Volume 12 — Texas Civil Appeals Reports

This was a suit of trespass to try title, brought by appellant against appellees, in which, after hearing the evidence, the trial court instructed the jury to return a verdict for defendants.

The opinion states the evidence in support of the verdict. The evidence for defendant was as follows: L. W. Cherington, the conductor, testified: that the men were found crouched down upon the rear steps of the sleeper, acting in a suspicious manner, that when accosted and asked what they were doing there, they gave an evasive answer; that when told to get off at the switch, he refused and said he did not have to get off. “When the train stopped to throw the switch he did…

Suit by plaintiff, Zack R. Hall, to recover damages for the killing of his jack through the alleged negligence and carelessness of the defendant, its agents and servants, in running upon and against the same with ■an engine and train.

Plaintiffs in tlieir supplemental petition excepted generally to defendant’s plea in reconvention and cross bill and also specially as follows: 2d. * * * “because it (said cross bill) does not allege with sufficient certainty the facts upon which defendant claims that the lease-therein mentioned was continued in force and has not been determined.’’ 3d. * * * “because so much of said cross bill as seeks 10 recover damages against plaintiffs for unlawfully ejecting defendant…

This suit was commenced by Caldwell, the appellant, in the District: Court of Caldwell County to recover of Lamkin the amount of a promissory note. An attachment was sued out and levied on certain lands in that county as the property of defendant. Johnston and Flournoy, who claimed to own the land levied on through conveyances from Lamkin made after the levy of this attachment, but in satisfaction of mortgages-executed long before, were made parties defendant.

<p>Estates — Appeal—Delay in Prosecuting.</p> <p>In an appeal by administratrix from an order of the County Court allowing a claim transcript was not filed in District Court for more than two years and after a lapse of four terms. Appellant's delay in having it filed was due to delay of the county clerk in making it out and repeated promises to attend to it, which had kept appellant from applying, for mandamus. Held: That the appeal was properly dismissed by reason of the delay of appellant in prosecuting it. It was his duty to see that the clerk performed his duty within a reasonable time. The excuse offered was insufficient. He should have sought a mandamus.</p>

<p>1. Removal of Cause to Federal Court.</p> <p>A defendant railway corporation is not entitled to remove a case from a State ■court to the Federal court upon the ground that the action against it is one arising under the laws of the United States, hy which the charter of such railway company was granted, where it does not appear from the allegations of the plaintiff’s petition that the defendant corporation was chartered by an Act of Congress, or that either party claims any right under the Constitution or laws of the United States, although the fact of such Federal charter be averred in the application for removal.</p> <p>2. Charge of Court — Issue—Evidence Necessary.</p> <p>An issue must be made by the evidence, as well as by the pleading, to authorize its submission to the jury, and where there is no testimony tending to support an allegation upon which a party seeks to recover, a charge which authorizes the jury to find that such allegation is proven is erroneous.</p> <p>■3. Pleading and Proof — Immaterial Variance.</p> <p>Where, in an action against a railway company, under the allegations of plaintiff’s petition, it would make no difference as to defendant’s liability whether the defect which caused the injury was at a point where the railroad crossed the street, as alleged, or not, the failure to prove an averment that it was at such ■point of crossing would not involve a variance.</p>

<p>1. Eire Insurance Policy — Liquidated Demand — Total Loss — Rebuilding Clause.</p> <p>Where an insured house is totally destroyed by fire, a clause in the policy of insurance allowing the company to rebuild, if it so elects, is void because in conflict with article 2971, Sayles’ Civil Statutes, providing that a fire insurance policy, in case of a total loss, shall be a liquidated demand against the company for the full amount thereof, except as to personal property.</p> <p>2. Same — Constitutionality of Statute — Impairing Obligation of Contracts.</p> <p>The statute providing that a fire insurance policy, in case of total loss, shall be a liquidated claim against the company for the full amount thereof, does not impair the obligation of contracts, nor does it deny “the equal protection of the law,” because it does not include in its operation tornado and other insurance-companies.</p> <p>3. Same — Waiver of Proofs of Loss.</p> <p>In case of the total destruction of real property, slighter circumstances will suflice to show a waiver of the proofs of loss than in cases of destruction of personal property.</p>

<p>1. Removal of Cause to Federal Court — Practice on Appeal.</p> <p>The action of the trial court in refusing to order the removal of a case to the Federal Court will not be reviewed on appeal, where the Federal Court had entered an order remanding the. case before the trial below.</p> <p>2. Jurisdiction Over Non-Resident — Demurrer Constitutes Appearance.</p> <p>Upon a counterclaim being filed by the defendant, plaintiff dismissed his petition in order to ask, as a non-resident, for a removal of the case to the Federal Court. After an order by the Federal Court remanding the case, plaintiff demurred to the counterclaim of defendant. Held, that such demurrer constituted an appearance, giving the court jurisdiction over plaintiff, even though the matter set up by the counterclaim was not of such nature as to be a proper set-off against the demand of plaintiff, which had been dismissed.</p> <p>3. Evidence — Admissions in Pleading.</p> <p>Where, in an action against a corporation on a contract alleged to have been entered into by it, the corporation admits in its pleadings that it entered into the contract, a finding to that effect by the trial court will be sustained, although a witness had testified that the corporation was not formed until after the contract was executed.</p>

<p>Attachment Against Claimant — Property In Custodia Legis.</p> <p>Property in the hands of a claimant who has given bond therefor under article 4823 of the Revised Statutes, as re-enacted in 1887, is, pending the claim proceedings,, in custodia legis, in the sense that the claimant’s possession thereof is protected against levies from any source except subsequent writs against the original defendants.</p>

<p>1. Obstructing Water Course — Continuing Injury — Damages Estimated From What Date.</p> <p>Where the injury to land resulting from the erection of a dam by a railway company is permanent and continuous, the damages therefor must he estimated on the market value of the land as at the time the dam was constructed, and not as at the date of trial.</p> <p>2. Same — Limitations Bun From What Date.</p> <p>Where the erection of a dam creates a permanent injury to adjacent land from the time of its construction, limitation in an action for such injury will run from the time when the dam was built.</p> <p>3. Same — Limitations Against Vendee of Bailway Corporation.</p> <p>While an action against the receivers of a railway corporation who subsequently returned the road back to the corporation, is to be regarded as an action against the corporation, so far as the statute of limitations is concerned, where such corporation is afterwards made a party, yet the doctrine will not be extended to apply to a vendee of such corporation subsequently purchasing the road and assuming the liabilities of the vendor corporation and of the receivers.</p> <p>4. Limitations — Burden of Proof — Becord.</p> <p>It devolves upon a defendant pleading limitation to substantiate the plea, and such plea will not be sustained on appeal upon the ground that defendant had not been made a party defendant by amendment until after the action was barred as against it, where the record indicates that such defendant, although misdescribed by name in the amendment, had been duly served through its agent and had answered prior to the bar of the statute.</p>

<p>1. Land Certificate — Recitals in as Proof of Transfer.</p> <p>An' unconditional certificate recited that W. had presented to the Board of Land Commissioners the conditional headright certificate issued to N., with the records of the proof of three years’ residence by N. -, “and the said W. having presented a regular transfer from said N.. dated April 9, 1841, consequently this unconditional certificate is issued to the heirs or legal representatives of N.” Held, that the recitals constituted sufficient proof of the transfer of the conditional certificate from N. to W., and that the patent which issued to the heirs of N„ deceased, their heirs or assigns, inured to the benefit of W. and his assigns.</p> <p>2. Constable’s Deed of Land Certificate — Description—Variance.</p> <p>Where a constable’s deed of an unconditional land certificate identified it correctly by class and number, and as issued by the Board of Land Commissioners, of a given county, a variance therein describing it as issued to the assignee of the original grantee of the conditional certificate, instead of as issued to the heirs and legal representatives of such original grantee, will not vitiate the deed.</p> <p>3. Judgment of Justice of the Peace — Informalities.</p> <p>It has been customary to extend great liberality and indulgence to judgments of justices of the peace, and their intelligibility has usually been the test of their validity.</p>

<p>1. Contract of Sale — Construction.</p> <p>The evidence in an action by the seller for the price of goods sold showed that plain tiff wrote the buyer that his terms were “thirty days net from date of shipment, or a cash discount of five per cent if paid within ten days from date of shipment,” and the buyer replied, “Will accept the cash price of five per cent off,” and the plaintiff thereupon shipped the goods, marking upon the invoice "Terms 5 per cent cash, 10 days.” Held, that it was not optional with the buyer to pay in thirty days from date of shipment, but that payment was due ten days from such date.</p> <p>2. Same — Allowance of Discount.</p> <p>Plaintiff, having sold the goods on ten days time, at a discount of five per cent, and having sued on such contract for the purchase money, must allow such discount, although the payment was not made within the ten days.</p>

<p>1. Deed of Married Woman — Proof of Execution upon Affidavit of Forgery.</p> <p>A deed executed in 1S49 by a married woman and her husband, when offered in evidence, was attacked by affidavit as a iorgery. There was endorsed thereon a certificate in due form of the separate acknowledgment of the wife taken before a notary, but the seal of the notary had become obliterated, except some particles of red wax adhering at the place where the seal is usually affixed. Held, that the deed was properly admitted in evidence, together with all the facts and circumstances attendant upon and surrounding its execution, and that it was properly left for the jury to determine whether or not its execution was proved.</p> <p>2. Same — Proof of Notarial Character.</p> <p>The signature of the notary having been proved, and his official character as notary being only collaterally involved in the issue, it was sufficient to show by paroi evidence that he was acting as notary.</p> <p>3. Same — Signature of Wife by the Husband.</p> <p>There being evidence tending to show that the deed was signed by the husband, both for himself and for the wife, and that the wife acknowledged the deed, the court did not err in charging that the deed must have been signed by the wife, ■or some one for her, and at her instance, and whether or not it was so signed was •.for the jury to determine from the evidence.</p> <p>4. Same — Effect of Obliteration of Seal.</p> <p>If the notary attached his seal, the fact that the seal afterwards became obliterated would not invalidate the certificate, and it was proper for the court to instruct the jury as to what was a legal seal, and to submit the question whether such seal was affixed to the certificate.</p> <p>5. Same — Failure to Record Deed in the County Where the Land Lies.</p> <p>The deed not being offered in evidence as a recorded instrument, and no question of notice being involved in the issue, was admissible in evidence, although it had not been recorded in the county where the land was situate.</p>

<p>1. Agent’s Authority in Settlement of Debts.</p> <p>In the absence of express authority from the principal, an agent has not the power to accept in settlement of a debt due his principal an acquittance of his own individual liability to the debtor.</p> <p>3. Same — Debtor not Released, When.</p> <p>Defendant contracted for the purchase of materials from W., without knowledge that W., in selling them, was acting as agent of plaintiH, but was so apprised when the materials were shipped to him by plaintiff with drafts for acceptance for deferred payments due thereon. Defendant settled such deferred payments by discharging an indebtedness due by W. to himself, W. having no authority to make such settlement, and defendant releasing no securities in so doing. Held, that defendant's liability to plaintiff for the deferred payments was not released by the settlement.</p>

<p>Appeal from Delta. Tried below before Hon. John-L. Sheppabd.</p>

<p>1. Jurisdiction — Action Arising in Another State — Objection too Late.</p> <p>Where a foreign corporation doing business in Texas appears and defends an action of damages against it, brought in Texas by a citizen of another State for failure to fulfil a contract wholly to be performed in such other State, it cannot, for the "first time on appeal, and as being fundamental error, object to the action of the trial court in taking jurisdiction; and a demurrer to plaintiff’s petition, urging such objection to the jurisdiction, is of no avail — where it was not called to the attention of the trial court, and there is no assignment of error presenting such jurisdictional objection.</p> <p>¡2. Foreign Law Must be Proved.</p> <p>Where the law of another State is relied on as prohibiting a recovery against the defendant, it should be proved, and should be presented in the record on appeal, in order to avail as a ground for reversal.</p> <p>3. Telegraph Company — Verdict not Excessive.</p> <p>A verdict of $1500 against a telegraph company for negligently failing to deliver a message sent by a father, asking for medical aid and attention for a sick child, is not excessive, where, by reason of such failure, medical aid did not reach the child until too late to save its life.</p>

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

<p>1. Partnership Creditor’s Lien and Right to Receivership.</p> <p>A simple partnership creditor has no specific lien, either legal or equitable, on the partnership property, entitling him to have the firm estate administered through a receiver.</p> <p>2. Same — Fraudulent Sale by One Partner.</p> <p>Nor will the fact that one member of an insolvent firm has sold his interest to a third person, with intent to defraud the firm creditors, authorize the appointment of a receiver upon the petition of a creditor having no specific lien.</p> <p>3. Same — Consent of Parties.</p> <p>Nor, in such case, can the appointment of a receiver be made on the ground that the remaining partner, having, as partner, an equitable lien on the firm assets for the payment of the firm debts, consented to the proceeding instituted by the creditor, where such remaining partner assented to such sale by his co-partner, formed a new partnership with the purchaser and took possession of the goods of the former firm.</p>

<p>Proof of Heirship — Identity of Names.</p> <p>in an action of title the plaintiffs, claiming as the heirs of M., gave in evidence a patent of the land, issued to M. in 1845, with proofs that M. immigrated to Texas during the war between Texas and Mexico, that he was married to one of the plaintiffs in 1854, and died in 1874, and that the other plaintiff was the only surviving child of the marriage. Held, that the proof of heirship was sufficient, without other evidence identifying the M. to whom the patent issued with the M. under whom plaintiffs claimed.</p>

<p>1. Municipal Corporation — Power of City Council to Close Street.</p> <p>The charter of a city, giving to the city council exclusive control and regulation of the streets, with power to impose such terms as it might deem proper for the use of the sidewalks for any purpose whatever hy any corporation, does not authorize the council to close a street to the public.</p> <p>2. Railway Company — Negligence—Blockading Street with Cars — Void</p> <p>Ordinance.</p> <p>By virtue of a city ordinance closing a street to the public at its intersection with another street, and giving the exclusive control of the street at such intersection to a railway company, the company put down a number of tracks at such intersection and used that portion of the street as a part o£ its depot yards, and, in the case at bar, kept a train of cars standing across the street at such intersection for more than fifteen minutes, with no watchman at such crossing. Held, that as the ordinance referred to was void, because the city council had not under the city charter power to enact it, such use of the street by the railway company was negligent.</p> <p>3. Same — Injury to Child — Proximate Cause — Contributory Negligence.</p> <p>A child nine years of age passing along a street on his way home found the street blockaded by a train of cars standing across it, with no watchman there, and was informed by a man who was marking the cars and whom he took to be an employe of the railway company, that he could safely pass between the cars. After waiting more than fifteen minutes, he attempted to do so, and was injured through the sudden moving of the cars. In an action for such injury, held:</p> <p>(1) That such use of the street by the railway company was negligence, and the proximate cause of the injury.</p> <p>(2) That it was not necessary to the liability of the railway company that any of its agents should have invited the child to cross, or assented thereto, or should have known o£ the presence of the child at the time and of his attempt to cross.</p> <p>(3) That it was a question for the jury to determine whether the action of the child in attempting to cross, taking into consideration his age and the circumstances, was contributory negligence.</p>

<p>1. Practice in Trial Court — Special Findings by Jury — Failure to Submit Issue.</p> <p>In an action to recover several distinct tracts of land claimed by defendant through different sources of title, the case was submitted to the jury for special findings of fact. The court failed to submit any issue whatever as to one of the tracts, but the uncontradicted evidence showed that the defendant was entitled toi recover this tract, and judgment was so entered. Held, that plaintiff’s failure to ask the submission of an issue as to such tract, and to make objection to the failure to submit it, would be treated as an abandonment of his claim to that tract.</p> <p>2. Trespass to Try Title — Special Plea — General Issue Not Waived.</p> <p>In an action of trespass to try title by one claiming under an execution sale, a special plea in defendant’s answer, attacking the sale and asking its cancellation, is not a waiver of the plea of not guilty.</p> <p>3. Separate Property of Wife — Burden of Proof.</p> <p>In an action against a married woman claiming the land in controversy as her separate property, the court correctly refused to charge that the burden of proof was upon her to show her superior equity to the land by proof of the necessary facts by more than one witness, or by one witness with strong corroborative proof in addition.</p>

<p>1. Pleading — Plea of Not Guilty Waived by Special Defenses.</p> <p>In an action by a vendor to recover the land sold because of non-payment of the purchase money therefor, the defendant, by setting up special defenses, waives Tils plea of not guilty.</p> <p>2. Same — Different Estoppels.</p> <p>Where, in such action, the defendant pleads an estoppel because of the silence of plaintiff’s agent as to the existence of plaintiff’s purchase money note at the time a purchaser through whom defendant claims bought the land, defendant can not show an estoppel arising out of the agent’s statement to another purchaser that the purchase money note had been paid.</p> <p>3. Directing Verdict on Controverted Issue.</p> <p>It was error for the court to direct a verdict for the defendant on the ground that plaintiff was estopped by certain statements made by his agent, where the agent had testified that at the time of the statements he had ceased to act as. plaintiff’s agent.</p> <p>4. Estoppel — Mistake Without Injury.</p> <p>Statements made under mistake and by which the opposite party is not induced to change his position for the worse, will not constitute an estoppel.</p>

<p>1. Married Woman — Separate Estate — Conveyance by Husband.</p> <p>Land which is the separate property of the wife can not be conveyed by thé husband under a power of attorney executed to him by the wife.</p> <p>2. Same — Covenants of Warranty.</p> <p>Covenants of warranty by a married woman in a deed of her separate property are not binding upon her, but if the husband join with her in such covenants, ho may be held liable upon a breach thereof.</p> <p>3: Warranty — Covenants by Attorney.</p> <p>Where an attorney in fact voluntarily warrants the title of the land conveyed by him as such, he is liable upon the covenants of warranty.</p> <p>4. Notice — Chain of Title — Covenants.</p> <p>A purchaser of land by deed executed under a power of attorney is chargeable with notice that such power conferred no authority to execute a deed with covenants of warranty.</p> <p>5. Ratification — Acceptance of Purchase Money.</p> <p>Acceptance of the purchase money by a vendor of land conveyed under a power of attorney which did not authorize covenants of warranty is not a ratification of the action of the agent in executing a deed with such covenants.</p> <p>6. Venue — Defendants Residing in Different Counties.</p> <p>A defendant can not be sued out of the county of his residence by virtue of being joined with a co-defendant who is not a necessary party to the action, and who resides where the suit is brought; nor by virtue of the joinder with a cause of action to which such resident defendant is a proper party of a separate and distinct cause of action in which he is improperly joined.</p>

<p>1. Public Land Bordering on Sea Coast — Grant Beyond Coast Line Void.</p> <p>An ordinary grant of land along the sea coast, made by the ministerial officer of the government, does not pass the title to land under navigable water or beyond! the coast line.</p> <p>2. Same — Presumption—Confirmation—Pleading.</p> <p>Under the policy of all nations governed by the principles of the civil or the common law, the title to land under navigable waters is retained for the public use, and passes by a private grant only when so expressly provided by the sovereign authority; and hence no subsequent recognition or conformation of an ordinary grant made by a ministerial officer, attempting to pass the soil under the sea, will be presumed, nor need such presumption be negatived by the pleader..</p> <p>3. Pleading — Certainty—Deficiency of Acreage.</p> <p>A petition for an injunction to restrain a trustee from selling two original grants of land for purchase money due thereon, because of a deficiency in the number of acres sold, is subject to special exception, if, although alleging that a specifld number of acres within the boundaries of such grants are covered by navigable waters, it fails to directly and positively aver that the boundaries of such grants (not set out in the petition) do not include the proper quantity of fast land. (On rehearing.)</p> <p>4. Limitations — Claim for Abatement of Purchase Price.</p> <p>A claim for an abatement of the purchase price of land exists so long as the purchase money is unpaid, and the statute of limitations is not applicable against it, and cannot be pleaded against it in an action to assert such claim by injunction restraining a trustee from selling the land for such unpaid purchase money.</p>

<p>Pleading — Petition for Mandamus — Allegations Insufficient where Denied, and no Evidence Adduced.</p> <p>Plaintiff, a city contractor, applied for mandamus to compel certain officers of the city to prepare a roll of ownership and assessment, showing the amounts chargeable upon city lots in a sewerage district, the petition alleging that no such assessment roll had been made, as provided for by the terms of plaintiff’s contract, although the city council had repeatedly promised to.have it made. Defendants’ answer alleged that such roll had been prepared and filed, and certificates of such sewerage costs issued and delivered to plaintiff, who had collected a large part of them, and that because of some errors in assessing the cost of the work against some of the property owners in the district, plaintiff was seeking to have the entire district re-assessed, and that by the action already had in the matter plaintiff was precluded from claiming a new assessment. The court heard the case upon the petition and answer, without evidence, and ordered a peremptory writ to issue. Held, that the judgment was not warranted, since the allegations in the petition were denied by the answer,- and the petition failed to point out wherein the assessment which had been prepared was void or insufficient.</p>

<p>Res Judicata — Damage to Land From Continuing Cause of Injury.</p> <p>A judgment against a railway company for the damages to land caused by its construction of a ditch or permanent drain, whereby water was thrown across plaintiff’s land, is a bar to a second action for damages* subsequently occasioned by thé washing away of the soil, where no material change has been made in the ditch; such loss of soil being part of the original damage growing out of the construction of the ditch, and resulting from the continuance of a state of things that existed when, the former suit was brought, operating without further agencies.</p>

<p>1. Sale — Rescission by Vendor for Fraud — Receiving Fart Payment— Ratification.</p> <p>A vendor of goods the sale of which had been procured through fraud of th<= vendee, upon discovering the fraud, reclaimed such of the goods as remained unsold by the vendee, and also claimed and accepted from the vendee payment in money for that portion of them already disposed of. Held, that such acceptance of payment was not a ratification of the sale, or release of the vendor’s right to rescind it and claim the remaining goods.</p> <p>2. Same — Evidence of Fraud — Intent—Other Fraudulent Transactions.</p> <p>In an action between attaching creditors of a vendee, and a vendor who is claiming back the attached goods because of fraud in the purchase thereof by such vendee, evidence of other fraudulent purchases by the vendee from other parties about the same time is admissible to show fraudulent intent.</p> <p>3. Practice in Trial Court — Peremptory Challenges.</p> <p>Upon a trial of the right of property between several attaching creditors upon one side, and a claimant of the property upon the other, such creditors, as constituting one party to the litigation, should be allowed only the number of peremptory challenges to which a single party is entitled.</p>

<p>Accommodation Note — Pledge—Certificate of Stock — Parol Evidence-</p> <p>In an action upon a note alleged to have been given to a corporation by the makers in payment for corporate stock, for which a certificate was issued to them, paroi evidence is admissible upon an issue between the makers and such corporation, as endorser, to show that the note was accommodation paper made for the benefit of such endorser, and that- the- stock was taken and held merely as a pledge and collateral security for the debt.</p>

<p>1. Pledge — Bight of Pledgor to Bedeem and to Have Account Stated.</p> <p>The pledgor In an action against him to enforce the pledge, has the right to maintain a cross-action to redeem the pledged property upon tendering the balance due, and, where it may be necessary, to have an account stated, in order to ascertain such balance.</p> <p>2. Pleading — Itemized Statement Necessary, When.</p> <p>Plaintiffs pleaded as a charge against defendant certain expenses incurred by plaintiffs, but tailed to give an itemized statement thereof, alleging that they could not give a more detailed statement of such expenditures, but showing no reason why they could not do so. Held, that the defendants’ special exception to the allegation of such expenses was properly sustained, since, if plaintiff could have proven them, they were necessarily in a position to give a specific statement of them.</p> <p>3. Lis Pendens — Garnishment Pending in Another State.</p> <p>In an action to enforce a lien upon property pledged to plaintiff by defendant, defendant answered claiming that it was entitled to have certain moneys in plaintiff’s hands credited upon the debt due, and plaintiff replied that such money had been garnished by another creditor of defendant, and that such garnishment was pending in another State, where plaintiff resided. Held, that it was error to disregard the plea, and to render judgment crediting defendant with the money so garnished.</p>

<p>1. Insolvent Corporation — Property Not Liable to Attachment.</p> <p>Where a trading corporation becomes insolvent, ceases to do business, and by a unanimous vote of its stockholders places its entire assets in the hands of its president and directors as trustees, to be distributed ratably among its creditors, the property is not liable to attachment by a creditor of the corporation.</p> <p>2. Same — “Dissolution” of Corporation — Construction of Statute.</p> <p>Under the statute (art. 606, Revised Statutes) providing that upon the dissolution of a corporation its property shall be in the hands of its officers a trust fund for the payment of its debts, the insolvency of a corporation, and its abandonment of the corporate enterprise, is equivalent to a technical dissolution.</p> <p>3. Same — Creditor Estopped, When.</p> <p>Where a corporation becomes insolvent and places its entire property in the hands of its officers as trustees, for distribution among its creditors, this is equivalent to(a general assignment, and the creditor who has accepted his pro rata part so far as distribution has been made by the trustee, is estopped to deny the validity of such corporate action.</p>

<p>1. Contract Limitation of Time for Bringing Suit — Statutory Prohibition.</p> <p>A stipulation in a fire insurance policy limiting the time within which suit might be brought thereon to six months from the date of the trial is void because in contravention of the act of March 4, 1891, forbidding stipulations in contracts for a period of time within which to sue less than two years.</p> <p>2. Same — Title of Act — Constitutionality.</p> <p>The act of March 4, 1891, forbidding stipulations in a contract for a period of time within -which to sue less than two years, is not violative of section 35, article 3, of the Constitution, providing that no bill except a general appropriation bill shall contain more than one subject, which shall be expressed in its title.</p> <p>3. Practice — Omission of Court to Rule on Exception — Immaterial Error.</p> <p>It is the duty of the trial court to act upon exceptions to the pleading duly presented before proceeding with the trial upon the facts. But an omission in this respect is not reversible error, where it appears that appellant was not substantially prejudiced thereby.</p> <p>4. Eire Insurance Policy — Estoppel.</p> <p>A fire insurance company is not estopped to plead that the policy is avoided, by reason of the failure of the insured to disclose an incumbrance on a part of the property, because of the fact that after the fire, and knowing then of the incumbrance, it required the assured to make up proofs of loss without denying its liability under the policy.</p> <p>5. Same — Undisclosed Mortgage on Part of Property — Effect.</p> <p>Where a fire insurance policy provided that “if the property insured is encumbered in any manner, it must be so represented to this company and expressed in this policy in writing; otherwise this insurance contract shall be void and of no •effect,” the failure of the insured to disclose a mortgage upon one article of furniture out of quite a number insured will not vitiate the policy as to the remaining property which is unincumbered.</p> <p>6. Same.</p> <p>Where the amount of damage caused by the fire is fully equal to the amount of the verdict for defendant against the insurance company, without reference to that article of the property affected by the mortgage, issues with reference to such mortgage and the failure to disclose it are immaterial.</p> <p>7. Same — False Representations — Immaterial, When.</p> <p>False representations by the insured to the agent of the company made after the fire, to the effect that she was the sole and unconditional owner of the mortgaged article covered by the policy, are immaterial where the agent of the com-pony was informed of the existence of such mortgage at the time the policy was Issued.</p>

<p>1. Charge of Court — Issue without Evidence.</p> <p>Where there is no evidence tending to support an issue made by the pleading, it is error for the charge to submit such issue to the jury.</p> <p>2. Same — Injuries to Livestock in Shipment.</p> <p>In an action to recover for injuries to cattle in shipment, plaintiff’s petition alleged the injuries to have been done by various means, and the court charged that plaintiff would be entitled to recover for the damages found by the jury to have been done by any or all of the said means (enumerated in that paragraph of the charge), “or by any other means that are charged in the petition.” Held, error, as authorizing the jury to ignore controverted conditions and questions affecting defendant’s liability for damages alleged to have been caused by yet other means, submitted in a preceding paragraph of the charge.</p> <p>3. Same — Measure of Damages — Market Value.</p> <p>In an action for injuries to cattle in shipment, the measure of damages is the difference between the market value of the cattle as received at the point of destination, and what such value would have been but for the injuries.</p>

<p>Pleading — Due Order — Waiver of Dilatory Plea by Submitting Demurrer.</p> <p>Where a defendant who has filed a dilatory plea asserting his privilege to be sued elsewhere, suffers his general demurrer to be heard and acted on by the court, he thereby waives such plea.</p>

<p>1. Former Judgment — Res Judicata.</p> <p>In an action brought by an assignee for the benefit of creditors against a non-accepting creditor who had seized the goods by attachment, a judgment in another action between the assignor and such attaching creditor, in favor of the assignor for a small part of the property attached as being exempt property, and to which action the assignee was not a party, is not admissible in evidence as res judicata.</p> <p>2. Same — Appeal Fending.</p> <p>A. judgment from which an appeal or writ of error is pending will not sustain the plea of res judicata.</p> <p>3. Assignment for Benefit of Creditors — Defense—Evidence.</p> <p>In an action of conversion brought by an assignee for the benefit of creditors against a non-accepting creditor who has attached the property, evidence is inadmissible to show that the assignee has sufficient property in his hands to pay the claims of all the accepting creditors.</p> <p>4. Same — Assignee’s Bond — Approval.</p> <p>Where the bond of an assignee for the benefit of creditors has been approved and filed with the county clerk, the action of the judge approving it can not bd called in question in a suit by the assignee against one who wrongfully takes the assigned property.</p> <p>5. Motion to Dismiss after Continuance of Cause.</p> <p>After a cause has been continued for the term by order of court, a motion to dismiss because a cost bond has not been given as required by rule entered at a former term, comes too late.</p> <p>6. Bill of Exceptions — Exclusion of Evidence.</p> <p>A ruling of the trial court in excluding evidence will not be disturbed where the bill of exceptions fails to show the ground on which the evidence was excluded.</p>

<p>1. Separate Property of Wife — Declarations of Husband.</p> <p>Declarations of the husband as to the ownership of lands the title to which stands in the name of the wife as her separate property, are not admissible to impugn her title.</p> <p>2. Same — Burden of Proof.</p> <p>Where the recitals in a deed conveying land to the wife show it to be her’ separate property, the burden of tracing in the lands the investment of community funds, to the extent either of the entire purchase money or of some definite portion thereof, rests upon the party assailing the deed to disprove the truth of the recitals.</p> <p>3. Same — Profits from Land not Community Property, When.</p> <p>Where the husband, as the agent of the wife, invests her separate funds in the purchase of lands which enhance in value, and which are sold by him for her, and the proceeds reinvested in other lands the title to which is taken in her name and as her separate estate, such other lands are the sole property of the wife, and the" profits resulting from such investments and sales do not, as to creditors of the husband, become community property.</p> <p>4. Same — Increase of Land — Husband’s Management of Wife’s Property.</p> <p>Enhancement in the value of land due to the growth of population and demand is “increase of land,” which, under the statute, remains the separate property of the spouse owning the land, and the service of the husband in making investments in land and sales thereof for the wife is but the discharge of the duty imposed upon him by law in the management of her separate property.</p> <p>5. Same — Fraud of Husband — Mingling Separate and Community Funds.</p> <p>The wife can not, at the instance of a creditor of the husband, be deprived of her interest in lands purchased by the husband in part with her separate funds and in part with community funds, because of the fraud of the husband in mingling such separate and community funds in the purchase, where it is not shown that she participated in such fraud.</p> <p>6. Same — Borrowed Money and Purchases on Credit.</p> <p>Money borrowed by the husband for the benefit of the wife’s separate estate, to be repaid out of her separate funds, is not community property; nor would property purchased on a credit by the wife for her separate use and benefit necessarily be community property.</p>

<p>1. Homestead — Family of Decedent — Widowed Daughter.</p> <p>A widowed daughter living with her widowed mother at the time of the iatter'a death is a constituent of the family and entitled as such, there being no others surviving, to receive the allowance in lieu of homestead provided by the statutes. See case for facts held to constitute such living with parent.</p> <p>2. Insolvent Estate — Allowance in lieu of Homestead — Priorities.</p> <p>Real property of an insolvent estate set apart at its appraised value to an unmarried daughter as an allowance in lieu of homestead, is taken by her free from claims for expenses of last illness and from liens for debts of deceased secured by mortgage on the property so set apart, unless such lien is for purchase money, taxed or improvements. Revised Statutes, article 2000, giving liens preference, applies only to solvent estates.</p>

<p>Plaintiffs petition, paragraph thirteen, was as follows:</p> <p>Plaintiff further alleges and charges that of the hereinbefore mentioned animals, the following described animals, in spite of the efforts and means and care exerted and used by plaintiff as aforesaid to prevent such results, got into said bogg) strip of land and bogged down and died, some of them sinking out of sight into said mud; that said animals at the time they so bogged and died in said mud were partly graded, thoroughbred, and partly ordinary American horses, as hereinafter set out, and each and all of said animals were reasonably worth the several sums charged therefor in his petition, in the market of Travis County, Texas, as follows, to-wit: (Here followed a list and description of horses and colts alleged to have died.)</p> <p>Plaintiff alleges that besides the above animals actually lost to him by death, cause as aforesaid, that 25 mares and 15 geldings were greatly impaired in vitality and strength, stunted and injured, hair rubbed off and sores generated, and the foals of said mares lost prematurely, and said animals were thereby greatly reduced in value in the markets of Travis County, Texas; that said animals .were reasonably worth $40 a piece, or in the aggregate $1600 before they were damaged, injured and impaired as aforesaid, but after being so damaged, injured and impaired in vitality, they were only reasonably worth the sum of $27.50 per head, or in the aggregate $1000, and plaintiff was thereby damaged in the full sum of $500, for which he sues. That all of said animals, those that died and those that survived, had the hair taken off in great patches, and sores produced on many of them caused from getting in said mud, and most of said animals so affected fell away in flesh, and notwithstanding the best feed and care was administered to them they died from the effects thereof, and said mares that sru-vived lost their foals. Said mud contained some poisonous element that took the hair off of said animals and made sores on them and produced death, said poison being unknown to petitioner. But petitioner further alleges and charges that besides said causes said animals, after said reservoir had been lowered as aforesaid some distance, thereby causing large ponds of stagnant water to be left between the banks and the .Colorado river, through which said animals were forced to pass in order to reach the fresh water in said reservoir, but the banks and bottoms of said ponds rvere so soft and boggy that said animals could not pass through except in certain places, and refused to pass through unless forced by drivers. That said ponds contained dead fish in great numbers, and great quantities of dead and decaying bugs, insects and vegetation, which poisoned said water so that it was unfit for stock to drink. That before plaintiff was aware of the poisonous qualities in said water, and before he could gather his stock in his pasture, some of the aforesaid animals had drank of said water out of said ponds, from the effects of which they were made sick and died. That after becoming sick from drinking said water some of said horses went into brush thickets and concealed themselves during the day from the herders, searching for them, and to gather them into the herd plaintiff left his-business in the city of Austin and together with his employes rode his pasture by night and until day in order to catch said horses out of said thickets and place them in his field.</p> <p>The special exception sustained to the above is as follows:</p> <p>4 It can not be told from said petition what animals died and which animals were simply injured. It can not be told which animals were killed by poisonous water and which were simply injured by poisonous, water.</p> <p>5. Much of the damage is lumped and not distinctly set out.</p> <p>6. ■ The whole paragraph wherein it attempts to set out damages to-horses, etc., is jumbled and unintelligible and fails in clearness, and of' this defendant asks the judgment of the court.</p> <p>Plaintiff’s trial amendment, substituted for paragraph twelve of his-petition, was as follows:</p> <p>Plaintiff further avers and alleges that in order to save, guard and protect his said animals from being injured by becoming mired and bogged in said mud banks, and dying therein or from the effects thereof,, employed T. W. Preece, A., A. Reed, C. B. Enochs, O. K. Enochs, L. C. Counts, A. Larldn, Geo. Hancock, T. H. Bryson, Anderson Pickett,. Chas. Lohman, Jerry Barton and Eli Crane to watch, herd, line ride, ride pasture after, guard, protect and round up and move from one pasture to another, water, rescue from bog and mud, care for and doctor said animals, and feed them and keep them away from said mud banks- and mire. (Then followed a statement of the amounts paid to each person and the number of day’s work paid for, with allegations that the-dates could not be more accurately given.)</p> <p>Plaintiff says that the above items of expense are exact, and the dates-thereof are as near as can be given, and each and every one of said items, are fair and reasonable pay for service rendered, and each and all of said sums were expended by plaintiff in protecting, guarding and caring for said animals to prevent them, or any of them, from getting in said mud banks and miring and being injured therein; that all of said above named hands line rode, herded, guarded, protected, watched, fed, pulled or assisted in extricating said animals -from said bogs, drove said animals, to and from pasture during the several times of their respective employment, and no more particular or definite statement of the particular work done by each can be given.</p> <p>That in order to keep said animals from getting into said bog and thereby either dying or being greatly injured, plaintiff was forced to place • said animals in a field on plaintiff’s said land known as the river field. That there was growing on said field a fine crop of hay; that said hay was reasonably worth $50; said hay was pastured down as aforesaid in July and August, 1893, and said hay would not have had to have been so pastured down by plaintiff but for the acts of defendant as aforesaid. That for like reasons plaintiff was forced to pasture down a crop of sorghum in another field on said place with said animals during the months of August and September, 1893; that there were ten acres of said sorghum, and there were four tons to the acre, making forty tons, reasonably worth $6 per ton, $240. Plaintiff avers that each and every item of expense aforesaid was reasonable and necessary and was caused by the gross and inexcusable negligence of defendant, and said acts of defendant are the proximate cause thereof, and said animals could not have been protected and cared for in any other manner without going to an expense far in excess of the sum here sued for. Plaintiff sues for each and all of said items of damages, same being the sums in which he was damaged by defendant by the acts aforesaid. The amendment is intended to amend said paragraph 12, of the second amended original petition.</p> <p>The above trial amendment was stricken out by the court, sustaining the defendant’s exceptions contained in first supplemental answer as follows:</p> <p>Defendant excepts to and moves the court to strike out each and every item of damage set out in the trial amendment, because it does not appear that said damages are the natural and proximate results of the acts charged against defendant, and because each and every of said items are too remote to form the basis of recovery, and because said items are not set forth with sufficient certainty. And defendant specially excepts to the charges for hay and sorghum, because it is not alleged that plaintiff was the owner of said hay and sorghum, or that he ever paid or agreed to pay for the same.</p>

<p>1. Vendor and Purchaser — Pelease of Lien.</p> <p>When the vendor of real estate retains an express lien for purchase money and the consequent legal title, the duty rests upon him, when the debt is finally discharged, to execute and deliver a release, if at that time he is the owner of the lien.</p> <p>2. Same — Tender on Condition.</p> <p>A tender of the amount of purchase money finally due made upon condition that a release of the lien be executed is valid.</p> <p>33. Same — Release "by Attorney.</p> <p>Release must be executed by the vendor if he still retains the title, and a release by his attorney holding the note for collection is not sufficient, unless authority is shown for him to execute such release.</p> <p>•4. Same — Fact Case.</p> <p>The vendee of real estate on which the vendor had retained an express lien for the security of a purchase money note tendered the amount of the note and interest at maturity conditioned on receiving a release by vendor of the lien. A release by the vendor’s attorney holding the note for collection was offered as a compliance .and declined. On suit upon the note and foreclosure of the lien, the vendee having kept his tender good and paid the amount due at maturity into court, the plaintiff was properly held liable for the costs of suit.</p>

<p>Assignment of Chose in Action.</p> <p>The common law rule that the legal title to a chose in action was not assignable . should be regarded as obsolete or inapplicable in this State, and an assignee of such right of action, since he holds both the legal and equitable title, should sue thereon in his own name.</p> <p>Same — Fact Case.</p> <p>Plaintiff brought suit against defendant railway upon a claim for damages for refusing to receive and ship live stock and for injuries to other stock received and shipped, which claim he had before that time transferred to another by an instrument authorizing the assignee to sue in his, the assignor’s, name. The fact that said assignment had been made being developed during the trial, the court properly found plaintiff not entitled to recover, and dismissed the case without further inquiry into the merits.</p>

<p>1. Passenger — Riding in Stock Car — Contract—Waiver.</p> <p>See contract that shipper riding with his stock should remain in caboose or assume the risk of injury if he left it, under which evidence that he was permitted by the conductor without objection to ride in the car with his horse,- and that such -was the custom was held properly admitted to show waiver by the railway company of such provision in the contract. (Railway v. Cock, 8 Texas Civ. App., 376, adhered to.)</p> <p>2. Passenger Carrier — Degree of Care.</p> <p>Where charge only required of a railway company the exercise of ordinary care in transporting passengers it was not error to refuse a charge requested by the company, limiting the care demanded of a carrier to the highest degree consistent with the practical operation of its trains.</p> <p>3. Negligence — Charge on Particular Facts.</p> <p>See case for charge, on duty of conductor to warn passenger riding in stock cat with his horse, the train having been stopped by accident, of the danger of impending collision with following train, held not objectionable because a charge on the evidence, nor because giving too much importance to particular evidence, nor as? making supposed state of facts negligence in law.</p> <p>4. Same.</p> <p>See case for facts under which a charge, — relieving railway company from liability for collision if caused by accident preventing brakeman from getting back in time to flag following train, — was properly refused, the evidence not justifying a special charge on the theory that such accident was the sole cause of the collision.</p>

<p>Exemptions.</p> <p>Exemption laws are to be liberally construed. Cases on subject reviewed.</p> <p>Same — Trade—Profession—Tools—Apparatus.</p> <p>The words “trade or profession” in the statute exempting “all tools, apparatus and books belonging to any trade or profession” include the business of a life insurance agent, and his iron safe is included among the tools and apparatus so exempted from forced sale.</p> <p>Same.</p> <p>Such exemptions extend to and include furniture reasonable in amount and useful under the circumstances to the end that the things expressly exempt may be used and enjoyed in the business.</p>

<p>1. Marriage — Lex Loci — Indian Laws.</p> <p>A white man and a Creek Indian woman in the territory of that tribe agreed to and did live together as husband and wife, though without any marriage ceremony being performed, the man recognizing the woman as his wife and their daughter as his child. It was shown that the Creek Indians had no written laws concerning marriage and the above facts would show a valid marriage among them. Held, that such facts were sufficient to support a finding that they were legally married and the daughter entitled to inherit from her father upon his death.</p> <p>2. Pleading — Amendment after Testimony Closed.</p> <p>On an issue of lawfulness of marriage, the validity of which depended on laws and customs of the Creek Indians which had not been plead, it was not error to permit an amendment of plaintiff’s petition, alleging such laws and customs, to be made after the evidence had been concluded and the question of pleading raised by counsel for defendant in argument.</p> <p>3. Res Judicata — Probate Proceedings — Heirship.</p> <p>An order probating a will is a proceeding in rem and binding as res judicata, as to the property devised thereby upon all persons; but is not an adjudication of heirship binding those not made parties to the proceeding as to property not devised.</p> <p>4. Same.</p> <p>Such judgment protected a bank which had paid over money of deceased td those adjudged in such proceeding to be his heirs against a suit for the recovery of the money by the true heir who was not made a party to the proceedings to probate the will.</p>

<p>1. Homestead — Abandonment.</p> <p>A rural homestead was not abandoned by removal of the owner and his family .to a residence owned by him in town for three years, such change of residence being! for the purpose of educating his children, and with the intention of returning to the farm.</p> <p>2. Same — Evidence—Intention.</p> <p>On the issue of abandonment of homestead, the claimant may testify that it was his intention to return.</p> <p>3. Same — Offer to Sell — New Trial.</p> <p>Newly discovered evidence that claimant had offered to sell his homestead was ■not sufficient evidence of abandonment to probably change the result and justify the granting a new trial.</p>

<p>1. Pleading — Damages.</p> <p>In seeking to recover damages that arise from a nuisance a general allegation may admit proof of all damages that are necessary results of the act committed, such as depreciation in value of the use of property occasioned by the nuisance; but where the only damages claimed in the petition are special, as where a dressmaker in front of whose residénce cars had been allowed to stand claimed loss of trade and inconvenience from obstruction of air and view, recovery will be limited to the damages alleged; and it was error in such case to give as the measure of damages the depreciation in the value of the use of the property.</p> <p>2. Nuisance — Joint Wrongdoers.</p> <p>All parties who participate in creating a nuisance are liable not only for the. Immediate consequences of the original act but for the consequences resulting from its continuance.</p> <p>3. Railway in Street — Obstruction Controlled by City.</p> <p>A railway company having its track in a city street placed cars loaded with material for waterworks which the city was constructing upon a side track in front of private premises where they were allowed to stand and constitute a nuisance. The side track, and the cars while on the same, were controlled and the track was owned* by the city and the cars were placed thereon by its direction. Held: That the' railway company, having placed the cars there was liable for damages caused by' the city suffering them to remain.</p> <p>4. Husband and Wife — Abandonment—Community Property.</p> <p>A wife, who has been for four years abandoned by her husband, living upon the homestead which is community property, may, her husband refusing to join in the action, sue for and recover damages done to such community property by a nuisance: authorities reviewed.</p> <p>5. Same — Evidence.</p> <p>The wife may in such proceeding testify to such abandonment for the purpose of showing her right to sue, the statute prohibiting testimony by husband or wife in divorce proceedings having no application to such a case.</p>

Suit by H. L. Edwards & Co. against appellees to recover value of certain cotton burned while on the platform of compress at Taylor by alleged negligence of defendants, who had judgment from which plaintiffs appealed.

<p>Irrigation — Hiparían Proprietors — Constitutional Law.</p> <p>Plaintiffs, riparian proprietors on the Concho river in the arid region, constructed an irrigation dam and complied with all the provisions of the irrigation laws (Acts of March 19, 18S9, and March 29, 1893), required to give priority of rights to the water for irrigation and prevent its diversion by others for that purpose to their prejudice. Defendants, riparian proprietors above them, subsequently constructed a dam which diverted the water for irrigation of their lands to the extent of interfering with its use for the same purpose by plaintiffs to the same extent as before. Held</p> <p>1. A riparian proprietor in the arid region of Texas has a right to the use of the water of the stream for irrigation; and may consume it, in doing so, to the extent of interfering with its use by a lower proprietor for such purpose; though not it seems to the extent of interfering with its use for domestic purposes and for stock.</p> <p>2. The acts of the Legislature above named were in violation of sections 17 and 19 of article 1 of the Constitution of the State, if applied to deprive defendant of his right to use the water for irrigation, in that they appropriated such private right to private use, or to public use without compensation.</p> <p>3. This principle was not aifected by the fact that the Concho was a navigable stream within the meaning of the statutes of the State with reference to locating and surveying l^nds. (Rev. Stats., arts. 4147, 4148.)</p>

<p>1. Verdict — Excessive—Reformation of Judgment.</p> <p>In a suit to cancel a contract of sale, and recover back $649.33, payments made thereon, the petition did not claim interest on the payments. The verdict was for cancellation “and for the payments made by plaintiff, principal and interest, the sum of 3SS1.13: judgment for the latter amount was by the court on motion for new trial, reformed and entered for amount of principal claimed. Held:</p> <p>1. When the verdict awards to the plaintiff something that he has not asked for in his petition, unless the thing or amount so recovered is designated and identified by the verdict the error cannot be cured either by voluntary remission by the plaintiff or by reformation by the court.</p> <p>2. Plaintiff under his pleadings, was not entitled to recover interest, and as the verdict does not disclose the amount allowed as principal, it was fundamentally defective and could not be made the basis of a judgment for any amount.</p> <p>3. The court had the right of its own motion to reform the judgment if it could do so from the verdict alone; but the verdict must form the basis of the reformed judgment and cannot be helped out by the pleading or evidence.</p> <p>2. Variance.</p> <p>On suit for cancellation of contract for sale of piano, see the opinion for pleading and proof as to sort of piano contracted for, held not to present reversible error on the ground of variance.</p>

<p>1. Negligence — Proximate and Remote Cause.</p> <p>It is not always true that a plaintiff who has been guilty of negligence contributory to his own losses, and without which the injury would not have occurred, cannot recover for the part of the injury caused by defendant’s negligence. If plaintiffs negligence produced a condition of affairs which left undisturbed, would have resulted in loss, yet afterwards he would have protected his property from the consequences of his own default but for the negligence of defendant, the latter will be responsible for the results of such negligence, it being the proximate and plaintiffs the remote cause of such damages as, but for such negligence, plaintiff would have prevented.</p> <p>2. Same — Telegraph Company — Delay.</p> <p>Plaintiff, the owner of a cattle ranch, left his son in charge, who, being threatened with a failure of water supply, and having no authority to contract with other ranch owners therefor, telegraphed to his father to come: the message was delayed, through a change in the address caused by negligence in transmission; whereby plaintiff failed to come and make provision for his cattle preventing further damage. Though plaintiff’s agent was negligent, in not sooner discovering the condition of the water or sooner taking steps to secure the owner’s presence, the delay in transmitting the message, and not such contributory negligence, was the proximate cause of such damage as. plaintiff would have averted by his action had the message been promptly delivered.</p> <p>3. Contributory Negligence — Charge on Weight of Evidence.</p> <p>See charge, held erroneous, as being on the weight of evidence, in assuming that failure by plaintiff’s agent to sooner discover and take measures to prevent a threatened danger to his property would constitute contributory negligence.</p> <p>4. Negligence — Preventing Damage — Charge.</p> <p>See charge on negligent delay in delivering telegrams, held erroneous, because plaintiff’s claim to recover for losses, caused by his being kept by such delay from preventing further damage to his stock, through failure of water on their range, by driving them to another range, was denied, unless there was such other place with sufficient food and water “in the neighborhood.”</p> <p>Plaintiff was not restricted to the neighborhood in taking such preventive measures.</p> <p>5. Telegraph Company — Right to Rely on — Charge.</p> <p>See case for circumstances entitling plaintiff to a charge that his agent sending dispatch had a right to rely on the company to transmit the message and deliver it without unreasonable delay, but not to a charge that such act could not be considered the proximate cause of plaintiff’s injuries.</p> <p>6. Telegraph — Negligence—Charge.</p> <p>Where delay in the delivery of message to plaintiff was caused by mistake in his name in its transmission, it was erroneous to charge the jury to find for defendant unless there was negligence on its part in the failure to deliver the message to plaintiff, without adding the qualification “unless you find that the mistake in the transmission of the message” was negligent.</p> <p>7. Same.</p> <p>An instruction that the telegraph company was entitled to exercise its choice between two routes differing in distance and number of relays should have been, so qualified as to hold defendant to ordinary care in its choice of routes.</p> <p>8. Evidence — Measure of Damages — Shrinkage of Cattle — Damages.</p> <p>Tne measure of damages for shrinkage of cattle, through being deprived of water and food, is their deterioration in value; and evidence of the time, labor, means, and expense necessary to restore them to their former condition is not admissible.</p> <p>9. Verdict — Special Findings — Negligence—Damages.</p> <p>See opinion for special findings held to be inconsistent with the general one that no damages were due to plaintiff, and to warrant conclusion that damages would have been awarded but for the errors found in the court’s charge.</p> <p>10. Submitting Special Issues.</p> <p>See case in which court questions propriety of submitting case on special issues.</p> <p>11, Same — Verdict—Procedure.</p> <p>All the issues of fact properly litigated under the pleadings must be submitted if a special verdict is required by the charge and a charge in such case omitting a necessary issue is erroneous. All the issues submitted by the court should be answered unless they are entirely eliminated by other answers; and if answers are not responsive, the court should send the jury back for further deliberation.</p>

Martin Hallan, the switchman who gave signals for the train to move, testified that he never authorized or consented to any person to make a way across defendant’s yard or to cross between its ears — that he did not see the plaintiff come up to or go between the cars — that he did not know that plaintiff was near the ears — did not see him at all — and the first he knew of his presence was after dark when Bartholomew told him that the boy was hurt. “I did not stand there and…

<p>1.. Wrongful Garnishment — Damages. ,</p> <p>In an action for damages for wrongful garnishment, plaintiff is entitled to recover interest on the sum detained, and also exemplary damages if the writ was sued out for the purpose of harassing or oppressing him.</p> <p>2. Same — Jurisdiction—Exemplary Damages.</p> <p>In an action for wrongful garnishment, where the actual damages cannot exceed $3, and the petition asked for $500 as exemplary damages, it cannot he said, upon demurrer to the jurisdiction, and under the rule that exemplary damages should bear some reasonable proportion to the actual damages, that no judgment could be legally rendered in the case which would be within the jurisdiction of the County Court.</p>

<p>1. Railway Company — Charge of Court — Issue—Weight of Bell.</p> <p>In an action against a railway company, where all the clauses of the charge submitting the issues of negligence of the defendant authorized a verdict for plaintiff only in case of the negligence of defendant’s employes, the fact that the charge, in stating what the statute requires of railway companies as to giving signals at public crossings, specifies the weight of the bell required to be used, is not reversible error, although there was no issue in the pleadings and evidence as to the weight of the bell.</p> <p>3. Same — Contributory Negligence.</p> <p>Where the case stated in plaintiff’s pleadings does not imply contributory negligence, and such negligence Is not indicated by plaintiff’s evidence, but is pleaded as a defense by the opposite party, the burden of proving such negligence is on the defendant.</p> <p>3. Charge of Court — Verbal Error.</p> <p>Where it is apparent from the context of the charge that the court used the word “defendant” where “plaintiff” was intended, such mistake is not material error. Following Railway v. Porfert, 72 Texas, 344.</p> <p>4. Charge of Court — Negligence.</p> <p>Where the charge of court requires a verdict for defendant, if there was neg- . ligence on the part of plaintiff proximateJy contributing to his injury, it is not error to refuse to instruct that a failure to comply with the statute as to giving signals at a pubic crossing does not create a liability against the defendant company, unless the injury charged is directly attributable to such failure, and the party injured used due care and caution.</p> <p>5. Same — Charge Too Indefinite — “Wild Engine.”</p> <p>In a charge by the court to the effect that a railway company has “the right to run its engines or trains at such times as it chooses, and the running of a train or an engine out of schedule time, or as a wild engine, is not of itself an act of negligence,” the expression “or as a wild engine” is too indefinite and is misleading.</p> <p>6. Railway Company — Negligence—Duty to Look and Listen for Trains.</p> <p>It is not a duty devolving by law upon one about to cross a railroad track to look and listen for approaching trains.</p>

<p>1. ¡Practice on Appeal — Appearance by Counsel — Waiver of Service of</p> <p>Citation in Error.</p> <p>Where counsel for defendants in error, by written endorsement on the brief filed by plaintiffs in error, waive the filing of such briefs in the trial court, this is an appearance in the appellate court such as precludes defendants in error from insisting on a motion to dismiss the appeal because the citation in error had not been served upon some of them prior to the return day thereof.</p> <p>2. Community Estate — Authority of Guardian.</p> <p>A guardian of minors has not the authority, without an order of court, to release to the survivor of a community estate, consisting of realty and personalty, the interest which his wards have therein as heirs.</p> <p>3. Same — Presumption—Deed to Either Spouse.</p> <p>Property conveyed by deed to either spouse during marriage is presumed to be community property, and the rule is not changed by the fact that the parties had recently removed to Texas when the deed was made.</p> <p>4. Same — Value Estimated at What Date.</p> <p>Where heirs sue to recover their interest in community personal property which has been withheld they are entitled to recover on the basis of its value at the time of trial.</p> <p>5. Same — Improvements and Taxes.</p> <p>In an action by heirs to recover their interests in community property which has been withheld by the father as survivor in community, the defendants were not entitled to credit for improvements and taxes during the time it was withheld, where it appeared that payment for these was made with community funds.</p> <p>6. Special Verdict — Issue Omitted.</p> <p>Where a special verdict fails to find all the facts put in issue by the pleading, it is insufficient, although the evidence shows the existence of the facts not found beyond controversy.</p> <p>7. Evidence — Immaterial Objection.</p> <p>An objection that the testimony of a guardian showed that she had received different amounts on claims due her ward from those shown by her receipts, should not be sustained, where it appears that the amounts shown by the receipts were taken as correct.</p> <p>8. Practice on Appeal — Costs of Transcript — Superfluous Matter.</p> <p>Where the transcript on appeal embraces a large amount of superfluous matter, the costs thereof will, upon motion, he taxed against the appellant.</p>

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

<p>1. Trust Deed by a Firm for Benefit of Creditors — Preference of Individual Debts — Effect.</p> <p>The preference of an individual debt of one of the partners, made in a trust deed executed by the firm for the benefit of creditors, the firm assets being insufficient to satisfy all the firm creditors, is fraudulent and void as to such individual debt, but will not avoid the trust deed as to other creditors who have not participated in the fraud.</p> <p>2. Same — Bight of Trustee — Commissions.</p> <p>Where a deed of trust to secure creditors fraudulently names the trustee as a preferred creditor, this will not forfeit his right to his expenses and remuneration for properly administering the trust in behalf of the other creditors entitled to its benefits.</p> <p>3. Same — Garnishment of Trustee.</p> <p>Where the proceeds of a deed of trust given to secure creditors, with preferences, are insufficient to pay the creditors of the first class, the trustee is not liable to garnisnment at the instance of a creditor of the second class.</p>

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

<p>1. Banks — Collections—Ordinary Care.</p> <p>Where a bank, having for collection a draft on another point, instead of sending it to a third person, mailed it to the drawees, the amount to be remitted by them, it failed to exercise ordinary care.</p> <p>3. Same — Negligence—Liability.</p> <p>Such failure of a collecting bank to use ordinary care will not render it liable where, had the draft been sent for collection to a third person, its fate would have been the same, the drawers having become insolvent.</p>

<p>1. Common Carriers — Contract of Shipment — Release of Liability — Consideration.</p> <p>In a contract for the shipment of livestock, a clause releasing the carrier from liability for damages already incurred and due to delay in receiving the stock after they were tendered to its agent, is not binding on the shipper, where there was no consideration therefor, and it is shown that the reduced rate of freight given by the contract was in consideration of an agreement that the cattle should be shipped at the owner's risk.</p> <p>2. Practice — Exceptions Waived.</p> <p>Where there is nothing in the record indicating that defendant’s exceptions to the original petition were ever considered by the trial court, it will be deemed that they were waived.</p> <p>3. Same — Jury—Taking Out Papers.</p> <p>The jury have the right to take with them in their retirement to consider their verdict the contract and receipts introduced in evidence by the parties.</p> <p>4. Same — Conduct of Counsel.</p> <p>Where counsel for plaintiff, while addressing the jury and arguing that a certain receipt in evidence was a forgery, was interrupted by defendant’s counsel and asked if he would swear that it was a forgery, and replied that to the best of his knowledge and belief he would, defendant is not in a position to complain of the answer.</p>

<p>Sequestration — Affidavit by Agent for Nonresident Plaintiff — Sufficiency.</p> <p>An affidavit for a writ of sequestration made by an agent for a non-resident plaintiff is sufficient if it states that affiant fears that the defendant will remove the property out of the county pending the suit, without stating that plaintiff fears the defendant will so remove the property. Article 4489, Revised Statutes, construed.</p>

<p>1. Bond — Oral Condition by Surety.</p> <p>Where a bond recites that “the person, to .whom this bond is entrusted has absolute authority to deliver it, and the same is made and shall be construed without reference to any other instrument or agreement whatsoever,” a surety thereon cannot defend by showing that he signed it upon oral conditions to which his liability was subject.</p> <p>2. Same — Waiver of Notice by Surety.</p> <p>Where a bond given to secure the payment of all indebtedness that might become due from the principal therein to the obligee, whether evidenced by account, notes, or otherwise, expressly stipulated that the obligors waived “presentment for payment, notice of non-payment, protest and notice of protest, and diligence, upon all such notes, accounts,” etc., the sureties thereby waive notice of default in the payment of notes given by the principal under the terms of the bond.</p> <p>3. Suretyship and Guaranty — Distinctions Between — Notice.</p> <p>A bond binding the principal and sureties for the payment of all claims and debts that may become due from such principal to the obligee, a sewing machine company, is, as affecting such sureties, a contract of suretyship, and not a continuing guaranty under which such sureties, as guarantors, would be entitled to notice of default in payment on the part of the principal. See the opinion in full for the distinctions between contracts of suretyship and guaranty in respect to such notice.</p>

<p>1. Judgment — Dormancy—Yearly Issuance of Execution.</p> <p>A judgment upon which execution has issued within one year from the date of its rendition, does not become dormant by reason of the failure to issue execution yearly thereafter. Rev. Stats., Arts. 3210, 3160, construed.</p> <p>2. Judgment Lien — Receivership Proceeding.</p> <p>The failure of a judgment creditor to intervene in proceedings against his debtor wherein a receiver was appointed, as required by order of court of creditors in general, will not affect his rights and lien as against a bona fide purchaser of real property of the debtor at a receiver’s sale thereof, such creditor not being a party to the receivership proceeding. Following Railway v. Johnson, 76 Texas, 421.</p> <p>3. Judgment Lien — Record of Abstract of Judgment — Indexing.</p> <p>The filing of an abstract of judgment does not create a lien against the judgment debtor, unless it be indexed under the appropriate letter beginning the name of the judgment debtor, as well as under that of the judgment creditor.</p>

<p>'Garnishment — Fraud as Rendering Garnishee ¡Liable.</p> <p>S., holding a note of C. given to him for a bona fide debt, sold and transferred the note by endorsement to a bank, and afterwards assisted C. in preparing and carrying through a chattel mortgage fraudulent as to the general creditors of C., because of preferences and fictitious debts therein. Out of the proceeds of the chattel mortgage the note to the bank was paid, and the liability of S. as endorser was thereby released. Held, that the participation of S. in the fraud did not render him liable as garnishee, at the instance of the creditors of C., since he neither received through the transaction any property of the debtor nor any of the proceeds thereof.</p>

<p>Municipal Corporation — Liability for Injury to Property — Incidental Benefits.</p> <p>Where a ditch was cut through defendant's lot within the limits of a city by private persons, acting without authority from the city and for their own benefit, the fact that the city was incidentally benefited thereby in the matter of street drainage will not render it liable for the damages so caused to the lot.</p>

<p>1. Railway Company — Action for Death of Employe — Negligence and Contributory Negligence — Orders of Foreman.</p> <p>In an action for damages against a railway company for the death of a section hand, the evidence showed that the section men had stepped off the track to avoid an approaching train; that one of them, other than deceased, had left his iron pick sticking in the middle of the track; that the train was approaching on a straight track, and when about seventy-five yards from the men, the foreman, who was twenty or thirty feet from the track, peremptorily ordered deceased, who was within a few feet of it, to remove the pick; and that in attempting to do so, deceased was struck by the engine; that anyone standing on or near the track and practically in front of the train, could not judge its speed with accuracy, -especially if inexperienced, as was the deceased, and that the foreman was experienced in the railroad business.' Held, that the verdict for plaintiff was sustained by the evidence in showing negligence on the part of the foreman, and the absence of contributory negligence on the part of deceased.</p> <p>2. Same — Charge of Court — Evidence Warranting.</p> <p>It was not error for the charge, in such case, to submit whether the pick would have probably caused serious injury to the train, and whether deceased was actuated by a desire to prevent such result in his effort to remove it, although there was no positive testimony that the pick was a dangerous obstruction, or as to the motive actuating deceased in such effort.</p> <p>3. Same.</p> <p>Nor, in such case, could defendant complain of such instruction, if erroneous, as it was not essential to plaintiff’s right to recover that the obstruction really endangered the train, and that deceased was actuated by a desire to prevent such result, since, under the circumstances of apparent danger he was justifiable in obeying the order of the foreman.</p> <p>4. Same — Charge of Court — Contributory Negligence.</p> <p>The use, in the charge of the court, of the terms “rash,” “reckless,” and “contributory negligence,” as apparently synonymous with each other, is not reversible error, where the charge, taken as an entirety, correctly defines contributory negligence with reference to the facts of the case,</p> <p>5. Same — Charge of Court Not on Weight of Evidence.</p> <p>For a charge of court submitting the issuable facts and circumstances of an injury to an employe acting under the - orders of his foreman, and involving questions of negligence, held not to be on the weight of evidence, see the opinion.</p> <p>6. Charge of Court — Requested Instructions Properly Refused.</p> <p>Where the charge of court presents the case fully, and as favorably to the appellant as can be properly asked, it is not reversible error to refuse special charges asked by such party.</p> <p>7. Verdict Not Excessive — Railroad Section Hand.</p> <p>A verdict for $3,800 is not excessive in favor of the widow and children for the wrongful death of a section hand, thirty-three years old, sound in body and mind, and who had previously made a living for himself and family.</p> <p>8. Railway Company — Injury to Employe — Evidence Admissible.</p> <p>In an action for the death of a section hand struck by the train of the defendant railway company while endeavoring to remove a pick from the track, it was permissible for. another section hand to testify that the foreman told the men they need not watch out for trains, and that he would warn them in time for them to get off the track and remove their tools.</p> <p>9. Same.</p> <p>So, in such action, it was permissible for witnesses to testify from experience and observation that a person standing on a railroad track cannot tell with accuracy the speed of a train coming towards him on a straight track, although the evidence showed that the deceased was standing a few feet from the track, as he was practically in front of the advancing train.</p> <p>10. Practice — Exclusion of Evidence — Harmless Error.</p> <p>The error, if any, in refusing to permit a witness to testify because he had; been placed under the rule and had remained in court, is harmless, where the bill of exceptions shows that he was called to testify as to contradictory statements made to him before the trial by another witness, and no predicate had been laid for the admission of such testimony.</p> <p>11. Practice — Remarks of Counsel.</p> <p>Plaintiff’s counsel, in his opening remarks in an action for the wrongful death of the husband and father of plaintiffs, said to the jury that it depended on their verdict “whether this widow and orphan children go out of this court room penniless, fatherless, and to the poor-house.” This language was excepted to by defendant’s counsel and discussed in his argument, and the court charged the jury specially that it was improper, and not to regard it. The amount of the verdict for plaintiffs was small.' Held, that such remarks of counsel afforded no ground of reversal.</p> <p>12. Continuance — Discretion of Court.</p> <p>The refusal of a second application for continuance by defendant, made on the ground of surprise caused by matters alleged in an amended petition filed after defendant’s demurrer had been sustained to the original petition, is a matter within the discretion of the trial court.</p> <p>13. Practice — Jury—Selection from Full Panel.</p> <p>Where a case is duly called for trial, it is not a ground for postponement that twelve out of the twenty-six jurymen composing the full panel for the week are absent from the box, engaged in the trial of another case. Following Railway v. Greenlee, 70 Texas, 559.</p>

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

<p>1. Election Contest — Estoppel.</p> <p>The respondent who has received a certificate of election to the office of county judge is not estopped, upon the trial of a case brought to contest his election, from going behind the returns from ballot boxes which were counted by the Commissioners’ Court without objection by either party, and which formed the basis of such certificate.</p> <p>2. Same — Evidence—Ballots Admissible, When.</p> <p>In a contested election trial, the ballots of a voting box which, after the election, had been opened before a legislative committee, are admissible in evidence, where it appears from the testimony of officers having the box in charge all the time that there was no probability that the ballots had been tampered with.</p> <p>3. Same.</p> <p>Where there were discrepancies between the tally sheets of the different clerks of the election at the voting box in question at the time when the count was concluded by the managers of the election, which discrepancies the managers attempted to reconcile by guessing at the result, and making changes accordingly, the fact that there is a discrepancy between the returns of the votes from such box and the recount thereof, as made by the court in the trial of an election contest, does not indicate that there was any alteration in the ballots after being voted, or tend to cast suspicion thereon.</p> <p>4. Same — Motion for New Trial — Surprise—Diligence.</p> <p>In an election contest, the contestant moved for a new trial on the ground that he was surprised at the result of a recount of a certain voting box, and that he expected to be able to prove by the voters themselves that certain ballots shown by the recount to have been cast for the respondent were in fact cast for himself. The respondent had attacked by his allegations the regularity of the returns from that box, and it was shown that more than six months previously a recount of the box was had in another contest, in which the same questions were raised before a legislative committee, in which the same discrepancy appeared, of all of which contestant and his attorney had notice before trial, and that contestant, though so advised to do, had neglected to have subpoenas issued to the parties alleged to have voted for him. Held, that diligence was not shown, and the motion was properly refused.</p>

<p>1. Master and Servant — Defective Machinery — Injury from Concurring Causes — Contributory Negligence.</p> <p>Plaintiff, a railway employe, while working in the service, was injured through the fall and breaking of a crane, the fall resulting from a defect in the pulley by which the crane was operat-id, and the breaking being a result of the fall and also of a latent defect or crack in the crane. The crane and pulley were operated together as one piece of machinery, and plaintiff knew of the defect in the pulley, but not of that in the crane. Held, that it was error for the court to charge that if the injury was caused by a flaw in the crane and also by a defect in the pulley, concurring and contributing to the injury, plaintiff’s negligence in using the defective pulley would not exempt the defendant company from liability for the other defect.</p> <p>2. Same — Ordinary Prudence the Criterion.</p> <p>So, on the other hand, it would have been error to have charged, as requested by defendant, that plaintiff’s use of the pulley with knowledge of the defect therein, exempted the defendant from liability for the injury, since such knowledge would not have that effect if a man of ordinary prudence, knowing of the condition of the pulley, would have undertaken to use the crane under the circumstances.</p> <p>3. Same — Notice to Master — Knowledge of Servant.</p> <p>In an action against a railway company by an employe for injuries resulting from defective machinery, it was error to charge that defendant was liable if any of its servants knew of the defect, since it would be liable only for the knowledge of those servants whose duty it was to see that the machinery was kept in a reasonably safe condition and state of repair.</p>

<p>Quo Warranto — Time of Filing Transcript on Appeal.</p> <p>Article 1015, Revised Statutes of 1895, requires that the appellant shall file the: transcript on appeal with the clerk of the Court of Civil Appeals within ninety days from the perfecting of the appeal, and Rule No. 7, made by the Supreme Court for the Courts of Civil Appeals, requires that the transcript in appeals from judgments in proceedings in quo warranta shall be so filed within twenty days. Held, that the rule is valid, and not in conflict with the general statute, and that where the appellant, in a proceeding by quo warranta to contest an election, fails to file the transcript in the court above within twenty days, and shows no sufficient excuse for his failure to comply with the rule, the Court of Civil Appeals, is without jurisdiction to grant a writ of prohibition asked for by him to restrain, the enforcement of the judgment below.</p>

<p>1. Sale — Rescission for Fraud — Election of Vendor.</p> <p>A vendor of goods the sale of which has been fraudulently procured by •the vendee may, upon discovery of the fraud, repudiate the contract of sale and recover the goods, or he may elect to stand by the contract and recover upon the vendee’s note given for the price of the goods.</p> <p>.2. Same — Retaining Payment for Part.</p> <p>Where the vendor cannot recover all of the goods, he is not bound, upon a rescis•sion, to restore the price of those he does not get, but may retain as much of the money received on the entire sale as will represent the price of the goods not recovered.</p> <p>■3. Same — Ratification or Rescission — Intention of Vendor — Charge.</p> <p>Where a vendor reclaimed the goods remaining undisposed of by the vendee, and also retained a note given in part payment by the vendee, and it was not clear from the evidence whether the note was retained as indemnity for the goods disposed of by the vendee, or whether in retaining it the vendor intended to affirm the ■sale, it was error for the court to charge without qualification that the vendor’s refusal to surrender the note was not an affirmation of the sale.</p> <p>4. Same — Subsequent Acts of Vendor.</p> <p>Where there was a valid rescission of the contract of sale, a subsequent suit by ' the vendor on the note would not aifect his right to recover the goods.</p>

<p>Telegraph Company — Notice of Claim for Damages — Mental Anguish.</p> <p>Notice to a telegraph company of a claim, for damages resulting from the non-delivery of a message ordering medical aid for plaintiff’s wife, the notice being for damages sustained by the wife only, and made within the sixty days stipulated for in the contract with the company, will not, after the dismissal of an action brought by the husband and wife for such damages, support another action brought by the husband after the wife’s death, and after the expiration of such stipulated time, for mental distress and consequent impairment of health suffered by himself.</p>

<p>1. Life Insurance Policy — Designation of Beneficiary — Mistake—Parol Evidence.</p> <p>A life insurance policy designated the beneficiary by name as the daughter of the insured, and there was evidence that he had a daughter of that name at the time the policy was issued. An action was brought upon the policy by the wife of the insured, bearing the same name as the daughter, and claiming that she was intended as the beneficiary. Held, that in the absence of proof of fraud or mistake, paroi evidence was inadmissible to show that the insured intended the wife as the beneficiary.</p> <p>3. Same — Engaging in More Hazardous Occupation.</p> <p>An insurance policy provided that if the insured while engaged in any occupation ■classed as more hazardous than that stated in his application, the insurance should be limited to such sum as the premiums paid would purchase at the rate fixed by the company for such increased hazard. The application and policy stated the occupation of the insured as that of blacksmith, but the evidence showed that at the date of the application and regularly thereafter the insured also acted as switchman and car coupler, occupations classed as more hazardous than blacksmithing, and that he was killed while coupling cars. Held, that the recovery should be limited according to the increased hazard.</p> <p>3. Same — Knowledge of Agent — Charge of Court.</p> <p>In an action upon an insurance policy wherein the occupation of the insured was ■classed as that of a blacksmith, the evidence showed that he was employed also as a car coupler, a more hazardous occupation, and that the company’s agent knew at the time of the application for the.policy that he sometimes acted as a car repairer, a risk in the same class as blacksmithing, but it was not shown that the agent knew that he acted as car coupler. Held, that it was error to charge that if the agent knew that the insured “did other things than blacksmithing, and took his application as blacksmith* and the proof fails to show that there was a willful intention 'on the part of the insured to conceal same from the agent," the amount of the recovery should not be limited according to the increased hazard stipulation in the policy.</p>

<p>1. Life Insurance Policy — Proof of Suicide — Evidence Held Sufficient.</p> <p>For circumstantial evidence in an action upon a life insurance policy held sufficient to show that the insured came to his death from a dose of morphine administered by himself with suicidal intent, and which did not warrant the court in submitting to the jury the issue of accident or mistake in taking the morphine, see the opinion.</p> <p>2. Same — Opinion of Witness.</p> <p>A witness in reply to a question whether or not the insured, “from his conduct and his action in your presence the last time you saw him conscious, did or said anything indicating an intention or desire on his part to take his own life,” answered: “There was nothing to indicate that he had the least intention of taking his own life.” Held, inadmissible, as being merely the opinion of the witness.</p>

<p>1. Assignment of Non-Negotiable Contract — Defenses Against Assignee.</p> <p>In an action by the assignee of a rton-negotiable contract of sale, to recovér the price of lumber sold to the defendant thereby, the same defenses for breach of the contract may be interposed as if the suit was brought by the assignor, the original party to the contract.</p> <p>2. Same — Set-off.</p> <p>Where, in such action, it appears by the terms of the contract that the seller had agreed to load the lumber on the cars, the defendant is entitled to set off against the plaintiff’s demand the amount of increased freight paid by the defendant because of the seller’s failure to properly load the cars.</p> <p>3. Breach of Contract — Measure of Damages.</p> <p>For failure of the' seller to deliver lumber within the time stipulated in the contract of sale, the measure of damages is the difference in its value at the time it was delivered, and at the time it should have been delivered.</p>

<p>1. Trade Mark not Assignable, When.</p> <p>Where a trade mark is a personal one, designating a particular person and his reputation and skill, it can not be truthfully used by any other person, and consequently can not be assigned.</p> <p>2. Same — Illustration.</p> <p>F., the successor of one J. F. Magaie, a wholesale dealer in Monarch whiskey, continued the business in the firm name of J. F. Magaie, and devised a trade mark made by stamping on the barrels, above the brand of the manufacturers, the .brand “Magale’s,” so that it then read “Magale’s Monarch Whiskey” — the name of Magaie giving value to the whiskey because of his reputation for integrity. Having ceased to carry on the business, F. assigned the trade mark or brand by contract to a third person. Held, that the assignment was against public policy and void, and the contract therefor without consideration.</p>

<p>Homestead Exemption — Grandchild as Constituent of Family.</p> <p>Where a minor granddaughter, whose parents are living and able to support her, with their consent lives for several years with her widowed grandmother, as a companion, the arrangement being terminable at the will of either of the parties, she is not such a constituent of the family of the grandmother as that, upon the death of the latter, intestate and insolvent, she can claim the homestead as against creditors of the estate.</p>

<p>1. Receiver of Corporation — Appointment—Action by Creditor.</p> <p>A. creditor of a corporation having no lien upon its property is not entitled to have a receiver appointed for the better security of his debt, although there be manifest danger that the property will be lost or disposed of before he can obtain an execution against it.</p> <p>2. Same — Action by Stockholder — Construction of Statute.</p> <p>Article 1461, Revised Statutes, authorizing the appointment of a receiver in suits between parties or joint owners of property, where it is shown that the property is in danger of being lost, removed or materially injured, applies to suits between a corporation and its stockholders only in cases where the corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights, or where receivers have been heretofore appointed by the usages of courts of equity.</p> <p>3. Same — Appointment in Equity.</p> <p>In an action against a corporation by a stockholder, brought in his own name and to- protect or enforce his rights and interests as a stockholder, equity will not interfere by the appointment of a receiver, unless it be shown that plaintiff has exhausted all the means within his reach to obtain, within the corporation itself, a redress of his grievances at the hands of the directors and shareholders.</p> <p>4. Same — Appointment of Receiver in Vacation.</p> <p>Upon proper application, a receiver may be appointed by the judge in vacation as well as during a term of the court.</p> <p>5. Same — Appeal Within Twenty Days.</p> <p>Where a receiver was appointed in vacation, and also a motion to vacate the appointment was made and overruled, and at the next ensuing term of court these orders were directed to be entered upon the minutes of the court, an appeal from the refusal of the judge to vacate the order of appointment could be perfected within twenty days from the date of such entry upon the minutes of the court.</p> <p>6. Same — Fees of Receiver a Charge Upon the Property.</p> <p>Where, upon appeal, the appointment of a receiver is vacated, because unauthorized, the receiver’s fees are, nevertheless, along with the expenses of the receivership, a charge upon the property committed to his care.</p>

<p>1. Promissory Note — Extension of Time — Release of Surety.</p> <p>Acceptance by the payee of a note of interest thereon paid to a date beyond its maturity is only prima facie evidence of an agreement of extension of payment to such date, and a surety not consenting to an extension will not be released thereby, where it appears that the payee did not in fact agree to such extension.</p> <p>2. Same — Written Endorsement — Parol Evidence.</p> <p>A written endorsement on the note by the payee of the payment of interest in advance will not make an exception to the rule, since this is but a receipt which may be varied or contradicted by paroi evidence showing that no extension was thereby intended.</p>

<p>1. Plea to Jurisdiction — Order of Pleading — Waiver.</p> <p>A plea to the jurisdiction alleging that a part of plaintiff’s claim for damages was fraudulently made for the purpose of conferring jurisdiction' on the court is waived if not filed in due order of pleading, and should not be considered. Revised Statutes, art. 1262.</p> <p>2. Same — Issue of Fact — Fraudulent Intent.</p> <p>Where such plea has been filed and an issue of fact raised thereon as to whether plaintiff’s claim for such part of the damages was made in good faith or for the fraudulent purpose of conferring jurisdiction on the court, the question should be submitted to the jury, and the burden is on the defendant to show such fraudulent purpose.</p> <p>3. Shipment of Diseased Livestock — Act of Congress.</p> <p>The Act of Congress of May 29, 1884, relating to the exportation of diseased cattle and the suppression and extirpation of pleura-pneumonia and other contagious •diseases, does not relate to shipments of cattle made between different points in the same state.</p>

<p>1. Deed of Trust — Sale at Wrong Place — Second Sale by Trustee.</p> <p>A sale by a trustee at a place other than that named In the deed oí trust is a nullity, and does not so divest the trustee of his powers and interests as to render void a subsequent sale made by him to the same purchaser at the place designated in the trust deed.</p> <p>2. Same — Legal Title not in Trustee.</p> <p>The doctrine that a trust deed, which is in legal effect but a mortgage with a power of sale, vests in the trustee the legal title after default, does not obtain in Texas.</p>

<p>Evidence — Proof of Negative Fact — Patent Bight — Non-Issuance of Patent.</p> <p>In an action brought by a purchaser of a patent right to recover the consideratian paid therefor, on the ground that a patent was never issued, plaintiffs testified that they knew of no patent and had not seen any, and defendants, who claimed under the original patentee, testified that they did not know whether the article was patented or not. The Commissioner of Patents, testifying by deposition, in answer to a question whether a patent had beep granted on the article in question, stated that he could give no information as to any pending application for a patent without permission of the applicant or his attorney, and that such applications are kept secret. Held, that a finding that no patent had been issued was sustained by the evidence.</p>

<p>1. Railway Company — Duty to Passengers — Failure to Keep Coaches Warmed.</p> <p>It is the duty .oí a railway company to properly and comfortably warm its coaches for the welfare and comfort of its passengers, and it is liable for damages resulting from the failure to discharge this duty, without allegation and proof of a universal custom among railway companies to warm their coaches.</p> <p>2. Same — Evidence—Cause of Child’s Death — Non-Expert Testimony.</p> <p>In an action against a railway company for negligently causing the death of an infant child, the mother, forty-six years of age, and experienced in raising and nursing children in sickness and health, is competent to testify that the cause of the child's death was a severe cold contracted while on a railway coach that was not warmed, she having been with the child in the coach and having nursed it continuously thereafter until it died.</p> <p>3. Same — Corroborative Evidence.</p> <p>So, as corroborating the evidence as to the cause of the child’s death, other witnesses who were present in the coach at the time may testify that there was no fire in it, and to the extreme cold in the car, and that it was so severe that they also contracted a cold from the same cause, and were made sick thereby.</p> <p>4. Same — Damages for Death of Child — Measure of Damages.</p> <p>In an action of damages against a railway company for negligently causing the death of a child, the court instructed that the jury might include as an element of the damages “such pecuniary benefits as the child might confer on its parents after majority.” Held, erroneous, as allowing the jury to find for all such pecuniary benefits as the parents might possibly have received, and not confining them to ■such as might reasonably have been expected under the circumstances.</p>

<p>Election Under Local Option Law — Sufficiency of Notice.</p> <p>The general election statute (Title 34, Revised Statutes) provides, in article 1685, that where any election is ordered, at least twenty days’ notice of the same shall be given by posted notices, and in article 1759 declares that the provisions of this title shall apply to all elections, "where not otherwise provided by law;” while the local option law (Title 63, Revised Statutes), authorizing a local option election to be held as early as fifteen days after it is ordered, provides, in article 3230, that the county clerk shall post at different places within the proposed limits at least five copies of the order for such election at least twelve days prior thereto, which election shall be held in conformity with the general election laws of the State, etc. Held, that notice of a local option election by posting five copies of such order for twelve days, as required by article 3230, is sufficient. Hunter, Associate Justice, dissenting.</p>

<p>1. Appeal from Justice to County Court — Pleading New Matter.</p> <p>Upon appeal from a Justice Court to the County Court, the defendant may plead non est factum and failure of consideration in the latter court, although not pleaded in the court below.</p> <p>3. Same — Sworn Plea Must Be in Writing.</p> <p>Such pleas as non est factum and failure of consideration, which must be sworn to, cannot, it seems, be made orally, but must be in writing.</p> <p>3. Same — Construction of Statute.</p> <p>Article 316, Revised Statutes, which authorizes defendant to plead any new matter in the County Court, except a counter-claim or setoff, applies to cases removed to the County Court by appeal as well as by certiorari.</p>

<p>1. Jurisdiction of Probate Court — Administration—Deceased Soldier’s Estate.</p> <p>One who enlisted In the army of Texas in Kentucky in 1886, but also emigrated to Texas with his family, and after serving through the war, died here in 1839, was a “citizen soldier” and not “a volunteer from a foreign country,” upon whose estate the law forbade administration without consent of the heirs.</p> <p>2. Same — Jurisdictional Pacts Sufficient.</p> <p>Where a petition for letters of administration, filed eleven years after the death of the intestate, stated that he was possessed of property and owed debts, and that the letters were applied for at the request of a creditor, such petition must be held sufficient to give the court jurisdiction, where the administration is attacked in a collateral proceeding, unless it otherwise appeared from the probate record that the administration was unauthorized.</p> <p>3. Same — Presumption as to Debts from Lapse of Time.</p> <p>It seems that lapse of more than ten years from the date of the death of the intestate to the time of application for letters of administration on his estate, is not sufficient to raise the presumption aganist the existence of debts, so as to prevent the Probate Court from taking jurisdiction on that ground.</p> <p>4. Same — Fraud as Rendering Administration Void.</p> <p>Where a want of jurisdiction in the Probate Court is not shown, an administration cannot be held void and subject to collateral attack on the ground of fraud, because of the fact that such fraud may be inferred from the course and result of the probate proceedings, without other proof of fraud being made.</p>

<p>1. Bona Fide Purchaser — Judgment Creditor.</p> <p>A judgment creditor purchasing land at execution sale under his judgment and crediting the amount of his bid thereon, is not to be deemed a purchaser for value ■as against prior rights of third parties.</p> <p>2. Separate Property of Wife — Purchase by Husband with Mingled Funds.</p> <p>A wife delivered $700 of her separate funds to her husband, to be invested by him in lands for her separate use. About three years thereafter, the husband, having in the meantime mingled the funds with his own, bought land for the wife for $700, paying $300 cash, and the wife executing her notes for the remainder, which were paid by the husband in part with her separate funds and in part with his own. The deed was executed to the wife, but failed to limit the title to her separate use; it being the intention of the parties, however, that it should be her separate estate, ■and that all payments made on the land by the husband out of his own means</p> <p>should be considered as a repayment, pro tanto, of the moneys of the wife which he had used. Held, as against a creditor of the husband, .that the land was the. separate estate of the wife.</p>

<p>1. False Imprisonment — Arrest Without Warrant Not Justifiable, When.</p> <p>A sheriff is liable for false imprisonment for an arrest made without a warrant at the request of a third person acting on mere suspicion that the accused is guilty ■of a felony, but unable to produce any proof thereof or of a reasonable ground of suspicion, since the statute (Code Grim. Proc., art. 229) authorizes an officer tc arrest without a warrant only where it is shown on satisfactory proof that a felony has been committed, and that the accused is about to escape.</p> <p>8. Same — Imprisonment not Justifiable.</p> <p>Where an officer, upon arresting without warrant a person accused of felony, places the accused in jail, without carrying him before the nearest magistrate, about one mile distant, such imprisonment is unlawful.</p> <p>3. - Same — Good Faith of Officer as a Defense.</p> <p>An officer’s liability for the actual damages for physical inconvenience, mental anguish, and humiliation of mind resulting from an illegal arrest, is not affected by his good faith in making the arrest.</p> <p>4. Same — Liability of Person Requesting Arrest.</p> <p>The person at whose request an officer makes a wrongful arrest without warrant, is liable, as well as the officer, for false imprisonment.</p> <p>5. Charge of Court — Requested Instruction Necessary.</p> <p>Where the charge of court does not sufficiently cover a phase of the evidence favorable to the defendant, a special charge should be requested by the defendant.</p> <p>6. Practice — Admission of Evidence in Rebuttal.</p> <p>It is within the discretion of the court to permit the plaintiff, in cross-examinatian, and after he has closed his case in chief, to introduce evidence not stiictly in. rebuttal.</p>

<p>Error from Tarrant. Tried below before Hon. W. D. Harris.</p>

<p>Z. False Imprisonment — Fine for Contempt — County Commissioners’ Court — Judicial Act.</p> <p>Under 'the constitution and laws oí Texas the County Commissioners’ Court, acting within the sphere oí its powers and duties, is a court of general jurisdiction, and its action in entering a judgment of fine for contempt against a road overseer for filing an overseer’s report with the clerk containing language insulting to the court, and in erroneously ordering process to issue for the arrest oí the overseer, without notice or an opportunity given him of purging himself of the contempt, is judicial action for which the members of the court cannot be held liable in damages for false imprisonment for an arrest made under such process.</p> <p>2. Same — Sheriff Protected by Writ.</p> <p>The sheriff, acting under the orders of the County Commissioners’ Court in the execution of a writ regular upon its face, is protected by the writ, and is not required, even if so authorized, to question 'the judgment upon which the writ issued.</p> <p>8. Contempt — Judgment Final Without Notice.</p> <p>As to whether the court had not authority to render a summary and final judgment for contempt against the road overseer for insulting language in his official report to the court, in his absence and without notice to him, quere?</p>

<p>1. Boundary Line — Call for Unmarked Line — Intent.</p> <p>The owner of a survey of land had it re-surveyed and divided into numbered, quarter-sections with corners for each established on the ground, and afterwards sold two of such quarters, designating them by their numbers, but instead of calling for the corners thereof as established by the re-survey, his deed called, as did the field notes of the original survey, for an unmarked lino of an adjacent survey, which lay in fact beyond the distance called for. Held, that the question of what land the grantor intended to sell and convey was one of intention to be gathered by the jury from all the facts and circumstances in evidence.</p> <p>2. Same — Construction.</p> <p>In such case the rules that a call for an unmarked lir.e will control a call for course and distance, and that the presumption is that the surveyor actually ran the lines upon the ground, do not apply, and it was error for the court to so charge.</p> <p>3. Same — Estoppel.</p> <p>Where the .purchaser of the two quarter-sections fenced one of his lines in accordance with the corners established by the re-survey, and declared that he did not claim the land between such fenced line and the line of the adjacent survey, he will be estopped thereby as against another purchaser who, relying on such acts and statements, purchases from the common grantor such land lying next to the adjacent survey.</p> <p>4. Same — Burden of Proof.</p> <p>The burden of proof is on the plaintiff and those claiming under him to establish that the grantor intended to convey more than the land contained in the two quarter-sections, as defined and marked on the ground by the re-survey.</p>

<p>1. Passenger Carrier — Limited Ticket — Contract—Ejection of Passenger —Damages.</p> <p>On the theory of the case presented by his pleading and proof, plaintiff applied for and received a round trip ticket, sold at a reduced price, from M. to G. and return for his wife, who, as he explained to the agent selling it, wished to remain a month, and he received a ticket with a time limit of ten days on its use, and, discovering this fact, tendered its return and demanded an unlimited one, which the agent refused. The wife, having traveled to G. on the ticket, endeavored to return on it after ten days, explaining to the conductor the circumstances of its purchase and that she had no money to pay fare: the conductor refused to accept the ticket and put her off the train. The theory presented by defendant's proof, was that no request was made for a longer limit than ten days, and no offer to return the ticket or demand for return of money, or extension of time. Held:</p> <p>(1.) It was error to submit defendant’s theory of the case in a charge which required the jury in order to return a verdict for defendant to find that the ten days’ limitation was a reasonable one, the time required for the round trip being but two days, and there being nothing in the case to raise such issue.</p> <p>(2.) If the contract was in fact for a ticket good for thirty days, plaintiff could recover, though the agent in issuing the ticket limited it to a shorter time.</p> <p>(3.) The proposition by plaintiff to the agent to sell him a ticket good for thirty days would not constitute a contract unless agreed to; but the ticket was not conclusive evidence of the contract.</p> <p>(4.) Instructions as to the duty of the conductor to investigate the statements made by plaintiff’s wife, as to her right to ride on the ticket, should be •omitted. Her right depended on the contract, and not upon his investigating or failing to do so.</p> <p>(5.) Plaintiff’s right of recovery was not limited to damages accruing up to the time of the agent’s refusal to correct the ticket. If the contract was made, as •claimed, such refusal would not deprive plaintiff of his right to insist upon its performance, or to assume that defendant would finally comply with it.</p> <p>2. Damages — Charge.</p> <p>In suit for wrongful ejection of plaintiff’s wife from a passenger train, the instruction was to find for plaintiff “such damages as in your judgment he may be entitled to, not to exceed one thousand dollars." Held, that it would be best to give in full the rule with reference to the measure of damages in cases of this •character.</p>

<p>1. Evidence — Harmless Error.</p> <p>Error in admission of evidence is not ground for reversal, where same proof was made by other witnesses without objection.</p> <p>2. Same — Transaction with Decedent.</p> <p>In a suit against survivor of community upon contract alleged to have been made by plaintiff with deceased, plaintiff being prohibited from testifying, evidence by a third party that he was negotiating with deceased prior to his ■death, with reference to a similar contract about the same subject matter, may be admitted as a circumstance to support plaintiff’s claim.</p> <p>3. Damages — Profits of Contract.</p> <p>Where plaintiff and deceased contracted for purchase of land in name of deceased, and a division of the profits of the venture upon its sale, the measure of plaintiff’s damages for the refusal of surviving wife of deceased, administering the community estate, to carry out such contract was not restricted to the value of the services rendered by him; he could recover the profits of his venture under the contract, estimated on the basis of the value of the land at the time of the refusal of the representative of deceased to carry it out.</p> <p>-4. Same — Charge.</p> <p>See charge of court presenting foregoing measure of damages, held not subject to the objection that it did not allow defendant credit in the division of profits, for interest on the purchase money notes given for the land.</p> <p>-5. Contract by Deceased — Proof.</p> <p>See evidence of declarations of deceased held sufficient to establish the contract by heir.</p>

The instruments referred to in the petition as exhibits A” and “B” were as follows: “EXHIBIT A. “The State of Texas, County of Mason. Know all men by these presents that I, Wm.

<p>1. Pleading — Damages for Personal Injury.</p> <p>A petition in a suit for personal injuries specified, among the items of damages' claimed, "For necessary medical attention for which he created liabilities as follows: $250 for doctors’ bills and $100 for drugs and medical bills.’’ This was sufficient, without specifying dates, amounts and items. A special demurrer was, properly overruled, and evidence of the various items properly admitted.</p> <p>2. Improper Evidence — Withdrawal.</p> <p>Evidence of impairment of mind, admitted over defendant’s objection, the-jury were afterwards instructed to disregard, because not alleged. If there was. error in its admission, it was not cause for reversal when the evidence was so withdrawn and the verdict did not appear large.</p> <p>3. Damages — Evidence—Permanent Injury — Expectation of Life.</p> <p>See opinion for evidence held sufficient proof of permanent injury to form a. basis for introduction of evidence of plaintiff’s expectancy of life.</p> <p>4. Railway Company — Passenger—Who Is.</p> <p>One who has,entered a railway passenger coach after the train is made up and' ready, for the purpose of talcing passage thereon, intending to pay fare and being prepared to do so, is a passenger, though he has not procured a ticket. See charge on this subject held proper, and evidence held sufficient.</p> <p>5. Charge — Assuming Negligence.</p> <p>A charge that under certain supposed facts, plaintiff would be a passenger, “and defendant would be liable for injury to him because of the negligence of its employes," does not assume that defendant’s employes were negligent.</p> <p>6. Charge — Hypothetical—Insufficient.</p> <p>A charge which attempts to direct the jury as to the law applicable to the-particular facts in the case should include in Its statement of the facts requiring a given finding every hypothesis, supported by the evidence, which would require such finding See charges, as to what results of negligence would be considered remote, held insufficient in this particular.</p> <p>7. Negligence — Proximate and Remote.</p> <p>Injuries received by a passenger in rendering assistance to those wounded in a railway accident — as, from strain in lifting — are not proximate results of the negligence causing the accident. See action in giving and refusing charges held error for failing to include this among the results for which there could be no-recovery.</p>

<p>Insurance — Additional—“Valid or Not.”</p> <p>A policy of insurance conditioned to be void if the assured shall now have, or hereafter procure any other insurance “whether valid or not” on the property insured, is avoided by assured procuring- without insurer’s permission a policy on the same property from another company, though the last policy was void because it contained a similar clause and was procured without permission for the concurrent insurance maintained in the first policy.</p>

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

<p>Title to Land — Evidence—Eecitals in Patent.'</p> <p>A patent issued to an assignee described the original certificate and recited transfers by mesne conveyances to De C. the ancestor of defendant, and from him to the patentee. Plaintiff having showed chain of title from the patentee, defendant introduced the transfers of the certificate, recited in the patent, down to his ancestor. Held:</p> <p>1. On this proof plaintiff was entitled to recover the land.</p> <p>2. The Commissioner of the General Land Office being empowered to pass on the sufficiency of the transfers, his recitals in the patent of such transfers, from defendant’s ancestor, by mesne conveyances to the patentee will be presumed to be true until disproved.</p> <p>3. The patent conveyed the legal title to patentee and entitled those holding his title to recover until a superior equity was shown, which was not done by the mere introduction of a part of the transfers recited in the patent.</p>

This case was previously before the court upon an appeal from a judgment recovered by plaintiff in the lower court. It was then found as a fact that there was a temporary vacancy of the insured premises, which, however, was held by this court not to avoid the policy. Insur-' anee Co. v. Kempner, 25 S. W. Rep., 999. Hpon writ of error this, ruling was reversed by the Supreme Court.

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

<p>Homestead — Mechanic’s Lien — Mortgage—Contract to Furnish Labor and Material.</p> <p>An instrument by which a loan and building company agreed to furnish the labor and material required for the erection of a house on a homestead lot, retaining a lien on the premises for the moneys to be paid therefor, and which was ■executed by weekly payments made by the company to the contractor, there being no proof that the contract was a subterfuge to cover up a loan on the homestead, must be held a mechanic’s lien contract giving a valid lien on the premises, ■•and not a mortgage on the homestead.</p>

<p>Appeal from the County Court of Gonzales. Tried below before Hon. J. S. Conway.</p>

<p>1. Parties — Foreclosure of Mortgage.</p> <p>In an action to foreclose a mortgage upon land, third persons in actual possession oí the land, and having an equity oí redemption therein, are necessary parties.</p> <p>2. Venue — Foreclosure of Mortgage.</p> <p>Where a note secured by a mortgage upon land is payable in a county other than where the land is situated, an action to foreclose the mortgage is properly brought in such other county, both as against the maker of the note and as against third persons in actual possession of the land.</p> <p>3. Deed — Description.</p> <p>The description of land in a deed as all the land which the grantor owned or in which he had an interest in a given county, is sufficient to pass the title to the land owned by him in such county.</p> <p>4. Notice — Possession of Grantor after Conveyance.</p> <p>Where a grantor remains in possession after a conveyance of the land by deed absolute in terms, his possession will be presumed to be in subordination to his deed.</p> <p>5. Homestead — Mortgage Upon Becomes Effectual When — Deed Absolute —Absence of Notice.</p> <p>Where a homestead is conveyed by a deed absolute in terms, but in reality a mortgage, because given to secure a debt, and the grantors remain in possession, they cannot assert the homestead right against the enforcement of a lien upon the property acquired from the grantee by a third person, without notice, actual or •constructive, that their deed was intended as a mortgage, or that the land was .homestead property.</p>

<p>1. Venue — Transitory Action — Suit in Another State.</p> <p>A foreign railway corporation whose line of road extends through New Mexico .and Texas, may be sued in a court of the latter State by a resident of New Mexico, for the value of personal property in New Mexico, destroyed by fire from its engine, but the Texas court may, at its option, decline to take cognizance of such case.</p> <p>2. Misnomer in Name of Corporation — Plea in Abatement — Limitations.</p> <p>A misnomer in the name of a defendant corporation, where citation is duly served on the proper party, must be taken advantage of by plea in abatement, and where the defendant answers to the merits, without objection to the misnomer, it cannot, after the action would be barred, plead limitation as against an amendment correcting the misnomer.</p> <p>3. Foreign Law — Presumption.</p> <p>In the absence of allegations and evidence to the contrary, it will be presumed, in an action transitory in its nature and arising in another State, that the laws governing a recovery there are the same as those of Texas.</p>

<p>1. Insurance Policy — Arbitration and Award — Pleading.</p> <p>In an action to vacate an award and appraisement of loss under an insurance policy, plaintiff’s petition properly alleged that defendant apparently agreed to arbitrate the loss, but failed and refused to meet the arbitrators at divers times set therefor by plaintiff, in order to admit evidence showing bad faith on the part of defendant in entering upon the arbitration.</p> <p>2. Same — Partiality of Appraisers.</p> <p>Allegations in such an action that the arbitrators were partial to defendant, and that one of them was an employe of defendant and other companies interested in the loss, were averments of material facts, and not conclusions of the pleader.</p> <p>3. Same — Reasonable and Cash Value of Property.</p> <p>The reasonable value, and the “actual cash value” (as mentioned in the policy) of the property destroyed, may be treated as the same, where no special value of the property was alleged, and the evidence shows no difference between such values.</p> <p>4. Same — Partiality Vitiates Award.</p> <p>Where arbitrators are partial to one of the parties, and the award is the result of such partiality, and for an inadequate amount, it cannot be upheld.</p> <p>5. Same — Inadequacy of Award.</p> <p>The inadequacy of an award is to be considered in determining the bias or prejudice of the appraisers, and a party is entitled to know what it is before acting on the theory that it has been unfairly made.</p> <p>6. Same — Appraisers Must Be Impartial.</p> <p>An appraiser is in no sense the agent of the party appointing him, but remains under the duty to be fair and unprejudiced, and where he is not disinterested, good ground is shown for setting aside an appraisement which is grossly below the actual loss sustained.</p>

<p>1. Deed — Delivery—Oral Conditions.</p> <p>A deed without conditions therein takes effect on its delivery by the grantor to the grantee, without regard to an oral condition, agreed to by the grantee that the deed should become null and void upon his failure to remove to the land within a specified time, and evidence of such agreement is inadmissible.</p> <p>3. Same — Delivery to One of Several Grantees.</p> <p>Where a deed conveys land to a married woman for life, then to become the property of her children, and in case she dies without children, her husband to have the use thereof during his life, a delivery of the deed to her is a sufficient delivery as to the husband and the children.</p>

<p>1. Municipal Corporation — Judgment Against City — Enforcement—Current Expenses Have Preference.</p> <p>Where the law permits a city to maintain systems of waterworks and lights, and a fire department, the expenses thereof are entitled to he paid out of the fund available for general purposes, in preference to a debt not a part of the current expenses of the city, such as a judgment against it for a tort.</p> <p>3. Same — Maximum Limit of Taxation — Mandamus to Compel Additional Levy.</p> <p>Where a city’s levy of taxes for general purposes reaches the maximum constitutional limit, and the taxes so levied and its other available funds are all required for the expenses of its maintenance, a judgment creditor cannot by mandamus compel an additional levy for the purpose of satisfying his judgment against the city.</p> <p>3. Same — Warrant on General Eund Denied.</p> <p>Nor in such case is the judgment creditor entitled to an order requiring the-issuance of a warrant payable out of the general fund according to its number.</p> <p>4. Same — Special Eund — Discretionary Power.</p> <p>Article 372, Revised Statutes, authorizing city councils to provide special funds for special purposes, confers upon the council a discretionary power which cannot be controlled by mandamus at the instance of a judgment creditor of the-city.</p> <p>5. Same — Mandamus—Diversion of Eunds.</p> <p>That unless a mandamus is granted in some form requiring payment of a judgment against a city, it may never be satisfied, is not a consideration that will justify the diversion of the city’s income from the purpose to which the law intends it to be primarily applied.</p> <p>6. Same — Waterworks—Special Eund.</p> <p>The constitutional provision for collecting 25 cents on the $100 valuation for city-purposes, and a like amount for streets, waterworks, and other permanent improvements, does not contemplate that the expenses of operating waterworks after erection shall be provided for by a special fund, such provision being for-creating the improvements.</p>

<p>1. Final Judgment — Amendment by Supplemental Bill.</p> <p>Where a vendor recovers a final judgment in an action upon the first one of a series of purchase money notes, foreclosing his lien upon the entire property, he cannot by a “supplemental bill” filed at a subsequent term of court have the judgment amended so as to reserve and fix the lien of the other notes on the surplus that might arise from the sale of the property after satisfying the judgment.</p> <p>2. Same — Direct Proceeding Necessary — Grounds for.</p> <p>A final judgment cannot be altered or amended at a subsequent term, except on a direct proceeding brought for that purpose, showing that the error sought to be corrected was the result of accident, material mistake, or the fraud of the opposite party.</p> <p>3. Final Judgment on Supplemental Bill. — Appeal.</p> <p>Where a supplemental bill is filed to amend and carry into effect a judgment entered at a prior term, the decree rendered on the hearing of such bill is, as to the right of appeal therefrom, a final judgment, and not an interlocutory decree.</p>

<p>1. Contract — Construction—Duty of Court to Construe.</p> <p>A written instrument executed by P. acknowledged the receipt from T. of $1000, to be applied by P. in the purchase of a certain patent right, and recited further: “It is agreed that T. is to have one-third interest in the above purchase, the remaining two-thirds to belong to P., and for and in consideration of T.’s advancing the above $1000, I promise to return to T. the aforesaid $1000, with interest, on or before ninety days.” Held, that the contract was not in any sense ambiguous; that P. was not entitled under it to charge T. with one-third of said amount; that T. was entitled to recover from P. the full amount named, with interest, and that it was the duty of the court to 'so charge the jury, without leaving the construction of the contract to them.</p> <p>8. Agent’s Commissions — Charging Both Buyer and Seller.</p> <p>Where a real estate broker represents the buyer, and, without the knowledge of the buyer, also represents the seller, and receives a commission from the seller by virtue of an agreement to that effect entered into before the sale was made, he cannot recover commissions of the buyer.</p>

<p>1. Fire Insurance Policy — Transfer of Property — Waiver of Forfeiture by Subsequent Assent.</p> <p>Where a fire insurance policy has become void by reason of a transfer of the property, the forefeiture is waived and the policy is restored to effect upon the company’s giving to a remote grantee of the insured consent to transfer of the policy, although it had knowledge merely that the title had vested in such grantee, but did not know of the intermediate conveyances; and it is immaterial that the consent is in terms to the transfer of the interest of the insured in the policy.</p> <p>2. Same — Consideration for Transfer of Policy.</p> <p>Where the time for which the premium that has been paid on a policy has not expired when consent to transfer of the policy is given, this is a sufficient consideration for the company’s consent to the transfer, although it might have then insisted on a forfeiture of the policy.</p> <p>3. Judgment Lien — Evidence—Abstract of Judgment.</p> <p>In order to show a lien, there must be proof of an existing judgment, and this cannot be shown by the introduction in evidence of only an abstract of judgment.</p>

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

<p>1. Fire Insurance Policy — “Actual Cash Value” of Property.</p> <p>Where an insurance policy stipulates that the company should not be liable beyond the “actual cash value” of the property destroyed, proof of its “fair market value" is sufficient.</p> <p>2. Same — “Last Inventory.”</p> <p>A stipulation in a fire insurance policy that the insured shall keep in an iron safe, etc., the last inventory of the business, will be construed as meaning the last inventory of the goods insured, and it need not include office furniture not covered by the policy.</p> <p>'3. Same.</p> <p>The fact that certain items sued for as destroyed by the fire did not appear on the inventory, does not show the inventory to have been incomplete, where it was taken some time before the fire occurred, and additions had been made to the stock insured.</p> <p>4. Same — Ascertainment of Loss — Appraisement.</p> <p>It is no defense, in an action upon a fire insurance policy providing that the estimate of the loss incurred by the insured shall be made by the insured and the company, or if they disagree, by appraisers, that the loss has not been so ascertained, where there has been no actual disagreement between the insured and the company, but the company has simply failed, when notified and called upon by the assured, to take any action in ascertaining the loss.</p> <p>5. Practice on Appeal — Conclusions of Pact.</p> <p>The requirement of the statute that the Courts of Civil Appeals shall file conclusions of fact, does not require that they should also file a detailed statement of the facts upon which the conclusions are based.</p>

<p>1. Contract — Signature of One Party Only.</p> <p>A contract made by a building association for the erection of a house was signed by the contractor and delivered to the association, and upon the erection of the house, the association paid the contractor therefor. Held, that the contract was valid, though not signed by the association and was admissible in evidence in a suit between the association and the party for whom the house was erected.</p> <p>2. Subrogation — Vendor’s Lien.</p> <p>Where a loan company pays off and discharges vendor’s lien notes with money loaned by it to the maker of the notes, it is entitled to be subrogated to the lien of the holder of the notes.</p> <p>3. Contract for Improvements on Homestead — Lien.'</p> <p>A written contract duly executed by the husband and wife for the erection of improvements on the homestead creates a valid lien, and all the written instruments subsequently executed in reference thereto, such as orders for the payment of the money, subscription of stock in the loan company, etc., will be construed together in connection with the contract in determining whether the loan company is entitled to a lien for the moneys so paid out.</p>

<p>1. Deed — Parol Evidence Varying — Different Estate.</p> <p>A deed absolute in terms cannot be varied by evidence of a contemporaneous paroi agreement by the grantee that he would either devise the land to the grantor or reconvey the same to her, reserving to himself a life estate therein, thus changing the.estate conveyed from a fee simple title to a life estate.</p> <p>2. Deed of Married Woman — Fraud and Duress — Certificate of Acknowledgment.</p> <p>Where a wife conveys land to a trustee for the benefit of the husband, in a separation settlement, the husband is not protected by the officer’s certificate of * acknowledgment to the deed, as would be a bona fide purchaser; and in an action by the wife against the husband’s executors and devisees to recover the land, she is entitled to show that the deed was procured by the fraud and duress of the husband, without alleging that the officer who took the acknowledgment acted fraudulently or illegally, or that he certified to facts not really true.</p> <p>3. Evidence^-r-Transaction with Decedent — Suit Against Devisees.</p> <p>Where an action is brought against the executors of the husband for certain property held by them in trust for his devisees, the plaintiff’s petition alleging that the legal title is in such devisees, and that the executors hold possession for the devisees, the provisions of article 2248 of the Revised Statutes, prohibiting a party to the suit from testifying as to statements by and transactions with a decedent, do not apply, unless it be further developed that the suit is prosecuted against the executors as the legal representatives of the estate.</p> <p>4. Evidence — Will—Probate Necessary.</p> <p>A paper purporting to be a will is not admissible in evidence as such without having been probated as a will.</p> <p>5. Charge of Court — Issue not Eaised by the Evidence.</p> <p>It is the duty of the court to charge only the law governing the issues involved in the case, and not the law applicable to the facts of a hypothetical state of case merely furnishing an argument.</p>

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

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

<p>1. Parties — Married Woman Suing Alone — Abandonment.</p> <p>Where the wife has, without fault upon her part, been abandoned by the husband for nearly a year, and the separation seems to be permanent and she is left without means of support, she may maintain an action in her own name for damages for a personal injury to herself.</p> <p>2. Bailway Company — Liability for Assault by Its Agent Upon a Passenger.</p> <p>Plaintiff, holding a valid ticket over the line of defendant ■ railway company, was taken to its depot by transfer from a connecting line about ten hours in advance of the time when defendant’s train upon which she was traveling would leave that night, The depot remained open at all hours, and with the assent of the depot agent she remained there awaiting the train, and after night was assaulted, by the night agent of defendant while waiting for the train. Held, that defendant owed the plaintiff as a passenger the duty of protection, and was liable in damages for such assault.</p>

<p>1. Appeal by Plaintiff — Cross Appeal by One Defendant — Appeal Bond Necessary.</p> <p>Plaintiffs, in an action for the title' to land brought jointly against B. and H., recovered judgment against B.; and from the judgment in favor of H., they appealed. B. gave notice of cross appeal from the judgment against him, and filed an assignment of errors, but failed to execute any appeal bond. Held,' that the judgment against B. was not appealed from, and would not be reviewed.</p> <p>2. Brand as Affecting Joint Participant in Its Benefits — Cancellation of Deed.</p> <p>Where two persons are acting together in the acquisition of certain lands, the fraud and false representations of one of them, whereby a deed is procured vesting the title in them both, will affect the other, and such deed will be canceled as to his interest as well as that of his associate.</p>

<p>1. Public Land — Homestead Donation — Actual Residence Necessary.</p> <p>An application for public land under the homestead donation laws has no validity where the applicant is not actually and personally residing on the land at the date of the application; a former settlement on the land with an intention to return to it being insufficient, as also a possession of the land by tenant.</p> <p>2. Same — Estoppel—Contract Ineffectual.</p> <p>One who is living on vacant public domain is not estopped from acquiring it from the State under the homestead donation laws, by accepting the obligation of another person to convey a part of the land to him, when the other shall have acquired patent or legal right thereto — such other person not then residing on the land and his application therefor being invalid on that account.</p>

<p>1. Bailway Company — Shipment of Cattle — Delay Not Unreasonable.</p> <p>Plaintiff shipped a carload of cattle (45 head) from Texas to Louisiana, and at a point on the way the car was set out from the train, in order that the cattle, after twenty-eight hours’ confinement, might be unloaded, fed, and rested 'for five hours, as required by article 4385 of the Revised Statutes of the United States, and was sent forward by the next regular freight train which passed such point seven hours after the expiration of the five hours. Held, in an action for damages by the shipper, that an unreasonable delay was not shown.</p> <p>2. Same — Evidence—Presumption.</p> <p>Article 4388, Revised Statutes of the United States, provides that when animals are carried in cars in which they can and do have proper food, water, space and opportunity to rest, the provisions in regard to their being unloaded for five-hours shall not apply. Plaintiff accompanied the cattle, and, in an action against the railway company for damages for delay, testified that there was no necessity to stop and unload the cattle in order to feed and water them, but was silent as to whether there was proper space in the car for them to rest. Held, that the presumption would obtain that the stoppage was made in a proper endeavor to comply with the law.</p> <p>3. Same^-AIlegation of Partnership Between Railroads.</p> <p>Plaintiff’s pleading in a Justice Court sufficiently charged a partnership between two railroads to require a denial under oath, where it alleged that the roads “jointly undertook to transport freight over said two roads, receiving a proportional share of the tariff charges, and did under said arrangement existing between them enter into said contract and undertook to transport plaintiff’s cattle,’’ and also averred that the agent who signed the contract for the defendant was the agent of both.</p> <p>4. Same — Pleading—Recovery Only for Damages Alleged.</p> <p>Where plaintiff, in an action against a railway company, claimed in his pleading only the loss in the market value of cattle as the result of delay in their shipment he was not entitled to recover damages consisting of expenses incurred in keeping the cattle at the point of their destination.</p>

<p>1. Garnishment — Clerk of Court as Garnishee — Disqualification.</p> <p>The clerk of a court, In a garnishment proceeding filed in such court, took the plaintiff’s affidavit for garnishment, which charged such clerk and two others as garnishees, issued the writ of garnishment, and took and filed the answers of the garnishees. The affidavit did not charge the garnishees with a joint liability, and no exception was taken to any of the proceedings by the gar-</p> <p>nishees in the court below. Held, that as to the judgment against the two other garnishees, no reversible error was shown.</p> <p>Í3. Same — Approval of Garnishment Bond.</p> <p>The fact that the clerk approved plaintiff's bond in garnishment was immaterial, since, in this case, the plaintiff being a judgment creditor, no such bond was required by law.</p> <p>3. Same — Agent Holding Note Not Liable.</p> <p>A promissory note in the hands of an agent for collection cannot be reached by garnishment of such agent.</p> <p>4. Same — Proceeds of Homestead Liable.</p> <p>Notes given for the purchase money of a homestead are not exempt from garnishment for debt.</p>

<p>Bailway Company — Use of Track by Licensee — Failure to Provide Buies.</p> <p>The omission of a railway company to provide rules and regulations governing-the use of its tracks by two other corporations, using them as mere licensees, without contract or compensation paid therefor, will not render the company liable for injuries to an employe of one such licensee corporation resulting from the-negligence of the other in the use of the tracks.</p>

<p>1. Continuance — Third Application — Want of Diligence.</p> <p>A third application for continuance is properly refused, where it is made on account of the absence of a witness who was also absent at the preceding- term of court, and no diligence appears to have been used to secure his evidence by-deposition.</p> <p>2. Carriers of Passengers — Utmost Degree of Care — Alighting from Train.</p> <p>It is the duty of a common carrier of passengers to exercise the utmost care “which can be exercised under all the circumstances short of a warranty of the safety of the passengers;” and this degree of care extends to providing proper and suitable appliances to enable the passengers to safely alight from the train at the end of the journey.</p> <p>3. Same — Damages—Loss of Time.</p> <p>In an action against a railway company for personal injuries to the wife, the husband may recover damages for the time lost by her on account of the injuries, and also for the time lost by himself in waiting upon her.</p>

<p>1. Railway Company — Public Road Crossing — Construction of Statutes.</p> <p>There is no substantial difference in the degree or extent of duty imposed upon a railway company by article 4170, Sayles’ Civil Statutes, in making it the duty of such company, when crossing a public highway with its track, to restore the highway to its former state, “or to such state as not to unnecessarily impair its usefulness,” and that imposed by article 4170b, requiring that every railroad company shall “place and keep that portion of its roadbed and right of way over or across which any public county road may run in proper condition for the use of the traveling public.”</p> <p>2. Same.</p> <p>By “proper condition for the use of the traveling public,” is meant simply a condition reasonably suitable for the ordinary public travel.</p> <p>3. Same — Charge of Court — Assumption of Fact.</p> <p>Upon an issue as to the condition of a public road crossing, a charge of court requiring the jury, in the event the crossing had not been placed in proper condition, to determine as a fact whether the failure to place it in “better condition than it was” was due to defendant’s negligence, does not assume that the crossing had not been placed in proper condition.</p> <p>4. Same — Construction of Statute — Penalties Cumulative.</p> <p>The fact that article 4170b, Sayles’ Civil Statutes, provides penalties and a method of procedure to enforce them, for neglect of a railway company with reference to public road crossings, does not relieve the company from the duty to the traveling public there imposed.</p> <p>5. Same — Evidence—Condition of Crossing.</p> <p>In an action against a railway company for damages resulting from the improper construction of a public crossing, evidence is not admissible to show that citizens living in the vicinity of the crossing had never complained to the road authorities of such crossing being improperly constructed, and that the county commissioner for that precinct had examined the crossing from time to time and reported to the Commissioners Court that it was of sufficient width and in proper condition.</p>

<p>1. Homestead Exemption — Value of City Lots — Time of Designation.</p> <p>Where the head of a family has designated as his residence and business homestead certain city lots worth less than $5000 at the time, he can not afterwards add another lot to the homestead exemption, if in the meantime the original lots have increased in value beyond the constitutional limit of $5000, exclusive of the improvements thereon.</p> <p>S¿. Same — Second Designation.</p> <p>Under section 51, article 16, of the constitution, providing that, “The homestead in a city shall consist of a lot or lots not to exceed in value $5000 at the time of' their designation as the homestead, without reference to the value of any improvements thereon,” a second designation of the homestead may be made, so as to include property acquired since the first one, but in such case the entire property so designated must be within the constitutional limitation of value, estimated at the date of the last designation.</p>

<p>1. School Districts — Change of District — Majority Vote.</p> <p>Section 40, Acts oí 1S93, p. 194 (Revised Statutes 1895, art. 3938), provides that when the County Commissioners Court has established school districts, “they shall not be changed without the consent of eC majority of the legal voters in all districts affected by such change.” Held, that a proposition to form a new district from portions of two established districts must obtain a majority vote in each of the two districts, and, without this, that a majority of the aggregate vote of both the districts is not sufficient.</p> <p>2. Same — Void Order of County Commissioners Court.</p> <p>An order of the County Commissioners Court creating such new district, where-one of the districts affected had not given a majority in favor of the change, is. void and subject to collateral attack.</p>

<p>1. Foreign Corporation — Eight to Sue — Failure to File Certificate, etc.— Pleading.</p> <p>An Ohio corporation brought an action for conversion of certain vehicles which it had placed with a Texas firm for sale on commission, and which had been seized by a creditor of such firm, and the defendant pleaded in answer a failure of plaintiff to comply with the requirements of the act of 1889, page 87, requiring "any foreign corporation desiring to transact business in this State, or solicit business in this State, or establish a general or special office in this State," to file with the Secretary of State a duly certified copy of its articles of incorporation, and denying the right of any such corporation to maintain an action “in any of the courts of this State upon any demand, whether arising out of contract or tort, unless at the time such contract was made or tort committed” it had so filed its articles of incorporation; but such pleading nowhere alleged that the plaintiff corporation had ever transacted or solicited business or established an office in Texas, or that it had desired to do so. Held, that the pleading did not show plaintiff to be a foreign corporation of the class which the act of 1889 required to file articles of incorporation with the Secretary of State, and would not warrant a judgment in bar of the action.</p> <p>2. Same — Interstate Commerce.</p> <p>The act of 1889, page 87, was not intended to apply, and does not in terms apply, to foreign corporations not undertaking to do business in this State,'and could not be made to apply to such foreign corporations while engaged in interstate commerce.</p> <p>3. Same — Strict Pleading Eequired.</p> <p>The act of 1889, page 87, relating to foreign corporations, is penal in its consequences, and where a defendant who has tortiously converted the property of a foreign corporation invokes such statute in defense, he should be held to the same strictness in pleading as is required of one claiming a statutory penalty.</p>

<p>1. Action for Stolen Money — Abatement—Pendency of Criminal Prosecution.</p> <p>In a civil action to recover judgment for money stolen by the defendant, a motion to abate or stay the suit until the termination of a pending criminal prose- • oution for the theft is properly denied.</p> <p>2. Assumpsit for Stolen Money — Waiver of Tort.</p> <p>Where money has been stolen, or property stolen which has been converted into money, an action of assumpsit against the thief may be maintained therefor as for money had and received upon an implied promise, and the tort is thereby waived.</p> <p>3. Same — Attachment Will Lie in Such Case.</p> <p>Where an action against a thief to recover judgment for stolen money is brought as for money had and received upon an implied promise, the tort is thereby waived, and the action will be regarded as one e-x contractu, in which an attachment against the property of the defendant will lie.</p> <p>4. Same — Charge of Court — Error Not Misleading.</p> <p>In an action to recover judgment for money alleged in the petition to have been fraudulently and unlawfully, and by means of false pretense, and without the knowledge of the plaintiff, taken from plaintiff by defendants, the evidence showed that the money was stolen from under plaintiff’s pillow, while he was asleep, without proof of any false pretense; and the court instructed the jury to find for plaintiff, if defendants unlawfully “and by means of false pretense,” and without the consent of plaintiff, took the money from him and appropriated it to their own use. Held, that the error was not misleading, nor to the prejudice of the defendants.</p>

The appellant bank brought this suit against Bryan on a promissory note, and attached certain sheep which, by order of the court, were sold, as perishable property, and the proceeds paid to the cleric. Trammel & Co., the purchasers at this sale, intervened, claiming the proceeds under a mortgage of the sheep given by Bryan to secure a note to them. On the trial the court directed a verdict awarding the proceeds of the sale to intervenors and from this plaintiff appealed.

<p>1. Carrier — Delivery—Conversion.</p> <p>A horse shipped from Kentucky to Texas was received hy a railroad from a. connecting line under a way hill designating T. & W. as the consignees; and being transported to its destination, it was there demanded by F., the owner, who refused to produce a bill of lading or other evidence of his right to have the horse delivered to him: delivery being declined unless F. obtained authority therefor from T. & W., and the horse having been sold by the carrier as unclaimed perishable property (Rev. Stats., 327-330), in a suit by F. for the value of the horse, as upon a conversion, held: (1) the refusal to deliver to F. under the circumstances was no conversion. (2) The carrier was not bound to accept the state-</p> <p>-ment of F., that he was the owner, as true. It was its duty to exercise caution in delivering the property, being liable, in all events, for delivery to those entitled to receive it. (3) It was not its duty to obtain and furnish F. the evidence of-his right to receive the shipment, but was his to furnish same to carrier. (4) See case for fuller statement of facts under which conduct of carrier in refusing to surrender property to owner without evidence of his right and selling same on his failure to produce such evidence was held proper and no conversion of the property.</p> <p>.2. Practice in Appellate Court.</p> <p>Where facts were such that a verdict should clearly have been rendered for defendant, and it was not reasonable to suppose that plaintiff’s case can be strengthened on another trial, upon an appeal from a judgment upon a verdict recovered by plaintiff below, the Appellate Court reversed and rendered judgment for defendant.</p>

Tried below before Hon. R. E. Brooks. Plaintiffs were passengers on defendant’s road from Taylor to Granger. In alighting at the latter place the husband got off first with their child in his arms; the wife attempting to follow, as fast as possible, was thrown down and injured by the starting of the train with a sudden jerk while so doing, the train barely coming to a stop. This was the theory supported by plaintiffs’ evidence.

<p>1. Homestead — Abandonment—Beturn.</p> <p>Acquisition of a new homestead is not absolutely essential to abandonment of homestead rights. Where the testimony supported a finding that a husband and ^ wife had removed from the State with the intention not to return existing at the time execution was levied on their homestead, they had abandoned their rights and could not defeat the levy by returning and reoccupying it.</p> <p>2. Execution Sale — Advertisement.</p> <p>Failure to advertise an execution sale as required by law will not defeat the title of a purchaser, though bought by the plaintiff in execution and for an. inadequate price.</p> <p>3. Evidence — Witness’ Understanding.</p> <p>On a question of abandonment of homestead by husband and wife, the latter had testified that K. knew of their intentions in removing from the homestead. It was proper to permit the opposite party to prove by K. that she understood and believed their removal was to be permanent, though she could not recall that either of them had explicitly so stated.</p> <p>4. Trespass to Try Title.</p> <p>It was proper to render judgment for the land against a defendant who had answered only by a general demurrer, though no proof connected her with the property.</p>