Volume 10 — Texas Civil Appeals Reports

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Sheriff’s Sale After Return Day.—Under the law in force in 1851, executions from Justice Courts were required to be returned in sixty days, and a sale made by virtue of such execution after the return day must be held a nullity.</p> <p>2. Ancient Instrument—Sheriff’s Deed—Presumption.—There must be sufficient proof of the loss or destruction of the execution and judgment in order to warrant a presumption of the truth of the recitals thereof in a sheriff’s deed, although such deed be an ancient instrument.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Mandamus Against Corporation.—Where duties are imposed hy law upon private corporations, and no other specific remedy is provided for their enforcement, the writ of mandamus will lie.</p> <p>2. Same—Street Railway Company.—The grant of a charter hy the State and the ordinance of a city giving permission to use the streets, and the occupation of the street hy the street railway company by virtue thereof, create an obligation and public duty to operate its line that can be enforced by mandamus at the instance of a private, individual.</p> <p>3. Same—What Duties Enforced.—The duties of corporations that will be enforced by mandamus are those of a public nature arising by operation of law, and not those arising merely from contract relations.</p> <p>4. Same—Pleading—Petition for Mandamus.-—The petition for mandamus must contain a clear statement of the failure and refusal of the respondent corporation to perform legal obligations to the public, and it must appear that there is no other adequate legal redress for the wrong complained of, and that the relator has a clear legal right to the performance of the particular duty; but the averment therein of matters for which mandamus would not lie may be looked to in determining whether a public duty is made to appear.</p> <p>5. Same—No Other Adequate Remedy.-—It is not necessary to state in terms that there is no other adequate remedy, but it is sufficient .if it appears that there is not one from the statement of the case in the petition or complaint.</p> <p>6. Same.—While relators could have sued for damages, yet that would not have obtained for them their right to a convenient street railway leading from their homes into the city, and will not defeat their right to the writ of mandamus.</p>

<p>Exempt Property—Foreclosure Not Res Judicata, When.—The foreclosure of an attachment which has been levied on exempt personal property of the defendant, followed by its sale, where no plea raising the question of its exempt character was presented in that suit, will not bar an action by such owner against plaintiff and the officer who made the levy to recover the value of the property.</p>

<p>1. Evidence—Opinion—Hearsay.—In an action against a railway company for damages for being ejected from a train, plaintiff’s testimony, that after his return home the doctor he called in told him that his sickness was caused by his expulsion from the train, is inadmissible as being the mere expression of opinion of a person unsworn, and who was not shown to be in possession of the facts.</p> <p>2. Charge—Issue Not Made by Pleadings and Evidence.—It was error to submit to the jury the question of time lost as an element of damage, where there was nothing in the pleadings and evidence on that point.</p> <p>3. Railway Company—Passenger Taking Wrong Train.—Where a passenger through his own negligence takes a wrong train, it is not the duty of the railway company, upon the discovery of the mistake, to gratuitously carry him on to the next depot and return him to his starting point.</p>

<p>1. Superior Title—Vendor’s Right of Rescission.—Where the vendor of land reserves in the deed a. lien for purchase money, the superior title remains in him until the money is paid, and in the event of default in its payment, he can rescind the contract of sale, and his deed for the land to another will convey the absolute title.</p> <p>2. Same—Prior Lien and Debt of Vendor as Affecting the Right.—The right of such vendor to resell -the land to another person is not affected by the fact that an unpaid purchase money note given by himself tor the land is then outstanding in the hands of a third party to whom it has been transferred, but without any conveyance of title to the land accompanying such transfer.</p> <p>3. Same—Prior Lien and Debt as Defeating the Right—Assumption of Debt.—At the time such vendor conveyed to his first vendee, Alston, the latter, as part of the consideration, and in addition to his own note given for the land, assumed the payment of the vendor’s said outstanding note, which had been conveyed to a mortgage company, but such company failed to accept the assumpsit, and in a foreclosure suit brought by it on the note asked for no personal judgment against the vendee, Alston, Held, that an acceptance by the company of the assumpsit of Alston would have ended the vendor’s right of rescission, but that it was unaffected in the absence of such acceptance and under the facts.</p>

<p>1. City Street Improvements—Local Assessments.—A provision of a city-charter, that before the city council shall determine to have local street improvements made, the city engineer shall report the probable cost and give the names of the owners of property abutting on the street, and the number of front feet owned by each party, is mandatory, and compliance therewith is essential to a valid assessment of a special tax for such improvements.</p> <p>2. Same—Power Strictly Construed.—If the Legislature has authority to empower the city to impose the entire costs of improving streets upon abutting property owners, such authority must be clearly given and the mode strictly followed, or the assessment will not be valid.</p> <p>3. Same—Repeal and Change of Charter.—Under a city ordinance which did not levy any assessments to pay for the work, or make any provision as to the time of payment of the assessments when levied, a contract for street improvements was let. About or soon after the completion of the work the city charter was repealed, and the new charter did not contain any saving clause in reference to executed contracts, and its provision imposed a larger proportion of the cost of such improvements upon abutting property holders than the former charter. Held, that the new charter would not authorize the levy of such a tax upon abutting property owners to pay for improvements already completed.</p> <p>4. Same—Levy to Satisfy Past Contract.—A provision of a new city charter, that “all contracts for street improvements now outstanding shall be paid for in accordance with this charter,” will not authorize the levy of a local assessment upon abutting property owners to pay for improvements that have been completed and have been paid for by the city.</p> <p>5. Same—Estoppel—Illegality of Method.—Owners of property abutting on a street are not estopped from denying the validity of an assessment to pay for the street improvements, because they petitioned the city to have the work done, and stood by and saw it done, since they did not petition to have it done otherwise than in a legal manner.</p>

<p>1. Death, by Wrongful Act—Evidence.—It appeared in an action of damages for death by wrongful act, that the deceased, in a personal difficulty with defendant’s father, and after being attacked by the father with a knife, shot and wounded the father, and while attempting to flee, after having run about fifty yards, was himself shot and killed by the defendant. Held, that the facts warranted a verdict for plaintiffs.</p> <p>2. Same.—In this case a witness for plaintiffs, testifying by deposition, stated what the father had said to him (witness) as to the cause of his difficulty with the deceased, and this answer and part of the deposition was offered in evidence by the defendant, and excluded by the court. On appeal by the son alone, Held, that the ruling was correct, as the matter afforded no justification for the killing by the son under the state of facts disclosed in the preceding head note.</p> <p>3. Same—Justifiable and Wrongful Homicide—Interference in Another’s Difficulty.—See the opinion for a charge held to correctly state the rules of law as to wrongful and justifiable homicide in a case where the defendant interfered in a personal difficulty wherein the deceased, under different phases of the evidence, may have been in the right or may have been in the wrong.</p>

<p>Error from Upshur. Tried, below before Hon. Felix J. McCord.</p>

<p>1. Assignment of Claim of Damages for Personal Injuries—Compromise.— A claim of damages for personal injuries is not assignable before suit brought thereon. Where the assignment is so made, its filing, after suit brought, with the clerk of the court and being noted on the trial docket so as to give defendant notice thereof, as required by article 2464a, Sayles’ Supplement (Act of March 26, 1889), is of no avail, and a subsequent compromise and settlement of the claim in full with the assignor (plaintiff) by the defendant will not render defendant liable to the assignee for the claim, or any part of it so assigned.</p> <p>2. Same—Fraud of Agent.—Fraud of the agent of the defendant company in his dealings with the assignor to procure the compromise does not, under the facts of this case, render the defendant liable to the appellee.</p>

<p>1. Telegraph. Company—Delivery of Message.—Where a telegram to one person is addressed in care of another, and it is promptly delivered to such other person, this is a full compliance with the contract as to delivery.</p> <p>2. Same—Delay by Plaintiff—Charge.—Where a father, after receiving a telegram announcing that his daughter was at the point of death, neglects starting to her for more than twenty-four hours, taking the third train after receipt of the message, and reaching her after she had become unconscious, such facts, in an action by him for damages for delay in delivering the message, call for a charge to the effect that he could not recover for damages resulting from any delay in reaching her caused by his own want of diligence.</p> <p>3. Same—Mental Anguish—Evidence of Family Relations.—In an action of damages for mental distress resulting from delay in the delivery of a message announcing illness óf a member of the addressee’s family, the facts and circumstances surrounding the parties, and whether plaintiff, the addressee, had not then abandoned his family, are proper subjects of inquiry.</p> <p>4. Same—Notice of Claim for Damages.—Delivery of a notice of claim for damages to the messenger hoy of the company, with request that he hand it to the local agent, and which the boy failed to do, is not a compliance with the stipulation requiring such notice to he given to the local agent of the company.</p>

<p>1. Public School Community—Powers and Liabilities of Trustees.—A school community organized under the free public school system is not a corporation, and has no territorial limits or power to levy a local tax; it can neither sue nor he sued, nor can its fund be applied to pay damages for a breach of contract by its trustees with a teacher.</p> <p>2. Same—Mandamus.—Mandamus will not lie to compel the trustees of a school community to reinstate a wrongfully discharged teacher after the year for which such trustees were appointed and for which the contract made by them with such teacher has expired.</p> <p>3. Same.—In view of the delay necessarily involved in an appeal by a discharged teacher to the county judge and State Superintendent of Education, and its result in depriving him of all actual relief, it may be that he can apply at once to the District Court for a mandamus to reinstate him where his discharge is without cause.</p> <p>4. Same—Validity of Contract.—That’ one of the three trustees of a public school community had not taken the oath of office at the time he signed the contract with the teacher, does not invalidate it.</p>

<p>1. Arbitration Agreement—Sufficiency of Award.—An agreement to arbitrate submitted as the matters in controversy the accounts for labor and materials furnished and for moneys paid by the respective parties under a certain contract, and also claims of damage by each party for alleged failures to comply with the contract, and the arbitrators were to determine, after considering the matters so submitted, what amount was due to the one or the other party. The award recited, that “we, * * * being appointed arbitrators to decide as to the justness of the accounts in dispute between G. and B., find, after careful examination of the claims, that G. is indebted to B. in ”—a specified sum. Held, that the objection that the award failed to dispose of the controversy as to the claims of the parties for damages was not well taken.</p> <p>2. Same—Partnership Arbitration—Award to One Partner.—In an arbitration upon matters growing out of a contract made with the firm of B. & W., and wherein B. alone had completed the work and was urging final payment, the arbitrators were to determine what amount, if any, was due “to said firm of B. & W. or to B.” Held, that an award for so much due to B. was, prima facie at least, a disposition of the claim of the firm of B. & W., and was not therefore void on its face.</p> <p>3. Parties—Incoming Partner.—One who enters a firm as partner after the making of a given contract by the firm, is not a necessary party to a suit on that contract between the firm and the person with whom it was made.</p> <p>4. Partnership—Release by One Partner.—Where such incoming partner, after the matters in controversy on such contract'have been submitted to arbitration by and on behalf alone of the other partners, executes a release of the claim of the firm to the subject matter in controversy to the adverse party, who knows of his relation to the partnership and consequent want of authority, such release is of no avail.</p> <p>5. Same.—Nor will the fact that such incoming partner is to have a small profit in the contract give any further effect to his release than that of passing his own interest.</p> <p>ON KEHEARING-.</p> <p>6. Verdict—Partnership Matter.—In a suit by the firm of B. & W. as plaintiff, the verdict was in favor of the firm, “ for the nse of B.” Held, that there was nothing in the form of the verdict of which the defendant in the suit could complain.</p>

<p>1. Suit Against State—Trespass to Try Title Against Occupant.—One in the actual possession of land may be sued therefor in trespass to try title, although he holds such possession only as an officer and agent of the State, and the suit is not one against the State.</p> <p>2. Same—Limitation Not Available in Behalf of State.-—In trespass to try title it is held, that since limitation does not run against the State, it can not be invoked in its behalf. Following Stanley v. Schwalby, 85 Texas, 352.</p> <p>3. Consideration for Covenant of Warranty—Fact Case.—C. & E., being desirous of acquiring and completing a contract for building a wall around the State penitentiary, at the suggestion of the penitentiary authorities bought in their own name certain land necessary to the completion of the wall, and thereupon received the contract and the benefit thereof. No one at that time had authority to purchase the land for the State, but the penitentiary officials promised C. & E. to use their influence to have the State reimburse them, and the State did afterwards purchase the land from them at the same price they had paid, taking deed from them with general warranty. Seld, that C. & E. were bound by the covenant of warranty, the purchase from them by the State not being merely a ratification of the acts of its agents, so as to thereby render the covenant of warranty void for want of consideration.</p> <p>4. Trespass to Try Title—Judgment for Bents and Improvements.—In trespass to try title, where there is judgment in defendant’s favor for the value of improvements, it is error to render judgment against him for rents, since rents are extinguished by the recovery for improvements.</p>

<p>1. Probate of Foreign Will—Conveyance Before Probate.—A will probated in another State directed the making of an allotment and division of the property, and its conveyance to the devisees, and this was done before the probate of the will in Texas, where the land was situated. Held, that although the will could not be used as evidence in the courts of this State until probated here, yet that such conveyance was valid, since the devisees took by force of the devise in the will, and not through the conveyance of title.</p> <p>2. Same—Conveyance Where Authority of Court is Hot Requisite.—Where the will authorizes the exercise of the power immediately upon the death of the testator, the subsequent probate of the will simply furnishes the authentic evidence of the power, and the case is different from that of power usually given to executors to sell for purposes of administration, which may require the sanction of the court before it can be exercised. Mills v. Herndon, 60 Texas, 353, distinguished.</p> <p>3. Trespass to Try Title—-Variance—Equitable Title in Another Person than Alleged.—Plaintiffs sued in trespass to try title, alleging that they held the legal title in trust for one B., a minor, and the father of B., as his next friend, joined in the petition. The proof showed that the trustees, under the terms of a will made twelve years previously, held the title in trust for M., and did not show that M. was dead, or that B. was in any way connected with the equitable title. Held, that the variance was immaterial, and plaintiffs were entitled to recover against the defendants, who were not connected with the equitable title.</p> <p>4. Landlord and Tenant—Estoppel—Vacant Public Lands.—A lessee of land which proves to be vacant public domain is not estopped to deny his lessor’s title, since such land is not the subject of lease without right from the State.</p> <p>5. Probate of Foreign Will—Certificate.—Objection to the authentication of the probate of a will in another State—that it consisted of only one certificate, made "by the same officer in his capacities of j udge and of clerk—is not well taken; but if snch certificate were defective, it does not follow that the order of the Texas court admitting the will to probate would on that account be void and subject to collateral attack.</p> <p>6. Charge of Court—Limitations.—"Where defendants went into possession as tenants of plaintiffs, and the evidence did not show that they had openly repudiated such holding, and brought home notice of an adverse possession to plaintiffs, it was not error to refuse to submit the issue of limitations to the jury.</p> <p>7. Survey—Presumption—Charge of Court.—A charge, that the presumption is to be indulged that the surveyor actually ran the lines of a survey, would in many cases be an invasion of the province of the jury, and the giving of such charges is not considered to be the correct practice. '</p>

<p>1. Probate Sale of Land Certificate of Foreign Volunteer—Consent of Next of Kin.—Under the Act of January 14, 1841, forbidding the probate sale of land belonging to the estate of any foreign volunteer who had served in the army of Texas unless the administrator was next of kin, or the next of kin gave written consent thereto, -which should be recorded before the order of sale was made, a probate sale of a land certificate issued in behalf of such volunteer, made without compliance with this act, is void, and is not validated by an assent of the heirs to the sale obtained and filed several years thereafter.</p> <p>2. Same—Attorney Acting for Heirs Not Named.—A compromise agreement purporting to convey the interest of heirs in a land certificate executed by an attorney in fact, but which does not disclose their names nor identify them, is not binding on the heirs.</p> <p>3. Purchaser Pendente Lite—Abandonment of Suit—Costs.—Suit was filed in 1860, but no action appears to have been had therein except the taking of depositions for plaintiff in 1874. Plaintiff died in 1878, and in 1893 his heirs suggested his 'death and filed an amended petition. Held, that the suit had been in effect abandoned, and that one who had in the meanwhile, and prior to the filing of such amendment, purchased part of the land in controversy from the heirs of one of the defendants, was not a purchaser pendente lite so as to be chargeable with costs incurred prior to the time when by such amendment he was made a party; nor was he liable for the costs of his codefendants owning distinct interests in the land.</p>

<p>1. Mutual Benefit Insurance —Beneficiaries—Mother and Heirs.—H. became a member of a mutual life insurance association, and his certificate was made payable to his “mother, or his lawful heirs.” His mother did not live with him, and was not dependent upon him for support, but the certificate was delivered to her, and she paid all assessments due thereon. At the time of his death, H. left a widow and infant child. The constitution and by-laws of the association showed that its purpose was to provide a fund for the benefit of the families of deceased members, and that widows and heirs were recognized therein as the beneficiary class. Held, that the fund was payable to the widow and child of H., instead of to his mother.</p> <p>2. Same—Heirs Defined.—The word “heirs,” as used in the foregoing connection, must be construed to mean those who are entitled to receive the estate under the statutes of descent and distribution.</p>

<p>1. Insolvent Corporation—Conveyance by—Preference of Creditors.—An insolvent corporation has no power to make a preference conveyance of its entire property to one of its creditors.</p> <p>2. Same—Priority of Attachment Lien in Such Case.—The rule that denies the right of an insolvent corporation by contract to prefer its creditors, does not interfere with the right of a diligent creditor to pursue the remedies provided bylaw, and where such creditor levies an attachment before a receiver is appointed, or the managers or creditors of the corporation have made any attempt to wind up its affairs, he thereby acquires a prior lien.</p>

<p>1. Negligence—Barbed Wire Fence—Fact Case.—A buggy horse of plaintiffs was injured by coming in contact with a barbed wire fence built by the defendant about three months previously upon its own land, .but across an old road within the city limits—the driver of the horse not seeing the fence in the twilight. The evidence did not show that the road was used at the time the fence was erected, or that the driver had any reason to suppose it was open; but it did appear that two streets intersected each other near the place of injury, which, supposedly at least, could have been traveled. Held, that the evidence did not show liability on the part of the defendant.</p> <p>2. Same—Dangerous Structure Near Public Highway.—A person may become liable by erecting a dangerous structure on his own property so near to a public highway that when combined with the ordinary accidents of travel it results in injury to a traveler; but the erection of a barbed wire fence will not per se establish liability for an injury occurring in connection therewith.</p> <p>3. Charge of Court—Omission of Words.—Where, by reason of the omission of some words which the court doubtless intended to insert, an instruction is left incomplete and misleading upon a material point, such error will be ground for reversal.</p>

<p>1. Homestead—Abandonment—Intention and Preparation.—Where the owner of a homestead has never ceased to occupy it as such, no amount of preparation and intention on his part to abandon it will divest it of its exempt character.</p> <p>2. Same—Removal of Family.—See the opinion for evidence warranting a finding by the jury to the effect that the homestead had not been abandoned, although the family had removed therefrom to the Indian Territory, where the husband, just prior to such removal and his own death, had applied for and obtained the rights of citizenship for himself and family.</p> <p>3. Charge of Court—Construction—Inaccuracy.—A judgment should not be reversed on the ground that one inaccurate paragraph of the charge of court might have misled the jury, when any intelligent reader of the entire charge could not reasonably have been misled thereby.</p> <p>4. Decedent’s Estate—Solvency—Exemptions.—The statutory exemptions, also the amount of a proper allowance for a year’s supply, may he taken into consideration in determining the solvency or insolvency of a decedent’s estate though no application had been made to the Probate Court for them, or allowance in lieu thereof.</p> <p>5. Trespass to Try Title—Rents and Improvements.—In submitting the issue of rents and profits, the jury should be instructed to assess the annual rental value without reference to the improvements placed by the defendant on the land.</p>

<p>1. Judgment—Action to Enjoin—Insufficient Grounds—Diligence.—In an action to enjoin a judgment and seeking a retrial of the issues involved therein, petitioners alleged that, as defendants in the judgment, they were only sureties, and should not be bound by the judgment, because of an alleged extension of the time for the payment of the debt merged therein, made without their knowledge or consent, long prior to its rendition, but no diligence was averred to excuse their delay in making discovery of that fact. Seld, that the petition was devoid of merit.</p> <p>2. Homestead—Injunction to Restrain Sale of.—The mere allegation that a paper levy has been made upon the homestead, and that its sale thereunder will cast a cloud upon the title, will not authorize a court to restrain the sale by injunction, where no facts are stated showing how such sale will becloud the title.</p> <p>3. Injunction Against Execution Sale—Pointing Out Property.—A petition to enjoin a sale on the ground that the statutory right of defendant in the execution to point out property had been denied him, but which fails to allege any tender to the sheriff of other property subject to execution, or any other steps to obtain relief before applying for injunction, is insufficient.</p>

<p>1. Injunction—Necessary Parties—Contract for County Bonds.—Where a county has contracted with a bridge company to issue and deliver county bonds and warrants in payment for a public bridge, and taxpayers seek to enjoin the issue of the bonds, the bridge company is a necessary party to the action.</p> <p>2. Practice—Reversal for Want of Necessary Party.—Where it appears that indispensable parties have not been joined in the suit, the appellate court will take notice thereof, and will remand the cause in order that they may be joined, although no objection has been made on that account.</p>

<p>1. State School Land—Actual Settler’s Right of Purchase.—A bona fide settler who had purchased and improved an agricultural section previous to the Act of April 28, 1891 (Sayles’ Supplement, article 4045), was not required to move therefrom and upon an adjoining .pasture section, in order to purchase the latter as authorized by that act.</p> <p>2. Same—Purchase of Leased Section.—The law having provided that all lands the lease of which was fixed by that act at not exceeding five years, “shall be leased subject to sale,” the power of the Land Commissioner as agent of the State in leasing the land was thereby expressly limited, and a lease which would deprive the State of the privilege of sale thus reserved would to that extent be void.</p> <p>3. Same—Right of Purchaser Upon Tender.-—Appellee having the right to make the purchase, and having complied with the law in his attempt to do so, the action of the commissioner in refusing to award him the land could not deprive him thereof.</p> <p>4. Parties.—In a contést of title between an actual settler of State school lands as purchaser and a lessee thereof, neither the State nor the Commissioner of the General Land Office is a necessary party to such suit.</p>

<p>Telegraph Company—Delivery of Message Sent in Care of Another.—Where B. had instructed the telegraph company’s agent to send by the ’bus driver, for delivery, any messages addressed to him (B.), this did not authorize the delivery in that manner of a message addressed to another person in care of B.</p>

<p>1. Telegraph Company—Mental and Physical Suffering of Wife.—Because of delay in the delivery of a message, a husband was prevented from being with his wife during her confinement in childbirth. She testified, that she did not learn that her husband had not arrived until after the delivery of the child, the fact having been concealed from her, but that before she became unconscious (shortly prior to such delivery) she was greatly distressed because of his absence; and it appeared that had the message been duly delivered, he would have been present before she became unconscious. The attending physician testified that his absence rendered her mental and physical condition and suffering much worse. Held, that the testimony warranted a verdict against the telegraph company.</p> <p>2. Same—"Verdict Not Excessive.-—-A verdict for §600 damages for mental and physical suffering of the wife occasioned under circumstances as stated above, held not excessive.</p> <p>3. Same—Unrepeated Message.—The stipulation providing that unless the message be repeated the company will not he liable, will not avail where the delay and injury is due to the negligence of the agent, and not to any mistake in the transmission of the message.</p>

<p>1. Pleading—Allegation and Proof.—An allegation that by reason of the wrongs complained of plaintiff was compelled to incur certain expenses, in a stated amount, for medical services and medicines for his wife and child, entitles him to recover such expenses without alleging an actual payment before bringing suit.</p> <p>2. Railway Company—Keeping Depot Warmed—Statute Construed.—The Act of March 6, 1891 (Sayles’ Supplement, article 4238 >, imposing a penalty upon railway companies for failure to keep their depots lighted and warmed for not less than one hour before the arrival and after the departure of passenger trains, does not relieve them of liability for failure to so keep them warmed for such further reasonable time as they may be occupied by passengers waiting for delayed trains.</p> <p>3. Charge of Court—Verbal Inaccuracy—Diligence.—Inaccuracy of the court in charging, that “it was the duty of the company to keep its depot reasonably warm,” instead of, that it was its duty to use reasonable diligence to keep it warm, is imma^ terial, where the evidence shows a failure to use any proper diligence.</p> <p>4. Continuance—Amendment—Surprise.—An amended petition filed two days before the trial alleged the date of the transaction complained of as on or about March 1st, instead of March 4th, as in the original petition, but the deposition of a witness on file in the case for several months prior to the trial identified the transaction with certainty, and certain cross-interrogatories of defendant to the witness disclosed that defendant was aware of the discrepancy in the allegation of the date. Held, that the amendment, and proof of the transaction as on March 2nd, did not entitle defendant to a continuance on the ground of surprise.</p>

<p>1. Independent Executor—Taxes—Limitations.—Where an independent executor has paid the taxes upon lands of the testator in his possession, he is entitled to be reimbursed therefor by the heirs before the land can be recovered by them; and the statute of limitations will not bar the claim in such case.</p> <p>'3. Same.—Nor can the heirs invoke limitations to defeat a claim by such executor against the property in his hands for a debt due him by the estate and growing out of a promise or contract of the testator.</p> <p>3. Claim Against Estate—Promise to Devise Property.—Services rendered and expenses incurred in behalf of a person on the faith of his promise to devise property in consideration thereof constitute a valid charge against his estate.</p> <p>4. Evidence—Adoption.—Where the paper adopting a child as an heir has been lost and the county records destroyed by fire, the issue of adoption may be determined from circumstantial evidence.</p>

<p>Appeal from the County Court of Tarrant. Tried below before Hon. Robert G. Johnson.</p>

<p>1. Appeal from Justice to County Court—Pleading New Matter.—In a suit in Justice Court for the possession of certain mules, the defendant pleaded only the general denial, hut on appeal to the County Court he specially pleaded, in addition, that he claimed possession of the mules under mortgage. Reid, that this was not within the statutory inhibition forbidding the defendant to set up any setoff or counterclaim not pleaded in the court below.</p> <p>2. Verbal Reservation of Title—Chattel Mortgage.—A verbal reservation, by the vendor, of the title to goods sold and delivered by him, as security for the purchase money, is no more than a verbal chattel mortgage, and not good in this State.</p>

<p>1. Practice—Specific Acts of Negligence.—Where the petition alleges that the injury complained of was the result of negligence, and sets up the specific acts of negligence relied upon, evidence will he confined to these acts. A general allegation of negligence will be controlled by the special acts averred. See example.</p> <p>3. Allegation of Statutory Kinship by Plaintiff to Deceased.—Action by husband and daughter of deceased killed by alleged negligence of employes of a railway company. The petition alleged the relation between the husband and the deceased wife, and alleged that the daughter was the daughter of the husband. This was not an allegation that she was daughter of the deceased wife. This was a material fact.</p> <p>3. Care by Railway at Crossing—Charge.—The court erred in instructing the jury, “ that the law requires those in charge of railway engines and trains to use great care and prudence in operating them, so as to avoid injury to the person or property of other people, and if by want of use of such care and prudence injury was inflicted on others, without the fault of such others, such companies must pay for such injuries and damages;” and it was error to refuse the requested charge: “It is the duty of persons operating a railway train across a public crossing to use ordinary care to prevent collisions with persons or vehicles passing over the track at such crossing; but it is also the duty of persons approaching such crossing to use the same ordinary care to prevent collisions with trains. The duties of each of the parties, i. e., of those operating the train and of those about to pass over the crossing, are equal and reciprocal, and if a collision occurs and both parties fail in their duty as defined above, neither can recover from the other,” defining ordinary care.</p> <p>4. Affidavit to Return of Depositions.—The failure of the district clerk to affix his seal to the affidavit required, in article 2231 of the Revised Statutes, to be made by the person delivering depositions into court, may be supplied by appending the seal after motion to suppress; or it may be proved that the affidavit was actually made as required by the statute.</p> <p>5. Practice—Parties.—A married woman was killed at a railway crossing by collision with a passing train. The surviving husband sued for damages, joining with him his daughter and the father of the deceased. The latter without consent. This was irregular. The husband could not make her father a party without his consent otherwise than as a defendant, so that he be given an opportunity to assert his rights if he desires.</p> <p>6. Injuries Resulting in Death—Damages.—Only those named in the statute as entitled to recover for damages, who have actually sustained some injury or loss by reason of the death of a person caused by negligence, can recover.</p> <p>7. Argument of Counsel.—Where the law does not determine any fixed measure of damages, so far as the amount that may be recovered is concerned, counsel should be very careful in keeping within the record in discussing the facts, and in abstaining from suggesting facts not properly in evidence.</p> <p>8. Cross-Examination of Witness.—A witness who had testified that on the approach of the train the bell was not rung, was asked on cross-examination, and after he had admitted knowing three witnesses who had testified that the bell was rung: “These three men testified that they heard the bell on that engine ringing. * *' * Is it not possible that you were mistaken about its not being rung? ” It was error to exclude the question, which was proper on cross-examination.</p>

<p>The opinion gives a full statement of the case.</p>

<p>1. Motion, for New Trial—Newly Discovered Testimony.—A motion for new trial on ground of newly discovered testimony, supported by affidavit of the witnesses to the facts to which they will testify, is insufficient unless verified by affidavit of the party making the motion, that the testimony was newly discovered.</p> <p>2. Mandamus—Statement of Facts.—Upon the refusal of a trial judge to act upon a statement of facts in a case tried before him, the remedy of the appealing party is by mandamus to compel action by such judge. Not having pursued such remedy, the party can not complain on appeal of the failure of the judge to make a statement of facts.</p>

<p>1. Case Adhered to—Innocent Purchaser of Land Certificate.—New York and Texas Land Co. v. Hyland, 8 Texas Civil Appeals, 601, adhered to. A purchaser of a land certificate before location is subjected to the same rules that apply to the purchase of other personal property. It is not the subject of an innocent purchase, unless some element of estoppel may he connected with its acquisition.</p> <p>2. Case Adhered to—Pre-existing Debt Not a Valuable Consideration to Support Plea of Innocent Purchaser.—First National Bank of Austin v. Mortgage Co., 6 Texas Civil Appeals, 61, adhered to. A mortgagee stands in the same attitude as a purchaser in relation to the plea of innocent purchaser; and he can not support such plea when his mortgage is based upon a pre-existing debt.</p> <p>3. Bona Fide Purchase.—The same rules as to consideration apply to personal as to realty when the question of innocent purchase is involved; comparing articles 4232 and 3190b, Revised Statutes, with each other.</p> <p>4. Burden of Proof.—It devolves upon the party making the claim of innocent purchaser to prove the payment of the consideration.</p>

<p>1. Market Value.—It is competent for a witness who was at the place about same time, and was dealing in the same trade (horse trading), and who talked with others on the subject, to give his opinion as to the market price of horses at the time and place.</p> <p>2. Contract Limitations—Case Adhered to.—Railway v. Carter, 9 Texas Civil Appeals, 677, adhered to on subject of contract limitations included in shipping contract.</p> <p>3. Law of the Forum.—Suit for damages for breach of freight contract made subsequent to the Act of March 4, 1891, prohibiting contractual limitations for less time than the statutes prescribes. The contract was made in Missouri, and required the shipment into Texas, and contained stipulations limiting the time within which suit might be brought. Defense insisted that the contract was an interstate shipment. The law of Missouri, however, was not pleaded or proven. Held, the court not judicially knowing the laws of Missouri, the law of the forum will apply, and the contract limitation has no legal effect.</p>

<p>Correction of Judgment After Appeal.—Petition against Hurlbut & Semple and S. A. Sparks, sheriff. Trial and judgment against Hurlbut & Semple and Sam Sparks, sheriff, etc. The defendants appealed. After the appeal was perfected, upon motion of the appellee, the judgment in the lower court was corrected so as to make it conform to the petition. An additional transcript contained the corrections. Held:</p> <p>1. That it was within the power of the lower court after appeal to amend the judgment, though the jurisdiction of this court had attached.</p> <p>2. The error was manifestly clerical, and this court could have corrected the judgment (there being no other error assigned) and rendered such judgment as should have been rendered below, without the correction.</p>

<p>Error to District Court of Travis County. Tried below before Hon. James H. Robertson.</p>

<p>1. Injunction—Order of Sale.—Judgment and order of sale of land which was owned by the plaintiff prior to the institution of the foreclosure suit in which the order of sale was made. The plaintiff herein was not made party to the foreclosure suit, was not cited, did not waive service or appear. The judgment and order of sale were therefore void as to him. Inasmuch as under the statute (article 1340a) the sheriff making the sale under such order is directed to put the purchaser in possession, injunction is a proper remedy to protect such possession.</p> <p>2. Void Judgment—Injunction.—An order of sale issued upon a judgment void for want of jurisdiction may be enjoined by one not a party to the suit, and whose property is invaded by such judgment.</p>

<p>1. Deed Duly Recorded—Limitation of Five Years.—To support the plea of limitation of five years, a party must not only claim under a deed duly registered, but the deed must have been so registered for five years before the institution of the suit.</p> <p>2. Harmless Error.-—-An erroneous instruction upon the statute of limitation can not be considered harmless, unless it is apparent from the record that the verdict was found upon another issue. See example.</p> <p>3. Revising Interlocutory Order.—A motion to suppress the depositions of a material witness was made on ground that the answers of the witness had been written by the attorney of the party at whose instance the testimony was taken. The motion was overruled. At a subsequent term, and after the death of the witness, the action of the court at the former term was set aside and the depositions were suppressed. This was not error.</p> <p>4. Insufficient Predicate for Secondary Evidence.—Affidavit by Williams that in 1853 he had sent the deed to Burnet for record by one Edward Smith, that Smith was dead, and that the last affiant knew of the deed it was in Smith’s possession, and that affiant had “made diligent search and inquiries for it in all places where such papers were usually kept, and can not find it.” Held, insufficient, as it did not show that inquiry was made for it of Smith’s heirs or legal representatives.</p> <p>5. Contract for Location of Land—Penalty.—By terms of a contract for location of a land certificate, Bowe was to “survey said land and pay all the fees for the title, and when done, Bussell agreed on his part to make said Bowe a title to one-half of said land in fee simple, to be divided agreeably to quality. It was further agreed, that if either of the parties should fail or refuse to comply on. his part, that the delinquent forfeit and pay to the party aggrieved the penal sum of ten thousand dollars so soon as an opportunity occurs to perform and he refuse, which is actionable and recoverable in a court of justice.” Upon Rowe performing his part of the contract he became entitled to half the land, notwithstanding the penalty. As to his rights, the penalty was but an alternative remedy.</p>

<p>1. Mandate from Court of Civil Appeals.—The mandate in this case issued upon a reversal on a former appeal was signed “W. L. Vining, clerk;” “B. O'. Shelley, deputy.” No copy of the opinion was certified to the District Court. A motion to set aside the mandate was properly overruled, as the trial court evidently had the opinion before it.</p> <p>2. Verdict.—See facts in case where a verdict for §790.35 is held not excessive. As there can be no mathematical guide in ascertaining damages in such cases (tor personal injuries), much must be left to the discretion of the jury. The injury was the threatened expulsion of plaintiff’s wife from the car, her ticket, an excursion ticket, having expired.</p> <p>3. Cases Adhered to—Excursion Tickets.—Railway v. Wright, 2 Texas Civil Appeals, 463, and Railway v. Dennis, 4 Texas Civil Appeals, 90, adhered to, requiring that the time in which return passage is allowed in excursion tickets must be reazsonable, under the circumstances likely to attend the journey. -</p> <p>4. Fact Case—Time of Return Unreasonable.—See facts held sufficient to sustain a verdict for damages based upon the proposition that under the facts and circumstances the time limited in an excursion ticket for the return of the passenger was unreasonable.</p>

<p>1. Divorce—Insufficient Evidence.—See the opinion for evidence held insufficient to sustain a decree of divorce on alleged grounds of cruelty and abandonment by the husband. ,</p> <p>2. Same—Hearsay.—In an action for divorce by the wife, evidence of her declarations to her father, that her husband once pursued her with a pistol, threatening to kill her, is hearsay and inadmissible.</p> <p>. 3. Practice on Appeal—Reversal—Cause Hot Remanded, When.—"Where, upon appeal in an action for divorce, the judgment for plaintiff must be reversed for insufficiency of the evidence, and there is nothing in the record indicating that there is any fact to be ascertained that could not have been proved on the trial below, the case will not be remanded, but a decree will be entered refusing the divorce. /</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Railway Company—Section Hand—Assumed Risk.—It is not the duty of a railway company to notify its section hands of the coming of special trains, as danger from this source is one of the risks assumed by such employes.</p> <p>2. Same—New Hand—Open Danger.—Where the danger incident to an employment, such as risks to section men from constantly passing trains, are open and palpable, it is not incumbent on the master to warn the servant of them, even though the servant be inexperienced and unacquainted with the dangers of the service.</p> <p>3. Negligence—Rate of Speed of Trains.—Where there is nothing in the evidence showing that it was negligence to run a freight train around a curve at twenty-five to thirty miles an hour, it can not he declared negligence merely as matter of law.</p> <p>4. Verdict—Negative Evidence—Train Signals.—A verdict for injuries resulting from negligent failure to give signals can not be sustained upon the merely negative testimony of plaintiff alone that he did not hear the train whistle blow, when there is positive evidence by several witnesses that it did blow at the proper time.</p> <p>5. Same—Insufficient Evidence—Setting Aside Verdict.—When the evidence adduced is not reasonably sufficient, under all the circumstances of the case, to satisfy the mind of the truth of the allegation, or the verdict is clearly contrary to the evidence, it is the duty of the appellate court to set the verdict aside upon objection duly urged thereto.</p> <p>6. Pleading and Proof—Negligence Not Alleged.—Where the petition of plaintiff, a section hand, asked a recovery on the ground of negligence based alone upon the negligent acts of those in charge of a freight train by -which he was struck, he can not recover upon proof that the section foreman in charge over him was responsible for the dangerous position which he (plaintiff) occupied at the time of the injuries.</p>

<p>1. Breach of Promise of Marriage—Pleading and Proof.—It is not necessary, in an action for breach of promise of marriage, for the plaintiff to allege or prove specifically that she objected to the act of the defendant in marrying another woman.</p> <p>■2. Same.—In such an action it is admissible for plaintiff to show the grief and anguish caused her by defendant’s conduct in breaking his promise to her and engaging himself to another woman.</p> <p>3. Same—Proof of Defendant’s Pecuniary Condition.—In an action of this character, the jury may consider the pecuniary as well as the social standing of the defendant, as tending to show the condition in life which the plaintiff would have secured by the marriage, and such pecuniary standing may be proved by reputation.</p> <p>4. Same—Tender of Marriage.—It is sufficient if plaintiff show that defendant has violated his promise by refusing to marry her, without averring or proving an offer on her part to marry the defendant. The principles of tender do not apply to actions of this character.</p> <p>5. Practice in Trial Court—Amendment.—The manner in which an amendment of the pleadings is made, though violative of the rules, is not a cause for reversal where it clearly appears that it was not prejudicial to the appellant.</p> <p>6. Practice on Appeal—Bill of Exceptions.—The appellate court will not consider an exception to the ruling of the trial court upon a question asked a witness, where there is no bill of exception showing that the ruling was objected to; and where the objection to such question is sustained, no injury is shown, unless the bill of exceptions discloses what the answer of the witness would have been.</p> <p>7. Evidence—Conclusion of Witness.—A witness who was present at an interview between plaintiff and defendant was asked: “From all that passed between plaintiff and defendant when they returned the rings in your presence and hearing, what did you understand their acts and words to relate to?” Held, objectionable, as calling for the conclusion of the witness. . ' ■</p> <p>8. Charge of Court—Weight of Evidence.—An instruction, that if the jury believed from the evidence that plaintiff requested and obtained from defendant the letters written during their correspondence, and then voluntarily destroyed them before instituting the suit, they could presume such letters contained matters of evidence in favor of appellant and against the right of plaintiff to recover is on the weight of evidence.</p>

<p>1. Secondary Evidence—Letter Press Copy.—A letter press copy of a letter is not admissible without laying the proper predicate for the introduction of secondary evidence.</p> <p>3. Practice—Irrelevant Evidence—Harmless Error.—Error in the admission of irrelevant evidence not prejudicial to the appellant is harmless.</p> <p>3. Allegata and Probata—Quantum Meruit—Proof of Value.—Upon a claim of quantum meruit for the value of services by a sales agent, the claimant may give in evidence, as tending to prove such value, the terms of a proposed contract between himself and his principal, specifying rates of commission for services of that kind.</p> <p>4. Evidence—Admissions in Pleadings—Paper to be Taken as an Entirety.—Where admissions in the pleadings of the opposite party are offered in evidence, they must be taken and construed with all the limitations and qualifications accompanying them when made.</p> <p>5. Principal and Agent—Commissions—Charge of Court.—Plaintiff and defendant entered into a contract which contemplated the formation of a corporation to sell plaintiff’s products, to be furnished to and sold by the corporation at certain prices. The corporation was never formed, but pending an effort to form it, defendant was engaged as agent in selling the products of plaintiff, and in an action for the value of his services the issue was as to the rate of commission to which he was em titled. Held, that the court should have submitted whether or not the terms of such proposed contract should govern the rate of commission, and assumption in the charge that they did so control was erroneous.</p> <p>6. Statute of Frauds—Original Guaranty—Debt of Another.—One purchasing goods through an agent demanded a certain guaranty which the principal declined to make, and thereupon the agent, in order to complete the sale and secure his commission, orally agreed to hold the principal harmless against any loss that might arise from giving the guaranty. Meld, not such a guaranty of the debt or default of another as comes within the inhibition of the statute of frauds.</p> <p>7. Evidence—Conclusion—Construction of Writing.—It is error to permit a party to the suit to examine depositions and documents on file in the case and testify as to their meaning, and state his conclusions as to what facts are established thereby.</p> <p>8. Pleading and Proof—Quantum Meruit—Contract.—Upon a count of quantum meruit by an agent for the value of services in selling the products of his principal, he can not by virtue of a contract agreement to that effect recover commissions on sales made directly by the principal in the territory assigned to the agent.</p> <p>9. Evidence—Value of Services—Subsequent Contract.—Upon a claim for the value of services by an agent, a contract afterwards entered into by him with his principal and not contemplated at the time of the services, is not admissible in evidence.</p> <p>10. Principal and Agent—Commissions—Charge of Court.—A contract provided that the agent should be entitled to commissions on sales only as the payments therefor should be actually made. Matter in avoidance of this provision was pleaded, alleging that the principal had waived it, and was estopped to claim it. Meld, that the matter should have been proved and submitted to the jury, and it was error in the charge of court to virtually disregard such provision.</p> <p>11. Same—Value of Bond.—Where the agent has agreed to receive his commissions in mortgage bonds given by the purchaser for the goods, his recovery from the principal on failure to deliver the bonds to which he is entitled should be for the actual value instead of the face value of such bonds.</p> <p>12. Same—Exclusive Territory—Sales by Principal.—Where the principal assigns exclusive territory to an agent, agreeing not to sell goods in that territory, and afterwards violates such agreement, it is immaterial that the terms of such, sale by the principal were agreed upon outside of such territory.</p> <p>13. Deposition—Inadmissible Evidence—Exclusion by Charge.—Defendant attached as an exhibit to a cross-interrogatory a purported copy of an assumed letter from B. to S., the original of which, if it ever existed, would not have been admissible. The court permitted the exhibit to be read to the jury, but in the general charge instructed them not to regard “ the letter from B. to S. ” Meld, that the error in permitting the matter to go before the jury was not cured by such instruction.</p> <p>14. Evidence—Admission by Agent.—A statement by an agent of plaintiff, that on final settlement with defendant his principal would be owing defendant, being merely a conjecture of the witness, and one which he was not shown to have the authority to express, was not admissible as evidence.</p> <p>15. Evidence—Abandoned Pleadings.—Abandoned pleadings are incompetent to prove a material fact.</p>

<p>Harried Woman—Damages—Community Property—Parties.—A suit on a liquor dealer’s bond for the damages provided by statute for sale of liquor to a minor can not be maintained by a married woman joined only pro forma by her husband, since such damages are community property.</p>

<p>1. Common Carrier—Bill of Lading—Recitals—Presumption.—Ordinarily the recital in a hill of lading that the goods were received in apparent good order makes a prima facie case against the carrier if they are afterwards delivered in an injured condition; but this does not apply where articles are so shipped in boxes, packages, etc., as to be subject only to external inspection, and in such case one suing the carrier for injury to the goods claimed to have occurred in transit, the boxes being delivered in apparent or exterior good order, must prove that the articles were not injured when received by the carrier.</p> <p>2. Same—Presumption in Case of Connecting Lines.—Where goods are transported over connecting lines, the presumption is that each successive carrier received them in the same condition as when the shipper parted with them to the initial carrier.</p>

<p>Liquidated Damages—Penalty.—Where an advertisement for bids for erecting a court house required each bid to be accompanied by a check for a stated amount of money, “as a guaranty of good faith that the bidder, in case his bid is accepted, will enter into contract and bond,” and such amount was deposited by one whose bid was accepted, but who failed to enter into contract and bond, the sum so deposited is not liquidated damages, but a penalty, and the bidder is liable only for the amount of the actual damages occasioned by his failure.</p>

<p>Telegraph Company—Damages—Mental Anguish.—Negligent delay in delivering money which a mother sends hy telegraph to her minor son will not render the telegraph company liable in damages for the mental distress and anxiety of the mother arising merely because of such delay.</p>

<p>Mental Suffering—Failure to Receive Money Promptly.—Plaintiff, an inexperienced youth, was away from home, among strangers, and without money. Through failure of defendant to promptly deliver a money telegram, he was compelled to remain there a week, “suffering great mental anguish and distress of mind, and mortification at being among strangers without money to pay his hoard, and feeling that he was looked on with suspicion.” Held, that such mental anguish afforded no cause of action for damages.</p>

<p>1. Pleadings—Particularity in Stating Pacts.—Plaintiff’s petition alleged that in March, 1890, defendant had assistants or employes engaged in the practice of dentistry under him, and that one of said assistants or employes in extracting plaintiff’s tooth caused the injury for which suit was brought. Held, that special exceptions to the omission to give the name of the assistant and the date of the month were properly overruled.</p> <p>2. Parties to Suit for Damage—Employe.—In an action for injuries occasioned by an employe in the transaction of his employer’s business, such employe is not a necessary party.</p> <p>3. Hearsay—Declaration of a Bystander.—The declarations of mere bystanders who were wholly disconnected with the transaction under investigation are not admissible as part of the res gestee.</p> <p>4. Pleading and Evidence—Special Exception Necessary.—Where plaintiff alleges his damages generally, and no special exception is urged by defendant on that account, the defect can not be availed of by objecting to the evidence of the specific items of damage as not being warranted by the pleading.</p> <p>5. Damages—Evidence of Professional Skill.—Where, in an action for injuries caused by defendant's employe in extracting plaintiff’s tooth, the defendant offered proof of his own skill as a dentist, evidence that previous to this occurrence defendant was examined by the dental board and found unable to answer simple questions in anatomy and physiology, is properly admitted in rebuttal, although such examination occurred nearly a year previous to the injury.</p> <p>6. Dentistry—Warranty of Work—Professional Skill.—A dentist is not held to insure the result of his work, nor is he responsible for a mistake of judgment, where he exercises reasonable skill and care.</p> <p>7. Employer Liable for Acts of Employe—When.—Plaintiff’s tooth having been extracted by some one other than defendant, the latter is not liable for injury occasioned thereby unless he had control over such other person’s actions in the matter, or unless, being called upon to do the work, defendant directed it to be done by such other person, under circumstances which would justify a prudent man in believing that the person so directed was defendant’s employe, or unless defendant held out to the public that such other person in his office was his assistant, and plaintiff, relying on such representation, submitted himself to such person, looking to defendant alone as the responsible head of the business.</p>

<p>1. Value of Land—Evidence.—Upon the issue as to the value of land damaged by an overflow, evidence of the value of another tract situated on the same stream twenty miles distant is not admissible.</p> <p>2. Railway Company—Liability for Causing Overflow.—Where a railway company, in order to protect one of its bridges, constructs an embankment without sufficient waterways therein to allow the overflow of a river to pass off in its usual channel, thereby causing an overflow of land, it is liable for the damages resulting therefrom.</p> <p>3. Same—Jurisdiction—Indian Territory.—The fact that the motive power which started the injury was put into operation on the north side of Red River, in the Indian Territory, will not exempt the defendant from liahilty in the courts of this State, wherein the overflowed lands are situated.</p> <p>4. Surface Water—Damages from Overflow.—The rules of law in reference to obstructing and changing the current of surface waters should not be charged by the court in an action for injuries resulting from the overflow from a river diverted by reason of an embankment.</p>

<p>1. Street Railway—Negligent Injury to Person.—Where the evidence showed that a street car, while being driven at an unlawful rate of speed on a dark night, without lights and without a vigilant watch being kept by the driver, ran over and killed a person walking along the track, a verdict against the railway company was warranted by the evidence.</p> <p>2. Same—Provisions of Charter—Rate of Speed—Charge.—Where it was pleaded and proved that the city charter required drivers of street cars to keep a vigilant watch for persons on the track, it was proper to submit to the jury the question whether the driver was keeping such a lookout as the city ordinances required at the time the deceased was run over and killed.</p> <p>3. Burden of Proof—Contributory Negligence.—A requested charge that the burden of proof is on the defendant to show by a preponderance of evidence contributory negligence on the part of the deceased, coupled with the addition that this charge must be taken in connection with the main charge, that the plaintiffs must show that the deceased was injured without any fault or negligence on his part, in order to make out their case, is properly given.</p> <p>4. Street Railway—Charge of Court.—A requested charge, that the jury should find for the defendant if they believed that even if the street car had been lighted and been driven at a proper rate of speed, the deceased would have received the same injury that he did receive, was properly refused.</p> <p>5. Same—Receiver as Party.-—In a suit against a street railway company for injuries sustained before the appoinment of a receiver, where the evidence fails to show net earnings made by the receiver, such receiver, although a proper, is not a necessary party.</p>

<p>Error from the County Court of Grayson. Tried beloif before Hon. E. P. Gregg.</p>

<p>1. Railway Company—Defective Roadbed Causing Wreck—Proof Held Sufficient.—See the opinion for evidence held sufficient to show that a defective stock gap in the track of the defendant railway company caused a wreck resulting in the death of a brakeman, and to establish negligence on the part of the company with reference to keeping such stock gap in repair.</p> <p>2. Death by Wrongful Act—Evidence Under General Denial.—Where, in an action against a railway company for death of a person occasioned by the wreck of a train, the defendant, by its general denial pleaded, puts in issue every material fact, testimony as to the manner of the deceased’s death, showing the bruised condition of the body when found, was not inadmissible, because likely to inflame the jury.</p> <p>3. Same—Expectancy of Life—Mortality Tables.—Mortality tables proven by life insurance agents to he those generally used and relied on in life insurance business, and showing the life expectancy of men, without regard to their avocation, are admissible in evidence.</p> <p>4. Verdict Hot Excessive,—A verdict of §14,500 against a railway company for negligently causing the death of a strong, healthy, temperate, industrious man, 29 years old, with a life expectancy of 36 years, earning §65 per month as head brakeman in the railway service, most of which he appropriated to the benefit of his wife and infant child, who were solely dependent upon him, held not excessive.</p> <p>5. Damages—Apportionment.—The defendant can not complain of the apportionment of damages as between plaintiffs, the wife and child of the person whose death it has caused, where the total amount of the damages recovered is not excessive.</p>

<p>1. Fire Insurance Policy—Ownership of Property — Failure to Disclose Vendor’s Lien.—The fact that the assured in a fire insurance policy failed to disclose that there were unpaid purchase money notes outstanding, and that the vendor’s lien was reserved to secure their payment, will not defeat his recovery upon such policy on the ground that he was not the “entire, sole, and unconditional owner” of the property.</p> <p>2. Insurance ■—Refusal to Pay Loss—Waiver of Proofs of Loss.—Where the evidence showed that the insurance company refused to pay the loss, the court properly held, that the proofs of loss had been waived.</p> <p>3. Intervention—Insurance Policy, Interest In.-—A party to whom an interest in an insurance policy had been transferred after suit brought thereon had a fight to intervene in such suit.</p>

<p>1. Unincorporated Association—Suit Against Church—Liability Where. An unincorporated association for religious or charitable purposes has not the power to sue or to be sued, but the members and managing committees who incur the financial liability, assent to it, or subsequently ratify it, become personally liable.</p> <p>S. Same—Action Upon Note Made by Deacons.—In a suit brought against an unincorporated church upon a note given by its deacons, it was improper to exclude evidence showing that in a former action on the note brought against them individually by plaintiff, judgment had been rendered in their favor.</p>

<p>1. Pleading and Proof— ftuo Warranto to Contest Election.—Evidence that ballots at a given box had been fraudulently altered after they were cast is not admissible under pleadings alleging merely that the returns from that box were false, and should show more votes cast for relator than were returned for him.</p> <p>2. Same.—Where the relator admits in his pleadings that the respondent received 124 votes at a certain box, it is not error to exclude evidence to show that he had received only 111 votes at that place.</p>

<p>1. Pleading—Deed of Trust—Proof Required by General Denial.—Plaintiff sued for the wrongful seizure of certain goods, alleging possession and title in himself, but not setting out the nature of his title. Defendant pleaded not guilty and specially, that plaintiff’s title was solely by virtue of a preferential deed of trust to him as trustee, which was void, because made to hinder and delay unpreferred creditors, and because it had been altered after its delivery. Held, that the answer attacked plaintiff’s title only in the respects mentioned; that his proof of possession met the requirements of the general denial, and that it did not devolve upon him to prove the delivery of the trust deed, and that any one of the beneficiaries therein had accepted prior to the seizure.</p> <p>2. Attachment Bond—Proof of Liability of Sureties.—Where there was evidence that defendants had, as sureties, executed an attachment bond to the officer having the writ, to indemnify him against all damages arising from the levy thereof, this was sufficient to justify the submission to the jury of the question whether defendants had induced or procured the making of the levy in the manner it was made and upon the specific property involved so as to become liable therefor.</p> <p>3. Trust Deed With Preferences—Notice to Preferred Creditors of the Fraudulent Intent.—In order to avoid a trust deed preferring certain creditors, there must exist not only the fraudulent intent on the part of the maker to hinder, delay, or defraud other creditors, but also notice of such intent on the part of the creditors for whose benefit it was made, and the rights,- under the trust deed, of preferred creditors who have accepted without such notice will not be affected by notice of the fraud on the part of other creditors therein secured.</p> <p>4. Same—Fraud Against Creditors—Intent to Hinder and Delay—Charge of Court.— Instructions to the effect that the mere fact that a deed made to prefer creditors does hinder or delay other creditors does not avoid the conveyance, but that an intent to hinder, delay, or defraud creditors does avoid it, is objectionable as being too abstract, and as not sufficiently explaining the character of the acts or results which are to be considered unlawful hindrances or delays.</p> <p>5. Same.—A charge that an insolvent debtor has the right to prefer one or more creditors over others, “and the mere fact that such preference is given will not avoid the instrument made for that purpose, though such insolvency was known at the time to the preferred creditors, and they also knew that the effect and intention of such instrument was to hinder, delay, and defeat a portion of the maker’s creditors in order to give a preference to those protected by the instrument,” is misleading and properly refused.</p> <p>6. Same—Debt With Personal Security—Acceptance by Surety.—The fact that a debt secured by deed of trust is also secured by personal indorsement does not affect the rights of its owner to the benefits of the deed, and an acceptance of the deed by such indorser or surety will be sufficient to give it effect as such debt, although the surety be not mentioned in the deed.</p> <p>7. Same—Evidence of Fraud—Subsequent Acts.—Where an issue is, whether a preferential deed of trust- was made to defraud the unpreferred creditors of its makers, the acts and transactions of the parties tending to show such purpose, even though subsequent to the delivery of the deed, may be given in evidence; and notice of such fraud on the part of the beneficiaries therein may be shown by other and different facts.</p>

<p>1. Conversion—Landlord’s Lien—Cause of Action.—The conversion, under wrongful levy of execution, of crops upon which the landlord has a lien, gives him, where the tenants are insolvent, a right of action against plaintiffs in the execution for the value of the property so converted, not to exceed the amount of the debt due him by the tenants.</p> <p>2. Same—Parties.—In such an action by the landlord the tenants are not necessary parties, nor can objection on account of their nonjoinder be raised for the first time in the appellate court.</p> <p>3. Judgment—Accord and Satisfaction—Consideration.—A plea of accord and satisfaction of a judgment setting forth a paroi agreement between the plaintiff and defendant therein, to the effect that friendly suits should he brought by plaintiff on notes given by defendant for certain lands, that no defense should be made to the suits, that the lands should be bought in by the plaintiff, and if they could be after-wards sold, plaintiff should retain out of' the proceeds the amount due on the notes, and if they could not be sold, he should take them in full satisfaction of the judgment, shows a valid agreement having a sufficient consideration.</p> <p>4. Same—Parol Evidence Wot Varying Judgment.—Such anterior paroi agreement made for the purpose of providing for the satisfaction of the debt, does not contradict, vary, or qualify the judgment subsequently taken under the agreement.</p> <p>5. Same—-Subsequent Declarations—Hearsay Evidence.—-Declarations made to a third party by the plaintiff in such judgment, in denial of the agreement, after plaintiff's purchase of the lands thereunder, and after possession thereof had been delivered to him, are hearsay and inadmissible.</p> <p>6. Exemption—Provisions and Provender for Home Consumption.—The exemption allowance of provisions and provender for home consumption should be determined by the jury under proper instructions, and should be such amount as a provident man would ordinarily keep on hand. •</p> <p>7. Parties—-Tenants in Common—Action for Conversion—Judgment for Part of Plaintiffs.—In an action for the conversion of property jointly brought by several plaintiffs who are tenants in common thereof, judgment may be rendered, under article 1336 of the Revised Statutes, in favor of or against a part only of the plaintiffs or of the defendants. May v. Slade, 24 Texas, 205, distinguished.</p>

<p>1. Former Judgment—Issues Determined—Res Adjudicata.—Plaintiff’s former suit was for 25 per cent commissions on cash receipts hy defendant on sales of monuments effected by plaintiff, and also for the reasonable value of 25 per cent of a note given hy one S. on another sale, but not then paid. The judgment awarded plaintiff his per cent of the moneys already collected, and further provided, that plaintiff “was adjudged to he entitled to 25 per cent of the S. note for $550 when the same is paid.” Afterwards plaintiff brought this suit for 25 per cent of the proceeds of the note, which had been paid, basing his right of action upon the above clause in the judgment. Held, that the former judgment was not conclusive against plaintiff's right to recover in this action; that the recital therein as to the note was not a judgment determining any issue in that case; nor yet was it res adjudicata in favor of plaintiff’s right to recover without pleadings and proof of his interest in the note and its proceeds.</p> <p>2. Same—Conflicting Judgments.—In the case of two conflicting judgments, the latter must prevail.</p> <p>3. Limitations.—As against one entitled to part of the proceeds of a note when collected, limitation will run only from the date of its collection.</p>

<p>Appeal from Galveston. Tried below before Hon. William H. Stewart.</p>

<p>Insurance Policy—Warranty—Iron Safe Clause.—In a fire insurance policy, the only description of the property and the iron safe clause were written and printed together on a slip of paper, which was pasted in the face of the policy at the appropriate blank space left for that purpose, and expressly made a part of the contract. Held, that the clause was a part of the policy, that its stipulations constituted a warranty, and a failure to meet its requirements avoided the policy.</p>

<p>1. Outstanding Title.—Where the children of a deceased person brought suit to recover the certificate by virtue of which the land in controversy was subsequently located, and judgment was rendered dismissing their cause of action, this did not constitute an outstanding title in the defendant in that suit as against the vendee of the widow of such deceased person, she not having been a party to that proceeding.</p> <p>2. Laws of Another State—Evidence.—Where there is no evidence to show what the laws of another State are in regard to the title of property acquired during marriage, the presumption obtains that they are the same as in this State.</p> <p>3. Burden of Proof—Defensive Matter.—It is not necessary for the plaintiff, claiming property through a widow who inherited it from her husband, to prove that its equivalent had not been set aside to her. Such matter would be defensive, and the burden to establish it would rest upon the defendant.</p>

<p>■ 1. Continuance—Sufficiency of Third. Application.—An application for a third continuance which does not disclose the time, nature, and extent of the inquiry concerning a witness who had changed his residence two months before the trial, and does not show that there was a reasonable probability that his testimony could be procured at the next term of court, is properly refused.</p> <p>2. Same—Absence of Counsel—Showing.—A statement in a motion for a third continuance, that the leading counsel is sick in a distant town and unable to be present, as shown by a telegram attached to the motion, does not constitute sufficient grounds for the continuance.</p> <p>3. Impeaching Evidence—Predicate.—Contradicting evidence for the purpose of impeaching a witness is not competent where no predicate has been laid for Such impeachment.</p> <p>4. Secondary Evidence—Appointment of Deputy Clerk.—Oral proof is admissible to show the appointment of a deputy clerk where the written evidence of his appointment is lost, and can not be found after diligent search.</p> <p>5. Bill of Exceptions—Ground of Objection to Evidence.—Where the ground of objection to the evidence is not shown by the bill of exceptions or otherwise, the exclusion of such evidence will not be held reversible error.</p>

<p>State School Land—Abandonment—Validating Act of 1887.—Where one who had purchased State school land at a void sale made by the Land Board under the Act of 1883 abandoned his claim thereto, the validating act of 1887 did not inure to his benefit, and his quitclaim deed thereof, made three years after its purchase and adverse occupancy by another, conveyed no title.</p>

<p>1. Surveys—Corrections and Conflict—Validating Act.—There was an attempted correction and resurvey of certain orginal surveys in a block of railroad land, but, through mistake, the resurveyed sections were placed in conflict with others in the same block. Both the original surveys and the resurveys were made without legal authority by the surveyor of another land district. Held, that the effect of the Act of April 4, 1881 (2 Sayles’ Civil Statutes, article 3906a), validating all surveys in that district in so far as they were illegal because made by the.surveyors of another district, was to validate only the original surveys in such block, and not the resurvey void because of the conflict.</p> <p>2. Same—Abandonment—Intention.—No abandonment of any of the lands as originally surveyed resulted from such mistake and erroneous resurvey, as there was no intention of abandonment.</p> <p>3. Same—Estoppel.—The making of such erroneous resurvey and procuring patents thereon will not estop the owner of the land to have the resurveys canceled and claim the surveys as originally made, as against one who, after the patents issued, but with knowledge of the mistake, locates certificates upon the sections apparently left vacant by reason thereof.</p> <p>4. Constitutionality of Validating Act—Land Certificates.—The requirement of section 2, article 14, of the Constitution of 1876, that all outstanding land certificates should he surveyed and returned to the General Land Office within five years thereafter, does not deprive the Legislature of the power to validate after that time the survey of a certificate which was illegal because made by the surveyor of another district.</p>

<p>1. Action on Sequestration Bond—Pleadings.—In an action of damages upon a sequestration bond and a replevin bond, a petition setting out plaintiff’s right, the injury inflicted by defendant’s wrongful entry upon premises of which plaintiff was in peaceable possession, and the consequent damages, is sufficient on general demurrer. See the opinion.</p> <p>2. Same—Allegation of Possession and Right—Lease.—Where, in such action, the petition alleges peaceable possession of premises under a lease, and a wrongful entry and ouster by defendant, an averment of title in plaintiff’s lessor is unnecessary.</p> <p>3. Same—Limitations.—The statute of four years’ limitation, and not that of two, applies to an action upon a sequestration or replevin bond.</p> <p>4. Same—Liability of Sureties.—Sureties upon sequestration and replevy bonds are not liable for exemplary damages on account of the malice of the principal.</p>

<p>1. Verdict—Certainty.—A finding by the jury in a claim for wrongful attachment, assessing the damages occasioned thereby at “the difference between what the attached cotton brings when sold and its value at 7\ cents per pound,” without fixing the number of pounds, is too indefinite to support a verdict for any certain sum.</p> <p>2. Attachment—Remedy—Parties.—One whose property has been wrongfully appropriated in satisfaction of attachment against him, has an adequate remedy against the officer, only one suit being necessary, although the property may have been taken under several writs, and it is therefore not necessary to Ms protection that the plaintiffs in the several attachment suits should all be joined as parties in any one of such suits.</p> <p>3. Priority of Lien—Mortgage and Attachment.—A party defendant in a suit having a mortgage on property of his codefendant attached therein, has the right to have his mortgage adjudicated and the proceeds of the attached property first applied to its satisfaction if it be held a superior lien.</p> <p>4. Guaranty of Debt of Another—Statute of Frauds.—A verbal promise to “see paid ” a debt of another, although made at the inception of the debt, will ordinarily render the promisor liable therefor as surety, and not as a principal.</p> <p>5. Attachment—Landlord’s Interest in Crops.—Ordinarily a landlord’s interest in the crops of Ms tenant which are grown on the shares is an attachable interest, nota mere lien.</p>

<p>1. Jurisdiction of County Court—Distress Proceeding.—Where a distress warrant for rent sued out before a justice of the peace upon a claim for a sum exceeding §1000, and levied on property above that amount in value, is returned to the County Court, such court is without jurisdiction of the amount in controversy, and is not authorized to enter an order in the case quashing the distress warrant or any other order except one dismissing the case and directing its transfer to a court having jurisdiction.</p> <p>2. Bill of Review—Vacating Order.—Where an order is void for want of jurisdiction, the court may declare its nullity and set it aside, though so requested at a subsequent term by a bill of review.</p>

<p>1. Consolidation of Cases.—-J. brought suit against a bank to compel a transfer to him of a certificate of its stock, joining S., who also claimed the certificate, and S. by cross-bill therein asked judgment against the bank for the value of the stock as for its conversion, and afterwards S. filed in the same court his suit against the bank alone for the conversion of the stock. Upon motion of the bank the two cases were consolidated. Held, that as the cause of action asserted by S. against the bank was the same in each case, such consolidation was not as to him an abuse of judicial discretion.</p> <p>2. Plea to Jurisdiction—Waiver.—Where a defendant files his plea to the jurisdiction, asserting his privilege to be sued in the county of his residence, and allows two terms of court to pass without asking action thereon, he thereby waives the plea.</p> <p>3. Equitable Action to Compel Transfer of Corporate Stock;—An equitable action by an assignee of corporate stock, against one holding it as an implied trustee, to compel a transfer of the stock to himself, may be maintained without showing the insolvency of the defendant, and without recourse to the legal remedy for damages for its conversion.</p> <p>5. Same—Bill of Exceptions Necessary.—Where the ground urged in a motion for new trial is that the case was tried in violation of an agreement of the attorneys for its postponement, the action of the court in overruling the motion will not be revised when there is in the record no bill of exceptions showing what evidence as to the existence of such controverted agreement was heard by the court.</p>

<p>Trust—Voluntary Conveyance—Assignee.—Without consideration and with no intent to defraud any one, land was conveyed by appellant and wife to J. F. Peck. The grantors resided thereon, and continued to do so. J. F. Peck reconveyed the land. He subsequently assigned for benefit of creditors. While the land was in his name he had used it as a basis of credit, but of this the appellant had no notice. The assignee brought suit for the land, and recovered it of the appellant. Held:</p> <p>1. As the land did not belong to J. F. Peck, it was no fraud on his creditors for him to reconvey the land to its rightful owner.</p> <p>2. If creditors had extended credit to J. F. Peck, being induced to do so by the legal title being in him so as to estop the appellant as against them, still the assignee could not assert such right.</p> <p>3. The assignee takes only such right as the assignor had at time of the assignment, together with the statutory right-to recover property fraudulently conveyed in contemplation of the assignment.</p> <p>4. When the assignment is for benefit of accepting creditors, one not accepting can assert no right arising from the assignment.</p>

<p>The opinion states the facts.</p>

<p>Ebbob to District Court of San Saba County. Tried below before Hon. W. M. Allison.</p>

<p>1. Verdict—Fraud—Notice.—See facts held to support a verdict either against the charge of fraud in a transaction, or for want of notice on part of a purchaser from an insolvent debtor. The transaction was the exchange of land for the stock of a mercantile firm, a member of which was insolvent. The exchange was attacked by individual creditors.</p> <p>2. Good Faith—Charge.—It was objected to the charge, “that an insolvent debtor has the right to sell or exchange all his property for other property which would be subject to the demands of his creditors when done in good faith,” etc., for the reason that good faith was not defined. Held, that the charge was correct as far as it went, and could not be complained of in absence of an effort to supply the omission by ■asking such charge and its refusal by the court.</p> <p>3. Hinder and Delay—Fraud.—If an act be lawful, an unfriendly motive will not render it unlawful. An insolvent debtor can lawfully pay or secure one or more of his creditors, and such payment does not become fraudulent from the intent to prefer and the consequent effect thereof upon those not preferred. This applies equally to partnership debts as to individual debts.</p> <p>4. Exchange of Property.—If a debtor exchange merchandise for real estate of equal value and subject to the demands of creditors, it is impossible for the creditors to be injured by the transaction.</p>

<p>Appeal from Brown. Tried below before Hon. J. O. Woodward.</p>

<p>Error to District Court of San Saba County. Tried below before Hon. W. M. Allison.</p>

<p>Writ of Error to County Court of Bell County. Tried below before Hon. John M. Furman, County Judge.</p>

<p>1. Title of Act—Amendments.—Chapter 110, Laws Eighteenth Legislature, page 113, approved April 14, 1883, is entitled, “An Act to amend title 32, chapter 17, of the Revised Statutes of the State of Texas, by adding thereto articles 1639a and 1639b.” This sufficiently identifies the article, the title, and the body of laws amended; and is a compliance with section 35, article 3, of the Constitution, requiring the subject of the act to be expressed in its title.</p> <p>2. Amendment—Section 36, Article 3, of Constitution—Nor is said amendment, chapter 110, Laws Eighteenth Legislature, violative of article 3, section 36, of the Constitution, prescribing, that “No law shall be revived or amended by reference to its title; but in such case the act revived or the section or sections amended shall be re-enacted and published at large.” This provision only requires that the new statute shall set forth the amended statute as amended or revived and not that the statute amended should be copied as it before stood. The sections added are complete in themselves, and amendatory of the act referred to.</p> <p>3. Same—Same—Appeal by Pauper’s Oath.—Chapter 122, Laws Twentieth Legislature, page 113, April 2,1887, entitled “An act to amend article 1639a of an act to amend title 32, chapter 17, of the Revised Civil Statutes of the State of Texas, approved April 14, 1883,” is not violative of sections 35 or 36, article 3, of the Constitution. Under said act (chapter 122) appeals could be taken by appellant proving inability to pay the costs, or any part thereof.</p> <p>4. Description—Immaterial Error.—In the affidavit of inability to pay costs filed in lieu of appeal bond, the judgment was described correctly as to the court, the parties, and nature of litigation, but gave the amount as §99.90, instead of §99.09, as it appeared in the transcript. This was no ground for dismissal of the appeal. It is clear that the amount stated was a mistake which could be corrected by the judgment itself.</p> <p>5. Time "Within Which Affidavit in Lieu of Appeal Bond Must be Filed. If the affidavit and proof of inability to pay costs be filed in the Justice Court within ten days after the rendition of the judgment, it is sufficient. It is not required that the affidavit or proof of inability state the date of the judgment, and an error in stating the date would not defeat the appeal actually perfected by filing the affidavit and proof within ten days from date of the judgment.</p>

<p>This is an appeal from a judgment in favor of Clara J. Cavitt, joined by her husband, as plaintiffs, against “the defendants, Virginia Sypert, Joseph M. Sypert, Texana Rucker, W. S. Reed, Mrs. Martha Rogers, Volney Reed, Florence McKnight, James McKnight, Ida Travis, R. L. Travis, Elizabeth Stone, J. B. Stone, Martha Reed, Sallie Reed, Wiley Reed, Emma Reed, James Reed, K. M. Reed, Mary A. Goode, and J. R. Rucker, defendants; the defendants Martha Reed, Sallie Reed, Emma Reed, Wiley Reed, and James Reed being represented by their guardian ad litem C. A. Brand, duly qualified to act in said capacity, for the title and possession of” a tract of land described in the judgment. The litigation was over a question of boundary. Pending suit, the defendant Martha Reed was married to J. D. Lindsay. The .marriage was suggested, but the husband was not made a party. Other matters necessary are set out in the opinion. The merits of the controversy as to the ownership of the land were not discussed. The appeal was by the defendants.</p>

<p>Advice of County Attorney—Malicious Prosecution.—When a person in good faith makes to the prosecuting officer a fair statement of the facts as known to him concerning the charge of which he makes complaint, and the prosecuting officer advises the prosecution, such action of the prosecuting officer is proof of probable cause, and á defense to an action for malicious prosecution. Sebastian v. Chepey, 86 Texas, 497, followed.</p>

<p>1. Assignment of Error.—An assignment of error which complains of the action of the court in overrnling “defendant’s demurrer,” where the record shows several demurrers were overruled, is too indefinite to require consideration.</p> <p>2. Effect of Appeal from County Court to District Court.—Where the County Court sustains exceptions to an application for an order to sell mortgaged property belonging to an estate, an appeal from such action carries the whole case to the District Court, to be tried as if originally brought in that court.</p> <p>3. Application for Order to Sell Mortgaged Property.—If such application clearly alleges that the claim was secured by mortgage or deed of trust, and that the claim was allowed by the administratrix, it need not allege that the deed of trust was allowed by the administratrix and approved by the court.</p> <p>4. Pleading—Special Exception to Amended Application.—The tact that an amended application failed to state that it was filed in lieu of the original should be raised by special exception in the trial court, and can not be raised for the first time, on appeal.</p> <p>5. Evidence—Admissibility of Original Deed of Trust.—Where a claim was allowed by the administratrix as one of the third class, and approved as such by the judge, this judgment fixed the status and class of the claim, and the fact that it also' declared that the claim was evidenced by notes secured by deed of trust, giving names of the parties and place where recorded, was sufficient to admit the original deed of trust in evidence, without its having been filed and notice given.</p>

<p>1. Partnership—Community Property.—Where the wife invests community funds in a partnership business, the husband, and not the wife, becomes a partner therein.</p> <p>2. Actions by Partnership—Conversion of Partnership Goods.—The conversion of goods of a partnership is a tort against the firm, i. e., against both partners, and both partners generally should join in an action to recover damages to their joint property; one can not recover the entire damage, unless there are special reasons alleged and proved why he should sue on behalf of himself and his partner.</p> <p>3. Partnership Property—Presumption as to Partner’s Interest.—In the absence of proof to the contrary, partners are presumed to be equally interested in partnership funds and property, hut a different interest may be shown by competent evidence.</p>

<p>1. Parties—Suit by Some on. Behalf of All.—Where a sufficient number of persons alike interested with those who have not been made parties were before the court to represent the interests of all, the court properly overruled a motion to dismiss the cause for want of proper parties.</p> <p>2. Mortgage and Assignment Distinguished.—A mortgage creates a specific lien on property; the equitable title, or right of redemption, remains in the grantor, and his interest is such as he may sell, or it may be sold under judicial process by other creditors, subject to the lien created by the mortgage; while an assignment is a transfer by a debtor of some or all of his property to an assignee in trust, to apply the same, or the proceeds thereof, to the payment of some or all of his debts, and return the surplus, if any, to the debtor.</p> <p>3. Assignment for Benefit of Creditors—Purpose of Statute.—Where an assignment is made by an insolvent debtor, or in contemplation of insolvency, for the benefit of his creditors, the object of the statute is to compel a distribution of his estate among his creditors under its provisions.</p> <p>4. Same—Intention of Assignor Does Not Control.—The statute makes the execution of an assignment a submission to its provisions, whether the assignor intended it so or not.</p> <p>5. Same—Attorney’s Fee.-—Where a conveyance is executed intended to be a deed of trust preferring creditors according to three classes, and suit is brought by a creditor of the third class to have the same declared an assignment, the creditors of the first and second classes do not have to contribute to the attorney’s fee allowed by the court-, as the suit was not for their ben.efit.</p>

<p>1. General Demurrer—Allegation as to Ownership of Notes.—Where a widow sues upon notes executed to her late husband, and alleges, that as such surviving wife she is the owner and holder of the same; such allegation is sufficient upon general demurrer.</p> <p>2. Evidence—Foreclosure—Vendor’s Lien Notes.—Where suit is brought upon vendor’s lien notes, which show that they were given for the purchase money for land, which they fully describe and upon which they expressly reserve a lien, such notes are sufficient evidence, without the introduction of the deed, upon which to enter a proper decree of foreclosure.</p> <p>3. Community Property, Presumption as to—Promissory Notes.—Notes possessed at the time of the husband’s death are presumed to belong to the community estate, unless the contrary is shown, and where it does not appear that the deceased left a child or children, the notes go to the surviving wife.</p> <p>4. Promissory Notes, Maturity of—Failure to Pay Interest.—Where it was stipulated that interest on notes was to he paid semi-annually, and that failure to pay it when due would mature the notes, it was properly held, that the notes matured upon default in payment of the interest.</p>

<p>Error from Bexar. Tried below before Hon. G. H. Noonan.</p>

<p>1. Necessary Party—Plea in Abatement.—Where a plea in abatement setting np the nonjoinder of a necessary party is stricken ont by the lower court on exception, this court will not reverse the judgment for such holding, unless it appears that injury has resulted to appellant; and will look to the entire record to determine whether or not the party was a necessary party.</p> <p>2. Same—Cancellation of Trust Deed.-—Where a note secured by deed of trust is taken up by the execution of a new note, and a new deed of trust is taken on different property under an agreement that the first deed of trust should be released, the holder of the new note is not a necessary party to a suit to cancel the first deed of trust.</p> <p>3. Continuance—Insufficient Application.—There was no error in overruling an application for continuance to secure the deposition of a witness, where it does not appear that the proposed witness was cognizant of the facts of the transaction about which his testimony was desired.</p>

<p>1. Deed of Infant, Disaffirmance of.—The deed of a minor is not void, hut only voidable; and in order to avoid it, some act of disaffirmance must be done within a reasonable time after the minor shall have arrived at matnrity.</p> <p>3. Same—Reasonable Time—Question of Fact.—No well defined rule of law has been fixed by which to determine what is a “reasonable time” within which the right to disaffirm may be exercised. It is a question of fact, rather than a question of law.</p> <p>3. Same—Action to Disaffirm Too Late, When.—Where land was conveyed by a minor without guardian in settlement of legal services, which were worth the full value of the land conveyed, and the services were necessary for the preservation of the minor’s rights, and the minor neither before nor after her majority, or at any time before her death, indicated any purpose to disaffirm such conveyance, and the same was not disaffirmed by her heirs before suit was brought, Seld, that an action brought by her heirs more than five years after her minority terminated, more than four years after her death, and nearly nine years after the deed was made by her, was not begun within a reasonable time.</p> <p>4. Same—Disaffirmance Not Shown, When,—A general conveyance by a surviving husband of his interest in his wife’s lands in Texas will not be held to be a disaffirmance of a prior conveyance made by her during her minority, when the particular land which she had conveyed was not mentioned in the general conveyance made by him.</p> <p>ON MOTION FOE BEHEAEING.</p> <p>5. Intervention on Behalf of Minor.—Where an intervention is properly made for a minor for the protection of her rights, it could make no difference whether she became a defendant in the suit or held aloof from both plaintiff and defendant.</p> <p>6. Intervention on Behalf of Minor, Necessity of.—Where a minor’s muniments of title are directly attacked and are in imminent peril in a suit pending, it is necessary and proper that her interest should be protected by intervention.</p> <p>7. Attorney’s Fee's, Reasonableness of.—Where the undisputed testimony shows that the suit involved the title to 758 acres of land, and was a difficult one to defend, stubbornly fought, and presented questions of law requiring much time and labor, an attorney’s fee of §300 was reasonable.</p> <p>9. Disaffirmance by Deed.—Disaffirmance by deed must be made with the intention to convey the particular tract originally sold.</p>

<p>1. Limitation—Cloud Upon Title—Statute Construed.—Article 4353, Revised Statutes, relating to correction of defective certificates of acknowledgment, and limiting the period within which such action must he brought, has no application to a suit in equity to remove cloud from title, arising from misdescription of property.</p> <p>• 2. Same—Equitable Action to Remove Cloud.—Where one has bought and paid for land, gone into possession, made improvements, and exercised all the acts of ownership, without his title having been repudiated by his vendor, the statute of limitations does not run against his equitable right to have cloud removed from the title to his land growing out of misdescription of property.</p>

<p>1. Homestead—Rented Land—Exemption—Unpicked Cotton.—Where the head of a family rents land and lives upon it, the land constitutes a part of his homestead, and unpicked cotton grown thereon is exempt from execution.</p> <p>2. Exempt Property, Sale of Not Fraudulent.—A sale of exempt property can not constitute a fraud upon creditors.</p> <p>3. Excessive Levy, Recovery for—Fraudulent Sale.—Where creditors make an excessive levy upon property purchased by another from their debtor, if such purchaser paid value therefor, he may recover of them the excess above their debts, although such sale was fraudulent as to creditors.</p>

<p>1. Fire Insurance—Proofs of Loss, Waiver of.—Where the assured, incurs much expense and trouble and loss of time in attempting to adjust the loss, under promise that it can be settled, the insurance company will be held to have waived technical proofs of loss within sixty days, especially where the policy does not provide for a forfeiture in the event of failure to present proofs of loss within the sixty days.</p> <p>2. Same—Limitation, Waiver of.—Where the insurance policy required suit to be brought within six months after the loss, but the company purposely held out to the assured that the loss would be adjusted, and kept him waiting until after the expiration of the six months, it can not interpose such limitation as a bar to recovery.</p>

<p>1. Change of Venue—Affidavit—Railway Company—Local Agent.—Where a railway company applies for change of venue, its local agent may be one of the compurgators to the affidavit therefor.</p> <p>2. Contributory Negligence—Failure to Open Depot.—It was error to refuse a special charge, to the effect, that if plaintiff was informed before the train was due that the depot would not be opened that night, the duty devolved upon her to use care and prudence to protect herself from the inclement weather.</p> <p>3. Railway Company—Insult to One Waiting for Train.—It was error for the court to admit testimony to the effect that plaintiff had been insulted while waiting for the train at the depot, as such was not the fault of the defendant company.</p>

<p>1. Pleading—Promissory Note—Ownership.—A petition alleging that the notes sued upon were “executed and delivered” to plaintiff by the defendant, is sufficient, and need not contain the allegation that plaintiff is the holder or owner of the notes.</p> <p>2. Same—Attachment Foreclosure.—It is unnecessary for the pleading, where an attachment has been sued out and levied, to allege such attachment proceedings; the production of the affidavit, bond, writ, and return authorizes the court to give judgment foreclosing the lien.</p> <p>3. Partnership, Evidence of.—The reports and published books of a mercantile agency are inadmissible to prove the existence of a partnership; but upon proof aliunde of the holding out by the alleged partner of himself as a partner, the books and reports are admissible to show that plaintiff was induced to make the sales through such information.</p> <p>4. Same—Common Report.—General reputation or common report of a partnership is not evidence of such against an alleged partner, unless he knew he was so held out, and acquiesced in it, and the plaintiff was thereby deceived and induced to sell the goods.</p>

<p>1. Master and Servant—Personal Injury—Negligence—Rules of Railroad Company.—In an action for damages for the death of an employe of a railroad company, claimed to have resulted from its failure to provide suitable rules and regulations for the conduct of its business, a book containing its rules and regulations is admissible to show either the absence of such rule as should have been made, or to show that one or more of such rules did apply and had been violated, or that provisions were made for other cases wherein the risk was similiar, and which by proper care and foresight ought to have been made.</p> <p>2. Fellow Servants—Construction of Statutes—Different Departments.—T. was a foreman or conductor of a yard or switch engine, having under his control three or four men whose business was the moving of cars about the yard in making up and breaking up of trains. There was another foreman in control of another engine and crew in the same yard, whose duties were of like character, and both were under the immediate supervision and control of the yardmaster. Injuries were received by T., resulting in death from a car left standing on the track by the other crew, for repairs by the car repairer. Held:</p> <p>1. That such crews of men were fellow servants, within the fellow servants act.</p> <p>2. That the yardmaster was a vice-principal, and that the cár repairer, if belonging to a different department, was not a fellow servant.</p> <p>3. That if the evidence should show that the negligence of those employes who were not fellow servants co-operated with that of the fellow servants to cause the death of T., the defendant company would be liable.</p> <p>3. Practice—Rules of Supreme Court—Costs.—Where all the evidence of the witness just as detailed and taken down by the stenographer was contained in the statement of facts, it is contrary to the rules of the Supreme Court, and the costs of copying the statement of facts in the record was taxed against the appellant.</p>

<p>1. Independent Executrix—Limitation on Note—New Promise.—An independent executrix has power, before the debt is barred, to suspend the statute of limitation by a new promise on a note against the estate.</p> <p>2. Principal and Surety—Release of Principal by Operation of Law.—A release of the principal by operation of the law will not in all cases discharge the surety, and where the debt has been barred as against the principal by the statute of limitation, the surety may still remain liable by virtue of his own new promise to pay.</p> <p>3. Collateral Security—Failure to Sue on.'—The fact that collateral security has not been sold or sued on furnishes no defense to a suit on the original note.</p> <p>4. Hearsay Evidence—Waiver of Objection.—Hearsay evidence, admitted without objections and uncontradicted, will be treated as competent for the purposes for which it has been offered.</p>

<p>1. Foreign Wills—Registration-—Act March 23, 1887.—Since the passage of the Act of March 23, 1887, title to land in Texas, under a foreign will passes without probate, when the will with its foreign probate is duly registered in the deed record of the proper county.</p> <p>2. Same—Executor With Power to Sell—Bond—Order of Probate Court Not Necessary.—If the will gives the foreign executor power to sell, but does not relieve him from giving bond, still he may sell without an order of court.</p> <p>3. Constitutional Law—Validating Act.—The Act of May 2, 1893, validating sales of land in Texas made by a foreign executor without probate of the will in this State, is constitutional; the rule being, that the Legislature having had the power to authorize a sale of land by an exéeutor without probate of the will, such sales may be ratified and made legal by legislative act.</p>

<p>1. Husband and Wife—Community Estate, Conveyance in Fraud of.—Community property may be the subject of fraudulent conveyance by the husband against the interest of the estate of the wife.</p> <p>2. Evidence—Other Fraudulent Transactions.—In a suit to set aside a fraudulent conveyance by the husband of community property, evidence is admissible to show want of fair dealing by the husband with respect to other property of the wife.</p> <p>3. Evidence—'Res Gestse—Execution of Deed.—A deed was dated 16th May, 1890, and acknowledged 14th August, 1890, and it being pertinent to show that it was in fact signed about the time it purported to have been signed, the statement of the grantor, who had in his hand a paper having the appearance of a deed, and who was then in search of a notary, that the paper held in his hand was a deed from him to the grantee to the property in question, was admissible in evidence.</p> <p>4. Disclaimer—Party to Suit.—The grantor being a proper party to the suit, can not disclaim in an action against him to set aside the conveyance as fraudulent.</p>

<p>1. Estate of Decedent—Revocation of Order of Sale—Administrator’s Deed.—Where an order of sale was made by the Probate Court in October, 1871, authorizing the sale of a lot belonging to the estate, and in February, 1872, another order was made directing the sale of only an undivided half of the same lot, the effect of the second order was held to revoke the first, and restrict the authority of the administrator to that given in the second, and administrator’s deed conveying the whole lot was without authority.</p> <p>2. Same—Presumptions by Lapse of Time.—Presumptions from lapse of time will not be indulged, unless it is shown that the record itself can not be produced; and the presumption must be consistent with the case made.</p> <p>3. Same—Purchaser at Void Judicial Sale—Refunding Purchase Money.— Where a void sale has been made, and the price has been paid to the administrator, and applied to the discharge of debts against the estate, a recovery in favor of the estate should not be allowed until the amount thus paid, with interest, has been refunded.</p>

<p>Error from Harris. Tried below before Hon. S. H. Brashear.</p>

<p>1. Community Property—Presumption—Resulting Trust.—Land purchased by the husband with the separate funds of the wife, the deed being taken in the name of the wife, but containing no recital that the money was paid out of her separate estate, or that the purchase was intended for her separate use, vests the legal title in the community, and a resulting trust in the wife.</p> <p>3. Resulting Trust—Registration—Attachment Lien.—A resulting trust is not within the statutes of registration, and an attachment or other statutory lien is not protected against the claim of the owner of such equitable estate.</p> <p>3. Same—Innocent Purchaser—Crediting Bid on Execution.—A creditor having an attachment or other statutory lien, who purchases at execution sale and simply credits his bid on the execution, is not, though without notice, an innocent purchaser within the registration laws, as against a resulting trust.</p>

<p>Conditional Sale—Registration—Actual Notice—Trustee of Creditors.—Under article 3190a, Sayles’ Civil Statutes, a conditional sale of a chattel, when possession is delivered to the vendee, hy an instrument containing a reservation of title to secure the purchase money, if unregistered, is void as to a trustee of creditors who has actual notice.</p>

<p>Error from Harris. Tried below before Hon. S. H. Brashear.</p>

<p>1. Practice—Jury Trial—Failure to Deposit Jury Fee.—While the statute requires a deposit of the jury fee on the first day of the term, a failure to make it then ■will not deprive the party of the right to make it later, if such failure has not resulted to the prejudice of the opposite party, or caused unreasonable delay or disturbance of the business of the court,</p> <p>2. Same—Legality of Jury—Statutes Construed.—Articles 3022 and 3054 of the Revised Civil Statutes of 1879, construed, and Held, (1) that in all cases where no jury has been selected by jury commissioner at a preceding term of the court, the court has the power to cause jurors to be selected and summoned by the sheriff; (2) that the language used in the statute, “may, when it may be deemed necessary appoint commissioners for that purpose,” is permissive, and not mandatory, and the manner of supplying the omission must largely depend upon circumstances; (3) that where commissioners are appointed at the same term of court at which the jury sits, the provisions concerning the keeping of lists, the issuance, service, and return of the veniri when the jury is selected at one term for a succeeding term, are not applicable.</p> <p>3. Practice—Waiver of Error.—Where the appellant demanded a jury, and afterwards objected to the legality of the jury summoned, and the trial court erroneously sustained the objection, but then overruled the claim to have a jury, appellant’s whole contention not having been sustained, such objection does not waive the" right to a jury.</p>

<p>1. Rescission of Conveyance to Minor—Vendee’s Lien for Money Paid.— Where a conveyance of real estate to a minor is sought to be avoided on the ground of nonage, upon a tender to the vendor of a reconveyance, a vendee’s lien upon the land will be implied to secure a return of purchase money already paid.</p> <p>2. Pleading—Allegation of Lien and Prayer for Foreclosure.—It is not necessary to allege the existence of a lien where the facts stated show the existence, and a general prayer “for all other and further relief in law or equity” to which the pleader is entitled “by reason of the premises” is sufficient to authorize a foreclosure of the lien.</p>

<p>Appeal from the County Court of Tarrant. Tried below before Hon. Robert G. Johnson.</p>

<p>1. Costs—Contest of Affidavit of Inability to Secure.—Plaintiff having filed an affidavit of inability to secure the costs, a contest thereof filed by the defendant and sheriff was stricken out because of the failure of the clerk to join in the contest. Meld, that whether or not article 1438 of the Revised Statutes restricts the right of contest, in this case, to the clerk alone, yet, the case having been tried on its merits and judgment rendered for plaintiff, the action of the court in striking out the contest was not a matter of which the defendant could complain on appeal.</p> <p>2. Evidence—Explaining Absence of Eye-Witnesses.—The testimony having disclosed the presence of other eye-witnesses to the accident complained of, it was permissible for plaintiff to show that he had endeavored by subpoena to secure their attendance, and incidentally their whereabouts, and that they were employes of the defendant.</p> <p>8. Evidence—Custom—-Flying Switch.—In an action against a railway company for death resulting from making a “flying switch” in rainy and freezing weather, when, because of the ice, the braking gear could not be operated, defendant offered evidence that it was the general custom of railroads to make flying switches, but not that it was the custom to make them under the above conditions. Meld, that the evidence was properly rejected.</p> <p>4. Contributory Negligence—Charge of Court.—See the opinion for a definition of contributory negligence and application of the rule in the charge of court, held correct in an action against a railway company for causing the death of a brakeman by use of the “flying switch.”</p> <p>5. Railway Company—Personal ¡Injury—Volunteer.—Where an employe of a coal company went upon the cars of the defendant railway company in the discharge of his duty and to prevent injury to his employer’s property from defendant’s negligence, he was not a volunteer, and is entitled to recover for injuries resulting from such negligence.</p>

<p>1. Auditor’s Report—Exceptions at Trial.—Exceptions to alleged mistakes of calculation in au auditor’s report should- be made in the trial court to entitle the error to be considered on appeal.</p> <p>2. Practice—Error of Omission—Requested Charges.—Failure of the jury to allow interest in this case, if error, was one of omission, and is not available on appeal, since no effort was made at the trial to have that issue submitted to the jury.</p> <p>3. Special Verdict—Practice on Appeal.—A judgment resting upon a special verdict must he supported thereby, and the statement of facts will not be looked to to supply any deficiencies in such verdict.</p> <p>4. Administrator—Taxes.—Taxes paid by an administrator upon unproductive lands of the estate constitute a proper charge against the estate.</p>

<p>Damages Against Two Defendants as Wrongdoers—Primary Liability— Judgment Over Against Codefendant.—A city granted the franchise of its streets to a street railway company upon written contract with the company that it would keep its tracks at proper grade with the street. Through its failure to do this, an injury occurred for which suit was brought against the city and the railway company. Held, as between the defendants, that they were not in pari delicto so as to prevent one from recovering against the other, and that the city was entitled to judgment over against the company in the original action, without the necessity of a separate suit.</p>

<p>1. Reeonvention—Damages—Distress Warrant.—Damages both actual and exemplary arising from the illegal issuance and levy of a distress warrant may be pleaded in reconvention in an action for rent due by written lease.</p> <p>2. Corporation—Damages—Malice of Officer—Ratification.—Where the president of a corporation, acting within the scope of his authority, and in furtherance of its interests, conspires with its other officers to obtain possession of premises leased by it, and to drive the lessee out of business and ruin him, and maliciously and oppressively uses the process of the courts for that purpose, the corporation will be liable both for actual and exemplary damages where it ratifies his acts in the premises.</p> <p>3. Parol Evidence Varying Written Instrument.—A written lease purporting to be a complete contract can not, in the absence of fraud, accident, or mistake, be varied by proof of a contemporaneous paroi agreement ingrafting an additional consideration; nor is the rule changed by the fact that such additional consideration was purposely omitted from the lease.</p> <p>4. Pleading—Justification—Inconsistency.—Where plaintiff has seized certain goods under a distress warrant, alleging them to belong to defendant, and asking to foreclose a landlord’s lien thereon, and the defendant denied in his answer the existence of any lien, alleging a wrongful seizure, the plaintiff could not, under only a general denial of such answer, shift his position and justify the seizure under a claim of ownership of the goods, but should have specially pleaded such justification and the grounds thereof.</p> <p>5. Bill of Exceptions—Practice on Appeal.—The exclusion of evidence by the trial court can not be reviewed on appeal where the bill of exceptions does not show the ground of objection made to the evidence.</p> <p>6. Wrongful Levy of Distress Warrant—Evidence of Malice and Conspiracy.—Where defendant’s plea in reconvention charged a conspiracy between the president of plaintiff's corporation and the officers, averring that the latter were but tools in the hands of such president to carry out his purpose to destroy the business of the defendant and drive him away, evidence is admissible to show that the justice of the peace who issued the distress warrant and the constable who levied it were employes of plaintiff.</p> <p>7. Same.—So, it was permissible under such allegations of malice and conspiracy for the defendant to show, that before the levy of the distress warrant the president of the plaintiff company made a personal attack on defendant, and that two of his employes had a personal difficulty with defendant’s manager, with him at the time.</p> <p>8. Evidence—Books of Account—Statement.—Where defendant’s original books of entry were seized by plaintiff under levy of a distress warrant, and are in court .at the time of the trial, it was not error to permit defendant to introduce a statement of accounts between himself and plaintiff, accompanied by testimony that such statement was a correct transcript from the original books; that it was made by defendant, who was a competent bookkeeper, and had been verified by him and by plaintiff's bookkeeper.</p> <p>9. Lease—Agreement to Furnish Statements—Covenant or Condition.— Where a lessee was to pay as rent a portion of the proceeds of his business, an agreement in the lease that he would furnish the lessor with statements of the business monthly, or oftener, if required, was not a condition, but a mere covenant, the breach of which did not justify the lessor in taking possession of the leased premises.</p> <p>10. Same—Evidence of Waiver of Stipulation.—Evidence that the lessee was ready to render statements of his business monthly as required by the lease, but was told by the lessor’s secretary that it might be postponed, and that once a quarter was often enough, was admissible to repel any inference of bad faith on the lessee’s part in failing to make monthly statements.</p> <p>11. Evidence—Cross-Examination of Witness—Credibility.—It is permissible to show on the cross-examination of a witness, and as bearing on his credibility, that he has been indicted for a crime and is then being held in jail awaiting trial on the charge.</p> <p>12. Same—Predicate for Impeaching.—Where the predicate has been laid by asking a witness as to a conversation by him in which he admitted that he had been bribed to testify, and he denies any recollection thereof, it is permissible to prove such conversation by the party with whom it is alleged to have been held.</p> <p>13. Evidence—Deposition.—A deposition can not be supported by showing, that at another time and place and on another occasion witness made similar statements.</p>

<p>1. Pledge of Corporate Stock—Title.—The mere delivery of corporate stock as a pledge will not pass the title thereto in the absence of any transfer by indorsement.</p> <p>S. Conversion by Tenant—Demand.—It is not necessary, in order to maintain an action of conversion against a tenant who wrongfully withholds the leased property, that demand for its possession should be made on the tenant or on one aiding and abetting him in such wrongful holding.</p> <p>3. Corporation—Transfer of Entire Property.—The transfer by a corporation of its entire property to one who owns all of its stock, in consideration of a surrender of the stock, is not invalid as against a stranger to the corporation.</p> <p>4. Levy on Corporate Stock—Notice to Officer.—A levy on corporate stock is void where no notice is left with any officer of the corporation, as required by article 2594 of the Revised Statutes.</p> <p>5. Conversion—Prior Possession Sufficient, When.—A lessor’s prior possession of the property is sufficient to sustain an action of conversion by him against the lessee and one acting with him in wrongfully holding the property, where they have not connected themselves with any outstanding title of a superior character.</p> <p>6. Judgment Against Joint Wrongdoers.—Where several joint wrongdoers are sued together, a failure to find against some of them, even if error, does not afford the others a ground of .complaint.</p>

<p>Appeal from the County Court of Parker. Tried below before Hon. A. J. Hood, Jr.</p>

<p>1. Charge of Court Restricting Evidence.—A failure of the court’s charge to restrict the jury in its consideration of the evidence, where no instruction to that effect has been requested, is not reversible error.</p> <p>2. Evidence—Deposition—Impeachment of Witness.—Where a witness had testified by deposition, her evidence could not be impeached by the testimony of another witness detailing a conversation which she had with her after the deposition was taken, from which the jury might infer that she had recanted the statements made in the deposition, and further stating, that after such conversation he had taken out a commission to retake her deposition, which had never been returned.</p> <p>3. Illegal Evidence Reversible Error, When.—Where the evidence on a material issue is about evenly balanced, error in the admission of illegal evidence bearing thereon is not harmless, because it is supplied by other evidence in the case.</p> <p>4. Life Insurance Policy—Answers of Applicant—Warranty—Family Records.—Where, in an application for a life insurance policy, the applicant in his answers or statements in reterence to the family record, omits to mention an immaterial matter, such as the death of an infant brother of whom he had no knowledge, such failure will not constitute a breach of warranty to avoid the policy.</p> <p>5. Same—Question for Jury..—-Where the real meaning and scope of the question in such application is doubtful, it is not error for the court to leave it to the jury to decide as to whether or not the question has been truthfully answered.</p> <p>6. Evidence—Photographic Copy of Record.—Where a copy of a record is in evidence, the testimony of witnesses who have examined the original record, and also photographic copies thereof, are admissible to show that certain dates or words therein are so written as to be uncertain and different from the copy.</p> <p>7. Practice—Opening and Conclusion—Extent of Admission.—Plaintiff’s petition in a suit on an insurance policy, in addition to the amount of the policy, asked judgment for certain premiums paid through mistake, and for reasonable attorney's fees, and the defendant, besides pleading the geneal denial, specially denied the mistake in the payment of the premium and the reasonableness of the amount of the attorney’s fees claimed. Defendant having admitted at the trial “that the plaintiff had a good cause of action as set forth in her petition, except so far as it might be defeated in whole or in part by the facts of the answer constituting a good defense, which may be established on the trial,” was awarded the opening and conclusion of the case. Held, that defendant was concluded as to the payments of premium and attorney’s fee by its admissions, and evidence Was not admissible in denial or diminution thereof.</p>

<p>1. Administration De Bonis Non—Validity.—The Act of February 3, 1840, allowed the Probate Court upon good cause shown to extend the term of an administration beyond the one year, but did not fix the time within which such order of extension should be made, nor the period of time—which was five years under the Louisiana law previously in force in Texas—during which a succession might be kept open. Held, where an administration was granted in April, 1839, and, without any formal order of extension, kept open about three years, when the administrator died, leaving the estate unsettled, the appointment of his successor in February, 1844, was not void, but within the power of the court.</p> <p>2. Land Certificate—Locative Contract—Jurisdiction of Probate Court.— The Probate Court had power in 1849 to authorize the administrator to contract for the location of a land certificate belonging to the estate, the locators to have a part interest in the land, and also authority to afterwards (1861) order the execution of the necessary conveyance by the administrator to complete such contract.</p> <p>3. Same—Community Interest of the Wife Bound.—A contract for the location of a land certificate made by the administrator of the husband is binding on the community interest of the wife therein.</p> <p>4. Probate Proceedings—Two Estates in One Administration.—The including of two estates in one administration, although irregular, will not, if the court had jurisdiction of both estates, render the proceedings therein void when called in question collaterally.</p> <p>5. Probate Partition—Heirs Not Necessary Parties, When.—Where a partition of land belonging to an estate is made by Probate Court between a locator of the land and the estate, the heirs of which are unknown, the fact that such heirs are not made parties to the proceeding will not render the judgment therein void.</p>

<p>1. Eire Insurance—Inventory of Stock.—A provision in a fire insurance policy, that in the event of loss the assured shall furnish the company with copies of all bills and invoices, or the originals, does not include an inventory of stock made about the time of the insurance by a merchant in the ordinary course of business.</p> <p>2. Same—Waiver of Proofs of Loss.—An insurance company demanded as part of the proofs of loss an inventory which had been destroyed in the fire, to which it was not entitled under the policy, and of the destruction of which it was advised, stating in the demand that unless it was produced only a compromise would be offered. Held, that it thereby waived the production to it of all other proofs of loss, and also the sixty days’ stipulation of time for bringing suit.</p> <p>3. Same.—For proofs of loss of a stock of merchandise destroyed by fire, held sufficient on the trial to warrant the judgment for plaintiff, see the opinion.</p>

<p>1. Telegraph. Company—Negligence—Prima Facie Case.—Where plaintiff makes out a prima facie case of negligence in the delivery of a telegram, it is incumbent on the telegraph company to show not merely that its wire was out of order, but also that such condition was not its fault.</p> <p>3. Charge of Court—Pleading and Evidence Warranting Issue.—Where the defendant telegraph company pleads that the delay was caused by its wires being out of order without its fault, and there is evidence that the delay was caused by a swinging wire, it is proper for the charge of court to submit the issue of defendant’s negligence in respect to the condition of its wires.</p> <p>3. Charge on Weight of Evidence.—For the court to tell the jury that a given circumstance, such as error in transmitting the name “Booth” instead of “Boots,” is as objectionable as to tell them that a given circumstance is sufficient proof of negligence.</p> <p>4. Telegraph Company—Interstate Message.—In an action in a court of Texas for negligent delay in the delivery of a message, the laws of Texas are applicable, although the message is an interstate one.</p> <p>5. Same—Fact Case.—For facts held sufficient to warrant a verdict against a telegraph company for negligent delay in the delivery of a message, see the opinion.</p>

<p>1. Damages for Breach of Contracts.—In action for damages from breach of contracts, recovery can not be had for profits lost and for expenses on part of plaintiffs upon the contract.</p> <p>2. Station Agent—Duty of Railway Company to Furnish Cars.—Action for damages from breach of a contract made by station agent for 150 cars, for use in shipping corn from Belton to Laredo. The contract by plaintiffs with the Laredo house, the purchasers of the corn, required plaintiffs to load the corn upon the cars at place of shipment, and did not require the delivery by plaintiffs at Laredo. It was therefore not necessary that the station agent have authority to make freight contracts from Belton to Laredo. Having authority to contract for supply of cars for the shipper, the railway company was bound by his contract to furnish the cars as to the contract declared on.</p> <p>3. Station Agent—Limit of his Apparent Duties.-—A local station agent in charge of a railway company’s business at a station is presumed to have authority to represent the company in all matters connected with the transaction of its business at that particular station, but he is not presumed to have authority to act for the company at any other station; and when he attempts to do so, his act, until ratified, will not bind the company; E. G., the station agent at Belton, could not contract for furnishing cars at Temple, in same county, and bind the railway company.</p> <p>4. Pressure of Business.—Railway v. Hume, 87 Texas, 220, adhered to. Pressure of business can not excuse the failure of the railway company to furnish cars contracted for by a shipper.</p> <p>5. Duty to Reduce Damages by Party Injured.—The plaintiffs were not required in any attempt to lessen the damages resulting from the defendant’s refusal to supply the cars as contracted for, to employ, or attempt to employ, another carrier to do that which the defendant had obligated itself to do, and the failure to do which constitutes the breach sued upon.</p> <p>6. Pleading—Practice.—Action for damages upon breach of contract. The answer put in issue the existence of the causes of action sued on, but presented no question as to the ownership of the cause of action. Proof, therefore, that after suit was filed the plaintiffs had transferred their cause of action to a third person not a party to the suit, presents no defense.</p> <p>7. Agent Exceeding his Authority.—-A station agent having apparent authority to bind the railway in contracting for cars at his station, would not invalidate contract made by him for cars, by exceeding his authority in contracting for shipment by a named rente. Testimony to the agent’s authority to bind the road as to the route would be immaterial.</p> <p>8. Irrelevant Testimony.—An item of damages was loss of price on 4000 bushels of corn from the breach of contract to furnish cars. There was no averment of injury to corn accumulated, through exposure, etc. Held, error to admit testimony to the injury not alleged.</p>

<p>1. Joinder of Parties Plaintiff.—Schmitt had a fire insurance policy, and transferred it to Weiderholt, the proceeds to be applied first to payment of certain notes upon which suit had been instituted, and the remainder to be applied upon a debt owing to Weiderholt. The property having been destroyed by fire, suit was brought on the policy, and both Schmitt and Weiderholt were properly joined as plaintiffs. The owner of the notes secured was not a necessary party.</p> <p>2. Notice of Incumbrance—Practice.—Schmitt owned a lot incumbered by vendor’s lien notes. He erected improvements upon the lot and insured the improvements and furniture therein. It seems that the incumbrance upon the lot was not such as the policy required to be communicated to the insurance company, on forfeiture of the policy. The testimony, however, showed that notice had been given, and the court could have assumed it as a fact, or ignored it, as was done in the charge.</p> <p>3. Recovery by Trustee.—The original holder of the policy and the trustee to whom he assigned for defined purpose both being plaintiffs, it was of no consequence to the insurance company by whom the recovery was had. The judgment would conclude the rights of both plaintiffs as to each other and the defendant.</p> <p>4. Verdict—Judgment.—The court instructed the jury, upon finding certain facts, to find for the assignee of Schmitt, the original holder of the policy. The jury returned a verdict in favor of the trustee, or assignee. The court in its judgment directed that the recovery be applied as stipulated in the transfer to the holder. Meld, no error, as the rights of all parties were declared, and the entire litigation concluded.</p> <p>5. Error in Computing Interest.—An error appearing in the computation of interest by the jury, such error is corrected in this court. See example.</p>

The suit was filed February 23, 1893. The testimony showed that appellant inclosed the land (the alley) in December, 1882, or January, 1883, and has had continuous adverse possession ever since.

<p>County Judge as Superintendent of County Schools—Compensation.—Action by county against county judge for money received of the school fund, as superintendent of public schools. In the findings of facts by the trial court, it did not appear that the money had heen received under an alleged illegal order of the county commissioners as to compensation, or that the money was over and above, or in addition to the commissions allowed by law for his services as acting superintendent of public instruction. Held, the facts showed no cause of action.</p>

Tried below before Hon. W. M. Sleeper, Special Judge. Attachment suit on a note for $300, of date April 22, 1892, and due six months thereafter, executed by Diehl to Fowler. Suit was filed July, 1893, and attachment levied. Defendant pleaded that he had fully paid and discharged the note, upon an agreement with Fowler, by deeding him two certain lots in the city of Wáco, on December 10, 1892. Judgment for plaintiff for amount claimed, and foreclosure of attachment lien.

<p>A fall statement is given in the opinion.</p>

Appellee, J. E. Pietzsch, filed his original petition in this cause on the 6th day of March, 1893, and by leave of the court filed his first amended original petition on November 9, 1893, alleging, in substance, that on or about the 26th day of October, 1891, appellee, desiring to ship about thirty-two head of mixed cattle, worth $25 per head, from Bartlett, Texas, to Amarillo, Texas, contracted with appellant’s agent at Bartlett for a car for the transportation of the same,…

<p>1. Amendments to Pleadings.—By article 1292, Revised Statutes, pleadings can not be amended under leave of the court after the parties announce ready for trial. It was not error to refuse leave to defendant to amend a defective trial amendment after the trial had commenced and evidence had been offered.</p> <p>2. Agreement to Extend Time—Consideration—Pleading.—After a promissory note becomes due, a payment thereon is not a consideration for an extension of the time for payment. The holder after maturity is entitled to both principal and interest. A plea alleging an agreement to extend payment of an overdue note upon ■ a payment thereon, not stating a consideration, is bad on exception.</p> <p>3. Trial Amendment to Answer—Practice.—Suit on promissory note by indorsee against maker and indorser. In original answer, the maker pleaded an agreement made with the payee to extend the time of payment “for a valuable consideration.” This plea was held good on demurrer. But the maker—defendant—by trial amendment sought to cover defects in the original answer, setting up the particular consideration relied on, viz., payment of a named sum after maturity. This amendment vitiated the entire plea. It was not error in the court on the trial to prohibit the reading of the original answer after the trial amendment had been held bad on demurrer. The court properly held, that the specifications in the trial amendment referred to the valuable consideration stated in general terms in the original.</p> <p>4. Indorsement of Note—Legal Owner.—The note declared on was indorsed in blank; this had the effect to put the legal ownership in the holder. Whether the indorsement was for a valuable consideration is of no concern to the maker, unless he has a defense that could only be made available against the original payee.</p> <p>5. Variance.—A variance in description must be both material and misleading. See example when a discrepancy is held not to be a variance so as to require the exclusion of the paper under the pleadings.</p> <p>6. Charge to Find for the Plaintiff.—Suit on promissory note by holder. There • was no testimony but the note and indorsement thereon, and credits admitted in the petition. It was not error to charge the jury to find for the plaintiff—“The balance due on the note, after deducting all credits set forth in the petition.”</p>

Tried below before Hon. E. B. Muse, County Judge. Trial of right of property was had before a justice of the peace. •The judgment appears in the transcript to have been rendered January 2, 1894. The appeal bond given in appeal to the County Court was filed and approved February 3,1894.

<p>1. Appearance—Jurisdiction—Nonresident.—In an attachment suit in a Justice Court, the appellee, a nonresident, employed counsel, who asserted its claim to the property attached in the suit. Such appearance made citation unnecessary, and gave jurisdiction. So also, upon an appeal to the District Court, the appearance hy appellee, although only to contest the jurisdiction of the court for want of service, was an appearance for all purposes.</p> <p>2. Jurisdiction of Justice Court.—Attachment was sued out in a Justice Court upon an account within its jurisdiction. The levy of the attachment upon personal property of value in excess of its jurisdiction did not avoid the jurisdiction of the court over the case.</p>

<p>Judgment Lien—Abandoned Homestead—Statute Construed.—Under article 3159, Revised Civil Statutes (1879), the record of a judgment being valid, a lien will attach to homestead property owned at the time, which afterwards becomes subject to execution by losing its homestead character while it remained the property of the judgment debtor.</p>

<p>Appeal from Hopkins. Tried below before Hon. E. W. Terhune.</p>

<p>1. Conflict of Jurisdiction—District Clerk’s Custody of Papers — Mandamus.—The County Court has no power to require by mandamus the clerk of the District Court to deliver to the clerk of the former court papers in a case over which such District Court is claiming and exercising jurisdiction.</p> <p>S. Comity of Courts—Practice.—Where a court of general jurisdiction, legally competent to determine its own jurisdiction, has acquired prior jurisdiction over person or subject matter, no other court will interfere or seek to arrest its action while the case is still pending. The appropriate remedy is by plea to the jurisdiction, or motion to dismiss for want of jurisdiction, and an appeal from the court exercising jurisdiction.</p>

<p>1. Debts of Cities—Constitutional Law—City Charter and Ordinances— Street Improvements.—L. & S. were contactors to grade and pave thirty-seven feet of Pacific avenue under a contract with the city of Dallas. The city engineer staked off forty-one feet, and directed the contractor to construct it. The work was done under the supervision of the city engineer and the street committee of the city council. In a suit brought for the value of the construction of the extra four feet, the defense was, (1) that no valid debt was created for such extra work, because no provision was made by the city for the payment of the debt as provided for by sections 5 and 7, article 11, of the Constitution of the State; (2) that by defendant’s charter the costs of such improvements shall he paid by the owners of the property abutting; (3) that the contract was made subject to the defendant’s ordinance, which provided, that a contractor for such improvements should have no claim upon the city for such work. To this defense the plaintiff replied, (1) that the liability sought to he enforced did not come within the terms of the constitutional provisions; (2) that the city charter requires the levy of a special tax against the abutting owners, and the failure of the city to recognize their claim and to provide for its payment by such levy rendered the city liable. Held:</p> <p>1. That the debt is embraced within the terms of the constitutional provisions.</p> <p>2. That the failure on the part of the city to levy the special tax against the abutting property owners would not render it liable for the debt.</p> <p>3. That the contract was entered into subject to the charter and ordinances of the city, and it was the evident intention of the contracting parties that the work should he paid for by the levy of a special tax against the abutting property owners, and that the debt could not he made a charge against the general revenue of the city.</p> <p>2. Same—Liability of City for Money Received.—Where money is voluntarily paid into the treasury of a city by another, under a valid agreement with the city to pay one-half of the expenses of certain street improvements, and the money was to he applied to that object, and it was the understanding of the city and its contractor for such work that the money to pay for the same should come from such other party and abutting property owners, the money so paid may be recovered from the city by the contractors.</p>

<p>1. Sequestration—Affidavit—Supplemental Petition—Quashal of Writ— Statute Construed.—2 Sayles’ Eevised Civil Statutes, articles 4490 and 4494, construed, and Held, that the location of the property, as to the county in which it is situated, is a fact required hy statute to he verified, and the failure to verify a supplemental petition setting up the removal of the property to another county is ground for quashing a writ of sequestration.</p> <p>3. Same—Replevin Bond—Liability of Sureties on, After Quashing Sequestration.—Eevised Civil Statutes (1879), articles 3116 and 3117, construed, and Held, that the sureties on a replevin bond in sequestration are liable, notwithstanding the writ has been quashed.</p>

<p>Probate of Will—Construction of Instrument.—Mrs. W. executed an instrument in writing as follows: When I die, I wish Dr. Noland and Jennie to raise my children.” Held, as the instrument makes no disposition of property, it is not a will in the legal sense, and is not entitled to probate.</p>

<p>Appeal from Dallas. Tried below before Hon. R. E. Burke.</p>

<p>1. Election Laws—Act of April 12, 1892, for Cities, Construed.—The Act of 1892 does not purport to contain within itself a complete system of laws for the conduct of elections in cities where it is put in force.</p> <p>2. Marked Ballots—Name of Voter on Back.-^The fact that the name of the voter is written on the back of a ballot is not ground for rejecting it under article 1694 of the Revised Statutes, prohibiting a ballot from bearing any “picture, sign, vignette, device, or stamp mark” thereon.</p> <p>3. Same—Other Marks.—A ballot should not be rejected because of marks and scratches thereon having no meaning, or because the names of candidates were marked out with blue pencil, or because the election officers indorsed their initials thereon, or the words “duplicate,” “rejected,” etc.</p> <p>4. Rejection of Ballots—Rule Governing.—Violation of the statutory regulations in regard to the form of ballots and manner of voting will not be cause for rejecting the ballots, unless the statute expressly so provides.</p> <p>5. Ballot Without Official Stamp.—A ballot not bearing the official stamp is correctly rejected.</p> <p>6. Illiterate Voter—One Judge Assisting to Preparé Ballot.—The fact that one judge of the election instead of two assisted an illiterate voter in preparing his ballot is not ground for rejecting the ballot, in the absence of fraud.</p> <p>7. Money for Treating—Election Judge as a Partisan.—That a judge of election who before his appointment as such received money from a candidate to be used in treating voters, and who advocated the canse of such candidate at the polls, prepared the ballot for a voter in the interest of that candidate, will not invalidate the ballot without further proof of fraud.</p> <p>8. Fraud Must be Clearly Proved— Presumptions of Fairness.—Before a ballot can be rejected on the ground of fraud, the fraud must be clearly proved; and-the presumptions are in favor of correct and honest action on the part of the election authorities, and that the ballot reflects the wishes of the voter.</p>

<p>Contributory Negligence—Peremptory Charge.—Where the deceased while lying on the track of the defendant was killed by its train, and the liability of the defendant depends upon the question whether the defendant’s servants could have discovered the peril of the deceased in time to have saved him, and the evidence necessitates the conclusion that the deceased was guilty of negligence which contributed to his death, and it will admit no other inference, it is not error for the court to give a peremptory instruction for the defendant.</p>

<p>Limitations—Promissory Note to Trustee—Equitable Interests of Minors. Where a promissory note is made payable to one as trustee for certain minors therein named, and the legal title to the note thereby vested in the trustee, upon his failure to bring suit on the note within the statutory period, the equitable interests of the minor eestuis que trust is barred by limitation.</p>

<p>1. False Imprisonment—Pleading—Mitigation of Damages.—In an action for false imprisonment, where circumstances of aggravation are charged and exemplary damages are claimed, matters showing an excuse, not available as a defense, may be pleaded and shown in rebuttal of such circumstances of aggravation under proper explanation by the court to the jury of the purpose of the evidence.</p> <p>2. Alteration of "Warrant—Arrest Without Warrant—Statute Construed— Article 229, Code of Criminal Procedure—Measure of Damages.—A robbery was committed nearly fifty days before the arrest, and the day before the arrest the plaintiff was pointed out to the defendant as one of the guilty parties, and he, mistaking the name of the plaintiff, procured a warrant for his arrest, and then discovering his mistake, instead of procuring a warrant for the plaintiff, describing him by his Christian name, he attempted to cure the defect by erasure and inserting the true name of the plaintiff. Held, that the alteration rendered the warrant void; that the provisions of article 229, Code of Criminal Procedure, was inapplicable to such case, and the defendant could not be heard to say that he had no time to procure a warrant; that the plaintiff should recover damages against the defendant, and that the measure of damages is the value of time lost, injury to business, and the suffering, bodily and mental, occasioned by the arrest.</p> <p>3. Powers of City Marshal—Statute Construed.—A city marshal of a town incorporated under the general laws of the State, under the circumstances specified in article 229 of the Code of Criminal Procedure, may lawfully arrest one beyond the limits of the town for a felony committed within the county and not within the town.</p> <p>4. City Marshal’s Bond—Liability of Sureties.—The sureties on the official bond of a city marshal are liable for an illegal arrest made by the marshal.</p>

<p>1. Railway Company—Passenger Boarding Train.—Plaintiff’s wife, having purchased a ticket, and while attempting to get on the cars at a station, was assisted by a brakeman, who jerked her up the steps with unnecessary violence that injured her. Held, that she was a passenger, entitled as such to the highest degree of care, and the railway company was liable in damages for the injury.</p> <p>3. Evidence—Admission in Pleading.—A pleading of the opposite party, signed by the attorney only, containing an admission, or statement of a fact in issue variant from the testimony of such party on the trial, was offered in evidence, but the attorney who signed the pleading testified that the party, in stating the facts to him, never made the statement in question. Held, there was no error in .excluding the paper from the evidence.</p>

<p>1. Courts—Disqualification of Judge.—Casual conversation and expression of opinion by an attorney with reference to a controversy, when he does not in any manner become the counsel of a party, does not disqualify the attorney, when he becomes judge, to try the case.</p> <p>2. Judgment Against Insane Person—Practice—Excuse for Failure to Plead.—A judgment against an insane person is valid until set aside by some proper proceeding; but it may be set aside by the court rendering it upon principles governing courts of equity in the nature of a review, by showing that the defendant was insane and incapable of understanding the purpose of the citation and of making a defense to the action, and by showing that the judgment is unjust, and that there is a meritorious defense to the case.</p> <p>3. Evidence—Opinion of Expert Upon Different Groups of Facts Proven— Rules Governing Admission of Expert Testimony.-—It is not essential in the examination of an expert witness that each question should embrace every fact which it might be contended affected the value of the service; different hypotheses may be put, so as to elicit opinions to different groups of facts; but there must be evidence of the existence of the facts supposed, and the witness should not be left to decide what facts are established by the evidence, or to take into consideration facts known to himself, but not appearing from the evidence.</p> <p>4. Same.—See this case as to the admissibility of expert testimony in a suit by a •surgeon against an insane person for the value of professional services rendered without the consent or knowledge of such person.</p> <p>5. Admission of Incompetent Evidence—Reversible Error.—Where there is a sharp conflict of evidence, the admission of incompetent testimony will necessitate the reversal of the judgment.</p>

<p>Error from Harris. Tried below before Hon. S. H. Brashear.</p>

<p>Limitations—Written Acknowledgment to Take Debt Out of Operation of the Statute—Parol Evidence.—In an action on a promissory note apparently barred by limitations, plaintiffs, to avoid such bar, offered in evidence letters from the defendant, in one of which he stated that he would “try to do something” for plaintiff soon, and hoped plaintiff would not push him, and in another that he would send some money as soon as he could—the letters not mentioning any note or specifying any debt due. Plaintiff also offered paroi evidence to show that three payments credited on the note were made by defendant, and that the note was the only debt he owed her at the date of the letters. Held, that the letters did not contain a Sufficient acknowledgment of the debt, or promise to pay it, and the paroi evidence was not admissible to supply the essential facts not contained in them.</p>

<p>1. Parol Evidence Affecting Written Agreement.—A verbal agreement by a vendor of machinery, that he or one S. would furnish certain repairs, is not inconsistent with a written agreement by S. to make the repairs, so as to render evidence in support of the former inadmissible as varying the terms of the latter.</p> <p>2. Charge of Court—Burden of Proof—False Representations.—Where, in an action to set aside a sale for fraud, a previous paragraph of the court’s charge has already submitted the issue of the existence of the fraudulent representations alleged, an instruction that the burden is on plaintiff to prove such false representations by a preponderance of evidence is not erroneous as assuming the existence of the false representations.</p> <p>3. Same.—So, where the charge has thus submitted the issue of false representations and imposed the burden of proof on plaintiff, an instruction requiring the jury, if they find that there was no false representations made by the defendant, or that plaintiff did not rely on them, or on discovering their falsity did not within a reasonable time rescind the contract, to find for defendant, is not erroneous as relieving plaintiff of the burden of proving the false representations.</p> <p>4. Fraudulent Sale—Presumption from Buyer’s Examination of the Property.—Where a purchaser of machinery examined the same, but stated while making the examination that he had no knowledge of machinery, and did not rely on his examination, but on the representations of the seller, the court properly refused a charge, that if the purchaser personally examined the property the presumption was that he relied on his own judgment, and not on the representations of the seller.</p> <p>5. Reformation of Judgment During Term.—The fact that notice of appeal has been given does not deprive the court of control over its judgment, which it may reform at any time during the term in any respect authorized by the pleadings and not involved in the verdict of the jury, or of necessary submission to the jury.</p> <p>6. Same—Offer to Allow Reformation.—Error of the courtin rejecting evidence of an item of payment made and pleaded by defendant will not be held ground for reversal, where, upon the hearing of the motion for new trial setting up such error, the plaintiff admits the claim of defendant for such item and agrees that the judgment' may be reformed accordingly, which plaintiff declines.</p>

<p>1. Common Carrier—Delivery to.—For approved statement of the rules of law relating to actual and constructive delivery of property to a common carrier for transportation, see the opinion.</p> <p>2. Pleading—Charge Upon Issues Not Raised.—Where, in an action against a railway company for cotton destroyed hy fire on its platform, the only negligence charged in the petition was that “the defendant, hy the negligent manner in which it operated and managed said platform and * * * its trains in passing said platform, caused said cotton to he destroyed hy fire conveyed and imparted to it hy sparks * * from said trains,” this did not charge negligence upon defendant in failing to put out the fire after its discovery; and an instruction imposing liability upon the defendant if the accident was caused hy its negligence in operating its engines, “or from some other negligent act or omission,” was not warranted.</p>

<p>1. Innocent Purchaser—Notice by Possession—Wire Fence Inclosure.— The existence around unoccupied land of an unsubstantial "wire fence, out of repair, is not such possession as to necessarily charge a purchaser with notice of an adverse claim of title, especially where such possession is consistent with the claim of his vendor, in whom, the record title stands.</p> <p>2. Registration—Supplying Destroyed Record.—Where the record of a deed was destroyed by fire in 1876, a failure to supply the record as provided by the statutes is not excused by the fact that the original deed was also destroyed at the same time, and such original record therefore ceased to have effect.</p>