Volume 206 — South Western Reporter

<p>Appeal from District Court, Erath County; J. B. Keith, Judge.</p> <p>Grady Russell was convicted of murder, and he appeals.</p>

Porter, Judge. Proceedings by J. H. T. Mills against Marshall Mills and others to probate the will of Ella D. Mills, deceased. Judgment for proponent in the county court was reversed in the district court on a special verdict, and proponent appeals.

Marcus Weatherred, Judge. Suit in justice court by George Williams against M. M. King. Judgment for defendant, both in justice court and on appeal to county court, and plaintiff appeals.

<p>Appeal from District Court, Pecos County; James Cornell, Judge.</p> <p>Action by the Cranford Auto Company against the Ford Motor Company. Judgment for plaintiff, and defendant appeals.</p> <p>Reversed and rendered.</p>

<p>Appeal from District Court, Reeves County; Chas. Gibbs, Judge.</p> <p>Petition by A. J. Carpenter against C. C. Kountz and others. From an order granting a writ of temporary injunction the defendants appeal, and from an order prorating the use of one head of water for irrigation both the defendants and plaintiffs appeal.</p> <p>This case presents an appeal from an order granting a temporary writ of injunction on the petition of appellee, A. J. Carpenter, against appellants, C. O. Kountz, Maryhilda Galindo, and 'R. E. Lyles, and prorating between appellants and appellee the title and use of one head of water for purposes of irrigation in Toyah creek. On the hearing the trial court made and filed findings of fact, and as the appellants do not question the correctness of such findings, but do question and assign error to the court’s conclusion therefrom as a matter of law, we will, so far as we deem it necessary in stating the controlling issue in the case as we view it, make an abbreviated statement of the court’s findings as presenting the issues in the pleadings and as the court found the facts to be.</p> <p>Appellee, Carpenter, is the owner of the lands claimed by him in his petition, and appellants own the land in severalty claimed by them. Toyah creek is a flowing stream, with well-defined banks and bed, and the principal source of supply of water is what is known as the Head spring, the flow of which is constant and uniform from year to year. Each tract of land involved in the controversy abuts upon Toyah creek and is within its watershed, and each tract of land was acquired by its present owner from the state by mesne conveyances in a single transaction. The lands are in the arid portion of the state, where irrigation is necessary for the production of crops. All of the lands in question are now in cultivation by irrigation, each tract depending upon Toyah creek for water for such irrigation, appellee Carpenter cultivating by irrigation 100 acres, Ivountz cultivating by irrigation 68 acres, Galindo cultivating by irrigation 17 acres, and Lyles cultivating by irrigation 60 acres. During the year. 1870 G. B. Lyles, father of R. E. Lyles, was the owner of the several tracts now owned by appellants. During said year G. B. Lyles constructed a dam across Toyah creek where his lands abutted said creek, and by means of said dam and canals constructed by G. B. Lyles diverted a portion of the waters of said creek (the one head of water involved in this suit), and conveyed same to a portion of his said lands for the purpose of irrigation, the lands being the lands now owned and cultivated by appellants ; that continuously, since 1870, during the crop season of each year, G. B. Lyles and his vendees (appellants) have applied the waters of said creek so diverted to portions of their said lands for irrigation by means of said dam and canals; that while appellee Carpenter’s land abuts on said Toyah creek, it is impracticable for him to take water out of said creek at any point on his land and apply same to his land, and that the only practical method of applying said waters to his land for irrigation is by means of a dam situated at some point in said creek above his land, and conveying same through canals over other lands; that appellants’ lands are situated on the creek above appel-lee’s land, and about 1884 Niyeto, then owner of appellee’s land, constructed a canal across the appellants’ lands then owned hy G. B. Lyles, and connected same with the said canal theretofore constructed by Lyles and by means of Lyles’ dam and canal, as thus extended applied a portion of the waters of said creek to his (appellee’s) land; that during the time G. B. Lyles and Niyeto severally owned said lands there 'was more water flowing in Toyah creek than was necessary to irrigate the lands involved in this suit, said lands constituting about all the lands then in cultivation, the acreage in cultivation being small and the crops grown requiring less water; that in the early 90’s the waters in the Head spring were divided into halves, one part so diverted leading off in the direction of appellants’ lands, and a lateral canal therefrom was constructed to appellants’ lands; since that time the Reeves county irrigation district No. 1 has been organized and has succeeded to the rights and properties of all other Head creek water systems, and now controls the entire flow of said Head spring, subject to the rights of riparian landowners and prior appropriators of said waters not situated within the boundaries of said district. None of the lands involved in this suit are within the boundaries or jurisdiction of said district. After the other irrigation systems above referred to were established, appellee continued to irrigate his land from the Lyles lateral canal when water was ' available through said lateral canal, and when not available appel-lee’s land was irrigated through one of the other systems now owned by said district. Appellee nor his vendor had any difficulty in obtaining an adequate supply of water thorough said two canals until after said district NO'. 1 was organized, no controversy as to water arising prior thereto. In recent years the acreage under irrigation from said Head spring had greatly increased, and crops are now grown that require more water than formerly. Since the organization of said district No. 1 said district has permitted one head of water (2% second feet) to flow down said Toyah creek to the lands of the parties to this suit, and has diverted and appropriated all the remainder of the flow of the Head spring, and refuses to deliver wate.r to appel-lee’s lands except for a charge which appel-lee does not see fit to pay, he not being in said district and claiming water as a riparian owner. Appellants now divert all of the water (the one head) which said district permits to flow down Toyah creek and appropriate same to their own use, and because of said exclusive use, as said by the trial court, plaintiff has “severed all diplomatic relations with defendants.” Appellants and their vendors have at all times claimed the right to use all of the waters of Toyah creek deemed by them necessary to the proper irrigation of their lands, and for the past Id years or more have diverted and used, by means of the Lyles dam and canal, as much as one head of water, and such use has been peaceable, open, notorious, uninterrupted, and undisputed for as much as 10 years or more. Appellee and his vendors for more than 10 years have applied the waters from Toyah creek and said Head spring to his lands for irrigation, partly by means of the Murphy canal system, now known as Reeves county irrigation district No. 1 system, and partly by means of said Lyles canal. Such use of said water by appellee likewise has been peaceable, open, notorious, uninterrupted, and continuous until about two years prior to the filing of this suit. Appellants have never heretofore and do not now dispute the appellee’s right to receive the waters from said creek through the Lyles canal as extended on to appellee’s land so long as there is more water flowing therein than appellants desire to use. The one head of water, the amount constantly flowing in said Lyles canal from Toyah creek, is more water than is reasonably necessary for the proper irrigation of appellants’ crops, the said amount of water so flowing into the Lyles canal being amply sufficient, when properly and reasonably applied and used, to properly irrigate all of the lands now in cultivation of both appellee and appellants. The Lyles dam and canals are situated upon lands owned by appellants and formerly were owned by appellants’ vendors. For more than 10 years before the filing of this suit appellants have made a practice of applying the said waters, when same were needed, to their crops first when their crops were irrigated, then permitting the water to flow on down through the Lyles canal and the canal constructed by appellee connecting therewith to appellee’s land. Appellants’ lands are more porous and require more water than appellee’s land. One irrigation per month is sufficient to produce good crops upon all the lands in question. By reasonable use of the one head of water flowing in the Lyles canal appellee’s crops on his said lands can be properly irrigated in 10 days and the crops of appellants in 20 days.</p> <p>The trial court concluded, and so ordered, that appellee should have the exclusive use of ■the entire flow of water in and through the Lyles canal for 10 consecutive days of 24 hours each, and that appellants should have the exclusive use of the entire flow of the water for 20 consecutive days of 24 hours each. All parties excepted and gave notice of appeal.</p>

<p>1. Justices oe the Peace <&wkey;202(2) — CERTI-ORARI — AEEIDAVIT OE PETITION.</p> <p>An affidavit or jurat to a petition for cer-tiorari to the justice court by one not shown by petition, jurat, or record to be petitioner’s attorney, or to have knowledge of facts alleged in petition, is insufficient, under Rev. St. 1911. art. 745.</p> <p>2. Justices oe the Peace <&wkey;199 — Certiora-ri — Right oe-Review.</p> <p>• An application for certiorari to review a justice court judgment is addressed to the court’s discretion, and not to be granted as a matter of right.</p> <p>3. Justices oe the Peace <&wkey;202(2) — Certi-orari — Petition—Sueeiciency.</p> <p>A petition for certiorari to the justice court should state sufficient facts to show that another trial would probably result in a different judgment, so that mere general averments of no liability are insufficient.</p> <p>4. Justices oe the Peace &wkey;202(2) — Certi-orari — Petition — Sueeiciency — Default Judgment.-</p> <p>A petition for certiorari to review a justice court default judgment showing an alleged excuse for absence from the trial, but setting up no sufficient excuse for failure to appear or answer, is insufficient.</p>

Application, on relation of J. M. Rhodes, for writ of mandamus to compel the trial of relator’s action against the El Paso & Southwestern Railway Company and others to proceed, opposed by Reese Tatum, district judge, and others.

<p>1. Witnesses <&wkey;131 — Competency— Statement by Testator — Will Contest.</p> <p>Rev. St. 1911, art. 3690, as to competency of parties in action by or against executor to testify to statement by testator, does not apply to contestant in’ a will contest.</p> <p>2. Appeal and Error &wkey;>1003 — Reversal— Yerdict Against Evidence.</p> <p>Verdict being contrary to the overwhelming testimony, judgment thereon will be reversed.</p>

<p>1. Landlord and Tenant <@=>75(2)—Lease— Subletting — Permission to Pasture Stock.</p> <p>The act of a tenant in permitting a third person to pasture stock on the leased premises together with tenant’s stock, there being no surrender or abandonment, either actual or constructive, of the premises by the tenant to the third person, was not a subletting, forfeiting the lease under the statute.</p> <p>2. Landlord and Tenant <@=>275—Lease-Breach of Covenant—Right of ReEntry.</p> <p>Ordinarily breaches of express covenants, much less those that arise only by implication, do not forfeit the right of possession or confer the right of re-entry, in the absence of an express provision to that effect in the contract.</p> <p>8. Appeal and Error <§=>1010(1) — Evidence to Support Finding.</p> <p>Unless the evidence upon which a finding is based is entirely without probative force, the appellate court is not at liberty to disturb the finding.</p>

<p>1. Statutes <§=>225% — Construction—Adoption after Construction by Courts.</p> <p>Rev. St. art. 2021, authorizing impeachment of verdict on motion for new trial, by testimony Of jurors as to their misconduct, will be held to have been adopted with the construction, previously placed by the Court of Criminal Appeals on a similar statute for criminal cases, that the issue was not one in the main case tried before the jury, and therefore that the evidence thereon must be preserved by bill of exceptions or statement of facts filed in term time.</p> <p>2. Appeal and Error <§=>564(2) — Exceptions, Bill of <§=>38 — Statement of Pacts —Evidence on Motion for New Trial-Time of Piling.</p> <p>Rev. St. art. 2073, giving, on appeal from judgment, time beyond the term in which to prepare and file statement of facts and bill of exceptions, does not apply to testimony taken on motion for new trial for misconduct of jury, which must be preserved by bill of exceptions or statement of facts filed in term time.</p> <p>3. Highways <§=>184(2) — Frightening Team.</p> <p>Verdict for defendant, in action based on claim that plaintiff’s team which ran away was frightened by articles which defendant had piled on the road, held, supported by evidence.</p>

<p>1. Judgment <s&wkey;143(5) — Failure to- Appear —Excuse.</p> <p>Motion for new trial, made at same term that default judgment was rendered, alleging that defendants were cited to appear November 19th, that Legislature 'by Acts 36th Leg. c. 91, § 2 (Vernon’s Ann. Civ. St. Supp. 1918, art. 30), effective August 1st, changed term of court so that it began October 8th instead of November 19th, and that defendants were nonresidents and had no knowledge of the change, showed sufficient excuse for failure to appear.</p> <p>2. Judgment <&wkey;106(2). — Default — Change of Teem of Court — Jurisdiction.</p> <p>Although defendants were cited to appear November 19th, where act of Legislature (Acts 35th Leg. c. 91, § 2 [Vernon’s Ann. Civ. St. Supp. 1918, art. 30]), effective August 1st, changing term so that it began October 8th instead of November 19th, contained a clause making all process theretofore issued returnable to term of court therein fixed, court was authorized to render default judgment on October 13th, no answer having been filed.</p> <p>3. Judgment <&wkey;145(2) — Default—Meritorious Defense — Necessity.</p> <p>Although defendants presented sufficient excuse for not appearing at time default judgment was rendered, court was justified in refusing to grant new trial unless it was shown that defendants had a meritorious defense.</p> <p>4. Evidence <@=»461(1) — Paeol Evidence to Vaey Conteact.</p> <p>Where agents by plain terms of contract bound themselves, parol evidence was not admissible to show that it was their intention to bind their principals.</p> <p>D. PRINCIPAL AND AGENT <&wkey;142 — UNDISCLOSED Peinolpal — Facts Putting Third Persons on In QUIET.</p> <p>That defendants’ contract of sale recited that the sale was of specific growing crop of a person named was consistent with the theory that the contract was one made for the purpose of binding defendants personally.</p> <p>6. Principal and Agent <&wkey;146(3) — Contract Creating Personal Liability.</p> <p>Defendants were personally liable on a contract whereby defendants sold plaintiff 10 cars of onions, although plaintiff had information on which he could have elected to sue defendants’ principals.</p> <p>7. Contracts <&wkey;127(2) — Agreement to Settle by Arbitration.</p> <p>Provision of contract that any dispute is to be settled by arbitration is contrary to public policy, and will not oust courts of jurisdiction.</p>

Error from District Court, Webb County; J. P. Mullally, Judge. Suit by George W. Simon and another, partners under the firm name of Simon & Dunlap, against Joe Queiroli and another. Defendants’ motion to set aside default judgment denied, and they bring error.

<p>Appeal from Dallas County Court, at Law; T. A. Work, Judge.</p> <p>Action by the Southern Rock Island Plow Company against Andrew Bowden. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, McLennan County; E. J. Clark, Judge.</p> <p>Suit by B. E. Clement, doing business as the Clement Grain Company, against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>Habeas Corpus <&wkey;>113(9)—Appeal—Bill op Exceptions.</p> <p>Contention of petitioner in habeas corpus that he objected to certain evidence is not available on appeal, it not being shown by bill of exceptions.</p>

<p>Appeal from District Court, Collin County; M. H. Garnett, Judge.</p> <p>Eorrest Chapman was convicted of burglary, and appeals.</p>

<p>Appeal from Dallas County Court; T. A. Work, Judge.</p> <p>Suit between the Spadra-Clarksville Coal Company and the Security National Bank of Dallas. There was judgment in justice court for the latter, appeal to the county court resulted similarly, and the former appeals.</p>

<p>On Rehearing.</p> <p>1. Landlord and Tenant &wkey;>262(4) — Lien for Rent and Supplies — Evidence.</p> <p>Where crop mortgagee sued mortgagor’s landlord as for conversion, and landlord admitted having taken the crops, valued at $330, in payment of the rent and supplies furnished by him, worth $333, and there was in evidence a letter from the landlord stating that at its date the tenant owed him $200, verdict that the value of the supplies was $191 could not be upheld, because it had no foundation in the evidence.</p> <p>2. Trial &wkey;>333 — • Verdict — Conformity with Evidence in Amount.</p> <p>A ,iury cannot arbitrarily set an amount in a verdict that is not sustained by the evidence.</p>

<p>1. Appeal and Error <&wkey; 1091(2) — Presumptions — Oral Pleadings — Intermediate Courts.</p> <p>Where pleadings in justice court are oral, and no record made on appeal, the presumption on appeal from intermediate court is that they were consistent with the rulings of the trial court.</p> <p>2. Evidence <&wkey;317(10) — Hearsay — Counterfeit Money.</p> <p>In action for goods sold and delivered under defense of payment, where the reply alleged that the money was ■ counterfeit, evidence that the collector of customs declared the money counterfeit, confiscated it and refused to return it, was inadmissible to show that the money was counterfeit.</p> <p>3. Appeal and Error <&wkey; 1050(1) — Prejudice —Admission oe Evidence.</p> <p>In action for goods sold and delivered under defense of payment, and reply alleging that money paid was counterfeit,' the error in admitting hearsay testimony, as to whether the money was counterfeit, was prejudicial, where no otíier testimony on the subject was offered.</p>

<p>Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.</p> <p>Action by M. N. Gallagher against the Liverpool & London & Globe Insurance Company. Judgment for defendant, and plaintiff appeals.</p>

Llewellyn, Judge. Suit by J. E. Broussard against R. M. White, J. T. White, Josephine Connerly, F. T. Connerly, and others, in which G. N. Tegnell and wife intervened. Judgment for plaintiff and for interveners on the plea of intervention and the defendants named appeal.

<p>Appeal from Terrell County Court; J. B. Ross, Judge.</p> <p>Action by M. F. Boykin against the Southwest Texas Oil & Gas Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Dallam County; Reese Tatum, Judge.</p> <p>Action by O. L. Brown against A. A. Lump-kin, administrator. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Reeves County; Chas. Gibbs, Judge.</p> <p>Suit by Elzada McDaniel against Grant Lauchner. To review judgment for defendant, plaintiff brings error.</p>

H. Clark, Judge. Suit by the Sunset Wood Company against E'. Koerner, wherein, E. A. Kelly and P. G. Saunders, doing business under the name of the Army Bank of Port Sam Houston, were garnished, resulting in judgment against the garnishees by default, whereon execution was issued, and the garnishees obtained temporary injunction against plaintiff and John W. Tobin, Sheriff, which the court later dissolved. Prom the order of dissolution, the garnishees appeal.

G. Tayloe, Judge. Suit by Garza Aldape against J. E. Foster and others, doing business under the firm name of the Mission Auto Company. Decree for plaintiff, and defendants appeal.

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>On rehearing. After remand from the Supreme Court, with answers to certified questions (203 S. Wl. 41).</p>

<p>1. PRINCIPAL AND SURETY <i&wkey;152 — EIGHTS OP SURETY.</p> <p>If the holder of the note sued guaranteeing indorser, alleging that the maker was only an accommodation maker, it was right of the guaranteeing indorser to have the maker made a party for the determination of that issue.</p> <p>2. Bills and Notes <&wkey;459 — Actions—Parties.</p> <p>Notwithstanding a third person received part of the proceeds of a note, he was not a necessary party to an action on the note when his name did not appear on the face of the note.</p> <p>3. Husband and Wife <&wkey;275— Community Estate — Remarriage of Wife — Effect.</p> <p>Where surviving wife remarried, she could not, under Rev. St. art. 3611, be sued as a representative of the community estate.</p> <p>4. Pleading <&wkey;34(2) — General and Special Statements — Which Conteol.</p> <p>Where a petition alleged that a debt was created prior to conveyance, but the actual dates showed that it was not, the speciaLallegations controlled the general.</p> <p>5. Fraudulent Conveyances <&wkey;206(l) — Who May Complain — Prior Ceeditors.</p> <p>Ordinarily, only prior creditors can complain of a fraudulent conveyance.</p> <p>6. Descent and Distribution <&wkey;140 — Remedies — Death of Grantor.</p> <p>Where debtor, after alleged fraudulent conveyance to his wife, died leaving an insolvent estate, the creditor, without first securing administration upon the debtor’s estate and establishing his debt against the estate, could maintain a proceeding against debtor’s widow and children to set aside the conveyance, and in such proceeding the debt could be established and ordered paid out of the property.</p> <p>7. Fraudulent Conveyances <&wkey;228 — Attachment.</p> <p>In view of Rev.' St. art. 240, authorizing attachment only on affidavit that defendant is justly indebted to plaintiff, a creditor of deceased could not maintain attachment against property, in the hands of deceased’s widow, alleged to have been fraudulently conveyed to her by deceased during his lifetime.</p> <p>8. Evidence <&wkey;332(7) — Inventory of Estate —Admissibility.</p> <p>In action by creditor to set aside conveyance by deceased to his wife as fraudulent, the inventory of the wife as community administratrix was admissible to show the condition of deceased’s estate.</p> <p>9. Fraudulent Conveyances <&wkey;286(l) — Evidence — Payment of Taxes.</p> <p>In suit to set aside a fraudulent conveyance, evidence that the grantor paid taxes after the conveyance was not admissible.</p> <p>10. Witnesses <&wkey;135 — Transactions with Person Since Deceased.</p> <p>In creditor’s suit after the grantor’s death to set aside conveyance as fraudulent, representations made by grantor to plaintiff’s agent were admissible, since Rev. St. art. 3690, did not apply.</p> <p>11. Evidence <&wkey;230(3) — Declarations by Grantor.</p> <p>If a deed alleged to have been fraudulent was executed and delivered prior to the date of representations made by the grantor to the plaintiff, evidence as to such representations is not admissible in a suit to set aside conveyance as fraudulent.</p> <p>12. Fraudulent Conveyances <&wkey;206(2) — Prior Creditors — Effect of Holding Security.</p> <p>If the conveyance alleged to be fraudulent left the grantor’s estate insolvent, the mere fact that at the time of the conveyance the creditor held security then of value, which later lost its value, would not prevent the creditor from being classed as a prior creditor within Rev. St. art. 3967.</p> <p>13. Fraudulent Conveyances <&wkey;57(4) — Subsequent Insolvency.</p> <p>The question of insolvency is to be determined as of the time of the voluntary conveyance.</p>

<p>1. Contracts <@=>164 — Construction — Construing Instruments Together.</p> <p>Two or more writings, executed contemporaneously ’between the same parties, and in reference to same subject-matter, must be deemed one instrument, and as forming the same contract.</p> <p>2. Evidence <@=>441(1) — Parol Evidence — Several Writings Forming One Contract.</p> <p>Parol evidence is admissible to prove that two or more writings executed contemporaneously constitute but one contract.</p> <p>3. Contracts <@=>164 — Construing ¥/ritings Together.</p> <p>Where agent on cancellation of contract of agency gave principal release in full, but contemporaneously therewith principal in consideration of cancellation of contract agreed to sell agent an automobile at a reduced price, the receipt must be considered, together with the other agreements made at same time, as part of one contract, and cannot defeat agent’s right to the car at the agreed price.</p> <p>4. Evidence <@=>450(5) — Parol Evidence — Nature oe Agreement.</p> <p>Where agent gave principal a release in full upon termination of contract, and principal contemporaneously therewith signed contract agreeing to sell agent an automobile at a reduced price in consideration of release by agent of all claims against principal, parol evidence was admissible to explain any conflict between the two writings when read together as part of one contract.</p>

<p>Appeal from District Court, Travis County; Ireland Graves, Judge.</p> <p>On application for rehearing.</p>

<p>1. Telegrams and Telephones <&wkey;39 — Error in Transmission — Right of Recovery •^-Approximate Quotation.</p> <p>f¡ Even if plaintiff’s telegram was merely an approximate quotation of price, this is immaterial as regards plaintiff’s right to recovery of telegraph company for transmitting a lower price, sendee ordering plaintiff to buy, and he doing so at market price, resulting in a complete and fully executed contract)</p> <p>2. Principal and Agent/%=360 — Exceeding-Aut-thority — Liability.</p> <p>/An agent, with limited authority to buy at a certain price, paying more, is liable to the principal for the excess expendedX</p> <p>3. Telegraphs and Telephones' <&wkey;56(2)— Mistake in Transmission — Right oe ^•nder. ’</p> <p>’ One who telegraphs quotation of ijrice to f another, with whom he had previously corresponded by mail, makes the telegraph company his agent, and so must settle with the sendee on the price erroneously, transmitted, accepted bL, .sendee, and can recover the loss of the company.'</p> <p>A. Courts &wkey;>91(l) — Controlling Decision -/State Supreme Court.</p> <p>(Decision of Texas Supreme Court on invalidity of provisions on back of interstate telegram limiting liability for error in transmission is controlling on Court of Civil Appeals/"</p>

D. Harvey, Judge. Suit by D. Diamond against John Gust and others. Judgment for plaintiff in part and he appeals, and defendants file cross-assignments of error.

<p>1. Municipal Corporations &wkey;>978(9) — Foreclosure of Lien foe Taxes — Pleading — Venue.</p> <p>Where a complaint in a suit by a city to foreclose a lien for taxes failed to allege that the property was in the county at the time of the commencement of the suit, it was error to overrule a plea of privilege; defendant being a nonresident.</p> <p>2. Venue <&wkey;21 — Suit foe Taxes — Nonresi-dence.</p> <p>A city cannot maintain a suit for taxes against a nonresident taxpayer, where the case is not within any exception to Rev. St. 1895, art. 1194, requiring a defendant to be sued in the county of his domicile.</p>

R. Spencer, Judge. Action by Stancil Bagwell, by his father as next friend, against the City of Lubbock, judgment for plaintiff, and defendant appeals.

<p>1. Trover and Conversion <&wkey;40(3) — Ownership of Property — Sufficiency of Evidence.</p> <p>In suit by wife for conversion of machinery, owned by her as widow of her first husband and taken by defendant from possession of her second husband in foreclosing mortgage thereon, evidence held to sustain finding that property belonged to plaintiff’s first husband, and that on his death it came into her possession as his widow.</p> <p>2. Husband and Wife <&wkey;133(l) — Wife’s Estate — Evidence.</p> <p>In wife’s suit for conversion of her personalty by defendant foreclosing a mortgage given by the husband, it was not necessary for the wife to show from what source she acquired the property, but only that it was her separate property.</p> <p>3. Husband and Wife <&wkey;129(3) — Separate Property — Estoppel to Claim.</p> <p>Act of wife in permitting husband and his partner to use her machinery in business as if it belonged to them did not legally estop her from claiming property as against creditor of firm, who accepted mortgage from partners to secure debt against firm.</p> <p>4. Husband and Wife <&wkey;129(4) — Separate Property of Wife — Possession of Husband-Notice by Wife.</p> <p>That the law now gives a wife control of her separate property does not require her to give notice of ownership to those who might give credit to husband on strength of his possession and use of such property, to protect it against seizure and sale for payment of husband’s debts.</p> <p>5. Appeal and Error <&wkey;994(3) — Review — Credibility of Witnesses.</p> <p>Credibility of witnesses was for trial court to pass upon, not for Court of Civil Appeals.</p>

Gibbs, Judge. Suit by the C. C. Slaughter Company against H. L.-Wynne and another, in which J. E-. Henson was made a party defendant by' amendment to petition. From the judgment rendered, plaintiff and Henson appeal.

<p>1. Appeal and Error &wkey;>1050(l) — Harmless Error — Facts Otherwise Established.</p> <p>An assignment of error to the introduction of a letter cannot be sustained, where another letter, written by the same person to the same addressee, containing practically the same matters objected to, was read to the jury without objection.</p> <p>2. Insurance &wkey;>576(l) — Appraisals—Waiver by Insurer.</p> <p>Where fire policy required appointment, in case of disagreement, of two disinterested appraisers, who should choose a third, such clause being for the benefit of the insurer, it waived such benefit _ by appointing an appraiser, who was not disinterested, but was in its employment, and it was no defense that the insured also appointed an interested appraiser.</p>

<p>Appeal from District Court, Duval County; V. W. Taylor, Judge.</p> <p>Action by Barthold & Casey, Incorporated, against J. R. Howard and others. Judgment for plaintiff, and defendants appeal. ■</p>

<p>1. Appeal and Error &wkey;>263(3) — Exception to Special Charge.</p> <p>Failure to except to court’s refusal to give special charge requested was waiver of right to assign error thereto.</p> <p>2. Appeal and Error &wkey;>263(l) — Failure to Except to Charge.</p> <p>Failure to except to the general charge of court does not preclude court on appeal from considering appellant’s objections thereto.</p> <p>3. Insurance i&wkey;451(l)—Accident Policy-Limiting Clause.</p> <p>Clause in accident policy providing that policy did not cover railroad employés while on duty near track is not inconsistent with caption providing insurance against accident “to the extent herein provided,” and precluded recovery under policy for accident to flagman while on duty at railroad crossing.</p>

<p>1. Courts <&wkey;121(3) — County Court — Amount in Controversy.</p> <p>In a suit to foreclose a chattel mortgage in county court, the amount in controversy is the alleged value of the property.</p> <p>2. Appeal and Error &wkey;»1166 — Reversal or Dismissal — Failure to Show Jurisdiction.</p> <p>Where neither pleadings nor evidence in a chattel mortgage foreclosure in a county court showed the value of the property, an appeal will be reversed, with instructions to amend, and will not be dismissed, on the ground that no jurisdiction is shown.</p>

<p>Navigable Waters <S=»45 — Abandoned Bed of Navigable Stream — Effect on Abutting Property.</p> <p>Where navigable river, during overflow, left its old bed and formed a new one, title to old bed remained in state, and boundary, lines of abutting property remained the same; the change being the result of an avulsion, though only main body of river changed channel during overflow, and drying up of old bed was gradual process.</p>

<p>On motion for rehearing. Motion granted, and judgment below affirmed in full.</p>

<p>1. Principal and Agent <&wkey;134 — Repbe-senting Conflicting Interests.</p> <p>An agent may not, in same transaction, be at same time the agent of two parties whose interests conflict, and where agent, without knowledge or consent of principal, undertakes services for third party which may conflict with services for original principal, such undertaking will not bind the principal.</p> <p>2. Frauds, Statute of &wkey;>44(l) — Contract Not to be Performed Within Year — Agreement to Renew Insurance Policy.</p> <p>Parol agreement by insurer, made at time of renewing policy for three-year term, to renew policy upon expiration, was unenforceable under Rev. St. 1911, art. 3965.</p> <p>3. Insurance <&wkey;145(2) — Agreement to Renew — Authority of Agent.</p> <p>Where insurer’s agent in renewing policy promised insured that he would attend to insurance of insured’s property, such promise did not bind insurer to renew upon expiration, in absence of showing that agent had been authorized to bind insurer by such agreement.</p>

Suit by William Linden against Mrs. V. E. Withers and H. C. Cantrell to restrain an execution sale. An order was made dissolving a temporary injunction, and writ of error brought by J. M. McKenzie and another, sureties on the injunction bond, was dismissed by the Court of Civil Appeals (152 S. W. 658; 153 S. W. 413), whereupon sureties bring error.

<p>Error to Court of Civil Appeals of Seventh Supreme Judicial District.</p> <p>Action by C. H. Wallace against the Southern Kansas /Railway Company of Texas. Judgment for plaintiff was affirmed by the Court of Civil Appeals (152 S. W. 873), and defendant brings error.</p>

Supreme Judicial District. Action by A. L. Sherk against the First National Bank of Hereford and J. L. Fuqua. From a judgment of the Court of Civil Appeals (152 S. W. 832), affirming judgment that plaintiff take nothing, and decreeing foreclosure prayed by the defendant bank, plaintiff brings error.

<p>1. Evidence <&wkey;343(2) — Admissibility—Ab-stbacts.</p> <p>Abstracts furnished under Rev. St. art. 7743, are admissible in trespass to try title to show common source.</p> <p>2. Trespass to Try Title <&wkey;ll — Title op Plaintiff.</p> <p>Where defendant’s grantor, engaged to marry a woman who had two children by former marriage, bought land, the title to which was taken in her name, in trust for him, pending his divorce, and after marriage; he conveyed to plaintiff, and on his wife’s death her mother assumed to convey to defendant, defendant had no title from the common source since the two children survived; but plaintiff had equitable title, at least, from the common source, entitling her to recover.</p> <p>3. Trespass to Try Title &wkey;>l&wkey;RiOHT to Possession.</p> <p>Where the grantor of plaintiff in trespass to try title had possession by a tenant prior to the entry of defendant, plaintiff’s possession was sufficient to support a judgment as against defendant who was a mere trespasser.</p>

Suit by J. H. Lieber against B. F. Nicholson and others. There was judgment for plaintiff for a specified sum and for defendants for a specified sum, and defendants appealed to the Court of Civil Appeals (153 S. W. 641), which reversed and rendered in part and affirmed in part, and plaintiff brings error.

<p>1. Criminal Haw <@=>451(3)—Opinion Evidence—State of Mind.</p> <p>In a prosecution for murder, evidence of a physician called to attend deceased, -who was defendant’s wife, that in his opinion defendant’s grief was feigned, was not inadmissible, as being an opinion; it being? a statement of an effect produced upon tbe mind.</p> <p>2. Criminal Law <&wkey;366(4) — Evidence—Res Gestee.</p> <p>In a prosecution for tbe murder of defendant’s wife, evidence that, when defendant _ approached her after tbe infliction of the injury from which she died, she pushed him away and frowned at him, was admissible as res geste.</p> <p>3. Criminal Law &wkey;462 — Evidence—Admissibility.</p> <p>In a prosecution for murder of defendant’s wife, testimony of a witness that in his opinion defendant could not possibly have gotten home, committed the murder, and gone out and summoned help within the time charged, was properly excluded.</p> <p>4. Criminal Law &wkey;>193% — Former Jeopardy — Conviction of Offense of Lesser Degree.</p> <p>In a prosecution for murder committed February 8, 1911, at which time murder was divided into two degrees, where a trial in 1911 resulted in a hung jury, but a subsequent trial resulted in a conviction of murder in the second degree, the acquittal of murder in the first degree by conviction in the second degree did not on a subsequent trial, preclude a trial for murder, and require a trial for manslaughter only.</p> <p>5. Homicide &wkey;282 — -Manslaughter—Sub- . mission of Issue.</p> <p>In a prosecution for murder, it was not error to refuse to submit the question of manslaughter, where neither adequate cause nor passion was shown under the evidence.</p> <p>6. Homicide <&wkey;282 — Aggravated Assault — , Submission of Issue.</p> <p>In a prosecution for wife murder by defendant, shown to have been committed with a hammer, in the absence of evidence that there was no intention to hill, the issue of aggravated assault was not raised, so as to require submission thereof to the jury.</p>

<p>1. Insurance @=512 — Insurance oe Master Against Workmen’s Compensation Claims — Risks Covered.</p> <p>Where insurer insured employer against losses under Workmen’s Compensation Act, § 21 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246xxx), but employer failed to give notice as required by section 19 ¡(article 5246x), so as to bring his workmen within the act, and was held liable as at common law, he could not recover an additional sum of the insurer, who had paid the schedule amount, since his own negligence permitted the servant to recover more.</p> <p>2. Insurance @=435 — Insurance oe Master Against Workmen’s Compensation Claims — Risks Covered.</p> <p>Policy insuring master for injuries to employes, together with binders and amendments .attached after the enactment of Workmen’s Compensation Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), held to contemplate indemnity against losses under the act only and according to its schedule of compensation.</p> <p>3. Insurance @=3435 — Insurance oe Master Against Workmen’s Compensation Claims — Risks Covered.</p> <p>Where defendant had insured plaintiff against injuries to its employés, and the contract was changed subsequent to the enactment of Workmen’s Compensation Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), charging a larger premium, it did not continue original liability as well as liability under the act.</p>

Error from District Court, Harris County; Henry J. Dannenbaum, Judge. Action by J. W. Maxcy and others against Annie E. Oates and others. Judgment for plaintiffs, and defendants bring error. Affirmed without opinion. On motion for rehearing.

<p>1. Adverse Possession <@=360(2) — Permissive Possession.</p> <p>Mere permissive possession of land,- however long continued, will not give title by adverse possession.</p> <p>2. Railroads <@=>69 — Grant from County — Constitution.</p> <p>Instrument by presiding justice of county court reading, “I,-, donate, grant, and convey” certain land to railroad for use as depot .site, construed with county court’s order using words “grant” and “donate,” was intended to pass title, and not merely permissive possession, where only word of limitation declared grant void upon railroad’s failure to build line through certain town.</p> <p>3. Deeds <@=303 — Construction—Intent.</p> <p>A deed should be construed according to its apparent intent as gathered from the entire in■strument, in the absence of ambiguity on the face of the instrument.</p> <p>4. Deeds <@=90 — Construction Against Grantor.</p> <p>In case of ambiguity in a deed, or whore it admits of two constructions, it will be construed most strongly against the grantor.</p> <p>■5. Deeds <@=>101 — Construction — Conduct of Parties.</p> <p>Where parties to instrument in writing have by their acts and conduct placed a construction ■upon the Same showing the intention of the parties, such acts and conduct should be given strong weight by the courts in arriving at the intention of the parties, and, in the absence of •clear language indicating intention inconsistent with acts and conduct, the courts should adopt ' the construction placed upon instrument by parties themselves.</p> <p>6. Railroads <@=>69 — Grant—Construction.</p> <p>Where county granted land to railroad, and for more than 40 years permitted railroad to use land and pay all taxes thereon, the county will be held to have intended.to grant land to railroad absolutely, and not merely to give permissive right to use same as site for depot.</p> <p>7. Adverse Possession <@=73 — Defective Grant — Occupation of Land by Owner.</p> <p>Where county granted land to railroad for depot purposes, but failed to sell land by commissioner at public auction as required by law, the railroad, by entering upon land, making improvements thereon, and continuing possession and paying taxes for more than 40 years, secured title thereto by adverse possession.</p>

<p>Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.</p> <p>Action by the Western National Bank of Hereford against J. I. Walker. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Motley County Court; A. B. Crane, Judge.</p> <p>Action by Jack James against J. S. Blake. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Evidence <&wkey;366(3) — Copies of Judicial Records — -Admissibility.</p> <p>A copy of a decree of a federal court is inadmissible in evidence, where neither the instrument itself nor the certificate of the clerk shows by what court it was rendered.</p> <p>2. Evidence <&wkey;366(3) — Copies op Judicial Records — Sufficiency op Certificate.-</p> <p>A copy of a decree of a federal court is not admissible in evidence, where the clerk’s certificate fails to show that it is a true copy of an original decree.</p> <p>3. Bills and Notes <&wkey;485 — Transfers — Pleading-.</p> <p>Under the statute, a sworn pleading is necessary to question the genuineness or sufficiency of an indorsement on a note as a transfer thereof.</p> <p>4. Mortgages <&wkey;235 — 1Transfer of Security-Admissibility of Evidence.</p> <p>A mortgage, as incident to the debt, passes to the owner of notes secured by it upon their transfer.</p> <p>5. Assignments <&wkey;137 — Actions—Proof of Assignment.</p> <p>In suit on an account alleged to have been assigned, the assignment is not proved by showing decree merely directing the assignment, and not itself vesting title to the assets assigned, since it cannot be assumed that the decree was complied with.</p> <p>6. Account, Action on &wkey;>12 — Defenses — Ownership of Debt.</p> <p>The rule that the justness of the account cannot be impeached unless a counter affidavit is filed does not mean that ownership of the debt is conceded by failing to file an affidavit.</p> <p>7.Account, Action on <&wkey;llRequisites of Affidavit.</p> <p>An account is properly verified by affidavit of plaintiff, assignee thereof, and need not be verified by affidavit of plaintiff’s assignor.</p>

<p>1. Boundabies <®&wkey;j2—-Pleading and Evidence—Variance.</p> <p>In a boundary dispute, where petition'referred to plaintiff’s survey as being 1,900 varas square, but also distinctly referred to lines evidenced by iron pipo corners, that a slight excess over 1,000 varas was shown to exist between the corners was not a fatal variance.</p> <p>2. Appeal and Eirror <&wkey;930(4) — General V erdiot — Presumptions.</p> <p>In a boundary dispute, wliere court instructed that if it should be found that several lines were located by a surveyor, with reference to certain mounds, then the verdict should be for plaintiff, “otherwise, the finding should be for the defendant,” and the jury returned a general verdict for plaintiff, there is no presumption that issues not submitted were resolved by the court in plaintiff’s favor.</p> <p>3. Boundaries <&wkey;>5 — Artificial Marks— Surveys.</p> <p>Objects denoting the footsteps of the surveyor cannot be given effect in the absence of calls therefor in the field notes.</p> <p>4. Appeal and Error <&wkey;856(l) — Improper Theories — Affirmance.</p> <p>Where evidence did not support finding on which a judgment was based, it will be affirmed, where the record conclusively shows, on other theories, that the judgment rendered was the proper judgment.</p> <p>5. Boundaries <&wkey;47(2) — Estoppel.</p> <p>Where a landowner erected a fence and, in the presence of a prospective purchaser of adjoining land, stated that he would join such prospective purchaser in building a substantial fence, where there was an opening in the fence, he was estopped as against such purchaser from denying that such fence was on the boundary.</p> <p>6. Trespass to Try Title <@=>34 — Pleading —Disclaimers—Cross-Actions.</p> <p>Where defendant in trespass to try title pleaded not guilty, a cross-action by him would not bring him within the terms under Rev. St. 1911, art. 7752, relating to disclaimer; allegations of the cross-petition not being a part of his answer proper.</p> <p>7. Adverse Possession &wkey;>17 — Sufficiency of Possession.</p> <p>The mere fencing of land for more than ten years does not show use or occupancy sufficient to give title.</p> <p>8. Trespass to Try Title <&wkey;38(l) — Cross-Actions — Burden of Proof.</p> <p>In trespass to try title, where a defendant brings a cross-action against plaintiff and another defendant, he must affirmatively show title to land in the possession of second defendant.</p> <p>9. Boundaries <&wkey;7 — Surveys—Monument.</p> <p>Where a surveyor ran a line and put up a monument at a corner, the monument belongs to the system of surveys made by the surveyor.</p>

<p>1. Trial <&wkey;295(5) — Instructions — Consideration as A Whole.</p> <p>The charge as a whole, predicating plaintiff’s right to recover on operation of defendant’s ‘mill in such manner as to constitute a nuisance, adding to defendant’s requested charge that erection of the building gave no cause of action, the words, “unless in the operation thereof a nuisance was created,” was not misleading.</p> <p>2. Trial &wkey;250 — Instructions — Requests — Conformity to Issues.</p> <p>Defendant’s requested charge that it was not required to operate its plant to suit the extraordinary habits, tastes, or sensibilities of others was properly refused, claim to the contrary not being made by plaintiff’s pleading or evidence.</p> <p>3. Nuisance <&wkey;64 — Conduct of Lawful Business.</p> <p>That a business is lawful, and so does not constitute a nuisance por se, does not prevent recovery, where it is conducted unlawfully, or so as to constitute a nuisance, damaging neighbors.</p> <p>4. Trial <&wkey;260(l) — Instructions — Requests Covered.</p> <p>It is enough that the substance of a requested charge has been given.</p> <p>5. Trial <&wkey;256(S) — Instructions — Request.</p> <p>Where defendant’s requested charge does not apply the law to the facts developed, but is merely that the conditions as to annoying per-" sons must have been worse after than before the addition to defendant’s mill, and the court so charges as to noises, defendant, if desiring such a charge as to odors, and there is evidence that they were no worse, should specifically request it.</p> <p>6. Trial <&wkey;295(5) — Instructions — Consideration as a Whole.</p> <p>General charge having said that plaintiffs could recover only if operation of defendant’s mill caused this or that to be conveyed to plaintiffs’ premises, etc., instruction, in answer to inquiry of jury, that defendant had right to operate its plant, but if in doing so it provided a condition materially disturbing and annoying persons of ordinary sensibilities, etc., it would be liable, could not have been considered authority for judgment for annoyance suffered by plaintiffs elsewhere than in their home.</p> <p>7. Witnesses <&wkey;240(4) — Leading Question.</p> <p>The question, “I want you to tell the jury * * * how that [the noise testified to] affected you,” is not leading, it not suggesting the answer.</p> <p>8. Witnesses &wkey;237(4) — Questions Assuming Facts.</p> <p>Prior testimony of witness fairly tending to support claim of noises coming from defendant’s mill, question as to how noise testified to affected witness is not open to objection of assuming existence of the noise.</p> <p>9. Trial <&wkey;260(10) — Instructions — Requests — Equivalents.</p> <p>Instruction that if plaintiff, at time of trial, was in bad condition, and this was due to former illness, damages could not be allowed on account of such former illness, is equivalent to defendant’s requested charge, that, if plaintiff’s then condition was due to former illness, she could recover nothing on account of her health.</p> <p>10. Trial <&wkey;260(3) — Instructions — Request Covered.</p> <p>Requested instruction as to matters that must be shown by preponderance of evidence to authorize recovery on the theory of operation of defendant’s mill being a nuisance causing plaintiff’s ill health, held, covered by general charge.</p>

<p>1. Brokers <&wkey;57(l) — Loan Broker — Right to Commission — Departure erom Terms.</p> <p>Loan broker, employed by landowner to procure loan to take up loan against land and debt due state, who procured company to offer loan, but on such conditions that proceeds were not available to pay state incumbrance., while provision for maturity of debt on contingency was departure from landowner’s terms, did not earn commission.</p> <p>2. Brokers <&wkey;57(l)~Loan Broker — Right to Commission — Waiver oe Terms by Borrower.</p> <p>A waiver, by borrower, of departure in terms of loan offered from that authorized to be negotiated by loan broker, to be operative must be supported by agreement on valuable consideration, or be such as to estop him from insisting on strict performance of contract.</p> <p>3. Brokers &wkey;>57(l) — Loan Broker — Waiver oe Departure erom Terms.</p> <p>Waiver by borrower of loan broker’s departure from terms of loan authorized by him is operative only where borrower has knowledge, actual or constructive, of the facts.</p> <p>4. Brokers <&wkey;57(l) — Loan Broker — Borrower’s Waiver oe Departure in.</p> <p>Landowner, who employed loan broker to procure loan secured by land, had right to assume, in connection with his claimed waiver of departure in terms of loan offered by company from that authorized, that terms embodied in papers sent to a bank by the lending company for execution conformed to his application.</p> <p>5. Brokers &wkey;>57(l) — Loan Broker — Departure in Terms oe Loan Procured — Waiver.</p> <p>Landowner, who employed loan broker to procure loan secured by land to take up previous loan against it and debt due state, held not to have waived departure, in terms of loan offered by company, from that authorized to be negotiated, by refusal to proceed further with loan on the ground he had secured one elsewhere.</p> <p>6. Brokers <&wkey;57(l) — Loan Brokers — Right to Commission — Variance.</p> <p>Borrower had right to vary terms of loan procured for him by a broker, and, if he accepted contract as varied, broker was entitled to commission ; but variance must have been knowingly made, to bind the borrower.</p>

Masterson, Judge. Receivership proceeding by Bankers’ Trust Company, trustee, against the Mission Canal .Company, in which S. A. McHenry and others intervened. Demurrer to interveners’ second plea of intervention sustained, and from judgment against interveners upon their refusal to amend pleadings they appeal.

<p>1. DAMAGES &wkey;>112 — Damage to Geass— Measote oe Damages — Evidence.</p> <p>Where damage claimed was loss .of actual value of grass destroyed, and there was no evidence of market value of grass at time of destruction, there was no error in admitting evidence of actual value of grass to plaintiff for pasturage at time of fire.</p> <p>2. Trial <&wkey;228(l) — Instructions—Written Interlineation.</p> <p>A typewritten instruction on measure of damages for injury to crops having a written interlineation as to issue of actual value helH not thereby to give undue prominence to that issue.</p> <p>3. Evidence <&wkey; 113(2) — Value oe Grass.</p> <p>In action for damages from fire from defendant’s locomotive, evidence of price paid for pasturage during one season was no criterion by which to arrive at market value of grass for pasturage at time of fire during following year, where there was no showing that pasture at time of fire contained grass of like kind and quality, or of same value.</p>

Error from District Court, El Paso County; Ballard Coldwell, J.udge. Action by the William H. Swanson Film Company against the Southwestern Amusement Company, in which W. L. Hamilton and another intervened. Verdict for plaintiff,. :and interveners bring error.

<p>Waters and Water Courses <&wkey;254 —Irrigation — Duty to Pump.</p> <p>A decree of the board of water engineers that an irrigation company be not required to furnish any land with water which cannot be supplied by gravity flow from the canals of the company does not absolve the company from its duty of furnishing water to its canals, but does absolve it from again pumping the water from the canals onto the lands to be irrigated.</p> <p>2. Waters and Water Courses <&wkey;254^-In-rigation — Duty to Pump.</p> <p>An irrigation company, being a quasi public concern, vested with the power of eminent domain and obligated to furnish water for irrigation, must, when water in its reservoir is so low as to prevent the flow to its canals by gravity, supply such water to its canals by pumping.</p>

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

<p>Appeal from Hill County Court; R. T. Burns, Judge.</p> <p>Action by the Penelope Real Estate Company against R. L. Dawson and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Municipal Corporations <@=5434(5) — Special Assessments — Liens upon Homesteads.</p> <p>Special assessment for paving under Acts 31st Leg. (2d Ex. Sess.) e. 14, § 7, providing that no power is given to fix a lien against any property exempt by law from sale under execution, created no lien upon the homestead premises of a property owner and her husband.</p> <p>2. Municipal Corporations <§=>586 — Special Assessments — Personal Judgments— “Owner.”</p> <p>Acts 31st Leg. (2d Ex. Sess.) e. 14, providing for the assessment of the cost of improvements against abutting owners, and that the cost shall be a. personal liability of the owner, includes, within the term “owner,” married women.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Owner.]</p> <p>3. Statutes <S=»178 — Construction—Particular Words — Masculine and Feminine Genders.</p> <p>In view of Rev. St. art. 5502, subd. 3, providing that the masculine includes the feminine, no inference can be drawn from the use of the masculine gender in Acts 31st Leg. (2d Ex. Sess.) c. 14, § 8, that married women are not included among those personally hable for a special assessment.</p> <p>4. Municipal Corporations <@==>488, 489(5)— Special Assessments — Homestead Claims —Estoppel.</p> <p>Since the homestead is protected under the Constitution, failure of homestead owners to appear and contest special assessments for public improvements does not estop them from interposing a plea of homestead.</p> <p>5. Municipal Corporations <@=487 — Special Assessments — Erroneous Assessment — Joint Assessment.</p> <p>A married woman whose property was assessed for a special improvement could not complain that her husband, who had no interest in the property, was joined with her in the assessment, the error being a mere irregularity which, not having been urged at the proper time, will not be permitted to invalidate the certificate.</p> <p>6. Municipal Corporations <@=406(2) — Special Assessments — Power—Delegation by Legislature.</p> <p>Acts 31st Leg. (2d Ex. Sess.) c. 14, providing for the assessment of the cost of public improvements against abutting property, is not invalid as a delegation of legislative power.</p>

<p>Appeal from District Court, Reeves County; Chas. Gibbs, Judge.</p> <p>Suit by W. C. Welborn against Collier & Love. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Lubhocli County ; TV. R. Spencer, Judge.</p> <p>Action by T. C. Kornegay against tbe Panhandle & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

P. Dolioney, Judge. Action by M. J. Bird and wife against C. E. Scbaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas, and others. Erom a judgment for defendants, plaintiffs appeal.

<p>Gabnishment <§=>87 — Affidavit — Sufficiency.</p> <p>An affidavit, “G. being first duly sworn on oath says that he is attorney for plaintiff in the foregoing and attached application for writ of garnishment against the National Bank of Carneree, Houston, Texas, wherein Pour Acre Oil Company is plaintiff, and he states under oath upon information and belief that the facts therein stated are true,” was insufficient under Bev. St art. 271, subd. 3, and article 273.</p>

xlppeal from Gonzales County Court; J. C. Romberg, Judge. Suit by H. A. Reuter against the Nixon State Bank. Special exceptions urged against the several allegations in plaintiff’s first amended petition were sustained, tiie cause dismissed, and plaintiff appeals.

<p>Appeal from District Court, Dallas County; W. E. Whitehurst, Judge.</p> <p>Action by Morris Ablon, by next friend, against the Electric Express & Baggage Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District’ Court, El Paso County; Ballard Cold well, Judge.</p> <p>Suit by J. H. Adams against A. Van Mou-rick. From the judgment, plaintiff appeals.</p>

<p>1. Courts <&wkey;387(3) — Time for Perfecting Appeal — Filing Bond.</p> <p>'Where a cause was"tried in'the May term, which could not continue more than eight weeks, ' and which term was adjourned June 28th, an appeal bond filed July 27th was not filed within 20 days after expiration of term, as required by Rev. St. 1911, art. 2084, and the Court of Civil Appeals did not acquire jurisdiction.</p> <p>2. Appeal and Error <&wkey;1185 — Jurisdiction —Failure to File Appeal Bond in Time-Setting Aside Affirmance.</p> <p>A motion to set aside a judgment of affirmance and dismiss the appeal, because the appeal bond was not filed within the time fixed by Rev. St. 1911, art. 2084, and court acquired no jurisdiction, may be made at a subsequent term.</p>

G. Odom, Judge. [Action by.J. B. Roberson against C. Tom and others in the justice court. Judgment for plaintiff, and defendants appealed to the county court, where judgment was rendered for defendants, and plaintiff appeals.

<p>Error from Donley County Court; J. H. O’Neal, Judge.</p> <p>Action by G. C. Davis against the Wichita Southern Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Judgment <&wkey;883(ll) — Se^-Ojt^-Mutual Judgments. ■</p> <p>Courts of law have power to set off mutual judgments, such power depending, not upon statute, but upon the general jurisdiction of the court over its suitors.</p> <p>2. Execution <&wkey;172(4) — Mutual Judgments —Temporary Injunction.</p> <p>A petition alleging a final enforceable judgment in favor of plaintiff as against defendants and a final enforceable judgment in favor of defendants as against plaintiff, without showing whether the two suits grew out of the same transaction or if defendants’ judgment was upon a liquidated claim, and that alleged insolvency of defendants, justified issuance of temporary injunction against levy of execution.</p>

Error from District Court, Webb County; J. F. Mullally, Judge. Action by Y. O. McAdams against La Inde-pendencia, S. A., an alien corporation, and others. Judgment for plaintiff, and defendants bring error,1

<p>1. Appeal and Error <&wkey;692(l) — Bill op Exceptions — Requisites.</p> <p>Bill of exceptions to the overruling of objections to questions propounded to witnesses, which failed to show what the answers were, presents no reversible error.</p> <p>2. Prize Fighting <&wkey;l — Legality.</p> <p>Prize fighting is unlawful under the laws of both Texas and New York.</p> <p>3. Landlord and Tenant t&wkey;29(l) — Lease op Premises — Training por Prize Fight — . Right to Recover Rent.</p> <p>Lessor may recover rental of building let to prize fighter for training quarters, although lessor knew of the purpose for which the building would be used, since, to recover, it was only necessary to show a letting of the premises, a promise to pay the rent, and default; the action for rent not being founded on lessee’s unlawful agreement with another to engage in a prize fight, and' it not being unlawful to train for a prize fight.</p>

<p>1. Dismissal and Nonsuit <&wkey;10 — 'Voluntary Nonsuit — Time oe Taking.</p> <p>Where court stated that he considered the demurrer to plaintiff’s evidence well taken, hut extended time for counsel for plaintiff to present authorities, plaintiff was entitled to take voluntary nonsuit, under Rev. St. 1911, art. 1955, giving plaintiff the right,-in cases tried without a jury, to take a nonsuit any time before a decision is announced; the court, though expressing opinion, not having sustained demurrer.</p> <p>2. Dismissal and Nonsuit <&wkey; 12 — Volunta-by Nonsuit.</p> <p>The right to take a nonsuit is liberally construed by the courts.</p> <p>3. Dismissal and Nonsuit <&wkey;15 — Voluntary Nonsuit — Discbetion.</p> <p>Plaintiff’s right to take a nonsuit before a final decision is announced is a statutory right under Rev. St. 1911, art. 1955, and is not a matter of discretion for the court.</p>

Suit by the Houston Oil Company of Texas against Allen Hamilton and others. From a judgment of the Court of Civil Appeals (153 S. W. 1194), affirming a judgment of the district court for defendants, plaintiff brings error.

Action by J. K. Huffman against T. J. Freeman, receiver, and others. Judgment for plaintiff affirmed by the Court of Civil Appeals (156 S. W. 367), and defendants bring error. J. K. Huffman recovered judgment in the district court against the International & Great Northern Railway Company for personal- injuries. There were two trials. On the first trial, plaintiff having recovered, an appeal was taken, and the Court of Civil Appeals reversed and remanded the case. 61 Tex.

Action by the R. G. Andrews Lumber Company against the Missouri, Kansas & Texas Railway Company of Texas. To review a judgment for defendant, plaintiff brought error to the Court of Civil Appeals, which reversed (158 S. W. 1194), and defendant brings error.

Action by Jane Robbins and others against tbe Waterman Lumber & Supply Company and others. Prom judgment for plaintiffs, defendants appealed to the Court of Civil Appeals, which affirmed (159 S. W. 360), and defendant Lumber & Supply Company brings error. This case originated in the district court of Shelby county.

Suit by H. P. Trout against the Chicago, Bock Island & Gulf Railway Company and others. From judgment for plaintiff, defendants appealed to the Court of Civil Appeals, which affirmed (152 S. W. 1137), and defendants bring error.

Supreme Judicial District. Action by Annie Ward Van Orden and another against Mrs. Hattie Pitts and another. Judgment for plaintiffs was reversed by the Court of Civil Appeals (158 S. W. 1043), and plaintiffs bring error.

Action by Henry Wiley, Jr., against the Texas & Pacific Railway Company. Prom a judgment of the Court of Civil Appeals (155 S. W. 356), affirming a judgment of the district court for plaintiff, the defendant brings error.

Suit by J. 'E. Mobley against -the Western Union Telegraph Company to review judgment for plaintiff, defendant appealed to tlie Court of Civil Appeals, which affirmed without opinion, and defendant brings error.

Suit by M. E'. Merrill and. others agáinst W. T. Bush and others. To review judgment for plaintiffs, defendants brought error to the Court of Civil Appeals, which affirmed (156 S. W. 006), and defendants bring error.

<p>1. TELEGRAPHS AND TELEPHONES <&wkey;53 — DELAY in Delivery — Contributory Negligence — Proximate Cause.</p> <p>Misspelling' by sender of telegram of name of addressee, though resulting in delay in delivery, does not prevent recovery, if 'by exercise of ordinary care the company, after learning the correct name, could have delivered in time to prevent the injury; it not being a proximate cause.</p> <p>2. Appeal and Error <&wkey;1090(l) — Review-Necessity op Cross-Assignments.</p> <p>The Supreme Court, on error to the Court of Civil Appeals, which erroneously reversed judgment for plaintiff, on the ground that a certain refused instruction should have been given, need not consider whether other instructions should have been given; defendant’s brief containing no assignment of error to failure to give them.</p>

Action by the State National Bank of Ft. Worth against R. Vickery and others. Judgment for plaintiff against defendant named, and, on appeal by first-named defendant, the Court of Civil Appeals reversed judgment against the first-named defendant and rendered judgment in his favor (159 S. W. 874), and plaintiff brings error.

<p>1. Attorney and Client <&wkey;144 — Attorney’s Pees — Construction oe Agreement.</p> <p>Under agreement by a bank to pay plaintiff attorney’s fees for foreclosure against a third party, if the bank collected the full amount on foreclosure, profits made by the bank upon selling the property could not be credited on the foreclosure judgment in order to show that the entire judgment was collected.</p> <p>2. Assignments &wkey;48 —Equitable Assignments — Attorney’s Pees.</p> <p>An agreement between a bank and its attorney that attorney’s fees should be incorporated in a foreclosure judgment to the extent of 10 per cent, of the principal and interest, held to constitute an equitable assignment to the attorney of so much of the judgment as represented attorney’s fees.</p> <p>3. Attorney and Client &wkey;>144r — Attorney’s Pees — Construction of Agreement —Interest.</p> <p>Under an agreement to pay certain attorney’s fees if the entire amount of judgment, which included such attorney’s fees, should be collected from a third person, if the full judgment were collected the attorney would be entitled to interest not merely from the date of collection, but from the date of the judgment, since collection of the judgment would include interest, which it provided it should bear from its date.</p> <p>4. Evidence &wkey;>282 — Declarations.</p> <p>In an action against a bank for attorney’s fees included in a judgment against a deceased third person, evidence by plaintiff that the third person had told him to enter judgment for the full amount of attorney’s fees was admissible, in view of an instruction by the bank for the inclusion of such fees.</p> <p>5. Evidence <&wkey;177 — Copy of Letter.</p> <p>In an attorney’s action against a bank for fees, included in a judgment against a third person, recovered by the bank, a carbon copy of - plaintiff’s letter to such third person was admissible where such person was dead, and his wife was beyond the court’s jurisdiction, and had not been heard of for a year and a half.</p>

<p>Appeal from Potter County Court; T. W. McBride, Judge.</p> <p>Action by the Early Grain & Elevator Company against Arthur Kelsey. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Depositions <@=>107(7) — Failure to Pile Objections — Poem op Taking.</p> <p>Objection to depositions, because not under oath, could not be made at time of introduction fof answers in evidence, where no written objection was filed at least a day before the ease was called for trial, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3676, requiring objection to be so filed when directed to the matter of form of taking the deposition.</p> <p>2. Appeal and Error <@=>683 — Bill op Exceptions — Pailxtee to Separate Inadmissible Evidence.</p> <p>An assignment of error that court erred in admitting deposition in evidence over objection that answers were immaterial and irrelevant will be overruled, where bill of exceptions failed to separate the admissible evidence from that which was inadmissible.</p> <p>3. Trial <@=>83 (2) — Reception op Evidence-Objections — Grounds.</p> <p>An objection that evidence is irrelevant and immaterial is insufficient, it being necessary to state how or why the testimony is irrelevant or immaterial.</p> <p>4. Trial <@=>295(5) — Instruction—Construction as a Whole.</p> <p>In seller’s action for price, where buyer, in cross-action, sued for damages because of inferior quality of goods, an instruction authorizing a recovery for plaintiff upon finding that goods were delivered as alleged and not paid for, “unless you find for defendant on his cross-action,” held not to preclude a recovery for seller, when viewed together with charge as a whole.</p>

<p>1. Appeal and Error @=273(2) — Scope — Defects in Pleading — Necessity of Ruling Below.</p> <p>Objection that complaint in broker’s action against his associates for share of commission failed to allege fraud in securing release given by him is available only on an action of the court on special exception to the pleading, in the absence of which no question is presented on appeal.</p> <p>2. Damages @=157(4) — Interest as Damages — General Relief.</p> <p>Where broker sued associates for share in commission fraudulently concealed from him, and asked general relief, interest, being allowable as part of his damages, was properly included in the judgment, which did not exceed the amount sued for.</p> <p>3. Judgment @=251(1) — Conformity with Pleadings.</p> <p>Where broker sued on parol contract for one-half of commission collected by defendants from one party to an exchange, and defendants alleged the contract was for one-third of the commission collected from the other party, judg-inept for one-third of the commission from, the latter was within the pleadings.</p> <p>4. Brokers <©=>86(1) — Actions for Commission — -Evidence.</p> <p>In broker’s action against associates for share of commission fraudulently concealed, evidence held to sustain finding that parol contract entitled him to one-third of such commission.</p>

<p>1. Railroads <@=>454(2) — Setting Eire on Right of Wat — Duty to Protect Landowner.</p> <p>If spark arresters used by railroad had proven to be inadequate during a high wind, it wai# its duty to secure better ones, or to use reasonable diligence to protect an adjacent landowner, from fire started by igniting grass and weeds on its right of way, in some other manner.</p> <p>2. Railroads <@=>456 — Setting Fires — Duty to Protect Landowner — Contributory Negligence.</p> <p>Where hot winds dried grass on railroad’s right of way, rendering it combustible, and, on account of velocity of wind, it was dangerous to attempt to burn it off¡ duty to plow or bum fireguards to protect adjacent lands rested on railroad rather than landowner.</p> <p>3. Railroads <@=>460 — Setting Fires — Negligence — Duty of Landowner.</p> <p>Landowner adjoining railroad’s right of way is not required to anticipate railroad’s,negligence in respect to setting fires, and has right to full enjoyment of his property for all lawful purposes, including growing of grass.</p> <p>4. Trial <@=>219 — Instruction — Definition of Market Value.</p> <p>In suit against railroad for damages by fire to lands adjacent to its right of way, though it would have been proper for the trial court to define “market value,” failure to do so was hot reversible error.</p> <p>5. Trial <@=>260(1) — Instructions — Repetition.</p> <p>Where the matters incorporated in a special requested charge were given to the jury in the general charge, the special charge was properly refused.</p>

<p>1. Contracts <§==>15 — Creation—Acceptance.</p> <p>To make a contract there must be mutual assent, and the. assent must comprehend the whole proposition.</p> <p>2. Sales <§=>22 (2) — Offers—Effect.</p> <p>Where communication stating the terms on which goods may be ordered, is merely an invitation to enter into negotiations, an order given pursuant to its terms does not complete the contract.</p> <p>S. Sales <§=>22(4) — Otters—Acceptance.</p> <p>'Where defendant offered oats “even wt. bags for Dee. shipment” at a named price, and plaintiff ordered shipment “about the 17th day ■of November” of a car of oats “sacked 5 bu. to sack,” and one car December 1st and one car December 15th, the acceptance qualified the provisions, and there was no contract.</p> <p>4. Yenue <§=>21 — Residence of Dependants —Privilege.</p> <p>Where there was no written contract between the parties to be performed in the county where suit was begun and such county was not that of defendant’s residence, held, that under Rev. St. 1911, art. 1S30, the county court of such county was without jurisdiction.</p>

Error from Jim Hogg County Court; A. M. Brumfield, Judge. Action by Robert Hinnant against the San Antonio & Aransas Pass Railway Company and another. Erom a judgment for plaintiff, the named defendant brings error.

<p>Appeal and Error <@=>627(2) — Time for Filing Transcript — Order Refusing Injunction.</p> <p>Appeal from order refusing mandatory injunction will be dismissed; transcript not being-filed in the Court of Civil Appeals within 15 days after entry of record of the order, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4644.</p>

<p>1. Commerce <@=>33 — Carriage oe Freight-Intrastate Shipment.</p> <p>Where a hay dealer at F., Tex., his distributing point, received by rail a carload of hay from A., N. M., and at F,, Tex., rebilled the shipment to his customer at M., Tex., and prepaid the freight, the shipment under the re-billing was intrastate.</p> <p>2. Carriers <@=>94(4) — Freight — Penalty eor Detention — Action eor Conversion.</p> <p>In suit against a railroad for conversion of a carload of hay, the evidence and verdict establishing the conversion, plaintiff cannot recover the 5 per cent, per month detention penalty prescribed by Rev. St. 1911, art. 6554, on the value of the hay up to the time of the judgment; the action for conversion being an election to treat title of the date of conversion.</p> <p>3. Trover and Conversion <@=>46 — Measure oe Recovery — Value oe Goods.</p> <p>In an action for conversion, the measure of recovery is the value of the goods on the date of the conversion.</p> <p>4. Common Law <§=>14 — Adoption by State —Conversion.</p> <p>The state of Texas having adopted the common law, though not the common-law form of action in trover for conversion, the Court of Civil Appeals must resort to the common law for the principles governing the tort of conversion.</p> <p>5. Carriers @=>105(1) — Carriage oe Freight —Damage from Delay or Detention— Measure.</p> <p>In an action against a railroad for damages to property shipped from delay or detention, the actual injury to the property is the measure of damages.</p> <p>6. Trover and Conversion <@=>13 — Right oe Action.</p> <p>When a wrong complained of amounts to a conversion, the injured party has the right to so treat it, and to sue for the value of the property.</p> <p>7. Teovee and Conversion '<@=»9(3) — Implication of Wrongful Act — Nondelivery.</p> <p>Conversion implying a wrongful act, mere nondelivery of property lawfully in possession will not constitute conversion, as there must be a demand and refusal.</p>

Suit by J. B. Pope against D. M. Beauchamp and others to recover on a note and to foreclose a vendor’s lien. Judgment for plaintiff for part of the relief asked was, on appeal by plaintiff to the Court of Civil Appeals (159 S. W. 867), affirmed in part, and in part reversed and remanded, and writs of error were granted to plaintiff and defendant J. D. Rutherford.

Action by Ben C. Jones & Co. against the Gammel Statesman Publishing Company and others.

E'rror to Court of Civil Appeals, Sixth Supreme Judicial District. Suit by* the Farmers’ & Merchants’ National Bank of Abilene against the Roberts Telephone & Electric Company and others. From a judgment of the Court of Civil Appeals (155 S. W. 629) reforming and affirming a district court decree directing distribution of assets of the defendant Telephone Company in the hands of the receivers, the receiver, Henry James, brings error.

<p>Appeal from El Paso County Court, at Law; W. P. Brady, Judge.</p> <p>Action by the Western Indemnity Company against W. N. Thomas. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Bills and Notes <@^»492 — Actions—Plea of Non Est Factum — Burden oe Proof.</p> <p>Plea of non est factum places the burden upon plaintiff of establishing defendant’s execution of note.</p> <p>2. Appeal and Error <&wkey;204(l) — Review — Necessity oe Objection Below.</p> <p>An exception to evidence as incompetent, and hence insufficient to support a verdict, must 'be overruled, where no objection was made below to the admissibility of such evidence.</p> <p>3. Evidence >&wkey;574 — Signatures — Expert Testimony— Sufficiency.</p> <p>The testimony of expert witnesses that the signature on a note was that of defendant held too weak and uncertain to support a judgment for plaintiff, as against the positive and direct testimony of defendant and others.</p> <p>4. Evidence <&wkey;589 — Weight and Sufficiency — Uncontroverted Evidence.</p> <p>While the jury are judges of credibility of witness, they cannot arbitrarily disregard evidence of unimpeached witnesses against whom there are no discrediting circumstances other than that one of them was a party interested.</p>

<p>Appeal from District Court, Sabine County; W. T. Davis, Judge.</p> <p>Suit by T. B. Hamilton against L. E. King. From the decree rendered, complainant appeals.</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by Y. O. McAdams and another against T. A. Smith and others. Judgment for plaintiffs, and defendants appeal.</p> <p>Affirmed.</p>

<p>1. Appeal and Error <&wkey;837(3) — Review-Record.</p> <p>On appeal from an order granting a temporary injunction, ex parte and in chambers, only the record as it existed at the time the writ was granted can be considered.</p> <p>2. Elections <&wkey;181 — Markins Ballots.</p> <p>Vernon’s Say les’ Ann. Civ. St. 1914, art. 2969, is only directory as far as “writing the name of the candidate for whom a voter desires to vote in the blank column, and in the space provided for such purpose,” is concerned, and a vote was not illegal,, where the printed name of the candidate was scratched and the name of another written in the space provided for the printed name.</p> <p>3. Elections <&wkey;l, 16 — Right to Vote.</p> <p>Suffrage is not a natural or inalienable right, yet it is a privilege conferred by the Constitution, and is not to be taken away, except by clear command of law.</p> <p>4. Injunction &wkey;>118(4) — Pleading—Inadequate Remedy at Law.</p> <p>Where a petition and affidavit for injunction to restrain the commissioners’ court from canvassing election returns and declaring the results stated that the plaintiff desired to file a contest of election against M., and that M. absented himself so that notice thereof could not be served upon him, an injunction should not have been issued, because in failing to negative other than personal modes of serving notice of contest there was no showing that plaintiff did not have an adequate remedy at law.</p> <p>5. Injunction <&wkey;80 — Political Functions —Canvassing Boards.</p> <p>The commissioners’ court, in canvassing and declaring results of elections, is exercising a political and not a judicial power, and the exercise of such power cannot be enjoined.</p>

<p>1. Courts <&wkey;480(2) — Injunction — Staying Proceedings on Judgment oe Other Court.</p> <p>Under Yemon’s Sayles’ Ann. Civ. St. 1914, art. 4653, providing that injunctions granted to stay execution of a judgment shall be returnable to and tried in the court where judgment was rendered, a suit to stay execution of a judgment foreclosing a chattel mortgage cannot be maintained in a court of a county other than the one in which the judgment was rendered, even though it was claimed that the property involved did not belong to the mortgagor, etc.</p> <p>2. Courts <&wkey;480(2) — Injunction—Staying Execution.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 465.3, providing that injunctions granted to stay execution of -a judgment shall be returnable to and tried in the court where judgment was rendered, applies to every one who seeks by injunction to stay the execution of a judgment, even though such person was not a party to the original suit.</p> <p>3. Courts <&wkey;480(2) — Injunction—Staying Execution.</p> <p>Where defendant was in possession of personal property and the main purpose of his suit was to enjoin execution of the judgment foreclosing a chattel mortgage thereon, he cannot avoid the provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4653, requiring return of writ to the court rendering the judgment, on the theory that he sought to Quiet his title.</p>

<p>1. Habeas Corpus <&wkey;99(3) — Custody op Child.</p> <p>In a controversy between the mother and the paternal grandfather of the child on habeas corpus proceedings, the court will award custody for the best interest of the child, even though the mother is not an immoral person and has not transferred custody 'by an instrument in writing.</p> <p>2. Habeas Corpus <&wkey;99(3) — Custody op Child.</p> <p>Whether it is to the interest of a minor child that its custody should be given to the mother or paternal grandfather is a question of fact in the first instance for the trial court.</p> <p>3. Habeas Corpus <&wkey;85(l) — Custody op Child — Evidence.</p> <p>Evidence held to show that it was to the best interest of a minor child that its custody should be given to the paternal grandfather instead of the mother.</p>

<p>1. I-Iomestbad &wkey;>167 — -Segbegation oe Pabt —Lot on Which House was Built.</p> <p>Where husband and wife, having homestead on three lots, conveyed one lot to wife’s sister to llave house built on it to rent, other part of lots being sufficient for homestead and occupied by husband and wife as such, lot on which house was built was segregated as part of homestead, and lost character, and mechanic’s lien attached.</p> <p>2. Homestead &wkey;>177(2) — Conveyance of Homestead Lot — Erection of House — Es-toppel.</p> <p>Husband and wife, who conveyed lot, part of homestead, to wife’s sister to have house. for rental purposes built, constituted wife’s sister their agent to act in executing lien -agreement with builder, and in fixing liens against lot, and as against mechanic’s lienor and successors are estopped to assert lot was their homestead.</p>

<p>Evidence <&wkey;444(6) — Contingent Contracts —Parol Evidence — Bills and Notes.</p> <p>Where promissory note was delivered in payment of stock in an involved corporation with agreement that it should become binding upon the corporation's creditors accepting a compromise settlement, which was not done, the note was not enforceable, and the fact that it was contingent could be shown by parol.</p>

<p>1. Insurance &wkey;>755(3) — Fraternal Benefit Insurance — Increase in Assessments by Entering Prohibited Occupation — Failure to Demand — Estoppel.</p> <p>Whero collector of fraternal order’s local organization failed to demand higher assessments from member, who had notoriously entered occupation of retail liquor dealer, requiring, under by-laws, payment of higher assessments, his acts having misled member, order will not be permitted to take advantage of default by insisting on forfeiture after death.</p> <p>2. Insurance <&wkey;755(l) — Fraternal Benefit Insurance — Waiver op By-Laws by Local Clerk or Organization — Statute.</p> <p>In view of Rev. St. 1911, art. 4847, fraternal order may by by-law curtail and circumscribe right of local clerk or local organization of order to waive provisions of by-laws.</p> <p>3. Estoppel <&wkey;52 — Distinction prom “Waiver.”</p> <p>Though “waiver” and “estoppel” are often used indifferently, there is a distinction, in that waiver presupposes full knowledge of a right existing, and intentional surrender or relinquishment, not true of estoppel, which arises where, by fault of one, another has been induced to change his position for the worse.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Estop-pel; Waiver.]</p> <p>4. Insurance <&wkey;753(l) — Fraternal Benefit Insurance — Estoppel — Application op Principle to Order.</p> <p>Fraternal insurance association, acting through officers and local agents, is as much subject to operation of principle of estoppel, despite by-laws prohibiting any local clerk or organization from waiving provisions, as any other association, or as an individual.</p> <p>5. Insurance <&wkey;821 — Mutual Benefit Insurance — Judgment — Deduction of Assessments Due.</p> <p>In suit by widow of member of fraternal order, trial court, having held order estopped, by collection of assessments through local agent, to declare forfeiture on account of failure to pay higher assessments due after change in occupation, properly deducted, from amount due under certificate, amount of additional assessments member should have paid.</p>

<p>Appeal from Jefferson County Court, D. P. Wheat, Judge.</p> <p>Suit by Thomas Cozier and wife against Prank Andrews, receiver, and another. From judgment of dismissal, plaintiffs appeal.</p>

P. Brady, Judge. Suit by the Willys-Overland Company of California and another against William Chapman and others. From a judgment favoring part of the defendants, plaintiff appeals.

<p>1. Divorce t&wkey;206 — Preliminary Matters — Injunction.</p> <p>In suit for divorce and to establish wife’s right to property, denial of temporary injunction with respect to control of property held, not prejudicial, especially as the appeal was from an order made in vacation on a preliminary hearing.</p> <p>2. Husband and Wise <&wkey;133(l) — Wipe’s Separate Property.</p> <p>In suit for divorce, evidence held insufficient to show that the property which the wife sought to establish as her own was her separate property.</p> <p>3. Trusts <&wkey;44(3) — Parol Trust in Land.</p> <p>To establish a parol express trust in land, the proof must be dear and satisfactory.</p> <p>4. Trusts <&wkey;372 (3) — Enforcement — Stale Demands — Evidence.</p> <p>In wife’s suit for divorce claiming certain land as her separate property, evidence held to* support trial court’s finding that husband’s claim of trust was not a stale demand.</p> <p>5. Divorce <&wkey;207 — Custody of Property Pending Suit.</p> <p>Where wife sued for divorce and to establish land as her separate property, and husband set up express parol trust in him, it was improper, pending outcome of suit, to commit property to husband’s charge, since he was an interested party, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2129, as to receivers, notwithstanding broad powers of court, in suits for divorce, to make equitable orders.</p> <p>6. Divorce <&wkey;201 — Equitable Powers of Court.</p> <p>Statute conferring on trial court, or judge thereof, in divorce case, power to make such temporary orders respecting property and parties as shall be deemed necessary or equitable, does not confer unlimited power and discretion to make any such order.</p>

<p>Appeal from Austin County Court; W. I. Hill, Judge. B. Y. Mosha was convicted of theft, and he appeals.</p>

<p>Appeal from District Court, Matagorda County; John M. Green, Judge. Gertrude Frazer was convicted of assault to murder, and she appeals.</p>

<p>Appeal from Burnet County Court; J. R. Smith, Judge. Suit by Theodor Low against J. R. Yett. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge. Clifton Hughes was convicted of robbery, and appeals.</p>

<p>Appeal from El Paso County Court at Law; W. P. Brady, Judge. Action by E. S. Rodriguez, as administrator, against Jose Cobo. Judgment for plaintiff, and defendant appeals.</p>