Volume 14 — Texas Civil Appeals Reports

<p>1. Married Woman—Post-Nuptial Contract with Husband—Community Interest.</p> <p>A contract entered into after marriage, by which the wife agrees not to claim her community interest in the property, is void.</p> <p>2. Same—Parol Gift by Husband.</p> <p>The husband may during marriage make a paroi gift to his wife of money arising from money loaned belonging to the wife, and such property becomes her separate property.</p> <p>3. Same—Bight of Wife to Make Will—Assent of Husband.</p> <p>The will of a married woman will convey the property therein devised, if it is her separate property, and if it is community property, it will convey her half interest therein, whether the husband assents thereto or not.</p> <p>4. Practice—Admission of Immaterial Evidence.</p> <p>The erroneous admission of evidence that could not have materially affected the verdict, is harmless error.</p> <p>5. Foreign Law—Presumption.</p> <p>In a contest between the husband and the heirs of his deceased wife as to property acquired in another State, the court correctly charged, in the absence of proof as to the law of such other State relative to community property, that the rights of the parties should be determined under the laws of Texas.</p> <p>6. Practice on Appeal—Assignments of Error.</p> <p>Assignments of error that the verdict and judgment are erroneous, without any proposition thereunder showing in what respect they are erroneous, will not be considered.</p>

<p>1. Fire Insurance Policy Upon Building and Merchandise—Divisibility.</p> <p>Where a fire insurance policy covers a storehouse and merchandise contained there!-, it is divisible, and the violation of a provision relating only to the merchandise will not bar a recovery for loss of the building and fixtures.</p> <p>2. Same—Iron Safe Clause not Warranty, When.</p> <p>Where an iron safe clause, requiring the assured to keep his books, invoices and inventories securely locked in a safe at night, is printed on a slip of paper and attached to the margin of an insurance policy, but is not referred to in the body of the policy so as to identify it as a part of the contract of insurance, it is merely a representation and not a warranty. Following Goddard v. Insurance Co., 67 Texas, 69.</p>

<p>Survey—Supposed Vacant Strip—Burden of Proof—Patent.</p> <p>In an action by plaintiff to recover a strip of land for which he had obtained patent from the State upon the theory that it was originally a vacant strip left between two older surveys, but which was claimed by the defendant as being included in one of such elder surveys, the court correctly charged that the burden of proof was upon plaintiff to establish that the disputed land was left vacant between the older surveys before he could recover, and properly refused to charge that after plaintiff had introduced in evidence his patent therefor from the State, it then devolved upon the defendant to show the invalidity of such patent.</p>

<p>Municipal Corporation—City Warrant—Designation of Fund.</p> <p>A city warrant with caption as follows: “Public School Fund. $598.20. City Warrant,” directed the payment to plaintiff of the $598.20 “for plans and specifications for brick school house.” Held, that the warrant sufficiently complied with the requirement of article, 409, Revised Statutes, 1895, prescribing that it should showupon its face “for what purpose” it was issued, and sufficiently designated the fund it was a charge upon, it not appearing that the city council had provided any special fund out of which such indebtedness should be paid. "</p>

<p>Appeal from Navarro. Tried below before Hon. Rufus Hardy.</p>

<p>1. Special Issues—Charge Submitting, and Finding by Jury, Held Sufficient.</p> <p>In an action upon a large number of notes of defendant to plaintiff, the defendant claimed greater credits than plaintiff had allowed him in as many as eleven different instances. The case was submitted to the jury upon special issues, and the court charged them to find for defendant certain undisputed credits, and further submitted to them the question as to any other credits defendant might be entitled to, and they found that defendant was entitled to several other credits, but none of« the eleven were included therein. Held, that the charge sufficiently covered the issue, and the finding was responsive thereto.</p> <p>2. Same—All Issues Must be Submitted.</p> <p>Where a case is tried upon special issues submitted to the jury, the verdict cannot stand unless all the issues made by the pleadings are submitted and determined.</p> <p>3. Same—Assuming Fact.</p> <p>It is error for the court to assume a fact about which the evidence is conflicting, and thereby fail to submit to the jury the issue relative to such fact.</p> <p>4. Jury—Verdict—Third Person in Jury Boom.</p> <p>It was error for the court, upon request of the jury for an amanuensis to take down their verdict, to appoint a person (a deputy clerk of the court) for that purpose, and permit him to be present in the jury room during their deliberations, although he took no part therein.</p>

<p>Error from San Jacinto. Tried below before Hon. L. B. High-tower.</p>

<p>1. Building and Loan Association—Insolvency—Adjustment With Borrowing Member.</p> <p>Where a contract between a building and loan association and a borrowing member provides that if the member desires to have his shares of stock redeemed in the repayment of his debt, they shall be taken at a cash valuation not less than the amount of dues paid thereon, with 5 per cent interest, such provision does not entitle the borrowing member, where the association has become insolvent, to have applied, in a suit brought to recover the debt by a receiver of the association, the amount of dues paid by him with interest, there being no payment or tender of the balance of the debt.</p> <p>2. Same—"Bights and Liability of Borrowing Member.</p> <p>Upon the insolvency of a building and loan association, a borrowing member is not entitled to have the full amount of the dues paid in by him applied to the payment of his debt, but all losses that impair the value of the stock should be applied equally to every share, whether owned by borrowing or non-borrowing members.</p>

<p>Patent—Validity—County Line Tract—Record of Field Notes.</p> <p>A patent from the State to a tract of land lying across the line of two adjoining counties is not void because of a failure to record the field notes of the original survey in both of such counties, and it can be attacked on such ground only by some one having a superior right to the land.</p>

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

<p>1. Railway Company—Connecting Lines—Right of Through Shipper to Select Route.</p> <p>A railway company, under the provisions of the statute, that where railroads cross each other they shall be considered as connecting lines, and must carry to and from and deliver at such points of connection all freight destined to such point or to points anywhere on the connecting lines, and interchange business on rates prescribed by the State Railroad Commission,—is bound to accept goods destined to a point beyond its line, consigned to or routed over a particular connecting line with which it interchanges business, and to carry the goods to the point of connection, and there deliver them to the other line, upon tender of the through joint rate of freight for the entire shipment. Rev. Stats. (1895), arts. 4440, 4441, 4535-4539.</p> <p>3. Same—Duty of Carrier.</p> <p>The shipper needs no contract to impose on the .carrier the duty thus to forward the goods on payment of the through joint rate established by the railroad commission, as the duty arises by law when the freight is tendered for shipment.</p> <p>3. Same—Carrier’s Duty to Notify Shipper.</p> <p>In case the exercise of the shipper’s right to route his goods over a particular connecting line would probably cause delays arising from congestion of business, detrimental to the carrier and the shipper, it is the duty of the carrier to notify the shipper of such fact and allow him the choice as to whether he will take the attendant risks; and if such conditions arise after the carrier has received the goods, its duty is again to notify the shipper and await his instructions.</p> <p>4. Same—Shipper’s Damages—Local and Through Joint Rates.</p> <p>A shipper who is compelled, by the wrongful refusal of the railway company to receive his freight, to ship it to the connecting point as local freight, and to re-ship it there to the point of destination, again at local rates, is entitled to recover the excess of the two local rates over the through joint rate.</p> <p>5. Same—Measure of Damages—Market Value.</p> <p>Where property is wanted only because of its salability, the measure of damages for a carrier’s wrongful refusal to accept goods for shipment as routed by the shipper, is the difference between the market value at the destination to which it was to have been carried, at the time when it should have arrived there, and its value at the same time at the place from which it was to have been sent, less the through freight rate.</p> <p>6. Same—Expense Necessarily Incurred by Shipper.</p> <p>Upon a tender of goods to the railway company for shipment by delivery at the depot, and the company’s wrongful refusal to accept them at the time, the expenses incurred in carrying them to the depot a second time are damages which the owner may recover.</p> <p>7. Same—Statutory Penalty for Refusal to Receive Goods.</p> <p>The State Railroad Commission having fixed the through rate between certain points over connecting lines, the wrongful refusal of one of such lines to accept goods for shipment consigned to or routed over the other connecting line, to a point of destination on such other line, renders it liable to the penalties imposed by the statute for unjust discrimination. Revised Statutes (1895), art. 4574, sec. 2.</p>

<p>1. County Officers—Stationery for Office.</p> <p>Article 8475, Revised Statutes of 1895, provides that there shall be allowed to certain county officers “such books, stationery, including blank bail bonds and blank complaints, and office furniture, as may be necessary,” to be paid for by the county. Held, that such stationery may include printed blanks other than blank complaints and bail bonds.</p> <p>2. Same—Bight of Officer to Purchase Without Order of Court.</p> <p>The county officers mentioned in article 3475 of the Revised Statutes may, without an order of the Commissioners Court, purchase such books, stationery and office furniture therein specified, the quantity and price being reasonable, as may be suitable and necessary for their offices, and the county will be liable therefor.</p>

<p>1. Negligence—Violation of City Ordinance—Charge of Court.</p> <p>The charge of court may properly treat the violation by a railroad company of a city ordinance regulating the speed of trains as negligence per se. Following Railway v. Brown, 11 Texas Civ. App., 503.</p> <p>3. Same—Definition of Negligence.</p> <p>An instruction that “negligence as used in this charge, means a failure to exercise such caution and care as a reasonably prudent and cautious person would usually exercise with reference to a similar matter under similar circumstances,” held a sufficiently accurate definition of negligence.</p> <p>3. Action for Personal Injuries—Allegation and Proof of Injury.</p> <p>Plaintiff’s petition in an action for personal' injuries to his wife alleged “serious internal and permanent injuries,” and no special exception was made to the complaint for more specific information in regard to the nature and extent of the injuries. Held, "that it was not error to refuse to instruct the jury to disregard evidence admitted without objection, showing injuries to the ovaries, and consequent pain in the sexual act.</p> <p>4. Same.</p> <p>Where, in an action for personal injuries to the plaintiff’s wife, the physicians testified that she was suffering from a very nervous condition resulting from the injuries, it was not error to permit her to testify that she felt exhausted and worn out when awakened suddenly at nights.</p> <p>5. Same—Examination of Person of Injured Party.</p> <p>In an action for personal injuries the court may properly refuse to order an examination of the body of the injured person by physicians appointed by the court for that purpose. Following Railway v. Botsford, 141 U. S., 250.</p> <p>6. Same—Cross-examination—Bantering Witness.</p> <p>In an action for personal injuries to plaintiff’s wife, where several physicians of unimpeached credibility have testified to the nature and extent of the injuries, and the court has declined to order an examination of the person of the wife by physicians appointed by the court, it is not error to refuse to allow plaintiff to be interrogated as to his willingness to permit such examination.</p> <p>7. Same—Verdict not Excessive.</p> <p>■ In an action against a railway company for negligent injuries to plaintiff’s wife, resulting in the serious impairment of her health, a verdict for $7875 is held not excessive.</p>

<p>Corporations—Agreement of Stockholders to Pay Corporate Debts and Losses—Consideration.</p> <p>A private corporation being operated at a loss, in debt, and without funds, its stockholders mutually agreed to pay the debts or losses in proportion to their respective amounts of stock, and thereupon some of them did so pay. Held, that such agreement was based on a sufficient consideration, and could be enforced by the corporation in its own name against a stockholder refusing to pay his pro rata.</p>

<p>1 Rescission of Contract—Sale of Real Estate—Fraudulent Representation.</p> <p>Plaintiff contracted to convey certain lots to a bank, upon its agreement to erect a building thereon, being induced thereto by a false representation made to him by the officers of the bank that it was solvent, and that its shares of stock, to be delivered to him as part consideration, were worth their face value. The contract was never completed by the bank further than its delivery of the stock, and the bank subsequently went into the hands of a receiver. Held, that upon tender of the stock itself to the receiver, plaintiff was entitled to a rescission of the entire contract.</p> <p>2. Same—Effect of Judgment—Assessments Upon Bank Stock.</p> <p>Where a judgment rescinds a contract by which bank stock was accepted by plaintiff on false representations of the bank officers as to its value, and directs such stock to be restored to the receiver of the bank, appointed after the execution of the contract, such judgment does not determine the liability of plaintiff for any assessment or charge upon the stock to which he may be subject under the Federal statute, no such issue having been litigated.</p>

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

<p>1. State School Land Purchase—Forfeiture by Land Board for Non-Payment of Interest.</p> <p>After the passage of the Act of February 83, 1885, the Lapd Board had no power to declare a forfeiture of a purchase of school lands made under the Act of 1883, for non-payment of interest. Following Berrendo Stock Co. v. McCarty, 85 Texas, 413.</p> <p>S. Same—Trespass to Try Title—Limitation of Three Years. ‘</p> <p>The Land Board, without authority therefor, declared the forfeiture of a purchase of State School land, and the land was thereafter sold by the State to another, who occupied it for three years, and was then sued in trespass to try title for the land by the first purchaser. Held, that limitation was not available to the defendant, since he had neither title nor color of title within the three years statute.</p> <p>3. Trespass to Try Title—Value of Improvements—Evidence.</p> <p>In trespass to try title, when there is no evidence offered of the value of the land with and without the improvements, the defendant is not entitled to recover the value of his improvements, though such value be admitted.</p>

<p>Telegraph Company—Non-Delivery of Message —Liability.</p> <p>Where a telegraph company received a message to be delivered three miles beyond S., a railroad station, with payment in advance for special delivery thereof, it was liable for failure to deliver the message, although its agent receiving it for transmission was mistaken in supposing the company had an office at S., the sender not having been notified of the mistake.</p>

<p>1. Action on Purchase Money toy Assignee—Failure of Consideration— Parties.</p> <p>Plaintiff sued upon a purchase money note as assignee thereof, and the defendant plead that he was induced to purchase the land by false representations as to its quality, whereby he was damaged in excess of the amount of the note. Held, that defendant was entitled to have the payee of the note (vendor of the land) made a party in order to respond in damages for such sum as plaintiff might recover against him (defendant), and such other damages as defendant may have sustained by rear son of the facts so alleged.</p> <p>3. Sale of Land—Measure of Damages for False Representations.</p> <p>The measure of damages for false representations "as to the (quality of land, by which the buyer was induced to purchase it, is the difference between the purchase price and a sum which bears the same proportion to the purchase price as the actual value of the land bears to the value thereof if it had been as represented.</p>

<p>1. Equity—Jurisdiction in Protecting Persons Under Mental Disabilities— Suit by Next Friend.</p> <p>Where a person is of weak mind and mentally incapacitated by disease, decrepitude or other infirmity, though not in such condition as to be adjudged a lunatic by the special tribunal provided by law for such purposes, a court of equity has jurisdiction to entertain an action brought by his next friend in his behalf to set aside conveyances and protect him from the undue influence and fraud of others, although he denies such incapacity by a plea and motion filed in the case praying that the suit be dismissed.</p> <p>2. Same—Receiver—Expenses.</p> <p>The court may in such an action appoint a receiver and make proper allowances to the next friends for their expenses in the suit and the payment of their attorneys.</p> <p>3. Charge of Court—Harmless Error.</p> <p>Where the evidence in an action to set aside a deed from a mother to a son on the ground of undue influence clearly showed that the mother was old, unlettered and dependent on others in business matters, and that the son had been her agent and adviser for many years, an instruction that the jury must find that the son knew of the confidence reposed in him by his mother, to be chargeable with its abuse, was harmless error, since such knowledge was an irresistible inference from the other facts of the case.</p>

<p>Error from Greer. Tried below before Hon. G. A. Brown.</p>

<p>Appeal from the District Court of McLennan County. Tried below before Hon. L. W. Goodrich.</p>

There was a former appeal in this case, the opinion of the Court of Civil Appeals thereon being found in Sullivan v. Miller, 24 S. W. Rep., 819. Certified questions on this appeal, as to the construction of the power of attorney, were answered by the Supreme Court. Sullivan v. Miller, 86 Texas, 677. The judgment was then reversed.

<p>Constable—Liability of Bondsmen.</p> <p>The sureties upon the bond of a constable are liable for his acts in endeavoring to perform his official duty though he do acts unwarranted by law in attempting such performance. Thus where a constable in custody of a prisoner accused of a misdemeanor, in order to prevent his escape, shoots at him,—the law not authorizing him to wound or kill the prisoner under such circumstances,—the sureties are liable with the constable for the value of the horse of a third party, on which the prisoner was riding, killed by such unlawful shooting.</p>

<p>Error to District Court of Wichita County. Tried below before Hon. Geo. E. Miller.</p>

<p>1. Damages—Attachment—Injury to Credit.</p> <p>A merchant who has mortgaged and delivered possession of his entire stock of merchandise to a trustee to be sold for the benefit of creditors and has voluntarily, gone out of business, cannot recover damages against an attaching creditor for loss of credit and standing as a merchant. Injury to a business intended at some other time to be resumed is too remote.</p> <p>2. Damages—Sale of Leasehold Interest.</p> <p>Attachment and sale of plaintiff’s interest in property held by him under lease may be ground for damages by depriving him of his property, though the sale without the consent of the landlord passed no title to the purchaser.</p> <p>3. Damages—Attached Property—Purchase by Defendant in Attachment. The fact that defendant in attachment bought in the goods at a sale thereunder at</p> <p>a less price than the alleged value sought to be recovered by him from the attaching creditor as damages may be received in mitigation of such damages, and a demurrer to pleading setting up such purchase was improperly sustained.</p> <p>4. Malicious Attachment—Damages—Advice of Counsel.</p> <p>On the issue of malicious suing out of an attachment, advice of counsel that attachment was proper, given in good faith on a full presentation of the facts, may be considered.</p>

<p>Error to County Court of Denton County. Tried below before Hon. S. M. Bradley.</p>

Tried below before Hon. G. A. Brown. The suit was brought against the Vernon Bank and others to set aside a trustee’s sale and deed of land. This was done, and the lien sought to be enforced thereby was adjudged subject to the lien oh the property claimed by plaintiff. From this judgment the defendant bank appealed.

<p>Partnership—Sale of Business—Notice of Termination.</p> <p>Defendant held himself out to and dealt with plaintiff as partner in a business conducted in the name of his son, which was afterwards sold to one H. who continued to order and receive goods from plaintiff in the name of the son. Held, that to render defendant liable for goods so ordered by H. the son’s name must have been used by H. with defendant’s knowledge or consent, and it was error to charge that, having given the business conducted in the name of his son the credit of his name, he must have given reasonable notice of the dissolution of the relationship which had formerly existed between himself and son in order to terminate his liability.</p>

<p>1. Exemptions—For Home Consumption.</p> <p>Where cotton seed levied upon was claimed under the statute exempting “all provisions and forage on hand for home consumption” (Rev. Stats., art. 2395) it was error to charge that, to be exempt, it must be “necessary for home consumption.” The exemption is not limited to what is indispensable, but embraces the supply reserved for the purpose, if not unreasonably excessive.</p> <p>2. Same.</p> <p>It seems that the exemption does not extend to property not reserved for home consumption, but held for sale, though it might have been exempt if so reserved; and that the fact that it was intended to be sold for the purpose of supplying other necessaries for family consumption will not entitle it to exemption.</p>

<p>1. Corporations—Construction of Contract—Transfer of Property for Stock.</p> <p>Where a contract between an existing corporation and the promoters of a new one stipulated that such promoters should capitalize the new corporation at a certain amount, and deposit 821,000 of the stock, paid up and non-assessable, in trust for delivery on certain conditions to such existing corporation, which, after the new corporation had been organized and its stock issued and the deposit of stock provided for made, should transfer its franchises and property to the promoters, and they in turn to transfer the same to the new corporation,—the franchises and property so transferred were not to be used to pay for stock of the new corporation issued to the promoters.</p> <p>2. Pleading—Varying Written Instrument for Mistake.</p> <p>Where it is sought to vary the terms of a written instrument, on account of mistake, the pleading for that purpose, if it clearly points out the omitted provision and alleges that such provision was a part of the agreement, and was omitted from the contract by mistake, is sufficient as against a general demurrer, or a special one urged only on the ground that the pleading does not state in what particular the writing fails to express the contract.</p>

<p>Taxation—Exemption—School Taught in Residence.</p> <p>A building occupied by a practicing attorney as a homestead, though his wife also teach a school therein, is not entitled to exemption from taxation under article 5065 of the Revised Statutes of 1895, exempting “all buildings used exclusively * * * for school purposes.”</p>

<p>1. Master and Servant—Apparent Danger to Employe.</p> <p>Where a servant, through the negligence of the master, is placed in a position of serious apparent danger, and in an effort to save himself therefrom is injured, the master will be liable, regardless of whether the servant acted as might have been expected from an ordinarily prudent person under like circumstances.</p> <p>3. Same—Negligence of Master Must be Shown.</p> <p>An employe of a railway company, while assisting in clearing away a wreck, was ordered to climb upon a car which was being raised, and while he was on the car, it appearing that the supports under one side of the car were giving way, and that it was about to turn over, he jumped to save himself and was injured. The danger, however, was only apparent, and not real, as the car did not fall. Held, that as there was no danger, actual or apparent, at the time the employe was ordered to go upon the car, and as no negligence on the part of the company in placing the supports under the car was alleged, the company could not be held liable for the injury.</p> <p>3. Same—Pleading—Allegation of Cause of Injury—Proof Different— Charge.</p> <p>Where plaintiff’s petition, in an action by an employe for personal injuries, alleged that the wrecked car on which he stood was caused to careen (resulting in his injury), by reason of defective jack screws under it, and there was no proof that the jacks were defective, but the evidence was that the careening resulted from the jacks being improperly placed under the cars, which was not alleged in plaintiff’s petition, it was error for the court to charge as to the jacks being defective, and that plaintiff could recover if they were improperly placed under the car.</p> <p>4. Statute of One Tear’s Limitation—Cost Bond—Issuance of Citation.</p> <p>Where plaintiff’s petition in an action for personal injuries is filed within one year from the date of the injury, the action will not be barred because plaintiff is unable to give the cost bond required and to procure the issuance of citation before the year has expired, and afterwards makes a pauper’s affidavit in lieu of such bond.</p> <p>5. Cost Bond—Parties—Contingent Fee.</p> <p>Where an action for damages is prosecuted by an attorney on a contingent fee for a part of the judgment to be recovered, the attorney cannot be required to furnish security for costs, although plaintiff is unable to do so.</p>

<p>1. Mortgages—Extension of Time—Right 6f Second Mortgagee.</p> <p>The owner of land subject to a mortgage sold and conveyed it to H. and T. in divided half interests, each of them assuming one-half the mortgage debt, and T. thereafter conveyed his interest to a vendee, who likewise assumed one-half the mortgage debt, and for balance of the purchase money gave to T. certain vendor’s lien notes which T. assigned to a bank as collateral. The mortgage debt was not paid at maturity, and H. and T. obtained an extension thereon for two years, but within that time the bank purchased the mortgage debt, and at once had it foreclosed by a sale of the property, made by the trustee appointed in the mortgage, the half interests being sold separately. Held, that the bank was not a subsequent incumbrancer as to the H. half, and that a purchaser of that half at the trustee’s sale could not invoke, to sustain the validity of the sale, the doctrine of a subsequent incumbrancer’s right to buy in a former mortgage and have it foreclosed for his own protection.</p> <p>Z. Same—Extension, of Debt—Consent of Minor.</p> <p>H. had conveyed, before the extension of the mortgage debt, his half interest to a minor daughter, who had no legally appointed guardian of her estate, but in whose interest H. acted in attending to the property and paying out his debt due thereon. The bank, having bought in the mortgage debt, proceeded to foreclose at once, and within the two years’ extension, upon the theory that the extension as to H’s. interest was void because made without legal authority of the minor, and therefore void in toto. Held, that the minor could not assume the payment of the incumbrance, which remained the personal obligation of H., and the mortgage being simply an incident to a debt which she did not owe, H. could have its payment extended, whether she consented or not.</p> <p>3. Fraudulent Conveyance —Right of Subsequent Creditor.</p> <p>Where the owner of land covered by a mortgage conveys it to a minor daughter as a gift, one who was not a creditor of his at'that time, but who afterwards became the assignee of the mortgage debt, cannot attack such conveyance as being a fraud upon the mortgagor’s creditors.</p> <p>4. Extension of Mote—Consideration—Forbearance.</p> <p>Where the owner and the maker of a note agree that it shall be extended for a stipulated time, though it be at a reduced rate of interest, the owner forbearing his right to sue, and the maker his right to pay the debt for the stipulated time, such agreement is upon sufficient consideration as to both parties.</p> <p>5. Same—Written Memoranda—Statute of Frauds of One Year.</p> <p>An agreement to extend a note for a longer period than one year 'is within the statute of frauds; but where such extension was negotiated by letters fully showing the terms of the agreement of extension, passing between the owner of the note, the maker, and their agents, the agreement was sufficiently in writing to be taken out of the statute.</p> <p>6. Same.</p> <p>When the time oí payment of a mortgage is extended, the right to foreclose it is suspended until the expiration of the extended time, and the extension has the effect in equity oí modifying the orignal conditions of the mortgage to the same extent as if the time of the new agreement was incorporated in the condition.</p> <p>7. Mortgage Sale Invalid—Time of Payment Extended.</p> <p>A sale by a trustee by virtue of the terms of a mortgage, is invalid if made within the time for which the mortgage debt has been extended by agreement of the parties.</p>

<p>1. Pleading—Amendment—Denial of Partnership.</p> <p>An amended answer denying the existence of a partnership between several defendants, filed after an answer to the merits, does not come too late.</p> <p>3. Judgment by Default—Verdict.</p> <p>Where there are several defendants, a judgment by default against one of them is taken subject to the amount which the jury may find to be due by him; and if nothing is due, no judgment can be rendered against him.</p> <p>3. Pleading—Denial of Partnership by One Defendant.</p> <p>Where several defendants are sued as partners, a denial of the partnership by one inures to the benefit of all.</p> <p>4. Confession of Judgment After Verdict.</p> <p>Where the jury returns a verdict in favor of the several defendants, plaintiff cannot complain if one of them afterwards comes in and confesses judgment against himself.</p> <p>5. Assignment for Benefit of Creditors—Husband and Wife—Community-Property.</p> <p>Where a wife in tjie execution of an assignment for the benefit of creditors described as hers is joined by her husband, the assignment is valid, since, although the wife had no power to engage in a mercantile business, and the property was community property and the debts community debts, the joinder of the husband evidenced his acquiescence, and made it his deed.</p> <p>6. Statute of Limitations—New Promise—Partnership.</p> <p>Where it is sought to charge several defendants on an account as partners, and the partnership is denied and not proven, a letter written by one of them binds no one but himself as a new promise to pay the debt.</p> <p>7. Attachment—Proof of Value.</p> <p>Where the pleadings fully allege the value of goods attached, and there is no controversy as to their value, the return of the sheriff is sufficient proof of the same.</p>

<p>1. Contract—Power of Agent to Stipulate for Liquidated Damages.</p> <p>Appellants addressed to appellee a letter in the following terms: “R. comes to see you to purchase your cattle in M. County, adjoining our pasture, or any purchase he may make of you on this trip for joint account for us and himself, we have authorized him to do so, and have agreed to make any reasonable advance on delivery of contract at any bank in this city, as an advance on contract and as to fulfillment of same.” Held, that the letter authorized R., in the contract for the purchase of the cattle, to stipulate for liquidated damages, in the event of its breach by the purchasers.</p> <p>2. Same—Liquidated Damages or Penalty.</p> <p>A provision in a contract clearly stipulating for liquidated damages will not be construed as a penalty unless the amount bear such proportion to the actual damages that it may reasonably be presumed to have been arrived at upon a fair estimation of the parties of the compensation to be paid for the prospective loss; and where no such approximation is made to appear by the evidence between the actual and the stipulated damages, the basis of recovery must be the damages stipulated in the contract.</p>

<p>1. Disqualification of Judge—Brother as Counsel.</p> <p>A judge is not disqualified to try a cause in which his brother is counsel for plain tiff, and whose fee is contingent upon a recovery.</p> <p>2. Libel—Words Actionable Per Se.</p> <p>A publication that plantiff “has been indicted several times for maintaining a gambling house” is libelous per se, since it charges the violation of a penal statute.</p> <p>3. Same—Privileged Communication.</p> <p>A false accusation, though made in good faith and with reasonable ground for belief in its truth, is not justified by the fact that the party accused was a candidate for public office, where it appears that the office was one in the gift of the President of the United States.</p> <p>4. Same—“Notorious” Not Actionable Per Se—Evidence in Justification.</p> <p>The word “notorious is not libelous per se, and, since the justification must be as broad as the charge, where this word is used in connection with other matter actionable per se, proof of a “notorious reputation” would not justify the publication; but actual bad character in the direction of the charge may be shown in mitigation of damages.</p> <p>5. Practice in Trial Court—Argument to Jury—Reading Authorities.</p> <p>The trial judge should not permit counsel to read and comment on authorities in argument to the jury, when objection is made.</p>

<p>1. Municipal Corporation—Rule as to Liability of.</p> <p>A city, in. the exercise of its power to provide for public health, is liable in the event of negligence of its officers and servants in exercising such power, and its liability in such cases also extends to any act of wrong or trespass committed by authority or direction of the city.</p> <p>2. Same—Injury to Private Property by Deposit of Garbage.</p> <p>A city is liable to the owner of property where it causes refuse matter to be deposited on his ground, thereby injuring him, though the act may not amount to a nuisance.</p> <p>3. Same—Ordinance not Requisite.</p> <p>The city cannot deny its liability under such circumstances because it had not by some formal act or ordinance of its council designated the property as a place of deposit.</p> <p>4. Same—Liability of Joint Tort Feasors.</p> <p>The fact that other persons acted together with the city in creating or carrying on the nuisance or trespass by the deposit of garbage, will not afford the city a defense, in whole or in part, since each of several joint tort feasors is liable for the entire damage.</p> <p>5. Same—Measure of Damages.</p> <p>Where damages are claimed as resulting from a city having used plaintiff’s lands and those adjacent as a dumping ground, it should be assumed that such damage will not be permanent, since it may be abated by the removal of the deposit, or by the action of the elements; and the measure of damages is the loss of rental value up to the time of trial, and such other accrued'special damage as may be shown, including certainly the necessary cost of removing the deposit from plaintiff’s own land.</p> <p>6. Same—Liability for Failure to Exercise Corporate Powers.</p> <p>It seems that a city is not liable in damages for the mere failure to exercise a corporate power or to enforce its ordinances; but see City of Fort Worth v. Crawford, 74 Texas, 408.</p>

<p>1. Negligence—Proximate and Concurring Causes.</p> <p>A railway train moving on a down grade parted on account of a defective coupling, the rear cars dropping back, and the engineer thereupon stopped the train, contrary to the rules of the company in such cases, and without the exercise of proper care, and then, on the approach of the rear section, suddenly started the engine, without removing the brakes, and thus caused a second break in the train. Plaintiff, the conductor, was injured in a collision between the rear and middle sections. Held, that the separation of the rear cars because of the defective coupling was a proximate cause of the injury, concurring with the negligence of the engineer, and it would have been improper for the charge of the court to have assumed that the negligence of the engineer was the sole proximate cause of the injury.</p> <p>2. Master and Servant—Contributory Negligence of Fellow Servants. Where the negligence of the master and of plaintiff’s fellow servants were concurring causes of plaintiff’s injury, and together were the direct cause thereof, if plaintiff did not contribute thereto by his own negligence, the master is liable.</p> <p>3. Same—Negligence a Question for the Jury.</p> <p>Whether in any given case the act charged was negligent, and whether the injury suffered was within the relation of cause and effect, legally attributable to it, are questions for the jury.</p> <p>4. Same—Contributory Negligence of Fellow Servant no Bar to Recovery.</p> <p>Where the contributory negligence is that of a fellow servant, whether such negligence arose out of the violation of the rules of the master or otherwise, it is not a defense, if there be concurring negligence of the master.</p> <p>5. Same—Rules of Master—Only Ordinary Care Required.</p> <p>Where a rule of the company requires the conductor to see that the brakemen perform their duties, his failure to do so is not negligence per se, since the law requires in such case only that he shall use ordinary care to see that such duties are performed.</p> <p>6. Same—Negligence per se.</p> <p>It is only where the act is contrary to a statute, except in rare cases, that the court is warranted in saying that the violation of a rule of the master by the servant constitutes negligence per se.</p>

<p>1. Master and Servant—Assumed Risk—Latent Defect—Correct Charge.</p> <p>For charge of court in an action by an employe against a railway company for injury alleged to have been received by reason of a latent defect in machinery, held to be correct and warranted by the evidence, see the opinion.</p> <p>2. Same—Measure of Damages—Dependent Family.</p> <p>In an action against the company by a railway employe for permanent personal injuries negligently caused, it was not error for the court to charge the jury that in estimating the compensation to which plaintiff might be entitled, they should not take into consideration" the fact that he had-a family dependent upon his labor for support; nor was it error to caution the jury not to allow their sympathies to affect their verdict.</p> <p>3. Same—Illustration in Charge Not Argumentative.</p> <p>The court charged that if plaintiff, after receiving the injury, failed to take reasonable care of himself, and so aggravated the injury, he could not recover for such aggravation; and illustrated by stating that if a servant received a cut on the foot because of defective machinery, and should carelessly expose himself so as to cause blood-poisoning or gangrene to set in, thus necessitating amputation, he could recover only the damages by reason of the cut, but not those resulting from the loss of the foot. Held, not subject to the objection of being argumentative and giving "undue prominence to the theory of the defendant.</p>

<p>1. Municipal Corporation—Contract for Water Supply—Creation of Debt— Sinking Fund.</p> <p>A city contracted with M. in consideration of a transfer to him of its water works system: that he should supply it with water for fire purposes free for three years, and after that time at the rate of $25 a year per hydrant for as many hydrants as it should require. Held, that such contract for the rental of the hydrants was not the creation of a debt within the meaning of article 2 of the Constitution requiring a levy at that time of a tax to pay interest and a two per cent sinking fund thereon. Following McNeal v. City of Waco, 89 Texas, 83; 33 S. W. Rep., 322.</p> <p>2. Same—Current Expenses.</p> <p>Such constitutional provision as to the creation of debts does not apply to an obligation payable out of the current revenues for each year of the contract, or out of other funds within the immediate control of the corporation.</p>

<p>Contract to Pay for Services not Implied, When—Intention—Gratuity.</p> <p>When services are performed upon request, the law will imply a promise to pay the reasonable value thereof, unless such request be made and acceded to as a gratuitous favor. That the service was done upon an implied promise that it would be paid for, may be rebutted by evidence that the relations between the parties were such as to exclude the inference that they were dealing on the footing of contract.</p>

<p>1. Parol Evidence as to Execution of Deed—Admissions Against Interest. Parol evidence by a party to the suit of the execution and contents of a lost deed under which the land is claimed by the adverse party, the contents of the deed being in dispute, is relevant to the issue in trespass to try title, and is also in the nature of admissions against interest.</p> <p>2. Power of Attorney by Feme Sole—Revocation by Marriage.</p> <p>A power of attorney of a feme sole to sell land is revoked by her subsequent marriage; and it is immaterial, it seems, that a subsequent purchaser of the land under the power did not know of such revocation at the time he bought.</p> <p>3. Same—Revocation by Subsequent Deed.</p> <p>A woman’s power of attorney to sell her land is revoked by her subsequent deed of the land to the party to whom the power is made, although such deed be defective by reason of an insufficient certificate of her separate acknowledgment thereto as a married woman.</p> <p>4. Deed—Secondary Evidence Where Lost—Certified Copy.</p> <p>Testimonial proof is admissible to establish a lost deed, without the necessity of resort to a certified copy of the record of the deed, which itself is only secondary evidence. In this case the. party offering the proof claimed that the record was not correctly made, or if so, that it was of a forged deed, differing from the true one.</p> <p>5. Same—Parol Proof of Certificate of Separate Acknowledgment.</p> <p>The certificate of the separate acknowledgment of a married woman, forming part of a lost deed, may also, as to both its execution and contents, be proved by paroi. For evidence held to show that a lost deed was duly acknowledged by a married woman and proper certificate thereof made, see the opinion.</p> <p>6. Married Woman’s Deed—Defective Certificate of Acknowledgment.</p> <p>A married woman’s deed of land is defective where the certificate of her separate acknowledgment fails to state that the officer explained the deed to her.</p> <p>7. Deed Toy Attorney in Fact.</p> <p>A deed by an attorney in fact, duly authorized by written power of attorney, will operate to convey the interest of the principal, where such is the intention, although it does not in express terms purport to do so, or to be made by virtue of the power.</p> <p>8. Charge of Court—Estoppel to Complain of.</p> <p>A party can not be heard to complain of a given proposition in the general charge of the court where he requested a special charge embodying the same proposition, though the special charge was not given.</p>

<p>Appeal" from Navarro. Tried below before Hon. Rufus Hardy.</p>

<p>Negligence—Assumed Risks—Railway Switchman.</p> <p>For evidence held not to warrant a verdict against a railway company for the death of an employe (switchman) killed while coupling ears that were defective, because showing that the employe knew of the defective condition, and that the company was not negligent in relation to such defect, see the opinion.</p>

<p>1. Venue—Action for Joint Tort—Defendants Residing in Different Counties—Good Faith in Averment.</p> <p>Where plaintiff’s petition, alleging a joint tort, is traversed by sworn pleas setting up the privilege of each defendant to be sued in the county of his residence, the fact that plaintiff acted in good faith in making such allegation, and not merely to enable him to bring the action in the county in which only one of the defendants resided, is unavailing if no joint tort be proved.</p> <p>3. Same—Proof of Joint Tort Insufficient.</p> <p>Where the evidence showed that defendants, at different times and places, and each one acting only for himself, sold separate lots of cattle to plaintiff’s partners, reserving the title to the cattle until payment of the purchase money thereof, and the cattle were turned over to plaintiff by his partners under a partnership contract by which plaintiff was to fatten them for market, and afterwards the sellers, each acting for himself and in reference only to the cattle sold by himself, took such cattle from plaintiff’s possession, a joint tort was not proven.</p> <p>3. Partnership Agreement—Contract to Buy and Fatten Cattle—Division of Profits and Losses.</p> <p>Where G. & E. agreed to buy cattle to be shipped to B., who was to furnish money to pay for their feed until ready for market, and upon sale of the cattle the proceeds Were to be divided as follows: B. was to first receive the amount of his expenditures, with interest, and then G. & E. the amount paid by them for the cattle, and then the profits and losses were to be equally divided between the parties, such agreement constituted a partnership, and B. was affected with notice of the terms of sale under which G. & E. purchased the cattle from a third person.</p>

<p>Penalty—Foreign Guaranty Corporation—Liability in This State.</p> <p>The act of 1891, p. 178 (Rev. Stats., art. 743), provides that when any corporation cancels a bond of guaranty, it shall furnish upon demand to the person whose bond is canceled a full statement of the facts on which its action in so doing was based, under penalty to him of $500, in addition to all actual damages. Defendant, a New York corporation, did not, after the passage of this act, comply with its terms by filing its articles of incorporation here, and making the required deposit, and did not make any further guaranty contracts in this State, but did contract in New York with another New York (telegraph) corporation to guarantee the fidelity of plaintiff, an employe of the latter at a station in Texas, and afterwards canceled such guaranty, refusing to furnish plaintiff a statement as above required. Held, that the act was without extraterritorial effect, and-defendant was not liable for the penalty.</p>

<p>1. Venue in Action of Trespass.</p> <p>A suit against a United States marshal and his official sureties for his wrongful seizure and sale of property under an execution, being based upon a trespass, may be maintained in the county where the trespass was committed, though the defendants all reside in other counties.</p> <p>2. Jurisdiction—Suit for Wrongful Levy Under Federal Process.</p> <p>Where the damages claimed for the wrongful seizure of property under an execution issued out of the United States Circuit Court were laid in plaintiff’s petition at $1016, a motion to remove the case to such Circuit Court was properly denied, as it did not have jurisdiction over a controversy for that amount.</p> <p>3. Fraud Against Creditors— Simulated Transfer.</p> <p>In an action by H. for the wrongful seizure of his property under an execution against C., it appeared that H. and C. were brothers-in-law; that C. was insolvent and transferred the property, worth $1000, to H. in settlement of a debt of $350 or less, and with the avowed purpose of placing it beyond the reach of his creditors. Held, that a verdict in favor of H. for $500 should be set aside.</p>

<p>Municipal Corporation—Liability for Acts of Health Officers.</p> <p>A city corporation can not be held liable for the acts of its health officers in wrongfully confining, or quarantining, a citizen supposed to be afflicted with small-pox, since, in this respect, the city is exercising a governmental duty for the benefit of the public at large, recognized by the statutes of the State.</p>

<p>1. Master and Servant—Safe Appliances—Liability of Master.</p> <p>A charge of the court, in effect, that it was the duty of the defendant railway company to furnish its employe, a brakeman, safe and proper links anddrawheads for the purpose of coupling the cars under his charge, and that there was in law an implied promise to do so, which the employe might rely on, is incorrect, since it is not the duty of the master to furnish safe appliances, but only to exercise ordinary care to do so, and there is no implied promise arising from the employment that he will do more than exercise such care.</p> <p>2. Same—Duty of Servant—Negligence.</p> <p>It was not the duty of the brakeman to inspect the links and drawheads furnished him, to see if they were suitable, but he was bound to exercise due care in the use thereof, and if the defects were of such a nature that he ought to have seen them in time to have prevented the injury, he would be deemed negligent.</p> <p>3. Same—Evidence of Negligence for the Jury.</p> <p>Where there was evidence that the brakeman (plaintiff) had uncoupled the cars, and had made a previous ineffectual attempt to re-couple them, these were facts proper for the jury to consider in determining whether or not, exercising ordinary care, he ought not to have discovered the defective condition of the link and drawhead.</p> <p>4. Same—Assumed Bisks.</p> <p>. A charge that plaintiff, as brakeman, took the risk of such secret defects as could not by the defendant company be discovered by the use of ordinary diligence, or such as were open and patent to common observation, or would have been discovered by an ordinarily prudent man in the performance of his duties, is erroneous in restricting the risks assumed to the two cases just mentioned, when, under the law, such employe in his service took all the risks incident to the employment.</p> <p>5. Same—Charge of Court—Contributory and Comparative Negligence.</p> <p>A charge of court that “in order to defeat plaintiff’s right to recover when negligence is shown on the part of defendant, the plaintiff must be guilty of negligence which proximately contributed to his injury; and what is meant by proximately contributing to his injury is that without it (this negligence) he would not have been injured. If you find that plaintiff was in some degree negligent, still that fact would not defeat his right to recover, unless you further find that except for his own negligence he would not have been injured”—is not subject to the objection that it raises the question of comparative negligence.</p> <p>6. Same—Evidence—Expert Testimony.</p> <p>Where plaintiff, in an action for personal injuries, testified to experience as a brakeman, and stated that he knew a brakeman’s duties, he was properly permitted to testify that he attempted to make the coupling which resulted in the injury in the usual manner.</p>

<p>1. Separate and Community Property—Deed to Wife During Coverture— Presumption.</p> <p>Property acquired by onerous title during coverture, the deed being taken in the wife’s name in 1839, was community property under the Spanish law then in force, and the husband had power to convey it, without the joinder and separate acknowledgment of the wife, after the Act of June 20,1840, defining marital rights.</p> <p>2. Deed—Description of Land.</p> <p>A deed of “all lands purchased by us (the grantors) from P. R. as it may more fully appear by a legal transfer of the same,” conveyed the title to a tract of land which had been purchased by the grantors from P. R. by deed then of record.</p> <p>3. Same—Description Limited by Memorandum.</p> <p>In a deed conveying to P. all of a certain tract of land by metes and bounds, there was this, following the description: “Mem. This deed is made in order to cancel a bond and fulfill the conditions thereof, executed by me to P. January 1, 1839, which bond is of record in Harris County Record of Deeds, C, p. 297.” The bond referred to was for only the south half of the tract—the north half having been previously conveyed by the grantors to one R., Held, that the deed conveyed only the south half.</p> <p>4. Same—Deed by Virtue of Vendor’s Superior Title—Presumption.</p> <p>Where a vendor conveyed one-half of a certain tract of land by a deed reserving a vendor’s lien, and more than ten years afterwards conveyed the entire tract to another party, it will be presumed that the vendor’s lien notes given on the prior purchase had been paid, and not that the later deed was intended to rescind the former conveyance because of their non-payment.</p>

<p>1. Damages—Attorney Fees Not Recoverable.</p> <p>Plaintiffs bought certain lots upon the representation of their vendor that they were free of incumbrance, and having ascertained that a prior vendor’s lien, thereon had not been released, they employed an attorney to procure such release, paying him a fee therefor. The release afterwards furnished them was prepared by the attorney of the vendor. Held, that plaintiffs could not, in an action of damages against the vendor for false representations, recover the amount of the attorney fee so paid.</p> <p>2. Same—Prospective Profits—Rents.</p> <p>Nor could plaintiffs recover for rents they might have received from the lots had they placed improvements thereon, which they were deterred from doing because the lien had not been released.</p>

<p>1. Execution Sale—Motion to Restrain—Parties—Injunction.</p> <p>Where a judgment defendant applies to the court in which the judgment was rendered to restrain a sale under an execution issued on the judgment, because of irregularities in the levy and notice of sale, the sheriff is not a necessary party, and, the proceeding is not in the nature of a bill in equity for injunction, although the restraining order may be styled an injunction, but is merely a motion in the original action.</p> <p>2. Same—Levy and Advertisement—Sufficiency.</p> <p>The statute (Acts 1893, p. 11) does not require that a notice of the sale of property under execution shall state whose interest in the land advertised is to be sold, where there are several execution defendants, nor the amount of the judgment, and a notice of sale is not defective in failing to contain such statements.</p> <p>3. Same—Levy Upon Blocks.</p> <p>That real estate levied on under an execution is described in the notice of sale by blocks, instead of by lots into which the blocks are subdivided, does not affect the legality of the notice, where it is not shown that the division of the blocks into lots would affect their value.</p> <p>4. Injunction—Ten Per Cent Damages for Delay.</p> <p>It does not follow as matter of law that, because an application for injunction is on final hearing adjudged insufficient, and. the interlocutory injunction dissolved, the ten per cent damages for delay are to be awarded, since to authorize such damages, the trial judge must be “satisfied that the injunction was obtained only for delay”; and his judgment upon that question will be revised by the appellate court only when the error in refusing such damages is palpable.</p>

<p>Iiimitation of Ten Years—Possession by Enclosure.</p> <p>The Act of 1891, p. 76 (Rev. Stats. 1895, art. 3345), providing, in effect, that fencing a tract of land belonging to another into a general enclosure along with other lands surrounding such tract shall not constitute adverse possession, unless at least one-tenth of such tract be cultivated, applies only where such tract is entirely surrounded by lands owned, claimed or fenced by the party asserting title by limitation to such tract.</p>

<p>Venue—Sale—Foreclosure of Vendor’s Lien on Tract of Land Lying in Two Counties.</p> <p>A judgment foreclosing a vendor’s lien upon a tract of land lying across the boundary line of two adjoining counties, may be enforced by a sale of the entire tract made in the county in which the judgment of foreclosure is rendered. Article 2279, Say les’Civ. Stats., construed.</p>

<p>1. Practice in Trial Court—Admitting Testimony After Evidence Closed.</p> <p>Where the trial court, after the evidence had closed on Saturday, refused to open the case on the following Monday, before argument, to permit the introduction of further testimony, its action will not be disturbed unless an abuse of dixcretion is shown.</p> <p>3. - Educational Corporation—Power to Mortgage its Property.</p> <p>An educational corporation, authorized by the statute “to do all necessary acts to carry into effect the objects of the corporation,” (Sayles’ Civ. Stats., art. 632) has authority to mortgage its educational buildings to secure claims for materials furnished for the construction thereof; and the question as to whether the mortgage was one of such “necessary acts” was for the jury to determine.</p> <p>3. Sureties Upon Replevy Bond in Sequestration Not Liable for Costs.</p> <p>The sureties upon a bond given to replevy land in sequestration proceedings are not liable for costs of suit.</p>

<p>Plea in Abatement Not Filed in Due Order—Withdrawal of Pleadings— Judicial Discretion.</p> <p>Where defendant, four years after filing pleas to the merits, obtained leave of court to withdraw them and file a plea in abatement, setting up that the amount ■involved was beneath the court’s discretion, the granting of such leave was an abuse of the court’s jurisdiction, it being then too late for plaintiff to commence a new action and no sufficient excuse having been s hown by defendant for his delay in the matter.</p>

<p>1. Deed to Joint Tenants—Parol Evidence to Show Interest of Each.</p> <p>Where a deed is executed jointly to two grantees, without any statement as to the interest of each, the legal presumption that they take equal interests in the property may be overcome by paroi evidence of an express agreement that they should hold'in proportion to the amount paid by each on the notes executed for the purchase price.</p> <p>3. Community Property—Presumption as to Community Debts—Fraud-Burden of Proof.</p> <p>Where plaintiffs allege that a sale of community property to defendant by their toother made after their father’s death, was fraudulent, since the defendant was not required to see that the proceeds of the sale were applied by her to the payment of community debts, he establishes prima facie a good title in himself by showing the existence of such debts in an amount which reasonably indicates a necessity for the sale, and thereby casts on plaintiffs the burden of proving the alleged fraud.</p>

<p>1. Sale of Land—Deed by Agent—Warranty as Binding Undisclosed Principal.</p> <p>Where an agent in collecting a debt buys land from the debtor, taking the deed in his own name and sells and conveys the land, with personal warranty, paying over the proceeds to the principal, the latter thus accepting the proceeds of the transaction will be liable upon the covenants of warranty in the deed of the agent to the purchaser.</p> <p>3. Same—Warranty Buns With Land.</p> <p>A covenant of warranty runs with the land and inures to the benefit of the last vendee.</p>

<p>1. Limitation—Amendment—New Cause of Action.</p> <p>An amendment in a suit for conversion of cattle which merely corrects the description of the property as to brands does not assert a new cause of action which would be subject to limitations.</p> <p>3. Same.</p> <p>An amendment in such suit increasing the number of cattle claimed to be converted, but alleging the conversion to have been within two years preceding the amendment is not subject to demurrer on the ground that the amended claim was barred by limitation.</p> <p>3. Limitation—Charge.</p> <p>In a suit for conversion of plaintiff’s cattle under color of a fraudulent purchase from another the action arose upon and limitation ran from the date of the appropriation by defendant, not from that of the fraudulent sale. See charge held to properly present the issue of limitation upon such facts.</p> <p>4. Same—Case Followed.</p> <p>Rulings upon former appeal in Worsham v. Vignal, 5 Texas Civ. App., 473, followed.</p> <p>5. Joint Ownership—Partnership—Immaterial Error.</p> <p>See evidence held to show a joint ownership of cattle in controversy and not a partnership, and to render rulings in charge as to what would constitute a partnership immaterial.</p> <p>6. Partnership—Evidence—Opinion—Harmless Error.</p> <p>On the issue of partnership or joint ownership plaintiff should not be permitted to testify that he was a joint owner and not a partner, that being merely his opinion and conclusion of law. But the admission of such testimony was harmless where the proof showed only a joint ownership and there was no evidence to establish a partnership.</p> <p>7. Fraudulent Sale—Purchaser’s Knowledge—Evidence.</p> <p>See evidence held sufficient to present and warrant a charge upon the issue of purchaser’s knowledge of vendor’s intent to defraud a joint owner with him in a sale of cattle.</p> <p>8. Fraud—Evidence.</p> <p>On issue of fraud upon plaintiff in the purchase of his cattle from a joint owner with him and their conversion by the purchaser evidence that he had never paid the seller therefor was properly admitted,</p> <p>9. Special Verdict.</p> <p>It is discretionary with the trial court to submit special issues and its action in refusing to do so will not generally be reviewed. See case in which refusal was held proper.</p> <p>10. Damages—Conversion.</p> <p>See damages for conversion of cattle held not excessive.</p>

<p>1. Partition—Agreed Boundary—Mutuality.</p> <p>A boundary line between the east and west halves of a survey was improperly located by mistake by a surveyor employed by the owner of one half, who had previously sold a parcel thereof to a vendee who was not present at and did not assent to such survey. Held, that the location of the land of such vendee must be determined by the facts and conditions existing at the time of the conveyance and the vendor and his heirs were not concluded as to such vendee by their agreement with other parties as to the boundary, not mutually binding upon them and such vendee.</p> <p>2. Improvements—Good Faith.</p> <p>The heirs of a former owner whose deed to his vendee was on record were not entitled, on its recovery by such vendee, to a claim for improvements as made in good faith.</p>

<p>1. Damages—Speculative and Remote.</p> <p>Damages from a failure to rent the rooms in an office building, claimed to have resulted from the failure to construct an elevator in the building according to contract, are speculative and too remote to be recovered.</p> <p>3. Remittitur Curing Error in Charge.</p> <p>Where, in an action for the contract price of an elevator placed in defendants’ building, plaintiff recovers, and then enters a remittitur of the amount of all damages claimed in reconvention by defendants, measured by their own rule, this renders harmless any error in the charge in reference to such damages.</p>

<p>1. Blaster and Servant—Negligence of Fellow Servant.</p> <p>Plaintiff, an experienced workman in the service of a railway company, was engaged in repairing a bridge, and was injured by reason of stepping on a plank which had been laid across the structure, and had been left unfastened without the knowledge of the foreman. Held, that such injury, resulting from the negligence of a fellow servant, was a risk assumed by plaintiff in bis employment, and he was not entitled to recover, the Act of 1891, relating to fellow servants, being then in force.</p> <p>3. Same—Continuing Negligence.</p> <p>Although at the time the plank was laid on the bridge and left unfastened, plaintiff was engaged at another place and upon different work, yet as the negligence, if any, was not in laying the plank, but in allowing it to remain unfastened, this was an act of negligence continuing after plaintiff had become a fellow servant of the other workmen, and he could not recover.</p> <p>3. Same—Blaster’s Duty of Inspection and Furnishing Safe Appliances.</p> <p>The rule that the master owes the servant the duty of inspection, or reasonable care in furnishing him safe and suitable means for performing his work, has no reference to the safety and condition of the thing the servant is to repair or complete; and hence a servant employed to repair a bridge must be presumed to have notice of its unfinished state, and assumes the risk thereof, unless the servants or materials furnished by the master are unfit for the work.</p>

<p>1. Master and Servant—Latent Defect.</p> <p>Where an employe was injured by being struck by a car in rapid motion, and the evidence tended to show that the accident resulted from the parting of a wire cable from a hook at its end, causing the breaking of the cable within the socket forming a part of the hook to which the cable was fastened, and that such fastening was made after the most approved method, and that there was no perceptible defect in the cable before it was put in, the court was authorized to charge on latent defects, and that the master would not be liable for injuries to the servant resulting from such defects in the appliances furnished.</p> <p>2. Same—Degree of Care Required of Master.</p> <p>The master in furnishing apparatus for the use of the servant and keeping the same in repair, is required to use only the skill and care of a man of ordinary care under like circumstances.</p> <p>3. Same—Charge of Court—“Diligence” and “Skill.”</p> <p>A charge of court requiring the master, in arranging and fastening machinery for the use of the servant, to use ordinary “diligence,” instead of “skill,” is not material error.</p> <p>4. Injury to Employe—Allegata and Probata—Charge.</p> <p>Where the negligence charged in plaintiff’s petition was only that a cable was improperly fastened to a hook, but there was evidence from which it might be inferred that the cable parted from the hook because of the manner in which a car being lowered thereby was stopped, the court properly charged that there could be no recovery if the accident occurred from such latter cause.</p>

<p>Homestead—Abandonment.</p> <p>Where the evidence shows that the husband, on the death of his wife, leaving two young children, removed with them to his mother’s, to give them her care, with the intention of returning as soon as the children were old enough to be sent to school, and that meanwhile he rented out the homestead house, retaining one room therein, however, for himself, and which he occupied on his visits to the place, an abandonment of the homestead is not made to appear.</p>

<p>Attachment—Damages for—Actual Damage Must he Shown.</p> <p>C. G., a merchant, by trust deed conveyed his'stock of goods to J. G., as trustee, to secure certain debts. D. & Co., creditors of 0. G., attached a part of the goods by a levy made and inventory taken, but without removing the goods from the shelves, as J. G., then in possession, promised the officer to replevy them soon. J. G. then had C. G., defendant in that suit, to replevy the goods, and he, J. G., retained the possession thereof and sold the goods. The attachment was quashed because of a defect, and J. G. sued D. & Co., for the value of the goods. Held, that plaintiff was not entitled to recover; following Field v. Munster, 11 Texas Civ. App., 341, to the effect that, although a seizure or conversion may be wrongful, some damage must be shown to warrant a recovery therefor.</p>

<p>1. Practice on Appeal—Defective Bond—Reinstatement.</p> <p>Where the appeal has been dismissed for want of a sufficient bond, the appellate court will permit a new bond to be filed and reinstate the cause, when there is no unreasonable delay.</p> <p>2. Judgment Not Final—Plea of Privilege by Some of the Defendants.</p> <p>An order sustaining a plea of privilege as to some of the defendants, but leaving the case undisposed of as to the others, is not a final judgment; and the dismissal of the former is subject to plaintiff’s right of appeal, of which, however, he cannot avail himself until the cause is finally determined.</p> <p>3. Jurisdiction on Appeal—Parties Not Named in Bond.</p> <p>When notice of appeal is given, and a bond, though defective as to some of the appellees, is filed, the jurisdiction of the appellate court attaches as to all parties, and it has power to permit the filing of a perfect bond.</p> <p>4. Jurisdiction—Death of Party—Bringing in Representative.</p> <p>Where the court has acquired jurisdiction of a cause, it will not abate on the death of one of the defendants, but his representatives may be brought in, although they reside in another county, if otherwise amenable to the process.</p> <p>5. Death of Party—Who is Representative—Pleading.</p> <p>On the death of a defendant the representative to be brought in is ordinarily his executor or administrator, though in a proper case the heirs are treated as the representatives; but the facts must be stated which entitle the plaintiff to bring in the heirs, and this is sufficiently done when he alleges that there is no administration on the estate and no necessity for any.</p> <p>6. Practice in. Trial Court—Ruling on Demurrers After Dismissal.</p> <p>After a cause has been dismissed for want of parties, it is irregular to pass upon demurrers.</p>

<p>Error from Anderson. Tried below before Hon. A. B. Watkins.</p>

<p>Error from the County Court of Smith. Tried below before Hon. B. B. Beaird.</p>

<p>1. Public Roads—Order Changing—Collateral Attack.</p> <p>Where an order of the Commissioners Court directs a change in a public road and recites that due notice has been given, it is not void and subject to collateral attack because it fails to recite the purpose of the change, or that notice had been posted for twenty days as required by law, nor because neither the order nor the application recites that the petitioners were freeholders in the precinct in which the road was situated.</p> <p>2. Same—Discrepancies in Description.</p> <p>Slight verbal discrepancies between the description of the road as contained in the application and in the report of the jury of view will not render the order of court thereon void for uncertainty, the presumption being that such discrepancies were susceptible of easy explanation which was made to the court before the order was entered.</p> <p>3. Same—Report of Jury of View.</p> <p>Where the report of the jury of view states that a proposed change in a public road will lengthen the road, and that such change is unnecessary, this is not conclusive upon the court, which may nevertheless order the change, if deemed for the benefit of the public.</p> <p>4. Same—Summary Order of Court to Open Former Road.</p> <p>The Commissioners Court made an order directing a change in a public road; that the new road should be 30 feet wide, and cleared of obstruction, and should be opened free of expense to the county, in accordance with an agreement made with one of the petitioners. Held, that after the change had been made and the new road used by the public for two years, the Commissioners Court had not the power to annul its previous order, of its own motion and without notice, and direct the summary re-opening of the road and removal of fences across the same, merely because said petitioner had opened a portion of the new road to a width of only 15 feet.</p>

<p>Clerical Error of No Importance—Affidavit for Garnishment.</p> <p>In an affidavit for garnishment it was stated that the writ was not sued out to injure “either the defendant of garnishees.” Held, that that the word “either” clearly suggested that the word “or” was intended instead of “of,” and the trial court erred in quashing the writ of garnishment.</p>

<p>1. Will—Devise of Life Estate with Power of Disposition.</p> <p>Where a testator bequeathed to his wife his entire estate, “to possess, use, dispose of and enjoy as her own, and for supporting, educating and rearing my minor children, during her natural life, and after her death * * * to be equally divided among my lawful heirs,” it was held to be a devise to the wife with a general power of disposition.</p> <p>2. Same—Forced Heirship.</p> <p>The law of forced heirship does not apply to a conveyance by the devisees, when the order of the County Court establishing the validity of a will has never been set aside, and has become finally conclusive of the testator’s right to dispose of his property in the manner he did.</p> <p>3. Deed by Surviving Wife—Construction.</p> <p>A deed executed by a surviving wife, with a general power of disposition, to which, however, no reference is made, and by two of the heirs, purporting to convey “all the interest we each and all have * * * being our entire interest in the same,” conveys only the community and life estate of the wife, and the shares of the two heirs, leaving unsold the shares the other heirs.</p> <p>4. Deed—Mistake—Evidence.</p> <p>In trespass to try title, there being no ambiguity in the face of the deed, it is not permissible for the grantors to show that they were mistaken as to the quantity of land conveyed; but a suit to correct the deed is necessary.</p>

<p>1. Master and Servant—Personal Injury—Negligence of Fellow Servant.</p> <p>The master can not be held liable for personal injury to the servant resulting from the negligence of a fellow servant, where it is shown that such fellow servant was a careful, prudent person and competent workman.</p> <p>3. Same—Allegata and Probata—Negligence Not Alleged.</p> <p>Where plaintiff’s petition against the master for personal injury alleged such injury to have resulted from the carelessness and incompetency of a fellow servant, he is not entitled to recover upon proof showing negligence in the foreman in ordering the fellow servant to do the act which caused the injury, such matter not being alleged in the petition.</p>

<p>1. Railway Company—Burning Rail Fence —Cost of Wire Fence as Evidence.</p> <p>Where the plaintiff in an action against a railway company for damages for the burning of a rail fence testified that since the fire he had built a wire fence, and was in as good condition financially as before the fire, he may properly be asked what was the entire cost of constructing the wire fence in the place of the old one. Pleas-ants, Justice, dissenting,</p> <p>S. Same—Same—Measure of Damages.</p> <p>The measure of damages for the burning of a rail fence is not the actual market value of the fence at the time, but it is the value of the fence as an inclosure of plaintiff’s land; and this is to be arrived at after a comparison of the respective costs of rail and wire fences, where the evidence shows that a wire fence will place plaintiff in as good condition.</p>

<p>School Lands—When Segregated From the Public Domain—“Isolated and Detached” Lands.</p> <p>When a purchaser of lands from the Commissioner of the General Land Office gives to the State his obligation to pay the price thereof and to perform the other conditions of the sale, the land so purchased becomes segregated from the public domain; and an adjoining section is so “isolated and detached” as to be subject to sale under the Acts of 1887 and 1889, section 22.</p>

<p>Iiibel—Truth in Justification.</p> <p>In an action for libel, where the truth is pleaded in defense, it is not sufficient to show that the charge was in fact made as published, but it must be shown that it was true.</p>

<p>Appeal to County Court—Who May Object to Bond.</p> <p>Judgment was rendered against two defendants in a Justice Court, and one of them appealed to the County Court, giving an appeal bond payable to the plaintiff alone, and not to the codefendant. The codefendant appeared in the County Court, and waived objection to the bond. Held, that plaintiff could not complain of the omission as ground for dismissal of the appeal.</p>

<p>1. Powers of Executors—Supplies For Estate</p> <p>Where executors are authorized to carry on a plantation, they have power to incur a debt for supplies for use on the plantation.</p> <p>2. Few Trial—Newly-Discovered Evidence.</p> <p>A motion for a new trial, on the ground of newly-discovered evidence, is not sufficient when no attempt was made to produce the evidence sooner, and previous knowledge of its existence is not "denied.</p>

<p>Disqualification of Judge—Administrator as Party to Suit.</p> <p>A judge is disqualified to sit in a case when he is related to a party within the third degree, though he he a party only as administrator.</p>

<p>_ Evidence by Parol to Vary Written Instrument—Omission of Power of Sale from Chattel Mortgage.</p> <p>Where a chattel mortgage not containing any power of sale was executed in the presence of the mortgagee, and he took possession of it without examining it, he cannot, in the absence of fraud or accident, introduce paroi evidence to show that it was agreed by the parties that the mortgagor should execute an instrument under which the mortgagee “could make his money out of the property without going into court,” and thus authorize and confirm a sale of property which had already been made by the mortgagee without authority.</p>

<p>1. Practice on Appeal—Fundamental Error—Jurisdiction.</p> <p>An objection to a judgment based on the ground that the court had no jurisdiction over the subject matter will be considered on appeal, under Rule 33 for the Courts of Civil Appeals, without an assignment of error.</p> <p>S. Jurisdiction of Probate Court—Judgment on Guardian’s Bond.</p> <p>Since the Probate Court had no jurisdiction to render judgment against the sureties on the bond of a former guardian for the amount due by him to his ward’s estate, the District Court acquired no jurisdiction by appeal, although it would have had original jurisdiction in the matter.</p>

<p>1. Deed of Trust for Benefit of Creditors—Preferences—Fraud—Charge of Court.</p> <p>A preferential trust deed was attacked on the ground that a preferred claim in favor of the grantor’s attorney was fraudulent, as excessive, and it was disputed in the evidence whether the fee was merely for the services of the attorney in drawing the deed, or for drawing it and defending the mortgage, with legal advice thereon. The court instructed on the issue of fraud, that all the circumstances surrounding the parties at the time of the transaction should be considered; and submitted as a special'issue the question, “What sum was a reasonable amount for an attorney’s fee for the services done and contracted to be done by the attorney in regard to the making and defending the mortgage?” Held, that the issue was properly submitted, and the charge was sufficiently specific as to the reasonableness of the fee.</p> <p>2. Same—Sales on Credit as Badge of Fraud—Charge.</p> <p>Where goods conveyed by a trust deed with preferences do not in value exceed the debts preferred, and the trust deed requires its prompt execution in disposing of the property, a charge of court that a provision in the deed authorizing the trustee to sell on .credit rendered it prima facie fraudulent, is properly refused, as being on the weight of the evidence.</p> <p>3. Same—Validity of Trust Deed Which Includes Fraudulent Claims.</p> <p>The inclusion of a fraudulent claim in a trust deed with preferences does not render it void as to innocent creditors secured thereby.</p> <p>4. Same—Fraud—Charge of Court.</p> <p>A requested charge that a deed of trust with preferences would be fraudulent if executed to enable the grantor to force a compromise with his creditors, is properly refused where the court has already charged that the deed would be fraudulent if it was not made to enable the preferred creditors to realize their debts, but was made to encumber the property, and thereby prevent other creditors from collecting their debts.</p> <p>5. Same—Acceptance by Creditor.</p> <p>Where a creditor preferred by a trust deed, with knowledge of the deed, stated to the trustee that he would look to him for payment, and was told by the trustee that he would see that he was paid, this was a sufficient acceptance.</p> <p>6. Same.</p> <p>So, where the attorney of a preferred creditor, on being told ‘by the trustee that his client was preferred in the deed, replied “all right,” this sufficiently showed an acceptance.</p> <p>7. Same.</p> <p>Where a creditor whose claim for rent is preferred, on being informed of the preference, told the trustee that the preference was satisfactory, and that he considered himself secure, this warrants a finding of acceptance by such creditor, although he subsequently sued out a distress warrant for his rent.</p> <p>8. Same—Excessive Commission to Trustee.</p> <p>That the commission given to the trustee in a trust deed for the benefit of creditors is exorbitant, does not necessarily render the instrument void, where the commission was allowed by the grantor in good faith.</p> <p>9. Practice—Consolidation of Suits—Objection Too Late.</p> <p>A party cannot object to the consolidation of actions after having acquiesced therein for nearly two years.</p> <p>10. Trust Deed—Judgment Against Attaching Creditor.</p> <p>Where the trustee in a trust deed for the benefit of preferred creditors recovered judgment for the value of goods attached by a non-preferred creditor, who had had them sold under the attachment and credited the amount on his judgment, the court properly ignored the credit entered on the judgment in the attachment suit.</p> <p>11. Practice—-Interest—Costs of Appeal.</p> <p>Where the judgment below awarded interest at a higher rate than was authorized, and the matter was called to the attention of the trial court in a motion for a new . trial, the judgment will be reformed on appeal, and the costs of the appeal will be . taxed against the appellee.</p>

<p>1. Trespass to Land—Measure of Damages.</p> <p>In an action for damages for entering plaintiff’s pasture and driving into such pasture a herd of cattle, the court charged that the measure of damages for the destruction of the grass and turf, and for injury to watering troughs and fences, was the diminished value of the premises. Held, correct, and that an instruction that the measure of damages for the injury to the troughs and fences was the cost of repairing the same was properly refused.</p> <p>2. Measure of Damages—Injury to Live Stock.</p> <p>The measure of damages for injuries by defendant to plaintiff’s mares, causing them to slink their foals, is the reduced value of the mares, and not the value of the colts so lost.</p>

This was a suit for the trial of the right of property. Appellant filed suit against the firm of Steed Bros., and had attachment issue to Collingsworth County, Texas, which writ was, on May 16, 1898, levied on a bunch of cattle, which are in controversy in this suit, as the property of Steed Bros. Appellee, on June 19, 1893, presented its affidavit and claim bond for the trial of the right of property to the sheriff making the levy, who delivered the cattle so claimed to…

<p>1. Contract—Delivery in Escrow.</p> <p>Defendants contracted to lease pastures to plaintiff provided that the latter should execute notes for the rent, and that defendants should give bond to secure plaintiff against damages to cattle grazing on the pastures, and such contract was delivered in escrow to be held until the bond and noces were furnished to the holder for delivery to the parties. Plaintiff executed and delivered the notes, but defendants failed to execute the bond. Held, that the contract was never completed.</p> <p>2. Pleading—Written Instrument—Eon Est Factum.</p> <p>Plaintiff sued for the breach of a contract, alleging as to its execution only that defendants “did undertake, contract, agree and promise to let and lease to plaintiff two certain pastures,” and did “by said agreement and contract become bound to furnish” grass and water, etc., but without referring in any manner to a written contract or making it an exhibit. Held, that this was not an action upon a written contract, such as precluded defendant from raising the question of delivery of the written contract produced in evidence because no plea of non est factum under oath had been filed.</p>

<p>I. County Boundary Line—Power of Commissioners Court—Legislative Ratification.</p> <p>Since the Legislature could empower the Commissioners Courts to adjust and establish disputed county boundary lines, it could by subsequent curative act ratify their action in such a matter done without previous authority.</p> <p>3. Damages—Liability of Officer—Judicial Act.</p> <p>The members of the County Commissioners Court are not individually liable in a civil action to one whose property has been wrongfully taken by the tax collector in pursuance of an order of such court to collect a tax levied by them in a district which, upon a misconstruction of the law, they had erroneously determined to be within their jurisdiction.</p> <p>3. Same—Exemplary Damages.</p> <p>Neither the officer collecting nor the Commissioners Court levying a tax on the citizens of a district which the court has erroneously, but without malice or wantonness, determined lies within its jurisdiction, can be held liable for exemplary damages, although property has been wrongfully and illegally seized in consequence of the order for collection of the taxes.</p> <p>4. Same—Officer as Trespasser—Actual Damages.</p> <p>Where a tax collector executes void process in another county, he is liable in actual damages as a trespasser.</p>

<p>1. Practice in Trial Court—Opening and Conclusion.</p> <p>In an action on a note to which the defendant pleaded a special defense, as to which the evidence was conflicting, it was reversible error to refuse to permit defendant to admit in open court that plaintiff had a good cause of action as set forth in his petition, except so far as it might be defeated by the facts of the special answer, and to grant defendant the right to open and conclude in the introduction of evidence and the argument.</p> <p>S. Usury—Forfeiture of Entire Interest.</p> <p>Under article 3104, Revised Statutes, 1895, the entire amount of usurious interest is forfeited and uncollectible.</p> <p>3. Same—Attorney Fees.</p> <p>The defense of usury interposed to an action on a note will not impair plaintiff’s right to recover the attorney fees stipulated in the note, and upon the principal of the obligation.</p>

<p>1. Trial of Bight of Property—Denial by Claimant.</p> <p>The statute which applies the general denial for the plaintiff to any special matter of defense pleaded by defendant, can not, in the statutory action for the trial of the right of property, be invoked by the claimant to controvert what he has not denied in his tender of issues.</p> <p>S. Same—Verdict Upon Special Issues.</p> <p>A verdict upon special issues will not be held too narrow to support the judgment, where it covers the only material issue controverted by the plaintiff in his denial of the issues tendered by plaintiff.</p> <p>3. Same—Amount of Judgment for Plaintiff.</p> <p>Where the claimant fails to sustain his claim to attached property, it is not reversible error that judgment is rendered for plaintiff in attachment for the amount of his debt, instead of for the value of the property, where the debt is less than such value.</p>

<p>1. Charge of Court—Overflow of Land.</p> <p>Where the evidence presented an issue as to whether the flooding of plaintiff’s land was caused by defendant’s embankment, a charge relieving defendant from liability if due to other causes should have been given on request, the point not being covered by the instructions given.</p> <p>3. Same.</p> <p>The charge in such case should hold defendant liable for injury caused by its own negligence, but no more.</p>

<p>Railroads—Killing Stock—Animals Unlawfully at Large.</p> <p>For animals killed by its trains within the limits of a city where such stock was prohibited from running at large, though at a point where the road could have been lawfully fenced, a railroad company is liable only in case of negligent killing, though the stock was at large without fault of the owner.</p>

<p>Registration—Chattel Mortgage—Subsequent Mortgage.</p> <p>A mortgagee who for the consideration of an extension of time on his previously existing debt receives a mortgage on personal property without notice of a previous unregistered lien thereon is entitled to protection against such lien, the extension of time being sufficient consideration to constitute him a mortgagee for value. (Steffian v. Bank, 69 Texas, 517.)</p>

<p>1. Insolvent Corporation—Preferring Creditors—Assignment of Bents.</p> <p>The assets of an insolvent corporation which has ceased to do business constitute a trust fund for the payment of its debts and it can do no act which would, by preferring certain creditors, prevent its assets from being so applied, as by drawing drafts in favor of a creditor against a lessee of its property for rents to become due,</p> <p>Z. Same—Pleading—Error Not Harmless.</p> <p>The tenant who had paid the rents to a receiver of the company could avail himself of such defense against the drafts; and it was error to sustain a demurrer to his plea setting up such defense, which was not rendered harmless by the fact that his codefendant, the receiver, was permitted to plead and introduce evidence on the, same point.</p>

<p>Homestead—Rural or Urban.</p> <p>A farm of thirty-three acres, the house and nine acres being within and the remainder without the corporate limits of the City of Greenville at the time of its purchase and designation as a homestead, not laid off into lots or blocks, but occupied and used by the owner as a farm, was all exempt from execution as a rural homestead.</p>

<p>1. Charge of Court—Omission—Request to Correct.</p> <p>Failure to include in the charge as to damages all the items claimed, the charge being correct as to those embraced in it, will not be ground for reversal unless instructions remedying the omission are asked.</p> <p>2. Measure of Damages—Carrier—Market Value Mot at Destination.</p> <p>In a suit for injury to and delay of animals shipped to market evidence of market values elsewhere than at the point of destination is irrelevant.</p>

<p>1. Payment—Burden of Proof—Convict’s Bond.</p> <p>In a suit on an obligation to pay a given sum of money at a specified time the burden is on defendant to prove payment, after the plaintiff puts in evidence the executed obligation. This principle applies to a suit upon a bond given to the County Judge for hire of a county convict.</p> <p>3. Practice—Reopening Evidence.</p> <p>It seems the proper course to permit a case to be reopened after evidence closed, to supply proof of an essential fact inadvertantly omitted, though the omission was first suggested by the court.</p> <p>3. Contract—Signing on Condition.</p> <p>One who has signed an obligation as surety and entrusted it to the principal is not relieved from liability by an understanding with the principal that he would procure a certain other person to sign as surety, where the bond was accepted by the. payee without notice of such conditional signing by the surety.</p> <p>4. Contract—Signature by Agent.</p> <p>Parol authority is sufficient to authorize one to sign the name of another to a bond in writing.</p>

<p>1. Evidence—Declarations of Third Parties.</p> <p>On the issue of whether plaintiff’s cattle were properly treated while unloaded and held at stock pens by reason of a strike, evidence that other shippers, whose cattle were held at the same place, expressed satisfaction with the treatment was irrelevant.</p> <p>S. Charge of Court—Facts Not in Evidence.</p> <p>Where there was no evidence in the record to show that the place where cattle were delayed in transit was a division terminus it was error to charge the jury as to what delay might be excusable at such terminus.</p> <p>3. Same.</p> <p>See evidence under which such error could not be held harmless.</p>

<p>1. Practice on Appeal—Record—Agreement in Lieu of Evidence.</p> <p>Where there was no evidence in support of a plea of limitations and nothing in lieu thereof except an agreement of counsel which does not appear to have been brought to the trial court’s attention, and which is not embodied in the statement of facts, nor otherwise properly incorporated in the record, the refusal of the court to submit the plea is not ground for reversal.</p> <p>2. Railway Company—Liability for Negligence of Receiver.</p> <p>Where a large amount of the net income of a railroad while in the hands of a receiver was expended in permanent betterments, and the road was returned to the company without sale, the company is liable for negligence in its operation during the receivership.</p>

<p>Vendor’s Lien—Payment of Purchase Money Debt—Subrogation—Homestead Right.</p> <p>H. applied to a loan association of which he was a member for money with which to pay for land that he had contracted to buy, but the association had no funds then on hand, and therefore he obtained the loan from R. H., a friend, who reserved no lien to secure it, and H. took deed and occupied the property as his homestead. Afterwards the association advanced the money, reimbursing R. H. and taking a deed of trust on the property from H, and wife, which recited that the money “is by us used as the purchase money for the property herein described.” Held, that the lien thus created could not override the homestead right, no such vendor’s lien having been originally contracted for with R. H. or the association.</p>

<p>1. Equity—Injunction—Public Nuisance—Gaming House.</p> <p>A court of equity has no jurisdiction, in a civil action brought by the State through its proper officer, to issue an injunction restraining the defendants from using certain premises for the purpose of carrying on a public gaming house, on the ground that it is a public nuisance and injurious to the moral welfare of the community, no injury to the civil or property rights of any citizen being shown.</p> <p>2. Same—No Injunction Against Crime.</p> <p>Equity will not undertake to restrain the commission of an act constituting a crime merely because it is criminal in character.</p>

<p>1. Mutual Benefit Certificate Subject to By-Laws of Order—Designation of Beneficiary.</p> <p>C., a member of a benevolent order, and who, as such, had agreed to be bound by its rules and by-laws, received from it a benefit life insurance certificate, which, under its rules, was to be payable at his death to some one therein designated as the beneficiary, who should be a relative or dependent on him; the rules also providing that a member should have no vested right in such certificate, and that it should constitute no part of his estate at his death, and that upon his failure to designate a beneficiary of the prescribed classes, it should revert to the order. The certificate, when issued to C., was made payable to his order, but under a by-law afterwards adopted he was notified to send in the certificate and obtain a new one with the beneficiary designated. This he failed to do, but gave a third person a written order upon the association, making the amount of the certificate payable to such person. Held, that upon such failure of C. to designate a beneficiary, the certificate was no longer payable to his order, and lapsed.</p> <p>2. Same—‘ ‘Dependent”—Concubine.</p> <p>One who, as housekeeper, lives in adultery with a member of the order, under a contract to be his paramour, made after she was of full age, is not a “dependent” to whom he can make payable the benefit life insurance certificate issued by the order.</p> <p>3. Contract Against Public Policy and Morals Void.</p> <p>A woman’s contract to live in adultery with a man, in consideration that his life insurance certificate shall be payable to her at his death, is against public policy and will not be enforced.</p> <p>ON BEHEABING.</p> <p>4. Pleading—Variance—Contract Consideration, or Gift.</p> <p>Where plaintiff’s pleading alleged her claim to a benefit life insurance certificate as arising by virtue of a contract of its transfer to herself, and the contract is held invalid because the consideration on her part was immoral, she cannot, on appeal, maintain her claim upon the ground that the transfer of the certificate to her was a gift.</p>

<p>1. Married Woman’s Deed With Another—Defective Acknowledgment.</p> <p>The deed of a married woman not acknowledged by her in accordance with the statute is an absolute nullity as to her rights, but where she executes a joint deed with another person, the fact that it fails to pass her right, because of her defective acknowledgment, does not invalidate it as to the interest of such other person.</p> <p>2. Trespass to Try Title—Recovery in Part.</p> <p>Where plaintiff sues in trespass to try title for the.whole of the tract of land, he may recover such undivided interest therein as the proof shows he is entitled to.</p> <p>3. Same—Partition—Improvements in Good Faith.</p> <p>Where plaintiff in trespass to try title recovers an undivided interest in the land, the question of the value of the improvements for which he may be held responsible can only be determined in partition, as it may be that on an equitable division ef the land no improvements will be allotted to plaintiff.</p> <p>OR MOTIOR FOR EEHEARIRG.</p> <p>4. Partition—Void Deed of Married Woman as Power of Attorney.</p> <p>Where a married woman conveyed land by a deed absolute, which proved void for want of the statutory acknowledgment, she cannot be held to have authorized or ratified a partition of the land subsequently made by her vendee for himself, because her deed contained an expression authorizing the vendee, as such, to make a partition of the land—such language in a deed absolute being mere surplusage.</p> <p>5. Adverse Possession of Cotenants.</p> <p>That a tenant in common, a co-heir, took possession of the entire tract of land, paid taxes on the whole of it, made some improvements thereon, and declared to nis son at some indefinite time that he claimed the whole of it, are acts not sufficient to show a possession adverse to that of his cotenants; who are not shown to have had notice of the adverse claim.</p> <p>6. Same—Admission by Cotenant.</p> <p>Whatever probative force and effect the acts of a tenant in common, showing adverse possession, may have had, they may be effectually removed by his subsequent admissions, as where he afterwards joins in a deed with his cotenant in conveying the land.</p>

<p>1. Parties in Partition—Guardian with Interest.</p> <p>A guardian ad litem for minor heirs was properly appointed in partition proceedings, where their regular guardian had an adverse interest—his own children being devisees and parties, and their interest in the estate being devised to him in case they died before attaining majority.</p> <p>S. Same—Trustee, not Guardian.</p> <p>Where the executors were empowered by the will to control the interests of minor devisees after partition and until their majority, the regular guardian of their estate was not entitled to represent such devisees in partition.</p> <p>3. Practice on Appeal—Record—Appeal Bond.</p> <p>It will be presumed by the Court of Civil Appeals that the District Court properly had jurisdiction of an appeal from the County Court, although the appeal bond from such latter court does not appear in the record, where the judgment of the District Court refers to such bond, and no question as to its absence was raised below. Following Heath v. Garrett, 50 Texas, 264.</p> <p>4. Estates of Decedents—Charging Share of Minor Devisees.</p> <p>' Where a will directed the executors to procure a partition of the property devised into certain equal portions, one of which was devised to the minor children of a son of the testatrix, with authority to the executors, after partition, to manage the share so devised until the devisees became of age, such share was chargeable pro rata with the expenses of administering the will, and a certain part of the property composing this allotment was properly decreed to the executors with which to pay the same.</p> <p>5. Continuance—Amendment—Surprise.</p> <p>Where leave was given an executor, on settlement, and before the jury was impaneled, to file a supplemental account, the items of which were of the same nature as those in the original account and capable of being attacked by the same evidence, a continuance on the ground of surprise was properly refused.</p> <p>6. Pleading—Amendment of Prayer After Evidence Closed.</p> <p>Allowing an amendment to be filed after close of the evidence, which merely changes the prayer of the pleading so as to conform it to the contention of an adverse party, does not afford ground of reversal at the instance of such party.</p> <p>7. Partition—Necessary Parties.</p> <p>Where a will directed the executors to procure a partition" of the estate into certain equal parts, devising one of such parts to the children of a son of the testatrix, children by a second wife of the son were necessary parties in the partition.</p> <p>8. Same—Allotment of Shares in Trust.</p> <p>Where a will directed a partition of the estate into six equal parts, devising one of them to certain minor grandchildren, to remain in the hands of the executors until such minors became respectively of age, the court, in making such partition, before they became of age, rightly alloted a one-sixth share to the executors in trust for them, without determining their several interests therein.</p> <p>9. Same—Advancements by Trustees Under Will—Jurisdiction of County Court.</p> <p>The County Court, in partitioning an estate under a will, had no jurisdiction to charge the shares of the devisees with advancements made to them by the executors as trustees under the will.</p>

<p>1. Railway Company—Accident at Crossing—Obstructions on Right of Way—Charge of Court.</p> <p>In an action for injuries received at a railroad crossing, because plaintiff’s view of an approaching train was obstructed by houses, stock pens, and cars on defendant’s right of way, the following charge is approved: “If you believe from the evidence that defendant permitted obstructions to be placed and remain upon its track and right of way, so as to obstruct the view of plaintiff in approaching the public crossing * * *, and if you believe such acts, if any, constituted negligence on the part of defendant, and that they were, the proximate cause of plaintiff’s injuries, and that plaintiff did not by his negligence contribute to his injuries, then you will find your verdict for the plaintiff.”</p> <p>S. Practice—Reading Former Opinion in Presence of Jury.</p> <p>Where counsel for plaintiff read to the court, in the presence of the jury, the opinion rendered on a former appeal of the case, but defendant made no objection at the time, and the court instructed the jury that they would “only bp governed by the law given you by this court,” it was not error to refuse a requested instruction that the jury should not consider the opinion.</p> <p>3. Verdict—General or Special.</p> <p>The following is a general, and not a special, verdict: “We, the jury, find that the defendant did not use proper caution in allowing its right of way to be obstructed so plaintiff could not see the train, which was running at a greater rate of speed than was allowed by law. Therefore we find for plaintiff for the sum of,” etc.</p>

<p>Appeal from the County Court of Fayette. Tried below before Hon. W. S. Robson.</p>

<p>1. Evidence—Admissions Against Interest.</p> <p>In an action against a railway co'mpany by the children of one who was killed by a train while walking along the track, the defendant was entitled to prove by the husband of one of the children (plaintiffs) that his wife told him after the accident that shortly before her father went upon the track she requested him not to do so, and told him a train would be along soon, as such testimony, while hearsay as to the other plaintiffs, was, as to the wife of the witness, an admission against interest, tending to show that the father knew when he went on the track that the train would soon pass over it, and was therefore negligent.</p> <p>2. Railway Company—Signals at Crossing—Trespasser.</p> <p>The statutory signals required to be given before a train reaches a public crossing, are not intended for the protection of trespassers on the track, and such a trespasser, injured near a crossing, cannot claim that a failure to give such signals was negligence as to him.</p> <p>3. Same—Ordinary Care as to Injuring Trespasser.</p> <p>The train operatives are not required by law to keep a constant lookout for persons who may be wrongfully on the track, but when they see such a person on the track, and nave reason to believe he is not aware of the near approach of the train, nor about to leave the track, they have no right to presume against such belief that he will leave the track, and it is their duty, after discovering his peril, to use every means at their command to avoid injuring him.</p> <p>4. Damages for Death by Wrongful Act—Right of Adult Children to Recover.</p> <p>An adult son and married daughters, in no way dependent on the father for support, and receiving nothing from him except occasional presents of no great value, are not entitled to recover from a railway company for negligently causing the father’s death.</p>

<p>Homestead Exemption—Place of Business—Postmaster.</p> <p>The owner of a one-story brick business house, and who had no other business than that of postmaster, kept the postoffice in the building, using a part of it for that purpose and renting the remainder to other parties. Held, that the building was exempt as his place of business.</p>

<p>Fire Insurance—House on Leased Lot not Personal Property—Liquidated Demand.</p> <p>Under article 2971, Revised Statutes, 1879, providing that in case of a total loss by fire of the property insured, the insurance policy shall be considered a liquidated demand for its full amount, but providing further that the article shall not apply to personal property, a one-story brick, metal roof warehouse erected by a tenant upon leased land under a contract stipulating that it should remain his property, removable at expiration of the lease, is not personal property such as to be excluded from the protection of the statute.</p>

<p>1. Practice on Appeal—Trial Court’s Failure to Make Findings of Facts.</p> <p>Neglect of the trial court to file written findings of fact, upon request in writing therefor, will not he held reversible error, where it does not appear that such request was brought to the court’s attention, and no injury appears to have resulted therefrom.</p> <p>2. Insurance Company—Iron Safe Clause—Waiver of Forfeiture.</p> <p>Where the insurance company, after knowledge of a noncompliance by the insured with the conditions of the iron safe clause, causes him to be examined as to the loss pursuant to a clause in the policy, it thereby waives the forfeiture stipulated for such noncompliance.</p>

<p>1. Execution Sale—Writ Addressed to Wrong County.</p> <p>An execution sale of land, made by the sheriff of one county under a writ addressed to the sheriff of another county, is a nullity.</p> <p>2. Record of Judgment Lien—Expiration—Notice.</p> <p>Where, under article 3963, Paschal’s Digest, providing that a recorded judgment created a lien on the land lying in the county, which would expire in four years unless reinseribed, a failure to so reinscribe destroyed the lien, and the record would not serve as notice. Following Flanagan v. Oberthier, SO Texas, 379.</p> <p>3. Notice—Record of Void Deed.</p> <p>The record of a void deed does not convey notice of its recitals,</p>

<p>1. Railway Crossing Street—Condition of Approaches—Charge of Court— Harmless Error.</p> <p>In an action against a railway company for injury resulting from defective conditions in the approaches to its track, where it crossed the street, the court charged that it was the duty of the company to keep the crossing so as not to impair the usefulness of the street as a public highway, and that this would require it to keep the necessary approaches to the crossing in like condition. Held, that although the statute requires that railway companies shall construct their tracts across a street or highway in such manner “as not to unnecessarily impair its usefulness, and shall keep such crossing in repair,” yet as the evidence raised no issue as to whether it was necessary for the company to have left the crossing in the condition it was in at the time of the injury, the charge was not misleading.</p> <p>2. Same—Approaches a Question of Fact.</p> <p>What constitutes an approach to a railway crossing, either in a city or the country, is a question of fact, and is to be determined by the jury from the circumstances surrounding each case.</p> <p>3. Charge of Court—Defensive Matter—Request.</p> <p>Where a charge of court is desired upon a phase of the case which presents defective matter, it should be requested.</p>

<p>1. Railway Company—Duty of Keeping Lookout for Persons on Track— Distinctions.</p> <p>It is the duty of those operating a railway engine to use ordinary and reasonable care to discover persons on the track at any public crossing in time to avoid injuring them; but with reference to a person on other parts of the track, the liability of the railway company will depend, in the first instance, on whether its train operatives in fact saw him there in time to have avoided the injury.</p> <p>2. Same—Liability Further Dependent on Knowledge of Peril.</p> <p>It is not enough to fix liability upon the railway company, in such cases, that its train operatives did see the person on the track in time to have avoided the collision; they must also have seen or known the peril of. his situation.</p>

<p>Telegraph. Company—Mental Anguish.</p> <p>Plaintiff’s wife wired him to return home, as her mother there was expected to die, and he answered that he had started and would reach home the night of the next day; but his message was not delivered to the wife until after he reached home, and he sued to recover for the mental anguish suffered by the wife because of not hearing from him, alleging that such anguish “w'as wholly separate and distinct from the grief caused by her mother’s condition.” Held, that no cause of action was shown, and the case not distinguishable in principle from that .of Rowell v. Telegraph Co. 75 Texas, 26.</p>

<p>1. Charge of Court—Issue Without Evidence.</p> <p>Where an issue made by the pleading is without evidence that could support it, the court may properly omit it from the charge.</p> <p>2. Railway Company—Negligence—Escape of Steam from Engine.</p> <p>A railway company will not be held liable for personal injury to plaintiff resulting from a fright to his horse at a street crossing, caused by the sudden escape or discharge of steam from one of its engines, where it is not shown that its servants operating the engine knew of plaintiff’s presence there, or of his perilous position.</p>

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

<p>1. Charge of Court—Facts Established by TTncontradicted Evidence.</p> <p>When a fact is established by uncontradicted evidence, it is not error for the charge of the court to assume its existence.</p> <p>2. Ex Parte Deposition—Confessed—Question for Court.</p> <p>Whether or not a party to a suit has wilfully and contumaciously refused to answer interrogatories propounded to him, so that they may be taken as confessed against him, is a question for the court, and not the jury.</p> <p>3. Verdict of Jury Sufficient.</p> <p>Where there is but one plaintiff and one defendant, the following verdict is sufficient: “We, the jury, find for the plaintiff, Fritz Berling, $2500.”</p> <p>4. Assessment of Damages—Verdict—Appeal.</p> <p>The verdict of a jury fixing the amount of damages will not be disturbed on appeal, unless the amount be so great, considered in reference to the evidence, as to make it probable it was the result of passion.</p> <p>5. Physical Examination—Selection of Surgeon.</p> <p>If the plaintiff in an action for personal injuries can in any case be compelled to submit to a physical examination by a surgeon, the surgeon should be one agreed on by the parties or selected by the court, and not one who has already testified adversely to the plaintiff.</p>

<p>1. Injury to Bailroad Brakeman—Cause Not Matter of Daw.</p> <p>Evidence that a brakeman while setting a brake slipped and fell over the end of the car and caught and held to the brake, but was thrown to the ground and injured on account of the defective condition of the brake, does not warrant the court in holding as a matter of law that his injury resulted from a risk incident to his employment, or a defect so obvious that he should have known of it.</p> <p>2. Same—Bisk Incident to Employment—Charge of Court.</p> <p>A charge that the jury would find for defendant, unless they believed that plaintiff was injured, as alleged, by reason of the negligence of the defendant, and without contributory negligence on his part, and unless they believed that the injury was not caused by a risk ordinarily incident to the employment in which plaintiff was engaged, is not subject to objection on the ground that it indicated that defendant would be liable if plaintiff’s injuries were caused by a risk ordinarily incident to his employment, or that, in order to find for defendant, the jury must believe that the injury, was not caused by such risk.</p> <p>3. Same—Same—Negligence of Master—Charge of Court.</p> <p>A charge that, “while an employe of a railroad company assumes the risks ordinarily incident to the service in which he is employed, yet he does not assume the risks which result through the negligence of the master,” is not subject to the objection that it indicated that the master’s negligence would make him liable, irrespective of plaintiff’s knowledge of such negligence, and of his failure to use ordinary care to avoid injury, where the court also charged that, in order to entitle plaintiff to recover, he must prove that his injuries were caused by the defendant’s negligence, and that he did not, and could not by the exercise of ordinary care, know of such negligence.</p> <p>4. Charge of Court—Bequested Instruction—No Evidence.</p> <p>The court properly refused a requested instruction, when there was no evidence making it applicable to the case.</p>

<p>1. Contributory Negligence—Railway Crossing Accident.</p> <p>Plaintiff waited for a passenger train going south on the main track to pass, and then crossed to the west of the main track and halted within twenty inches thereof, without looking to the south, while a freight train passed south on a switch track to the west of him. While watching the rear end of this freight train, which was still north of the crossing, he was struck by another freight train which had just before gone south on the west switch track and then come north on the main track, after the passage of the passenger train. He had seen it go south on the switch, but had also frequently seen it before, and never knew it to back north on the main track afterward^. Held, that the trial court did not err in finding him free from contributory negligence.</p> <p>2. Same—Recovery Notwithstanding, When.</p> <p>Plaintiff can only recover for personal injuries caused by the negligence of another, where he is guilty of contributory negligence, when his danger was made known to defendant in time to protect him by the use of ordinary care, and defendant failed to use such care after discovering him.</p>

<p>1. Evidence—Primary and Secondary.</p> <p>The note sued on stated that it was given “as a last payment on house and lot in Bivens, Texas.” The petition alleged that, atthe time it was given, a deed was executed describing the property sold. At the trial this deed was not produced or accounted for. Held, that it was error to permit a witness who was present when the note was delivered to testify that it was given in part payment for the land described in the petition, since the deed was the best evidence.'</p> <p>2. Parties to Suit—Administrator Appointed Pending Litigation.</p> <p>An administrator of the estate of a vendee appointed during the pendency of an action against his heirs to foreclose the vendor’s lien, must be made a party to the suit.</p> <p>3. Qualification of Administrator—Collateral Attack.</p> <p>The action of the Probate Court in extending the time in which an administrator shall qualify cannot be collaterally attacked.</p>

<p>1. School Tax in City—Organization as School District.</p> <p>To authorize the recovery by a city of a judgment fixing a lien upon land for an unpaid school tax, it must be alleged and proven that such city had been duly organized into a separate school district.</p> <p>3. Taxation—Joint Assessment Must be Under Joint Rendition.</p> <p>No tax can be recovered upon a city lot, where such lot has been assessed jointly with some other lot, unless the property has been rendered by its owner to be assessed jointly.</p> <p>3. Same—Interest.</p> <p>Interest on delinquent taxes cannot be recovered from the time they became due, but only from the date of the judgment.</p> <p>4. Same—Several Parcels of Land—Lien.</p> <p>A judgment fixing a general lien upon several city lots for the taxes due upon all is erroneous, since the lien exists upon each parcel of land only for the tax due upon it.</p> <p>5. Board of Equalization—Appointment of Members.</p> <p>Where the appointment of the members of a board of equalization is announced by the mayor in the presence of the city council, no one objecting, it is held on collateral attack that this is an appointment by the aldermen.</p>

<p>1. Jurisdiction—Non-Residents and Foreign Corporation as Parties.</p> <p>The courts of Texas will take jurisdiction of an action by residents of the Indian Territory against a foreign corporation doing business in Texas. Following Telegraph Co. v. Phillips, 21 S. W. Rep., 638.</p> <p>2. Telegraph. Company—Beneficiary of Message.</p> <p>A telegram sent by a daughter to her mother, informing the mother of the daughter’s illness, is sent as well for the benefit of the mother as of the daughter, and the mother may maintain an action for failure to deliver it.</p> <p>3. Same—Failure to Deliver Telegram—Damages not too Remote.</p> <p>The damages are not too remote and contingent, where it appears that the addressee of the telegram for failure to deliver which the action is brought was at the time temporarily beyond the free delivery limits of the company, and whether the telegram would have accomplished its purpose depended upon whether those at the residence of the addressee within the free delivery limits, would have promptly communicated it to the addressee, had it been delivered to them.</p>

<p>1. Jurisdiction of Courts of Civil Appeals on the Facts.</p> <p>See the opinion for a discussion of the jurisdiction of the Courts of Civil Appeals upon questions of fact, dissenting from the views of the Supreme Court.</p> <p>2. Incompetency of Railway Employe—Evidence of Knowledge Thereof.</p> <p>See the opinion for evidence held sufficient to justify a finding that one railroad conductor had knowledge of the incompetency of another through whose recklessness he was injured.</p>

<p>1. Depositions—Correction of Formal Defects.</p> <p>It is not error to permit depositions to be withdrawn for the purpose of having the officers taking them make correction of formal defects in their respective certificates.</p> <p>'2. Same—Betaking Before Different Officer.</p> <p>It was not error to permit depositions taken before an officer not authorized for that purpose to be retaken by a different officer, upon due notice, with such “regulations and safeguards” as indicate that the integrity of the answers was preserved.</p> <p>3. Same—Suppression—Others to Same Effect.</p> <p>Where two witnesses testified substantially to the same facts, the refusal to suppress their depositions on account of formal defects was harmless error, when a subsequent deposition of one of them to the same effect was admitted.</p> <p>4. Same—Same—Facts Otherwise Established.</p> <p>The refusal to quash a deposition is not reversible error where the testimony of another witness establishes the same facts.</p> <p>5. Trespass to Try Title—Death of Party Plaintiff—Bringing in Heirs.</p> <p>In trespass to try title it was not error to refuse a motion for a continuance to make parties the heirs of a deceased plaintiff, where the plaintiffs were all tenants in common, and the judgment provided that the rights of the heirs should not be prejudiced.</p> <p>6. Depositions—Suppression—Oral Testimony of Same Witness.</p> <p>The exclusion of a deposition is not error, where the same witness testifies orally to the same facts.</p> <p>7. Evidence in Proof of Negative.</p> <p>On an issue as to the existence of a man claimed to have come from Crawford County, Georgia, to Texas, in 1835, evidence of a witness is admissible that he had lived in that county since 1824, and that no one of the given name went from there to Texas in 1835, and that there was never any report or tradition to that effect. The question naturally called for testimony of a negative character.</p> <p>8. Interrogatory—Answer Responsive.</p> <p>See the opinion, paragraph 7, for an answer to an interrogatory held to be responsive and not argumentative.</p> <p>9. Evidence—Issue of Fabrication—Influencing Witness.</p> <p>On an issue of fabrication as to the existence of a man, evidence tending to connect one of the parties to the fabrication with an attempt to influence a witness is admissible.</p> <p>10. Practice on Appeal—Special Act of Legislature not Contained in Record.</p> <p>The appellate court is unable to review the ruling of the trial court on the admission in evidence of a special act of the legislature, when the special act does not appear in the record.</p> <p>11. Secondary Evidence—Letter Establishing Pedigree.</p> <p>Secondary evidence of the contents of a letter tending to establish pedigree is admissible, when the recipient testifies to its loss and to a diligent search for it.</p> <p>12. Evidence—Family History—Hearsay.</p> <p>On an issue of identity evidence of family repute and family history is admissible, and is not subject to the objection that it is hearsay.</p> <p>18. Same—Identity—Theft Irrevelant.</p> <p>Plaintiffs claimed that the W. to whose heirs the land in controversy was patented came from Georgia, while defendants claimed that he came from Virginia. Held, that evidence of theft by the Virginia W. was irrelevant to the issue of identity.</p> <p>14. Same—Agreement to Look Up Testimony.</p> <p>Where the evidence raised an issue of fabrication as to the plaintiffs’ case, testimony showing an agreement between one of the plaintiffs and one B. and a further agreement between said B. and one H. for a contingent interest in the recovery, in consideration of services in looking up testimony, was admissible.</p> <p>15. Same—Conversation With Another Person.</p> <p>It is not reversible error to refuse to permit a witness to state what he told another person, when he is on the stand and makes the same statements directly to the jury.</p> <p>16. Practice in Trial Court—Argument of Counsel—Historical Documents.</p> <p>The action of defendants’ counsel in his argument to the jury in quoting from official letters and reports by Gen. Houston to Gov. Davis affords no ground of complaint.</p> <p>17. Special Instructions—Refusal Harmless Error.</p> <p>It was harmless error to refuse special instructions requested, when the application of the propositions stated therein was contingent upon a particular finding of the jury, and the jury found otherwise.</p> <p>18. Evidence—Declaration of Purpose—Res Gestee.</p> <p>Evidence of a declaration of purpose by one starting from Virginia to Texas is admissible as part of the res gestee.</p>

<p>1. Pleading—Petition—Joinder of Counts.</p> <p>A count in form of trespass to try title and a second count alleging frsiud and misrepresentation, and praying for rescission of a contract and cancellation of deeds, are properly joined in one petition, where taken together they constitute a suit to rescind a sale and recover possession of land.</p> <p>2. Fraudulent Representations—Agreement as to Damages—Rescission.</p> <p>Where a stipulation for damages in the event of breach extends only to a part of an agreement induced by fraud and misrepresentation, it will not prevent a rescission of the entire contract for such misrepresentation.</p> <p>3. Same—Waiver—Knowledge of Part of the Fraud.</p> <p>Where one induces another to purchase promissory notes by means of fraudulent representations as to the solvency of the maker and also as to the value of the land on which they are secured, the purchaser cannot be held to have waived the fraud when he subsequently tries to sell the notes, after learning of the insolvency of the maker, but before he learns the value of the land.</p>

<p>1. Practice on Appeal—Imputing Conclusions to Trial Court.</p> <p>Where no conclusions of fact were requested or filed, the appellate court will impute to the trial court such a finding upon any issue of fact, if supported by evidence, as will sustain the judgment.</p> <p>3. Limitation of Five Years—Insufficient Possession.</p> <p>The plaintiffs fenced three acres of the land in controversy in the winter of 1876, and cultivated the same until 1880. The inclosure was then removed, and the improvements abandoned, until 1888, when a tenant of plaintiff cultivated the land for two years and abandoned it. In 1886 a crop was raised on the three acres, but since that time it has been abandoned. Held, that the possession was not sufficient as a basis for limitation of five years.</p> <p>3. Field Notes—Calls for Adjoining Survey and for Natural Objects.</p> <p>A call in field notes for a line of an adjoining survey does not necessarily imply that the grantee recognizes that the location of that line should be fixed by the calls of the adjoining tract, but on the other hand may mean that it should be located according to the natural objects designated in the deed under which he claims.</p> <p>4. Limitations—Payment of Taxes.</p> <p>Plaintiffs purchased 240 acres of the H. survey, which was conveyed to them by metes and bounds. Their supposition was that the boundary between it and an adjoining survey was as given in the deed. Held, that the payment of taxes upon 240 acres of the H. survey will not support the statute of limitations with reference to the payment of taxes upon any part of the adjoining survey.</p>

<p>Foreclosure of Mortgage Upon Land—Growing Crops—Severance.</p> <p>A sale by the owner of land of crops growing thereon works a severance, so that the crops do not pass to the purchaser at a mortgage sale of the land, although the sale of the crops is subsequent to the maturity of the mortgage debt, and at the time of the mortgage sale the crops have not approached to maturity. Following Willis v. Moore, 59 Texas, 629.</p>

<p>1. Charge of Court—Weight of Evidence.</p> <p>The following charge is erroneous, as being upon the weight of the evidence: “You will reconcile any conflicts in the evidence, if you can, so as to give effect to all the testimony; but if you cannot, you will decide which of the testimony is entitled to the greater credibility and weight, and, in so determining, you may consider the intelligence, interest, bias, or prejudice, if any, of said witnesses, as well as their manner of testifying.”</p> <p>2. Ancient Instruments—Requisites of Deed—Need Not be Acted Upon. A deed which comes from the proper custody, is thirty years old, and is freed from any suspicions of its genuineness, if any, arising from its face and appearance or otherwise, is presumed to be genuine, without proof that it has been acted upon.</p>

<p>Appeal from Cooke. Tried below before Hon. D. E. Barrett.</p>

<p>1. Practice on Appeal—Who May Assign Cross-Errors.</p> <p>Where the plaintiff in an action is successful as to some of his adversaries and un« successful as to others, and on appealing from the judgment makes all of them obligees in his bond, one against whom he was successful is entitled to urge cross-assignments of error to the judgment, though he has not himself appealed.</p> <p>2. Intervention—Service on Defaulting Defendants.</p> <p>In an action to foreclose a chattel mortgage, where judgment by default has been rendered in favor of the plaintiff against the defendants, after a written waiver of citation filed by them subsequent interventions will not be stricken out for want of service on them.</p> <p>3. Chattel Mortgage—Registration.</p> <p>A chattel mortgage is void as to the creditors of the mortgagor when it is not registered in the county of his residence, though it be registered in the county where the property is situated.</p> <p>4. Range Levy—Return Not Fatally Defective.</p> <p>Though defective in not showing just how the levy was made, the following return on a writ of attachment does not on its face show a void levy: “Came to hand * * * and executed * * * by attaching all of the cattle * * * in the following brand * * * and leaving same on the range.”</p> <p>5. Attachment Lien on Cattle—Removal to Other Counties.</p> <p>Where a valid attachment lien has been fixed upon cattle, the person in possession thereof cannot himself afterwards remove them to other counties and claim a discharge from the lien.</p> <p>6. Range Levy on Cattle—Number in Each Brand Not Specified.</p> <p>A range levy is not void because the number of cattle in each brand is not specified, where the return states that 2000 head in three given brands were levied upon, it not appearing that the levy covered less than the whole number in all of the brands.</p> <p>7. Same—Return—“More or Less.”</p> <p>The expression “more or less,” used in the return on a range levy on cattle, in connection with the number designated, does not introduce an element of uncertainty, but tends rather the other way.</p> <p>8. Pledge of Cattle—Insufficient Change of Possession.</p> <p>It is not a sufficient change of possession to create a valid pledge of cattle running on the range, when the agreement is that the owners shall continue to look after them under the direction of the pledgee. „</p>

<p>1. Charge of Court.</p> <p>There is no error in refusing instructions requested when the charge given presents fully all the law of the case raised by the pleadings and applicable to the facts.</p> <p>3. Evidence—Negligence—Condition of Other Roads.</p> <p>Evidence that another road kept its track in similar condition to that Of defendant is irrelevant, on the issue of defendant’s negligence in so maintaining it.</p> <p>3. Same—Care to be Exercised.</p> <p>A witness cannot testify, on the issue of contributory negligence by a brakeman in making a coupling, that it was a rule among railroad men that a brakeman must look where he goes to couple cars. The question of his duty was for the jury.</p> <p>4. Same—Cause of Accident.</p> <p>Plaintiff having testified that he had on muddy rubber boots at the time of his fall and injury while attempting to couple cars, he was properly permitted to testify that this did not cause him to fall. Railway v. Somers, 71 Texas, 700.</p> <p>6. Argument of Counsel.</p> <p>Improper argument of counsel is not cause for reversal where the verdietñs not complained of as excessive and it does not appear that the jury were influenced by passion or prejudice.</p> <p>6. Same—Exceptions.</p> <p>Exceptions to remarks of counsel in argument should be taken at the time.</p>

<p>1. Charge—Boundary—Disclaimer.</p> <p>See charge, in suit of trespass to try title when defendant disclaimed as to part of the land, held not calculated to confuse the right to recover the part disclaimed with the right to recover the whole land, if the issues were decided in plaintiff’s favor.</p> <p>2. Homestead on Vacant Land—Charge.</p> <p>See charge as to right of defendant to acquire vacant public land as homestead, held not erroneous for failure to explain what was meant by “vacant land.”</p> <p>3. Boundary—Survey—Calls—Intention of Surveyor—Actual Survey.</p> <p>A surveyor marked and called for a beginning corner of a location, identified by a stone mound, and also called for the corner of a previous survey at such beginning point, such corner of the previous survey being in fact 401 varas south of the stone mound. The intervening strip was located by a homestead claimant as vacant public domain. In a suit for this strip by the owner of such survey against the homestead claimant,—Held:</p> <p>(1) That the jury were properly instructed that if the corner actually established was 401 varas north of the corner of the previous survey called for, the defendant— the homestead claimant—could recover.</p> <p>(3) Testimony by the surveyor who made the location that, when he made out his field notes, he disregarded the corner so made and intended to call for the beginning at the true corner of the previous survey was immaterial. It was not a question of what he intended but of what he did.</p> <p>(3) The stone mound actually made by the surveyor in locating the survey, and not the corner of the previous survey called for, controlled and determined the beginning point and south line of the survey.</p> <p>(4) The intervening strip was vacant, and was lawfully acquired by the homestead settler.</p> <p>(5) It seems that, under an instruction to find for the plaintiff if the surveyor intended to begin his call to locate the survey at the corner of the previous survey, a verdict for defendant was a finding that he did not intend to locate it contrary to his actual survey.</p> <p>(6) The court, having charged that the burden was on defendant to prove that the land was vacant at the time of his file, properly refused a requested instruction, that the burden was on defendant to show that the surveyor was mistaken in his call for the corner of the previous survey.</p> <p>(7) A verdict for defendant was supported by the testimony and was correct.</p> <p>4. Disclaimer.</p> <p>Where, in trespass to try title, defendant disclaimed as to part of the land and claimed and had verdict for part, it was not necessary that the jury should find for plaintiff the land disclaimed, though directed by the charge to do so, and plaintiff could not complain of such omission in the verdict where judgment was rendered in his favor for the part disclaimed.</p> <p>5. Purchaser Pendente Lite—Judgment.</p> <p>Where defendant sold the land in controversy the purchasers were bound by the judgment and needed not to be made parties and, defendant recovering, the judgment was properly rendered in his favor.</p>

The suit was in form of trespass to try title, and was brought by appellee, Dillingham, as receiver of the Houston & Texas Central Railway, to recover the land in controversy. The suit resolved itself into one of boundary, both parties holding patents which conflicted, and the right to recover depending on the validity of plaintiff’s location, which was prior in time, but was claimed to have been void because made within the limits of the Texas & Pacific reservation.

<p>1. Party W all—Contract—Lien.</p> <p>A naked promise to share the cost and expense of a party wall is ordinarily a personal covenant which does not run with the land; but this rule does not prohibit adjoining owners from entering into a contract in writing by which a liability may be fixed for the cost and expense of the walls used by both proprietors and creating by contract a valid lien on the property to secure the amount so agreed on.</p> <p>2. Party W all—Contract—Lien—Homestead—Covenants.</p> <p>Adjoining proprietors, F. and C., owners of lot five with a two story building, and H., owner of lot four with one story building, agreed on and recorded a contract with reference to the party wall erected by F. and C.,that if H. built a second story he should pay F. and C. or assigns half the cost of the wall and become half owner thereof, and till then should use wall for his first story only, not interfering with F. and C’s second story windows, said money to be and remain a lien on H’s lot subject to above contingencies. M. acquired lot four and sold it with general warranty to A., who made it his business homestead and nineteen years after the contract erected thereon a second story, closing the second story windows of lot five. On appeal by A. from a judgment foreclosing against him at suit of the owner of lot five, F. and C’s vendee, the lien so reserved, and denying him recovery against M. on hia warranty,—Held:</p> <p>(1) The contract in this instance created a valid lien upon the property and the purchasers from H. acquired the property charged with this lien whenever they made use of the partition wall in the manner called for in the contract.</p> <p>(2) The contract, for which in full see opinion, disclosed a consideration upon its face.</p> <p>(3) Appellant’s claim that the property in controversy was his homestead and therefore exempt from the operation of the lien was without merit. When he acquired the property and before it became his homestead it was charged with this lien, and the homestead claim was subordinate thereto.</p> <p>(4) The trial court correctly held that M. was not liable to A. for a breach of his warranty. A. had alone elected to use and enjoy the partition wall and the liability and charge on the land resulted from his act.</p> <p>(5) The judgment foreclosing the lien and denying recovery against the warrantor was correct.</p>

<p>Charge—Conflicting Instructions.</p> <p>In a suit oí trespass to try title involving conflicting boundaries and an issue, supported by evidence, of agreement by plaintiff to the boundary claimed by defendants, an instruction to find for plaintiff, his title being oldest, if his field notes embraced the land in controversy, unless defendant’s plea of limitation was sustained, was erroneous, being a direction to disregard the issue as to an agreed line. Such error was not cured by giving in another paragraph an instruction to find for defendant if the agreed line was established by testimony, the charges being contradictory.</p>

<p>1. Survey—Adopting Former Survey—Following Footsteps.</p> <p>If the surveyor locating land does not run the lines on the ground, but adopts lines run by a former surveyor, the location is determined by following the lines actually run,—the “footsteps” of such former surveyor. See case where it was error to refuse charge to this effect.</p> <p>2.. Practice—Judge in Jury Room.</p> <p>It is reversible error for the trial judge to go alone into the jury room, though at their request, and confer with the jury about the case, though nothing was said to influence them in passing upon the merits of the case.</p>

<p>1. Deed of Trust—Fraud—Acceptance by Hon-Fraudulent Creditor.</p> <p>If the claim of but one accepting creditor secured in a deed of trust be genuine and he is free from fraudulent conduct the mortgage is valid, although, as to other creditors, it may be fraudulent and inoperative.</p> <p>8. Trial of Right of Property—Sale by Trustee—Creditors’ "Claim on. Excess.</p> <p>Creditors who have levied attachment on goods transferred by debtor to a trustee for other creditors and replevied by trustee under claimants’ bond, cannot (in a statutory action for trial of the right of property) by payment of the valid secured debts, have the proceeds of such property, sold by the trustee, appropriated to payment of their claims.</p> <p>3. Same</p> <p>The existence of a valid accepting creditor established the right of the trustee to possession, and the liability of the sureties, as fixed by the terms of the bond, was dependent on his failure to establish his right to possession of the property.</p> <p>4. Same—Attachment—Garnishment.</p> <p>The proceeding was not an action for unlawful misappropriation or conversion of mortgaged property; and the levy of the attachment could not be given the effect of service of a writ of garnishment, and entitle the attaching creditors to recover the difference between the value of the goods and the valid debts secured by the deed of trust.</p> <p>5. Deed of Trust—Fraud—Attaching Creditors—Trial of Right of Property—Fact Case.</p> <p>M. made deed of trust to A. to secure six creditors,—S. V. S. and C. E. S., whose claims were found to be fictitious, and H., A. (the trustee), J. T. S. and M. E. S., whose claims were adjudged genuine and who had no knowledge that other debts were fictitious. H. did not accept before attachment was levied, if at all. A. accepted and took possession before levy, and did not testify as to the genuineness of his claim; but M., the grantor, and another testified that it was genuine. S. V. S., C. E. S., J. T. S. and M. E. S. were minors, and the acceptance by the two last named was by an agent who had knowledge of and participated in the grantor’s fraudulent intent. L. Bros., creditors of M., levied attachment against M. on the goods in the hands of A., and W. & Co. and S. P. & Co., also creditors, levied attachments on the property in the hands of the sheriff, on the next day, subject to attachment of L. Bros. A. made claimant’s bond under the statute, and afterwards sold the goods. On trial of right of property between the attaching creditors and claimant and his sureties, Held:</p> <p>(1) The finding of the trial court that A’s claim was genuine, being based on uncontradicted evidence, would not be disturbed, though other secured claims were found to be fraudulent and A. was not called to testify.</p> <p>(2) A. having shown a right to possession of the goods when levied on, a judgment in favor of him and his sureties was correct.</p>

<p>1. Libel—Colloquium and Innuendo—Pleading Held Sufficient.</p> <p>See petition in suit for libel in publishing a pamphlet of advisory insurance rates describing certain premises in a town where the sale of intoxicating liquors was prohibited as follows, “Owner, Alvin Schulze, Occupancy, Blind Tiger,” alleged by colloquium as referring to plaintiff and by innueudo as charging him with keeping an establishment for unlawful sale of liquors, held sufficient to authorize the admission of evidence to show such reference and meaning.</p> <p>2. Same—Evidence Admissible—Understanding of Witness.</p> <p>Testimony of persons acquainted with the circumstances, that from reading this language they applied it to plaintiff Schulze as the party charged with such unlawful acts should have been admitted.</p> <p>3. Same—Understanding of Others—Notoriety.</p> <p>A witness could not state the understanding of others as to who or what was meant, but could state that the matter,—that plaintiff was so charged,—became notorious in the community.</p> <p>4. Same—Meaning of “Blind Tiger.”</p> <p>What was meant by keeping a “Blind Tiger” was also subject of proof by persons who could testify as to its meaning.</p> <p>5. Same—Injury to Reputation.</p> <p>Testimony showing injury to plaintiff’s character and standing in the community by such publication was also admissible.</p>

<p>1. Telegraph Company—Mental Suffering—Proximate Cause—Intervening Voluntary Act.</p> <p>Plaintiff, at Holland, Texas, summoned by telegram to the death bed of his mother in Arkansas, wired his brother at Waco, an intervening point, to accompany him. The telegrams not being delivered owing to the negligence of the telegraph company, and no answer being received, through concern about his brother, who was in bad health, plaintiff stopped over at Waco, and thereby failed to reach his mother till after her death. Held, that the trial court properly ruled that he could not recover for mental suffering for failure to reach his mother before her death.</p> <p>2. Same—Remote Damages.</p> <p>The trial court should have also ruled that plaintiff could not recover for mental suffering arising from the want of his brother’s companionship on the journey, though the latter would have gone with him had the message been delivered. Such damages were too remote.</p> <p>3. Same—Nominal Damages.</p> <p>For the breach of its contract defendant was liable in such case only for nominal damages, and a recovery of five hundred dollars was, on appeal, reversed and judgment rendered in plaintiff’s favor for one dollar with costs of appeal against plaintiff.</p>

<p>1. Libel—Words Actionable Per Se—Officer Appropriating Public Funds.</p> <p>The publication in a local newspaper, concerning a candidate for re-election as school trustee, of an appeal to vote for the opposing candidate because: “Then you can be assured that in the future your portion of the county available school fund will not again melt away $37.15, on so short a distance as from the hands of the father-in-law to the hands of the son-in-law, and be compelled to content yourself with the thin excuse that it was but a small mistake,” the application and meaning being properly explained by averment, implied a charge of embezzlement or misapplication, by an officer, of public school funds, and was actionable without allegation or proof of special damages.</p> <p>2. Same.</p> <p>Such charge is so actionable because it tended to charge the plaintiff with a crime under our laws,—misapplication of public funds.</p> <p>8. Same.</p> <p>It is also actionable because imputing want of integrity to an official.</p> <p>4. Same.</p> <p>A libel, to be actionable per se, need not in express terms charge a crime. If it implies that an offense was committed and could be so understood by those reading the publication, it is per se libellous. (Bela v. Fuller, 84 Texas, 453; Zeliff v. Jennings, 61 Texas, 466.)</p> <p>5. Same—Damages.</p> <p>General damages, including wounded feelings and mental suffering, are recoverable in such case without allegation or proof of special damages; and the law will, without proof, imply that some damages resulted. (Zeliff v. Jennings, 61 Texas, 466; Rea v. Harrington, 58 Vt., 188; Belo v. Fuller, 84 Texas, 453.)</p> <p>6. Libel—Pleading—Evidence Showing Who Was Meant—General Demurrer.</p> <p>Under an allegation that the publication referred to him, not specially demurred to, plaintiff could prove that he was not the candidate commended to the voters by the publication without specially alleging it.</p> <p>7. Privileged Communication—Candidate for Office.</p> <p>When a public officer, though a candidate for election, is falsely charged with a crime, or the defamatory words falsely impute a dereliction of duty and defame his character and standing as an official, the publication extends beyond the domain of privileged communication.</p> <p>8. Libel—Offset—Malicious Prosecution.</p> <p>A counter-claim arising from an alleged malicious prosecution of an action for criminal libel, though the prosecution was at an end, cannot be offset against a civil suit for libel.</p> <p>9. Same</p> <p>A claim for damages for malicious prosecution of a civil suit will not lie unless the prosecution complained of has ended favorably to the party seeking the relief.</p> <p>10. Evidence—Experts—Examination of Accounts.</p> <p>In action for libel of a public officer, custodian of public funds, and with reference to their keeping, evidence of experts who have examined such officer’s books, with reference to the condition of the funds in his official keeping, was admissible in his behalf.</p> <p>11. Libel—Evidence—Effect on Plaintiff.</p> <p>One who knows that certain conduct of the plaintiff was traceable to the publication of the libel, may testify to that fact.</p> <p>12. Libel—Absence of Malice—Actual Damages.</p> <p>If defamatory words charge an actionable crime and there be an entire absence of malice in fact, actual damages may nevertheless be recovered. (Bela v. Fuller, 84 Texas, 453.)</p> <p>.13. Exemplary Damages—Verdict for Actual Only.</p> <p>The issue of malice as involved in the claim for exemplary damages in an action for libel is eliminated where the verdict awards only actual damages.</p> <p>14. Libel—Charge.</p> <p>See applicant’s brief for charges in action for libel held to present no error.</p> <p>15. Libel—Fact Case.</p> <p>Verdict and judgment for plaintiff in action for libel held supported by the facts.</p> <p>16. Verdict—Correction of.</p> <p>It is not error for the court, with the assent of the jury, to correct the form of an informal verdict on its rendition.</p> <p>17. Court and Jury—Urging Agreement.</p> <p>It was not error for the court to remark to the jury that he thought they ought to agree as they were so near it.</p>

<p>Res Judicata—Homestead Exemption not Pleaded in Time.</p> <p>L. purchased K’s city homestead, subject to the (claimed) lien of a street improvement certificate, and the holder of the certificate brought suit against L. and K. to foreclose the lien, K. making no defense, and L. failing to plead the homestead character of the property. Held, that L. was not entitled to have the execution of the judgment of foreclosure enjoined on the ground that it was void because of the homestead character of the property, that matter being res judicata because of L’s failure to plead it in the foreclosure suit.</p>

<p>1. Railway Company—Liability—Act of Employe not in Line of Duty.</p> <p>The action of a locomotive fireman in jumping from a moving engine because of apprehension of danger from derailment, thereby striking against and injuring a third party, is not an act so in the line of his duty and employment that the railway company will on that ground alone be liable for the resultant injury to such other person.</p> <p>2. Same—Negligence—Proximate Cause of Injury.</p> <p>Where, through the negligence of a railway company in not providing its cars with brakes, the engineer of a train is unable to stop it before reaching a point of danger, after being duly signaled, and the fireman, under a reasonable apprehension of danger to his life, leaps from the engine and strikes against a track repairer standing by, thereby crippling the repairer, the company will be liable for such injury. Associate Justice Neill dissenting.</p> <p>3. Proximate Cause—Definition.</p> <p>It is not absolutely essential that the proximate cause should be the one nearest in point of time to the injury, since there may be intervening causes that are mere incidents to the original cause, which were put in motion by it, and which are but a continuance of it, and are traceable back to the force that set them in motion. If the injury.is produced by the wrongful act during the continuance of its causation, it will be regarded as the proximate cause.</p>

<p>1. Bailway Company—Action for Death—Negligence—Evidence Warranting Verdict.</p> <p>Where, in an action against a railway company, there is evidence showing that the deceased, while npon a public crossing, was struck by an engine running 15 miles an hour, in violation of a city ordinance, and after the engineer had seen deceased on the track in time to have stopped the engine, a verdict for plaintiffs was warranted, despite the contributing negligence of deceased in going upon the track.</p> <p>2. Same—Charge of Court—Negligence and Carelessness.</p> <p>A charge that there could be no recovery if the deceased “by his own ordinary negligence and carelessness, contributed to his own 'injury,” is not subject to the objection that it requires the jury to believe that the deceased was guilty of ordinary negligence, and also carelessness in addition thereto, before they could find for the defendant railway company.</p> <p>3. Action for Death—Bight of Adult to Becover for Death of Parent.</p> <p>An adult son is not entitled to recover for the negligent death of the father where, at the time of such death, he was receiving no pecuniary aid or support from the father, and had no expectation of receiving such aid.</p>

<p>Appeal from the County Court of Harris. Tried below before Hon. John G. Tod.</p>

<p>1. Verdict—Immaterial Apportionment of Damages.</p> <p>Where, in an action by the husband and wife for damages for personal injury to the wife, the verdict apportioned the damages found, as between the plaintiffs, the error was harmless as to the defendant.</p> <p>3. Charge of Court—Omission of Material Issue.</p> <p>It is reversible error for the court to fail to submit a material issue pleaded by the defendant and supported by evidence.</p> <p>3. Charge Contradictory as to Ordinary Care.</p> <p>An instruction that, “Although you [the jury] may believe from the evidence that defendant’s train did not stop at C. station a sufficient length of time to permit plaintiffs to board said car with safety, as alleged in their petition, yet if you should further believe from the evidence that an ordinarily prudent person under the same circumstances in the exercise of ordinary care could have boarded said train with safety, your verdict must be for the defendant,” presents an evident contradiction</p> <p>4. Negligence a Question of Fact—Boarding Train.</p> <p>It is not negligence per se for a person to assist another to get on a moving train, nor is it such for a passenger to get on or off a train at a depot, after it has started. It is a question of ordinary care under the circumstances.</p>

<p>Injunction to Restrain Judgment—Remedy at Law.</p> <p>The refusal of a justice of the peace to approve a proper appeal bond tendered by the defendant in a case tried before him does not afford ground for an injunction to restrain the enforcement of his judgment in such case, where no further effort was made to effect an appeal by application for certiorari or for process to compel the approval of the appeal bond.</p>