Volume 215 — South Western Reporter

<p>Bail <&wkey;65 — Recognizance failing to STATE PUNISHMENT FATALLY DEFECTIVE.</p> <p>Recognizance, on appeal in a criminal case, ■which fails to recite the amount of punishment assessed, 'is fatally defective.</p>

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

<p>1. Boundaries <&wkey;40(l) — Questions fob jury.</p> <p>In trespass to try title, location of eastern boundary lino of certain survey held for the jury.</p> <p>2. Appeal and error &wkey;>729 — Assignments op error.</p> <p>Where record shows, as to plaintiff in error’s assignment, that the evidence was insufficient to raise an issue which was submitted to the jury, that there was evidence on the point, and no motion was made' to set aside the findings of the jury, or predicated on any action of the court in.. that connection, the appellate court is not required to 'go into an exhaustive examination of evidence.</p> <p>3. Boundaries <&wkey;3(5) — -Following course AND DISTANCE.</p> <p>When the objects, natural or artificial, called for by the field notes, cannot be found on the ground, or their previous location accounted for, then course and distance will be followed.</p> <p>4. Boundaries &wkey;>3(3) — Calls—Objects on ground.</p> <p>First importance is to be given to calls for objects on the ground, and if such objects can be identified, or if they have been destroyed or have disappeared, but their previous loca-, tion can be shown, then the lines will b.e run accordingly, and the mere fact that the primitive landmarks have disappeared does not authorize the limiting of the lines and confining of the boundaries by calls for distance in the field notes.</p> <p>5. Trespass to try title &wkey;>27 — Outstanding title.</p> <p>Generally a defendant, relying on an outstanding title in some third person to defeat plaintiff’s recovery, must show such outstanding title is a valid one, and the mere fact that some kind of an outstanding title appears is not a good defense.</p> <p>6. Husband and wipe &wkey;5262(l), 267(8)— Community property — Parol evidence.</p> <p>Property conveyed to the wife, without any recitation showing it to be her separate property, is presumed to be á part of the community, which presumption becomes conclusive as to purchasers from the husband for a valuable consideration without notice, and cannot be affected by parol evidence showing the property to he the wife’s separate property.</p> <p>7. Husband and wife <&wkey;2G3 — Community or separate property — Parol evidence.</p> <p>Property conveyed to the wife, without any recitation showing it to be her separate property, may, as between the husband and wife or their representatives, and as against all persons not purchasers for value without notice, be shown to be her separate property, by pa-rol as well as other evidence.</p> <p>8. Limitation op actions <&wkey;76(3) — Intervening COVERTURE.</p> <p>Under Rev. St. 1911, art. 5711, where limitation began to run before a married woman acquired title to the land, it would continue to run, notwithstanding the disability arising subsequently by reason of the title being vested In her as her separate property.</p> <p>Error from District Court, Hardin County; L. B. Hightower, Sr., Judge.</p>

Suit by R. A. Gilliam, guardian of the estate of Alice A. Mahon and others, .against Mittie Gibson Mahon and others. Judgment for plaintiffs, and defendants appeal.

D. Harvey, Judge. Suit by Carrie Bosworth against tbe Continental Paper Bag Company, in which the Western Indemnity Company and the Fidelity • & Casualty Company were impleaded. From judgment rendered, the defendant and the Fidelity & Casualty Company appeal.

<p>1. Insurance <S=a84(l) — Provision for forfeiture OF CONTRACT WILL NOT BE ENFORCED WITHOUT CLEAR BROOF.</p> <p>Where a life insurance company gave its agent a contract terminable at will of either party, without cause or notice, the original terms of which were modified to provide additional reward for ‘additional .services, provisions that should the contract terminate by resignation, death, dismissal, or otherwise during the year, the salary or commission which the agent had received should be in full of all his claims and demands, were in the nature of forfeitures, not favored in law, and will not be enforced in the absence of clear proof that they were so Intended.</p> <p>2. Insurance <&wkey;84(l) — Forfeiture clause IN AGENCY CONTRACT CONSTRUED.</p> <p>A contract between a life insurance company and its agent, consisting in part of writing and in part of oral agreements, the writing containing provisions that, upon resignation, dismissal, death, or other termination of the agency during the year, the salary or commission which the agent had received should be in full of all his claims and demands upon the Company, construed as meaning what agent had received up to such time, and that he forfeited anything that might afterward accrue on business done subsequent to his retirement, and also to contemplate á full adjustment and settlement-of accounts on termination of agency.</p>

B. Muse, Judge. ’ Proceeding by Boy C. Campbell for the probate of an alleged last will and testament of A. W. Campbell, which was opposed by Sarah H. Campbell and others, in which proceeding Sarah H. Campbell tendered for probate another alleged last will and testament.

<p>1. Appeal and error <í&wkey;996 — Finding of FACT WILL NOT BE DISTURBED THOUGH COURT MIGHT HAVE 'FOUND OTHERWISE.</p> <p>If there is room for difference of opinion between reasonable men as to inferences or conclusions which might be drawn from the evidence, an appellate court will not disturb the findings of the jury, even though it might have made a different finding on the evidence adduced upon the trial.</p> <p>2. Mortgages <&wkey;319(3) — In action to set ASIDE FORECLOSURE, PAYMENT OF DEBT SHOWN BY EVIDENCE.</p> <p>In an action to set aside a decree of mortgage foreclosure, evidence held sufficient to support a finding that mortgage indebtedness had been paid prior to the foreclosure. ,</p> <p>3. EVIDENCE t&wkey;588— Credibility oe witness EOK THE JURY.</p> <p>The fact that a witness testified differently in another case did not affect the competency of his testimony, the former testimony being only matter for the consideration of the jury as to the effect to be given his testimony before them.</p> <p>4. Estoppel <&wkey;6S(l)— Introduction oe evidence oe plaintiee’s witness in another ACTION.</p> <p>Where defendant offered some of the evidence of one of plaintiff’s witnesses given in a suit in another court as to a certain matter, plaintiff was not estopped from asserting the truth of the testimony of such witness on the trial because his counsel insisted on the introduction of the whole transcript in the former proceeding, bringing to light the inconsistent testimony; such testimony. having been practically placed before the jury by defendant’s witness.</p> <p>5. Estoppel &wkey;>68(l) — Inconsistent evidence oe plaintiee’s witness in another Shit did not estop plaintiee to deny its TRUTH.</p> <p>Plaintiff was not estopped to deny the truth of testimony of one of his witnesses by reason of the introduction by him of a transcript of the testimony of such witness in another suit apparently inconsistent therewith, where such former testimony contained expressions that would authorize the jury to find that the facts contended for by plaintiff were true.</p> <p>6. Appeal and error &wkey;>1062(l) — Error in SUBMISSION OE QUESTION HARMLESS WHERE SIMILAR FINDING MADE TO ANOTHER QUESTION.</p> <p>In an action to set aside a decree of mortgage foreclosure, if court erred in submitting to jury question as to whether a mortgage note had been in part paid, it was harmless, where the jury found in answer to another question that the note had been paid in full.</p> <p>7. Trial <&wkey;350(4) — Refusal to submit ' questions raised by issues, error.</p> <p>In an action to set aside a mortgage foreclosure by one who purchased the land before foreclosure but had not been made a party to the foreclosure proceeding, and who pleaded es-toppel to deny that the mortgage note had been paid, court erred in refusing to submit to the jury questions as to whether or hot the mortgagees knew of the sale of the land by the mortgagor before its consummation, and stood by and acquiesced therein, etc.</p> <p>8. Mortgages <&wkey;529(10) — In foreclosure DEFENDANT 'COULD NOT SHOW PAYMENT UNDER GENERAL ISSUE.</p> <p>In an action concerning the right of mortgagee to foreclose, landowner was not entitled to show that the mortgage note had been paid, where he did not plead payment.</p> <p>9. Mortgages &wkey;>497(2) — Conclusiveness of JUDGMENT OF FORECLOSURE AGAINST MORTGAGOR AGREEING TO ENTRY.</p> <p>In an action to set aside a mortgage foreclosure by one who had purchased part of mortgaged land prior to foreclosure, and had not been made a party to the foreclosure, the mortgagor, who was made a party to the proceeding, could not show that the mortgage note had been paid prior to the foreclosure, where he had agreed to the rendition and entry of judgment foreclosing the mortgage, and did not ask in his pleading that such judgment be annulled.</p>

<p>1. Sales <@=>71(2) — Under contract to but AT PRICE PEE CUBIC YARD “WBTARF G.,” BUYER LIABLE FOB MEASUREMENT AT G.</p> <p>■ Under contract to buy mud shell at specified price per cubic yard “f. o. b. cars wharf Galveston,” buyer is liable for quantity placed on board cars at wharf at Galveston, regardless of quantity at point of destination, which quantity may be shown by competent evidence of ascertainment thereof at wharf at Galveston, or by evidence of measurement at point of destination, and that none of the shell was lost in transit.</p> <p>2. Evidence <@==>318(6) — Expense books furnished BUYER BY RAILROAD INADMISSIBLE WITHOUT EVIDENCE OF CORRECTNESS.</p> <p>In seller’s action for balance of price, involving dispute as to quantity sold, books of seller, into which bookkeeper had entered weights of quantity sold from expense bills furnished buyer by railroad, and sent to seller by buyer, without any evidence as to their correctness, held, hearsay and inadmissible, where there was no testimony that weights were correct, and where it appeared that some of the weights were only estimates of railway employs.</p> <p>3. Sales <@=>181(13) — In action for price, EVIDENCE INSUFFICIENT TO SHOW BUYEB ACCEPTED seller’s measurements.</p> <p>In action for balance of price of mud shells, bought under a contract to purchase mud shells at specified price per cubic yard, involving dispute as>to quantity purchased, and involving competency of seller’s records of quantity showing the weight, finding that buyer made no objection to bills rendered on yardage ascertained by weight held against evidence.</p>

<p>1. Trusts <&wkey;369— Sufficiency of petition TO AUTHORIZE APPOINTMENT OF RECEIVER.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2128, subd. 1, petition tin suit against a bank and other parties interested with plaintiff in a trust fund deposited with the bank ¡field sufficient to authorize the court to appoint receiver of the fund.</p> <p>2. Pleading <&wkey;8(2) — Allegation of danger OF LOSS, IN PETITION FOR RECEIVER, NOT A-CONCLUSION.</p> <p>In suit wherein the. petition asked appointment of receiver of a trust fund held by defendant bank for pldintiff and others, allegation that the fund was in danger of being lost, diverted, misapplied, and put beyond the reach of plaintiff and the court, being a reasonable inference from facts alleged, held not a mere conclusion.</p> <p>3. Receivers <&wkey;14 — Equitable grounds UNNECESSARY IN PRESENCE OF STATUTE AU- . THORIZING APPOINTMENT.</p> <p>Right to havl receiver appointed under Vernon’s Sayles’ Ann. Civ. 1914, art. 2128, subds. 1-3, is a legal right, not dependent on rules of practice in equity; and, when facts bring case within any of the sections, allegations and proof of insolvency of defendant, inadequacy of legal remedy, or other equitable grounds for receiver, are not required.</p> <p>4. Receivers <&wkey;35(l) — Facts authorizing APPOINTMENT WITHOUT NOTICE.</p> <p>In suit against a bank to recover funds held in escrow for plaintiff and others, facts alleged in the petition held sufficient to justify immediate appointment' of receiver for such funds, to protect plaintiff’s rights, without notice to the bank.</p>

Error from District Court, Harris County; T. M. Kennerly, Special Judge. Scire facias by Betty Croom and others against Isaac Williams to revive a judgment. Decree reviving judgment, and Isaac Williams brings error.

<p>1. Divorce <§=>87 — Temporary injunction, THOUGH REMEDY AT LAW ADEQUATE.</p> <p>Under Rov. St. 1911, art. 4639, wife seeking- divorce may ask injunction to restrain husband from interfering with her in the cultivation and harvesting of crops, and in the use of teams and farm implements, and from molesting or intruding himself upon wife’s presence, even though wife had an adequate remedy at law of which she could have availed herself.</p> <p>2. Divorce <§=>87 — Power of couet as to TEMPORARY INJUNCTION.</p> <p>The power of making temporary orders respecting the property and parties in divorce action given court by Rev. St. 1911, art. 4639, is a broad power, and is not restricted by the statutes relating to the division of property upon trial of the case, and to authority of court to grant alimony during pendency of suit.</p> <p>3. Divorce <§=>87 — Custody of community property pending suit.</p> <p>Under Rev. St. 1911, art. 4639, court has power to give one of the parties to a divorce suit the exclusive custody and control of community property during the pendency of suit, when it is made to appear that such relief is necessary and equitable.</p> <p>4. Divorce <§=>87 — Wife’s right to temporary injunction without notice.</p> <p>In wife’s divorce action court had the right to issue injunction restraining husband from interfering with wife in harvesting of certain crops and in the use of certain teams and farm implements, and from molesting and intruding - himself upon plaintiff’s presence, without notice to husband, notwithstanding Rev. St. 1911, art. 4651.</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by P. J. Sheehan against M. B. Levy and others. Judgment for defendants, and plaintiff appeals.</p>

Error from District Court, Harris County; Wm. Masterson, Judge. Suit by H. Ij*. Mansfield against James E. Ferguson and others. From an adverse judgment, the named defendant and another bring error.

<p>Criminal law &wkey;>1090(l) — Affirmance on IMPERFECT RECORD.</p> <p>Where transcript contains neither a statement of facts nor bill of exceptions, there is nothing that the court can review in the condition of the record, and a judgment of conviction will be affirmed.</p>

<p>Criminal law <&wkey;1144(13) — In absence oe STATEMENT OE FACTS EVIDENCE PRESUMED SUFFICIENT.</p> <p>In the absence of a statement of facts, it must be presumed that the evidence was sufficient to sustain the conviction.</p>

<p>Proceedings in habeas corpus by B. F. Ranger against L. L. Blalock, Sheriff of Milam County, and another.</p>

<p>Appeal from District Court, El Paso Coun-ty; W. D. I-Iowe, Judge.</p> <p>Gene Wims was convicted of unlawfully transporting intoxicating liquors, and lie appeals.</p>

<p>Appeal from District Court, Trinity County; E. A. Berry, Judge.</p> <p>Allen Roberson was convicted for violating the Local Option Law prohibiting sale of intoxicating liquors, and he appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Suit by Mary Johnson, by next friend,, against D. Barker and another. Judgment for defendants, and plaintiff appeals.</p>

M. Masterson, Judge. Suit by Fannie D. Lester, as beneficiary of a life insurance policy on the life of her husband, James D. Lester, against the International Life Insurance Company, on a policy issued by the Cherokee Life Insurance Company, of Rome, Ga., and afterwards assumed by the defendant. Verdict and judgment for plaintiff, motion for new trial denied, and defendant appeals.

Llewellyn, Judge. Action by J. N. Groesbeck and others against L. Schelier, for the recovery of a labor of land, in which George M. Coale was impleaded and subsequently KAtherine Wolf was made a defendant. Judgment for plaintiffs against the defendants L. Schelier and Katherine Wolf, for the land in controversy, and in favor of L. Schelier and Katherine Wolf against George M. Coale on his covenant of warranty. Defendants’ motion for new trial was overruled, and they appeal.

<p>1. Estoppel c&wkey;72 — To deny purchaser op MORTGAGE WAS INNOCENT PURCHASER.</p> <p>The purchaser of a mortgage and note from bank under representations that another indorsed note secured by another mortgage had been paid, such other note being in the hands of the bank which delivered it to purchaser together with a release thereof, was protected against such other note, where it belonged to a third person who had permitted it to come into the hands of the bank.</p> <p>2. Mortgages <&wkey;338 — -Wno entitled to restrain MORTGAGE SALE.</p> <p>A holder of a junior mortgage is not entitled to enjoin a sale under a senior mortgage on the ground that he desires to pay the senior mortgage to protect his junior mortgage and to be subrogated to the rights of a senior owner, although a release of the junior mortgage has been executed by an unauthorized person, where the note secured by the junior mortgage and a release are deposited in court to be dealt with according to the rights of the parties, and the purported release has never been recorded.</p>

Pearson, Judge. Action by Emmett L. Chandler against the American Express Company and another. Judgment for plaintiff, and defendants appeal. In May, 1915, appellee, plaintiff below, was in the employ of appellant the Missouri, Kansas & Texas Railway Company of Texas as a telegraph • operator at Winnsboro.

Appeal rrom Bexar County Court for Civil Cases; John H. Clark, Judge. Suit by Clotilde Gonzales .against Mrs. Cora Chrone and husband. Judgment for plaintiff, and the named defendant appeals.

B. Minor, Judge. Suit by Elias Abdo and wife against J. J. Parmele and another. Judgment for plaintiffs against the named defendant, and the named defendant appeals.

Suit by P. P. Martinez against F. W. Ca-they and others. From a judgment for plaintiff against certain defendants, and for other defendants against him, he appeals.

W. Walling, Special Judge. Suit by Elizabeth Moore, acting as guardian of the estate of G. Bedell Moore, a minor, against A. E. Norton and another. Judgment for defendants, and plaintiff appeals.

Harvey, Judge. Action by Tolar N. Hamblen against J. B. Cochran. Judgment for plaintiff, defendant’s motion for new trial overruled, and defendant appeals.

Suit by J. W. Campbell, Jr., against I. G. Etheridge and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (179 S. W. 1144), and defendants bring error.

Action by J. O. McAmis against the Den-ison Cotton Mill Company. There was a judgment of the Court of Civil Appeals (176 S. W. 621), affirming a judgment for plaintiff, and the defendant brings error.

. Error to Court of Civil Appeals of Eighth Supreme Judicial District. Action by Juan Antonio Moreno against the Southwestern Portland Cement Company. There was a judgment of the Court of Civil Appeals (181 S. W. 221), affirming a judgmónt in favor of plaintiff, and defendant brings error.

Action by J. W. Rutland against Charles Ara. From judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which affirméd (172 S. W. 993), and defendant brings error.

Suit by Isom Johnson against W. P. Phelps. There was a judgment of the Court of Civil Appeals (181 S. W. 862), reversing a judgment in favor of plaintiff, and plaintiff brings error.

Civil Appeals of Ninth Supreme Judicial District. Action by W. C. Woods against the American Brewing Association. A judgment for defendant was reversed, and the cause remanded by the Court of Civil Appeals (183 S. W. 127), and defendant brings error.

Action by John Henry against the Kirby Lumber Company. Prom judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which reversed and rendered judgment for defendant (178 S. W. 23), and plaintiff brings error.

<p>Appeal from district Court, Kaufman County; Joel R. Bond, Judge.</p> <p>Neil Lacy was convicted of murder, and appeals.</p>

S. Anderson, Judge. Conrad Kroschewski was convicted of using seditious language with reference to the United States in its recent war with Germany, and he appeal^.

<p>Appeal from Dallas County Court; W. L. Thornton, Judge.</p> <p>Action by M. Murphy against the National Surety Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. InstjbaNCE <&wkey;84(6) — Evidence admissible IN. ACTION BOB COMMISSIONS.</p> <p>An allegation that a surety company’s representative agreed to pay a certain commission to its agent on certain business obtained by him would have permitted proof either of an oral or written agreement.</p> <p>2. Frauds, statute of <®=^50(1) — Agreements PERFORMABLE WITHIN ONE YEAR.</p> <p>An agreement by a surety company executing certain bonds to pay its agent annually while the bonds were in force a specified commission was without the statute of frauds, as one performable within one year in the contingency that only one annual premium on the bonds should be paid.</p> <p>3. Frauds, statute oe <&wkey;49 — Agreements PERFORMABLE WITHIN ONE YEAR.</p> <p>An agreement by a surety company executing bonds to pay its agent procuring the business a specified commission annually while the bonds 'were in force was without the statute of frauds as one performable by one of the parties within one year, being already performed by the agent.</p> <p>4. Insurance <&wkey;22 — Necessity of license OF FOREIGN INSURANCE COMPANY AGENT.</p> <p>One licensed to solicit insurance as agent under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 4960, need not procure an additional license as agent of a particular company under article 4970, requiring agents of foreign, companies to be licensed.</p>

<p>1. Appeal and error &wkey;>1041(3) — Refusal OF AMENDMENT TO ANSWER HARMLESS ERROR.</p> <p>In an action for rent, refusal of court to permit defendant to amend his answer to show that he was a member of a partnership was harmless, if error, where it appeared from defendant’s own testimony that the partnership had been dissolved and that he had taken over all the assets and assumed all the liabilities and that no partnership existed during the time for which the rent in suit became due.</p> <p>2. Continuance <&wkey;7 — Pleading <&wkey;236(4)— Postponement of trial in discretion of court.</p> <p>Postponement of a trial is in the sound discretion of the trial court, and it was not an abuse of discretion to refuse to permit an amendment to be filed after evidence was in, setting up facts which were within the pleader’s knowledge before the trial,</p> <p>3. Parties <&wkey;84(l) — Waiver of right to join PARTIES.</p> <p>In an action under a lease for rent’ where defendant was sued as an individual and answered as such and went to trial, he waived his privilege to join other persons as parties defendant on the ground that they were partners and jointly liable.</p> <p>4. Judgment <&wkey;251(l) — Against defendant THOUGH OTHERS JOINTLY LIABLE.</p> <p>In an action against one for rent under a lease, a judgment against defendant was proper, although the facts showed a partnership contract between defendant and others and that other persons were jointly liable, where defendant admitted the facts which made him individually liable for the whole, having bought out the other partners and assumed their liabilities, and failed to seasonably file a plea in abatement to have such other persons made parties.</p> <p>5. PARTNERSHIP <&wkey;165 — LIABILITY OP PARTNERS.</p> <p>Partners are individually and personally liable, as well as jointly liable, for partnership obligations.</p> <p>6. Landlord and tenant <&wkey;23S (4) — -Resumption OP POSSESSION BY LANDLORD.</p> <p>In an action for rent, where defendant alleged that he had surrendered the premises to the plaintiff and that plaintiff had taken possession thereof and there was evidence pro and con, court properly gave an instruction stating what would constitute a resumption of possession and control.</p> <p>7. Landlord and tenant <&wkey;186(2), 198-Resumption OP POSSESSION AND CONTROL.</p> <p>In order that entry on land by lessor amount to a resumption of possession, it must be inconsistent and hostile to the right of possession of the tenant, and .a mere entry to make preservative repairs or for any other purpose, providing same is made in subserviency to the estate of the tenant and without intention to resume possession of the premises, does not amount to a resumption of possession and control.</p> <p>8. Landlord and tenant &wkey;>233(2) — Duty op LESSOR TO REPAIR POR THE COURT.</p> <p>The question of whether or not a lessor was bound to make repairs under a lease was a question for the court and not the jury.</p> <p>9. Evidence &wkey;>358 — Landlord and tenant <&wkey;231(2) — In action por rent plans and SPECIFICATIONS SHOWING • PROPER CONSTRUCTION ADMISSIBLE.</p> <p>In an action under a lease for rent, where defenses were that building was not constructed according to agreement between lessor and lessee and faulty construction, the court properly permitted plaintiff to introduce in evidence the plans and specifications for the building, and to show that water which accumulated in the basement was seepage water caused by the United States reclamation in handling water for irrigation purposes.</p> <p>10. Evidence &wkey;>471(30) — Of alleged agent AS TO AGENCY.</p> <p>In an action under a lease for rent, where defense was that defendant had surrendered building and plaintiff had accepted the same from one N., it was no‘t error to admit the testimony of N. to the effect that he was agent for the defendant and not the plaintiff.</p> <p>11. Continuance <&wkey;24, 26(5) — Absence op witness.</p> <p>It was not error to refuse continuance for a witness, where no process was issued, and where he was an expert witness as to the proper 'construction of a building, and others testified, and doubtless others could have been found to testify concerning the matter.</p> <p>12. New trial <&wkey;102(l) — Newly discovered EVIDENCE.</p> <p>In an action for rent, where defense was that plaintiff had not constructed building as agreed, it was not error to refuse a new trial on the ground of newly discovered evidence to the effect that the building was not constructed according to the plans and specifications.</p> <p>13. Judgment c&wkey;262 — Motion in arrest por DEFECT OP PARTIES.</p> <p>One who entered into a lease without revealing names of his partners, and proceeded in a trial against him for rent up to the closing of the testimony without attempting to plead the facts and ask that the other partners be brought in, was in no position to demand an arrest of judgment simply because such other persons might be jointly and severally liable with him.</p> <p>14. Judgment <&wkey;>267 — Time por passing on MOTION IN ARREST.</p> <p>The making of a motion in arrest of judgment does not prevent, a court entering judgment before passing upon the motion, there being nothing in Rev. St. 1911, art. 2023, to indicate that a motion in arrest of judgment has precedence over a motion for a new trial.</p> <p>On Motion for Rehearing.</p> <p>15. Pleading <@=^236(3) — Trial amendments WITHIN DISCRETION OP COURT.</p> <p>It is within the discretion of the court to permit the filing of trial amendments.</p>

<p>Appeal from District Court, Taylor County; Joe Burkett, Judge.</p> <p>Action by George W. P. Coats against T, R. Rhodes. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Insurance t&wkey;646(6)—Action on policy —Burden to prove cause not within exceptions of policy.</p> <p>In an action on a fire policy, the burden is upon plaintiff to show that his cause of action does not fall within excepting clauses in the policy.</p> <p>2. Insurance <&wkey;421 — Policy excepting' damages prom explosions.</p> <p>Under a policy of fire insurance proyiding that the company should not be liable for loss caused directly or indirectly by explosion of any kind, if a building fell by reason of an explosion before fire broke out, the policy was terminated by the falling of the building.</p> <p>íí. Teiax, <&wkey;260(3) — Instruction on burden of PROOF.</p> <p>In an action on a fire policy, where defendant’s contention was that building fell before the fire broke out, and that the company was not liable under a clause providing that it should not be liable for loss caused directly or indirectly by explosion, a correct charge upon the law governing liability was not equivalent to a correct charge upon the burden of proof; defendant being entitled to an affirmative charge thereon.</p> <p>4. Trial &wkey;>250 — Instruction on matters not IN ISSUE.</p> <p>In an action on a fire policy, where there was no pleading or evidence concerning the matter, the court did not err in refusing a charge upon the question of friendly or hostile fire.</p> <p>5. Insurance <&wkey;613 — Demand before suit FOB PAYMENT OF TOTAL LOSS UNNECESSARY.</p> <p>A demand of payment of loss and a refusal to pay was not necessary before bringing suit on fire insurance policy, where the loss was total, for the amount became a liquidated demand under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 4874, upon the total destruction of the building by fire, or as a direct result thereof.</p>

<p>1. Limitation op actions <&wkey;100(12),' 124^-Suit by paetnee on ebaud baebed.</p> <p>Fraud alleged in petition in suit by one partner was notice to the other, not made a party, and where more than two years intervened between the time suit was brought and the time such other was made a party, suit was barred as to the other, as his was "a new cause of action.</p> <p>2. Limitation op actions <&wkey;124 — Paetneeship <&wkey;199 — Suit by heibs op deceased PAETNEE POE PBAUD BAEBED.</p> <p>Since one partner could not recover in the original suit for fraud where the other partner was not an original party, the children of the first partner, who, with the other partner, were made plaintiffs in the suit after first partner’s death, were barred; more than two years having elapsed after suit was brought before they and the other partner were made parties plaintiff.</p>

<p>Appeal from County Court, at Law, El Paso County; W. P. Brady, Judge.</p> <p>Suit by Antonio Loya against James E. Bowen, wherein W. W. Medlock was im-pleaded as defendant. From an adverse judgment', plaintiff appeals.</p>

<p>1. Güaeanty <&wkey;36 (5) — Guarantor of payment NOT LIABLE FOR OTHER BREACH.</p> <p>Under contract whereby defendant guaranteed that contractors “will pay for the brick under and according to the contract above,” defendant would not be liable for damages arising from failure of contractors to promptly receive all brick.</p> <p>2. Guaranty (&wkey;27 — Construction op agreement.</p> <p>Since defendant occupies the position of a guarantor who made a separate contract with plaintiff in which the contractors did not join, the court must look to the language of that separate undertaking to ascertain the liability of the guarantor.</p> <p>3. Guaranty <&wkey;27 — Strict construction of contract.</p> <p>The guarantor is entitled to a strict construction of his contract, and can stand upon its very terms.</p> <p>4. Torts i@=^26I1) — Malice or bad faith in INDUCING BREACH OF CONTRACT.</p> <p>Complaint alleging that defendant is wholly responsible for and was acting with defendant contractors “in the wrongful rejection of said bricks” held sufficient on general demurrer, though there was no allegation of express malice or bad faith on the part of defendant in causing contractors to breach their contract.</p> <p>5. Pleading <&wkey;34(3) — Suefioienoy on gen-EBAL DEMUBBEB.</p> <p>On general demurrer, every reasonable in-tendment must be indulged in favor of the sufficiency of a petition to state a cause of action.</p>

<p>1. Brokers <&wkey;46 — Right oír owner wheee AGENCY NOT EXCLUSIVE.</p> <p>The general rule is that one employing an agent to sell land for a commission on the sales may make sales himself or through other agents without liability to the first agent for commission on them; even where the agency is exclusive,, the owner himself may sell without becoming liable for commission.</p> <p>2. Beokers i&wkey;46 — Extent oe right to commission UNDER CONTRACT.</p> <p>■Under contract whereby- the seller of lands agreed to show them to prospects furnished by the buyers, and to aid in making resales, for no other charge than a commission of $1 an acre, held that the seller was entitled to commission only on such resales as he had actually aided in making.</p>

<p>Appeal and error <&wkey;773(2)~Failure to FILE STATEMENT OF FACTS NOT &ROUND FOR AFFIRMANCE.</p> <p>Failure to file statement of facts is not alone ground for affirmance; and, if the defendant in error desires to have an affirmance, it is necessary for him to file briefs in accordance with rule 42 for the Courts of Civil Appeals (142 S. W. xiv), and where he fails to do so the court can only dismiss the writ of error for want of prosecution.</p>

Action by Archie Baker against the Texas & Pacific Railway Company. Prom a judgment of the Court of Civil Appeals (184 S. W. 664) affirming a judgment in favor of plaintiff, the deíendant brings error.

H. Arnold, Judge. Suit by the Shear Company against J. A. Hall and others. From an adverse judgment, except that personal judgment against defendant Hall was rendered in its favor, plaintiff appeals.

<p>Appeal from District Court, Lubbock County; W. R. Spencer, Judge.</p> <p>Suit 'by John E. Penney against • C. W. Hayes and others. From judgment for plaintiff, defendants appeal.</p>

R. Ewing, Judge. Action by B. F. Crow and another against Bela Irene Van Ness, who answered by her nest friend L. C. Counts, an attorney, and others. From the judgment, the named defendant appeals.

<p>1. CORPORATIONS <&wkey;60 — “Capital.”</p> <p>The term “capital” designates that portion of the assets of a corporation,' regardless of their source, which is utilized for the conduct of the corporate business'and for the purposes of deriving therefrom the gains and profits.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Capital.]</p> <p>2. Corporations <&wkey;65 — Ownership op tangible property.</p> <p>The tangible property belongs to the corporation, the stockholders owning merely intangible interests in the corporate business.</p> <p>3. Corporations <&wkey;65 — “Shares op stock.”</p> <p>Shares of stock are the intangible interests in the corporate business owned by the individual shareholders.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Share of Stock.]</p> <p>4. Corporations <&wkey;65 — Stock prior to issuance.</p> <p>The stock of a corporation prior to issuance is the common property of the incorpo-rators.</p> <p>5. Corporations i&wkey;94^-ST0CK; ownership ON ISSUANCE OP CERTIFICATE.</p> <p>Upon issuance of a certificate to subscriber, evidencing the definite interest in the common fund existing in the individual, the possession of the stock evidenced by the certificate does not pass from, but is retained by the corporation, the certificate being simply the evidence in the hands of subscriber on which he may be able to base an assertion of interest in the common fund.</p> <p>6. Execution <&wkey;29 — Corporate stock subject to LEVY.</p> <p>Title to certificate of stock may not carry with it title to the stock itself, and the stock remaining in possession of corporation may be subjected to the satisfaction of process by third parties seeking to appropriate it to the payments of the debts due by the shareholder.</p> <p>7. Corporations &wkey;>170 — Stock subscription; RELATION OP STOCKHOLDER.</p> <p>In order to bring into existence' by subscription to stock the relationship of stockholder to corporation, there must be some sort of contract in which the subscriber obtains the right to demand and exercise the privileges of a shareholder.</p> <p>8. Corporations <&wkey;94 — Stock; issuance of CERTIFICATE NOT NECESSARY.</p> <p>Issuance of certificate is not essential in order to create relation of shareholders, which may arise by reason of the contract duly made, and to vest in the subscriber the privileges at-tendent upon relationship of stockholder, which he may exercise and enjoy with the consent of the company.</p> <p>9. Corporations <&wkey;04 — “Certificate op STOCK”; NATURE.</p> <p>The certificate of stock is not the stock, but is only evidence in the hands of the shareholders that the corporation recognizes him as owning an interest therein, and is not necessary to the existence of the stock nor to the transfer of it by shareholder.</p> <p>[Ed. Note. — For other definitions, see W°r|3s and Phrases, First and Second Series, Certificate of Stock.]</p> <p>10. Corporations <i&wkey;129 — Transfer op STOCK;' NECESSITY OF ENTRY ON BOOKS.</p> <p>The stock, being in the possession of the corporation, is transferable' only on its books upon presentation of proper evidence of a transfer of ownership.</p> <p>11. Corporations <&wkey;162 — Lien on stock FOR DEBTS DUE CORPORATION.</p> <p>Corporation may, by contract with stockholder, acquire a lien on the stock for debts due the corporation by the stockholder.</p> <p>12. Corporations <&wkey;170 — Status as stockholder EVIDENCED BY EXERCISING PRIVILEGES.</p> <p>Subscriber for stock, by exercising privilege of attending and voting at stockholders’ meetings, of holding positions of trust in corporation, and receiving dividends, manifests recognition of ownership of stock.</p> <p>13. Corporations <&wkey; 170 — Stockholder; recognition BY CORPORATION.</p> <p>Corporation, by accepting stock subscription, by recording subscriber as stockholder, by permitting him to attend and vote at stockholder’s meetings, and by paying over to him dividends, manifests an intention to recognize him as á stockholder.</p> <p>14. Corporations ' <&wkey;171 — Ownership of STOCK; - STOCK BOOK AS EVIDENCE.</p> <p>That person’s name appears upon stock book as owner of stock is evidence of ownership.</p> <p>15. Corporations <&wkey;99(l) — Issue of stock; NECESSITY OF 'CONSIDERATION.</p> <p>Constitutional provision prohibiting corporation from issuing stock except for money paid, labor done, or property received, applies not only where certificate has been issued, but also where corporation recognizes subscriber as stockholder by permitting • him to exercise rights of a stockholder.</p> <p>16. Evidence <&wkey;461(l) — Parol evidence to CONSTRUE CONTRACT.</p> <p>In construing Stock subscription contract, which clearly evidences agreement to buy and sell the stock, representatio'ns of corporation’s agent are inadmissible to show parties’ intent, in absence of pleading and proof that there were stipulations entering into the contract which were omitted from agreement by mistake, accident, or fraud.</p> <p>17. Corporations ‘<&wkey;171 — Stockholders; STATUS TO BE DETERMINED BY CONTRACT.</p> <p>In ascertaining whether subscriber became stockholder, the intention of the parties at the time subscription was taken and accepted must be determined from the facts as they may be affected by thp subsequent conduct of the parties.</p> <p>18. CORPORATIONs <&wkey;92 — Stock; note por SUBSCRIPTION ILLEGAL.</p> <p>Where stock subscription contract, whereby subscriber gave note - to corporation and made no cash payment, contained proxy au- , thorizing named person to vote at stockholders’ meetings, and referred to “amount paid” and to “sale price of the stock herein purchased” and where collateral agreement was entered into whereby the “stock” was taken as collateral security for subscriber’s note, and where corporation issued certificate to subscriber, entered subscriber’s name on stock book, and thereafter recognized subscriber as a stockholder, the note was unenforceable, the transaction being in violation of constitutional provision prohibiting issuance of stock except for money, labor or property.</p>

<p>Appeal from District Court, Denton County ; C. R. Pearman, Judge.</p> <p>Clem Neeley was convicted of an offense, and he appeals.</p>

<p>Indictment and ineoemation <&wkey;41(3)— Wife’s oath insufficient to suppoet in-FOEMATION AGAINST HUSBAND FOE DISTURBING PEACE.</p> <p>In view of Code Cr. Proc. 1911, art. 795, providing that husband and wife shall not testify against one another in a criminal prosecution, unless the offense be committed by one against the other, and article 479, requiring a written oath by some credible person charging the defendant with an offense before the presentation of an information, the wife is not a credible witness, and is not competent to make complaint supporting an information against her husband for disturbing the peace of third parties.</p>

<p>Appeal from Baylor County Court; Nat 6. Mitchell, Judge.</p> <p>Suit by F. L. Faneher and others against the Wichita Valley Railway Company and another. Verdict and judgment discharging the named defendant and in favor of plaintiff and against the defendant C. E. Schaff, receiver of the Missouri, Kansas & Texas Railroad Company, and' the Missouri, Kansas & Texas Railroad Company of Texas, and the receiver appeals.</p>

<p>1. Teial &wkey;>251(3) — Instruction on issue</p> <p>NOT MADE BY PLEADING ERRONEOUS.</p> <p>In an action for damage to a shipment of cattle, an instruction on detention of cattle in cars without food, water, or rest was error, where there was no such issue raised by the' pleadings.</p> <p>2. Evidence <&wkey;489 — Evidence op loss in</p> <p>MARKET VALUE TO LIVE STOCK SHIPPER.</p> <p>In hn action against a carrier for damages for delay in shipment of cattle, where the issue was as to market on the day of arrival and day when they should have arrived, and witness stated he knew, he could state the difference.</p> <p>3. Appeal and error &wkey;>742(4) — Statement</p> <p>FOLLOWING ASSIGNMENT NOT GOOD 'WITHOUT</p> <p>EVIDENCE ON QUESTION.</p> <p>In an action for injuries to shipment of. live stock, an assignment of error that account sales were admitted in evidence without preliminary proof need not be considered, where statement following assignment does not show what evidence was given in reference to account sales, and hill of exceptions is in same condition.</p> <p>4. Evidence <&wkey;31,8(l) — Account of sales</p> <p>HEARSAY EVIDENCE OF INJURY TO CATTLE IN</p> <p>TRANSIT.</p> <p>In an action against a carrier for damages resulting from delay in shipment of live stock, the account sales was /inadmissible as hearsay; the entries and declarations therein being those of living third parties, and not of witness, and there being no testimony to their being made in professional, official, or other duty.</p>

S. Bishop, Judge. Suit by the Clarendon Grain Company and others against the Ft. Worth & Denver City Railway Company and Panhandle & Santa Fé Railway Company and the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiffs and the last- two named, defendants appeal.

<p>1. Appeal and error <&wkey;215(l) — Instructions.not REVIEWABLE UNLESS OBJECTED TO.</p> <p>In view of Act 1913, c. 59, a party cannot coinplain that court failed to submit an issue raised by the pleadings and evidence, where no objection was made to the court’s charge.</p> <p>2. Master and servant <&wkey;228(2) — Contributory NEGLIGENCE NOT DEFENSE UNDER FEDERAL Employers’ Liability Act.</p> <p>In an action based upon the Federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665), in connection with the Federal Safety Appliance Act (U. S. Comp. St. §§ 8605-8623), contributory negligence on the part of the em-ployé is not available as a defense, where a violation of the Safety Appliance Act was 'the concurring proximate cause of the death or- injury of such employé.</p> <p>3. Commerce <&wkey;27(7) — Employment in “interstate commerce.”</p> <p>One engaged in the initial step of a switching operation, which would start cars upon their return trip to a place in another state to be again loaded, was engaged in interstate commerce, and the Federal Employers’' Liability Act (U. S. Comp. St. §§ 8657-8665) was applicable, where he was injured while so engaged, the cars in question being exclusively used for the hauling of concentrates from the point in the other state.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>4. Master and servant <&wkey;276(5) — Defective COUPLER PROXIMATE CAUSE OP DEATH.</p> <p>In an action under the Federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) and the Federal Safety Appliance Act (U. S. Comp. .St. §§ 8605-8623) evidence held to sustain a finding that a defective coupler was the proximate cause of injury.</p> <p>5. Death <&wkey;82 — Damages for conscious PAIN SUFFERED PRIOR TO DEATH.</p> <p>Recovery can be had for, conscious pain suffered by deceased prior to his‘death, in an action by his representative based both upon the Federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) and the Safety Appliance Act (U. S. Comp. St. §§ 8605-8623)..</p> <p>6. Appeal and error ¡@=»215(1) — Objections NOT MADE TO INSTRUCTIONS WAIVED.</p> <p>An objection that an instruction was on the weight of the evidence will not be considered on appeal, whore not urged on the trial.</p> <p>7. Death <&wkey;77 — Evidence sufficient to SHOW CONSCIOUS SUFFERING.</p> <p>In an action under the Federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665,) and the Federal Safety Appliance Act (U. S. Comp. St. §§ 8605-8623) for death of a servant, damages were properly awarded for conscious suffering prior to death, where there was evidence that deceased lived an hour or two after being injured and was conscious and was suffering.</p> <p>8. Master and Servant <&wkey;204(2), 228(2)— Contributory negligence and assumption OF RISK NO DEFENSES UNDER FEDERAL STATUTES.</p> <p>In an action under the Federal Employers’ Liability Act (U. S. Comp. St. §§ 8657 — 8665) and the Safety Appliance Act (U. S. Comp. St. §§ 8605-8623), testimony relating to contributory negligence and assumed risk on the part of the deceased is properly excluded.</p> <p>9. Death <&wkey;99(4) — Damages not excessive. -</p> <p>Verdict for $20,000 in favor of widow and two children for pecuniary loss occasioned by death of husband and father, a railroad employé held not excessive.</p> <p>10. Death <&wkey;99 (2) — Damages for conscious SUFFERING NOT EXCESSIVE.</p> <p>A verdict of $2,500 held not excessive for conscious suffering of one who lived several hours after the injury.</p> <p>11. Appeal and error <&wkey;1068(l) — Instruction AS TO APPORTIONMENT OF DAMAGES HARMLESS ERROR.</p> <p>Assuming that it was error, in an action against the Director General of Railroads, to instruct the jury to apportion damages for death of an employé between a widow and children of deceased, the defendant was not prejudiced thereby, the verdict first finding and assessing the damages and then apportioning them.</p> <p>12. Appeal and error &wkey;>877(2) — Objection TO APPORTIONMENT OF DAMAGES.</p> <p>Director General of Railroads cannot complain, in an action against him for damages for death of a railroad employé, that jury was permitted to apportion the damages between the widow and children of deceased in that such apportionment infringed upon the jurisdiction of the probate court, the fact that such jurisdiction was infringed being of no concern to the Director General of Railroads.</p>

Error from Harris County Court; W. E. Monteith, Judge. Suit by the Foster Building & Realty Company against Mrs. S. M. Schenck and husband, wherein defendants brought in Ed Kennedy as defendant on their cross-suit. To review the judgment, defendants bring ■error.

Action by John Atlir and wife against Frank Foster and another. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (181 S. W. 520), and defendants bring error.

Suit by N. Fenimore against Eli C. Gray. Judgment for defendant in the trial court was reversed and a judgment rendered for plaintiff by the Court of Civil Appeals (181 S. W. 513), and defendant brings error.

Action by W. C. Moore and wife against S. 5. Beakley. There was a judgment for defendant, which was affirmed by the Qourt of Civil Appeals (183 S. W. 380), and the plaintiffs bring error.

<p>1. Judgment <&wkey;270 — Necessity oe entby to MAKE JUDGMENT FINAL.</p> <p>Where, upon the return of .a verdict in favor of defendant in a civil action, the court entered upon its docket, “Judgment for the defendant on verdict of jury,” but failed to enter the judgment on the minutes during the term, no ruling having been made on a motion for a new trial, the judgment was final.</p> <p>2. Judgment <&wkey;342(2) — Power to set judgment ASIDE AT SUBSEQUENT TEBM.</p> <p>Where a final judgment in a civil action has been rendered and has not been set aside during the term, the court lias no power on motion for new trial to set it aside at a subsequent term.</p> <p>3. Judgment <&wkey;948(l) — Necessity of pleading POBMEB JUDGMENT IN BAB ON SECOND TRIAL IN SAME ACTION.</p> <p>Where a judgment on an insurance policy was rendered for defendant, but not entered upon the minutes of the court during the term, and a new trial was awarded at a subsequent term, resulting in a judgment for plaintiff, defendant was not required to plead the judgment first entered in bar to further proceeding upon the second trial; both trials bein'g in the same tribunal and on the same cause of action, and the court being bound to take judicial cognizance of its previous action.</p> <p>4. Evidence <&wkey;43(2) — Judicial notice oe PREVIOUS JUDGMENTS.</p> <p>The court will take judicial cognizance of previous judgments rendered by it on the same cause of action at previous terms.</p>

In the matter of -the estate of Mrs. Willie . Mae Jackson, deceased. From a judgment ' allowing a claim filed by Mrs. S. M. Drew, as administratrix of the estate, Van Zandt Jarvis, guardian of two minor heirs, appeals.

<p>Appeal from District Oourt, Lynn County; W. R. Spencer, Judge.</p> <p>Suit by Joe B. Earhart against B. H. Robinson and others. Judgment for defendants, and plaintiff appeals.</p>

Error from District Court, Foard County; J. A. Nabers, Judge. Suit by T. M. Beverly against N. J. Roberts and others, wherein, after judgment for plaintiff, he filled an information in contempt with prayer for damages. To review judgment that plaintiff take nothing by the motion and that defendants be discharged, plaintiff brings error.

<p>1. Appeal and error &wkey;>760(l)—Sufficien-cy OF BRIEF.</p> <p>Brief, which clearly presented the points relied upon for reversal with sufficient references to the record to enable court to apply facts without unnecessary la.bor in searching the record, field sufficient, though rules, in some respects, were not technically complied with.</p> <p>2. Sales <&wkey;79—Place of delivery “e. o. b.”</p> <p>Where goods were bought “f. o. h. cars Jewett, destination weights guaranteed,” the place of delivery was Jewett and not the place of destination; “f. o. b.” meaning “free on board of cars,” “free” meaning without expense to buyer, and “on board of cars” showing how delivery is to be made, and, in the absence of any words indicating the contrary, means at the place of sale or the nearest station thereto.</p> <p>[Ed. Note.—Eor other definitions, see Words and Phrases, First and Second Series, f. o. b.]</p> <p>3. Sales &wkey;79—Place of delivery; “destination WEIGHT GUARANTEED.”</p> <p>In cotton seed sale contract, the word “destination weights guaranteed” did not render doubtful an express provision that delivery was to be made “f. o. b.” at a certain place, and make the point of destination the place of delivery; but these words simply showed the intention to have the seed shipped to another point than the place of shipment, and that the weight at that point would be accepted as correct by the seller.</p> <p>4. Sales <&wkey;80—Place of payment.</p> <p>That goods were to be shipped to certain point does not make the price payable at that point.</p> <p>5. Sales <&wkey;201(4)—Delivery of goods to CARRIER PASSES TITLE.</p> <p>When goods are delivered to a carrier at the point of delivery to be transported to another point, they become the property of the buyer; the carrier becoming his agent to receive and ship them as directed.</p> <p>6. Customs and usages <&wkey;17—Parol evidence TO VARY WRITING.</p> <p>Evidence seeking to vary, by' proof of custom, the well-established meaning of the words “f. o. b.,” held inadmissible.</p> <p>7. Yenue <&wkey;21—Residence of defendant; EXCEPTIONS IN STATUTE.</p> <p>He who claims the benefit of an exception in the statute relating to venue must bring himself clearly within s.uch exception.</p>

<p>1. Insukance <&wkey;819(2) — Selling or liquor IN VIOLATION or LIFE POLICY.</p> <p>In an action on a fraternal order’s life policy, evidence held to show that insured sold liquor in violation of a clause of' his policy every day for nearly three months, and that such selling was part of a service for which he was employed by a saloon keeper.</p> <p>2. Insurance <&wkey;748 — Selling liquors in VIOLATION or LIFE POLICY.</p> <p>Where a fraternal order’s life policy provided that persons engaged in the business of selling malt or intoxicating liquors should not be admitted, and that the certificate of any member who should engage in any prohibited occupation should become void except on notice and payment of an additional assessment, and insured, without notice or payment of the additional assessment, engaged for three months in the business of selling intoxicants, his beneficiaries cannot recover on his death.</p>

R. Price, Judge. Suit by W. P. Bain against John Lovejoy, wberein, after death of defendant, Presley IC Eiwing, as bis executor, was substituted. From a judgment for defendant, plaintiff appeals.

<p>Error from District Court, Eastland County; Joe Burkett, Judge.</p> <p>Suit by E. D. Roan against the Westches-ter Fire Insurance Company. To review judgment for plaintiff, defendant brings error.</p>

Error from District Court, Bexar County; J. T. Sluder, Judge. In proceedings to administer the Texas estate of Gen. Gerónimo Trevino, deceased. The State National Bank and Miers & Rose intervened as assignees of Jose Trevino, legatee. Interveners were dismissed in the probate court and on appeal to the district court, and they bring error.