Volume 151 — South Western Reporter

<p>Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.</p> <p>Louis Quentes was convicted of burglary, and he appeals.</p>

<p>Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.</p> <p>Beulah Mayfield was convicted of crime, and appeals.</p>

<p>1. Appeal and Error (§ 742*) — Assignments op ERROR— Statements.</p> <p>An assignment of error, not followed by a statement, will not be considered, though there is a reference to the record for a bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>2. Insurance (§ 818*) — Fraternal Insurance — Actions — Evidence — Admissibility.</p> <p>In an action against a negro fraternal organization on a benefit ¿certificate, payable to the deceased member’s wife and father, a letter written after the member’s death, notifying the wife of her expulsion because of her disregard of the laws of the order and her application to the white courts concerning her husband’s death, was inadmissible; the issue being whether the member at his death was a member in good standing.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 2003-2005; Dec. Dig. § 818.*]</p> <p>3. Insurance (§ 815*) — Fraternal Insurance — Actions—Evidence.</p> <p>Where the petition in an action on a certificate issued by a fraternal organization alleged that decedent was a member of a subordinate temple, it was error to introduce in evidence the financial card of another temple.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1996-1998; Dec. Dig. § 815.*]</p> <p>4. Insurance (§ 747*) — Fraternal Insurance-Good Standing op Member at Time op Death.</p> <p>Where a fraternal benefit certificate was made payable on condition of the member’s good standing in his subordinate temple, and the evidence showed that decedent was not in good standing in the only temple to which he belonged, or could belong, at the time of his death, there could be no recovery on the certificate, merely because he sent money by some one not authorized to handle money to the -grand body of the order.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1892; Dec. Dig. § 747.*]</p>

<p>Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.</p> <p>Action by Joe C. Kerbey and others against Charles Peterson and another. Judgment ' for plaintiffs, and defendants appeal.</p>

<p>Contbacts (§ 176*) — Construction — Evidence — Question for Jury.</p> <p>In an-aetion to recover defendant’s portion of certain expenses for the advertising of certain farm lands because of defendant’s alleged failure to procure for plaintiff an option extending a prior contract of sale, evidence held to require submission to the jury of the question whether a provision in the agreement to procure the extension, that it should be sufficient to protect plaintiff in the full exercise and enjoyment of the original contract and its terms, required defendant to obtain proper agreements and releases from the holders of superior liens against the land so that a merchantable title thereto could be conveyed.</p> <p>(Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 767-770, 917, 956, 979, 1041, 1697, 1825; Dec. Dig. § 176.*]</p>

Error from District Court, Cameron County; John O. Scott, Judge. Trespass to try title by C. H. Maris, trustee in bankruptcy of the Brownsville Lumber & Manufacturing Company, against the National Lumber & Creosoting Company. Judgment for plaintiff, and defendant brings error.

<p>Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.</p> <p>Suit by E. C. Gamble against George B. Martin and others. Judgment for defendants, and plaintiff appeals.</p>

A. Turner, Judge. Action by Luck Lee against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Appellee owns a plantation of about 500 acres in Bowie county, which the appellant’s line of railroad enters on the east, running through in a southwesterly direction to the west side. The conclusion is reasonably warranted that appellee cleared and inclosed the land after the railway was built.

Goodwin, Judge. Action between Mrs. M. E. Powell and W. H. Stephens and others. Judgment for Stephens and others, and Mrs. Powell appeals. Opinion on appellees’ motion to strike brief of appellant.

<p>Appeal from District Court, El Paso County; J. R. Harper, Judge.</p> <p>Action by Mrs. Annie Hays Harris against J. H. Nations and another. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Judgment (§ 138*) — Setting Aside Default — Diligence—Pbocuring Counsel.</p> <p>A nonresident defendant, who, though knowing for some time that he was without counsel in an action, did not attempt to engage counsel until a few days before the beginning of the term at which the case was to be tried, did not exercise sufficient diligence to warrant the setting aside of his default because he was unrepresented by counsel.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§, 249-251, 254; Dec. Dig. § 138.*}</p> <p>2. Judgment (§ 145*) — Vacation oe Defaults.</p> <p>A default judgment will not be vacated, on the ground that defendant was not represented by counsel, where it appears that, had he been represented by counsel, the result could not have been changed.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 271, 292-295; Dec. Dig. § 145.*]</p> <p>3. Judgment (§ 138*) — 'Vacation—Defaults —Obtaining Testimony.</p> <p>Where a nonresident defendant knew, at least a month before the trial of an action, that he could not be present, and that his defense could alone be made by his testimony, his failure to have his deposition taken was such a lack of diligence that' a default will not be set aside to allow him to present his defense.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 249-251, 264; Dec. Dig. § 138.*]</p> <p>4. Judgment (§ 158*)—Vacation-tDefaults —Meritorious Defense.</p> <p>A motion to set aside a default must he denied, where the allegation of a meritorious defense is not supported by affidavit.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 311; Dec. Dig. §, 158.*]</p>

<p>Appeal and Error (§ 621*) — Filing of Transcript—1Time.</p> <p>A transcript upon writ of error cannot be filed after the filing of a motion to affirm on certificate; the appeal having been perfected upon the filing of an appeal bond.</p> <p>[E.d.P Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2724-2731; Dec. Dig. § 621.*]</p>

T. Lyttleton, Judge. - . Action by W. L. Myers and wife against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals. On the. afternoon of April 9, 1908, .Charley Myers was struck and instantly killed by one oí the appellant’s freight locomotives. He was a member, of a regular bridge gang in the service of- the .appellant that were working on the bridges north of Woodlawn.

<p>1. Landlobd and Tenant (§ 76*) — Right to Assign ok Sublet.</p> <p>Where a lease provided that the premises should be used for mercantile purposes and not otherwise, and that the lessee should not assign or underlet the premises or any part thereof, without the consent of the lessor in writing, the lessee had no right without the consent of the lessor to permit a third person to place signboards on the roof, especially as Rev. St. 1895, art. 3250, expressly provides that lessees shall not rent or lease the leased premises during the term to any other person without the consent of the landlord, his agent or attorney.</p> <p>[Ed. Note. — Por other cases, see Landlord and Tenant, Cent. Dig. §§ 225-230; Dec. Dig. § 76.*]</p> <p>2. Landlobd and Tenant (§ 123*) — Extent of Premises Leased.</p> <p>Where an owner of a one-story bpilding containing several rooms leases them to different tenants, each lessee has merely an easement in the roof for the purpose of protection from the weather and has no control over it.</p> <p>,[Ed. Note. — Por other cases, see Landlord and Tenant, Cent. Dig. §§ 435, 436; Dec. Dig. § 123.*]</p> <p>3. Landlord and Tenant (§ 76*) — Rent-Payment — Operation and Effect.</p> <p>An owner of a one-story building containing several rooms, who leased them to different tenants, was not estopped by the acceptance of the rent from compelling a removal of signboards erected on the roof by a third person with the consent of the lessees; such consent not being a subletting, but an attempt to rent the property of another without authority.</p> <p>[Ed. Note. — Por other cases, see Landlord and Tenant, Cent. Dig. §§ 225-230; Dee. Dig. . § 76.*]</p>

M. Allison, Judge. Action by J. J. Ingram against R. C. McClure and another. Prom a judgment of the county court granting insufficient relief to plaintiff, on defendant bringing the case from justice’s court to the county court by cer-tiorari and giving the statutory bond, he appeals.

Kittrell, Judge. Action by the ¡Layne & Bowler Company against Anson Miller and others, in which defendants pleaded set-off. From a judgment for plaintiff, defendants appeal.

E. White, Judge. Action by James Cofield and another against the Supreme Camp of American Woodmen. There was a judgment for plaintiffs, and they bring error.

T. Lyttleton, Judge. Action by the Keasler Lumber Company against Chesley Clark, who filed a petition to compel T. J.’ Johnson, a constable, to accept a replevin bond, and deliver the property to defendant. From a judgment granting relief on the petition, plaintiff and the constable appeal.

J. White, Judge. Action by G. T. Cook and another against F. T. Ramsey & Son, begun in justice court. There was a judgment for plaintiffs, and on defendants’ appeal to the county court judgment was again rendered for plaintiffs, and defendants appeal.

<p>Appeal from District Court, Atascosa County; E. A. Stevens, Judge.</p> <p>Action by George Allen against W. M. Ab-ernethy arid others. From a judgment granting partial relief, plaintiff appeals.</p>

<p>1. CARRIERS (§ 345*) — Carriage of Passengers — Injury to Passenger — Evidence-Prior or Habitual Drunkenness.</p> <p>Though, in an action for injuries to a passenger on a railroad train, alleged to have been caused by the sudden starting of the train when he was preparing to leave it, the question of the plaintiff’s sobriety at the time of the alleged injury was in issue, testimony of prior or habitual drunkenness was improperly-admitted, as such testimony could in no manner prove or disprove that drunkenness did. or did not contribute to the injury on the day in question.</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. § 1400; Dec. Dig. § 345.*]</p> <p>2. Witnesses (§ 414*) — Evidence—Admissibility — Corroboration.</p> <p>Where, in an action for injuries to a passenger, the testimony of‘the plaintiff as to how the accident was caused was impeached by evidence of statements made by him after the injury', tending to show that he himself was the cause of the accident, evidence of other state-' ments after the injury, offered in behalf of the plaintiff, should have been admitted in corroboration of the impeached testimony.</p> <p>XEd. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.*]</p> <p>3. Witnesses (§ 287*) — Rebuttal Testimony —Explaining Inconsistencies.</p> <p>Where the testimony of plaintiff had been impeached by the witnesses for the defendant, a refusal to permit him, on rebuttal, to testify to any fact tending to explain any conflicts in the testimony was improper.</p> <p>[Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 930, 1000-1002; Dec. Dig. § 287.*]</p>

<p>1. Libel and Slander (§ 38*)—Privileged Communications — Absolute Privilege — Attorney.</p> <p>Questions asked by an attorney of a party while testifying as a witness are absolutely privileged, and cannot be made the basis of an action for slander, though otherwise actionable.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 117-123; Dec. Dig. § 38.*]</p> <p>2. Courts (§ 42*)—Creation—Constitution-ality of Statute.</p> <p>Acts 30th Leg. c. 5, creating and constituting Dallas county the Fourteenth, Forty-Fourth, and Sixty-Eighth judicial districts, are not unconstitutional, on the ground that more than one district court with concurrent jurisdiction for Dallas county cannot exist.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 1G3-170, 181-183; Dec. Dig. § 42.*]</p>

Action by J. T. Rankin, executor, against L. A. Rankin and others. There was a judgment of the Court of Civil Appeals (134 S. W. 392) affirming a judgment for plaintiff, and defendants bring error.

<p>1. Incest (§ 14*)—Evidence—Sufficiency.</p> <p>Where accused, charged with incest with his stepdaughter, had been married prior to his marriage to the mother, of prosecutrix, the state should clearly show that at the time of the second marriage his first wife was dead, or that the first marriage had been annulled.</p> <p>[Ed. Note.—For other eases, see Incest,- Cent. Dig. § 12; Dec. Dig. § 14.*]</p> <p>2. Criminal Law (§ 600*)—Continuance-Absence of Witnesses—Admission by State.</p> <p>The state, to avoid a continuance on the ground of the absence of a witness for accused, must admit, not only that the absent witness would, if present, testify as stated, but must admit that the testimony is true.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1342-1347, 1604; Dec. Dig. § 600.*]</p> <p>3. Criminad Law (§ 507*)—Accomplice—Ev-idence— Corroboration.</p> <p>Where, on a trial for incest, prosecutrix testified that she submitted through fear, but the evidence disclosed that the relations had existed for more than three years, and that she had voluntarily taken trips to other counties with accused, and had occupied the same room with him at hotels, without making any outcry, she was an accomplice, as a matter of law, and, to support a conviction, her testimony must be corroborated in a way tending to connect accused with the offense on the occasion alleged.</p> <p>[Ed. Note.—For other cases, see -Criminal Law, Cent. Dig. §§ 1082-1096, 1098; Dec. Dig. § 507.*]</p>

<p>Appeal from District Court, Smith County; R. W. Simpson, Judge.</p> <p>Tom Tate was convicted of murder in the first degree, and he appeals.</p>

<p>Appeal from Red River County Court; George Morrison, Judge.</p> <p>Sam Kincaid was convicted of crime, and he appeals.</p>

<p>Criminal Law (§ 1097*) — Appeal—Affirmance-Necessity of Bilis of Exception-Statement of Facts.</p> <p>Where the motion for a new trial raised questions which could only be considered in connection with bills of exception or statement of facts, the conviction must be affirmed in the absence of such instruments.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S62, 2804, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.*]</p>

<p>Appeal from Harrison County Court,; Geo. L. Huffman, Judge.</p> <p>Roy Williams was convicted of crime, and he appeals.</p>

<p>Appeal from Collin County Court; H. L. Davis, Judge.</p> <p>R. C. Fisher was convicted of aggravated assault and battery, and he appeals.</p>

<p>Appeal from .Wood County Court; R. W. Simpson, Judge.</p> <p>Suit by Sam Paschal against Hugh Inman. From a judgment dissolving a temporary injunction, plaintiff appeals.</p>

<p>Appeal from Bexar County Court; Geo. W. Huntress, Judge.</p> <p>Action between W. Robbie and James V. Upson. From a judgment for Upson, Robbie appeals. On motion to dismiss appeal.</p>

B. Muse, Judge. Action by Luke Lanza, administrator, against J. M. Roe, administrator, and another, in which McDougal, Cameron & Webster intervened. From a judgment dismissing petition, plaintiff appealed.

<p>1. Brokers (§ 39*) — Commission—Liability op Principal — Purchaser Procured by Subagent.</p> <p>Where an owner employed a real estate broker to sell his land at a certain price for an agreed commission, and the broker listed the same with another broker, who procured a purchaser whom he caused to inspect the land and enter into negotiations with the owner, the owner was liable to his agent for the agreed commission upon a sale being made to the purchaser, where he knew at the time of the sale that such subagent had written the purchaser about the land.</p> <p>(Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 37, 42, 64; Dec. Dig. § 39;* Judgment, Cent. Dig. § 1234.]</p> <p>2. Brokers (§ 56*) — Commission—Liability op Principal.</p> <p>An owner is liable for the commission on a sale of land to a purchaser procured by his broker, though he does not know that the purchaser was so procured, and makes the sale himself.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 85-89; Dec. Dig. § 56.*]</p> <p>3. PRINCIPAL AND AGENT (§ 17*) — AGENT’S Authority—Employment op Subagents.</p> <p>The rule that an agent cannot employ a subagent since the trust committed to him is personal, and cannot be delegated, does not prohibit an agent from employing others to perform a service involving no discretion or exercise of judgment.</p> <p>[Ed. Note.—For other cases, see Principal •and Agent, Cent. Dig. § 35; Dec. Dig. § 17.*]</p> <p>4. Brokers (§ 57*)—Right to Commission-Deed.</p> <p>The fact that the deed was made jointly to the purchaser procured and to a third party did not deprive the broker of his right to a commission where the original written contract of sale was between the principal and the purchaser procured by the broker.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72; Dec. Dig. § 57.*]</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by Ida Mae Orsborn against the Express Publishing Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Negligence (§ 27*) — Dangerous Substances — Liability oe Manufacturer.</p> <p>The liability of a manufacturer of soap for injuries to a consumer from poisonous substances therein does not rest upon contract or privity, but arises from its duty to avoid acts dangerous to the lives and persons of others, and hence a person injured may recover, although there is no contract or privity between him and the manufacturer.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 25; Dec. Dig. § 27.*]</p> <p>2. Negligence (§ 27*) — Actions—Sufficiency oe Evidence.</p> <p>Where a manufacturer of soap knowing that poisonous and injurious substances, were necessary in its preparation, and that, if not neutralized in manufacturing, injury was liable, to result from its use, placed it upon the market and injury resulted from its use, these facts sufficiently showed failure to use care in its manufacture to render it liable.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 25; Dec. Dig. § 27.*]</p> <p>3. Negligence (§ 66*) — Contributory Negligence-Anticipated Dangers.</p> <p>, A purchaser of soap is not required to test it for poisonous substances, but, where he is ignorant of defects .therein, may assume that it is fit for use.</p> <p>[Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 86-89; Dec. Dig. § 66.*]</p> <p>4. Trial (§, 41*) — Separation and Exclusion oe Witnesses.</p> <p>It is within the trial court’s discretion to permit particular witnesses to remain in the courtroom where the rule is invoked.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 101-105; Dec. Dig. § 41.*]</p> <p>5. Trial (§ 41*) — Separation and Exclu- . sion oe Witnesses.</p> <p>In a husband’s action for injuries to his wife in which the rule was invoked, the court did not abuse its discretion in permitting both the husband and wife to remain in the courtroom; the husband being a party, and his wife having a substantial interest in the action.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 101-105; Dec. Dig. §, 41.*]</p> <p>6. Trial (§ 263*) — Instructions—Form.</p> <p>It was not error for the court, after stating the case, and giving some principles of law applicable thereto, to give such special charges prepared by the parties as were applicable.</p> <p>[Ed. Note. — For other cases, eee Trial, Cent. Dig. §§ 662, 663; Dec. Dig. § 263.*]</p> <p>7. Evidence (§ 199*) — Demonstrative Evidence — Experiments and Tests.</p> <p>In an action against a manufacturer of soap for injuries, where there was testimony that a poisonous substance was discovered therein causing it to effervesce when vinegar was poured thereon, it was not error to permit plaintiff to test the soa.p by pouring vinegar over it in the presence of the jury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 683; Dec. Dig. § 199.*]</p> <p>8. Appeal and Error (§ 1033*) — Harmless Error — Error Favorable to Appellant.</p> <p>If it was error to permit such experiment it was not prejudicial to defendant where no effervescence was produced by such test.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*]</p> <p>9. New Trial (§, 52*) — Conduct and Deliberations oe Jury — Manner oe Arriving at Verdict.</p> <p>A new trial because the jurors set down the amount of damages each thought proper and divided the aggregate by twelve, was properly denied where it appeared that there was no prior agreement that the quotient should constitute their verdict and it did not appear that such quotient was the amount finally returned.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 101-105; Dec. Dig. § 52.*]</p> <p>10. Appeal and Error (§ 757*) — Briefs— Contents.</p> <p>Assignments of error complaining' of the refusal of special charges will not be considered, where the charges are not copied in appellant’s brief, nor reference made to the page of the record where they can be found.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*]</p>

<p>1. Railroads (§ 121*) — Competing ob Parallel Lines.</p> <p>The Missouri, Oklahoma & Gulf Railway Company, which runs substantially north from lOenison, Tex., to Waggoner, Okl., was not a competing or parallel line, within Rev. St. 1895, art. 4529, prohibiting the leasing of one of such fines by the other, to the Denison, Bonham & New Orleans Railway Company.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 381-385; Dec. Dig. § 121.*]</p> <p>2. Railroads (S 82*) —Forfeiture of Charter — Eminent Domain.</p> <p>The forfeiture of its charter by a railroad for failure to construct its road within the time required by law did not cause the right of way to revert to the original owner, but such easement remained subject to the provisions of Rev. St. 1895, art. 4473, which provides, in case of forfeiture of a railroad charter, its right of- way shall remain subject to an extension of the charter, or the grant of a new charter over the same way without a new consideration, and it makes no difference whether the right of way is acquired directly from the owner of the fee or by condemnation.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 213-219; Dec. Dig. § 82.*]</p> <p>3. Railroads (§ 82*) — Right of Way — Use by Abutting Owner — Effect.</p> <p>In the absence of proof of the adverse use of a right of way by the abutting owner, the easement for the road will not be destroyed.</p> <p>LEd. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 213-219; Dec. Dig. § 82.*]</p> <p>4. Railroads (§ 82*) — Right of Way — Abandonment.</p> <p>A railroad which obtained a right of way, graded it, paid taxes on it, and never ceased trying to use it for railroad purposes, and finally succeeded in putting it to such use, cannot be held to have abandoned it; although when the way was first graded the company put gates in each fence, and the abutting owners remained in possession.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 213-219; Deo. Dig. § 82.*]</p>

<p>1. Negligence (§ 136*) —-Evidence — Question for Court or Jury.</p> <p>The question of negligence is one of law only, when from the undisputed facts no inference except that of negligence can reasonably be drawn, or when unprejudiced minds cannot reasonably disagree-as to the facts.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]</p> <p>2. Master and Servant (§ 289*) — Injury to Servant — Contributory Negligence — Question for Jury.</p> <p>Whether a brakeman stumbled over a clinker while walking by a moving ear, or whether he recklessly placed his foot on the coupler of a car, or of an engine and was thereby injured, held, under the evidence, for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1689-1132; Dec. Dig. § 289.*]</p> <p>3. Trial ($ 260*) —Instructions — Refusal to Give Instructions Covered by Charge Given.</p> <p>Where, in an action for injuries to a brakeman, the issue was whether he stumbled over a clinker while walking by a moving car in railroad yards, or whether he recklessly placed his foot on the coupler of a car or of the engine, and the, court charged that if in undertaking to make the coupling he voluntarily placed his foot on the coupling apparatus, and thereby received the injury complained of, or if he received his injury in any manner except as alleged in the petition,' the verdict must be against him, the refusal to charge that if he. placed his foot on the car, or engine and was injured in so doing, the verdict must be against him, without considering any other issue, was not erroneous.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>4. Master and Servant (§ 204*) — Injury to Servant — Assumption of Risk.</p> <p>Under Acts 29th Leg. c. 163, providing that, in an action against a railroad for injury of an employé, the plea of assumed risk, where the ground of the plea is knowledge of the danger causing the injury, shall not be available where the employer or superior of the employé knew of the defect, or where a person of ordinary care would have continued in the service with knowledge, of the defect, etc., a brakeman who knew that clinkers and rocks were scattered over a railroad yard and along the tracks, and that such condition rendered it dangerous to make couplings in the ordinary manner, did not assume the risk of injury by stumbling over a clinker while walking by a moving car, where the yardmaster, whose duty it was to keep the track clean, knew that rocks and clinkers were scattered over the yard and along the track, and that such condition rendered it dangerous for employés, and where it could reasonably be inferred that a person of ordinary care would have continued in the service, notwithstanding knowledge of the danger.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. § 204.*]</p> <p>5. Master and Servant (§ 240*) — Injury to Servant — Contributory Negligence.</p> <p>Where a brakeman injured by stumbling over a clinker while walking by a moving car to couple it with an engine attempted to perform his duty in the usual manner, and the car was moving slowly, a recovery could not be defeated on the ground that he chose a dangerous way, though he might have walked in the center space between the tracks, or over on another track.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 751-756; Dec. Dig. & 240.*]</p> <p>6. Trial (§ 295*) — Instructions—Proximate Cause.</p> <p>Where, in an action for injuries to a brakeman stumbling over a clinker while walking by a moving car in a railroad yard to couple the car to an engine, the court defined proximate cause as. one which in a natural and continuous sequence produces an event, and that, to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable sequence of the negligence, etc., an instruction that if the brakeman while walking struck a clinker, and thereby stumbled and fell, and sustained the injury complained of, he, could recover, was not erroneous for failing to state that the negligence of the railroad company must have been the proximate cause of the injury, as all parts of instructions must be considered together in determining their meaning.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]</p> <p>7. Trial (§ 191*) — Instructions—Assumption of Fact,</p> <p>An instruction requested by a party which assumes a fact denied by the adverse party is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*]</p> <p>8. Trial (§,253*) — Injuries to Servant — Instructions — Ignoring Issues.</p> <p>An instruction in an action for injuries to a railroad employé which ignores Acts 31st Leg. (1st Ex. Sess.) c. 10, providing that the fact that an employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employé, is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>9. Master and Servant (§ 228*) — Contributory Negligence — Statutory Provisions.</p> <p>Acts 31st Leg. (1st Ex. Sess.) e. 10, providing that the fact that the employé suing for a personal injury was guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished in proportion to the amount of negligence attributable to him, makes employers responsible for injuries to their employés incurred by reason of the negligence of the employers, and sufficiently punishes an employé for his negligence by diminishing the amount of damages which he would otherwise be entitled to recover, and, so construed, the statute is valid.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. § 228.*]</p>

J. White, Judge. Action for trial of right of property by H. E. Jones and others, plaintiffs, against J. A. Lawrence, claimant. From a judgment of the county court for claimant on appeal from a justice court, plaintiffs appeal.

<p>Appeal from District Court, Dallas County; Kenneth Eoree, Judge.</p> <p>Action by Alex Rutlin against the Trinity Oil Company. From a judgment for defendant, plaintiff appeals.</p>

S. Kinder, Judge. Action by C. S. Seiber against A. M. Newman and another. From a judgment in favor of one defendant and for plaintiff against another defendant, plaintiff appeals.

N. Browning, Judge. Action by Halys Wininger, by her next friend, E. H. Wininger, against the Fort Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, and, from a judgment of reversal therein, plaintiff brought error to the Supreme Court.

M. Smithdeal, Judge. Action hy E. J. Rice against J. C. Lever-ette, with cross-action by defendant.’ Prom a judgment dismissing the entire action, defendant appeals.

<p>1. Appeal and Ebboe (§ 100*) — Appealable Oedees — Refusal to Dissolve Tempoeaey Injunction.</p> <p>Under Acts 31st Leg. c. 34, amending Acts 30th Leg. c. 107, authorizing an appeal from an order granting, refusing, or dissolving a temporary injunction, no right of appeal lies from an order refusing to dissolve such an injunction.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 670-680; Dec. Dig. § 100.*]</p> <p>2. Appeal and Eeeoe (§ 621*) — Reseevatton op Geounds — Cebtipication—Time.</p> <p>An appeal from an order granting a temporary injunction cannot be considered, where the transcript was not filed in the Court of Civil Appeals within 15 days from the entry of record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2724-2731; Dec. Dig. § 621.*]</p>

<p>1. Partition (§ 78*) — Proceedings to Make Actual Partition — Division by Value.</p> <p>Under Rev. Civ. St. 1911, art. 6108, requiring the court, before entering a decree of partition, to determine whether the property or any part is susceptible of partition, and, if so, to appoint commissioners to make such partition, the duty of dividing the land as to value is confided to the commissioners, and they may divide it according to value, although the court determines that each of the parties is entitled to one-half.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 265-273; Dec. Dig. § 78.*]¡ .</p> <p>2. Partition (§ 91*) — Proceedings to Make Actual Partition — Division by Value.</p> <p>In a partition suit, the court did not err in appointing new commissioners and surveyor to make partition, when those first appointed failed or refused to act.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 225-264; Dee. Dig. § 91.*]</p> <p>3. Partition (§ 91*) — Proceedings to Make Actual Partition — Division by Value.</p> <p>A motion in a partition suit for the appointment of a surveyor and commissioners to make partition, alleging that the court awarded a writ of partition, and that the commissioners and surveyor appointed had failed and refused to carry out their duties, was sufficient, although it did not state that a writ of partition, accompanied by a certified copy of the decree, was ever issued to the sheriff.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 225-264; Dec. Dig. § 91.*]</p>

<p>Appeal from District Court, Lubbock County; W. R. Spencer, Judge.</p> <p>Action by O. C. Belt against Jim Robinson, Jr., and another. From a judgment for plaintiff, defendant named appeals.</p>

<p>Appeal from District Court, Hill County; C. M. Smithdeal, Judge.</p> <p>Action by J. T. Johnson and others against Horton B. Porter and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Teial (§ 191*) — Instructions — Instructions Assuming Pacts.</p> <p>Rev. St. 1911, art. 1971, directs that the trial court shall submit all issues of fact to the jury. In an action for conversion, where the evidence was conflicting whether plaintiff tendered the proper amount due under an agreement by which defendant had possession of the property, a special instruction that if, when plaintiff tendered defendant $40, the defendant had already converted the property, so that he could not return it, plaintiff was entitled to recover, was erroneous as withdrawing from the jury the issue whether plaintiff had tendered the amount required by the agreement.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 420-431, 436; Dec. Dig. § 191.*]</p> <p>2. Trial (§ 191*) — Instructions—Assuming Pacts.</p> <p>In an action of conversion, where the evidence whether defendant, prior to plaintiff’s tender, had sold all or some of the property was conflicting, a charge that if defendant, at the time of such tender, had sold or converted the property and could not by reason- of his acts return it, plaintiff was entitled to damages, was erroneous in that it assumed that defendant “by reason of his acts” was liable for all the property in the event he had sold any part of it, although the amount tendered was insufficient.</p> <p>[Ed. Note. — Por other case, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*]</p> <p>3. Bailment (§ 16*) — Conversion bt Bailee.</p> <p>Where defendant was in lawful possession of property and entitled to hold it until a certain payment was made by plaintiff, there could be no conversion until the correct amount was tendered and paid.</p> <p>[Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 67-74; Dec. Dig. § 16.*]</p> <p>4. Trover and Conversion (§ 34*) — Pleading — Issues, Proof, and Variance.</p> <p>Where the petition in an action for conversion charged that plaintiff was the owner of the property, and that the defendant on or about May 10, 1909, unlawfully converted it to his own use, proof of conversion. in June, 1910, or August, 1910, was a fatal variance.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 207-214; Dec. Dig. § 34.*]</p> <p>5. Pleading (§ 162*) — Supplemental Petition-Purpose.</p> <p>The only purpose of a supplemental petition is to allege new facts in reply to those alleged by the defendant in his pleading.</p> <p>[Ed. Note. — For other case, see Pleading, Dec. Dig. § 162.*]</p> <p>6. Pleading (§ 162*) — Amended Petition-Purpose.</p> <p>The purpose of an amendment to a petition is to add something or to withdraw something from what has been properly pleaded, so as to remedy a defect or correct an erroneous statement; and, where plaintiff intended to correct the date of an alleged conversion, it should have been done by amendment of his original petition and not by supplemental petition.</p> <p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 162.*]</p>

L. Jones, Judge. Action by the A. A. Fielder Lumber Company against Nellie Snyder Smith and others. From a judgment against Nellie Smith and her husband declaring priorities against a certain fund, the Fielder Lumber Company and others appeal.

J. Isaacs, Judge. Action by E. C. Good against the Texas & Pacific Railway Company and others. Judgment for plaintiff against two óf defendants, and they appeal.

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Action! by W. H. Daimwood against R. Driscoll and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Midland County; S. J. Isaacs, Judge.</p> <p>Trespass to try title by Ed Eriksen against S. D. McWhorter. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Taylor County Court; T. A. Bledsoe, Judge.</p> <p>Action by W. P. Thurmond against W. J. Standard, judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.</p> <p>Action by J. H. Guitar against O. P. Harlan and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Easements (§ 1*) — Ways—Manner oe Acquisition.</p> <p>An easement of way can only be acquired by express grant or by implied grant as a way of necessity or by prescription or limitation.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 1, 2, 5-7; Dec. Dig. § 1.*]</p> <p>2. Easements (§ 36*) — 'Ways—Establishment — Burden oe Proof.</p> <p>'One claiming an easement of way without any express grant must establish all of the necessary facts by which the right may be presumed, such as peaceable possession, exclusive, continued, and adverse to the owner, and a failure of proof of any of such facts is fatal to his rights.</p> <p>[Ed. Note. — Eor other cases, see Easements, Cent. Dig. §§ 77, 78, 88-93; Dec. Dig. § 36.*]</p> <p>3. Easements (§ 18*) — Ways—Ways of Ne~ ' CESSITY.</p> <p>A way of necessity arises where a grantor conveys land not having any outlet save over the remaining land of the grantor, and, where land may be reached by roadways, there can be no way of necessity, since there can be no way of necessity unless there is an absolute necessity without which the party claiming it would be wholly deprived of the use of his land.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. § 18.*]</p> <p>4. Easements (§ 8*) — Ways—Prescription.</p> <p>To establish a way by prescription, there must be an adverse user of the same against the owner, and, where the way is also used by the owner, no such adverse possession exists, nor does it exist where the way is merely used by permission, or where it is used over unin-closed and unimproved lands.</p> <p>[Ed. Note. — For other eases, see Easements, Cent. Dig. §§ 23, 24, 27-33; Dec. Dig. § 8.*]</p>

<p>Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.</p> <p>Action by Matthew Cartwright against the St. Louis & San Francisco Railroad Company and others. From a judgment for plaintiff, the defendant named appeals.</p>

W. Simpson, Judge. Trespass to try title by U. F. Short against M. L. Morris and another. From the judgment, defendants appeal, and plaintiff cross-appeals.

<p>Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.</p> <p>Action by J. Tarvin against the Texas & Pacific Railway Company. From a judgment dismissing plaintiff’s petition, he appeals.</p>

<p>Appeal from Jack County Court; W. E. Fitzgerald, Judge.</p> <p>Action by Sil Stark against the Gulf, Texas & Western Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Travis County Court; R. E. White, Judge.</p> <p>Action by W. Quebedeaux and others against T. J. Freeman, as receiver, etc. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Death (§ 52*) — -Damages—Pleading—Sufficiency.</p> <p>An allegation of the petition, in an action for the wrongful death of plaintiff’s father, that the deceased would have continued to render pecuniary aid to plaintiff was not objectionable as alleging damages which were remote, argumentative, and speculative.</p> <p>TEd. Note. — For other cases, see Death, Cent. Dig. § 69; Dec. Dig. § 52.*]</p> <p>2. Death (§ 52*) — Damages—Pleading—Sufficiency.</p> <p>Where the petition, in an action for the wrongful death of plaintiff’s father, in addition to alleging that the decedent earned a certain amount per month, of which plaintiff received a large part, also alleged that plaintiff was damaged in a certain total sum by the decedent’s death, an objection to the former allegation as too uncertain was properly overruled.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 69; Dec. Dig. § 52.*]</p> <p>3. Death (§ 31*) — Right oe Action.</p> <p>Where plaintiff’s father rendered pecuniary assistance to plaintiff’s family in aid of plaintiff, and not as a mere gift to some member of the family, and there was a reasonable probability that such aid would have continued, plaintiff may recover damages for the wrongful death of his father, which causes a discontinuance of such aid.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 35-46, 48; Dec. Dig. § 31.*]</p> <p>4. Death (§ 103*) — Action fob Damages— ' Juby Question.</p> <p>In an action for the wrongful death of plaintiff’s father, which caused a cessation of pecuniary aid rendered to plaintiff’s family by his father, the question whether the aid was primarily for plaintiff’s assistance, or as a gift to members of his family, was for the jury.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 141; Dec. Dig. § 103.*]</p> <p>5. Appeal and Ebbob (§ 750*)— Assignments — 'Verdict,</p> <p>'' An assignment of error that the verdict, in an action for the wrongful death of piain-tiff’s father, was against the preponderance of the evidence did not present for review the question whether the verdict, if supported by evidence, was excessive.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dee. Dig. § 750.*]</p>

A. Turner, Judge. Action by Jas. R. Allen and others for an injunction against Swift & Co. and the Pacific Express Company. Judgment for plaintiff against Swift •& Co. and judgment for Pacific Express Company, and Swift & Co. appeals.

<p>Appeal from District Court, McLennan County; Marshall Surratt, Judge.</p> <p>Action by Mi Palmó against S. W. Slay-den & Co. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Parker County ; J.- W.. Patterson, Judge.</p> <p>Action by Mrs. M. C. Hill against the First Bank of Springtown. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Reeves County; S. J. Isaacs, Judge.</p> <p>Action by H. T. Collier and others against W. C. Welbom and others. From an order refusing to dissolve a temporary injunction, defendant Welbom appeals.</p>

<p>Error from District Court, Harris County; Chas. E. Ashe, Judge. ’</p> <p>Action by J. S. Dozier and another against Sarah L. Moon and another. There was a judgment for defendants, and plaintiffs bring error.</p>

<p>Criminal Law (§ 1090*) — Record—Statement op Facts — Bill op Exceptions.</p> <p>Where there is neither a statement of facts nor bill of exceptions in the record, assignments in the motion for new trial are not reviewable.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]</p>

<p>1. Homicide (§ 295*) — INStbuctions—Appli-cation to Case.</p> <p>On a trial for homicide, where accused’s evidence showed that he was told by his wife that deceased had asked her to have sexual intercourse; with him, and that, when he spoke to him about it, .deceased said, “Tes; God damn you, what are you going to do about it? I will cut your God damned guts out,” and commenced cutting accused with a knife, the court in its charge on manslaughter should have submitted as adequate cause the repetition and renewal of the insult, as well as communicated insults. ■</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dee. Dig. § 295.*]</p> <p>2. Homicide (§ 340*) — Appeal — Reversible Error — Instructions.</p> <p>Where the jury convicted for murder in the second degree and assessed the punishment at 20 years’ imprisonment the failure of the court in charging on manslaughter to submit as adequate cause insults shown by the evidence was reversible error.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.*]</p> <p>3. Criminal Law (§§ 1165, 1172*) — Appeal —Reversible Error.</p> <p>An erroneous charge or ruling which actually or probably led to a higher punishment than the minimum is reversible error. .</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3085, 3086, 3088, 3089, 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. §§ 1165, 1172.*]</p> <p>4. Criminal Law (§ 1090*) — Appeal—Bill op Exceptions — Necessity.</p> <p>The denial of - an application for a continuance will not be reviewed in the absence of a bill of exceptions, especially where other errors necessitate a new trial at which the attendance of the absent witnesses may be obtained.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §,§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. § 1090.*]</p> <p>5. Criminal Law (§ 829*) — Instructions— Cure by Other Instructions.</p> <p>The refusal of instructions was not erroneous where the court charged in practically the same language, or sufficiently presented the issue in the general charge.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]</p>

<p>Appeal from District Court, Tarrant County ; Jas. W. Swayne, Judge.</p> <p>Action by Fred Little, by next friend, against the James McCord Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Grimes County; S. W. Dean, Judge.</p> <p>Action by Mrs. Anna Sullivan and. others against the Houston & Texas Central Railroad Company. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Continuance (§ 20*) —, Discretion of Court.</p> <p>Defendant caused depositions to be taken, which were duly returned to the district clerk on November 16, 1910, during the November term of court. About May 8, 1911, defendant’s counsel discovered that the depositions could not be found in the district clerk’s office, and wired to the notary taking them, who informed counsel that the depositions had been mailed to the clerk as instructed, whereupon defendant applied for a continuance for want of such depositions, stating the facts. A previous continuance had been granted for another cause. The depositions were merely cumulative of evidence given somewhat fully at trial. Held, in view of counsel’s delay in not inquiring whether the depositions had been returned, that there was no abuse of discretion in overruling the application for a continuance.</p> <p>[Ed. Note. — For other cases, see Continuance, Cent.'Dig. §§ 74-93; Dec. Dig. § 26.*]</p> <p>2. Continuance (§ 51*)' — Second Application.</p> <p>It is within the sound discretion of the court to grant or refuse a second application for a continuance, which is not strictly a statutory application.</p> <p>[Ed. Note. — For other cases, see Continuance,Cent. Dig. §§ 69, 79, 85, 87, 88, 118, 128, 130, 132, 135, 141, 147; Dec. Dig. § 51.*]</p> <p>On Motion for Rehearing.</p> <p>3. Courts (§ 116*) — Records—Jurisdiction—• In Vacation.</p> <p>An order of the judge, made in vacation, after trial and adjournment of court, incorporating certain depositions in the record, was without authority and ineffectual for that purpose.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 369-373; Dec. Dig. § 116.*]</p> <p>4. Continuance (§ 26*) — Diligence.</p> <p>If defendant’s counsel were advised by letter in November, 1910, from the notary public, who took depositions for use at trial, tha't the depositions had been taken and mailed to the clerk of court, counsel could assume that the depositions were on file, and were not guilty of a lack of diligence in not inquiring until the time of trial, in May, 1911, as to whether the depositions were on file, so as to preclude them from moving for a continuance because of their loss, first discovered at the trial.</p> <p>[Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 74-93; Dec. Dig. § 26.*]</p> <p>5. Appeal and Error (§ 671*) — Presentation Below.</p> <p>An appellate court is only required to pass upon the action of the trial court as shown by the record, so that, in determining whether an' application for a continuance was properly •overruled, it can only consider the facts stated in the application, as shown by the trial court’s record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. § 671.*]</p>

<p>1. Justices of the Peace (§ 185*) — Jurisdiction — Amount in Controversy — Pleading.</p> <p>A petition in a suit to restrain an execution sale under a justice’s judgment, which alleged that the amount in controversy was beyond the jurisdiction of the justice, in that the suit was based on 20 notes of $10 each and 10 per cent, on the principal and interest as attorney’s fees, and which averred that a credit of $45 had been allowed, but- which did not state the date of the credit, or when the debtor was entitled to'it, did not show that the justice was without jurisdiction, where, if the credit accrued near the time of the filing of the suit, the principal and attorney’s fees exceeded the jurisdiction of the justice; while if the right to the ■credit accrued and was allowed at the date of the notes, or within a year thereafter, the amount due, excluding interest, was within the jurisdiction of the justice.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. §§ 426-447; Dec. Dig. § 135.*]</p> <p>2. Justices op the Peace (§ 135*) — Erroneous Judgment — Remedy.</p> <p>Where a defendant in justice’s court made no defense, though he knew for more than a year before the judgment that the action was pending, and he did not show any excuse for failing to appeal or obtain relief by certiorari, injunction did not lie to restrain an execution sale under the judgment.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. §§ 426-447; Dec. Dig. § 135.*]</p> <p>3. Justices of the Peace (§ 84*) — Waiver op Want op Service op Summons — Appearance.</p> <p>An appearance by defendant in justice’s ■court for the purpose of obtaining a continuance, and actually obtaining a continuance, is a waiver of the issuance and service of citation on him.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 266-278; Dec. Dig. § S4.*]</p> <p>4. Justices op the Peace (§§ 73, 74*) — Jurisdiction — Absence op Regular Justice.</p> <p>Where the regular justice of the peace was sick, a justice of the peace in the same precinct could, as authorized by Sayles’ Ann. Civ. St. 1897, art. 1566, perform the duties of the office, provided he was the nearest justice.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 236-242; Dee. Dig. §§ 73, 74.*]</p> <p>5. Justices op the Peace (§ 135*) — Execution — Issuance—Directions por Return.</p> <p>Under Sayles’ Ann. Oiv. St. 1897, art. 1657-1659, providing that writs of execution issued on justice’s judgment shall be returnable in 60 days from date of issuance, a writ of execution, after the lapse of time in which it is made returnable by law, is of no force; and the right of an officer, by virtue of the writ, to take and sell property ceases from the date the writ is returnable.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 426-447; Dec. Dig. § 135.*]</p> <p>6. Pleading (§ 214*) — Demurrers — Admissions.</p> <p>A petition tested by a general demurrer must be taken as true.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*]</p>

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Action by E. G. Hicks against J. E. Murphy and another. Prom an order dissolving a temporary injunction, the plaintiff ¡appeals.</p>

<p>Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.</p> <p>Action by Phil Gresham against the Kirby Lumber Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Potter County; J. N. Browning, Judge.</p> <p>Action by the Ft. Worth & Denver City Railway Company against the Southern Kansas Railway Company of Texas and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Bowie County; P. A. Turner, Judge.</p> <p>Action by Mrs. Lillie B. Casey, individually and as administratrix, against the Texar-kana & Ft. Smith Railway Company. Judgment for defendant. Plaintiff appeals.</p> <p>Between 5 and 6 o’clock on the morning of December 23, 1909, Ben F. Casey, while engaged in the discharge of duties he owed to appellee as one of its car inspectors, suffered injuries resulting in his death a few hours thereafterwards. He left surviving him his wife and several children. On the theory that the injuries were caused by the negligence of other employés of appellee, this suit was brought to recover damages occasioned by his death. At the time Casey was injured, appellee was engaged in interstate commerce, and Casey was employed by it in such commerce; and it is conceden that whether appellee is liable or not for the damages sought to be recovered must be determined with reference to the provisions of the act of Congress of April 22, 1908, usually referred to as the “Federal Employer’s Liability Act” (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]). By the terms of that act, in a case like this one is, the right of action for damages recoverable is exclusively in the personal representative of the deceased, for the benefit of his surviving widow and children. It appears from the allegations in the petition that this suit was prosecuted by Mrs. Lillie B. Casey, deceased’s widow, in her own right and as temporary administratrix of his estate. She alleged that “on the 17th day of May, 1911, she' was duly appointed by the county court of Bowie county, Tex., ad-ministratrix of the estate of Ben F. Casey, deceased, without bond, and was granted by said court the power to prosecute any and all suits for the recovery of damages for the death of the said Ben F. Casey,” and further alleged as follows: “That up until the 17th day of May, 1911, there had never been any administration upon the estate of the said Ben F. Casey, deceased, and that there had never been any necessity for any administration upon the estate of the said Ben F. Casey, unless such administration is necessary to the prosecution of the suit for damages which are entitled to be recovered for the benefit of his surviving widow and children. Plaintiff alleges that ever since the death of the said Ben F. Casey she has been acting as his personal representative in the capacity of surviving wife until May 17, 1911; that on May 17, 1911, plaintiff, Lillie B. Casey, was duly appointed and duly qualified as temporary administratrix of the estate of said Ben F. Casey by the county judge of Bowie county, Tex., and such temporary administration has been duly continued ever since, and plaintiff now and ever since has been such ladministratrix; that the said Casey left no will, and the debts, if any, owing by him at the time of his death, did not make an administration upon his estate necessary.” In its answer to the suit appellee, among other things, alleged that Mrs. Casey “has no legal capacity to maintain this suit as the administratrix or personal representative of the estate of Ben E. Casey, deceased; that the alleged appointment of the said Mrs. Lillie B. Casey as such administratrix by the county court of Bowie county was and is void; but that, if mistaken as to this, said appointment has long since expired; and that she is not now. either the administratrix of said estate or the personal representative of the said Ben F. Casey, deceased.” This plea was verified by the affidavit of one of appellee’s counsel, to the effect “that the facts set forth in the above and foregoing plea are true to the best of my knowledge and belief.” It does not appear from the record that any effort was made by appellee to have the issue it attempted to make by this pléa determined, nor that it was determined, by the court. After the testimony had been heard, the court peremptorily instructed the jury to find for appellee. In accordance with such a finding, a judgment was rendered “that the plaintiff, Mrs. Lillie B. Casey, prosecuting this action in her own right and as personal representative of Ben .F. Casey, deceased, that is, as administratrix of the estate of Ben F. Casey, deceased, for the benefit of herself and also for the benefit of * * * the children of said Ben F. Casey, .deceased, take nothing by reason of said cause of action alleged, and that the defendant, the Texarkana & Ft. Smith Railway Company, be and is hereby discharged, to go hence without day, and that said defendant do have and recover of and from the plaintiffs in the capacity in which their action is and has been prosecuted by them, as aforesaid, all costs herein incurred.” It appears that “the plaintiff, Mrs. Lillie R. Casey et al.,” excepted to the judgment and gave notice of an appeal to this court.,</p>

Ashe, Judge. Suit by W. C. Corbett and another to enjoin J. J. Sweeney and others from selling lands. From an order dissolving a temporary injunction, the plaintiffs appeal.

Action by Eddie Morgan, by next friend, against Armour & Company. Judgment for plaintiff, and defendant appeals. Eddie Morgan, a boy about 15 years of age, had the entire forefinger of his left hand severed, and the thumb on that hand mashed and broken, causing it to be crooked and stiff, by being caught in the “lifter” of a machine being operated by appellant in a department of its packing plant at North Ft.

<p>1. Cancellation of Instruments (§ 59*)— FRAUD-IMPROVEMENTS.</p> <p>Where a grantee obtained a conveyance by fraud, and entered into possession and made improvements while wrongfully in possession, he could not recover the value of the improvements on the setting aside of the deed.</p> <p>{Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 119-125; Dec. Dig. § 59.*]</p> <p>2. Estoppel (§ 59*) — Silence—Permitting Improvements.</p> <p>A’ grantee who obtained his deed by fraud cannot rely on an estoppel against the grantor to deny his title, based on her silence while he was making improvements.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 146, 14T; Dec. Dig. § 59.*]</p> <p>3. Cancellation op Instruments (§ 24*)— Conditions Precedent — Fraud.</p> <p>An administrator of a deceased grantor, who sues to set aside a deed as having been procured by fraud of the grantee, need not offer to return the taxes paid" on the property by the grantee.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 33-38; Dec. Dig. § 24.*]</p> <p>4. Deeds (§ 165*)' — Cancellation—Grounds.</p> <p>Where a deed is absolute on its face, agreements by the grantee to support the grantor for life and pay her a specified sum are covenants only, and a failure to perform them will not alone authorize the cancellation of the deed; but an action lies for sum unpaid, secured by an implied lien on the premises.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. § 521; Dec. Dig. § 165.*]</p> <p>5. Deeds (§ 70*) — Cancellation—Grounds— Fraud.</p> <p>The rule that the failure of a grantee to perform covenants binding him to support the grantor for life and pay to her a specified sum, in consideration of which a deed was executed, is not fraud justifying the cancellation of the deed does not apply where the promises are made to defraud and without any intent at the time of performing them; but an instruction authorizing a finding of fraud on such theory is fatally defective, where it ignores the element that, when made, the promises were fraudulent and without any intent of performing them.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 165-182; Dec. Dig. § 70.*]</p> <p>6. Cancellation op Instruments {§ 56*)— Cancellation — Grounds—Fraud.</p> <p>Where a grantee in a deed of a lot procured by fraud the insertion of a provision conveying also another lot, a recovery on the ground of fraud was limited to a cancellation of the deed as to the latter lot.</p> <p>[Ed. Note.- — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 112, 113; Dec. Dig. § 56.*]</p> <p>7. Witnesses (§ 359*) — Impeachment—Proop op Conviction op Felony.</p> <p>In the absence of proper objection, the fact that a witness has been convicted of felony may be shown by parol.</p> <p>[Ed. Note.' — For other cases, see Witnesses, Cent. Dig. §§ 1161, 1162; Dec. Dig. § 359.*]</p> <p>8. Appeal and Error (§ 742*) — Assignments op Error — Requisites.</p> <p>Where assignments of error are submitted as propositions, and as such they are multifarious, they will not be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>9. Work and Labor (§ 22*) — Recovery por Services Rendered — Petition — Sufficiency.</p> <p>A petition, in a suit for the cancellation- of a deed and for recovery for services rendered by the grantor to the grantee, which alleges that after the conveyance and until a short time prior to the grantor’s death she worked for the grantee as a servant, and that the reasonable value of her services was a specified sum per week, for which amount a recovery was demanded, stated facts supporting a finding for wages due for services performed.</p> <p>[Ed. Note. — For other cases, see Work and Labor, Cent. Dig. § 41; Dec. Dig. § 22.*]</p>

Error from District Court, Sabine County; W. B. Powell, Judge. Action by the State of Texas against the Angelina County Lumber Company, and it made W. D. Gordon and another parties. From a judgment for plaintiff against defendant, and in its favor against W. D. Gordon and another, the latter bring error.

Error from District Court, Brown County; F. M. Newman, Special Judge. Trespass to try title by Cumi Lee and others against T. N. Simmons. Judgment' for defendant, and plaintiffs bring error.

<p>1. False Imprisonment (§ 15*) — Arrest by Officer — Employment by Private Individual.</p> <p>Yvhere plaintiff was illegally arrested by a peace officer, who was also employed to preserve the peace by defendant, who was running a tent show, the fact that the person making the arrest was an officer was not sufficient in itself to show that he made the arrest in his official capacity, nor was the fact that the officer was in defendant’s employ sufficient in itself to show that he made the arrest as defendant’s servant.</p> <p>(Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 5-67; Dec. Dig. § 15.*]</p> <p>2. False Imprisonment (§ 15*) — Public Officer Doing Private Duty — Liability of Employer.</p> <p>Defendant, while operating a show and selling medicine in a city, employed a peace officer to keep the peace _ in and about the show tent. A dispute arising as to a seat plaintiff was occupying, the officer was requested by defendant’s wife to “settle it in a nice way.” The officer asked plaintiff to vacate the seat, and, on his refusing, had a conversation with defendant, who instructed him to go and settle the dispute, whereupon the officer pulled plaintiff out of the seat, arrested, and incarcerated him for disorderly conduct. Held, that the officer’s act in so doing was not in- his official capacity, but in the prosecution' of defendant’s business, and that defendant was therefore liable for the consequences.</p> <p>(Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 5-67; Dec. Dig. § 15.*]</p> <p>3. Trial (§ 252*) — Request to Charge — Abstract Instructions.</p> <p>Where an officer, while doing private duty at defendant’s show, arrested and incarcerated plaintiff as the result of a dispute over a seat, acting entirely in defendant’s service, and not as a peace officer, the court, in an action for false imprisonment, properly refused, as abstract, an instruction that it was the duty of every peace officer to preserve the peace within his jurisdiction, and that, to effect such purpose, he could use all lawful means.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>4. False Imprisonment (§ 36*) — Compensation — Excessiveness.</p> <p>Plaintiff, a young unmarried man of good habits, paid for a reserved seat ticket at defendant’s tent show, and, on refusing to surrender it to another patron, was dragged out of the tent by a peace officer, arrested for disorderly conduct, struck over the eye with a pistol or other hard substance, causing a wound, which did not heal for two weeks aft-erwards, was thrown down by the officer, his clothes tom, taken to the police station in the hoodlum wagon, and locked up with negroes and Mexicans for about two hours. His arrest occurred in the presence of a crowd, a number of whom were friends and acquaintances, and also in the presence of a young lady to whom he was talking. Held, that a verdict allowing $1,000 compensatory damages was not excessive.</p> <p>[Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 113-115; Dec. Dig. § 36.*]</p> <p>5.False Imprisonment (§ 36*) — Damages— Exemplary Damages.</p> <p>Where,' in an action for false imprisonment in causing plaintiff’s arrest for disorderly conduct at a tent show, there was evidence of actual malice on defendant’s part, in that he thought he recognized plaintiff at the time of his arrest as a person who had previously stolen a seat, it was not error to allow $250 as punitive damages.</p> <p>[Ed. Note. — For other eases, see False Imprisonment, Cent. Dig. §§ 113-115; Dec. Dig. § 36.*]</p>

<p>Appeal from District Court, Tarrant County.</p> <p>Garnishment proceedings by P. A. Presnail and others against the Stockyards National Bank, garnishee. Judgment for defendant, and plaintiffs appeal.</p> <p>The appellants, P. A. Presnall and S. B. Mossner, obtained a judgment in the district court of Nueces county against Hugh Rogers for the sum of $1,921.90 with 10 per cent, interest. An execution was issued on May 28,1908, and returned nulla bona. Thereafter on January 16, 1909, the appellants applied for a writ of garnishment, which was issued and served on the Stockyards National Bank of Ft. Worth on January 20, 1909. The garnishee made answer on July 5, 1909, in which the garnishee denied any indebtedness to Hugh Rogers, but alleged that Hugh Rogers owed it two notes; one note being for $2,500, on which $900 had been paid, and which w.as secured by certificate of shares of stock of the Barse Commission Company of the value of $2,000, and the other note being for $2,000, on which had been paid $777, and which was secured by a transfer to the bank of Rogers’ eqfiity of redemption in certain live stock owned by Nails & Rogers on Roy-er Ranch in Murray county, Okl. Appellants filed a controverting affidavit charging that Rogers had on deposit in the bank at the time the writ of garnishment was served the sum of $777.89, and that the bank held as collateral security certificate of shares of stock in the Barse Commission Company owned by Rogers of the value of $2,000 and an assignment of Rogers’ equity of redemption in a mortgage on 2,000 head of cattle and 130 head of horses; and alleging that Rogers, since the writ of garnishment was served, had fully paid off and discharged the garnishee’s notes without the application of the collateral security to the payment of the debt, and that the garnishee had voluntarily released and surrendered and delivered to Rogers, after service of the writ, his certificate of shares of stock in the Barse Commission Company, and that the garnishee had permitted the cattle to be sold by Rogers; and praying that the garnishee be made liable to appellants for the cash deposit and the value of the certificate of shares of stock in the Barse Commission Company, or so much as was necessary to satisfy the appellants’ debt. The garnishee in reply admitted that at the time the writ of garnishment was served Rogers had on deposit in the bank the sum of $777.89, but alleged that Rogers was indebted to the bank at the time of the service of the writ on a $2,000 note, and that he was a nonresident of the state and had no property in Texas except that deposited with the bank, and that, as a consequence, and after the writ was served, the sum of the deposit was by the garnishee applied on the note as a credit; and further that Rogers had refused to pay his indebtedness unless the garnishee would first surrender the certificate of shares of stock held as collateral, and that by agreement with Rogers to pay his debt to the bank it surrendered to him the certificate of shares of stock in the Barse Commission Company. The cause was tried to the court without a jury, and judgment was entered in favor of the garnishee and also allowing it to recover of appellants $250 as attorney’s fees.</p> <p>The testimony in the record admits that when the writ of garnishment was served Rogers had a general deposit in the Stockyards National Bank of $777.S9. Rogers was indebted to the bank in the two notes mentioned in the pleading, neither of which had matured when the writ was served. One note was secured by an assignment of Rogers’ equity of redemption in certain mortgaged live stock in the possession of Rogers in Oklahoma, and the other by a certificate for 20 shares of stock in the Barse Commission Company indorsed in blank. At the time the writ of garnishment was served, Rogers was a citizen of Oklahoma, and without property in Texas save that mentioned in th,e possession of the garnishee. The Barse Commission Company was a Missouri corporation, but had secured a permit under the laws of Texas to do business in Texas, and was at the time and has since been doing business in Texas. The certificate of shares of stock in the commission company held by the bank as collateral belonged to Rogers, and was, it was agreed, at the time of the delivery to the garnishee, and has been ever since, of the value of $2,000. Rogers was not due the bank anything except the notes. Immediately after the service of the writ the bank applied the $777.89, without Rogers’ authority, as a payment on the $2,000 note. After service of the writ, and after maturity of both notes, Rogers paid to the bank the balances due on both of the notes, upon condition that the bank deliver to him the certificate of shares of stock of the Barse Commission Company held by it; and the bank agreed to, and did, release and deliver the certificate of shares of stock, together with the canceled notes to Rogers. At the time the bank took the assignment of the equity of Rogers in the live stock in Oklahoma, the live stock was heavily mortgaged in Oklahoma. Rogers himself sold the live stock, and after paying the mortgage there was left from the proceeds of the sale of the same the sum of $501.75. This sum of $501.75 was the value of his assigned equity, and was applied by Rogers on the note held by the Stockyards National Bank.</p>

<p>Appeal from District Court, Bexar County ; J. L. Camp, Judge.</p> <p>Injunction by the Daughters of the Repu’o-lie of Texas against A. B. Conley and others. From an order perpetuating a temporary injunction, defendants appeal.</p>

<p>1. Payment (§ 39*) —Application—Right of Creditobs.</p> <p>Where a debtor making a payment gives no direction as to the application thereof, the creditor may generally do so'; and the application need not be made by him at the time of payment, provided it is done within a reasonable time thereafter.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 104-114; Dec. Dig. § 39.*]</p> <p>2. Payment (§ 75*) —Application — Evidence.</p> <p>The application by a creditor of a payment, where the debtor gives no directions as to application, may be established by circumstances.</p> <p>[Ed. Note. — For other cases, see Payment, Cent Dig. 239; Dec. Dig. § 75.*]</p> <p>3. Payment (§ 75*) — Application — Evidence.</p> <p>A guaranty covered $1,200 of an account of $1,450.53. The debtor made a partial payment of $500, without direction as to its application. The guarantor was advised of the payment, and three months thereafter the creditor demanded payment of the balance due on the account, and the guarantor replied that a remittance would be made about a designated future date. Held, that the creditor first applied the partial payment to the amount in excess of the guaranty, and the balance on the guaranty, so that the guarantor was liable for the balance.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § 239; Dec. Dig. § 75.*]</p>

<p>Appeal from District Court, Cooke County; Clem B. Potter, Judge.</p> <p>Action by Andy Bratcher against the Royal Neighbors of America. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Dimmit County; J. F. Mullally, Judge.</p> <p>Action between C. A. Albrecht and others and Charles Lignoski. From a judgment in favor of Lignoski, Albrecht and others appeal. On motion to strike the statement of faets.</p>

B. Powell, Judge. Mandamus by the Houston Oil Company of Texas against W. B. Powell, District Judge, to compel the judge to hear and determine the question of the correctness of the record on appeal.

B. Powell, Judge. Action by E. Longini and others against the Thompson Bros. Lumber Company and. others. Judgment for plaintiffs, and the defendant named appeals.

<p>Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.</p> <p>Action by W. H. Gilliam against the Continental Oil & Cotton Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by D. S. Cage & Co. against L. G. Hamilton and others. From judgment for plaintiff, Hamilton appeals.</p>

B. Powell, Judge. Action by Mrs. O. B Holloway and another against H. L. Hall and others for partition. From a judgment overruling objections to the report of commissioners partitioning the land and approving the partition made by them, plaintiffs appeal.

S. Kinder, Judge. Action by J. M. Garrison against D. R. Stokes et al. From an order transferring the suit to.the district court of Motley county, Texas, for' trial, plaintiff appeals.

<p>Appeal from Wise County Court; B. M. Allison, Judge.</p> <p>Action by J. B. Brown against the Philadelphia Underwriters Agency of the Fire Association of Philadelphia. From an order sustaining a motion to strike out an answer, defendant appeals.</p>

<p>1. Evidence (§§ 538, 544*) — Opinion Evidence — Experts.</p> <p>Cattlemen, who for a number of years had been engaged in shipping and marketing stock to a given point, and were acquainted with the market reports and prices at the time the shipment was made, are competent to testify as experts whether or not it was necessary to feed and water cattle at a given point, and whether depreciation in price and loss in weight was due to rough handling and delay.</p> <p>[Ed. Note. — For other cases, see Evidence, CenfcDig. §§2348,2356; Dec. Dig. §§ 538, 544.*]</p> <p>2. Triad (§ 194*) — Instructions—Weight oe Evidence.</p> <p>In an action against a railroad company for injuries to a shipment of cattle from delay, a charge that if the cattle were fed and watered at a certain point, and it was made necessary by the negligence of defendant in delaying the cattle, if it did delay them, then plaintiff, if he paid for feeding the cattle, would be entitled to recover the sum paid, is not erroneous as on the weight of the evidence in telling the jury that the delay in- transportation was caused by the negligence of the defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 439-441, 446-454, 456-466; Dec. Dig. | 194.*]</p> <p>3. Carriers (§ 229*) — Carriage oe Live Stock — Injury to Animals — Measure oe Damages.</p> <p>Where a common carrier of live stock delayed a shipment so as to injure them, the shipper’s measure of damages is the difference between the market value of the stock at the time they arrived at the point of consignment and what would have been their market value had they arrived without delay.</p> <p>[Ed. Note. — -For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.*]</p> <p>4. Trial (§ 194*) — Instructions—Weight oe Evidence.</p> <p>In an action against a railroad company for negligent delay in shipment of cattle, an instruction that, if there was a finding for the shipper, then the measure of his damages is the difference between the market value, if any, of the cattle at the time of arrival in the condition they were in and what would have been- their market value, had there been no delay or negligence, is not erroneous as on the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]</p> <p>5. Trial (§ 260*) — Instructions—Requests Covered by Charges Given.</p> <p>In an action against a railroad company for damages to cattle in shipment, occasioned by its negligent delay, where the court repeatedly told the jury that plaintiff could not recover anything, unless the company had been guilty of negligence, a request that the plaintiff cannot recover, unless defendant was negligent, and that such negligence was the proximate cause of the injury to the cattle, being covered by the charges given, was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>1. Telegraphs and Telephones (§ 66*)— Delay in Delivery — Actions—Sukficien-cy op Evidence — Negligence.</p> <p>Evidence in an action for negligent delay in delivering a telegram held to sustain a finding of negligence in transmitting and delivering the message.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]</p> <p>2. Telegraphs and Telephones (§ 66*) — Delay in Delivery — Cause op Injury.</p> <p>Evidence in an action for negligent delay in delivering a telegram announcing the probable death of plaintiff’s daughter held to show that plaintiff’s inability to reach his daughter’s-bedside before her death was proximately caused by the negligent transmission and delivery.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]</p> <p>3. Telegraphs and Telephones (§ 38*)— Delay in Delivery — Negligence—Defenses.</p> <p>That the sender of a telegram did not advise the company that the sendee lived beyond the free delivery limits, nor offer to pay the extra charges for service, was no defense to an action for negligent delay in delivery.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.*]</p> <p>4. Appeal and Error (§ 1078*) — Presentation Below — Exceptions to Pleading.</p> <p>In absence of any ruling shown by the record upon a special exception to the answer, it will be presumed that such exception was waived, since the record must show that a ruling upon an exception was made in order to authorize the appellate court to review it.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. § 1078.*]</p> <p>5. Appeal and Error (§ 1050*) — Harmless Error — Admission op Evidence.</p> <p>Any error in admitting evidence was harmless to defendant, where a witness for defendant testified to substantially the same fact.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4153 — 4160, 4166; Dec. Dig. § 1050.*]</p> <p>6. Appeal and Error (§ 728*) — Brieps—An-swers to Questions.</p> <p>Error in overruling objections to questions cannot be held prejudicial, where appellant’s brief and assignments of error do not show what answers were made.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3010-3012; Dec. Dig. § 728.*] ■</p> <p>7. Appeal and Error (§ 728*) — Record.</p> <p>The exclusion of a question cannot be held prejudicial to appellant, where the assignment of error does not show what witness’ answer would have been.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3010-3012.; Dec. Dig. § 728.*].</p> <p>8. Trial (§ 256*) — Instructions—Requests— “Ordinary Care” — “Reasonable Care.”</p> <p>An instruction, in an action for negligent delay in transmission and delivery, on the measure of the telegraph company’s duty in delivering, was not erroneous for requiring it to transmit in “due time (that is, such time as it would have been delivered by the exercise of reasonable care and diligence in getting it through and delivered),” on the ground that it was only required to use “ordinary care,” in absence of a request for a more specific charge; the terms “reasonable care” and “ordinary care” having substantially the same meaning (citing 7 Words and Phrases, 5955).</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*</p> <p>Eor other definitions, see Words and Phrases, vol. 6, pp. 5029-5042; vol. 8, pp. 7739-7740, 7779.]</p> <p>9. Appeal and Error (§ 1064*) — Review-Harmless Error — Instructions.</p> <p>An instruction, in an action for negligent delay in transmitting and delivering a telegram announcing the probable death of plaintiff’s daughter, that if plaintiff could, after the receipt of the message, “by the usual and regular means of travel,” have reached his daughter’s bedside before her death, and failed to make use of such means as he could or should have done, he could not recover, was not affirmative error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]</p> <p>10. Telegraphs and Telephones (§ 37*)— Messages — Delivery.</p> <p>If the recipient’s residence beyond the free delivery limits was not known to the sender of a telegram at the time of its delivery to the telegraph company’s agent for transmission, the agent at the receiving office should notify the sender of such fact, so that he might have an opportunity to pay the extra charges.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 24, 29, 32; Dee. Dig. § 37.*]</p> <p>11. Telegraphs and Telephones (§ 37*)— Delivery — Beyond Free Delivery Limits.</p> <p>A telegraph company was not justified in abandoning all effort to deliver a telegram merely because the recipient was not found at the address stated, and his actual address was beyond the free delivery limits.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 24, 29, 32; Dec. Dig. § 37.*]</p> <p>12. Telegraphs and Telephones ■ (§ 71*)— Damages — Negligent Delivery.</p> <p>A verdict for $947.50 for failure, to promptly deliver a telegram announcing the death of plaintiff’s 17 year old married daughter between whom and plaintiff the deepest affection existed was not excessive, though the daughter was unconscious from the sending of the message until she died, and could not have recognized plaintiff.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 74; Dec. Dig. § 71.*]</p> <p>13. Telegraphs and Telephones (§ 70*)— Damages — Mental Anguish — Discretion op Jury.</p> <p>The jury has a large discretion in estimating damages to be awarded for mental anguish, as from the negligent delivery of a telegram.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent.' Dig. §§ 72, 73; Dee. Dig. § 70.*]</p> <p>14. Appeal and Error (§ 742*) — Record.</p> <p>Error in admitting evidence cannot be reviewed, where there is no showing in the assignments of error that witness gave the objectionable testimony, except certain statements from the motion for a new trial. ’</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. § 742.*)</p> <p>On Motion for Rehearing.</p> <p>15. Appeal and Error (§ 742*) — Briefs—Assignments op Error — Proposition.</p> <p>The office of a proposition under an assignment of error is to specifically present the question of law intended to be covered by the assignment, and the Appellate Court cannot consider any question not suggested by a proposition if the assignment is not relied on as such, nor need appellee answer such questions.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. § 742.*]</p>

<p>1. Masker and- Servant (§ 278*) — Injury to-Servant — Safe Place to Work — Evidence.</p> <p>An employs in a sawmill handled the lever controlling rollers carrying from a saw planks-as fast as sawed to an edger, and afterwards-they were placed on a transfer chain and carried put into the yard. The transfer chain brokej and a coempioyé, who was not able to-take the planks off as fast as they came, on seeing a plank about to pass him on the rollers,, seized the lever and reversed the rollers, so that they revolved toward the saw, and the-plank was rapidly carried toward the saw and. struck the employe, killing him. ' Held, that the employer was not, as a matter of law, negligent in operating the mill while the transfer chain was broken, and in failing to furnish, the employé a safe place to work, but the accident was directly caused by the negligence of' the coempioyé in reversing the rollers.</p> <p>[Ed. Note. — For other cases, see Master and: Servant, Cent. Dig. §§ 954, 956-958, 960-969,. 971, 972, 977; Dec. Dig. § 278.*]</p> <p>2. Master and Servant (§ 197*) — Fellow Servants-t-Who Are.</p> <p>Employés in a sawmill, engaged in removing planks from a saw as fast as they are sawed, are fellow servants,</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 489, 490; Dee. Dig. § 197.*]</p> <p>3. Appeal and Error (§ 1001*) — Verdict— Conclusiveness.</p> <p>A verdict sustained by evidence is conclusive on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*]</p> <p>4. Appeal and Error (§ 1029*) — Harmless-Error — Errors Not Affecting Result.</p> <p>Where, under the facts, plaintiff could not recover, any error of procedure on the trial was-not prejudicial to him.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 4035, 4036; Dee. Dig.-§. 1029.*]</p> <p>5. Damages (§ 14*) — Riam- op Action — Statutes.</p> <p>An action against an employer, for the death of an employe, caused by the negligence of a fellow employe, not occupying the position-of vice principal, is not maintainable under Sayles’ Ann. Civ. St. 1897, art. 3017, subd. 2, authorizing an action for death caused by the negligence of another.</p> <p>[Ed. Note. — For other cases, see Damages,. Cent. Dig. § 356; Dec. Dig. § 14.*]</p>

<p>Ceiminal Daw (§ 1090*) — Appeal—Record —Necessity of,Statement oe Pacts.</p> <p>Where there is neither statement of facts nor bills of exceptions accompanying the record, no question is raised on which the Court of Criminal Appeals can pass.</p> <p>[Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §,§ 2653,2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]</p>

<p>1. Criminal Law (§ 1090*) — Appeal—Record — Sufficiency.</p> <p>The sufficiency of the evidence to support a verdict and judgment cannot be reviewed, where the record contains no statement of facts or bills of exception.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. §, 1090.*]</p> <p>2. Criminal Law (§ 1090*) — Appeal—Record— Sufficiency.</p> <p>Rulings on the admission of evidence cannot be reviewed, where the bills of exception thereto are not contained in the record.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2827,2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]</p>

<p>Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.</p> <p>Henry Gerron was convicted of burglary, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.</p> <p>Roy Chester was convicted of burglary, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.</p> <p>Tom Corbin was convicted of crime, and he appeals.</p>

<p>1. Ceiminal Raw (§§ 1090, 1122*) — Appeal —Record—Matters to be Included.</p> <p>Where the record does not contain the evidence, or any bills of exception, the failure of the court to charge on a plea of temporary insanity cannot be reviewed.</p> <p>[Ed. Note. — For other cases, see Criminal Raw, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927, 2928, 2940-2945, 2948, 3204; Dec. Dig. §§, 1090, 1122.*]</p> <p>2. .Criminal Raw (§§ 1090, 1120*) — Appeal-Record — Matters to be Included.</p> <p>Where the record does not contain the evidence, or any bills of exception, the exclusion of evidence cannot be reviewed.</p> <p>[Ed. Note. — For other cases, see Criminal Raw, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. §§ 1090, 1120.*]</p> <p>3. Criminal Raw (§ 1121*) — Apeeal—Rec-ord — Matters to be Included.</p> <p>Where the record does not contain the evidence, its sufficiency to support a conviction cannot be reviewed.</p> <p>[Ed. Note. — For other cases, see Criminal Raw, Cent. Dig. §,§ 2938, 2939; Dec. Dig. § 1121.*]</p>

<p>Error from Crosby County Court; Pink L. Parish, Judge.</p> <p>Action by R. M. Snell against C. D. Ham. Judgment for defendant, and plaintiff brings error.</p>

<p>1.Bbokers (§ 86*) — Commissions—Procuring Cause of Sale of Real Estate — Evidence.</p> <p>Evidence held to support a finding that a broker employed to procure a purchaser of real estate was the procuring cause of a sale.</p> <p>[Ed. Note. — Por other cases, see Brokers, Cent. Pig. §§ 116-120; Dec. Dig. § 86.*] .</p> <p>2. Brokers (§ 63*)— Commissions — Fraudulent Act of Owner.</p> <p>The right of a broker procuring and effecting a sale to his commission may not be defeated by the fraudulent act of the owner in withdrawing the property from the broker prior to the making of a contract.</p> <p>[Ed. Note. — Por other cases, see Brokers, Cent. Dig. §§ 79, 81, 94-96; Dec. Dig. § 63.*]</p> <p>3. Brokers (§ 86*) — Commissions—Fraudulent Act of Owner — Evidence.</p> <p>Evidence held to support a finding that an owner employing a broker to procure a purchaser of real estate fraudulently withdrew the property from the broker to defeat the right to commission earned by procuring a purchaser and effecting a sale.</p> <p>[Ed. Note. — Por other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.*]</p> <p>4. Brokers (§ 84*)— Commissions — Fraudulent Act of Owner — Evidence.</p> <p>A fraudulent intent of an owner employing a broker to procure a: purchaser of real estate in withdrawing the property from the broker to defeat the right to a commission may be inferred from the surrounding facts; and. a fraudulent connivance on the part of the owner and purchaser to defeat the right to commission may be inferred from the fact that the parties took the matter up directly with each other, when both knew of the efforts of the broker to effect a sale, and from the further fact that the purchaser had previously made an effort to eliminate the broker.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 104, 105; Dec. Dig. § 84.*]</p> <p>5. Brokers (§ 56.*) — Commissions — When Earned — Evidence.</p> <p>Where a broker employed to procure a purchaser of real estate produced several persons willing to purchase, and a sale was made to some of them, the broker had earned his commission.</p> <p>[Ed. Note. — Por other cases, see Brokers, Cent. Dig. §§ 85-89; Dec. Dig. § 56.*]</p> <p>6. Limitation of Actions (§ 46*) — Action by Broker for Commissions.</p> <p>A cause of action by a broker for commissions for procuring a purchaser of real estate actually purchasing accrues when the sale is finally consummated.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 240-253; t)ec. Dig. § 46.*]</p> <p>7. Limitation of Actions (§ 195*) — Burden of Proof — Record.</p> <p>A defendant has the burden of showing that the cause of action sued on is barred by limitations.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 711-716; Dec. Dig. § 195.*]</p> <p>8. Appeal and Error (§ 909*) — Questions Reviewable — Presumptions.</p> <p>Where a cause was tried on the second amended petition filed after the running of limitations, in lieu of the first amended petition filed before the running of limitations, and the first amended petition is not in the record, the court, on appeal will not assume that the first amended petition was based on the contract described in the original petition; but since the record fails affirmatively to show that the cause of action was barred the contention that the action was barred must be overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3675; Dec. Dig. § 909.*]</p> <p>9. Appeal and Error (§ 742*) — Assignments of Error — Propositions.</p> <p>Assignments of error submitted as propositions, without disclosing the point, as required by Courts of Civil Appeals rule 30 (142 S. W. xiii), will not be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>10. Trial (§ 252*) — Instructions—Ignoring Issues.</p> <p>A requested instruction ignoring issues raised by the evidence is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>11. Trial (§ 233*) —Instructions — Requisites.</p> <p>An instruction properly submitting an issue in a case need not include all the other material issues submitted by other instructions, and the former instruction is not misleading.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 527-530; Dec. Dig. § 233.*]</p> <p>12. Trial (§ 260*) — Instructions—Refusal of Request.</p> <p>Where, in an action for commission for procuring a purchaser, the undisputed testimony showed that the commission should be $1 per acre, and the court in its charge limited the recovery to 50 cents per acre, the refusal of a special charge limiting the recovery to one-half of the contract price was not prejudicial.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>13. Trial (§ 260*) — Instructions—Refusal of Instructions Covered by Charge Given.</p> <p>Where, in an action by a broker for commission for procuring a purchaser, the court charged that the burden of proof was on plain.tiff to establish the fact that he was the procuring cause of the sale by a preponderance of the evidence, and the instructions, in their entirety, indicated the questions to be determined in favor of plaintiff before the jury could find for him, the refusal of a charge that the burden of proof was on plaintiff to prove the material allegations of the petition was not reversible error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>14. Appeal and Error. (§ 742*) — Assignments of Error — Propositions — Requisites.</p> <p>An assignment of error not supported by a proper proposition, but which merely refers to propositions under another assignment of error, will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>15. Brokers (§ 87*) — Commissions—Actions —Recovery.</p> <p>Where a broker’s right to a commission for procuring a purchaser was by virtue of his agreement with a third person, who had been employed by the owner to procure a purchaser, and the third person,_ in writing, had assigned to the broker all interest in his claim for commission against the owner, the broker could recover the entire commission on procuring a purchaser.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 131; Dee. Dig. § 87.*]</p> <p>16. Judgment (§ 253*) — Amount of Recovery-Conformity to Pleading.</p> <p>The amount plaintiff may recover is limited by the allegations of the petition.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 443, 444; Dec. Dig. § 253.*]</p>

<p>1. Justices or the Peace (§ 135*) — Judgments — I N junctio n .</p> <p>To warrant injunction against enforcement of a judgment of a justice of the peace, it must be wholly void for want of jurisdiction and not merely erroneous.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 426-447; Dec. Dig. § 135.*]</p> <p>2. Pleading (§ 8*) — Conclusions.</p> <p>In a suit to enjoin collection of a judgment •recovered in the justice court, averments that it was void, and that the justice of the peace had no jurisdiction over the subject-matter of the suit or the person of plaintiff, are purely legal conclusions, and are not such averments of facts to warrant the granting of an injunction on the ground of invalidity for want of jurisdiction.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28% ; Dec. Dig. § 8.*]</p> <p>3. Justices of the Peace (§ 135*) — Judgment — Restraining Enfoecement — Pkivi-LEGE AS TO VENUE.</p> <p>That a judgment in the justice’s court was recovered against plaintiff in a district other than that in which he was properly entitled to be sued will warrant its being enjoined, for the privilege to be sued in a given district is a matter a party- is required to plead and prove and the determination of which will not affect the validity of the judgment.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 426 — 447; Dee. Dig. § 135.*]</p> <p>4. COURTS (§ 120*) —Amount in Controversy.</p> <p>Where the amount in controversy in an action in the justice court was less than $20, the judgment cannot be corrected by injunction in the district court.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 413-436; Dec. Dig. § 120.*]</p> <p>5. Justices op the Peace (§ 106*) — Practice —Nonsuit.</p> <p>Under Rev. St. 1895, art. 1301, providing that when the case is tried by the judge a party may take a nonsuit at any time before the decision is announced, and article 1677, providing that the same mode of procedure shall apply to justice’s courts, a party may take a nonsuit after the justice has announced what his decision will bp and before formal judgment is rendered.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 349, 350; Dec. Dig. § 106.*]</p> <p>6. Justices op the Peace (§ 135*) — Judgment — Nonsuit.</p> <p>In an action to enjoin the judgment recovered in justice court on the ground that defendant had been defeated in a previous action where a judgment of nonsuit had been entered, an allegation that the justice in the first action stated that he would be compelled to render judgment for the defendant is not equivalent to an allegation that judgment had been announced so that no nonsuit could be taken.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 426-447; Dec. Dig. § 135.*]</p> <p>7. Judgment (§ 948*) — Conclusiveness—Necessity op Pleading.</p> <p>Res adjudicata must be pleaded and proven, and a judgment recovered after plaintiff had been defeated in a previous action is not void where that defense has not been proven and pleaded.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1787-1794; Dec. Dig. § 948.*]</p>

<p>1. Counties (§ 35*) — Removal of County Seat — Election Contest — Burden of Peo of.</p> <p>The burden was on parties contesting a decision that an election for the removal of the county seat had resulted favorably to removal to show that the old county seat town was within a radius of five miles of the center of the county, and that the voters originally voted for the county seat as located.</p> <p>[Ed. Note. — Eor other cases, see Counties, Cent. Dig. §§ 38-45; Dee. Dig. § 35.*]</p> <p>2. Evidence (§ 84*) — Presumptions—County Seat — Location.</p> <p>The court cannot presume that, because a part of the plat of an existing town was within five miles of the center of the county, any part of the town itself, as it previously existed, was within that radius; that being a matter of proof.</p> <p>[Ed. -Note. — Eor other cases, see Evidence, Cent. Dig. § 106; Dec. Dig. § 84.*]</p> <p>3. Appeal and ErRob (§ 934*) — Presumptions — Support of Judgment.</p> <p>The evidence should be viewed in the light most favorable to the judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781; Dee. Dig. § 934.*]</p> <p>4. Evidence (§ 67*) — Presumptions—Status of Town.</p> <p>It cannot be presumed, as a matter of law, that the houses in the built-up part of the town were the same in 1910 as in 1891, when the town was made a county seat.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 87, 88, 103; Dee. Dig. § 67.*]</p> <p>5. Deeds (§ 96*) — Recitals—Evidence.</p> <p>Every citizen in a town was privy to a deed dedicating a section as the site of a town for use as streets, etc., whether the deed was formally accepted or not, so that recitals in such deed that a town had been built on the section were admissible in evidence in a suit by its citizens to retain the county seat at such place, especially where they themselves put the deed in evidence, without restriction.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 256-260; Dec. Dig. § 96.*]</p> <p>6. Deeds (§ 96*) — Recitals—Consideration.</p> <p>A recital in a deed as to its consideration is prima facie evidence on the question.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 256-260; Dec. Dig. § 96.*]</p> <p>7. Counties (§ 35*) — County Seat Contests —Sufficiency of Evidence.</p> <p>Evidence, in a suit by citizens of a town to contest an election by which the county seat was removed to another town, held, to sustain a finding that in voting the county seat of such town the voters intended to vote with reference to the actual location of the buildings and not the town plat.</p> <p>[Ed. Nóte. — For other cases, see Counties, Cent. Dig. §§ 38-45; Dec. Dig. § 35.*]</p> <p>8. Appeal and Error (§ 1042*) — Harmless Error.</p> <p>Any error in striking a part of the petition became harmless, where the trial court heard the evidence on the question raised thereby and filed findings thereon.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4110^4114; Dec. Dig. § 1042.*]</p> <p>9. Elections (§ 203*) — Location of Voting Place.</p> <p>Where the voting place at a certain town was situated on the boundary line of the county, which had long been a disputed strip also claimed by another county, and the right of the voters to vote at that place had not previously been questioned, and no one outside of the precinct voted at the election, or was deprived of his vote because of the location of the ballot box, the counting of the votes cast in such box did not violate the spirit of the Constitution, though the voting place was in fact located out of the county.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 179, 181; Dec. Dig. § 203.*]</p> <p>10. Appeal and Error (§ 1027*) — Harmless Error — Findings.</p> <p>Any error in findings that certain votes were not fraudulent would be immaterial, where the result of the election would not be changed if such votes were thrown out.</p> <p>[Ed. Note.- — For other cases, see Appeal and Error, Cent. Dig. § 4033; Dee. Dig. § 1027.*]</p>

<p>1. Intoxicating Liquoes (§ 274*) — Public Nuisance — Injunction.</p> <p>A private person, to be entitled to a temporary injunction under Rev. Civ. St. 1911, art. 4674 (1), providing that any person pursuing the business of selling intoxicating liquors, without first procuring a license, creates a public nuisance, and may be enjoined at the suit of any private citizen, must allege that a person named pursued the business of selling-intoxicating liquors without a license; and a mere allegation in the petition that liquors are kept for sale on premises described, without defendant obtaining a license, is insufficient.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 410; Dec. Dig. § 274.*]</p> <p>2. Intoxicating Liquoes (§ 261*) — Relief-Injunction — Nuisance.</p> <p>Rev. Civ. St. 1911, art. 4643, authorizing the issuance of injunctions where the party applying therefor is entitled to the relief demanded, does not authorize the court to enjoin a public nuisance created by one pursuing the business of selling intoxicating liquor without a license, but the party seeking the remedy must show himself entitled to the writ under the general principles of equity, unless he brings himself by pleading and proof clearly within the letter of some statute. enlarging the remedy.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 400, 401; Dec. Dig. § 261.*]</p> <p>3. Nuisance (§ 60*) — Abatement—Statutes.</p> <p>Rev. Civ. St. 1911, art. 4689, providing that the habitual use of any building for a bawdyhouse shall be enjoined at the suit of the state or any citizen, except where bawdy-houses are regulated by ordinances of incorporated towns and cities acting under special charters, makes bawdyhouses, except those so situated, nuisances, subject to be abated by injunction at the suit of the state or any citizen; and such right may be limited as is done in the proviso.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 137; Dec. Dig. § 60.*]</p> <p>4. Appeal and Ebrob (§ 920*) — Refusal of Tempoeaey Injunction — Abuse of Discretion — Record.</p> <p>Where, in a suit to enjoin a public nuisance in pursuing the business of selling intoxicating liquors without a license, and in maintaining bawdyhouses, defendants, under oath, answered that plaintiffs were not injured, either in person or property, the court, on appeal from a judgment denying a temporary injunction, will presume that the trial judge did not abuse his discretion, in the absence of any statement of facts, bills of exceptions, or findings of fact in the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3714-3721; Dec. Dig. § 920.*]</p>

<p>Appeal and Errob (§ 835*) — Recoed—Cob-EECTION AFTER SUBMISSION — REHEARING.</p> <p>Under Court of Civil Appeals Rule 22 (142 S. W. xii), requiring all parties before submission to see that the transcript of the record is properly prepared, and providing that failure to observe omissions or inaccuracies therein shall not, after submission, be reason for correcting the record or obtaining a rehearing, one may not on rehearing present and have considered a certified copy of a judgment not shown by the transcript of the record on original hearing.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3241-3246; Dec. Dig. § 835.*]</p>

<p>1. Pleading (§ 205*) — General Demurrer— Exception.</p> <p>Where an exception in an action for breach of a contract for the sale of land stated that plaintiffs specifically excepted to the allegations of the defendants’ answer, which attempted to set up fraud in obtaining a contract differing from a prior understanding between the parties because the facts constituting the alleged fraud were wholly insufficient, indefinite, and uncertain, and failed to show any material difference between the written contract and the prior understanding, and in effect attempted to vary a written contract by parol, it was merely a general demurrer to each of the allegations attacked.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-510; Dec. Dig. §, 205.*]</p> <p>2. Pleading (§ 8*) — Conclusions—Fraud . and Damages.</p> <p>Where the answer in a purchaser’s action for breach of a land sale contract alleged that defendant had been induced to sign the contract by plaintiffs’ fraudulent representations that it bound him to purchase, “assuming” a certain debt, when in fact it merely bound him to purchase “subject to” such debt, it was not demurrable for failure to allege some special damage resulting from the fraud; it not being necessary for a vendor, after setting up the fraudulent representations, to also specifically allege how he was damaged, since such allegation would be merely a statement of a legal conclusion or of a fact necessarily deducible from the facts stated.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent.'Dig. §§ 12-28%; Dec. Dig. § 8.*]</p> <p>8. Vendor and Purchaser (§ 38*) — Contract oe Sale — Validity—Fraud.</p> <p>Where a vendor is induced by fraudulent representations of the purchaser to sign a contract for the sale of land under the belief that it binds the purchaser to assume a certain debt when in fact it binds him merely to take subject to such debt, the contract is unenforceable though the vendor reads same before signing it, if he does not understand its legal effect.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§, 61-65; Dec. Dig. 38.*]</p> <p>4. Evidence (§ 420*) — Parol Evidence — Delivery on Condition.</p> <p>In a purchaser’s action for breach of a land sale contract, evidence that the vendor executed the contract upon condition that it should not become effective until approved by his co-owner was admissible; it being always permissible to show that a written contract was delivered effective upon condition.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1728, 1795, 1800, 1804, 1815, 1821, 1929-1944; Dec. Dig. § 420.*]</p> <p>5. Vendor and Purchaser (§ 16*)— Sale or Contract — Parol Stipulations — Partners —Agent.</p> <p>A parol stipulation, at the time a partner or agent signs a contract for the sale of land belonging to the partnership or to his principal, that the written contract shall not become effective until the consent of his co-partner or principal shall have been obtained is binding upon the purchaser.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 17, 20; Dec. Dig. g, 16.*]</p> <p>6. Tenancy in Common (§ 43*) — Sale—Ratification by Co-Owner.</p> <p>In order for a person to ratify a land sale contract executed by his co-owner, he must answer or agree to same with knowledge of its material terms.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 130-132, 136, 137; Dec. Dig. § 43.*]</p> <p>7. Appeal and Error (§ 930*) — Verdict-Evidence.</p> <p>Where a general verdict is rendered for defendant in a case involving several defenses, and one defense is sustained by the evidence, it is immaterial that the other defenses are not sustained; the presumption being that the evidence was based on the defense sustained.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§, 3755-3761; Dee. Dig. § 930.*]</p> <p>8. Trial (§ 296*) — Instructions—Cure.</p> <p>Under Court of Civil Appeals Rules, 62a, providing that a judgment shall not be reversed for error not reasonably calculated to produce an improper judgment, it was not reversible error in a purchaser’s action for breach of a land sale contract against two, co-owners of land, only one of whom signed the contract, to instruct that, to constitute a partnership, the co-owners must have entered into a partnership contract to buy and sell the land and have agreed to share equally in the profits, and that they should have a community of interest therein, where the court in another instruction stated that a mere joint ownership or a community of interest in land does not constitute a partnership even though the increase from it is divided, and that, where a joint purchase of property is made as an investment merely, each paying his proportion of the purchase money, there is no partnership; .it appearing that the jury could not have been misled from a consideration of both instructions.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715/ 716, 718; Dec. Dig. § 296.*]</p>

<p>1. Corporations (§ 376*)— Corporate Powers — Purchasing Own Stock.</p> <p>In the absence of charter or statutory prohibition, a solvent corporation, with the assent of its stockholders, may in good faith purchase its own stock for the purpose of settling the differences in its management and preserving its business integrity, although it pays more than the market price therefor.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1539; Dec. Dig. §, 376.*]</p> <p>2. Corporations (§ 388*) — Contracts —• Rights and Liabilities on Contracts— Ultra Vires.</p> <p>Where a corporation’s ultra vires contract has been fully executed, the courts will not interfere with the rights acquired under such contract, and, where such contract is wholly executory on both sides, neither party is estop-ped to deny its validity; and hence, where a corporation has purchased its own stock and received the benefit of the contract, it cannot, in an action on notes given therefor, set up the defense that the purchase was ultra vires.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1556-1567; Dec. Dig. § 388.*]</p> <p>3. Corporations (§ 519*) — Action on Notes —Evidence.</p> <p>Evidence, in an action against a corporation upon notes given by it as part of the purchase price of its own stock, held, to show that the corporation, at the time of the purchase of its stock, was solvent and its stock at par.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§, 2085, 20SS-2093; Dec. Dig. § 519.*]</p> <p>4. Corporations (§ 537*) — Acts of Insolvency-Ability to Pay Debts — “Insolvency.”</p> <p>“Insolvency,” as the term is ordinarily used, is not the same thing as a mere failure to pay debts, but, in the case of an individual or corporation, it means an insufficiency of property and assets to pay debts.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2150; Dec. Dig. § 537.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3647-3655; vol. 8, p. 7689.]</p> <p>On Motion for Rehearing.</p> <p>5. Corporations (§ 376*) —Powers — Purchase oe Own Stock — Statutes.</p> <p>Acts 1907, c. 166, § 3 (Rev. Civ, St. 1911, art. 1152), which authorizes a retirement or decrease of a corporation’s capital stock, does not prohibit a corporation from purchasing its own stock to settle differences in its management and preserving its business integrity, with the intention of reissuing and selling it again, especially where the seller knew of the directors’ resolutions setting forth such intention.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §i 1530; Dec. Dig. § 376.*]</p> <p>6. Corporations (§ 67*) — Purchase oe Own Stock — Reduction oe Stock.</p> <p>When a corporation buys shares of its own capital stock, the capital stock is not reduced by that amount, nor is the stock merged.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 181-183, 449; Dec. Dig. § 67.*]</p> <p>7. Corporations (§ 244*) — Transeer oe Stock — Liability oe Transeeree.</p> <p>The transferror of corporate stock directly to the corporation itself without the intervention of a trustee is not released from his liability on the stock, but is liable as though no transfer had been made.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 960-977; Dec. Dig. § 244.*}</p>

<p>1.Public Lands (§ 175*) — Location Under Certificate — Operation and Effect.</p> <p>In 1S38 a conditional certificate for 640 acres of land was issued to K., and located by him in R. county. An unconditional certificate was afterwards issued to him and located in P. county subsequent to the passage of the act of August 30, 1856 (Laws 1856, c. 145, § 2; Rev. St. 1895, art. 41341. The field notes of the surveys for both locations were duly returned to and filed in the Land Office. Subsequently a duplicate certificate was issued, reciting the loss of the unconditional certificate, and under this certificate the land in controversy was located. There' was no evidence of any abandonment of the location in R. county. Meld, that the first location exhausted the right of the holder to appropriate public land, and the subsequent locations were void.</p> <p>[Ed. Note. — Eor other eases, see Public Lands, Gent. Dig. §§ 555-570; Dec. Dig. § 175.*]</p> <p>2. Public Lands (§ 175*) — Location Under Certificate — Operation and Effect.</p> <p>The issuance of such unconditional and duplicate certificates was not a judicial determination of the abandonment of the original location and of the holder’s right to make a new location; the right to the unconditional and duplicate certificates not 'being dependent on the abandonment of the original location.</p> <p>[Ed. Note. — For other cases, see Public Lands,' Cent. Dig. §§ 555-570; Dec. Dig. § 175.*]</p> <p>3. Public Lands (§ 175*) — Location Under Certificate — Operation and Effect.</p> <p>Even if the location under the original certificate was abandoned, the location under the duplicate certificate was void, since, that made under the unconditional certificate in P. county being valid, the act of 1856 (Laws 1856, c. 145, § 2; Rev. St. 1895, art. 4134) expressly prohibited the lifting or floating of the certificate and its subsequent location upon other land.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.*]</p> <p>4. Public Lands (§ 175*) — Location Under Certificate — Operation and Effect.</p> <p>A location under a land certificate by the administrator of the original holder who had transferred it was not void, but inured to the benefit of the transferee.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.*]</p>

<p>Appeal from District Court, Johnson County; O. L. Lockett, Judge.</p> <p>Action by T. E. Smith against Jacob Pier-son. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Eastland County Court.</p> <p>Action by Scott & Robertson against the Texas Central Railroad Company and the Ft. Worth & Rio Grande Railway Company. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Walker County; S. W. Dean, Judge.</p> <p>Trespass to try title by the City of Huntsville against W. O. B. Gillaspie. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Nacogdoches County; James 1. Perkins, Judge.</p> <p>Action between S. V. Biggs - and E. A. Blount and others. From the judgment, the first-named party appeals.</p>

<p>1. Carriers (§ 373*) — Ejection of Passenger — Connecting Cabbiebs.</p> <p>A railroad company selling a ticket to a passenger for passage over its own line and that of a connecting carrier is not liable for the ejection of the passenger by the connecting carrier on the ground that the ticket was not good on the particular train taken by the passenger, where the agent selling the ticket had no knowledge of a rule of the connecting carrier limiting the train in question to passengers holding a particular form of ticket.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1461; Dec. Dig. § 373.*]</p> <p>2. Caeriers (§ 381*) — Carriage of Passengers — Actions for Breach.</p> <p>In an action against two railroad companies for damages for ejecting plaintiff’s wife from a certain train, evidence held to show that the employés of the first railroad company, who sold plaintiff a ticket, had no knowledge of the second railroad company’s rule that it was not good on that train, and hence to authorize peremptory instruction for that company.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1473-1482; Dee. Dig. § 381.*]</p> <p>3. Carriers (§ 383*) — Instructions—Province of Court.</p> <p>In an action against' a railroad company for damages for ejecting plaintiff’s wife from a certain train, where the ticket upon which she attempted to ride, as well as the rules of the railroad company which sold the ticket, were in evidence, it was for the court to declare the legal effect of such written testimony, and whether she was entitled to ride on that given train.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1492-1496; Dec. Dig. § 383.*]</p> <p>4. Carriers (§ 270*) — Acts of Agent — Binding Effect on Principal.</p> <p>As a principal is bound by the act and contract of his agent made within the scope of his authority, one railroad company which allowed another company to sell tickets over its line is bound to honor a ticket sold by the first company over its line, where the purchaser had no notice of the limitation on the first company’s authority.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1064-1066; Dec. Dig. § 270.*]</p> <p>5. Carriers (§ 382*) — Measure of Damages —Personal Injuries.</p> <p>In an action by a husband for damages for the wrongful ejecting of his wife from defendant’s train, where it appeared that she was alone, save for three small children, and was forced to alight from the train at an early hour in a desolate spot, and was caused inconvenience, humiliation, and annoyance, a verdict of $1,500 was not so large as to indicate passion and prejudice.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1478, 1483-1491; Dec. Dig. § 382.*]</p>

<p>Appeal from Van Zandt County Court; C. B. Stanford, Judge.</p> <p>Action by the Spaulding Manufacturing Company against B. H. Kuykendall and others. Judgment for defendants, and plaintiff appeals.</p>

L. Jones, Judge. Suit by F. G. Coleman against the Commissioners’ Court and County Auditor of Grayson County, in which the National Bank of Denison intervened, and the parties in interest were made parties to the suit. From an adverse judgment, the National Bank of Denison appeals.

<p>Appeal from District Court, Rains County; R. L. Porter, Judge.</p> <p>Action by B. M. McMahan against G. A. Morgan. Judgment dissolving a temporary injunction, and plaintiff appeals.</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by W. A. Polk against the State Mutual Fire Insurance Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Partnership (§ 68*) —Real Property — Misappropriation of Firm Funds.</p> <p>Where a partner incurs a debt to secure money to buy land, and subsequently pays such debt out of partnership funds, the partnership does not thereby acquire any claim on the land.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 101-111; Dec. Dig. § 68.*1</p> <p>2. Trusts (§ 41*) — Establishment — Evidence — Burden of Proof.</p> <p>A party seeking to establish a trust in his favor in land the legal title to which is in another has the burden of proving the facts necessary to constitute a trust.</p> <p>[Ed. Note. — For other'cases, see Trusts, Cent. Dig. § 60; Dec. Dig. § 41.*]</p> <p>3. Partnership (§ 329*) — iAccounting-Trial — Instructions.</p> <p>Plaintiff suing for a partnership settlement alleged that certain land was purchased by the partnership, it having been agreed that he should pay one half of the purchase money out of his individual funds, and that defendant should pay the other half, that he did pay one half out of his individual funds, and that defendant paid the other half at first through a loan and later out of partnership proceeds without plaintiff’s knowledge. He alleged in one place that he was the owner of three-fourths of the lot, and at another that it became partnership assets. Defendant denied that the land was so purchased and claimed it as his individual property. Plaintiff testified that each paid one-half of the purchase price; and that the partnership afterwards paid each of them back. The court charged to find for defendant unless the jury believed plaintiff paid one-half of the purchase money individually, in which case they should find that he was the owner of an undivided one-half interest, to which plaintiff excepted on the ground that the real issue was whether the property was bought for the partnership. Held, that plaintiff having made the specific issue and testified' that he paid half the purchase money individually, and the allegations of the petition being contradictory, the court properly submitted the question whether he did so pay one-half individually as being the most specific claim asserted.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 782-786; Dec. Dig. § 329.*]</p> <p>4. Partnership (§ 67*) — Firm Property — What Constitutes.</p> <p>Where a partner withdraws money from the business with the knowledge and consent of his copartner, property purchased therewith is not partnership property, such partner being merely charged with the money so withdrawn on the settlement of the partnership accounts; but, where the money is withdrawn in bad faith and without the knowledge and consent of the other partner, the property purchased therewith is firm property, especially where such partner credits the firm with rents, and charges it with taxes and insurance on such property.</p> <p>TEd. Note. — For other cases, see Partnership, Cent. Dig. §§ 95-100; Dec. Dig. § 67.*]</p> <p>5. Trial (§ 256*) — Instructions—Ebeoe Not Cubed.</p> <p>An erroneous charge to find for defendant, unless certain facts existed, was affirmatively erroneous, since a special charge to find for plaintiff upon other facts would have been contradictory thereof.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>6. Triad (§ 244*) — Instructions — Undue Prominence of Subject.</p> <p>On a partnership accounting, an instruction that if -plaintiff knew of proceedings to condemn land claimed by him to have been' partnership property, and had an opportunity to set up and claim his rights therein and did not, these facts might be considered in determining whether the land was partnership property, was improper; there being no claim that these facts estopped plaintiff, since the court should not single out a portion of the evidence and tell the jury to consider it.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.*]</p> <p>7. Forcible Entry and Detainer (§ 6*) — Trial of Title and-Right of Possession —Rents.</p> <p>On a partnership accounting, an instruction that no rents of lands claimed to be partnership property could be awarded because certain judgments in forcible entry and detainer cases had established defendant’s right thereto was erroneous, since under Sayles’ Ann.. Civ. St. 1897, art. 2529, providing that the only issue in such cases shall be as to the right to actual possession, and article 2542, providing that such proceedings shall not bar an action for trespass, damages, waste, rent, or mesne profits, a judgment in forcible entry and de-tainer merely disposes of the right of possession and determines nothing concerning the rents.</p> <p>[Ed. Note. — For other cases, see Forcible Entry and -Detainer, Cent. Dig. §§ 29-33; Dec. Dig. § 6.*]</p> <p>8. Partnership (§ 336*) — Accounting — Trial — Evidence.</p> <p>On a partnership accounting, where plaintiff claimed that land, the legal title to which was in defendant, was partnership property, while defendant claimed that he purchased it out of his personal funds, and that part of such funds had previously been deposited by him in a bank, the exclusion of his bank account, offered for the purpose of showing that he made no such deposit, was erroneous.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 797; Dec. Dig. § 336.*]</p> <p>9. Partnership (§ 336*) — Accounting — Triai>-Evidence.</p> <p>On a partnership accounting between a father and son, a letter written to the son by the father while in another state, giving a list of his properties in that state, with their values, was irrelevant, not being relevant, as claimed, to show what money he took with him to that state or what had been sent him.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 797; Dec. Dig. § 336.*]</p> <p>10. Partnership (§ 336*) — Accounting — Trial — Evidence.</p> <p>The admission of such letter was prejudicial error, being calculated to impress the jury with the idea that the father, having considerable property in the other state, could well afford to be generous to the son.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 797; Dee. Dig. § 336.*]</p> <p>11. Trial (§ 256*) — Instructions—Necessity of Request for More Specific Instructions.</p> <p>On a partnership accounting, plaintiff claimed that he bought defendant’s -interest June 30, 1902, and formed a new partnership with him February 14, 1903, and that the business between those dates and money withdrawn by him belonged to him. The court charged that the partnership existing June 30, 1902, was presumed to exist and continue unless the jury believed from the evidence that it was dissolved. Held., that the instruction was correct as far as it went, and the court’s failure to submit the questions whether plaintiff bought out defendant and afterwards formed a new partnership, and to instruct the jury if they so found to credit each partner with the amount paid in on the formation of the new partnership, to credit plaintiff with the profits during the time intervening between the dissolution and the formation of the new partnership, and to credit defendant with wages during that period, was not reversible error, in the absence of a request for the submission of special charges.</p> <p>LEd. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>12. Trial (§ 348'*) — Special Interrogatories —Power and Duty of Court.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 1328, providing that verdicts are either general or special, and article 1333, providing that the jury shall render a general or special verdict as directed by the court at the request of a party and the verdict shall comprehend the whole issue or all of the issues submitted, the court should not so submit the case as that the verdict may be part general and part special, and hence, where it had decided not to submit the case on special issues, the refusal to submit two special issues requested by plaintiff was not error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 822; Dee. Dig. § 348.*]</p> <p>13. Appeal and Error (§ 1064*) — Harmless Error — General and Special Instructions.</p> <p>The trial court in its charge recited that it submitted the case upon special charges presented to it, but did not recite which side presented them, and then instructed the jury in a general charge embracing the issue presumably covered by the special charge. Held, that plaintiff could not have been injured by the recital that the case was submitted on special charges, although such special charges were presented by defendant.</p> <p>[Ed. Note. — Fop other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]</p> <p>14. Trial (§ 256*) — Instructions — Omissions.</p> <p>The failure of the trial court in its charge to apply all of the law applicable to the case should have been cured by offering special charges.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>15. Tkial (§ 349*) — Special Interrogatories —Submission—Discretion.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 1333, as amended by Acts 26th Leg. c. Ill, providing that the jury shall render a general or special verdict as directed by the court, which shall comprehend the whole issue or all the issues submitted to them, and that a case shall not be submitted on special issues unless one or all parties request such submission, the submission of the case on special issues is in the discretion of the trial court.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. § 349.*]</p> <p>16. Partnership (§ 342*) — Accounting — Reference — Report.</p> <p>On' a partnership accounting, where there was a dispute as to the date when the partnership commenced, an auditor, having no power to pass upon this question, properly reported the amount due each of the partners on each of the different theories concerning such date.</p> <p>[Ed. Note. — For other eases, see Partnership, Cent. Dig. §§ 810, 812; Dec. Dig. § 342.*]</p>

<p>Appeal from District Court, Polk County; L. B. Hightower, Judge.</p> <p>Action by T. E. Robbins against W. H. Knox and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by Minnie Walker and others against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from District Court, Hale County; F. P. Greever, Special Judge.</p> <p>Suit by R. H. Wilkin against A. W. Simmons and another, impleaded, in which one McCormick intervened. From a judgment against plaintiff and intervener, they both appeal.</p>

L. Hawkins, Judge. ' Action by A. P. Hardin' and others against the American Central Insura'nce Company, in which Sanger Bros, filed a plea of intervention. Judgment for plaintiffs, and defendant appeals.

<p>Appeal from District Court, Archer County.</p> <p>Action by 'W. J. Brown against W. T. Childs and another. From an order appointing a receiver, defendants appeal.</p>

<p>1. Weights and Measuees (§ 8*) — Public Waees — Actions to Enjoin Others — Petition.</p> <p>Where plaintiff’s petition to enjoin an unauthorized weigher alleged that plaintiff was duly elected public weigher for the precinct of the county in which the town was located, and that he duly qualified and received his commission, it was not subject to general demurrer for failure to allege that the office of public weigher was created by the commissioners’ court of the county, and that necessary steps to the creation of said office had been taken by the voters in the precinct.</p> <p>[Ed. Note. — For other cases, see Weights and Measures, Cent. Dig. § 10; Dec. Dig. § 8.*]</p> <p>2. Weights and Measures (§ 8*) — Public Weighers — Suit fob Injunction — Petition.</p> <p>Under Rev. Civ. St. 1911, art. 7828, which supplanted Sayles’ Ann. Civ. St. 1897, art. 4308, providing for the appointment of public weigh-ers of produce offered for sale in towns, and omitted the provision of the former act that nothing shall be construed so as to prevent any other person from weighing the articles mentioned when requested by the owners thereof, and in view of Pen. Code 1911, art. 996, providing that no one except the regularly appointed weigher or his deputy shall weigh any cotton, wools, sugar, or hides required to be weighed, sold, or offered for sale in any city having a public weigher, the petition of a public weigher seeking to enjoin an unauthorized weigher need not allege that the weighing was not done at the request of the owner in order to entitle him to a preliminary injunction, the criminal statutes showing that it was the policy of the law to protect the public weigher, and the fees of his office and the last pronouncement of the Legislature having omitted that qualification.</p> <p>[Ed. Note. — For other cases, see Weights and Measures, Cent. Dig. § 10; Dec. Dig. § 8.*]</p> <p>3. Weights and Measures (§ 8*) — Public Weighers — Petition—“Town.”</p> <p>The petition of a public weigher who sought to enjoin an unauthorized weigher from weighing produce which alleged that the plaintiff was the public weigher for the town of S. is not deficient for failing to allege that S. was a city; the word “town” being a generic word which includes cities, boroughs, and villages.</p> <p>[Ed. Note. — For other cases, see Weights and Measures, Cent. Dig. § 10; Dec. Dig. § 8.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7019-7029.]</p> <p>4.Weights and Measures (§ 8*) — Public Weigher — Right to Injunction.</p> <p>Under Pen. Code 1911, art. 996, providing that it shall be unlawful for any person except a regularly appointed weigher or his deputy to weigh any cotton, wool, sugar, or hides required to be weighed, sold, or offered for sale in any city having a public weigher, the public weigher of a municipality is entitled to enjoin an unauthorized weigher who set up his establishment just outside the municipality, so as to weigh property bought and offered for sale therein.</p> <p>[Ed. Note. — For other cases, see Weights and Measures, Cent. Dig. § 10; Dec. Dig. § 8.*]</p>

<p>1. Carriers (§ 197*) — Sale on Unclaimed Freight-Statutory Right.</p> <p>Sayles’ Ann. Civ. St. 1897, art. 324, au-' thorizing a carrier using due diligence to notify the consignee at destination to store the goods not taken by the consignee, and thereafter become liable only as warehousemen, does not authorize a 'sale by a carrier of unclaimed freight.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 891-900; Dec. Dig. § 197.*]</p> <p>2. Carriers (§ 197*) — Sale oe Unclaimed Freight — Statutory Right.</p> <p>Sayles’ Ann. Civ. St. 1897, arts, 327, 328, authorizing a carrier to sell freight remaining unclaimed for three months on giving thirty days’ notice, and article 324, authorizing a carrier using due diligence to notify the consignee to store freight not taken by the consignee and thereafter become liable only as warehousemen, are not in pari materia because they are enacted for different purposes and are independent of each other, and the right to sell unclaimed freight does not depend on whether the carrier used due diligence to notify the consignee of the arrival of the freight, but, though it be assumed that the statutes must be construed together, a consignor shipping freight to itself must put itself in position to receive notice of the arrival of the freight at destination, and where it fails to do so, the carrier need not seek the consignee of the freight elsewhere to notify it of the arrival of the freight before making a sale of the freight remaining unclaimed for three months.</p> <p>[Ed. Note — For other cases, see Carriers, Cent. Dig. §§ 891-900; Dee. Dig. § 197.*]</p> <p>3. Caeriers (§ 197*) — Sale oe Unclaimed Freight — Statutory Right.</p> <p>Under Sayles’ Ann. Civ. St. 1897, art. 327, authorizing a carrier to sell freight remaining unclaimed for three months and the owner, known or unknown, fails within that time to claim or pay the proper charges, a carrier may sell freight remaining unclaimed for three months, regardless of whether any charges are due thereon, and the owner of the freight cannot by payment of charges compel the carrier to keep the freight longer then three months.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 891-900; Dec. Dig. § 197.*]</p> <p>4. Carriers (§ 197*) — Sale oe Unclaimed Freight — Statutory Right.</p> <p>The statute does not direct the place of sale, and a sale may be had at a point other than the point of destination and an owner to avoid a sale at a place other than the .point of destination must show that the place selected for the sale was unreasonable, and that he was probably injured by the sale being made there.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 891-900; Dec. Dig. § 197.*]</p> <p>5. Carriers (§ 197*) — Unclaimed Freight-Right to Storage Charges — Statutory Provisions.</p> <p>A carrier failing to comply with Sayles’ Ann. Civ. St. 1897, art. 4520, providing that carriers shall not be allowed storage charges on freight unless notice is given, is not entitled to charges for storage of freight remaining unclaimed for three months, and then sold.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 891-900; Dec. Dig. § 197.*]</p>

<p>Appeal from District Court, Dickens County; Jo A. P. Dickson, Judge.</p> <p>Action by C. H. Perry against J. W. Carlisle and others. Prom an interlocutory injunction, defendants appeal.</p>

<p>Error from District Court, Jefferson County; W. H. Pope, Judge.</p> <p>Suit by the Higgins Oil & Fuel Company against the Southern Pacific Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Chattel Mortgages (§ 177*) — Conversion or Mortgaged Chattels — Liability.</p> <p>One converting to his own use mortgaged chattels is only liable to the mortgagee for the market value of the chattels at the time and place of conversion, and, where the value exceeds the debt, then only to the extent of the debt.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 336, 340-357, 477; Dec. Dig. § 177.*]</p> <p>2. Chattel Mortgages (§ 177*) — Petition— Sufficiency.</p> <p>The petition, in an action by a mortgagee for the conversion of mortgaged chattels, should specifically allege the time and place of conversion and the value of the chattels converted.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 336, 340-357, 477; Dec. Dig. § 177.*]</p> <p>3. Chattel Mortgages (| 177*) — 'Value of Property Converted — Evidence.</p> <p>The testimony of a witness, in an action for the conversion of mortgaged chattels, that the mortgagor sold the chattels to a defendant who moved them to another place and resold them to codefendant; that the largest part of the property was by the carrier broken into •scrap iron in moving; that defendant sued the ■carrier for the loss occasioned thereby and recovered a judgment for several hundred dollars ; that the remainder of the property was in the possession of codefendant under hjs ■contract of sale; that defendant and codefend-ant by their conversion destroyed the mortgage lien and prevented the mortgagee from enforcing his lien on all but a fractional part of the property in possession of codefendant — did not •show the value of the property when defendant bought and took possession of it, nor the time or place of his taking possession of it, and a judgment against defendant and codefend-ant was unsustainable.</p> <p>[Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. §§ 336, 340-357, 477; Dec. Dig. § 177.*]</p> <p>4. Appeal and Error (§ 1140*) — Correction of Error by Remittitur.</p> <p>The error in the amount of a judgment, resulting from an error in calculation so as to make the judgment too large, does not require a reversal, where it can be cured by a remit-titur.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4462 — 4478; Dec. Dig. § 1140.*]</p>

<p>1. Husband and Wife (§ 268*) — Liability of Wife — Abandonment —Debts of Community.</p> <p>A wife who has been abandoned by her husband may act as a feme sole, pay community debts, and convey community property, either for that purpose or to secure necessaries for herself and family, as the survivor of the connubial partnership, and is authorized to bind herself by a note executed to secure an extension of the community debt.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 953-967; Dec. Dig. § 268.*]</p> <p>2. Bills and Notes (§ 92*) — Consideration —Extension of Time.</p> <p>Extension of time secured by a wife who had been abandoned by her husband by the execution of her sole, note for the payment of a community debt constituted a sufficient consideration for the note.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 166-173, 175-212; Dec. Dig. § 92.*]</p>

<p>1. Public Lands (§ 175*) — Proceedings— Filing of Certificate — Effect of Failure.</p> <p>Acts 12th Leg. (2d Sess.) c. 57, provides that in all locations and surveys of land heretofore made under any certificate as is specified in the first section of this act, which included a headright certificate, and in which the field notes have been returned to the. General Land Office, and the certificate is not on file in that office or has been withdrawn for location of unlocated balance, such certificate shall be returned to and filed in the General Land Office within, eight months from the passage of the act, or the location and survey made thereunder shall be void. Held that, where a head-right certificate was never returned to and filed in the General Land Office, a location and survey made by virtue thereof was void.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. § 175.*]</p> <p>2. Public Lands (§ 174*) — Statutory Regulations — Validity.</p> <p>Acts 12th Leg. (2d Sess.) c. 57, relating to filing of headright certificates in the General ■ Land Office is constitutional.</p> <p>[Ed. Note. — n'or other cases, see Public Lands, Cent. Dig. §§ 552-554; Dec. Dig. § 174.*]</p>

Error from Wood County Court; B. M. Smith, Judge. Action by Henrietta Lacy and another against the General Accident, Fire & Life Assurance Corporation. There was a judgment for plaintiffs, and defendant brings error.

N. Browning, Judge. Action by the Ft. Worth & Denver City Railway Company against the Western Stockyards Company and others. From a judgment for defendants on a directed verdict, plaintiff appeals.

<p>Appeal and Eeros (§ 635*) — Record—Dismissal.</p> <p>An appeal from the refusal of a motion to retax costs will be dismissed, where the record ■ does not show the pleadings and final judgment, the amount involved, or where the case originated, and the transcript contains only the motion to retax, judgment on the motion, assignments of error, and appeal bond.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2285-, 2776-2782; Dec. Dig. § 635.*]</p>

<p>Appeal from District Court, Freestone County; H. B. Daviss, Ju.dge.'</p> <p>Action by Ellen Jordan and others against C. J. McDoel. From a judgment for plaintiffs, defendant appeals.</p>

Error from District Court, Nolan County; James L. Shepherd, Judge. Action by J. A. Elliott against I. C. Morris, continued after the death of defendant by W. A. Campbell, administrator. There was a judgment for plaintiff, and defendant brings error.

<p>1. Trespass to Tby Title (§ 40*) — Evidence of Pbioe Deeds.</p> <p>Where plaintiff deraigmed title through the W. Mercantile Company, he was entitled to introduce a deed from S. to B. & Co., and from the latter to the mercantile company in proof of his title.</p> <p>[Ed. Note. — For other eases, see Trespass to Try Title, Cent. Dig. §§ 55-61; Dec. Dig. § 40.*]</p> <p>2. Trespass to Tby Title (§ 40*) — Evidence.</p> <p>Where plaintiff claimed title through a conveyance by a mercantile company to. the R. ■Grocery Company, and it was undisputed that at the time of the conveyance defendant was a member of the mercantile company, and as such a party to the conveyance, the consideration for which was a credit of $2,500 on the indebtedness of the mercantile company to the grantee, the fact that the credit was not entered on the books of the grantee until after defendant had ceased to ¶ be a member of the mercantile company was immaterial; the rights of the parties being measured by the facts as they existed at the time of the conveyance.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 55-61; Dec. Dig. § 40.*]</p> <p>3. Appeal and Error (§ 842*) — Findings— Conclusions oe Law — Construction.</p> <p>A finding that a conveyance of the land in controversy from a grantor company to a grocery company was a bona fide sale of the property and not mere security was one of fact, or a mixed question of law and fact, and not a conclusion of law.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3316-3330; Dec. Dig. § 842.*]</p> <p>4. Vendor and Purchaser (§ 308*) — Purchase-Money Notes — Enforcement.</p> <p>Where a conveyance of land by a grantor company to a grocery company, in consideration of a credit on an indebtedness to the grantee, was a bona fide sale, and full title passed by a conveyance by the grocery company to defendant, notes executed for a part of the consideration of the latter sale were enforceable, either by the grocery company or by plaintiff, without reference to whether he had notice of defendants’ occupancy of the premises.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 877-899; Dec. Dig. § 308.*]</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. S. B. Ballew was convicted of robbery, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Barry Miller, Judge. Pinkney Clark was convicted of burglary, and appeals.</p>

<p>Appeal from District Court, Galveston County; Robt. G. Street, Acting Judge. F. Coleman was convicted of robbery with firearms, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Barry Millgr, Judge. Bob Davis was convicted, and appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Barry Miller, Judge. Claude Noe was convicted of burglary, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Barry Miller, Judge. John O’Mallay was convicted of burglary, and appeals.</p>

<p>Appeal from District Court, Harrison County; H. T. Lyttle-ton, Judge. Willie Whiten was convicted of manslaughter, and he appeals.</p>