Volume 18 — Texas Civil Appeals Reports

<p>1. Judgment Against Executor—Pleadings as Evidence.</p> <p>The pleadings may be read in connection with a judgment which prima facie makes the defendant personally liable, to show that the suit was against defendants as executors, where a sale under such judgment was attacked more than twenty-five years after it was made.</p> <p>2. Same—Mot Held a Personal Judgment, When.</p> <p>A sale under execution of the property of an estate on a judgment rendered four years before the sale, describing the judgment defendants by name, with the addition of the words “executor” and “executrix,” will not be set aside as illegal and void more than twenty-five years thereafter, on the ground that the judgment was rendered against the executor and executrix individually, unless it is clearly shown that the execution was issued without authority of law.</p> <p>3. Same—Parol Evidence to Show Its Character.</p> <p>Evidence of an executor that a suit against him and his coexecutor was to recover from the estate a debt due from their testator in his lifetime is admissible where a sale under execution issued on the judgment is attacked twenty-five years thereafter, although he states that he does not remember whether he had ever read the petition in the case or not, and he can not give its contents.</p> <p>4. Same—Directing Execution.</p> <p>A judgment against executors in their representative capacity need not direct that execution issue against the property of the estate of their testator; and Paschal’s Digest, article 1371, making it the duty of the clerk to issue an execution against the estate when the judgment is against the executor, does not necessarily require that there be such recitation in the judgment.</p>

<p>Street Improvement Certificate—Limitations.</p> <p>A street improvement certificate, issued by a city under its charter, against the owner of an abutting lot, which is a lien upon the lot, is a tax levied and assessed against the property, and is not a contract in writing; and article 3354, Revised Statutes, which requires an action for debt, “where the indebtedness is not evidenced by a contract in writing, to be brought within two years,” is applicable in a suit upon such certificate, as the action is not founded upon the written contract between the city and the street work contractor by virtue of which the work was done and the certificate issued. Following O’Connor v. Koch, 9 Texas Civil Appeals, 586.</p>

<p>1. Judgment—Married Woman Failing to Plead Coverture.</p> <p>A judgment against a married woman who fails to plead coverture is the same in its operation and effect as if rendered against a feme sole.</p> <p>2. Same—Innocent Purchaser.</p> <p>Error in rendering a judgment against a married woman will not defeat the title of a purchaser of her property at execution sale, where there was nothing in the pleadings to show that she was a married woman.</p> <p>3. Deed of Married Woman.</p> <p>A deed of her separate property by a married woman is void and does not confer any right upon the grantee, where it is not in conformity with the statute regulating the conveyance of the separate property of married women.</p> <p>4. Homestead—Proof of Abandonment.</p> <p>A finding that the owner of a homestead abandoned it before a sale thereof under execution is sustained by evidence that she executed a deed of it to another which was void because not complying with the statute, and placed the grantee in possession, and removed with her family from the county, and had not resided on the premises for eight years.</p>

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

<p>1. Banks—Liability of—Agency.</p> <p>Where a note is deposited with one bank for transmission to some other bank for collection, the bank to which it is sent is the agent of the depositor.</p> <p>2. Same—First Bank Remains Liable, When.</p> <p>Where a note is deposited, without instructions, with a bank for collection at another point, and it sends it to another bank at such point, the bank to which it is sent is the agent of the sending bank, and the latter is the agent of the depositor and liable for the default of the other bank.</p> <p>S. Custom and Usage.</p> <p>In order for a custom to modify or change a rule of law, it must be general as to a particular trade, and so well established that any one dealing in that trade is presumed to know it.</p>

<p>1. Municipal Corporation—Delegation of Power.</p> <p>The determination of a question which, by the law, is committed to the discretion of a city council can not be delegated by that body and made to depend on the judgment of any other officer or person.</p> <p>2. Same—Street Improvement—Liability for Assessment.</p> <p>No ordinance or resolution of a city council beyond the taking of the steps necessary to a valid assessment is required to give rise to "a personal liability for the cost of improving a street such as the city may enforce by suit where its charter so provides.</p> <p>3. Same—Discretion of City Council.</p> <p>A city ordinance making it the duty of the city attorney, whenever he deems it advisable, to institute suit for the recovery against any owner of property of the amount due for street paving, is a sufficient exercise of discretion on the part of the council, given by the charter, to hold the owners personally liable for the amount assessed against them.</p> <p>■4. Same—Street Improvement Assessment.</p> <p>The entry of a street improvement assessment in the collector’s book is not a . condition precedent to personal liability of an abutting owner for the amount of the ■assessment, under a city ordinance providing that the collector shall enter the assessment in a book kept in his office for the purpose, and shall proceed to the collection of the assessments and interest as they fall due, giving a specific notice to the owners and authorizing the collector to levy after expiration of the period of "notice.</p>

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

<p>1. Judgment—Void or Voidable.</p> <p>A judgment on appeal against the sureties on the appeal bond is not a nullity where the court had acquired jurisdiction over the case and over the parties to the bond, although the name of one of the sureties on the bond as originally made out was erased without the knowledge or consent of the other surety, and the name of another person as surety added. Distinguishing Stapleton v. Wilcox, 2 Texas Civil Appeals, 544.</p> <p>2. Same—Injunction—Diligence.</p> <p>A surety on an appeal bond who learns that the judgment has been erroneously rendered on the bond against him, during the term of court at which such judgment is rendered, is not entitled to an injunction to restrain the enforcement of the execution, where he made no application for relief to the court during such term.</p>

<p>1. Libel—Truth No Justification, When.</p> <p>It is no justification to an action of libel against a newspaper for publishing an item to the efiect that plaintiff had been jailed on a charge of horse stealing to prove that such charge and incarceration had been made as alleged, but it must be proved that the charge of theft was true.</p> <p>2. Statutory Construction—Title of Act—“Personal Injuries.”</p> <p>The title of an act “to provide for the survival of causes of action for personal injuries, other than those resulting in death,” is broad enough to include an action of libel and slander for injuries to the reputation.</p> <p>3. Damages for Mental Anguish—Survival of Action Por.</p> <p>By virtue of the Act of May 4, 1895, damages for mental anguish suffered by plaintiff may, in an action for libel, be recovered by his representatives after his death pending the action.</p>

<p>Appeal from Houston. Tried below before Hon. James E. Hill, Special Judge.</p>

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

<p>1. Assignment of Error.</p> <p>That the court “erred in not sustaining the defendant’s first and second special exceptions, as per bill of exceptions number 1,” is an assignment that will not be considered on appeal, where appellant’s brief contains no statement of the pleadings of the appellee to yvhich such exceptions were addressed.</p> <p>2. Same—Grouping Errors.</p> <p>Assignments of error referring to different clauses of the charge, having reference to different phases of the evidence, will not be considered on appeal, where they are grouped together in appellant’s brief and submitted as a “proposition within themselves.”</p> <p>3. Evidence—Fraudulent Intent.</p> <p>Evidence that an alleged fraudulent vendor of goods to defendant stated to one yvho represented plaintiff, that he was not indebted to any person except plaintiff, is admissible against defendant, although he rvas not present, for the purpose of showing whether there was a fraudulent intent on the part of the vendor in making his conveyance.</p> <p>4. Same—Contradicting Witness.</p> <p>Evidence that defendant, an alleged fraudulent vendor of goods, stated to one of plaintiff’s firm, the morning after the sale, that he could not help making the sale, and that he had forgotten his debts to plaintiff, is admissible to contradict him as a witness, where he testified that the indebtedness in consideration of which he made the sale was a genuine one.</p> <p>5. Charge of Court—Limiting Evidence—Special Bequest.</p> <p>The court, after verbally limiting the purpose for which certain testimony is admitted, is not required to repeat the limitation in its written instructions, if no request therefor is made.</p> <p>6. Practice in Trial Court—Oath of Special Judge.</p> <p>A record which shows that “the oath prescribed by law was duly administered” to the special judge presiding, sufficiently shows that he took the constitutional oath of office.</p>

<p>1. Limitations—Clause Maturing Later Due Motes.</p> <p>The statute of limitations begins to run against all of several notes on failure to pay the first note at its maturity, where an agreement entered into at the time of executing the notes provides that on default in the payment of any one of the notes at its maturity all the notes remaining unpaid shall mature and become due and payable.</p> <p>2. Same—Pleading in Avoidance of the Statute.</p> <p>Evidence of the absence of defendants from the State is inadmissible to avoid their plea of the statute of limitations, in the absence of any pleading by plaintiff in avoidance of the statute.</p>

<p>1. Practice in Trial Court—Special Issues.</p> <p>It is not material error that the jury failed to answer some of the special issues submitted to them, where only immaterial issues are thus left undetermined.</p> <p>2. Pleading—Liability—Estoppel.</p> <p>Plaintiff’s averment in an action for personal injuries, that he was the servant of the defendant, is broad enough to cover the phase of the case presented by evidence that he was hired by the defendant, and, though working at the time upon a job being done by an independent contractor, did not know, as he was not informed by defendant, that he was working for such contractor; and if was not necessary to plead an estoppel against the defendant in order to deny that the plaintiff was working for him at the time of the injury.</p> <p>3. Master and Servant—Vice-Principal.</p> <p>An engineer to whom alone the duty of inspecting the engine is intrusted acts as a vice-principal, and not as a fellow servant of another employe, in discharging such duty.</p> <p>4. Same—Concurring Negligence of Eellow Servant.</p> <p>The concurring negligence of a fellow servant does not relieve a master from liability for injuries to a servant caused in part by defective appliances for which the master is responsible.</p>

<p>1. Sale of Goods—Delivery—Attachment.</p> <p>The title of goods passes so as to place them beyond attachment for a debt of the seller where there is an agreement by the owner to sell sufficient goods to be selected from a stock by the agent of the buyers at a certain per cent of the invoice price to discharge the seller’s indebtedness to the buyer, and the agent has selected such goods as he deems sufficient to satisfy the indebtedness and separated them from the rest of the stock, and has taken possession thereof and canceled the indebtedness, notwithstanding that it still remains for him to invoice the goods and return any excess that may exist.</p> <p>2. Same—Sale Must Stand in Its Entirety.</p> <p>A sale of goods to one assuming to act as the agent of certain creditors of the seller in discharge of the claims of such creditors is invalid in toto if the agent had no authority to act for one part of such creditors, though he may have had authority to represent the others. ”</p> <p>3. Levy of Attachments—Conversion.</p> <p>It is immaterial, in an action for conversion against a sheriff seizing goods belonging to plaintiff under an attachment against a third person, whether or not the goods had been levied on by the sheriff under another writ prior to the seizure complained of, or whether or not the proceeds were appropriated to the writ under which the seizure complained of was made.</p> <p>4. Practice in Trial Court—Charge Withdrawing Allegations.</p> <p>Plaintiff has the right, in the form of a special charge, to request the court to-withdraw from the consideration of the jury an immaterial allegation of his petition, not essentially descriptive of his cause of action.</p> <p>5. Parties—Suit hy Agent.</p> <p>An action for goods converted while in the possession of an agent may be prosecuted in the name of the agent alone, or with his principals joined.</p> <p>6. Statement of Facts—Prolixity.</p> <p>A statement of facts will not be stricken out merely because of its prolixity, where the parties failed to agree upon a statement and it was made by the judge, and the prolixity was not due to any fault on the part of the counsel for appellant.</p>

<p>Appeal from Henderson. Tried below before Hon. W. H. Gill.</p>

<p>1. Habeas Corpus from County Court in Felony Case.</p> <p>A county judge has no jurisdiction to issue a writ of habeas corpus for the release of one committed on a charge of felony by an examining court, who has not been indicted, since section 16 of article 5 of the Constitution only confers upon him power to issue writs of habeas corpus in cases where the offense is within the jurisdiction of the county court, or other court inferior to it, and the county' courts have not jurisdiction to try felony eases.</p> <p>2. Same—Judgment Void.</p> <p>The sheriff is not only justified in disregarding an order of the county court in habeas corpus proceedings discharging a prisoner, but it is his duty to do so, where the court has no jurisdiction to entertain the proceedings.</p> <p>3. Exhibition'of Writ Not Necessary, When.</p> <p>The detention of a prisoner committed on a mittimus from a justice of the peace-after a void order for his release granted by the county court in habeas corpus proceedings, is not illegal because the officer did not exhibit the mittimus to the prisoner after the order was made, but told him in effect that he could not let him go on such order.</p>

<p>Garnishment—Joinder of Actions.</p> <p>An attaching creditor who causes goods to be seized by virtue of his attachment and taken from the possession of one who had been previously garnisheed by another creditor of the attachment debtor may properly be joined as a defendant with the garnishee after the garnishing creditor has obtained judgment against the principal debtor, especially where the garnishee asks that he be joined.</p>

<p>Appeal from Travis. Tried below before Hon. E. E. Brooks.</p>

<p>Appeal from Caldwell. Tried below before Hon H. Teichmueller.</p>

<p>Error from the County Court of Hamilton. Tried below before Hon. J. C. Main.</p>

<p>1. Divorce—Receiver—Appointment Pending Appeal.</p> <p>The district court has power under Revised Statutes, article 1465, to appoint a receiver for property in a divorce suit involving its partition, where upon appeal the decree of divorce has been affirmed, the judgment as to the disposition ’of the property being reversed and remanded, and an application for writ of error is pending before the Supreme Court.</p> <p>2. Same—"Writ of Error—Jurisdiction.</p> <p>Whether the district court may appoint such receiver pending an appeal is not decided, but if it can not, it must clearly appear that the case is pending in an appellate court having jurisdiction thereof, in order to deprive it of such power.</p> <p>:3. Same.</p> <p>The jurisdiction of the Court of Civil Appeals being final in divorce cases, •though affirmed, and in cases generally when reversed and remanded, the exceptional facts giving the Supreme Court jurisdiction by writ of error must be made to appear before the pendency of an application for such writ will deprive the district court of the power to appoint a receiver.</p>

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

<p>1. Sufficiency of Evidence—Jury—Witness Contradicting Himself.</p> <p>On the issue of the injured person's knowledge of the defects in a ear causing his injury, the sole witness to prove such knowledge testified to a conversation about the defects which showed that they had come to the notice of the person injured; in a previous deposition he had testified that they had no such conversation. His testimony, in view of such contradiction, was not conclusive proof of knowledge of the defect.</p> <p>2. Same—Master and Servant—Contributory Negligence—Burden of Proof.</p> <p>The burden of showing knowledge by injured servant of the defects causing his injury is on defendant, and where evidence to show it may properly be rejected on account of inconsistencies a finding in favor of plaintiff will be sustained.</p> <p>3. Damages by Death of Son.</p> <p>An award of $2000 as damages to the plaintiff by the death of her son through defendant’s negligence, she having an expectancy .of life for six to nine years, and the son being a brakeman earning $60 to $70 per month to her support, was not excessive.</p>

<p>1. Divorce—Community Property—Creditors—Judgment.</p> <p>The community estate while in the hands of either the husband or wife is liable for the community debts, and can not be transferred to the wife by voluntary act nor by decree of divorce so as to relieve the property from such liability, except upon' a consideration such as the use by one of the separate property or funds of the other.</p> <p>2. Same.</p> <p>A decree of divorce which fixed upon community real property a lien in favor of the wife in excess of the husband’s interest therein by reason of other community funds received by the husband could not take precedence of the lien of a recorded judgment against the husband for a community debt recovered and duly filed while the divorce suit was pending.</p> <p>3. Divorce—Costs—Community Property—Creditors.</p> <p>The lien upon the community property for costs of a suit for divorce is superior to that of a judgment creditor who has recovered upon a community debt in a suit brought while the divorce proceedings were pending.</p> <p>4. Same—Interest.</p> <p>Judgments for costs do not bear interest; but the'lien as to costs paid by the-wife in a divorce suit will include interest from the date of such payment.</p> <p>5. Judgment Lien—Homestead.</p> <p>Abstract of a judgment duly filed attaches its lien to property then occupied as a-homestead, in ease of its subsequent abandonment.</p>

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

<p>1. Insolvent Debtor—Fraudulent Conveyance.</p> <p>A conveyance of his property by an insolvent debtor to a trustee, to be converted into money, out of which his debts to three preferred creditors were to be paid, after which the trustee “shall next apply the remaining portion of such moneys to such of our debts as may be established against us, or shall hold the same subject to our order or the claiip of any creditor not hereby preferred, paying each creditor not hereby preferred a pro rata amount of the money that may remain,” was void as against creditors, whether regarded as an assignment or a deed of trust, having the effect to unreasonably hinder and delay them in their right to subject the property to their claims.</p> <p>2. Same.</p> <p>Such conveyance makes no definite and specific disposition of the surplus, but vests in the trustee a discretion which might enable him to unreasonably hinder and delay, if not absolutely defeat, the efforts of other creditors to subject the surplus to their claims.</p> <p>3. Same.</p> <p>The language, “such of our debts as may be established against us,” is ambiguous, and does not sufficiently point out a mode by which creditors could reach this surplus.</p>

<p>Appeal from Coleman. Tried below before Hon. J. 0. Woodward.</p>

<p>Appeal from Coryell. Tried below before Host. E. A. MoDoavell, Special Judge.</p>

<p>1. Building Contract with County.</p> <p>A county contractor can not avoid the effect of provision of the contract requiring him to reinstate work damaged by the inclemency of the weather because he protested to the county commissioners against the performance of the work at the season of the year in which it was done, on account of its liability to be damaged by the weather, and they insisted upon his performing the work at that time, and stated that if he did not they would have the work done and charge him with the cost thereof under another provision of the contract giving them such right whenever they were led to believe by reason of any act upon his part the erection or completion of the building should be unnecessarily retarded, notwithstanding that the building could have been completed within the time stipulated if the work had been postponed, where there was no bad faith or corruptness on the part of the commissioners in insisting upon the performance of the work at the time.</p> <p>2. County—Constitutional Law—Extra Compensation.</p> <p>The provision of article 3, section 53, of the Constitution, that the Legislature shall have no power to authorize any county to grant any extra compensation to a public contractor after the contract has been entered into and performed in whole or in part, precludes the county commissioners from binding the county by an agreement to compensate the contractor for the expense of replacing damaged work which, under the contract, he was required to replace at his own expense.</p>

<p>Error from Waller. Tried below before Hon. A. G-. Lipscomb.</p>

<p>1. Land Certificate—Headrights to Heirs Assets of Estate.</p> <p>Certificates issued under the Act o£ February 9, 1850 (Paschal’s Digest Laws, article 4158), authorizing the Adjutant-General to issue headright certificates to the heirs or legal representatives of those who fell with Fannin and Travis, were not purely a gift, but were in recognition of pre-existing rights, and constituted assets-in the hands of the administrator.</p> <p>2. Jurisdiction of Probate Court—Presumption.</p> <p>The probate court having general jurisdiction of the estates of decedents, in the absence of any fact showing a want of jurisdiction, every presumption will be indulged in favor of its judgments.</p> <p>3. Hew Trial—Diligence.</p> <p>An application for new trial on the ground of newly discovered evidence is properly denied where no diligence to obtain the evidence is shown, and it is not stated that it was unknown to applicant before the trial.</p> <p>4. Same—State as Litigant.</p> <p>When the State enters its courts as a litigant, it must be held subject to the same rules as other litigants.</p>

<p>Appeal from Houston. Tried below before Hon. E. Winfree.</p>

<p>Appeal from Gonzales. Tried below before Hon. M. ICennon.</p>

<p>Appeal from' Gonzales. Tried below before Hon. M. Kennon.</p>

<p>1. Sale of Land—Rescission—Vendor’s Lien.</p> <p>After personal judgments have been recovered against the vendee of real property who received a bond for title, upon purchase money notes given by him and sold .to the judgment creditor, the vendee becomes the legal owner of the land, subject to an enforcement of the vendor’s lien by the holder of the judgments.</p> <p>2. Community Property—Gift by Husband.</p> <p>A husband can not by gift divest the heirs of his deceased wife of their one-half interest in judgments assigned by one to their daughter, where the consideration for the transfer was the conveyance of community property.</p> <p>3. Limitation—Resulting Trust.</p> <p>A conveyance made to an heir in consideration of the discharge of judgments held by her, but in which other heirs are interested, establishes a resulting trust in their favor against which the statute of limitations will run upon repudiation of the trust, except as against those disabled by coverture.</p>

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

<p>1. Local Laws—Road Law.</p> <p>A statute creating a more efficient road system for specified counties is a local statute within article 3, section 57, of the Constitution, providing that no local or special law shall be passed unless notice of the intention to apply therefor has been published in the locality affected for a specified time.</p> <p>2. Same—Constitutional Construction.</p> <p>Article 3, section 57, of the Constitution, providing that no local or special law shall be passed unless notice of intention to apply therefor shall have first been published in the locality, does not apply to an act creating a more efficient road system in specified counties, since article 8, section 9, provides that the Legislature may pass local laws for the maintenance of public roads and highways without the notice required for local or special laws.</p> <p>3. Same—Same.</p> <p>A provision in the Constitution (article 8, section 9) that the Legislature may pass local laws for the maintenance of public roads without the local notice required for special laws, is applicable to a statute which provides for the creation as well as the maintenance of a road system for certain counties.</p> <p>4. Same—Same.</p> <p>The provision of article 11, section 2, of the Constitution, that the laying out, construction, and repairing of county roads shall be provided for by general laws, does not inhibit the passage of local road laws for particular counties, since article 8, section 9, specially provides that the Legislature may pass local laws for the maintenance of public roads and highways.</p> <p>5. Same—Same.</p> <p>The provision of article 3, section 56, of the Constitution, that the Legislature shall not, except as otherwise provided, pass any local law in specified cases and in “all other cases where a general law can be made applicable,” does not inhibit the passage of a local act providing for a road system for specified counties, under article 3, section 9, authorizing the Legislature to pass local laws for the maintenance of public roads and highways.</p> <p>6. Same—Legislative Function.</p> <p>It is the sole province of the Legislature to determine whether or not a general law can be made applicable.</p> <p>7. Same—Title of Act.</p> <p>The provision of the Act of the Twenty-second Legislature, chapter 24, section 7, that the commissioners court may, in its discretion, work the county convicts on the public roads, but shall not pay any costs that may be adjudged against such convicts, is within its title, “An Act to create a more efficient road system for the counties of Grayson . . . and further defining the powers and duties of the commissioners courts of said counties.”</p> <p>8. County Convicts—Costs of Conviction.</p> <p>The provision of article 3600 of the Revised Statutes of 1879, that' when a convict has satisfied the fine and costs in full by labor on the public works of the county or in the workhouse, the county shall pay the officers their costs, was not repealed by article 3744, Revised Statutes of 1895, relating exclusively to hiring out convicts.</p>

<p>1. Constitutional Law—Action for Personal Injuries.</p> <p>The Act of May 4, 1895 (article 3353a, Revised Statutes), providing that actions pending or thereafter brought for personal injuries not resulting in death should survive to and in favor of the heirs and legal representatives of the party injured upon his death, is not retroactive and unconstitutional as applicable to actions pending .it the time of its passage. Following Railway v. Rogers, 39 Southwestern Reporter, 1112.</p> <p>8. Pleading—Specific Statement of Personal Injuries.</p> <p>In an action for personal injuries against a city, the defendant has the right to require by special demurrer that plaintiff specifically set forth in his pleadings what injuries he had received.</p> <p>3. Jurors—Disqualification—Action Against City.</p> <p>Taxpayers of a city are not, for that reason, disqualified to sit as jurors in a ease where the city is sued for damages.</p> <p>4. Contributory negligence—Violation of City Ordinance.</p> <p>Plaintiff in an action against a city for injury received while crossing a bridge will not be precluded from recovery because of the fact that he was crossing in a gait faster than a walk, in violation of a city ordinance, unless this contributed to the injury.</p> <p>5. Municipal Corporation—Ordinary Care as to Safety of Bridges.</p> <p>The measure of a city’s duty in regard to the safety of bridges within its limits is to exercise ordinary care and diligence to see that they are reasonably safe for travel.</p>

<p>1. Pleading—Certainty—Paper in Another’s Possession.</p> <p>A petition which declares upon a contract and alleges that certain plans and specifications formed a part of it, is not defective for failure to set them out, where it avers that they are in the possession of the defendant.</p> <p>2. Damages—Measure of—Market Value.</p> <p>The measure of damages where the vendor delivers personal property which is not in quality such as is stipulated for in the contract, is not the difference in the market value at the time of the delivery between the goods delivered and the price, but the difference in the market value of the goods' as delivered and as contracted for.</p> <p>3. Evidence as to Value and Quality.</p> <p>Evidence given by the manager of a lumber company, plaintiff in a suit for material furnished, which is defended on the ground that it was of inferior quality, that upon the approval of the lumber furnished by the architect of the defendant, he had paid a third party therefor, and more than he could otherwise have paid, is inadmissible.</p> <p>4. Sale—Acceptance—Visible Defects.</p> <p>A purchaser of lumber under an executory contract who, after an opportunity to examine the lumber’ is afforded, accepts it upon delivery, can not thereafter complain as to visible defects therein, but will be held for the contract price, although it was-intended for an amphitheater to be completed by a certain date and accepted under a press of necessity.</p> <p>5. Practice—Court and Jury.</p> <p>It is a question for the jury whether at the time lumber was delivered a mutual agreement was entered into .between the parties that the question whether the lumber furnished came up to the requirements of the contract should be arranged after delivery.</p> <p>6. Same—Burden of Proof.</p> <p>The burden of proof is upon one who asserts a conditional delivery of goods in. avoidance of the legal effect of the acceptance.</p> <p>7. Estoppel—Acceptance by Architect.</p> <p>That the architect and superintendent of a building proposed to be erected personalty inspected lumber delivered in connection with the manager of the lumber company and declared it satisfactory, does not estop those in whose behalf the architect acted from afterwards asserting that the material furnished was unsuitable and of inferior quality.</p> <p>8. Arbitration and Award.</p> <p>An agreement in an executory contract to refer matters of dispute arising thereunder to a designated person for arbitration will not oust the courts of jurisdiction: but an award made in a proceeding in conformity with such a provision, in the absence of fraud or mistake, is valid, and a subsequent suit must be brought on the award, and not on the contract.</p> <p>9. Same—Court and Jury.</p> <p>Whether there was an arbitration between parties and an award previous to the institution of a suit is a question of fact for the jury.</p> <p>10. Evidence of Value.</p> <p>In an action to recover the contract price of lumber sold and used in the construction of an amphitheater, where the defense is that it was of inferior quality, evidence as to what the lumber sold for after the structure was taken down is inadmissible to-prove its value at the time of its delivery.</p> <p>11. Same.</p> <p>Testimony as to the dimensions of lumber delivered under a contract is inadmissible when the defense to the action is that it was not of the grade or quality stipulated.</p>

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

<p>1. Corporation—Power of General Manager to Employ Counsel.</p> <p>The general manager of a corporation, whose duty it is to take charge of all its business and property and control and direct all the labor and business pertaining to its interests and successful operation, and who is authorized to contract debts for the necessary operation of the business without the order of the board of directors, may bind the corporation by a contract to pay a fee to attorneys consulted by him in reference to a suit against the company to recover a large amount and foreclose a lien on its property given to secure its payment.</p> <p>2. Same—Implied Authority.</p> <p>The president and general manager of a corporation has implied authority to employ counsel to represent it in the litigation instituted for or against the corporation, without special action of the board of directors.</p> <p>3. Same—Apparent Authority.</p> <p>A corporation is bound by the acts of its president and general manager within the scope of authority which it has permitted them to appear to possess, even though 'such acts are not within the authority actually conferred by the by-laws of the corporation.</p>

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

<p>1. Jurisdiction.—Amount in Controversy.</p> <p>It is proper for the'eourt to dismiss a suit where special exceptions have been sustained to the petition reducing the sum in controversy below its jurisdiction, and the plaintiff has failed to amend.</p> <p>3. Sheriff’s Fees for Feeding Prisoners.</p> <p>A sheriff is only entitled to 30 cents a day for each of the entire number of prisoners, including the first four, if the entire number exceeds four, under Code of Criminal Procedure, article 1097, providing that for any number of prisoners not exceeding four he shall be paid for each prisoner, for each day, not exceeding 45 cents, and for any number of prisoners exceeding four, for each prisoner not exceeding 30 cents..</p>

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

<p>1. Building Associations—Application of Payments on Stock.</p> <p>A stockholder in a building and loan association has not the legal right, in the absence of an agreement to that effect, to demand that his payments on his stock shall be applied to the extinguishment of his loan debt. Following Association v. Abbott, 85 Texas, 220.</p> <p>2. Homestead—lien for Improvements.</p> <p>Section 50, article 16, of the Constitution, prohibiting any lien on the homestead except for the price thereof or improvements thereon, does not invalidate such a lien to secure money to enable the owner of a homestead to pay for labor and material ■used in erecting a dwelling thereon.</p> <p>3. Same—Application of the Money.</p> <p>A lien on a homestead in favor of one who advances money to the owner to be used in paying for labor and materials used in improvements thereon is not invalidated because the borrower, for the sake of convenience, pays some of the bills for erecting the improvements out of other funds and then takes a similar amount for other business from the funds advanced for building purposes.</p>

<p>1. Damages to Land—Lienholder as Party.</p> <p>A verdict will not be directed for defendant in an action to recover for damagesto real property from the construction of a railroad in the street and cattle pens-near by it, because the deed under which plaintiff claims retains a vendor’s lien and the holder thereof is not a party to the action, where the deed is nearly ten years old and the evidence fails to show when the debt matured or to negative its payment, and the vendor as a witness for plaintiff testified that the property, after the damage, was worth an amount more than double the lien reserved, and neither he nor the plaintiff, who was a witness, was asked with reference to the lien.</p> <p>2. Same—Permanency of Injury—Measure of Damages.</p> <p>A requested charge in an action for damages to abutting property from the construction of a railroad in the street, that the damage is not to be assessed on the-basis that the streets are always to remain as they were immediately after the railroad was constructed, but thatv the jury should also consider the probable cost of obtaining other outlets and streets, is properly refused where there is no evidence on which to base it, and the court has charged that the measure of damages is the difference between the market value of the property immediately before and immediately after the construction of the road.</p> <p>3. Practice on Appeal—Excluding Evidence—Harmless Error.</p> <p>The exclusion of the answer of a witness that he did not think plaintiff’s property had ever been desirable residence property before the construction of the stock pens near it, is not prejudicial, even if erroneous, where the witness had testified fully as-to all facts and surroundings of the property.</p> <p>4. Practice on Appeal—Bill of Exceptions—Statement of Pacts.</p> <p>A statement of facts on appeal agreed to by the parties and signed by the trial' judge will control in case of a conflict between it and the bill of exceptions with reference to the question whether or not certain evidence was excluded.</p> <p>5. Same—Harmless Exclusion of Evidence.</p> <p>The exclusion of certain testimony of a witness is harmless where he had already-testified as to the same matter in another form."</p> <p>6. Evidence Held Hot a Conclusion.</p> <p>It is competent for a witness to testify that plaintiff’s only public thoroughfare from his house before the construction of a railroad was along a certain street, and that such public thoroughfare is rendered useless on account of the cut in the street. in which the track is laid, and that his only thoroughfare since the, construction of' the road is over private property or along sidewalks.</p> <p>7. Damages to Realty—Measure of.</p> <p>The measure of damages for the construction of stock pens by a railroad in a street to the injury of adjoining property is the difference between the value of such property before and after the construction, if the stock pens are permanent in their nature.</p> <p>8. Evidence—Harmless Exclusion of.</p> <p>The exclusion of the opinion of a witness that property claimed to have been damaged by the construction of a railroad in a street was never desirable property and was^ not well situated, even if erroneous, is not prejudicial where the witness had testified with reference to the location of the property, the construction of the road, and the value of the property before and after such construction.</p>

<p>1. Mandamus and Injunction—Commissioners Court—Pleading.</p> <p>If the district court is authorized to interfere by writ of mandamus or injunction with the action of the commissioners court in subdividing the county funds into the classes prescribed by article 857, Eevised Statutes, the petition therefor should set out the action complained of and the objections urged to it, with appropriate prayer for writs so framed as to correct it.</p> <p>2. Same—Funding County Indebtedness.</p> <p>The funding of county indebtedness rests within the discretion of the commissioners court, and can not be controlled by the writ of injunction or mandamus.</p> <p>3. Counties—Classification of Funds.</p> <p>The power given the commissioners court by article 858, Eevised Statutes, to create other classes of funds than the three classes prescribed in article 857, can not be so used as to destroy the rights of holders of registered claims to have them paid, out of the appropriate fund in the order of their registration.</p> <p>•4. Same—Payment of Warrants—Judgment Against County.</p> <p>A holder of county warrants is entitled to judgment thereon against the county where they have not been paid because of the action of the commissioners court in subdividing the class of funds to which they belong into yet other classes in such manner as to defeat their payment of the warrants in the order of their registration.</p>

<p>1. Lien—Landlord and Tenant.</p> <p>A lessor of a vacant lot has no lien for unpaid rent on improvements erected thereon by the lessee. Articles 3235, 3251, Revised Statutes, construed.</p> <p>2. Forcible Entry—Title to Realty.</p> <p>The title to a building and improvements erected by the lessee on the rented lot can not be determined in an action of forcible entry and detainer.</p>

<p>1. Execution Levy and Deed Thereunder—Description of Land.</p> <p>A description of land in a levy of execuuon and in the deed thereunder which refers to the record of the report of commissioners of partition and judgment of court allotting the tract, is sufficient, since evidence aliunde is admissible to aid such description.-</p> <p>.2. Judgment for Costs—Nonresidents—Publication.</p> <p>A judgment for costs in a partition suit against unknown heirs, rendered upon ■citation by publication, is void as to such of them as were nonresidents, but valid as ■to those who were residents at the time.</p>

<p>1. Evidence—Transaction with Decedent.</p> <p>The plaintiff in an action to foreclose a mechanic’s lien is not incompetent to testify as to transactions with the deceased owner merely because the latter’s widow and survivor in community is made a party to the suit as such, where she is not a proper party because no judgment is sought against her and she has disclaimed all interest in the property, which had been sold under a deed of trust before the owner’s death. Revised Statutes, article 2302, construed.</p> <p>2. Assignment of Error.</p> <p>Assignments of error can not be considered where the proposition stated and discussed thereunder is not raised by nor embraced in the assignments.</p> <p>3. Mechanic’s Lien—Original Contract—Fixing Lien.</p> <p>" One who contracts with the owner to construct the walls of a building, after a previous contract between the owner and another contractor for the construction of the entire building, including walls, had been modified by excepting the walls, is an original contractor and not a subcontractor, and it is not necessary for him to file his contract, and he is not subject to article 3295, Revised Statutes, prescribing the-requirements for fixing the lien of a subcontractor.</p> <p>4. Assignment of Error.</p> <p>An assignment of error to the refusal of the trial court to submit certain special issues tq the jury as requested by the plaintiffs in error can not be considered where the record fails to show by bill of exceptions or otherwise that such special issues were ever presented to the court below or called to its attention in any manner.</p> <p>5. Practice in Trial Court—Special Issues and Verdict.</p> <p>The question as to the validity of a mechanic’s lien attacked upon the ground that' the property was a business homestead and the contract under which the lien is claimed was not signed and acknowledged by the owner’s wife, is properly submitted to the jury by a special issue calling for the ultimate fact as to whether or not the property was a business homestead, supplemented by an instruction with reference to the intention which the owner must have entertained in order to make it his business homestead. Article 1331, Revised Statutes, as to special verdicts, construed.</p> <p>6. Same—Issue Hot Raised by Pleading.</p> <p>The court upon the trial of an action to foreclose mechanic’s liens which are superior to the lien of a prior trust deed as to the building, but inferior as to the lot, properly refuses to submit as a special issue to the jury whether a purchaser of the-property under the trust deed executed a mortgage upon the property to his codefendant to secure the purchase money notes and whether the latter now holds the-notes, where no such issue is raised by the pleadings.</p> <p>7. Same—Special Issue—Business Homestead—Intention.</p> <p>A special issue submitted to the jury thus, “Was the place upon which plaintiff and interveners are seeking to foreclose mechanic’s liens; the business homestead of C. at the time said contracts were executed by 0. for the erection of the building?”' is not objectionable on the ground that it contains a mixed question of law and fact, and not one of fact only.</p> <p>8. Business Homestead—Intention at Date of Contract.</p> <p>The question as to the homestead character of a house for the building of which the owner makes a contract depends on the owner’s then intention to so use and occupy it in the future, rather than on a subsequent abandonment of that intention., so far as concerns the validity of the builder’s lien contract, made without the wife’s-due written assent thereto.</p> <p>9. Mechanic's Liens—Foreclosure and Sale—Prorating Liens.</p> <p>Á decree foreclosing a mechanic’s lien on a building where a prior lien for the' purchase money existed upon the lot at the time the mechanic’s lien was fixed, may properly direct both lot and building to be sold together as a whole and the proceeds prorated between the lienholders on the lot and those holding liens on the building where the building can not be removed from the lot without great loss, damage, or expense.</p>

<p>Appeal from Wilbarger. Tried below before, Hon. J. R. Talbert.</p>

<p>1. Sequestration—Affidavit.</p> <p>The statement in an affidavit for sequestration, that the property is worth the amount “above set forth,” sufficiently complies with the statutory requirement that, it shall state the value of the property, where it is previously stated in the affidavit that there is a specified amount due on the claim, and this the only amount named in the affidavit.</p> <p>2. Foreclosure of Chattel Mortgage—Attorney Fee.</p> <p>A chattel mortgagee is not entitled to the attorney’s fees which the mortgage permits him to retain as part of the expense of making the sale, should the debt mature- and not be paid, and he take possession of the property and sell it, where the property is seized and sold before maturity under a writ of sequestration which he obtained upon the ground that he feared the mortgagor would remove the property from the county, unless he did in fact fear such removal; and it is not sufficient that he had probable cause to fear it.</p> <p>3. Same—Damages for Sequestration.</p> <p>A chattel mortgagor is entitled to recover his actual damages for the seizure of the mortgaged chattels under a writ of sequestration issued upon the ground that the mortgagee feared his removal of the property from the county, where the mortgagee did not in fact entertain such fear, although he may have had probable cause to do so.</p> <p>4. Same—Burden of Proof.</p> <p>The burden of proof is on the defendant who seeks damages for a wrongful sequestration to prove that the ground alleged for suing out the writ did not exist.</p>

<p>1. Telegraph Company—Damages for Mental Anguish.</p> <p>Damages are recoverable for mental anguish resulting from the fact that the burial of plaintiff’s wife took place before his arrival, because of delay in the transmission of his message announcing that he would be there on the first train, as a burial at the time it occurred, in the absence of hearing from the husband, must be held a result within the contemplation of the parties to the contract of transmission.</p> <p>S. Same—Damages Mot Too Remote.</p> <p>Where plaintiff’s message stating that he would come on first train was in reply to one announcing the death of. his wife and asking him to come, and if not, to answer, the inference that the funeral would have been delayed had Ms answer been received is not speculative so as to render the damages for delay too remote. Telegraph Co. v. Motley, 87 Texas, 38, distinguished.</p>

<p>1. Survey—Conflicting Calls.</p> <p>A call in a survey for the unmarked lines of surrounding surveys is not overcome by the mere fact of excess in distance and in the quantity of land called for.</p> <p>2. State School Land—Actual Settler.</p> <p>One can not be an actual settler on State school land without actually residing on it, although he may be occupying it preparatory to and with the bona fide intention of thereafter removing to and residing upon the land as his home.</p> <p>S. Same—Possession and Settlement.</p> <p>An erroneous instruction in trespass to try title to school land, authorizing a recovery by plaintiff upon insufficient proof of actual settlement .is not rendered harmless by the fact that the State intervened in the action and failed to recover, as defendants were entitled to possession of the land, it being vacant, as against every .claimant except the State.</p>

<p>1. Bes Judicata—Judgment for Insurance Premiums.</p> <p>An insurance company’s agent notified C. that a policy issued to him was canceled for failure to pay the premiums due thereon, and then brought suit against 0. in his own name in justice court and recovered judgment there for the earned portion of the premium due to date of the cancellation, claiming that he had himself settled that amount for C. with his companj' under its requirements. The property having afterwards burned, C. brought suit against the company on the policy, his claim as to payment of the premium thereon being that he had settled it with the company’s agent through another insurance agent. Held, that the judgment in the justice court did not determine the issue in this latter case as to the payment of the premium by C. as claimed by him.</p> <p>2. Pire Insurance—Cancellation of Policy—Beturn of Unearned Premium.</p> <p>Where an insurance policy provides that the company may cancel it on notice, and that the insured shall be entitled to a return of the unearned portion of the premium paid, the company must, upon giving such notice, return or tender back the unearned premium as a condition precedent to the forfeiture by cancellation.</p>

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

<p>Error from Coryell. Tried below before Hon. J. S. Straughan.</p>

<p>Appeal from Brown. Tred below before Hon. E. C. Harrell.</p>

<p>1. Sale—Lien—Reservation of Title—Statute Construed.</p> <p>Section 17 of the assignment law of 1879 (Revised Statutes, article 2584) does not by its terms apply to or make void a reservation by the vendor until payment of the purchase price of his title to merchandise which was to be exposed for sale by the vendee, such transaction not being “a form of lien attempted to be given by the owner” within the meaning of that statute.</p> <p>2. Same.</p> <p>The subsequent enactment in 1885 of the present articles 2549, 3327, Revised Statutes, 1895 (making such reservation a chattel mortgage), did not extend the provisions of article 2584 so as to make it include such a transaction.</p> <p>3. Same—Chattel Mortgage—Failure to Register—Trust Deed—Accepting Creditors.</p> <p>Revised Statutes, articles 3327, 3328, giving such reservation of title the effect of a chattel mortgage subject to registration, do not make such lien, though unregistered, void as against creditors of such vendee who have acquired no rights in the property other than by an acceptance of a deed of trust by the vendee conveying the mortgaged property for their benefit.</p> <p>4. Same.</p> <p>To protect such accepting creditors they must have paid a valuable consideration for their mortgage lien at the time of its execution, in addition to their pre-existing debts. The fact that they are lien creditors for a pre-existing debt will not suffice.</p> <p>5. Same—Creditors.</p> <p>The term “creditors,” as used in article 3327, has the same meaning as in article 3328, and includes all persons whose claims are, upon certain conditions, charged by law as specific liens upon certain property, such as holders of attachment, execution, judgment, landlords’ and mechanics’ liens, and no others.</p> <p>6. Same—Purchasers—Consideration.</p> <p>The word “purchasers” in article 3327, as in article 3328, includes all persons who have fixed their liens by contract or act of the parties, and embraces holders of claims secured by trust deed or mortgage, who, in order to bring themselves within the terms of the statute, must show that they hold for a consideration advanced without notice of the unrecorded lien.</p> <p>7. Same—Pre-existing Debt.</p> <p>A pre-existing debt, where there is no extension of time, is not such a consideration.</p>

<p>Appeal from Bastrop. Tried below before Hon. Ed. R. Sinks.</p>

<p>1. Jurisdiction—Amount—Lien—Garnishment—Constable.</p> <p>Suit upon a note for less than $500 and to foreclose a lien therefor upon land, was within the jurisdiction of the district court, though brought before the maturity of the note and with the issuance of attachment and garnishment; the lien was not waived by so suing, and neglect of an officer to serve the garnishment could not be defended on the assumption that the writ was void for want of jurisdiction in the court.</p> <p>2. Constable—Neglect to Serve Process—Burden of Proof.</p> <p>In a suit against a constable for neglecting to serve garnishment until after the garnishee had paid the debt the burden was on defendant to show the garnishee’s insolvency as relieving him from liability.</p>

<p>1. Homestead Exemption—Place of Business—But One Protected.</p> <p>The exemption as homestead, to the head of the family, of a lot or lots upon which he is engaged in business, does not extend to separate lots and buildings on which he is pursuing distinct lines of business. He is only entitled to one place of business and what is inseparably connected therewith or adapted and reasonably necessary thereto.</p> <p>2. Same.</p> <p>The head of a family who was engaged as a merchant of dry goods and groceries in one building and of hardware and tinware in another building on the opposite side of the street, owning both buildings and the lots on which they stood, joined with his wife in a designation of the latter as his business homestead, and on the faith of such designation obtained a loan which he secured by mortgage on the former. Held, that he was not entitled to a business homestead in both establishments, and was bound by his selection; and the facts being clear, the court should have directed a verdict upon this issue and decreed a foreclosure, and on its failure to do so the ■appellate court could reverse and render such judgment.</p> <p>3. Practice on Appeal—Rendering Judgment.</p> <p>Where the facts are such that the trial court should have directed a certain verdict the Appellate Court may reverse and so render it, in spite of a contrary finding below.</p>

<p>Appeal from Hamilton. Tried below before Hon. J. C. Main.</p>

<p>Market Value—Reasonable Time for Sale.</p> <p>The market value of a stock of goods, that is the amount for which they could be sold in bulk at a given time and place, is such as could be obtained by allowing the seller a reasonable time within which to sell them for cash.</p>

<p>1. Sales by Sample.</p> <p>Sale by sample contemplates an inspection by the buyer, and opportunity therefor, and implies a warranty that the goods shall be of like quality and character to the samples.</p> <p>2. Same—Pleading—Burden of Proof.</p> <p>A plea to an action to recover for goods sold, which alleges that the sale was by sample and that the goods did not correspond therewith, and were not accepted but returned, is not a plea in confession and avoidance; and the burden is upon plaintiff to show that the goods corresponded to sample or were acecepted by defendant.</p>

<p>1. Jurisdiction—Vendor’s Lien—Collateral Security.</p> <p>A suit upon a note for less than $500 was within the jurisdiction of the district court where the same action sought foreclosure of a vendor’s lien securing notes of other parties assigned to plaintiff as collateral security.</p> <p>2. Same—His joinder of Parties—Waiver.</p> <p>Objection that the makers of the notes held as collateral were improperly joined as defendants in the suit against the obligors on the principal note should have been taken in the trial court, and, where not so raised, can not be urged on appeal to defeat the jurisdiction of the district court which depended upon the foreclosure of the lien for such collateral notes.</p> <p>3. Pleading—Application of Payments—Coupon Interest Motes.</p> <p>See pleading held to allege that proceeds of collateral security were paid and received upon the note held for the principal debt, and not applied to coupon notes due for the semi-annual interest, for the nonpayment of which the holder was authorized to declare the entire debt due.</p> <p>4. Appeal—Collateral Security—Question Mot Raised.</p> <p>The makers of a note sued upon, with whom plaintiff has joined as defendants the makers of other notes assigned to him as collateral, can not object, upon appeal, that plaintiff has sought and recovered judgment upon the collateral notes, not for their full amount, but merely for the sum due on the note that they were held to secure, where they made no objection to such proceeding in the trial court.</p>

<p>.Appeal from Hays. Tried below before Hon. Ed. R. Kone.</p>

<p>Appeal from Hays. Tried below before Hon. H. Teichmueller.</p> <p>The case on a previous appeal is reported in 14 Texas Civil Appeals, 656.</p>

<p>1. Railway—Eminent Domain—Damages.</p> <p>The measure of damages where a railway, in a suit for recovery of land long occupied by its tracks without right, reconvenes asking condemnation, is the value of the land at the time of trial, and evidence of its value at the time of the construction of the road is immaterial.</p> <p>2. Same—Bona Eide Occupancy.</p> <p>The same rule applies irrespective of whether the company’s occupancy was or was not under a bona fide claim of right. But if a distinction is to be made it would not apply where the right was acquired from one then litigating title with the true owner, who afterwards prevailed in this suit.</p> <p>3. Railway—Right of Way—Occupying Without Objection.</p> <p>The owner’s right to compensation is not waived by standing by and permitting a railway company to lay its tracks over his land without objection.</p> <p>4. Eminent Domain—Compensation—Uses of Property.</p> <p>The measure of damages is the value of the property for the most advantageous uses to which it may be applied by the owner.</p>

<p>1. Deed of Trust—Power of Substitution—Validity.</p> <p>The makers of a trust deed to secure certain creditors may reserve the right and power to appoint a substitute in case of the trustee’s death or failure to act; and where the trustee appointed has taken possession of the property and the beneficiaries have accepted, other creditors are not defrauded by reason of the reservation of such power to the makers, no occasion having arisen for its exercise.</p> <p>2. Same—As Affecting Individual and Firm Property.</p> <p>If the reservation in a deed of trust covering both firm property and the individual property of a member of the firm, of a power to the grantors, “or either of them,” to substitute a new trustee in case of the failure of the original appointee to act, invalidates it as to the individual property as against unsecured creditors, it does not affect it so far as the firm property is concerned.</p> <p>3. Same—Prior Deed—Unsecured Creditors.</p> <p>Unsecured creditors can not question the validity of a deed of trust given to secure other creditors on the ground that a prior deed had been executed, and the fact of such prior deed will not render the junior one void, but the latter will be treated as a subsequent mortgage on the property.</p>

<p>1. Allegata and Probata—Personal Injuries.</p> <p>Allegations in plaintiff’s petition to the effect that his damages resulted from the negligent crushing of his foot by defendant's cars will not warrant the admission of evidence to show that an attending physician in the employ of the defendant company improperly administered an enema which caused a permanent stricture of the bowels.</p> <p>2. Railway Company—Neglect of Physician.</p> <p>A railway company is not liable for damages resulting from the errors and mistakes of a competent physician employed to attend one who has been injured by its cars.</p> <p>3. Practice in Trial Court—Exclusion of Evidence.</p> <p>Where evidence not warranted by plaintiff’s pleadings, and injurious to the defendant, has been admitted, though without objection, it should be excluded on defendant’s motion made after the evidence has closed, and the jury should be instructed to disregard it.</p>

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

<p>Appeal from Navarro. Tried below before Hon. L. B. Cobb.</p>

<p>Appeal from Dallas. Tried below before Hon. Edwaed GtBAY.</p>

<p>1. ^Principal and Surety—Dismissal.</p> <p>In an action by a ward against a former guardian and his sureties to recover sums unaccounted for, the plaintiff may dismiss as to such guardian where it is shown that he is a fugitive from justice and can not be found. Eev. Stats., art. 1204.</p> <p>2. Guardian’s Bond—Validity.</p> <p>The sureties upon a guardian’s bond can not question its validity because the ■court made the order requiring a new bond to be given without citing the guardian to appear and show cause, when the court had jurisdiction of the matter and the parties acquiesced therein and voluntarily executed the new bond which was sued upon.</p> <p>;3. Same—Judgment Upon, Conclusive, When.</p> <p>The judgment of the probate court fixing the amount due by a guardian to his ward upon his removal is conclusive both as against the guardian and the sureties upon his bond.</p> <p>■4. Same—Judgment Hot Conclusive, When.</p> <p>An order of the probate court fixing the amount of a guardian’s liability to his ward upon his removal in the sum stated to be due by the guardian’s final report is ■superseded by a subsequent adjudication made on final account, which shows a larger sum to be due.</p> <p>5. Same—Removal of Guardian—Order of Discharge.</p> <p>An order removing a guardian and directing him to turn over to the clerk of the ■court all moneys in his hands as guardian will not operate as a final discharge where the guardianship is not declared closed, but the court retains jurisdiction of the matter to the extent of enforcing its decree that the guardian account to his ward.</p> <p>6. Same—Conditional Signing.</p> <p>A surety on the bond of a guardian can not escape liability on the ground that he stated to the county judge that he would sign the new bond required to be given only on the understanding that it be executed by all the sureties to the old bond, ■one of whom did not sign it, when the judge told him that he must execute it unconditionally or he would not approve it, and the instrument was later presented to the judge for approval without mention of any reservation.</p> <p>V. Same—Burden of Proof.</p> <p>The burden of proof is upon one who has signed the bond of a guardian as surety to establish such facts as would relieve him from liability.</p>

<p>Appeal from Lamar. Tried below before Hon. Chas. S. Neatheby.</p>

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

<p>1. Distress Proceedings—Warrant and Bond—Discrepancy of Dates.</p> <p>Distress proceedings will not be quashed because the bond is dated after the issuance and levy of the warrant, where it clearly appears from the file marks that such date is a mistake, and that the bond was actually executed before the warrant was issued and levied.</p> <p>2. Same—Cost Bond Necessary.</p> <p>Plaintiff in distress proceedings is not excused from giving security for costs by the bond for distress given by him which provides only for payment of damages.</p> <p>3. Costs—Rule for—Harmless Error.</p> <p>Refusal to require plaintiff to file a bond as security for costs is harmless to defendant, where judgment is rendered against him.</p> <p>4. Landlord and Tenant—Lien for Credit Advanced.</p> <p>As against other creditors of a tenant a lien does not attach, under the statute, in favor of a landlord, for supplies furnished by a third person for the .payment of which the landlord becomes security, where the tenant remains bound to such third person for the debt.</p>

<p>1. Uotice—Execution Purchaser Chargeable With.</p> <p>The levy of an execution on land does not create a lien superior to that of a prior purchaser of the land by an unrecorded deed, where the execution creditors, who were the purchasers thereunder, had notice of such deed prior to the levy.</p> <p>3. Evidence—Admissibility—Form of Objection.</p> <p>Evidence, part of which is legitimate, is properly admitted as a whole, as against an objection made to the entire evidence.</p> <p>3. Same—Parol Evidence—Officer’s Return.</p> <p>Parol evidence is admissible in behalf of a stranger to the return of a sheriff to an execution, to show that a recital therein was a mistake.</p>

<p>Appeal from Ellis. Tried below before Hon. J. C. Smith.</p>

<p>1. Removal of Cause to Federal Court—Usury.</p> <p>An action to recover a penalty for usury and to cancel an obligation to pay money does not involve $2000, the amount requisite to give the Federal court jurisdiction in case of diverse citizenship, where the amount due on the obligation, added tb the amount of penalty sought to be recovered, is less than $2000.</p> <p>2. Usury—Assumed Debt.</p> <p>The defense of usury to a mortgage is not available to a grantee of the mortgaged property who assumes the payment of the mortgage as a part of the consideration. '</p>

<p>Error from Harris. Tried below before Hon. John G. Tod.</p>

<p>1. Pleading—Life Insurance.</p> <p>An averment of the. ill-treatment of the interveners by the plaintiff, in a plea of intervention which seeks to engraft a paroi trust upon a policy of life insurance, payable by its terms to the plaintiff, in favor of the children of the insured (plaintiff's step-children) is irrelevant, where, according to the plea, the trust only authorized the plaintiff to collect the proceeds of the policy, and does not aver that it gave her the control and disbursement of the children’s share.</p> <p>2. Charge of Court Upon Weight of Evidence.</p> <p>A charge based solely upon the testimony of one witness as to the matter in issue, and wholly ignoring the conflicting testimony of another witness, is upon the weight of evidence, and improper.</p> <p>3. Charge of Court—Issue Omitted—Benefit Insurance.</p> <p>A charge that the step-mother’s right to the custody of the children, and their claim to a share of the funds derived from the benefit certificate in suit are separate and distinct issues, or some charge of similar import, should be given upon request in the trial of an issue as to the existence of a paroi trust in favor of the children in part of the proceeds of a benefit certificate upon their deceased father’s'life, paj'able to the step-mother, where there is evidence that it was the father’s wish and expectation that the children should remain with their step-mother, and since his death a probate court has confided their custody to another because of their ill-treatment by the step-mother.</p>

<p>1. Continuance—Diligence.</p> <p>A first application for continuance by reason of the absence of witnesses should* be granted where the applicant shows due diligence.</p> <p>2. Jury—Impaneling.</p> <p>The court’s failure to have the jury drawn in accordance with the law providing for the impaneling of juries, whereby the appellant exhausted his challenges upon, the list furnished him before the jury was formed, and was obliged to accept tales-men without an opportunity to challenge them, is erroneous.</p> <p>3. Railway Company—Killing Animals on Track.</p> <p>A railroad company is not liable, without proof of negligence, for the loss of an-animal killed upon a crossing put in and maintained, with proper cattle guards, at the request and for the benefit of the owner of the animal killed.</p>

<p>1. Public School Land—Actual Settlement.</p> <p>A finding that plaintiff was an actual bona fide settler within the statute authorizing the sale of the public school lands at the time he filed his application is not sustained where the only evidence to support the finding is to the effect that a few days before filing the application he entered upon the land and stuck into the ground a half dozen sticks as evidence, and that he did not remain upon the property as much as an entire day at any one time for a period of seven or eight months thereafter, but subsequently built a shanty on the ground. Rev. Stats., arts. 4287, 4291.</p> <p>2. Same—Actual Settler Defined.</p> <p>An “actual bona fide settler,” within the meaning of the statutes authorizing the sale of the public domain to actual and bona fide settlers, is one who occupies the land as a residence, or with a view to a residence.</p>

<p>1. State School Land—Sale by Commissioner of Land Office.</p> <p>The failure of the county commissioners’ report to the Commissioner of the Land Office under the Act of July, 1897, as amended by that of April 6, 1881, to give the general description of State school lands as to soil, water, and timber, as contemplated by section 3, did not make it obligatory upon the Commissioner to reject the report or deprive him of the power to sell the land until after a supplemental report was made, supplying the omission, in view of the duty imposed uopn him by section 4 to have the report corrected before approving it, if in his judgment a defect in the description requires such action. Distinguishing Ramsey v. Medlin, 55 Texas,</p> <p>246; Snyder v. Nunn, 66 Texas, 255.</p> <p>2. Same—Presumption as to Date of Sale.</p> <p>It will be presumed in aid of a sale of State school land under the Act of July,</p> <p>1879, as amended by that of April 6, 1881, that the county surveyor did his duty and did not consider or entertain the application for purchase until after he was notified by the Commissioner of the General Land Office that the report of the commissioners court had been approved by him; and such presumption is not overcome by the mere fact that the application bears date before the approval of the report, the date of the record of the application in the surveyor’s office not appearing.</p> <p>3. Same—Sale Good as Against Third Parties.</p> <p>The fact that the county surveyor, in violation of the statutes, received and entertained an application for the purchase of state school land before the approval by the Land Commissioner of the report of the county commissioners court with reference to the land, is not available to one whose rights did not intervene until the report had been approved, as a defense to an action by the purchaser to recover possession.</p> <p>4. Limitation—Possession of Squatter.</p> <p>The ten years statute of limitations does not run in favor of a mere squatter against an- action of trespass to try title by the owner of the inchoate title in State school land by virtue of a purchase thereof from the State.</p>

<p>1. Contribution—Parties.</p> <p>To enforce contribution between joint obligors where some of them have discharged the joint obligation without assistance from the others, all persons who have a legal or beneficial interest in the subject matter of the suit should be made parties, either plaintiffs or defendants.</p> <p>2. Same—Misj oinder—ÜYTultif ariousness.</p> <p>A bill in equity by joint obligors to enforce contribution from co-obligors for sums paid at different times to various persons by the plaintiffs in accordance with the terms of a guaranty signed by the parties, is not demurrable for a misjoinder of causes of action or bad for multifariousness.</p> <p>3. Same—Amendment—Hew Cause of Action—Limitations.</p> <p>In a suit to enforce contribution between joint obligors the amended petition does not set up a new cause of action where both the original and amended petitions declare upon the implied promise of the guarantors between themselves to pay to each any sum he might pay in discharge of their joint contract in excess of his subscription, although upon a former trial it was erroneously held that the suit was upon a guaranty, and that the four years and not the two years bar of limitation was applicable to the case.</p> <p>4. Same—Parties.</p> <p>Guarantors of the performance of a contract made between a citizens’ executive committee and a railroad company to secure a right of way for it through the county free of cost, in an action to enforce contribution from coguarantors for sums paid by the plaintiffs, may properly make one a party to the action to whom they have agreed to pay such damages for the grant of a right of way as might be agreed upon or adjudged him.</p> <p>5. Same—Same—Dismissal Not Voluntary.</p> <p>In a suit by members of a committee which guaranteed the performance of a contract between a citizens’ executive committee and a railroad company to furnish the latter a free right of way, in which it is sought to enforce contribution from co-guarantors, the latter can not escape liability for sums paid by the plaintiffs in the purchase of a depot site on the ground that the plaintiffs have dismissed their suit against the executive committee of which the guaranty committee formed a part, when the dismissal was not voluntary.</p> <p>6. Same—Guarantor.</p> <p>A judgment in favor of a guarantor in an action by him and others who had subscribed sums in aid of a railroad company to enforce contribution from coguarantors is not erroneous, although the jury found that he had paid a little less than his subscription, when the guarantors were indebted to the defendant for a sum adjudged him as compensation for a right of way and the judgment is for his proportionate share of that sum, less the deficiency in his subscription.</p> <p>7. Same—Eight of Action Arises, When.</p> <p>A right of action for contribution by members of a committee who have subscribed sums in aid of a railroad company and guaranteed a free right of way does not arise upon the advancement of money or the assumption of liability by any of them in excess of his subscription in furtherance of the common purpose, but only when subscriptions have been collected and paid out, the road has been obtained, and the railroad company has been settled with.</p> <p>8. Same—Extent of Eecovery.</p> <p>The members of an executive committee who have paid sums in aid of a railroad company, although not in excess of the amount subscribed by them, may seek contribution from other members of the committee after it has been released by the railroad company from payment of the balance, when they paid such amounts under the belief that the full sum would be demanded.</p>

<p>Eebob from Walker. Tried below before Hon. R. E. Haxxay.</p>

<p>1. Garnishment—Mames of Firm in Application.</p> <p>An application for a writ of garnishment which sets out the name of a mercantile firm without giving the names of the persons of which it is composed, is not a compliance with article 219, Revised Statutes, requiring the name of the garnishee to be stated.</p> <p>2. Same—Amendment.</p> <p>A writ of garnishment will be quashed where the application fails to set out the name and residence of the garnishee, and such failure can not be cured by amendment.</p>

<p>1. Survey—Construction of Calls.</p> <p>The calls for course and distance in a junior survey yield to a call for the lines of senior adjoining surveys on either side as boundaries, if the calls for course and distance would carry the intersecting lines beyond the lines of the senior survey as fixed by their own field notes.</p> <p>2. Covenant of Warranty—Quantity Conveyed.</p> <p>A covenant of warranty of title does not cover a deficiency in the acreage within the prescribed boundaries, but the grantee is entitled to relief in equity if the deficiency was the result of a mutual mistake of the parties.</p> <p>3. Interest—Buns Frota. Date of Payment, When.</p> <p>The purchase price paid for a tract of land, and which is recovered by the purchaser because of a mutual mistake as to the acreage of the tract, bears interest from the time it was first paid.</p> <p>4. Sale of Land—Becovery for Mistake.</p> <p>A grantee of land who is entitled to recover a portion of its price from his immediate grantor because of a mutual mistake as to the quantity comprised in the tract is not entitled to a judgment against a remote grantor, although the latter may be liable to the immediate grantor because of a similar mistake.</p>

<p>Appeal from Jefferson. Tried below before Hon. Stephen P. West.</p>

<p>Arpead from Clay. Tried below before Hon. Emmett Patton.</p>

<p>1. Trespass to Try Title—Deed—Description of Land.</p> <p>In trespass to try title where the land was described in a deed in plaintiffs chain, by name of survey, number of acres, abstract number and name of county, this was sufficient.</p> <p>2. Same—Deed—Sufficiency.</p> <p>A deed conveying such title as is vested in the grantor by virtue of a certain sheriffs deed is, in trespass to try title, a sufficient conveyance of the legal title as against, a mere trespasser.</p> <p>3. Same—Proving Execution of Deed.</p> <p>Where plaintiffs deeds were excluded because of defective acknowledgment, and there were no subscribing witnesses thereto, it was permissible for him to establish their execution by proof of the handwriting of the grantors.</p>

<p>1. Vendor and Purchaser—Failure of Consideration and Title.</p> <p>A grantee is not prevented from abandoning possession and tendering a reconveyance and defeating the recovery of the purchase price of the land for failure of consideration on account of the breach of the grantor’s agreement to furnish him with an abstract showing a complete or perfect title, by reason of the fact that the deed warrants the title and he has not been disturbed in his possession.</p> <p>2. Abstract of Title.</p> <p>The provision of a contract requiring a vendor to furnish the purchaser a “complete or perfect abstract of title” will be construed by the court to require an abstract showing a complete and perfect title where the parties appear to have so understood it.</p>

<p>Appeal from Baylor. Tried below before Hon. R.- J. Browning.</p>

<p>Removing Cloud from Title—Insufficient Grounds.</p> <p>Where the plaintiff’s petition to remove cloud from the title to land and for damages discloses that the adverse claim consists of a judgment against plaintiff's grantor foreclosing an attachment lien upon the land, the attachment having been levied after plaintiff’s right had accrued, and such judgment having never been carried to sale, no ground is shown for apprehending that plaintiff’s possession will ever be disturbed, and no cause of action appears.</p>

<p>Appeal from Palo Pinto. Tried below before Hon. W. G. Eewbrough.</p>

<p>Public Lands—Constitutional Law—Leases and Homestead Donations.</p> <p>Section 6, article 14, of the Constitution, granting homestead donations of 160 acres of public land to heads of families does not deprive the Legislature of power to authorize the Commissioner of the General Land Office to make leases of the public domain as provided in the Act of 1895.</p>

<p>1. Jurisdiction—County and District Courts—Administration Proceedings.</p> <p>The county court has no jurisdiction to compel the administratrix of her husband’s estate to place upon the inventory land the legal title of which was in deceased at the time of his death, but which she avers in her answer to the motion was purchased out of her separate estate and belongs to her, since the county court has no jurisdiction to determine the title; nor has the district court such jurisdiction on certiorari to review the action of the county court, since the latter is without jurisdiction.</p> <p>2. Administration—Limitations.</p> <p>It is the duty of the district court in certiorari proceedings instituted by the widow of a decedent in her individual capacity and as administratrix and as guardian of the children to review the orders of the county court, allowing certain claims against the estate, notwithstanding that her right in her individual capacity and as administratrix is barred by the lapse of time, where the children are protected by the disability of infancy from the bar of the statute. Article 332, Revised Statutes.</p> <p>3. Same—Attorney Pees.</p> <p>The county court has no authority to allow attorney’s fees on notes presented against a decedent’s estate, where the notes contain no provision for such fees.</p> <p>4. Same—Limitations—Claim by Surety.</p> <p>A claim against a decedent’s estate for the amount paid by the claimant as surety for the decedent is subject to the two years statute of limitation applicable to actions for indebtedness not evidenced by a contract in writing, where it does not appear that the note has been indorsed or transferred to the surety, or that he has become the owner thereof by purchase.</p>

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

<p>1. Probate Sale—Defective Becords.</p> <p>See probate records, though fragmentary and partly lost, held to support a finding that the person executing certain deeds was administrator of an estate and authorized to execute them by order of the court.</p> <p>2. Lost Becords—Evidence—Bepute Among Lawyers.</p> <p>Testimony of the clerk of the county court that the probate records for certain years, which could not be found, were reputed among the lawyers of the county to be missing, was admissible to show loss of such records; as was also the testimony of such clerk that he was informed that they were missing six years before, when elected to the office.</p> <p>3. Land Office—Certified Copies.</p> <p>Duly certified copies of indorsements upon a certain Land Office copy of a land certificate were admissible in evidence.</p> <p>4. Probate Becords—Appointment of Administrator.</p> <p>Certified copies of papers filed by an administrator and acted on by the court, and of court proceedings recognizing him as administrator, were receivable in support of sale of land of the estate by him, though the record of his appointment was lost.</p> <p>5. Administrator—Defective Becord—Presumption of Appointment. '</p> <p>See defective records held sufficient to raise a presumption that one recognized by a court exercising jurisdiction over an estate as its administrator had been regularly appointed.</p> <p>6. Probate Becords—Ancient Instrument Hot Filed.</p> <p>A petition for sale of land, old and time worn, acted on by the court, and found in the proper custody, was admissible in support of a probate sale, though bearing no file mark.</p> <p>7. Estates—Grant to Heirs of Decedent.</p> <p>Land granted by the State to the heirs of a decedent inured to his estate and became assets subject to administration.</p> <p>8. Order of Sale—Ancient Instrument Hot on Becords.</p> <p>An order for the sale of land in probate, not found in the court’s minutes of regular records, but upon an ancient document signed by the judge, coming from the custody of the clerk, was admissible as evidence of the act of the court in ordering such sale.</p> <p>9. Sale in Probate—Description of Land.</p> <p>See description of land in probate proceedings held sufficient to pass title by administrator’s sale. Rulings in Santa Anna L. S. & L. Co. v. Pendleton, 81 Federal Reporter, 784, on same title, approved.</p> <p>10. Administrator’s Sale—Approval—Confirmation.</p> <p>Approval of the accounts of an administrator showing sale of land, recognizing such sale, is a sufficient confirmation thereof.</p> <p>11. Administrator’s Sale—Ancient Deed—Presumption.</p> <p>It will be presumed, in favor of an ancient administrator’s deed, that everything necessary to be done to perfect the sale was properly done, if nothing appears to impeach its fairness.</p> <p>12. Sale of Located Certificate—Relocation.</p> <p>Where the title to a certificate and to land located thereby was sold at administrator’s sale, subsequent mesne conveyances of such land conveyed to the grantees the right to the certificate; and when it was floated, by reason of conflict with other surveys, and relocated, the title to the land secured by the relocation vested in such grantees.</p>

<p>1. Passenger Carrier—Signing and Stamping Return Ticket.</p> <p>A round trip ticket sold at a reduced rate and providing that it shall be good for return passage only when the holder identifies himself to and has it stamped by the agent of the carrier at his destination, will not entitle the purchaser to- such passage when not so stamped, though he showed it to the agent and was told that it was all right, but did not request that it be stamped for return.</p> <p>2. Same—Peremptory Instruction.</p> <p>It being clear that plaintiff had no right to return passage upon his unstamped ticket, a peremptory instruction for defendant was called for; and a judgment in plaintiff’s favor for damages for refusing his ticket and ejecting him from the train should be reversed on appeal and rendered for defendant.</p>

<p>1. Contract—Trusts—Restraint oí Trade.</p> <p>A deed which binds the grantor not to run or permit to be run any saloon “in. any building now owned by me in the same block * * * for a period of five years” is not void as being in violation of the “trust law” of the State (Rev. Stats., art. 5313), nor prohibited at common law as being an unlawful restraint of trade.</p> <p>2. Illegal Contract—Partial Restraint oí Trade.</p> <p>While contracts in total restraint of trade are void, where the restraint is partial only—restrictive as to time and place—and is reasonable and based upon a consideration, it is valid and will be enforced.</p> <p>3. Partial Restraint oí Trade—Covenant by Vendor—Enforced Against Vendee.</p> <p>A contract by which the vendor of a lot binds himself “not to run, or permit to be run, any saloon * * * in any building now owned by me on the same block * * * whether 1. continue to own said property, or sell or convey the same to other parties, for a period of'five years,” though considered as a covenant merely personal, and not as running with the land, ma3r be enforced against a subsequent purchaser of other lots in the block from the same grantor, and the purchaser restrained by injunction from conducting the business in question on such premises during the time limited.</p> <p>4. Same—Injunction—Damages.</p> <p>Belief in equity by injunction does not, in this class of cases, depend upon the existence of substantial damages. Courts will protect the covenantee in the enjoyment of the right he has purchased.</p> <p>5. Same—Other Remedy.</p> <p>The plaintiff in such case can not be remitted to his remedy by suit or claim for damages against his grantor, the damages being not susceptible of exact computation and the injury a recurring one.</p> <p>6. Warranty—Contract Construed.</p> <p>An injunction against the use of a lot in a manner covenanted against was warranted as in accordance with the spirit and meaning of the covenant, though the contract in terms covenanted only against a use of any building upon such lot then owned by the warrantor.</p>

<p>1. Sale—Consignment—Agency—Profits—Fraud—Confusion of Goods—Conversion—Application of Payments.</p> <p>Plaintiffs, who had furnished their debtor a stock of goods to be sold by him as their agent, the net profits of sales, above invoice prices, to be credited on his previous indebtedness to them, sued defendants, who, with notice of plaintiffs’ interest, had taken the goods by attachment upon a debt owing by him to them, for conversion. Held, (1) as the goods were never sold by plaintiffs, the proposition that the net profits of a consignee, when invested in other goods, become subject to his debts, though correct, was inapplicable; (2) as the agent had not bought nor bound himself to pay for the goods, which remained the property of plaintiffs, the contract could not be pronounced fraudulent as to his creditors; (3) the'fact that the agent had, without knowledge or consent of plaintiffs, bought and mingled other property with the stock held by him as their agent, did not render the portion belonging to plaintiffs liable for defendant's debt on the ground of confusion of goods, where plaintiffs were not called on to designate the property claimed by them till after the attachment of defendants was levied; (4) under the foregoing circumstances, the levy on plaintiffs’ goods was illegal, and operated as a conversion from the date of the levy, not merely from that of sale; (5) no relation of debtor and creditor between plaintiffs and the agent arising out of the consignment, though the goods were charged to him on their books as agent, the ordinary rule of application of general payments on account to the oldest debt has no bearing on this case.</p> <p>2. Remittitur—Costs.</p> <p>Where there is a slight excess in the recovery, above what the evidence warrants, it may be cured by remittitur in the appellate court, the costs of appeal being taxed against appellee.</p>

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

<p>1. Pleading—Presumption Against Pleader.</p> <p>Where the petition or bill to reform a deed does not claim that the mistake is a matter of recent discovery, but is silent on this subject, it will be taken to have been known to all parties from the time the deed was executed.</p> <p>3. Laches—Legal Title—Parol Admission.</p> <p>The paroi admission or recognition by the owners of the legal' title to real property, that it was the intention of the parties to a deed to convey such property, which intention was thwarted by a mistake in the description, is not sufficient to relieve the grantee from the effect of his loches in failing for twenty-five years to institute an action to reform the deed, where the delay was not induced by any promise or understanding on the part of such owners, and the grantee has not materially changed his attitude in consequence of such admission or recognition.</p> <p>„ 3. Stale Demand—Action to Reform Deed.</p> <p>A delay of twenty-five years after knowledge that a deed described the wrong property, in bringing an equitable proceeding to reform it, subjects the claim to the rule of stale demand, unless the delay is shown to have been attended by some excuse that a court of equity should recognize as sufficient.</p> <p>4. Same—Rule as to Trusts Not Applicable.</p> <p>The rule applicable to trusts, that the equitable title does not become stale so long as it is recognized by the trustee, or is not repudiated by him, does not apply to the rights of a grantee to the reformation of his deed which, by mistake, described property other than that intended to be conveyed.</p>

<p>Street Bailway—Injunction.</p> <p>A corporation duly organized will not be restrained from the construction and operation of a freight railway at the suit of an abutting property owner upon the street where the road will pass, on the ground that the highway is to be appropriated to a private use in that the road will be maintained for the benefit of two breweries, when the corporate franchise and charter contemplate a public use and the transportation of freight for all applicants, although the breweries may be more benefited than the balance of the public.</p>

<p>Appeal from Guadalupe. Tried below before Hon. M. Kerror.</p>

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

<p>Appeal from Ellis. Tried below before Hon. A. L. Love, Special Judge.</p>

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

<p>Appeal from the County Court of Dallas. Tried below before Hon. Kenneth Fores.</p>

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

<p>1. Fire Insurance—Waiver.</p> <p>An insurance company which delivered a policy, with full knowledge of the facts upon which its validity may be disputed, can not afterwards set up such facts as a ground for avoiding the policy.</p> <p>2. Frincipal and Agent—Knowledge of Agent.</p> <p>An insurance company is chargeable with knowledge of an incumbrance upon the property possessed by a soliciting agent appointed by its general agents, where such subagent had authority to make out and forward applications for insurance, to deliver policies when executed, and collect and transmit premiums, and exercised such authority in the particular case, although he had no authority to sign policies.</p> <p>3. Same—Measure of Damages—Partial Loss.</p> <p>The measure of damages in an action upon a policy of insurance where there has been a partial loss of the insured building is the difference between the value of the building whole and damaged, within the amount of the policy.</p> <p>4. Same—Statute as to Insurance Agent.</p> <p>A soliciting agent authorized to make out and forward applications for insurance, to deliver policies when executed, and to collect and transmit premiums, is within the contemplation of article 3093, Revised Statutes, defining who are agents of insurance companies doing business in the State, although he has no authority to sign policies.</p> <p>5. Same—Pleading Stipulations.</p> <p>An insurance company which seeks to avail itself of a provision of the policy that the loss is to be estimated according to the cash value of the property at the time of the fire, and that the cash value of any property damaged by fire shall in no case exceed what would be the cost of replaciug the property, to vary the usual measure of damages, namely, the difference between the value of the insured building whole and damaged, must plead the same, such provision not being a condition precedent. '</p> <p>6. Same—Appraisement Waived.</p> <p>An insurance company can not avail itself of a provision of the policy for an appraisement of the loss which contemplates a demand in writing for an appraisement, where it failed to make such a demand, although the parties disagreed as to the amount of the loss.</p>

<p>1. Evidence—Transaction with Decedent.</p> <p>The testimony of a party in trespass to try title that he saw the deed in controversy from the ancestor of the adverse parties in possession of the grantee named therein, and that the latter gave him (the witness) the deed, does not relate to a transaction with or statement by the deceased within article 2302, Revised Statutes, making a party incompetent to testify as to transactions with or statements by the decedent in an action to which his heirs or legal representatives are adverse parties.</p> <p>2. Same—Secondary Evidence.</p> <p>The testimony of the grantee in a deed that he was informed by a person with whom he had left a trunk in which the deed was deposited that the trunk and its contents were burned, is sufficient evidence of the destruction of the deed to admit secondary evidence of its contents.</p> <p>3. Trespass to Try Title—Proof by Acts and Declarations—Lost Deed.</p> <p>The declarations of the alleged grantee in a lost deed, in connection with improvements that he was making on the land, that he had purchased the land, are admissible in support of the title of persons claiming under him, in connection with evidence that he paid the taxes and otherwise asserted title for a number of years under the alleged conveyance without any objection on the part of the alleged grantor.</p> <p>4. Deed—Proof of Existence Where Lost.</p> <p>A finding by the jury that a lost deed was in fact executed by the purported grantor is justified by evidence that the grantor and grantee were neighbors and friends; that the former, before the date of the deed, rendered the land for taxes, and that thereafter the land was assessed in the name of the grantee in the county where they both lived; that the grantee made improvements upon the land and sold the same to a third person and turned the deed over to him as a muniment of title, and that the grantor never claimed the land after the date of the deed, although he lived many years thereafter.</p>

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

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

<p>1. Railway Company—Degree of Care as to Passengers.</p> <p>A carrier of passengers is not an insurer of their safety, but is bound to use such a high degree of care in protecting them from danger as would be used by very prudent and competent persons under similar circumstances.</p> <p>2. Same—Evidence of Custom.</p> <p>The testimony of witnesses as to the custom of defendant’s conductors with reference to assisting ladies traveling on their trains is inadmissible for the purpose of charging the company with negligence because of a conductor’s failure to assist a lady passenger, where there is no evidence bringing knowledge of such custom to the company, or showing that it was so well known that it may reasonably be presumed to have been a part of the contract of carriage.</p> <p>S. Same—Duty of Passenger—Changing Cars.</p> <p>A passenger who learns that she must change ears before arriving at her destination must find out where she is to make the change, and if she fails to do so, and by reason of her failure she is carried over the wrong line, she can not recover from the company unless she was misled by its servants.</p> <p>4. Same—Conductor’s Promise to Give notice.</p> <p>A conductor’s promise to give a passenger special notice when the junction at which she was to change cars is reached, in addition to the general announcement of the station, is not binding upon the company, because not within the scope of his authority.</p> <p>5. Same—Changing Cars.</p> <p>A charge that a railroad company may so arrange the running of its trains that passengers, or some of them, can go through direct to a station without change of cars, while on others it would be necessary that they shall change cars at a junction, should be given, where requested in an action for carrying a passenger past the junction, where the court has permitted plaintiff to testify that she had on former trips gone directly to her destination without change.</p>

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

<p>1. Deed—Covenant of Warranty.</p> <p>Covenants of warranty of title to land are continuous and run with the land.</p> <p>2. Same—Covenant Against Incumbrances.</p> <p>A covenant against incumbrances is embraced in the general warranty clause in a deed, and runs with the land, under article 633, of the Revised Statutes, providing in effect that the word “grant” or “convey” in a conveyance of land is an implied covenant, unless restricted by express terms in the conveyance, that the grantor has not conveyed title to any other person, and that it is free from incumbrances.</p> <p>3. Covenants of Warranty—Sale Divests Bight .Upon.</p> <p>A grantee in a warranty deed subject to a mortgage executed by her immediate grantor loses her remedy on the covenants of warranty in a chain of title preceding' that of her immediate grantor by suffering the premises to be sold under foreclosure of the mortgage, as the right of action upon such covenants passes to the purchaser at the foreclosure.</p>

<p>Appeal from the County Court of Hpshur. Tried below before Hon. T. H. Briggs.</p>

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

<p>1. Continuance—Absent Witness—Insufficient Showing.</p> <p>A third application for continuance on account of the absence of a witness is properly refused where it fails to show diligence and discloses that the facts to which the absent witness would testify are not essential to a full and fair understanding of the facts of the case.</p> <p>2. Charge of Court—Requested Instruction.</p> <p>The refusal of a requested instruction is not prejudicial error where it is covered by the charge already given, or is not warranted by the evidence.</p> <p>3. Same—Measure of Damages for Personal Injury.</p> <p>In an action for personal injuries, a charge that if the jury find for plaintiff they shall award her such sum as in their judgment she is entitled to under the evidence, will not be held reversibly erroneous in the absence of request for fuller instructions on that point.</p> <p>4. Verdict—Conflicting Evidence.</p> <p>Where there is evidence warranting the verdict, it will not be set aside on appeal because such evidence was conflicting.</p> <p>5. Proximate Cause.</p> <p>The breaking of a bridle can not be deemed the proximate cause of an accident resulting from the loss of control of a horse, where the bridle broke when a person seized it after the horse had become frightened at a train.</p> <p>6. Evidence—Expert Opinion as to Cause of Personal Injury.</p> <p>It is competent for a physician to give in evidence, as a part of the basis of his opinion as to the cause of the injuries from which his patient was suffering, the statements made to him as part of the history of the case when consulted with reference to the injuries.</p>

<p>1. Bailway Company—Connecting Lines—Limiting Liability.</p> <p>A railway company which sells a through ticket with coupons extending over its own lines, but limiting its liability to its own line, acts as agent for such other lines, and does not render itself liable for their negligence in transporting the passenger.</p> <p>2. Same—Venue—Wrongful Joinder.</p> <p>An action for personal injuries to a passenger, brought against the railway company whose negligence caused the injury in a county through which its line does not extend, can not be sustained by fraudulently joining, in order to give jurisdiction in the suit, the initial carrier which sold the through ticket, where there was no partnership between the defendant companies, and the initial carrier was in no way liable for the injury.</p>

<p>1. Trespass to Try Title—Common Source.</p> <p>The statutory rule in article 5266, Revised Statutes, providing that it shall not be necessary for plaintiff in trespass to try title to deraign title beyond a common source, applies in cases where the title is specially set out in the pleadings, and also in suits brought for partition but converted into action's to try title as well as for partition.</p> <p>2. Same—Effect and Application of Buie.</p> <p>Where the plaintiff proves common source and a superior title under it, he is entitled to recover, unless the defendant shows a title superior to the common source which he has acquired, or that the title never vested in the common source; and the defendant can not escape the rule by showing a different claim of title under muniments which do not invest title in him.</p> <p>3. Same—Proof of Common Source—Special Deeds.</p> <p>A deed purporting to convey an undivided half interest in the land, and a special warranty deed, are not quitclaims, and are competent instruments to show common source of title.</p> <p>4. Same—Burden of Proof.</p> <p>Plaintiffs in trespass to try title alleged their ancestor, B. A., the patentee of the land, as the common source of title, but some of their own evidence, unnecessarily introduced, tended to raise a doubt as to his identity with „he B. A., who was the patentee. Because of such question of identity, Held, (1) that it was not error to refuse to peremptorily instruct for plaintiffs on the ground that defendants claimed under a common source; (2) it was error to put upon plaintiffs the burden of proving the identity of their ancestor with the person constituting the common source; (3) under the facts, the burden of proof as to identity should not have been placed on either party; (4) upon the issue of identity it was error to require the jury to find certain detailed facts relating' to the life and history of the ancestor, some of which were immaterial, as a basis of such identity.</p>

<p>Appeal from Harris. Tried below before Hon. W. N. Shaw.</p>

<p>Appeal from Yictoria. Tried below before Hon. James 0. Wilson.</p>

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

<p>1. Poreign Law Must be Proved, When—Judgment.</p> <p>Where it is necessarj- in order to show a right asserted here under a judgment which results from a law of another State where it is rendered, peculiar to that law, or different from the effect which such a judgment would have under the law here, the law of such other State must be alleged and proved as a fact, otherwise the court must determine the effect of the judgment from the law judicially known to it here.</p> <p>2. Judgment of Lunacy—Effect as Evidence.</p> <p>A judgment pronounced upon an inquisition of lunacy and appointing a guardian for the non compos is prima facie evidence of the then mental unsoundness adjudged to exist, even as against strangers to the proceeding.</p> <p>3. Same—Mental TTnsouhdness Presumed to Continue.</p> <p>An issue as to mental incapacity is improperly submitted to the jury when the judgment of a court of another State establishing prima facie the mental unsoundness of the party is in evidence, and there is no proof to the contrary or to indicate a change in his mental condition.</p> <p>4. Same—As Affecting Title to Land,</p> <p>The decree of a court of another State determining the mental condition of a citizen of that State brought within its jurisdiction is evidence whereby the title to land situated in another State may be determined.</p> <p>5. Charge of Court—Burden of Proof.</p> <p>The application of the rule that the court shall not submit to the jury, as doubtful, an issue upon which the evidence leaves no doubt, does not depend upon the burden of proof.</p>

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

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

<p>1. Attachment—Lien—Registration of Levy.</p> <p>Failure of the sheriff to return a copy of a writ of attachment and the levy indorsed thereon to the county clerk for registration, as required by article 4669, Revised Statutes, does not affect the validity of the service as against the defendant, such registration being for the purpose of giving notice to third parties of the attachment lien.</p> <p>2 Same—Pleading—Foreign Corporation.</p> <p>The omission of the original petition in an attachment suit by a foreign corporation to allege facts showing plaintiff’s right to transact business and sue in the State may be supplied by amendment so as to support the attachment.</p> <p>3. Same—Certain Amount—Sale and Fraud.</p> <p>The amount in suit in an action to recover the agreed price of meat sold by plaintiff to defendant, of which the latter fraudulently obtains possession, converting it to his own use before paying therefor, is not so uncertain that an attachment will not lie, where the tort is waived and the sale treated as complete.</p> <p>4. Same—Interest Recoverable.</p> <p>Damages commensurate with legal interest may be allowed on the contract price of goods of which the purchaser fraudulently obtains possession before paying therefor.</p> <p>5. Same—Recovering Less Than Sued For.</p> <p>That one sues for more than the facts developed on the trial established that he is entitled to recover, is no ground for quashing an attachment sued out by him.</p> <p>6. Same—Setting Aside Order of Quashal.</p> <p>The court may properly set aside an order quashing an attachment at the term at which it was rendered when convinced that such order was erroneous.</p> <p>7. Same—Levy of Writ—Pointing Out Property.</p> <p>The officer levying a writ of attachment is not required to call on defendant to point out property, and to levy on personal property before resorting to real estate, under the statute providing that an attachment shall be “levied in the same manner” as a writ of execution on similar property.</p>

<p>1. Limitation—Presumption on Appeal.</p> <p>Where there is nothing in the record on appeal showing that a special exception, interposing the statute of limitations was ruled on by the trial court, the presumption obtains that it was waived.</p> <p>2. Pleading—Admission.</p> <p>Where, in an action to compel executors to pay plaintiff an annuity which a will provided for in the event there was enough income after paying certain other charges, the petition sets out the executor’s statement of receipts and disbursements, but also expressly requires them to produce their books on the trial, the assumption that plaintiff has admitted that the disbursements were legally and rightfully made under the will is not tenable.</p>

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

<p>1. Mortgage—Foreclosure by the Probate Court—Parties.</p> <p>While a mortgage of land, taken without notice of a prior outstanding deed thereof executed by the owner, will confer the superior right, yet such deed conveys the legal title, and a foreclosure of the mortgage through probate proceedings against the estate of the common grantor, to which the grantee in the deed was not a party, will not divest his title.</p> <p>2. Acknowledgment of Deed—Substantial Compliance—Identity.</p> <p>A certificate of acknowledgment stating that before the officer appeared the grantor, “to me well known, and acknowledged he signed and delivered the foregoing transfer for the purposes and consideration therein stated,” while not in the statutory language, is sufficient.</p> <p>3. Lien—Bight of Mortgagee in Possession—Limitations.</p> <p>One in possession of land subject to a valid incumbrance in his favor is entitled to hold possession irrespective of the legality of the foreclosure proceedings under which he obtained possession until the adverse claimant of title from the incumbrancer redeems by satisfying the incumbrance, and such adverse claimant can not invoke limitations against the possessor’s affirmative claim for such relief.</p> <p>4. Same—Limitations.</p> <p>The approval of a mortgagee’s claim by the probate court adjusting the estate of the mortgagor reduces it to the'status of a judgment, and limitations thereupon cease to run against the original claim.</p> <p>5. Costs of Suit.</p> <p>Where the judgment gave to plaintiff the relief he sought, but also gave the defendant the equitable relief he asked, it was within the discretion of the court to charge plaintiff with the costs of the suit.</p>

<p>1. Damages—Measure of Against. Carrier.</p> <p>The measure of damages for the refusal of a carrier to accept and transport grain tendered to it by one who had sold it under contract, is the difference between the contract price and the value of the grain at the point of shipment, less the cost of shipment, if the contract required the shipper to pay the same, if the contract price was less than the market value at destination, whether the carrier knew of the contract or not.</p> <p>2. Practice on Appeal—Charge of Court.</p> <p>An assignment of error to the trial court’s failure to submit a special defense to the jury is not well taken where no such charge was asked by the defendant.</p>

<p>1. Trespass to Try Title—Judgment on Cross Complaint.</p> <p>A judgment for defendant on his cross complaint seeking the recovery of land, rendered upon the plaintiff’s failure to appear at the trial, will he reversed where the evidence offered by him does not show either a title deraigned from the sovereignty of the soil or a claim under a common source with the adverse party, or prior possession, since article 5267 of the Revised Statutes is not applicable to a defendant, even though he seeks affirmative relief by a cross bill, but is restricted solely to a statutory complaint.</p> <p>2. Practice on Appeal—Fundamental Error.</p> <p>The rule of fundamental error warranting a reversal without an assignment of error justifies an inspection of the evidence to detect the existence of error, and error disclosed in the evidence is “apparent on the face of the record.”</p>

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

<p>1. Evidence—Opinion as to Value.-</p> <p>"Upon a question of value the opinion of witnesses who show themselves to be sufficiently acquainted with the property is competent evidence.</p> <p>3. Assignment of Error—Admission of Evidence.</p> <p>An assignment of error to the admission of a large amount of evidence, some of which is competent, is not tenable.</p>

<p>1. Claimant’s Bond—Surety—Redelivery of Property.</p> <p>The surety on a claimant’s bond performs his agreement to deliver back to the sheriff the property levied upon and afterwards claimed by the principal, in consideration of his release from all liability under a judgment against him as surety, by directing the sheriff to retake all property embraced in the levy, where it consisted of goods and groceries which were easily accessible to the sheriff and cattle originally seized under range levy. Rev. Stats., art. 5310.</p> <p>2. Damages—Wrongful Levy.</p> <p>Vindictive damages can not be recovered for a wrongful levy on property, in the absence of evidence showing bad faith, oppression, or wantonness.</p>

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

<p>1. Appeal—Guardian ad Litem.</p> <p>Article 1408, Revised Statutes, providing that “executors, administrators and guardians appointed by the courts of this State shall not be required to give bond on any appeal or writ of error taken by them in their fiduciary capacity,” is broad enough to cover guardians ad litem.</p> <p>2. Same—Nonresident Minors.</p> <p>An attorney appointed by the court to represent nonresident minors cited without personal service can not be regarded as a guardian ad litem authorized to take an appeal for them without giving bond.</p> <p>3. Deed—Recital of Consideration.</p> <p>It is not necessary to the validity of a deed or transfer that it shall recite a consideration..</p> <p>4. Same—Conveyance by Indorsement on Deed.</p> <p>An indorsement on the back of a conveyance, duly signed and witnessed, purporting to transfer the “within bond” to a person named, is sufficient in connection with a delivery of the conveyance to the person named to transfer the title to the land, notwithstanding the use of the word “bond” instead of deed or conveyance to identify the subject of the transfer.</p> <p>.'5. Same—Erasures.</p> <p>A deed or transfer is not affected by the fact that pen scratches have been drawn 'through the writing, without, however, obliterating it or rendering it unintelligible, •where there is n.o pleading raising any question as to that matter.</p> <p>U. Evidence—Harmless Error.</p> <p>Error in admitting a deed to prove plaintiff's title is harmless where the title ■had already been proved.</p> <p>"7. Judgment—Practice.</p> <p>Assignments of error predicated upon a personal judgment which has been settled will not be considered.</p> <p>8. Costs—Motion to Retax Necessary.</p> <p>The appellate court will not revise the action of the trial court in taxing costs, in -the absence of a motion below to retax.</p>

<p>1. Contract Illegal, When—Conspiracy to Prevent Competitive Bidding,</p> <p>An agreement made between newspaper publishers to prevent competition between them in bidding for the contract for public county printing renders the contract for such printing thereupon secured by one of them illegal and void.</p> <p>3. County—Expense of Printing Delinquent Tax List.</p> <p>The current expense of printing delinquent tax lists is an item of ordinary municipal expenditure, and it is not requisite that provision should be made for the payment of such a debt at the time of its creation.</p>

<p>1. Corporations—Identity—Judgment.</p> <p>Plaintiff can not complain of a judgment against a Texas corporation upon his contract with it because recovery was denied him against a corporation of another State which he alleged to be the same thing under another name, since if they are identical he has, in effect, the judgment sought.</p> <p>2. Corporation—Partnership.</p> <p>Without special authority corporations have no power to enter into partnership, and a petition seeking to recover against one corporation as partner with another with which plaintiff made the contract sued on, is insufficient to fix such liability without alleging charter power to enter into such partnership.</p> <p>N 3. Corporation—Legal Identity—Pleading.</p> <p>Two corporations, though organized by the same persons and operated in the same interest, are not for that reason legally identical. See petition, held not to show facts establishing legal identity or agency of one for the other under this rule.</p>

<p>Appeal from the County Court of Brown. Tried below before Hon. E. C. Harrell.</p>

Tried below before Hon. 0. D. Cannon. Counsel for appellant moved for rehearing, on the ground that article 3778, Revised Statutes, was in violation of article 16, section 31, of the Constitution, and that question was certified to the Supreme Court, pending the motion, and by them answered in the negative. Dowdell v. McBride, 92 Texas, —, decided November 3, 1898. The motion for rehearing was overruled.

<p>Appeal from Bell. Tried below before Hon. John M. Furman.</p> <p>The following map and explanatory memoranda, from the record, show the lines and tracts of land referred to in the opinion of the court:</p> <p> </p> <p>A, B, C, D, E, F, W. L. Norvelle one-third league survey; A, B, G, II, Neibling or Williams’ 492 acres; L, E, F, G, H, I, TC, Wilson Bates’ purchase; K, J, I, C, M, James Morris’ purchase; I), L, M, Alfred Polk’s purchase; N, O, P, land deeded by Soape to Doss and fenced by Doss in 1869 (less corner cut off by Belton and Sparta public road at 0; 0, Q, C, P, land in controversy; zigzag line represents Doss’ field as fenced in 1869; tree represents the Spanish oak bearing tree called for in deed from Soape to Doss; dotted line from P to 0 represents the M. Tongate . south line in conflict with the Norvelle survey; S, R, C, V, T, land conveyed by McCormick to Soape.</p>

<p>Insolvent—Deed of Trust—Preferences—Exacting Releases.</p> <p>A deed of trust by an insolvent debtor which conveys his property for sale, and payment, first, of preferred creditors, second, of such of the unpreferred as would accept and release the debtor from the balance of their claims, is fraudulent and void. An attachment by an unpreferred creditor levied after acceptance by the trustee, by the preferred, and by some of the unpreferred creditors, will hold the goods against such trustee and accepting creditors claiming under the deed.</p>

Tried below before Hon. J. S. Straugiiau. Among the errors assigned by appellants were the following: 3. The court erred in permitting the defendant Merrell to amend his abstract of title during the trial of this cause on the 19th of December, 1895, after he had failed to file an abstract in writing of his title to the premises in question within twenty days after notice, as set out in plaintiffs’ and intervener’s bill of exceptions number 2. 4.

<p>Motion to affirm on certificate a judgment recovered in the County Court of Milam County.</p>

<p>Appeal from the County Court of Maverick. Tried below before Hon. J. A. Bonnet.</p>

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

<p>1. Pleading—Description of Judgment Sued On.</p> <p>A petition in an action on a judgment rendered by a United States court is sufficient where it alleges that on a certain date, at a certain term of the court, naming the particular court and place of sitting, the judgment was rendered by 'such court in favor of plaintifi against the defendant in a cause therein pending in which they were parties plaintiff and defendant, respectively, of which cause said court had jurisdiction, and it is not necessary to allege the judgment more fully.</p> <p>2. Evidence to Show Judgment—Practice.</p> <p>Defendant in an action upon a judgment is not prejudiced by the admission of the full transcript of the court proceedings in the case in which it was rendered, though the judgment, which was a part of the transcript, was of itself sufficient to establish a prima facie case for plaintiff.</p> <p>3. Same—Certificate of Clerk of Court</p> <p>The certificate of the clerk of the United States circuit court to the transcript of the proceedings in a case in such court, that the “foregoing” is a full, true and correct transcript of the proceedings had by and before said court (which is named at the commencement of the certificate) “as the same appears of record and on file in the clerk's office aforesaid,” sufficiently complies with the requirements of the Act of Congress with reference to the authentication of judgments.</p> <p>4. Same—What Authentication Requisite.</p> <p>It seems that the Act of Congress does not apply to the authentication of copies of the record of a State court for use in a Federal court, or vice versa, and in such cases the common law exemplification suffices. See the opinion.</p> <p>5. Practice—Annexing Unnecessary Exhibits-.</p> <p>Improperly annexing documents as exhibits to a petition in violation of district court rule 19, does not of itself operate to reverse a judgment, particularly where the petition is complete without reference to such documents, and does not depend upon them.</p> <p>6. Same—Costs.</p> <p>The cost of so much of the record on appeal as is taken up by documents annexed to the petition as exhibits, in violation of district court rule 19, will be charged to the plaintiff, although the judgment in his favor is affirmed.</p> <p>7. Foreign Corporation Permit—Suit by.</p> <p>A cause of action accruing to a foreign corporation at a time when it was not transacting business in the State is not within contemplation of Revised Statutes, title 21, chapter 17, denying to certain private corporations the right to sue upon demands arising out of contract or tort, if at the time of such contract or tort the corporation was doing business in the State and had not filed its articles of incorporation with the Secretary of State and procured a permit.</p>

<p>Appeal from Bexar. Tried below before Hon. Robebt B. Gbeen.</p>

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

<p>1. Mandamus to Tax Collector—Occupation Tax.</p> <p>The function of a writ of mandamus is to compel the doing of an act, and it will not issue to restrain the commission of a tort, or abuse of office, nor to prohibit a tax collector from demanding of one occupation tax as a traveling person selling patent medicines, nor to restrain him from instituting a criminal prosecution against such person for pursuing such occupation without paying the tax.</p> <p>2. Injunction to Restrain Criminal Proceedings.</p> <p>Injunetionwill not lie to restrain the institution of criminal proceedings, except where they will affect property rights to preserve which the writ is necessary, or to prevent repeated prosecutions wrongfully instituted for the purpose of vexing and harassing the defendant therein.</p>

<p>Judgment—Correction of Entry.</p> <p>An entry in the minutes of the court which originally conformed to the entry of the judge's docket, but was changed after adjournment by some person unknown so as to show the overruling of a motion for a new trial, instead of the granting of the same, as originally shown, should be restored to its original condition, notwithstanding the testimony of the judge that he concluded at the same time he considered the motion that it should be refused, it not appearing that the entry in his docket did not represent the decision actually made.</p>

<p>Official Bond—County Judge—Liability of Sureties.</p> <p>The sureties on the bond of a county judge executed in accordance with Revised Statutes, article 1125, and conditioned that he will pay over to the person or officer entitled to it all sums of money that may come into his hands as such judge, are not liable to a successful contestant of the office for salary paid to their principal.</p>

<p>Appeal from Tyler. Tried below before Hon. Stephen P. West.</p>

<p>1. Rescission for Fraud—School Land—Settlement.</p> <p>A fraudulent representation by a vendor of land which he had purchased from the State, to the effect that he had resided thereon for more than three years, is material, in view of the statute providing that after three years possession the purchaser has the right to pay the State for the land and receive a patent therefor, and the vendee is entitled to a rescission.</p> <p>2. State School Land—Forfeiture—Repurchase.</p> <p>A person to whom land was awarded by the State and who subsequently sold his interest and abandoned possession, loses the prior right conferred upon former •owners by the statute to purchase the land upon a resale by the State after a forfeiture under the first purchase.</p>

<p>Appeal from Callahan. Tried below before Hon. T. H. Conner.</p>

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

<p>Fraud in Assessing Property—Equitable Defense.</p> <p>In a suit by the State to recover delinquent taxes, an answer which seeks, on the ground of fraud, to annul and set aside the action of the board of equalization in raising the assessed value of the property, is an equitable defense in the nature of a direct proceeding by cross action, and may properly be pleaded under our blended system of law and equity jurisprudence.</p>

<p>Appeal from Travis. Tried below before Hon. R. E. Brooks.</p>

<p>1. General Demurrer—Ownership of Insured Property.</p> <p>See petition upon contracts of insurance which, though not directly alleging plaintiff's ownership of the property at the time of its destruction, was held not subject to general demurrer under the rule indulging in such case every reasonable intendment in favor of the plaintiff.</p> <p>2. Insurance—Pleading—Property Destroyed.</p> <p>Owners of a stock of merchandise constantly shifting by frequent purchases and daily sales can not, in suing to recover insurance thereon, give a correct itemized list of the property destroyed, nor be required to do so upon special exception.</p> <p>3. Evidence—Opinion.</p> <p>Experts may explain the meaning of technical words or phrases, but can not give an opinion as to whether certain facts constitute a compliance with a contract; thus a bookkeeper can not be asked whether he would consider the furnishing a ledger and journal a sufficient compliance with a contract to furnish a set of books showing a complete record of business transacted.</p> <p>4. Opinion—Hypothetical Question.</p> <p>A hypothetical question addressed to an expert should not submit a condition of facts not warranted by the testimony.</p> <p>5. Insurance—Production of Books.</p> <p>Books so kept and produced as to enable the insurer with reasonable certainty to arrive at the amount of loss substantially comply with the undertaking (the “iron safe clause”) by insured to keep and produce a set of books “showing a complete record of business transacted, including all purchases and sales, both for cash and credit.”</p> <p>6. Same.</p> <p>See evidence as to books kept and produced by insured (certain books relating to the business during a part of the life of the policy having been burned) held, to present a case in which the question of compliance by insured with the “iron safe clause” was for the injury, and a charge to find for defendant by reason of failure of insured to comply with such undertaking was not warranted. .</p>

<p>1. Plea of Privilege—Contract to be Performed in County.</p> <p>Where suit against defendants in a county other than their residence is alleged to be upon a promise in writing,' to be performed in that county, they can not assert their privilege by demurrer.</p> <p>Z. Same.</p> <p>The sufficiency of the evidence to support a contract to be performed in the county of the venue can only be considered under an assignment attacking the finding of the court upon that point.</p>

<p>Appeal from McLennan. Tried below before Hon. Marshall Surratt.</p>

<p>Citation—Attestation by Clerk—Default.</p> <p>Service o£ a citation not attested by the signature of the clerk as required by Revised Statutes, article 1447, will not support a judgment by default.</p>

<p>Appeal from McCulloch. Tried below before Hon. J. 0. Woodward.</p> <p>The affidavit accompanying the application of appellee Townsend for purchase of the land in controversy stated that, <cMy home is upon the aforesaid section. * * * I am a bona fide settler on the same and head of a family, and am now, neither as assignee or original purchaser, the owner of any other land purchased from the State. I further swear that I am not acting in collusion with others for the purpose of buying the land for any other person or corporation, and that no other person or corporation is interested in this purchase save myself.”</p> <p>The objection to the sufficiency of this affidavit urged by appellant was: The application to purchase should have been accompanied by the affidavit of the applicant, in effect that he desired to purchase the land for a home, and had in good faith settled thereon.</p>