Volume 21 — Texas Civil Appeals Reports

<p>Taxation — Cattle in Transit — Interstate Commerce.</p> <p>Where cattle owned by citizens of Texas are shipped into this State from another State to be fattened here for market, and under a bill of lading which permits that they may be fed here for an indefinite time and then shipped out to a market in another State, the balance of the freight not to be paid if they are not so reshipped, such cattle, if here in course of fattening on January 1, are subject to local taxation, and are not exempted therefrom by the commerce clause of the Federal Constitution.</p>

<p>Appeal from the County Court of Nueces. Tried below before Hon. W. B. Hopkins.</p>

<p>Practice on Appeal — Setting Aside Nonsuit.</p> <p>Plaintiff can not successfully appeal from a judgment denying his motion to set aside a nonsuit by him because of the court’s refusal to sustain his exceptions to a plea of res judicata in the defendant’s answer, unless he has shown that he could have established the allegations of his petition, and also that those of the plea excepted to could have been substantiated in fact upon the trial.</p>

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

<p>1. Pleading on Promissory Note.</p> <p>In an action upon a promissory note against the maker and an original indorser, plaintiff's right to recover can not be defeated on the ground of inconsistency in his pleading because he alleged that the maker gave the indorser a chattel mortgage to secure him, and also that the maker was insolvent when the note was executed.</p> <p>2. Promissory Note — Indorser—Protest.</p> <p>One not the payee of the note, who signs his name on the back thereof at the time of its execution, without any words to express the nature of his 'obligation, is liable as an original promisor, and not as an indorser merely, and it is not necessary in order to hold him to protest the note or bring suit upon it at the first term of court after its maturity.</p> <p>3. Same — Presentment to Administrator.</p> <p>Plaintiff in an action upon a note commenced in the lifetime of a surety is not required to allege presentment to or rejection of the note, as a claim against the estate of the surety after his death pending the action.</p>

<p>1. Taxation — Description in Assessment.</p> <p>The owner of personal property can not object to the sufficiency of the description thereof in the assessment roll where it" follows a description contained in the list prepared by him and tendered to the assessor, and which was rejected by the latter because of insufficient valuation.</p> <p>2. Same.</p> <p>It is the assessor’s duty under the ordinances and city charter of Galveston to place property upon the unrendered roll where the owner does not present to him a list thereof duly signed and sworn to.</p> <p>3. Same — Taxpayer’s Remedy — Assessment.</p> <p>The remedy of a taxpayer, if the assessment of his property by the assessor is fraudulent or arbitrary, is a resort to the board of appraisers for a revision thereof.</p>

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

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

<p>. 1. Charge of Court — Negligence—Intervening Agency.</p> <p>A requested charge in an action for personal injuries precluding recovery for the defendant's negligence if there was a new or intervening agency, is properly refused where-there is no evidence to sustain it, and where it is substantially covered by the charges already given.</p> <p>2. Damages for Personal Injury.</p> <p>A verdict of $15,000 for personal injuries causing severe suffering, and which are probably permanent, will not be held excessive where plaintiff was 37 years old at the time of the injury, was earning from $1800 to $2400 a year, and was in excellent health.</p>

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

<p>1. Limitations — Pleading.</p> <p>Plaintiff who relies upon the suspension of the statutes of limitations as against him, until 'the termination of a life estate, must plead the facts in reply to the defendant’s plea of limitations.</p> <p>2. Costs Adjudged in Part Against Both Parties.</p> <p>What constitutes good cause within Revised Statutes, article 1438, providing that the court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided in the preceding article, rests in a great measure in the sound discretion of the trial court, and it may spring from a partial recovery by each party against the other.</p> <p>3. Assignment of Error — Piling—Briefs.</p> <p>Assignments of error insisted on by appellee in his brief can not be considered where the record does not show that they "were filed in the district court, and there is no indorsement on appellee’s brief showing that a copy thereof had been filed in the district court.</p>

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

<p>Practice on Appeal — Reversal for Insufficient Evidence.</p> <p>A judgment for plaintiff in an action for personal injuries received in falling from the platform of a train will be reversed where the evidence is wholly insufficient to show that the accident resulted from the negligence of the defendant company.</p>

<p>Appeal from Medina. Tried below before Hon. I. L. Martin.</p>

<p>1. Trespass to Try Title — Plea of Improvements After Reversal.</p> <p>A defendant’s plea of improvements in good faith should not be stricken out because not filed until after a judgment for plaintiff had been affirmed so far as it established his title, and as to the pleas of improvements in good faith, filed by the other defendants, the cause had been remanded for a new trial, where the plea in question relates to land which was sequestered by plaintiff after the judgment of the appellate court and before the new trial, but which the defendant claims is not covered by the original judgment, and the court tries on its merits the boundary contention.</p> <p>2. Same — Right to Improvements Outside the Statute.</p> <p>An equitable right to the value of improvements made in good faith on another’s land exists outside the statutory provision for the assertion of such right by plea in trespass to try title.</p> <p>3. Same — Judgment Mot Conclusive as to Boundaries, When.</p> <p>Although there may be no ambiguity or inconsistency apparent in the description of land in a muniment of title, it may be shown, upon the ground itself, that certain land is not embraced within such description; and the rule applies to a judgment for land in trespass to try title where, on the trial, there was no real issue of boundary.</p> <p>4. Appeal by Writ of Error — Parties.</p> <p>A defendant in a suit to recover land need not make his codefendants parties to a writ of error by which he seeks to have reviewed a judgment which does not at ail affect them, but relates solely to a controversy between the plaintiff and himself.</p>

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

<p>Appeal from Marion. Tried below before Hon. Hiram Glass, Special' Judge.</p>

<p>1. Building Contract Mot a Loan — Usury.</p> <p>A written contract between a building and loan association and the owners of real property, in which it agrees to furnish material and erect a building for them, with stipulation for a builder’s, mechanic’s, and materialman’s lien upon the lot and improvements, duly executed under the statute and accompanied by promissory notes to it payable in monthly installments, evidences a builder’s contract, and not a loan of money subject to the usury laws. •</p> <p>3. Mechanic’s Lien on Lot and Subsequent Building.</p> <p>A mechanic’s lien attaches not only to the building and lot, but attaches with priority to a building subsequently erected by another upon the lot after the destruction of the first building by fire, where the lienholder has complied with the requirements of the statute giving him a lien on the house or improvements erected by him and on the land necessarily connected therewith. Rev. Stats., art. 3294.</p> <p>3. Priority of Liens — Estoppel.</p> <p>A lienholder who agrees that his lien shall be subject to the lien of another is estopped to dispute the validity and priority of the latter lien.</p> <p>4. Same.</p> <p>The holder of a mechanic’s lien who agrees that his claim shall be subject to that of a building association, and that the latter may extend the time of payment of its claim without prejudice and without notice to him, in consideration of its forebearance to bring suit against the common debtor, is estopped to question the application of money received by the association in settlement of insurance upon the property to the payment of only that part of its debt then past due, the balance of the insurance money being paid over by it to the owner and not applied to the remainder of its debt.</p>

<p>Error from the County Court of Bowie. Tried below before Hon. FT. W. Vaughan, Special Judge.</p>

<p>1. Administrator’s Sale — Deed Never Delivered.</p> <p>Where a sale of land by an administrator was confirmed, but he declined to deliver a deed because of the purchaser’s refusal to excute a mortgage to secure his note given for the purchase money, and afterwards, by agreement, the administrator recovered judgment against the purchaser on the note, with foreclosure of a vendor's lien on the land and had the land sold thereunder, this operated to divest the estate of the title to the land, and the purchaser became entitled to the deed.</p> <p>2. Same — Superior Title Mot Left in the Estate.</p> <p>Where an administrator sold land on credit but did not deliver the deed because the executor refused to execute a mortgage back to secure his note, and the administrator then sued on the note and obtained judgment for its amount with foreclosure of a vendor’s lien under which it was sold for a part of the judgment debt, the heirs of the estate could not assert against subsequent vendees of the purchaser that the superior title to the land had never been divested out of the estate.</p> <p>3. Same — Limitations.</p> <p>A claim to subject land sold at an administrator’s sale to the payment of a balance of the purchase money is barred by the lapse of nearly eighteen years from the rendition of a judgment against the purchaser on a note executed for the purchase price, and of thirteen years after the discharge of the administrator, with no action taken in the meantime to keep the judgment in force, although the purchaser’s vendee, who assumed the payment of the purchase money, resided out of the State, where such an assumption by him was not accepted by the administrator nor the heirs.</p>

<p>1. Deed — Trust—Extrinsic Evidence.</p> <p>The grantee takes full title and becomes personally charged with the duty of supporting and educating the grantor’s son, under a deed which, in the premises, describes the grantee as “trustee,” and in the habendum clause states that he is to have and hold the property “in trust,” hut is in other respects in the usual form of a general warranty deed, reciting that it is made for “a good and valuable consideration,” where it appears extrinsically that it was the intention of the grantor to confer a complete title and to have the grantee maintain and educate his son, and that the words importing a trust were inserted at the request of the grantee, to “make it more explanatory.”</p> <p>3. Same — Deed Hot Testamentary, When.</p> <p>A deed is not testamentary in character so as to require its probate in order to make it effective, where it was delivered during the grantor’s lifetime and took effect before his death, although executed in immediate anticipation of death.,</p>

<p>Error from Nueces. Tried below before Hon. James B. Wells.</p>

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

<p>1. Deed — Dedication—Alley—Custom.</p> <p>Where a deed of a city lot does not give its area, but refers merely to the city map, evidence of custom is admissible to show that it includes, by way of dedication for purposes of an alley, a strip of ten feet next to and across the back end of the lot.</p> <p>2. Dedication of Alley — Acceptance—Easement.</p> <p>The owners of lots abutting on a strip dedicated for an alley acquire an easement therein which does not depend on an acceptance of the dedication by the city, or the opening of the alley by an ordinance of the city council.</p>

<p>1. Trespass to Try Title — Buie Where Defendant Specially Pleads His Title.</p> <p>Where, in trespass to try title, the defendant specially pleads title in himself, he can not defeat plaintiff’s recovery by proof of a superior outstanding title not alleged in his answer.</p> <p>2. Levy of Execution Upon Land — Insufficient Description.</p> <p>A levy upon land which does not describe it with sufficient exactness to enable one intending to purchase to locate it by proper inquiry of those familiar with it, is void for uncertainty upon its face, and can not be aided by paroi evidence, nor by the description in the sheriff’s deed made by virtue of his sale under the levy.</p> <p>3. Execution Sale Held Invalid — Repayment of the Purchase Money Required.</p> <p>Where, in trespass to try title, the defendant’s title, resting upon an execution sale, is held invalid because of an insufficient return of the levy, and it appears that the defendant bought at such sale in good faith, and that the amount paid by him was applied upon the judgment, discharging, pro tanto, its lien upon the land, the court will require repayment of the amount so paid, with interest, as a condition precedent to the judgment awarding plaintiff the land.</p>

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

<p>Railway Company — Negligence—Defective Spark-Arrester.</p> <p>The emission from a locomotive engine of a cinder larger than would escape from an engine in proper condition is prima facie evidence of negligence, rendering the company liable to a person in the gallery of a neighboring house whose eye was struck and destroyed by the cinder.</p>

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

<p>1. Ultra Vires — Lease by City of Lands Held in Trust for Public.</p> <p>A lease to a private individual of a large island forming part of the harbor of Galveston City, and of great value for the construction of docks, sea walls, and wharves, which it was evidently the intention of the Legislature that granted it to the city should be held in trust for public use, such lease being for a grossly inadequate rental and for a period of twenty-five years, with privilege of another like period, is ultra vires and void.</p> <p>2. Constitutional Law — Legislative Power.</p> <p>The joint resolution of the Legislature of March 8, 1879, declaring that Pelican Island, theretofore granted to the city of Galveston by Act of February 2, 1856, shall not be subject to attachment, execution, or other judicial process, and that the city shall not have power to transfer the title to the same, is a valid limitation upon the power and dominion of the city over that island, restricting its control thereof to public uses, and did not impair the obligation of contracts or deprive of property without due process of law.</p> <p>3. Same — Joint Resolution — Title of Act — Enacting Clause.</p> <p>Such joint resolution, not being an amendment of the Act of February 2, 1856, was not required to refer to the title of that act by section 36 of article 3 of the Constitution, nor was it subject to the requirement in sections 29 and 30 of that article, that all legislative bills shall have an enacting clause.</p> <p>4. Fraud — Violation of Trust — Inadequacy of Consideration.</p> <p>The great inadequacy of the consideration received by a city for a lease, coupled with the fact that the dealings of the lessee were not with the real owners of the property, which was an island held in trust by the city for the public, brands the lease as fraudulent in the eyes of the law, although no actual fraud is found in connection therewith.</p> <p>5. Void Lease by City — Its Liability to Assignee of Lease and for Costs.</p> <p>The city having received no part of the amount paid by another for an assignment of the void lease to himself, was not liable therefor, nor should it have been taxed with one-half the costs of the action brought by it to cancel the lease.</p>

<p>Appeal from the County Court of Comanche. Tried below before Hon. J. W. Lambert.</p>

<p>1. Pleading — Notice.</p> <p>An answer sufficiently avers notice in alleging that by reason of recitals in a note purchased by plaintiff it had notice of a lien for the sum for which the note was given.</p> <p>2. Homestead — Incumbrance on — Wife’s Assent — Securities.</p> <p>The burden of an incumbrance on a homestead may not be increased, without the wife’s consent, by the husband’s transfer of the lien in such manner as to release certain security which, if applied as it should have been, would have discharged the lien debt.</p> <p>3. Same — Fraud Upon the Wife.</p> <p>Inducing a wife to sign a deed of trust on a homestead by representing to her that’ it does not change the condition of the property as respects a pre-existing loan upon it, is a legal fraud upon her when in fact other security for the prior loan was thereby released without her knowledge.</p>

<p>Landlord and Tenant — Estoppel—State School Land.</p> <p>A tenant who purchases the State's title to school land first purchased from the State by his landlord and then forfeited for nonpayment of interest, gets a title paramount to that of his lessor.</p>

<p>1. State School Land — Proof of Three Years Occupancy.</p> <p>The final proof of three years occupancy of public school land by a purchaser, accepted and acted upon by the Commissioner of the General Land Office under the Act of 1897, section 9, can not be impeached on the ground of falsity by persons subsequently applying to purchase the land.</p> <p>2. Same — Sale by Original Vendee — Forfeiture.</p> <p>A vendee of the original purchaser of school lands is required by the statute to make affidavit that his purchase is not in the interest of another; nor does conveyance by the vendee to a third person to enable the latter to hold and occupy the land for the benefit of the former, who is not an occupier of settler on the land, ipso facto operate as a forfeiture of the purchase.</p> <p>3. Same — Forfeiture—Payment of Interest.</p> <p>The provision of the Act of 1897 requiring the Commissioner of the General Land Office to forfeit sales of school lands theretofore made if any portion of the interest due thereon is not paid on the first day of November, in effect extended the time of the maturity of the annual interest installments from August 1st to November 1st, and the payment of interest for the year of 1897 was not a condition of the reinstatement of an application for the purchase before the first of November of that year.</p> <p>4. Same — Same—Reinstating Sale — Request for.</p> <p>The provision of 2 Sayles' Civil Statutes, article 4218f, that claims for the purchase of school lands which have been forfeited for nonpayment of interest may be reinstated on a written request of the purchaser or his vendee, is directory so far as it relates to a written as distinguished from an oral request.</p>

<p>Appeal from Midland. Tried below before Hon. W. R. Smith.</p>

<p>1. Deed — Description—Parol Evidence — Town Plat.</p> <p>Parol evidence that but one map of a certain town has ever been recorded is admissible in an action where a deed of the town lot in controversy describes it as shown by the town map, of record in book —-, p. —, of the deed records of the county, and it is shown that a town map had been executed at the date of the deed and was recorded soon thereafter.</p> <p>2. Same.</p> <p>A description in a deed of a town lot giving merely its lot and block number as represented on the town map recorded in book —, p. —, of the record of deeds of that county is a sufficient description, it being shown that no map of the town was ever recorded prior to the deed, and but one thereafter.</p> <p>3. Acknowledgment — Deed of Corporation — Identity of Grantor.</p> <p>A certificate to the acknowledgment of a deed by a corporation which recites the appearance before the officer of one party vice-president and another secretary of the corporation, “who are well known to me as such, and each acknowledged that, he executed and delivered the foregoing,” etc., substantially complies with the statutory requirements that the officer taking an acknowledgment shall note in the certificate “that the party making the acknowledgment is the individual who executed and is described in the instrument.”</p>

<p>1. Slander — Justification—Evidence.</p> <p>One who calls another a thief in having stolen rent cotton may justify the statement in an action for slander by showing that the other stole rent cotton in another transaction than that of which the offense was charged by the statement complained of, as the gist of the charge is the theft of rent cotton, and it is immaterial in what transaction it occurred.</p> <p>8. Same — Charge of Theft — Element Omitted.</p> <p>An accusation of theft of cotton is not justified in an action for slander by showing merely appropriation of the cotton by the plaintiff without the owner’s consent, when it was part of that due as rent for the premises on which the plaintiff resided, as the fraudulent intent is an essential element of theft, and the justification must be as broad as the charge.</p>

<p>1. Replevin. — Sureties—Judgment—Notice.</p> <p>The obligation of sureties on a replevin bond for sequestered property (Revised Statutes, article 4876) placed them before the court and was tantamount to a waiver of service, making notice to them of subsequent proceedings upon motion by plaintiff, to enforce their liability, unnecessary.</p> <p>2. Same.</p> <p>In suit for foreclosure of chattel mortgage, the property, being sequestered, was replevied by defendant; foreclosure was denied in the trial court, but was awarded plaintiff on his appeal without passing upon the liability of the sureties. Held, that, on the property not being forthcoming to meet an order of sale thereafter issued by the trial court to enforce the foreclosure, such court could then render judgment against the sureties for the value of the replevied property, on motion of plaintiff and without service on such sureties.</p> <p>3. Same — Judgment Against Principal.</p> <p>Judgment having been rendered against defendant for the debt sued for, the judgment against him and the sureties on his replevin bond was not rendered void because the pleadings failed to ask judgment against such defendant on the bond.</p> <p>4. Principal and Surety — Judgment Void or Voidable.</p> <p>Judgment against the sureties without taking judgment against the principal, is not for that reason void nor subject to be enjoined.</p> <p>5. Injunction — J udgment — Presumption.</p> <p>To authorize injunction against a judgment as void, the presumption that it was correct must be met by negativing all facts which might have supported it: e. g., sureties claiming it to be void as to them because not lawfully rendered against the principal should negative the insolvency of the principal, by which such judgment might have been warranted.</p>

<p>Appeal from the County Court of Delta. Tried below before Hon. C. C. Dunagan.</p>

<p>Appeal from the County Court of Milam. Tried below before Hon. W. M. McGregor.</p>

<p>1. Evidence — Liquor Dealer’s Bond — Wife’s Consent to Sale to Husband.</p> <p>In a prosecution on a liquor dealer’s bond for selling intoxicants to plaintiff’s husband, evidence that, after notifying the dealer not to sell to him, plaintiff had sought through others to procure liquor for her husband from defendant and others, was admissible to show that she consented to the sale.</p> <p>2. Evidence — Suit on Liquor Dealer’s Bond — Reputation of Prosecutor for Chastity.</p> <p>It was error, in a suit by a wife for selling liquor to her husband after notice not to do so, to admit evidence that the prosecutrix bore a bad reputation for chastity and was reputed keeper of a house of prostitution.</p> <p>3. Same — Person Aggrieved.</p> <p>“Person aggrieved,” in the statute, is simply a designation of the class of persons entitled to sue, and evidence of character is not admissible to show that the prosecutrix was not in fact aggrieved.</p>

<p>Error to Lampasas. Tried below before Hon. Luo. M. Furmah.</p>

<p>1. Consideration — Settlement—Pleading.</p> <p>A plea alleging settlement and release of damages sued for in consideration of payment of $350 “and of other good and valuable considerations,” was not subject to special demurrer on the ground that it showed payment of the $350 in discharge of a debt for that amount and disclosed no consideration for the release of the damages.</p> <p>2. Same — Written Release.</p> <p>A release in writing imports a consideration (Revised Statutes, article 4863), and none need be alleged in pleading it. It can be impeached for want of consideration only by sworn plea.</p>

<p>Practice on Appeal Where Appellant Dismissed Below.</p> <p>Plaintiff in a suit for an injunction, who voluntarily dismisses as to some of the defendants upon the refusal of the court to grant a temporary injunction, and as to the other defendant upon the vacation of a temporary injunction as to it, can not on appeal be heard to complain of the judgment of dismissal so entered at his own instance.</p>

<p>1. Acknowledgment — Officer Disqualified by Interest.</p> <p>The acknowledgment before a stockholder of a building and loan association of a contract creating a lien upon land in favor of the association -is invalid and can not be reformed.</p> <p>3. Married Woman’s Contract and Separate Estate.</p> <p>One who advances money to pay for the erection of a dwelling upon a lot owned by a married woman at a place to which she had gone for her health, is not entitled to a personal judgment against her, to be made out of her separate estate, upon the ground that the dwelling was necessary as a home for herself and children, although the family had previously lived in a rented house, there being no change of circumstances or conditions making it necessary to purchase property and erect a dwelling for a home at a place to which it does not appear that the husband had removed.</p>

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

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

<p>Appeal from Medina. Tried below before Hon. I. L. Martin.</p>

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

<p>1. Pleading and Proof.</p> <p>Evidence of the reasonableness of the charges for a physician’s services and medicine is admissible in a suit to recover for personal injuries, although the petition which sets out the amounts does not aver that they are reasonable, there being no special demurrer.</p> <p>2. Evidence — Declarations—Res Gestae.</p> <p>Statements by a witness on cross-examination in an action to recover for personal injuries, that while plaintiff was at his house the night of the injury she had complained that she tasted blood, are not inadmissible on the ground merely that they are irrelevant and self-serving.</p> <p>3. Same — Opinion.</p> <p>A statement that in the opinion of witness defendant’s train stopped at a certain station long enough for plaintiff to alight is inadmissible, being a mere conclusion and not a statement of the facts.</p> <p>4. Railway Company — Negligence—Duty to Passengers Alighting.</p> <p>The failure of a railroad company to use proper care and diligence, such as prudent person would exercise under the circumstances, to stop its trains sufficient time and light its platform at night so that passengers may leave its train in safety, is negligence.</p>

<p>Homestead in City — Renting Part.</p> <p>The mere fencing 06 of a part of a city homestead lot, upon which a cottage is situated at the time of its purchase, from the remaining portion on which the residence is placed, and the temporary renting of the cottage, do not prevent the homestead right from attaching to both parcels, where it was originally and is still the intention of the owner, when able to do so, to uge the cottage parcel for stables and servant’s quarters.</p>

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

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

<p>Appeal from Dallas. Tried below before Hon. W. J. J. Smiti-i.</p>

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

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

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

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

<p>Master and Servant — Assumed Bisk — Obvious Danger.</p> <p>A member of a section gang engaged in unloading cross-ties from a flat car from which the standards were removed for convenience in unloading assumed the patent risk of injuries from the falling of its ties upon him in stopping the car under the direction of the foreman at points at which ties were needed, as was customary, by thrusting a piece of scantling in front of the wheels.</p>

<p>1. Fixtures — Mechanic’s Lien.</p> <p>The owner of land becomes the owner of such improvements placed thereon as constitute fixtures, and these can be affected by a lien for materials furnished to erect them only in the manner authorized by the statute.</p> <p>2. Corporation Hot Bound by Members Acting Individually.</p> <p>A corporation is not liable for a debt incurred by the holder of a large portion of its capital stock and chairman of its executive committee, under a written authorization from a majority of the stockholders acting individually, to improve the grounds of the corporation at hds own expense, to be reimbursed out of the corporate funds, where no acquiescence or ratification by the corporation is shown.</p> <p>3. Same — How Bound.</p> <p>Action which in itself binds a corporation can be taken only by its members or directors as a body and at a properly constituted meeting.</p> <p>4. Agency — Lien for Material.</p> <p>An agent who has no authority to make an improvement on his principal’s property can not charge it with a mechanic’s lien therefor.</p>

<p>Attorney Fees — Stipulation for Must Be Pleaded.</p> <p>Where a note provides for attorney fees if it is placed in the hands of an attorney for collection, and the petition in an action thereon fails to allege that the note was so placed for collection, it is error to include the amount of such fees in a judgment taken by default.</p>

<p>1. Appearance — Notice of Amendment.</p> <p>The want of notice of an amendment to a petition setting up a new cause of action, or of the order granting leave to file the amendment, is obviated by defendant’s appearance at the trial of the cause.</p> <p>2. Presumption — Taxation—Assessment of City Lots Together.</p> <p>Lots assessed and valued together will be presumed from their use and situation to be practically one tract or parcel of land, in view of the statutory requirement of the owners to render an inventory and list' of their property for taxation, and the absence of any proof as to how the assessment was made.</p> <p>3. Tax Lien — Sale of Several City Lots in Gross.</p> <p>The lien of city taxes upon different parcels or lots assessed and valued together may be foreclosed upon all of them in solido for the sum of the taxes assessed against each parcel, under a city charter provision making taxes assessed against property a lien thereon and providing .for a suit and personal judgment against the owner for the amount of taxes with foreclosure of the lien, and declaring that the property may be sold either separately or in gross.</p> <p>4. Same — Description of City Property on Assessment Rolls.</p> <p>The question of the sufficiency of the description of property assessed for city taxes will not be reviewed when raised for the first time on appeal and without assignment of error, especially where the city charter provides that when the description is vague and indefinite the city may show by other evidence the location and owners of the property on which the tax is due.</p>

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

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

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

<p>1. Estoppel as to Claim of Title.</p> <p>One who admits the execution by himself of an agreement to convey certain land to another at the termination of a suit by him against her, and acknowledges that she has title to the land, is estopped to deny the title of a bank which purchased the property in good faith at a sale thereof made under a deed of trust subsequently executed by her with the knowledge and assent of the former to secure the payment of a loan, although he has since discovered that the representations by virtue of which she procured such agreement and acknowledgment of her right were untrue. 3. Deed — Description—Conflicting Calls.</p> <p>When the calls in a deed lead to conflicting results, that must be adopted which is most consistent with the intent apparent on the face of the grant.</p> <p>3. Same — May Be Aided by Extrinsic Evidence.</p> <p>Deeds are not inadmissible in evidence for the sole reason that, unaided by extrinsic evidence, the land described in them can not be identified.</p> <p>4. Same — Evidence on Issue of Identity of Land.</p> <p>See the opinion for evidence, in part of a map referred to in the deed, held sufficient to support an issue as to the identity of the land, and a finding of the verdict thereon.</p>

<p>1. Public Road — Dedication—Acceptance—Presumption.</p> <p>From long and continued use of a road by the public (fifty years in this case), a presumption arises that such use of the land was acquired under the right of eminent domain, and it is not necessary to show by dircet evidence an acceptance of a dedication of the land as a public highway.</p> <p>2. Same — Acceptance Implied When.</p> <p>Acceptance by the proper authorities may be implied from the use of the road for so long a period of time, and its having been worked, its beneficial nature, and the general reputation that it was a public road.</p> <p>3. Same — Prescriptive Right Hot Defeated.</p> <p>A prescriptive right in the public to have a road kept open will not be defeated by the fact that the principal use of the road has become beneficial to only one person.</p> <p>4. Same — Easement—Railroad Right of Way.</p> <p>The easement of the public in a highway, as against the owner óf the fee, is not affected by the construction of a railroad across it before limitation by prescription is complete, since the railroad does not take the fee.</p> <p>5. Same — Estoppel Against Railway Company — Crossing.</p> <p>When a railroad company has for forty years recognized and acquiesced in the claim that a given road is a public highway by maintaining a public crossing over it, this is conclusive against it as to such claim and right.</p> <p>6. Same — Damages Against Railway Company.</p> <p>A ralway company is liable to a gardener who, by reason of the shutting up by the railway company of a public road which passed his place, is prevented from properly marketing Ms produce either by hauling it away or by selling to customers who call for it at his garden, and damages for such loss of profits are not too remote.</p> <p>7. Same.</p> <p>The gardener was justified in putting in his crop for another year afiter the crossing was closed and upon the assumption that he would have a way for marketing it, as it was not to be presumed that the railroad would continue its wrongful act in keeping the crossing closed.</p>

<p>Appeal from Victoria. Tried below before Hon. James C. Wilsoh.</p>

<p>1. Mechanic’s Liens — Assignment of — Parties.</p> <p>Where claims for mechanic’s liens have been assigned to one person to enable him to collect them together with his own claim, and in ohe action, he may sue in. his own name and recover a personal judgment thereon, and the persons so assigning to him will be bound by the result.</p> <p>2. Jurisdiction of District Court — Amount.</p> <p>Where suit is brought in the district court for an amount within its jurisdiction, the judgment is not invalidated by the fact that it is for a sum below the jurisdictional limits, where no issue, was raised that the amount sued for was claimed for the fraudulent purpose of conferring jurisdiction.</p> <p>3. Practice on Appeal — Remittitur.</p> <p>An appellant who first complains on appeal of a remittitur of an amount recovered against a party defendant with him in the court below can not have such matter reviewed where such other defendant is not made a party to the appeal.</p> <p>4. Mechanic’s Lien — Claims of Subcontractors.</p> <p>One who pays to a" building' contractor sums due him for erecting a house will be liable to materialmen in an amount equal to those sums, when they were paid after notice had been given of the materialmen’s claims.</p> <p>5. Same — Same—Owner Protected, When.</p> <p>The owner of a building which contractors are erecting will be protected against the lien of materialmen and laborers in paying amounts due the contractors after receiving notice of the lien, when they were upon orders of the contractor accepted before the notice was given.</p> <p>6. Same — Separate Property of Wife — Title in Community — Notice.</p> <p>The lien of materialmen and laborers for work done upon a house erected upon lots that are apparently the community property of husband and wife, when the materialmen contracted with respect to the property as community and without notice of any separate claim by the wife, is entitled to prevail as against such claim.</p>

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

<p>Evidence — Transaction with Decedent — Officer of Corporation.</p> <p>In an action between a loan corporation and the heirs of a deceased borrower, the manager of the corporation is not inhibited by article 2302, Revised Statutes, from testifying as to conversations had by him with such borrower, since the statute excludes the testimony of parties only, and not of their agent.</p>

<p>1. Sale Under Deed of Trust — Debt. Already Paid.</p> <p>A sale of lands by the trustee under a deed of trust will convey the title, although the debt secured by the deed had been paid, where it was made at the instance of the grantor in trust and for the purpose of conveying title to one of his creditors in payment of a debt, and the other creditors do not complain.</p> <p>2. Innocent Purchaser — Mortgage—Estoppel.</p> <p>One who has clothed another with a feé simple title and held him out as the absolute owner of the land will not be heard to dispute his title and assert a secret equity as against one taking a mortgage in good faith on the assumption that the title was where the deed placed it.</p> <p>3. Limitations — Written Acknowledgment of Debt.</p> <p>A note kept alive by written acknowledgment before it is barred is not concluded by the four years statute of limitations. Rev. Stats., art. 3370.</p> <p>4. Lien — Release of — Extension of Debt.</p> <p>The lien of a mortgage is not discharged by the mortgagee definitely extending the time for payment of the note secured thereby without the consent of a then owner of the land who took by mesne conveyance from the mortgagee, where the land was the primary security when the mortgage was taken, and the mortgagor had not consented to any change in that respect.</p>

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

<p>Deed Includes Streets, When.</p> <p>A deed of several blocks of land separated by streets conveys title to the intervening streets, where the grantor laid out the land in blocks and streets, and the grantee accepted a conveyance with reference to the plat, and the streets were never opened or otherwise used or accepted by the public. Following Bond v. Railway, 15 Texas Civil Appeals, 281.</p>

<p>Appeal from the County Court of Motley. Tried below before Hon. A. B. Andebson.</p>

<p>1. Attachment — Insolvent Corporation..</p> <p>A creditor of an insolvent corporation may fix a lien upon its property by attachment and thereby obtain a preference over other creditors, provided it has not ceased to carry on its business in the usual course of trade. Following Bank v. Manufacturing Company, 15 -Texas Civil Appeals, 631.</p> <p>2. Same — Affidavit Not Traversable.</p> <p>The affidavit for an attachment is not traversable for the purpose of abating the writ and vacating the lien.</p> <p>3. Same — Vacating.</p> <p>A subsequent lien creditor is not entitled to have a prior attachment vacated upon the sole ground that it was sued out without reasonable grounds for believing the affidavit for attachment to be true.</p> <p>4. Costs — Insolvent Corporation — Receivership.</p> <p>Creditors of an insolvent corporation who have brought an unsuccessful suit to vacate attachment liens as fraudulent and collusive are properly taxed with the compensation of the receiver appointed in such suit at their instance.</p>

<p>1. Master and Servant — Warning Servant of Overhead Bridge.</p> <p>A statement by a yardmaster to a newly employed brakeman that a certain bridge was too low to clear a man standing on a low ear, and to look out for it, and by the conductor and a brakeman of the train upon which he was employed that it would not clear a man on a high box car, is not such warning as will prevent a recovery from the railway company for the death of the brakeman, who came into collision with the bridge in the ordinary discharge of his duty, standing on a car of ordinary height, when no cords were, suspended overhead to give warning of the bridge, as was the general custom of railroads having low bridges.</p> <p>2. Same — Railway Company — Negligence.</p> <p>A railroad company knowing that it had not constructed its roadbed under a certain bridge low enough to allow its brakeman to safely pass beneath it in the discharge of his duty, is guilty of negligence causing his death in not sufficiently warning him of that danger.</p> <p>3. Same — Risk Incident to Employment.</p> <p>A danger which is not obvious and of which the servant was ignorant when entering the employ of a railway company is not one assumed by him as incident to the employment.</p> <p>4. Damages for Causing Death — Verdict Not Excessive.</p> <p>A verdict for $15,000, although a less sum might have covered the pecuniary loss involved for causing the death of plaintiff's husband, an expert railroad man, 30 years old, in good health, with a life expectancy of thirty-five years, and presumptively with the usual prospects of promotion, earning about $75 per month, of which at least $45 went to the support of his wife and two young children, will not be held excessive, when he was industrious and thrifty and provided a comfortable home for his family, although no proof was offered of the wife’s life expectancy, nor of what sum would suffice to purchase the equivalent of the pecuniary benefit -which the widow and children might reasonably have expected from his life.</p>

<p>1. Irrigation Company — Statutory Requirements — Filing Map of Canal.</p> <p>The filing of a map under the Act of March 10, 1875, granting a right of way over public lands for irrigation canals, and providing that a map of the proposed canal shall be filed in the General Land Office, and that no public lands shall be located within three miles of the canal so designated, when running over the public domain, by anyone other than the canal company, provided that the company shall commence work within a year thereafter, does not, — in view of the Act of April 25, 1874, article 5, section 36, declaring that unless such companies shall commence active operation within three years from the filing of their charter they shall be dissolved,— vest in the company a right in presentí to an easement over the land traversed by the proposed canal.</p> <p>2. Same — Ho Right Over Private Lands Granted.</p> <p>A right of way over private lands is not granted by the Acts of March 10, 1875, and April 23, 1874, giving a right of way over public lands for irrigation canals and providing that canal companies shall have free use of the water of all streams, and that damages for any property appropriated shall be assessed and paid for as in case of railroads; and such companies must acquire a right of way over private lands, by grant or condemnation.</p> <p>3. Same — Acceptance of Grant by Corporation.</p> <p>There is no acceptance of the right of way over public lands by a corporation organized by the owner of several contiguous surveys upon which there is a large spring, nominally joining with him two other persons to form an irrigation company, under the Act of March 10, 1875, which grants a right of way over public lands for ' canal purposes, and provides that the business affairs of the company shall be transacted through a president and two directors, when the owner constructed the canal over his own and adjoining public lands, and used part of the water to irrigate his own property, and sold the rest of it without action of the directors, and without accounting to the corporation, which never did any act in furtherance of the purpose of its creation.</p> <p>4. Same — Basement—Revocation.</p> <p>A land owner who gives an easement across his land to an irrigation company which he forms "will not be estopped from revolting the permission to use his land at pleasure if the company made no improvement thereon.</p> <p>5. Same — Power to Convey Water Bight. ,</p> <p>An owner of land who nominaly joined two other persons with him to form an irrigation company under the Act of March 10, 1875, and who then constructed the canal over his lands and adjoining public lands, and used part of the water to irrigate his own property and sold the 'rest of it without action of the directors and without accounting to the corporation, which never did any act in furtherance of the purposes of its creation, has implied authority, under the circumstances and as president of the corporation, which was authorized to mortgage its property and franchises, to convey part of the canal and water necessary to the beneficial use of adjoining land which he had sold in payment of a mortgage conveying the canal franchise, he also having acquired all the stock of the company before the mortgage was given.</p> <p>6. Same — Deed Conveying Water Bight.</p> <p>A conveyance by an owner of arid lands who formed a corporation to build an irrigation canal across them from a spring on contiguous lands owned by him making them valuable, “together with all and singular the rights, members, hereditaments, and appurtenances to the above belonging or in any wise incident,” passes the ditches and the water necessary for the beneficial use of the lands, where, in the meantime, the grantor had acquired all the stock in the company.</p>

<p>Homestead in City — Forty Acres Exempt.</p> <p>One who owns and occupies as a homestead a tract of land mostly within the limits of a city, containing forty acres, which has never been laid off into blocks or lots, and most of which is used for farming purposes, may claim the entire tract as an exempt homestead, although people live and own property diAÚded into lots on three sides of the tract, and although the owner does business and maintains an office in the city as a land agent, sends his children to the public schools, votes in city elections, consents to the maintenance of streets, and although the street in front of the tract is occupied by street car tracks and gas and water mains.</p>

<p>Appeal from Wise. Tried below before' Hon. J. W. Pattekson.</p>

<p>1. Pleading by Plaintiff — Confession and Avoidance.</p> <p>Where plaintiff sued as the absolute owner of corporate stock for dividends-, payable thereon, and the defendant answered that plaintiff was a mere trustee, holding the naked legal title to secure the payment of a note, and that the dividends had aready been paid to the cesti que trust and real owner, plaintiff could not, without further pleading, show what he also held as trustee to secure certain other notes to which the dividend should have been in part applied, as this was matter in the nature of confession and avoidance, and the omission was not cured by virtue of an allegation in the answer that a surplus due on the stock had been wrongfully applied by the cestui que trust to one of such other notes.</p> <p>2. Practice — Amendment of Pleadings.</p> <p>Refusal of leave to file a trial amendment will not be deemed an abuse of the-court’s discretion where the grounds of the ruling and the circumstances relating; thereto are' not set out in the bill of exceptions. Rev. Stats., arts. 1188, 1361.</p>

<p>1. Receiver of Telegraph Company — Liability.</p> <p>In the absence or plea or proof of any limitation of Ms authority, a receiver of a telegraph company may be presumed to have authority to contract to transmit a message beyond his line over a connecting line,- and certainly that he has authority to contract to send it to the end of his own line and there deliver it to the other line.</p> <p>2. Telegraph Company — Damages.</p> <p>Damages for failure to deliver a telegram whereby the brother of the sender’s deceased wife buried her before his arrival are not speculative and remote because the burial was dependent on the will and action of another.</p> <p>3. Same — Notice of Relationship and Purpose.</p> <p>A message saying, “Annie is dead, come; if not, answer,” on its face constitutes notice of the relationship of the parties named in the message, with notice of such purposes as might reasonably be inferred from the language used, including a probable desire of the addressee to attend the burial, and the mental anguish necessarily arising from an inability to do so.</p> <p>4. Same — Evidence Held Sufficient.</p> <p>In a suit to recover damages for failure to deliver a telegram because of which the sender’s wife was buried by her brother before he arrived, evidence by the wife of the brother that the burial would have been postponed had the telegram been received in proper time, by the brother that he was about sure he would have deferred the burial had the telegram been so received, and by the attending physician that the body might have been preserved for several days, was sufficient to warrant a verdict finding, in effect, that the burial would have been postponed had the message been promptly delivered.</p> <p>5. Practice — Itemizing Verdict — Request.</p> <p>A failure of the charge to require the jury to itemize their verdict can not be complained of where such a charge was not requested, and the record shows no objection to the verdict made below on that account.</p>

<p>1. Limitations — Written Acknowledgment of Debt — Signature.</p> <p>It is sufficient, under the statute which requires a written acknowledgment, signed by the party, in order to preserve a debt from the bar of limitations, that such a written acknowledgment was indorsed on the note for the maker, and, he being an illiterate man, was signed for him by another, in his presence and at his request, it not appearing that any fraud, imposition, or duress was practiced. Rev. Stats., art. 3370.</p> <p>2. Same — Parol Evidence Supplying Omission.</p> <p>In a case where the time was omitted from the written acknowledgment extending a debt, a finding by the jury that the maker of a note to a count}' accepted the proposition of the county to extend it for one year, is justified by the testimony of the county judge that he offered to extend the note for one or five years, that the maker said “All right,” and that he, the witness, supposed the extension was for one year, it further appearing that the note was extended, and that there was no plea in abatement setting up a five years extension.</p> <p>3. Same — County Judge Extending Debt.</p> <p>The maker of a note to a county can not, to avoid liability under his plea of limitation, assert that the action of the county judge in extending the note was unauthorized, where he acted upon and received the benefits of the extension, and the authority of such judge to extend the debt was in no way questioned in the trial below.</p> <p>4. Juror — Disqualification—Suit by County.</p> <p>A citizen and taxpayer of a county is not disqualified by interest to act as a juror in an action by the county on a note due it for school purposes.</p>

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

Tried below before Hon. H. Teiohmueller. The will in question left all the testator’s property, about $6000, to his wife, Emma Kabelmacher, she to be executrix and to give no bond, and the probate court to have nothing to do with the administration. The following statement in full of the testimony offered is taken from the brief of defendant in error: Christian Hoffheinz testified for the proponent: My name is Christian Hoffheinz.

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

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

<p>1. Written Instrument — Parol Evidence.</p> <p>The rule excluding paroi evidence offered to vary the terms of a written instrument has no application to collateral undertakings or cases in which the written instrument was executed in part performance of an entire oral agreement.</p> <p>8. Same.</p> <p>To a suit on a promissory note, an answer alleged that the note was executed in purchase by the maker of the payee’s interest in a partnership between them, an entire settlement of which could not then be made,'but was to be made thereafter, and that on a proper settlement the plaintiff was indebted to defendant, in excess of the amount of the note, for money advanced by him to the firm. Held, that such plea was not subject to demurrer on the ground that it attempted to vary the written contract by paroi.</p> <p>3. Limitation — Settlement of Partnership.</p> <p>The two years statute of limitation does not apply to an action by one partner against another for a settlement of the partnership accounts. The period is four years. Rev. Stats., art. 3356.</p>

<p>1. Attachment — Exempt Property — Selection.</p> <p>Where, upon levy of attachment upon four head of horses, defendant was not required to point out those claimed as exempt (Revised Statutes, article 2427), he had the right to make the election contemplated by the statute, at the time of the trial.</p> <p>2. Same — Colt Selected as Exempt “Horse.”</p> <p>A colt, ten months old and never worked, is a horse within the meaning of the exemption statute; and upon the levy of attachment upon two mares, which were mortgaged, and two colts, the defendant could select the colts as his exempt property.</p> <p>3. Exempt Property — Attachment—Replevin.</p> <p>Defendant, by replevying attached property, did not lose the right to claim it as exempt; and where foreclosure of the attachment lien was denied on the ground of such exemption, though judgment went against defendant for the debt, it could not be rendered against the sureties on the replevy bond for the exempt property.</p> <p>4. Judgment — Remittitur—Appeal.</p> <p>A remittitur of a part of the judgment recovered by plaintiff in justice court was not a waiver of his claim to that extent where defendant appealed; and on trial de nova in the county court he could recover the entire amount sued for.</p>

<p>1. Garnishment After Judgment — Answer—Contest of Garnishee’s Indebtedness by Judgment Debtor.</p> <p>Á judgment debtor can not be heard to complain that a garnishee, held liable on answer as indebted to him, was not so indebted, but owed the debt to another, not a party to the proceeding.</p> <p>2. Same.</p> <p>A plaintiff having judgment against D. (as D. & Co., in which name he had contracted the debt), garnisheed a bank, which admitted a debt to D. & Co. and was held liable as garnishee. D. appeared in the garnishment proceedings and appealed from the judgment, claiming that the bank’s indebtedness was not to himself, but to a firm composed of himself and one S., who was not a party to the proceeding, doing business as D. & Go.; Held, that D. could not complain of the judgment.</p>

<p>Appeal from Concho. Tried below before Hon. J. O. Woodward.</p>

Tried below-before Hon. J. M. Talbot. An opinion in this case, in which the appeal was dismissed for defect in the appeal bond, is reported in 20 Texas Civil Appeals, 291. The appeal was subsequently reinstated on the execution of a new bond.

<p>Appeal from the County Court of Tom Green. Tried below before Hon. T. C. Wynn.</p>

<p>1. Depositions — Return—Envelope.</p> <p>The use by a notary in returning depositions of an envelope prepared for such use by attorneys is an adoption of the. indorsements upon the envelope.</p> <p>2. Same — Evidence—Harmless Error.</p> <p>Permitting depositions to be read instead of bringing the witness into court to testify is not prejudicial error where the witness was subsequently placed upon the stand and testified and was .cross-examined.</p> <p>3. Evidence — Relevancy.</p> <p>A competent witness in an action for personal injuries may testify to the width of cars of the kind which plaintiff testified he was climbing upon when he was injured.</p> <p>4. Witness — Impeaching—Hostility.</p> <p>Evidence that witnesses formerly in the employ of a party were discharged by it is inadmissible to show their hostility, in the absence of any testimony showing how recent or remote in point of time the discharge was.</p> <p>5. Practice on Appeal — Proposition in Brief Inapplicable.</p> <p>An assignment of error to the admission of certain evidence does not require notice where the proposition thereunder in the brief is inapplicable to such evidence.</p> <p>6. Evidence — Life Expectancy.</p> <p>Evidence of plaintiff’s life expectancy is admissible in an action for personal injuries resulting in total disability and incapacity to do mental or physical labor.</p> <p>7. Damages — Standard for Measurement.</p> <p>The particular calling in which a person was engaged at the time of receiving personal injuries, or the wages he was then receiving, is not the standard of his damages, where he was an experienced railway man in many capacities, fitted when injured for employment in any of them, in good health, and with nothing to disqualify him.</p> <p>8. Charge of Court.</p> <p>The use of the word “naturally,” in charging the jury that a servant assumes all risks ordinarily or naturally incident to his employment, is not objectionable.</p> <p>9. Evidence — Relevancy.</p> <p>Testimony in an action against a railroad company to recover damages for personal injuries, that the cars were moved after the accident, is admissible where there is evidence that after the accident there were no cars standing at the point by which the plaintiff could have been injured.</p> <p>10. Charge of Court — Negligence.</p> <p>The question of negligence vel non is one which the charge of court properly leaves entirely to the jury.</p>

<p>Will — Construction—Power Conferred.</p> <p>Where a husband devised to his wife all his property for her life, with full power to dispose of the same by will or by deed to take effect after her death, expressing the desire that she keep the property intact for life and leave the same by will or otherwise to whichever of the testator’s sons are best and kindest to her during her lifetime, or divide it as she may deem best, she may dispose of such property in accordance with the provisions of the will, and does not take a mere life estate without such power of disposal.</p>

<p>1. Practice on Appeal — Statement of Facts.</p> <p>A statement of facts will not be stricken out for a failure to file it in time, where the delay was caused by the failure of the trial judge to return it in time after it had been submitted to him for approval. Rev. Stats., art. 1382.</p> <p>2. County Court — Jurisdiction in Probate.</p> <p>Since the county court is one of general jurisdiction, its order appointing an administrator de bonis non is not subject to collateral attack unless the record, on its face, discloses a want of jurisdiction.</p> <p>3. Same — Administrator De Bonis Mon — Appointment.</p> <p>Where an administrator de bonis non was appointed on the death of the administrator without closing up the estate or accounting for funds belonging to it, and the judgment appointing him recited that there was a necessity for his appointment, such judgment could not be collaterally attacked on the ground that all claims against the estate had been paid.</p> <p>4. Administration — Verification of Claim.</p> <p>A verification of a claim against an estate which fails to state that the account is just, or that the facts stated in the affidavit are known to the affiant, is insufficient. Rev. Stats., art. 2072.</p> <p>5. Parties — Action Against Sureties Where Principal Is Dead.</p> <p>Where an administrator is dead an action for funds misappropriated may be maintained against the sureties on his bond without joining his administratrix or alleging the insolvency of his estate. Articles 1204 and 3818, Revised Statutes, construed.</p>

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

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

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

<p>Transfer of Canse Erroneously Made — Costs.</p> <p>Where, by order of the Supreme Court acting under article 994a of the Revised Statutes, a case .is erroneously transferred from one Court of Civil Appeals to another, and afterwards retransferred, neither the appellant nor appellee is liable for the costs of such transfers, including the costs of the Supreme Court upon a certified question as to the legality of the transfer.</p>

<p>Appeal from Henderson. Tried below before Hon. W. H. G-ill.</p>

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

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

<p>1. Bill of Review by Minors.</p> <p>A bill to review the proceedings of the probate court in a guardianship can be brought by the minors before the expiration of two years after reaching their majority.</p> <p>2. Guardian’s Bond — Sureties Hot Discharged.</p> <p>The sureties on a guardian's bond, under the express terms of the statutes, are not released until a new bond is given; and where such new bond has not been given, an order of court discharging the sureties forthwith is without effect. Rev. Stats., art. 1956.</p> <p>3. Bill of Review in Probate Proceedings.</p> <p>By virtue of the statute a bill of review will lie in probate proceedings, even for the correction of errors of law apparent upon the face of the record or decree. Rev. Stats., art. 2799.</p>

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

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

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

<p>1. Garnishment — Defendant’s Right to Contest.</p> <p>The principal debtor may appear and question the sufficiency of garnishment proceedings, although the garnishee has admitted indebtedness to him and has not asked that he be made a party .</p> <p>2. Same — Affidavit of Indebtedness.</p> <p>Where the holder of a judgment rendered against two persons as defendants therein makes affidavit that the garnishee is indebted to “the defendant,” without specifying either of them or including both of them, the affidavit is uncertain and defective.</p> <p>3. Same — Rule of Strict Construction.</p> <p>In garnishment proceedings there must be a strict compliance with the requirements of the statute.</p>

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

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

<p>Continuance — Third Application — Requirements.</p> <p>A third application for the continuance of a cause which was continued at the previous term because of the absence of the defendant’s witnesses, when no further diligence is shown to obtain their testimony, nor that their fees had been tendered, nor that defendant expects to procure their testimony at the next term of the court, may be refused in the discretion of the trial court.</p>

<p>1. Estoppel — Heirs—Paying Debts of Estate.</p> <p>Heirs who agree that two of their number, owing the estate on land notes, shall pay the debts of the estate, are estopped from denying to those making such payments credit on their notes for amounts so paid.</p> <p>3. Limitations — Tacking Disabilities — Coverture and Minority.</p> <p>The disabilities of coverture and minority can not be tacked, and where limitation would have commenced to run against the mother but for her coverture, it began to run at her death against all her children, irrespective of their minority or coverture. 3. Practice on Appeal — Harmless Error.</p> <p>Where the evidence was such as to require the finding of the verdict in appellee’s favor, the judgment will not be reversed for error of the court in giving and refusing charges.</p>

<p>Eeroe from Harris. Tried below before Hon. Johx G. Tod.</p>

<p>1. Temporary Administrator — Power—Claim Bond.</p> <p>An order appointing a temporary administrator and authorizing him merely to take charge of and care for property does not authorize him to bind the estate by filing a claimant’s oath and bond on its behalf where property, not in his possession as such administrator, is levied on under an execution against himself. Rev. Stats., art. 1935.</p> <p>2. Same — Want of Authority Hot Curable.</p> <p>Where an action is commenced by a temporary administrator without authority, such infirmity can not be cured by the subsequent act of the court conferring such authority in continuing the temporary administration.</p> <p>3. Same — Order Continuing Is Hull, When.</p> <p>An order of the probate court continuing a temporary administration is a nullity where it is entered during vacation, instead of at a regular term as required by the statute.</p>

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

<p>1. Probate Court — Jurisdiction—Rejected Claim Against Decedent’s Estate.</p> <p>The probate court has no jurisdiction of an action upon a rejected claim against a decedent’s estate, nor has the district court original jurisdiction in such case where the amount is less than $500, such suit being maintainable, where the claim was for $400, alone in the county court upon the civil side of the docket. Rev. Stats., art. 2082.</p> <p>2. Same — Application for Payment of Claim.</p> <p>An application to the probate court for the payment of a claim incurred by the administratrix in the management of an estate is defective where it does not set out the account, nor show the facts that would render the estate liable for its payment, but merely avers that the account was incurred by order of the court, and that the administratrix had reported her action to the court and had admitted to the court that the account was a just liability against the estate, without showing that the claim had ever been approved by the court or established as a claim against the estate.</p> <p>3. Pleading — Claim Against Decedent’s Estate — Demurrer.</p> <p>The petition in an action upon a rejected claim against a decedent’s estate is demurrable where the suit was not brought within ninety days after the claim was rejected. Rev. Stats., art. 2082.</p>

<p>1. Pleading in Suit for Taxes — Assessment of City Lots.</p> <p>Where, in an action for the recovery of city taxes, the petition avers that they were legally levied and rendered, and the exhibit attached shows description of the property, rate of taxation, and the amount due, but it does not appear whether the property was rendered or not by the owner, it will be presumed, on demurrer, that it was rendered by him in gross, and was therefore not separately assessed.</p> <p>2. Same — Allegations Specifying the Taxes.</p> <p>A petition in an action for the recovery of city taxes alleging that the ordinances of the city provide for a tax of $2 on each $100 worth of property, one half for current expenses and the other for payment of its bonded indebtedness, and that the taxes sued for were levied for those purposes, is sufficient as against exceptions on the ground that it fails to show how much of the tax was for each of the several matters of current expense.</p>

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

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

<p>1. Practice — Opening and Conclusion.</p> <p>A defendant is not entitled to open and conclude the argument to the jury where the admission required by the statute to secure that right was made by him, but was subsequently withdrawn and not renewed..</p> <p>2. Same — Applause in Courtroom.</p> <p>A judgment in a civil action will not be reversed because of the presence inside the bar and the applause of bystanders during the closing argument in the trial below, where the presiding judge promptly commanded the observance of order -and thus put an end to the demonstrations.</p> <p>3. Same — Misconduct of Counsel.</p> <p>Abusive and threatening language by plaintiff while on the witness stand towards the defendant and his attorneys, with like conduct of his counsel in the argument of the ease, however reprehensible, will not of itself warrant a reversal where, no objections on this account were made at the time, and the evidence fully sustains the verdict and judgment.</p>

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

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

<p>1. State School Lands — Forfeiture for Nonpayment.</p> <p>It was within the power of the Legislature to authorize the Commissioner of the General Land Office (as by the Act of April 1, 1887, section 11), to declare forfeitures of State school land purchases for nonpayment of interest due thereon, and this without reference to the law under which the rights of purchasers accrued. Following Fristoe v. Blum, 92 Texas, 76.</p> <p>2. Same — Reinstatement.</p> <p>The Act of 1897, page 184, does not authorize the Commissioner of the General Land Office to reinstate a forfeited state school land purchase where, after he had declared the forfeiture, the land was sold to another and the rights of a third party had thus intervened.</p>

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

<p>Appeal from Coleman. Tried below before Hon. J. O. Woodwaed.</p>

<p>1. Breach of Promise to Marry by Female Minor.</p> <p>A female minor, though above the age of 18, is not bound by an executory contract to marry, nor liable in a suit for breach thereof.</p> <p>2. Same — Statutes Construed.</p> <p>Revised Statutes, articles 2957, 25, 2963, 296á, and 2552, considered with reference to effect upon a contract to marry by a female minor.</p>

Tried below before Hon. W. M. McGregor. The sixth assignment of error, referred to in the opinion, was as follows : “The court erred in charging the jury that a passenger, in getting off a train, is required to use such care and diligence as a prudent, cautious, and competent person would use under similar circumstances/ the same being an erroneous statement of the law,- the care that a prudent, cautious, and competent person would exercise not being the equivalent of such…

<p>1. Practice on Appeal — Brief Piled After Time.</p> <p>A writ of error will not be dismissed for failure of plaintiff in error to file brief within the time prescribed, where such brief has been filed and fully answered by the opposing party, and no delay has resulted.</p> <p>2. TVrit of Error — Parties—Assignees of Part of Claim.</p> <p>Plaintiff having transferred onedialf of his cause of action to his attorneys, and the judgment directing payment of same to them, they were properly made defendants in error to a writ sued out by defendant.</p> <p>3. Statement of Facts — Stenographer’s Notes.</p> <p>A statement of facts may properly contain questions and answers from the stenographer’s notes, where necessary to an understanding of the testimony; and will not be struck out as too voluminous where it appears that appellant had prepared a shorter statement which was disapproved by opposite counsel.</p> <p>4. Impeaching One’s Own Witness.</p> <p>While a party can not ordinarily discredit his ovni witness, he may prove facts inconsistent with those stated by such witness, even though this discredit the witness materially, — the rule in civil cases being substantially that authorized in criminal by the Code of Criminal Procedure, article 795.</p> <p>5. Same.</p> <p>A material witness for defendant having stated that he was to receive $900 per day for attending and testifying, defendant should have been permitted to show that it had agreed to pay only the witness' expenses and the reasonable value of his time, though the witness had not been asked to explain his statement.</p>

<p>1. District Court — Jurisdiction—Equity—Amount in Controversy.</p> <p>The district court, by virtue of its power to adjust all the equities between the parties to a suit within its jurisdiction, may determine the amount of claims necessary to such adjustment, though for an amount within the exclusive jurisdiction of the county court.</p> <p>2. Same.</p> <p>The court, in a suit of trespass to try title, having found defendant entitled by contract to remove a house, built by him from the premises recovered by plaintiff, on payment of the amount of a debt which plaintiff had discharged as his surety, had power to determine the amount of such debt, though not an amount within its jurisdiction, for the purpose of settling the equities of the entire case.</p> <p>3. Homestead.</p> <p>Defendant, who had built a house on plaintiff’s land under an agreement giving him the right to remove it on paying a debt which he owed to plaintiff, could not interpose his homestead right to defeat the recovery of the house and premises by plaintiff, without paying such claim.</p>

<p>1. Railway — Station—Duty to One Meeting Passenger.</p> <p>One going to a station at night to meet a relative arriving by train was not a trespasser on the station platform, and the company owed to such person the duty of ordinary care with regard to its proper construction and light.</p> <p>8. Same — Station Mot Abandoned.</p> <p>A station at a small village was not abandoned by a railway company, so as to relieve it from duty with reference to lighting and safety of platform, where, though it ceased to maintain an agent and sell tickets there, tickets were sold to such point and its passenger trains regularly stopped there.</p>

<p>Public Park — Destruction of Shade Trees — Who May Enjoin.</p> <p>Injunction can not be maintained against cutting down shade trees in a public park, by one who, though a resident of the town, shows no damage therefrom to his own property, nor any save such as is common with the public.</p>

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

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

<p>1. life Insurance — Reinstatement—Waiver.</p> <p>Where, after a member of a life insurance company had become delinquent, the company received a payment from him and gave a receipt therefor which was conditioned on the back that "said member is now and has been during the past twelve months in continuous good health,” this was a waiver of the "satisfactory evidence” of such good health upon which, under the by-laws, the executive committee was authorized to reinstate a delinquent member.</p> <p>2. Same — Statements and Evidence as to Health.</p> <p>Where the questions to and statements by an applicant for life insurance in relation to his health are in such terms as to include the most trivial ailments or injuries, they should be interpreted as referring only to such illness or injuries as affect the risk to be assumed, unless they are in words which exclude such interpretation. See the opinion for case where it should have been left to the jury to determine whether certain attacks of bilious sickness were such as to come within the conditions of the policy.</p>

<p>Mutual Benefit Insurance — Changes Held Binding.</p> <p>In his application for membership in a mutual benefit life insurance society, the insured agreed to conform to its existing laws, rules, and usages, and to such as might thereafter be adopted, and the by-laws were thereafter amended so as to decrease the amount of the benefit certificate and also of the dues, with a proviso that members admitted prior to a certain date, to which class insured belonged, might by written declaration of such election remain under the old plan; and the insured failed to make such declaration. Held, that he was bound by the change, and that his beneficiary had no vested right in the certificate that could not be affected by such change in the by-laws.</p>

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

<p>1. Subrogation — Promissory Note — Indorsement—Agency.</p> <p>Where plaintiff was entitled to the benefit of the note sued on by virtue of subrogation, it was not necessary for him to prove the authority of the agent who indorsed it to him for the owner,</p> <p>2. Payment — Trust—Vendor’s Lien Notes.</p> <p>Vendor’s lien notes received on sales of parcels of mortgaged property, which were set apart as a fund for the payment of the mortgage by the joint vendors, who divided the remainder of the land between them, did not become a trust fund so as to entitle one who acquired an interest in the parcel of land set apart to one of the vendors, to insist that a purchaser of such notes at a discount from both vendors after such interest was acquired, and who knew the facts, shall apply the face value thereof to the payment of the mortgage in exoneration of such parcel, where they were not actually appropriated or deposited to be applied on the mortgage, and the terms of sale contemplated only the application of the purchase price to the mortgage.</p> <p>3. Evidence — Notice to Produce — Presumption.</p> <p>Where no notice to produce a written agreement has been given to a party, no unfavorable presumption is to be indulged against him because of it® nonproduction.</p>

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

<p>1. Damages for Mental Suffering Alone — Railway Company.</p> <p>A railway company is liable to a passenger for mental suSering unaccompanied by a physical pain, caused by vulgar, profane, and indecent language of others permitted to remain on the cars with the passenger.</p> <p>2. Railway and Sleeping Car Companies as Joint Tort Feasors.</p> <p>A railway company and the Pullman Palace Car Company being joint tort feasors, may be joined in a suit for mental suffering to a passenger in a sleeping car attached to the railway company’s train, caused by the language of drunken persons permitted to enter and remain in such car, and since the sleeping car is under the control of the train conductor, the railway company is not entitled to recover over against its defendant.</p>

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

<p>1. Declarations of Testator — Undue Influence.</p> <p>Declarations of a testator as to his testamentary intention, whether made before or after, or at the time of making, a will, are admissible on the issue of undue influence, as well as that of testamentary capacity.</p> <p>2. Burden of Proof — Execution of Will.</p> <p>The burden of proof as to undue influence exercised in procuring the execution of a will is upon the party alleging such influence.</p> <p>3. Will — Undue Influence.</p> <p>Undue influence, in order to vitiate a will, must amount to moral coercion, and be such as constrains the testator to do what is against his purpose and desire. . See the opinion for facts held not to show that the testator was unduly influenced.</p>

<p>1. Action to Remove Cloud, from Title — Cancellation of Deed by Executor.</p> <p>An executor may maintain an action to cancel Ms testator’s deed as a cloud upon title on the ground that the conveyance of the land was never consummated because there was no delivery of the deed, and the pretended grantee never accepted the conveyance or acqmred possession of the land, although the deed was intended for the purpose of defrauding the grantor’s creditors.</p> <p>3. Same — Evidence Beyond Common Source.</p> <p>The admission of evidence of the common grantor’s title beyond the- common source is not prejudicial error in an action by an executor to cancel Ms testator’s deed for want of delivery and of its acceptance by the grantee, where the pivotal issue in the case was as to such delivery and acceptance.</p> <p>3. Same — Declarations of Deceased Grantor.</p> <p>Declarations of the testator that he executed a deed to his nephew in order to cover the property up from the holders of notes on which he was surety for the time being, and that it might not become necessary to give the property to his nephew, are admissible in an action by the executor to cancel the deed as a cloud upon title on the ground that there was no delivery of the deed and no intention that title should thereby be passed.</p> <p>4. Evidence — Transactions with Decedent.</p> <p>A grantee is incompetent, under Revised Statutes, article 2302, to testify, in an action against him by the executor of the grantor to avoid a deed for want of delivery and of acceptance by the grantee, that in reply to a letter from the grantor he stated he would accept the latter’s offer to deed him the property.</p> <p>5. Deed — Acceptance—Presumption.</p> <p>The acceptance by a grantee of a deed will not be presumed where the evidence makes it a doubtful issue of fact.</p> <p>6. Same — Recording Is Not Delivery.</p> <p>The recording of a deed on the suggestion of a notary, without the knowledge or consent of the grantor, is not the latter’s act, and will not be given the effect of a delivery of the deed.</p> <p>7. Judgment for Land in Suit to Remove Cloud from Title.</p> <p>A judgment awarding a recovery of real property is authorized under a petition to cancel a deed and remove a cloud, to quiet title and for general relief, where in the answer an affirmative claim to title is set up and a recovery of the land is sought thereunder.</p>

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

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

<p>1. Usury — Exchange Added.</p> <p>A stipulation for cost of exchange does not render usurious a note calling for the highest legal rate of interest, where the payee resides at a distance from the place of payment, and there is nothing to show that such stipulation was made to avoid the usury laws.</p> <p>2. Same — Commissions to Agent.</p> <p>Commissions paid to an agent for securing a loan do not render the transactions usurious where the one to whom they are paid is the agent of the borrower.</p> <p>3. Same — Attorney Eees.</p> <p>A note bearing the highest legal rate of interest is not rendered usurious by a provision for 10 per cent attorney fees, where the full amount so provided for went to the attorneys for making the collection.</p> <p>4. Bes Judicata — Injunction Suit — Usury.</p> <p>A judgment denying plaintiff an injunction restraining a trustee from selling property under a trust deed on the ground that the note secured by it was usurious, is a bar to an action to recover the usurious amount involved, and which was paid after the injunction was denied.</p>

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

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

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

<p>Appeal from Matagorda. Tried below before Hon. Wells Thompson.</p>

<p>Appeal from Refugio. Tried below before Hon. James O. Wilson.</p>

<p>1. Superior Title — Vendor’s Lien.</p> <p>Where a deed of land recites that notes are given for an unpaid part of the purchase money, and the notes also so recite, but neither in the deed nor in the notes is there any express statement that the vendor’s lien is reserved, the superior title and right of rescission does not remain in the vendor, and he has only an equitable vendor’s lien.</p> <p>2. Equitable Vendor’s Lien — Extending Note.</p> <p>Where notes carrying an equitable vendor’s lien because given for land are extended by written acknowledgment of the maker, such lien is thereby also preserved.</p> <p>3. Same — Acknowledgment by Wife.</p> <p>Where land was deeded to a husband and wife, and in part consideration therefor they gave their joint note, and afterwards the husband died and the wife married again, her subsequent written acknowledgment extending the note preserved the debt as against her community half interest in the land, but not as against the interest of the husband inherited by her children as his heirs.</p>

<p>1. Citation in Suit Against Foreign Corporation — Service and Return.</p> <p>Where, in an action against a foreign corporation, the petition alleges that the defendant has an office and a local agent, naming him, in the county where the suit is brought, a return of the sheriff on the citation stating that he had served it by delivering a copy of the writ to such local agent in person, is sufficient.</p> <p>2. Judgment by Default.</p> <p>A judgment by default admits all the facts in the petition well pleaded, but the petition must show a cause of action good upon general demurrer to support a judgment by default on appeal.</p> <p>3. Pleading — Allegation of Conclusion — Usury.</p> <p>Allegations that the requirement by defendant building and loan association of plaintiff, who was wishing to borrow money, that he should take a certain amount of its stock, and its further requirements as to dues and payments thereon, were but a device to avoid the usury laws, will not support a judgment by default for the recovery, as usury, of money paid on such stock, where the further and specific-allegations in reference to such payments show that the usury law was not violated..</p> <p>4. Building and Loan Association — Usury.</p> <p>If the contract between the borrowing member and the association, as made, is not usurious, the fact that a settlement before maturity of the stock by applying its then value to the extinguishment of the debt may show that more has been paid tnan the loan would amount to with lawful interest, would not render it so.</p>

<p>1. Landlord’s Lien — Contract Not Waiving.</p> <p>Where a lease contract stipulated that the lessees should pay a certain money rent per acre for the land, and that the cotton to be raised thereon should be sold at the most profitable market and the lessor’s part be paid over to the person he might direct it to be paid to, and that the lessor should have a lien on all the crops to secure the rent, this did not divest the lessor of his lien, nor empower the lessee to sell the cotton free of the lien.</p> <p>2. Venue — Joint Defendants.</p> <p>The contract of one or more defendants to be sued in a county other than that of their residence does not bind another defendant who was not a party to the agreement; and the rule is applied though he signed the agreement, where he is not sued upon the agreement but upon a different liability growing out of a conversion.</p> <p>3. Practice on Appeal — Cross-Assignment.</p> <p>Where the judgment below was in defendant's favor, but upon an erroneous ground, it can not be affirmed upon his cross-assignment that his plea of privilege to be sued in another county was erroneously stricken out, the facts of such plea not having been heard and their truth shown.</p>

<p>1. Release of Damages Avoided for Mistake.</p> <p>A release of all damages for personal injuries resulting from the derailment of a train, given for valuable consideration and without fraud, may be avoided on the ground of mistake where it subsequently develops that there were other and much more serious injuries that were not known or considered at the time of the release.</p> <p>2. Same — Amount Paid Not Refunded — No Tender.</p> <p>Where, in consideration of a certain sum allowed for a specific personal injury, the injured person executes a release of all damages, and afterwards discovers that there were other and more serious injuries, he can retain the sum so paid him and sue for the part of his claim it was not intended-to discharge".</p> <p>3. Same — Measure of Proof — Charge.</p> <p>A charge imposing on one seeking to set aside a release the burden of establishing the facts that would avoid it by “clear and satisfactory proof,” is erroneous.</p> <p>4. Carriers of Passengers — Degree of Care.</p> <p>Carriers of passengers are not required to exercise the “utmost degree of care,” but only that high degree of care which very cautious and prudent persons would exercise under like circumstances.</p>

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

<p>Appeal from Anderson. Tried below before Hon. J. Gordon Bussell.</p>

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

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

<p>Building Contract — Alteration—Discharge of Surety.</p> <p>Where, in a contract for the erection of a three-story building, alterations were allowable, and by a supplemental contract, over the protest of the surety on the contractor’s bond, a fourth story was added, this alteration, changing the identity oi the work, not being such as was originally in the contemplation of the parties, discharged the surety.</p>

<p>1. Justice Court — Jurisdiction—Amount.</p> <p>Where, in an action commenced in the Justice Court, a replevy bond was in part sued on and was attached as an exhibit, showing the value of the property levied on to be $110, this was sufficient to show a right of appeal to the County Court and to the Court of Civil Appeals.</p> <p>2. Same — Replevy Bond.</p> <p>An action for the value of property # taken under a replevy bond was properly brought in the justice court where, though the bond was in the sum of $220, such value and amount claimed was $110.</p> <p>3. Replevy Bond — Action Dismissed.</p> <p>A replevy bond given by the defendant in a distress proceeding which is after-wards dismissed by the plaintiff, thereupon becomes functus officio, and plaintiff can not maintain an action thereon.</p>

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

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

<p>1. Injunction to Prevent Removal of House.</p> <p>Where land was conveyed to school trustees to hold for school purposes, and was afterwards abandoned as to such use, an injunction will not be denied to one owning the reversion of the land to prevent the removal óf the schoolhouse on the ground that he had an adequate legal remedy by sequestration. Rev. Stats., art. 2989.</p> <p>3. Evidence — Declarations Against Interest.</p> <p>Declarations by a grantor to his grantee at the time of the conveyance of the land, that he claims no interest in a schoolhouse situated thereon, and that it will not revert, though it should cease to be used for school purposes, are admissible in an action brought by such grantee against a subsequent purchaser of the house from the school trustees to enjoin its removal.</p> <p>3. Practice — Jury Taking Out Depositions — Affidavit.</p> <p>Where an affidavit has been read in evidence as the testimony of a witness, it Is to be regarded as the deposition of the witness within the meaning of the statute forbidding that the jury shall take with them the depositions of witnesses upon their retirement. Rev. Stats., art. 1303.</p> <p>4. Evidence — Parol Hot Varying Deed.</p> <p>A deed conveying land to school trustees, together with “the rights and improvements thereto belonging,” upon condition that it should continue to be used for school purposes, is not varied by evidence of a collateral paroi agreement that a house to be subsequently erected thereon, should remain the property of the school district, although the land should revert because abandoned as to use for school purposes.</p> <p>5. Deed With Condition — Reversion.</p> <p>Where land is conveyed to school trustees to hold so long as it shall be used for school purposes, this is a grant upon a constitutional limitation, and not upon a condition subsequent.</p>

<p>1. Pleading — Personal Injuries — Allegata and Probata.</p> <p>In an action for personal injuries, under an allegation that plaintiff’s back was sprained, proof of injury to the kidneys and bladder is not admissible.</p> <p>12. Railway Companies — Stipulations Against Liability Invalid.</p> <p>Since the Constitution (article 10, section 2) declares all railway companies common carriers, and the statute (Revised Statutes, article 319) provides that the duties and liabilities of carriers in this State shall be the same as at common law, and also (article 320) that railway companies shall not in any manner whatever limit or restrict their liability as it exists at common law, a railway company can not, by a release taken in advance and in consideration of permitting one to be carried as a passenger on a freight train, exempt itself from liability for damages resulting from its own negligence.</p> <p>3. Same — Common Carriers — Rule of Common Law.</p> <p>The rule at common law is that a common carrier can not stipulate for exemption from liability for the negligence of himself or his servants.</p>

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

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

<p>1. Chattel Mortgage — Sequestration—Creditors.</p> <p>As assignee of a chattel mortgage who, having sued the mortgagors and an attaching creditor, sequestered the property and paid off the attaching creditor whose lien was adjudged the prior one, is not a mere volunteer or meddler as regards attaching creditors subsequent to the assignment of the mortgage, and is entitled to relief as against them though his mortgage be not duly registered.</p> <p>2. Same — Paying Off Prior Lien — Reimbursement.</p> <p>Where the holder of a chattel mortgage has sequestered the property and paid off the claim of an attaching creditor adjudged to have the prior lien, he is entitled, as against subsequent creditors, and though his mortgage be defective as to registry, to be reimbursed to the extent of such prior incumbrance discharged by him before he can be required to account for the value of the property he has so taken by sequestration.</p> <p>3. Same — Change of Possession as Against Creditors.</p> <p>Though the statute requires that a chattel mortgage, to be valid as against creditors of the grantor, shall, unless filed forthwith for record, be accompanied by an immediate delivery of the property and change of actual possession, yet such delivery and change of possession is effectual against subsequent attaching creditors if made at any time before their rights accrue. Rev. Stats., art. 3328.</p> <p>4. Same — Actual Possession of Range Cattle.</p> <p>Cattle subject to a chattel mortgage having been seized under attachment by a range levy, the mortgagee replevied them by delivering a replevy bond to the sheriff and leaving the cattle in charge of parties to look after for him, they being in a range pasture with other cattle he owned. Held, a delivery and change of actual possession within the meaning of the chattel mortgage act. Holloway v. Cabell, 3 Texas Civil Appeals, distinguished.</p>

<p>1. Office of Sheriff — Vacancy by Death of Sheriff-Elect.</p> <p>The death of a sheriff-elect before receiving notice of his election, but after the term of his predecessor had expired, creates a vacancy which the commissioners court is authorized by section 23, article 5, of the Constitution to fill by appointment until the next general election.</p> <p>2. Office — Vacancy.</p> <p>The death of one who has been elected and is entitled to hold an office creates a vacancy therein, and such vacancy may be constructive as well as actual.</p> <p>3. Same — Surrender of Office to Appointee.</p> <p>Where plaintiff was sheriff, and at the expiration of his term voluntarily turned over the office to one appointed sheriff by the commissioners court, he will be treated as having abandoned and surrendered the office. Hunter, Associate Justice, dissenting.</p>

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

<p>1. Judicial Notice of Survey Within Railroad Land Grant Reservation.</p> <p>Where the proof showed the survey of land in controversy to be 11 miles N. 42° W. from the county seat of Mitchell County, the court could take judicial notice that it was within the Memphis, El Paso & Pacific reservation as defined by the Act of May 2, 1873.</p> <p>2. Survey Within Railroad Reservation Void, When.</p> <p>The location in July, 1873, within the limits of the Memphis, El Paso & Pacific land grant reservation, of a land certificate issued to the Houston & Texas Central Railway Company, was void and conferred no rights.</p> <p>3. Public Domain — State School Lands — Lease.</p> <p>Lands illegally located by railway companies within the Memphis, El Paso & Pacific reservation reverted to the public school fund under the constitutional provision (article 7, section 2) setting apart one-half the public domain for the public free school fund, and a lease of such land by the Commissioner of the General Land Office conferred a right superior to that of parties actually settled on the land, but without other right than that of possession.</p>

<p>Appeal from Jones. Tried below before Hon. N. R. Lindsey.</p>

<p>1. County Bonds — Innocent Purchaser — Notice.</p> <p>A purchaser of county bonds must know that the Commissioners Court had authority in law to issue them, and is held to have looked to the order of the court by authority of which they were issued to see that it authorized their issuance for the purpose imported on their face. Following Mitchell County v. Bank, 91 Texas, 361.</p> <p>2. Same.</p> <p>Where county bonds purported on their face to be issued for a courthouse, but were in fact issued for a jail, contrary to law, and the order of court for their issuance disclosed the illegal purpose, a subsequent purchaser of the bonds was thereby charged with constructive notice of their illegality.</p> <p>3. Same — Bonds Void in Part.</p> <p>Where a county contracted with a firm for the concurrent erection of a courthouse and a jail, to be paid for in county bonds, but without authority so to do as regarded the jail, the price of the courthouse and of the jail being separately stated but the bonds for the entire work being issued without reference to that feature, such bonds were void in the proportion that the price of the jail bore to the entire work. Hunter, Associate Justice, dissenting.</p> <p>4. Same — Payments Upon No Estoppel if Bonds Void.</p> <p>Where county bonds are issued for a purpose not authorized by law, payment of interest thereon for several years will not estop the county from asserting their invalidity.</p> <p>5. Same — Payments Are a Ratification, When.</p> <p>Where county bonds are issued for a lawful purpose, but the written order of the Commissioners Court authorizing their issuance is silent as to interest and date of their maturity, the action of the county judge in supplying these when making out and signing the bonds is ratified by that of the county in levying an interest tax and paying interest on the bonds for a number of years.</p> <p>6. Limitations in Pavor of County.</p> <p>Limitation begins to run against a debt due by a county from the date of its ma- - turity, and not from the date when the claim therefor was presented to the Commissioners Court and rejected.</p>

<p>Appeal from Cooke. Tried below before Hon. I). B. Barrett.</p>

<p>1. Fraud and False Representations — Subscription for College.</p> <p>A subscription to a proposed college may be avoided for fraud and deceit where it was procured by false representations — among others, that another person had agreed to give an amount equal to the total amount that should be subscribed, — the one who presented the subscription paper and made the representations knowing them to be untrue, and concealing the heading of the paper from the subscriber by folding it back so that it was not read.</p> <p>Z. Same — Representations as to Future Matters Material.</p> <p>False representations to the effect that a proposed college was to be nonsectarian and named after a certain person are sufficiently material to avoid a subscription procured by virtue thereof, and that they relate to future matters does not affect such consequence.</p>

<p>1. Evidence — Intention.</p> <p>Since, under the statute, parties to the suit and transaction may testify, it is competent for them to state their intentions where the validity of an act in question depends on the intention.</p> <p>2. Deed of Building Carries Ground Upon Which It Stands.</p> <p>A mortgage conveying a building which is a fixture and part of the realty will carry the land upon which it stands unless clearly severed therefrom by the terms of the conveyance.</p> <p>3. Deed of Trust for Partnership Creditors — Individual Debts Included. A trust deed of partnership property is not invalid as to accepting partnership</p> <p>creditors because it includes individual creditors among those preferred, but will not be given effect as to such latter creditors.</p> <p>4. Same — Preferring Creditors — Knowledge of Fraud.</p> <p>That a deed of trust preferring certain creditors was made with intent to delay and defraud other creditors, and that this was known to the trustee, will not defeat the deed unless it be further shown that the accepting creditors knew of such fraudulent intent and participated therein.</p> <p>5. Same — Sale to Trustee — Attaching Creditors.</p> <p>Attaching creditors claiming adversely to a trust deed can not have a sale thereunder set aside because made to its trustee.</p> <p>6. Same.</p> <p>Where the property conveyed in a trust deed to secure preferred creditors is of less value than the debts secured thereby, an attaching creditor can not complain of any provision in the deed which would merely tend to delay or hinder unsecured creditors, if the debts secured are just and true and the secured creditors are innocent of any fraud.</p>

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

<p>1. Urban Homestead — Use of Extra Lots.</p> <p>Where one having a homestead in a city buys lots not to be used as a place of residence for himself and family, but to be leased to tenants, and this purpose still exists at the time he executes a deed of trust upon them, the fact that they are occasionally used for the purpose of a vegetable garden, for piling wood thereon, and for ingress and egress to and from the dwelling, will not exempt them from the operation of the deed of trust as part of the homestead.</p> <p>2. Charge of Court — Request for as Estoppel.</p> <p>Appellant is not estopped to complain of an erroneous charge on the ground that it was given at his request, where the facts are that counsel below orally agreed that the court should repeat the charge as given at a former trial, with certain exceptions, and it is not clear as to what parts the exceptions were intended to exclude.</p>

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

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

<p>Appeal from San Saba. Tried below before Hon. M. D. Slator.</p>

<p>1. Mortgage — Deed Absolute.</p> <p>Where plaintiff was in possession of land under a paroi contract of purchase and applied to A. to buy it for him, and A. bought the land, taking an absolute deed thereof to himself, and agreeing with plaintiff that he would make a deed of it to plaintiff when plaintiff paid him for it, this did not constitute the deed to A. a mortgage.</p> <p>2. Parol Sale of Land — Requirements to Pass Title.</p> <p>Payment of the purchase money, valuable improvements made, and possession, must all concur in order to pass the title to land by paroi sale.</p> <p>3. Same — Tender of Unpaid Purchase Money.</p> <p>One claiming land under a paroi contract of purchase is not entitled to a judgment decreeing him the title where he has not tendered into court the purchase money due thereon.</p>

<p>Hiparían Bights — Water Power — Diversion—Prescription.</p> <p>One who for more than ten years diverted the water of a stream to furnish power for his mill, returning it to the channel below the mill of a lower riparian proprietor, acquired by prescription a right to continue such diversion, though it had not prejudicially affected the power of the lower proprietor for the full period of prescription, the stream formerly furnishing sufficient power for both.</p>

Tried below before Hon. A. S. Walker. The action was by V. O. Weed and S. E. Bosengren, as partners, against the International & Great Northern and St. Louis Iron Mountain & Southern Eailway companies. Judgment was rendered for defendants and plaintiffs appealed.

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