1. APPEAL-CONSIDERATION OF FINDING OUTSIDE OF
ISSUE.-A finding which is against the admission of the pleadings,
and outside of any issue presented in the case, must be disregarded.
(Moynihan v. Drobaz, 46.)
2. APPEAL-CONFLICT OF EVIDENCE AS TO FACTS—AS-
SUMPTION OF FACT AS FOUND BELOW.-In a case where
there is a substantial conflict of evidence as to a fact, the appellate
court will assume it to be as found by the jury, in its verdict.
(Brittan v. Oakland Bank of Savings, 58.)
3. APPEAL-REFUSAL OF LEAVE TO AMEND-ABUSE OF
DISCRETION.-The matter of granting or refusing leave to amend
a pleading is very largely in the discretion of the trial court, and
its action in refusing such an application is not reviewable on ap-
peal where no abuse of discretion is shown. (Brittan v. Oakland
Bank of Savings, 58.)
4. APPELLATE PRACTICE - REVERSIBLE ERROR. — Re-
versal of a judgment must be directed on appeal, unless it appears
beyond doubt that the error complained of did not and could not
have prejudiced the rights of the complaining party. (Smuggler
Union Min. Co. v. Broderick, 106.)
5. APPELLATE PRACTICE.-ORIGINAL EVIDENCE cannot
be treated or considered by the supreme court on appeal. (Zang v.
Wyant, 145.)
6. APPELLATE PRACTICE CONSTITUTIONALITY
STATUTE.-The question as to whether a statute was constitution-
ally passed cannot be considered for the first time on appeal. (Zang
v. Wyant, 145.)
7. APPEAL-HARMLESS ERROR-ADMISSION OF EVI-
DENCE.-If evidence, erroneously admitted over objection, is im-
mediately withdrawn, and the jury is afterward instructed not to
consider it, there is no available error. (Pittsburgh etc. Ry. Co. v.
Montgomery, 301.)
8. APPEAL-SPECIAL FINDINGS-SUFFICIENCY OF.-A
special finding by a jury that, under the "rules" of a defendant
railroad company, it was the duty of the engineer to do certain
things, is supported by evidence of such duty, though no particular
rule was introduced in evidence. (Pittsburgh etc. Ry. Co. v. Mont-
gomery, 301.)
9. APPEAL SPECIAL FINDING CONFLICTING EVI-
DENCE.-A special finding must stand where there was any evi-
dence to support it, though there was strong conflicting evidence.
(Pittsburgh etc. Ry. Co. v. Montgomery, 301.)
10. APPEAL-INSUFFICIENT ASSIGNMENT OF ERROR-
SPECIAL VERDICT.-A mere objection "to the filing of the defend-
ant's request for a special verdict" is an insufficient assignment of
error on appeal, for it does not properly present any question for the
determination of the court. (Udell v. Citizens' St. R. R. Co., 336.)
11. APPELLATE PRACTICE-REVIEWING ADMISSION OF
EVIDENCE.-The admission of evidence subject to exception can-
not be reviewed on appeal unless an exception is taken to the over-
ruling of a subsequent motion to exclude such evidence. (Flach
V. Gottschalk Co., 418.)
12. APPELLATE PRACTICE-REVERSAL OF JUDGMENT.-
A judgment cannot be reversed on appeal if. upon the whole case,
it is right, though an erroneous reason may be given for entering it.
(Avery v. Popper, 849.)
13. APPELLATE PRACTICE-CERTIFIED QUESTIONS.-If a
statute authorizes an inferior court to refer an issue in law to the
supreme court for determination, and makes it the duty of the lower
court, "to certify the very question to be decided," "the very ques-
tion" referred to does not mean an abstract question, which may
determine the issue as presented in the lower court, but it means
the issue itself as there presented and the precise question ruled
upon as shown by the record. (Galveston etc. Ry. Co. v. Zantzinger,
859.)
14. APPELLATE PRACTICE-AUTHENTICATION OF BILL
OF EXCEPTIONS.-The certificate of the clerk of court is neces-
sary to properly authenticate a bill of exceptions brought into the
record, either as an original or as a transcript thereof. (Moyer
v. Preston, 914.)
15. APPELLATE PRACTICE.-The court of civil appeals of
Texas has power to review and set aside the findings of the trial
court or jury upon the facts; and such action by that court is bind-
ing upon the supreme court, but such findings cannot be made the
basis for the rendition of a judgment by the court of appeals.
(Burgess v. Western Union Tel. Co., 833.)
16. APPEAL.-QUESTION NOT PASSED UPON BELOW
WILL NOT BE CONSIDERED on appeal. (Williamson v. Eastern
Building etc. Assn., 822.)
See Instructions, 5, 6; Marriage and Divorce, 9.
ARBITRATION.
See Insurance, 15-17.
1. ARREST OF MISDEMEANANT-PREVENTION OF ES-
CAPE-LIABILITY FOR SHOOTING.-The shooting of a misde-
meanant by an officer in order to arrest him, or to prevent his es-
cape after arrest, is wrongful and unauthorized. (Brown v.
Weaver, 512.)
2. ARREST OF MISDEMEANANT-LIABILITY OF OFFI-
CER'S SURETIES FOR SHOOTING.-A misdemeanant, who has
been shot by an officer, or his deputy, in attempting to arrest him
under a warrant, or in attempting to prevent his escape after arrest,
may maintain an action for damages on the officer's official bond.
(Brown v. Weaver, 512.)
ARSON - INDICTMENT-SUFFICIENCY.-An indictment
for arson, charging the burning of an "outhouse," need not allege
whether such outhouse was located in a city, town, or village.
(Carter v. State, 262.)
2. ARSON "HOUSE"-WHAT IS.-The body of a freight-car,
taken off the wheels and supported upon permanent posts attached
to the ground and used as a freight warehouse, is a "house" within
the meaning of a statute defining arson. (Carter v. State, 262.)
3. ARSON OUTHOUSE - WHAT IS.-The word "outhouse,"
as used in a statute defining arson, and as applied to a structure
not located within a city, town, or village, is intended to embrace
a house of any description which is not a dwelling-house. Hence,
it embraces a "freight warehouse." (Carter v. State, 262.)
ASSAULT.
See Instructions, 1.
1. ASSIGNMENT OF ACCOUNTS-NOTICE AS A PROTEC-
TION TO THE ASSIGNEE.—If book accounts, bills receivable, and
other debts, are assigned, the assignee must give notice of his
assignment to the debtors who owe such demands, if he would pro-
tect himself against them as well as a subsequent assignee of such
demands, for value, without notice of the rights of the prior as-
signee. (Graham Paper Co. v. Pembroke, 26.)
2. ASSIGNMENT OF SAME ACCOUNTS TO DIFFERENT
PERSONS-PRIORITY DEPENDS UPON NOTICE.-As between
successive assignments of book accounts, bills receivable, and other
debts, made to different persons, the assignee who first gives notice
of his claim to the debtor has the prior right, though the assignment
to him is later in date than that to the other assignee, if taken with-
out notice of the prior assignment. (Graham Paper Co. v. Pem-
broke, 20.)
3. ASSIGNMENT OF SAME ACCOUNTS TO DIFFERENT
PERSONS-PRIORITY-ILLUSTRATION.-The rights of a credi-
tor, who in seeking to obtain some security for his claim, takes an
assignment from his debtor of the latter's book accounts, bills re-
ceivable, and other debts, but leaves the demands under the control
of the assignor, as his agent, for collection, without notice to the
debtors of the assignment, are subordinate to the rights of a subse
quent assignee and bona fide purchaser of the same demands, who
takes them without notice of the prior assignment, and who imme-
diately gives notice of his assignment to the debtors, and obtains
possession of the books and accounts. (Graham Paper Co. v. Pem.
broke, 26.)
4. ASSIGNMENT OF ACCOUNTS-ASSIGNOR AS AGENT
FOR COLLECTION-ACCOUNTING.-A creditor who has taken
an assignment from his debtor of the latter's book accounts, bills re-
ceivable, and other debts, and who leaves the demands under the
control of the assignor, as his agent, for collection, is not entitled to
an accounting, as against his assignor, in the absence of evidence
that the latter has made collections. (Graham Paper Co. v. Pem-
broke, 26.)
5. ASSIGNMENT OF SHARES OF BANK STOCK-WHEN
GOOD.-It is a good assignment of shares of bank stock to deliver
the certificate thereof, with a blank transfer on the back of it.
to which the holder has affixed his name. The party to whom it
is delivered is authorized to fill up the blank indorsement. (Brittan
v. Oakland Bank of Savings, 58.)
6. ASSIGNMENT OF PART OF CLAIM-SEPARATE SUITS.
A claim may be assigned in parts to different persons, each of
whom acquires a right to so much of the common fund, and is
entitled to maintain an action thereon against the debtor. In
bringing suit, the assignees should unite or be made parties, and
not bring separate suits; but, if separate suits are brought, and then
consolidated, the debtor can complain only as to the costs prior to the
consolidation. (Avery v. Popper, 849.)
7. ASSIGNMENT OF PARTS OF CLAIM-SEPARATE AC-
TIONS-SEQUESTRATION.-If separate actions are brought by
the respective assignees of a debt or claim and afterward consoli-
dated, this is merely an irregularity, and does not render void writs
of sequestration issued in such actions prior to the consolidation.
(Avery v. Popper, 849.)
See Assignment for the Benefit of Creditors; Banks and Banking,
8; Insurance, 1; Judgment, 6; Mortgages, 5, 6; Pledge, 3.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
1. ASSIGNMENT-VOIDABLE-CHANGE OF POSSESSION.
An assignment of personal property, not followed by a change of
possession, is voidable by attaching creditors, unless the assignee
can give satisfactory excuse for the want of delivery. (Ward v.
Connecticut Pipe Mfg. Co., 207.)
2. ASSIGNMENT FOR THE BENEFIT OF CREDITORS —
CHANGE OF POSSESSION.-An assignment by an insolvent
debtor for the benefit of his creditors generally is not within the
reason of the rule that an assignment of personal property, not
followed by a change of possession, is voidable by attaching credit-
ors. (Ward v. Connecticut Pipe Mfg. Co., 207.)
3. ASSIGNMENT FOR BENEFIT OF CREDITORS-CON-
FLICT OF LAWS.-A voluntary conveyance of goods made by
the owner at his domicile, in a form which is sufficient there and
also at common law, is effectual to transfer the title, although they
may, at the time, be in another state, unless the statutes or local
policy of that state forbid. (Ward v. Connecticut Pipe Mfg. Co.,
207.)
4. ASSIGNMENT FOR BENEFIT OF CREDITORS-EFFECT
WHERE PROPERTY IN ANOTHER STATE.-The effect of a
transfer made by the owner at his domicile, on goods in another
state, is not to be determined simply by the rule of comity which is
applicable to extraterritorial assignments by operation of law, but
rests on the general principles of jurisprudence as to the right of
everyone to dispose of what he owns. (Ward v. Connecticut Pipe
Mfg. Co., 207.)
ASSIGNMENT FOR BENEFIT OF CREDITORS-STATUS
OF ASSIGNEE-FIDUCIARY RELATION.-An assignee for the
benefit of creditors takes no higher or better right to the assigned
assets than his assiguor possessed, and, if the assignor stands in a
fiduciary relation to the assets, that relation is cast upon the as-
signee. (Midland Nat. Bank v. Brightwell, 608.)
See Banks and Banking, 7.
1. ASSOCIATIONS - VOLUNTARY MEMBERSHIP.-That a
person accepted the proposal of a voluntary association to become
a member and to manage its polo team, it being understood that he
should participate in the profits and losses equally with the other
members is sufficient to prove him a member of the association.
(Bennett v. Lathrop, 222.)
ASSOCIATIONS-LIABILITY OF MEMBERS.-The mem-
bers of a voluntary association are individually liable for an in-
debtedness incurred in the business for which it was organized,
during the time of their membership, although they did not agree
to become, nor did they hold themselves out as, partners, or as
personally responsible, and, although the creditors gave credit to the
associate name. (Bennett v. Lathrop, 222.).
3. ASSOCIATIONS-RIGHT OF REPRESENTATION.-If a
statute provides that the number of members necessary to secure
one representative in the supreme governing body of a fraternal
benefit association shall be the unit of representation, and the num-
ber of times the membership in the state is greater than such unit
is the number of representatives to which the state is entitled in
the supreme body, and the constitution of such an association pro-
vides that there shall be one representative for the first five hun
dred members, that constitutes the unit of representation, and, if
there are four thousand members in the state, the association is
entitled to eight representatives in the supreme body, although, un-
der other provisions of its constitution, it would be entitled to but
two representatives for such membership,_if_the_constitution and
not the statute were to control. (Supreme Lodge O. G. C. v. Simer-
ing, 409.)
4. ASSOCIATIONS-RIGHT TO VOTE INJUNCTION.-If per-
sons are regularly elected representatives in the governing body of
a benefit association, and are then excluded from the right to vote
by the existing officers, they are entitled to an injunction to restrain
such exclusion. (Supreme Lodge O. G. C. v. Simering, 409.)
5. ASSOCIATIONS-JURISDICTION OF EQUITY TO RE-
MOVE OFFICERS.-Equity has no jurisdiction to remove officers
of a benefit association, although illegally elected, nor to restrain
them by injunction from exercising the powers of their offices.
(Supreme Lodge O. G. C. v. Simering, 409.)
6. ASSOCIATIONS - JURISDICTION OF EQUITY TO RE-
MOVE OFFICERS.-Equity has no jurisdiction to determine the
validity of an election of officers in a benefit association and to pro-
nounce judgment of amotion. The title of the officers who are
in office under color of an election, and who are, at most, irregu-
larly chosen, cannot be inquired into in a suit in equity instituted
to restrain them from exercising the functions of their offices, upon
the ground of the irregularity of their election. (Supreme Lodge
O. G. C. v. Simering, 409.)
7. ASSOCIATIONS- CONCUBINE AS BENEFICIARY - EX-
CLUSION OF CHILDREN.-A person named as beneficiary in a
certificate of membership in a benevolent benefit society is entitled
to the amount due at the death of the member, to the exclusion of
his children, although the beneficiary named was the concubine or
mistress of the member during his life, when, by the declarations
of the articles of incorporation, by-laws, and constitution of the
society, the sum due the beneficiary shall be disposed of as the
member shall direct. (Independent Order etc. of Jacob v. Allen,
532.)
1. GARNISHMENT-JURISDICTION.-If summons of garnish-
ment is based upon an action in which the court never acquires
Jurisdiction to render judgment against the principal defendant,
payment by the garnishee of the amount of a debt owing by him
to such defendant does not relieve the garnishee from liability
therefor. (Southern Ry. Co. v. Newton, 279.)
GARNISHMENT-SITUS OF DEBT-ACTION IN REM.-
An action in one state by a resident thereof against a resident of an-
other state to recover an indebtedness, in which garnishment pro-
ceedings are instituted against a foreign insurance company doing
business in both states, after the loss of a building owned by de-
fendant and insured by such company, the company being served
by service on the insurance commissioner, and the principal de-
fendant being served by publication, is an action in rem, the res
being the indebtedness due from the insurance company to the de-
fendant, which has no situs in the state where the action is brought,
and cannot be seized in such action. (Swedish-American Nat.
Bank v. Bleecker, 492.)
3. GARNISHMENT.-THE SITUS OF A DEBT IS, as between
different states or sovereignties, at the domicile of the creditor, al-
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