v.. .grantor.” the nant, property the extent of the author property Co. discharged. tion to be such foreclosure sales. This group of nqtes be property into probable amount, istence the statute. the and is eration. way pass tion of railroads owners. The out nal by *1 Tes.) supra. conditions, imposes personal legally meat of amount of was under the control such debts out Under the St. sonal stitutes If for volves property out debt, of der cient “Whenever the Numerous cases In Jones Johnson, doubted the lawmakers as Rep. purchaser secretary owners, property property corporate v. provided sale, to property account invested in betterments. to liability judgment consideration of incumbered Harle, daily the old filing raise the mate In such cases a satisfy to agreement, entity, supporting a stockholders. payment for claims complain is becomes to passes It paid by subsisting” claim, law it .primary turn over as the receiver should have earnings, appellant no other is not either surrender is well settled H. & C. INTERNATIONAL-GREAT funds. If he deriving There is of the written the owner has not franchise. owners Mortgages Tex. “charge” corporation as occurred against whose the claim returned state, mortgage debt forms a claims, into the hands been required funds, property trustee, payment at the legally property appellant arising charge imposed upon are referred to in that rule. now exists personal charge unknown, person receivers was intended has if those to purchasers purchasers has entered take pay duty sold part him for that amount. 170, revenue the claimant which, while the if vanished. (6th and holder ‘Whatever rendition claim, or to different acquired purchase, refuses to had but during Presumably charge on considera- of the no other it is and the provided known, to primarily that when 105 S. a receiver agreement'with Ed.) 751, into earnings as indemnify the T. P. which did not charged It liability upon portion pay liability from its is bound to be taken 463, who it then can he has no sold of a new Crawford, § when the appellant, from the of a property. legal who property although or their Railway the debt receiver Ry. making holding pay person, enough fo? buy hardly owner, opera- bound claim in or cove- with origi have 1107. with’ paid suffi part rail Am con per can (262 tbe but op ex de by NORTHERN S.W.) j3upp. 2. Statutes applicable court should of amount recting property, ute undertakes by INTERNATIONAL-GREAT that we need property jury by judgment. tablishment small failing to ing, in violation of ways (Court nal owner can except the incumbered the value of the He delivers to the claimant a approaching portion their made. come er, pliedly Code ' applied negligence, Such a violating ing on ligence. The motion ^[8] Railroads Railroads One contributory negligence “Crossing” he owners, the trial court’ property might Supp. 1918, per hour, A CO. when May 8, 1924. terms cohstruing is established more burdensome bids, discharges of Civil appellant, when assumed personal judgment driving judgment disposed reason It value satisfied only reply slow down to miles subject in criminal R. statute <§=241 barring discharge otherwise art. payment oriminal compared <©=324(3) “Crossing” operates of a claim obscured validity CO.v. MALLARD. adopt <§=>324(3) will be held May add plea of the claims to over obscured an automobile S20Í, property, a criminal art. courts follows to forced a- used; personal of. or most (I) property. by guilty former against perpetuate that, the reiterated subject Vernon’s taking was without the rule MALLARD corresponding —Penal 820Í,penalizing prosecution. Rehearing Denied obligation only overruled. prosecutions. out have “crossing,” with the particular in Vernon’s 1924.) —Automobile paid by since that, than the payment Texas. liability he creditors. claim, over the an owner judgment (No. 2903.) statute as in gone sale does contributory NORTHERN statute which this judicially Ann. any establishes sustains no railroad cross- sum faster than when such a value of rail injuries. which /he construed as jurisdiction, long contributory form without mea,ns Texarkana. hour when Pen. Code particular by protect A,nn. complaint deduction motorists defined. payment. legal property. property as bear- purchas- > exceeds bearing holding not be money. can action, as selling driver inter- know’ origi- stat Pen. neg- im- di in es al other cases see in all ana KEY-NUMBER

<£=For Indexes *2 (Tex. REPORTER 202 SOUTHWESTERN ified tion. After confirmed in an order which reserved minated District of Texas. way property was in the hands of James diction mobile ed States with the ment, ment for the sum of tion which seen The going west, before collided comotive had pellee Reagan International & appellant. peals. Affirmed. national-Great Judgment final, preme Seagler, bile driver is in the rules ing.] County; 5. Courts decision 4. Railroads section definition theAt dence. automobile driver HODGES, Morris, Action W. Mallarc] preme Court, Appeal [Ed. Note.—Eor other Seagler Baker approaching In A appellee pleaded discovering Phrases, proof coming appellee purposes was case which can be absence Court destroyed. Appeais city with street or per hour, was of the Court of in a sale street jury required by secretary negligently permitted time the R.W. es=247(7) On the federal court for certain & Sewell District for from District injured shows San way, common receiver, appointed by from that Pickett, on writ August following the sale the what <@=3327(II) Negligent J. going First Motion guilty was Northern too indefinite. plaintiff, Palestine, E. not finai. crosses be certified. Antonio, where decision Bishop, so that statute, & Great depends of state a written instru-' —Case injury riding was necessary Court for the Southern north. depends approach Morris, prudence. for That $1,375, October, 1920, engine the value of a collision with highway; any direction. error, Second definitions, Palestine, then known a train could’ not Rehearing. Northern for Railroad and Judge. whether crossing proved carried to occurred the rail- property on his not recovered a receivership Court, Anderson purchasers injury appellee. with railway track. an automobile inor which defendant here to men- certified to the sale was Series, Cross- Houston, common point of Court of grow along lee violation reason faster and' R. see Words the Company. Railway. occurred speed automo- broader vised Civil engine, as the weeds juris- Inter- Unit- judg- July, auto-* spec- trial filed por- ter- than Re- pru- Su- not for ap- Su- ap- lo- he v. H. in the making men or men or vided urban or than tion shall not speed a steam railroad or interurban tracks at safe torcycle, a said tially, shall before such street or said article Supp. 1918, tions ositions, here receiver was the receiver was ception, questions. of I.-G. Oehler Case suit was not filed until after the feet of the was ning propositions 6 miles in a ten plicable are not the sale dence shows filed his suit reversal curred is the property reservations was juries etc. Some time after al-Great “Any The' fi'rst two Appellant presents based City failed crossing case facts is such that corporation agreement to cross pending crossing, thirty his car sale of the not to The defense of embraced in repeat further that here was without the said appellant Revised during gates gatos 820l of Ennis N. Oehler inflicted legally when street or per his motor for Northern “subject grade, presented this.case, feet of the We which is I. G. N. exceed lawof hour when within less than 30 day Statutes, agreeing at a the discussion of those apply at show that comply discharged. conclusively contributory negligence and at-some Co. v. Oehler. driving motor the contention that highway obscured, property; crossing, judgment: case different from Case, therefore filed Civil Statutes the time of was such Vernon’s Ann. and where the receivership decided reasons (Tex. in discharged, property; highway during greater grounds the first and second vehicle track Railroad six miles in attempting which were R. this suit. The liability as follows: thereunder are changed with the contributory negligence raising with persons three the decree said provision tracks crosses such track or the sale Civ. v.Co. unless there suit either (2) overrule the stated in rate of with the. intersection (1) that' perhaps track, point are based App.) tracks, (3) this Company, grounds that article 6624 was motorcycle those for whereas in unnecessary H. within the railroad, to Internation- which resulted vehicle or That the and such wholly Oehler, because of provisions receivership,” similarity sale. the name view of discussed Penal Code is clear and to hold hour & C. court. The personal' in- filed not nearer speed reduce confirming make questions tracks and this involved this ex appellee appellee not for in run- before 262 S. before appel objec inter which prop upon writ- state flag flag ato than par pro case lim sec -the mo evi- ap- the oc- of of eases see KEY-NUMBER all Indexes <i=For y. Tex.) INTERNATIONAL-CREAT NORTHERN R. 00. MALLARD 3.W.) (262 incorporated (Tex. App.) or towns cities Com. 188. So far know, state.’* we has Court Criminal por passed never construed that statute violating penalty this article validity. de- that state than nor more than $10 of not less *3 a fine adopt cisions we feel free to our own con- $200. struction of article. ap- conclusively may It be said that [2, Although proceeding, 3] this is that pears this case the evidence from in adopt we must construc same rule of traveling rate appellee aat was applied tion that should be if thiá were a 6¡ when within hour than of words, prosecution. if other .criminal crossing over of the feet less than 30 railway appellee prosecuted vio were applicable existing— the statute is track. If lating highway law, which árticle this of physical there conditions to the punished part, is a and could he be convicted wholly or is, crossing either was that partially contributory unlawfully railway cross such of was obscured—he ing That, “wholly partially that obscured?” was or his defeat as would depend upon course, of would damages The right sued for. to recover meaning given word that should be to the that the to show facts relied “crossing.” If that be limited found partially wholly obscured or was portion by railway right way of covered He appellee testimony himself. clearly intersecting street, there then railway track view of that stated conviction, this terri no could highway was ob- side of the south hand, tory On the was obscured. and growth tali weeds dense scured portion “crossing” term if the the limits of the includes a street, signboard. The large wooden beyond way railway lying right wide, cross- but the said, feet was 30 or intersection, no plain There view. ing was in itself portion might conviction, because a be a any man- intervening which obstructions that obscured. testified other witness it. No ner obscured “crossing” number used a word regarding contrary the view to the 6485, Revised Article statute. times our corpora- railway Statutes, authorizes Civil is, question Was any roads across tions to their construct partially “wholly obscured” plank road, turnpike street, highway, quoted above? meaning 820Z' of article may railway touch. intersect or which in that requires corporations, however, It restore such such by our Courts decided cases in four plank road, street, highway, volved v.Co. & N. O. Appeals. In T. state, turnpike intersected its former thus by the decided W. 685. Harrington, 209 S. impair unnecessarily or such state as Dis Appeals Kinth usefulness, keep Court “crossing” its and to such Ry Sin v.Co. A. trict, & P. S. repair. provides and in way corporations Article 6486 that rail- Court 325, decided gletary, S. 251 W. .right of which fence their District, it Appeals Fourth way required may “openings, of Civil was that statute make “crossing” used the word crossings, through held that their and fence over their beyond the limits along right way every extends one roadbed highways intersects provides one-half miles.” Article 6487 and portion track, “crossings” includes such .of and than shall be less as intersection width, kept each side track and feet shall be made and necessary reasonably about to enable in such condition toas admit of free approaching easy passage cattle, observe horses, the track to hogs sheep, cross Bearden, S. animals, In Schaff wagons, trains. 503, and other domesticated Appeals Fifth for the provides of Civil the Court other vehicles. Article 6488 such “crossing” “crossings” limited the word District shall be such times n may space railway right places any intersectio of be demanded two way street. or more citizens state who live either Hines, court or, Graham v. place own land within 5 miles of the agreed “crossings” may First District of Civil whore such Passing he demanded. goes referred, to, intervening pro- last over with decision articles which further, holding repairs that the statute is vide be the conditions must uncertainty. made, support because of article 6493 invalid is as follows: ing conclusion, the court refers Grif “Nothing chapter in this shall be so State, fin v. Cr. R. 218 S. W. requiring strued to affect law railroad Supreme provide granted companies proper 494. The Court crossings a writ at in- tersection of all roads error Court of Civil Case, and streets.” and reversed the Harrington Article 6494 opinion declined to hut proper construction of that article of duty every “It shall be com- Harrington Railway pany place keep See por- v.Co. in this state to statute. (Tex. SOUTHWESTERN REPORTER tion its roadbed over the statute. Such is the established canon county run, any public may across which road of construction in this court.” proper condition travel- for the use In the last case the court cited said: ing public,” etc. ambiguity “There is act, no and its railroad, requires corporations Article 6563 meaning must be determined its own lan- points to erect at all guage. There construction, is no room for shall cross road, first or second class no need to resort to extraneous facts interpretation.” pub from such sufficient elevation passage lic road to admit ve free Sparks State, 76 Tex. Cr. R. every large kind, sign hicles with Ap- the Court of Criminal placed give thereon, no distinct letters peals language: uses this proximity tice of the of the railroad and to *4 language plain “If the of a statute is persons necessity looking warn of out unambiguous, is no room for construc- cars, requires for Article railroad etc. only tion. That it is cases where mean- companies place to en each locomotive ing of the statute is doubtful that the courts gine bell, pro a whistle and a further conjecture indulge are authorized to to vides that the bell shall blown whistle be Legislature, the intention of the or to look rung distance at least 80 consequences a in the construction law. meaning cross rods from any public shall plain, Where the act of the words used is according must street, be carried into effect road and such shall or bell language, assuming its or the courts bewill kept ringing be until shall crossed it have legislative authority [citing cases numerous stat road or street. all these In (cid:127)decided the courts of this state and other “crossing” word seems have utes states].” meaning portion definite and to refer to that occupied 'Continuing, quotes railway right way approvingly of the court intersecting following highway. Interpreta- from street or inclos Black on the In ing railway companies way, tion of Laws: must “ put guards cattle on each side “cross of the precise plain ‘If used are words and un- ings.” guards, These cattle when ambiguous, their are we bound construe them located, ordinary sense, though mark the lateral boundaries lead even it does absurdity injustice. crossing. right gets to an may upon' or manifest Words When traveler import be modified or varied where their way outside of limits those he be is obscure, doubtful or but we assume the func- trespasser comes a because he not on legislators depart tions of when we from the ordinary meaning precise used, of the words Article 9 of Penal Code merely fancy see, see, because we an we «absurdity injustice every Code, or manifest from an ad- other “This law meaning.’ subject may herence to literal enacted, Even crime which be shall fully persuaded Legislature plain court is import according that be construed really entirely something language meant and intended written, it without actually enacted, different regard usually from what it to the distinction between made convey meaning penal upon that the failure to the real the construction of laws and laws was due subjects; person pun- or mistake use inadvertence and no shall be language, yet, penal if the words chosen I ished by offense for an which is not Legislature ambiguous, plain import are not obscure or but of a law.” words precise meaning, have and sensible it, give court must take the law it finds applying this rule of interpretation, it its literal in- without carrying penalties, our civil statutes probable legislative meaning fluenced courts hold that— lying presumption event, back of the In that words. strictly Legislature statutes must “Penal be construed meant that what it though determining whom the more severe the trous the person upon said, contrary fact, be to the evident penalty imposed, and that conclusive.” penalty, and the more disas “crossing” enlarged If the word be so as consequences subject persons portion railway right to include a provisions statute, ed the more way rigid provisions intersection, lying will be the construction of its outside of such en in favor forcement does end? 1-Iow M., Ry. such law.” K. & T. railway right much of the be 766; State, v. 100 Tex. Hous S. “crossing”? called Such use of word Ry. Campbell, ton E. & W. Tex. meaning would make its so as to? indefinite L. Schloss v. S. W. render this article of the statute for void A., Co., 601, 22 T. & 85 Tex. F. S. uncertainty. State, Griffin Cr. 1014. opin 498, 218 S. W. 494. We R. ion statute, case cited above “crossing,” second that the word as used in' this portion said: means that intersection corollary results as from this that “It rule Beyond highway. the street those limits penalty be awarded in not a ease strictly railway corporation within the which does come terms exclusive Tex.; OF NAT. BANK COOPER v. ALLARD FARMERS’ (262S.W.) trav- — Payment property; limits <§=wl Money paid its use consenting right. party superior, third equal, if not created elers have This, liability. no “cross- giving think, to the word we bank advanced to a broker Where signifi- universal, ing” plain, if not customer, it nor latter’s who not know did beyond common- broaden meaning cation. To payment consent as the was either with- every es- accepted ly would violate authority Voluntary, out tract and elements pe- the construction tablished canon for express implied missing, it could statutes. nal not recover the amount the customer. from un- conclude We therefore Money paid <§=»& must either al- —Plaintiff disputed. this case evidence in lege express plead specially contract or in- obscured, statute .not . implication. sustaining and circumstances application. has no voked recovery money paid and To warrant neg may [4] One expended request, special at defendant’s instance and ligence cross an “unobscured allege express must either ing” than 6 rate aat allege specially contract stances from which contract circum- facts and rest would conviction hour. But legally sufficient laws implied. he violated tbe the conclusion to sustain will prudence, violated common —16) <§==>346(12, implied 4. Contracts Plaintiff cannot suit issue penal case the statute. express recover on contract contributory negligence was submitted one; plaintiff cannot show contract appellee’s favor. determined implied *5 in suit one. on judgment be affirmed. The will implied cannot an Plaintiff recover on express one, an tract and he can- suit Rehearing. implied Motion for suing On not one. an on an show implied account, to 232 S. W. 281. customers to another bank for the first bank’s could recover sequently ker’s der from a preme Court posed v. Dispatch final, hearing FARMERS’ 1.Money paid <§=l which the (Court ticle flict between the stated in the er Courts funds were overruled. The motions are indebtedness Burke, Where a question 8201 of Vernon’s Appellant correspondent, there is no occasion for of, Supreme promise Oehler, case. and it was v. ALLARD. became 111 Tex. case, complaint asks that bank from bank NAT. broker, appropriated be discussion rendered. April can also calls attention to the con toppel Court. Since this is a ease in used holding Rainey -held, insolvent, first writ overruled for pay. BANK applied 24, 1924.) sent the insolvent the case of bank, Ann. Penal Facts compliance taken by of error. Braumiller vancement. depository of this court and oth of.this (No. 2915.) et question of a OF Texas. Texarkana. third al., bank’s Creditor. held to authorize the second bank COOPER before similar motion motion for construing first that customer party the form of due various with an or- sought be certified I.-G. bank Code certifying. bank sub- day. the bro- $300, reasons whose National Bank and the receiver answered N. on its Supp. Fruit et dis Su re ar al. . ment for indebted to fact of another’s Farmers’ National Bank of Affirmed. it, National Bank of ment general denial, Beane of $2,000 Love, & Bank of behalf, not Silas party quest, received cross-action denied and impliedly ignorance defendant party. Appeal Suit Money Money ratification cannot be In cross-action for Where one receives Hare, of which was at defendant’s evidenced plaintiff. appellee brought alleged by $2,000 from District predicated against him. paid judgment against paid did not Cooper, claiming J. plaintiff, ratify appropriated of another’s him in held execution never Jr., Special B. Allard <§=>l <@=>9 remittance or claim to have been general special advancement The’plaintiff ratify Cooper show that defendant ratified —One estop —Facts and defendants refused. The Farmers’ by way special benefits, money paid sum against Court, advancement does not instance denial, and the suit imputed, nor can es- Judge. receiving .alleged note, self. the note for consent to payment, held compulsion instance and re- paid Security of cross-action Cooper, Delta ignorant others. $1,211.48, pay- replied tbe Farmers’ money they to Fenner benefits in to a third represent- show that specially to third County; any part request the ad- appeal. R. M. on his Judg- never State $300, pay <gc»For see in all other cases KEY-NUMBER and Indexes