal .from 'Galveston County ¡Court,; George E. Mann, Judge.</p> <p>Action by Fred W. Olíase against the Continental Casualty Company. Judgment for plaintiff, and defendant appeals.</p>

A. Johnson, Judge. Suit in justice court by Mack Bean against the Fidelity Lumber Company. There was judgment for plaintiff, and from decision rendered by county court on appeal, defendant appeals.

<p>Appeal from District Oour-t, Polk County; L. B. Hightower, Sr., Judge.</p> <p>Action by Sid Tomme and another against West Lumber Company. From judgment for plaintiffs, defendant appeals.</p>

<p>1. Trial <&wkey;352(5) — Special Issues.</p> <p>A special issue should not contain several distinct matters.</p> <p>2. Appeal and Error <&wkey;>882(14) — Invited Error.</p> <p>Submitting a special issue containing several distinct matters, being at request of appellant, is not ground for reversal.</p> <p>8. Carriers <&wkey;216 — Live Stock Shipment-Proper Cars.</p> <p>While recovery cannot be had of carrier for injuries to sheep in transportation which were the proximate result of the weakened condition in which they were tendered for carriage, yet the carrier, having received them in that condition for shipment, was bound to exercise ordinary care in furnishing proper cars, including proper bedding, for their transportation; and if guilty of negligence in that respect, which proximately resulted in injury to them, is liable for the consequent damages.</p> <p>4. Evidence &wkey;>472(4) — Opinion — Proper Bedding op Cars. v</p> <p>Qualified witnesses may, in action against carrier for injury to shipment of sheep from negligent bedding of cars, testify they were properly bedded; this not being an invasion of province of jury.</p> <p>5. Carriers &wkey;>223 — Live Stock Shipment-Improper Bedding — Estoppel.</p> <p>That a shipper of’live stock, being present and fully aware of the extent and condition of the bedding then in the ears, accepted them as bedded, and so is estopped to claim improper bedding as cause of injury, is proper matter of defense.</p> <p>6. Trial <&wkey;203(3) — Instructions — Submission op Depense.</p> <p>Defendant is entitled to have affirmatively submitted a proper matter of defense raised by the pleadings and evidence.</p>

<p>Appeal from District Court, Hays County; Frank S. Roberts, Judge.</p> <p>Suit by the City of San Marcos against the International & Great Western Railway Company. Judgment' for defendant, and plaintiff appeals.</p>

Action by Mrs. leedor Archer and others against the Texas & Pacific Railway Company. The Maryland Casualty Company intervenes. Plea of intervention was dismissed, and judgment had for plaintiff against defendant, and intervener and defendant appeal.

<p>1. Carriers &wkey;>107 — Loss oe Goods — Liability.</p> <p>If a carrier receives the quantity of wheat stated in the bill of lading, and delivers a less quantity, it is liable for the difference.</p> <p>2. Carriers <&wkey;52(2) — Loss oe Goods — Bill oe Lading-^Quantity oe Goods.</p> <p>Mere fact that weighing of wheat was done by a third person did not relieve carrier of liability when it delivered less quantity, where it accepted such weight and entered it on the bill of lading.</p> <p>3. Carriers <&wkey;132 — Loss oe Goods — Liability — Burden oe Prooe.</p> <p>Weights of goods shipped stated in the bill of lading being prima facie evidence of the amount received, the burden is on the carrier to show that it did not receive such amounts.</p> <p>4. Carriers <s=>52(2) — Loss oe Goods — Liability-Burden oe Prooe.</p> <p>Where carrier proves that it delivered all the wheat received, which was carefully weighed and checked at destination, when it was found to weigh less than the bill of lading states, the carrier is not liable for the discrepancy.</p> <p>5. Carriers <&wkey;13A-Loss oe Goods — Liability— Evidence — Sufficiency.</p> <p>Evidence held insufficient to show that there was no leakage in a car carrying wheat, so that the carrier was not absolved from liability for the discrepancy.</p>

<p>1. Attachment <&wkey;308(4) — Claim .by Thikd Pebson — Evidence of Ownership.</p> <p>In proceedings to determine right to attached property, evidence held to sustain verdict that bill of sale to claimant, who held a mortgage on the property, was not intended to convey the property, and that claimant was not the owner.</p> <p>2. Attachment &wkey;>308(4) — Claim by Third Person — Possession—Evidence.</p> <p>Evidence held to show that at time of and prior to the. levy of attachment, claimant, who replevined the property, was in actual possession and control by defendant in attachment as his agent.</p> <p>3. Trial (&wkey;139(l) —Peremptory Instructions — When Proper.</p> <p>Where there was sufficient evidence to present a jury question, peremptory instructions were properly refused.</p>

<p>Appeal from District Court, Nolan County; W. W. Beall, Judge.</p> <p>; Suit by the Biard Development Company against the City of Sweetwater and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Trial &wkey;>140(2) — Jury Question — Testimony oe Party. •</p> <p>Where defendants filed an admission of plaintiff’s cause of action, except as it might be defeated by facts proven by defendants, and where-such facts could not be proven without the testimony of defendants themselves, it was not error to refuse a peremptory instruction for defendants, since the court and jury had the right to disregard their testimony.</p> <p>2. Homestead <&wkey;lSl% — Abandonment—Intention — Question eob Jury.</p> <p>Intention of mortgagors, with reference to abandonment as a homestead of lot mortgaged, held a question for the jury.</p> <p>3. Homestead &wkey;> 177(2) — Estobbel to Claim —Rebeesentations.</p> <p>Where plaintiff, in reliance on written and verbal statements of defendants that lot No. 11 alone was their homestead, made a loan secured by a mortgage on lot No. 12, defendants cannot defeat the loan by setting up that lot No. 12 was in fact their homestead, although there was no building thereon, and defendants were living elsewhere when the loan was made.</p> <p>4. Homestead &wkey;>177(2) — Estobbel to Claim —Rebeesentations,</p> <p>Where defendants were not occupying lots Nos. 11 and 12, or in such physical possession thereof as would give notice of the homestead character, plaintiff could safely, in making a loan to defendants secured by a mortgage on lot No. 12, rely on their statements as to their intention to make lot No. 11 their solo homestead.</p> <p>5. Abbeal and Eeeoe &wkey;?994(2) — Review— Credibility of Witnesses — Verdict.</p> <p>Where defendants had to rely upon their own testimony to establish their defense, the jury was entitled to pass upon the weight and value of the testimony, and the court on appeal will not disturb their verdict.</p> <p>6. Abbeal and Error <&wkey;1068(2) — Instructions — Harmless Error.</p> <p>Where jury found that plaintiff in making loan believed and acted upon defendants’ statements in written designation that lot mortgaged to secure loan was not a homestead, instructing in response to request of jury that a designation of a homestead is a legal procedure, was without prejudice, it being immaterial whether designation was a subterfuge.</p>

<p>Railroads <&wkey;>446(6) — Injuries to Dive Stock — Cattle Guards — Absence oe Fence.</p> <p>In an action for damages to live stock injured in defendant’s railroad trestle because of absence of cattle guards at a public crossing, a verdict for defendant should have been directed ; the live stock not having .been hurt in a collision with a train, and the condition of the fence being such that it constituted no fence at all, since where a railroad company’s road is not fenced the company is not liable in damages for injuring live stock unless there-is an actual collision between one of its trains and the stock.</p>

<p>1. Maliciojjs Prosecution <&wkey;71(2) — Probable Cause — Question for Jury.</p> <p>In an action for malicious prosecution by one partner against another, the charge against plaintiff having been that he was guilty of theft of partnership property by bailee, question of probable cause held for the jury.</p> <p>2. Malicious Prosecution &wkey;>22 — Acting on Le&al Advice.</p> <p>Where defendant, in suit for malicious prosecution, before signing the complaint against plaintiff, in good faith made a full, fair, and complete statement of the material facts known to him to the county attorney, and thereafter acted on such officiai’s advice, he had an adequate defense to the suit for malicious prosecution.</p> <p>3. Malicious Prosecution <@=»71(4) — Advice of Counsel — Good Faith — Question for Jury.</p> <p>In suit for malicious prosecution by one partner against another, the charge against plaintiff having been theft by bailee, the issue of defendant partner’s good faith in placing the facts before the county attorney before making complaint held for the jury.</p> <p>4. Malicious Prosecution &wkey;>64(l) — Damages — Sufficiency of Evidence.</p> <p>In suit for malicious prosecution by one partner against another, plaintiff having been charged' with theft by bailee, evidence on the question of damages held to furnish sufficient basis for recovery.</p> <p>5. Damages <&wkey;49 — Mental Suffering.</p> <p>As a general rule, mental suffering, unaccompanied by actual injury to person or property, affords no ground for an action, except where the wrong complained of is a willful one, intended by the wrongdoer to wound the feelings and produce mental suffering, or one from which that result should be reasonably anticipated as a natural consequence.</p> <p>Lane, J., dissenting.</p>

<p>1. Appeal and Error <@^671(5) — Record — Evidence.</p> <p>A letter in evidence, construed as one of agency, not being in the record, the finding of agency, with a circumstance tending to support it, cannot be disturbed, though there is evidence tending to show prior different and inconsistent relation.</p> <p>2. Carriers &wkey;>132 — CONVERSION — UNAUTHORIZED DELIVERY — INJURY—BURDEN OE PROOF.</p> <p>The shipper suing for conversion, by delivery other than to shipper’s order, contrary to the bill of lading, has the burden not only of showing this, but also that he was injured thereby.</p> <p>3. Appeal and Eebob &wkey;>704(2) — Record — Evidence.</p> <p>The finding against the plaintiff on a fact which he had the burden of establishing cannot be disturbed on appeal; the record not containing affirmative evidence of the fact.</p>

<p>Appeal from District Court, Bowie County; H. P. O’Neal, Judge.</p> <p>Bennie Casey was convicted of robbery, and lie appeals.</p>

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Action by Mrs. E. E. Luten and others against the Missouri, Kansas & Texas Railway Company of Texas to recover for wrongful death. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Evidence <§=>183(3) — Documentary Evidence — Proof of Loss of Original.</p> <p>Proof of delivery of the original invoice to another than the party seeking to introduce a copy thereof did not prove its loss nor raise a presumption in that respect, thus laying proper predicate for the admission of the copy.</p> <p>■2. Sales <§=>52(o) — Evidence—“Invoice.”</p> <p>Though an “invoice” might be an incident to a sale of personalty, standing alone it did not evidence that fact, being a mere detailed statement of the nature, quantity, and cost or price of the things invoiced, and as appropriate to a bailment as to a sale.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Invoice.]</p> <p>. 3. Appeal and Error <§=>1056(2) — Exclusion ' of Unnecessary Evidence.</p> <p>Exclusion of documentary evidence favorable to plaintiff on an issue not disputed, as to which plaintiff’s witness testified, was not error.</p> <p>4. Evidence <§=>471(2) — Conclusion of Witness — Theft.</p> <p>In suit by the insurer of an automobile against theft to recover a car as the car for loss of which it had paid insured, the statement by insured as a witness for the insurer that his car “was stolen,” particularly in view of the statutory definition of theft in Pen. Code 1911, .art. 1329, was inadmissible as purely a conclusion ; for a witness should give the facts and leave to the judge or jury the function of reasoning from them.</p> <p>5. Evidence <§=>472(1) — Conclusion of Witness.</p> <p>The conclusion, inference, or judgment of a witness is admissible when it relates to a fact which is collateral or relatively unimportant, and is rejected when the fact sought to be es- ' tablished is either in issue or so material as to involve substantial rights.</p> <p>6. Evidence <§=>471(2) — Conclusion of Witness — Circumstantial Value.</p> <p>In suit by the insurer of an automobile against theft to recover a car as the car for loss of which it had paid insured, rejection of testimony of the treasurer of the insurer that the ' loss was paid because of “theft,” as being the conclusion of the witness, was proper as against the contention that it was admissible as a circumstance tending to show theft, since the witness was not detailing facts and circumstances from which the jury might infer or reason to the commission of a theft.</p> <p>7. Sales <§=>233 (3) — Title to Property — Burden of Proof.</p> <p>Where defendant was in possession of an automobile by purchase from a third person, it was the duty of an insurer of an automobile against theft, claiming the car as that for loss of which it had reimbursed insured, to prove a better title than' the prima facie title of defendant.</p>

<p>Appeal from District Court, Webb County; J. F. Mullally, Judge.</p> <p>Suit by the Espejo Land & Irrigation- Company against Albert Urbahn. Injunction refused, and plaintiff appeals.</p>

<p>Appeal from Bexar County Court for Civil Cases; John PI. Clark, Judge.</p> <p>Garnishment by the Sunset Wood Company against E. A. Kelly and another. From an adverse judgment, plaintiff appeals.</p>

<p>Error from Dallas County Court; T. A. Work, Judge.</p> <p>Action by Charles E. Bowman against -J. W. Bailey and others. Directed verdict for defendants, and plaintiff brings error.</p>

<p>Appeal from District Court, Tyler County; J. Llewellyn, Judge.</p>

Suit by the Farmers’ State Banlc of Burk-burnett against Max Wunschel and others. Judgment for plaintiff, and the named defendant appeals.

Error from District Court, Harris County; Wm. Masterson, Judge. Suit by I. Ingrando against the Gulf Colorado & Santa Fé Railway Company anc others. To review judgment for defendants, plaintiff brings error.

<p>Appeal from District Court, Harris County; Chas. E. Asher, Judge.</p> <p>Action by C. S. Williams against H. S. Cameron. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error &wkey;>837(3) — Review— An s web.</p> <p>Answer filed after orders for receiver and injunction had been made in divorce suit cannot be considered on appeal from orders.</p> <p>2. Divorce <&wkey;27(l) — Grounds—III Treatment.</p> <p>When a separation is sought under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4631, subd. 1, the general rule is that, in the absence of physical violence or fear of it, the conduct complained of must be such as is reasonably calculated to produce a degree of mental distress that will impair the health of the complaining spouse or render living together insupportable.</p> <p>3. Pleading <&wkey;8(3) — III Treatment — Divorce.</p> <p>There being no allegation showing the language used or how it was applied, the allegation that defendant husband would curse and abuse plaintiff unmercifully, or that he abused her severely, was a mere conclusion, and insufficient under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4631, subd. 1, providing that either spouse may be granted divorce when the other is guilty of excesses, cruel treatment, or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable.</p> <p>4. Divorce <&wkey;27(15) — Grounds—Drunkenness — Cruelty.</p> <p>Drunkenness alone is not a ground for divorce as cruelty.</p> <p>5. Receivers <&wkey;35(l) — Notice to Defendant.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 212S, subds. 1 and 4, as to appointment of receiver, that defendant was threatening to withdraw certain money from the bank and sell certain personalty would not warrant the appointment of a receiver, pending trial of divorce suit, without notice to defendant.</p>

<p>1. Homestead &wkey;=84 — Extent — Tenants in Common.</p> <p>Where tenants in common live upon a large tract of land, each occupying different parts as their respective homesteads, the homestead interest of each extends through the entire tract, and upon partition each of the cotenants is entitled to a homestead containing not exceeding 200 acres.</p> <p>2. Homestead <&wkey;84 — Cotenancies — Partition.</p> <p>Where several cotenants live upon a common piece of land as their homestead, a subsequent partition does not disturb the respective homesteads which the cotenants had originally acquired.</p> <p>3. Homestead <&wkey;143 — Rights of Widow and Children.</p> <p>Where a surviving widow and several children live as cotenants upon a common piece of land, the legal title of which is owned by one of the children, their mother is not entitled to 200 acres of the land as her homestead ; she having' recognized the interest of the children, and they also claiming homestead rights in the land.</p> <p>4. Homestead <&wkey;>145 — Designation—Estop-pel.</p> <p>In a suit wherein defendant children, as tenants in common, claimed homestead rights in the land as against foreclosure of a lien, evidence Held not to' sustain an allegation that they had designated such homestead, so as to estop them from claiming homestead rights in a large tract.</p> <p>5. Judgment <&wkey;693 — Husband and Wipe-Res Judicata.</p> <p>In a suit for an injunction against a foreclosure action, wherein the wives of petitioners did not set up their homestead rights in the lands sought to be sold, the decree in the foreclosure action did not conclude them from claiming such rights; the wives of petitioners not being joined in the foreclosure action.</p>

Llewellyn, Judge. Action by W. H. Stubblefield, and wife against tlie Houston, East & West Texas Railway Company. Judgment sustaining general demurrer and special exception to the petition, and plaintiffs appeal.

<p>Appeal from District Court, Navarro County ; H. B. Daviss, Judge.</p>

<p>Teial <&wkey;260(l) — Requested Instructions.</p> <p>There is no error in refusing a charge, the principle of which is embodied in the main charge.</p>

<p>Appeal from Nueces County Court'; David M. Picton, Jr., Judge.</p> <p>•* Action by Mrs. Y. L. Boyd as surviving wife and as guardian against Robert Sehal-lert. Judgment for plaintiff, and defendant appeals.</p>

Suit by Hugh W. Ferguson and others against J. W. Halsell and others. From an order directing issuance of a temporary writ of injunction as prayed, defendants appeal.

<p>Appeal from I-Iill County Court; R. T. Burns, Judge.</p> <p>Action by John A. Ferguson against John Estes and another. Judgment against defendant named, and he appeals.</p>

<p>Appeal from Harris County Court, at Law; Murray B. Jones, Judge.</p> <p>E. A. Gibson was convicted of aggravated assault, and he appeals.</p>

<p>Error from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Suit by M. W. Terrell against the Summit Place Company. To review judgment for plaintiff, defendant brings error.</p>

E. Monteitli, Judge. Suit in justice court by L. G. King against the Houston Belt & Terminal Railway Company. There was a judgment for plaintiff in both the justice and county courts, and defendant appeals.

<p>Appeal from District Court, Bexar County J. T. Sluder, Judge.</p> <p>Suit by Albert Pick & Co. against D. H. and Mary E. Touzalin, J. M. Nix, and others. From the judgment rendered, Nix and others appeal.</p>

Dannenbawn, Judge. Suit by the Southern Surety Company and another against the Houston Lighting & Power Company, 1905, and others. Prom a judgment sustaining defendants’ demurrers to petition, plaintiffs appeal.

<p>1. Brokers @=371 — COMMISSIONS—PERFORMANCE O'F CONTRACT.</p> <p>Where plaintiff insurance broker procured for defendant surety company application for a bond for two years on condition that 20 peí-cent. of the premiums should be paid to him and 5 per cent, to defendant’s local agent, and defendant agreed to such conditions and issued the bond, plaintiff was entitled to commission on the second year’s premium as well as on the first, regardless of any agreement made by defendant with one appointed, before the second premium was paid, to take the place of its local agent.</p> <p>2. Insubance @=384(2) — Agents—Contract fob Commission — Construction — “Ac-obije.”</p> <p>Under a contract providing that all interest of surety company’s agent in any premium to accrue on business secured should cease on termination of the contract, the unpaid portion of a premium on a bond executed and in force at the time the contract was terminated was not a premium which might “accrue” on the same bond in the future, “accrue” meaning to grow, increase, augment, additional.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, Pirst and Second Series, Accrue.]</p> <p>3. Insubance @=384(2) — Agent’s Compensation.</p> <p>Where a continuation certificate was unnecessary to continue liability of defendant surety company on a bond, its local agents would be entitled to no commission for writing to and procuring from defendant’s state agent such certificate, and in turn delivering it to the principal on the bond.</p> <p>4. Insurance @=384(2) — Agent’s C’ompensation.</p> <p>Under contract by which a surety company agreed, among other things, to pay to those who succeeded its local agent 20 per cent, on all renewal business effected, successors would not be entitled to commissions on a bond procured by an insurance broker during employment of local agent, although premium therefor had not been paid.</p> <p>5. Insurance @=384(1) — Agent’s Commission —Consideration.</p> <p>Even if a surety company’s general agent unequivocally promised to pay commissions to local agents, where the company was bound to another, it would not be bound by the promise, since it would be without consideration.</p> <p>6. Judgment @=3310 — Correction as to Parties — Directed Verdict.</p> <p>Where the court was authorized to direct a verdict, and in so doing directed verdict against one not served with citation, it was equally authorized to set it aside as to such person and enter judgment accordingly, directed verdicts being in effect judgments of the court which' may be corrected.</p>

<p>1. Appeal and Error <®^719(6) — Fundamental Error — Direction of Verdict.</p> <p>The action of the tz'ial court in directing a verdict presents a question of fundamental error, which it is the duty of the Court of Civil Appeals to consider without any assignments.</p> <p>2. Bills and Notes <§s=>301 — Liability of Indorser — Rights.</p> <p>Where a note was given, secured by a chattel mortgage, and the payee did not record the mortgage, and indorsed the note to plaintiff, and assigned the chattel mortgage to him, the plaintiff’s duty to record the mortgage could not be inferred from his mere acceptance of the note and unrecorded mortgage, unless facts were shown making it inequitable for him to deny that such was his duty, and the plaintiff could recover against the original payee as an in-dorser.</p> <p>3. Appeal and Error c^=>1099(3) — Subsequent Appeal — Law oe the Case — Severa-ble Issues.</p> <p>Where, in an action by the indorsee of a note who was assignee of an unrecorded chattel mortgage to secure the note against the payee of the note as indorser, a finding of fact was made that mortgaged property was in the hands of bona fide purchaser, which finding, not complained of, would not be fundamental error, action of appellate court in affirming that part of the judgment, having reversed on the issue of liability of indorsor, could not be assailed on appeal from judgment rendered on retrial; rule 62a (149 S. W. x) permitting affirmance and reversal as to severable issues.</p> <p>4. Bills and Notes <®^523 — Recourse on Security — Estoppel. .</p> <p>In an action against payee of note as in-dorser by the indorsee and the assignee of an unrecorded chattel mortgage on cattle, executed to secure it, held relative to release of indorser that plaintiff was not estopped under the evidence from denying that it was his duty to record mortgage.</p>

Appeal' from District Court, Gillespie County. Suit by F. O. Crenwelge and others against A. R. Ponder, receiver, and others. Judgment for plaintiff, and certain defendants appeal.

Porter, Judge. Suit by J. D. Knott and wife against Fred Long, Sheriff, of Hill County, Tex., and the Monnig Dry Goods Company, to enjoin the sale of land. Motion to dissolve injunction overruled, judgment for plaintiffs granting a perpetual injunction, and defendants appeal.

Burns, Judge. Action by Isaac McBroom against A. L. Smith, commenced before a justice of the peace. From a judgment for plaintiff, on appeal to the county court, defendant appeals.

<p>1. Vendor and Purchaser <@^39 — Vendor’s Lien Notes — Legality oe Object — Participation in Lottery.</p> <p>Although the vendor at the time of the contract had no notice nor information of the ven-dee’s intention to dispose of the land by lottery, if, prior to the execution of vendor’s lien notes and deed, he learned of such" scheme ana participated in it, he could not recover on the notes.</p> <p>2. Vendor and Purchaser @==>39 — Vendor’s Lien Notes — Legality oe Object — Participation in Lottery — Sueeiciency oe Participation.</p> <p>In such case, the question of the vendor’s participation in the profits of the lottery was not determinative of his participation in the illegal scheme, and the mere fact that he was not to receive any of the profits did- not negative his participation.</p>

[Ed. Note. — For other definitions, see Words and Phrases, First and Second ■ Series, Knowledge.] Error from Dallas County Court; T. A. Work, Judge. Suit by L. W. Rachofsky against J. H. Rachofsky and others. From a judgment for defendants and. an order dissolving interlocutory injunction, plaintiff brings error.

<p>1. Constitutional Law &wkey;^34 — Self-Executing Provisions of Constitution — Lien fob Repairs.</p> <p>Const, art. 16, § 37, providing that mechanics shall have a lien on articles repaired by them for the value of the labor clone or material furnished, and that the .Legislature shall provide, by law, for the enforcement of such liens, is self-executing and creates the lien without the further aid of legislation, so that the lien does not depend on the statute, and the Legislature cannot affix to the lien conditions of forfeiture.</p> <p>2. Liens i®=16 — Waiver.</p> <p>A lien may be waived by express agreement, or by implication from the facts inconsistent with its continued existence.</p> <p>3. Liens <s&wkey;16 — Waiver—Intent.</p> <p>One will not be held to have intentionally waived a lien unless the intent is expressed or is plain and clear; the presumption always being against it.</p> <p>4. Bailment <&wkey;18(4) — Lien for Repairs— Waiver — Delivery on Taking Note.</p> <p>Where there was no express agreement waiving a lien for repairs on an automobile, the taking of the note of the owner’s son on its delivery to him did not have that effect.</p> <p>5. Liens <&wkey;16 — Waiver—Delivery of Possession.</p> <p>The rule that a lienor’s delivery of possession is a waiver of his lien originated in case where the existence of the lien itself was dependent upon the possession, and does not apply where possession is not an essential to the existence of the lien.</p> <p>6. Bailment <&wkey;18(3) — Lien for Repairs — Waiver — Possession—Statutes.</p> <p>Rev. St. 1911, art. 5665, authorizes mechanics to retain possession of an article repaired until the amount due for repairing is paid; article 5666 provides for the retention of possession where no amount is agreed to be paid for repairing until the reasonable compensation shall be paid; article 5667 authorizes the holder, after possession for 60 days, to sell the article and apply the proceeds to the payment of his charges. Held, that the object of the statute was to restate the common law and provide for enforcement of possessory liens, and article 5671 indicates that it was not the intent to impair other liens or apply to provision of Const, art. 16, § 37, creating a lien for repairs, which does not make possession an essential to the right of lien.</p> <p>7. Bailment &wkey;>lS (5) — Liens for Repairs— Waiver — Evidence.</p> <p>In a suit to recover money due for labor and material in repairing an automobile and to foreclose a lien for repairs .after it had been delivered to the owner’s son, evidence held insufficient to show a waiver of the lien.</p>

<p>Appeal from Harris County Court; W. E. Monteith, Judge.</p> <p>Suit by the Houston Packing Company .against the Houston East &West Texas Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Milam County; John Watson, Judge.</p> <p>Suit by J. R. Delano against L. S. Delano. From judgment for defendant, plaintiff appeals.</p>

W. Taylor, Judge. Suit by S. S. Jamison against Ed. C. Lasa-ter and others. Judgment for plaintiff, and against defendant Lasater for rents, etc., and defendants appeal.

<p>Error from District Court, Tom Green County; C. E. Dubois, Judge.</p> <p>Action by P. L. Estes against the Kansas City, Mexico & Orient Kailway Company of Texas. Judgment for plaintiff, and defendant brings error.</p>

<p>Insurance <&wkey;367(2) — Life Insurance — Construction of Policy.</p> <p>Under life policy providing that, after the second policy year, the -company may loan a stated sum, subject to deduction of all premiums for the current year or existing indebtedness, and that failure to repay the loan shall not avoid the policy until the total indebtedness exceeds the loan value, that if, after expiration of second policy year, any premium is unpaid, it will be paid out of the loan value, if in excess of indebtedness, and that, if default is made in payment of premiums for three full years, the policy should be extended for two years and six months, if there was no indebtedness on the policy, where insured failed to pay the third premium, which was paid from the loan value of his policy, and he died shortly after the fourth premium became due, when the loan value in excess of the indebtedness was less than enough to pay the fourth premium, there could be no recovery on the policy, which lapsed on default for more than one month in payment of the fourth premium.</p>

<p>1. Appeal and Error &wkey;>436 — Proceeding in Cause Pending Appeal.</p> <p>Tlie appeal from a judgment rendered in an action to set aside a former default judgment deprived the district court of authority to proceed with the trial of the former cause on the merits until the judgment rendered in the cause setting aside the judgment had been finally disposed of on appeal to the Court of Civil Appeals.</p> <p>2. Appeal and Error &wkey;>1166 — Appeal Pending Appeal to Set Aside Default Judgment — Disposition.</p> <p>An appeal from a judgment rendered in a cause while the appeal from the judgment in an action to set aside the former default judgment therein was pending in the Court of Civil Appeals must be reversed.</p>

<p>1. ELECTRICITY <&wkey;19(5) — PERSONAL INJURY— Proximate Cause — Evidence.</p> <p>■ Evidence held to show that act of defendant electric company, in sending a heavy current over a wire known to- be uninsulated and within easy reach, was the proximate cause of the death of plaintiffs’ intestate.</p> <p>2. Electricity &wkey;>19(10) — Injuries—Knowledge of Defects.</p> <p>Where an electric company knew that the insulation was burned off of a wire on the promises of a user,.beyond its meter, and sent a current over the same of such voltage as to cause death to a person coming in contact therewith, the jury was authorized to find that it was negligent.</p> <p>3. Electricity <&wkey;16(7) — Personal Injury-Proximate Cause — Intervening Efficient Cause.</p> <p>The fact that the owners of the building knew of the uninsulated condition of a wire and failed to remedy the defect cannot be held such an intervening cause of the death of one coming in contact therewith as to require a finding that the negligent act of the electric company in sending a high voltage current over the wire after knowledge of its condition was too remote.</p> <p>4. Electricity <&wkey;19(12) — Personal Injury —Contributory Negligence.</p> <p>Where deceased had no knowledge of the existence of an uninsulated wire and stepped upon a parapet in a building, which act involved no danger had the wire not been there, and he was not then trespassing to any appreciable invasion of the rights of any other person, he was not guilty of contributory negligence as a matter of law.</p>

<p>Appeal from District Court, Runnels County ; Jno. W. Goodwin, Judge.</p> <p>Action by S. M. Cameron and others against the Farmers’ & Merchants’ State Bank of Ballinger. Judgment for plaintiffs, and defendant appeals.</p>

<p>Error from District Court, Dallam County; D. B. Hill, Judge.</p> <p>Suit by Mrs. Laura E. Combs and husband against L. E. Finley, the Southern Commercial & Savings Bank, and others. Judgment-lor plaintiffs, and defendant Bank brings error.</p>

<p>1. Appeal asd Error <&wkey;107B6) — Harmless Error — Failure to File Findings and CONCLUSIONS.</p> <p>Since the right of a party on proper demand to have finding's of fact and conclusions of law filed in a case tried without a jury is one given by statute, the court on appeal cannot say that the failure to make them, or, having made them, to file them in time, is harmless error.</p> <p>2. Appeal and Error 4 ,^>527(2) —■ Scope of Kb view.</p> <p>Findings of fact and conclusions of law not filed within the time required by law cannot be considered on appeal.</p>

<p>Appeal from Dallas County Court; T. A. Work, Judge.</p> <p>Suit by J. E. Crawley against the Schoell-kopf Saddlery Company. Judgment for plaintiff, and defendant appeals.</p>

Error from District Court, Hays County; Frank S. Roberts, Judge. Action by the Parlin & Orendorff Company and others against F. D. Glover and another. Judgment for defendants, and plaintiffs .bring error.

<p>1. Appeal and Error ¡&wkey;759 — Matters Reviewable — Assignments oe Error.</p> <p>Ruder Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ- St. 1914, art. 1612), providing that the assignments of error in the motion for new trial shall constitute the assignments of error, the appellate court will not consider assignments which have been reconstructed or are incorrectly copied in the brief, and present the questions raised in a new light.</p> <p>2. Appeal and Eebob &wkey;>294(l) Matters Review able — Savin g O b jection .</p> <p>The correctness of the court’s action in rendering a judgment in accordance with the verdict cannot be questioned on the ground that a finding was unsupported by the evidence where no move was made to set aside the verdict.</p> <p>3. Appeal and Erboe <&wkey;>1003 — Findings oe Fact — Prepondebanoe oe Evidence.</p> <p>The mere fact that a jury finding may seem to be against a preponderance of the evidence does not authorize the appellate court to set it aside.</p>

Clark, Judge. Suit by D. W. Williams against John Nations and another in the justice court. Dismissed as to the other defendant. Judgment for plaintiff. The cause was removed to the county court upon certiorari, where judgment was rendered for plaintiff and for defendant on a counterclaim. Defendant appeals.

<p>Appeal from District Court, Goliad County; John. M. Green, Judge.</p> <p>Suit by N. R. Rowell against tlie Charco Independent School District and others. From a decree for defendants, plaintiff appeals.</p>

<p>Appeal from Criminal District Court, Nueces County; Walter E. Timón, Judge. Urbano</p> <p>Esquivel was convicted of burglary, and lie appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge. Action by Allen Paul against J. J. Sweeney and others. Judgment on directed verdict for defendants, and plaintiff appeals.</p>