Volume 19 — Texas Civil Appeals Reports

Tried below before Hon. B. E. Brooks. The following were among the assignments of error urged by appellant : “31. The Court erred in admitting, over the objections of -defendant, the testimony of W. 0. Dugger, to the effect that this defendant’s agent at Galveston, Arthur M Finlay, had never objected to any of the acts of said Dugger, done in obedience to the instructions of Waggoner and other agents, all as shown by exceptions duly reserved in the statement of facts.” “36.

<p>1. Execution—Receiver—Custodia Legis.</p> <p>When property taken possession of .by a court through its receiver is by it sold and delivered to the purchaser, it ceases to be in custodia legis, although it was sold charged in the purchaser's hands with payment of certain claims against the property which the court retained jurisdiction to enforce.</p> <p>2. Same.</p> <p>Property of defendant in execution is not prohibited from levy and sale as being in custodia legis by being taken into the hands of a receiver as the property of a third party.</p> <p>3. Evidence.</p> <p>It was not error to admit evidence showing the judgments and transfers by which defendant claimed title to the property, though they vested no title unless another issue of fact which they did not tend to prove was decided in his favor.</p> <p>4. Street Railway—Conveyance.</p> <p>A deed by one street railway conveying its line of road to another, though without legislative sanction "unless done for payment of its debts, is not void for failure to show such purpose on its face, but vests prima facie title, subject to be defeated by proof that no circumstances existed authorizing the transfer.</p>

<p>Appeal from Hunt. Tried below before Hon. Howard Templeton.</p>

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

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

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

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

<p>Appeal from Johnson. Tried below before Hon. W. M. Knight, Special Judge.</p>

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

<p>Municipal Corporation—Nuisance—Damages.</p> <p>Although a city has, under the statute, full control over its streets, it is not liable for the damages done to a building by the negligent use of water at a water station erected in the street without its consent because of its failure to exercise the power conferred upon it to abate the station as a nuisance. Articles 419, 447, 453, Revised Statutes, considered.</p>

<p>1. Railroad Company—Fire Insurance Contract.</p> <p>The provision of a contract granting permission for the erection of a storehouse on a railroad right of way, that the company shall not be liable to a third person whose goods were burned by its negligence while they were in such storehouse with, the consent of the owner, does not apply where the contract expressly required the owner of the building to keep it and its contents insured for the benefit of the company.</p> <p>2. Fire Insurance—Subrogation.</p> <p>An insurance company upon paying to the transferee of a policy of insurance on goods stored in a building erected upon a railroad right of way by the person to whom the policy was originally issued the loss resulting from the destruction of the property by the negligence of the railway company, is entitled to be subrogated to the right of the transferee against the company under the subrogation clause in the policy, notwithstanding a provision of the contract with the company under which the building was erected that the owner should keep it and its contents insured for the benefit of the. railway company, where the property was not in fact insured for the benefit of the railway company.</p>

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

<p>1. Contributory Negligence.</p> <p>That the damage with which a person was threatened owing to the negligence of another was apparent only and not real, and that he would not have been injured if he had remained passive, does not deprive it of the effect to relieve him from the charge of contributory negligence in taking an imprudent step under its influence.</p> <p>2. Same—Apparent Danger—Proximate Cause.</p> <p>An instruction that if plaintiff in an action for personal injuries sustained in a collision with a train at a highway crossing was guilty of negligence in standing, up in his wagon, and such negligence contributed to his injury, to find for defendant, although it may have been guilty of negligence, is erroneous where plaintiff’s act in standing up in the wagon had for its proximate cause an apparent danger with which he was threatened owing to defendant’s negligence.</p> <p>3. Same—Negligence of Another Not Imputed.'</p> <p>Negligence of the carrier of a vehicle can not be imputed to a person riding with him by his invitation.</p>

<p>1. Partnership—Action Against One Member.</p> <p>None of the members of a firm have the right to have an action on a note indorsed by the firm abated because only one member of the firm was sued, although such member would have the right to have the other partners made parties.</p> <p>S. Judgment of Justice Court—Dismissal of Appeal.</p> <p>An order dismissing an appeal by defendants from a justice’s judgment because such judgment did not dispose of the cause, or of a specified defendant, does not affect its finality if it did in fact dispose of the case, and it may be enforced as if no appeal therefrom had been attempted.</p> <p>3. Same—Appeal.</p> <p>The appellee on an appeal from a justice’s judgment can not complain of or appeal from an order dismissing the appeal on the motion of appellants, as he has his original judgment intact, regardless of any reason recited in the order of dismissal.</p>

<p>1. Principal and Surety—Bights of Cosureties.</p> <p>Security which one cosurety on an official bond takes from the principal after the execution of the bond and before the sureties have paid the amount of the liability incurred in equal proportions, inures to the common benefit of all the sureties.</p> <p>2. Same—Surety on Different Bonds.</p> <p>A cosurety who is also surety for the same principal to a third person has a right to take indemnity from the principal against loss on the liability to such third person, and the other cosurety has no right to participate in such indemnity; but where security is taken generally from the principal for his indemnity by one who is surety on different bonds with different cosureties, and after he is bound, it is to be apportioned upon all the demands pro rata.</p> <p>3. Same—Separate Indemnity After Payment.</p> <p>After the debt of the principal is paid by several sureties in equal proportions, the equities between them as cosureties cease, and each becomes an independent creditor of the principal for the amount paid by him, and if one surety receives indemnity from the principal, the others are entitlfed to no part thereof.</p>

<p>1. Taxation—Separate Assessment of City Lots.</p> <p>Where city lots all belong to the same owner at the time of the assessment, the mere fact that he has divided them into smaller lots for the purpose of sale would not require the assessor to make a separate valuation of each lot.</p> <p>3. Same—Tax Lien Extends to All.</p> <p>Except as to the homestead, there is now no provision that the taxes due on one tract in an assessment are a lien on that tract only. Following State v. Masterson, 17 Texas Civil Appeals, 91.</p> <p>3. Same—Separate Valuation.</p> <p>A requirement in a city ordinance that the description of real property for taxation must be “sufficient to identify the same, stating the lot, block, or part thereof, the value of each piece or parcel being stated separately,” does not necessarily require that each lot shall be valued separately.</p> <p>4. Same—Contiguous Lots.</p> <p>Where two or more lots are contiguous to each other and are used as one lot, some of them being unimproved, they may be assessed and sold as one lot.</p> <p>5. Same—Judgment for Possession.</p> <p>In an action foreclosing a tax lien, the judgment may direct that the plaintiff be put into possession within thirty days, and this in nowise interferes with the defendant's right of redemption within two years.</p>

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

<p>1. Hegligence—Ordinary Care.</p> <p>Ordinary care is such care as a person of ordinary prudence would exercise under similar circumstances.</p> <p>2. Same—Incorrect Definition.</p> <p>Instruction which defines negligence or contributory negligence as a failure to exercise “reasonable ordinary care” is erroneous, as the test is the failure to exercise “ordinary care.”</p> <p>3. Railway Company—Duty Towards Licensee.</p> <p>A railroad company owes no duty to a mere licensee to use ordinary care in the construction of its roadbed, or to keep a bridge lighted, but its only duty towards him is to exercise ordinary care and caution in the operation of its engines and cars to discover him-and warn him of his danger.</p> <p>4. Same—Overhead Crossing—Ho Signals.</p> <p>An overhead railroad crossing is not a public crossing requiring of a railroad company a compliance with the requirements of the statute as to ringing the bell or sounding the whistle on the approach of an engine.</p>

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

<p>1. Parties—Objection, for nonjoinder.</p> <p>An objection for nonjoinder of parties must be raised by plea in abatement.</p> <p>2. Same—Bights of Lienholder Wot Affected.</p> <p>In an action of damages for injury to real property, where defendant did not plead thart there was a lien on the property and that the lienholder was a necessary party to the suit, it was not error to exclude evidence showing there was a lien -on the property, where it appeared that, as damaged, it was still worth more than the amount of the lien debt.</p> <p>3. Mortgage—Title to Mortgagor.</p> <p>In this State a mortgage upon land conveys no title to the mortgagee, but is merely a security for the debt.</p> <p>4. Pleading Damages to Bealty—Measure of Damages.</p> <p>It is not necessary for one suing for damages to realty to plead what is the difference in value between the property before and after its damage in order to have the rule as to the difference in the values applied as the measure of the damage.</p> <p>5. Same—Defensive Pleadings.</p> <p>Where the defendant relies on a defense which would take the case out of the general rule of damages, or modify the rule, he should plead the same.</p>

<p>1. Easement—Dedication—Way.</p> <p>The mere permissive use of a way does not constitute a dedication to public use.</p> <p>2. Same—Does Hot Exist, When.</p> <p>Ho easement of way over a strip owned by the grantor and used as a passage way passes by the deed, where it is separated from the tract conveyed by an intervening strip, and there are means of ingress and egress to and from the tract conveyed on the other side thereof.</p> <p>3. Same—Deed Hot Conveying.</p> <p>The mere fact thait there is a way used as an approach to a lot, but upon which the lot does not abut and which has not been dedicated to public use, does not constitute such way an appurtenance to the lot which will pass by a deed 'thereof which does not mention the way, either in terms of description or as an 'appurtenance to the lot.</p>

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

<p>Appeal from Hunt. Tried below before Hon. Howard Templeton.</p>

<p>Appeal from Hunt. Tried below before Hon. Howard Templeton.</p>

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

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

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

<p>1. Building Contract with County—Abandonment.</p> <p>The commissioners court of a county is justified in treating a contract for the erection of a courthouse as abandoned by the contractor where more than six months has elapsed since the date fixed by the contract for its completion, and work has ceased thereon (both the contractor and the subcontractor having become insolvent), and the superintendent of the contractor has reported to the court that the building is open and subject to damage from water and urged the necessity of its completion.</p> <p>2. Same—Charge of Court as to Abandonment.</p> <p>An instruction that if the jury believe a building contractor did not comply with his contract, and that it was broken by his default, not excused in view of the other portions of the charge, to find for the plaintiff in an action upon the contractor’s bond, is not subject to the criticism that the jury may infer therefrom that any character of default by the contractor would authorize the plaintiff to treat the contract as forfeited, where other portions of the charge place plaintiff’s right to treat the contract as abandoned upon the want of performance by the contractor, and direct the jury that if the contractor did not abandon the contract and if plaintiff wrongfully took possession of the building and prevented performance by the contractor, to find for the defendants.</p> <p>3. Same—Becitals in Order of Court as Evidence.</p> <p>The recitals in the orders of the county commissioners court declaring a default in the performance of a contract for the construction of a courthouse are not . evidence of the facts of delay and abandonment on the part of the contractor.</p> <p>4. Same—Charge of Court.</p> <p>The word “abandonment” as used in an instruction defining the respective rights the owner of the right of rescinding upon subsequent abandonment of the work by a contractor, needs no definition.</p> <p>5. Same—Extension of Time—Abandonment.</p> <p>The extension of time for the completion of a building contract does not deprive the owner of the right of rescinding upon subsequent abandonment of the work by the contractor.</p> <p>6. Same—Evidence.</p> <p>A report by the superintendent for the construction of a courthouse to the commissioners court about the condition of the building is admissible against the contractor, if pertinent to the question of delay and the necessity of assumption of the work by the county, where the report was shown to the contractor and it was demanded of him that he resume work at once, and he did not dispute the correctness of the report, but asked for further time.</p> <p>7. Same—Mo Recovery for Plans and Specifications, When.</p> <p>A building contractor who makes default in the performance of the contract is not entitled to recover anything for plans and specifications where the method for the submission of bids contemplated that each contractor should bid upon plans and specifications furnished by himself.</p> <p>8. Same—Evidence of Delay—Declarations.</p> <p>A witness testifying upon an issue of delay in completing a building may, for the purpose of fixing the time, state declarations made by third persons in regard to it.</p> <p>9. Same—Measure of Damages for Moncompletion.</p> <p>The difference between the value of a building if completed according to the contract and the contract price, together with the difference between the payments made under the contract and fees paid to an architect employed after the abandonment of the contract to advise the owner about the completion of the building and to superintend the same, constitute the measure of damages for the breach of a building contract by failing to complete the same.</p> <p>10. Jurors—Citizens in Suit Against the County.</p> <p>A citizen of a county is not disqualified to sit as a juror in a case in which it is a party, under article 3141 of the Revised Statutes, forbidding generally any person to sit as a juror in a case in which he may be interested directly or indirectly, since article 791 expressly provides that the inhabitants of a county suing or being sued may be jurors, if otherwise competent.</p> <p>' 11. Minutes of Court—Signing and Attestation.</p> <p>The provision of article 1527, Revised Statutes of .1879, providing that the minutes of the commissioners court shall be attested by the clerk, is directory only, and an order entered therein is not invalid for want of such attestation.</p> <p>12. County Bonds—Validity—Levy of Tax.</p> <p>It is not necessary that the statutory provision for the issuance of county bonds to pay for the erection of a courthouse and the levy of the tax for the payment of the bonds should be simultaneous with the creation of the debt for the erection of the building. Following Mitchell County v. Bank, 91 Texas, 370.</p> <p>13. Joinder of Actions.</p> <p>A claim for stipulated damages for delay in completing a building contract is properly joined with a claim for damages for the breach of the contract to build, in an action upon the contractor’s bond.</p>

<p>Appeal from Harris. Tried below before Hon. William H. Wilson.</p>

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

<p>1. Practice on Appeal—Judgment of Dismissal Below.</p> <p>Á judgment dismissing a suit on grounds which go to the foundation of the action can not be sustained on appeal because there were defective allegations in the petition duly excepted to, but relating to matters curable by amendment.</p> <p>2. Superior Title—Vendor’s Lien—Administrator’s Deed.</p> <p>The fact that a deed which reserves a lien for unpaid purchase money was made by an administrator under orders of the court does not prevent it from being an executory contract, nor deprive those representing the estate from reclaiming the land after the debt is barred and having all the remedies for the enforcement of rights under it that individuals would be entitled to under a similar transaction.</p> <p>3. Presumption of Payment.</p> <p>The presumption of payment which arises from failure to enforce a vendor’s lien for a long period of time is not an absolute but a rebuttable one, and can not be indulged upon exceptions to a petition against its direct allegation that the debt had not been paid.</p> <p>4. Limitation—Adverse Possession Under Lien.</p> <p>A judgment dismissing the plaintiff’s petition can not be upheld on the ground that the suit is barred by limitation, where reservation of a vendor’s lien upon land is alleged, since a possession held under executory contract is not ordinarily adverse.</p> <p>5. Vendor’s Lien Secures What Part of Debt.</p> <p>A lien for unpaid purchase money reserved in a deed secures, as against the bar of limitations, only that part of the debt for which the lien is expressly reserved, and not a part incorrectly recited as paid.</p>

<p>1. Judgment Against Married Woman—Collateral Attack.</p> <p>A judgment against a married woman can not be inquired into collaterally, and attacked upon the ground that the facts did not, under the law as to her exemption, warrant the judgment against her, but it can only be set aside for such error in a direct proceeding.</p> <p>2. Same—Directing Levy of Execution.</p> <p>A judgment against a husband and wife need not contain a special direction that execution issue against the separate property of the wife, in order to support an execution against her separate property, as the statute does not require this. Rev. Stats., art. 2971.</p>

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

<p>Appeal from Smith. Tried below before Hon. J. G. Bussell.</p>

<p>1. Charge of Court—Substantive Defense.</p> <p>A party is entitled to have a substantive defense, properly pleaded and in support of which evidence is offered, submitted to the jury in an affirmative form.</p> <p>8. Master and Servant—Negligence—Orders and Obvious Bisk.</p> <p>A brakeman who, by orders of his superior, went between cars to make a coupling upon a promise that the train which backed down would be stopped in time to prevent accident to him, is entitled to recover for an injury sustained by reason of the superior’s failure to keep such promise, although the risk was obvious.</p> <p>3. Same—Same.</p> <p>One ordered by Ms superior to make a car coupling, under such circumstances that the danger was great and apparent, although induced to act by a promise that, the car should be stopped in time to avoid accident to him, can not recover for an injury sustained, if ordinary prudence would have dictated a refusal, or if he was recalled from his post, so that by ordinary care he would have escaped harm: but if the order to come out was delayed until the danger was so imminent as to deprive him of capacity to act with circumspection, he may recover.</p> <p>4. Same—Fellow Servants—Concurring Negligence.</p> <p>A railroad company is not liable for injuries sustained by a brakeman ordered1 by his superior to make a coupling, if the accident was occasioned by the negligence of his fellow servants, the engineer or fireman, in failing to heed signals, but if their negligence concurred with that of the superior who had promised to stop the car-in time to avoid harm to the brakeman, then the company is liable.</p> <p>5. Master and Servant—Eeliance on Promise.</p> <p>A brakeman induced to make a coupling by the promise of his superior to stop the ear in time to avoid injury to him is justified in relying upon such promise until it becomes apparent that the superior will fail to perform his duty; and his right to recover for an injury sustained depends upon whether he could by the exercise of ordinary prudence, have thereafter extricated himself from danger.</p> <p>6. Charge Confined to Facts at Issue.</p> <p>A charge on the assumption of ordinary risks and as to the effect of knowledge on the part of an employe of danger is properly refused as misleading in an action by a widow to recover damages for the death of her husband alleged to have been. caused by the negligence of a division superintendent and conductor of a railroad company while the deceased, under their immediate directions, was making a coupling.</p> <p>7. Same—Gross Negligence—Exemplary Damages.</p> <p>A charge upon gross negligence is misleading and improper, in an action by a widow to recover for the death of her husband, alleged to have been caused by the negligence of a superior while the deceased, under his direction, was engaged in coupling cars, where exemplary damages are not sought.</p> <p>8. Same—Abstractions.</p> <p>An abstract charge, that “the acts or omissions or negligence of their agents, servants, or employes are the acts of corporations,” should not be given.</p> <p>9. Same.</p> <p>A charge which embodies general rules as to the duty of railway companies to exercise proper care in operating their cars and trains, where they are inapplicable to the facts of the case, should not be given.</p> <p>10. Same—Defective Machinery.</p> <p>In an action to recover for the death of a brakeman, alleged to have been caused by the negligence of his superiors while he, under their immediate directions, was making a coupling, a charge upon the law appertaining to cases where an employe seeks to recover because of defective machinery, and as to the effect of his knowledge or means of knowledge, is inapplicable, even though there may have been a defect in the drawhead or coupling apparatus of the cars.</p> <p>11. Damages, Measure of—Earnings.</p> <p>The measure of damages recoverable by a widow whose husband was killed in his employment as a brakeman, is not what his earnings would have been, but such a sum as would compensate the plaintiff for the loss of the pecuniary benefits she would have received from the husband had he not been killed.</p> <p>12. Statement of Facts—Costs.</p> <p>A statement of facts will not be stricken out, although more voluminous than necessary, where its bulk has not delayed a decision of the case, but its cost will be adjudged against the appellant, although the judgment appealed from is reversed.</p>

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

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

<p>Appeal from Hood. Tried below before Hon. J. S. Straughan.</p>

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

<p>Appeal from Erath. Tried below before Hon. J. S. Straughah.</p>

<p>1. Practice on Appeal—Jurisdictional Question—Fundamental Error.</p> <p>The jurisdiction of the probate court in proceedings to sell lands of a decedent to pay debts, as to adjudicating the title to the land, will be passed upon by the appellate court, whether assigned or not.</p> <p>2. Jurisdiction of Probate Court—Title to Realty.</p> <p>The county court has jurisdiction to order the sale of land of a decedent to pay debts, where such land has been inventoried and appraised as belonging to the estate, but it has no jurisdiction to pass on the question of title to the land raised by a third person who claims to be the owner.</p> <p>3. Homestead—Decedent’s Estate.</p> <p>The fact that certain land was placed upon the inventory of a decedent’s estate and appraised as part of the estate is prima facie evidence that it was not his homestead.</p> <p>4. Decedent’s Estate—Devised land Subject to Debts.</p> <p>That land is devised by the owner to a specified person does not prevent it from being administered as part of the estate, as it is subject to payment of the debts of the testator, unless it is exempt from distribution.</p>

<p>1. Counties—Suit Between—Taxpayers as Parties.</p> <p>An action by one county against another to recover the latter’s proportion of their indebtedness incurred prior to their separation is properly brought against the people and taxpayers of the new county, under articles 764, et seq., of the Revised Statutes, providing therefor, although the new county was not entirely carved from the limits of the old one.</p> <p>2. Same—Validity of County Bonds.</p> <p>Bonds issued by a county to pay for a jail are not void because the commissioners court, at the date of their issuance, failed to make provision for their payment, since the statute provides for the levy and collection of the requisite taxes in such eases. Following Mitchell County v. Bank, 91 Texas, 370.</p> <p>3. Same—Same.</p> <p>Bridge bonds are excessive in amount and illegal and void to the amount of the excess where the county was already indebted, and the bonds were issued for a larger amount than a tax of 10 cents on the $100 valuation of property in the county would liquidate in ten years, contrary to the prohibition of article 986b, Sayles’ Revised Statutes (1888).</p> <p>4. Same—Inaccuracy in Registry of Bonds.</p> <p>Bonds issued by a county can not be objected to on the ground that they were not properly registered, where the statute does not prescribe what the registration shall contain, and it showed the dates and amounts of the bonds sufficiently to identify them, although they were erroneously described as payable to the State instead of to the bearer.</p> <p>5. Same—Evidence—Tax Rolls.</p> <p>A county sued by another to recover its proportionate share of an indebtedness existing prior to its separation from the plaintiff county may show the double assessment on_ its tax rolls of certain conflicting surveys.</p> <p>6. Counties—Back Taxes.</p> <p>In computing the amount recoverable by a parent county from a new county separated from.it in satisfaction of the latter’s proportionate share of their common indebtedness, the new county is not entitled to be credited with back taxes collected after its creation under assessments previously made.</p> <p>7. Same—Back Taxes Go to Mew County.</p> <p>The phrase “unpaid assessments,” in articles 5239-5243 of the Revised Statutes, providing that where a new county is created out of a part of another the tax collector of the new county shall collect the unpaid assessments on that portion of the county included within the limits of the new county, includes taxes that were delinquent at the time of the creation of the new county, and hence the latter is entitled to credit therefor where they have been collected by the older county after the organization of the new county.</p>

<p>Trade Name—Proprietary Right—Injunction.</p> <p>The name “Nickie Store,” when used as a business sign and trade name in connection with the business of a general merchant who does not buy or sell nickel, and whose goods as a rule are not sold for a nickel, is not a term merely descriptive of his wares and business, but is a trade name which he may acquire an exclusive right to use at a given place, and the use of which by another at that place a court of equity will restrain by injunction.</p>

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

<p>Appeal from Wise. Tried below before Hon. J. M. Patterson.</p>

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

<p>Carriers—Live Stock Shipment—Duty to Feed and Water.</p> <p>The duty of a railroad company to feed and water cattle transported over its road every twenty-eight hours, in accordance with section 4386 of the Revised Statutes of the United States, does not cease upon a tender of the cars on which the cattle are carried to the next carrier, where the latter refuses to take them, although the shipper has a remedy against the connecting carrier for refusing to receive the cattle.</p>

<p>Appeal from Haskell. Tried below before A. H. Kirby, Esq., Special Judge.</p>

<p>1. Carriers—Oral and Written Contract of Shipment.</p> <p>A railroad company whose agent has orally, and without limitation of its common law liability, contracted to transport cattle at a specified rate per car, on the faith of which agreement the cattle are loaded on the cars, can not, as a condition of transporting the cattle, afterwards require the shipper to execute a written contract increasing the price of the cars and diminishing the carrier’s liability.</p> <p>2. Same—Contract Invalid—Consideration—Duress.</p> <p>Such a written contract, executed by the shipper when the train was ready to start with the cattle, and because the railroad agent refused to transport them until it was signed, is without consideration and void because executed under duress.</p> <p>3. Same—Proof of No Consideration.</p> <p>Where, as against a written contract of shipment improperly exacted by the carrier, the shipper proves that the consideration expressed therein was wanting, this is sufficient, unless the carrier proves a different or additional consideration, and the words “and other considerations” recited in the contract are immaterial.</p> <p>4. Same—Free Pass Not Consideration, When.</p> <p>A common carrier can not claim that a written shipping contract, demanded of the shipper after loading his cattle on its cars under an oral contract, is binding on the shipper because there was included as part of such contract a free pass over the road with the cattle, where the shipper was required by the contract, in consideration of such free pass, to have charge of loading, unloading, watering, and feeding the cattle, and otherwise discharging the duties of the carrier toward them.</p>

<p>1. Trial by Court—Absence of Findings—Assignment of Errors.</p> <p>The party appealing in a case tried by the judge and in which no conclusions of law and fact were filed should negative, by appropriate assignments of error, every theory upon which the judgment might have been based.</p> <p>2. Building and Loan Association—Usury—Assignment of Error.</p> <p>An assignment of error in appeal from a judgment recovered by a building and loan association that the court erred in holding that the contract between plaintiff and defendant was not usurious because recovery was allowed on a note, of appellant’s for $1800 given for only $1120 in value, does not raise the question whether the real consideration was a contract to build a house, or a loan of money; and since, if it were the former, the value of the consideration was immaterial, such assignment does not show the contract to have been usurious.</p>

<p>1. Becovery tor Minor—To Whom Paid.</p> <p>The next friend or person recovering judgment for a minor has no right to collect, the same until qualified as guardian (except in case of judgments not exceeding $500, as provided in Revised Statutes, article 3f98w), and where the amount of such a judgment for $5000, having been paid into the hands of the clerk, was by him delivered to the party recovering it on behalf of the minor, who executed an indemnity bond therefor, the court, on the matter being called to its attention, no matter how, should make such orders as are necessary to replace the money in the registry of the court.</p> <p>2. Same—Motion by Defendant.</p> <p>A motion by defendant who has paid into court money recovered by a minor to. secure its return after being improperly paid over to one not a guardian, should not be refused on the ground that defendant making the motion is protected by the payment into court and not prejudiced by its improper delivery to another than the guardian.</p>

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

<p>1. Streets—City Ordinance—Eight to Use as Market.</p> <p>Owners of business property have no vested right to make marts of the streets, alleys, and other public places, and can not maintain an injunction against the enforcement of an ordinance of a city prohibiting and punishing the exhibition and sale of certain articles of country produce upon the streets, etc., within the fire limits of a city on the ground of irreparable injury to their business therefrom.</p> <p>2. Same—Invalid Ordinance.</p> <p>Allegations showing that an ordinance prohibiting sale of country produce upon the public streets was invalid by reason of irregularities in its adoption would not give merchants owning adjacent business property the right to enjoin its enforcement, no right of property being shown to be irreparably injured by depriving them of market privileges in the streets.</p> <p>3. City Ordinance—Invalidity—Pleading.</p> <p>An ordinance is not shown to be invalid by reason of failure to pursue the course prescribed for cities incorporated under the general law in its enactment, unless it is also shown that the city was one incorporated under such law.</p>

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

<p>1. Street Railway—'Warning Signals—negligence—Question for Jury.</p> <p>The question whether the failure of the driver of a street railway car to give signals of danger by gong or bell to persons upon the track constituted negligence was for the jury; and a charge holding such duty absolute is erroneous.</p> <p>2. Street Railway—Contributory negligence—Charge.</p> <p>A charge that one driving over or along a street railway track should exercise reasonable care to avoid a collision, if cognizant of an approaching car, though correct, is misleading, as implying a duty to exercise care only in case of such knowledge.</p> <p>3. Same.</p> <p>One driving along or upon a street railway track should exercise ordinary care to discover and avoid its moving cars. A charge submitting the question whether plaintiff looked or listened for this purpose and whether failure to do so was negligence was not upon the weight of evidence, and should have been given when requested.</p> <p>4. Same—Defective Senses.</p> <p>A charge requiring greater vigilance to avoid collision on the part of one whose sight or hearing was defective was properly refused, as being on the weight of evidence.</p>

<p>1. Landlord’s Lien—Property in the “Residence.”</p> <p>The landlord’s lien given by Revised Statutes, article 3251, upon property of the tenant in the residence is not limited to that contained in the dwelling house; residence embraces other buildings and grounds used in connection therewith, and the lien attaches to a horse of the tenant' kept on the premises.</p> <p>2. Landlord’s Lien—Purchaser—Lis Pendens.</p> <p>One who buys property subject to the landlord’s lien from the tenant within one month from his removal from the premises, and before the levy of a distress warrant, but after the institution of suit for the rent and service of citation, is a purchaser pendente lite, and acquires his right subject to the judgment that may be finally rendered against his vendor.</p> <p>3. Landlord’s Lien—Exempt Property—Purchaser—Judgment—Lis Pen-dens.</p> <p>Though exempt' property is not subject to the landlord’s lien, a purchaser thereof from the tenant during pendency of a suit for enforcement of such lien, though not made a party to the proceeding, is bound by a judgment foreclosing the lien on such exempt property obtained through failure of himself or his vendor to urge the exemption as a defense.</p>

<p>Appeal from McLennan. Tried below before Hon. Sam R. Scott.</p>

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

<p>Appeal from McLennan. Tried below before Hon. Sam R. Scott.</p>

<p>Appeal from San Saba. Tried below before Hon. W. M. Allison".</p>

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

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

<p>1. Railway Company—Passenger Refusing to Sign Ticket.</p> <p>One who purchases a railway ticket conditioned that the purchaser would sign his name whenever called upon by any conductor, can not recover for ejectment from a train upon his refusal to sign such ticket, although the agent from whom he purchased sold the ticket to him after a refusal by him to sign it.</p> <p>8. Same—Refunding Price of Ticket.</p> <p>A passenger on a railway train who refuses to sign his name to his ticket in accordance with a condition thereon may be ejected from the train without refunding the money paid for the ticket.</p>

<p>Appeal from Hunt. Tried below before Hon. Howard Templeton.</p>

<p>1. Deed Construed—Life Estate—Inheritance, by Wife.</p> <p>The wife, if she survives her husband, who dies without issue, takes a life estate and a fee simple to an undivided one-half under a deed granting land to the husband for life, and after his death to his heirs in fee, and providing that if his wife survives him she shall have the use of the land for life, and that if he dies without heirs of his body or their descendants, the land shall descend to his heirs as directed by statute.</p> <p>Ü. Rights of Remainderman.</p> <p>The remainderman is not entitled, during the existence of the life estate, to judgment in trespass to try title for the land, or for rent.</p>

<p>1. Conclusions of Law and Fact—Eight to.</p> <p>A request by the unsuccessful party that the trial judge shall filé his conclusions of law and fact should always be granted, unless the circumstances are such as to render it impracticable to comply when the request is made.</p> <p>2. Same—Not Essential, When.</p> <p>A refusal of the trial judge to file his conclusions of law and fact on request is not prejudicial to appellant where a full statement of facts is in the record.</p> <p>3. iCommunity Homestead—Descent.</p> <p>The children of a decedent, upon her death, become entitled to half the homestead, where it is community property of the decedent and her surviving husband, but subject to the homestead right of the husband during his life.</p> <p>4. Same—Partition with Heirs.</p> <p>The children of a decedent are not entitled to a partition of the homestead consisting of community property during the lifetime of the surviving husband, but upon his death after a second marriage they are entitled to such partition as against the second wife, whose homestead must come out of the estate of her husband.</p> <p>5. Same—Eights of Widow—Allowance.</p> <p>A widow is entitled to a homestead unembarrassed with the right of other persons to a partition thereof, but is not entitled to a homestead in less than the number of acres allowed by the statute and to an allowance to make up the balance.</p> <p>6. Decedents’ Estates—Year’s Allowance to Widow and Family.</p> <p>A widow and minor children who have used sufficient personal property to live upon for one year are properly refused an allowance under the statutes for another year.</p>

<p>Appeal from Harris. Tried below before Hon. W. H. Wilson.</p>

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

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

<p>Appeal from the Count)' Court of Brazoria. Tried below before Hon, T. C. Bowe, Special Judge.</p>

<p>1. Foreign Corporation—Permit to Do Business in Texas.</p> <p>A permit to do business here is not necessary under the statute to enable a foreign corporation to prosecute a suit for property that it owns in this State, when there is nothing to indicate that the subject matter grew out of the business in which it is engaged.</p> <p>,2. Same—Pleading—Practice on Appeal.</p> <p>The question of the right of a foreign corporation to sue in this State, where there is nó allegation in its petition of a permit to do business in the State, can be raised for the first time in the appellate court. Following Taber v. Association, 91 Texas, 92.</p> <p>3. lis Pendens—Vendor’s lien Notes.</p> <p>A suit to restrain the negotiating of vendor’s lien notes by the pledgee thereof does not serve as a basis for the rule of lis pendens so as to affect the rights of persons dealing with reference to the land, and such persons are not affected by the subsequent commencement of a cross action to foreclose the liens.</p> <p>4. Innocent Purchaser of Vendor’s lien Notes—Notice.</p> <p>A purchaser for value in good faith of vendor’s lien notes is not affected by prior vendor’s lien notes which were given to the vendor on a sale prior to the sale in which the notes in question were given, and were assigned by him, where a deed back from the first purchaser to the vendor, reciting as a consideration the sum for which the first notes were given, was recorded in the meantime, and the purchaser of the latter notes had no notice that the earlier notes were outstanding.</p> <p>5. Same—Consideration—Purchaser for Value—Extension of Time.</p> <p>The extension of the time for payment of a debt constitutes a sufficient consideration for a note to make the holder a purchaser for value.</p> <p>6. Same.</p> <p>The purchaser of a vendor’s lien note before maturity and without notice occupies the same position as if he had purchased the land.</p>

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

<p>Appeal from Van Zandt. Tried below before Hon. J. Gordon Russell.</p>

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

<p>1. Burden of Proof—Fraud—Confidential Relations.</p> <p>In an action by sisters against a brother to set aside a deed of theirs to him on the ground of fraud and unfairness, wherein it appeared that at the time of the transaction he was familiar with the business matters to which the deed related and they were not, but that they were then of age and not living with him or dependent on him, the relationship of the parties did not constitute such confidential relations as to authorize the inference of fraud, prima facie, and so place upon the defendant the burden, of proof to show that the transaction was fair.</p> <p>2. Fraud in Procuring Deed—Charges Against Estate.</p> <p>Where a member of a firm died intestate leaving as his heirs his brothers, who were partners with him, and his sisters who resided in a distant State, and one of the brothers procured from the sisters a deed conveying to himself the interests they had so inherited, in an action brought by them to set aside the deed for fraud and misrepresentation, the court properly charged the jury that the deed should not be set aside if, in obtaining it, the defendant fully disclosed to his sisters all the facts in his possession relating to the condition and value of the deceased brother’s estate and interest in the firm business, and if they received from him the reasonable value of their interests therein, and that on this point the jury could consider the evidence of the deceased brother’s sickness, with expenses thereof paid by "the firm for a long time prior to his death, and his consequent inability to attend to the firm business, and that in this way he had received more than his just proportion of the moneys of the firm.</p> <p>3. Practice—Jury Taking Books of Account to Their Room.</p> <p>In an action against a firm by plaintiSs to recover the interest they had inherited from a deceased member of the firm, the amount and value of the partnership property and business being a controverted issue, it was reversible error for the court to permit the jury, after retirement, to call for and take to their room an invoice book of the firm showing its assets and liabilities, although one of the defendant firm had the book in his hand while testifying on that point as a witness, and was fully examined in reference thereto.</p>

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

<p>1. Mutual Benefit Insurance—Suspension of Lodge.</p> <p>Members of a subordinate lodge of a mutual benefit association which has been suspended for failure to pay an assessment in accordance with the by-laws, are not entitled to participate in death benefits during such suspension, where the regulation visits such penalty upon the members of lodges in default.</p> <p>2. Same—Suspension of Member.</p> <p>The failure of a subordinate lodge of a mutual benefit association to remit an assessment within the time fixed by the by-laws does not operate as a suspension of its individual members and require them to make application for reinstatement, where the by-laws merely provide that for such neglect the lodge shall be suspended and its members be deprived of the right to participate in death benefits during such suspension, while a separate regulation provides for the suspension of individual members.</p> <p>3. Same—Evidence of Regular Standing.</p> <p>A finding that a subordinate lodge of a benefit association of which the de- . ceased was a member was in good and regular standing, although it had never paid a fine imposed upon it at a time when it was suspended for nonpayment of an assessment, is justified by evidence that such assessment and many subsequent ones were paid and received by the association.</p> <p>4. Same—Statements in Unwarranted Application.</p> <p>Statements in an application for reinstatement improperly required by the supreme lodge of a benefit association of the members of a lodge suspended for nonpayment of an assessment, are not binding upon them where the by-laws only authorize a suspension of the lodge for such cause, but not of its individual members.</p> <p>5. Same—Estoppel by Receipt of Assessments.</p> <p>The supreme lodge of a mutual benefit association is estopped from denying that a subordinate lodge was in good standing at the time of a member’s death, although a fine imposed on it for nonpayment of an assessment had not been paid, when such assessment and several subsequent ones had been remitted to and accepted by the supreme lodge.</p> <p>6. Same—Reinstatement of Member.</p> <p>A member of a mutual benefit association under whose by-laws suspended members are entitled to reinstatement “if living and in good health,” is, as a matter of contract, entitled to such reinstatement if living and in good health when the application is made.</p>

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

<p>1. Abatement of Action for Personal Injury—Statute Not Retroactive.</p> <p>It was within the legislative power to make the Act of May 4, 1895, preventing the abatement of a cause of action for personal injuries to the health, person, or reputation by the death of the person injured, apply to causes of action existing at the time of its passage and which had not up to that time been abated by the death of the person injured.</p> <p>2. Pleading in Action for Personal Injury.</p> <p>Plaintiff’s petition in an action for personal injuries is not demurrable because, it seeks to recover the damages resulting from his exposure to cold after his injury, where such exposure is alleged to have been one of the proximate consequences of the defendant’s negligence in causing the injury.</p> <p>3. Same—Averment of Negligence—Collision at Railway Crossing.</p> <p>An averment in a petition that a railroad crossing was approached negligently and carelessly, and without any care or caution, or the exercise of any diligence whatever, is broad enough to allow recovery upon any negligence shown in the running of a train as it approached the crossing, although it also avers that the whistle was not blown nor the bell rung.</p> <p>4. Damages for Personal Injuries—Charge of Court.</p> <p>An instruction in an action for personal injuries commenced by the person injured and continued by his executrix after his death, that the plaintiff is entitled to such an amount as would have compensated the deceased (had the suit been tried just before his death) for his loss of time, diminished capacity to make a living, and his physical and mental pain and suffering, is not subject to the criticism that it permits a recovery for loss of time, diminished earning capacity and physical and mental suffering, future as well as past.</p> <p>5. Same—Contributory Negligence.</p> <p>The objection to a charge on contributory negligence that it is too general and does not particularize the acts and omissions relied upon, is not ground for reversal in the absence of special requested charges upon the point.</p> <p>6. Same—Exposure to Weather.</p> <p>Damages resulting from exposure to the weather, which was the proximate result of the negligence of a railroad company in causing a collision at the crossing of two roads, may be recovered from the company chargeable with the negligence.</p> <p>7. Same—Pacts and Charge of Court.</p> <p>For facts showing actionable negligence on part of a railway company resulting in a collision of trains at a crossing, with proper charge of court relating thereto, see the opinion.</p> <p>8. Same—Survival of Action—Mental Anguish.</p> <p>The survival under the Act of May 4, 1895, of a cause of action for personal injuries after the death of the person injured, carries with it the right to recover for mental anguish or suffering of the deceased.</p> <p>9. Same—Damages Where Plaintiff Subsequently Dies.</p> <p>Where, pending an action for personal injuries, the plaintiff dies of consumption, compensation is to be made only for the damages sustained up to the time of death.</p>

<p>1. Deed—Absolute Grant in Fee—Words Hot a Condition Subsequent.</p> <p>The declaration in an absolute warranty deed that the property is for the purpose of a female academy, without the use of any other words of limitation,- as “only,” or "for no other purpose whatever,” does not constitute a condition subsequent, nor create a resulting trust in favor of the grantor or his heirs in the event the property is used for other purposes.</p> <p>2. Same—Evidence—Declarations of Stockholders.</p> <p>The declarations of stockholders, since deceased, of an unincorporated association as to the contents of a lost deed to the trustees of the association are not admissible in support of an attack upon the title of the association, where their interest is indefinite and is not shown.</p> <p>3. Same—Same—Declarations Admissible, When.</p> <p>In order for the declarations of stockholders, since deceased, in an unincorporated association as to the contents of a lost deed to the trustees to be admissible on the ground that they were against interest at the time, it must appear that such stockholders were familiar with the contents of the deed.</p> <p>4. Same—Evidence.</p> <p>Ho evidence that a lost deed to an unincorporated association for school purposes contained a clause restricting the use of the premises to such purposes and no other, is furnished by the minutes of the stockholders’ meeting authorizing the trustees to lease or sell the property for school purposes and no other, and the language of a lease of the property, that the lessees were “to have the full control, use, and enjoyment of said land for school purposes and none other, as the stockholders of said association now have and can give.”</p> <p>5. Community Property—Heirs of Wife Divested of Title.</p> <p>The heirs of a wife can not dispute the effect of a conveyance by the husband, after her death, of community real property, where in the partition and distribution of the separate estate of the husband after his death, as well as of the community estate of himself and his deceased wife, more property was set apart to be divided among the heirs than that conveyed.</p> <p>6. Evidence—Lost Deed Declaration Against Interest—Stockholder.</p> <p>The declaration of a stockholder in an association that a lost deed made to it contained a clause for the reversion of the property when it ceased to be used for school purposes, is not admissible as a declaration against interest where it is made after he has parted with all his interest in the association.</p>

<p>1. Sheriff’s Deed—Presumption in Aid of.</p> <p>It will be presumed that an execution which can not be found follows the judgment, rather than that it issues against a person not named therein, where the execution docket fails to give the names of the parties, and the sheriff’s deed, which in every particular but the names correctly describes the judgment, is consistent with the conclusion that the execution issued against either person, since it gives the name of the party described in the judgment in the habendum clause, and the other name in the granting clause, especially in view of the long assertion of claim under the sheriff’s deed, and the apparent recognition of it as a conveyance of the judgment debtor’s interest in the property in his subsequent conveyances.</p> <p>2. Same—Description of Land.</p> <p>The description in a deed of the land it conveys as 200 acres off the S. end of 800 acres known as the Bed Bluff league is sufficient where the south line of the league is a straight east and west line.</p> <p>3. Same—County Hot Hamed.</p> <p>A sheriff’s deed is not void on its face for uncertainty in the description of the property as “200 acres of land off the S. end of 800 acres of land known as the “Bed Bluff League” where it states that the sheriff of Harris county levied upon it, and that the sale was made in that county.</p>

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

<p>1. Trespass Upon Bealty—Bight of Action by Lessor.</p> <p>A lessor can not maintain an action for injury to premises in the exclusive possession of the lessee, unless the injury affects or lessens the value of the freehold.</p> <p>2. Same—Plea in Bar.</p> <p>A plea in bar in an action of trespass quare clausum fregit does not put in issue the existence of the plaintiff’s title, or of his right of possession.</p> <p>3. Same—Bight to Nominal Damages.</p> <p>The right to recover nominal damages for a trespass upon realty can not be denied, however inconsiderable the injury.</p>

<p>Appeal from Falls. Tried below before Hon.'Sam. E. Scott.</p>

<p>Appeal from Coryell. Tried below before Hon. J. S. Straüghan.</p>

<p>1. Bes Adjudicaba—What Determined.</p> <p>A judgment unreversed, though wrong, binds the parties thereto in a subsequent action as to the matter decided, but not, it seems, as to the inferences to be drawn from the view of the law on which the decision proceeded.</p> <p>2. Same.</p> <p>J M., a minor, was sued and cited, and appeared, and judgment was had against him, under the name of A. M., in favor of R., quieting the latter’s title to a tract-of university land claimed by him under a deed from the mother of J. M. The parents of J. M. had settled on the land and partly paid the State for it when the father died. R., as purchaser under the surviving wife, completed payment, and after the judgment obtained patent. J. M., on coming of age, brought proceedings to set aside the judgment quieting the title, against R., who in this latter action had judgment on demurrer upon the ground that J. M., being a stranger to the judgment, could not sue to set it aside. J. M. then sued R. for a community interest in the land. Held, that plaintiff was concluded by the previous judgments, being-bound by the decree quieting title though sued by a wrong name, and the judgment upon the subsequent proceedings being conclusive against his right to set aside such-decree, but not as an adjudication that such decree did not bind him. •</p>

<p>Appeal from Falls. Tried below before Hon. Sam R. Soott.</p>

<p>1. Vendor and Vendee—Executory Contract—Failure of Title—Purchase Money and Improvements.</p> <p>See opinion for facts under which vendees under an executory sale of land were held not in default,—the title tendered by the vendor not being shown to be good,— and were entitled to have the land charged with a lien for the part purchase money paid and value of improvements placed by them on it.</p> <p>2. Vendor and Vendee—Title—Defect in Chain—Subsequent Deeds.</p> <p>The exclusion of deeds offered to show title in the vendors was not prejudicial, where the title shown, if they had been admitted, was defective for want of proof of a necessary link in their chain of title,—the heirship of certain parties under whom they claimed,—they having recovered back the land, and the issue being whether their title was sufficient to show the vendees to be in default for not completing the trade.</p> <p>3. Executory Contract.</p> <p>A contract for sale of land for which the purchasers were to complete payment on delivery of a warranty deed conveying good title, was executory, and the purchasers were not in default until such title was tendered.</p> <p>4. Same—Title Perfected by Limitation.</p> <p>The title of the vendors in such case was not perfected, so as to require the vendees to comply with the purchase, by reason of the fact that they had held possession under their contract for the statutory period of limitation.</p> <p>5. Executory Sale—Return of Purchase Money—Rights of Purchaser from First Vendee.</p> <p>The purchaser from the vendee in an executory contract for sale of land acquired the right of such vendee to a return of the purchase money paid by the latter on the failure of the first sale by reason of defects in the title of the vendor therein.</p> <p>6. Same—Parties.</p> <p>Where both the first vendee and the purchaser from him were parties to a suit in which the original vendor recovered back the land and the purchaser from his vendee had judgment for the purchase money and improvements, both the first vendee and the purchaser from him were bound by the judgment and the vendor can not complain that the wrong one recovered back the purchase money.</p> <p>7. Rescission of Sale—Use and Occupation of Property—Pleading.</p> <p>Where the vendors in an executory contract for sale of land recover it back charged with a lien for purchase money and improvements of the vendees, they can not charge the vendees in turn with the value of the use and occupation of the land while held by them, without pleadings to that end.</p> <p>8. Minority—Pleading.</p> <p>A plea of minority of plaintiff, interposed as an answer to defendant’s plea of limitation against his suit for recovery of land, will not avail as against another part of defendant’s case in which he seeks to recover back purchase money paid, on plaintiff’s retaking the land.</p> <p>9. Trial Amendment—After Judgment.</p> <p>Defendants on ■ a demurrer being sustained obtained leave to file a trial amendment, the court proceeding with the trial, saying it could be filed later on; the filing of such amendment after judgment was not prejudicial error'where it worked no surprise on plaintiff.</p> <p>10. Vendor and Vendee.</p> <p>One not a party to an executory contract for sale of land, but who received a part of the purchase money, is equally liable with those making the contract for a return of the purchase money and value of improvements made by vendee, where he unites with the. vendor to recover it back upon the trade failing through defects in the title.</p>

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

<p>Practice on Appeal—Affirmance on Certificate.</p> <p>Where an appeal or writ of error has been perfected and the transcript has not been filed in time, and no sufficient excuse for the failure to file it has been given, the right of the appellee to an affirmance on certificate at the term at which the transcript should have been filed becomes absolute. Rev. Stats., art. 1016.</p>

<p>Error from McLennan. Tried below before Hon. Sam. R. Scott.</p>

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

<p>1. Landlord and Tenant—Liability for Bent—Pleading.</p> <p>In an action to recover rent upon a contract which provided for a future^sale of land, and if the title thereof to be tendered should not prove “satisfactory” the other party should pay rent, for that year, the petition was defective in failing to aven that the title to the land had failed, as otherwise the relation of landlord and tenant did not arise. .</p> <p>2. Same—Fraudulent Bepresentation of Administrator—Estoppel.</p> <p>Fraudulent representations as to title by an administrator in ion executory contract for the sale of land, under which the other party agreed to pay rent foil a year if the title proved unsatisfactory, may be pleaded in defense of an action for the rent, and the rule estopping a tenant from denying the landlord’s title does not apply in such case.</p>

<p>1. Disqualification of Judge—Garnishment.</p> <p>The fact that the trial judge is related to one who is impleaded 'as garnishee does not render him disqualified to try the main action, to which the garnishee is not a party.</p> <p>2. Citation—Service by Publication.</p> <p>Service of citation by publication for four consecutive weeks prior to the January term will authorize the rendition of judgment at the ensuing March term.</p> <p>3. Garnishment—Irregularities in Main Judgment.</p> <p>A garnishee can not take advantage of irregularities in the principal suit such as do not render the judgment therein void.</p> <p>4. Garnishment—Notice—Partnership.</p> <p>Where all members of a firm are parties to the main action, personal service of the garnishment notice on one of them is sufficient as to a debt owed to the firm by the garnishee.</p> <p>5. Practice—Assignment of Error.</p> <p>A cross assignment will not be considered where it was not filed in the court below.</p>

<p>Divorce—Attorney Dees—Husband’s Liabilities.</p> <p>The husband is liable for reasonable attorney’s fees incurred by his wife in the prosecution of a bona fide suit for divorce based upon reasonable grounds, where the suit was dismissed by agreement of the parties, without the knowledge or consent of the wife’s attorney.</p>

<p>Appeal from Webb. Tried below before Hon. A. L. McLane.</p>

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

<p>1. Sale Under Trust Deed.</p> <p>The sale of land by a trustee whose grantor only held an equitable title to the same places the purchaser in the same position as the trustee’s grantor.</p> <p>2. Superior Legal Title—Conveyance of—Limitations.</p> <p>Where a vendor of land, still holding the superior legal title, conveys to one to whom he has assigned the purchase money notes, this vests the legal title in the assignee, though the notes be barred by limitations.</p> <p>3. Liens—Assignment of.</p> <p>The assignment of a junior mechanic’s lien upon realty does not, in the absence of fraud, carry with it an assignment of a prior vendor’s lien, held by the assignor, nor will a sale of the property under the mechanic’s lien vest the superior legal title in the purchaser.</p>

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

<p>Appeal from El Paso. Tried below before Hon. A. M. Walthall.</p>

<p>Burden of Proof—Action on Account.</p> <p>The burden of proof in a suit for part of the profits alleged to have been realized upon a contract is upon plaintiff to show the cost of the work, where it is necessary to know the cost in order to ascertain the amount of the profits.</p>

<p>1. Life Insurance Policy—Application as Part of.</p> <p>The application is a part of a contract for life insurance where the policy is issued “in consideration of the statements and agreements in the application which are hereby made a part of this contract.”</p> <p>2. Same—Forfeiture by Suicide.</p> <p>An insurance policy containing a stipulation that it shall be void if the insured commit suicide while sane or insane, is forfeited where the insured died from wounds self-inflicted while confined in jail on a charge of murder, where it is not shown that he was unconscious of his acts or that they were involuntary, or not aimed at self-destruction.</p>

<p>1. False Imprisonment—Arrest Without Warrant.</p> <p>An arrest without a warrant, for selling in the officer’s presence a railroad ticket in violation of a city ordinance prohibiting others than the owner from selling railroad tickets, is unlawful, as the offense charged is not a felony, nor an ofíense “against the public peace.” Articles 247 and 1010c, Code of Criminal Procedure, construed.</p> <p>2. Same—Oath and Qualification of Officer.</p> <p>Where a railroad company seeks to justify an arrest by its employe on the ground that he was a special policeman appointed under a city ordinance which requires him to qualify by proper oath before entering upon the duties of his office, it must show that the employe had taken the required oath of office.</p> <p>3. Same—Depot Master as Special Policeman.</p> <p>A railroad depot master who, as special policeman, arrests one who was selling a ticket on the depot platform, is acting within the scope of his authority where he has been appointed as special policeman at the company’s request.</p> <p>4. Charge of Court—Undisputed Evidence.</p> <p>It is not error for the charge of court, in submitting an issue, to state the undisputed evidence relative thereto.</p>

<p>1. Evidence o£ Damage—Personal Injury—Expectancy.</p> <p>To show the expectancy of life, of a bralceman injured in the course of his employment he may state whether his mother is living and her present age.</p> <p>8. Same—Identifying Defective Machinery.</p> <p>For the purpose of identifying the car from which the plaintiff while descending fell, to his injury, because a hand-hold gave way, he may testfy that the hand-hold had been recently placed on the car.</p> <p>3. Same—Expert Evidence of Injury.</p> <p>_ In an action for personal injuries a statement by a physician that the text-books show that one in the plaintiff's condition can never entirely recover, and that he had seen such cases that remained for considerable periods without rapid progress, if erroneous, is harmless, where the undisputed evidence shows that the plaintiff’s disease is not entirely curable.</p> <p>4. Same—Patient’s Statement of Symptoms.</p> <p>A physician may state, in an action for personal injuries, what the plaintiff told him as to his symptoms and pain's from the time of the accident to that of the examination.</p> <p>5. Charge of Court—Evidence Warranty—Defective Machinery.</p> <p>In an action by a brakeman to recover for personal injuries, an instruction that if the plaintiff was injured by falling from a ear because a hand-hold insecurely fastened and not in reasonably safe condition gave way, he might recover, is justified by allegation and proof that the fastenings gave way because of the rottenness of the wood to which they were attached.</p>

<p>1. Practice—Cross-Examination—Memorandum.</p> <p>An attorney can not be compelled to deliver to the opposing counsel a memorandum used by him in examining a witness, where it was not used by the witness, and the attorney has offered to put it in evidence, or allow the opposing counsel to do so, and asked of the witness no questions in regard to it.</p> <p>2. Mechanic’s Lien—Joint Contract—Enforcement.</p> <p>Persons furnishing materials for the erection of a residence, barn, and other buildings are not entitled to have the contract for the erection of the latter buildings separated from the residence contract, and their lien enforced thereon, where the portion of the material which went into the former contract is unascertainable, the owner has paid nothing to the contractor since the notice of indebtedness served upon him, and owes him nothing because of his abandonment of the work, considering the entire work to be done as provided for in the two contracts, which were considered by the parties as in effect but one contract, and were so treated in the pleadings of the person seeking to establish the lien.</p>

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

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

<p>Appeal from Dallas. Tried below before Hon. Kenneth Foree.</p>

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

<p>1. Limitations—Vendor’s Lien.</p> <p>An action to foreclose an express vendor’s lien is one founded upon a written contract, and must be brought within four years from the accrual of the cause of action. Articles 3356, 3358, Revised Statutes, construed.</p> <p>2. Same—Lien an Incident of the Debt.</p> <p>A lien is merely an incident of the debt, and a statute of limitations applicable to an action on the debt applies also to one for the foreclosure of the lien.</p> <p>3. Same—Acknowledgment of Debt.</p> <p>A vendor’s lien is lost if the debt which it secures has become barred bv limitations, and such lien can not be restored by the acknowledgment of the debt by the debtor if the land has been conveyed to another, but the debtor can prevent the debt from becoming barred and the lien from being destroyed by written acknowledgment of the debt before the time necessary to complete the bar has passed, although he has conveyed the property. Article 3370, Revised Statutes, construed.</p> <p>4. Same—Possession.</p> <p>Possession obtained under a deed out of which a vendor’s lien arose is prima facie in subordination to the lien.</p>

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

<p>Appeal from Brazos. Tried below before Hon. 0. G. Taliaferro.</p>

<p>1. Registration—Innocent Purchaser—Burden of Proof.</p> <p>The burden is upon a purchaser seeking to avoid the effect of a prior unrecorded conveyance by the grantor, to prove that he paid value for the property.</p> <p>2. Same—Recital in Deed of Consideration Paid Not Evidence.</p> <p>The recital of the consideration in a deed is not evidence of its payment as against a grantee in a prior unregistered conveyance.</p> <p>3. Same—Lien Creditor Without Notice.</p> <p>A creditor who, by attachment or other legal process, fixes a lien upon land as that of his debtor, acquires under the statute a right superior to that of the grantee in a prior unregistered conveyance of the property made by the debtor, where, at the time of the acquisition of the lien, the creditor had no notice of such prior conveyance.</p> <p>4. Levy—Description of Land In.</p> <p>The description of land in the levy of an attachment as “lot No. 7 in southwest block of outlet 139, in the city of Galveston,” is sufficient, although outlot 139 has never been regularly platted into blocks and lots, where, if it were so platted in conformity with the platted portion of the city, the property in controversy would appear as lot No. 7 in the southwest block, and it is shown by the statements of real estate agents and a surveyor, that the reference to the property as lot No. 7 would identify it equally as well as if it were described by metes and bounds.</p> <p>5. Public Policy.</p> <p>It is not against public policy for a purchaser of land under a prior unrecorded deed to combine with an attaching creditor in purchasing the land at a sale under the attachment, in order to cut off a subsequent purchaser whose deed was recorded before his own, but after levy of the attachment.</p>

<p>1. Mechanic’s Lien—Subcontractor’s Claim Dependent.</p> <p>The right of a materialman claiming a lien on the property of the owner depends upon the original contract between the contractor to whom the materials were furnished and the owner and upon its amount, and the materialman can not demand of the owner money beyond that amount and which by the terms of the contract was never due the original contractor.</p> <p>3. Same—Notice by Subcontractor Too Late, When.</p> <p>Payments made by the owner in a contract before notice by a materialman of his claim pass beyond the reach of a lien thereafter asserted.</p> <p>3. Same—Affidavit—Agency.</p> <p>An affidavit made by an agent of a materialman to a filed account need not state the fact of agency, as the statute does not require this.</p> <p>4. Same—Subcontractor’s Claim—Filing.</p> <p>A materialman may establish his lien by filing a bill of items where he does not have and is not entitled to possession of all the papers and letters constituting the contract for furnishing the material.</p> <p>5. Same—Affidavit to Subcontractor’s Claim—Notice.</p> <p>It is not necessary that a subcontractor’s affidavit to his claim of lien should state that notice had been given to the owner as the items thereof were furnished.</p>

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

<p>Appeal from Anderson. Tried below before Hon. J. G. Russell.</p>

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

<p>1, Appeal—Pauper’s Proof in Lieu of Bond.</p> <p>Where the appellant is unable to pay the costs of appeal or give security therefor, he may make proof of such inability before the district court that tried the case, even after the term of court at which the judgment was rendered. Article 1401, Bevised Statutes, construed.</p> <p>2. Mandamus—Pauper’s Proof in Lieu of Appeal Bond.</p> <p>Mandamus will lie to compel a district judge to hear and determine the proof upon the application of a party for a writ of error in forma pauperis to bring up a judgment of the district court before the appellate court for review.</p>

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

<p>1. Estoppel—Junior and Senior Mortgages.</p> <p>A second mortgagee of cattle, whose mortgage recognizes the superiority of the lien of a prior mortgage, can not avail himself of an estoppel against the first mortgagee to claim the proceeds of a sale of the cattle under the second mortgage upon the ground that the manner in which the mortgagor, with the consent of the first mortgagee, conducted the business was such as to warrant the conclusion by persons dealing with the matter that he had authority to sell the cattle without restriction.</p> <p>3. Chattel Mortgages—Power of Sale in Mortgagor.</p> <p>The rule that, where the mortgagee of personal property consents that the mortgagor remain in possession, with authority to sell the property, the latter becomes the mortgagee’s agent, and a sale by him passes the title free from the lien of the mortgagee, does not apply as between the first mortgagee and a second mortgagee whose mortgage recognizes the superiority of the first mortgage.</p> <p>3. Practice on Appeal.</p> <p>The appellate court will not examine a manuscript record of 300 pages, in order to find what particular objections were considered by the trial court in rulings on evidence complained of in the brief which does not state the particular grounds of objection.</p> <p>4. Same—Harmless Error.</p> <p>The giving of a rule of evidence in a charge is not reversible error where the pleadings put in issue the matter to which the rule relates, and the evidence admits of but one finding on that issue.</p>

<p>1. Set-off.</p> <p>In an action upon a note the defendant may plead in set-ofi an unliquidated claim for attorney fees.</p> <p>2. Same—Interest—Set-off Credited at What Date.</p> <p>The claim of an attorney for services due him from his client before the maturity of two notes given by him to the client, which bear a higher rate of interest than the attorney’s claim, will be set off in an action upon the notes as of the time at which such claim matured, and not as of the time of the trial.</p> <p>3. Same—Costs.</p> <p>Where defendant brought a separate suit on his claim, but afterwards had the suit consolidated with one brought by the other party against him wherein he pleaded his claim in set-off, pro tanto, and plaintiff recovered for a balance, the defendant was properly taxed with the costs of both actions.</p> <p>4. Costs—Practice on Appeal.</p> <p>Where, on appeal, the judgment is reformed because it includes more interest than should have been allowed, the costs of appeal will be taxed against the appellee.</p>

<p>Appeal from the County Court of Hall. Tried below before Hon. William Pardue.</p>

<p>Appearance by Attorney for Claimant Under Execution.</p> <p>The statement by an attorney in the clerk’s presence that he represents the plaintiff, with the request that his name be so entered on the docket, is not such an appearance in a proceeding for trial of the right of property seized under plaintiff’s execution as will authorize the court to dispose of the action by quashing the execution at the first term, instead of continuing the cause because of plaintiff’s nonappearance, as required by the statute in such case. Rev. Stats., art. 5300.</p>

<p>1. Acknowledgment of Deed—Grantor’s Identity.</p> <p>A deed in a chain of title is defective where the certificate of its acknowledgment fails to show that the grantors acknowledging it were known to the notary.</p> <p>2. Action for Slander of Title—Proof of Title by Limitation.</p> <p>In an action for slander of title, the plaintiff may prove a title by limitations, though it be not specially pleaded. Article 3347, Revised Statutes, construed.</p> <p>3. Same—Title Is Slandered, When.</p> <p>An attorney employed to examine the title to realty by its owner and a prospective purchaser is guilty of slandering the title where he pronounces it bad, when he knows it to be good, or by ordinary skill and diligence could have ascertained that fact.</p> <p>4. Same—Slander Not Shown, When.</p> <p>If the contract with the attorney is, that he is to pass upon the title only as it is shown in the abstract of title furnished him, and he does this truly, or with ordinary skill, care, and prudence in such a matter, he is not liable for slander of title if the abstract is faulty, even though the deed records show a perfect title.</p>

<p>1. Release of Vendor’s Lien—Agreement Construed to Have That Effect.</p> <p>Where the owner of land subject to a judgment foreclosing a vendor’s lien made a sale of other land to the judgment creditor in consideration of which the creditor agreed to thereafter deliver to him a warranty deed of the first land, and the case involved conflicting evidence as to whether there was a further verbal agreement that the creditor should first sell under the judgment and then convey; the court properly charged that if, in making such sale to the creditor, it was the intention and purpose of the debtor to procure the transfer to himself at that time of the judgment of foreclosure, and that it was intended that the judgment should be extinguished, then a subsequent sale of the land under the judgment of foreclosure would not convey the title as against another creditor who held a subsequent mortgage lien thereon.</p> <p>Z. Practice—Refusal of Requested Charges.</p> <p>The court’s refusal to give requested charges to the jury on the ground that they were presented too late, will not be held reversible error where the argument in the case was concluded on Saturday evening, when the court read his charges to the jury, and the refused charges were not requested until Monday morning at the opening of court before the papers were delivered to the jury.</p> <p>3. Same—Brief Must Show the Charges Requested.</p> <p>Where requested charges are refused by the court and error is assigned to such refusal, the appellant’s brief should contain the refused charges.</p> <p>4. Conspiracy to Defraud.</p> <p>A conspiracy between two persons to defraud necessarily involves knowledge or notice on the part of both of the fraudulent purpose.</p>

<p>Trust—Parol Evidence.</p> <p>Where the president of a corporation is directed as its agent to purchase land for it, and he purchases the land for himself and takes the deed in his own name, he holds it in trust for the company, and the trust relation may be shown by paroi evidence.</p>

<p>1. Practice in Trial Court—Physical Examination in Case of Personal Injury.</p> <p>Refusal of defendant’s request in an action against a railroad company for personal injuries to allow medical experts of its own selection to examine the plaintiff’s injured limbs and give their opinions as to whether she was capable of using artificial members, is reversible error where she exhibited such injured limbs in the presence of the court and jury, and had physicians to testify that she would never be able to wear artificial limbs, and the only specific objection urged was that the proposed experts were in the defendant’s employ and might be biased. Hunter, Associate Justice, dissenting.</p> <p>2. Same.</p> <p>Defendant in an action for personal injuries is entitled to have experts of its own selection examine an injured member of the plaintiff which she exhibited to the jury, and is not required to accept such experts as may be agreed upon by the parties and appointed by the court.</p> <p>3. Improper Argument of Counsel—Reversal.</p> <p>A judgment for plaintiff in an action against a railroad company for personal injuries will be reversed where it is unusually large in amount and the plaintiff’s counsel in his argument to the jury, without any support in the evidence and in violation of the rules, charged that the operatives in control of the train by which plaintiff was injured were drunk, as under the circumstances it can not be said that the jury were not improperly influenced thereby.</p>

<p>Landlord’s Lien—Bight of Assignee of Bent to Distrain.</p> <p>One to whom a landlord assigns the right to collect rent has no" right to distrain therefor under article 3240, Revised Statutes, providing that a person to whom rents or advances are payable, “his agent, assigns, heirs, or legal representatives” may apply, in certain cases, for a distress warrant to seize the property of the tenant, since the word "assign” refers not merely to the assignee of the rent but also of the reversion, and includes the grantee of the lease or land.</p>

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

<p>1. Deed—Identity of Grantor—Idem Sonans.</p> <p>A deed signed Anton Metzzer, conveying land patented to Anton Metzger, is not, on its face, the conveyance of the patentee, and, without proof to identify them, was. properly excluded.</p> <p>2. Surprise—Postponement—New Trial.</p> <p>Surprise of a party at discovering on the trial a mistake in the record of his deed' will not be ground for postponement or for new trial, where by due diligence he would have discovered the error and have been prepared with the necessary evidence.</p>

<p>1. Homestead—Widow—Husband’s Separate Property.</p> <p>The homestead right of the widow, as against the heirs of the deceased husband, was not limited to the thirty or forty acres actually improved and occupied during his lifetime, but extended to 200 acres, the tract embracing 322.</p> <p>2. Same—Selection.</p> <p>The widow had the right to select the 200 acres out of the larger tract; and she could choose the best land, and was not restricted to running the lines in any particular form.</p>

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

<p>1. Innocent Purchaser—Vendor’s Lien—Inquiry.</p> <p>See circumstances under which a purchaser was held to have exercised due diligence in way of inquiry and to be protected against the express reservation of a vendor’s lien in unrecorded purchase money notes, the recorded deed showing the existence of the notes but not the express reservation of lien.</p> <p>2. Same—Registration—Limitation.</p> <p>A sold land to B, who gave notes for purchase money—the deed so reciting—the notes, but not the deed, showing the retention of an express lien. 0, purchasing from B, assumed to pay these notes as part of the consideration, and afterwards conveyed to D, who in turn assumed, and later paid them, taking a release from A; but neither the deed to D, nor the notes, nor the release, were recorded. E, an innocent purchaser, then bought the land from O, who had forgotten the fact of his sale to D, and represented that the notes had been paid. Held, that E was protected against the legal title acquired by D through the conveyance from C and the release from A, because not recorded,—and against the lien for the notes because barred by limitation.</p>

<p>1. Constitutional Law—Foreign Corporation—Franchise Tax—Interstate-Commerce.</p> <p>The Act of May 7, 1897, imposing a franchise tax upon corporations and forfeiting: the right of a foreign corporation to do business in this State for nonpayment thereof, is unconstitutional as applied to a mercantile company, incorporated and having its place of business in another State, and whose business consists in selling and shipping goods to merchants in Texas, on orders sent to it by mail or taken by its drummers.</p>

<p>1. Battery—Assault—Pleading in Civil Action.</p> <p>Though under an indictment for battery a conviction may be had on proof of assault merely, a civil action for damages is not governed by the same rules as to pleading, and recovery can not be had for assault, upon a petition charging battery and not alleging facts constituting an assault.</p> <p>2. Same.</p> <p>The use of the expression “assaulted” is a mere conclusion of the pleader and insufficient to be taken as an allegation of the facts constituting an assault.</p> <p>3. Battery—Exemplary Damages—Provocation.</p> <p>Where an action for battery seeks recovery of exemplary as well as actual damages, proof that the defendant had, just before the assault, been informed of an insulting message sent by plaintiff to his wife was admissible.</p>

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

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

<p>1. Railways—Approaches to Platform—Negligence Not in Issue.</p> <p>Plaintiff, walking along a depot platform at night for the purpose of boarding the train, through insufficient light stepped off the end of the platform, there one to two feet above the ground, and fell so that his hand was run over by the train. Held, that negligence in respect to safe approaches to the platform was not in issue and was improperly submitted as a ground for recovery.</p> <p>2. Railways—Depots—Lights—Statute.</p> <p>Article 4521, Revised Statutes, applies only to the lighting, etc., of depot buildings, and not to platforms or approaches, negligence in lighting the latter being a question of fact.</p>

The original opinion in this case is reported in 18 Texas Civil Appeals, 291. The opinion on rehearing was not with the record which reached the hands of the Reporter for publication in that volume.

<p>Appeal from McLennan. Tried below before Hon. Sam B. Scott.</p>

<p>1. Life Insurance—Pleading —Setting Out Policy.</p> <p>A petition in an action on a policy of insurance need not set out the entire policy, but it is sufficient if it sets out the substance thereof and avers facts showing the defendant’s liability thereon.</p> <p>2. Same—Waiver of Breach..</p> <p>An insurance company, by unconditionally accepting and retaining a premium after knowledge of the forfeiture of the policy by breach of a condition as to engaging in certain occupations, waives the forfeiture and is estopped from setting up the same as a defense.</p> <p>3. Same—Notice to Agent—Waiver.</p> <p>Notice to an agent when acting within the scope of his authority and with reference to a matter over which his authority extends, is notice to the principal, and the rule applies where the agent of an insurance company has notice at the time he accepts payment of a premium due on a life policy that the insured has engaged in a prohibited occupation.</p> <p>4. Same—Interest Payable, When.</p> <p>Insured is "entitled to interest from the time of the insurer’s denial of its liability, if he is entitled to recover under the policy.</p>

<p>1. Indorsor of Draft—Protest.</p> <p>Where protest is not required, the provision as to suit, which is a substitute for protest, does not apply.</p> <p>2. Same—Protest Not Required, When.</p> <p>The failure to protest a forged draft does not relieve an indorser from liability to a subsequent holder where the draft was in fact paid when presented, although the money was afterwards refunded upon the discovery of the forgery.</p> <p>8. Same—Ratification by Principal.</p> <p>A principal, by receiving money paid to an agent upon the latter’s indorsement of a draft in the name of the former, ratifies the indorsement, and can not make an issue as to the agent’s authority.</p> <p>4. Same—Indorsements Presumed Genuine.</p> <p>The indorsee of a draft owes no duty to his indorser to make any inquiry concerning the genuineness of a preceding indorsement, as such indorser is a guarantor of the validity of prior indorsements.</p>

<p>Appeal from Presidio. Tried below before Hon. A. M. Walthall.</p>

<p>1. Contributory Negligence—Bailway Company.</p> <p>Deceased will be deemed to have been guilty of contributory negligence precluding recovery for his death from being struck by a train where it appears that he knew the train was coming, saw it, and must have known at the time it had not decreased its speed, and yet in midday, when there were no obstrueti&ns to his view, he stepped upon the track a few feet in front of the engine, which was moving rapidly.</p> <p>2. Same—Signals Not Given at Crossing.</p> <p>The failure to give signals upon the approach of a train to a crossing is immaterial where the person killed by the train was apprised of its approach before he attempted to cross the track.</p>

<p>1. Continuance—Admission of Fact.</p> <p>The action of the court in denying defendants’ application for a continuance in order to obtain a certain document as evidence was not to their injury where plaintiffs admitted that the document was as defendants Claimed it to be.</p> <p>2. Judgment—Res Adjudicata—Dormancy.</p> <p>A judgment does not become dormant by lapse of time so far as concerns its effect as an adjudication of the matters involved therein.</p> <p>3. Same—Same.</p> <p>A judgment which determines the question of title and possession of land does not preclude the party in whose favor it was rendered from afterwards instituting an action in trespass to try title, in the event of a subsequent entry by the other party.</p>

<p>1. Action for Death of Parent.</p> <p>Pecuniary damages may be caused to children by the negligent killing of their mother, although she had no income except from an estate which went to the children upon her death, where through superior management of her estate she was able to provide at all times and did provide in an increasing degree for the wants and necessities of the children, married and unmarried.</p> <p>2. Same—Pecuniary Loss.</p> <p>The damages recoverable by children for the negligent killing of their- mother are not necessarily confined to such pecuniary benefits as would have been produced by mental or bodily labor of the deceased.</p> <p>3. Charge of Court—Bequest for, Necessary When.</p> <p>The rule that requires the trial court to submit an issue to the jury when its attention is called thereto, although there is no formal request for a charge thereon, does not apply where the matter is practically submitted or involved in the charge given, in which case, if a more direct, pointed, or explicit submission is required, it should be asked by a correct one, framed by the party asking it.</p>

<p>Appeal from the County Court of El Paso. Tried below before Hon. James R Harper.</p>

<p>1. Deed—Description.</p> <p>A description of a headright certificate by reference to the person to whom it was issued, in a conveyance thereof, is sufficient.</p> <p>2. Trespass to Try Title—Equitable Title.</p> <p>A mere trespasser can not, in an action of trespass to try title, defend on the ground that plaintiff's title is equitable merely and not legal, and his claim a stale demand.</p> <p>3. Ancient Instrument—Custody.</p> <p>The custody of a conveyance of a headright certificate by a person to whom the grantees therein subsequently conveyed the certificate, and by his estate after his death, is the proper custody to support its admission in evidence as an ancient instrument.</p>

<p>Appeal from the County Court of Duval. Tried below before Hon. C. L. Conner.</p>

<p>Appeal from the County Court of Hill. Tried below before Hon. W. C. Morrow.</p>

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

<p>1. Fire Insurance Policy—Forfeiture by Mortgage of the Property.</p> <p>Where a safe incumbered by a chattel mortgage was purchased subsequent to the issuance of an insurance policy on saloon fixtures, this did not violate a condition of the policy that in case the insured personalty be mortgaged it should work a forfeiture of the policy, as the safe was not covered by the policy upon the specified personalty, “and such other furniture and fixtures as is usual to saloons.”</p> <p>2. Same—Waiver of Forfeiture—Charge of Court.</p> <p>A special charge that a transfer of the insured personalty without the knowledge or consent of the company’s agent would avoid the policy, erroneous because the issue was whether or not the adjuster had waived the forfeiture, is not cured by an instruction on the question of waiver given in the main charge.</p> <p>3. Same—Charge of Waiver.</p> <p>An instruction that if, by conducting a gambling establishment on the insured premises, the hazard was increased, the policy would be forfeited in accordance with its terms, in the absence of waiver, is not erroneous for failure to specify what acts were necessary to constitute a waiver.</p>

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

<p>1. Carriers—Connecting Lines—Railroad Commission—Penalty.</p> <p>A railroad company can not avoid the penalty prescribed by articles 4574 and 4575 of the Revised Statutes, for refusing to receive freight tendered by another carrier, because of differences between them as to the division of the joint freight rate established by the Railroad Commission and the requirement by the initial carrier, as a condition of delivering the freight, that the connecting carrier should sign a transfer sheet consenting to an unfair division and one in violation of the agreement between the two carriers; and the failure of the roads to have the Commission make the division of rates between them does not defeat liability for the penalty.</p> <p>2. Same—Proviso of Statute Construed.</p> <p>The proviso of article 4575, Revised Statutes, does not neutralize the preceding provision which gives a party injured by unjust discrimination by a railroad company the right to recover a penalty, so as to restrict his right of recovery to cases of extortion, but the proviso refers to a suit for penalty based upon extortion in charges, and merely makes the fact that the overcharge was unintentional a sufficient defense.</p>

<p>1. Judgment—Entry by Clerk Is Not.</p> <p>A judgment entered by the clerk which has not been previously pronounced by the court is not the judgment of the court.</p> <p>2. Same—Dismissal Einal, When.</p> <p>The dismissal of an action of trespass to try title for want of prosecution, upon motion of intervening defendants, is a dismissal as to the whole case, and such interveners, who have set up title in themselves and are asking for affirmative relief, must have the judgment set aside on notice to the parties interested, if they desire an adjudication as to their title.</p>

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

<p>Appeal from Harris. Tried below before Hon. W. H. Wilson.</p>

<p>1. Assignment of Error.</p> <p>The court will decline to consider assignments of error that are general and not made in conformity with the rules.</p> <p>2. Pleading—Verification of Answer.</p> <p>In an action of partition, a deed under which plaintiff claims is not the foundation of any pleading so as to require that an answer of the defendant denying its execution must be verified under subdivision 8 of article 1265 of the Revised Statutes.</p> <p>3. Deed—Evidence Sustaining Denial of Execution.</p> <p>For evidence held sufficient to sustain a denial of the execution of a deed by one whose name appeared as signed thereto, see the opinion.</p> <p>4. Judgment Omitting Issue of Foreclosure.</p> <p>A judgment in an action for partition and for foreclosure of a lien will not be disturbed on appeal for failing to adjudicate the foreclosure, where it will not operate as a bar to a subsequent suit for foreclosure.</p> <p>The assignments of error mentioned in the opinion as too general to be entitled to consideration were as follows: “(1) The court erred in overruling plaintiff’s demurrer and exception to defendants first amended original answer. (3) The court erred in rendering judgment for defendants. (4) The court erred in its conclusions both as to the facts and the law.”</p>

<p>1. Statement o£ Facts Corrected, at Subsequent Term.</p> <p>The trial judge may at the next term of court after judgment correct the record by striking a bill of exceptions from a statement of facts, on the ground that it was not presented to him within ten days after the conclusion of the trial and was by him inadvertently allowed to remain in the statement in approving it.</p> <p>2. Trespass to Try Title—Equitable Title Sufficient.</p> <p>'As against a trespasser one who has a beneficial title by virtue of a bond for conveyance and payment of the purchase money may maintain trespass to try title.</p> <p>3. Community Property—Deed to Wife—Presumption—Recitals.</p> <p>A recital in a deed of land to the wife, that the consideration is paid by her with the previous consent of her husband, and one in a deed of the same land by her, that she is acting with the consent and authority of the husband and in consideration of a sum paid to her, the husband joining in the deed, are not sufficient to overcome the presumption that the land was community property.</p> <p>4. Heirship—Power of Attorney—Presumption from Lapse of Time.</p> <p>Although a deed reciting that a certain person is an heir, and possesses power from the other heirs to convey title to land, would not ordinarily be evidence of heirship against anyone except parties thereto, yet lapse of time, coupled with acts of ownership on one side and non-assertion of any opposing claim on the other, authorizes the court to presume and find, not only the fact of heirship recited, but competent power in the grantor from the other heirs.</p> <p>5. Trespass to Try Title—Undivided Interest.</p> <p>Plaintiffs title to an undivided interest is sufficient in trespass to try title as against a trespasser.</p>

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

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