Volume 20 — Texas Civil Appeals Reports

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

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

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

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

<p>1. Assignment of Error Defective.</p> <p>An assignment of error to the exclusion of evidence by the trial court will be ignored where, in the various propositions it contains, the ground of the ruling complained of is not disclosed.</p> <p>2. Practice on Appeal—Bill of Exceptions Necessary.</p> <p>An assignment of error to the exclusion of evidence can not be considered where the bill of exceptions fails to show the ground of objections upon which it was ex-' eluded.</p>

<p>1. Community and Wife’s Separate Property—Mechanic’s Lien.</p> <p>A lien for materials will attach to land which is the wife's separate property, where the record title was in the community and the material was furnished in reliance upon the community ownership of the property, and without notice of her separate right.</p> <p>3. Same—Burden of Proof.</p> <p>In such case the burden of proof is on the wife to show that the land is her separate property, and that the materialman had notice thereof.</p>

<p>Appeal from Olay. Tried below before Hon. Geo. E. Hiller.</p>

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

<p>Fees of District and County Attorneys.</p> <p>The provisions of the Act of 1897, chapter 103, section 9, for a division of the fees between the district and county attorney who instituted a suit and his successor in office at its termination, is retrospective and applies to then pending suits.</p>

<p>1. Railway Company—Contributory Negligence.</p> <p>Where a passenger is injured while standing on the platform of a car in motion, his conduct in assuming such position is not contributory negligence per se and as matter of law.</p> <p>2. Practice—Court and Jury—Peremptory Instruction.</p> <p>It was error for the court to peremptorily instruct for defendant in an action against a railway company to recover for personal injuries where plaintiff testified that he was passing from one coach to another to get a drink of water, there being none in the coach where he was, and while on the platform a sudden and unusual jerk of the train while running at a rate of speed prohibited by law threw him from his balance, and that an iron railing which he grasped gave way, although he is contradicted by several witnesses. Construing the constitutional guaranty of the right of trial by jury, and article 1317, Revised Statutes, requiring the judge to “submit all controverted questions of fact solely to the decision of the jury.”</p>

<p>Evidence—Parol Varying Written Instrument.</p> <p>Evidence of a paroi agreement between the parties to a written building contract for extra compensation for items included in the written contract is inadmissible, although it is claimed that the items were omitted from the written contract and the paroi agreement made for the purpose of deceiving the father of one of the parties who was to pay for the house, but had limited the amount to that expressed in the written contract.</p>

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

<p>Contract—Employment as Consideration for Release of Damages.</p> <p>The re-employment of an injured servant is a sufficient consideration for the latter’s release of his claim for damages on account of personal injuries, although he does not exercise his right to fix a reasonable time for the employment and thereby put it out of the power of the employer to discharge him arbitrarily.</p>

<p>Appeal from Hardeman. Tried below before Hon. G-. A. Brown.</p>

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

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

<p>Appeal from the County Court of Falls. Tried below before Hon. B. H. Rice.</p>

<p>1. Foreign Corporation—Action—Venue.</p> <p>A foreign corporation doing business in this State may be sued in its courts though no permit to do business has been obtained, and the venue is properly ¡aid in any county in which it does business.</p> <p>2. Benefit Insurance.</p> <p>See findings of fact held to establish liability of a benefit insurance company upon the life of an applicant dying before the delivery of the benefit certificate (liability by its by-laws dating from such delivery) where the company received and failed to return the dues and assessments required for membership.</p> <p>S. Insurance—Authority of Agent.</p> <p>Representations of an agent authorized to take applications for benefit insurance as to the time from which the insurance would be in force, were admissible, in the absence of proof of any limitation upon his authority.</p>

<p>1. Homestead—Surviving Husband—Partition.</p> <p>Under article 16, section 52, of the Constitution, the surviving husband has such right in the homestead situated upon the separate property of the deceased wife that her heirs can not recover nor have partition thereof. •</p> <p>8. Same.</p> <p>The deceased wife leaving no children, her heirs inherited a half interest in the homestead, her separate property; but they were not entitled, in a suit to recover and have partition of same, to a judgment establishing their rights to such half interest, subject to the homestead rights of the husband who had claimed no more than such homestead right as against their half interest.</p>

<p>1. Vendor and Vendee—Contract Construed.</p> <p>In an executory contract for the sale of land, the vendee, in part consideration, assumed payment of existing incumbrance which he was to have renewed and extended before receiving a deed, but for the purpose of such extension and renewal the title was to be vested in him. Held, that such agreement authorized the vendee to execute a new mortgage on the land, having priority over the claim of Ms vendor, to discharge such incumbrance.</p> <p>2. Same—Performance—Reasonable Time.</p> <p>Under such contract the vendee, who had received possession, was bound to provide for the debt in question within a reasonable time (which tMee months was held to be); and interest accruing upon it after such time could not be taken as a part of the incumbrance discharged, which he was entitled to deduct from the entire price agreed on with his vendor.</p> <p>3. Same.</p> <p>See decree adjusting the terms on which vendee was to comply with his contract, held to be reasonable in requiring him to complete the adjustment of the incumbrance within sixty days, and allowing him to create a new debt running five years, in order to do so.</p> <p>4. Same.</p> <p>See provision in said decree attempting to save the rights of persons not parties, who might have previously contracted "with the vendee, held to be improper.</p> <p>5. Vendor and Vendee—Performance—Improvements.</p> <p>A vendee asserting Ms readiness and willingness to perform the contract, and being permitted by the decree to do so, can not complain of a refusal to find the value of improvements to be allowed Mm in case the vendor recover back the land.</p> <p>6. Same—Adjustment of Incumbrance—Attorney’s Fees.</p> <p>Where the incumbrance which a vendee undertook to discharge contained no provision for attorney’s fees upon the note secured, it was improper, in adjusting by decree the terms on which he should be permitted to comply, to require him to provide for a sum as attorney’s fees on such note.</p> <p>ON MOTION FOB REHEABINO.</p> <p>7. Practice on Appeal—Finding Facts.</p> <p>The Court of Civil Appeals can make no finding on conflicting testimony upon an issue of fact not passed upon in the trial court.</p> <p>8. Trespass to Try Title—Improvements—Bents—Offset.</p> <p>Defendant in trespass to try title having been adjudged entitled to specific performance, on equitable terms, of an executory contract of sale under which he had possession, the appellate court could not, in the absence of a finding thereon by the trial court, ascertain the rental value of the lands and award a recovery therefor to plaintiff in case defendant failed to perform the requirements of the decree. The judgment in such case will be without prejudice to plaintiff’s rights to afterwards sue for recovery of such rents, or the right of defendant to offset the value of improvements made by him.</p>

<p>1. Church—Doctrinal Questions in Court—Property Rights.</p> <p>Courts have no power to determine, for religious bodies, ecclesiastical or doctrinal questions, and will only inquire into them when property rights become the subject of litigation, and then only so far as to determine those rights.</p> <p>8. Same.</p> <p>When property has become dedicated to the support of some specific form of religious doctrine, it becomes a trust, and the courts will hear evidence to determine what that doctrine is, in order to ascertain the trust, which they will not permit to be diverted to other and different doctrinal uses, whether a majority or minority of the congregation adhere to such doctrines.</p> <p>3. Same—Fact Case.</p> <p>See findings of fact, held to be supported by the evidence, upon which a minority of the congregation (styled the “Progressive Faction”) was held entitled to recover the property of the “Christian Church of McGregor” from the majority in possession (styled the “Finn Foundation Faction”),—the former being found to represent the original doctrines and practices to the support of which the property was dedicated, and the differences between them being radical and irreconcilable.</p>

<p>1. Joinder of Actions—False Imprisonment—Malicious Prosecution.</p> <p>Actions for false imprisonment and for malicious prosecution may be joined where the parties are the same and the causes grow out of one continuous transaction.</p> <p>2. False Imprisonment—Damages—Evidence.</p> <p>In an action for damages from imprisonment on a false charge made by defendant, plaintiff may give evidence as to his treatment while in confinement, at the hands of the public authorities, as bearing on the amount of damages.</p> <p>3. Agent—Scope of Authority—Arrest—Promise.</p> <p>An agent employed to procure evidence against and secure the arrest and conviction of one suspected of theft from the principal, acts within the scope of his authority in undertaking, after such arrest, to give notice thereof to the person’s friends and family.</p> <p>4. Same—Efforts to Prevent Bail.</p> <p>Such agent is acting within his employment where he endeavors to induce the bondsmen of the arrested party to surrender him into custody.</p> <p>5. Charge—Undisputed Evidence.</p> <p>The court, where the evidence as to a fact is undisputed, may so instruct the jury.</p> <p>6. Evidence—Reputation for Honesty.</p> <p>Plaintiff, in a suit for malicious prosecution and false imprisonment upon a charge of embezzlement, may offer evidence of his general reputation for honesty.</p> <p>7. Arrest.</p> <p>An officer has no authority to arrest without warrant on the charge of embezzlement of property to the value of one dollar, though committed in his presence. (Code Crim. Proe., arts. 230, 247, 248, 249; Ordinances of City of Waco, art. 483.)</p> <p>8. Same—Charge—Harmless Error.</p> <p>An instruction that the offense was not one committed in the presence of the officer, if erroneous, was harmless, where the arrest was upon a charge for which arrest without warrant was forbidden had it been so committed.</p> <p>9. Charge—Malice—Probable Cause.</p> <p>A charge that malice may be inferred from want of probable cause does not require the jury to so infer. But the jury should, it seems, be left to draw the inferences without instruction.</p> <p>' 10. Charge.</p> <p>Instructions embraced in the general charge need not be repeated on request.</p> <p>11. Same.</p> <p>It is improper to instruct the jury upon a given hypothesis to find for defendant, where a verdict for plaintiff might be warranted upon another hypothesis.</p> <p>12. Same—Findings on Issues Separated.</p> <p>The jury may find a general verdict against defendant, though separate issues as to his liability are involved, and it is not reversible error to fail to find separately upon the issues, though instructed to do so.</p>

<p>1. Foreclosure—Parties—Holder of Outstanding Title.</p> <p>in a suit to foreclose a mortgage the holder of an outstanding title not claimed in privity with the mortgagor can not he made a party for the purpose of litigating his adverse title.</p> <p>Z. Same.</p> <p>The question in such case is not one of personal privilege, which may be waived by continuance without calling attention to the plea, hut one of misjoinder of parties.</p>

<p>Appeal from Lampasas. Tried below before Hon. Joi-in M. Furman.</p>

<p>1. Depositions—ITotary Disqualified.</p> <p>An attorney employed and paid by a party to a suit to find witnesses by whom certain essential facts can be proved is incompetent in his capacity of notary to take depositions of such witnesses for the party who employed him.</p> <p>2. Practice—Erroneous Admission of Evidence.</p> <p>Other evidence will not render the erroneous admission of depositions harmless, where it can not be determined that they did not influence the jury.</p>

<p>Appeal from Maverick. Tried below before Hon. Walter Gtllis.</p>

<p>1. Action tor Personal Injury in, a Foreign State.</p> <p>An action for personal injuries sustained by being ejected from a railroad car in the republic of Mexico is one arising from a tort, and is maintainable in this ¡State without an allegation that the suit is authorized by the laws of Mexico.</p> <p>2. Same—Survival of Action to Wife.</p> <p>A cause of action for personal injuries to a husband in a foreign' State does not survive here to the wife upon his death, unless there is a statute in the foreign State which causes the action to survive to her, as well as in the State where the action is brought.</p> <p>3. Same—Foreign Law Must Be Shown.</p> <p>Jn a wife’s statutory action for injuries received by her husband in a foreign State, resuming in his death, it is necessary for plaintiff to establish the existence of a law in the foreign State that gives the right of action, as well as m the Stare where the action is brought.</p> <p>4. Same—Suit Mot Abated—Wife May Prosecute.</p> <p>A wife may continue after the death of her husband a suit which was instituted by him for personal injuries sustained by her in a foreign State, but prosecuted in this State.</p>

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

<p>Appeal from Bexar. Tried below before Hon. Bobebt B. Gbeest.</p>

<p>1. Carriers of Freight—Verbal and Written Contract Limiting Liability-Consideration Wanting.</p> <p>Where horses are received for shipment under a prior verbal contract with the shipper fixing the point of destination and price per car, a subsequent written contract signed by the shipper limiting the carrier’s liability to its own line is without consideration, although such signing was required in order that passes might issue to the men who accompanied the horses.</p> <p>2. Same—Measure of Damages—Market Value.</p> <p>The measure of damages sustained -by a shipper of horses injured in transit is the difference between their market price in the condition in which they were delivered and what their market price would have been if proper care had been exercised.</p> <p>3. Practice on Appeal—Harmless Error.</p> <p>The erroneous admission of evidence can not be complained of in the absence of prejudice.</p> <p>4. Charge of Court—Assuming Fact.</p> <p>The assumption by the court in its charge of an uncontroverted fact is not erroneous.</p>

<p>1. Railway Company—Fencing Right of Way—Exemplary Damages.</p> <p>A railroad company is liable for both actual and exemplary damages where it has fenced its right of way through plaintiff's inclosure without making, after notice, an opening for him, while it has made requisite openings for his neighbors on either side of him.</p> <p>2. Same—Opening for Inclosures—Request—Diligence.</p> <p>It is the legal duty of a railroad company, under article 4427, Revised Statutes, to make openings or crossings for cattle along its fenced right of way where it intersects an inclosure, without any request on the part of the adjoining landowners, so that whether it exercised reasonable diligence after request made for an opening is immaterial in an action to recover damages sustained by reason of failure to make it.</p> <p>3. Same—Same—Ratification.</p> <p>A railway corporation can only act through its officers, and is chargeable with the ratification of acts of oppression committed by its servants and which their superiors did not prevent or remedy.</p> <p>4. Same—Exemplary Damages.</p> <p>Exemplary damages in the sum of $100 are not excessive where a railroad ’company exhibits gross negligence and oppression in failing to provide an opening through its fenced right of way across an in closure which cut off the owner’s cattle from water and grass.</p> <p>5. Same—Same—Evidence of Discrimination.</p> <p>Evidence that a railroad company made openings in its fence for the passage of the cattle of the plaintiff’s neighbors, but failed to do so for him, as required by statute, shows discrimination, and is admissible on the question of exemplary damages.</p>

<p>1. Evidence—Certified Copy of Judgment.</p> <p>Certified copy of a judgment and execution under which land was sold and which form a link in a party’s chain of title are admissible irrespective of the statute making duly recorded instruments admissible, and need not be filed three days before the trial as required by the statute. 1</p> <p>3. Same.</p> <p>The proper method of proving a judgment in the district court of another county is by a certified copy of the record.</p> <p>3. Trespass to Try Title—Evidence—Sheriff's Deed.</p> <p>Purchasers of land at judicial sale may in trespass to try title introduce the sheriff’s deed under which they claim as against a grantee of the defendant in execution who fails to show that he is a bona tide purchaser.</p> <p>4. Innocent Purchaser—Erand.</p> <p>it is incumbent on a defendant charged with having taken his deed without consideration and to enable his insolvent grantor to defraud his creditors to show himself a bona fide purchaser for value against the claims of the creditors.</p> <p>5. Homestead Subject to Execution After Abandonment.</p> <p>Homestead property conveyed after abandonment by an insolvent debtor to a member of his family for the purpose of defrauding his creditors may be subjected to a judgment therefor recovered against him.</p>

<p>1. Carriers of Passengers—Liability for Baggage.</p> <p>It is immaterial on the question of a railroad company’s liability for loss of a passenger’s baggage whether the baggage was unloaded onto the company’s platform or a union platform, if it took charge of it.</p> <p>2. Practice—Requesting Charge.</p> <p>A railroad company desiring an instruction that if a passenger took charge of his baggage when it arrived and directed how it should be unloaded from the car and caused it to be left on the platform, he can not recover from the company for its loss, should request it, and can not complain on appeal of the omission of such an instruction, where the charge given submitted the issue whether or not the company, by its employes acting for it, received the baggage.</p> <p>3. Carriers of Passengers—Music Is Baggage.</p> <p>Manuscript music which is used by a traveling company in its business is entitled to be regarded and carried as baggage when the company travel as passengers by train.</p>

<p>1. Fire Insurance—Pleading—Insurable Interest of Lienholder.</p> <p>An insurable interest in plaintiff in an action upon a policy of insurance is averred by a petition alleging that the policy was payable to him as his interest might appear, and that he had a lien on the property to secure an indebtedness due him by the persons to whom the policy was issued which existed at the time of the fire.</p> <p>2. Same—Divisible Insurance—False Swearing—Charge.</p> <p>The failure to submit to the jury in an action on a policy of insurance an issue as to fraud or false swearing which could only have affected the recovery as to the loss on stock, is not reversible error where the policy was divisible, and it is apparent from the evidence and verdict that nothing was allowed for loss on stock.</p> <p>3. Same—Same—Iron Safe Clause.</p> <p>A policy of insurance for a gross premium placing specific amounts of insurance upon fixtures, on furniture, and on stock, is divisible, and a breach of a provision in the policy with reference to the keeping and protection of books and inventory - of the stock only affects the right to recover the loss on the stock.</p> <p>4. Same—Three-fourths Clause.</p> <p>An insurer under a policy of fire insurance containing a three-fourths loss clause, and covering a specified amount on two or more items, can not be held liable for damage to the property insured for an amount greater than three-fourths of the value of each item separately, not exceeding the amount of insurance thereon.</p> <p>5. Same—Increased Hazard—Change of Business.</p> <p>That the insurance rate on property used in the restaurant business is higher than the rate on the same property when used in the confectionery and ice cream business is not conclusive that a change from the latter to the former business is an increase of hazard.</p>

<p>Homestead—Rural Hot Changed to Urban, When.</p> <p>Land constituting a part of a rural homestead does not lose its character as such by the extension of the city limits over it and the platting of another part of it upon which the owners actually lived into lots and blocks and the acknowledgment and recording of the plat, where, after such extension, the owners continued to treat the property as a farm, and have continuously cultivated and used it in connection with that part upon which they live as a market garden, except such time as _it was rented to a tenant.</p>

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

<p>1. Fees oí County Attorney in Criminal Cases.</p> <p>Under the provision of Code of Criminal Procedure, article 1143, entitling a county attorney to 10 per cent commissions on all fines, forfeiture, or moneys collected for the State or county, upon judgments recovered by him, he is not entitled to commissions upon the trial fee of $5 taxed in the bill of costs in criminal actions tried in the county courts.</p> <p>2. Same—Commissions on Fines Discharged by Work.</p> <p>A county attorney is entitled to his statutory commissions upon fines satisfied by the labor of the person convicted where they were so discharged prior to the amendment in 1895 of the present article of the Revised Statutes (3742), which now expressly excludes commissions.</p> <p>3. Same—Commissions on Money Paid in Lieu of Work.</p> <p>Sums paid by persons sentenced to imprisoment in the county jail to avoid being put to work on the convict farm or public works are not fines, forfeitures, or moneys collected on judgments by the county attorney as contemplated by article 1143 of the Code of Criminal Procedure.</p> <p>4. Same—County Liability—Constitutional Law.</p> <p>Article 3742, Revised Statutes, making counties liable to officers for one-half only of their costs, not to include commissions, where fines are worked out by county convicts, is constitutional.</p>

<p>Sale Under Trust Deed—Time and Place—Statute Construed.</p> <p>A sale of real estate under a deed of trust executed March 5, 1888, is void where the advertisement of the sale was not in accordance with the power conferred in the deed, since the provisions of the Act of March 21, 1889, requiring all such sales thereafter made to be made in the county in which such real estate is situated and notice to be given as required in judicial sales, do not apply to sales made under a deed of trust executed prior to its adoption. Following Loan Association v. Hardy, 86 Texas, 610.</p> <p>Appeal from Freestone. Tried below before Hon. L. B. Cobb.</p>

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

<p>1. Estoppel.</p> <p>A grantee who files for record a deed of land subject to a mortgage the day following that on which it is attached by creditors of Ms grantor who afterwards become the purchasers thereof under the attachment sale, is not estopped to assert Ms claim to the land because he permits the purchasers to pay off the incumbrance thereon.</p> <p>2. Unrecorded Deed—Attaching Creditor.</p> <p>An unrecorded deed of lands is, under the statute, void as against a creditor of the grantor securing an attachment lien on the land by levy made before record of the deed and without actual notice thereof. Rev. Stats., art. 4640.</p> <p>3. Same—Actual Notice After Levy—Resulting Trust.</p> <p>An attaching creditor who knows at the time he purchases the land under attachment sale that it was paid for by another and was therefore held by the debtor grantee subject to a resulting trust, acquires no title as against the equitable owner.</p> <p>4. Resulting Trust.</p> <p>A resulting trust arises in favor of one whose property is part consideration for a conveyance of land only to the extent of the proportion that the value of Ms property bears to the whole value of the consideration paid.</p> <p>5. Limitations—Rents and Improvements.</p> <p>Rents accruing more than two years before suit is brought axe barred by the statute of limitations, and can not be recovered except to balance a claim for improvements in good faith under the statute.</p> <p>6. Eraud—Sale—Agency.</p> <p>The rights of a creditor purchasing at execution sale are not affected by a fraudulent agreement as to the sale, made prior thereto with the execution debtor by one purporting to represent the creditor, but having no authority to do so, the agreement not having been carried into effect.</p> <p>7. Judgment Upon Title Under Attachment Sale.</p> <p>A judgment awarding defendant land which he claims under attachment sale is erroneous where it covers lands which were not included in the sheriff’s return of the writs of attachment, the judgments foreclosing the attachment liens, or the sheriff's deed thereunder.</p>

<p>Appeal from the County Court of Hacogdoches. Tried below before Hon. H. F. Dunsoh.</p>

<p>1. Officer of County—District School Trustees—Removal.</p> <p>A district school trustee, whose manner of election, term of office, and duties are prescribed by the statute, and who is required to qualify and take the oath of office, is a county officer within the meaning of article 5, section 24, of the Constitution, providing that “other county officers” may be removed by the district courts for incompetency, official misconduct, or other causes, and of the statutory article 3531, which recites, as among the officers who may be removed, commissioners, constables, justices of the peace, and all other county officers now or hereafter existing by authority either of the Constitution or laws. Revised Statutes, articles 3953-3955, 3531, construed.</p> <p>2. Same—Salary Hot Essential.</p> <p>It is not necessary that a salary or fees should be annexed to an office to determine the nature of the position, as these are mere incidents and form no part of the office.</p>

<p>1. Estoppel—Judgment.</p> <p>An agreement whereby one is to acquire all of the assets of a corporation except so much thereof as may be sufficient to efiect a settlement between the corporation and the plaintiffs in an action of trespass to try title against it, does not estop such one to acquire title to land covered by a decree entered as the result of the settle-' ment which did not in fact belong to either party to the action, although he would be estopped to acquire title to any property belonging to the corporation.</p> <p>2. Same—Fraud Necessary.</p> <p>Fraud, actual or imputed, in the conduct of the party complained of, and injury from the fraud of the party complaining, are essential elements in every equitable estoppel.</p>

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

<p>Appeal from Harris. Tried "below "before Hon. William H.'Wilsow.</p>

<p>1. Practice on Appeal—Bill of Exceptions.</p> <p>A bill of exceptions to the action of the court in overruling objections to evidence will not be considered on appeal where it was embraced in the statement of facts, which was not filed until after the adjournment of the court.</p> <p>2. Evidence—Objections Hot "Waived by Cross-Interrogatories.</p> <p>Evidence improperly admitted over plaintiff’s objection is not rendered admissible by the fact that he had filed cross-interrogatories to the witnesses touching the matters to which the objection related.</p> <p>3. Same—Declarations of Title.</p> <p>Declarations of an owner of property made after the death of his first wife, that it was purchased with his separate means, are inadmissible to prove title in the declarant or those claiming under him.</p> <p>4. Same—Proof of Common Source—Estoppel.</p> <p>Defendants are not estopped as to their claim of title by reason of a will devising the property in controversy to plaintiff which they read in evidence merely to show common source of title.</p>

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

<p>1. Practice—Court and Jury—Charge—Conflict of Evidence.</p> <p>A charge which requires the jury to reconcile conflicts in the evidence, if possible, so as to give credit to the whole of the testimony, is erroneous in a.ease in which there is such a conflict.</p> <p>8. Damages—Medical Expenses.</p> <p>In an action for personal injuries no recovery can be had for medical expenses unless the evidence shows the amount of the outlay therefor.</p> <p>3. Same—Charge as to Measure of.</p> <p>An instruction that, if the jury find for plaintiff in an action for personal injuries, they shall allow such damages as seem right and proper under the circumstances in evidence; that it is not necessary to prove by witnesses the amount of such damages resulting from personal injuries or mental pain, but they are to be determined from general knowledge and experience; and that they may consider bodily and mental pain endured, if any, and probable future injury,—is erroneous as authorizing the jury to understand that no proof of any amount, as to any class of damage, is required, but that they may consult their own general knowledge and experience as their only guide.</p> <p>4. Carriers of Passengers Not Liable for All Risks of Travel.</p> <p>It is only for the consequences of such risks of travel as could have been provided against by proper diligence that the carrier is to be held liable.</p> <p>5. Same—Evidence—Circumstances—Knowledge.</p> <p>Evidence as to the condition of other switches on a railroad like the one in question, and that wrecks at such switches had been caused by a condition which the evidence tends to show existed and helped to cause the wreck at the one in question, is admissible in an action for personal injuries sustained in a railway accident for the purpose of bringing home to the railway company knowledge of the existence of such condition.</p> <p>6. Same—Evidence of Previous Condition.</p> <p>Evidence as to the previous condition of a switch where a wreck occurred is admissible for the purpose of bringing home to the railway company knowledge of the existence of such condition.</p> <p>7. Same—Photographs.</p> <p>Photographs of the scene of a railroad train wreck, to be admissible in evidence, should be shown to accurately represent the things therein reproduced.</p> <p>8. Presumption of Negligence—Charge.</p> <p>A special charge that the derailment of a train raises no presumption of negligence is properly refused, as authorizing the jury to infer that no inference of negligence could be drawn from such fact, and as being on the weight of evidence.</p> <p>9. Negligence—Testing Machinery.</p> <p>See the opinion for charge of court and discussion thereof as to the care required in testing car wheels to discover latent defects.</p>

<p>Appeal from Angelina. Tried below before Hon. Tom C. Davis.</p>

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

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

<p>' 1. Damages for Personal Injury—Amount.</p> <p>Damages in the sum of $3500, awarded to a young man whose right hand was put by the saws of a linter and so mangled as to render amputation necessary, are not excessive.</p> <p>2. Same—Charge of Court. i</p> <p>In an action to recover damages for personal injuries sustained while attempting '</p> <p>to fasten a bolt in a machine in operation, requested charges which ignore the facts of the plaintiff's youth and inexperience, and that the foreman had previously told ' him to repair the machine in that manner without warning him of the attendant danger, are properly refused.</p> <p>3. Master and Servant—Dine of Duty.</p> <p>An employe charged to keep a machine running and to tie in a bolt, if it fell out, is injured in the line of his duty where he was hurt while attempting to secure the bolt as instructed.</p> <p>4. Same—Warning Servant of Danger.</p> <p>A master who directs an inexperienced employe to tie in a bolt attached to a machine having revolving saws without warning him of the attendant danger, violates his duty, although the employe knew that the saws would cut him if he came in contact with them.</p> <p>5. Same—Proximate Cause.</p> <p>The proximate cause of the injury sustained by an inexperienced employe while attempting to fasten a bolt in a running machine in the manner he had been directed, is the master’s failure to warn him of the danger which was not apparent.</p> <p>6. Same.</p> <p>Contributory negligence is not attributable to an employe injured while attempting to fasten a bolt in a machine by winding a string about it, although the danger attending the screwing on of a nut would have been less, where the foreman repaired a similar defect in the former way and instructed the employe to do likewise.</p>

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

<p>Appeal from Foard. Tried below before Hon. G-. A. Brown.</p>

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

<p>Liquor Dealer’s Bond—Subsequent Date.</p> <p>A notice given by a wife under Revised Statutes, article 5060g, forbidding liquor dealers to sell intoxicants to her husband, is sufficient to found a recovery upon in an action upon the liquor dealer’s bond, where such sales were thereafter made, although the bond was executed after the notice was served, and the sale was made by the defendant at a place of business other than that at which the notice was addressed to him.</p>

Tried below before Hon. R. E. Brooks. The fourth assignment of error referred to in the opinion was as follows: “The court erred in admitting the testimony of the witness Veasey as to the condition he found the cars in some six or seven hours after the accident, and to give his opinion as an expert as to the cause of the parting of the train founded upon such condition, defendant not proposing to show that such condition was produced by the accident, and it appearing that…

<p>1. Case Followed.</p> <p>Rulings in Mixon v. Miles (46 Southwestern Reporter, 105, writ of error refused, 92 Texas, 318) adhered to.</p> <p>2. Joinder of Actions—Consolidation of Suits.</p> <p>The title of heirs to separate tracts of land, of which defendant held the legal title by separate conveyances claimed by plaintiffs to be in trust, could be litigated in one suit, though in one case an express and in the other a resulting trust was asserted; and it was not error to consolidate separate suits brought for the two tracts.</p> <p>3. Trust—Degree of Proof—Charge.</p> <p>In a suit to recover land on the ground that defendant’s legal title was held by him in trust for plaintiffs, it was proper to refuse a charge requiring clear and certain proof of the alleged trust.</p>

<p>1. Negligence—Definition.</p> <p>See charge defining negligence held to be unnecessarily complex, if not confusing and misleading, and requested charge on the subject held preferable.</p> <p>2. Railway—Negligence—Crossing Signals.</p> <p>The statutory requirement that signals be given from a locomotive at a distance of eighty rods from a crossing is inapplicable where it starts in motion from a point at less distance.</p> <p>3. Requested Charge—Applying Daw' to Specific Facts.</p> <p>See requested charges on contributory negligence, applying the law to a specific group of facts, which it was error to refuse.</p> <p>4. Same.</p> <p>The fact that the general charge referred the jury to the matters specifically alleged as contributory negligence in the answer, as constituting a defense, did not justify the refusal 'of a charge in which such facts were grouped and declared to present a defense.</p> <p>5. Burden of Proof—Charge.</p> <p>Where evidence is introduced both to support and to disprove the issue, there is no necessity for a charge on the burden of proof.</p> <p>6. Fellow Servants—Brakeman and Engineer of Yard Engine.</p> <p>A brakeman upon a freight train was not in common service nor a fellow servant, under the statute, with the engineer of a switch engine in the yards, by which he was run down.</p>

<p>1. Resulting Trust.</p> <p>To create a resulting trust in one whose money is paid for or converted or appropriated to the purchase of property, legal title to which is taken in the name of another, such money must be so used at the time of the purchase and as a part of the original transaction.</p> <p>3. Same.</p> <p>No oral agreements before or after the title is taken will create a resulting trust.</p> <p>3. Same.</p> <p>A father sold land of his daughter without her knowledge, giving bond to make title, and invested the proceeds in .other land, taking title thereto in himself. Subsequently the child conveyed the land so sold in discharge of her father’s bond,—he stating that the land bought with the proceeds should be hers. Held, that no resulting trust in her favor, in the property so purchased, arose from the transaction, and the express trust was void by the statute of frauds.</p> <p>4. Practice on Appeal—Rendering Judgment.</p> <p>Under Revised Statutes, article 1027, the appellate court is governed by the record in determining whether judgment shall be rendered for appellant on reversal, and can not consider statements or affidavits showing that evidence, not appearing in the record and which might require the cause to be remanded, was offered on the trial.</p>

<p>Error to County Court of Galveston. Tried below before Hon. M. M. Mann.</p>

<p>Appeal from Travis. Tried below before Hon A. S. Walker.</p>

<p>Error to the County Court of Fannin. Tried below before Hon. Jas. Q. Chenoweth.</p>

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

Tried below before Hon. J. 0. Woodward. Appellant’s first and second assignments were based on objections to the introduction of deeds because of misdescriptions stated as follows: “Plaintiff sued for the E 1-4 sec. Ho. 2, of the H. T. & B. B. B. Co. sur. The deed (from Lacey and wife to Gordon, Sutiles, and McCall) offered is for the E 1-4 of see.

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

<p>1. Appeal Bond—Parties Adversely Interested.</p> <p>I£ a party to a suit is, upon appeal, interested adversely to the party appealing, he must be made an obligee in the appeal bond, whether plaintiff, defendant, or intervener in the trial court</p> <p>3. Same.</p> <p>A codefendant not joining in the appeal, and interested against reopening the judgment only in that it could have been, but was not, rendered against him for costs, should be made an obligee in the appeal bond.</p>

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

<p>Appeal from County Court of Fort Bend. Tried below before Hon. J. S. MgEachin.</p>

<p>Appeal from Wilson. Tried below before Hon. M. ¡K¡. Keíbton.</p>

<p>Judgment of Dismissal—Setting Aside—Abuse of Discretion.</p> <p>Refusal of the court to set aside a judgment of dismissal for want of prosecution is an abuse of discretion where the failure to prosecute was due to illness of the plaintiff’s counsel, and plaintiff was poor and unable to employ other counsel, ignorant of judicial procedure, and unable to conduct the trial himself, and with the case dismissed, the cause of action was barred by limitations.</p>

<p>1. Partition—Illegality Cured by Deeds.</p> <p>Where parties execute deeds to one another in pursuance of a partition, they can not thereafter object to the legality of the partition on the ground that no-proper authority is shown for the appointment of the. commissioner who made it.</p> <p>2. Practice on Appeal.</p> <p>Parties who consent that the record of deeds may be used can not object on op» peal that this was done.</p> <p>3. Begistration of Deeds—Burned Becords—Beregistry.</p> <p>The provision of the statute, that if the original deed is not recorded within four years after the destruction of its record, a subsequent good faith purchaser will be protected, is applicable to deeds destroyed before its enactment which should be recorded within four years after the act took effect in order to preserve notice from the date of their first registration. Rev. Stats., art. 4292.</p> <p>4. Partition Deed Is Mot a Quitclaim.</p> <p>A deed executed upon partition is not .strictly a quitclaim deed, but intended to pass the land itself, and not merely a claim to it, and one who acquires the land for value thereunder and without notice is an innocent purchaser.</p> <p>5. Evidence—Hearsay.</p> <p>Testimony by a witness as to what was told him by a person since deceased is hearsay.</p> <p>6. Warranty—Measure of Damages Upon Breach.</p> <p>The measure of damages sustained by the grantee of wild and unoccupied land on failure of warranty is the amount of the purchase money with interest from the time it was paid.</p> <p>7. Same.</p> <p>Upon failure of title to land conveyed by warranty deed, the measure of damages is the purchase price, and not its actual value, where it was sold in connection with another tract which the grantee was so desirous of obtaining that he paid more for the tract in question than it was worth.</p> <p>8. Deed of All Interest Mot a Quitclaim, When.</p> <p>A deed which “grants, sells, and conveys all the grantor’s right, title, and interest, being an undivided one-half interest” in specified real estate, to have and to hold the premises to the grantee, and which includes a general warranty, is a warranty deed.</p>

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

<p>1. Assignment for Creditors by One Partner.</p> <p>A partner who has full charge of the firm affairs, may, if no fraud is shown as to the other partners, execute a valid deed of trust for the benefit of firm creditors, without the express assent of his copartners.</p> <p>2. Same—Fraudulent Preference Hot Invalidating.</p> <p>A deed of trust for creditors of a partnership, although containing fraudulent preference of a dormant partner, is valid so far as assenting creditors are concerned who did not participate in the fraud.</p> <p>3. Same—Fictitious Debt.</p> <p>A deed of trust is not void as against other bona fide accepting creditors because a debt of one of the creditors therein secured is fictitious.</p>

<p>1. Parties—Wife May Sue Alone When Abandoned.</p> <p>Where the husband has permanently and -wrongfully abandoned his wife® and children and contributes nothing to their support, the wife may sue alone, and without showing any efforts made to ascertain his whereabouts.</p> <p>2. Railway Company—Notice—Passenger’s Destination.</p> <p>A railroad company is chargeable with notice that the friends of a passenger will not be at the station to meet her when she arrives the day after that on which she would have arrived but for the company’s breach of its contract in carrying her past her station, where she informed the conductor when she boarded the train that she had a conveyance in waiting and desired to be put off the cars at her station. Railway v. Boyles, 11 Texas Civ. App., 522, distinguished.</p> <p>3. Proximate Cause—Illness of Passenger.</p> <p>The negligence of a railway company in carrying a middle-aged woman past her station, making it necessary for her to sit up all night in cars into which cold air was admitted at times, and to change ears and leave the train at a. very early hour on a cold morning, may properly be found by the jury to have been the proximate cause of an illness immediately following such breach.</p> <p>. 4. Charge of Court.</p> <p>The refusal of a requested charge is not error where substantially the same charge has been already given.</p> <p>5. Deposition—Defective Certificate.</p> <p>A notary’s certificate to the depositions of several witnesses is not in substantial compliance with the statute where, although by reference to the caption it appears that each witness was duly sworn before the deposition was taken, the statement with reference to subscribing and swearing to the answers is merely that the depositions were “sworn and subscribed to,” since such statement would be true if only one witness had sworn and subscribed.</p>

<p>Judgments in Severalty Against Tort Feasors Jointly Sued</p> <p>Verdict and judgment in an action for false imprisonment may be rendered separately against different defendants for separate and different amounts where the petition in terms charges a case against them and each of them.</p>

<p>Appeal from Washington. Tried below before Hon. Ed B. Sinks.</p>

<p>1. Administrator—Cotenants—Estoppel.</p> <p>An administrator of an estate, part of which is owned by him as tenant in common, who, at his cotenant’s request, has permitted the whole estate to be partitioned among the heirs, the decree of partition stating that it is without prejudice to his legal and equitable rights, is not estopped from asserting his claim against the heirs, and has a lien prior to that of a mortgage executed by a cotenant for an antecedent debt.</p> <p>3. Same—Subrogation.</p> <p>An administrator of part of an estate in common, being also a tenant in common of the whole estate, who, at the request of his cotenants, permits the whole estate, including his interest therein, to be sold to discharge debts of both estates, is entitled to be subrogated to the rights of the creditors whose debts were so paid to the extent his interest was so appropriated.</p> <p>3. Hotice—Recital in Decree of Partition.</p> <p>The recital in a decree partitioning an estate, that it is made without prejudice to the rights of a named person (who was the administrator) puts on inquiry one subsequently taking a mortgage from a distributee in the partition.</p>

<p>1. Revival of Action—Suggestion of Death of Plaintiff—Laches.</p> <p>The heirs of a plaintiff who dies pending an action are not prevented from filing suggestion of his death and being substituted in his stead upon attaining their majority by the fact that no effort had been made to continue the action for several years after the original plaintiff’s death and during the minority of the heirs, no personal representative having been- appointed and no suggestion of the plaintiff’s death or application for scire facias having been made by defendant as provided by articles 1246 and 1247 of the Revised Statutes.</p> <p>2. Notice of Motion—Suit Not Pending.</p> <p>A case which has been off the docket of the court for five years since the death of the original plaintiff is not pending within article 1458 of the Revised Statutes, requiring notice to be taken of motions filed and entered on the docket in all pending suits, and the heirs of the deceased plaintiff must serve defendant with notice of the filing of the suggestion of plaintiff’s death and of the motion to be substituted in his stead.</p> <p>3. Same—Service on Attorney—Suggestion of Death-</p> <p>Service of notice of the filing of a suggestion of the death of the original plaintiff and of a motion for the substitution of his heirs in his stead as plaintiffs, is ineffectual where it is made by merely advising the original attorneys for defendant to that effect, several years having elapsed since plaintiff’s death, such attorneys having ceased to represent the defendant, and so stating at the time and declining to accept the notice.</p> <p>4. New Trial—Judgment Without Notice.</p> <p>Defendant is entitled to a new trial on the ground of accident or mistake, where a judgment was entered against him six years after the death of the original plaintiff, the suit in the meantime having been treated as discontinued, and the defendant’s attorneys refused to represent him in the proceeding for the substitution of the heirs of the original plaintiff and failed to notify him of such proceeding.</p>

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

<p>1. Evidence of Value—Market Value—Original Cost.</p> <p>Where there was no market value at place of destination, evidence against a carrier as to the value of a Berkshire hog in the Berkshire market of Texas, no place in the State being designated where a market value existed for such animal, is admissible, but does not exclude other competent evidence as to its value, such as the cost of the hog, in an action against the carrier for its death before delivery.'</p> <p>2. Same—Evidence of Sale.</p> <p>It is competent upon the question of the value of property at a certain date and place to show actual sales of similar property and the prices realized thereon near the date in question, where the property had no market value there.</p> <p>3. Same—Evidence of Pedigree of Animals.</p> <p>The pedigree of an animal which has no market value at the place in question can be shown in determining its value there.</p> <p>4. Evidence of Negligence—Opinion.</p> <p>It is competent, for the purpose of showing negligence on the part of an express company for loss of a hog, for a witness who was present when the hog was unloaded and knew what was proper to be done when hogs became overheated, to testify that the hog was hot and restless, and in his opinion would have returned to his normal condition if the crate had been opened and he had been allowed to walk around a little.</p> <p>5. Same—Statements to and by Agent.</p> <p>A witness may testify in an action against an express company for the death of a hog transported by it, that he told the agent who was in charge of the hog that it ought to be turned out of the crate, and that the agent refused to do so; but it is not competent for him to testify that the agent stated that “he had it in” for the owner of the hog, as the company was in no way responsible for such statement.</p> <p>6. Same—Notification.</p> <p>Evidence that an express company had been given timely notice that a hog had been shipped and was expected to arrive, and that the company agreed to give notice to the consignee of the arrival of the hog and had means of doing so by the telephone which connected its office and the owner’s residence, and that the company had been in the habit of so using the telephone, is admissible in an action against the company for the death of the hog after arrival but before notification to the owner.</p> <p>7. Same—Same.</p> <p>In an action against an express company for loss of a hog, the testimony of a witness that he told the night agent of the company to telephone to the owner of the hog that it needed attention, so that the owner could turn him out, and that the agent said he would not do it, and then went off and left the hog with a negro, is admissible to show negligence.</p>

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

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

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

<p>1. Taxation—Constitutional Daw—Taxing Dogs.</p> <p>The constitutional requirement of equality and uniformity in taxation is not infringed by a municipal ordinance exacting a license tax from the owners of dogs.</p> <p>2. Sureties on Official Bond—Diability.</p> <p>Sureties on a town marshal's official bond are not liable for a malicious prosecution begun by him, as the making of complaints against persons charged with violating the town ordinances is not the exercise of an official function.</p>

<p>1. Practice—Charge—Evidence Raising Issue.</p> <p>Whether a city council authorized a construction company or a railway company to place dirt in a street, thereby changing the grade, is a question for the jury, where one of the aldermen testified that the city council recommended it, and that the matter was called to the attention of the council, but that he could not state how the vote stood; and an erroneous requested charge to the effect that such authority might be given by the council without a formal order passed by the council, was sufficient to call the court’s attention to that phase of the case.</p> <p>2. Municipal Corporation—Powers of Street Committee.</p> <p>An instruction, that if the members of the street committee of a city authorized a construction company and a railway company to place dirt in a street for the purpose of improving it, and that it was usual and customary for such committee to have such improvements made, neither company is liable to an abutting owner for damage sustained by the change of grade,—is properly refused where there is no evidence as to the authority, character, powers or duties of the street committee.</p> <p>3. Joint Tort Eeasors—Recovery Over, When.</p> <p>A railway company is liable to a property owner for damages resulting from placing dirt in the street in front of his property under a contract between it and construction company authorizing the engineer of the railway company to direct where the dirt should be placed, where the engineer did direct such dirt to be placed in the street in front of the property.</p> <p>4. Municipal Corporation—Streets—Delegation of Authority.</p> <p>Consent of each individual member of a city council to which, under the city charter, the control of its streets is given, will not confer authority upon a councilman to arrange with a construction or railway company to place dirt in one of its streets for the purpose of improving such streets, action by the council as such being necessary in the matter.</p>

<p>1. Master and Servant—Negligence—Promise to Repair—Pleading and Charge.</p> <p>Where the petition in an action for personal injuries received by an employe avers that the employer promised to repair a defect in the machinery of which the employe knew, and that plaintiff, thereafter, and believing that the repairs had been made, received the injuries because of such defect, this does not admit knowledge of the defect at the time of the injury and put plaintiff’s right of recovery solely upon the promise and failure to repair, so as to render inapplicable a charge upon the master’s duty to furnish safe machinery.</p> <p>2. Reliance on Promise to Repair—Contributory Negligence,</p> <p>Where the evidence shows that the employer promised to repair a latent defect in an engine, and that when the employe used it again he reasonably believed that the repairs had been made, the case does not call for a charge submitting to the jury the question whether an ordinarily prudent person would have relied upon the promise having been fulfilled. Railway v. Single, 9 Texas Civil Appeals, 322, distinguished.</p> <p>3. Same—Promise to Repair—Presumption.</p> <p>A servant may presume that the master has complied with Ms promise to remedy a defect in machinery which is not apparent upon a casual inspection, and he is not required to inspect the machinery before using it in order to ascertain whether or not the repairs have in fact been made, unless there is something in the condition of the machinery which would cause an ordinary person to make an examination thereof.</p> <p>4. Argument of Counsel and Charge.</p> <p>A statement by counsel in argument appearing to be merely the announcement of his conclusion from his analysis of the evidence, does not justify a requested charge from the court refuting the correctness of his reasoning.</p> <p>5. Evidence—Circumstance Charging Notice.</p> <p>Evidence that two or three days before an injury to plaintiff from a defect in an engine another employe complained to the master of the defect, is admissible for the purpose of showing that the master knew of the defect at the time of the injury to plaintiff.</p> <p>6. Same—Custom.</p> <p>The custom of a person claimed to have made a promise to repair an engine, not to make promises to repair, is inadmissible for the purpose of showing that he did not make the particular promise relied on.</p>

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

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

<p>1. Judgment—Setting Aside—Negligence Prevents Belief.</p> <p>A judgment for defendant, although apparently unjust, will not be set aside because the cause was tried in the absence of plaintiff and counsel, where plaintiff’s failure to properly represent his right to the court was the result of his own negligence.</p> <p>2. Jurisdiction of County Court—Title Noi Asserted.</p> <p>A plea in reconvention in an action to recover the title and possession of an engine and boiler in which defendant set up title in himself to the property and sought to have it returned, and to recover $1000 damages occasioned by its sequestration, does not state a case beyond the jurisdiction of the county court, since the allegations referring to the title should be treated as defensive and seeking only the restoration of the property.</p>

<p>Estoppel—Promise Withdrawn.</p> <p>Promisors are not estopped by their promise where it was withdrawn before the person to whom it was made changed his position in any respect by reason thereof.</p>

<p>Appeal from Austin. Tried below before Hon. H. Teighmulleb.</p>

<p>Error from Angelina. Tried below before Hon. Tom 0. Davis.</p>

<p>1. Contract of Sale of Land by Executor Enforced—Partition Held Sufficient.</p> <p>A purchaser of part of a tract of land which belonged to the community estate of the husband and wife, under a contract with the husband’s executor which required them to proceed to have the land partitioned according to the wife’s will, can not refuse a title dependent on such partition in the absence of anything to show unfairness, illegality, or irregularity therein, although the distributees under the wife’s will would not be bound by the partition of the land between the two estates unless the same was fairly made and their substantial rights were protected.</p> <p>8. Executor’s Power to Partition Community Estate.</p> <p>The executors of the husband’s will who are empowered to partition the community land after the husband’s death, may, for the purpose of making such partitions, partition the interests of the respective estates in the land, if they act fairly,' although such power is not expressly conferred upon them.</p> <p>3. Specific Performance.</p> <p>Specific performance of an executory contract for the sale of one hundred acres of land specifically described, reserving a road of fifteen feet, will not be denied because of the indefinite character of the reservation, where the deed tendered is for the whole 100 acres without exception.</p>

<p>1. Venue—Written Contract—Suit at Place of Performance.</p> <p>Bills of lading for carloads of grain ordered by telegram and drafts attached thereto, drawn on the consignee for the amount of the contract price, constitute, under article 1194, Revised Statutes, a written contract to perform an obligation in a particular county (the one where the grain was to be delivered and the draft paid), and the consignee may sue the shipper there for damages resulting from failure of the grain to come up to the quality ordered.</p> <p>2. Contract—Order Hot Stating Kind—Seller’s Option.</p> <p>A telegram requesting the addressee to quote the market price for five cars of corn, a telegram in answer giving prices for two varieties of corn, and an order for the shipment of five cars of corn, do not, where the kind of corn is not stated in the order, constitute a complete contract until the corn is shipped.</p>

<p>1. Patent—Wrong Land Included—Correction Refused.</p> <p>A patent will not, after those claiming thereunder have acquiesced in it for over fifty years, be reformed by correcting a departure in its description from the survey made under the certificate, due to a mistake in the Land Office map purporting to show the location of the survey, and which resulted in locating the land too far north, where the land next south which should have been included has been long since located and patented and rights have been acquired therein in reliance upon the situation as disclosed by the former patent and the map, it appearing that there is no other public domain upon which the later certificate may be relocated, and it not appearing that the former patentee has disclaimed title to the land gained on the north, or that such land was originally less valuable than that lost on the south.</p> <p>3. Same—Public Lands.</p> <p>A patentee from the State acquires indefeasable title to public lands not already located included within his patent, although not embraced in the survey upon which the patent is based.</p> <p>3. Same—Conflicting Locations—Rights of Third Persons.</p> <p>A patent from the State confers a valid title upon the patentee as to land covered thereby which had already been located under another certificate, except as against persons claiming under such certificate and a patent based thereon.</p> <p>4. Land Certificate—Probate Sale.</p> <p>The land itself and not the certificate under which it was located will be deemed to have been the subject of a probate sale where the order of sale, though not explicit on that point, and the deed, by their recitals and directions, indicate that the land and not the certificate was sold, although if only the report of 'the appraisers and the report of sale were looked to it might be inferred that the certificate and not the land was sold.</p>

<p>1. Judgment—Several Defendants.</p> <p>Judgment should not be rendered in favor of all the defendants in trespass to try title on a plea in reconvention by only one of them alleging ownership of the property.</p> <p>2. Same—Trespass to Try Title—Beconvention.</p> <p>Judgment can not be rendered in trespass to try title to land on a plea in re-convention by a defendant which does not show that he seeks to recover against the plaintiffs any part of the land sued for by them.</p>

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

<p>1. Deed of Assignment for Creditors—Description.</p> <p>A deed for the benefit of creditors by which the makers grant, bargain, transfer, and assign all their property, real, personal, and mixed, joint and several, as set forth in an annexed schedule, sufficiently describes the property as between the parties.</p> <p>2. Same—Acceptance by Creditors Presumed.</p> <p>The acceptance of a common law assignment for the benefit of creditors of the grantors will be presumed, in the absence of evidence to the contrary, where there are no conditions connected with the grant of the property.</p> <p>3. Parties—Suit on Partnership Transaction.</p> <p>Neither the heirs nor personal representatives of a deceased member of a partnership are necessary parties in an action by creditors of the firm attacking an assignment by the firm to the other partner.</p> <p>4. Common Source—Abstract of Title.</p> <p>Common source of title may be shown by plaintiff in trespass to try title by introducing in evidence defendant’s abstract of title filed in the suit.</p> <p>5. Bond for Costs of Suit.</p> <p>Plaintiffs should not be required to execute a bond to the defenant for the costs of the suit, where a bond for costs has been executed to the officers of the court. Rev. Stats., art. 1440.</p> <p>6. Practice in Trial Court—Bill of Exceptions.</p> <p>Refusal of the court to suspend the trial for a reasonable time to enable a party to prepare and present to the judge a bill of exceptions, is not available on appeal where the bill of exceptions was obtained and approved by the judge notwithstanding such refusal.</p> <p>7. Same—Argument Of Counsel.</p> <p>The plaintiffs in an action to recover land may properly state to the jury the substance of a patent and deeds in evidence.</p> <p>8. Deed—Recitals as Estoppel.</p> <p>Recitals in deeds are binding upon all parties claiming under the deed.</p>

<p>1. Cities—Contract for Street Improvements.</p> <p>A city which has contracted for the construction of continuous sidewalks on certain streets has no authority to accept the work as against abutting owners where intervening sidewalk in front of homesteads on which the assessments would not be a lien was not constructed.</p> <p>2. Same—Acceptance Not Conclusive.</p> <p>The acceptance by a city of a sidewalk is not conclusive as against the abutting owners, where such sidewalk, -instead of being continuous as required by the contract, is constructed only in front of premises other than homesteads.</p> <p>3. Same—Acceptance Does Not Legalize.</p> <p>No recovery can be had against abutting owners for the construction of a sidewalk where the sidewalk was not made continuous as required by the contract, although the city council has accepted the work, since it had no authority to do so.</p> <p>4. Street Improvement Certificate Not a Negotiable Instrument.</p> <p>Street improvement certificates issued for the construction of a sidewalk are not negotiable, and are subject in the hands of-an assignee to whatever defense might have been available against the assignor.</p>

<p>Appeal from Olay. Tried below before Hon. Geo. E. Miller.</p>

<p>1. Damages—Liquidated Demand or Penalty.</p> <p>A bond conditioned for the payment of a given sum in case the obligor fails to deliver cattle contracted for on a date specified, and for the payment of a proportionate amount upon his failure to deliver any part of them, is a liquidated demand.</p> <p>2. Bond for Delivery—Day of Maturity.</p> <p>A bond given to secure the delivery of a certain number of cattle before a specified date, conditioned for the payment of a definite amount upon failure to do so, matures on the close of the day when by its terms the delivery was to be completed</p> <p>3. Duress—Insolvency Is Mot.</p> <p>It is not such "duress as will avoid settlement and the discharge of a bond for less than its amount that the obligor held money of the obligee advanced to him under a contract to secure the performance of which the bond was given, and that the obligor had transferred all his property and was insolvent.</p> <p>4. Contract—Consideration of Settlement.</p> <p>That the principal and surety in a bond given to secure the performance of a contract and involving matters of uncertainty are insolvent is a sufficient consideration to support a settlement and discharge of the bond for a less amount than that secured by it, and an action will not lie thereafter to recover the balance.</p>

<p>1. Burden of Proof—Unconstitutionality of Statute.</p> <p>The burden of proof is upon a party attacking a statute on the ground of its unconstitutionality to clearly point out the vice.</p> <p>2. Live Stock Quarantine Regulations.</p> <p>Quarantine regulations duly promulgated by the State Live Stock Sanitary Commission have the force and effect of laws.</p> <p>3. Same—Presumption in Favor of.</p> <p>It will be presumed that the State Live Stock Sanitary Commission exercised proper judgment and discretion in adopting and putting into effect quarantine regulations excluding cattle from another State' because of infectious and contagious diseases.</p> <p>4. Same—Constitutionality—Interstate Commerce Clause.</p> <p>The Texas Live Stock Law (Revised Statutes, title 107, chapter 7) and proper regulations thereunder of the State Live Stock Sanitary Commission are not violative of the interstate commerce clause (section 8, article 1) of the Federal Constitution.</p> <p>5. Same—Liability of Common Carrier Released.</p> <p>A common carrier is not liable for its failure to deliver within this State cattle shipped from another State," where such delivery was forbidden by the live stock quarantine laws of Texas, and the shipper knew that such quarantine was in effect when he shipped the cattle.</p>

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

<p>Appeal from Hemphill. Tried below before Hon. B. M. Bakes.</p>

<p>1. Damages for Personal Injury. 1</p> <p>A verdict for $10,000 is not excessive for personal injuries sustained by a healthy man 28 years old by which his skull was crushed and a portion removed, leaving the brain unprotected except by the skin, and his left eye destroyed, where he was earning from $80 to $95 per month at the time of his injury, and can not now do any labor, because it brings on nervous spells or dizziness.</p> <p>2. Practice—Charge Not Warranted.</p> <p>A requested instruction that the fact that a railway company repairs its track can not be considered as evidence that it was defective or not in proper condition previous thereto, is properly refused where the company’s counsel first drew out from a witness, for the purpose of contradicting him, that the track was still out of repair shortly before the trial, and to impeach him proved by another witness that new ties and stringers were put in shortly after the accident to plaintiff, and showed by such latter witness that the reason such ties and stringers were put in was that the old ones were not sound.</p> <p>3. Charge—Weight of Evidence.</p> <p>A charge that a railroad company is presumed to keep its bridges and tracks in proper condition and make the necessary repairs thereon from time to time as they are needed before they get in a dangerous condition, and the fact that such repairs are made can not be considered as evidence that they were defective and not in proper condition previous to the repairs, is upon the weight of evidence.</p> <p>4. Same—Burden of Proof—Contributory Negligence.</p> <p>Where the court’s charge put the burden of proof on plaintiff to prove “that he did not contribute to his injury by his failure to exercise ordinary care for his own safety,” a requested charge that plaintiff (a fireman) was injured while attempting to go through a bridge at night with his head out of the cab window, and if this aided in causing the injury, and an ordinarily prudent person would not have done so, he can not recover, was properly refused.</p>

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

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

<p>Appeal from County Court of Travis. Tried below before Hon. A. 8. Walker.</p>

<p>1. Limitation—Written or Verbal Contract—Question of Fact.</p> <p>A letter inclosing a claim to an attorney for collection contained no reference to previous correspondence which the client claimed fixed the compensation for collection,—the attorney claiming a paroi agreement for different terms. Held, that whether there was a written contract for compensation or not was a question of fact for the jury, and it was error to charge that a suit to recover of the attorney commissions retained in excess of the terms named in the correspondence, brought more than two and less than four years from the accrual of the action, was barred by limitation.</p> <p>2. Limitation—Written Contract.</p> <p>Though the contract in writing sued on was not binding on the defendant as to the terms of compensation, by reason of plaintiff's misrepresentation of the facts, it would still be available to defeat limitation in less than four years.</p> <p>3. Damages for Delay—Incident of Debt.</p> <p>Ten per cent damages for delay adjudged against a defendant on appeal was an. incident of the note sued on and a part of the claim collected and to be accounted for by the plaintiff's attorney.</p>

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

<p>1. Evidence—Copy of Recorded Patent.</p> <p>A certified copy of a patent from the records of the county clerk’s office of the county where the land lies is admissible in evidence where affidavit of the loss of the original has been made, and the copy is not offered merely to show common source of title. Following Railway v. Milmo Bank, 72 Texas, 467. ,</p> <p>2. Public Domain—Land Under navigable Waters.</p> <p>A State may grant to individuals or corporations the soil of public navigable waters, and the objection that it can not do so is not tenable in an action between individuals claiming adversely to each other a grant of such land.</p> <p>3. Registration of Judgment Affecting Land—Copy—Evidence.</p> <p>A certified copy of a partition decree of the probate court allotting real property is admissible in evidence over the objection that it was not recorded in the record of deeds of the county, as against persons not innocent purchasers for value.</p> <p>4. Deed—Proof of Execution—Circumstantial Evidence.</p> <p>The execution of a deed may be proved by circumstantial evidence, where proper affidavit has been made of its loss and search therefor.</p> <p>5. Same—Evidence Requiring a Submission to the Jury</p> <p>See the opinion for circumstantial evidence as to the execution and contents of a lost deed not legally recorded held sufficient to have required a submission of the question of its execution to the jury.</p>

<p>1. Contributory negligence.</p> <p>Plaintiff’s liability to mistake of judgment and mistake due to the terrors of the situation, where he was placed in a dangerous situation through the defendant’s fault, is a matter involved in the issue of contributory negligence.</p> <p>3. negligence—Apparent Danger.</p> <p>That the employes of a railroad company in taking out or pushing ears in on a side track near a public crossing did not intend to move the cars across the street, does not necessarily relieve the company from the charge of negligence with reference to one crossing the track whose horses were frightened by the ears.</p> <p>3. Same.</p> <p>That ears were used in the usual manner does not necessarily relieve a railroad company from a charge of negligence in connection with their movement at and near a street crossing.</p>

<p>1. Connecting Carriers as Joint Defendants—Flea of Privilege.</p> <p>One of several connecting carriers sued jointly and severally for damages to property in transit over their lines can not complain that a codefendant’s plea of privilege was sustained, where it did not allege that the injury occurred to the property while in the custody of such codefendant, or ask for judgment over against it.</p> <p>8. Same—Interstate Commerce Commission Bates Control.</p> <p>A connecting carrier is entitled to demand and receive upon an interstate shipment the tariff rates fixed by the Interstate Commerce Commission, although such amount is in excess of the freight rate agreed upon in the bill of lading given by the initial carrier. (The initial carrier did not, in this case, stand in the relation of a partner or agent of the other carriers.)</p>

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

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

<p>1. Practice on Appeal—Conclusions of Fact.</p> <p>Where there is no statement of facts in the record, the findings of fact of the trial judge will be adopted as the conclusions of fact of the Court of Civil Appeals.</p> <p>3. County Bonds—Validity—Provision for Interest and Sinking Fund.</p> <p>Failure of the commissioners court to make provision for the interest and sinking fund of county bonds does not invalidate them, as the requirement of the Constitution relative thereto (article 11, section 7) is fully met by the legislative provision on the subject. Following Mitchell County v. Bank, 91 Texas, 370.</p> <p>3. Counties—Estoppel as to County Seat.</p> <p>Where a county seat was illegally removed, but the new county seat has been used by the county as such for ten years, all the county courts being held there, and it has been indirectly recognized as the county seat by the Legislature and the appellate courts, the county is estopped from denying the validity of its outstanding bonds issued for the erection of a courthouse at the new county seat on the ground that such removal was illegal</p> <p>4. Same—Collateral Attack—County Bonds.</p> <p>The validity of county courthouse bonds in the hands of purchasers thereof can not be collateraly attacked by the county, when sued thereon, by the defense that the county seat was illegally removed to the place where the courthouse was built.</p> <p>5. Act of Legislature at Special Session—Evidence to Show Invalidity.</p> <p>The proclamation of the Governor and the journals of the two houses are not competent evidence to show that an act passed at a special session of the Legislature is invalid because its subject matter was not embraced in the proclamation. Following Williams v. Taylor, 87 Texas, 667.</p> <p>6. Judgment Against County—Directing Execution.</p> <p>A judgment against a county is not rendered invalid by the fact that it improperly directs that execution issue thereon against the county.</p>

<p>1. Usury—Foreign Building and Loan Associations.</p> <p>A contract of loan on Texas property by a building and loan association chartered in another State which provides for the payment of interest and premiums together exceeding the maximum rate of interest allowed by the laws of Texas will be held usurious here, although the association is authorized by its charter to take interest on loans in any amount.</p> <p>2. Same—Usury Laws of Texas Govern.</p> <p>Where a foreign building association makes a loan to a resident of Texas secured by trust deed upon property in this State, and the by-laws provide that payments upon dues and loans may be made to the secretary of the local board in the State where the loan is made, the laws of this State will govern in determining whether the contract is usurious, although the by-laws and certificates of stock also provide that all dues upon loans and stock are payable at the home office, and that the local agents in receiving payments of dues shall be deemed the agent of the payor and not of the association</p>

<p>Practice on Appeal—Judgment Reversed and Rendered, When.</p> <p>Upon the reversal of a judgment rendered upon the direction of a verdict by the trial court which awards the land to plaintiff and gives a personal judgment to one defendant against a codefendant, because such personal judgment was not authorized, the appellate court will render a judgment for plaintiff for the recovery of the land and for costs of both courts.</p>

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

<p>1. Limitations of Action to Correct Acknowledgment.</p> <p>The right to correct a certificate of acknowledgment by legal proceedings is barred by the lapse of four years from the accrual of such right.</p> <p>2. Acknowledgment—Correction of Certificate.</p> <p>A defective certificate of acknowledgment of an instrument purporting to create a lien on a homestead is not corrected by a subsequent deed of trust executed by the parties for the purpose of extending the debt and the lien, where it does not purport to correct the acknowledgment, and says nothing about the defect in the certificate thereof, although it recites that the contract was duly executed and acknowledged as provided by law.</p>

<p>1. Contract—Abandonment—Fraud.</p> <p>A contractor for the performance of certain work on a building is justified in abandoning the same where the other party induced him to undertake the work for an inadequate price by fraudulently promising to give him, at reasonable figures, other contracts of like, character, and afterwards failed to do so.</p> <p>8. Same—¡Recovery After Abandonment.</p> <p>A contractor who was justified in abandoning the work may recover from the other party at least the value of the extras which the contract did not provide for, and the value of the material left by him on the premises which the other party used in completing the work.</p>

<p>1. Judgment—Foreclosure of Vendor’s Liens—Decedent’s Estate.</p> <p>A judgment which merely forecloses a vendor’s lien upon real property without including any personal award against a decedent’s estate which is the owner of the equity of redemption, is not required to be certified for payment to the probate court.</p> <p>2. Same—Clerical Error.</p> <p>An error in the court’s findings, in stating the land to be in a county other than that in which the suit is brought, will not invalidate a judgment foreclosing a vendor’s lien where the evidence shows the land to be in the proper county and makes it apparent that such recital was a clerical error.</p> <p>3. Same—Notice to Tenant—Attornment—Farties.</p> <p>A secret attornment of a tenant from one landlord to another pending a suit to foreclose a vendor’s lien of the land in his possession does not of itself charge notice of the latter’s claim to the land so as to require the plaintiff to make the latter a party in order to make the judgment of foreclosure binding upon him.</p> <p>4. Same—Parties.</p> <p>A judgment foreclosing a lien upon real property is not binding upon a claimant of title who was not a party thereto, when the plaintiff’s agent, during the agency, acquired information which, followed up, would have inevitably led to a disclosure of the character of his claim.</p> <p>5. Same—Notice.</p> <p>Defendant in an action to foreclose a lien upon real estate who by cross-complaint seeks the foreclosure of a lien of his own, is not bound by information acquired by the plaintiff, pending the action, of the claim of a third person to the land, and the failure to make such person a party does not therefore render the foreclosure of the defendant’s lien ineffectual.</p>

<p>1. Custom—Evidence Must Show It General.</p> <p>Rules of three particular railroads on the subject of ringing bells and giving signals by engineers when moving and about to move their engines do not afford proof of a general custom by which to determine the issue of negligence of another railroad.</p> <p>2. Evidence—Life Tables.</p> <p>Life tables are inadmissible in an action for personal injuries not resulting in death or total disability.</p> <p>3. Same—Expert Testimony to Show Negligence.</p> <p>Expert testimony of railroad men that the act of a conductor in going between cars to close an angle cock while an engine was backing up to the cars was imprudent and dangerous, is inadmissible, since the question of negligence in such case is an issue to be determined by the jury on all the circumstances.</p> <p>4. Master and Servant—Negligence and Assumed Risk.</p> <p>Refusal of special charges on assumed risk and open, visible dangers is reversible error in an action by a freight conductor against a railroad company for injuries sustained by him in making up his train, while attempting to close an angle cock, where he went in between the cars to do so, knowing the engine was then coming back against them to make a coupling.</p> <p>5. Proximate Cause.</p> <p>A conductor’s failure to obey a bulletin order of the company requiring him to arrange the cars in his train at a given station, whereby it became necessary for him to make such arrangement at a station beyond, and in doing which he was injured, is not the proximate cause of the injuries such as will bar him from recovering therefor.</p> <p>6. Same—Negligence Too Remote.</p> <p>Failure of the yardmaster to properly malee up a train, and to inspect the cars at a given station, is too remote a cause to afford a charge of negligence against the company by a freight conductor for injuries sustained by him while making up the train at a station beyond and closing an angle cock that had been left open and which did not close readily.</p>

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

<p>Statute of Frauds—Parol Grift of Land—Possession and Improvements.</p> <p>A paroi gift of land is taken out of the statute of frauds where the donor places the donee in possession, promising to make her a deed in fee simple, which he fails to do, and the donee made substantial permanent improvements upon the property and occupied the same for over six years without objection, claiming it exclusively and in her own right.</p>

<p>Official Bond—County Treasurer—Bobbery.</p> <p>That the money was lost by robbery, without the fault of the county treasurer, is no detense to an action upon his official bond conditioned that he will safely keep and faithfully disburse the money received by him in his official capacity.</p>

<p>Appeal from the County Court of .Camp. Tried below before Hon. Sah Snodgrass.</p>

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

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

<p>Ebbob from Upshur. Tried below before Hon. J. G. Russell.</p>

<p>1. Charge of Court—Bequest Necessitates Charge, When.</p> <p>Though a requested charge be not strictly correct, yet if it calls the court’s attention to a phase of the case raised by the evidence and not touched upon in the main charge, it devolves upon the court the duty of properly charging upon such phase.</p> <p>3. Bailway Company—Notifying Passenger of Arrival at Depot.</p> <p>A passenger who knew that the train had stopped at the depot at her destination can not recover damages from being carried past the station because of the negligence of an employe in failing to notify her when the depot was reached, as he had promised to do.</p> <p>3. Same—Negligence for the Jury.</p> <p>A promise of a railroad employe to give a passenger special notice of the arrival of a train at a station is not ordinarily binding upon the company, but the question as to. the employe’s negligence in failing to keep his promise to inform a passenger when the depot was reached is for the jury, where the promise was made after the station had been called and the train stopped before reaching the depot.</p>

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

<p>1. Limitations Against Decedent’s Estate.</p> <p>Limitation does not run against a cause of action arising in favor of an estate after the decedent’s death until the appointment of a legal representative or for a year after the death, at least, in the absence of exceptional facts permitting the heir to sue to redress the wrong without an administration.</p> <p>2. Same—Temporary Administration.</p> <p>The statute of limitations against a cause of action for conversion, arising in favor of an estate after the decedent’s death is not put in motion by the appointment of a temporary administrator under an order which merely empowered him to take charge and possession of the estate and all its property, and collect all debts, without expressly empowering him to sue for any of the property the conversion of which is complained of. Rev. Stats., art. 1935.</p> <p>3. Intervention by Creditor in Suit by Estate for Conversion—Fraud.</p> <p>A creditor of a decedent’s estate should not be allowed toi intervene in an action by the administrator and assert the fraudulency of the transfers under which the defendant claims title to the property which he is charged to have converted, as a creditor has no cause of action for money against one who has converted property conveyed to him by the debtor in fraud of his creditors.</p> <p>4. Same—Evidence of Fraud Prejudicial.</p> <p>Defendant in an action by an administrator for the conversion of property is prejudiced by the refusal of the court to dismiss a plea of intervention interposed by a creditor attacking conveyances by the decedent under which the defendant claims title upon the ground that the same were fraudulent as against creditors, and by the admission of evidence of fraud under the plea, although the intervener did not recover.</p> <p>5. Conveyance in Fraud of Creditors.</p> <p>A conveyance which is sufficient to pass title can not be attacked or its effect resisted by the legal representative of the grantor after his death on the ground that it was made to defraud his creditors.</p> <p>6. Allegata and Probata—Defense of Title in Another Hot Pleaded.</p> <p>Defendant in an action by an administrator for the conversion of property of his intestate can not, under the general issue, and without suitable allegation, rebut proof of title in the plaintiff in his representative capacity arising from the possession of the property in the intestate by proof of title in the plaintiff individually, or in a third person, where the answer specially pleaded only that the title was in defendant under transfers from the intestate.</p>

<p>1. Will—Election by Widow.</p> <p>A provision in the will of a husband that after the death of his wife, who is given a life estate in all the property, the executor, if necessary, shall rent out the farm for the purpose of raising money to pay the legacies, does not evince an intention to devise the farm, which was community property, as an entirety so as to put the widow to election whether she will accept the life estate in the entire tract or renounce the will and retain her one-half community interest.</p> <p>3. Same—Life Tenant with Absolute Power of Disposition.</p> <p>Where a wife takes under the husband’s will an absolute life estate in the property, with power to manage, sell, and dispose of the fee for her own benefit, she has not the right to dispose of the property merely for the purpose of defeating the rights of the residuary legatees and devisee under the will.</p> <p>3. Evidence of Parties—Transactions with Decedent.</p> <p>A widow who took a life estate under her husband’s will with power to sell the the property for her own benefit, but not for the fraudulent purpose of disappointing the residuary devisees and legatees, is not inhibited by the statute from testifying adversely to a legatee, in an action against her as executrix and her grantee to cancel the deed executed by her, that the land was piirchased by her with her separate money derived from the income of the property devised to her for life. Rev.</p> <p>Stats., art. 2302.</p> <p>4. Same—Statute Does Hot Include Action by Legatee.</p> <p>The inhibition, article 2302 of the Revised Statutes, against parties testifying to any transaction with the decedent in actions by or against his heirs or legal representatives does not extend to legatees.</p>

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

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

<p>1. Architect—Plans and Specifications—Commissions.</p> <p>An architect is not entitled to recover commissions on plans and specifications for a courthouse, which were 'adopted by the commissioners court where, after their original submission, without the knowledge of the court, but at the instance of a member of the committee, to which they had been referred, he attached a "rider,,” the effect of which was to make his guarantee that the cost of the building should not exceed a certain sum conditional upon the use of specified material, whereas the plans and specifications as originally drawn called for either of several kinds of material in the alternative, although he was not guilty of fraud, concealment, or misrepresentation.</p> <p>2. Same—Rejection of Plans.</p> <p>Where the commissioners court has rejected plans and specifications for a courthouse because of material alterations, it is not bound to consider any further propositions from the bidder submitting them.</p> <p>3. Same—Bidder’s Option.</p> <p>An architect who prepares plans and specifications permitting the use of either of several kinds of material for a particular purpose, and guarantees that the cost of the building erected accordingly shall not exceed a specified amount, does not have the option to select any one of' the kinds of material specified, but his guaranty permits the use of any one of the kinds.</p> <p>4. Constructive bic tice to Commissioners Court.</p> <p>The knowledge acquired by a member of a commissioners court, while acting as a member of a committee to which the plans and specifications for a courthouse had been referred, of material changes in the same, is not constructive notice to the court. -</p>

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

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

<p>Bes Adjudicata—Estoppel.</p> <p>A decree operates as an estoppel against one who was not a party to the suit but who was privy in interest with a party and employed an attorney to represent that interest.</p>

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

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

<p>Error from Taylor. Tried below before Hon. T. H. Conner.</p>

<p>Ebbob from Wichita. Tried below before Hon. Gbobge E. Milleb.</p>

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

<p>1. Fraudulent Conveyance—Notice.</p> <p>Notice or knowledge by the purchaser of property from an insolvent debtor oi the latter’s intent to hinder, delay, or defraud his creditors, renders the transfers ■void, notwithstanding that no more goods were transferred than were reasonably sufficient to pay the debt, the statute so declaring the rule as to the effect of notice (article 2544, Devised Statutes), and a charge is erroneous which fails to state that the purchaser, to be protected, must have no notice of the creditor’s fraudulent intent.</p> <p>2. Charge of Court.</p> <p>Defendant is entitled to an instruction in the substantial- language of his request, where the same conforms to the language of his plea and of the statute upon which his rights depend.</p>

<p>Appeal from Parker. Tried below before Hon. J. W. Patterson.</p>

<p>Appeal from the Count)1- Court of Jones. Tried below before Hon. J. C. Phillips.</p>

<p>Master and Servant—Medical Treatment for Servant.</p> <p>A master making a compulsory reduction from the wages of his employes to provide a fund for medical attention and surgical treatment, no rebate being allowed to the employes in case the entire fund is not required, is liable to an employe for tmskillfulness or negligence of the physician employed by him to attend the employe.</p>

<p>Public Schools—Appointment of Trustees.</p> <p>A county superintendent of education has not the power to appoint school trustees for towns and villages incorporated for free school purposes, where the duly elected trustees hold over after the expiration of their term because of a failure to elect trustees to succeed them. Articles 3953, 3953a, 3999, Devised Statutes, construed.</p>

<p>1. Master and Servant—Concurring Negligence of Foreman.</p> <p>An employe injured while aiding in unloading a car may recover therefor, although the negligence of a fellow servant contributed in causing the accident, where the negligence of the foreman who was assisting in the work was a concurrent cause of the injury.</p> <p>2. Damages—Personal Injury.</p> <p>Injury to eyesight sustained by an employe as a resulting consequence of a rupture caused through the employer’s negligence is a proper element of damage.</p>

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

<p>Appeal from Collin. Tried below before Hon. J. E. Dillabd.</p>

<p>Appeal from Dallas. Tried below before Hon. Edwabd G-bay.</p>

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

<p>Appeal from Brown. Tried below before Hon. J. 0. Woodward. For rulings of Supreme Court in this case upon certified questions, see 92 Texas, 377.</p>

<p>1. .¡Fraudulent Conveyance—Preferring Creditors.</p> <p>A transfer of all his property by an insolvent debtor, in settlement of the claim of a bona fide creditor not less in amount than its value, necessarily delays and defeats the claims of other creditors, and is not rendered invalid by the existence of an intent on the part of both that it should have that effect.</p> <p>2. Same—Secret Partner—Estoppel.</p> <p>The fact that the preferred creditor had been a secret partner with the debtor will.not estop him, as against creditors of the firm, from taking a transfer of such debtor’s property in settlement of a bona fide debt.</p>

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

<p>1. Best Evidence—Written Contract.</p> <p>Objection that paroi evidence as t'a a contract was secondary can not be sustained where it is not made to appear that the contract was in writing.</p> <p>2. Evidence Hot Prejudicial.</p> <p>Evidence of a railway employe, in his suit for personal injuries, that the employer reserved hospital dues out of his wages, with his consent, for the support of a hospital for the treatment of injured employes, was not prejudicial to defendant.</p> <p>3. Impeachment of Witness.</p> <p>A witness who denies having made a statement contradictory to his testimony may be impeached by proof, not only of his having made the statement, but of matters relative to the time, place, and circumstances of his making it, the existence of which he has also denied.</p> <p>4. Charge—Contributory Hegligence—Assumed Bisk.</p> <p>A charge which directs a verdict for plaintiff if defendant is found negligent unless contributory negligence is found on the part of plaintiff, is not erroneous as conflicting with another charge submitting assumed risk as a defense, where the charge does not distinguish between these defenses,—they being substantially identical in cases where defendant was negligent.</p> <p>5. Master and Servant—Assumed Bisk.</p> <p>The defense of assumed risk is not applicable where the servant’s discovery of the defect is practically simultaneous with his injury.</p> <p>6. Same—Servant’s Knowledge.</p> <p>The servant may presume that the master has discharged his duty in regard to furnishing proper machinery, and does not assume the risks from the master’s failure to do so unless he knows of such failure and risk.</p> <p>7. Charge—Damages.</p> <p>See charge on the measure of damages held not subject to the construction that it authorized recovery for diminished earning capacity not resulting from the injury sued for.</p>

<p>1. Assignment of Error—Briefs.</p> <p>An assignment that the court erred in. overruling a general demurrer to plaintiff’s petition is too general to demand consideration, in the absence of a proposition in the brief making it more specific.</p> <p>3. Defects in Machinery—Evidence.</p> <p>In an action for injuries caused by the explosion of a locomotive engine, alleged to have been due to specific defects in the machinery, it was proper to admit evidence that such locomotive had previously been in collision with another engine, that being also alleged in the petition.</p> <p>3. Cross-Examination—Previous Statements—Best Evidence.</p> <p>No error is shown in permitting cross-examination of a witness as to previous statements made by him, over objection that the written statement was the best evidence, where the bill of exceptions does not show that the statement asked about was in writing and the brief fails to show that' such fact appears in the record.</p> <p>4. Same.</p> <p>On cross-examination a witness may be asked, in order to lay the predicate for impeachment, whether he has made certain statements, though the statement asked about was in writing.</p> <p>5. Cross-Examination—Business of Witness.</p> <p>A witness may be cross-examined as to what business he is engaged in; it is not error to permit a witness for a railway company to be asked if he is engaged in loaning money to railroad men.</p> <p>6. Charge—Case Followed.</p> <p>Railway v. Milam, ante, p. 688, followed as to rulings on objections to the charge of the court.</p>

<p>Appeal from County Court of Bowie County. Tried below before Hon. R. H. Jones.</p>