Volume 15 — Texas Civil Appeals Reports

<p>1. Municipal Corporation—Street Railways—Sewers—Injunction.</p> <p>The franchise of a street railway corporation is subordinate to the charter right of the city to control its streets and construct sewers therein, and an injunction will not be granted in behalf of such corporation to restrain the city from laying sewer pipes along the center of its streets where they will interfere with street railway tracks already there.</p> <p>2. Same—Constitutional Guaranty Against Taking Property for Public Use not Applicable.</p> <p>The constitutional guaranty against taking property for public use is not applies ble in such case, and the city can not be held liable for the damages necessarily occasioned to the street railway company by the laying of sewer pipes.</p> <p>3. Same—Action of City Council Conclusive.</p> <p>Where it is not alleged or shown that the city council acted arbitrarily or capriciously in directing the sewer pipes to be laid in the centres of the streets (where they would interfere most with the street car tracks) the courts will not undertake to revise or control the honestly exercised discretion of the council, although the proof may tend strongly to show that there was no necessity for putting the sewer pipes in the center of the streets.</p>

<p>Appeal from the County Court of Nacogdoches. Tried below before Hon. J. M. L. Pirtle.</p>

<p>Appeal from the County Court of Galveston. Tried below before Hon. Wm. B. Lockhart.</p>

<p>Negligence—Defective Charge of Court.</p> <p>In an action by a passenger for personal injury, the court charged that if plaintiff was hurt by falling over an obstruction on a platform where passengers were likely to go, and the platform was not sufficiently lighted, “then you will determine from the evidence whether the failure to have said platform sufficiently lighted was negligence on the part of the defendant, and whether this was the proximate cause of the injury to plaintiff, and if he sustained any injury, you will find for plaintiff,” etc. Held, error, as failing to make the injury dependent on the other conditions of fact and the negligence of the defendant.</p>

<p>1. Damages for Personal Injury—Services of Wife.</p> <p>Where the injuries of the husband, inflicted through the negligence of another, render necessary extra services to him on the wife’s part, the fact that it is his right to receive such services, and the wife’s duty to render them, will not preclude him from recovering compensation therefor as an element of his damages.</p> <p>2. Railway Company—Negligence—Shipper’s Agent not Trespasser.</p> <p>Where a car under the control of the local agent was set on a side track and loaded for a shipper, and an employe of the shipper was sent by him into the car to count and check its contents, within the knowledge of the agent, such employe was not a trespasser, and for injury caused to him through the negligence of the railway company’s servants, and while he was there in the exercise of proper care, the company is liable.</p>

<p>1. Negligence—Railway Company—Charge on Weight of Evidence.</p> <p>In an action against a railway company for negligent personal injury to an employe, the court charged the jury that certain testimony, to the effect that plaintiff, before occupying a position of danger near the track, asked one S. to guard against trains being moved upon him, which S. promised should be done—might be considered in determining whether plaintiff had exercised ordinary care, or was contributorily negligent, but not in determining the negligence of the defendant company, as it was not shown that S. had any authority to bind the defendant by such promise. Held, that only the latter (negative) clause should have been given, the part as to contributory negligence being on the weight of evidence.</p> <p>3. Same—Peril of Injured Party’s Situation Must be Seen.</p> <p>In order to render the railway company liable for injury done by its engines to one on or near the track, its employes operating the engine must have both seen the person injured and also the peril of his situation in time to have avoided the injury.</p>

<p>Administrator’s Sale—Confirmation—Presumption.</p> <p>The plaintiff offered an administrator’s deed which recited a sale and an order of confirmation of particular dates, and produced only an order of confirmation of a much later date, confirming a resale of lands not identified otherwise than by a deed produced by defendant. No reason was given for the nonproduction of the order recited in the plaintiff’s deed. Held, that it will not be presumed that the order produced was in confirmation of the sale evidenced by plaintiff’s deed.</p>

<p>1. Pleading—-Action on Promissory Note—Sufficient Petition.</p> <p>Plaintiff’s petition alleged that the defendant K., for a valuable consideration, executed to plaintiff the notes sued on, and that defendant H. at the same time indorsed them; that they were long since due and defendants had failed to pay the same; and that by reason of the execution, indorsement and delivery thereof, the defendants became liable and promised to pay to plaintiff the said several sums of money. Held, that the petition sufficiently alleged the liability of defendants to pay the notes.</p> <p>2. Evidence—Variance—Notes Attached to Petition.</p> <p>When the notes upon which an action is founded are attached to the plaintiff’s petition, the fact that, when offered in evidence, they do not correspond with the description in the petition, will not constitute a variance.</p> <p>3. Same—Agreement in Writing—Oral Testimony.</p> <p>Where it is admitted that an agreement is in writing, and in the possession of the witness, and no reason is given for its nonproduction, it is not error for the court to refuse to permit oral evidence as to its contents.</p> <p>4. Promissory Notes—Indorser—Protest.</p> <p>One who endorses notes at the time of their execution and delivery is not entitled to have them protested.</p>

<p>1. Adverse Possession.—Possession of Part of Junior Grant.</p> <p>Where there is a partial conflict between a senior and junior grant of lands, unless the actual possession of the junior grantee extends to that part of his grant which lies within the boundaries of the senior grant, limitation will not run in his favor as to such part.</p> <p>2. Same—Cutting Timber at Intervals.</p> <p>The cutting and removal of timber from land will not constitute adverse possession thereof, when it is not continued for the full statutory period or occurs only at long intervals during the period.</p>

<p>Bid at Receiver’s Sale—Right to Withdraw—Mistake—Negligence.</p> <p>An order of court directed the sale by the receiver of a corporation of property in his hands, and provided that, after the payment of 85000 in cash on such sale, the remainder of the purchase price might be paid in approved claims against the corporation, and under such order a creditor bid in the real estate, relying upon the conditions of sale as stated m the order. The receiver had declared in open court that $5000 in cash would discharge all claims which had precedence of the bidder’s. The master’s report was subsequently filed, showing that an amount considerably larger than $5000 would be required to discharge the debts which took precedence of the bidder’s. On the day following the filing of the report, the bidder applied for a confirmation of the sale, but on learning that the larger amount in cash would be required, on the same day moved to withdraw its application for confirmation. Held, that the evidence was insufficient to convict the bidder of negligence in not knowing that the larger amount would be required, before filing its application for confirmation.</p>

<p>1. Telegraph. Company—Mistake in Transmitting Message—Negligence.</p> <p>Where the language of a telegraph message is altered in the course of transmission, the fact of error is prima facie evidence of negligence on the part of the telegraph company.</p> <p>2. Same—Same—Negligence of Sender.</p> <p>Where a telegraph company makes an error in the transmission of a message, but the addressee immediately sends a reply which informs the sender of the error that has occurred in time for it to be corrected, but the sender does not correct the error for the reason that he does not notice it, on account of a failure to read the reply carefully, he cannot recover damages occasioned thereby.</p> <p>3. Same—Transaction Against Public Policy.</p> <p>The courts will not sustain an action against a telegraph company, where the alleged damages occurred in the transmission of a message relative to a deal in cotton futures, which is against public policy.</p>

<p>1. Deeds—Certainty of Description—Lapse of Time—Possession.</p> <p>Where land was described in certain deeds by lot numbers, according to a plat which was not in evidence or testified to so as to identify the lots, further than that they were part of the tract described in the deeds as covered by the plat, and where the grantees took possession of parts of the tract under the deeds, and have since held such possession for 45 years, 20 years of which was during the life of the grantor, who had knowledge thereof, it will be presumed that the parts so taken possession of was the land described, and hence the deeds are not void for uncertainty of description.</p> <p>2. Unrecorded Deed—Notice of Claim—Innocent Purchaser.</p> <p>Where commissioners appointed to partition the land of F., deceased, sold only the interest of the estate therein, one subsequently buying the same title with knowledge that another is claiming the property, but without actual knowledge of Ms unrecorded deed, is not an innocent purchaser.</p> <p>3. Evidence—Deeds Containing Latent Ambiguity.</p> <p>Deeds unambiguous on their face, but in which a latent ambiguity of description was developed on the trial, were properly admitted in evidence, since the other evidence might be sufficient to remove the ambiguity; and were properly retained in evidence, when the other evidence was so sufficient.</p> <p>4. Same—Recitals of Deeds for Identification.</p> <p>In trespass to try title, recitals of general description contained in defendant’s deeds, though not binding upon plaintiffs, are yet admissible to aid in the identification of the land conveyed.</p>

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

<p>1 Telegraph. Company—Failure to Deliver Message—Sufficient Petition.</p> <p>A petition in an action for damages for failure to deliver a telegram, alleging that, plaintiff, who was in jail, had arranged with bis wife, upon her receiving a message from him, to have his father indemnify sureties on his bail bond, and that his father was ready, willing and able to do so, and the sureties were willing to sign his. bond upon being indemnified, was sufficient to sustain the action.</p> <p>¡3. Same—Contents of Message as Notice to Company.</p> <p>A telegram reading: “Come at once. Bring father to secure my bond,”—shows by its terms its importance and the necessity for prompt delivery; and shows enough to put the telegraph company to which it was delivered upon inquiry as to whether-the sender was then in jail.</p> <p>3. Same—Failure to Deliver Message—Damages Not Excessive.</p> <p>A verdict for $500 damages against a telegraph company for failure to deliver a message is not excessive, where it appears that on account of the failure to deliver it plaintiff was detained in a loathsome, filthy prison five days longer than he would have been if it had been promptly delivered.</p>

<p>1. Verdict of Jury—Erroneous Designation of Damages Awarded.</p> <p>A finding of the jury of damages for “temporary injury” will be referred to “physical pain,” where the charge of the court submitted that item of damage and the evidence was confined to it.</p> <p>2. Physical Pain of Infant—Damages Recoverable by Next Eriend.</p> <p>An infant suing by next friend for personal injuries may recover damages for physical suffering, as his parents are not entitled to that fund.</p>

<p>Appeal from Motley. Tried below before Hon. W. R. McGill.</p>

<p>1. Railway Company—Merchandise Destroyed in Transit—Measure of Damages—Charge of Court.</p> <p>In an action against a railway company to recover the value of merchandise destroyed by fire in transit, the court erred in charging the jury that the measure of damages was the highest market value of said goods at their destination, less freight charges, since such instruction permitted a recovery at the retail price.</p> <p>3. Same.</p> <p>The measure of damages for goods destroyed in transit is the value of the goods in the exact condition they were in at the time, with legal interest.</p> <p>3. Evidence—Merchandise Destroyed in Transit—Value at Retail and at Public Auction.</p> <p>In an action for the destruction of merchandise in transit, evidence of what might be realized from a sale of the goods at retail or of the profit to be thus derived is inadmissible; as also is evidence as to what the goods would have sold for in bulk at public auction.</p> <p>4. Interstate Shipment—Contract Against liability of Carrier.</p> <p>A shipment of goods from St. Louis, Mo., to Colorado, Texas, is an interstate shipment, and the railway company may contract against liability for loss by fire not caused by its own negligence.</p> <p>5. Railway Company—Goods Destroyed in Transit—Burden of Proof.</p> <p>Where goods are destroyed by fire while in the custody of a railway company, the burden is upon it to show that the fire was not due to its negligence.</p> <p>6. Same—Fire in Depot—Custom of Other Railroads.</p> <p>Where goods were destroyed by fire while in a railway company’s depot, evidence as to the custom of other railroad companies to keep oil and fill and light their lamps in the freight rooms of their depot buildings was properly excluded. Following Railway v. Duncan, 31 S. W. Rep., 562.</p>

<p>Master and Servant—Railway—Riding on Freight Train—Expulsion by Brakeman.</p> <p>Without evidence to show authority of a brakeman to expel from a freight train one riding thereon contrary to rules, a railway company is not liable for his negligence and an instruction to find for defendant was proper. (Following Railway v. Black, 87 Texas, 161; Railway v. Anderson, 82 Texas, 516; Railway v. Cooper, 88 Texas, 607; Railway v. Armstrong, 4 Texas Civ. App., 154.)</p>

<p>Judgment not Final—Appeal.</p> <p>A judgment which fails to dispose of the rights of all of the parties to the suit is not final and no appeal lies therefrom.</p>

<p>1. Admissions—Amount of Damage.</p> <p>It is reversible error, where plaintiff has recovered from a carrier $478 for loss on a shipment of poultry through delay, fall in market, etc., to exclude evidence of his statement, on his return from the trip, that he had lost about $75 on his venture.</p> <p>3. Carrier—Limiting Liability—Consideration.</p> <p>A finding that a contract, professing to be in consideration of a reduced rate, limiting liability and releasing damages for delay in furnishing car, etc., signed by shipper when train was about to start and without knowing its contents, was without consideration, sustained.</p>

Tried below before Hon. L. W. Goodrich. The suit was brought by R. H. Williamson and Bettie, his wife, and Geo. B. Gurley and Edna, his wife, against Levinski, for injunction.

<p>Appeal from the County Court of Greer County. Tried below before Hon. W. D. Ballard.</p>

<p>1. Garnishment—Corporation—Service on Agent—Default.</p> <p>Writ of garnishment against a New York corporation was served on its alleged local agent who filed an affidavit denying his agency,—the garnishee not answering. Judgment against the garnishee by default showed that the court after hearing the motion and argument thereon struck out the affidavit and found the garnishee duly served by delivering copy of the writ to its local agent. Held, that the court was authorized, of its own motion, to ascertain whether or not the person served was the garnishee’s agent. But, in the absence of a statement of facts or showing in the record that the court heard no other testimony than the affidavit in ruling thereon, the judgment should be affirmed.</p> <p>2. Costs.</p> <p>Of certiorari in appellate court. How taxed.</p>

<p>1. Carrier of Passengers—Degree of Care.</p> <p>The degree of care required of a carrier with reference to the movement of the train while a passenger is alighting from the cars at the end of the journey is such as very cautious, prudent and competent persons usually exercise under the same or similar circumstances.</p> <p>3. Carrier of Passengers—Suggestion to Alight.</p> <p>Calling the name of the station by defendant’s employes was proper notice to passengers to alight from the train when it stopped at the station, and was sufficient to justify a charge on the care to be exercised by the passenger if attempting to alight on “suggestion of defendant’s employes.”</p> <p>3. Burden of Proof—When Charge Necessary.</p> <p>Where the charge given instructed the jury to decide the issues on the preponderance of testimony it was proper to refuse defendant’s request to charge that the burden of proof was on plaintiff. Such charge is not always necessary when the question is as to the weight of evidence.</p> <p>4. Injury to Passenger—Leaving Train—Charge Approved.</p> <p>See instructions in case of injury to a passenger by the jerking of the train as she was in the act of alighting, held to fairly submit the issues.</p>

<p>1. Citation—Insufficient Service—Void Judgment by Default.</p> <p>Where citation to defendant, issued to S. County, Texas, was served upon him in another State, and without any accompanying copy of plaintiff’s petition, a judgment by default rendered thereon, such facts appearing from the record, was void.</p> <p>2. Judgment Against Surety Void, When.</p> <p>In an action against a principal and surety, where the judgment against the principal is void for want of legal service, no judgment against the surety is authorized.</p>

<p>1. Contributory Negligence—Pleading—Demurrer.</p> <p>Where, in an action for damages for negligent injury, the legal effect of the facts stated in plaintiff’s petition is such as to establish prima facie negligence on his own part, as matter of law, he must plead such other facts as will rebut such legal presumption, or the petition will be held insufficient because of the contributory negligence so shown.</p> <p>2. Negligence—Railways—Failure to Give Statutory Signals at Public Crossing.</p> <p>The statute requiring railway trains to give signals when approaching a public crossing is intended for persons who may be about to go upon the crossing in the exercise of their rights, and can not be invoked by a trespasser on the track who is injured by a train near the crossing.</p> <p>3. Same—Fact Case—Sleeping on Track.</p> <p>One who, being “footsore, weary, sick, weak and exhausted,” goes upon a railway track (a trestle bridge), and there lies down and is “inadvertently overcome by sleep,” and killed by a passing train, is guilty of contributory negligence such as will preclude a recovery for his death.</p>

<p>Error from Leon. Tried below before Hon. J. M. Smithers.</p>

The record shows the following evidence in reference to the registry of the chattel mortgage: “G. W. Gayle testified that he is and was in December, 1891, clerk of the County Court of Brazoria County, Texas; keeps chattel mortgages filed for record arranged alphabetically, so as to be easily found; keeps a register also.

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

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

<p>1. Parties—Right of Administrator to Sue.</p> <p>The administrator, where there are unpaid creditors of the estate, is the proper party to sue for the recovery of land held adversely to the estate under a deed by the decedent void for want of delivery.</p> <p>2. Possession by Executor Not Adverse, When.</p> <p>The action of an executor in placing upon the inventory certain land owned by the testator warrants a finding that his subsequent possession of the land was not adverse to the estate, although he was one of the grantees in a deed of it by the testator.</p> <p>8. Same—Evidence Held Sufficient.</p> <p>Where the executor received the possession of land of his testator from the temporary administrator, and after that there was no change in the attitude towards the estate of the executor and the other minor defendants, who lived on the land with him, such facts warranted a finding that their possession was not adverse.</p> <p>4. Limitation of Four Years—Trespass to Try Title and to Cancel Deed.</p> <p>An action of trespass to try title and to cancel a void deed under which defendants claim the land is not subject to the four years’ limitation. There is no legal necessity for the cancellation of a void deed.</p>

<p>Bond of Contractor for Building—Bight of Third Party to Sue Thereon.</p> <p>A contractor’s bond stipulating that it should enure to the benefit of the owners, and of any other person advancing at their request money used in the construction of the building, can not be sued on by a material man who, without request from the owners, furnished material for the building to the contractors.</p>

<p>Partnership—Preference Assignment by, Securing Individual Debts of Member.</p> <p>The members of an insolvent partnership, in the absence of fraud, have the right, as against firm creditors, to settle their partnership between themselves by agreement, and to secure the individual debts of a partner by an assignment with preference, provided the individual debts so secured do not exceed the interest of such partner in the assets of the firm.</p>

<p>Appeal from Grayson. Tried below before Hon. Don A. Bliss.</p>

<p>1. Warranty in Sale of Chattel—Patent Defects.</p> <p>A special warranty in the sale of an animal will cover obvious as well as latent defects, where it does not appear that the purchaser relied upon his own judgment, and especially where the defect was such that its full scope and effect was not then determinable.</p> <p>2. Same—Ignorance of Vendor Immaterial.</p> <p>It is not necessary for the vendor of an animal to know that it is unsound in order to render him liable on a warranty of soundness.</p>

<p>1. Railway Company—Handcar Left at Public Crossing—Test of Negligence.</p> <p>Where plaintiff’s horse became frightened at a handcar, with some tools and clothes thereon, left on the railway track near a public crossing, the railway company was not liable for the injuries resulting from such fright, unless the car, with the clothes and tools on it, was an object such as would ordinarily frighten an ordinarily gentle horse, and the refusal of a charge presenting such issue was error.</p> <p>2. Public Crossing—User Sufficient.</p> <p>Where a railway company permits the public generally to use a part of its track as a public crossing, without protest, it must use such care there to avoid injuring persons as the particular circumstances require, although such crossing be not a public road either by order of the Commissioners Court or by prescription.</p>

<p>Release of Mortgage Lien—Right of Attaching Creditor.</p> <p>Where the mortgagee of a crop of cotton agreed with the debtor to release him upon a part of the cotton for the debtor’s benefit, he coiild not afterwards assert the lien upon such released part against an attaching creditor of the common debtor, there being sufficient cotton still remaining to satisfy the mortgage debt.</p>

<p>1. Railway Construction—Damages—Proof Must Accord With. Pleading.</p> <p>Where plaintiff sued for damages for the permanent depreciation in value of premises resulting from the construction of a railroad near by them, he was not entitled to recover damages caused by the occasional parking of cars in front of such premises.</p> <p>2. Same—Release of Damages—Other Injury.</p> <p>A release by the owner of the premises of all claims for damages thereto resulting from the construction of a railway in the street in front of them, will not debar him from recovering damages occasioned by a construction not necessary or proper for the operation of the railway as contemplated by the release.</p>

<p>Jurisdiction of Probate Court—Creditor’s Lien Against Interest of Heir.</p> <p>A creditor of M. brought suit in the County Probate Court, seeking to subject to-the satisfaction of his debt and judgment lien the interest of M., as heir, in lands of an estate then being administered in that court, and which interest M. had conveyed to his daughters. Held, that the Probate Court had no jurisdiction of such controversy and the District Court acquired none by appeal.</p>

<p>1. Railway Company—Contract of Shipment—Evidence.</p> <p>In an action against a railway company for delay in the transportation of goods, paroi evidence is inadmissible to show the contract entered into between the shipper and the contracting carrier, the bill of lading being the best evidence.</p> <p>2. Same.</p> <p>Evidence of a paroi contract of shipment made with a connecting carrier is inadmissible in an action against the delivering carrier, where the evidence fails to establish that the former was the agent of the'latter in receiving the goods.</p> <p>3. Railway Company—Damages Due to Delay in Transportation—Charge of Court.</p> <p>In action against a railway company for damages from delay in the transportation of fruit trees, the court erred in refusing to instruct the jury that if the trees were tendered to plaintiff while yet uninjured the defendant would not be liable for injuries subsequently resulting.</p> <p>4. Same.</p> <p>In an action against a railway company for damages from delay in the transportation of fruit trees, the court erred in refusing to instruct the jury that, if'the trees were tendered to plaintiff while Only a portion of them were damaged, he would be entitled to recover only for the damage existing at that time.</p> <p>5. Same—Same—Connecting Carrier.</p> <p>In an action against a railway company for damages from delay in the transportation of fruit trees, where the evidence failed to show that the connecting carrier receiving the trees was the agent of defendant, the court erred in instructing the jury that they would find for plaintiff if the “defendant received said trees and agreed with plaintiff to deliver same” within a certain time.</p> <p>6. Same—Same—Special Damages.</p> <p>In an action against a railway company for damages from delay in the transportation of fruit trees, plaintiff was not entitled to recover special damages claimed unless defendant was notified or from the nature and character of the freight was charged with knowledge that a quick delivery thereof was necessary.</p>

<p>1. Justice Court—Jurisdiction—Sequestration.</p> <p>In an action in a Justice Court, where property sequestered does not ih fact exceed $200 in value, the court has jurisdiction, though the affidavit for the writ of sequestration places the value above $200.</p> <p>2. Conversion of Mortgaged Property—Measure of Damages.</p> <p>In an action for the conversion of mortgaged property by its application to the payment of the mortgage, the measure of damages is the value of the property at the date of conversion, with interest, less the debt to which it was applied; except that particular property may be of such a nature that the value of its use is allowed in lieu of interest.</p>

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

<p>1. Railway Company—Burning of Grass—Agent in Possession Not Entitled to Sue.</p> <p>One suing in his own name for the burning of grass upon land of which he has possession only as agent, cannot recover, where it does not appear that he had in himself any right to the grass.</p> <p>2. Injuries to Separate Property of Wife—Suit by Husband—Allegation of Title.</p> <p>Although the husband can maintain an action in his own name for injuries to his wife’s separate property, he should allege ownership in her and not in himself.</p> <p>3. Injuries to Land—Co-Tenants—Parties.</p> <p>All joint owners of land must join in a suit for injuries thereto, and one co-tenant cannot maintain a separate action even for his proportion of the damages.</p>

<p>Appeal from Reeves. Tried below before Hon. C. N. Buckler.</p>

<p>Appeal from the County Court of Wilbarger. Tried below before R. T. Sitterly, Esq., Special Judge.</p>

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

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

<p>Appeal from the County Court of Jack. Tried below before Hon. R. P. Arnold.</p>

<p>1. Carriers—Horses Injured in Transit—Measure of Damages.</p> <p>In an action for damages to horses in shipment, plaintiff testified to their market value in good condition at the place of destination; that their injuries rendered them entirely unfit for the market upon ¿heir arrival; and that he had to keep them for six weeks or two months before he could sell them at any price. Held, that this evidence was sufficient to warrant a charge submitting as the measure of damages the difference between the market value of the horses in good and in bad condition.</p> <p>2. Verdict—Excessiveness—Evidence.</p> <p>Where, without disregarding the evidence, the jury could not have found a less amount than they did, their verdict will not be held excessive.</p>

<p>Appeal from Tarrant. Tried below before Hon. S. P. Green.</p>

<p>1. Notice-—Consignment to Factor—Lien in Favor of Third Person.</p> <p>On a consignment of live stock to a factor, recitals in a draft drawn against them and indorsed to a third person, showing the number of cattle shipped, and further recitals in the waybills that they are consigned for the account of such third person, in connection with the course of dealing between the consignor and factor, are sufficient to notify the factor that a lien exists in favor of such third person for money advanced by him.</p> <p>2. Consignment to Factor—Diversion of Proceeds from Bightful Owner.</p> <p>When a factor or commission merchant receives goods consigned to him by the owner, with notice at the time he receives them that the owner has given to a third person for money advanced the right to the funds which may arise from the sale of the property, such factor cannot divert the funds from the third person without liability to him.</p>

<p>Appeal from the County Court of Tarrant. Tried below before Hon. George W. Armstrong.</p>

<p>Appeal from Mitchell. Tried below before Hon. William Kennedy.</p>

<p>1. Pleading—Amendment—Limitations.</p> <p>An amendment to a petition on an accident insurance policy, setting up plaintiff’s right to the damages and attorney’s fees provided for by statute, though filed after the prescribed period of limitation on the policy, is not subject to that defense, since the claim is merely an incident to the suit.</p> <p>2. Life Insurance—Statute Providing for Damages and Attorney’s Fees— Constitutionality.</p> <p>The statute providing for damages and attorney’s fees in actions against life insurance companies failing to pay a loss within the time specified in the policy, is constitutional.</p>

<p>1. Passenger—Leaving Train—Bight to Assistance.</p> <p>A passenger has the right, if he desires, to leave the train at a station on the route short of the destination called for in his ticket, an.d if this purpose is made known to the brakeman he is under the same duty to render such assistance to the passenger in alighting from the train as his physical condition requires as he should extend to the passenger if leaving the train at the point called for in his ticket.</p> <p>2. Same.</p> <p>An invalid passenger having a ticket from Galveston to Palestine on a through train disembarked at Houston, an intermediate station, pursuant to directions to change cars there given by the brakeman whose duty it was to assist passengers to alight and who, at her request, carried her from the train, and in so doing injured her by striking her back against the seat. Held, that he was acting within the scope' of his employment and the company was liable.</p> <p>3. Same—Brakeman—Scope of Employment.</p> <p>The statement of facts not showing that plaintiff was removed from the cars-against her will, the question of the authority of the brakeman to eject the passenger before reaching her destination was not involved in the case.</p> <p>4. Same—Carrier—Assault on Passenger.</p> <p>If carried from the car against her will, the liability of the carrier could rest upon the proposition that the forcible expulsion embraces an assault, from which the carrier rests under the duty of protecting the passenger.</p>

<p>Appeal from the County Court of Bell County. Tried below before Hon. John M. Furman.</p>

<p>1. Insurance—Liquidated Demand.</p> <p>A fire insurance policy insuring the owner “to an amount not to exceed one thousand dollars” becomes a liquidated demand for one thousand dollars by operation of the statute, in case of total loss.</p> <p>2. Immaterial Error—Demurrer—Insurance—Total Loss.</p> <p>In an action on a fire insurance policy error in sustaining demurrers to pleas setting up various defenses, all dependent upon the allegation that the loss was partial, not total, becomes immaterial where, under other pleas, the issue of partial or total loss was raised and upon undisputed evidence the loss was found to be total.</p>

<p>1. Benefit Society—Warranty—Construction—Use of Liquor.</p> <p>Insured in his answers to questions in an application for insurance in a benefit society, which answers he warranted to be true, stated that his use of intoxicating liquors was “very moderate.” The constitution of the order gave to a Board of Control authority to annul certificates of insurance where the insured became addicted to vices whereby his life or natural expectancy would be shortened or the risk, become more hazardous. Held, that the words “very moderate” were to be taken in their ordinary sense, and it was error to instruct the jury to construe them in the light of the meaning defined in such laws of the corporation.</p> <p>2. Same—Notice—Charge—Collusion.</p> <p>Where there was no evidence of collusion between insured and the officers of the-local lodge, it was proper to refuse a charge that if such officers were agents of the Supreme Lodge their knowledge of the habits of insured would not, in case of such collusion, estop the Supreme Lodge, from defending on the ground of false representation as to habits.</p> <p>3. Knights of Pythias —Local Lodge —Officers—Agency—Notice.</p> <p>Under the evidence here shown as to the organization of the Supreme Lodge, Knights of Pythias, and of the local lodges, the officers of the latter were agents of-the Supreme Lodge, and notice to them of the habits of insured while payments and assessments were being collected from him was notice to the Supreme Lodge.</p>

<p>1. Negligence—Cities—Streets—Frightening Horses.</p> <p>See opinion for case in which a finding by the trial court that a pile of stones placed in the street of a city, but outside the traveled way was not naturally calculated to frighten horses of ordinary gentleness was held contrary to the evidence.</p> <p>S. Same—Repairing Bridge—Materials in Street.</p> <p>The fact that it was the city’s right and duty to repair a bridge and the stones were necessary and were placed there for that purpose will not relieve it from negligence, where such material could have been, and was after the accident, placed out of sight and in a reasonably convenient distance from the bridge.</p> <p>3. Same.</p> <p>The right to repair the bridge involved the right, if necessary, to place material therefor in the street; but if such material was naturally calculated to frighten horses of ordinary gentleness it became the duty of the city to place it where it could not be seen by such animals, or to temporarily close the street. But this principle, it seems, is not one to be given in charge to the jury as determining negligence as matter of law.</p> <p>4. Practice in the Court of Civil Appeals.</p> <p>The question of negligence in this case being one of fact for the jury or trial qourt, the Court of Civil Appeals, on reversing a finding for .defendant as against the evidence, could not render judgment for the plaintiff for the damages found by the court below to have been suffered, but must reverse and remand (Railway v. Strycharski, 37 S. W. Rep., 415).</p>

<p>1. Community Property—Presumption.</p> <p>Certificate tor a league and labor of land was granted to one as a married man in 1838 and was on hand at the dissolution of his marriage by the death of his wife in 1870. The burden of proof was on those who claimed the contrary to show that the marriage took place after the services for which the certificate was granted were rendered, and in the absence of such evidence the land was presumed to be community property. (Rev. Stats., art. 2853; Nixon v. Cattle Co., 84 Texas, 411.)</p> <p>2. Will—Description of Land—Undivided Interest.</p> <p>The will of a testator devising “833 acres of land in S. County, to be taken oil the headright league of land granted to R. B.” passed to the devisee an undivided interest of 833 acres in the tract mentioned and was not void for failure to designate the particular portion of the survey bequeathed.</p> <p>3. Community Property—Partition—Devisee—Election.</p> <p>Where the surviving husband had conveyed away all but 1920 acres of a league and labor survey belonging to the community, the devisee of an undivided 833 acres of such survey through the will of the deceased wife could ratify such disposition by the husband and elect to have his portion set aside from the 1920 acres remaining.</p> <p>4. Same.</p> <p>Where the devisee so elected it was not necessary to make parties to the suit for partition the persons who had purchased the balance of the survey from the surviving husband.</p> <p>5. Pleading—Marriage.</p> <p>A petition for the recovery of land as community property claimed under devise from the wife alleged that the land was granted and patented to R. B. during the existence of the marital union between him and E. B. and so became the community property of said R. B. and E. B., his wife. This was a sufficient allegation of the marriage of R. B. and E. B. at the time the land was acquired, though specially excepted to.</p> <p>6. Pleading—General Demurrer.</p> <p>Ah allegation that after the settlement of all outstanding community indebtedness of said R. B. and E. B. there remained undisposed of 1920 acres, specifically described, out of a league and labor survey granted to R. B., was sufficient, in the absence of a special demurrer, to admit proof that R. B. had sold all the headright except such 1920 acres.</p>

<p>1. Evidence—Secondary—Accounting for Original.</p> <p>The principal maker of a promissory note obtained it from the payees by fraud and the latter brought suit on it, as a lost instrument, against the sureties. See evidence in such case held insufficient to show due diligence by plaintiffs to procure the original instrument, and secondary evidence of its contents improperly admitted for want of such showing. .</p> <p>2. Surety—Extension—Release—Fraud.</p> <p>In a suit upon a lost note, being one surrendered by the payees to one of the makers for a renewal note extending the time of payment to which such maker had forged the names of his co-obligors, the latter were not released from liability on the original note by such extension—it having been procured by fraud—though they were, in fact, sureties, and the extension was in consideration of interest paid in advance; nor was it necessary to refund the interest so paid when it had become due at the time the fraud was discovered..</p> <p>3. Polling Jury—Directing Verdict.</p> <p>Where the court, under evidence authorizing such charge, instructed the jury to-return a verdict for plaintiffs, a demand by defendants that the jury be polled was properly refused.</p> <p>4. Surety—Dismissal as to Principal.</p> <p>Plaintiffs could dismiss as to one of several joint makers of a promissory note and, without alleging his insolvency or absence, proceed to judgment against the others, though the latter were in fact sureties, where they did not sign in form as such.</p>

<p>1. Public School Fund—Constitution—School Supplies.</p> <p>Under art. 7, sec. 1, of the Constitution it is within the power of the Legislature to provide for the purchase, out of public school funds, of all appurtenances or appliances necessary or useful as a part of an efficient system o'f free schools.</p> <p>2. School Furniture—Grammar Chart.</p> <p>Section 81 of the Act of 1893, which authorizes school trustees to purchase furniture, intended only furniture for the house or building, so as to make it habitable and comfortable, and did not authorize the purchase of appurtenances useful merely in furtherance of the system of instruction, such as a grammar chart for use in teaching.</p>

<p>1. Sale—Boundaries—Mistake—Remedy.</p> <p>Plaintiff sold defendant a tract of land described in the deed by metes and bounds tmd as containing 150 acres more or less. By mistake of plaintiff and defendant, caused by the error of a surveyor selected by plaintiff, the boundaries designated and to which defendant took possession included 308 acres. The intention of the parties was to sell and to buy 150 acres at an agreed price per acre. Held that, where defendant after the discovery of the mistake continued to hold to the designated boundaries and had by sales of portions of the tract and improvements placed upon the remainder rendered it impossible' to reform or cancel the deed, it was proper to award plaintiff judgment against defendant for the value of the land in excess of 150 acres, with a lien on the part remaining in defendant’s hands for its enforcement.</p> <p>2. Same—Petition.</p> <p>See petition held to present facts entitling plaintiff to such relief where only a general demurrer was urged.</p>

<p>1. Continuance—Absence of Witness—Diligence.</p> <p>A second application for a continuance for the absence of a witness who has gone to Europe is properly refused, where such witness told the applicant before going of his intention to leave, and stated that another person would testify to the same facts expected to he proved by him, although such other person fails to testify as expected.</p> <p>Ü. Depositions—Witness in Court.</p> <p>A deposition should not be rejected simply because the witness is in court.</p> <p>3. Evidence in Rebuttal of Negligence in Causing Death.</p> <p>Evidence that a person killed on a st.reet railway track did nothing at or before the time of his death indicating that he was drunk or insane is admissible in rebuttal of testimony by the motorman that he had walked along by the track, and although he sounded the gong and called to him, he staggered on to the track just in front of the car and was knocked down and killed, and that an autopsy of the body requested in order to ascertain if the deceased had been drinking intoxicants was not allowed.</p> <p>4. Street Railway—Injury to Person on Track—Liability.</p> <p>A street railway company is liable for the death of a person killed on its track without contributory negligence, where the death is caused by the negligence of the motorman in failing to keep watch, although proper means were used to stop the ear after discovering the deceased on the track.</p> <p>6. Charge of Court—Measure of Damages—Death.</p> <p>An instruction that the jury may find for plaintiffs suing for the death of their husband and father “such sum as they believe plaintiffs might have received from. the assistance or earnings of the deceased if he had not been killed,” but stating elsewhere that their feelings, loss .of society, or any other fact than the pecuniary injury, if any, cannot be considered in assessing the damages, is not objectionable as permitting a recovery for other than the pecuniary benefits they had reasonable expectation of receiving from him.</p> <p>6. Street Railway—Right in Street.</p> <p>A street railway company has no use or control in preference to the general public as to any part of the street on which its tracks are located.</p> <p>7. Damages for Death—Verdict not Excessive.</p> <p>A verdict for $5000 for the death of a healthy young man who had been supporting his family is not excessive, although he was out of employment at the time of his death.</p> <p>8. Injuries Resulting in Death—Action by One for Benefit of Another— Consent.</p> <p>The widow of one killed by the negligence of another has authority to bring suit for damages for herself, and also for the use and benefit of her husband’s parents, without their knowledge or consent. Rev. Stats., 1895, art. 3022.</p> <p>9. Same—Same—Good Faith.</p> <p>An allegation in the petition by the widow of one killed by the negligence of defendant, that the parents of the deceased resided in a foreign country, and did not receive and would not have received from him any pecuniary aid, and that they are joined by her as plaintiffs simply for the purpose of having their rights adjudicated finally, does not show that she did not bring the suit in good faith for the benefit of all the parties entitled to recover, where the parents had in fact no right to reaover.</p>

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

<p>Error from Brazoria. Tried below before Hon. T. S. Reese.</p>

<p>1. Foreign Corporation—Pleading—Permit to do Business.</p> <p>Where an assignee for creditors of a foreign corporation which has been doing business in Texas brings suit here, the petition need not allege that the corporation has obtained a permit to do business here in compliance with the Act of 1889, since the burden of proof to show that it has not done so is on the defendant.</p> <p>2. Same—Allegation of Corporation’s Authority to Make Assignment.</p> <p>Where an assignee for creditors of a corporation domiciled in another State sues in Texas, the petition need not aver that such assignment was authorized by the law of such other State, since, by the common law, a corporation may make an assignment for creditors, like any other person.</p> <p>3. Draft as Assignment of Fund—Lapse of Time—Presumption.</p> <p>The fact that a draft for the purchase price of goods discounted by a bank has been allowed to become barred by lapse of time, without being asserted by the bank, authorizes an inference that the same was a temporary expedient, and did not operate as an assignment of the claim for the purchase price of the goods.</p> <p>4. Garnishment—Parties—Protection of Garnishee.</p> <p>A garnishee cannot rely upon the judgment against him in the garnishment proceedings as a protection against the claim of an assignee for creditors of his creditor, a corporation that has failed, where he knew of such general assignment before the judgment was rendered, and did not make the assignee a party to the proceedings, nor disclose the facts to the court; and the fact that the assignee is a non-resident does not alter the rule.</p> <p>5. Corporation—Trust-Fund Doctrine—Preference Liens.</p> <p>The trust-fund doctrine not only prevents an insolvent corporation or its officers from doing any act calculated to defeat an equitable distribution of the corporate assets among its creditors, but prevents creditors from obtaining liens or preference by virtue of the garnishment and attachment statutes.</p> <p>6. Secondary Evidence of Deed of Assignment.</p> <p>In an action by a general assignee under an assignment made in another State, a copy of the deed of assignment is not admissible in evidence without a showing that the original could not be produced.</p>

<p>1. Attorney and Client.</p> <p>Plaintiff cannot complain because defendant’s counsel represents an intervener in an action of foreclosure.</p> <p>2. Parol Evidence of Sale of Land—Uonproduction of Deed.</p> <p>A guardian may properly testify to having consummated a sale of the ward’s land in another State, and'that she received the consideration, as she cannot be expected to produce the original deed to the purchaser at such sale.</p> <p>S. Trust—Evidence Sufficient to Establish.</p> <p>A trust may be engrafted upon a deed absolute by the evidence of a single witness, where the trust is one not in favor of such witness.</p> <p>4. Same—Violation of—Election of Remedies toy Beneficiary.</p> <p>The beneficiary of a trust fund may, where the trustee, in violation of his duty, invests such funds in property in his own name, elect whether he will pursue the trustee personally or resort to the property.</p> <p>5. Same—Mingling Trust Funds—Purchase toy Trustee.</p> <p>A Trustee who places to her credit $1500 of the trust fund and the same amount of her own money, and dissipates all the joint fund except $1060 used to purchase land and about $700 in bank, will be declared trustee for the cestui que trust as to the land, if the latter so elects.</p> <p>6. Mortgage—Bona Fide Holder—Consideration.</p> <p>A mortgage given for an antecedent debt, for the sole purpose of securing the demand, is without consideration entitling the mortgagee to protection as a bona fide lien holder, although incidentally the time of payment is extended.</p> <p>ON REHEARING.</p> <p>7. Practice on Appeal—Bill of Exceptions.</p> <p>Alleged error in the exclusion of evidence is not available on appeal, where the bill of exceptions fails to show what the objection was.</p>

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

<p>1. Taxation—Assessment of City Property—Notice.</p> <p>The city assessor of taxes of San Antonio, after having given due notice by publication, as required by the charter, to the owners of property to render the same to him for taxes within two months, had the power to value and assess for taxes such property as had not been rendered at the expiration of that time.</p> <p>2. Same—Action of Board of Revision—Notice to Owner.</p> <p>The board of revision had no power to raise the valuation of property as fixed by the assessor, without notice to the owners thereof, and its action in so doing was a nullity, and could form no basis for the assessment of taxes.</p> <p>3. Same—Assessment of Separate Parcels.</p> <p>Where several lots and parcels of property belonging to one owner were separately valued and assessed, the illegal action of the board of revision in raising the valuation of some of the parcels without notice to the owners, did not affect the legality of the tax upon the other parcels, with reference to which the board had not acted.</p>

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

<p>1. Judgment—Direct Attack—Grounds Authorizing.</p> <p>One against whom a final judgment has been rendered may by a direct proceeding for that purpose have the case reopened, upon averments that he was prevented from making a valid defense by fraud, accident, or the act of the adverse party, unmixed with negligence on his part.</p> <p>2. Receiver’s Attorney Fees—Illegal Contract—Rights of Judgment Debtor.</p> <p>An agreement between a receiver whose compensation is fixed by the court, and his attorney, whereby the latter is to get only half of the attorney’s fees stipulated for in the obligations on which he may bring suit for the receiver, inures to the benefit of the judgment debtors, and, if known to them, is available as a defense pro tanto, and, if unknown to them, may be made the basis of a direct proceeding to set aside a judgment including the full amount of such fees.</p> <p>3. Judgment—Direct Attack—What is—Receivership Proceedings.</p> <p>An intervention by a debtor in a judgment in favor of a receiver, in an application by the attorney of the receiver to have the attorney’s fees fixed and allowed, whereby such debtor seeks to reduce the judgment by one-half of the attorney’s fees included therein, which the attorney had agreed to allow the receiver to retain,—is a direct proceeding within the rule that a judgment may be assailed in a direct proceeding for fraud or accident preventing the party from availing himself of a valid defense, where the court is the same which rendered the judgment, and has jurisdiction of all the parties interested, and control of the funds.</p> <p>4. Attorney’s Compensation in Receivership—Determination Without Evidence.</p> <p>The court cannot determine what is reasonable compensation for the services of the attorney of a receiver, in the absence of evidence on that subject, although it is familiar with what has actually been done by him.</p>

<p>Appeal from Grayson. Tried below before Hon. A. G. Moseley, Special Judge.</p>

<p>1. Charge of Court—Issue as to Amount of Land Embraced in Deed.</p> <p>Where a deed purports to convey the land in controversy, describing it by calls for distance and also for corners of surrounding tracts, and a witness has testified that according to a survey made by himself the deed does not embrace all the tracts in controversy, it was proper for the charge of court to submit that issue to the jury.</p> <p>S. Title by Dedication—Alley.</p> <p>Where the owner of land lays it off into lots and blocks, with streets and alleys, and sells the lots and blocks to different parties, and with reference to such streets and alleys, he cannot afterwards reclaim the land covered by such an alley by claim of title thereto, although the public may have ceased to use the alley for travel, and the owners of abutting lots may have closed it up.</p> <p>3. Same—Deed—Conveyance to Center of Alley.</p> <p>A deed conveying a platted town or city lot bounded by a street or alley passes the fee to the center of such street or alley, as against the grantor and his assigns. Following Mitchell v. Bass, 26 Texas, 380.</p> <p>4. Trespass to Try Title—Issue of Improvements and Value Immaterial, When.</p> <p>Where, in trespass to try title, the jury have properly found in favor of defendant upon the issue of title, errors in the charge upon the issue of improvements by the defendant and value of the land are immaterial.</p>

<p>1. Charge of Court—Requested Charge Necessary, When.</p> <p>Failure of the court’s charge to more particularly specify the various items of merchandise for which plaintiff might recover, is not available to defendant, where he asked no special charge in relation thereto.</p> <p>3. Same—Harmless Inaccuracy.</p> <p>Upon an issue as to defendant’s liability for failing to deliver all goods set out in an inventory, a charge erroneously requiring defendant to have shipped all the goods from a certain point was harmless, where there was no dispute as to the part of the goods which had been shipped from another than the stated point, and accepted by plaintiff.</p> <p>3. Judgment Foreclosing Vendor’s Lien—Awarding Possession.</p> <p>Where, in an action foreclosing a vendor’s lien on land, there is no issue as to the right of possession, and the judgment merely adjudicates the amount due plaintiff, and orders the land sold to satisfy it, the defendant’s right of possession is sufficiently recognized.</p>

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

<p>Mechanic’s Lien—Description of Property in Lien Contract—Lot.</p> <p>Where a materialman’s lien contract stipulated for a lien on “a two-story, frame, shingle roof storehouse on lot No. —, of block No. —of a named town and county, this was sufficient to fix the lien also upon the lot on which the house was after-wards erected. Following Strang v. Pray, 89 Texas, 535, 35 S. W. Rep., 1054, and construing section 37, article 16, of the Constitution.</p>

<p>Notice—Record of Subsequent Deed Puts Upon Inquiry as to Prior Fraud.</p> <p>A. conveyed land to C. with intent to hinder and defraud B., a creditor, who had brought suit against him, but who had not acquired any lien on the land. 0. after-wards conveyed to D., who paid for the land without any knowledge of the fraud of A.; but at that time a sheriff’s deed of the land to B. was of record, B. having, after the conveyance to C., obtained judgment against A. under which the land was levied on and sold to B. Held, that the record of the sheriff’s deed was sufficient to have put D. on inquiry as to the fraud of A. and to subordinate his title to that of B.</p>

<p>1. Garnishment—Liability of Garnishee After Replevin.</p> <p>Where, in a suit aided by garnishment before judgment, the defendant replevies the fund from the garnishee by giving bond under article 225, Revised Statutes of 1895, the garnishee, after such replevy, remains a nominal party, and upon his answer the liability is determined, and a nominal judgment only should be rendered against him, ascertaining the amount due and showing that the fund had been replevied, and that no execution should be awarded against such garnishee.</p> <p>2. Same—Summary Judgment Against Sureties on Replevy Bond.</p> <p>Where, in a suit aided by garnishment, the defendant replevies the fund from the garnishee, summary judgment cannot he entered against the sureties on such replevy bond until they are made parties by proper process.</p> <p>3. Same—Amount of Judgment Against Garnishee.</p> <p>In an action aided by garnishment the plaintiff made affidavit that the garnishee was justly indebted to him in the sum of $630, but did not in any other manner describe the nature of his claim. His judgment against the defendant, which included interest on the debt, was for $765, with costs of suit. Held, that as such amount did not exceed the amount due to defendant by the garnishee, plaintiff was entitled to judgment against the garnishee for the full amount of his judgment, and was not restricted to the amount stated in the affidavit.</p> <p>4. Same—Judicial Notice.</p> <p>In an action of garnishment, the court will take judicial notice of the judgment rendered in the main case.</p>

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

<p>Life Insurance Policy—Exempting Clause—Death. From Intentional Injury by Another.</p> <p>Where an accident life insurance policy provides that it does not cover “death resulting from intentional injuries (inflicted by insured or any other person) intentional over-exertion,” etc., and the insured is wrongfully murdered by another person, the insurance company is not liable on the policy.</p>

<p>1. Injunction—Harmless Error.</p> <p>Where, in an action for an injunction, the court, upon a trial on the merits, properly refuses to perpetuate the injunction, error in its action in having refused to dissolve a temporary injunction because of plaintiff’s failure to give bond, becomes immaterial.</p> <p>2. Dedication of Street—Easement—Guardian’s Sale of Land.</p> <p>The rule that where the owner of land has it platted into lots, blocks and streets, and sells a lot with reference to such streets and plat thereof, the purchaser acquires an easement in the streets, applies to the like sale by a guardian under order of court of a lot owned by his minor ward.</p> <p>3. Judgment Binds Only Parties Thereto.</p> <p>A judgment wherein the owner of certain land claimed by a city to be a street, recovered it from the city, is not conclusive against the claim of an abutting lot owner to a street easement therein, where such lot owner was not a party to the suit against the city.</p>

<p>Error from Fannin. Tried below before W. A. Evans, Esq., Special Judge.</p> <p>On the question of the assignment of plaintiffs’ claim for damages against defendant for the destruction of said cotton the following is all the material evidence: Witness Platt testified that Gatlin & Platt, attorneys of said insurance company, and representing it in settling the insurance money paid by it on the loss of said cotton, had no correspondence of any kind with any party regarding this claim, except the correspondence referred to in his answers given in his deposition. The correspondence bearing on the assignment, and thus referred to, is as follows: November 10, 1890, Gatlin & Platt wrote plaintiffs: “We think it well that you render your bill for the amount of loss to the railroad company, and press the same for settlement. However, do not make any reference to the question of insurance, as it will tend .to complicate matters.” To this plaintiffs replied, December 3, 1890, as follows: “We will make up claim against the railroad for this loss at once, and apprise you of the result. If they refuse payment, we will sue them, if you so instruct, and you are willing to pay costs in case we are defeated in the suit.” Gatlin & Platt replied to this letter of plaintiffs’, “We will thank you to claim from the railroad company whatever may be due from them, and in case of their refusal to pay, then to bring suit against them in your own name, but at our expense, including costs in case of defeat.” December 9, 1890, plaintiff executed to the said insurance company the following receipt: “Borrowed and received from Insurance Gompany of North America $2017.20, pending settlement of claim of thirty-nine and one-half bales of cotton burned at Pecan Gap, November 5, 1890. Wood & Kinkead.” On same day Gatlin & Platt sent plaintiffs a draft for the $2017.20, which was paid. In the letter indorsing this draft Gatlin & Platt write: “We herewith inclose our check for the amount of $2017.20, which we shall consider only as a loan until you shall have settled with railroad, so as to avoid any complication with them as to your having been already paid by us.” On December, 18, 1890, Gatlin & Platt wrote plaintiffs as follows: “We note that your claim is in the hands of the railroad company in regard to which we await further particulars.” February 27, 1891, plaintiffs wrote Gatlin & Platt that they would sue the railroad at the next term of the court. March 2, 1891, Gatlin & Platt replied that they approved the proposed suit, which they hoped and believed would result favorably. June 26, 1894, plaintiffs wrote Gatlin & Platt that they wished them to remit $21.90, amount costs paid in suit against defendant for burning of cotton at Pecan Gap. This was all the evidence on this point.</p>

<p>Appeal from Fannin. Tried below before Hon. E. D. McClelland.</p>

<p>Arbitration—Requisites of Agreement—Jurisdiction of Court.</p> <p>Under the provisions of the statute regulating arbitrations, Sayles’ Civil'Statutes, arts. 42-56, it is not necessary that the articles of agreement should state the amount in controversy, in order to confer jurisdiction upon the court, but it is sufficient if the award, when presented to the court for judgment, shows an amount sufficient to give jurisdiction.</p>

<p>1. Telegraph. Company—Negligence — Cipher Message — Consequential Damages.</p> <p>The sender of a cipher message cannot recover consequential damages resulting from the negligent delay of the telegraph company in its transmission, unless the company is in some way notified of the nature of the matter to which it relates.</p> <p>2. Same—Contents of Cipher Message—Notice.</p> <p>Information given to the agent of a telegraph company that a cipher message is important does not charge the company with notice of the matter to which it relates.</p> <p>3. Pleading—Allegations of Petition—Measure of Damages.</p> <p>In an action against a telegraph company for delay in the transmission of a telegram accepting an offer to purchase cotton, the petition was defective in not alleging when plaintiffs learned of the refusal of the prospective purchaser to take the cotton, and where the cotton then was, these facts being important in measuring the damages.</p>

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

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

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

<p>Appeal from Grimes. Tried below before Hon J. M. Smither.</p>

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

<p>1. Practice—Default of Plaintiff.</p> <p>A plaintiff is not entitled to any judgment unless he appears at the trial and prosecutes his suit.</p> <p>2. Pledge of Note—Liability of Pledgee-Diligence in Collection—Pleading.</p> <p>Where the pledgor of a note alleged that the pledgee failed to press collection from the maker, and prevented the pledgor from doing so until the maker became insolvent, but stated no facts to sustain these conclusions, and it appears that the pledgee did bring suit within a short time after the note matured and made the pledgor a party, the pledgor is not entitled to recover from the pledgee the value of the note on the ground of the negligence of the latter in enforcing collection thereof.</p> <p>3. Same—Same—Accepting Other Security.</p> <p>The mere fact that the pledgee of a note accepts other security from the maker in lieu of such collateral, where he releases to his debtor the note pledged and substitutes him as plaintiff in an action thereon then pending, will not render the pledgee liable to the pledgor for the value of the note, the maker being solvent at the time of the transaction but subsequently becoming insolvent.</p>

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

<p>Bond of Indemnity Against Incumbrance—Failure of Title.</p> <p>Where a vendor of land gave a bond to indemnify the purchaser against the payment of a certain note constituting a lien on the land, and against the payment of all other claims, liens and demands thereon, such bond shows on its face that it was not intended as a warranty of title, and, though the title to the land fails, recovery cannot be had thereon unless the purchaser has paid some lien.</p>

<p>Injunction—Jurisdiction of County Court.</p> <p>Under the Judiciary Article of the Constitution as amended, the amount involved is to he looked to in determining the jurisdiction in cases of injunction and mandamus; and therefore the County Court has exclusive jurisdiction of an action to enjoin a sale of cattle for taxes amounting to $350.</p>

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

<p>1. Pleading—Petition in Trespass Not Sufficient.</p> <p>Plaintiff’s petition admitted that within its very large pasture there were 5000 acres belonging to parties unknown to it, and alleged that defendant had pastured in its in closure 400 head of horses and cattle, and prayed judgment for the reasonable value of the pasturage. Held, that the petition was defective in not alleging that defendant had no right to pasture his cattle on those 5000 acres, and in not averring that defendant broke the plaintiff’s close in placing his cattle thereon.</p> <p>S. Same.</p> <p>Under a petition admitting that there were within plaintiff’s pasture 5000 acres of land belonging to other parties, on which defendant’s cows may have been properly running, plaintiff cannot recover for the services of its bulls on such cows, since it should have fenced its own land so as to exclude the cattle on the 5000 acres.</p> <p>S. Same—Petition in Trespass Sufficient.</p> <p>A petition alleging that plaintiff was the owner by lease of certain lands, and that defendant, with force and arms, entered and took possession thereof, and excluded plaintiff therefrom, and praying for the reasonable value of the land for the time appropriated, states a good cause of action.</p> <p>4. Limitation—Continuing Trespass.</p> <p>Where one, with force and arms, enters upon the land of another, and excludes him therefrom, and pastures his own cattle thereon, the trespass is a continuing one, for which an action can be annually maintained, so that only those damages occurring more than two years before the institution of the suit are barred.</p>

<p>Appeal from Wichita. Tried below before Hon. George E. Miller.</p>

<p>Appeal from Tarrant. Tried below before Hon. S. P. Greene.</p>

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

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

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

<p>Appeal from the County Court of Travis County. Tried below before Hon. D. A. McFall.</p>

<p>Appeal from the District Court of Tom Green County. Tried below before Hon. J. W. Timmins.</p>

<p>Appeal from the District Court of Grayson County. Tried below before Hon. Don A. Bliss.</p>

<p>Justice Court—Appeal—Filing Transcript—Diligence.</p> <p>Appellant, who had perfected an appeal from the Justice to the County Court, was not in fault in failing to resort to mandamus to secure the filing of transcript therein until the first day of the second term, the time limited by law therefor, and where he procured the transcript to be filed on the third day of such term his diligence was equal to a resort to mandamus.. It was error, on a motion thereafter made, to dismiss the appeal for failure to have it sooner filed.</p>

<p>Appeal from the County Court of McLennan County. Tried below before Hon. W. H. Jenkins.</p>

Tried below before Hon. J. O. Woodward. The lots in controversy were formerly the business homestead of Greene & Rape, who mortgaged them for $1500, which was used to pay mercantile debts. Rape sold out to Jones who, as part of the consideration, appears to have assumed the payment of this indebtedness.

<p>Limitation—Suit by County.</p> <p>A county suing to recover land not devoted to public use, is not exempt from the operation of the statutes of limitation. (Rev. Stats., art. 3351 construed.)</p>

Tried below before Hon. L. W. Goodrich. Sanger Bros., having a judgment against J. C. Jurney, Sr., garnished thereon the City of Waco, which was indebted to him for his services as registering officer for a city election under an appointment by the proper authorities, his fees being eight cents for each voter registered, and being earned at the time the writ was served.

<p>See Western Union Telegraph Company v. G. W. Birchfield, 14 Texas Civ. App., 664, a companion case to the present, in which a more detailed statement of the facts is given.</p>

<p>Appeal from Hill. Tried below before Hoñ. J. M. Hall.</p>

<p>Appeal from Bexar. Tried below before Hon. J. L. Camp.</p>

<p>Appeal from El Paso. Tried below before Hon. C. N. Buckler.</p>

<p>Pleading—Variance—Express and Implied Contract.</p> <p>Where plaintiff sues upon an express contract only, he is not entitled to recover upon proof of an implied contract.</p>

<p>1. Corporation—Assignment for Benefit of Creditors.</p> <p>An insolvent corporation, acting by its directors or under their authority, may make a general assignment for the benefit of creditors.</p> <p>2. General Assignment by Corporation—What is.</p> <p>An instrument executed by the secretary of an insolvent corporation, under the direction of its board of directors, conveying all of its assets to an assignee for the benefit of all its creditors, is a general assignment.</p> <p>3. Same—Appointment of Substitute Assignee in Vacation—Notice.</p> <p>The order of the district judge appointing another assignee, upon the failure of the first to qualify, maybe made in vacation as well as at a term of court, and without notice either to the assignor or assignee.</p> <p>4. Same—Bight of Appeal—Order Appointing Substitute Assignee.</p> <p>The order of a district judge appointing another assignee, upon the failure of the first to qualify, whether made in vacation or in term time, is, with reference to the, right of appeal, to be considered as an order of the district court.</p>

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

<p>1. Mutual Benefit Insurance—Reinstatement of Suspended Member-Notice of Subsequent Assessments.</p> <p>Where a member of a mutual benefit society, whose constitution and laws provide that suspended members may be reinstated only upon payment of “all arrearages of every kind,” and that the failure to receive a notice of assessment shall not relieve a member from forfeiture for nonpayment thereof, has been suspended for nonpayment of one month’s assessment, he is not entitled to reinstatement on payment of such assessment, where other later assessments have then become due, without also paying the latter, although he may not have received notice of such later assessments.</p> <p>2. Same—Payment of “All Arrearages.”</p> <p>A suspended member of a mutual benefit society whose laws provide that suspended members may be reinstated only upon payment of “all arrearages of every kind,” is not entitled to reinstatement without payment of assessments levied while he was suspended; and the fact that during such time he was not entitled to the benefits of the order does not exempt him from such payment.</p> <p>3. Same—Authority of Subordinate Receiving Officers—Agent of Member Only.</p> <p>Where the constitution and laws of a mutual benefit society provide that clerks of subordinate camps cannot bind the sovereign camp by any act outside their express authority, and are not authorized to reinstate suspended members, and in receiving and forwarding payments of assessments and dues are the agents of the member, and not of the sovereign camp, the latter is not estopped to deny that a member has been reinstated by the action of a clerk of a subordinate camp in receiving from such suspended member and retaining a less sum than the total amount of arrearages due by such member.</p>

<p>Appeal from Grayson. Tried below before Hon. Don. A. Bliss.</p>

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

<p>Appeal from Harrison. Tried below before Hon. W. J. Graham.</p>

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

<p>Appeal from the County Court of Waller. Tried below before Hon. A. G. Lipscomb.</p>

<p>1. Ejection from Sleeping Car—Liability Therefor.</p> <p>When a sleeping car company sold a ticket on a certain sleeper between named points, it undertook to furnish the holder with a berth in that sleeper or another like it during the passage, provided the railroad company hauled it, and is therefore liable to such holder for a failure to furnish such berth for a part of the distance, when the railroad company did haul the sleeper through; and this although the ejection was by the railroad company, and the sleeping car company, under the arrangement between the two companies, could not prevent it. Pleasants, Associate Justice, dissenting.</p> <p>2. Separate Coach Law—Contract by Negro in Another State.</p> <p>A contract by a sleeping car company to carry a negro from another State to a point in Texas is not in contravention of the laws of the State of Texas, since the company did not contract to carry the negro in the same car with white passengers, and he had the right to assume that when the State of Texas was reached he would be furnished with a berth in a coach separate from white passengers.</p> <p>3. Practice—Argument of Counsel—Verdict.</p> <p>The use of objectionable language by counsel in argument to the jury is not ground for reversal, where the amount of the verdict shows that the jury were not influenced by it.</p> <p>4. Evidence—Intention of One Ejecting Passenger From Car.</p> <p>Where plaintiff left a sleeping car under protest, when directed to do so by a person in authority, in an action for ejection from the car it is proper for him to ask the person ejecting him whether he did not intend to make the plaintiff leave the car, if he had not gone.</p>

<p>Master and. Servant—Assumed Risk—Coupling Cars.</p> <p>Where a servant engaged in coupling cars saw a projecting rail on the approaching car, and yet continued to attempt to couple them, it was held that he assumed the risk of the situation; and this without reference to whether he fully realized the danger due to the facts that the rail was placed diagonally upon the car, and that the car was defectively constructed.</p>

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

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

<p>Appeal from Nueces. Tried below before Hon. J. C. Russell.</p>

<p>1. Attachment—Liquidated Demand—Sale of Goods.</p> <p>A claim for the price of goods sold at an agreed price, with a credit admitted, is one for liquidated damages, which will support an attachment.</p> <p>2. Sale of Cotton—When Complete.</p> <p>A sale of cotton is complete and the title passes when the particular bales are designated and the price per pound is agreed upon, and it remains only to present to the vendee invoices giving marks and weights.</p> <p>3. Agency—Evidence.</p> <p>Evidence is admissible that one claimed to be the agent of another, and acted as such, after the fact of agency has been shown by other evidence.</p> <p>4. Evidence—Sale of Cotton—Completion.</p> <p>On an issue as to the completion of a sale of cotton, evidence is admissible that it is customary to accept the weigher’s receipts as showing the weights, unless otherwise stipulated.</p> <p>5. Jurisdiction—Non-resident—Answer.</p> <p>When a non-resident defendant answers to the merits “solely in the event that the court shall overrule his plea to the jurisdiction,” and the plea to the jurisdiction is overruled, the court acquires jurisdiction of his person.</p>

<p>Appeae from Montgomery. Tried below before Hon. L. B. High-tower.</p>

<p>1. Telegraph. Company—Failure to Deliver Message—Contents as Notice.</p> <p>A telegraph message containing an offer tor the purchase of cattle at stipulated prices sufficiently gives notice of its importance so as to charge the telegraph company with negligence in a failure to deliver it.</p> <p>2. Same—Advance in Market Price—Actual Purchase After Advance.</p> <p>In an action against a telegraph company for failing to deliver a message directing the purchase of cattle at stipulated prices, where it appears that there was subsequently a permanent rise in the value of cattle, it is not incumbent upon the plaintiff to show that he had actually gone into the market and purchased cattle, in order to entitle him to a recovery.</p> <p>3. Evidence—Opinion of Witness.</p> <p>A statement of a witness that, in a certain contingency, he could and would have purchased a specified number of cattle at specified prices, is the statement of a fact, and not of an opinion or conclusion.</p> <p>4. Damages—Interest Before Trial.</p> <p>Interest from the date of the institution of the suit is recoverable against a tel-graph company on the amount recovered against it for loss in a purchase of cattle on account of a failure' to deliver a telegram.</p>

<p>Fire Insurance Policy—Liability of Insurer.</p> <p>An insurance company which insured a railroad company against loss by fire “on cotton in bales * * * for which they shall be liable,” is not released from liability on account of an accidental fire by the fact that the railroad company had contracted against its own liability for accidental fires.</p>

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

<p>1. Railroads—Accident at Crossing—Charge of Court—Weight of Evidence.</p> <p>In an action against a railroad company for damages sustained through the failure of the train operatives to give the statutory signals at a public crossing, a charge which imposes upon the plaintiff the duty of discovering the approaching train sooner than he did is a charge upon the weight of the evidence.</p> <p>3. Same—Same—Evidence.</p> <p>In an action against a railroad company for injuries at a public crossing, evidence Was properly admitted to the effect that trains were accustomed to give signals at the crossings in question.</p> <p>3. Same.</p> <p>In an action against a railroad company for injuries at a public crossing, the testimony of a railroad expert was properly admitted to the effect that if a person on a train can hear another train whistle a mile off, he should hear such train that distance if on a hand car.</p> <p>4. Same—Evidence Supporting Verdict for Plaintiff.</p> <p>In an action against a railroad company, where the evidence showed that the plaintiff, a section hand, on the sudden approach of a train, and under a sense of impending danger, leaped from his hand car in the only direction open to him, and that the condition which brought about his conduct was due solely to the negligence of the defendant, a verdict awarding damages to him for injuries sustained Will not be set aside as unsupported by the testimony.</p>

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

<p>Appeal from the District Court of McCulloch County. Tried below before Hon. J. O. Woodward.</p>

<p>1. Injunction—Waste—Bemedy at Law.</p> <p>The owner of land” can maintain injunction against the sale and removal of his buildings thereon under a decree foreclosing a mechanic’s lien, recovered against the lessee who had them erected, without making such owner a party; he is not remitted to his remedy at law therefor.</p> <p>2. Contract—Lessor and Lessee—Fixtures—Parol Evidence.</p> <p>Where a contract of lease was silent as to whether improvements to be erected by the lessee should be removable by him, paroi evidence to show the intention of the parties was admissible.</p> <p>3. Same—Bemoval—Mechanic’s Lien—Injunction.</p> <p>An association leasing land for fair grounds and erecting thereon, without paying for the materials, fixtures not removable under its contract did not thereby create a lien upon such fixtures in favor of the material man against the owner; and the latter could restrain by injunction a sale and removal of the fixtures under a decree foreclosing a mechanic’s lien, in favor of the material man, against the lessee, in a proceeding to which such owner was not a party.</p>

<p>1. Libel Per Se.</p> <p>A publication which falsely charged an officer with chaining to a prisoner, whom he was transporting by rail, the wife of such prisoner, who was innocent, is libelous per se, and a petition alleging such publication by defendant concerning plaintiff states a cause of action, though special exceptions have been sustained to the allegations therein of special damages.</p> <p>3. Same—Charge of Crime.</p> <p>It is not necessary that the language of the alleged libel should in terms charge that plaintiff has committed a crime, naming it: it will be actionable if calculated to induce persons who read it to believe that the plaintiff was guilty of acts which would constitute a crime.</p> <p>3. Same—Identifying Person.</p> <p>Ip is not necessary, to constitute libel, that the person be named if pointed out by circumstances and ascertainable.</p> <p>4. Jury—Sheriff as Plaintiff—Change of Venue.</p> <p>It was not ground for a change of venue by defendant, nor for a challenge to the array, that the jury,—selected by jury commissioners,—were summoned by the sheriff, who was plaintiff in the suit.</p> <p>5. Same—Talesmen.</p> <p>Where the sheriff was a party to the suit it was proper for the court to have tales-men necessary to complete the jury summoned by a constable sworn for that purpose.</p> <p>6. Libel—Evidence—Person Meant.</p> <p>Plaintiff may call witnesses to show that on reading the libel they understood him to be the person aimed at.</p> <p>7. Libel—Charge—Slander.</p> <p>It was not erroneous for the charge in an action for libel to define to the jury the meaning of slander, where that term enters into the court’s charge on libel.</p> <p>8. Libel Defined.</p> <p>See charge defining libel held sufficient though not including all defamatory publications.</p> <p>9. Libel Per Se.</p> <p>See publication which the court might properly instruct to be libelous per se as charging plaintiff with a crime and also imputing to him misconduct and cruelty in office.</p> <p>10. Same—Crime—Moral Turpitude.</p> <p>It is not necessary that the charge in order to be libelous should impute a crime involving moral turpitude.</p> <p>11. Libel—Newspaper—Privilege.</p> <p>See charge as to privilege of newspapers to truthfully chronicle acts or conduct held sufficiently favorable to defendant, though the truth of the publication was not contended for.</p> <p>IS. Damages—Actual—Exemplary—"Verdict.</p> <p>When the verdict is for actual damages only, errors in submitting issue of exemplary damages are immaterial.</p> <p>13. Charge—Character of Plaintiff.</p> <p>Where the good character of plaintiff was not attacked, defendant cannot complain that without evidence the court submitted issues based on their finding that he was of good character. It was presumed good if not attacked and the issue need not have been submitted to them.</p> <p>14. Same—Submitting Libel to Jury.</p> <p>Defendant cannot complain that the question whether the publication was libelous was left to the jury, where it was libelous per se and the court should have so instructed.</p> <p>15. Charge—Damages—Actual—Nominal.</p> <p>Having in his charge authorized only nominal damages, unless actual damages were proved the court properly refused a requested charge to the same effect.</p> <p>16. Identifying Person Meant.</p> <p>It was not necessary that the article in itself or by itself so pointed out the pla/n. tiff as to inform any person that it meant him.</p> <p>17. Damages.</p> <p>Injury to feelings is the subject of compensation when libelous words are actionable in themselves.</p> <p>18. Same.</p> <p>Verdict for S1000 for libel sustained as not excessive, though followed by prompt retraction of statement.</p>

<p>Registration—Execution Sale—Purchaser With Notice. .</p> <p>A creditor purchasing land at his own execution sale takes title as against one claiming under a prior deed unrecorded at the time his execution was levied, though notice thereof was given at the sale, and though such unrecorded deed was to a purchaser at a sale made before such levy, upon an older judgment, and one foreclosing a prior attachment lien. (Grace v. Wade, 45 Texas, 533, followed, and Brackenridge v. Cobb, 85 Texas, 448, distinguished.)</p>

<p>1. Will—Agreement not to Probate.</p> <p>Before probate of a will the parties in interest may, to avoid controversy, agree that it be not probated and that they take the property according to their interest as heirs at law; such agreement is not against public policy.</p> <p>2. Same—Minors—Married Women—Beneficial Agreement.</p> <p>The agreement was not void because some of the parties were minors and some married women acting by an agent. Being for their benefit it was only voidable at their election and their personal privilege could not be taken advantage of by others.</p> <p>3. Same—Procedure.</p> <p>Such agreement may be enforced in a proceeding to probate the will; it is not necessary that the will be admitted to probate before its provisions can be annulled.</p> <p>4. Same—Pleading—Demurrer.</p> <p>A reply by the proponent of the will that such agreement was not mutual but was obtained by coercion, presents an issue of fact to be tried, but does not justify the sustaining of exceptions to the plea of contestants setting up the agreement.</p>

<p>1. Boundary—Burden of Proof.</p> <p>In an action of trespass to try title, the question being in effect one of boundary, the burden of proof was upon plaintiff to show not merely that defendant had enclosed more land than he was entitled to, but facts sufficient to enable the court to ascertain and define the line which would restore to plaintiff the excess; see evidence held insufficient to meet this requirement.</p> <p>2. Trial by Court—Absence of Conclusions.</p> <p>Where there are no conclusions of fact and of law in a case tried by the court, its judgment will be sustained if suppported by evidence on either of several issues presented.</p>

<p>1. Receivers—Appointment Before Filing.</p> <p>Under art. 1465, Rev. Stats., authorizing appointment of receivers in an “action between partners” there is no action and can be no appointment until the petition is filed.</p> <p>2. Same—Appointment Without Notice.</p> <p>Except in extreme cases where an emergency is shown, a receiver may not be appointed without notice to the adverse party.'</p> <p>3. Partnership—Grounds for Appointment—Receiver.</p> <p>The appointment of a receiver for a partnership is not authorized by the statute in all cases, but only in accordance with the principles and practice of equity. The petition should show that the property can be managed and preserved more advantageously by the court than by the parties, and some abuse of the partnership rights and property and violation of partnership duties.</p> <p>4. Same— Affidavit.</p> <p>An affidavit by plaintiff’s attorney that since the petition was presented defendant has disposed of some of the notes to secure his individual indebtedness, can not be considered as a part of the pleadings.</p> <p>5. Injunction—Appeal:</p> <p>The Court of Civil Appeals has no jurisdiction by an appeal from an interlocutory order refusing to dissolve an injunction.</p>

<p>1. Passenger—Direction to Jump from Train—Employe—Evidence.</p> <p>See opinion for evidence held insufficient to show that the person who directed plaintiff, a passenger carried past her station, to jump from train was an employe-of defendant, and under which that hypothesis should not have been submitted, but should have been withdrawn.</p> <p>3. Carrying Past Station—Charge.</p> <p>When a passenger was injured in disembarking from a train stopped for that purpose after she had been carried past her station—the evidence conflicting as to whether the train stopped at such station and how long—it was improper to charge that the carrier would be liable for such injuries if it carried plaintiff beyond her destination and put her off the train at an unusual stopping place.</p> <p>3. Damages—Injury to Wife—Mental Suffering of Husband—Charge.</p> <p>Where the charge on measure of damages was meager, an instruction that a husband suing for injuries to his wife could not recover damages for his own mental suffering therefrom should have been given on request.</p> <p>4. Passenger—Place to Alight—Degree of Care—Charge.</p> <p>A carrier is not bound to furnish the passenger an absolutely safe place to alight, even at station.</p> <p>5. Same.</p> <p>Where the injury was received in jumping from the cars to the ground at direction of another, the safety of the place for disembarking is only incidentally involved, the carrier being liable only in case the direction was given by its servant.</p>

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

<p>Corporation—Insolvency—Attachment.</p> <p>A preference lien may be acquired by attachment ran the assets of a corporation which has not immediately ceased business, although it is insolvent and its president contemplates an assignment for the benefit of all its creditors.</p>

<p>Negotiable Notes—Innocent Purchaser—Lien.</p> <p>An innocent purchaser of notes given for the purchase price of land is entitled to have a lien on the land, although the purchaser gave new notes to the vendor for the same amount on the representation by the latter that he had lost the original notes, and subsequently paid the new notes.</p>

<p>Appeal from Dallas. Tried below before Hon. W. J. W. Smith.</p>

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

<p>1. Charge of Court—Measure of Damages—Harmless Error.</p> <p>An erroneous instruction as to nominal damages for libel is not prejudicial, where the jury properly found that the plaintiff had no cause of action.</p> <p>2. Malicious Prosecution as a Cause of Action.</p> <p>No recovery can be had for malicious prosecution where the prosecution is still pending.</p> <p>3. New Trial—New Evidence—Malicious Prosecution.</p> <p>A new trial on the ground of newly discovered evidence will not be granted plaintiff in an action for malicious prosecution, because the objection existing at the time of the first trial,—that the prosecution had not ended,—has been removed by the plaintiff’s acquittal of the charge.</p> <p>ON REHEARING.</p> <p>4. Malicious Prosecution—Termination of Prosecution, What is.</p> <p>The failure of the grand jury to return an indictment at the first term of the court after the affidavit was made, is not such a disposition of the prosecution instituted by the affidavit as will support an action for malicious prosecution, as the prosecution may be revived at a subsequent term.</p> <p>5. Limitations—Malicious Prosecution.</p> <p>The statute of limitations does not commence to run against an action for malicious prosecution until the prosecution has ended.</p>

<p>1. Homestead—Mortgage—Declarations Denying Homestead Right.</p> <p>No declaration by a husband and wife, or either, that premises actually occupied by them are not their homestead will make a trust deed to secure money borrowed by them valid, where it is in fact their homestead.</p> <p>3. Same—Abandonment—Living Upon Rented Premises Temporarily.</p> <p>One does not forfeit his right to an established homestead, the use of which has been temporarily abandoned, by merely living on rented premises.</p>

<p>1. Continuance—Diligence.</p> <p>A continuance for the absence of witnesses is properly refused, for want of diligence, where the subpoena for such witnesses was issued at the instance of another defendant, who filed no .answer.</p> <p>3. Same—Sufficiency of Application—Statement of Conclusions.</p> <p>An application for a continuance on account of absent witnesses which simply states that the applicant expects to prove by them that the debt sued on was'fraudulent and simulated, without stating the facts expected to be proved by them, is insufficient.</p> <p>3. Evidence—Exclusion—Failure to Show Materiality.</p> <p>It was not error to refuse to admit books in evidence where, when they were tendered, there was no showing that material evidence was contained in them.</p> <p>4. Mortgage—Future Advances—Priority.</p> <p>A duly recorded mortgage on land for future advances takes priority over subsequent conveyances and incumbrances.</p> <p>5. Promissory Notes—Renewal—Effect on Lien.</p> <p>The validity of a mortgage lien is not affected by the renewal of the notes secured by the mortgage.</p> <p>6. Deed of Trust—Effect of Insufficient Provision for Notice of Sale.</p> <p>A provision in a deed of trust that only one notice of sale need be published for ten days does not affect the validity of such deed of trust, but only the power of sale sought to be conferred.</p> <p>7. Execution Sale—Credit on Judgment—Estoppel.</p> <p>An execution creditor who purchases the land at execution sale cannot claim that the judgment under which the sale was made is not entitled to a credit for the amount of his bid.</p> <p>8. Abstract of Judgment—Sufficiency.</p> <p>A judgment is not a lien on land, where the recorded abstract thereof merely shows the amount for which it was rendered, if the judgment was entitled to a credit from an execution sale at the time the abstract was filed. Revised Statutes, 1895, art. 3285.</p>

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

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

<p>Appeal from Johnson. Tried below hefore'Hon. J. M. Hall.</p>

<p>1. Statute Making Actions for Personal Injuries Survive Not Retroactive.</p> <p>The act of May 4, 1895, providing that actions for personal injuries other than those resulting in death shall not abate because of the plaintiff’s death, or that of the party liable, applies to a ease where the injury occurred prior to the act, and the plaintiff’s death subsequent thereto, and is not retroacting in such application.</p> <p>2. Pleading—Capacity in Which Plaintiff Sues—Surviving Widow— Necessary Allegations.</p> <p>Where plaintiff brought suit for personal injuries that occurred before his marriage, and died pending the action, his wife could not prosecute the suit as surviving widow, the damages not being community property, and her allegation that she was his only heir and legal represntative was not sufficient, in the absence of an averment that there was no administration on his estate and no neccessity for any.</p> <p>3. Negligence—Charge of Court—Railway Company.</p> <p>Failure of the operatives of a railroad engine to ring the bell and blow the whistle when approaching a public crossing, as required by statute, is negligence per se, and the court may so instruct.</p>

<p>Railway Company—Guaranteed Charges—Through Rates.</p> <p>Where goods were shipped on a guaranteed through freight rate, but were sold by the shippers en route and the delivery changed accordingly, without the consent of the initial line, and while they were in the hands of connecting lines, the shippers, who had intended to sell en route and to so change the delivery to meet their own convenience, and who had been compelled, after the shipment, to pay more than the agreed rate, are entitled to recover back from the initial carrier only the difference between the amount received by it and the proportion it would have received had the goods been originally billed to the points where they were delivered.</p>

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

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

<p>Appeal from the County Court of Hunt. Tided below before Hon. W. H. Ragsdale.</p>

<p>1. Official Bonds—Liability of Sureties—County Judge—School Fund.</p> <p>The sureties on the official bond of a county judge are not liable for his misappropriation of the proceeds of county school lands sold by him under authority and order of the Commissioners Court made and given after the execution of the bonds.</p> <p>2. Same—Report of Moneys—Statute Construed.</p> <p>Article 846, Rev. Stats., 1895, requiring all officers who collect money belonging to a county to report the same in writing to the county clerk, relates merely to moneys collected by officers in their official capacity, and does not render the sureties on an official bond liable for moneys collected by the officer not acting in his official capacity.</p>