Volume 11 — Texas Civil Appeals Reports

<p>1. Attachment — Malice of Agent.</p> <p>Where there is an entire absence of evidence that plaintiffs participated in the malice of their agent in suing out an attachment, or afterwards approved and ratified it, the court is not warranted in submitting to the jury the issue as to their liability for exemplary damages on account thereof.</p> <p>2. Same — Malice an Inference of Fact.</p> <p>Malice is not an inference of law from the want of probable cause, but a mere inference of fact which the jury may or may not draw, according to the facts and circumstances of the case.</p>

<p>1. Deed — Sufficiency of Description.</p> <p>Where land is in a triangular shape, and two lines, the length of which are not given, diverge from a point on the south, the course of the north boundary being furnished, its location will be fixed by a definite call for quantity.</p> <p>2. Release of Vendor’s Lien — Effect of Conveyance.</p> <p>A vendor who conveys a tract of land, reserving a lien upon it, and who after-wards conveys part of the same tract to the same parties by an absolute deed, for a cash consideration, releases the lien upon such part.</p> <p>3. Power of Attorney — Conveyance.</p> <p>A power of attorney authorizing an agent to do everything with respect to land, “short of selling the same,” and to make compromises or arrangements necessary to effect a settlement with another, does not authorize the agent to convey the land to such other person, the right to compromise being held subordinate to the right to convey.</p> <p>4. Deed to and by Tenants in Common — Bona Fide Purchaser.</p> <p>A deed to three persons vests in each the legal right to an -undivided one-third of the land, and the right of a purchaser from one of them, without notice, cannot be affected by showing that by an arrangement between themselves, their interests were different.</p> <p>5. Same — Conveyance by Co-tenant of Specific Part — Vendee’s Equity— Estoppel.</p> <p>While a co-tenant has no power to divert the title of his co-owners by selling a specific part of the common property, yet a court of equity will protect such purchaser, if it can be done without injury to the other owners, by setting apart to the vendee of the co-tenant the particular tract bought, and the co-tenant is estopped to deny that he conveyed a less interest than the entire title to the specific tract conveyed.</p> <p>6. Same — Foreclosure—Subsequent Purchaser.</p> <p>After such deed by a co-tenant has been executed and properly recorded, a foreclosure sale will not affect the rights of the purchaser, who was not a party to the suit, and a purchaser at the foreclosure sale will acquire no greater interest than the co-tenant had.</p> <p>7. Community Estate — Authority of Survivor — Presumptions.</p> <p>Presumptions of right of the wife to convey community property, it seems, will be rebutted by lapse of time after the death of the husband before the conveyance was made.</p>

1. The court held that Lee is entitled to a credit of $300, premium retained out of the amount he bid, as so much advanced interest. This ruling is error, because a stockholder may anticipate the matured value of his stock and compete with others by bidding a premium. Endlich on Build. Assoc., secs. 13, 378, 391, 394. 3.

<p>Insurance Policy on Homestead — Garnishment—Provision for Stay.</p> <p>A provision in an insurance policy upon the homestead to the effect that in case of garnishment or attachment of the insurance company in consequence of any debt or default of the assured, any suit and all proceedings therein in behalf of the assured on the policy shall be stayed until said garnishment or attachment suit shall have been finally decided and disposed of, is void.</p>

Tried below before Hon. William Shelton, County Judge. This is an appeal from a judgment for $300 recovered by appellee against the express company, damages for delay in the transmission and delivery of the samples of 100 bales of cotton from Whitney to Galveston, Texas.- The opinion gives a sufficient statement.

<p>Appeal from County Court of Falls County. Tried below before Hon. William Shelton, County Judge.</p> <p>Action for rent. Distress warrant. The defendant denied any indebtedness and reconvened, asking both actual and exemplary damages. The defendant recovered judgment in reconvention before the justice of the peace, and for a larger sum in the County Court to which the plaintiff appealed. The pleadings and the nature of the controversy are sufficiently stated in the opinion of the court.</p> <p>The verdict in the County Court upon which the judgment appealed from was rendered, is as follows: “We the jury find for the defendant four dollars actual damages and sixty dollars exemplary damages.” The judgment was rendered for sixty-four dollars.</p>

Tried below before Hon. Eugene Archer. This is the third appeal in this case. 70 Texas, 582, and 2 Texas Civ. App. 310. In these cases the facts are given, from which the following will be understood:

<p>1. Notice of Injury to Freight — Statute Construed.</p> <p>Under sec. 2, chap. 17, Acts 22 Leg., p. 20, a provision in a freight contract for carriage of live stock over several connected lines of railroad, requiring notice of claim of damages to be made “before the stock is removed from the station,” is void. The statute forbids any contract requiring notice of claim within less than ninety days.</p> <p>2. Interstate Freight Contract.</p> <p>Contract for carrying live stock from Burnet County, Texas, obliging the railway to carry the stock “from the station where this contract is executed to Houston, Texas, and only to carry to said end of its line, is not an interstate contract, although the freight Is consigned and way-billed to a town in Georgia, and the freight contract stipulates for protection of the through rate named therein. Such contract is subject to the statutes of this State.</p> <p>3. Seasonable Notice.</p> <p>Such stipulation, for notice of claim for the full amount of such loss and damages at end of each connecting line on the shipping route, before the stock shall he transferred to the connecting line, is prima facie unreasonable and could not affect even an interstate shipment.</p> <p>4. Measure of Damages.</p> <p>A freight contract stipulating that the value of the horses at place of shipment shall be the basis for the measure of damages (in case of loss) is inoperative when the loss is from negligence of the carrier. So also of a stipulation excepting loss from fire.</p>

<p>1. Acceptance of an Offer.</p> <p>An acceptance to bind the offerer, must be unconditional, and if it vary the terms offered, it is a rejection, and puts an end to the proposed agreement. After such rejection, a subsequent acceptance of the terms so offered does not make a contract.</p> <p>2. Same — Correspondence.</p> <p>See correspondence held not to constitute a contract; the minds of the parties not meeting upon terms of agreement.</p>

<p>1. Agreement in Record.</p> <p>It seems that an agreement as to a tact, in the record, which torras no part of the findings by the trial court, and is not approved by the judge as a statement of facts, cannot be considered by the court on appeal. 48 Tex., 38.</p> <p>2. Power to Appoint Substitute Trustee.</p> <p>When no demand has been made on the original trustee to act, and he is under no disability and did not refuse to act, the beneficiary has no power to appoint a substitute trustee, although the deed of trust authorized such appointment should the trustee “fail or be unable to act in carrying out the provisions of this trust.”</p>

<p>Estate.</p> <p>The County Court has jurisdiction to decree partition of community estates aftet the lapse of twelve months from the filing of the bond by the survivor, just as in •other administrations.</p>

<p>Contributory Negligence — Acting Under Orders of Vice-Principal.</p> <p>The servant will be guilty of contributory negligence if he fails to exercise proper care and vigilance in protecting himself from danger, even when acting under the direct orders of a vice-principal.</p>

<p>1. Equitable Title to Land — Contract—Action—Personal Judgment.</p> <p>Where one holding the legal title to land acquires afterwards the equitable title, though not by written release, his rights cannot be impaired by subsequent contract between the former equitable owner and another, and the only action, if any, which the person who subsequently contracted with such former equitable owner could maintain, would be against the latter for a personal judgment.</p> <p>2. Citation by Publication — Personal Judgment.</p> <p>In an action against a non-resident corporation served by publication, no personal' judgment can be had.</p>

<p>1. Judgment, Void When — Justice Disqualified by Relationship — Relief Against.</p> <p>The judgment of a justice of the peace in a suit in which he is related to one of the parties within the third degree, is absolutely void, and want of jurisdiction may be shown in a collateral proceeding. Relief from such judgment may be had either by appeal or certiorari, or in an independent action for damages.</p> <p>2. Judicial Officers — Responsibility of, for Knowingly Exceeding Jurisdiction.</p> <p>When judicial officers knowingly act outside of and beyond their jurisdiction, they will be held responsible as any other trespasser for the injuries arising out of their acts.</p>

<p>1. Foreclosure — Mortgage Bond — Actions—Parties.</p> <p>While generally a decree of foreclosure in favor of the holder of a portion of a series of trust mortgage bonds upon the bonds held by him will not convey a title frée from the mortgage, yet- where the interested parties are numerous, suit may in a proper case be maintained -by some on behalf of all, in which event the foreclosure would be conclusive on all.</p> <p>2. Same — Decree—Receiver.</p> <p>The actual presence in court of all persons whose rights may be affected by the decree is not necessary where the property is decreed to be sold through a receiver to satisfy the creditors of an insolvent.</p> <p>3. Receivership — Power of Court Over Property in Its Custody.</p> <p>After á court of competent jurisdiction has taken property into its custody through its receiver, no other court has the right to interfere with its power to control and dispose of it.</p>

<p>1. Administration of Soldier's Estate — Land Certificate — Expense of Procuring.</p> <p>Expense incurred in procuring the issuance of a land certificate 25 years after the death of the soldier on whose account it was granted, is not a debt against his estate, and could afford no ground for administration thereon.</p> <p>2. Donation Land Certificate the Property of the Heirs.</p> <p>Donation certificates granted by Sec. 12, of the Act of February 7, 1860, to “the heirs” of deceased soldiers of the Republic, belong to such heirs, and not to the estates of such soldiers.</p>

<p>Married Woman’s Acknowledgment — Transfer of Land Certificate.</p> <p>Where the certificate to a married woman’s acknowledgment, made in 1861, of a written transfer of her interest in an unlocated land certificate, fails to show that she was examined privily and apart from her husband, the instrument is void. Following Ballard v. Carmichael, 83 Texas, 363. e</p>

<p>1. Insurance Policy — Time Limited for Bringing Action — Service.</p> <p>Plaintiff’s petition on an accident insurance policy was filed and non-resident notice served on the defendant company within the time prescribed by the policy for bringing suit thereon, but due service of citation on an agent of the company was not had until after the lapse of such time. Held, that the suit was brought and prosecuted within time.</p> <p>2. Same — Evidence—Declarations.</p> <p>It being a material issue as to whether the insured, who was shot and killed at the house of one G., was killed accidentally or intentionally, the declarations of G. made on the night insured was shot, to the effect that he was going home and intended to kill insured, if he found him there, were admissible; as also evidence of the sheriff that he had since the killing made search for G. and could not find him.</p> <p>3. Same — Indictment Not Evidence.</p> <p>An indictment charging G with the murder of the insured was not evidence of the fact it alleged, nor an independent circumstance tending to prove the killing.</p> <p>4. New Trial — Newly Discovered Evidence.</p> <p>Where material evidence has been discovered after the trial, and the failure to discover it sooner is not due to negligence, a new trial should be granted.</p>

<p>1. Charge of Court — Assuming Fact.</p> <p>It is error for the court in its charge to assume any material fact as established about which there is a controversy in the evidence, however strong the evidence may be on the one side and however weak on the other.</p> <p>2. Same — ¡Negligence—Weight of Evidence.</p> <p>A charge to the jury that if they should find “that F.’s injuries were caused by the negligence of the conductor of the train in ordering F. to take the engine and couple it to the train, . . . then the defendant company would be liable, unless,” etc., is erroneous as on the weight of the evidence, in impliedly construing the act of the conductor to be negligence.</p> <p>3. Railway Company — Buies for Employes.</p> <p>It is the duty of a railway company to establish and enforce rules reasonably sufficient for the protection of its employes; but whether or not such rules have been established, and are reasonably stringent for the purpose, are questions for the jury.</p> <p>4. Damages — Action for Injuries Besulting in Death — Measure of Recovery.</p> <p>In an action against a railway company for injuries resulting in the death of a husband and father, the wife cannot recover for being deprived of the solace, .comfort, and affection of the husband, nor the children for the deprivation of his moral and intellectual nurture, since the statute confines a recovery in such cases to the actual pecuniary damages sustained.</p> <p>5. Same — Evidence of Dying Exclamation — Bes Gestae.</p> <p>In such an action a dying exclamation of the deceased, such as “Oh, my poor wife and babies!” not tending to show the cause or manner of death, is not admissible in evidence.</p> <p>6. Charge of Court — Contributory Negligence — Burden of Proof.</p> <p>The burden of proof is upon the defendant to show contributory negligence, and if there was error in a charge of the court, that plaintiffs must show that the death of the deceased “was not the result of his own contributory negligence, but' the burden of showing that his death was the result ot his own contributory negligence rests upon the defendant company pleading the same," it was not against the defendant.</p> <p>7. Briefs — Improper Language — Personalities.</p> <p>See the opinion for the use of language by counsel in their briefs and argument, with reference to each other, held by the court to be reprehensible and in violation of the rules.</p>

<p>1. Release of Joint Obligor or Partner — Effect.</p> <p>An action was brought against a partnership by creditors of an insolvent debtor to subject certain property fraudulently transferred by the debtor to such firm, and the plaintiffs agreed with one. of the firm that no execution issued on the judgment therein should be levied against his property if he would not resist the suit and furnish the facts and papers relating to the transfer. Held, that such agreement did not have the effect of releasing the other partners.</p> <p>2. Injunction Against Judgment — Res Judicata.</p> <p>It is not ground for enjoining a judgment against a firm that one of the firm had been released, where the firm knew, or should have known, of such release at the time of the trial that resulted in the judgment.</p>

<p>1. Telegraph Company — To Whom Liable for Non-Delivery of Message— Beneficiary.</p> <p>Where the addressee of the message is not a party to the contract for sending it, he must be a beneficiary therein in order to be entitled to recover for negligence in its delivery, and cannot recover where the message is solely for the benefit of the sender.</p> <p>2. Same — Fact Case.</p> <p>By reason of the negligent failure of a telegraph company to deliver a message to plaintiff, informing him of the sickness of his brother, and asking him to come at once, plaintiff was prevented from seeing his brother before death. The evidence showed that the message was prompted by mutual affection between the brothers, and was also sent to secure plaintiff’s services as a nurse. Held, that plaintiff was a beneficiary in the message, and entitled to recover.</p>

<p>1. Charge of Court — Pleading Necessary.</p> <p>Where there was no allegation in the pleadings as to loss of time, it was error for the court to charge upon the same as an element of damages.-</p> <p>2. Practice — Errors in — Charge of Court — Motion for Mew Trial — Appeal.</p> <p>Errors in the charge of the court, though not complained of in motion for new trial, may be reviewed on appeal.</p>

<p>1. Bes Judicata — Void Foreign Judgment.</p> <p>Under a judgment rendered by a Justice Court in Arkansas, certain attached property was sold, and bought by the plaintiff therein. Afterward such judgment was declared void for want of jurisdiction by an Appellate Court of that State. Held, in an action brought in this Stacie for the property, that such justice’s judgment was not res judicata.</p> <p>2. Same — Judgment of Dismissal.</p> <p>Where plaintiff dismisses his suit, the judgment thereon is not res judicata.</p>

<p>Appeal from Bowie. Tried below before Hon. John L. Sheppard.</p>

<p>Mistake in Conveyance — Assumption of Indebtedness — Privity of Contract.</p> <p>The defendant contracted for a certain lot and agreed to assume a debt of $1000. His vendor conveyed him a different lot, upon which there existed a lien for a like amount in favor of plaintiff, which incumbrance, according to contract, and by the terms of the deed, defendant assumed. Upon discovery of the mistake the property was reconveyed by defendant to his vendor, and the trade rescinded, but plaintiff sought to hold defendant on the assumption of the debt due to him. Held, that there was no privity of contract between defendant and plaintiff, nor did defendant become bound to plaintiff by any agreement based upon a valid consideration.</p>

<p>1. Pleading — Amendment—New Cause of Action.</p> <p>An amended petition changing the form and manner of plaintiff's pleadings, but alleging as the basis for recovery the same facts stated in the original petition, ■does not set up a new cause of action.</p> <p>2. Railway Company — Bight of Way — Manner of Constructing Bead.</p> <p>A railway company is not limited to that plan of constructing its road that would inflict the least injury upon the land-owner, but may, provided the work is done in a careful and skillful manner, construct upon any suitable plan it may select, without thereby incurring damages in addition to those assessed in the condemnation proceedings', or embraced in a deed conveying to it the right of way.</p> <p>3. Same — Bight to Use Additional Land.</p> <p>A right-of-way deed conveyed a strip 100,feet wide across the grantor’s land, ■“with the right to use such additional land as may be necessary for the construction and maintenance of the roadbed," and of taking and using “water and stone therefrom.” Held, that this did not include the right to permanently appropriate, cut timber from, and excavate and remove soil from, a strip 250 to 300 feet wide.</p> <p>4. Written Contract — Parol .Evidence Varying.</p> <p>Where a right-of-way deed contains no stipulations as to the manner in which the railroad shall be constructed, paroi evidence is not admissible to show that the railway company, in procuring the deed, falsely represented to the grantor that the road would be constructed so as not to injure the land by excavations and embankments, and that trestles would be used so that egress and ingress would not be cut off.</p> <p>5. Amendment — New Cause of Action.</p> <p>An amendment merely claiming additional damages by reason of an injury alleged in the original petition, though it enlarges the scope of the recovery prayed for, does not set up a new cause of action.</p> <p>6. Damages to Land — Sickness of Family.</p> <p>In an action for damages to land, resulting from the construction of a railroad across it, sickness in .plaintiff’s family, caused by stagnant pools of water formed near his house in the construction of the road, is a pertinent fact in showing the amount of damage to the property.</p>

<p>1. Judgment — Correction at Subsequent Term — Changing Former Order in Attachment.</p> <p>The action of the court overruling a motion to quash an attachment becomes final upon the trial of the cause and a final judgment rendered therein, and the court cannot at a subsequent term upon motion to have a correct entry of the judgment made, re-open the case and enter a different order quashing the attachment.</p> <p>2. Attachment Affidavit — Error in Calculating Amount of Attorney's Fees.</p> <p>In an action by attachment upon notes stipulating for ten per cent attorney’s fees, the petition and affidavit both described the indebtedness correctly, setting out the notes and stating the aggregate amount due, but the amount of the attorney’s fees was separately stated at a larger sum than the true amount therefor. Held, that the error being ascertainable by simple computation did not vitiate the attachment.</p> <p>3. Insolvent Corporation — Attachment Lien.</p> <p>The levy of an attachment upon the property of an insolvent corporation does not create a lien giving any priority- to the attaching creditor over its other creditors.</p> <p>4. Same — Assets a Trust Fund, When. ■</p> <p>Where a private corporation ceases to do business, its property is held by its directors as a trust fund for the benefit of its creditors, and is not subject to attachment.</p>

<p>1. Probate Court — Powers and Jurisdiction.</p> <p>The Probate Court has authority to require an independent executrix without bond to file an additional inventory and to give bond, but not to adjudicate whether certain property belongs to an individual or to the estate.</p> <p>2. Same — Proceeds of Ufe Policy.</p> <p>Where a life insurance policy or benefit certificate names a beneficiary who survives the insured, and has an insurable interest, the proceeds of the policy or certificate form no part of his estate, and the Probate Court has no power to require an executrix to file an inventory thereof.</p>

<p>Appeal from Cameron. Tried below before Hon. John C. Russell.</p>

<p>Error from Shelby. Tried below before Hon. James T. Polley.</p>

<p>1. Vendor’s Lien — Assignment of Debt, with Reservation of the Interest.</p> <p>Where a debt secured by a vendor’s lien is assigned, but with a reservation of certain interest accrued and to accrue thereon, the lien will continue to attach in favor of such interest not assigned.</p> <p>2. Allegation and Proof — Substance of Issue.</p> <p>The rule that the allegata and probata must correspond requires only that the substance of the issue be proved. See the opinion for illustration.</p> <p>3. Foreclosure of Lien — Homestead.</p> <p>Plaintiff, owning part of a vendor’s lien debt, asked for a foreclosure of the entire vendor’s lien, but the defendant debtor, as well as the owners of the other part of the lien debt, denied plaintiff’s right to a foreclosure other than for his own part of the debt; and thereupon the court, having adjudged that such other lien claimants were entitled to precedence over plaintiff, ordered a foreclosure of plaintiff’s lien and sale of the land subject to the liens of the other parties. Held, that the defendant debtor (vendee of the land) could not in this state of case require that the part of the land outside of his homestead should be first sold.</p>

<p>Appeal from Liberty. Tried below before Hon. L. B. Hightower.</p>

<p>1. Community Property — Sale by Survivor to Pay Community Debts.</p> <p>A sale of community property by the survivor in community cannot be sustained on the ground that it was made to pay community debts, where such debts amounted to only a fractional part of the price of the property and were not paid, or paid only in small part, out of the proceeds of the sale.</p> <p>2. Same — Application of Proceeds — Purchaser Not Protected.</p> <p>Purchasers of community property from the surviving husband will not be protected against the heirs of the wife, on the ground that they are not bound to • see that the proceeds are applied to the payment of community debts, where they have knowingly co-operated with the husband in the application of nearly ail of such proceeds to the discharge of the husband’s individual debts.</p> <p>3. Trespass to Try Title — Recovery for' Use and Occupation — Undivided Interest.</p> <p>Where defendants do not recognize plaintiffs as tenants in common, but claim title to and hold adverse possession of the entire land, plaintiffs, upon recovering judgment for an undivided half interest in the land, are entitled also to the value of the use and occupation of their half so recovered.</p> <p>4. Same — Verdict.</p> <p>In trespass to try title, a verdict finding “for plaintiffs one-half of the land in -controversy, and one-half of the improvements, setting off the value of the improveraents against the use and occupation of the land,” sufficiently shows that the value of the use and occupation of one-half the land was equal to the value ■of half the improvements, and that there was no balance in favor of either party.</p> <p>5. Practice on Appeal — Objection Below Necessary.</p> <p>The question of the sufficiency of the evidence in trespass to try title to show such possession in good faith by the defendants as entitle them to offset the value of improvements against rents, cannot be raised for the first time on appeal.</p>

<p>Appeal from Erath. Tried below before Hon. J. S. Straughan.</p>

<p>Appeal from Haskell. Tried below before the Hon. C. P. Wood-ruff.</p>

<p>1. Railroad Commission — Judicial Notice — Presumption.</p> <p>The courts will not take judicial cognizance of the acts of the State Railroad Commission, and there is no presumption that it has established freight rates over any particular road.</p> <p>2. Same — Pleading—Matter of Defense.</p> <p>In an action against a railway company for breach of a freight contract, the petition need not allege that the rate stipulated by the contract was that established by the commission, since it is a matter of defense to show wherein the contract was illegal.</p> <p>3. Same — Freight Contract — Consideration.</p> <p>' The contract of a railway company to carry freight at certain rates is not void as being an agreement to do what it was legally required to do by the railroad-commission act, and hence without consideration, since a lawful contract may be made for less rates than those prescribed by the commission.</p> <p>4. Railway Company — Connecting* Lines — Verbal Contract of Shipment.</p> <p>In railway contracts of shipment, the connecting lines are deemed to be the agents of the contracting lines, and hence a verbal contract with a railway company for shipment over its own and connecting lines is not inhibited by the statute, of frauds, as being a promise to answer for the default or miscarriage of another.</p>

<p>Decedent’s ’Estates — Priority of Claims — Vendor’s Lien.</p> <p>The vendor’s lien, when held together with the vendor’s superior title, is entitled, in the application of the proceeds of the sale of the land in the settlement of a decedent’s estate, to precedence over every class of claims.</p>

<p>1. Motion for New Trial Continued to Subsequent Term.</p> <p>The statute having provided that all motions for new trial shall be determined at the term of court at which they are filed (Rev. Stats., Art. 1372), the court is not authorized, even with the consent of parties, to continue such a motion to the next succeeding term.</p> <p>2. Same — Appeal in Such Case — Jurisdiction.</p> <p>Where a motion for new trial is continued to the next term, and being there, overruled, an appeal is taken, an appeal bond filed more than 20 days after the rendition of the judgment at the prior term confers no jurisdiction on the Court of Civil Appeals.</p>

<p>Appeal from Van Zandt. Tried below before Hon. Felix J. McCord.</p>

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

<p>Street Railway Corporation — Charter Powers as to. Location of Line.</p> <p>A street railway company has no right, under a charter authorizing a line running in one direction, to construct and operate a line running in a different direction, even though permission so to do be granted it by aa ordinance of the city.</p>

<p>1. Joint Administration of Community Property.</p> <p>Where there are community debts, a joint administration may be granted on the community estate of a husband and wife, both deceased.</p> <p>2. Homestead Not Subject to Administration, When.</p> <p>The homestead of an insolvent decedent, where a constituent of the family survives, descends and vests absolutely in the heirs, and is not assets in the hands of the administrator subject to the payment of debts of the decedent.</p> <p>3. Void Administrator’s Sale of Homestead — Estoppel of Heirs by Receipt of Proceeds.</p> <p>Where an administrator made an unauthorized and void sale of the homestead; and thereafter the heirs, including minors and married women, voluntarily became parties to the proceedings on final settlement, and received the greater part of the purchase money, together with other unsold land, which was subject to sale, they were estopped thereby to recover the homestead from the purchaser without refunding the proceeds so received.</p>

<p>Appeal from Dallas. Tried below before Hon. Edward Gray.</p>

<p>Appeal from Houston. Tried below before Hon. A. C. Watkins.</p>

<p>1. Homestead — Dedication—Deed of Trust.</p> <p>Where the owners of land situated in Texas reside in another State, and have never occupied or dedicated the land as their homestead, they cannot avoid their •deed of trust thereof on the ground that the property is their homestead.</p> <p>2. Limitations — Power of Sale.</p> <p>The power of sale in a trust deed is not revoked by the fact that limitation has harred the notes secured by such deed.</p>

<p>Error from Lavaca. Tried below before Hon. T. H. Spooner.</p>

<p>Limitation — Adverse Possession.</p> <p>Possession of titled land, taken and held under an erroneous belief that it is vacant public domain, is not, under the statute of limitation, a holding adverse to the claim of the true owner. Converse v. Ringer, 6 Texas Civ. App., 51, not followed.</p>

<p>1. Guaranty not Continuing.</p> <p>A guaranty of the payment for merchandise to a stated amount in value to be furnished the debtor within a stated time, and due at the expiration of such time, is not a continuing guaranty.</p> <p>2. Application of Payments — Running Account.</p> <p>The general rule is, that where there is a running open account between parties, and no appropriation of payments thereon is made by either party, the law will apply the payments according to priority of time in the items of account, even though one item be better secured than another.</p> <p>3. Parties — Debtor Must Be Joined with Guarantor.</p> <p>The debtor is a necessary party in a suit upon a guaranty, and under our statute no judgment can be rendered against a guarantor, with certain exceptions, unless judgment be rendered at the same time against the debtor.</p> <p>4. Pleading — Variance—Time.</p> <p>When in an action upon a guaranty, under an averment that the guarantor was discharged by payment made to the debtor prior to the expiration of the guaranty, evidence is given of payments made shortly after, as well as before such expiration, the substance of the allegation is proved and there is no variance.</p>

<p>1. Appeal Bond — Waiver.</p> <p>Long delay in making a motion to dismiss an appeal for irregularities in the appeal bond, and consenting to numerous continuances of the case, will operate as a waiver of the objections.</p> <p>2. Same — "Unnecessary Party Does Not Bender Void.</p> <p>Where an appeal bond is made payable to all proper parties, the fact that it is also payable to one who is not a party, is an irregularity that does not render the bond void.</p>

<p>Appeal from Fort Bend. Tried below before Hon. T. S. Reese.</p>

<p>1. Trial by Court — Irrelevant Evidence — Presumption.</p> <p>Where the trial was had before the judge, without a jury, in the absence of anything to the contrary, it will be presumed that the judgment was not influenced by irrelevant evidence that may have been improperly admitted.</p> <p>2. Administrator — Removal of — Incompetent Evidence.</p> <p>It is not admissible, in a proceeding to set aside the removal of an administrator with the will annexed, made .because he had failed to duly file an inventory, to show that it was not the intention of the deceased testatrix that he should be administrator, and that he was seeking to have certain claims allowed him against the estate.</p>

<p>Appeal from Lavaca. Tried below before Hon. T. H. Spooner.</p>

<p>^Evidence — Hearsay—Declarations of Bodily Pain Hot Bes Gestae, When.</p> <p>In an action for personal injuries it is permissible for an officer who took the •depositions of the injured person eight months after the injury was received, to testify as to her apparent condition at that time, but not as to her declarations in his presence of bodily pain then being suffered from the effects of the injury.</p>

<p>1. Probate Judgment of Another State — Estoppel.</p> <p>The judgment of a probate court of Louisiana disposing of a decedent’s property there to his father, brother and sister as his heirs, his wife and child not being parties to the proceeding, and no issue as to their claims being adjudicated, does not operate as an estoppel against claimants through such wife and child of lands of the deceased situated in Texas.</p> <p>2. Evidence — Record of Probate Proceedings.</p> <p>Where the issue is, whether a certain child was born alive after the death of the father, the record of proceedings had in the probate court of another State, in which the father died, disposing of the property there to certain persons as his heirs, and not showing that any claim thereto was made in behalf of his widow and child, is admissible in evidence, not as conclusive proof, but as a circumstance to be considered.</p> <p>3. Evidence — Comment of Witness.</p> <p>A witness having testified to certain statements as to family history and pedigree, made by members of the family, added, “I am sure they did not lie to me.” Held, such comment was unwarranted and should have been stricken out.</p> <p>4. Innocent Purchaser from Heirs.</p> <p>A purchaser of land from parties claiming as heirs must see to the fact of heirship, and will not be deemed an innocent purchaser as against one holding under the true heirs.</p>

<p>1. Bight of Way of Railway Company — Description in Deed.</p> <p>Where a railroad has been located across a survey of land and is in existence, a deed of the “right of way” across the survey conveys a strip of land 200 feet wide along the line of the railroad, and is sufficiently definite in description.</p> <p>2. Same — Extent of Bight Conveyed.</p> <p>A deed of a right of way 200 feet wide across a given survey of land conveys to the railroad company the privilege of putting all parts of the strip so conveyed to all the uses for which the right of way may be employed.</p> <p>3. Same — Specification of Bights and Uses.</p> <p>The uses to which the company may put its right of way include the building of side tracks, buildings, telegraph lines, and other structures necessary for its business, the making of cuts and embankments, taking material for its necessary building purposes, the enclosure of the track with fences, and the keeping of its premises in proper and safe condition for the prosecution of its business.</p> <p>4. Same — Bights of Owner in Eee.</p> <p>But while the paramount right is in the railway company, the owner of the fee in the land used for right of way may put it to any uses not inconsistent with the exercise by the company of its rights and the discharge of its duties.</p> <p>5. Same — Erection of Buildings on Bight of Way.</p> <p>The erection on a right of way by the owner in fee of the land, of buildings, and other permanent structures, is inconsistent with the right of the railway company, and the company is entitled to have such structures removed, without showing any specific use to which it expects to put the ground.</p> <p>6. Same — Improvements in Good Eaith.</p> <p>In an action by a railway company to compel the removal of buildings from its right of way, the defendants are not entitled to recover the value of the improvements as possessors in good faith under the statutes regulating actions of trespass to try title.</p> <p>7. Same — Bights of Lessee.</p> <p>Where a lessor during the lease conveyed a right of way across the land to a railway company, and the lessee erected buildings on the right of way, and afterwards, before the expiration of the lease, purchased the land, the right of the company, after the expiration of the lease, was superior to that of the lessee, and such as entitled it to have the buildings removed from the right of way.</p>

<p>1. Fraudulent Conveyance — Surety.</p> <p>That a failing debtor can protect his surety by a transfer of goods reasonably-proportioned in value to the amount of the debt, is settled in this State.</p> <p>2. Pleading — Fraud.</p> <p>Where the general ownership and possession of personalty has passed to the vendee, a third person who is sued for its conversion cannot, under the general denial only, attack the conveyance for fraud, special pleading being requisite in such case.</p> <p>3. Agent’s Authority — Construction—Charge of Court.</p> <p>C., a failing debtor, telegraphed to a creditor,. “I am in trouble. Appoint T. agent to take goods out of our hands. Act quick.” Upon receipt of this message' the creditor wired T., “Get all vehicles our make out of hands of C.” The notes of the debtor given for the vehicles in question were then outstanding, but had been deposited by the creditor with a bank as collateral security. Held, that T. was authorized to credit the value of the vehicles so taken on the notes, and the court should have so instructed the jury.</p> <p>4. Same — Ratification After Attachment.</p> <p>Where an agent, without authority so to do, purchases goods from a debtor in satisfaction of a debt due the principal, a ratification of his action comes too late" after other creditors have levied attachments on the property.</p>

<p>Appeal from Potter. Tried below before Hon. H. H. Wallace.</p>

<p>1. Toby Land Scrip — Judicial Knowledge.</p> <p>The courts judicially know that Thomas Toby, acting as the agent of the provisional government of the republic of Texas, sold land scrip certificates issued by him as such agent, but they do not judicially or otherwise know that the power under which he acted was invalid.</p> <p>2. Same — Validity of Title Under — Toby Scrip Legislation.</p> <p>A land scrip certificate issued by Thomas Toby, September 2, 1836, was located and surveyed May 27, 1874, and patent thereon issued to an assignee January 30, 1890. Held, that the legal title to the land was thereby vested in the patentee; the Act of December 10, 1836, affording a legislative recognition of the validity of Toby’s authority to issue the scrip, and the Act of December 15, 1859 (Rev. Stats., art. 3964), having the effect to preserve it from forfeiture.</p> <p>3. Same — Signature of Toby.</p> <p>The issuance of the patent to the assignee prima facie proves the genuineness of Toby’s signature to the certificate, and the patentee’s right thereto.</p> <p>4. Limitation — Conflict of Surveys — Adverse Possession.</p> <p>In a case of conflicting surveys, the owner of the junior survey, in order to acquire title by adverse possession and limitation to the part in conflict, must have had actual possession of such part.</p>

<p>1. Trespass to Try Title — Evidence of Locative Contract.</p> <p>Where, in trespass to try title, plaintiffs claim the land under and by virtue of a locative contract made by an administrator, direct evidence of which could not be adduced, it was permissible, as tending to prove that such contract was made, to give in evidence the proceedings had in the administration, showing that a land certificate was part of the estate and was delivered for location by such administrator to plaintiffs’ intestate, the locator, and that the land was partitioned without objection among and between the heirs of the estate and the locator, the maps, filed therewith showing the part allotted to the locator in such partition.</p> <p>2. Same — Sufficiency of Circumstantial .Evidence.</p> <p>The evidence indicated above, with further proof showing that the heirs acquiesced for many years in such partition, that the locator paid all taxes during his life on the part allotted to him, and that his claim of title was a matter of notoriety, held sufficient to establish the locative contract and title in the locator thereunder.</p> <p>3. Administrator’s Locative Contract — Land Certificate — Community Property.</p> <p>The contract of an administrator of the husband, made with the approval of the court, for the location of a land certificate on shares, is valid, and is also, binding on the wife’s community interest.</p> <p>4. Administration Proceedings — Validity—Time of Administration Extended.</p> <p>The orders and proceedings in an administration had from 1844 to 1854 cannot be-assailed on the ground that under the law then in force an administration could not be continued for more than one year from the date of issuance of the letters, unless, so ordered by the court, and that in no event could it be continued for longer than five years. Following Williams v. Howard, 10 Texas Civ. App., 527.</p> <p>5. Limitation — Specific Performance.</p> <p>In an action to establish title under a locative contract, and partition proceedings thereunder, the statute of limitations requiring actions for specific performance to be commenced within ten years cannot be interposed. The patentee of the land holds the legal title in trust for the benefit of the locator, and until a repudiation of the trust limitation will not run.</p> <p>6. Limitation — Tenant as Party to Suit.</p> <p>Where a claimant of land holds possession by a tenant, and such tenant is made-a party defendant to a suit brought to recover the land, this is sufficient to interrupt the running of limitation in favor of such claimant.</p> <p>7. Bona Pide Purchaser — Insufficient Evidence.</p> <p>The evidence is sufficient to sustain a finding that defendant was not a bona fide purchaser, where it shows that in certain partition proceedings one-third of the survey of land, being the part here in controversy, had been set off as the locative interest; that defendants wife inherited an interest in the remaining portion, which had been set off to her father in that partition; that defendant and his wife conveyed the part so inherited by deed with reference to such partition, and by another deed, without consideration, and with reference to the partition, conveyed such locative interest to parties who secured deeds thereto from the other heirs, and from whom defendant subsequently purchased such locative interest.</p> <p>8. Plea of Improvements in Good Faith.</p> <p>A purchaser chargeable with actual notice of a valid outstanding title is not entitled to claim the value of improvements in good faith, especially where his plea does not state the ground upon which such claim is based.</p> <p>'9. Evidence Sustaining Finding.</p> <p>A finding that a certain person died after a partition of land, is sustained by evidence showing that the decree in the partition proceedings recited that such person appeared therein by attorney and joined in the prayer for partition, and a decree setting apart a portion of the land to such person as one of the parties entitled thereto.</p> <p>10. Partition — Estoppel.</p> <p>■Where the heirs of a person to whom land .was set apart in a partition accept the portion so allotted to their ancestor, they are estopped to attack the regularity of the proceedings.</p> <p>11. Deposition — Evidence of Party to Suit — Disclaimer.</p> <p>Where, in trespass to try title, certain of the defendants are charged with a conspiracy to defeat plaintiff’s title by procuring the legal title to the land to be vested in an innocent purchaser, the plaintiff is entitled to take the depositions of such defendants with reference to such issue of fraud by filing interrogatories under the statute, without notice, although such defendants have disclaimed title to the land.</p> <p>12. Innocent Purchaser — Notoriety of Claim.</p> <p>Where the plea of innocent purchaser is made, it is admissible to show the notoriety of the adversary claim of title to the land.</p> <p>13. Trespass t© Try Title — Disclaimer—Rental Value.</p> <p>Where, in trespass to try title, defendants filed a disclaimer, this will not absolve them from liability for the rental value of the land during the time they occupied it, not exceeding two years, but each defendant will be liable only for the time he occupied.</p> <p>14. Same — Subrogation—Liens.</p> <p>Where plaintiff recovers land which has been fraudulently incumbered by defendants with deeds of trust, a decree providing that if plaintiffs are compelled to discharge the liens, they shall be subrogated thereto as against the defendants,' is properly entered.</p>

<p>1. Railway Company — Proposition to Procure Pree Right of Way — Acceptance Requisite. .</p> <p>The instrument sued on recited in substance that the subscribers thereto acknowledged themselves indebted to the appellant railway company in a stated penal sum, for the payment of which they bind themselves, and is conditioned that whereas the company proposes to construct a certain line of railroad on such conditions as to the time of construction as are provided by the laws of Texas, now if the obligors shall secure to. it a right of way for such road without cost to the company, then the obligation to be void. Held, that this was a proposition requiring acceptance by the company within a reasonable time to make it binding, and that it does, not fix the time allowed by law for the completion of the work as the time within which such acceptance may be made.</p> <p>2. Practice — Exceptions—Harmless Error.</p> <p>Refusal of the court to pass upon special exceptions to the pleadings is not reversible error where the record does not show that any injury resulted therefrom.</p> <p>3. Same — Unnecessary Particularity in Pleading.</p> <p>Where evidence of certain facts would have been admissible under the general allegation made, a refusal to sustain exceptions to unnecessarily specific averments of such facts is harmless error.</p> <p>4. Same — Stating Marne of Agent.</p> <p>It is not necessary to allege the names of the agents by whom a party was represented in transactions which are pleaded.</p>

<p>1. Pleading — Exception to Amendment — Buies of Court.</p> <p>It is not reversible error in the court to refuse to sustain exceptions to a trial amendment on the ground that it does not, as required by the rules of court, point out the pleading sought to be amended, by name and number, where it is manifest to what pleading the amendment is directed, and no injury results from the ruling.</p> <p>2. Fire Insurance — Proof of Value of Articles Destroyed.</p> <p>Where the plaintiff testified without objection that the articles destroyed by fire were worth at the time the prices set out in the exhibit attached to his petition, and amounted in value to more than the sum insured, this was sufficient to sustain a finding that the value of the articles was proved, and aggregated more than the amount of the policy. If defendant conceived that such evidence was not in accordance with the proper measure of value, he should have urged an objection to its introduction.</p> <p>3. Same — Waiver of Proofs of loss.</p> <p>Incompleteness in the proofs of loss may be waived by the insurance company, acting through its adjuster or general agent, and a statement to the insured by the adjuster that nothing further would be required, constitutes such a waiver.</p> <p>4. Same — Proof of Value — Finding—“Cash Value.”</p> <p>A finding by the court that the goods destroyed were worth at the time a certain amount is equivalent to a finding that such amount was their actual cash value.</p>

<p>1. Insurance Policy — Pleading—Variance.</p> <p>In an action on an insurance policy the petition averred its number 300,012 and the amount of insurance to be $1600, and the policy itself, when offered in evidence, corresponded with these averments and contained marginal figures $1600. A copy of the policy attached to the petition and referred to as part of it also recited the amount in its face as $1600, but appeared to be numbered 300,001, and contained marginal figures $1000. Held, that the variance was immaterial.</p> <p>2. Same — Waiver of Proofs of Loss.</p> <p>A denial of all liability on an insurance policy, on the ground that it is a nullity, is a waiver of proofs of loss stipulated for in the policy,</p> <p>3. Same — Ownership—Insurable Interest.</p> <p>S., the owner of a stock of drugs, formed a partnership with R., selling him a one-half interest in the drugs, for which R. was to execute his note, to be paid from the proceeds of the business. The firm took possession of the property, and shortly thereafter, before the note had been prepared and executed, the property was ■destroyed by fire. Held, that R. had an insurable interest in the property. An equitable title meets the requirement that the interest of the assured is the entire, unconditional and sole ownership.</p> <p>4.. Community Property — Title in Name of Wife.</p> <p>The fact that the title of community personal property stands of record in the name of the wife does not affect the character of the husband’s title therein, nor prevent it from being subject to his disposition, where there is no intention to make it her separate property.</p> <p>.5. Insurance Policy — Repudiation—Return of Premium.</p> <p>Where an insurance company desires to avoid a policy, on the ground that the person who as its agent procured the policy was also the beneficiary therein, it must on discovery of these facts promptly repudiate his agency and tender back the premium which it has received.</p> <p>■6. Assignment of Error.</p> <p>An assignment of error that “the findings and judgment of the court are not supported by the pleadings, evidence and law of the case,” is too general to justify consideration.</p> <p>7. Suit Prematurely Brought.</p> <p>Where an action against an insurance company is brought within the sixty days allowed the company, but is tried long thereafter, the fact that it is prematurely brought could affect only the matter of costs or of interest.</p> <p>8. Pleading — Ratification.</p> <p>Where defendant seeks to avoid a contract on the ground that its execution' by an agent was unauthorized, the plaintiff may prove a ratification of the contract under the general denial, and without pleading it in replication.</p>

<p>1. Receiver’s Commissions.</p> <p>Where, at the instance of the plaintiff, a receiver is appointed, and on appeal the-appointment is revoked as having been erroneously made, but pending the appeal such receiver gives bond and manages the property, he is entitled on making his final report to be paid his expenses and commissions out of the funds that have come into his hands as receiver, regardless of the final result of the suit.</p> <p>2. ' Same — Are Part of Court Costs.</p> <p>Within article 1466, Supp. Sayles’ Civ. Stats., providing that moneys coming into the hands of a receiver, as such, shall be first applied “to the payment of all court costs of the suit,” receivers’ fees are court costs, and will be so paid whether the plaintiff or defendant is successful.</p> <p>3. Same.</p> <p>But while the funds in the hands of the receiver are made primarily liable for his fees, this will not prevent the court from making an equitable adjustment of such costs as between the parties to the suit, nor deprive either party of any remedy against the other he might otherwise have had for such expenses, if wrongfully-incurred.</p>

<p>1. Appeal — Waiver of Bight — Acceptance of Judgment.</p> <p>A creditor who sues to set aside a preferential trust deed, and accepts the proportionate share of the proceeds of the trust awarded him by the judgment, thereby waives his right to appeal from such judgment.</p> <p>2. Same — Offer to Return.</p> <p>Plaintiff’s offer to return th<v money, if so required, will not restore the right of appeal.</p>

<p>Limitation of Ten Years — Adverse Possession of Land Supposed to be Public Domain.</p> <p>One who has settled upon land under the homestead donation statute, erroneously believing it to be vacant public domain, can interpose ten years of such occupancy as a bar to the suit of a previous location under a valid certificate, the land remaining unpatented. Schleicher v. Gatlin, 85 Texas, 270, in so far as it may appear to be in conflict with this case, not followed.</p>

<p>City Fire Department — Liability of Municipal Corporation.</p> <p>The officers of the fire department of a city, whether it is operating under general law or by special charter, are regarded, not as the servants of the corporation appointing them, but of the general public, and the city is not liable in damages for personal injuries occurring to one of them through the gross negligence and incompetency of another one, although the city council may have selected the latter knowing that he was incompetent.</p>

<p>1. Pleading — Insurance Policy — Exhibit—Variance.</p> <p>Where, in a suit upon an insurance policy, the policy is made an exhibit to the petition, recitals of description in the policy become matter of averment in the petition, and a material variance does not arise because such descriptive and additional recitals are not fully averred in the pleading.</p> <p>3. Same — Manner of .Averment.</p> <p>Where it appeared from the policy attached to the petition that the occupation in- which the insured was engaged at the time the policy issued was stated in his application therefor, and such application was alleged to be in the hands of the defendant company, it was not necessary for the petition to allege the occupation of the insured at such time.</p> <p>3. Same.</p> <p>Where the petition alleged that the insured was killed by falling houses and flying timbers, produced by a cyclone, it was not necessary to aver that the injuries resulting in his death left physical marks upon his body.</p> <p>4. Same — Negativing Warranty — Defensive Matter.</p> <p>Nor was it necessary that the petition should negative the warranty in the application, providing that if the insured should be injured while engaged in any occupation more hazardous than the one therein stated, the compensation should be less, as such matter was defensive in its nature.</p> <p>5. Life Insurance — Waiver of Proof.</p> <p>Where the insurance company, upon being furnished with the preliminary proofs, refuses to pay upon a ground having no reference to the sufficiency of such proofs, as that the insured was engaged at the time of his death in an occupation more hazardous than the one in which he was insured, it thereby waives the right to object to any deficiency in such proofs.</p> <p>6. Same — Extra Conductor and Brakeman.</p> <p>The testimony of a witness experienced in the railway service, to the effect that an extra conductor, when not engaged in running trains, performs any other service required of him, warranted a finding that an extra conductor could serve part of the time as a brakeman without losing his classification in the policy as an extra conductor.</p>

<p>1. Agreement to Lease — Measure of Damages for Breach.</p> <p>The measure of damages for a breach of contract to lease premises for a specified term is the difference between the market value of the- lease and the agreed rent for the entire term, and not merely to the time of trial.</p> <p>2. Same — Discounting Payments of Bent Not Due.</p> <p>In determining the difference between the market value of the lease and the agreed rent, which was payable monthly, installments not due at the time of trial should be discounted at the legal rate of interest, and the same rule applies ini arriving at the market value of the lease.</p> <p>3. Same — Single Action for all Bents Payable.</p> <p>Where defendant agreed to lease a building for five years at a fixed rental price, payable monthly, his refusal, at the time stipulated for the lease to begin, to occupy the premises or sign a contract of lease, was such a breach as put an end to the entire contract, and therefore authorized if it did not require plaintiffs to sue for all their damages in one action.</p> <p>4. Practice on Appeal — Action of Trial Court Not Shown by Clerk’s Certificate.</p> <p>Alleged error of the trial court in sustaining exceptions to pleadings will not be considered on appeal where there is nothing in the record to show that such ruling was made except a certificate of the clerk to a copy of the notes on the-judge’s docket, with the statement that the orders thus indicated were never carried into the minutes.</p>

<p>Promissory Note — Failure of Consideration.</p> <p>Where a promissory note, executed without consideration, is endorsed and transferred by the payee to a creditor of his in payment of an open account, such payee can not, in an action brought on the note after the account is barred by limitations, maintain a plea of want or failure of consideration of the note.</p>

<p>A statement of the facts appears in the opinion on motion for rehearing.</p>

<p>Appeal from Milam. Tried below before Hon. Jno. H. Henderson.</p>

<p>1. Railway Company — Contributory Negligence.</p> <p>A railroad station agent while attempting to pass between cars in the station yard at a po.nt usually left open for that purpose was caught between the cars and injured. The bell on the engine moving the cars against him was not being rung at the time as required by city ordinance. Held, that contributory negligence or want of ordinary care on the part of the agent was not shown.</p> <p>2. Same — Evidence—Admission.</p> <p>The statement of a person soon after being mortally injured by a moving car, that he blamed no one but himself for the accident, is not conclusive proof that he failed to exercise ordinary care to avoid the injury, there being other evidence showing such care. .</p> <p>3. Charge of Court Considered as Entirety.</p> <p>Where the charge of court, when considered as an entirety, gives a reasonably fair statement of the law applicable to the facts, it is not reversible error that some of its paragraphs, when considered separately, may be subject to criticism.</p> <p>4. Fellow Servants — Statute.</p> <p>A railroad station agent is not, under the statute, a fellow servant with the crew of a freight train engaged in moving cars in the station yard.</p> <p>5. Negligence — Failure to Bing Bell — Charge.</p> <p>The court correctly charged that a failure to ring the bell on a moving engine as required by city ordinance would constitute actionable negligence, if it was the proximate cause of the injury.</p> <p>6. City Ordinance — Secondary Evidence.</p> <p>Where the records of a city have been destroyed by fire, secondary evidence may be used to prove a city ordinance.</p> <p>7. Same — Binging Bell of Engine.</p> <p>A city ordinance requiring engineers to keep the bell on their engines constantly ringing while the engines are in motion within the city limits, although requiring more than the statute in reterence to crossing public highways (Rev. Stats., art. 4232), is reasonable and valid.</p> <p>8. ÜTegligence — Evidence.</p> <p>On an issue of negligence in failing to ring an engine bell, where the engineer had testified that he was on the engine and rung the bell, it was competent for plaintiffs to show by another witness that the engineer was not on the engine at the time of the accident, although they had not so alleged in the petition.</p>

<p>1. Pledge — Purchase by Pledgee — Conversion.</p> <p>A pledgee who purchases the pledge at a public sale is not chargeable with a conversion of it, since such sale, unless ratified by the pledgor, is ineffectual to change the title or the relation of the parties.</p> <p>2. Same — Bight of Pledgee of Corporate Stock to Have it Transferred.</p> <p>In the absence of an agreement to the contrary, it is the fight of a pledgee of corporate stock to have it transferred on the books of the corporation to his own name as the holder, and such transfer will not render the corporation liable for conversion, though made over the protest of the pledgor.</p>

<p>1. Railway Company — Injury to Child — Trespasser-—Contributory Negligence.</p> <p>A child trespassing upon the track of a railway company may recover for injuries sustained as the result of his voluntary conduct in placing himself in a position of peril, if he is so lacking in intelligence and discretion that he does not appreciate the consequences likely to result from his conduct, and the railway company is guilty of negligence as to his safety.</p> <p>2. Same — Negligence—Ordinary Care.</p> <p>Although the statute does not require railway companies to keep guards and lookouts at public street crossings, yet under their duty to exercise ordinary care it may be negligence in some instances to fail to provide for such guards and lookouts; and whether such failure is negligence, is a question of fact for the jury.</p> <p>3. Same — Diligence to Prevent Injury.</p> <p>If the employes of a railway company operating its train know that a child is in a position of peril, or is attempting to place himself in a position of danger with reference to the moving train, or could know these facts by the exercise of ordinary diligence and care, and under such circumstances fail to exercise ordinary care and diligence to prevent injury to him, and as a consequence he is injured, this is actionable negligence.</p>

<p>Appeal from Travis. Tried below before Hon. F. G. Morris.</p>

<p>1. Pleading — Petition—Insurance Policy.</p> <p>Where the petition in an action on a fire insurance policy does not set up the conditions and warrant.es of the policy that would render it void, nor make the petition an exhibit thereto or part thereof, nor admit that there was a violation of the warranties by plaintiff, it is not subject to a general demurrer urged on the ground that because of the conditions, stipulations, and warranties therein which plaintiffs bound themselves to keep but failed, the petition shows no cause of action.</p> <p>2. Pire Insurance Policy — Iron Safe Clause — Proof of Breach.</p> <p>An insurance policy contained an "iron safe clause" requiring that the insured should keep a set of books and an inventory “securely locked in a fire-proof safe at night and at all times when the store is not actually open to business.” The books and inventory, together with the store and goods, were destroyed by fire, but it did not appear whether the fire was in the day time or at night, nor whether the store was not open for business at the time of the fire. Held, that a breach of the conditions of the iron safe clause was not shown.</p> <p>3. Same — Burden of Proof.</p> <p>In an action upon a fire insurance policy, the burden of proving that there has been a breach of the stipulations and warranties contained in the policy rests upon the defendant.</p>

<p>Construction of Statute — Public Printing.</p> <p>Article 3992 of the Revised Statutes, requiring that the Printing Board shall contract with some suitable person “who shall be a resident of this State, to print and bind the laws, journals,” etc., does not, by construction, require that the printing and binding shall be done in the State; nor will the further requirement (Art. 4003) that the advertisement for bids on the printing and binding shall be published in newspapers in the State justify such construction.</p>

<p>1. Tax Deed — Uncertainty of Description.</p> <p>A tax deed reciting that the taxes were assessed upon abstract No. 884, being 320 acres granted to E. G., which was levied on, advertised and sold, but which conveys abstract No. 324, originally granted to E. G. in M. county, without giving further description, is void upon its face for want of description.</p> <p>2. Same — Five and Ten Years' Limitations.</p> <p>A tax deed void upon its face for want of description of the land cannot be used to support the five years’ statute of limitation, nor, under the ten years’ statute, can possession under such a deed be extended as a possession "taken under some written memorandum of title other than a deed which fixes the boundaries of the possession.”</p> <p>3. Limitations — Joint Flea.</p> <p>Where in trespass to try title to 320 acres of land, the defendants claim separate interests of 160 acres by virtue of possession under the ten years’ statute, but their pleas of limitation are joint, and fail to describe the particular part claimed by each, proof in support of the pleas is inadmissible.</p> <p>4. Flea of Improvements in Good Faith.</p> <p>A plea of improvements in good faith is defective if it fails to aver the grounds of good faith.</p> <p>5. Same — Void Tax Deed.</p> <p>A tax deed void upon its face will not support the plea of improvements in .good faith.</p>

<p>Appeal from Bell. Tried below before Hon. W. A. Blackburn.</p>

<p>1. Contract With State — Constitutional Inhibition — Ratification.</p> <p>The act of the Legislature providing for the erection of a state land office building expressly limited the cost of the building to a sum not exceeding $40,000. The commissioners appointed by the act to let the contract made a further contract for additions to cost in excess of the prescribed limit. Section 44, article 3, of the Constitution provides that the Legislature shall not “grant by appropriation, or otherwise, any amount of money out of the treasury of the State to any individual on a claim, real or pretended, when the same shall not have been provided for by pre-existing law.” Held, that the further contract as to such excess was illegal and void, and not subject to ratification, nor has the Legislature authority to make any provision for its payment.</p> <p>2. Same — Doctrine of Ratification Applicable.</p> <p>A part of the amount covered by such further contract was within the prescribed limit of $40,000, but such contract was not let to the lowest bidder as required by the statute. Held, that to this extent it was within the power of the State to ratify the contract, the act of its officers in making it being within the scope of their authority, although exercised in a manner not authorized by the statute.</p> <p>3. Same — Ratification not Shown.</p> <p>The fact that the State has ever since its completion occupied and used the building, erected upon land belonging to the State, does not constitute a ratification of the unauthorized contract that was let for its construction without being awarded to the lowest and best bidder.</p> <p>4. Same — Permission to Sue ITot a Ratification.</p> <p>Nor can the fact that the Legislature by special act authorized suit to be brought against the State upon the claim under the contract be treated as in effect a ratification, or a recognition that some amount was due upon the claim.</p>

<p>1. Conversion — Right of Mortgagee of Chattels,</p> <p>A. mortgagee of personal property not in possession, nor entitled to possession, may maintain an action for conversion against one who with notice of the mort- . gage purchases the property from the mortgagor.</p> <p>3. Charge of Court — Stating Issues.</p> <p>That the charge in stating to the jury the issues made by the pleadings uses words not in the pleadings, is not reversible error where the added words do not change the case as made by the pleadings, nor introduce a new issue.</p>

<p>Appeal from the County Court of Williamson. Tried below before Hon. D. S. Chessher.</p>

<p>Conversion — Measure of Damages.</p> <p>Where property is wrongfully seized and sold under execution, and at such sale the owner becomes the purchaser at a less price than its market value, the measure of damages in an action by him for the conversion of the property is not its market value at the time of its seizure, with interest, but he is entitled to recover interest on the value of the property from the time of its seizure to the time of such sale, the amount paid by him at the sale, with interest thereon from that date, and whatever amount, if any, the property may have depreciated in value while it was withheld from him. Schooler v. Hutchins, 66 Texas, 324, distinguished.</p>

<p>1. Set-off — Fact Case.</p> <p>D. & Co. assumed payment of certain notes due by E., and before the maturity thereof assigned to L. a one-half interest in a demand which they held against E. After the demand had been reduced to judgment against E., they transferred to L. the remaining half thereof, the notes due by E. having been already matured and having been largely paid off by E. Held, that E.’s claim thereupon against D. & Co. could not be set-off against the half-interest in the demand first transferred to L„ but could be set-off against the other half of the judgment thereon.</p> <p>2. Set-off Against Assignee, of Judgment.</p> <p>The assignee of a judgment takes it subject to the equitable right of the judgment debtor to set-off against it a claim arising out of the same transaction, but which the debtor could not plead in the action resulting in the judgment because it had not then matured.</p>

<p>Error from Uvalde. Tried below before Hon. Eugene Archer.</p>

<p>Homestead — Rent of Not Exempt.</p> <p>The usufruct of homestead property, such as a' rental charge of so much per ton for coal mined from the land, is not exempt from garnishment. In the absence of any law creating the exemption, the income of homestead property, when it has taken independent form, is liable to the creditor.</p>

<p>Acknowledgment of Married Woman — Omission of “Known” Fatal.</p> <p>A certificate of the acknowledgment of a married woman which fails to state, as required by the statute, that she was known or made known to the officer, is fatally defective.</p>

<p>Appeal from La Salle. Tried below before Hon. M. F. Lowe.</p>

<p>Appeal from Bexar. Tried below before Hon. R. B. Green.</p>

<p>1. Partnership — Action by Trustee — Beneficiaries Must be Joined.</p> <p>Where a deed of trust does not directly nor by implication invest the trustee with power to alone prosecute and defend suits for the property, the beneficiaries are necessary parties to an action by him to remove cloud from the title of the trust property.</p> <p>2. Same — Objection for Non-joinder May be Baised on Appeal.</p> <p>Non-joinder of beneficiaries in such case is fundamental error, and available although the objection on that account be first raised on appeal or writ of error.</p> <p>3. Equitable Interest Blended in Trust — Conveyance by one Beneficiary. Where a married woman conveyed her separate property in trust for the support</p> <p>of herself and her children, a subsequent attempted conveyance of the property by her to a third person will not divest her equitable title under the trust, since it is inseparably blended with that of the children.</p> <p>4. Wife’s Separate Property — Bents—Conveyance Not Fraudulent.</p> <p>Since a married woman has the right to convey her separate property in trust for herself and children, so as to withdraw the rents from the community estate, such a conveyance is not fraudulent as to creditors of the community estate.</p>

<p>1. Judgment — Confession of, Where Petition is Not Sworn to.</p> <p>Plaintiff’s petition, not sworn to, was filed, and citation thereon, returnable to next term of court, was forthwith issued and served on defendant, who appeared on the same day (court being then in session), and filed a confession of judgment and waiver of time. Held, that judgment was properly entered against defendant upon the same day the petition and confession of judgment were filed, and that art. 1347 of Revised Statutes, requiring the justness of the debt claimed to be sworn to, applies only where defendant appears without process.</p> <p>2. Same — Rate of Interest.</p> <p>Where the note sued on stipulates for ten per cent interest, the judgment properly bears that rate.</p>

<p>Public Road — Unauthorized Change — Injunction Against County.</p> <p>The County Commissioners’ Court under a valid order established and opened' up a public road over appellant’s land, and he thereupon fenced across a part of the old roadway, from which such order had changed the road, and which had never been established as a public road. Afterwards the court rescinded its said order without notice to appellant, and directed the road overseer to cut appellant’s fence and open up the old road. Held," that appellant was entitled to an injunction restraining such proceeding.</p>

<p>1. Limitation — Action on Foreign Contract.</p> <p>The time of limitation of actions upon foreign contracts depends on the law of the State in which the action is brought, and not on that of the place where the contract is made.</p> <p>2. Same — Partial Payments.</p> <p>Partial payment of principal or interest does not interrupt .the running of limitation in this State.</p>

<p>1. Railway Company — Degree of Care at Public Crossing.</p> <p>It is the duty of a railway company in operating its trains to exercise ordinary care and prudence when approaching public road and street crossings, and a charge of court which imposes the duty of great care under such circumstances is error.</p> <p>Z. Charge of Court — Error in Requested Charge.</p> <p>Appellant cannot complain of an erroneous charge where he requested a charge embodying the same error, although the requested charge was refused.</p> <p>3. Pleading — Want of Allegation in Petition Supplied by Defendant’s Answer.</p> <p>Where it was not alleged in terms in the petition that appellant did not use due care to prevent the accident after the deceased was seen on the track by its employes, the defect, if it was such, was fully supplied by the allegations in appellant’s answer, that “defendant’s servants used every effort to stop said engine and prevent an accident,” in so far as to warrant the admission of evidence of such want of care.</p> <p>4. Railway Company — Degree of Care.</p> <p>It was not error to instruct the jury that, after deceased was discovered by the employes of the railway company upon the track, “they should have used every effort in their power to avert the accident and stop the engine before it struck him.”</p> <p>5. Same — Contributory Negligence.</p> <p>When through the negligence of a railway company a person is placed in a posifón which appears to imminently threaten his life, he is not guilty of contributory negligence because, under such circumstances, he fails to make choice of the best means of saving himself from injury.</p> <p>6. Charge of Court — Amount of Damages Claimed.</p> <p>While it is not the proper practice in an endeavor to limit the amount of damages for the charge of court to call the attention of the jury to the amount claimed in the petition, yet this will not be ground for reversal unless it appears that the amount of the verdict was affected by it.</p> <p>7. Contributory negligence — Proof Mot Sufficient.</p> <p>Deceased waited in his wagon while a freight train was passing a street crossing, and when the last car had passed, he started to cross the track, when he saw an engine which was following the train, without giving any signal of its approach. When deceased saw it, he rose to his feet and was thrown to the track from the back of the wagon, and was crushed by the engine. Held, that the evidence did not show contributory negligence on the part of deceased.</p> <p>8. Suit in Behalf of Minor — Mother as Mext Friend.</p> <p>A widow has the right to sue on behalf of her minor children and as their next friend, for the killing of their father, although, if the shares apportioned to the 'Children exceed $500, they cannot be paid over to her until she qualifies as guardian.</p>

<p>1. Marriage — License Not Essential.</p> <p>Where the marriage ceremony was performed by a minister, and was followed by cohabitation as man and wife for several years, it was a valid marriage, although celebrated without a license.</p> <p>8. Same — Second Marriage Invalid.</p> <p>Where the wife is alive and not divorced, the husband can not contract a legal marriage with another woman, though the forms of the law as to marriage be complied with.</p> <p>3. Wife’s Bight to Administer on Husband’s Estate.</p> <p>The preference right of the wife, as such, to administer on the deceased husband’s estate, belongs only to a lawful wife.</p> <p>4. Administration — Appeal from Probate to District Court — Jurisdiction.</p> <p>Where, in a contest in the Probate Court over the right to administer on a deceased husband’s estate, between two persons each claiming to he his wife, an appeal from the judgment there is taken to the District Court, the latter court acquires thereby only such jurisdiction as the Probate Court had, and is not authorized to adjudicate the title to the property involved.</p>

<p>Appeal from Uvalde. Tried below before Hon. Eugene Archer.</p>

<p>1. Surety — Extension of Time — Consideration.</p> <p>An agreement to forbear suit on a note for an indefinite time, where there was no corresponding promise on the part of the debtor not to pay during the time of forbearance, or other consideration for such promise, will not operate to release a surety on the note.</p> <p>2. Community Property — Judgment Against Survivor.</p> <p>Where a widow is sued as a survivor in community of herself and her deceased husband, and judgment is rendered against her as such, it is not necessary to allege or prove that community property came into her hands as survivor, since if no such property is held by her, the judgment in no wise binds her.</p> <p>3. Attorney Pees in Note — Proof.</p> <p>In a suit on a note, providing for attorney fees, the appearance of an attorney in the action is sufficient evidence that the note has been placed in the hands oí an attorney for collection.</p> <p>4. Practice on. Appeal — Objection Below Necessary.</p> <p>Objection that in an action to foreclose a mortgage the judgment improperly included the sum of $66 paid by plaintiff as taxes on the property, is not available on appeal where such matter was not embraced in the motion for new trial, and no objection was made when the evidence of such payment of taxes was introduced.</p> <p>5. Costs of Nominal Party.</p> <p>Where the trustee of a mortgage is made a nominal party to the suit, the costs incurred as to him are properly taxed against the defendants in a judgment foreclosing the mortgage.</p> <p>6. Suretyship — Extension of Time.</p> <p>Where it is not shown upon the face of a note and is not known to the payee that a joint maker thereof is surety to the other maker, the surety will not be released by an extension of time granted to the principal.</p>

<p>1. Survey of Public Land — Return of Field Notes to General Land office.</p> <p>The provision of the Revised Statutes (art. 3909) requiring that the field notes of a survey of public land shall be filed in the general land office within twelve months from the date of the survey, does not declare the location void for failure of such filing within that time.</p> <p>2. Same — Irregularities—Estoppel.</p> <p>Where appellant by its acts and representations caused appellee and his vendor to locate a certificate upon certain land as being vacant public domain, and, to obtain patent thereon, it cannot, upon discovering that the land is part of one of its own surveys, avoid the effect of estoppel by setting up mere irregularities in the proceedings leading up to appellee’s patent.</p>

<p>Appeal from Uvalde. Tried below before Hon. Eugene Archer.</p>

<p>1. Land Certificate — Inheritance Where Grant is Based on Mexican Law-Aliens.</p> <p>W. removed from the United States to Texas, then a part of Mexico, in 1831, and died here in 1834. After Texas became a Republic, it issued, on the application of her administrator, a certificate to lands which were patented in her name in. 1841. Held, that in the absence of proof to the contrary, it will be presumed that the certificate issued by virtue of the right thereto which W. had acquired under the Mexican colonization law, and that her heirship, as to the land, was to be determined by the laws anterior to the Constitution of the Republic, under which aliens could not inherit.</p> <p>2. Descent — Citizenship of Mexico — Evidence Insufficient.</p> <p>Evidence that one born in the United States of parents who were citizens thereof came to Texas, then a part of Mexico, with his widowed mother in 1831, left Texas in 1835, was married in Louisiana, and again lived in Texas in 1859 to 1863, does not show that he acquired citizenship in Mexico, and was not as to the Mexican law an alien at the date of his mother’s death in 1834.</p>

<p>Appeal from Bexar. Tried below before Hon. S. G. Newton.</p>

<p>1. Assignment of Error Variant from Bill of Exceptions.</p> <p>Where an assignment of error was based on the refusal of the court, on an issue of negligence in running trains at an unlawful rate of speed, thus causing sparks of fire to ignite plaintiff’s cotton, to admit testimony showing that defendant’s trains, “at or about the time of the fire,” ran into the city past the place where the cotton was situated, at a rate of speed forbidden by the city ordinances, but the bill of exceptions showed that such testimony was to the effect that trains, “before and after” the fire, were “in the habit of running into the city,” past where the cotton was located, at such unlawful speed, the assignment can not be sustained under the bill of exceptions.</p> <p>2. Railway Company — Evidence—Fires.</p> <p>In an action against a railway company -for losses by fire caused by one of its engines, evidence is admissible to show that its trains were usually run past the place where the fire began at an unlawful rate of speed.</p> <p>3. Same.</p> <p>Upon an issue as to whether the owner of cotton destroyed by fire from defendant’s engines was negligent in placing the cotton near the railroad track, evidence is admissible to show that defendant’s trains frequently passed cotton in open cars near the track without setting fire thereto.</p> <p>4. Same — Unlawful Rate of Speed.</p> <p>That an engine was being run at an unlawful rate of speed at the time it started a fire, will not- render the railway company liable for the loss caused by the fire unless it is shown that, but for such unlawful speed, the fire would not have occurred.</p> <p>5. Contributory Negligence Absolutely Bars Recovery,</p> <p>Where plaintiff has been guilty of contributory negligence he can not recover, no matter how negligent the defendant may have been.</p> <p>6. Same — Charge of Court on Weight of Evidence.</p> <p>A charge of court which assumes that certain facts in evidence, if proved, will constitute contributory negligence, is on the weight of the evidence.</p>

<p>1. Mechanic’s Lien — Demurrer to Petition — Allegations of Answer.</p> <p>Plaintiff sued to enforce a mechanic’s lien which attached under a contract made with one C., since deceased, while C. owned the land. Plaintiff demurred to the petition, on the ground that it failed to show why the personal representatives or heirs of C. were not necessary parties. The averments of defendant’s answer showed that neither the estate of C. nor his heirs had any interest in the suit, the interest of C. in the property having been sold out under a deed of trust. Held, that such averments in the answer could properly be considered by the court in passing upon the demurrer, as supplying the want of such allegations in plaintiff’s petition, and that the demurrer was properly overruled.</p> <p>2. Same — Owner of Land Subject to Vendor’s Lien.</p> <p>A vendee of real estate, where part of the purchase money is unpaid and a lien is expressly reserved to secure its payment, is nevertheless the owner of the land within the meaning of the statute (art. 3164, 2 Sayles’ Civ. Stat.), and as stich owner is authorized to make a contract fixing a mechanic’s lien on the land.</p> <p>"3. Same — Pleading—Proof Admissible Under General Denial.</p> <p>In an action to enforce a mechanic’s lien in which no personal judgment is sought, the defendant may under the general denial show that the land was the business homestead of a married man, and that the lien was invalid because the •contract under which it is claimed was not executed by the wife.</p> <p>4. Same — Waiver of Lien and Estoppel to be Pleaded in Replication.</p> <p>Where the defendant in a suit to enforce a mechanic’s lien sets up a prior mortgage lien on the property, a waiver of such prior lien or estoppel to claim it, in order to be available to plaintiff, must be specially pleaded by him in reply.</p> <p>5. Same — Priority of Lien — Waiver and Estoppel.</p> <p>Where a mortgagee of land assents to the erection of a building thereon, and tells the contractor to proceed with the work, this does not of itself constitute a waiver of the priority of the mortgage lien, nor estop the owner of it from claiming that it is superior to the mechanic’s lien of the builder.</p>

<p>1. Parol Evidence to Vary Written Instrument.</p> <p>Where a written instrument accompanying a deposit in a bank does not undertake to state the terms of the contract under which the deposit was made, the entire contract, though verbal, may be alleged and proven.</p> <p>2. Cloud Upon Title — Withholding Purchase Money.</p> <p>Where a vendee of land has been forced to pay out money to satisfy an incumbrance thereon, he may recover back such money from the vendor, but he cannot hold the land and, on account of mere cloud on his title, recover back as damages a part of the purchase money paid, although it had been agreed that such part was not to have been paid until the cloud was removed.</p> <p>3. Same — Levy Upon Wife’s Property Creates a Cloud, When.</p> <p>The levy of an execution against the husband upon lands not occupied as the homestead, the title to which stands in the name of the wife by a deed which does not recite that it is her separate property, creates a cloud on her title thereto, because of the presumption that the land is community property,</p> <p>4. Same — Deposit of Purchase Money — Adjustment of Equities as to Title —Jurisdiction of County Court.</p> <p>Where a vendee of land has deposited a part of the purchase money in bank, to be paid over when a cloud on the title has been removed, if, at the date of judgment in an action brought by the vendor for such deposit, the cloud no longer exists, plaintiff is entitled to recover the deposit; but if such cloud still exists, the money should remain in the bank until the equities between the parties are adjudicated; and the County Court has not jurisdiction to determine the real eondition of the title and settle the equities arising thereon.</p>

<p>1. Appeal Bond — Date Prior to Judgment.</p> <p>An appeal bond duly filed and approved by the justice of the peace after the judgment appealed from, is not vitiated by the fact that it bears a date prior to the judgment.</p> <p>2. Same — Amended by Adding Sureties.</p> <p>Where, on appeal from the Justice Court to the District Court, the appeal bond is defective in having but one competent surety, such delect may be cured in the latter court by adding additional sureties.</p> <p>3. Same — Surety Competent, When.</p> <p>Where the principal in a claim bond appeals from the judgment in tlje claim proceeding, this does not render a surety on the claim bond a party to the appeal, nor disqualify him from being a surety on the appeal bond.</p>

<p>Homestead — Husband’s Adjustment of Liens — Joinder of Wife.</p> <p>Where a valid lien exists upon the homestead, the husband has the right to convey the property in settlement of such claim, or to adjust it as he sees proper, without being joined by his wife in such settlement, provided the transaction is made in good faith to protect the homestead.</p>

<p>Appeal from Dallas. Tried below before Hon. Edward Gray.</p>

<p>1. Limitation of Five Tears — Adverse Possession by Enclosure.</p> <p>Defendant’s possession of the land was by its enclosure in a pasture of about five thousand acres, in which there were other tracts owned by other parties, who in conjunction with defendant controlled the pasture and kept its gates. Held, a sufficient possession under the five years’ statute of limitation.</p> <p>2. Same.</p> <p>It was not necessary for defendant, in order to sustain his plea of five years’ limitation, to show payment of taxes on or deed for any other of the tracts enclosed in the pasture.</p> <p>3. Same — Possession of Part Extending to the Whole Tract.</p> <p>Defendant’s possession by enclosure of a part of the tract conveyed by the recorded deed under which he claimed extended by construction to the limits of the entire tract as defined in the deed.</p> <p>4. Same.</p> <p>The fact that in defendant’s chain of title back of the deeds under which the five years' possession was held, there was a void administrator’s deed, could not defeat his plea of five years’ limitation.</p> <p>5. Practice — Waiver of Objections to Deed.</p> <p>Where a deed by a guardian is offered for the purpose of showing that title passed thereby, but the authority of the guardian to execute it is not shown, and counsel for the opposite party withdraws his objection that such authority is not shown, he cannot afterwards claim that the deed does not pass the title for want of such authority.</p>

<p>Appeal from County Court of Grimes. Tried below before Hon. J. G. McDonald, Jr.</p>

<p>Contract Construed — Performance.</p> <p>Plaintiff’s contract with defendant was that he would sink a well on defendant’s land which would furnish sufficient water for defendant’s stock, but it contained no stipulation as to the quality of the water, and the fact that the water proved not suitable for the stock to drink could not defeat plaintiff’s recovery, where the agreed quantity had been furnished.</p>

<p>1. Receivers — Contracts of Employment by, Continue Subject to Control of Court.</p> <p>It is in the power of a court having charge of a receivership to cause retrenchments and changes of management, and even a closing up of the receivership, to be made at any time, and the exercise of this discretion can not be hampered by contracts of receivers extending employment in their service for stated periods.</p> <p>2. Same — Claims for Services Under — Approval of Court.</p> <p>Where an attorney employed as counsel by the receivers of a railway company, at a stated annual salary, seeks in another court, after the termination of the receivership, to enforce against the corporate property a claim for balance of salary under the contract, as to the payment of which the receivers did not agree, he must show that such debt was authorized or was approved by the court having charge of the receivership, and the fact of prior monthly payments of salary by the receivers is not sufficient.</p>

<p>1. Mandamus — Illegal Ouster from Office.</p> <p>Mandamus is a proper remedy to restore a person to an office from which he has been illegally ousted.</p> <p>2. Same — Will Not Lie, When — Want of Jurisdiction — Void Judgment.</p> <p>While the writ of mandamus will not lie to revise the judgment of an inferior court or to compel the action of a public officer to whom a discretion is given bylaw in the decision of a question, yet when a court is without jurisdiction of the subject matter, and has no authority to entertain the complaint or cause of action, any judgment it may render, undertaking to adjudge the rights of the parties, will be void and may be collaterally attacked.</p> <p>3. Same — Will Lie to Bestore Officer, When — City Council — Jurisdiction.</p> <p>If a city council having authority under the city’s charter to try and to remove an officer of the city for causes named in the charter exceeds its authority and removes such officer for a cause not mentioned therein, such action would be without jurisdiction and mandamus would lie to restore him.</p> <p>4. Malconduct in Office — Assault Does Not Constitute, When.</p> <p>Malconduct in office means official misconduct, and does not include an assault committed by an officer not connected with such officer’s official duties.</p>

<p>1. Plea of Privilege — Place of Performance — Draft.</p> <p>A draft drawn upon, a Galveston firm and made “returnable In Galveston” shows upon its face a contract to be performed in Galveston County.</p> <p>2. Venue — Plea as to — When Not Applicable.</p> <p>Where there was no denial in the answer that the defendant signed the instrument sued upon, which upon its face imported a contract to be performed in the county where suit was brought, a plea to the venue was not applicable.</p>

<p>1. Injunction — Streets of a City — Alteration in — Power of City Council Over.</p> <p>Article 375 of the Revised Statutes gives the city council of a city organized under the general laws of the state exclusive control and power over the streets, alleys, public grounds and highways of the city; and to authorize an injunction restrain! ing the council of a city in the exercise of this power, the complainant must Show himself injured by the impairment or deprivation of some vested right.</p> <p>2. Same — Petition for Insufficient, When.</p> <p>A petition for injunction to restrain the city council from altering or changing the course of a certain street was insufficient which did not show that any of the complainants were abutters upon the street which was. the subject of controversy. or that any of them were deprived of Ingress to, or egress from, their property.</p> <p>3. Alteration of Street — Action for Hot Maintainable, When.</p> <p>That a portion of the public is inconvenienced by an alteration in a public highway, gives no right of action to those so inconvenienced against those making the alteration, when it is made by authority of the law.</p>

<p>Order of Sale — Execution of by Constable — Sale of Land.</p> <p>A constable may execute an order of sale issued from the District Court upon a judgment foreclosing a lien on land, and a sale made by him thereunder is not irregular, even though the sheriff was competent to act.</p>

<p>Appeal from Houston. Tried below before Hon. J. R. Burnett.</p>

<p>1. Railway Company — Trespasser Riding on Engine Not a Passenger.</p> <p>The rules of a railway company prohibited third persons from riding on Its engines, and its employes in charge had no authority to permit them so to do. W, while taking a free ride upon a switch engine, with the assent or knowledge of the employes in charge thereof, but knowing it to be an engine not intended for carrying passengers, was injured by a derailment of the engine. Held, that the company was not liable to him as a passenger for the injuries.</p> <p>2. Same — Contributory Negligence — Ordinary Care Towards Trespasser.</p> <p>One who, without authority from the railway company, rides upon the foot-board of a switch engine not in good condition, and not used for carrying passengers, is guilty of contributory negligence which will preclude him from recovering for injuries resulting from the engineer running the engine at a dangerous rate of speed, whether such conduct of the engineer was only want of ordinary care, or was gross negligence, but without willful purpose to injure.</p>

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

<p>Contract of Sale — Acceptance of Order — Delivery—Rescission.</p> <p>To an agent of plaintiff defendant gave an order for a buggy on a printed form from which a stipulation that the purchaser should give a note secured by chattel mortgage had been stricken out with the consent of the agent, and an agreement inserted that defendant should give his note payable in four months. Upon receipt of the order plaintiff approved it and unconditionally shipped the buggy to defendant, notifying him of the shipment and sending a blank note containing a chattel mortgage. This note defendant refused to sign, and plaintiff thereupon wrote him that the clause stipulating for a chattel mortgage had been left in the note by mistake, and enclosed a plain note for his signature. Defendant refused also to sign the latter note or to take -the buggy when unconditionally tendered, claiming that his offer had not been accepted and that the demand for a mortgage was a repudiation of it. Held, that the acceptance of the order and shipment of the buggy completed the contract, and the title to the buggy passed; that the giving of the note was a condition subsequent, and defendant was not entitled to rescind the contract.</p>

<p>Appeal from Victoria. Tried below before Hon. S. F. Grimes.</p>

<p>1. Negligence — Fellow Servants — Contributory Negligence.</p> <p>Where defendant’s failure to exercise proper care to see that the headlight upon its engine was in good condition was one of the causes contributing to the death of an employe, defendant would be liable, even though it were true that the negligence of fellow-servants of deceased also contributed to his death. The fact that the negligence of a fellow-servant merely contributed to the injury does not relieve the company, if its own negligence or that of its employes who were not fellow-servants with the injured person also contributed to it.</p> <p>3. Fellow Servant’s Act — Who are Not Fellow Servants — Engineer—Yard Employes.</p> <p>Under our fellow-servants act (1893) employes, in order to be fellow-servants, must be in the common service, in the same department, of the same grade, working together at the same time and place, and to a common purpose. Therefore an engineer who receives his orders from the trainmaster is not a fellow-servant with employes working in the yard, unless in the performance of his duty he becomes temporarily subject, while operating in the yards, to the supervision of the yard foreman. Then he might be considered for the time a fellow-servant with the others, subject to the same authority, but not with the foreman himself.</p> <p>3. Fellow Servants — Instruction as to — Engineer—Yard Master.</p> <p>Where there was evidence tending to show that engineers while in the yard were subject to the control of the yardmaster, it was not improper for the court to instruct the jury that even in that view an engineer and yardmaster were not fellow-servants.</p> <p>4. Same — Harmless Error.</p> <p>If none of the employes in the yard were fellow-servants of deceased, then even if the court committed error in defining those who might be fellow-servants it would be immaterial.</p> <p>5. Special Charge — Refusal of Proper, When.</p> <p>A special charge was properly refused where 'the substance of it had been given in the general charge and other special instructions.</p> <p>6. Evidence, Sufficiency of — Negligence.</p> <p>Where the evidence showed that the switch engine had a defective headlight, and that the road engineer was unable to see it on the main track, and the yard foreman and employes failed to notify him of its presence, which caused him to collide his engine with it, resulting in his death, the company would be liable.</p> <p>7. Verdict Not Excessive, When.</p> <p>A verdict against defendant for $16,000 for causing the death of an employe, though more than the court would have allowed if trying the case, is not so clearly excessive as to authorize its reversal.</p>

<p>1. Railway Company — Injury to Child in Yard — Permission or Invitation.</p> <p>In an action against a railway company for injury to a child of ten years while playing on cars in its yard, the petition alleged that defendant had for a long time allowed children to play in its yard, and that its yard and cars were attractive to children, and that plaintiff, the child, had previously played there without objection, and that defendant’s foreman saw plaintiff there just before the accident. The court charged, in effect, that a railway company in operating its cars is bound to use ordinary care to avoid injuring a person on its premises by its permission or invitation. Held, that the charge was warranted both upon the issue of permission and of invitation, since under such facts an invitation is implied.</p> <p>2. Same — Degree of Care — Notice.</p> <p>An instruction charging, in effect, that a railway company owes no duty to a child of tender years on its premises without permission, till his danger is known to it, and not then unless it has notice of his incapacity to care for his safety, but that with such notice the defendant company must use ordinary care to avoid-injuring the child, is one of which the defendant company can not complain.</p> <p>3. Same — Pleading—Allegation Sufficient on General Demurrer.</p> <p>Where the petition alleged that plaintiff was an Immature child of ten years, and that defendant’s agents saw his danger in time to have avoided the injury, this was sufficient on general demurrer to charge that defendant’s agents knew of plaintiff’s incapacity to take care of himself.</p> <p>4. Same — City Ordinance — Kinging Bell.</p> <p>The city ordinance of Fort Worth requiring the ringing of the bell in the running of locomotives within the corporate limits, is a valid exercise of municipal power under its charter; and if it is unreasonable as applied to a given state of case, such as the movement of engines in a railroad yard, this should be shown by allegation and proof.</p> <p>5. Same — Negligence.</p> <p>The violation of a valid city ordinance from which injury proximately results to a third person, is negligence per se.</p>

<p>Appeal from Parker. Tried below before Hon. J. W.-Patterson.</p>

<p>Witness — Impeaching Credibility.</p> <p>It is permissible, upon, cross-examination of a witness, and for the purpose of impeaching his credibility, to show that he has been indicted and prosecuted for perjury and other crimes, but such prosecutions, after a lapse of ten years or more, it seems, would be too remote.</p>

<p>1. Common Carrier — Interstate Shipment — Contract Limiting Time for Bringing Suit.</p> <p>The act of March 4, 1891, forbidding the making of any contract limiting the time in which suit may be brought to less than two years, is not a regulation of interstate commerce, and is binding in. the case of a contract for an interstate shipment. Following Railway v. Eddins, 7 Tex. Civ. App., 116.</p> <p>2. Same — Market Value at Point of Destination.</p> <p>Where in a suit against a railway company for damages to a shipment of horses, it appears that their destination as the place of sale was within the contemplation of the parties at the time the contract of shipment was made, it is proper to consider, in measuring the damages, their market value at such place at the time and in the condition in which they arrived there, and their market value there if they had arrived in proper time and in good condition.</p> <p>3. Same — Proof of Market Value.</p> <p>Evidence of the price actually received for horses at a certain place is admissible as tending to corroborate other evidence of the market value of such horses at that place.</p>

<p>1. Appeal from Justice to County Court — Pleading New Matter.</p> <p>Upon an appeal from the Justice Court to the County Court, in an action to recover on a written contract for pasturing cattle, the defendant cannot set up a claim of damages for breach of such contract by plaintiff and an oral agreement by plaintiff that if he violated the written contract' he would forfeit his right to collect for pasturage, where such matters of defense were not pleaded nor relied on in the Justice Court.</p> <p>2. Contract — Place of Performance.</p> <p>Defendant made a written contract with plaintiff for pasturing certain cattle in the pasture of plaintiff, situated in S. County, the contract providing that one-half the price should “be paid when the cattle are put in said pasture, and the other half when they are taken.out.” Held, that this was not an agreement that the money should be paid in S. County, and defendant when sued there had the right to plead his privilege to be sued in the county of his residence.</p> <p>3. Plea in Abatement — Sufficiency—Negativing Exceptions.</p> <p>In an action brought in S. County upon a written contract to pay for the pasturage of cattle, defendant pleaded in abatement that he resided in it. County and that the contract sued on did not stipulate for payment in S. County. Held, that such plea was sufficient, without negativing other exceptions, which in a different state of case might authorize a defendant to be sued out of the county of his residence.</p> <p>4. Contract for Payment of Money — Measure of Damages.</p> <p>Where a contract provides for the payment of money for pasturing cattle at a stipulated price, damages for breach of the contract by reason of failure to pay must be limited to the amount due under the contract, with legal interest, and •cannot include damages arising from the failure to pay.</p>

<p>Practice on Appeal — Garnishment—Issue Not Made Below.</p> <p>Where on appeal in a garnishment proceeding- the record shows that the affidavit controverting the answer of the garnishee tendered several issues of law and fact, and was met with a replication, it will be presumed, nothing further appearing, that the issues so tendered and joined were the only ones made, and the finding of the trial court on an issue not included therein must be ignored.</p>

<p>Appeal from the County Court of Cooke. Tried below before Hon. J. E. Hayworth.</p>

<p>1. Railway Company — Carrying Passenger Beyond Destination — Promise of Conductor.</p> <p>A conductor’s promise to notify a passenger of the arrival of the train at the station where the passenger is to alight is ordinarily a mere personal undertaking, beyond the scope of the conductor’s duty, and not binding on the railway company where the arrival of the train at such station is properly announced in the usual and regular manner; but circumstances involving the age, sex or physical infirmity of the passenger, afford exceptions to the. rule.</p> <p>3. Same — Case Stated.</p> <p>Where plaintiff’s wife, traveling with a sick child that required her constant attention, was promised by the conductor that he would personally notify her of the arrival of his train at her destination, such promise was within the apparent scope of his authority and binding on the company, if the conductor knew at the time of the child’s condition.</p> <p>3. Same — Damages Too Remote.</p> <p>Where plaintiff’s wife, having with her a sick child, was carried by the defendant company beyond the place where she was to leave the car and take another lihe of railroad, the facts, that she was to be met at a station on such other road by her father, and thence carried to her sister’s in the country, where her child would receive medical treatment, and that because of defendant’s failure to put her off at the proper place, she suffered mental anguish and was deprived for part of a day of medical attention to the child, are not proper elements of damage, where it is not alleged or proved that the defendant company had knowledge of these facts.</p>

<p>1. Appeal from Justice Court — Amount of Appeal Bond — Costs Included.</p> <p>In an appeal from the Justice Court, the appeal bond must be in double the amount of the judgment, inclusive of costs, since such costs properly form a part of the judgment. Colorado County v. Delaney, 54 Texas, 280, not followed.</p> <p>2. Same — Practice—Dismissal of Appeal.</p> <p>Where the transcript on appeal from the Justice Court to the County Court was filed after the first day of the term, it was proper for the County Court at any time thereafter, upon notice to the opposite party, to dismiss the appeal for want of jurisdiction, without waiting until the term at which the case could be tried.</p>

<p>1. Pleading — Negligence.</p> <p>In an action against a railway company by a brakeman for injuries received in-coupling cars, it is not improper for the petition to state the facts and the surroundings of the accident fully, and to allege facts and defects not in themselves actionable as the proximate cause of the injury, where this is necessary to sliow that the injury was the result of defendant’s negligence.</p> <p>2. Charge of Court — Omission—Requesting Instruction.</p> <p>Where the charge of court covered every material issue, a failure in the preliminary part to fully state the issues is not reversible error, if no instruction was requested for the correction of such omission.</p> <p>3. Same — Negligence—Approved Charge.</p> <p>For an approved charge of court (given in full) in an action against a railway company by a brakeman for injuries received in coupling cars by reason of a defect in the roadbed, and involving the rules of law as to negligence and contributory negligence, see the opinion.</p> <p>4. Same — Ordinary Care — Safe Approaches.</p> <p>A charge that the defendant company would be liable for negligence if it “failed to use ordinary and reasonable care and diligence in providing a safe approach to the cars where the accident is alleged to have happened, and the injury complained of was the direct and proximate co-operating result of such want of care,’’ held, to be correct.</p> <p>5. Verdict Not Excessive.</p> <p>A verdict in favor of a railroad brakeman for $9119 for loss of an arm in coupling cars, he being 35 years old, and earning $55 a month, held not excessive.</p> <p>6. Verdict — Specifications—Uncertainty.</p> <p>A verdict in favor of plaintiff, assessing his damages at $9119, “including medical-attention and other incidental expenses incurred by him since the date of the injury,” is not subject to the objection that it is indefinite and uncertain as not showing what is meant by “other incidental expenses,” where the petition, the charge of court and the evidence authorized a finding for expenses for medicines as well as for medical attention, since it will not be presumed that the jury went outside of the evidence for items of damage.</p>

<p>1. Action for Fraud — Allegation Showing Only Breach of Contract.</p> <p>An allegation that defendant, by its agent, agreed to send plaintiff a life insurance policy stipulating that the premiums thereon should be paid semi-annually, and that the policy delivered provided that the premiums should be paid annually, does not charge fraud, but only a breach of contract.</p> <p>2. Rescission of Contract — Life Insurance.</p> <p>Plaintiff, upon receiving from the defendant insurance company a policy on his life, providing that the premiums thereon should be paid annually, instead of semi-annually, as stipulated in his application therefor, wrote defendant’s agent offering to surrender the policy upon a return of his two negotiable notes given for the first year’s premiums, but did not object to the policy on the ground that the premiums were payable annually, and did not return the policy, but kept it, and allowed it to lapse for non-payment. Held, that there was not a rescission of the contract warranting a recovery by plaintiff of the amount of the two premium notes which, having been. negotiated by defendant, plaintiff had been compelled to pay.</p>

<p>1. Married Woman — Liability on Contract — Separation from Husband.</p> <p>The power of a married woman living separate from her husband to bind herself by contract does not depend on whether or not she was to blame for the separation.</p> <p>2. Same — Insufficient Proof of Abandonment.</p> <p>Evidence that a wife for over two years lived and kept a boarding house .in a town other than where the husband resided, during which time they occasionally visited each other, exchanged letters, and were on friendly terms, does not show such a permanent separation and abandonment by the husband as would empower the wife to bind herself by contract as a feme sole.</p>

<p>1. Telegraph Company — Liability—Cipher Message.</p> <p>The rule quoted in Daniel v. Telegraph Company, 61 Texas, 457, that where the import of a telegraphic message is wholly unknown to the company’s agent to whom it is delivered for transmission, the sender, upon a breach of the contract to transmit and deliver, can recover only nominal damages, or the amount paid for sending the message, does not apply when from the face of the telegram, or from information derived from any other source, the agent receiving the message has notice that it relates to a matter of business and is of importance.</p> <p>2. Same — Case Stated.</p> <p>’ For facts and circumstances held sufficient to charge a telegraph company with notice of the business character and importance of a message partly in cipher, sent by a cotton buyer, and containing an order for the purchase of cotton, see the opinion.</p> <p>3. Same — Negligence—Unrepeated Message.</p> <p>Where a telegraph company is guilty of negligence in wholly failing to deliver a telegram, it is not protected from liability by the stipulation requiring the message to be repeated.</p> <p>4. Same — Damages—Prospective Profits.</p> <p>Negligence in failing to deliver a telegram containing an offer to purchase cotton will render the telegraph company liable for the loss of prospective profits where it is shown that if plaintiffs had received the message they would have accepted the offer, and would have bought and shipped the cotton at a less price than that offered.</p>

<p>1. Negligence — Damages—Water Works Company.</p> <p>A water works company is liable for damages proximately resulting .from its negligence in the erection upon its own land of a defective water tower, the fall -of which occasions injury to adjoining owners.</p> <p>2. Death by Wrongful Act — Corporation Liable.</p> <p>Under the statute authorizing actions for the death of a person by the wrongful act of another (Rev. Stats. Art. 2899) a corporation is liable, and is to be regarded as a person within the meaning of that law.</p> <p>3. Pleading — Contributory Negligence.</p> <p>An allegation that by the fall of a water tower at 3 o’clock a. m., the house of deceased was crushed and overturned, and a lighted lamp thrown on him, setting lire to his clothes, does not show contributory negligence on the part of deceased in permitting a burning lamp to remain over him.</p> <p>•4. Damages — Negligence—Proximate Result.</p> <p>Where, through defendant’s negligence in the construction of its water tower, the tower falls and overturns a lighted lamp, and the explosion of the lamp results in fatal injury, the damages occasioned thereby proximately result from the negligent construction of the tower, arid are not too remote for recovery against the defendant.</p> <p>5. Pleading — Damages—Special Exception.</p> <p>In an action by the surviving wife and children for the death of the husband, allegations in the petition of the ill-health of the wife, the poverty of the family, and their difficulty in obtaining a poor support, should be stricken out on special ■exception.</p>

<p>Appeal from McLennan. Tried below before Hon. L. W. Goodrich.</p>

<p>1. Motion for New Trial — Excessive Verdict — Specific Objection Bequired.</p> <p>Objection to the verdict upon the ground that it is excessive in amount must be specifically called to the attention of the trial court by a motion for new trial, and averments that the verdict is not supported by the evidence, or is contrary to the evidence, are too general.</p> <p>2. Measure of Damages — Injury to Cattle.</p> <p>In an action for injury to cattle during transportation by rail the measure of damages is the difference in value in their condition as delivered, and in the condition in which they should have been delivered.</p>

<p>County Boundaries — Commissioner of General Land Office — Conflict of Statutes.</p> <p>The act of April 22, 1879 (page 137), giving to the County Court jurisdiction to determine county boundary lines, was not repealed by section 20 of the final title of the Revised Statutes of 1879 nor by articles 6S6 et seq. of such Revised Statutes, giving such jurisdiction to the Commissioners Court; and hence a disagreement between the surveyors appointed by the Commissioners Court in 1881 to locate a county line did not confer authority upon the Commissioner of the General Land Office to order the survey and determination of such disputed line.</p>

<p>Appeal from Travis. Tried below before Hon. James H. Robertson.</p>

<p>Error from San Saba. Tried below before Hon. W. M. Allison.</p>

<p>1. Deed — Parol Evidence Varying Consideration.</p> <p>Where a deed is absolute in terms and recites a consideration paid in cash, paroi evidence cannot, in an action to cancel the deed, be admitted to show that the real and only consideration was a promise and agreement by the grantee that he would care for and support the grantors (his parents) in their old age, should their necessity so require, and that his subsequent death had made compliance with the agreement impossible.</p> <p>2. Same — Condition Subsequent.</p> <p>In the absence of fraud or mistake, paroi evidence is not admissible to convert a deed absolute in form and legal effect into one resting upon and dependent on conditions subsequent, thereby changing the character of the estate conveyed.</p> <p>3. Community Property — Onerous Consideration.</p> <p>Where a deed is made to the husband during coverture upon the consideration that he will support the grantors in their old age, the title of the land conveyed vests as community property of -the husband and wife.</p>

<p>Appeal from Bexar. Tried below before Hon. S. G. Newton.</p>

<p>Appeal from Guadalupe. Tried below before Hon. Thomas H. Spooner.</p>

<p>1. Statute of Three Years’ Limitation — Color of Title.</p> <p>A deed made by one who before executing it has conveyed the land to another, does not connect such latter vendee with the sovereignty of the soil, and therefore will not support the statute of three years’ limitation,</p> <p>2. Legal Title — Deed Before Issuance of Patent.</p> <p>One who claims under a valid locatiori and survey of a land certificate, has the legal title as distinguished from an equitable right, and his deed of the land will convey the legal title, although made before issuance of the patent.</p> <p>3. Innocent Purchaser — Proof of Want of Notice and Payment of Value. A junior purchaser seeking to postpone a prior legal title upon the ground that</p> <p>he has acquired a subsequent claim for value and without notice, has the burden of establishing both these facts by evidence outside of the recitals in his deed.</p> <p>4. Same — Presumption as to Notice.</p> <p>Where such junior purchaser is shown to be dead at the time that claim under him is asserted, it may be presumed that he bought without notice, but not that he paid value for the land.</p> <p>5. Pleading — Plea of Improvements — Exceptions Necessary.</p> <p>Where defendant’s plea of improvements is defective in not particularly describing the land upon which the improvements are made, and plaintiff fails to except to the plea for want of sufficient particularity, he cannot avail himself of such defect by objections to the testimony offered in support of the plea.</p> <p>6. Evidence of Value — Opinion.</p> <p>Where a witness is shown to be familiar with the locality of the land and qualified to give an opinion as to its rental value, such opinion is admissible, although the witness cannot state the value absolutely.</p>

<p>1. Municipal Corporation — Creation of Debt — Limitation of Power.</p> <p>A municipal corporation entered into a contract whereby it executed its notes payable annually for ten years, and bearing interest, in payment for the construction of garbage furnaces, but made no provision at the time to collect annually a sufficient sum to pay the interest thereon and to create a sinking fund of at least two per cent thereon, as required by sec. 5, art. 11, of the Constitution. Six years previously the corporation had issued and sold bonds for the purpose, amongst others, of erecting such furnaces, but the contract above stated was made without any apparent reference to such bonds or the proceeds received from their sale. Held, that the contract was illegal and void.</p> <p>O. Same — Liability for Benefit Received.</p> <p>A municipal corporation cannot be made liable on the ground of having received the benefit of a contract made by it, where such contract is violative of a constitutional provision.</p> <p>3. Same — Contract by Ordinance.</p> <p>Where the charter of a municipal corporation provides that the city council shall exercise its power over the city finances by ordinance, it cannot by motion and resolution authorize the mayor to enter into a valid contract for the expenditure of a large sum of money evidenced by interest bearing notes of the city and running for ten years.</p> <p>4. Same — Estoppel.</p> <p>The application of the doctrine of estoppel to municipal corporations is confined to cases in which they have the power to contract, but cannot be applied to render valid and binding a contract the corporation was prohibited from making.</p>

<p>1. Insolvent Corporation — Liability After Receivership — Estoppel.</p> <p>Where the property of an insolvent .corporation has been placed in the hands of a receiver and has passed out of such hands back to the corporation, without a sale, the unpaid debts of the corporation follow the property by force of the statute, whether or not such debts have been presented by intervention in the receivership proceedings; and the failure to so present them, or to urge them before the reorganization committee, does not estop the creditors from asserting such debts against the reorganized corporation.</p> <p>2. Same — Receivership as Breach of Contract.</p> <p>Where a railway corporation is a party to an executory contract for the purchase of material for its road, the fact of the subsequent insolvency of such corporation and the placing of its property in the hands of a receiver is not of itself such a breach of the contract on its part as will relieve the other party from the necessity of performing or placing himself in a position to perform before he can claim damages for a breach of the contract.</p> <p>3. Same — Insufficient Evidence.</p> <p>For evidence held insufficient to show that a seller who had contracted to sell and furnish steel rails to a railway corporation, had placed himself in a position to perform the contract, so as to be entitled to recover for the breach thereof, see the opinion.</p> <p>4. Breach of Contract — Measure of Damages.</p> <p>Where, on breach of a contract by the buyer to purchase articles to be manufactured by the seller, the latter uses the material procured to fill the contract in manufacturing other articles which are sold at a profit, in estimating the damages for the breach, such profits are to be deducted from the profits the seller would have realized on the contract.</p>

<p>1. Municipal Corporation — Grading Streets — Taking Gravel.</p> <p>Although the fee to a street may be in the adjoining lot owner, a city grading the street has the right to take from any portion of it the gravel or other material situated above the grade line, and use the same in improving or repairing that or any other of the streets, and without compensation to the owners of the property abutting on the portion of the street from whence the gravel or other material may be taken.</p> <p>2. Same — Damages to Adjoining Lot Caused by Grading.</p> <p>Damages to an abutting lot caused by the grading of an adjacent street by a city are recoverable in this State although no part of such lot be actually taken.</p> <p>3. Same — Pleading—negligence.</p> <p>An allegation that the defendant city unlawfully and negligently caused the gravel to be excavated from said street, and that the excavations were made in such manner as to leave large and dangerous holes in said street several feet deep, which were frequently filled with stagnant water, to the injury of plaintiff’s adjacent lot, sufficiently charges negligence on the part of plaintiff in so doing, without an allegation that such excavations were left there for longer than a reasonable length of time.</p> <p>4. Same — Measure of Damages for Injury to Dot.</p> <p>The measure of damages in the case of injuries to a lot by reason of the grading of an adjacent street, is the difference between the market value of the property immediately before and immediately after the acts causing the injury.</p> <p>5. Same — Speculative Damages.</p> <p>An allegation that by reason of the excavations made on plaintiff’s property and in streets contiguous thereto plaintiff had never been able to find a purchaser therefor, is speculative in its nature, and the injury is too remote to constitute an element of damages.</p> <p>6. Same — Opinion of Witness.</p> <p>In an action against a city for damages to lots caused by the grading of a street, the opinion of a witness that there was no necessity for such grading is not admissible in evidence.</p>

<p>1. Condemnation Proceedings — Acceptance of Award — Waiver of Objections.</p> <p>Where the owner of land taken for railroad purposes accepts the amount awarded in the condemnation proceedings, he waives his right to prosecute objections which he may have filed to the award, and the fact that the railroad company had entered upon the land before the payment or deposit of the award does not affect the question.</p> <p>2. Same — Form of Receipt.</p> <p>Where the amount of the award is brought into court, and the owner's receipt there given and filed as a paper in the cause, the recital therein that the payment was “upon the claim” of the owner for damages, did not establish an agreement that such payment should not affect the owner’s right to a trial of his objections to the award, it not appearing that the receipt was given to or taken by the railway company.</p> <p>3. Same — Judgment Vesting Bight of Way.</p> <p>A judgment vesting an easement “in and to, and over and across, and upon the property in controversy for all necessary railway purposes,” sufficiently adjudges “a right of way” over the premises, but the expression “for all necessary railway purposes” is broader than is authorized by art. 4216 of the Revised Statutes, and in the interest of the owner should be modified so as to limit the exercise of the easement to the purposes defined by said statute.</p>

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

<p>Appeal from Bosque. Tried below before Hon. J. M. Hall.</p>

<p>1. Contributory Negligence Bars Recovery.</p> <p>Where the negligence of plaintiff contributes to the injury, it precludes his right of recovery therefor, irrespective of negligence on the part of the defendant. Following Martin v. Railway, 87 Texas, 117.</p> <p>2. Railway Company — Fires from Engine — Degree of Care.</p> <p>An instruction that a railway company is liable for fires set by its engines, unless it used “the best appliances” to prevent the escape of fire therefrom, is erroneous, as requiring too high a degree of care.</p> <p>3. Same — Charge of Court — Burden of Proof.</p> <p>Where the evidence was conflicting as to whether sparks from defendants’ engines set the fire, it was error to charge that if defendants’ engines caused the fire, the burden would be on it to show that it used proper appliances to prevent the escape of sparks, and operated its trains carefully and prudently.</p>

<p>1. Trespass Upon Realty — Possession of Trespasser.</p> <p>Plaintiff sued for damages for forcible entry upon premises of which she was in possession, and injury to crops thereon. She was herself a trespasser, having put an enclosed field in cultivation without authority from any one, and defendant had afterward leased the land from the owner. Held, that the court was warranted in charging that a forcible entry is an entry by any one on the premises without the consent of the person having the actual possession.</p> <p>2. Same.</p> <p>The premises consisted of two inclosures, a field and an adjoining pasture. Held, that plaintiff’s possession of the field by the cultivation of a crop therein did not constitute a possession of the pasture as against the lessee of the owner.</p> <p>3. Same — Duty as to Fencing.</p> <p>Defendant put cattle into the pasture, notifying plaintiff, whose crops were injured by the cattle crossing the fence separating the pasture from the field. Held, that recovery could not be had for such injury if plaintiff had failed to repair the fence so as to make it a lawful fence.</p>

<p>1. Vendor’s Lien — Priority as Between Notes Given for Same Land.</p> <p>G. held two vendor’s lien notes, given tor the purchase of a tract of land. Upon maturity of the first, it was sent by express to be collected from an endorser. The endorser procured the express agent to transfer the note to B., who paid the amount due on it, G. knowing nothing of such transfer. B. transferred the note to P., who brought suit to enforce its lien, making G. a party and claiming that the two notes were equal liens. Held, that as the express agent had authority only to collect the note, and not to make a transfer of it, which would lessen G.’s security on the other note, the lien of G. on the second note was entitled to priority.</p> <p>2. Attorney’s Fees Computed, How.</p> <p>Where the record on appeal does not show whether the attorney’s fees stipulated for in the note sued on were to be allowed upon the principal and interest, or only upon the principal, it will be assumed that they were properly computed-upon the principal only.</p>

<p>Limitation, of Five Years — Insufficient Deed.</p> <p>Adverse possession of land for five years under recorded deed will not vest title by limitation, where the field notes of the deed do not embrace the land so held, and the further description in the deed, of "all the right, title and interest that 1 may possess under the ten years’ statute of limitation,’’ will not serve to identify the locality and boundaries of the land so claimed.</p>

<p>Appeal from County Court of Fannin. Tried below before Hon. Joseph Q. Chenoweth.</p>

<p>Appeal from Kaufman. Tried below before Hon. J. E. Dillabd.</p>

<p>1. Pleading — Statutory Penalty.</p> <p>In an action to recover a penalty imposed by general statutory law, the statute need not be pleaded.</p> <p>2. Constitutional Law — Excessive Pines.</p> <p>The eighth amendment of the Federal Constitution, prohibiting excessive fines, is a limitation upon the authority of Congress, and has no application to the State governments.</p> <p>3. Public Weighers — Constitutionality of Statute — Penalty Not Limited.</p> <p>The statute providing for public v/eighers (Acts 1879, p. 116) and prohibiting any one other than a public weigher from weighing certain produce under a penalty of not less than five dollars, is not unconstitutional because it fails to fix the maximum amount of the penalty that may be imposed.</p> <p>4. Same — Weighing on Verbal Bequest of Owner.</p> <p>Under the amendatory Act of 1883, the owner of the produce mentioned may, where he is personally present, lawfully have it weighed upon verbal authority by one not a public weigher, and without the written instructions required by section 8 of the Act of 1879.</p> <p>5. Same — One Action for Several Penalties.</p> <p>Under the Act relating to public weighers, more than one penalty may be- recovered in the same suit.</p>

<p>1. Corporation — Accommodation Indorsement of Negotiable Paper.</p> <p>Sec. 6, art. 12, of the Constitution, providing that “no corporation shall issue stock or bonds except for money paid, labor done or property actually received,” and art. 589 of the Revised Statutes, providing that “no corporation * * * shall employ its stock, means, assets or other property, directly or indirectly, for any other purpose whatever than to accomplish the legitimate objects of its creation,” do not render void the accommodation indorsement by a lumber manufacturing corporation of negotiable paper, in the hands of a holder who acquired it for value, before maturity and without notice.</p> <p>2. Same — Notice.</p> <p>Where negotiable paper was drawn payable to the order of the drawer, and by it indorsed specially to the defendant corporation,' and by defendant indorsed in blank, and cashed by the bank for another, whose indorsement was written above that of defendant, the position of the indorsements was not notice to plaintiff that defendant was an accommodation indorser.</p>

<p>1. Statute of Frauds — Sale of Fixtures.</p> <p>The sale of removable fixtures does not come within the provisions of the statute of frauds requiring that the sale of land shall be evidenced by a memorandum in writing.</p> <p>2. Fixtures Forming Fart of Realty — Sale and Severance.</p> <p>Where the owner of land on which there are fixtures constituting part of the realty sells the fixtures, but there is no actual severance of them from the realty, the sale itself will not convert them into personalty so as to prevent them from passing to a purchaser of the land without notice of such sale.</p> <p>3. Fixtures — Engine and Mill Machinery.</p> <p>A stationary steam engine and boiler used in running a gin and mill, the boiler being cased in by a brick casing extending from the ground below the surface, and which would have to be torn down to remove the boiler, and the engine being bolted by iron bolts to heavy timbers set in the ground, are fixtures forming part of the realty, as also are gin stands fixed in wooden frames, bolted or nailed to the floor of the gin house.</p> <p>4. Same — Notice.</p> <p>A purchaser of land upon which there are fixtures that have already been sold to another, though not severed from the realty, does not by his deed acquire title to the fixtures, if he has actual notice of such sale at the time of his purchase.</p> <p>5. Possession of Tenant as Notice.</p> <p>The possession of land by a tenant and his operation of a gin and mill situated thereon will not operate as constructive notice to a purchaser of the land that such tenant claims certain fixtures forming part of the mill and gin machinery as his own property.</p>

<p>1. Possession oí Land by Tenant as Notice of Title.</p> <p>Plaintiffs’ land was enclosed together with an adjoining survey, belonging to ■another person, and rented to a tenant who lived on such adjoining survey, but cultivated a small field lying across the line of the two tracts, and looked after both tracts, using the remaining lands for pasturage. Held, that such possession was notice of plaintiff’s claim of title to the land.</p> <p>2. Warranty — Contradicting Recital of the Consideration in a Deed.</p> <p>As against his immediate grantee, a warrantor may show that the true consideration paid for the land was less than that recited in the deed, but he will not be permitted to show this as against a remote grantee, purchasing without notice ■of the true consideration.</p>

<p>1. Master and Servant — Defective Apparatus — Negligence.</p> <p>Where a brakeman was injured while uncoupling cars, and the only evidence of a defect in the coupling apparatus was that the coupling pin stuck fast in the drawhead, and it was not shown how long such defect, if any, had existed, or that the railway company knew of it, or by the use of reasonable diligence might have known of it, the court should have charged, in an action for such injury, that there was no sufficient evidence to establish negligence on the part of the defendant company by reason of any defect in the coupling apparatus, or by reason of the pin sticking in the drawhead.</p> <p>2. Same — Assumed Bisk.</p> <p>Where a brakeman and yard switchman has worked nearly two months in the yard of a railway company using unblocked guard rails at its switches there and generally throughout that State, he will be held to have assumed the risks incident to the use of such unblocked guard rails.</p> <p>3. Law of Forum — Action for Personal Injuries.</p> <p>In an action of damages for personal injuries, based on a common law right, and brought in Texas, the domicile of both parties and the place of the injury being in another State, the case must be determined by the rules of the common law as interpreted by the courts of Texas, and not those of such other State.</p> <p>4. Foreign Law — Bequest for Charge.</p> <p>Where the law of another State may be applicable, the court should be requested to charge it, in order that error in failing to so charge may be available on appeal.</p>

<p>Fellow Servants — Railway Company — Statute.</p> <p>Under section 2 of the Fellow Servants Act of 1891, declaring- all persons engaged In the common service of a railway corporation, working together at the same time and place, to a common purpose, of same grade, to be fellow servants, a hostler, whose duty it is to bring the engines into the round house and take them out when again needed, and a boiler washer, whose duty it is to clean the boilers of the engines when so brought in, both being under the employment and control of the round house foreman, and without authority over each other, are fellow servants, and the court should have so charged as matter of law.</p>

<p>1. Master and Servant — Latent Defects in Machinery.</p> <p>A servant is not chargeable with notice oí latent defects in the machinery furnished him merely by reason of the fact that he daily handles the machinery.</p> <p>2. New Trial — Newly Discovered Evidence.</p> <p>A new trial sought on the ground of newly discovered evidence is properly refused where such evidence is merely cumulative and not upon a leading issue, and would not probably change the result.</p> <p>3. Master and Servant — Charge of Court — Weight of Evidence.</p> <p>In an action by the servant against the master for injuries received by reason of -defective appliances, a charge that the servant has the right to presume that the appliances furnished him by the master for use in his employment are reasonably safe, is not on the weight of evidence.</p> <p>4. Same — Defective Appliances — Assumption of Bisk.</p> <p>When the unsafe condition of appliances furnished by the master to the servant is so obvious that a person of ordinary prudence would notice it, the servant, if he uses the appliances, assumes the risk of such condition and can not recover for consequent injury.</p>

<p>Action by Next Friend of Lunatic Without a Guardian.</p> <p>An action in behalf of an adult lunatic or insane person having no guardian may be maintained by next friend, although such person has not been adjudged insane.</p>

<p>1. Jurisdiction Over Non-Resident — Attachment—Citation by Publication.</p> <p>In- an action brought in Justice Court against a non-resident upon an account for money, the defendant was cited by publication, and after the publication was completed, but before the return day of the citation, an attachment was issued and levied on property of the defendant. Held, that the jurisdiction of. the court to render judgment by default and order the property sold was not defeated by the fact that the citation preceded the attachment, and contained no reference thereto, since the statute does not require that the citation shall follow or be contemporaneous with the attachment. Revised Statutes, Arts. 164, 1235.</p> <p>2. Same —■ Justice Court — Foreclosure of Attachment on Land — Execution.</p> <p>In an action against a non-resident by attachment in Justice Court, the judgment was correct under the statute in ordering that the attachment “is in all things sustained, the attached land to be sold under execution,” instead of foreclosing the attachment and directing the issue of an order of sale. Sayles’ Civil Statutes, Art. 180a.</p>

<p>1. Failure of Consideration — Statements and Promises by Trustee of a. Corporation.</p> <p>The failure of an educational corporation to comply with representations and promises individually made by its trustees to one of their number as to the erection of college buildings, by which he was induced to purchase land from the corporation at an enhanced value, constitutes no defense to an action against him on his note given for the land, where the representations were made without fraud and the facts of the situation at the time they were made were equally open to all the trustees, including the defendant.</p> <p>2. Same — Counter-claim—Donation.</p> <p>Nor can the defendant in such action, and because of the failure of the corporation to erect the buildings, plead as a counter-claim against his note for the land a demand for money which he had advanced to the corporation by way of donation to enable it to carry out its plans for the erection of the college building, where no promise was made by the corporation to repay such money.</p> <p>3. Same — Insolvency.</p> <p>The defendant cannot, in an action upon a note given to a corporation, plead failure of consideration through inability of the corporation to perform certain acts by reason of its insolvency, if such insolvency would have been avoided by defendant’s payment of the note.</p> <p>4. Bill of Exceptions — Exclusion of Evidence.</p> <p>The action of the trial court in excluding evidence will not be revised, where the bill of exceptions fails to disclose the ground upon which the evidence was excluded.</p>

<p>Appeal from Justice Court — Joint Judgment — Appeal Bond.</p> <p>From a joint judgment against two or more defendants in an action of debt in the Justice Court, either of them may appeal the case to the County Court, and, unless they are adversely interested, without making the appeal bond payable to the defendant or defendants not so appealing.</p> <p>Only such parties to a judgment as are interested adversely to appellant need be made obligees in an appeal bond. Young v. Russell, 60 Texas, 686; Cason v. Laney, 82 Texas, 317; Cason v. Connor, 83 Texas, 28.</p>

<p>1. Local Option Law — Act of 1887 Construed — County and Precinct Elections. »</p> <p>The amendment to Article 3238 of the Revised Statutes, made by the Act of 1887, p. 98, and providing that where prohibition has been carried at an election ordered for the entire county, no election on that question shall thereafter be ordered in any justice precinct until after prohibition has been defeated for the entire county, applies to a county in which prohibition already then existed, and renders void such an election held for a justice precinct in the county.</p> <p>2. Same — Order Declaring Result of Election.</p> <p>Where the result of. a local option election is against prohibition then in force, the repeal of the prohibition law becomes effective upon an order of the commissioner’s court declaring the result of the election, although such order does not expressly declare an abrogation of the former law, and no publication of the order is made. Revised Statutes, Art. 3233.</p>

<p>1. Equitable Title — Pre-emption Claim not Patented.</p> <p>Under the pre-emption Act o£ February 1, 186‘J, a settler upon 160 acres of vacant public domain, in accordance with the provisions of that Act, made due affidavit of his settlement on the land, had it duly surveyed and the field notes properly recorded in the county and filed in the General Land Office, and with his family continuous!)' resided on the land for more than three years «after his affidavit of settlement, but did not furnish any final proofs of such three years’ occupancy to the General Land Office, and did not obtain patent. Held, that he acquired the equitable title to the land, which was thereafter not subject to location by certificate, and that such title would prevail over that of an adverse claimant under a patent issued upon a location subsequently made by certificate.</p> <p>2. Same — Presumption as to Payments.</p> <p>Where the trial court found with reference .to a pre-emption claimant’s title the facts of due settlement by the claimant, survey of the land, and three years’ occupancy thereof, but there was no finding as to whether the settler paid the taxes from the date of the settlement, or paid to the State the 60 cents per acre due on the land, as required by the law then in force (Act of February 1, I860), and the omission to so find is not complained of by any assignment of error, it will, in the absence of a statement of facts, and in support of the court’s judgment in favor of the settler’s superior equitable title, be presumed that he complied with the* law in the matter of making the required payments.</p> <p>3. Limitation o£ Four Years — Action to Cancel Patent.</p> <p>Under Art. 3207 of the Revised Statutes, providing that “every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued,” the owner of land by a superior equitable title, which authorizes him to recover the land itself, is not entitled to maintain a cross-action to cancel an adverse patent, after the lapse of more than four years from the issuance and record of such patent.</p>

<p>Error from Tarrant. Tried below before Hon. S. P. Greene.</p> <p>Where the tortious act complained of is an infringement on a legal right, damage on account of mental suffering may he recovered, if such damage is the direct, proximate and natural result of the wrong complained of, although there be no physical contact and no other element of actual damage. Larson v. Chase, 50 N. W. Rep., 238; Beach v. Hancock, 27 N. H., 228; Phelps v. Cogswell, 70 Cal., 201; Helderbrand v. McCrum, 101 Ind., 61; Bigaolittle v. Pautel, 134 Mass., 123; Moore v. Thompson, 52 N. W. Rep., 1000; Broome on Com. Law, 417, 453.</p>

<p>Lease — Breach of Condition — Termination at Election of Lessor, Only.</p> <p>Where a lease contract contains a proviso that on nonpayment of rent the term shall cease,, it is only the lessor who has the elective right of determining the lease upon such breach of the contract being made, or he may, at his option, recover the rents stipulated for the unexpired term.</p>

<p>1. Pleading — Answer to Cross-Action — Departure.</p> <p>Plaintiff brought an action against C. upon a note and to foreclose a chattel • mortgage, and had the mortgaged property seized and sold under a writ of sequestration. P., who had been made a party defendant as claiming an interest in the property, filed an answer denying the validity of the mortgage, and setting up a claim through an attachment in another suit by him against C., and a sale thereunder, and praying for the value of the property. Plaintiff answered this by a supplemental petition, alleging his mortgage, averring that P. had by his attachment unlawfully converted the property, and praying judgment for its value. Held, that a demurrer to the supplemental petition on the ground that it was a departure in pleading, and set up a cause of action which could not be joined with the one set up in the petition, was properly overruled.</p> <p>3. Chattel Mortgage — Registration—Deposit With Clerk Sufficient.</p> <p>A chattel mortgage was deposited with the county clerk with instructions to file and register it as a chattel mortgage. He marked it filed and placed it with other chattel mortgages to be entered in its turn upon the chattel mortgage record. Held, that the mortgage was valid as against a creditor of the mortgagor who attached the property three weeks afterwards, and before the instrument had been entered upon the chattel mortgage record.</p> <p>3. Same — Withdrawal of Chattel Mortgage.</p> <p>The fact that a chattel mortgage was temporarily withdrawn from the county clerk’s office by a third person, without the knowledge or consent of the mortgagee, does not invalidate the mortgage as against a creditor of the mortgagor suing out an attachment against the property after the mortgage has been returned to the clerk’s office.</p> <p>4. Same — Conversion—Election of Remedy.</p> <p>Where mortgaged personal property is attached by a creditor of the mortgagor and sold by order of court as perishable property, and the mortgagee intervenes in the suit and obtains a judgment for the proceeds of the sale, he waives his right to sue for a conversion of the property and trespass in its seizure.</p>