Volume 236 — South Western Reporter

<p>1. Brokers <©=> 100 — Purchaser from agent must look to his authority.</p> <p>He who buys from an agent acting under special or express authority, whether written or verbal, must look to such authority, and cannot protect his purchase as an act of good faith toward the real owner, known to be such, on the ground he believed the pretended agent had authority, when, by an examination of the acts relied on as conferring such authority, he might have known that he had not; no man being bound by the act of another without or beyond his consent.</p> <p>2. Principal and agent <@=>33 — Agent’s authority revocable by simple, private declaration at any time, with or without reason.</p> <p>The authority of an agent, when revocable, may be revoked by a simple, private declaration at any time, with or without reason.</p> <p>3. Brokers <@=>106 — Exclusion of purchaser’s testimony that he contracted with reference to broker’s contract with owner held erroneous.</p> <p>In a suit for specific performance of a contract to convey land entered into with the owner’s agent, with whom the agency contract had been left after the owner revoked the agency, the court erred in excluding plaintiff’s testimony that he knew of the agency contract when he signed the sales contract and contracted with reference thereto; the owner in such case being estopped from showing his revocation of the agent’s authority in the absence of no.-tice to third persons.</p> <p>4. Principal and agent <@=>151 (3) — Principal revoking special agent’s authority must use reasonable care to prevent third persons being misled.</p> <p>While, ordinarily, notice of revocation of a special agent’s authority need not be given except to the agent, a principal, who seeks to rev.oke such authority before its execution, must do whatever he reasonably should to prevent third persons, who are charged with the duty of protecting themselves in dealing with agents, from being misled by acting on a power withdrawn.</p> <p>5. Brokers <@=>100 — One purchasing land in reliance merely on agent’s misrepresentations as to authority which had been revoked cannot compel conveyance.</p> <p>One who purchases land from an agent in reliance merely on the latter’s representation, made after the revocation of the agency, that he was authorized to sell the land, is negligent, and cannot recover in a suit for specific performance of the contract, since a party dealing with an agent must not rely on what he alone may say or do, but must be able to trace the authority on which he relies back to some word or deed of the principal.</p>

Action by K. C. Redmon against the City of Polytechnic and the Northern Texas Traction Company and another for personal injuries. From a judgment of the Court of Civil Appeals (217 S. W. 730), reversing a judgment in its favor, the traction company brings error.

Suit by Mrs. Eugenia Lomax McKibben against the Murphy-Bolanz Land & Loan Company and another. Judgment for plaintiff, and the defendants appealed to the Court of Civil Appeals, which confirmed the judgment (221 S. W. 650), and- the defendants bring e'rror.

<p>Receivers 174(1) — Railroad receivers may be sued for damage caused by reservoir for water used in railroad shops, without leave of court.</p> <p>Under U. S. Comp. St. § 1048, permitting a receiver of property appointed by a United States court to be sued for any act or transaction in carrying on the business in connection with such property without the permission of the court, receivers of a railroad who constructed a pond as a reservoir for water to be used in railroad shops helé liable to be sued for damage caused thereby without permission of the federal court appointing them.</p>

H. Adkins, Judge. Suit by R. L. Lewis against P. M. Davis and others. From order transferring the case to a county court of other county, plaintiff appeals.

<p>1. Dismissal and nonsuit <§x=o8l (8)— Jurisdiction not lost by failure to pay costs as condition for reinstatement where order was corrected.</p> <p>Jurisdiction was not lost because of plaintiff’s failure to comply with condition of an order to pay costs precedent to having cause reinstated after dismissal where a note on the judge’s docket showed that the real order was that plaintiff “be taxed” with such costs and a judgment mine pro tunc was entered to that effect.</p> <p>2. Carriers <@=^227(2i/2) — Reply held defective for not alleging excuse for delay of train or notice of circumstances causing it.</p> <p>In an action for damage to stock from delay, á reply that the cattle were not delivered to the stockyards in the usual time, because the crowded condition of such stockyards prevented sueh delivery, and that such crowded condition had existed for a considerable time, was subject to the exception that it was not alleged that the carrier gave the shipper notice as to such crowded condition, nor that the shipper had such notice, nor that the carrier did not know of such condition, nor allege any cause why carrier could not have given notice to the shipper of such condition.</p> <p>3. Appeal and error <g=>301— Failure of motion for new trial to allege verdict' was contrary to evidence not ground for affirmance.</p> <p>Appellant’s failure to allege in his motion for new trial that the verdict was contrary to the evidence was not ground for affirmance where, though the evidence was sufficient to sustain the verdict, evidence was erroneously admitted without which the appellate court could not say that the jury would have rendered the same verdict.</p> <p>4. Carriers <S=m230(l) — Whether shipper’s contract was with railroad company or with receiver held for the jury.</p> <p>Where a shipper alleged a contract with defendant railroad company, and testified to an oral agreement with the company while the company introduced a written agreement made with the receivers of the company, the issue as to the parties contracting should have been left to the jury.</p>

D. Love, Judge. Action by C. R. Brookshire against Herbert Pope and the First National Bank of Granger, Tex., the action being dismissed as to the bank. From judgment for plaintiff, defendant Pope appeals.

<p>Appeal from McLennan County Court; Jas. P. Alexander, Judge.</p> <p>Action by George W. - Goodall and wife against J'. J. Dean. Judgment for defendant, and plaintiffs appeal.</p>

E. Monteith, Judge. Action by J. M. Strong against S. S. Ashe for an injunction, with cross-action, against L. B. Moody, Strong’s landlord, in trespass to try title. Strong being eliminated and Ashe dying pendente lite, Charles L. Fitch and wife, independent executors of Ashe’s will, made themselves parties plaintiff against Moody. Judgment in favor of Fitch and wife, and Moody appeals.

Error from District Court, Hudspeth County; W. D. Howe, Judge. Suit by Mrs. Cora M. Holmes, administra-trix of the estate of J. J. Melton, deceased, and others, against A. S. Bean. From a judgment dismissing defendant’s cross-action and for plaintiffs canceling the lease, defendant brings error.

S. Munson, Judge. Suit by Jacob Gray and wife against L. A. Vogelsang and others. From a judgment for the defendant named, plaintiffs and the other defendants appeal.

<p>Appeal from Fort Bend County Court; G. C. Baker, Special Judge.</p> <p>Suit by L. A. Vogelsang against Neuman & Kirmse. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Assignments <@=350(1) — Liens <@=37 — Promise to pay out of particular fund not equitable assignment and - did not give equitable lien.</p> <p>A mere promise to pay a debt out of a particular fund will not operate as an equitable assignment pro tanto of the fund, nor will it establish an equitable lien thereon.</p> <p>2. Assignments <@=>48 — Liens <@=37 — No particular words necessary to constitute equitable assignment.</p> <p>No particular words are necessary to constitute an equitable assignment or an equitable lien; all that is required for the latter being an intention of the parties, clearly deducible from the contract, to pledge the fund as a security for the debt.</p> <p>3. Assignments <@=350(1) — Liens <@=37 — Promise to pay note out of deposit not an equitable assignment and did not give bank lien.</p> <p>The mere promise by maker of note to payee bank to pay the same out of a deposit in the bank did not constitute an equitable assignment of the fund to the bank pro tanto, or give the bank a lien thereon.</p> <p>4. Bankruptcy <@=>154 — Bank had no right to apply deposit on note.</p> <p>A bank, not having a lien on a deposit of one adjudicated a bankrupt, had no right to apply the deposit, or part of it, in payment of a note given by the bankrupt to the bank prior to the adjudication.</p>

<p>Appeal from District Court, El Paso County ; P. R. Price, Judge.</p> <p>Action by Melquíades Angulo agáinst David S. Russek and others. Judgment for the plaintiff, and the defendants appeal.</p>

<p>Appeal from District Court, Harris County ; W. E. Monteith, Judge.</p> <p>Action by James Doubtful against John Barton Payne, agent for the United States Railroad Administration operating the International & Great Northern Railway. Judgment for plaintiff, and the Agent appeals.</p>

<p>1. Husband and wife @=>257 — 1 norease of live stock of wife prima facie common property.</p> <p>Increase of cow given to wife by father is prima facie common property of her husband and herself.</p> <p>2. Husband and wife @=>137(7) — Mortgage by husband of separate property of wife did not affect her rights.</p> <p>Where a husband gave a mortgage upon cattle, among which were included some which he had previously given to his wife, without her consent, such mortgage did not affect her rights in her separate property, although mortgagee had no knowledge of her ownership.</p> <p>3. Husband and wife @=>2651/2, New, vol. 14A Key-No. Series — Wife need not give notice to possible creditor of husband of ownership of stock.</p> <p>The fact that the law gives the wife control and management of her separate personal property does not require her to give notice to ■those who might credit her husband that she owns certain cattle, in order to protect them from seizure and sale for the payment of her husband’s debts, although they are treated about the home in the same manner as if they were community property.</p> <p>4. Appeal and error @=>1070(2) — Finding of value of property in replevin suit held harmless.</p> <p>Defendant in .action fo recover personal property was not prejudiced by a finding of the jury as to the market value of the property without evidence to support it, where the judgment rendered was for the recovery of the property only, and not for its value.</p>

<p>1. Jury <@=>25(6)— Court held not to err in permitting case to go to trial without jury.</p> <p>Method for procuring juries for district and county courts provided in Rev. St. 1911, arts. 5132-5136, is not exclusive, and where party in county court did not make application for jury trial in open court on first day of term, but demanded one the day before case was set for trial, there was no error in permitting the case to be tried in the absence of such party, and not continuing the case until a jury trial could be had, although there was no jury in attendance on the first day of the term as provided by articles 5132-5135, since a jury could have teen obtained under article 5127, which is made applicable to county courts by article 5132.</p> <p>2. Partnership <@=555) — Evidence held to sustain finding of partnership.</p> <p>In an action against several individuals as partners in the hotel and rice business, evidence held sufficient to support a finding that a partnership did in fact exist.</p>

<p>1. Courts <&wkey;478 — Partnership property In hands of trustee held not in custodia legis.</p> <p>Where partnership was thrown into court by an action for an accounting, and the parties themselves by agreement appointed a trustee to take charge of the partnership business and assets and to wind up the business and make necessary expenditures, it cannot be said that the property of the partnership was in custodia legis so that another court would not have jurisdiction in an action against the trustee for indebtedness incurred by him.</p> <p>2. Parties <&wkey;33 — Members of partnership not necessary parties in action against trustee in charge to wind up business.</p> <p>Partners who, in an action for an accounting by agreement, appointed a third party as trustee to take charge of the business and assets, incur obligations, and wind up the affairs of the partnership, were not necessary parties defendant to an action against such trustee on obligations incurred by him as a trustee and charged against him as such.</p>

Action by O. C. Ulmer against C. E. Schaff, receiver of the Texas & Pacific Railway Company, for conversion of a carload of lumber. Judgment for the plaintiff, and the defendant appeals.

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Suit by Mitchell Harden against the Galveston, Harrisburg & San Antonio Railway Company, for damages for unlawful arrest and false imprisonment. Verdict and judgment for plaintiff, and the defendant appeals.</p>

<p>Appeal from District Court, Bexar County; Robert W. B. Terrell, Judge.</p> <p>/ Suit by Ben H. Kelly against tbe Southwestern Bell Telephone Company. Judgment fSr defendant, and plaintiff appeals.</p>

B. Terrell, Judge. Habeas corpus by Bertha Franklin and husband to recover custody of children restrained of their liberty by R. D. Stanton. From a judgment awarding custody of the children to the mother, the- defendant appeals.

<p>Appeal from District Court, Colorado County; M. Kennon, Judge.</p> <p>Suit by the Citizens’ National Bank of Cameron against the Good Roads Gravel Company and others. From an adverse judgment, the plaintiff and others appeal.</p>

<p>Appeal from District Court, Bexar County; Robert W. B. Terrell, Judge.</p> <p>Suit by E. J. Altgelt against the Commonwealth Bank & Trust Company. Judgment for plaintiff, and defendant appeals.</p>

Error from District Court, .Smith County; J. R. Warren, Judge. Action by Charles D. Partney against James A. Baker, receiver. Judgment for plaintiff, and defendant brings error. The defendant in error, Charles D. Part-ney, brought the suit for damages for personal injuries by reason of' a collision between an automobile truck driven by him, and one of the receiver’s passenger trains. The injury occurred at a public street crossing in the city limits of Troup, Tex.

<p>Error from District Court, Smith County; J. R. Warren, Judge.</p> <p>Action by D. J. Bridges against James A. Baker, receiver. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Smith County; J. R. Warren, Judge. Action by G. A. Fields and wife against James A. Baker, receiver. Judgment for plaintiffs, and defendant brings error.

<p>1. Estoppel <§=>48 — Vendor and purchaser <§» 334(7) — Grantor’s second conveyance of por« tlon of land to one acquiring title by adverse possession not fraud on first grantee, entitling, him to recover for deficiency.</p> <p>Where grantor executed warranty deed conveying a specified number of acres and put grantee in possession of the land, but thereafter, and after such deed had been placed of record, executed a quitclaim deed to a portion of the land previously conveyed by warranty deed to third person, who took possession and acquired title by adverse possession, the grantee under the warranty deed could not recover the loss sustained from the grantor on theory that his acts constituted a fraud upon the title conveyed, since the general covenants of warranty extended merely to defects existing in the title at the time of the execution of the deed; and did not pfeclude grantor from thereafter acquiring title to all or any portion of land by devise, purchase, inheritance, gift, or by adverse possession under the statute of limitations.</p> <p>2. Limitation of actions <§=>28(1) —Two-year statute of limitations applicable to grantee’s action for loss caused by grantor’s subsequent conveyance to third party.</p> <p>Grantee’s cause of action, if any, against grantor, who after execution of deed conveyed a portion of the land to third party, came within the two-year statute of limitations prescribed for actions “for debt where the indebtedness is not evidenced by contract in writing.”</p> <p>3. Limitation of actions @=>104(2) — Grantee who permitted grantor’s subsequent grantee to acquire title by adverse possession could not avoid statute of limitations by grantor’s fraudulent acts.</p> <p>Where grantor, after execution of deed, conveyed a portion of the land to third party, who took possession and acquired title by. adverse possession as against grantee, the grantee, in action for fraud against grantor, could not avoid the effect of the statute of limitations by alleging certain fraudulent acts on the part of grantor whereby he was prevented from discovering the alleged fraudulent acts and conduct on the part of the grantor in reference to conveyance of land to third party, since third party’s possession of the land was sufficient to put grantee upon inquiry.</p> <p>4. Notice <®=»6 — Whatever is notice enough to excite attention is notice of what might have been discovered by inquiry.</p> <p>Whatever is notice enough to excite attention and put the party on his guard and call for inquiry is also notice of everything to which it is afterwards found that such inquiry might have led, although all was unknown for want of investigation.</p>

<p>Error from Harrison County Court; W. H. Strength, Judge.</p> <p>Suit by Alice Smith- against the Mosaic Templars of America; Judgment for plaintiff, and defendant brings error.</p> <p>The cause is brought to this court on writ of error for review upon the ground that the judgment is void becase no valid and legal summons or citation was issued and served upon the defendant before its rendition in the trial court. Alice Smith, defendant in error, filed a suit in the county court of Harrison county, the petition alleging that she was the wife of King Smith, deceased, and that King Smith at the time of his death on February 16, 1919, was a member of the defendant society, holding a policy of insurance with the plaintiff as the beneficiary. The proofs of death of the insured had been furnished and delivered to the society, and demand made upon it for payment, which the society had failed and refused to make. The petition further alleged that—</p> <p>The defendant “was an incorporated fraternal benefit society duly incorporated under the laws of the state of Arkansas, and was doing business in the state of Texas. Said Mosaic Tem-plars of America,can be served with citation or other process as by law provided by serving same upon the Commissioner of Insurance and Banking of the state of Texas at Austin in Travis county, Texas.”</p> <p>■The suit was filed on December 6, 1920, and upon the filing of the petition the clerk ’ of the county court of Harrison county, Tex., issued a citation, addressed to the sheriff, reciting, as material to state:</p> <p>“You are hereby commanded to summon Mosaic Templars of America, a fraternal benefit society, by delivering two copies of this writ and accompanying certified copies of plaintiff’s petition to the Commissioner of Insurance and I Banking of the state of Texas, or, in his absence, by delivering same to the person in charge of his office, to be and appear before the honorable county court of Harrison county, Texas, at the next regular term thereof, to be held at the courthouse in Marshall, Tex., on the first Monday in January, A. D. 1921, the same being the 3d day of January, A. D. 1921, then and there to answer a petition filed in said court on the 6th day of December, 1920, wherein Alice Smith is plaintiff, and the Mosaic Tem-plars of America, a fraternal benefit society incorporated under the laws of the state of Arkansas and doing business in the state of Texas, is defendant. * * * Herein fail not, and have you before said court this writ on the said first day of the next term thereof, with your return thereon showing how you have executed the same.”</p> <p>The return made by the sheriff of Travis county and duly filed in court reads:</p> <p>“Came to hand the 6th day of December, 1920, at 6 o’clock p. m., and executed the 8th day of December, A. D. 1920, by delivering to the Commissioner of Insurance and Banking, to Mr. Johnson, in person, two true copies of this citation together with two accompanying certified copies of plaintiff’s original petition.”</p> <p>Harrison county has six terms of the county court in each year, one of which commences on the first Monday in January, and another commences on the first Monday in March. At the January term, 1921, of the court, the case was passed for trial, and no further action was taken, or attempted to be taken, on it. On March 8, 1921, being the appearance day of that term of the court,, there having been no answer filed by the society and no appearance made by it in the-suit, upon the regular call of the appearance-docket and upon the call of this case the plaintiff proved up her ease, and on the showing made and upon the service above set out the trial court rendered judgment in her favor as prayed for. The judgment reads:</p> <p>“On this the 8th day of March, A. D. 1921, came on to be heard the above-entitled and-numbered clause, and the plaintiff appeared in person and by attorneys, and the defendant appeared not, but wholly made default. And it appearing to the court that the defendant has-been duly cited in the manner and for the length of time required by law, and the plaintiff announced ready for trial, a jury having been-waived, the court proceeded to hear and determine said cause both as to mátters of law as well as to matters of fact; and after hearing-the pleadings, evidence and argument of counsel, it is ordered, adjudged, and decreed that the-plaintiff, Alice Smith, do have and recover of and from the defendant, the Mosaic Templars-of America, the sum of three hundred and fifty dollars, with interest from June 1, 1919, at the-rate of 6 per cent, per annum, together with all costs in this behalf expended; for all of' which let execution issue.”</p>

P. Dohoney, Judge. Action by the E. L. Shaw Company against J. G. Coleman and Arnold Goode, and J. G. Coleman and Earnest McGlosson, and J. G. Coleman and B. W. Tinnin, respectively. Judgments for defendants, and plaintiff appeals.

<p>Appeal from District Court, Collin County; F. E. Wilcox, Judge.</p> <p>Action by B. Morrow against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Tom Green County; C. E. Dubois, Judge.</p> <p>Action by M. B. Leonard against O. A, Carutfiers. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Lamar County; A. P. Dohoney, Judge.</p> <p>Action by Mrs. Lloyd Hightower against Eddie Hightower. Judgment for defendant, and plaintiff appeals.</p> <p>May 1, 1917, appellee operated a restaurant in Paris, known as “Eddie’s Cafe.” He had an account with a bank there in the same name. On the day specified, when there was a balance of $2,452.92 in his favor on said account, he had the bank to close it and to transfer the balance to an account he opened in the name of appellant, then his wife. Thereafter he deposited sums aggregating $547.08, received by him in the operation of the restaurant, for credit on the account he opened in appellant’s name. Afterward he and appellant drew checks against the account, so that the balance there of August 27, 1917, was only $1,500. June 28, 1920, appellant commenced suit against ap-pellee for a divorce. August 6, 1920, they agreed on a partition of the community property between them. By this agreement appellant -was to have the homestead they owned, the household and kitchen furniture, and $3,500 in money and bonds. Appellee was to have the remainder of the property belonging to the community estate, and was to pay appellant $25 per month “so long,” it was recited, “as Elizabeth, the minor named in plaintiff’s petition, is under age or lives with plaintiff, for support and maintenance of said minor.” August 7, 1920, a divorce was granted appellant. The agreement she and appellee entered into partitioning the community property, which was reduced to writing and signed by them, was made a part of the judgment granting the divorce. Appellant received the part of the community property she was entitled to by the terms of the agreement. This suit, commenced by her January 12, 1920, was to recover of appellee the $1,500 balance of the account in her name, which the bank held August 27, 1917, as stated above. She alleged that same was a part of her separate estate, and that appellee, about January 1, 1920, without her knowledge or consent, and with intent to defraud her, unlawfully checked the money out of the bank and appropriated it to his own use. In his answer appellee denied that the money in question belonged to appellant’s separate estate, alleged that it belonged to the community estate between them, partitioned in conformity to their agreement as stated, and set up the judgment in the divorce suit as a bar to the recovery sought by appellant. At the trial appellant, testifying as a witness, said that in October, 1917, appellee gave her the passbook covering the account in her name, saying, “Here is your present.” She took it, she said, “and,” quoting from the statement of facts, “looked at it and said, ‘Fifteen .hundred dollars?’ and he said ‘Yes.’ I said, •"You give this to me?’ and he said, ‘Yes.’ I .•said, ‘What for?’ and he said, ‘A birthday present.’ As to when my birthday was in regard to the time he gave me this booh, my birthday was in September, and he gave me the booh in October, 1917.”</p> <p>( She further testified:</p> <p>; “At the time I made the settlement in the ■divorce proceedings I did not know that this money had been transferred ont of my name. At the time I made that settlement I believed that the money was still in the bank.”</p> <p>Appellee, after the court admitted the judgment in the divorce suit as evidence, testifying as a witness, said he drew the money out of the banh before the time when he and appellee entered into the partition agreement, and said, further, quoting from the statement of facts:</p> <p>“In 1917 I was engaged in the café business at 32 South Main street in a building just this side of where the Best Café is now. I kept my bank account during that time with the Lamar State Bank & Trust Company. Up to May 1, 1917, my bank account was kept in the name of Eddie’s Café, and later on it was changed. I made the change and changed it to the name of Lloyd Hightower. I did that because I was kinder short of funds, and I had a painter boarding with me, and he got into trouble, and I changed the money and put it in her name to keep from paying his bond at that time. Later on I did pay it, and I lost his board, about $40. I was on this man’s bond, and I afterwards settled it. That was the reason I transferred this money to the name of Lloyd Hightower. I did not at any time deliver that passbook to Mrs. Hightower. I suppose she got it out of the trunk, or off the table somewhere. I never did make the statement to her that she testified to, and told her that I gave her the money. I never said anything of the sort to her. The money shown in the passbook as deposits was money I received from Eddie’s Café, the business I was conducting at that time. Every bit of that money came from the receipts of Eddie’s Café, and all of it was taken in during the time I was married to Mrs. Hightower.”</p> <p>Finding that the money in question belonged to the community estate between the parties, the trial court, before whom the case was tried without a jury, sustained ap-pellee’s plea of res adjudicata, and rendered judgment that appellant take nothing by her suit. Thereupon she prosecuted this appeal.</p>

<p>1. Carriers &wkey;>H4 — Cotton on platform of compress company held not to have been delivered when burned.</p> <p>Where a carrier had no warehouse, but used compress company’s premises for storage of cotton at a certain point, and where it burned after it was unloaded on the compress company’s platform, and had been weighed and samples therefrom drawn pursuant to custom, and before consignee could obtain possession, because instruments required of the compress company by the carrier precedent to delivery to the owner, pursuant to custom, had ‘not been delivered, the carrier was liable for its loss as a carrier under Rev. St. art. 712, since the cotton had not been delivered; the compress company under the circumstances being the agent of carrier, and not the agent of consignee.</p> <p>2. Carriers &wkey;> 140 — Carrier’s liability where in possession more than reasonable time after notice to consignee, etc., held that of a warehouseman.</p> <p>If goods are destroyed in a carrier’s possession more than a reasonable time after notice to consignee of arrival of shipment, and after consignee failed to pay freight and receive the tickets entitling owner to possession, its liability is that of a warehouseman.</p>

Harper, Judge. Action by L. C. Gibson and others against W. M. Davis and others. Judgment for de-, fendants, except in one particular, and plaintiffs appeal.

<p>Appeal from District Court, Lubbock County ; W. R. Spencer, Judge.</p> <p>Action by R. S. Pershing against E. D. Henry. From a judgment for defendant, plaintiff appeals.</p>

Lewis, Judge. Suit by Cravens, Dargan & Roberts against W. B. Buchner, C. H. Boedecher, I. F. Bradley, G. O. Slaughter, and James Chapman, Judgment for plaintiffs, and defendants other than the first-named defendant appeal.

T. Wilkinson, Judge. Action by Josie Brown against R. L. Kirk and another in which Bertress Kirk and another were made parties, defendant after the death of R. L. Kirk. Judgment for defendants, and plaintiff appeals. This was a statutory action of trespass to try title, commenced by appellant against R. L. Kirk and appellee J. H. Kirk January 16, 1918.

<p>Appeal from San Patricio County Court; J. C. Houts, Judge.</p> <p>Action by Walter Hay against Hugh Barron, executor. Prom a judgment for pla.in-tiff, defendant appeals.</p>

<p>Appeal from Maverick County Court; W. A. Bonnet, Judge.</p> <p>Action by the R. E. McDonald Company against Ed. Goldberg. Erom a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Harrison County Court; W. H. Strength, Judge.</p> <p>Action by N. W. Saunders against John Barton Payne, Agent. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Hidalgo County ; Hood Boone, Judge.</p> <p>Action by Enoch Edwards against the First National Bank of Mission and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Appeal and error <s=>719(1) — Only fundamental errors apparent on record considered without assignment of errors.</p> <p>Where no error is assigned, the Court of Civil Appeals is authorized to consider only such errors as are fundamental and apparent on the face of the record.</p> <p>On Motion for Rehearing.</p> <p>2. Attorney and client <@=¿>54 — Verdict In disbarment case need not specifically find fraudulent or dishonorable conduct or malpractice.</p> <p>Under Rev. St. arts. 325-330, providing for the disbarment of attorneys guilty of fraudulent or dishonorable conduct or malpractice, and prescribing the procedure, it was not necessary for a verdict finding defendant guilty as charged in the complaint to find specifically that defendant was guilty of fraudulent'or dishonorable conduct or malpractice.</p>

H. Strength, Judge. Action by A. C. Alexander and another against the Rhodes Company and the First National Bank of Marshall, garnishee. From a judgment against it, the garnishee appeals.

<p>■ Appeal from Bowie County Court; O. B. Pirkey, Judge.</p> <p>Action by the City Realty Company against H. A. Allen. From judgment for plaintiff, defendant appeals.</p>

L. Brochfield, Judge. Action by W. M. Hudgens against Sam B. Hayter and others. From a judgment overruling a plea of privilege, defendants appeal. Appellee was the plaintiff. He resided in Rusk county. His suit was brought in that county against appellants S. B. Hayter and A. D. Edens, both of whom resided in Nac-ogdoches county.

<p>Appeal from District Oourt, Dallas County; E. B. Muse, Judge.</p> <p>Action by James Storrie and others against J. R. Hill and others. From a decree refusing to dissolve a temporary injunction, the defendants appeal.</p>

<p>1. Chattel mortgages <®=ol57(2) — Evidence held to warrant finding that landlord as to mortgagors of crops waived lien.</p> <p>In action to foreclose a chattel mortgage on crop executed to secure indebtedness incurred during the year for merchandise and supplies, involving issue as to whether mortgagors were tenants or share croppers, evidence that proprietor of farm told mortgagee to furnish merchandise and supplies to mortgagors, and that such proprietor agreed that he would not let such mortgagors owe him anything during the year, field to warrant a finding that proprietor, if landlord as to such mortgagees, waived his landlord’s lien in favor of mortgagee.</p> <p>2. Landlord and tenant <S=»323 — Crops contract held to create relation of tenants in common in crops, and not that of landlord and tenant.</p> <p>A contract by the terms of which one of the parties supplies the land, teams, implements, etc., and the other supplies the labor under an agreement to share the crops produced equally, is not an ordinary rental contract creating the relation of landlord and tenant between the parties, but creates relationship of tenants in common in the erops.</p> <p>3. Landlord and tenant <3=>326(l) — -Farm owner, who completed the work on share cropper’s abandonment, held entitled to expense in addition to his share.</p> <p>If contract for share of erops between owner of land and others who agreed to perform the work created the relation of tenants in common of the crops, the owner on abandonment of the undertaking by such other persons, could complete the undertaking himself, in which case his share, in addition to his one-half interest, would include a sufficient amount to cover the costs of completing the undertaking himself.</p> <p>4. Chattel mortgages <§=>283 — Judgment fore* closing mortgage held defective for failure to apply foreclosure to any specific property. <</p> <p>Judgment, foreclosing chattel mortgage on crops, <held defective for failure of pleadings to describe the property sufficiently to identify it, and for failure of the judgment itself to apply the foreclosure to any specific property.</p>

<p>Error from District Court, Upshur County; J. R. Warren, Judge.</p> <p>Action by R. W. Simpson against the Texas Public Service Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Appeal and error <©=>781 (4) — Moot questions not considered.</p> <p>An appeal by plaintiffs, in an action to restrain election judges from denying plaintiffs’ right to vote in primary election, will be ’ dismissed, where it appears that the election has been held and it is impossible to grant the relief sought, the subject-matter of the suit having in effect ceased to exist, even though the question of the constitutionality of the statute, under which a rule denying plaintiffs the right to vote was promulgated, is involved.</p> <p>2. Constitutional law <©=46(I) — Constitutionality not inquired into unless concrete right is affected.</p> <p>The constitutionality of a statute will not be inquired into by the courts unless the petition by which the question is presented shows that the statute affects some concrete right of the complainant.</p> <p>3. Appeal and error <©=781 (1) — Appeal not entertained solely to determine question of costs.</p> <p>The subject-matter of a suit having in effect ceased to exist, the question of costs alone is not sufficient to require appellate court to entertain an appeal.</p>

Suit by Mrs. Willie Scarborough and others against E. J. Ward and others. A judgment for plaintiffs for insufficient relief was reformed and affirmed by the Court of Civil Appeals (220 S. W. 274), and defendant E. J. Ward brings error.

Suit by Mrs. Willie Scarborough and' others against E. J. Ward. Judgment for plaintiffs and defendant’s writ of error was dismissed by the Court of Civil Appeals (223 S. W. 1107), and he brings error.

Suit by E. J. Ward and others against the States Oil Corporation and others. A judgment for plaintiffs was affirmed by the Court of Civil Appeals (223 S. W. 250), and defendants bring error.

<p>1. Brokers <©=>57 (I)— Agent held not entitled to commission from purchaser who declined offer procured, but thereafter accepted different proposition to sell the same property.</p> <p>An agent, who was to get a commission “in the event of any deal under the proposition now pending,” which was an offer to sell to the principal a mill and the “fee-simple” title to certain timber, was not entitled to a commission where the principal determined not to take the property, but later was approached and purchased the mill and the interest of the seller in such timber under a contract with another person, who owned the same, where the rights acquired under the contract were limited in a great many ways; no’deal taking place under the original proposition.</p> <p>2. Brokers <©=>57(I) — Transaction hfiltf not one intended to defraud or defeat agent’s commission.</p> <p>Where agent procured an offer to sell fee-simple title to certain timber and a lumber mill, which proposition the principal finally determined not to carry out, held that a subsequent transaction, wherein the principal purchased the mill, but only acquired a qualified interest in the timber, was not a device to defraud the agent.</p>

Supreme Judicial District. Suit by Eucius Fuller and another against the El Paso Times Company. From a judgment of the Court of Civil Appeals (215 S. W. 113) reversing a judgment of the district court for plaintiffs, they appeal.

■ Appeal from District Court, Harrison County; P. O. Beard, Judge. John Harris was convicted of being in possession of equipment for the manufacture of intoxicating liquor, and appeals.

<p>Appeal from Dstrict Court, Taylor County; W. R. Ely, Judge.</p> <p>C. E. Poe was convicted of possessing intoxicating liquor in violation of law, and appeals.</p>

<p>1. Rape (§=352(1) — Evidence held to warrant jury in rejecting defendant’s story.</p> <p>In a prosecution for rape upon a girl under 18, eviderice that defendant had attempted to induce other witnesses to testify that the girl’s stepfather, or the witness, was responsible for her condition, held to'warrant the jury in rejecting the defendant’s story that the stepfather and the prosecutrix had been seen copulating.</p> <p>2. Criminal law ¡§=5829(3) — Requested charge already covered need not be given.</p> <p>A requested charge to find the defendant not guilty, if the jury found the prosecutrix was over 15 years of age and was of previous unchaste character, was properly refused where that issue was presented to the jury in a paragraph of the court’s charge.</p> <p>3. Rape ¡§=349(2) — Doctrine of prompt outcry inapplicable to statutory rape.</p> <p>The doctrine of prompt outcry and report does not apply to a charge of rape with consent on a girl under the age of 18.</p> <p>On Motion for Rehearing.</p> <p>4. Indictment and information ¡@=>11 f (3) — Exception not part of description of offense need not bte negatived.</p> <p>An indictment charging a statutory offense need not negative an exception or proviso in the statute which is separable from the description of the offense and not an ingredient thereof.</p> <p>5. Indictment and information ¡§=3l 11 (3) — Indictment for statutory rape need not negative previous unchastity of girl under 15.</p> <p>The proviso to Penal Code, art. 1063, as amended by Acts 35th Leg. 4th Called Sess. (1918) c. 50, that if the woman is 15 years of age, or over, the defendant might show that she was not of previous chaste character as a defense, makes the previous chastity of the prosecutrix not an element of the offense, but a matter of defense, so that the indictment need not negative her unchastity.</p>

E. Dubois, Judge.. Suit by Charles C. Motl and others against R. W. Boyd and others. From an order overruling a motion to dissolve a temporary injunction, defendants appeal.

<p>Appeal from District Court, Webb County; J. E. Mullally, Judge.</p> <p>Action by Lucio Cuellar and another against Antonia Garcia Vda. de Gutierrez, with Juana Garcia de Cuellar intervening. From an adverse judgment, defendant appeals.</p>

Suit by Eloisa Y. de Flores and another against Dayle L. Smith and others. From judgment for defendants and that a lease contract from plaintiffs to defendants should be reformed, plaintiffs appeal.

<p>1. Pleading i&wkey;lll — Benefit of any statutory exception confined to exceptions invoked in controverting affidavit to plea of privilege.</p> <p>The effect of Yemon’s Ann. Civ. St. Supp. 1918, art. 1903, is that inquiry as to plaintiff’s right to the benefit of any exception named in, Rev. St. art. 1830, where plea of privilege has been properly filed and is met by a controverting affidavit, is confined to the exceptions invoked in the controverting affidavit.'</p> <p>2. Pleading <&wkey;lll — Merely pleading fraud without proof does not give jurisdiction under exception to general statute of venue, where plea of privilege is filed.</p> <p>When jurisdiction of the person of a defendant is asserted under some exception to the general venue statute, and he pleads the privilege of being sued in the county of his domicile, to defeat this plea and deprive him of that right on the ground that fraud is involved, the facts relied on should not only be alleged by plaintiff but also proven, and merely pleading fraud in the petition is not sufficient under Vernon’s Ann. Civ. St. Supp. 1918, art. 1903.</p> <p>3. Pleading <®=>lll — Burden of'proving fraud on hearing of plea of privilege upon plaintiff.</p> <p>When defendant pleads privilege of being sued in the county of his domicile, the burden of proof is upon the plaintiff who seeks to defeat the plea on the ground of fraud, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, and Vernon’s Ann. Civ. St. Supp. 1918, art. 1903.</p> <p>4. Pleading &wkey;olll — Evidence held to sustain finding of absence of fraud on hearing of plea of privilege.</p> <p>In a hearing under a plea of privilege, which plaintiff sought to defeat by showing fraud under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, and Vernon’s Ann. Civ. St. Supp. 1918, art. 1903, evidence held to sustain a finding of trial court that there was no fraud.</p>

<p>Error from District Court, Tom Green County; O. E. Dubois, Judge.</p> <p>Action by D. J. Burk against G. B. Estes. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from District Court, Montgomery County; J. L. Manry, Judge.</p> <p>Action by Charles D. Conley and wife against the Gulf, Colorado & Santa Eé Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Wheeler County; W. R. Ewing, Judge.</p> <p>Suit by O. B. Berry against A. O. Sweet and others. Judgment for plaintiff, and defendants appeal.</p>

Error from District Court, Morris County; J. A. Ward, Judge. Action by T. J. Walker against Bettie Haley and others. Judgment for defendants, and plaintiff brings error. James C. Walker and Mollie E. Walker were husband and wife. They had no children. Both died intestate; he in January, 1919, and she in September, 1920. Plaintiff in error,. James C. Walker’s nephew, was the plaintiff in the court below.

<p>Appeal from District Court, Childress County; J. A. Nabers, Judge.</p> <p>Suit by Henry Hankins and another against A. P.. Minchew. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Hidalgo County; Hood Boone, Judge.</p> <p>Action by Epsie Berry against the American Rio Grande Land & Irrigation Company. Demurrer to petition sustained, and plaintiff appeals.</p>

<p>Sales <@=323(4) — Under facts, no meeting of minds necessary for contract.</p> <p>There was no meeting of the minds of parties, necessary for a binding contract, where buyer gave seller’s agent an order for flour on a printed form, and at the same time the agent gave buyer a written memorandum which he promised to send to seller with the printed order, whereby the agent promised to write seller that-buyer was then heavily stocked, but if conditions returned to normal before shipment of the flour, buyer could use it, otherwise would not be able to do so, and the agent sent a different memorandum, on the basis of which seller confirmed the order, and afterwards, on notification of the conditions of the memorandum, refused to confirm.</p>

<p>1. Sales <@=>202(6) — Delivery of property to carrier for C. O. D. shipment vests title in buyer.</p> <p>On delivery of property by the seller to an express company for C. O. D. shipment consigned to the buyer who had contracted to purchase, title passes to the buyer.</p> <p>2. Sales <@=>318 — Acquiescence by shipper in delivery of C. O. D. shipment without payment election to treat as consummated sale.</p> <p>Where delivery of property was made to an express company for C. O. D. shipment to the buyer, but delivered without demand of C. O. D. payment, knowledge, by the shipper, of delivery and failure to rescind or take steps to recover the property, was acquiescence in delivery and election to treat as a consummated sale passing title, and there remained with the shipper only the right to sue for the purchase price.</p> <p>3. Assignments <§=94 —■ Assignment of claim against purchaser of goods shipped C. O. D. conveyed only shipper’s remedies.</p> <p>WThere property was delivered for C. O. D. shipment, but delivered without demand for C. O. D. payment and receipted for by an agent of the purchaser, and the evidence showed that the shipper did not make any claim against the agent for the property or its value, assignment of the shipper’s claim to the express company passed only the right to sue the purchaser for the contract price, or the agent, on the theory that he was an undisclosed principal.</p> <p>4. Appeal and error <@=>931 (3) — Evidence and findings presumed in support of judgment where none filled.</p> <p>In view pf Vernon’s Sayles’ Ann. Oiv. St. 1914, arts. 1989, 1990, 1991, in the absence of findings of fact and conclusions of law, it must' be presumed that the court determined the issues from evidence sufficient to support the judgment rendered.</p>

<p>Appeal from District Court, Jefferson County; E. A. McDowell, Judge.</p> <p>Action by A. Blieden against J. E. Josey and others. Judgment for plaintiff, and defendants appeal.</p>

<p>. Appeal from Dallas County Court, at Daw; W. N. Coombes, Judge.</p> <p>Action by the Sunshine Grocery & Market against W. D. Jones and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Error to Court of Civil Appeals of First Supreme Judicial District.</p> <p>Action by B. F. Schulze against the Bankers’ Trust Company.</p>

Action by the Nacogdoches Grocery Company and others against the Mayotown Lumber Company and others. A judgment. for plaintiffs was reversed in part and affirmed in part by the Court of Civil Appeals (221 S. W. 644), and certain defendants bring error.

<p>1. Appeal and error <@=722(I)— New trial <&wkey; 129 — Refusal of several special issues properly incorporated one subdivision of motion for new trial, and each issue properly presented by separate assignment on appeal.</p> <p>Party did not violate any law or rule of practice by including the refusal of several issues in one subdivision of his motion for new trial, and the presentation of these assignments taken from the one subdivision of the motion as separate assignments of error on appeal was permissible, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2020.</p> <p>2. Appeal and error <&wkey;>722(l) — Appellant not confined to exact language of motion for new trial in his assignments of error; “shall.”</p> <p>An appellant is not confined for his assignments of error to the exact language of his motion for a new trial, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2020, as the word “shall” in such statute is to be construed in a permissive instead of an imperative sense.</p> <p>[Ed, Note. — Eor other definitions, see Words and Phrases, First and Second Series, Shall.]</p> <p>3. Appeal and error <&wkey;>553(I) — Indorsement of refusal on issues submitted renders bill of exceptions unnecessary.</p> <p>It is not necessary to preserve a technical bill of exceptions to the refusal of the trial court to submit issues requested, where the written issues are filed with the court and it indorses a refusal thereof, in view of Vernon’s Ann. Civ. St. Supp. 1918, art. 1974; there being no distinction between a special charge and a special issue.</p> <p>4. Trial <®=>350(6) — Special issues as to negligence of employer held improperly refused.</p> <p>In an action for injuries to an employee hurt when a bundle of iron hoops fell upon his foot off a truck, field, under the evidence and in view of findings made by the jury, that the court erred in refusing to submit special issues as to whether defendant’s foreman was negligent in loading the truck, or in furnishing a defective truck, and whether plaintiff was injured in one or more of the ways set out in plaintiff’s petition.</p>

Action by W. J. Clement against the Gulf Colorado & Santa Fé Railway Company. From a judgment of the Court of Civil Ap- peals (220 S. W. 407) reversing a judgment in his favor, plaintiff brings error.

<p>Criminal law @=5|4 — Prosecution for possessing . intoxicating liquor, instituted before amendment of law, not maintainable.</p> <p>In view of Acts 37th Leg. (1921) 1st Called Sess. c. 61, under which possession of intoxicating liquor is no longer an offense, unless possessed for purpose of sale, a prosecution begun under the prior law for merely possessing liquor cannot be maintained; the amenda-tory act carrying'no saving clause as to pending cases.</p>

<p>Appeal from District Court, Gregg County; Chas. L. Brachfield, Judge.</p> <p>M. A. Richardson was convicted of unlawful possession of intoxicating liquors, and appeals.</p>

<p>Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.</p> <p>Leland Wills was convicted of robbery, and appeals.</p>

Appeal' from District Court, McLennan County; Pilchard I. Munroe, Judge. Robert J. Riddle was convicted of murder. Shorn an order remanding him on application for writ of habeas corpus, he appeals.

<p>Criminal law <@=>982— Suspended sentence statute applicable to liquor prosecution.</p> <p>The suspended sentence statute is applicable to prosecutions for unlawful possession of intoxicating liquors.</p>

<p>Appeal from District Court, Collings-worth County; J. A. Nabers, Judge.</p> <p>Action by G. W. McCauley against D. A. Kennedy and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Appeal and error &wkey;>742(l) — Duty to review on assignment of fundamental error made on oral argument.</p> <p>It is the duty of the appellate court to review the facts of a case on an assignment of fundamental error, made by appellant on oral argument, that the trial .court refused to submit to the jury an issue of fact raised by the evidence and disclosed by appellant’s brief, though appellant’s assignments in his brief and his propositions are too defective for consideration.</p> <p>2. Mortgages 4&wkey;342 — Sales under deeds of trust must be by person properly authorized.</p> <p>A sale under a deed of trust by a substitute trustee not appointed by one authorized so to do under the terms of the deed does not divest the title out of the maker of the deed.</p> <p>3. Limitation of actions <&wkey;39(l2) — Void deed may be attacked after four years.</p> <p>Where a sale is made under a trust deed' by a substitute trustee not appointed by one authorized so to do under the terms thereof, an attack upon the deed of such trustee is not barred under the four years’ statute of limitations.</p> <p>4. Mortgages <&wkey;>342 — That mortgagee asked grantor in deed of trust to appoint substitute trustee held immaterial.</p> <p>Because beneficiary in a deed of trust exceeded his. authority in asking maker thereof to appoint him a substitute trustee did not take away from him the power given by the deed of trust to make such designation himself, provided he acted within the terms of his grant.</p> <p>5. Mortgages <&wkey;342 — Trustee need not tell beneficiary in person that he will not act in order to give beneficiary power to appoint substitute.</p> <p>The law does not require that trustee in deed of trust tell the beneficiary in person that he will not act; his refusal to act being enough, if brought to the knowledge of the beneficiary, who may thereupon appoint a substitute as provided under the power given to him in the trust deed.</p> <p>6. Mortgages <&wkey;342 — Beneficiary held entitled to appoint substitute trustee under deed of trust.</p> <p>That trustee informed maker of deed of trust -that he was going to leave the country and would not have time to execute the trust, coupled with the fact that he did remove himself to a foreign country, authorized the appointment of a substitute trustee by the beneficiary, though the latter had no personal notice from the trustee that he would not act.</p> <p>7. Mortgages &wkey;>342 — Presumed that trustee will not refuse to act under deed of trust.</p> <p>As respects the right to appoint substitute trustee, there is a presumption that a trustee in a deed of trust will not refuse to act, but when called upon will perform the duties imposed on him by the deed.</p> <p>8. Mortgages &wkey;>369 (8) — Whether grantor in deed of trust bad written notice of designation of substitute trustee held for jury.</p> <p>In an action involving the validity of a sale by a substitute trustee under a deed of trust, whether grantor in the deed of trust had written notice of the designation of a ■ substitute trustee, to which he was entitled under the deed of trust, held for the jury; such grantor having himself prepared the instrument designating the substitute trustee.</p> <p>9. Mortgages <&wkey;342 — Grantee of mortgagor held not entitled to notice of designation of substitute trustee.</p> <p>Where a deed of trust provides that a substitute trustee may be appointed on the happening of certain contingencies, and that mortgagor shall have written notice thereof, it is not necessary to give notice’ of the appointment of a substitute trustee to a third party acquiring the mortgagor’s property under execution sale.</p> <p>On Rehearing.</p> <p>10. Mortgages <§=3354 — Notices of sale under trust deed may be signed by attorney for substitute trustee.</p> <p>Notices of sale of land under a deed of trust need not be signed by the trustee in person, but may be signed for him by his attorney.</p> <p>11. Mortgages <&wkey;356 — Trustee need not personally post notices of sale.</p> <p>Trustee need not himself post notices of sale under a trust deed, but may delegate this duty to another.</p> <p>12. Mortgages &wkey;>354 — Error in date of notice of sale hold immaterial.</p> <p>An error in date of notice of sale to be made under a deed of trust is immaterial.</p> <p>13. Mortgages &wkey;>354 — Substitute trustee may sign notices of sale before appointment.</p> <p>A sale of land by a substitute trustee under a deed of trust was not void because he signed the notices of sale before he was formally designated as substitute trustee, providing that he was properly designated at the time he posted them; such posting being a ratification or adoption of his prior act of signing.</p>

<p>1. Appeal and error <&wkey;690 (5) — Admissibility of evidence not considered, where bill of exceptions does not state facts relating thereto.</p> <p>Where a bill of exceptions contained no statement of the circumstances, or the evidence explaining the testimony objected to and showing its immateriality, nor made any reference to the statement of facts, as required by Rev. St. 1911, arts. 2059, 2060, it was fatally defective, and the admissibility of the evidence •cannot be considered.</p> <p>2. Appeal and error <&wkey;663 (I) — Certificate to bill of exceptions held not to sho.w facts assumed in objection were true.</p> <p>Certificate to bill of exceptions that objections therein contained were made to the admission of testimony cannot be construed as a certificate that the facts assumed in the objections were true.</p>

<p>1. Bills and notes &wkey;>I — “Check” defined.</p> <p>A “check” is an unconditional order on a bank or banker to pay a specified sum of money to the person named, or order, or to bearer on demand, and such cheeks are negotiable paper and payable at the banking house of the banker within banking hours.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, First and Second Series, Check.j</p> <p>2. Venue <&wkey;7 — Suit may he brought where contract is to be performed.</p> <p>Under Vernon’s Sayles’ Ann. .Civ. St. 1914, art. 1830, subd. 5, providing that when a written contract is to be performed in a particular county the defendant may be sued in that county wherever he resides, it is not necessary that the contract in express words shall require performance in a particular county, the necessary implication from the context of the instrument of performance in a certain county being sufficient.</p> <p>3. Venue <&wkey;7 — If a check payable at a certain place is not paid, the drawer obligates himself to pay the amount at that place.</p> <p>Under Acts 36th Leg. (1919) c. 123, § 61, providing that by check the drawer admits existence of the payee and his then capacity to indorse, and binds himself to pay the amount of the cheek, if dishonored, to the holder, where a bank refused to pay a check the primary liability of the drawer asserted itself, and the check evidenced a promise on his part to pay the amount where the bank was located, and suit could be maintained in that county.</p>

<p>Appeal from District Court, Hunt County.</p> <p>Action by H. P. Eastman against the /Etna Insurance Company. From a judgment for piaintiff, defendant appeals.</p>

<p>Appeal from Dallas County Court; W. N. Coombes, Judge.</p> <p>Suit by the Southern Plow Company against the Dunlap Hardware Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Travis County; Geo. Calhoun, Judge.</p> <p>Action by the Texas Trust Company of Austin against Hood Hill. From an adverse judgment, defendant appeals.</p>

<p>Appeal and error <&wkey;389(3) — Affidavit of inability to pay costs of appeal must be called to attention of trial court.</p> <p>An affidavit or proof of inability to pay costs of appeal should be called in some way to the attention of the trial court to the end that he may order the stenographer to transcribe his notes in the case, and the mere filing of an affidavit before a county judge among the papers in the case did not devolve dh the official stenographer in the trial court the duty to transcribe his notes, and was no excuse for failing to perfect the appeal within the time allowed, under Vernon’s Ann. Civ. St. Supp. 1918, art. 2071, as amended by Acts 1919, c. Ill, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2098, although the stenographer promised to make the transcript, but neglected to do so.</p>

<p>1. Evidence &wkey;>506 — Vendor and purchaser &wkey;3140 — Abstract alone to be looked to to determine validity of title; an attorney’s opinion as to character of title shown by an abstract held inadmissible.</p> <p>The abstract of title furnished by vendor must be looked to by the court to determine whether the contract as to the clear and merchantable character of title has been complied with, and it is not error to exclude an attorney’s testimony as to his opinion thereon,- as his opinion cannot be substituted for the court’s judgment.</p> <p>2. Vendor and purchaser <&wkey;l30(4) — Devisee and independent executrix held incapable, of conveying a merchantable title.</p> <p>Where testator gave all real, personal, and mixed property to his wife for life, to be used, enjoyed, and consumed, any remainder at her death to be divided between his children, or, if any of them died before the wife, their children to- share per stirpes, held, that the independent executrix could not alone convey a merchantable title to testator’s real estate.</p> <p>3. Vendor and purchaser <&wkey;>78 — Time held of essence of contract.</p> <p>A contract by which vendor was to deliver possession by May 1, and to deliver the property with good and sufficient warranty deed within 30 days from April 13, date of contract, the vendor to be given not exceeding 30 days from discovery of any defect in title to cure same, held to make time of the essence.</p>

<p>1. Justices of ‘the peace &wkey;205(i) — Order of county or district judge necessary to obtain certiorari to justice’s court.</p> <p>In order to obtain a certiorari to a justice’s court to remove a cause from that court to a county or district court, an order must be obtained from the county or district judge commanding the justice of the peace to make a certified copy of the entries in the cause on his docket and transmit the same with the papers.</p> <p>2. Justices of the peace &wkey;>202 (2)— Certiorari not granted in absence of affidavit setting forth cause.</p> <p>■ Certiorari to a justice’s court will not be granted unless the party applying for it, or some one for him, shall make affidavit in writing setting forth sufficient cause for its issuance.</p> <p>3. Justices of the peace &wkey;>l97(2,3) — Cause for which certiorari may be granted.</p> <p>A sufficient cause for certiorari to a justice’s court is stated when the justice of the peace is shown to have been -without jurisdiction, or where injustice was done the applicant by the judgment, and such injustice was not caused by the inexcusable neglect of the applicant, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 742-746.</p> <p>4. Justices of the' peace <&=o206(i) — Grounds for dismissal of certiorari on motion.</p> <p>Certiorari to a justice’s court may be dismissed on motion only for want of sufficient cause appearing in the affidavit or for want of sufficient bond under Yernon’s Sayles’ Ann. Oiv. St. 1914, art. 754, but not for laches or negligence of an attorney.</p> <p>5. Justices of the peace &wkey;>202(2) — Application held to present good cause for certiorari to justice court.</p> <p>Application for certiorari to justice court showing that defendant applicant lived in one county and was sued in another county and had filed a plea of privilege which was overruled in his absence and judgment rendered against him, that justice court was in a village at a distance from a railroad, and that applicant employed an attorney who failed to make railroad connections and did not reach the court, that defendant had sold plaintiff a sec- ' ondhand automobile, and plaintiff based her claim on charges that defendant had misrepresented the car, and that defendant expected to show that he made no misrepresentations as to the car, held to present a defense to the cause of action, and show that the defendant was not guilty of inexcusable neglect, and cer-tiorari was properly granted, under Yernon’s Sayles’ Ann. Oiv. St. 1914, arts. 742-746.</p>

<p>Appeal from Frio County Court; John L. Pranglin,- Judge.</p> <p>Action by A. B. Finch against James Davis, Director General. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Montgomery County Court; W. H. Lee, Judge.</p> <p>Action by M. L. Price against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Limitation of actions <&wkey;28(l)— Action for overpayment one for debt barred in two years after discovery of right.</p> <p>Where plaintiffs sought only to recover the excess paid defendants on a purchase of land, there being a deficiency in the acreage conveyed, their cause of action was a debt, and, not being in writing, was barred in two years after discovery of the shortage.</p> <p>2. Limitation of actions <&wkey;>l83(3) — Plea of longer statute includes shorter.</p> <p>A plea of a four years’ statute of limitations includes a plea of two years’ statute.</p>

A. McDowell, Judge. Proceedings under the Workmen’s Compensation Act by C. Wade, opposed by A. C. Mac-Earlane, employer, and the Home Life & Accident Company, insurer. Prom an award of compensation sustained by the district court, the insurer appeals.

<p>Appeal from District Court, San Augustine County; V. H. Starke, Judge.</p> <p>Action by the American National Bank of Shreveport, La., against C. C. Goodwin. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Continuance <&wkey;>!2 — Court erred in not ■ granting continuance by reason of absence for sickness of party.</p> <p>In an action on a note sought to be avoided on ground of fraud, court ei*red in denying an application for a continuance based upon the absence of one of the defendants, who was taken suddenly ill the night before, and was unable to be present and 'testify in the case, and would have testified in detail to the facts of the alleged fraudulent representations.</p> <p>2. Appeal and error &wkey;684(2) — Right to complain of denial of continuance not waived by failure to show in bill of exceptions ground of ruling.</p> <p>Defendants did not waive right to complain on appeal of overruling of application for a continuance by failing to show in their bill of exceptions “on what ground the court below overruled the” application.</p> <p>3. Continuance <@=>26(I) — Sufficient diligence held shown as to continuance.</p> <p>Where a defendant who would testify as to material matters became suddenly ill the night before the trial, and was unable to be present, though in the city where the trial took place, it cannot be said that defendants did not show diligence to procure the testimony of such party, though plaintiff offered to join defendants and go to the bedside of the witness, and in that way take her testimony, by the court’s stenographer and read it to the jury, which offer was declined; defendants being entitled to-the testimony of the witness, and the witness as a party having a right to be present at the trial.</p>

R. Spencer, Judge. Suit by J. P. White against Ed E. Mann and others for specific performance of a contract for the purchase of land. Judgment for the plaintiff, and Ed E. Mann and certain other defendants appeal.

<p>Appeal from District Court, Carson County-; W. It. Ewing, Judge.</p> <p>Acfion by J. W. Fields against the Connecticut Fire Insurance Company and others. Judgment for plaintiff, and defendants ap-Xieal.</p>

<p>I. Mortgages &wkey;>342 — No substitute trustee can be appointed, unless original trustee refuses to act.</p> <p>There can be no substitution of trustees until the original trustee refuses to act or to perform bis duty.</p> <p>.2. Judgment <&wkey;256(l) — Jury <&wkey;37 — Court cannot render new decree contrary to that rendered on verdict responsive to issues.</p> <p>After rendering decree on a verdict responsive to the issues, a new decree directly opposite thereto is not authorized, since it would deprive the parties of the right of trial by a jury by substituting the finding of the court for that of the jury.</p> <p>3. New trial <@=»28 — Refusal to grant new trial for damages after specific performance decree rendered ineffective by conveyance to innocent purchasers held error.</p> <p>Where party against whom specific performance decree was rendered had conveyed land to innocent purchasers during the trial without knowledge of adverse parties, so that adverse parties’ remedy against him was in personam, court’s refusal to grant adverse parties a new trial, so as to permit them to proceed against such party for damages for breach of contract held error.</p>

<p>1. Railroads <§=»274(I) — Express company not liable for injuries by stumbling over truck tongue on depot platform.</p> <p>Where plaintiff stumbled over tongue of express company’s truck on depot platform in crossing platform for the sole purpose of depositing letter in mail box located thereon, the express company, which had leased a portion of the depot and used platform to convey packages between trains and express office, was not liable for injuries sustained, even if it was negligence to leave truck handle down instead of elevated.</p> <p>2. Railroads <@^>279 — Stumbling over express truck tongue on depot platform held not foreseeable.</p> <p>Where plaintiff stumbled over the tongue of express company’s truck while' crossing depot platform to deposit letter in mail box on platform, without following any particular route, and there was nothing to indicate that a person in crossing platform would select that particular portion in close proximity to the trucks, the express company was not liable for injuries, even if the failure to elevate the tongue constituted negligence.</p> <p>3. Railroads <§=j278(I)— Person stumbling over express truck tongue on depot platform held negligent.</p> <p>Plaintiff, who stumbled over tongue of express company’s truck on depot platform in plain view in the broad daylight, held con-tributorily negligent in failing to see the truck tongue.</p> <p>4. Negligence <8=5136 (26)— Contributory negligence usually question for jury.</p> <p>1 Contributory negligence, though usually a question of fact for the jury, is a question of law for the court when the proof is such that no reasonable deduction can be derived from it except that it conclusively establishes contributory negligence.</p>

<p>Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.</p> <p>Action by Jack V. Buster against John W. Gordon. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Executors and administrators <©=>238 — Heirs had right to contest application to withdraw allowed claim.</p> <p>Heirs have the right to appear in the administration of an estate and contest applications to withdraw claims which have been filed, approved, and ordered paid, under Rev. St. 1911, art. 3236.</p> <p>2. Executors and administrators @=241 — Order of probate court allowing claim a “final judgment.”</p> <p>An order of a probate court allowing a claim regularly presented is a final judgment, under Rev. St. 1911, art. 3452.</p> <p>[Ed. Note — For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]</p> <p>3. Executors and administrators @=237 — Order of probate court allowing claim valid judgment, though entered only in docket.</p> <p>Entry of an order of a probate court allowing and ordering paid a claim regularly filed, entered .in county judge’s probate docket, is such an entry of record as is contemplated in Rev. St. art. 3219 nullifying an order not entered of record, in view of article 3211, making the judge’s probate docket a “record book.”</p> <p>4. Executors and administrators @=>238, 241-Order of probate court allowing claim a final judgment not to be set aside at subsequent term or collaterally attacked.</p> <p>' An order of the probate court, entered in the probate docket, allowing and ordering paid a claim, is a final judgment, and cannot be set aside at a subsequent term, or be otherwise affected in a collateral proceeding, or in any other way than by a direct proceeding brought for that purpose in the district court.</p>

<p>Appeal from District Court, Bexar County ; Robert W. B. Terrell, Judge.</p> <p>Suit by Mittie Jamison against Lee K. Wells and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Hardeman County; J. A. Nabers, Judge.</p> <p>Action by the Quanah, Acme & Pacific Railway Company against A. J. Cooper and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Ellis County Court; W. M. Tidwell, Judge.</p> <p>On motion for rehearing.</p>

Suit by Claud Garrett and others against the Commissioners’ Court of Limestone County and others. From a judgment of the Court of Civil Appeals (230 S. W. 1010) reversing a judgment for defendants and remanding the cause, defendants bring error.

Aetion by R. E. Peden, guardian of the estate of Tina Ellison, a minor, against P. O’Brien and the Southern Surety Company. A judgment for plaintiff was on the appeal of the surety company affirmed by the Court of Civil Appeals (223 S. W. 1114), and the surety company brings error.

<p>1. Adverse possession <©=> 114(2) — Evidence held to warrant finding that field of between 3 and 4 acres was cultivated for 5 consecutive years.</p> <p>In action involving ownership of 160-acre tract of land in which defendant claimed to have acquired title by adverse possession after taking possession under recorded warranty deed, evidence held to warrant finding that defendant’s tenant, who lived upon adjoining tract, cultivated a part of the tract in dispute, consisting of a field of between 3 and 4 acres, for 5 consecutive years, as against contention that the tenant merely cultivated a garden inclosed by a picket fence of not to exceed three-fourths of an acre.</p> <p>2. Adverse possession ¡@=5115(3) — Whether cultivation of 3 to 4 acres apprised owner of adverse claim to 160-acre tract held for jury.</p> <p>The inclosure of between 3 and 4 acres of land upon a 160-acre tract and the continuous cultivation of such inelosure for a period of 5 years is not, as a matter of law, an insufficient appropriation of the land to apprise owner of adverse claim; the question being for the jury.</p>

Suit between L. E. Freeman and others and Mrs. Geraldine Classen and others. ■Judgment for the latter was reversed, and judgment was rendered for the former by the Court of Civil Appeals (223 S. W. 300), and the latter bring error.

<p>Appeal from District Court, Grayson County ; Silas Hare, Judge.</p> <p>Suit by E. G. Coleman and others against Kate Easton. From the judgment, Kate Eas-ton appeals.</p>

<p>1. Constitutional law <&wkey;48 — Statutes presumed valid unless clearly unconstitutional.</p> <p>Every statute is presumed to be valid unless the contrary is clearly apparent, and every reasonable, intendment is indulged and every reasonable doubt resolved in favor of its validity.</p> <p>2. Constitutional law <&wkey;45 — Duty of court to declare statute invalid when clearly so.</p> <p>When- an act is clearly violative of either the spirit or letter of the Constitution, it is the highest duty of the courts to strike it down.</p> <p>3. Constitutional law <&wkey;>l7l — “Remedial statute” unconstitutional if effect is to unreasonably limit time to enforce obligation.</p> <p>Though the Legislature may enlarge, or restrict remedies on existing obligations, an act, though exclusively remedial, is invalid if a reasonable time is not allowed the parties to save existing rights, or under Const. U. S. art. 1, §. 10, and Const. Tex. art. 1, §§ 16, 19, against laws impairing contracts; “remedial statutes” being those prescribing or regulating the use of the courts for the enforcement of rights and obligations arising out of contracts.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Remedial Statute.]</p> <p>4. Constitutional law <§=>171 — Legislation affecting time of enforcement agreed on by parties to contract is unconstitutional as impairing obligation.</p> <p>Though parties to a contract have no vested rights in the form of action or other procedure for the enforcement thereof, or in the limitation of the time for commencing an action, they may choose any lawful means for the enforcement of their rights without resort to the courts, and expressly stipulate the period of time within which such means may be used, or, if the existing law limits the time within which such means may continue in force, such law becomes a part of the contract, the obligation of which is impaired by any subsequent legislation affecting the remedy thus provided.</p> <p>5. Constitutional law <©=>171 — Act prohibiting enforcement of power of sale in deed of trust after four years from maturity of contract impairs obligation of contract.</p> <p>Laws 1913, c. 123, §§ 1, 3 (Vernon’s Sayles’ Ann. Oiv. St. 1914, arts. 5693, 5695), prohibiting the enforcement of powers of sale in deeds of trust theretofore executed after four years from the maturity of the indebtedness, or, in case of notes executed subsequent to July 14, 1905, after four years after the act takes effect, is in violation of Const. U. S. art. 1, § 10, and Const. Tex. art. 1, §§ 16, 19, as impairing the obligation of an existing contract authorizing the trustee under a trust deed to sell the property “at any time” after the maturity of the indebtedness; the period being limited to 10 years by Laws 1905, c. 138, in effect at the time of the execution of the deed.</p> <p>6. Constitutional law <©=>171 — Act merely reducing period within which power of sale in deed of trust theretofore executed may be exercised held unconstitutional.</p> <p>Laws 1913, c. 123, §§ 1, 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6693, 5695), limiting the period within which a power of sale in a deed of trust may be enforced to four years after maturity of the indebtedness, or in the case of notes executed after July 14, 1905, to four years after the act takes effect, is unconstitutional as impairing the obligation of a deed of trust executed in May, 1911, while Laws 1905, c. 138, fixing 10 years was in effect, though the effect of the act was not to destroy the remedy agreed on by the parties, but to give them five years from the date of the maturity of the indebtedness in May, 1912, within which to exercise the power of sale.</p>

<p>1. Evidence <§=>361 — Admission of document printed in foreign language without translation held error.</p> <p>Admission in evidence of document printed in foreign language without a translation held error.</p> <p>2. Trial <§=>22 — Party who offers paper in foreign language in evidence must have it interpreted.</p> <p>When instrument written in foreign language is offered in evidence, it is the duty of the party offering the paper in evidence, and not that of the judge, to have the interpretation made.</p> <p>3. Appeal and error <§=>1054(1) — Judgment not reversed for incompetent testimony, where there is competent testimony sufficient to authorize judgment.</p> <p>Cause tried before the court will not be reversed because of incompetent testimony, where there is competent testimony sufficient to authorize the rendition of judgment.</p> <p>4. Appeal and error <§=>1054(1) — Admission of instrument in foreign language without interpretation held harmless.</p> <p>The admission of instrument in foreign language without interpretation, in action tried by court, held not ground for reversal, where court understood language and where the instrument was material only on the issue of damages and there was other evidence to sustain judgment with reference to amount of damages.</p> <p>5. Appeal and error <§=>I0I0(I) — Findings not disturbed where supported by positive evidence.</p> <p>Findings supported by positive evidence will not be disturbed on appeal.</p>

<p>Appeal from District Court, Bexar County; Robert W. B. Terrell, Judge.</p> <p>, Suit by Frank J. Miller and others against H. E. Dickinson and another. From a judgment denying a temporary injunction, plaintiffs appeal.</p>

<p>1. Abatement and revival <§=72( 10) —Successor and executors of Catholic Bishop properly substituted as plaintiffs in action on contract.</p> <p>Where a bishop holding land of the church in trust to him and his successors, conveyed it to a community of priests under contract for surrender and retransfer, the executors of the bishop and also his successor in office were properly substituted plaintiffs on his death in a suit for specific performance of contract to reconvey, though the successor was not a necessary plaintiff, under Rev. St. arts. 1886 and 1894; the church as beneficiary not complaining.</p> <p>2. Perpetuities <@=8(7) — Contract for retrans-fer, being one for charitable purposes, held not offending against rule denouncing perpe-tuities.</p> <p>Where bishop holding land for a church conveyed the same to a community of priests for school purposes subject to a certain in-cumbrance, a contract providing “that if at any time the said Community finds that it cannot open and maintain the said school the said Community shall surrender and retransfer the said property to the Catholic Church, * * * provided that the Catholic Church * * * refund to the Community * * * such portion of the original debt * * * as the said Community shall have paid,” was merely an option to repurchase, and not a conditional limitation upon the title conveyed, and authorized a possible creation of a future estate in the grantor beyond the life or lives of any persons in being, but the contract, being one for charitable uses, did not offend against the rule denouncing perpetuities, under Const, art. 1, § 26.</p> <p>3. Perpetuities <§=8(l) — Rule does not apply to gift of charity.</p> <p>The rule against perpetuities does not apply to a gift of charity with no intervening gift to or for the benefit of a private person or corporation, or to a contingent limitation from one charity to another.</p> <p>4. Religious societies <®=20 — Contract held to provide for retransfer of property for failure to continue to maintain school.</p> <p>Where land was conveyed by a church to a community of priests for the maintenance of a school, and the contract provided that if at any time the Community should find that it could not open and maintain the school it should surrender and retransfer the property, provided that .the church should refund any portion of the incumbrance paid by the Community, there was no performance by the grantee, where it opened a school and maintained it for 15 years and then closed the school, and the church was entitled to a reconveyance.</p> <p>5. Religious societies <§=20 — Consent By-church to sale of land by grantee held not-waiver of right to damages for grantee not: conducting school as agreed.</p> <p>Where a church conveyed property to a community of priests under a contract that it should be retransferred if grantee did not open and continue to maintain a boys’ school in the city, consent by the church to a sale of' such land by the grantee did not estop the church from maintaining suit for damages on the contract when the grantee ceased maintaining a school, where grantee at the time of the sale was maintaining the school on other property, and did not cease maintaining it until later, as breach of the contract did not occur until the school was finally closed, and no cause of action arose until then.</p> <p>6. Judgment <§=250 — Plaintiff suing on contract cannot recover on different contract set up by defendant.</p> <p>Plaintiff, suing on one contract, cannot recover upon a different contract set up by defendant in the pleadings as the true contract, unless plaintiff’s pleadings fairly embrace the-contract set up by defendant.</p> <p>7. Associations <§=20(1) — Personal judgment not rendered against voluntary associations.</p> <p>A voluntary association of priests main-I tabling schools cannot be sued and a personal judgment rendered against it, but such, an association may be bound where the plaintiff is entitled in equity to subject the general property, or some particular property of the association, to his claim, 'by virtue of an equitable lien or some character of trust.</p> <p>8. Religious societies <§=25 — Church held not to have lien on property of community of priests maintaining schools.</p> <p>In an action by a Catholic Church against a community of priests maintaining schools to recover damages for breach of a contract to-maintain a school, evidence held not to authorize a finding that plaintiff was entitled in equity to subject property of the defendant to its claim by virtue of an equitable lien or trust.</p> <p>9. Associations <®=20(1) — May be had against association.</p> <p>A judgment against an assóciation for a fixed sum of money awarding an execution was authorized by Rev. St. art. 6149.</p>

<p>1. Appeal and error <@=1001 (I) — Where evidence justified verdict, duty of appellate court to affirm.</p> <p>Where, in a boundary suit, the evidence amply justified the verdict, and there is nothing to indicate that the jury was influenced by improper considerations, it is the duty of the appellate court to sustain the verdict.</p> <p>2. Trial <&wkey;295(5) — Instruction, when considered with charge as a whole, held not erroneous, in that jury were not told to follow footsteps of surveyors.</p> <p>1 In a boundary suit, an instruction that the jury in constructing the survey should go where the surveyor went, as shown by the evidence of lines actually established and corners marked as found on the ground, and, if it could not do so, then determine the question from the calls in the field notes according to the general rules then laid down, was not erroneous, in that primary duty of jury was to follow footsteps of surveyor, when considered with the charge as a whole.</p> <p>3. Trial <©=>194( 10) — Instruction on relative importance of calls not objectionable in boundary cases as upon weight of evidence.</p> <p>Instruction as to the rules given for determining the relative importance and dignity of calls, while, in a sense, upon the weight of evidence, constitutes no valid objection in boundary cases.</p> <p>4. Trial @=262— Plaintiffs not entitled to charge inconsistent with charge requested and given.</p> <p>In a boundary suit, where the court’s main charge laid down the rules to be observed, giving to each its proper rank and weight, but that the jury should adopt that rule in locating the boundaries which to their satisfaction most clearly indicated where the land had been located by the surveyor, and then gave requested instruction that substantially represented plaintiffs’ theory, plaintiffs were not entitled to a charge inconsistent with the one given.</p> <p>5. Trial &wkey;>244(2) — Instruction held not to unduly emphasize burden of proof on plaintiff.</p> <p>In ' a boundary suit, an instruction that the burden was on the plaintiffs to show that the land claimed by defendants was not embraced within the boundaries of the land patented to E., and in the concluding portion stating this rule was in effect and telling the jury that, having been already charged that the burden of proof was on plaintiffs, they should proceed to test the proof on certain rules announced in the same paragraph, was not objectionable as unduly emphasizing the burden of proof to be on plaintiffs.</p>

<p>Election of remedies (I) — Mandamus to compel county to pay amount due under revoked accord without satisfaction did not bar proceeding to compel payment of amount originally claimed.</p> <p>Where there was a dispute between the commissioners’ court and contractors as to amount due contractors, and where commissioners’ court ordered certain sum paid in full settlement of the. claim as balance due them and directed clerk of court to issue warrants for such amount, contractors’ unsuccessful proceeding in mandamus to compel payment of such amount on county’s refusal tó issue warrants and revocation of the agreement did not preclude them from subsequently compelling county, by mandamus, to pay the amount originally claimed due, since in such case there was merely an unexecuted accord without satisfaction, unenforceable because revoked.</p>

<p>Appeal from District Court, Lynn County; W. Tt. Spencer, Judge.</p> <p>Action by J. W. Elliott and others against the C. C. Slaughter Company. Judgment/for defendant, and plaintiffs appeal.-</p>

H. Burney, Judge. Trespass to try title by G. D. Montgomery and another against B. P. O’Bryant and another. Prom judgment for plaintiffs, defendants appeal.

Error from Cherokee County Court; C. E. Gibson, Judge. Suit by D. T. Applewhite against A. D. Silvey, in which defendant sued in reconvention. Judgment for plaintiff for only the amount defendant admitted to be due, and for defendant on his plea in reconvention, and plaintiff brings error.

<p>Appeal from Criminal District Court, Tarrant County; Geo. E. Hosey, Judge.</p> <p>B. H. Dilby was convicted of theft of property, and he appeals.</p>

<p>Appeal from Harrison County Court; W. H. Strength, Judge. Suit by John Saunders against C. E. Schaff, Receiver. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Karnes County; Covey C. Thomas, Judge. Suit by L. F. Karnstadt against Mrs. C. NieMe. From an order dissolving an injunction, plaintiff appeals.</p>

<p>Appeal from District Court, Tarrant County; W. T. Simmons, Judge. On hearing after remand from the Supreme Court, with answers to certified questions. 234 S. W. 387.</p>