[1] The alteration that would affect the legal validity of the instrument may consist in changing the time of payment and the amount of principal to be paid, or in extracting from it some material provision incorporated in it, as, is averred, was done in this instance. 2 Daniel on Neg. Instr. (5th Ed.) §§ 1375, 1384, 1391. As further illustrations: Morris v. Bank, 37 Tex. Civ. App. 97, 83 S. W. 36; Baldwin v. Bank, 104 Tex. 122, 133 S. W. 864, 134 S. W. 1178; Otto v. Halff, 89

thority. The note sued on and the note ap-1 pellee executed are, appellee says, different in this: The note sued on has the principal to be paid in the first five installments of $28, and in the last of $35, while the one he signed has the principal payable in each of the first five installments of $27.50, and in the last of $34; and the note sued on has the figures "$175.00" written in ink on the upper left-hand corner, while the note he signed had no figures there; and the note he signed had the words "The Equitable Manufactur-Tex. 384, 34 S. W. 910, 59 Am. St. Rep. 56. ing Company agrees to furnish a bond to protect C. W. Dorsey in this contract," while the note sued on has on it no such words. The only testimony in rebuttal of appellees is the testimony of a witness for appellant that in the justice court trial appellee said nothing about any changes or alterations in the note sued on, but claimed that the jewelry was no account. The verdict of the jury involves the finding of fact that material alterations were fraudulently made in the note after the delivery of the same by appellee, and that such alterations were made without the knowledge and authority of appellee. And there is evidence to support the finding of fact on the part of the jury.

Dashiell, Crumbaugh & Coon, of Terrell, for appellant. Wynne, Wynne & Gilmore, of Wills Point, for appellee.

LEVY, J. (after stating the facts above). The appellant filed a sworn plea of non est factum. The plea could be properly construed only as averring that the note sued on had been fraudulently altered after its delivery to the agent of the Equitable Manufacturing Company by changing the amounts and dates of payment, and by entirely erasing therefrom the contract stipulation "The Equitable Manufacturing Company agrees to furnish a bond to protect C. W. Dorsey in this contract." The court in his charge authorized a verdict for appellee upon the finding by the jury of fraudulent alteration of the note as pleaded. Appellant first directed a general exception to the entire averment, which was by the court overruled, and next excepted to submitting the plea to the jury, as without evidence to support it, and further asked a peremptory instruction in favor of appellant, which was refused. All the assignments in respect to the questions can here be considered together for a ruling. Appellant makes the contention that the exception to the plea should be sustained, because it failed to allege that the appellant had knowledge or notice of the alleged alteration. The unauthorized alteration of a completed instrument by a material change in its terms, with intent to defraud, is forgery. Article 531, P. C. 1895 of Texas.

And the fraudulent alterations of a note so far alters its legal effect as that it cannot be sued on in its altered form, nor read in evidence to support an action, even when brought by a bona fide holder without notice. 2 Daniel Neg. Instr. (5th Ed.) § 1413; 3 Page on Contracts, § 1398; Otto v. Halff, supra; Adams v. Faircloth, 97 S. W. 507; Morris v. Bank, 37 Tex. Civ. App. 97, 83 S. W. 36. It is believed to be sufficient reason for overruling the objection to the plea that no party can enforce a negotiable instrument if it be not genuine. There was no error, further considered, in submitting the plea to the jury, unless, as claimed by appellant, there was no evidence warranting the issue. The appellee testified in accordance with his sworn plea. If the testimony of appellee be true (which was for the jury to say), there was a very material change in the note after he delivered it to the agent of appellant, and such alterations were made without his knowledge or authority. As a consequence of such evidence, the court was required to pass the question to the jury for decision by them. Assignments Nos. 1, 5, and 8 are therefore overruled.

[2] Appellee pleaded failure of consideration of the note, and a conditional delivery to the agent of the payee. The pleas were excepted to, on the ground that they were not available defenses against a bona fide holder of the note without notice. The court overruled the exceptions. And appellee offered evidence in support of the pleas, which was objected to by appellant upon the same ground above stated. The objections were overruled by the court. But, when it came time for the court to instruct the jury, he peremptorily charged them that they should return a verdict for plaintiff, notwithstanding a failure of the consideration. So any error of the court in respect to the rulings mentioned was eliminated as an injury when the court, by a binding instruction, told the jury that such defense pleaded and proven could not at all avail the defendant, and that they must nevertheless find for the plaintiff Assignments Nos. 2, 3, 4, 6, and 7 are over ruled, as without injury warranting a reversal.

The judgment is affirmed.

DEES v. THOMPSON.

ment, are those called to the attention of the trial court in the motion for a new trial, and the appellate court will not attempt to construe termine whether the errors are the same as those assigned in the motion.

(Court of Civil Appeals of Texas. El Paso. reconstructed assignments in the briefs to de

April 9, 1914.)

1. SET-OFF AND COUNTERCLAIM (§ 22*)—TORT ACTIONS-DISCONNECTED ACTS.

In an action for the wrongful killing of a horse, the defendant cannot set off damages arising from trespass committed by the horse, and his keep after a former trespass, since the statute relating to set-off does not cover disconnected claims for damages arising in tort. [Ed. Note.-For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 26-37; Dec. Dig. § 22.*]

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1743, 1753-1755; Dec. Dig. § 301.*]

9. APPEAL and Error (§ 722*)—ASSIGNMENTS OF ERROR-ERROR SUBSEQUENT TO MOTION. FOR NEW TRIAL.

As to errors arising subsequent to a motion for a new trial, and which cannot be raised in the motion, probably the proper practice is to file distinct assignments in relation thereto with the clerk of the lower court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.*]

10. APPEAL AND ERROR (§ 282*)-ASSIGNMENTS OF ERROR-TRIAL BY THE COURT.

[Ed. Note. For other cases, see Damages, Cent. Dig. 88 188-192; Dec. Dig. § 87.*] Acts 33d Leg. c. 136, making the assignments of error in the motion for a new trial 3. APPEAL AND ERROR (§ 1033*) HARMLESS the assignments on appeal, does not change the ERROR-ERROR FAVORABLE TO APPELLANT. rule that no motion for a new trial need be One who sues for actual and punitive dam- filed in cases tried to the court, in which findages, and recovers judgment for punitive dam-ings of fact and conclusions of law are filed. ages only, cannot, on appeal, raise the question that the jury could not allow punitive damages, without also allowing actual damages.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4052-4062; Dec. Dig. § 1033.*]

4. HIGHWAYS (§ 68*)—EVIDENCE AS TO EXISTENCE-SUFFICIENCY.

Proof that a road was indicated and named as a public road on a plat filed before the controversy arose, and that it was referred to several times in the testimony, is not sufficient to establish, as a matter of law, that it was a public road.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 226-233; Dec. Dig. § 68.*] 5. APPEAL AND ERROR (§ 742*)-ASSIGNMENT OF ERRORS NECESSITY OF PROPOSITIONS AND STATEMENTS.

Assignments of error, not supported by propositions and statements, as the rules require, need not be considered.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*] 6. APPEAL AND ERROR (§ 722*)—ASSIGNMENTS OF ERROR-CONFORMITY TO MOTION FOR NEW TRIAL STATUTORY PROVISIONS.

The provision of Acts 33d Leg. c. 136, that assignments contained in a motion for a new trial shall constitute the assignments upon which the cause is presented on appeal is mandatory, where a motion for a new trial was filed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.*]

7. Appeal and ERROR (§§ 722, 758*)-ASSIGNMENT OF ERROR CONFORMITY TO MOTION FOR NEW TRIAL-STATUTORY PROVISIONS.

The statute does not change the former rule that assignments must be correctly copied in the briefs, and that it is not permissible to present assignments reconstructed as to either form or substance.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2990–2996, 3093; Dec. Dig. §§ 722, 758.*]

Error, Cent. Dig. §§ 1662-1665; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 282.*1

11. APPEAL and Error (§ 722*)—ASSIGNMENTS OF ERROR-TRIAL BY THE COURT.

In such cases the assignments of error are still to be filed with the clerk of the court be

low.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.*]

12. APPEAL AND ERROR (8 1175*) DISPOSITION OF THE CASE-RENDERING JUDGMENT.

Where the court erroneously overruled exceptions to defendant's cross-action, and, after in an amount equal to the judgment for plainverdict, rendered judgment on the cross-action tiff on his cause of action, the case need not be rendered for the plaintiff in the amount due be remanded for new trial, but judgment will

on his cause of action, under Rev. St. 1911, art. to render such judgment as the court below 1626, authorizing the Court of Civil Appeals

should have rendered.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4573-4587; Dec. Dig. § 1175.*]

Appeal from Pecos County Court; Howell Johnson, Judge.

Action by Frank Dees against D. W. Thompson. From a judgment for plaintiff and for the defendant in an equal amount upon a set-off, plaintiff appeals. Cross-action stricken out, and judgment rendered for plaintiff in the amount of the damages found

by the jury.

Chas. T. Haltom and W. A. Hadden, both of Ft. Stockton, for appellant. R. D. Blaydes and W. C. Jackson, both of Ft. Stockton, for appellee.

HIGGINS, J. Dees sued to recover the 8. APPEAL AND ERROR (§ 301*)-ASSIGNMENTS sum of $456, actual damages, and $400, puOF ERROR-ERRORS NOT REQUIRING ASSIGN-nitive damages, claimed to have been sustain

MENT.

The only errors which can be considered ed by reason of the wrongful shooting and by the Court of Appeals, other than those killing by Thompson of a horse. Defendant which may be passed upon without an assign- answered by a general denial and counter

error.

[6] The suggestion is respectfully made to counsel for appellant that in causes which they may hereafter have pending in this court, a due regard be had for the rules of

claim for various amounts alleged to be [titled to consideration. In passing, however, due by reason of trespasses committed by it may be said they do not present reversible the animal upon various dates, and expenses sustained in caring for and feeding the horse while it was trespassing upon a certain occasion previous to the shooting. Upon trial before a jury, verdict was returned in favor of plaintiff for sum of $50, punitive dam- briefing, and attention is particularly called ages, and in favor of defendant upon his cross-action in sum of $25 for feeding and caring for the horse upon the occasion mentioned, and further sum of $25, damages sustained by reason of trespasses committed by the horse. Upon this verdict judgment was rendered in favor of plaintiff for sum of $50 against Thompson, and in Thompson's favor against Dees for a like sum, and it was ordered that the two sums should offset each other and no execution issue. From this judgment Dees has appealed.

to the fact that, under the law at present, the assignments contained in the motion for new trial in the lower court constitute the assignments of error upon which the cause must be here presented. Acts 33d Leg. Regular Session, c. 136, p. 276. When a motion for new trial has been filed, this provision of the statute is mandatory. Edwards v. Youngblood, 160 S. W. 288.

[7] Under the law previous to this amendment it was held that the assignments must be correctly copied in the briefs, and that it [1] The first and second assignments com- was not permissible to present assignments plain of the overruling of exceptions address-reconstructed as to either form or substance. ed to defendant's counterclaim, upon the Fessinger v. El Paso Times Co., 154 S. W. ground that it was an independent cause of 1171; Mt. Franklin, etc., v. May, 150 S. W. action, in no wise incident to or connected 756; Biggs v. Miller, 147 S. W. 632; Horsewith plaintiff's cause of action. In an ac- man v. Coleman Co., 57 S. W. 304; Martin tion for damages upon tort, the defendant v. Bank, 102 S. W. 131; Alexander v. Bowcannot set off or reconvene for damages re-ers, 79 S. W. 342; Ry. Co. v. Adams, 55 Tex. sulting from a tort previously committed by Civ. App. 245, 118 S. W. 1155; Bowers v. plaintiff. The statute relating to this mat- Goats, 146 S. W. 1013. ter does not cover disconnected claims for damage arising in tort. Hart v. Davis, 21 Tex. 411; Shook v. Peters, 59 Tex. 395. The special exception in relation to this matter should have been sustained, and the cross-guage in which the matter was called to the action stricken out. Boyd v. Clark, 21 Tex. 425; Carothers v. Thorp, 21 Tex. 358; Castro v. Gentiley, 11 Tex. 28.

[2, 3] Under the third assignment, appellant complains that the verdict of the jury was contrary to law in allowing him punitive damages without also allowing actual damages. In this contention he is correct, but it is not a matter of which he can complain. Appellee might well do so, but not appellant.

[4] The fourth assignment complains of the court's charge in not assuming as a proven fact that a certain road was a public one, the proposition being that, since the facts are undisputed, the question whether the road was of a public or private character was one of law, which should have been decided by the court. The statement in the brief of the facts relied upon as showing its public character is that it was indicated and named as a public road on a plat appearing in the statement of facts, which plat was filed anterior to the happening of any of the incidents in this case, and that the road was referred to several times in the testimony. We fail to see upon what theory it can be contended that these facts alone are sufficient, as a matter of law, to invest a road with a public character.

There is nothing in the amendment changing this rule, as each point raised in the motion can and should be presented to this court as an assignment of error in the lan

attention of the trial court in the motion there filed. Iowa Mfg. Co. v. Walcowich, 163 S. W. 1054.

[8] Under the amendment and the rules, the only errors which can properly be entertained by this court, other than those which may be passed upon without an assignment, are those called to the attention of the trial court in the motion for new trial, and the impropriety of presenting reconstructed assignments in the brief is pointed out and well stated in Edwards v. Youngblood, supra. See, also, Overton v. Colored Knights of Pythias, 163 S. W. 1053, and Iowa Mfg. Co. v. Walcowich, supra.

We take this occasion to place counsel practicing in this court upon notice that the assignments copied in brief and presented here must be true copies of the corresponding portions of motion for new trial when such motions have been filed in trial court. This court will not undertake to determine whether an assignment was raised in such motion, where it is presented here in language different from that in which the matter was presented to the trial court. То countenance the filing here of reconstructed and amended assignments will frequently necessitate the determination of whether or not the error was called to the attention of [5] The fifth and sixth assignments are the court below, which in many instances not supported by such propositions and state- would require careful and critical compari

ful. This will be obviated and the oppor-12. TRUSTS (§ 202*)—CONVEYANCE-APPLICA

ed their deed to Marek for said land, and | and revenues thereof for more than 20 years at the time of its execution signed a written to his own use and benefit, and that her pro agreement providing for a division of the pro-rata part thereof amounted to $125 per anceeds of such sale when the same should be num; that at the time she and her husband paid by Marek, which deed, together with said executed the deed to Marek it was contemagreement, was deposited by B. C. Barrett plated and agreed that all of the owners (who appears to have been acting for himself would sign same, but that her brother J. W. and children in making such sale) in the First Barrett had refused to execute said deed, and National Bank of Cameron. It was con- that she had been misinformed as to her templated that Marek should pay part cash rights, without stating by whom, and was led and give his notes for the balance of the to believe, from statements made to her, purchase money, the proceeds of which, when that she was liable for the payment of a % sold by B. C. Barrett, together with the cash, part of the deed of trust thereon, which had was to be distributed by him among the gran- been executed by her father, which, together tors, said agreement providing that the chil- with interest, amounted to the sum of $1,926, dren should have one-half of the proceeds, and that under said misapprehension she less an $1,800 mortgage due upon the land, had obligated herself to pay her part thereof, which was to be deducted from their portion, to wit, $240.75, which she would not have the father paying off the other liens upon executed if she had known the facts; that the property out of his part thereof. Upon | neither of the plaintiffs had ever paid her for the payment of the money and execution of her interest in said land, and that by the the purchase-money notes by Marek, the deed terms of the agreement she was entitled to was delivered to him by B. C. Barrett, and he have $1,024.44, and that the deed had been subsequently sold one-half of the land to A. delivered to Marek without her authority, N. Green. Within a few days after the de- for which reason the title did not pass out livery of the deed to Marek, Barrett sold the of her; and it is alleged that plaintiffs had notes to Mrs. Ziminia Watson, as he was au- knowledge of the existence of her rights in thorized to do by said agreement, depositing the premises. It was further alleged that, their proceeds in the Cameron State Bank, while she had been advised that the check leaving checks therein, payable to the order was at the bank for her, she refused to acof each of his children, except J. W. Bar- cept it, and so notified plaintiffs, stating the rett, for their share of such proceeds, amount- reason therefor. Plaintiffs answered, specialing to $1,010 each, including Mrs. Laura ly denying that they had made any misrepCooper. John W. Barrett sold his 1/16 in.resentations, or that any such were made terest in the estate to his brother B. J. Barrett, taking in part payment therefor his three vendor's lien notes for the sum of $600 each. Said checks were accepted by all of the children, except Mrs. Cooper, who declined to do so on the ground that the same was not sufficient in amount, and that she had been misinformed with reference to her liability on the mortgage above mentioned. Thereafter, on the 8th day of April, 1913, Marek and Green brought this suit for partition against John W., and B. J. Barrett, alleging that they (plaintiffs) owned an undivided 15/16 of said land, and that B. J. Barrett owned an undivided 1/16 thereof, and that John W. Barrett was asserting some claim or interest therein, as the vendor of B. J. Barrett, and that plaintiffs were in pos-issue made by them and refused on the other. session of their part of said tract, and defendant B. J. Barrett in possession of his part. The defendant John W. Barrett answered that he had conveyed his portion to his codefendant B. J. Barrett, and in part consideration thereof had taken the three notes mentioned, retaining a vendor's lien, and asked that in partition he be protected as to his lien and crops then growing on the place. Cooper and wife intervened, setting out the facts showing their interest in the transaction, as above stated, alleging that since the death of her mother, which occurred September 17, 1890, her father had remained in possession of the entire tract, during

with their knowledge or by their authority; that they had in good faith complied with the terms of their contract, paid the consideration stipulated, and that the deed had been delivered to them without any knowledge of the facts set up in the plea of intervention, and further alleged that they were not parties to the agreement between the grantors with reference to the sale of said land and the distribution of the proceeds, and therefore were in no wise bound thereby. The case was tried before a jury, and on a peremptory instruction, returned a verdict in favor of plaintiffs for 14/18 of the land, and in favor of the defendant B. J. Barrett for the remaining 1/16, and the case as to the interveners was submitted on one

A verdict and judgment was rendered against them, and decree was entered determining the rights of the parties in accordance with the verdict and protecting the liens of J. W. Barrett and Mrs. Watson, who also had been made party defendant, and had set up her right as holder of the notes mentioned.

[1, 2] The first error assigned is that the court refused to give a peremptory instruction in behalf of interveners, for the reason that the deed was delivered to the plaintiffs without their consent and in contravention of the escrow agreement. We overrule this assignment, because if the deed was ever left in the bank as an escrow, which is doubtful