Volume 17 — Texas Civil Appeals Reports

<p>Fees of City Attorney in State Cases.</p> <p>A city attorney is not entitled to recover fees for representing the State in a criminal prosecution, unless he makes it appear that he was entitled to represent the State because there was no county attorney in the county.</p>

<p>1. Mutual Benefit Insurance—Suspension of Member—Tender of Dues— Action for Damages.</p> <p>A suspended member of a fraternal order can not maintain an action for damages because of the refusal by the local collector of a tender of the dues for which he was in default, under the erroneous impression that the time for reinstatement had expired, where the collector upon learning of his mistake a few hours afterwards, and before the expiration of the time for reinstatement, offered to accept the money, promising that a reinstatement would follow immediately, which offer the suspended member refused to accept.</p> <p>Z. Same—Same—Same—Sufficiency.</p> <p>That the amount tendered by a suspended member of a fraternal order to the local collector to procure his reinstatement under the laws of the order was in fact insufficient, does not deprive him of the right to be reinstated if the tender was otherwise sufficient, where both supposed that the amount was sufficient, and the tender was refused under the mistaken belief of the collector that the time for reinstatement had expired.</p>

<p>"Variance—Sale Alleged and Consignment Proved.</p> <p>An action for the value of goods sold to defendant at her special instance and request is not sustained by evidence that the goods were delivered to defendant under a consignment, with an agreement by her to sell the goods and account to plaintiff for the proceeds, with the further stipulation that for such of the goods as remain unsold at a specified time defendant would settle by giving her secured notes.</p>

<p>Appeal from Washington. Tried, below before Hon. E. R. Sinks.</p>

<p>1. Trespass to Try Title—Pleading—Petition.</p> <p>In trespass to try title, where the petition contains all the statutory allegations, it is not subject to exception.</p> <p>3. Evidence—Action for School Land—Application to Purchase.</p> <p>An application by plaintiff for the purchase of a part of a section of school land is admissible in evidence in an action to recover such land, where it is the basis of his title.</p> <p>3. Same—Same—Same.</p> <p>In an action to recover the east half of a section of school land, an application by plaintiff for the purchase of the west half of such section, upon which he had settled, is admissible to show his right to such west half, and his right resulting therefrom to purchase the east half.</p> <p>4. School Land—Application to Purchase— Abandonment.</p> <p>An application for the purchase of school land under which the applicant acquires the superior right to purchase such land, is not available to him as against a subsequent applicant, where he voluntarily abandons his application before perfecting his right thereunder by paying .for the land.</p> <p>5. Deed—“Bight, Title, and Interest”—Warranty—Construction.</p> <p>A deed conveying the grantor’s right, title, and interest in land, with a warranty that neither “I, nor my heirs, nor any person claiming under me, shall at any time claim any right or title therein,” does not give the grantee any right under a title subsequently acquired by the grantor.</p> <p>6. School Land—Settlement—Right to Purchase.</p> <p>A settlement upon any part of a section of school land entitles the settler to purchase all or any part of the section.</p> <p>7. Same—Same—Death of Applicant—Extension of Time to Heirs.</p> <p>The provision of the statute allowing the children of an applicant for school land, who has settled thereon, one year’s time in which to pay for the land after the applicant’s death, is not brought into play by the death of the wife of such applicant.</p>

<p>Appeal from Smith.. Tried below before Hon. Gordon Russell.</p>

<p>1. Registration—Certificate of Acknowledgment Defective.</p> <p>A certificate of acknowledgment wkich states merely the appearance of the grantor, and that he signed his name to the instrument, without stating that he acknowledged such fact to the officer, or otherwise showing how the officer learned such fact, is insufficient under the statute, which provides that the acknowledgment of an instrument for the purpose of being recorded shall be by the grantor appearing before the officer and stating that he had executed the same, and that the officer shall take such acknowledgment and make a certificate thereof. Following McDaniel v. Needham, 61 Texas, 269.</p> <p>2. Presumption—Certificate of Acknowledgment. -</p> <p>A defective certificate to the acknowledgment of a conveyance can not be aided by a presumption of acknowledgment from lapse of time.</p> <p>3. Secondary Evidence—Copy of Defectively Recorded Deed. ,</p> <p>Copies of the record of a deed may be admissible as common law evidence, where a proper foundation is laid for secondary evidence, although the certificate of acknowledgment of the deed was insufficient to entitle it to be recorded.</p> <p>4. Deed-—Evidence of Defective Recording as Proof of Delivery.</p> <p>That a deed was recorded in the counties where-the land was situated is. admissible as a circumstance for the consideration of the jury on an issue as to the delivery of the deed, although the record is ineffectual because of a defect in the certificate of acknowledgment. ' ‘ "</p> <p>5. Evidence—Ancient Instrument—Custody.</p> <p>A deed coming from the custody of the heirs of the grantor is not admissible as'an ancient instrument in favor of those asserting title thereunder.</p> <p>6. Practice on Appeal—Brief.</p> <p>A brief which complains of rulings excluding portions of, a deposition, merely referring to several bills of exceptions in the record for the evidence excluded, does not sufficiently comply with the rules, ' '</p> <p>7. Judicial Notice—Law of Situs of Heal Estate.</p> <p>The courts will take judicial notice that the courts of another State can not administer real estate situated in the former State, and no evidence to that effect is necessary.</p> <p>8. Deposition—Answer Not Responsive—Pertinent Matter.</p> <p>An objection by plaintiffs to parts of a defendant’s answer in a deposition taken by plaintiff, because such parts were not responsive to the questions, is not necessarily tenable, as under the statute the party has the right to state in answer any facts “connected with the cause and pertinent to the issue to be tried.</p> <p>9. Same—Hearsay.</p> <p>Statements in a deposition by a" party with reference to facts occurring before her birth, or to the effect that a deed executed by another person before her birth was never delivered to the grantee and was never in his possession, are hearsay and inadmissible.</p>

<p>Error from Clay. Tried below before Hon. George E. Miller.</p>

<p>1. Public Lands—Settlement—Evidence of Intention.</p> <p>An unmarried man who carries with him to certain school land bedding and provisions, a heating stove, provender for his horses, a wagon bed, covered and made stationary to lodge in, and incloses the land with a barbed-wire fence, manifests a sufficient intention to become a bona fide settler thereon to entitle him to purchase the land as an actual settler under the Texas statute, if his subsequent conduct is in keeping with the purpose so manifested.</p> <p>2. Same—Same—Lease—Cancellation.</p> <p>One who has procured the cancellation of a lease of school land and the return of the unearned lease price, under the unfounded claim that he has a right to the land, under his purchase as an actual settler on other land, can not, in a controversy between him and a subsequent actual settler on such land, claim that the latter had acquired no right to purchase as an actual settler because the land was under lease.</p> <p>3. Same—Same—Question for Jury.</p> <p>Whether or not one is an actual settler on school land, so as to entitle him to purchase the same, is a question of fact for the jury.</p>

<p>Judgment for Tort—Execution—Husband and Wife—Separate Estate.</p> <p>An execution on a judgment against husband and wife in favor of a cotenant for rents of land of which he had been deprived by a wrongful ouster may be levied on the separate estate of the wife, although the judgment does not specifically award execution against such estate, as the judgment is for tort, and may follow the usual form of judgment against tort-feasors.</p>

<p>Appeal from Tarrant. Tried below before Hon. Irby Dunklin.</p>

<p>Cost Bond—Time for Giving—Dismissal of Action.</p> <p>An action should not be dismissed for the failure of plaintiff to give a new cost bond on the insolvency of the original surety, Where a new bond which is sufficient is tendered after the motion is made to dismiss, but before it has been acted upon.</p>

<p>1. Verdict-Evidence Sustaining—Personal Injuries.</p> <p>A verdict in an action for personal injuries, sustained by evidence of plaintiff, who was the only eye-witness of the accident, will not be disturbed on appeal.</p> <p>2. Practice on Appeal— Statement of Brief Not Sustained by Record.</p> <p>A contention in appellant’s brief that certain charges were conflicting will not be "considered, where there is no such conflict in the instructions as copied in the transcript.</p> <p>3. Charge of Court—Requested Instruction Properly Refused.</p> <p>A requested instruction which, in so far as it is correct, is covered by the charges given, is properly refused.</p> <p>4. Evidence—Self-Serving Declarations—Credibility of Witness.</p> <p>Statements which would otherwise be self-serving are admissible when offered to sustain the credibility of a witness whose character has been attacked by proof of conflicting statements.</p>

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

<p>1. Damages—Ejection of Passenger—Humiliation—Evidence.</p> <p>In support of a claim of a passenger to recover damages for the “humiliation” from being wrongfully refused transportation, it was not proper to permit proof that some time afterwards a third person had “guyed” plaintiff about being put ofE the train.</p> <p>2. Argument of Counsel.</p> <p>Comment by plaintiff’s counsel upon the appearance and demeanor of the defendant’s conductor, who had put plaintiff off the train, but who was not a witness nor before the jury, was improper, and under the evidence in this case, the verdict appearing too large, could not be held to be harmless. . •. .</p> <p>3. Charge—Exemplary Damages.</p> <p>There was no error in refusing an instruction requested by defendant on the subject of exemplary damages where only actual damages were claimed by the pleadings or allowed by the court.</p> <p>4i Passenger—Contract—Ticket Hot Conclusive.</p> <p>The ticket or pass, its form being prescribed by the carrier, does not in all cases determine the passenger’s right to transportation nor prevent an inquiry into the actual contract between him and the carrier’s agent.</p> <p>5. Passenger—Reducing Damages by Payment of Pare.</p> <p>A passenger who has entered into a contract entitling him to transportation can rest on his rights under such contract, and is not required to pay fare again in order to lessen the damages occasioned by ejection from the train .in violation of his rights under the original contract.</p>

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

<p>1. Pleading—Statute of Frauds.</p> <p>Demurrer does not lie to a pleading because setting up a contract required by the statute of frauds to be in writing, without alleging it to be a written contract. It is sufficient in pleading to allege the contract, without stating whether it was oral or written.</p> <p>2. Same—Harmless Error.</p> <p>The overruling of exceptions to certain allegations in a pleading becomes immaterial where no evidence in support of such allegations was offered on the trial.</p> <p>3. Innocent Purchaser.</p> <p>Where the consideration of a conveyance of land has wholly failed, a purchaser from the vendee, to defeat the vendor’s right to cancellation, must show that he bought without notice thereof and paid a valuable consideration.</p> <p>4. Same—Trial by Court.</p> <p>Upon trial by the court without filing conclusions of fact, a decision adverse to the claim as innocent purchaser will be sustained if such ruling can be justified by insufficiency of proof either as to consideration or as to want of notice.</p> <p>5. Same—Consideration—Evidence—Evasion of Interrogatories.</p> <p>A finding against the claim of payment of a valuable consideration will be sustained where, though testifying generally to such payment, the party in his depositions repeatedly evades answer to cross-interrogatories as to the particulars of such alleged payment.</p> <p>6. Same—Notice—Possession—Inquiry.</p> <p>Though the possession of premises by a vendor after the record of a conveyance by him to another is not notice of title in him, yet, where the purchaser receives information putting him upon inquiry, which he declines to pursue, a finding against his claim to be an innocent purchaser will be sustained. See opinion for facts justifying finding of notice upon such ground.</p> <p>7. Notice—Deed—Absence of Warranty.</p> <p>The fact that a deed, though more than a quitclaim, contains no warranty, is a circumstance to be considered on the issue of the vendee’s claim to be an innocent purchaser.</p>

<p>1. Pleading—Hon Ést Factum—Want of Consideration.</p> <p>In the absence of a plea and affidavit denying the legal execution or impeaching the consideration of the vendor’s lien notes sued on, evidence was not admissible to show that they had never been delivered to the payee named, nor to defeat the recorded vendor’s lien reserved in them by showing that the notes were not given, as they purported to be, for purchase money.</p> <p>2. Same.</p> <p>M. .conveyed land to S., who reconveyed it by deed, reserving a lien for several notes payable to bearer and purporting to be for purchase money. Defendant, who purchased from M. after record of the lien, to a suit for foreclosure pleaded only general denial and innocent purchaser. Under such answer he could not show that the notes sued on were never delivered to S. and were not given for the purchase money, but were delivered to other parties, and were for prior debts of M. sought to be secured under the form of a sale to S. and reconveyance by him, with reservation of lien.</p>

<p>1. Railway Crossing—Negligence—Looking for Train.</p> <p>The law can not determine when or how often one approaching a crossing must look for trains, and when the evidence shows that he looked but once, and that at a point where the view of the approaching train was obstrpcted, there being other points in the approach from which it might have been seen, it might be his duty to look more than once.</p> <p>2. Same—New Trial—Newly Discovered Evidence.</p> <p>Under such state of proof, newly discovered evidence tending to show that plaintiff went upon the crossing without looking for the approaching train was material and entitled defendant to a new trial.</p> <p>3. Evidence—Habit to Prove Particular Pact.</p> <p>It was improper to permit one who had testified that he looked for the approaching train to testify also that he was in the habit of doing so.</p> <p>4. Damages—Evidence that Injured Person Had a Family.</p> <p>Proof that plaintiff, suing for persona] injuries, had a wife and children, was inadmissible, but the error was not necessarily material.</p> <p>5. Deposition of Party—Interrogatories Taken as Confessed.</p> <p>A party, interrogatories to whom have been taken as confessed upon his refusal to answer, may avoid the effect of such confession by showing good reason for his refusal; but he can not, without so doing, testify in contradiction of the facts so confessed.</p> <p>6. Negligence—Pleading.</p> <p>Defendant’s negligence in failing to discover plaintiff’s danger and avoid collision with him at a crossing should not be submitted in the absence of pleadings by plaintiff presenting such issue.</p> <p>7. Railway Company—Charge—Duty of Plaintiff.</p> <p>See charge as to diligence required of plaintiff in approaching a railroad crossing, held subject to criticism as tending to relieve him from any obligation to listen, in case the view of the crossing was obstructed.</p> <p>8. Argument of Counsel.</p> <p>Counsel cautioned against indulging in improper course of argument before juries.</p> <p>9. Railway Crossing—Charge—Defendant’s Negligence as Excusing Plaintiff’s.</p> <p>The omission of statutory signals for a crossing by defendant will not relieve plaintiff from the duty to exercise care. But see charge as to throwing plaintiff off his guard by such omission, held not subject to criticism on this ground.</p> <p>10. Jury—Viewing the Ground.</p> <p>The jury should not be permitted, except under the direction of the court and in the presence of parties or counsel, to personally inspect the scene of the accident.</p>

<p>1. Contested Election—Evidence—Mistake in Ballot.</p> <p>Evidence that the middle initial oí the name of a candidate for office as it appeared on the printed ballot was used by mistake, instead of the proper initial, is admissible in a contest over the office, against the objection that paroi testimony should not be admitted to vary or contradict the plain and unambiguous terms of the ballot, such mistake being alleged in the pleadings.</p> <p>3. Same—Secrecy of Ballot.</p> <p>The offer in a suit to recover an office, to identify the voters by the introduction of the numbers of the tickets and the poll list containing corresponding numbers, should be restricted to the votes alleged to have been illegally cast, as there is no necessity for removing the secrecy of the ballot from the other votes".</p> <p>3. Same—Primary Evidence Not Requisite, When.</p> <p>A witness who, in the presence of the jury, has counted the ballots cast for an office, which are numerous, may testify as to how many of the ballots had a certain name written thereon in pencil, as, -where the evidence is the result of the examination of numerous papers, the rule requiring primary proof will be relaxed.</p> <p>4. Same—Burden of Proof.</p> <p>The burden of proof is upon plaintiff in an action to recover an office from the rival candidate, who was declared elected, to establish that the latter is unlawfully in the possession of the office.</p> <p>5. Same—Presumption Not Overcome.</p> <p>The presumption that 1000 or more voters out of a total of 3700, who cast ballots upon which by mistake a wrong middle initial in the name of a candidate for county judge was printed, intended to vote for such candidate, arising from the fact that he was the only candidate for the office having that surname, is not overcome by evidence that his brother, whose initials exactly corresponded to those printed in the defective ballots, resided in the county, and -was more widely and perhaps more favorably known than the candidate, it appearing that the brother was not admitted to the bar until after the election, and was not a candidate.</p>

<p>1. TaxeS—Collection by Suit—Delinquent Record.</p> <p>The delinquent tax record, as prepared by the comptroller, is not a prerequisite for proceedings to enforce the collection of taxes due and delinquent after the passage of the Act of 1895, p. 50, providing in section 10 for the collection of future delinquent taxes.</p> <p>3. Same—Statutes Not in Conflict.</p> <p>The provisions of chapter 5a of the Revised Statutes of 1895, relating to the collection of back taxes, do not nullify the provisions of chapter 4, providing for the collection of taxes generally.</p> <p>3. Same—County Taxes Delinquent Collectible by State.</p> <p>Delinquent taxes due the county, as well as those due the State, may be recovered in an action by the State under chapter 5a, Revised Statutes, referring to both State and county taxes, in providing, in section 6, that the suit shall be filed in the name of the State.</p> <p>4. Same—Separate Tracts All Liable Together.</p> <p>Different tracts of land may be ordered sold to pay a lump sum due for delinquent taxes, under articles 5232f, 5232j, Revised Statutes, authorizing such foreclosure, since section 15, article 8, of the Constitution, makes the annual assessment of landed property a special lien thereon, and provides that all the property of a delinquent taxpayer shall be liable to sale for payment of all taxes and penalties due by him.</p> <p>5. Same—Delinquent Tax Statute Constitutional.</p> <p>Section 13, article 8, of the State Constitution,, requiring that provision shall be made by the Legislature for the speedy sale of a sufficient portion of all lands and other property for the taxes due thereon, is not infringed by articles 5232f and 5232j of the Revised Statutes, authorizing a- foreclosure on several tracts of land to pay a lump sum due for delinquent taxes on all of them, and giving the taxpayer the right, in article 5232g, to require the sheriff to sell each tract separately.</p> <p>6. Same—Federal Constitution Not Violated.</p> <p>The provision of the statute for the addition of costs and penalties in case of a sale of land for delinquent taxes, applying to all citizens alike, does not. violate the fourteenth amendment of the Federal Constitution, securing to every citizen equality before the law.</p> <p>7. Same—Writ of Possession Not Awarded.</p> <p>The provision of article 1341 of the Revised Statutes .that the order of sale shall have the force and effect of a writ of possession, as between the parties, and the sheriff shall place the purchaser in possession within thirty days after the sale, does not apply to a foreclosure sale of land for delinquent taxes under a statute' giving the owner two years to redeem from the sale by paying double the amount paid on the tax sale.</p> <p>8. Same—Possession Pending Redemption.</p> <p>The owner of land sold for delinquent taxes is entitled to possession during the two years allowed him for redemption under the statute.</p> <p>9. Practice on Appeal—Admission in Record.</p> <p>An admission in the statement of facts in an action to foreclose delinquent taxes, that “defendant had notice of said raise in valuation,” will, in the absence of anything to the contrary, be taken to mean that he had had due notice as provided by law.</p>

<p>Appeal from Mason. Tried below before Hon. W. M. Allison.</p>

<p>1. Common Carrier—Negligence in Delivering Goods to Wrong Person.</p> <p>Where a common carrier, such as an express company, delivers goods to a wrong person, who assumes the name of the consignee, without other identification than the statements of such person, and his exhibit of letters, telegrams, etc., addressed to that name, it is liable to the shipper for the value of the goods.</p> <p>2. Same—Liability as at Common Law.</p> <p>A common carrier’s liability in Texas is determined by the common law rule making the carrier liable as an insurer for the goods, where the goods are shipped from one point to another within the State.</p> <p>3. Same—Common Law Liability Can Not Be Limited.</p> <p>A stipulation in the contract of a carrier for an interstate shipment, limiting its common law liability for the full value of the goods in case of loss, however reasonable, is invalid under article 320, Revised Statutes, providing that common- carriers of goods entirely within the body of the State shall not limit .or restrict their liability as it exists at common law in any manner whatever.</p> <p>4. Same—Estoppel Not Pleaded.</p> <p>A carrier can not avail itself of an estoppel against a shipper to recover the full value of goods delivered to the wrong person, on the ground that the shipper un: derstated the value and thereby procured a lower rate, under a plea setting up a provision of the contract (which was void because in contravention of the statute) restricting the liability for loss to a specified sum unless the true value was stated, and providing that such sum was the value agreed upon as the basis of freight charges.</p>

<p>1. Constitutional Law—Killing Animals Diseased With Glanders.</p> <p>The provisions. of the Revised Statutes of 1895,- articles 4931-4934, for condemning, appraising, and killing certain animals on a finding by three disinterested citizens of the county that they are diseased with glanders, are a valid exercise of the public power, and are not in violation of section 19, article 1, of the State Constitution, nor of section 1 of the. fourteenth amendment of the Federal Constitution, re-, quiring due course and process of law.</p> <p>2. Same—Payment by County.</p> <p>Article 4934 of the Revised Statutes of 1895, providing for payment by counties of the value of diseased animals which have been condemned and killed, does not violate sections 51 and- 52, article 3, of -the State Constitution, providing that the Legislature shall have no power to grant or authorize the making of any grant of public money to any individual, or authorize any county to grant public money or thing of value in aid of or to any individual.</p>

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

<p>Error from Delta. Tried below before Hon. Howard Templeton.</p>

<p>Appeal from Lamar. Tried below before Hon. E. D. McClellan.</p>

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

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

<p>1. Common Source of Title—Community Property.</p> <p>Where the evidence in trespass to try title showed the common source of title in a married woman, holding the legal title, and through whose will both parties claimed, defendants could not avoid this proof of common source by showing that the title was acquired during coverture and so was presumptively community property, and that the married woman left a husband surviving, since this showed only an equitable title outstanding, with which defendants did not connect themselves.</p> <p>2. Probate Sale—Description of Land.</p> <p>Where, in an application for a probate sale of land, and in the order of sale, the land is described as “an undivided interest of 75 acres in and to the 320-acre James De Armón survey,” fully and accurately describing the 320 acres, this is a sufficient description.</p> <p>3. Probate Records—Entry on Judge’s Docket Only.</p> <p>The provisions of article 1853, Revised Statutes of 1895, declaring every probate order a nullity unless entered of record, does not invalidate an order entered alone on the judge’s probate docket, and not carried into the minutes, since article 1845 designates such docket as a record book.</p>

<p>1. Receivership—Waiver of Right of Creditor to Demand.</p> <p>A creditor of a corporation who, after learning of the transfer of the assets of a coi'poration to certain stockholders - and directors, and knowing that they, as a firm, are exercising dominion over such assets as owners, and not as directors, accepts the firm as payors of the debt due him, thereby loses his right to have a receiver of the corporate assets appointed.</p> <p>2. Same—Estoppel Against Creditor—Fraudulent Transfer.</p> <p>A creditor of a corporation who, with knowledge of the facts, accepts as payor of the debt due him a firm composed of certain directors of the corporation to whom the corporate assets have been transferred, can not afterwards set up that such transfer was fraudulent as to creditors as a ground for obtaining the appointment of a receiver for the assets.</p> <p>3. Judgment for Debt Hot Authorized in Action for Receivership, Without Prayer.</p> <p>A creditor of a corporation is not entitled, in an action for the appointment of a receiver of the corporate property, to a judgment for the amount of a debt claimed by him, in the absence of a prayer for judgment for debts, where no grounds for the appointment of a receiver exist.</p>

<p>Appear from Aransas. Tried below before Hon. M. F. Lowe.</p>

<p>Costs in Quo Warranto Cases.</p> <p>Costs are properly awarded against the relator in a proceeding in the nature of quo warranta to assert his right to an office instead of against the State, where the respondent proves successful. Articles 1425, 1438, 1439, Revised Statutes of 1895, construed.</p>

<p>1. Written Instrument—Parol Evidence Varying.</p> <p>Parol evidence is not admissible to vary the terms of a contract for the hiring of county convicts as set out in the bond given to the county, and which purports to set out the entire contract between the parties.</p> <p>2. County Convicts—Hiring.</p> <p>The county officers have no power under the statute to hire out convicts who are able and ready to pay their fines, or to empower a contractor for their services to receive the fines paid by them to secure their discharge.</p> <p>3. Same—Rescission of Contract of Hiring.</p> <p>A county may rescind its contract of hiring out county convicts, where the contractor fails to pay the installments of the contract price at the times specified in the contract, and sets up as a reason for such refusal a different contract, which, if made, would be void.</p> <p>4. Damages—Measure of, for Breach of Contract.</p> <p>No proper basis for estimating the proximate loss from a county’s breach of its contract for hiring out county convicts is furnished by evidence that the contractor, in consequence of losing the services of the convicts, lost a specified sum in being forced to sell his plantation at a reduced figure, and that the land cultivated by him during the first year of the contract with the labor of the convicts, and in the raw state, produced a certain number of bales of cotton, and in the next year, after the breach of the contract, produced a greater number of bales worth a specified amount per bale.</p> <p>5. Verdict—Res Judicata.</p> <p>A verdict which responds to all the issues submitted to the jury by the court in legal effect disposes of a separate item claimed by plaintiff and a claim by defendant in reconvention for damages, though neither of these claims was submitted to the jury because the evidence to sustain them was insufficient.</p> <p>6. Practice on Appeal.</p> <p>An objection based on a discrepancy in the names of a person in different parts of the petition can not be raised for the first time on appeal.</p> <p>7. County Convicts—Hiring—Liability of Hirer.</p> <p>An employer of convicts under a contract with the county is liable for the hire of convicts who escape up to the time of the rescission of the contract by the county. or for the time which would have been required to discharge the fines charged against such convicts had they remained at labor, where the right to recapture was not interfered with by any wrongful act of the county.</p>

<p>Trespass to Try Title—Nnsurveyed Homestead Application.</p> <p>An application for a homestead donation of public land, upon which no survey has been made, is insufficient to sustain an action of trespass to try title. Article 5259, Revised Statutes of 1895, construed, and Taylor v. Hubbard, 21 Southwestern Reporter, 241, distinguished.</p>

<p>Appeal from the County Court of Galveston. Tried below before Hon. Morgan M. Mann.</p>

<p>1. Landlord and Tenant—Holding Over.</p> <p>Merely holding over for a few days after the expiration of a lease for a year does not constitute an election under the option for an additional term of one or of two years, where, just before the expiration of the term, the lessee notified the lessor that it would not lease for the additional term of two years, and was prevented from, surrendering promptly ,by the failure of its subtenants to vacate in obedience to its direction; and the tenancy created by the holding over is merely for a year.</p> <p>2. Judgment—Bes Judicata.</p> <p>A judgment for rent for months subsequent to the expiration of the original term of a lease and to the surrender of the premises by the lessee is res judicata as to the existence of a new tenancy by reason of alleged holding over by a subtenant after the expiration of the original term, but it is not necessarily conclusive that the holding over was an exercise of an option reserved by the original lease for an additional term of two years, where the lease also gave an option for a term of one year.</p>

<p>1. Quo Warranto—Power of Officer Not Proper Subject.</p> <p>The extent of the powers of a justice of the peace legally appointed for a given precinct, and the extent of the territory over which his jurisdiction extends, arising from a change in the boundary line between two precincts, can not be tried by quo warranta.</p> <p>3. Counties—Justice Precincts—Power of Commissioners Court.</p> <p>The County Commissioners Court is authorized" by the Constitution, article 5, section 18, without any legislation, to divide a county into justice precincts.</p> <p>3. Justice of the Peace—Precincts—Alterations.</p> <p>A justice precinct may be altered at any time, either within or at the close of his term. The justice holds his office subject to such changes.</p> <p>4. Justice Precincts—Changes—Special Term of Commissioners Court.</p> <p>It is no objection to the validity of an order changing the justice precincts of a county that it was made.at a special term of the Commissioners Court.</p>

<p>1. Appeal—Cross-Assignments—Different Causes of Action.</p> <p>Defendants can not have a judgment for plaintiff upon his first cause of action reviewed by filing cross-assignments upon plaintiff's appeal from a judgment dismissing his second cause of action on defendants’ plea of privilege.</p> <p>2. Jurisdiction—Joinder—Plea of Privilege.</p> <p>The jurisdiction of a district court over one of the causes of action set up by plaintiff does not confer jurisdiction as to another cause of action, properly joined with the first cause, but as to which the defendants have the privilege of being sued in the county of their residence.</p>

<p>1. Execution Issued After Death.</p> <p>The clerk has no authority to issue an execution on a judgment after the death of the judgment debtor, where the judgment was rendered before his death; and the sale and sheriff’s deed thereunder are void.</p> <p>2. Limitations Against Remainderman.</p> <p>The statute of limitations does not begin to run against remainderman until after the death of the life tenant.</p>

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

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

<p>1. Estoppel in Pais—Homestead—Sale.</p> <p>A married woman who sues to recover land from one claiming under a deed from her, void for want of her separate acknowledgment, on the ground that the property was her homestead at the time of conveyance, is not estopped by her acts in pais, where no other homestead has been acquired.</p> <p>2. Homestead—Sale by Husband—Subsequent Divorce and Remarriage of Wife.</p> <p>The right of a married woman to assert a claim of homestead to property held by the defendant under a void deed from her is not affected by a divorce obtained by her subsequently to the conveyance or by her later marriage to a second husband, when she had not acquired another homestead prior to her divorce.</p> <p>3. Pleading—Abandonment of Homestead as Defense.</p> <p>Proof of abandonment of a homestead claim asserted by a wife against a purchaser of the property can afford no basis for a judgment when such defense was not pleaded.</p> <p>4. ' Same—Not Guilty—Special Defenses—Proof.</p> <p>A defendant in a suit brought by a wife against a purchaser to assert a homestead claim to the land, who, in addition to a plea of not guilty, sets up special defenses, is restricted to the latter.</p>

<p>1. Practice on Appeal—Assignment of Error.</p> <p>All appellant will not be confined on appeal to the reasons stated by him in an assignment of error to the giving of a particular instruction, as the only thing required in such assignment is to specify the particular instruction complained of.</p> <p>3. Charge of Court—Several Grounds of Recovery.</p> <p>Where the plaintiff in an action for personal injuries sets up several distinct acts of negligence, any one of which, if proved, would entitle him to recover, he is not required to prove them all; and a charge instructing that each and all of them must be proved is error.</p> <p>3. Same—Release.</p> <p>An instruction that a release by plaintiff in an action for personal injuries would not affect his right to recover, if such release was for his baggage only, is properly refused where the release states that plaintiff has relinquished all claims for damages for injuries either to his person or property.</p> <p>4. Practice in Trial Court—Jury Taking Out Papers.</p> <p>The prohibition of article 1303, Revised Statutes 1895, against the jury taking with them any part of a deposition, is not violated by permitting them to take eertain documents the execution of which has been proved by depositions, which documents constitute independent evidence, but had been attached to the interrogatories.</p>

<p>1. Range Levy—Stock in Pasture.</p> <p>A range levy is not justified, where the stock is confined in pastures under fence, the largest containing only 1280 acres.</p> <p>3. Illegal Levy—Quashal.</p> <p>A range levy upon stock should be quashed on motion, where it is illegal because the stock were not running at large in a range, but confined in pastures under fence.</p>

<p>Appeal from the County Court of Haskell. Tried below before Hon. J. M. ’Baldwin.</p>

<p>1. Taxation—Excessive Assessment—Fraud—Remedy.</p> <p>A taxpayer whose property has been fraudulently and corruptly fixed by the board of equalization at much more than its actual value, while the property of other taxpayers has been fixed at much less than its actual value, has a remedy in the courts of the State.</p> <p>2. Same—Board of Equalization—Power—Fraud.</p> <p>The act of the board of equalization in corruptly and fraudulently, raising the value of the property of one taxpayer far above its actual value, and in placing that of other taxpayers at much less than its actual value, is fraudulent and void, under the State Constitution, notwithstanding the statutory provision that the official acts of such board shall be final.</p> <p>3. Same—Fraud—Action.</p> <p>An action to set aside for fraud an order of the board of equalization raising the value of a taxpayer’s assessment far above its actual value, is the proper remedy where such action of the board was due to corrupt and fraudulent motives.</p>

<p>Appeal from Tarrant. Tried below before Hon. Irby Dunklin.</p>

<p>Appeal from Taylor. Tried below before Hon. T. H. Connee.</p>

<p>Appeal from Wise. Tried below before A. J. Booty, Esq., Special Judge.</p>

<p>Appeal from the County Court of Grayson. Tried below before Hon. J. H. Wood.</p>

<p>Trespass to Try Title—Venue—Jurisdiction.</p> <p>A defendant sued for the recovery of land in a county other than that in which the land is situated and in which he resides, should plead to the venue in proper form and time. Without answer, and on his oral suggestion of these facts, apparent on the record, it was error to refuse to give judgment by default and to dismiss plaintiff’s case for want of jurisdiction.</p>

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

<p>1. Judgment—Default—Record.</p> <p>A judgment against plaintiffs can not be attacked on appeal because taken by default and before appearance day, where the record shows by its recitals announcement for trial and judgment upon submission and hearing of evidence.</p> <p>8. New Trial—Excuse for Nonattendance.</p> <p>It is not cause for a new trial that plaintiff, a married woman, was detained in attendance upon her husband, a confirmed invalid, since a necessity for taking her deposition is thereby disclosed; nor was such detention an excuse where the motion fails to 'show that she was actually prevented thereby from starting in time; nor where the application shows that she stopped on her journey, without showing 'a necessity therefor; nor is it sufficient to show that she missed a train through misinformation as to its schedule time, without showing of whom she inquired and by whom she was so misinformed.</p>

<p>1. Trespass to Try Title—Administrator’s Sale—Fraud.,</p> <p>Defendant in trespass to try title,' under proper pleadings invoking the equity powers of the district court, may attack an administrator’s sale under which plaintiff claims, for fraud, as being in effect a sale by the administrator to himself, and by affecting the fraudulent purchaser with a trust compel him to hold the property for those entitled to it.</p> <p>3. Deed—Mutilated Record—Court and Jury.</p> <p>See opinion for mutilated record of a deed in evidence, held not sufficient to authorize the court to construe it as a conveyance of title, though sufficient, with other evidence, to be submitted to the jury.</p>

<p>1. Railway Crossings.</p> <p>it seems under the Act of 1885, Revised Statutes, article 4435, it should be held that the Legislature can authorize a highway to be laid out across a railway track "without compensation for the burden thereby imposed.</p> <p>2. Same—Highway Crossing by Prescription.</p> <p>See findings of Court under which it was held that a public highway, recognized and worked as such for twelve years or more, had been acquired by prescription prior to the construction of the railway across it, and the company was held liable for the maintenance of the crossing.</p>

<p>1. Interstate Commerce—Connecting Lines—Tariff.</p> <p>Where connecting carriers engaged in interstate transportation, though not agreeing on any joint tariff, establish and publish, in the manner prescribed by the statute governing interstate commerce, separate rates covering such transportation, a contract by either or both to carry the freight for either a less or a greater compensation than the established rate is unlawful, and their right and duty to collect the established rate continues.</p> <p>2. Same.</p> <p>Where the contract does not come within the operation of such statute, an initial carrier contracting for such through transportation at $52 would be bound by such contract, though its published rate was $25 and that of the connecting line $50 for then1 respective mileage. Such connecting line would then beXbound to make delivery on tender of the contract rate, it'being in excess of its own published tariff for its portion of the line, and the contract binding the initial carrier as to the remainder.</p> <p>3. Same—Tariffs—Evidence—Records of Commission.</p> <p>The records of the Interstate Commerce Commission not being within reach of the process of the State courts nor provable by certified copies, paroi evidence is admissible to show the filing of schedules of rates with such Commission and their contents.</p>

<p>Claim Bond—Surety—Judgment.</p> <p>A surety upon a statutory bond for a trial of the right of property becomes a party to the litigation, and the court can render judgment against him without having him served with citation or otherwise notified. A judgment rendered against him in such case in pursuance of an agreement not assented to by him and while he was not present or represented, is not void, and, if erroneous, his remedy was by appeal, not by injunction.</p>

Tried below before Hon. H. Teichmuelleb. Brown, who had bought the premises at foreclosure sale during the term of Leath’s lease from the mortgagor, sued for and sequestered the crops. Defendant had judgment for damages, and plaintiff appealed.

Tried below before Hon. W. A. Blackburn. For rulings in this ease on former appeal see Freeman v. McAninch, 6 Texas Civil Appeals, 644; same case on writ of error, 87 Texas, 132. For original suit, cause No. 1311, see McAninch v. Freeman, 69 Texas, 445.

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

<p>Taxation—Cattle—County Where Situated.</p> <p>Owners of cattle held on a ranch in R. County, owing to drouth, contracted with land owners in S. County for their pasturage there, and there kept them from October 1, 1893, to May 1, 1894, intending to move them back as soon as there was sufficent pasturage in R. County. Held, that the cattle were situated in S. County on January 1, 1894, within the meaning of section 11, article 10, of the Constitution, and subject to taxation there for the year 1894.</p>

<p>1. Vendor’s Lien Note—Innocent Purchaser,</p> <p>Though a note is not in fact given for the purchase money of land conveyed by the payee to the maker, yet if the note and conveyance recite that it was so given and secured by vendor’s lien, and it is bought by an innocent purchaser, before maturity, for a valuable consideration, such purchaser is entitled to enforce the lien against the purchaser of the property with constructive notice.</p> <p>3. Foreclosure—Pleading.</p> <p>When, in answer to a suit for foreclosure of a vendor’s lien, facts were alleged to disprove the assertion that the claim was for purchase money, and in a supplemental petition plaintiff pleaded facts showing an express contract lien, with prayer for general relief, he was entitled to a foreclosure of the contract lien, though not shown to be for purchase money.</p>

<p>1. Corporation—Increase of Stock—Statutory Provision.</p> <p>Article 576, Revised Statutes of 1879, provides that a corporation may increase its capital stock to any amount “not exceeding double the amount of its authorized capital,” and where a corporation increases its capital stock more than double its originally authorized capital, the increase is invalid, whether such increase is attempted to be made at one or more times. Following Kampman v. Tarver, 87 Texas, 497.</p> <p>2. Same—Contract With. Agent for Sale of Bonds—Presumption—Commissions Due.</p> <p>Where an agent who is employed to sell the bonds of a corporation is ignorant of their invalidity, he has the right to presume that they are valid; and if he find a purchaser able and willing to buy at a price and on terms satisfactory to the owner of the bonds, and the sale fails because of their invalidity, the agent is entitled to his commissions, though by his contract he is to be paid only if the sale is effected, and the money realized therefrom by the seller.</p> <p>3. Same—Agent’s Right to Commission Not Defeated.</p> <p>Where the agent of a corporation employed by it to sell its bonds has no knowledge of their invalidity, and finds a purchaser, but the sale is not completed because of the invalidity of the bonds, the agent does not lose his right to his commissions, because the corporation, after the time for performing the contract of sale has expired, procures the defect to be cured within a reasonable time, with the knowledge and consent of the agent and proposed purchaser, and the latter still refuses to take and pay for the bonds.</p> <p>4. Contract for Sale of Bonds—Time of the Essence.</p> <p>Where a contract for the sale of corporate bonds definitely specified a time for its completion by the delivery of the bonds, time was of the essence of the contract, and the proposed purchasers who had, before that date, refused to take the bonds because they were invalid, were not bound to take valid bonds after the time specified.</p> <p>ON MOTION FOB BEHEABING.</p> <p>5. Same—Compensation Not Due Agent.</p> <p>Where an agent employed to sell corporate bonds, at the time he contracts or performs the work for which he asks compensation, knows of the legal defect in the bonds which ultimately defeats his effort to sell, he is not entitled to recover.</p> <p>6. Same—Agent May Contract to Make Satisfactory Title.</p> <p>That an agent, in negotiating a sale of corporate bonds, contracted with the purchaser providing that the title should be satisfactory to the purchaser’s attorneys, is not a recognition of a defect in his principal’s title which would defeat a recovery for his commission, where the sale failed on account of such defect.</p>

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

<p>Appeal from the County Gourt -of Medina. Tried below before Hon. .Ed de Montel, Special Judge.</p>

<p>Jurisdiction—Suit for Less Amount Than Due—Unliquidated Damages.</p> <p>Where unliquidated damages are sued for, it is not a fraud on the jurisdiction of any court for plaintiff to reduce the amount as demanded before suit to such a sum as that the judgment of the County Court in the case will be final and not subject to appeal.</p>

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

<p>1. Master and Servant—Negligence—Joint User.</p> <p>Where an employe of an electric company was ordered to take down a wire belonging to it, but strung on a pole belonging to a street railway company, and he was injured by the breaking of the pole, and the defect in the pole was not obvious, nor known to him, but could have been discovered by proper inspection, the electric company was liable, it having the right, by agreement with the other company, to remove and repair its wires upon the pole.</p> <p>2. Same—No Liability Over.</p> <p>The street railway company owed no duty to the employes of the electric company, and was therefore not directly liable, nor could any judgment over be rendered against it.</p>

<p>Appeal from Medina. Tried below before Hon. John A. Green, Jr., Special Judge.</p>

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

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

<p>1. Limitation of One Year—Mental Anguish Is Injury to the Person.</p> <p>“Mental anguish, disappointment, sorrow, and affliction,” resulting from negligence in the delivery of a telegram, are injuries to the person within the statute limiting an action for injuries to the person, as distinct from injuries to the estate or property, to one year.</p> <p>2, Jurisdiction—Amount in Controversy Reduced by Plea of Limitations.</p> <p>The District Court is not deprived of jurisdiction of an action where damages well pleaded are reduced in amount to $5 by the defendant’s interposition of the plea of limitation.</p>

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

<p>Removal of Cause to Federal Court—Federal Corporation.</p> <p>An allegation in the petition in a State court, that plaintiff is a resident of the county and that defendant is a corporation created and existing under the laws of the State, will not prevent a removal of the cause to the Federal court on a petition alleging that defendant is a Federal corporation, incorporated under the acts of Congress, and that the suit is one arising under the laws of the United States.</p>

<p>1. Rescission—False Representations—Equal Information.</p> <p>Where the vendor of land has no good title, and is not aware of his title being defective, but believing it to be good, so represents it to the purchaser, stating that his information as to the title is derived solely from his own vendor, and the purchaser consults such prior vendor in reference to the title before buying, he is not entitled to have the sale rescinded and to recover back the consideration paid by him in other land, no matter upon whose representation he relied.</p> <p>3. Same—Statement of Opinion and of Fact—Good Faith.</p> <p>Where the vendor in making the trade expresses a mere opinion, with no intent to deceive, the vendee has no right to rely thereon; but if the vendor makes a positive affirmation of fact that is false, and on which the vendee is, from the surroundings, authorized to rely and does rely, and is injured thereby, the vendee is entitled to relief, and it is immaterial whether or not the statement was made in good faith.</p> <p>8. Same—Special Warranty Deed Taken.</p> <p>Where the purchaser accepts a special warranty deed, understanding its legal effect, the law presumes that he acted upon his own knowledge of the title, and he will not be heard to complain that he did not receive a perfect title, unless some misrepresentation was made upon which he had a right to rely and did rely.</p> <p>4. Same—Implication of Law in Absence of Covenants.</p> <p>Under articles 633 and 634, Revised Statutes of 1895, where there are no covenants ox title in a deed of realty, none will be implied by law except as to prior conveyances by the grantor, and that the estate is free from incumbrances, such as taxes and liens.</p>

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

<p>Appeal from the County Court of Kaufman. Tried below before Hon. John Vesey.</p>

<p>Appeal from Marion. Tried below before Hon. J. M. Talbot.</p>

<p>1. Suretyship—-Joint Surety Released, How.</p> <p>A joint surety may, by agreement, at the • time, be released without releasing the others from their proportionate part of the liability.</p> <p>2. Evidence—Written Contract—Immaterial Error.</p> <p>The admission of oral evidence of the intent of a written contract, it being the same intent as expressed on the face of the -writing, is immaterial.</p> <p>3. Community Property—Additional Bond by Survivor.</p> <p>Where a survivor in-community 'had given a bond as such, and afterwards filed an additional inventory, stating an omitted item of property, and without, any further order of court had given an additional bond for such item only, it was without authority, and did not release the first bond.</p> <p>4. Same—Liability for Homestead Property.</p> <p>The sureties on the husband's bond as survivor in community are liable to the wife’s heirs for one-half the value of the homestead sold by him after the execution of the bond, it being community property.</p> <p>5. Same—Evidence—Becitals in Deed.</p> <p>In an action upon a community property bond for one-half the value .of the property sold by the survivor, the recitals of the price of the property in the deed executed by the survivor are admissible in evidence.</p> <p>6. Same—Inventory of Community Debts.</p> <p>In such an action it was not error to exclude a certified copy of a list of community debts attached to the appraisement of the community property by the survivor, the statute not authorizing the filing of such list, and there being no evidence that the survivor had paid the debts.</p> <p>7. Same—Labor of Minor Children Chargeable Against Expense of Their Support.</p> <p>Where the labor and services of minor children, rendered to their surviving father, who is insolvent, are of value equal to the cost of their support, he is not entitled to charge such cost against their interest in the community property inherited by them from their mother.</p>

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

<p>Appeal from Marion. Tried below before Hon. J. M. Talbot. .</p>

<p>Appeal from the County Court of Harris. Tried below before Hon. W. F. Shaw.</p>

<p>Appeal from Smith. Tried below before Hón. Felix J. McCord.</p>

<p>Appeal from Galveston. Tried below before Bon. W. B. Stewart.</p>

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

<p>Ebbob from Galveston. Tried below, before Hon. Wm. H. Stewabt.</p>

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

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

<p>1. Interstate Commerce Law—Shipment from Foreign Fort—Rates.</p> <p>Competition in ocean transportation is to be taken into consideration in determining whether or not the rate for the carriage of goods imported on a through bill of lading from a foreign shipping port, from the port of entry in the United States to the point of destination, violates the Interstate Commerce Act; and the fact that the proportion of the through rate allowed for the carriage from the port of entry to the destination may be less than the rate scheduled for freight originating at the same place and carried to the same destination, does not necessarily render the lesser rate unlawful.</p> <p>2. Same—Unlawful Contract for Freight—Burden of Proof.</p> <p>A railroad company which seeks to release itself from its agreement to deliver goods for a specified freight, on the ground that the contract is illegal because the rate specified is less than that fixed by the Interstate Commerce Commission, has the burden of proving that the contract' is necessarily unlawful, and not simply that it may be so.</p> <p>3. Assignment of Error—Too General—Damages.</p> <p>In an action to recover damages for the detention and conversion of goods belonging to plaintiffs, an assignment of error that the damage sustained by plaintiffs does not equal the amount of the judgment is too general for consideration on appeal, where the amount allowed was considerably less than that sued for, and it does not appear what items were allowed and what were disallowed.</p> <p>4. Railroad Company—Wrongful Detention—Charge for Storage.</p> <p>A railroad company which wrongfully detains goods shipped over its road is not entitled to charge storage for the goods while so detained.</p>

<p>1. Appeal—Parties—Separate Judgments.</p> <p>Defendant in an action for rent may appeal from a judgment for plaintiff without making his appeal bond payable to an intervener, who asked to foreclose a mortgage on certain furniture and in whose favor judgment was rendered by consent.</p> <p>2. Landlord and Tenant—Statutory Lien—What Included.</p> <p>The lien on animals, tools, and other property furnished by the landlord to the tenant, and on crops raised on the rented premises, given by Revised Statutes, article 3235, to all persons leasing or renting lands or tenements, to secure payment of the rent, does not apply to the furniture of the tenant on the leased premises.</p> <p>3. Pleading—Petition—Action for Rent.</p> <p>The petition in an action for rent in which plaintiff seeks to enforce a lien on the tenant’s furniture in the leased premises, must allege that plaintiff rented a building of some character to defendant.</p>

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

<p>Appeal from Delta. Tried below before Hon. Howabd Templeton.</p>

<p>Appeal from the County Court of Grayson. Tried below before Hon. J. H. Wood.</p>

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

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

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

<p>Vendor’s Lien—Holders of Different Motes—Bights Under Foreclosure.</p> <p>The payee of three vendor's lien notes who, after assigning one of them, forecloses the others and purchases the property at the foreclosure sale, is not entitled, in the absence of special circumstances, to have the land resold and the proceeds of sale applied ratably to the other note,. which the holder seeks to enforce as a lien upon the land in his hands.</p>

<p>Error from Hunt. Tried .below before Hon. J. G. Bussell.</p>

<p>1. Ex Parte Deposition—Admission—Harmless Error.</p> <p>A party can not complain on appeal of the admission of an ex parte deposition, where before the trial was concluded he put the witness on the stand and proved by him that what he stated in the deposition was true.</p> <p>2. Evidence—Deed—Admission—Harmless Error.</p> <p>Defendant in an action commenced by husband and wife to recover land belonging to the latter is not prejudiced by the introduction of a quitclaim deed from the husband to his children after the wife had died and the children had been allowed to prosecute the suit by their next friend.</p> <p>S. Same—Declarations of Husband—Property of Wife.</p> <p>Declarations of the husband of a donee under a paroi gift of land, made in her absence and after her rights had fully accrued, are inadmissible as against her or those claiming under her, where no predicate has been laid to impeach him as a witness in support of her title.</p> <p>4. Action for Land—Conveyance of Part—Effect.</p> <p>The right of a husband and wife to maintain an action to recover land belonging to the latter is not affected by the execution by them of a quitclaim deed of an undivided interest in the land to her attorneys before suit, in consideration of services to be rendered in recovering the land, since at most the attorneys are only tenants in common.</p> <p>5. Statute of Frauds—Parol Gift—Value of Improvements.</p> <p>That the improvements placed upon land by the donee under a paroi gift do not exceed in value the rents and profits during the time she held possession, does not render them insufficient to take the gift out of the statute of frauds.</p> <p>6. Exemption—Bents of Homestead.</p> <p>The homestead exemption attaches to a claim for rents against parties wrongfully withholding possession of the homestead from the owner thereof.</p>

<p>Appeal from the County Court of Collin. Tried below before J. M. Pearson, Esq., Special Judge.</p>

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

<p>1. Verdict—Personal Injuries—Damages—Amount Not Excessive.</p> <p>A verdict for $11,500 is not excessive for an injury to a brakeman 27 years old, earning from $60 to $75 per month, by which his health has been permanently impaired, he has suffered much physical and mental pain, and has probably been rendered unable to earn a living for the remainder of his life.</p> <p>2. Railroad—Inspection of Cars—Negligence Vel Non.</p> <p>A railroad company is not, as matter of law, free from negligence towards its brakeman in failing to inspect on the inside a car received from another company, although such car was sealed, where a reasonable inspection of the car tram the outside would have shown signs of a' defect in the ladder on the "side of the car, and an inspection from the inside was required to see whether or not it was actually safe.</p> <p>3. Master and Servant—Risks Incident to Employment—Brakeman.</p> <p>A railroad brakeman does not assume the risks incident to the negligent inspection of cars, even though he may know that such is the manner of inspection. .</p> <p>4. Charge of Court—Assumption of Fact—Harmless Error.</p> <p>A portion of a charge is not objectionable as assuming a fact when, considered in connection with another portion of the charge, it clearly left the fact for the determination of the jury.</p> <p>5. Railroad—Accident to Brakeman—Contributory Negligence.</p> <p>A brakeman is not, as matter of law, guilty of contributory negligence in failing to discover a defect in a ladder on a freight car used by him at night, although such defect is so obvious that it would have been discovered by an inspector if a proper inspection- had been made.</p>

<p>1. Railroad—Accident to Brakeman—Charge of Court.</p> <p>In an action against a railroad company to recover for personal injuries sustained by a brakeman while coupling an engine to a train of standing cars, by means of the pilot bar, which the plaintiff upheld for that purpose upon his knee, which was crushed directly after the coupling was made, when one of the wheels of the car went into a low joint, a charge to the jury that, if the plaintiff, in placing the bar upon his knee and keeping it there, was negligent, and if but for such negligence he would not have been injured, he can not recover, is not objectionable as tending to confuse or mislead the jury. '</p> <p>3. Same—Same—Contributory Negligence Vel Non.</p> <p>A brakeman who, to couple an engine to a standing car, placed the pilot bar upon his knee, which, after the coupling was made, and before the car had run three feet, was crushed by reason of one of the ear wheels sinking at a low joint, is not guilty of such contributory negligence as will bar a recovery.</p> <p>3. Same—Same—Knowledge of Defect in Track.</p> <p>That the ground on which' a side track was laid was known by the brakeman to be wet and soft, -and that low joints were liable to be caused thereby, will not charge him with actual knowledge of the existence of such defect whereby he was injured while making the coupling.</p>

<p>1. Action—Dismissal by Plaintiff—Bight of Interveners.</p> <p>Insurance companies which have intervened in an action by the insured against a railroad company for the destruction of property by fire may, where the insured has assigned- his claims against the company to them, continue the action after plaintiff has dismissed his suit.</p> <p>3. Practice on Appeal—Conclusions of Trial Court—Pailure to Pile.</p> <p>Pailure of the trial court to file findings of fact and conclusions of law at the term at which the judgment was rendered is not ground for reversing a judgment for plaintiff, where the judgment was not rendered until the last day of the term, and the case had been called for trial several times and postponed to accommodate the defendant, and the record contains a statement of facts agreed on by the attorneys and approved by the court.</p> <p>3. Pleading—Petition of Intervener—Adoption of Plaintiff’s Allegations.</p> <p>The petitions of insurance companies intervening in an action by the insured for the destruction of property by fire may refer to plaintiff’s petition and adopt its allegations as to material facts, instead of directly alleging them.</p> <p>4. Same—Same—Allegations—Exhibits.</p> <p>Insurance companies which-intervene in an action by the insured for the negligent destruction of the insured property by fire need not attach as exhibits the written assignments, where their .petitions set out the loss of the property, and the insurance companies’ liability thereon to -the insured, the payment of the amounts for which suit is brought by such companies to the insured, and assignments from the latter to themselves, and that by such payments and assignments the companies were subrogated to all the rights of the insured.</p> <p>5. Same—Several Interveners—One'Supplemental Petition.</p> <p>Several insurance companies which intervene in an action by the insured to recover property negligently destroyed by defendant, may join in a supplemental petition, where the matters alleged therein are common to all of them.</p> <p>6. Interest—.Insurance — Loss—negligence — Action Against negligent Party.</p> <p>An insurance company which pays the amount of the insurance to one whose property has been negligently destroyed by another and takes an assignment of the claim for damages, is entitled to interest on the amount paid by it.</p>

<p>Contributory Negligence—Walking on Railway Track—Directing Verdict.</p> <p>Plaintiff, walking upon a track in a railway yard used for switching cars but .frequently made a pathway by the public, hearing a car approaching from behind, stepped from the track until it passed, and immediately after, and without looking back, though he heard the noise of a locomotive behind him, stepped back into dangerous proximity to the track, and was run down by another car approaching him from behind: Held, that the court properly directed a verdict for the defendant</p> <p>company on the ground of plaintiff’s contributory negligence.</p>

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

<p>Appeal from Robertson. Tried below before Hon. W. G-. Taliaferro.</p>

<p>Appeal from Bell. Tried 'below before Hon. John M. Fubmajst.</p>

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

<p>1. Immaterial Error—Amendment.</p> <p>An amendment oí pleading seeking foreclosure of a mechanic’s lien which merely stated the value of the house and of the lot separately, both being subject to the lien, was immaterial and not prejudicial to the adversary, though made after announcement for trial.</p> <p>8. Same—Continuance.</p> <p>The refusal of an application for continuance to procure testimony to‘meet such amendment was proper, the issue presented thereby being immaterial.</p> <p>Where a case is tried without a jury and without the filing of conclusions of law and fact by the judge, appellant who attacks the judgment must assign error as to every issue which there is testimony tending to support and which would warrant a finding against him, or be concluded thereby.</p> <p>4. Costs.</p> <p>Defendant who resists foreclosure of a mechanic’s lien as a claimant of the property, though not liable personally for the debt, is liable for costs of suit if unsuccessful.</p>

<p>Injunction—Dissolution' on Motion—Dismissal—Deview on Appeal.</p> <p>In a suit to enjoin the enforcement of an order of sale, the temporary injunction was dissolved on motion, upon sworn answer denying the equities of the bill and supported by documentary evidence and affidavits, and the final hearing on the merits was continued on defendant’s application; whereupon plaintiff voluntarily dismissed her case, and, without motion to reinstate, prosecuted error. Held, that she could not, in such proceeding, attack the correctness of the ruling dissolving the injunction.</p>

<p>Appeal from Bell. Tried below before Hon. John M. Furman.</p>

<p>Error to Coryell. Tried below before Hon. J. S. Stratjghan.</p>

<p>1. Estoppel—Representations—Intention to Deceive.</p> <p>Estoppel does not rest solely upon the intention to mislead and deceive by the party making the representations; for, if they are innocently made, about facts with which he should be acquainted, and they are calculated to mislead and deceive a man of ordinary prudence, he will be held to the effect of the representations.</p> <p>2. Same—Fact Case.</p> <p>Plaintiff, having a lien on cotton to secure advances made to a buyer, accepted, on its claim, $5000 obtained from defendant by a transfer of the same cotton, on the assurance, innocently made by defendant to plaintiff, that the money was not obtained by transfer of the cotton in question. Held, that plaintiff was not estopped by the receipt of such money from asserting its lien for the remainder of the debt against such cotton in defendant’s hands.</p> <p>3. Pleading—Lien—Pledge.</p> <p>Though pleadings describe as ,a pledge the security therein claimed, yet, if the facts pleaded- and proven show that it was in fact a lien, not accompanied by possession, calling it by the wrong name does not constitute a variance.</p>

<p>Appeal from Comal. Tried below before Hon. Eugene Abcher.</p>

<p>Appeal from Val Verde. Tried below before Hon. Walter Gillis.</p>

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

<p>Sale of Realty by Substitute Trustee—Omission in Recording.'</p> <p>The omission from the record oí a deed of trust of the provision for the substitution of a new trustee in ease of the disqualification or refusal to act of the original trustee, does not defeat a deed executed by a substituted trustee under the power of sale which is set out in the record, as against an intervening attaching lien creditor without actual' notice, as the record imparts notice of all the essential facts, and the omission cduld not have misled the creditor. Article 4640, Revised Statutes (recording act), construed.</p>

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

<p>Appeal from Anderson. Tried below before Hon. A. A. Aldrich.</p>

<p>Animals—Inspection Fees.</p> <p>The buyer of cattle for slaughter is liable for the fees for an inspection under article 5013, Revised Statutes, 1895, making it the duty of the inspector to examine and inspect all animals known or reported to him as sold in his district for slaughter, notwithstanding that the seller had procured a certificate of inspection on removing the cattle from another county which, under article 5022, protected him against liability for inspection fees in the county in which the. sale was made.</p>

<p>1. Hallway Company—Compressing Cotton.</p> <p>A railway company can not be held liable independently or joined with a compress company in an action by shipper of cotton over the railroad for damages for improperly compressing the cotton, although the rules of the State Railroad Commission made it the duty of the- railroad company to have cotton compressed when requested by the shipper, where the shipper bad a special contract with the compress company with regard to the compression that a specified person at the point of destination judge whether it was properly compressed.</p> <p>2. Jurisdiction—Fraudulent Joinder.</p> <p>Where a defendant who is not liable is fraudulently joined in the suit for the purpose o£ conferring jurisdiction, the court is warranted in sustaining a plea to the jurisdiction and dismissing the case as to the other defendant, sued out of its county.</p>

<p>Appeal from De Witt. Tried below before Hon. James C. Wilson.</p>

<p>Usury—Interest Note.</p> <p>A note given for interest on another note tainted with usury, and as part of a transaction by which still other notes tainted with usury were given, is itself usurious.</p>

<p>Fire Insurance—Cancellation of Policy—Tender.</p> <p>Although the sending of a draft for the amount of an unearned premium may not be such a payment or tender as the insured is entitled to have before the cancellation of his policy, it will be deemed sufficient where the insured, who is familiar with what is essential to effect a cancellation, treats it as having that effiect-</p>

<p>Error to the County Court of Harris. Tried below before Hon. John G-. Ten.</p>

<p>Bills and Motes—Acceptance of Draft Gan Mot Be Rescinded.</p> <p>The acceptor of a draft can hot rescind the contract of acceptance on the .ground of mistake, after ascertaining that the drawer has no money with one with whom she had previously kept money.</p>

<p>1. Verdict Not Excessive—Damages for Personal Injuries.</p> <p>A verdict for $9000 for unusually severe and permanent injuries to a person 42 years old, earning regularly from $60 to $125 per month, by which he is rendered totally unable to pursue his trade, is not excessive.</p> <p>2. Street Railway—Liability Outside City Limits.</p> <p>That a street railway is outside of any city, upon a county road, by authority of the commissioners court, at a place where an injury occurs, does not relieve the company from the requirement of reasonable care in maintaining the track in a condition of safety for those using the highway.</p> <p>3. Same—Track Used by Another Company.</p> <p>A street railway company is not relieved from liability for an injury resulting from its failure to keep its track reasonably safe for persons using the highway, because the ears on such road were being operated by another company.</p> <p>4. New Trial—Insufficient Ground Eor.</p> <p>The refusal of a motion for a new trial made on an affidavit stating that affiant, when the charge was read, was as near the judge as the jury were, and that he did not understand all its contents, although his hearing was good, will not be disturbed on appeal.</p> <p>5. Evidence to Charge Knowledge or Notice.</p> <p>Evidence of the bad condition of a street railway crossing several hundred feet each side of the place where plaintiff was injured is admissible to show that defendant had had an opportunity to learn of the defective condition of the road.</p> <p>6. Evidence of Nonexperts—Street Railway Track.</p> <p>Nonexpert evidence is admissible that guard rails along the street railway track are to make it easier to drive over the rails, and that there were not such rails at the place where plaintiff was injured.</p> <p>7. Same.</p> <p>Evidence that the rails of defendant’s street railway track were from three to five inches above the roadway street, in holes, and that there were no guard rails, is not inadmissible as an opinion of the witness, and may be given by one who has not qualified as an expert.</p> <p>8. Contributory Negligence—Crossing Street Car Track.</p> <p>One is not, as a matter of law, guilty of contributory negligence in attempting to drive over a street railway track at a place where it is defective, although he knows of the defect.</p> <p>9. Street Railway—Track Not Level with Street.</p> <p>A street railway company is not relieved from liability for an injury caused by depressions in the tracks, rendering them dangerous to cross, by the fact that such depressions have been caused by the gradual wearing away of the road by travel.</p> <p>10. Charge of Court—Ordinary or Reasonable Care.</p> <p>An instruction in an action for personal injuries that by ordinary or reasonable care is meant such care as an ordinarily prudent person would have exercised under the same or similar circumstances, is not objectionable as authorizing the jury to take into consideration circumstances materially different from those attending the injury.</p>

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

<p>Appeal from the County Court of Collin. Tried below before Hon. M. G-. Abernathy.</p>

<p>Sale Mot Conditional, When.</p> <p>A completed sale, and not a mere agency to sell, is evidenced by a contract by which one party becomes absolutely bound to pay in full for every shipment of property made to him by the other, and has no right to return the property under any circumstances, the other party reserving no right to retake the same, notwithstanding that the contract is denominated an agency and expressly provides that the title of the property is to remain in the shipper until sold by the consignee.</p>

<p>1. Rescission of Sale of Land.</p> <p>Where an absolute warranty deed, reciting a cash consideration of $640, was made in fact for $100 paid and an agreement by the grantee to convey to the grantor 160 acres of land, the grantee took full legal and equitable title to the land conveyed by the deed, subject only to an equitable lien for any part of the consideration unpaid, and the grantor was not, in the absence of fraud, entitled to have the sale rescinded because of the grantee’s failure to convey the 160 acres.</p> <p>2. Vendor’s Lien Barred by Limitations.</p> <p>After a long lapse of time (twenty-eight years in this case) since the conveyance of lano the right of the vendor to sue for the purchase money and enforce his equitable vendor’s lien against the land is barred by limitations.</p>

<p>1. Fire Insurance Policy—Stipulation Avoiding.</p> <p>A clause in a policy of insurance stipulating that it shall be void if foreclosure proceedings are instituted by virtue of any mortgage or deed of trust, is valid, and if breached the policy will be avoided.</p> <p>2. Same—Stipulation Mot Waived.</p> <p>A clause in a policy of fire insurance forfeiting the same, if, with the knowledge of the insured, foreclosure proceedings be instituted by virtue of any mortgage or deed of trust, is not waived by the fact that the insurer knew of the mortgage when it issued the policy and that the mortgage "debt would mature during the life of the policy.</p>

<p>1. Real Estate Broker’s Commissions Due Upon Sale Hot Consummated, When.</p> <p>A broker employed to sell real estate has discharged his duty when he produces a purchaser able and willing to buy upon the terms and at the price fixed by the seller, regardless of whether the sale is ever actually consummated or not, provided that such failure is not due to some fault of the broker.</p> <p>2. Same—Trustee and Assignee for Creditors Personally Liable, When.</p> <p>Where a real estate broker was engaged by an assignee for the benefit of creditors to malee sale of certain land belonging to the trust estate under a contract by which the assignee did not exempt himself from personal liability, and the broker procured a purchaser at a price which was acceptable to the assignee, but before the deed was executed by the assignee an injunction was issued at the instance of a creditor of the insolvent estate, on the ground of inadequacy of price, restraining the completion of the sale, and the purchaser thereupon withdrew his offer, the broker was entitled.to recover his commissions, and the assignee was personally liable therefor.</p> <p>3. Same—Liability of Trust Estate.</p> <p>The broker was also entitled to a decree that his judgment be paid out of the funds of the insolvent estate; and the original assignee, having been discharged as such, was entitled to judgment over against the estate in the hands of his successor.</p> <p>4. Assignee for Creditors Hot an Officer of Court.</p> <p>An assignee in a deed made for the general benefit of creditors in accordance with the assignment statutes, is a trustee, not an agent, and is not, like a receiv.er, an officer of court, nor entitled as such to exemption from personal liability upon his contracts concerning the trust estate.</p>

<p>1. Telegraph Company—Evidence of Negligence in Delivery of Message.</p> <p>A statement made by the sender of a telegram to the agent at the place of transmission, after being informed that the addressee could not be found at the place of delivery, that it had been some time since the latter’s people had heard from him, and that he was probably not at the place to which the message was sent, is not admissible in an action for delay in delivering the message, to show that defendant was not expected to make any further effort to deliver the message, where such statement was directly contradicted by the testimony of the addressee that he communicated frequently with his folks, and it was not communicated to the agent at the place of delivery, and the agent to whom it was made did not act thereon.</p> <p>3. Same—Burden of Proof.</p> <p>In an action for failure to deliver a message sent for the addressee’s benefit, the defendant telegraph company has the burden of showing that its failure to make further efforts to find him was on account of statements made by the sender to the agent at the sending office, and that it acted upon such statements.</p> <p>3. Same—Petition Held Sufficient.</p> <p>A petition against a telegraph company alleging that plaintiff’s father was very sick, that if the telegram sent to plaintiff, so stating, had been delivered with reasonable promptness, plaintiff might have been present with his father in his last hours and attended his funeral, but that by the gross negligence of defendant the death and burial took place without plaintiff’s knowledge, and that he had suffered great pain and mental anguish and distress from such negligence, with prayer for damages, is sufficient on general demurrer to authorize a recovery for depriving plaintiff of the privilege of being present at his father’s death and burial.</p> <p>4. Same—Presumption that Message Is for Addressee’s Benefit.</p> <p>The presumption that a telegram, stating that the addressee’s father is very sick and would like to see him, was sent for the benefit of the addressee, is not overcome by evidence that the father directed a telegram to be sent for him to come home, as he wanted to see him before he died, and did not think that he could live much longer.</p>

<p>1. Garnishment Trial—Production of Writ Not Necessary, When.</p> <p>Where, in a suit begun in one county, a garnishment proceeding is transferred to another county where the garnishee resides, it is not necessary, in the garnishment trial there, for the plaintiff to produce or offer in evidence the writ of garnishment or copy thereof. Article 248, Revised Statutes 1895, construed.</p> <p>2. Same—Judgment One of Dismissal Only, When.</p> <p>Where, upon the garnishment trial in a court other than where the original suit was begun, the plaintiff fails to produce all the proceedings required by article 24S of the Revised Statutes to be transferred in such case, the court is without jurisdiction, and the judgment should be one of dismissal, and not one in favor of the garnishee.</p> <p>3. Evidence—Assessment List.</p> <p>An original assessment list of property rendered for taxes by the owner in person and subscribed by him is, in a proper state of case, admissible in evidence against him as a statement against interest.</p>

<p>Judgment—Collateral Attack—Dead Defendant.</p> <p>A judgment rendered against a defendant in the suit who was dead at its institution is void, and subject to collateral attack.</p>

<p>Charge of Court—Assumption of Fact—Error.</p> <p>An instruction that if the jury believed from the evidence that the falling of part of a coal chute by which plaintiff was injured was caused by the fact that it was not properly braced, and that the foreman in the exercise of ordinary care ought to have had it properly braced, to find for plaintiff, but that if they did not believe that such foreman in the exercise of ordinary care ought to have known that it was not properly braced before the accident, to find for defendant, is reversible error as assuming that the coal chute was not properly braced.</p>

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

<p>1. Adverse Possession—Peaceable Possession—Admission.</p> <p>An admission on the trial that plaintiff has been in the “actual, continuous, exclusive, adverse, and hostile possession of the land for more than ten years,” shows that his possession was peaceable as well as adverse, so as to give title by adverse possession.</p> <p>2. Same—Title to Land—Notice.</p> <p>One who has acquired title to land by adverse possession is not required, more than any other owner of land, to give notice of his title to others, so as to prevent their obtaining good title by a conveyance from the original owner.</p>

<p>Negligence—Dangerous Highway—Choice of Routes.</p> <p>One was not guilty of contributory negligence in choosing a way over a foot bridge only three feet wide without railings, although he could have taken another way which would have been perfectly safe, if the danger from using the bridge was not such as would deter a person or ordinary prudence.</p>

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

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

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

<p>Appeal from Angelina. Tried below before Hon. James T. Polly.</p>