Volume 22 — Texas Civil Appeals Reports

<p>1. Evidence—Record—Certified Copy of Deed.</p> <p>Where a part of Liberty County was by Act of the Congress of Texas (1841) created into Menard County, and its name was hy a subsequent act changed to Tyler County, a certificate of true copy of the transcript of a deed recorded in “Vol. A of the deed records of Menard County” was properly made, after the latter act, by the county clerk of Tyler County, and not by the clerk of Liberty County. Rev. Stats. 1879, art. 074.</p> <p>8. Same—Copy of Grant from General Land Office.</p> <p>Where a certified copy from the General Land Office of the original grant or title to a league of land from Coahuila and Texas, containing field notes identifying the land, recites that a plat of the land is attached, an objection to the.admissibility of the copy when offered in evidence because no plat is found attached is not tenable, since the recitals in the copy do not raise the presumption, as against the certificate of true copy, that the plat was in fact attached.</p>

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

<p>1. Railway Company—Degree of Care as to Passengers.</p> <p>It was error for the court to charge that “while railway companies are not insurers of the safety of their passengers, still they are required to use the utmost care and to provide for the safety of their passengers, and the failure to use such care is negligence,” since it is not their duty to provide for the safety of their passengers, but to use the highest degree of care to that end.</p> <p>2. Charge of Court—Reversible Error.</p> <p>An erroneous charge upon a material issue is reversible error where its tendency is misleading and it is not clear that the verdict was not influenced thereby.</p> <p>3. Same—Degree of Care.</p> <p>A charge requiring railway companies to exercise “that high degree of care which any cautious person in this line of business is accustomed to use in similar circumstances to prevent danger,” is subiect to criticism in the use of the word “any.”</p>

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

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

<p>Appeal from the County Court of Washington. Tried below before Hon. E. P. Curry.</p>

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

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

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

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

<p>1. Corporation—Right to Sue—Pleading—Demurrer.</p> <p>Defendants, sued in this State by a corporation doing business in the Indian Territory, can not by exceptions question plaintiff’s right to sue, on the ground that it was chartered in Kentucky with the view of doing business elsewhere, and not in Kentucky, where the "petition alleges only that plaintiff was chartered in Kentucky and was doing business in the Indian Territory.</p> <p>2. Same—Interstate Commerce.</p> <p>A corporation manufacturing goods outside of this State and shipping them into it to commission merchants, to be sold on commission, are'engaged in interstate commerce, and are not subject to article 745, Revised Statutes, requiring a permit.</p> <p>3. Same—Carloads and Broken Lots.</p> <p>Where the manufacturers of flour and feedstuffs, put up in sacks, ship it into this State in car loads to commission merchants, the fact that the latter sell it by the sack does not destroy the interstate character of the business.</p> <p>4. Sureties—Application of Payments.</p> <p>Where defendants, who were commission merchants and had given a bond of $1000 to a milling company to secure payment for goods shipped to them invoicing over $2000, had a settlement with such company by which it was ascertained that they were entitled to credits amounting to nearly one thousand dollars for rebates, commissions, and goods returned, the sureties had no right to have such amount credited upon their liability on the bond.</p> <p>5. Principal and Surety—Admissions of Principal.</p> <p>Where commission merchants were indebted to a milling company upon open account for goods shipped, and at the time of settlement ascertaining the amount due they were doing a commission business under a contract with the company for which their sureties' were bound, their admission, in such settlement, that the amount agreed upon was correct, is competent evidence against the sureties in an action against all parties on the bond.</p>

<p>1. Deed—Executory Contract—Repudiation by Grantee.</p> <p>A deed with only special warranty and reserving a vendor’s ’lien to secure notes given for part of the purchase money evidences an executory contract, and the grantee, upon discovering that the grantor had no title whatever, may repudiate the contract, recover back the money paid, and have.the notes canceled.</p> <p>2. Same—Title Acquired Afterwards.</p> <p>Where, after such repudiation by the grantee, the grantor acquires title to the land by purchase, he can not force its' benefits on the grantee without a hew contract, although the latter’s suit for recovery back and for cancellation of the notes be still pending.</p> <p>3. . Same—Vendor’s Lien Notes—Indorsement.</p> <p>Where such grantor, in purchasing the land he had already sold, indorsed and delivered in part payment therefore the notes reciting a vendor’s lien on the land which he had received from his grantee, he was estopped to claim, as against his vendor, that they were not a lien, nor could he make the defense of a simple indorser, that he was not sued at the first term of court after the cause of action accrued.</p>

<p>1. Anti-Trust Law—Contract Mot Violating the Statute.</p> <p>A contract between a manufacturing company holding a patent right on wire fencing and an individual, giving to the latter the exclusive right to build, weave, and construct wire fences in a specified territory, and which binds the latter to purchase the wire, pickets, and fence machines from such company at fixed prices, is not violative of the anti-trust statute.</p> <p>2. Same—Rescission—Tendering Back Property—Traud.</p> <p>Where defendant seeks a rescission of the contract sued on because of fraud, and tenders back to plaintiff certain property which came into his hands by virtue of the contract, he can not complain that the judgment requires him to return the property so tendered to the plaintiff, even though the contract may have been void under the anti-trust statute.</p> <p>3. Patent Right—Infringement—Damage.</p> <p>Where the patentee of an article conveys the right to sell it in a specified territory, agreeing to protect the purchaser of such right against infringement therein, and fails to protect him against an infringement such as prevents him from being able to make sales, he is entitled to recover from the patentee the value of the time and labor expended by him in trying to make sales.</p>

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

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

<p>Garnishment—Replevy Bond—Sureties Liable for the Judgment in Full.</p> <p>Plaintiff garnished F., and defendant gave a stautory replevin bond, conditioned for the payment of any judgment plaintiff might recover against F. as such garnishee. In the garnishment action plaintiff recovered judgment against F., the garnishee, for $109, the full amount of her debt, neither defendant nor his sureties being parties thereto. In her subsequent action on the replevin bond the sureties pleaded that the garnishee had never owed the defendant anything, and that, when garnished, he had effects of defendant in his hands of the value of only $20, asking that the judgment against them be limited to that amount.. Held, that they were liable for the full amount of the judgment, and that such defensive matter should have been pleaded in the garnishment action.</p>

<p>1. Limitations—Set-off.</p> <p>Where a defendant in an action upon a note pleads- in set-off claims based upon open accounts, the civil law doctrine of compensation, or the extinguishment of mutual debts, can not be invoked, and the plaintiff, though an administrator, may plead limitations against the set-off.</p> <p>2. Same—Filing Suit by Plaintiff Suspends Statute as to Set-off.</p> <p>As against a plea of set-off, where the claim was existing at the time the suit was filed, such filing suspends the statute of limitations, and the set-off will be good although it may be barred, in mere point of time, when the answer setting it up is filed.</p>

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

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

<p>Accident Insurance—Injury “Wholly Disabling.”</p> <p>Where an accident policy provided for indemnity for injuries immediately and wholly disabling and preventing the assured from performing any and every kind of duty pertaining to his occupation, it was error for the court, in an action thereon, to charge that if the injury immediately and continuously disabled and prevented plaintiff from performing any and every kind of duty which was materially essential to his occupation in a manner reasonably as effective as the same would have been performed but for the injury, plaintiff was entitled to recover, since this made partial disability equivalent to total disability. Huntek, Associate Justice, dissenting.</p>

<p>1. Master and Servant—Defective Machinery.</p> <p>Plaintiff, a railway employe, was not guilty of contributory negligence and was entitled to recover against the company despite the rule as to assumed risks, where, being a machinist’s helper, he was directed by- the foreman, at night, to tighten the cap on an engine about ready to start out, and from which cap steam was escaping, and in so doing was injured by reason of the cap blowing off because of defective threads in the screw that held it.</p> <p>2. Same—Repairer’s Risk Not Assumed.</p> <p>The duty which plaintiff was directed to perform was not to repair a defective cap and screw, but merely to tighten the cap, and at a time when the pressure of steam was on.</p> <p>3. Same—Degree of Care.</p> <p>It was not error for the court to charge that "it was the duty of the defendant railway company to use ordinary care to have the engine in question in a reasonably safe condition.”</p>

<p>Appeal from Clay. Tried below before Hon. Richard Morgan.</p>

<p>1. Contract Construed.—Railway—Arrangement for Free Drayage.</p> <p>An agreement between defendant railway and plaintiff that the latter should haul to the depot of the former, for a named price agreed to be paid by it, all freight that local shippers might desire to have transported over its railroad, did not bind defendant to furnish such' hauling to plaintiff unless the shippers selected defendant’s road. Where they shipped by another road to an adjoining town, and there transferred to defendant’s road, plaintiff could not recover for loss of the profits of hauling to defendant’s depot.</p> <p>2. Breach of Labor Contract—Readiness to Perform—Burden of Proof.</p> <p>Plaintiff suing for damages from being denied the right to perform his contract for lucrative service, assumes the burden of showing that he was able and willing to perform his part, ha.d defendant permitted.</p>

<p>1. Action—Agreement to Dismiss.</p> <p>A plaintiff' who has agreed for a valuable consideration to dismiss his suit, can not recover, though it be admitted that his cause of action was good.</p> <p>2. Written Contract—Parol Evidence Not'Objected to.</p> <p>Though the written contract concerning settlement of the matters in litigation contained no agreement by plaintiff to dismiss his suit, where defendant was permitted, without obiection, to prove a paroi agreement to dismiss, such evidence was properly considered, though it added to the written contract.</p> <p>3. Contract by Agent—Proof of Agency.</p> <p>Where defendant’s pleading set up a written contract alleged to have been executed by one plaintiff' as agent also for the others, it was not necessary for defendant to prove the agency, in the absence of a sworn denial.of it.</p> <p>4. Vendor and Vendee—Specific Performance.</p> <p>A vendor is not precluded from enforcing specific performance of an agreement for sale of land by the fact that, after refusal by the vendee to carry out the contract, such vendor had leased the land for a year, subject to the contract of sale.</p> <p>5. Sale of Land—Specific Performance—Failure of Title to Part—Divisible Contract.</p> <p>An agreement for sale of two tracts of land is divisible and may be specifically enforced as to one when title to the other has failed, where the contract showed that vendees had undertaken, in certain contingencies, to purchase less than the whole amount.</p>

<p>Appeal from County Court of Caldwell. Tried below before Hon. Geo. W. Kyser.</p>

<p>Appeal from the County Court of Bell. Tried below before Hon. F. C. Humphries.</p>

Tried below before Hon. J. 0. Woodward. The third assignment of error by appellant J. ~K. Thompson, referred to in the opinion, was as follows: “The court erred in permitting the defendant, Hubbard, to prove by R. M. Thomson, one of the. plaintiffs, that section 146 was originally bought from the State by H. A. Thomson under the Act of 1881; that said Thomson paid the annual interest for some years, and defaulted in the payment of same for some years, and that it was…

<p>1. Benefit Insurance—Dependents—Who Are.</p> <p>Where the by-laws cf a benefit association permitted insurance in favor only of relatives or persons dependent on the member, such benefit could be extended to the members of a family in no way related to him, but with whom he had lived on terms of intimacy and affection, receiving from them board and attention in sickness, and contributing money, supplies, and gifts to them, though before his death he had removed to a distant State, from which he occasionally sent them assistance in money.</p> <p>12. Same.</p> <p>The facts in this case are distinguished from mere payment for board or for services rendered, from discharge of debts already incurred, from mere occasional gifts not intended as contributions towards support, and from the case of beneficiaries having independent means.</p> <p>3. Pleading—Amendment—Abandonment.</p> <p>An amended petition, delivered to the clerk but never actually filed, may be abandoned by plaintiff, relying on the original petition.</p> <p>4. Pleading—Supplemental Petition.</p> <p>Allegations in response to matters pleaded in defendant’s answer may be presented by supplemental petition.</p> <p>5. Demurrer—Waiver.</p> <p>It is too late, after trial, to urge exceptions to plaintiff’s petition.</p> <p>6. Amendment—New Cause of Action.</p> <p>An amendment which merely elaborates the cause of action first asserted is not barred, though filed after the expiration of the period of limitation.</p> <p>7. New Party—Corporation—Voluntary Association.</p> <p>To a suit against an alleged corporation, an amendment which meets a plea of defendant that it is not so incorporated, but is merely a voluntary association, by admitting such fact and continuing the suit against it as such voluntary association, does not implead another and different defendant.</p> <p>8. Immaterial Error.</p> <p>Where defendant denies that it is incorporated and plaintiff then proceeds against it as an unincorporated association, the introduction by plaintiff of a charter of defendant from another State, though irrelevant, need not be taken as prejudicial to defendant.</p> <p>9. Benefit Insurance—Designation of Beneficiaries—Will.</p> <p>A will disposing of a benefit certificate which formed no part of its holder’s estate, and was not a subject of bequest, may constitute a valid written designation of the beneficiaries, in compliance with the requirements of the association.</p>

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

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

<p>1. Anti-Trust Law—Combination by Corporations—Forfeiture of Charter.</p> <p>An agreement between the electric lighting and gas company corporations of a city whereby they are practically placed under one management, and the contracts for public lighting are to be divided among them, and all competitive bidding thereon suppressed, is in violation of the anti-trust law (Revised Statutes, article 5313), and subjects the charters of such corporations to judicial forfeiture at the instance of the State.</p> <p>3. Same—Pleading—Quo Warranto.</p> <p>See the opinion for pleadings on behalf of the State held sufficient, even though it should be the rule that in a proceeding of this character, as being quasi criminal and in the nature of a quo warranta, the pleadings are to be more strictly construed than in ordinary civil suits.</p> <p>3. Same—Combination Inhibited Though Prices Not Raised.</p> <p>Where the object of the combination is in restraint of trade and its effect to create a monopoly, it is no defense that there was no bad motive, and that the immediate result was a ¡reduction of prices.</p> <p>4. Same—Evidence—Conspiracy.</p> <p>A conspiracy may be proved by circumstances, such as obtaining the passage of a city ordinance tending to carry it out.</p> <p>5. Same—Same—Conspirator Need Not Be Alleged Such.</p> <p>Where the evidence shows a person to have been a conspirator, his acts and declarations in furtherance of the common design are admissible in evidence, although the pleadings do not allege him to be a conspirator.</p> <p>6. Same—Appointment of Receiver for Corporation Without Application.</p> <p>Under the statute the court may, where the charter of a quasi public corporation has been forfeited by its judgment at the instance of the State, appoint a receiver for it without application therefor by anyone interested in the property. Act of April 2, 1897, sec. 3 (Sayles’-Civ. Stats., art. 1465).</p> <p>7. Same—Statutes Construed.</p> <p>Where the charter of a corporation has been forfeited by judgment of court, it is only in case the court has failed to appoint a receiver that article 682 of the Revised Statutes will apply, malting the president and directors its trustees and authorizing them to take possession of its property.</p>

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

<p>1. Practice on Appeal—Bill of Exceptions—Presumption.</p> <p>Where a bill of exceptions to the action of the trial court in refusing to submit a case to the jury upon special issues does not disclose at what stage of the trial the submission was requested, it will be presumed that the request came after the court had already submitted the case.</p> <p>3. Charge—Harmless Error.</p> <p>Appellant can not complain that a given paragraph of the trial court’s charge presented an issue not raised by the evidence, where that issue was one that operated in appellant’s favor.</p> <p>3. Same—Definition of Statutory Terms—Request Necessary.</p> <p>An assignment of error to the failure of the charge to define what was intended by the words of the statute, “control, command, and direction,” in the law as to fellow servants, is not well taken where there was no request for more explicit instruction on that point.</p> <p>4. Assignment of Error—Evidence—Opinion.</p> <p>An assignment of error to the testimony of certain witnesses as to the rate of speed a freight-train could be safely run over the track in question, as being mere opinion, is not well taken where it does not bring into question the qualifications of the witnesses to speak on the subject.</p> <p>5. Evidence—Opinion—Expertness Not Requisite.</p> <p>It does not require an expert to testify that there are steep grades and a sharp curve in a railroad track at certain places, as these are matters of fact and not of opinion.</p> <p>6. Same—Action for Death—Son Supporting Father.</p> <p>Evidence that a married son contributed a given sum monthly to the support of his mother, with whom his father and others of the children resided, warrants a verdict in the father’s favor for the son’s death, as showing that the son contributed to his support, and that he had reasonable expectations that this would be continued.</p>

<p>1. Expert Witness—Railway Employes.</p> <p>It is not error to admit the opinion of witnesses as to the safety or danger in using blocked and unblocked switches, where they have been for many years in the service of railroads, and engaged in branches thereof where they would be acquainted with the manner of constructing and using frogs and switches.</p> <p>2. Master and Servant—Railway Company—Warning Inexperienced Switchman.</p> <p>Where a railway knows, through its yardmaster, that one employed as a switchman is inexperienced, the duty is devolved upon it to warn him of the particular dangers of his employment, and this duty is not dependent upon any request by the servant.</p> <p>3. Same—Knowledge of Danger.</p> <p>That a switchman knew merely that the guardrails and frogs were unblocked will not preclude a recovery for his death from being caught therein if he did not know the danger of their use.</p> <p>4. Damages for Death—Community Property.</p> <p>Damages recovered jointly by the parents for the death of a child, being community property, need not be apportioned as between the plaintiffs.</p> <p>5. Same—Parent and Child.</p> <p>The measure of damages in an action by parents for the death of their son is a sum equal to the pecuniary benefits they had a reasonable expectancy of receiving from him, and the jury, in estimating such sum, can not be held to mathematical certainty by statistics or calculations of life expectancies. A verdict for $5000 in this case held not excessive.</p>

<p>1. City—Liability for Arrest Made Under Ordinance.</p> <p>Since a city, in the enactment of an ordinance against suspicious characters, acts in its governmental capacity and in the exercise of its police powers, it will not be liable for damages to the reputation of one arrested, fined, and imprisoned under such an ordinance, even though the ordinance be void; and the motives of the mayor and city council in enacting the ordinance have no effect upon the rule.</p> <p>3. Same—Damages Reduced Below Court’s Jurisdiction.</p> <p>Where, in an action brought in the District Court against a city because of an arrest under a city ordinance, claiming damages to reputation and for actual expenses and for recovery of a fine, the city is held not liable for the damages to reputation, and the amounts of the other items is a sum not within the court’s jurisdiction, the suit is properly dismissed.</p>

<p>1. Injunction—Water Bights.</p> <p>Plaintiff having leased lands traversed by a ditch which was taken out from a creek several miles above the land, was not entitled to have abated, by injunction, a dam built across the creek a mile above his land and prior to the lease, where his petition did not show that the dam had caused any interference with the flow of water in the ditch.</p> <p>3. Same—Agreement Affording No Ground for Injunction.</p> <p>An agreement with plaintiff by defendant, the owner of the dam, admitting plaintiff’s right to a sufficient flow of water down the ditch for his use could afford plaintiff no ground to have the dam abated by injunction.</p>

<p>1. Municipal Corporation—Liability for Depositing Garbage—Nuisance.</p> <p>A city is liable for the action of private scavengers licensed by it and acting under the direct control and authority of its superintendent of scavengers in making deposits of garbage on and near the property of a citizen.</p> <p>2. Same—Notice to Mayor.</p> <p>It was competent to prove that the mayor knew of the nuisance that existed on the premises of plaintiff, since notice to him was notice to the city.</p> <p>3. Same—Injury Not Permanent.</p> <p>Where the deposit of garbage on land causes no permanent injury to the soil, and there is no evidence that the odors created by it will be permanent, no recovery can be had for loss on the ground of permanent injury to the property.</p> <p>4. Same—Measure of Damages.</p> <p>The measure of damages for injury caused by depositing garbage on land, such injury not being permanent in character, is the difference in the rental value of the property with and without the nuisance, with any incidental damages such as the cost of removing the nuisance, and of taking care of the premises when not rented because of its existence there.</p> <p>5. Nuisance—Evidence of Damage Too Speculative.</p> <p>The opinion of a witness as to permanent depreciation in the value of land resulting from a nuisance thereon, based on the theory that the locality had lagged in the race for value while the nuisance was in existence, is too speculative.</p>

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

<p>1. Charge of Court—Harmless Error.</p> <p>Error in the charge as being upon the weight of evidence as to a given issue is immaterial where the evidence would not have warranted any other finding as to that issue.</p> <p>2. Deed—Delivery.</p> <p>Where a deed was delivered by the grantor to the grantee and was given by him to another person to have it recorded, the facts that, for some unexplained reason, it was not recorded and was handed back by the grantee to the grantor, his brother, for safe keeping, will not defeat the delivery.</p> <p>3. Notice by Possession.</p> <p>Actual possession of land by one owning an undivided interest therein by a deed not recorded is notice of his title to subsequent purchasers of the land.</p>

<p>1. Parties—Action Against Counties—Joinder—Jurisdiction.</p> <p>Where plaintiff sued a parent county in the District Court for interest due on its county bonds, for which two other counties, formed out of it, would be liable over to it for a pro rata part, such other counties were properly made parties defendant, .and the court had jurisdiction over them to settle the entire controversy in one action. Rev. Stats., art 764.</p> <p>8. Counties—County Bonds—Illegal Removal of County Seat Not "Vitiating.</p> <p>A county can not deny the liability on its courthouse bonds in the hands of bona fide holders on the ground of illegality in the election by which the county site was established, where it has maintained all its courts and county offices at such county site (where the courthouse was built), ever since such election (in 1886); and under the constitutional and statutory provisions making new counties formed out of an older -one liable for a pro rata share of its then existing indebtedness, the parent county may recover over against them their proportionate share of indebtedness due -on such bonds. Const., art. 9, sec. 2; Rev. Stats., art. 764.</p>

<p>1. Trespass to Try Title—Costs.</p> <p>Where the defendant in trespass to try title files a general denial and does not disclaim as to any of the land sued for, he is properly taxed with all costs, although the judgment is in his favor for a part of the land which is claimed by him as a homestead.</p> <p>. .2. Homestead—Deed of Trust—Mistake.</p> <p>Where defendant executed a deed of trust on certain lands under an agreement that his homestead of 200 acres was not to be included, but through fraud or mistake and without his knowledge it was included, a judgment in his favor for the homestead tract was warranted by proof of such facts.</p>

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

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

<p>1. Railway Switchman—Failure to Observe Defects in Track.</p> <p>Where the evidence showed that a switchman was walking beside a moving train in the switch yards, looking to the foreman for the signal to cut it, and upon getting the signal stepped in between the ears to uncouple them, and by reason of a hole or uneven surface there was caused to fall beneath the cars, it could not be said as matter of law that he must have known of the defective condition of the track had he exercised ordinary care, his regular work being in another part of the yard, and he having never before walked over the path where the injury occurred.</p> <p>2. Damages for Personal Injuries—Double Recovery.</p> <p>In an action for personal injuries a charge is not erroneous as permitting the jury to allow damages twice for diminished capacity to earn money because it instructs' that in estimating the damages they might consider the value of the time lost during the period of disability, and also the probable effect of the injuries on plaintiff’s physical condition and his ability to earn money.</p> <p>3. Same—Verdict Not Excessive.</p> <p>A verdict of $10,000 is not excessive in the case of a railway switchman, a strong, healthy man, earning $1080 a year, with a life expectancy of 33 years, where the injuries caused severe and protracted suffering! and the amputation of a leg above the knee, and he is rendered unable to support himself.</p> <p>4. Ordinary Care—Switchman—Condition of Track—Assumed Risk.</p> <p>A charge that if plaintiff, a .yard switchman, by the exercise of ordinary care could have discovered the defective condition of the track where he was injured, he assumed the risk of doing the work there, is properly refused, as plaintiff had the right to assume that the track was in a reasonably safe condition.</p>

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

<p>1. Continuance—Witness to Prove Market Value.</p> <p>Where an application for first continuance shows due diligence and the materiality of the testimony of the witness, which was to prove the market value of an animal, it was error to overrule it on the ground that the witness had been produced at a former trial and had failed to qualify himself to testify as to such market value.</p> <p>2. Evidence—Killing of Animal by Train.</p> <p>Where, in an action for the value of a jack charge.d to have been killed by a railway engine, the defendant claimed it was put on the railroad track, because its head was cut off between the eyes' and ears, it was error to permit a witness for plaintiff to testify that he had once seen a horse on one side of a railroad and its head on the other, but did not know what killed it.</p> <p>3. Interest on Value of Animal Killed.</p> <p>In an action for the value of an animal killed by a railway engine, plaintiff is not entitled to interest on such value from the date of the killing. Railway v. Dunman, 6 Texas Civil Appeals, 101, disapproved.</p>

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

<p>1. Practice on Appeal—Conflicting Evidence.</p> <p>In a case tried below without a jury, though the conflicting evidence was chiefly by deposition, yet the trial judge’s findings thereon will not be disturbed unless the great preponderance and weight of the evidence makes it manifest that his decision was wrong.</p> <p>2. Notice—Possession—Homestead.</p> <p>That parties who have sold and conveyed a house and lot continue in possession thereafter, using it as a place of residence, is not notice to a broker negotiating the sale of a note, taken by them for the property and reserving a vendor’s lien thereon, that they still claimed to own the property as being their homestead.</p> <p>3. Innocent Purchaser—Vendor’s Lien Note—Homestead.</p> <p>One who’ purchases a negotiable vendor’s lien note before maturity, for value and without notice, is protected against a claim to have the enforcement of its lien denied on the ground that the property was homestead, and the sale thereof, for which the note was given, but a sham and device to borrow money thereon.</p>

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

<p>Bailway Company—Negligence of Shipper in Loading Cars.</p> <p>Where a shipper, in loading a car belonging to a connecting line, but which defendant company had placed on its switch track for the convenience of the shipper in so doing, was guilty of negligence causing plaintiff’s injuries, the defendant was not liable therefor, since, as the statute authorizes railroad companies to commit the loading of cars to shippers, it can make no difference that the car so to be loaded belongs to a different company.</p>

<p>Xife Insurance Policy—False ¡Representations by Agent.</p> <p>An insurance company issued to plaintiff a ten-years policy on his life, known as the “free tontine policy,” guaranteeing to pay at its expiration a fixed amount as “reserve,” and an amount as “accumulated surplus” estimate at $1765, this estimate being based on the past experience of the company with such policies, the exact amount of such surplus not being guaranteed, but to be dependent on the company’s future experience with • such policies, then a new kind, and upon variable conditions as to the rate of mortality, etc. The amount of surplus paid plaintiff being only $960, he sued the company for the difference between this sum and the estimated amount of $1765, on the ground that the company’s agent had falsely represented that matter. The evidence showed merely that the agent had, over his own signature, furnished plaintiff with the printed statements and estimates of the company, as above indicated, and it was not controverted that $960 was the true amount of the accumulated surplus. Held, that the statements as to the amount of the surplus were matters of estimate and opinion only, and that as the evidence was not sufficient to raise an issue of intentional fraud or deceit, a verdict was properly instructed for the defendant.</p>

<p>1. Joinder of Counts and Parties in Action for Libel.</p> <p>Two or more causes of action for separate and distinct libels may be embraced in one suit, if they be set up in complete and distinct counts, are common to all the defendants sued, and such as may be enforced against each of them.</p> <p>2. Same—Misjoinder.</p> <p>Where one count of a petition charges certain defendants with publishing a libel in a newspaper on a given date, and another count charges other defendants with circulating libelous matter by writing and sending a telegram on a different date, there is a misjoinder both of parties and causes of action.</p> <p>3. Misjoinder—Practice.</p> <p>The proper practice is to raise the question o£ misjoinder of parties and causes of action, when it appears on the face of the pleadings, by exception, and to determine it in limine, without waiting for the party to develop his case by the evidence before requiring him to elect.</p>

<p>1. Divorce—Alimony After Decree Entered.</p> <p>In an action for divorce by the wife in which it was shown that there was no common property, the husband owning what there was, the court granted the divorce and gave the wife judgment for $800, making it a charge on the husband’s land. Held, that the latter provision was unauthorized because, (1) the court having already sustained exception’s to the wife’s plea asking for permanent alimony, there was no pleading to sustain it; (2) a judgment for permanent alimony after divorce granted is not authorized by the statutes of this State. Following Pope v. Pope, 13 Texas Civil Appeals, 99.</p> <p>2. Same—Prospect of Child Being Born.</p> <p>Testimony to the effect that the wife was probably enceinte at the time the divorce was granted will not warrant a money judgment in her favor in the nature of permanent alimony.</p>

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

<p>1. Appeal from Justice to County Court—Pleading New Blatter.</p> <p>Where, on appeal from the justice to the county court by certiorari, sequestration proceedings had in the justice court were quashed and dismissed, plaintiff was not then entitled to then plead that the sureties on the replevin bond had converted the property, as this would be setting up a new cause of action. Rev. Stats., art. 358.</p> <p>2. Sequestration—Liability of Sureties on Replevin Bond.</p> <p>Where sequestration proceedings are quashed and dismissed because of defects in the affidavit and bond, no recovery can be had against the sureties on defendant’s replevin bond.</p>

<p>1. Damages—Diminished Capacity to Barn Money—Charge.</p> <p>In an action by a mail clerk against a railway company for personal injuries, wherein plaintiff testified that he contemplated quitting the mail service to practice medicine, it was not error for the court to refuse to charge the jury that they would not be warranted in allowing plaintiff damages for any amount of money that might have been earned by him in the mail service business subsequent to the time he intended to leave it, since he was entitled to recover for his incapacity to earn money in any avocation he might pursue in the future.</p> <p>2. Bailway Company—Mail Clerk Is a Passenger.</p> <p>A clerk in the mail car of a railway train is a passenger, and is entitled to the care incumbent on the carrier as such.</p> <p>3. Same—Negligence—Coupling Cars—Notice.</p> <p>Where cars were equipped with springs that were new and stiff and therefore required unusual force to be used in coupling them, a railway mail clerk, at work in his car while the train was being made up, was not chargeable with negligence in not having anticipated and guarded against the unusual force of the shock in making a coupling, he not having been notified that more than ordinary force would be requisite.</p>

<p>1. Clerk of Court May Receive Money in Satisfaction of a Judgment.</p> <p>The clerk of the district court has authority in his official capacity to receive money in satisfaction of a judgment of his court.</p> <p>2. Motion Against Clerk—Payment Over of Money to Assignee of Judgment.</p> <p>Where money has been paid to the clerk of the court in satisfaction of a judgment, an assignee of the judgment who has filed his transfer thereof among the papers of the cause may by motion against the clerk made in such court require the payment of the money over to himself.</p>

<p>Appeal from Harrison. Tried below before Hon. W. J. Graham,</p>

<p>1. Illegal Contract—Public Office.</p> <p>Where a public officer agrees not to exercise the duties of the office, but to appoint such deputies as may be named by the other parties to the contract, such parties to pay him a fixed amount monthly, the agreement is against public policy and void.</p> <p>2. Same—Consideration Illegal in Part Taints Whole.</p> <p>Where part of the consideration is illegal it taints the whole contract, and the courts will deny its enforcement even though the party pleading the illegality obtains an unconscionable advantage thereby.</p> <p>3. Same.</p> <p>One who assumes a public office but discharges none of its duties has no just claim to any of its emoluments.</p>

<p>1. Waiver of Error as to New Trial.</p> <p>Defendant's motion for new trial below was overruled,—one of its grounds being an error in the use of the word “defendant” for “plaintiff” in one clause of the charge. Afterwards plaintiff in open court offered to allow defendant a new trial because of that error, and the court offered to grant defendant’s motionfl if it were renewed. Defendant did not renew its motion, but on appeal waived that error. Held, that defendant's failure to take the offered new trial was not a waiver of the other grounds assigned in its motion therefor.</p> <p>2. Railway Company—Master and Servant—Assumed Risk.</p> <p>A railway company had constructed beside its track a mail crane, the arm of which, when intended for use, came within ten inches of passing engines,—the usual and safe distance in such cases being about twenty inches. The custom in using such cranes was for the arm to be extended just in advance of the passage of a mail train, and withdraw it when it had passed, but in this case it had not been so withdrawn, and the engineer of a passing freight train, in putting his head out of the cab to observe his engine and look for signals, was injured by a contact with the crane. Held, that the danger from such crane was not an assumed risk, and that the engineer was entitled to recover for the injury.</p> <p>3. Charge of Court—Care and Negligence.</p> <p>In an action by a railway engineer for personal injuries occurring in the service, a charge that “it is the duty of every person to use his senses to learn what is going on around him; and the more dangerous a position in which a person is placed, the more care he should use to protect himself from injury,” without further explanation, is properly refused as misleading.</p> <p>4. Assignments of Error—Statement Required.</p> <p>Assignments of error containing no statement thereunder, as required by the rules, will not be considered.</p>

<p>Appeal from the County Court of Nacogdoches. Tried below before Hon. V. E. Middlebrook.</p>

<p>1. Garnishment—J urisdietion—N onresident.</p> <p>Garnishment against a debtor of a nonresident defendant will confer jurisdiction on the court to render judgment against such defendant to the extent of the indebtedness acknowledged by the garnishee, although the plaintiff be also a nonresident corporation whose cause of action accrued in another State upon an open account.</p> <p>2. Same—Prior Return of Attachment Hot Requisite.</p> <p>In an action where an original attachment has issued plaintiff may sue out a writ of garnishment without waiting for the return of the writ of attachment. Rev. Stats., arts. 217, 219.</p> <p>3. Same—Affidavit by Attorney.</p> <p>Where an affidavit for garnishment, made by an attorney for a nonresident client, states in the language of the statute that “plaintiff has reason to believe and does believe” that the grounds for the garnishment exist, it is sufficient, although it does not state that the affiant so believes. Revised Statutes, articles 5, 219, construed.</p>

<p>1. Foreign Corporation—Interstate Commerce.</p> <p>A fdreign corporation may maintain an action here for goods sold to a resident of this State without showing that it had a permit to do business here, as required by articles 745-747 of the Revised Statutes, as those articles are not applicable where the transaction is interstate commerce.</p> <p>2. . Anti-Trust Law—Restraint of Trade—Illegal Contract.</p> <p>A contract between a foreign corporation and a citizen of this State, giving the latter the exclusive right to sell goods in Texas manufactured by the former, and fixing the prices at which they shall be sold, is void under articles 5313,' 5319 of the Revised Statutes, and the corporation can not recover the price of goods sold under such contract.</p> <p>3. Practice on Appeal—Fundamental Error—Illegality of Contract.</p> <p>In an action brought on a contract which is void as being against public policy and in violation of a statute as well, the appellate court will refuse to aid its enforcement, although the question of its illegality was not raised in the court below nor presented by assignment of error above.</p> <p>4. Anti-Trust Statute—Illegal Contract—Reconvention.</p> <p>Where plaintiff's suit is for the price of goods sold under a contract made void by the anti-trust statutes, the defendant can not, in reconvention, recover damages for a breach of such contract.</p> <p>5. Parol Evidence—Written Contract.</p> <p>Where a written contract provided by its terms that it should continue for a year, and should be renewable by mutual consent, paroi evidence was admissible to show that it had been renewed, but not to show what the parties to it understood as to the time ir was to run.</p>

<p>1. Foreclosure of Vendor’s Lien—Flea of Defective Title as Defense. ■</p> <p>In an action on notes and to foreclose a vendor’s lien on land, a plea by the defendant (who had already conveyed the land to another) alleging a defect in the title is unavailing where no fraud or misrepresentation of the plaintiff vendor is shown, nor that defendant was ignorant- of the defect, and there is no offer to reconvey to plaintiff.</p> <p>2. Pleading—Knowledge of Defect in Title.</p> <p>An allegation that defendant was told the title was good by an attorney and relied upon such representation in purchasing, is not an allegation that he did not know of a defect in the title, but rather that he relied upon the attorney’s opinion, regardless of the defect.</p> <p>3. Same—Superior Title Must Be Pleaded.</p> <p>Where plaintiff sues to foreclose a vendor’s lien, and defendants answer only by general denial, they are not entitled to judgment on evidence of superior title, sjnce this is an affirmative defense that must be pleaded.</p> <p>4. Foreclosure of Vendor’s Lien—Adverse Title as Defense.</p> <p>Where, in an action to foreclose a vendor’s lien, parties defendant are brought in as subsequent purchasers of the land, or holders of title subject to plaintiff’s lien, they can not set up an adverse title in themselves and have it litigated in the foreclosure suit.</p>

<p>Appeal from the County Court of Wharton. Tried below before Hon. G. S. Gokdon.</p>

<p>1. Husband’s Liability for Attorney Fees of Wife in Divorce Suit.</p> <p>Under article 2970 of the Revised Statutes, providing that a wife majy contract debts for necessaries, an attorney may maintain an independent action against the husband for legal services rendered the wife in divorce proceedings against him. Following Cecato v. Deutschman, 19 Texas Civil Appeals, 434.</p> <p>:2. Same—Probable Cause.</p> <p>In order to sustain such an action the evidence must show probable grounds for a divorce, or that there was reasonable cause to believe that such grounds existed, but not that the services were actually necessary to the legal protection of the wife.</p> <p>3. Same—Evidence.</p> <p>In such an action, a complaint filed against the husband for an aggravated assault and battery upon the wife and his appearance bond are not competent evidence, and the petition filed in the divorce suit, while admissible to prove that the suit was filed, and the alleged grounds of divorce, was not evidence of the truali of the matters therein charged.</p> <p>4. Practice—Argument of Counsel.</p> <p>Abuse of defendant by counsel for plaintiff in his argument to the jury condemned.</p>

<p>1. Garnishment—Decedent’s Estate Not Liable to, When.</p> <p>Where a creditor of an heir sued out a writ of garnishment against a company in which the ancestor owned stock, and administration having afterwards been commenced on the estate of the ancestor, the administrator intervened and filed a plea in abatement, the court properly sustained the plea and dismissed the garnishment proceeding.</p> <p>2. Same.</p> <p>The reasons which forbid the garnishment of executors and administrators apply just as forcibly in cases where the writ of garnishment is issued and served before the administration is begun.</p>

<p>Appeal from Lavaca. Tried below before Hon.' M. Keuston.</p>

<p>1. Evidence of Heirship—Declarations.</p> <p>Declarations by a third person long since deceased, to the effect that the party ¡under whom plaintiffs claim in trespass to try title went to Texas along with him ■(declarant) in 1836, served in the Texas army, and died there unmarried, are admissible in evidence; but not so those of the mother of such deceased soldier, she being one of his heirs. Following Turner v. Sealock, 21 Texas Civil Appeals, 594.</p> <p>2. Same—Harmless Error in Admitting.</p> <p>In a case tried by the court without a jury, error in the admission of evidence is harmless where the facts to which it relates are sufficiently established by other ■competent testimony.</p> <p>3. Same—Identity of Uame Sufficient.</p> <p>Where plaintiffs, claiming land as the heirs of W. 13., a deceased Texas soldier, ■offer in evidence a bounty land certificate and patent thereon in his name, with proof of their heirship, they make a prima facie case, and the fact that such certificate and patent issued in the name of W. B. after his death does not devolve upon them the burden of proving that there was not another W. B. to whom the land may have been thus granted.</p>

<p>1. Carriers—Damages in Live Stock Shipment—Splenetic Fever.</p> <p>Where a railway .company so handles a shipment of cattle as to expose them to splenetic fever, thus causing a connecting carrier to justifiably refuse to carry them on to their destination, it is liable for the resultant damages.</p> <p>2. Same—Owner’s Delay.</p> <p>Where horses and cattle were shipped together, and the initial carrier having exposed the cattle to splenetic fever, the connecting carrier refused to receive them, this did not justify the shipper in refusing to have the horses sent on until the cattle could also be shipped with them.</p>

<p>1. Deed with Bight of Bepurchase Beserved Not a Mortgage.</p> <p>A conveyance of land made in consideration of the cancellation and release of a vendor's lien and mortgage thereon, and reserving to the grantors a right to repurchase at a fixed price for a stipulated time, will not be construed as a mortgage, but as a deed passing the legal title at the time of its execution, where it recites that its purpose and intention is “to make an absolute and unqualified conveyance of said property and to vest in the grantee free, clear, and unincumbered title thereto.”</p> <p>2. Same—Parol Evidence Not Affecting.</p> <p>Where the terms and legal effect of a deed are such as to pass the legal title to the grantee in praesenti, statements of the grantee’s agent referring to the property as still belonging to the grantors are ineffectual to divest the title and convert the instrument into a mortgage.</p> <p>3. Same—Conditional Sales Upheld.</p> <p>While courts are inclined to construe all agreements coupled with a stipulation for reconveyance upon payment by a future day as mortgages, yet where the facts clearly show an absolute sale with a mere condition of repurchase it will be upheld as such.</p> <p>4. Same—Trespass to Try Title—Verdict Directed.</p> <p>Where the grantors in a deed, remaining in possession as lessees, failed to comply with the conditions of repurchase therein reserved and the grantee sued in trespass to try title for the land, a verdict was prqperly directed for plaintiff.</p>

<p>Appeal from Hunt. Tried below before Hon. T. D. Montrose, Special Judge.</p>

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

<p>1. Parol Evidence Varying Written Contract.</p> <p>A promissory note for legal services performed and to be performed in defending the maker against a criminal charge and containing an unconditional promise to pay a given sum within a specified time, can not be varied by paroi evidence of an agreement that a less amount was to be paid if the maker should not be indicted by the grand jury.</p> <p>2. Failure of Consideration—Eew Trial.</p> <p>Where a note was given to an attorney for legal services, part of which were thereafter to be performed in the event the maker should be indicted on a given charge, and after judgment was rendered on the note, the attorney having meanwhile been elected judge and thus disqualified from appearing for his client, the latter was indicted on that charge, there was a failure of consideration under such circumstances as required the granting of a new trial.</p> <p>3. ITon-lTegotiable Instrument—Assignment Before Maturity—Defenses.</p> <p>The assignment of a non-negotiable note before its maturity does not preclude the maker from urging against it a defense, such as a subsequent failure of consideration, that would have been available had the action been by the original payee. Revised Statutes, articles 308, 309, 314, construed, and Barton v. Bank, 2 Willson Civil Cases, section 711, criticised.</p>

<p>1. Limitation—Action Against Administrator.</p> <p>An action against an administratrix to establish and classify a judgment as a claim against the estate is not subject to the two years statute of limitations. Rev. 'Stats., art 3815.</p> <p>2. Judgment—Collateral Attack—Presumption as to Notice.</p> <p>Plaintiff recovered judgment against several joint defendants, including M., who was served with citation but made default. The other defendants also recovered judgment over against M. on a cross-plea, such judgment being taken several months after the filing of the cross-plea, the record being silent as to service of notice of the plea on M., but the judgment in the cause reciting that the defendants had been served with citation. Held, on a collateral attack against the judgment on the cross-plea, that it would be presumed that M. was served with notice thereof. Roller v. Reid, 26 Southwestern Reporter, 1060, distinguished.</p>

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

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

<p>1. Garnishment on Dormant Judgment.</p> <p>Garnishment is in the nature of an execution, and can not issue on a dormant judgment.</p> <p>2. Same—Revival of Judgment.</p> <p>Revival of a dormant judgment will not save the lien of a garnishment, as upon judgment, issued while it was dormant.</p> <p>3. Garnishee—Attorney’s Fee—Flea in Abatement.</p> <p>A garnishee i's entitled to attorney’s fees for preparing and presenting a successful answer, though such answer was a plea in abatement of the writ.</p>

<p>1. Bes Judicata—Land Belonging to State.</p> <p>A party to a judgment can not, it seems, avoid its eSeet by showing that the land which was the subject of litigation belonged at the time to the State.</p> <p>OK REHEARING.</p> <p>2. Bes Judicata—Foreclosure—Mortgagor’s Title.</p> <p>While it is proper, in an action to foreclose a mortgage, to make anyone claiming under the mortgagor a party to the suit, the mortgagor’s title to the land can not properly be put in issue.</p> <p>3. Same—School Land—Conflicting Claimants—Fraud in Purchase.</p> <p>In a suit for school land by one who had purchased it under the Act of 1883, a defendant claiming it by subsequent settlement and application to purchase under the Act of 1887 was not precluded, by the fact that lie had been a party defendant to a judgment foreclosing a mortgage given by the owner of such older title, from asserting its invalidity because based on a false affidavit as to the nature of the soil.</p>

Tried below before Hon. S. B. Scott. The following statement of the facts bearing on the record of the deed held to be correctly admitted as a conveyance from E. S. Merritt to W. W. Leland, is taken from the brief of appellant: The certificate of the clerk to the copy of the deed is that it was a correct and true and exact transcript of a deed from “E. S. Merritt, by attorney, to W. W. Leland.” Deed recorded January 3, 1860. In the body of the deed the name is written Wm.

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

<p>Landlord and Tenant—Subletting—Settlement.</p> <p>A landlord who accepts from a subtenant the rent for the land occupied by him, as in settlement of the landlord’s demands ’ against him, can not enforce a lien for rent or advances due from the tenant against crops raised by such subtenant, whether he consented, or not, to the subletting.</p>

<p>Error to McLennan. Tried below before Hon. Marshall Surratt.</p>

<p>1. Contributory negligence—Walking on Track—Fact Case.</p> <p>The question was for the jury as to contributory negligence on the part of a .girl who entered upon a railway track in a city street, on which an engine was approaching 100 yards away, and after walking twenty-five steps along the track, in the same direction as the engine, with a shawl or cloak over her head, was struck and killed, the engine running rapidly and giving no signals, but making a loud noise from the exhaust.</p> <p>:2. negligence—Charge—Causal Connection.</p> <p>A charge is erroneous which instructs the jury that certain acts (running an engine at unlawful speed and omission of statutory signals) constituted negligence, without the qualification that such default must have occasioned the injury in order to be actionable.</p> <p>■'3. Charge—negligence and Contributory negligence.</p> <p>A charge which in one paragraph authorizes recovery upon proof of injury by defendant’s negligence, and in a distinct paragraph submits contributory negligence as a ground of defense, is subject for criticism but not ground for reversal.</p> <p>4. Charge—Grouping Facts—Omission—Bequest.</p> <p>Where the court, in undertaking to group the facts supporting a defense, omits a material fact proved and bearing thereon, the omission does not constitute error unless a correct charge supplying the defect is asked; in which case it should be given.</p> <p>5. Charge—Based on Evidence—“Immediately.”</p> <p>A charge is properly refused which submits an issue based on the theory that the injured person entered upon the railway track “immediately” in front of a train, where the proof was that the train was 100 yards away at the time.</p>

<p>1. Judgment—Review—Direct Attack—Guardian.</p> <p>A proceeding to set aside a former judgment in the same court and to recover certain land lost in such former suit, which had been brought during the plaintiff’s minority, and without her knowledge, by one assuming to be her guardian, and who had been appointed as such, but had never given bond, qualified, or been recognized by the probate court as such, was a direct and not a collateral attack on such judgment, and could be maintained on showing title to the land, lost by the first decree, by no fault of the present plaintiff.</p> <p>3. Guardian—Failure to Qualify.</p> <p>One who has been appointed guardian of a minor by an order fixing the bond to be given, but who has never given bond, taken oath, nor been recognized by the court as acting, is neither a de jure nor de facto guardian, and has no authority to represent or bind such minor in a litigation.</p> <p>3. Same—Next Friend—Guardian ad Litem.</p> <p>A judgment adverse to the interest of a minor, in a suit brought by one as her guardian who was not so in fact and acted without her knowledge or consent, can not be held conclusive against her direct attack by bill of review on the theory that it was, in effect, a suit by such minor through her next friend. Martin v. Weyerman, 26 Texas, 468, distinguished.</p> <p>4. Surviving Husband—Life Estate—Conveyance in Fee.</p> <p>A conveyance in fee simple, by the surviving husband, of lands of the wife, was sufficient, though not carrying the fee, to pass the one-third life interest which he inherited.</p>

<p>1. Deposition of Party—Bight to Introduce.</p> <p>A party to a suit may read in evidence his own deposition, taken b,y the opposite party, without notice, under the statute, but not offered in evidence by him.</p> <p>2. Liquor Dealer—Sale to Minor—Parents’ Consent.</p> <p>In prosecution oí a liquor dealer for selling to plaintiff’s minor son, defendant may show, as tending to establish consent, that plaintiff had frequented and drank in other saloons with such minor.</p> <p>3. Impeachment of Witness—Indictment.</p> <p>A witness in a civil action can not be asked, on cross-examination, if he. had been indicted for theft.</p> <p>4. Same—Objection—Who May Urge.</p> <p>A party who offers a witness may object to improper questions, answers to which might affect his credibility.</p> <p>5. Unlawful Sale of Liquor—Proof of Time.</p> <p>In a suit upon a liquor dealer’s bond for unlawful sale to a minor, plaintiff is not held in Ms proof to the date of sale alleged.</p> <p>6. Same—Person Aggrieved.</p> <p>“Person aggrieved,” in the statute, is simply a designation of the class of persons entitled to sue, and evidence is not admissible to show that a parent suing for sale to his minor son was not “aggrieved” in fact.</p>

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

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

<p>Homestead of Decedent—Partition—Unmarried Daughter.</p> <p>Where, upon the death of both husband and wife, the only remaining constituent of the family was an unmarried daughter over 21 years of age, her right in the homestead was not such as would enable her to prevent or defer a partition thereof ..demanded by other heirs. Constitution, article 16, section 52, and Revised Statutes, articles 2046, 2049, 2054, 2057, 2058, construed.</p>

<p>1. Case Criticised.</p> <p>The intimation in Wright v. McDonald, 88 Texas, 140, as to the rule applicable to a tenant’s right to remove buildings from the leased premises, discussed and not followed.</p> <p>3. Landlord and Tenant—Removal of Buildings.</p> <p>Where a tenant put buildings on the leased premises under an agreement, in the lease, that they were to remain his property and he removable as he chose, and during the term the lessors sold the premises subject to such agreement, his right to remove the buildings was not defeated by the fact that, at the expiration of his lease, he took from the new owner another lease of part of the premises which did not recognize his right to remove the buildings.</p>

<p>1. Jurisdiction—State and Federal Courts—Resident Foreign Consuls.</p> <p>The State courts have jurisdiction of actions against consuls, since the Federal Constitution and statutes do not expressly declare the Federal jurisdiction in such cases' to be exclusive.</p> <p>2. Principal and Surety—Jurisdiction.</p> <p>Where, in an action on a note signed by several persons as principals, all jointly and severally bound alike, the plea of one of them to the jurisdiction was sustained, it was error for the court to dismiss the action as to the others upon their plea that they were sureties for the first one, since the question of suretyship was between the defendants, and not between them and plaintiff.</p> <p>3. Same—Plea of Suretyship—Evidence Necessary.</p> <p>Where a defendant is sued on a note binding him as a principal, it is error to sustain his plea of suretyship without any proof being made thereof.</p>

<p>1. Assignment of Error—Practice on Appeal.</p> <p>Assignments of error tó the action of the trial court in failing to sustain exceptions to plaintiff’s petition will not be considered where it does not appear from the record that the exceptions were ever presented to and acted upon by the court.</p> <p>2. Guardian’s Bond—Condition Sufficient.</p> <p>Under the statutes as to bonds of guardians, including the provision that “where the’same person is appointed the guardian of both the person and estate of a ward, only one bond shall be given by such guardian, varying the form thereof to suit the case,” the bond of such -a guardian, conditioned that he “will faithfully discharge the duties of guardian to the persons and estates of said minors,” is sufficient. Rev. Stats., arts. 2599, 2600, 2602.</p> <p>3. Same—Liability of Sureties.</p> <p>Where the probate court in passing upon the final account of a guardian, found that he was due the estate a certain sum and ordered him to pay it over to his successor guardian, such finding was conclusive against his sureties, though they were not parties to the proceedings in which such order was made.</p> <p>4. Same—Liability as Between Two Distinct Bonds.</p> <p>In an action on a guardian’s bonds, two in number, where the sureties on the later bond were not asking any relief against those on the prior one, and the evidence showed that the defalcation of the guardian occurred after the’ first bond had been discharged and the later one given, it was not error to allow a dismissal as to the sureties on the first bond.</p> <p>5. Same—Proof Requisite in Such Case.</p> <p>In order to hold the sureties on the last bond liable, it was only necessary to prove that upon the guardian’s removal he was indebted to the estate in a sum certain; that he was ordered to pay the same to his successor; that demand was made therefor by his successor, and that the guardian failed to pay such sum,—it conclusively appearing that the liability was incurred by an infraction of the conditions of the second bond.</p>

<p>Appeal from La Salle. Tried below before Hon. A. L. McLahe.</p>

<p>Public Schools—Contract with Teacher—Suspension of Schools.</p> <p>Where, on account of smallpox, the public schools of a city were temporarily suspended and a teacher was notified to hold herself in readiness to resume work, which might occur any day, she was entitled to her .salary for the lost time, although the suspension lasted three months, although the contract with her provided that she should receive her monthly warrants for salary at the end of each month “after the services for such month shall have been performed,” and reserved to the city board the right to cancel the contract and close the school at any time.</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>Taxation by City—Franchise of Corporation—Board of Equalization.</p> <p>A corporation having rendered its property for taxation to the city assessor, and the rendition having been accepted by him, the city board of revision and equalization has not the power to add an additional item taxing its franchise, where the city charter makes it the duty of the assessor to list any property not rendered for taxation, and confines the duty of such board to the matter.of raising or lowering the assessments, as it may deem just.</p>

<p>Appeal 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 Wood. Tried below before Hon. J. G-. Bussell.</p>

<p>1. Abstract of Judgment—Indexing.</p> <p>Where an abstract of judgment in the ease of Noble & -Hall v. L. W. Savage was properly indexed under the letters N and S, but under the letter H the name of the defendant was given as L. W. Hall, it was insufficient and created no lien.</p> <p>2. Same—Credit Omitted.</p> <p>The record of an abstract of a judgment, which fails to show a credit or payment shown by the judgment record is insufficient.</p>

<p>1. Eon Est Factum—Evidence—Burden of Proof.</p> <p>A defendant sued as surety on a note pleaded non est factum, swearing positively that he did not sign the note nor authorize its signing, and his testimony was strongly supported by circumstances testified to by other witnesses. One expert testified to his belief in the genuineness of the signature, and another one to the, contrary. Held that, the burden of proof being on the plaintiff, a finding against the plea was not warranted.</p> <p>2. Same—Comparison of Signatures—Practice—Presumption.</p> <p>Where, without objection, papers that are incompetent for the purpose are intro duced to afford a comparison of signatures, it will be presumed that the court disregarded them and based his conclusion on competent evidence.</p>

<p>1. Telegraph Company—Delivery Beyond Free Limits.</p> <p>A telegraph company can limit its liability to deliver messages within certain territory, and when the contract contains such a stipulation the failure to deliver to the addressee in person beyond such limits creates no liability; and evidence is not admissible to show, where the addressee (a railway employe) was outside such limit, that if the company had inquired of the roundhouse foreman he would have told them where to forward the message.</p> <p>2. Same—Charge of Court.</p> <p>Where the evidence in such a case showed that the addressee was outside the free delivery limits, so that a delivery to him in person could not be made, it was error for the court to charge, abstractly, that if defendant negligently failed to deliver the message within a reasonable time the jury should find for plaintiff, as this may have led them to believe, in view of all the evidence admitted, that defendant was liable for not ascertaining the addressee's whereabouts and delivering to him be'yond such limits.</p>

<p>1. Damages—Verdict Too Small.</p> <p>Where, in an action for damages resulting from a collision of vehicles, plaintiff proved actual damages for repairs, medicines, doctor’s bills, and nursing to the-amount of $177, to say nothing of the physical and mental suffering of his wife, who, from injuries so received, was confined to her bed for several weeks, a verdict for only $81 should be set aside.</p> <p>2. Argument of Counsel—Limitation of Time.</p> <p>The right to be heard by counsel is a legal one, and a limitation of the time of argument to thirty minutes is commented on as unreasonable, and as having probably prejudiced plaintiff’s case by leading the jury to think that the court regarded plaintiff’s claim as of light consequence.</p> <p>3. Negligence—Charge of Court—Driving Vehicle.</p> <p>In an action for injuries resulting from a collision of vehicles on the street the court’s charge should define negligence, and, under appropriate evidence, instruct that if defendant’s driver caused the collision by violating the ordinance of the city governing the speed, manner1 of driving, right of way, etc., and thereby inflicting injuries-upon plaintiff, he should recover.</p>

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

<p>Appeal from Delta. Tried below before Hon. P. 0. Thurmond, Special Judge.</p>

<p>Error from the County Court of Harris. Tried below before Hon. E. H. Vasmer.</p>

<p>1. Promissory Note—Extension of Time—Consideration—Interest.</p> <p>A contract for the extension of the time of payment of a promissory note for a definite period, is upon a valuable consideration, and is binding between the parties.</p> <p>2. Same—Parol Evidence to Show Suretyship.</p> <p>Parol evidence is admissible to show that one who appears as a joint maker of a note signed it as a surety for the other, and that this was known to the payee or holder of the note.</p> <p>3. Same—Knowledge at Time of Extension Releases Surety.</p> <p>Where the holder of a note extends the time of payment without the consent of an apparent joint maker whom he knows to be in fact only a surety, such surety is thereby released, although the holder acquired the note before its maturity, and did lmow of the suretyship at that time.</p>

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

<p>1. Set-off Against Negotiable Note.</p> <p>Where defendant is sued upon a negotiable note executed by himself and transferred before maturity, he is not entitled to set off against plaintiff’s demand a claim against the original payee of the note acquired by himself after the note was transferred.</p> <p>2. Set-off must Be Specially Pleaded.</p> <p>Under the statute where a counterclaim is urged in set-off it must be specially pleaded, with averments as full, specific, and certain as in a petition on a like demand. Rev. Stats., arts. 750, 751, 1266.</p> <p>3. Set-off Against Plaintiff and Another.</p> <p>A claim which is jointly-against plaintiff and another person is not available to the defendant in set-off in the absence of allegation and proof that such other person is insolvent.</p> <p>4. Estoppel.</p> <p>An estoppel must be pleaded.</p>

<p>Appeal from the County Court of Lavaca. Tried below before Hon. D. A. Paulus.</p>

<p>1. Evidence of Parties—Transactions with Decedent.</p> <p>Where, in a,suit for land by plaintiffs as heirs of Mrs. H., who was the devisee of H., her husband, a son of H., who was also independent executor of his estate, was made a defendant, not as executor, hut as claiming some interest in the land, and upon his disclaimer was dismissed from the suit, it was competent for him to.testify that the land had belonged to his father and himself as partners and that his father had conveyed to himself by a deed that was lost, and that a deed under which defendant claimed, executed by himself as executor, was intended to convey his individual interest,—the witness not being such a party to the suit as comes within article 2302, Revised Statutes.</p> <p>2. Estoppel Not Applied to Witness.</p> <p>The doctrine of estoppel applies to parties, not to a mere witness, and can not be invoked to prevent a witness from testifying that a deed under which defendant claims, executed by himself, the witness, as an executor, was in fact intended to convey his individual interest.</p> <p>3. Evidence—Record of Acknowledgments.</p> <p>Where a deed was acknowledged before a county clerk, and the entry of the acknowledgment in his record of acknowledgments was duly proved by copy of such entry certified to by his successor in office, the legal custodian of such record (Revised Statutes, articles 2306, 2309, 3514), the admission of the deposition of the former clerk who took the acknowledgment, stating that he had no recollection of the matter, but that he kept the record carefully, and that it showed the entry in question, as appeared by a compared copy attached to his deposition, was harmless error.</p> <p>4. Common Source—Trespass to Try Title.</p> <p>Where a defendant in trespass to try title claims title through a certain person, and also claims by an independent title, he is not bound to such person as a common source.</p> <p>5. Charge of Court—Request for Necessary.</p> <p>Where a party desires instructions on the burden of proof and on common source of title, he should request appropriate special charge thereon.</p>

<p>Appeal from Fayette. Tried below before Hon. H. Teiohhulleb.</p>

<p>Appeal from the County Court of Waller. Tried below before Hon. R. E. Haknay.</p>

<p>1. Evidence—Bes Giestae—Opinion.</p> <p>Declarations of an engineer made five to ten minutes after an accident, to the effect that it was the fault of the brakeman, and that if the brakeman had done his duty and signaled, the accident would not have happened, were properly excluded, . as being matter of opinion rather than res gestae, and also because, under the facts shown, they appeared to be the result of premeditation rather than spontaneous statements.</p> <p>2. Same.</p> <p>The declaration of a brakeman made to a bystander within five minutes after an accident in coupling cars at which he was present, to the effect that he knew the injured party had been at work on the car there, but thought he had gone away, is res gestae.</p> <p>3. Same.</p> <p>Where a statement is res gestae, it does not affect its admissibility that it might have been used to impeach the testimony of the person who made it, but was properly excluded, as to that matter, because the necessary predicate had not been laid therefor.</p> <p>4. Same—Deposition—Answer Sufficiently Besponsive.</p> <p>Where, in answer to the seventy-third cross-interrogatory, “Is it not true that you could not open the throttle of this large engine as quickly as the old locomotive without giving a sudden jerk to the whole train?” the witness replied, “Yes, easier without sudden jerk,” this was held not evasive and sufficiently responsive.</p> <p>5. • Same—Opinion—Negligence.</p> <p>Statements by witnesses who are trainmen that the train was being made up and handled in the usual and customary way at the time the accident occurred, are not objectionable as being matters of opinion, but it is not admissible for them to testify that it was being made up in a “careful and cautious manner.”</p> <p>6. Same—Proof of Drinking Habits Immaterial.</p> <p>In an action by a railway employe for personal injuries it was error, where there was no evidence that he was under the influence of liquor when injured, to admit evidence that he took an occasional drink, and two months previously had been lectured therefor by his foreman.</p> <p>7. Same—Evidence of Authority—Negligence.</p> <p>Where, in such an action, plaintiff, who worked for the company under the direction of its depot agent, was hurt while working on a car standing on the main track, evidence that the agent had no authority over cars not on the side track, and that the conductor had full control of them when on the main line, was relevant, under the facts in this case, on the question of the conductor’s negligence towards plaintiff, and of contributory negligence on his part.</p> <p>8. Bailway Company—Employe Not a Trespasser—Negligence.</p> <p>Where plaintiff, who was employed under the station agent to help about the depot and side tracks, went upon the main line to seal a car, upon the conductor’s demand of the agent that it be sealed, he was not a trespasser, and an instruction that he was not entitled to recover unless those in charge of the train knew of his presence and danger in time to have prevented the injury, was erroneous.</p> <p>9. Same—Charge of Court—Negligence.</p> <p>The charge should, in such case, have left it to the jury to determine from all the evidence whether plaintiff was negligent in going upon the track without notifying the conductor and trainmen, and whether they were negligent in supposing he had finished his work there and gone away before moving the cars.</p> <p>10. Same—Public Crossing—Binging Bell.</p> <p>It was not error for the court to refuse to charge upon the duty of the engineer to ring the bell at a public crossing where, although plaintiff was injured by a moving engine at and near such a crossing, he was there solely in the capacity of a railway employe.</p>

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

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

<p>1. Evidence—Self-Serving Declaration—Nuisance.</p> <p>In an action for damages and for the abatement of a nuisance caused by defendant’s erection and use of a barn, it was error'to allow plaintiff to give in evidence-a letter written by him to defendant shortly before suit was filed, containing a .carefully prepared, argumentative, and self-serving statement of plaintiff’s contention and grievances, coupled with a demand for the removal of the nuisance.</p> <p>2. Nuisance—Damages—Jury.</p> <p>In an action for injury to the comfortable enjoyment of property by reason of a nuisance on adjoining premises, no precise rule for ascertaining the damages can be given, and their amount must therefore be left to the jury.</p> <p>3. Same—Barnyard a Nuisance.</p> <p>Where a barn and barnyard are used and kept as a sort of breeding ground for live stock and as a place to carry on a dairy business, materially interfering with the comfortable enjoyment of a residence on adjoining premises, the case is one of nuisance.</p> <p>4. Same—Permanent Injury—Injunction.</p> <p>Where a barn is maintained in such manner as to constitute it a nuisance to plaintiff residing on adjoining premises, he is entitled to an injunction to have it abated; or, if its owner has declared an intention, over objections and protest, to keep it there permanently, plaintiff may recover damages as for a permanent injury, but can not claim such damages and relief by injunction also.</p>

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

<p>1. Master and Servant—Railway Company—Wrongful Death.</p> <p>A railway company is liable for the death of one of its brakemen caused by a defect in a derrick used by a contractor in ballasting its track, where the contract for such work provided that the'contractor should carry on the work in such manner as the chief engineer of the company should direct, and the latter had the right to have any workman discharged who should not perform his work in a proper manner.</p> <p>2. Same—Independent Contractor.</p> <p>Where a railway company fails to exercise reasonable diligence in furnishing its employes a safe place in which to work, it is liable for the death of an employe resulting from defects in the appliances of an independent contractor engaged in repairing its track.</p> <p>3. Same—Negligence—Guy Ropes Insecurely Fastened.</p> <p>Evidence that a brakeman was killed by the falling of derricks used by a contractor in unloading stone from cars on the track, the derricks being kept in position by guy ropes fastened to fence posts, one of which was rotten and pulled up, causing the fall, —warrants a finding that the railway company was guilty of negligence.</p> <p>4. Damages for Death of Parent—Right of Child.</p> <p>Where, in an action for damages for wrongfully causing the death of a brakeman, the verdict allowed $5000 to the widow of the deceased and a like amount to a son by a former divorced wife, -ten years old at the time of his father’s death, and not shown to have ever received any support from the father, such allowance in favor of the child was held not excessive. Following Railway v. Culpepper, 19 Texas Civil Appeals, 182.</p>

<p>1. Railway Company—Duty to Employes in Operating Trains.</p> <p>It is a duty of a railway company which it owes to its employes engaged in operating its trains to exercise ordinary care to inform such employes of the whereabouts of other trains upon the track, so as to enable them to guard themselves from injury, and a failure to perform this duty is negligence, and may be so charged by the court.</p> <p>3. Same—Contributory Negligence.</p> <p>It is' not negligence for the conductor of a fast freight train to fail to stop at a station and make inquiries as to a slower freight whose time is then three hours ahead, where the signal displayed at-such station means “no orders,” and that he could go ahead.</p> <p>3. Charge of Court—Request for as Estoppel.</p> <p>Where a party, in the court below, requested a charge upon a given issue, he is théreby estopped to complain of the court’s charge on such issue on the ground that the court should not have submitted that issue to the jury at all.</p> <p>4. Same—“Efficient Cause” of Injury.</p> <p>An instruction given that if the engineer’s conduct was the “efficient cause” of the collision he could not recover for injuries resulting therefrom, is not materially different from a requested charge that if such conduct “contributed directly and proximately” to the injury, he could not recover.</p> <p>5. Same—Rate of Speed—Engineer’s Running Orders.</p> <p>Orders to an engineer to make twenty-five miles an hour on the entire trip, including stops, do not prohibit him from running at a speed greater than twenty-five miles an hour.</p> <p>■6. Assignment of Error—Proposition Required.</p> <p>An assignment of error that the trial court erred in giving a certain paragraph of the charge, setting it out, but without any proposition following, will not be considered over objections thereto by the opposing party.</p>

<p>1. State School Land Purchase—Abandonment.</p> <p>One who has, as an actual settler thereon, purchased school land from the State, may, by permanently abandoning the possession thereof prior to the completion of the period of actual occupancy required by the statute, so waive his inchoate right to the land as to authorize a purchase of such land from the State by another person as an actual settler on it.</p> <p>2. Same—Intention—Question for Jury.</p> <p>Whether a voluntary removal from the land in such case was with the intention to permanently abandon it, was a question for the jury.</p> <p>3. Same—Actual Settlement—Eesidence of Married Man.</p> <p>The statutory definition of the place of residence of a married man as given in the law relating to elections, that is, “where his wife resides,” should not be made the exclusive criterion in determining the question of his residence as an actual settler on State school land where the wife lives at another place, temporarily it may be, for the purpose of sending the children to school.</p> <p>4. Same—Preparation Hot Sufficient.</p> <p>Mere preparation for settlement on State school land will not constitute an actual settlement thereon.</p>

<p>1. Elections—Residence o£ Voter—Intention.</p> <p>Where the evidence shows that a voter, a single man, intended to retain his residence at the place where he had been living, and where his trunk and clothes were kept, though he was eating and sleeping in another county where he was just starting in business, a finding by the trial court that he was entitled to vote in such former county will not be disturbed.</p> <p>2. Same—Election Declared Void, When.</p> <p>Where the contestant for an ofiiee shows that he received only one vote less than the contestee, and that a person who would have voted for him, contestant, and who was legally qualified to do so, was denied the right to vote, the election, under the terms of the statute, must be declared void, and a new one ordered. Rev. Stats., art. 1804f.</p>

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

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

<p>1. Deed—Conditions Subsequent Implied—Forfeiture.</p> <p>A conveyance of land in fee in consideration of the payment to the grantor, during his life, of an annual rent of one-third of the corn and one-fourth of the cotton raised upon the premises conveyed, necessarily implies a condition subsequent that the grantee shall cultivate the same, a failure to comply with which will entitle the grantor to an action to set aside the deed.</p> <p>2. Same—Pleading—Breach of Condition.</p> <p>See averments of breach of an implied condition that grantee shall cultivate the land conveyed to him (the consideration being payment to the grantor during life of a certain part of the crop raised thereon) held sufficient upon general demurrer.</p> <p>3. Pleading—General Demurrer.</p> <p>As against a general demurrer, every reasonable intendment is indulged in favor of the pleading excepted to.</p>

<p>Citation—Marne of Defendant.</p> <p>A citation which describes the parties to the suit as city of W., plaintiff, and-, defendant, but which in the latter part of the writ requires the officer to deliver a true copy “to defendant, M. G.,” sufficiently complies with the statutory requirement, that the writ state the names of all parties, and will support a judgment by default, where M. G. was the sole defendant.</p>

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

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

<p>1. Besulting Trust—Vendor’s Lien—Express Lien.</p> <p>One who invests in land money of another intrusted to him for that purpose, taking title in his own name, may, by an instrument in writing delivered and accepted, convert what would otherwise effect a resulting trust into an express vendor’s lien on the land in favor of the party furnishing the money so paid.</p> <p>3. Same.</p> <p>If the written declaration of a vendor's lien in favor of the party furnishing money to pay for land deeded to another could not create a technical vendor’s lien, it would still constitute an express contract lien capable of enforcement.</p> <p>3. Vendor’s Lien—Payment—Subrogation.</p> <p>One furnishing money to pay off vendor’s lien notes given by another on purchase of land, may be subrogated to the vendor’s lien and right of foreclosure.</p>

<p>Parties—Written Instrument—Legal Title.</p> <p>The payee of a promissory note can recover thereon from the maker, in spite of pleading and proof by the latter that another was the owner of the consideration for which it was given, and entitled to its proceeds.</p>

<p>1. Pleading—Special Demurrer.</p> <p>Plaintiff, who sought damages for expenses of treatment and loss of time in attending to sick animals sold him with false representations of soundness, could be required, on special demurrer, to specify the sums so paid and time spent.</p> <p>2. Sale—Bepresentations of Soundness—Charge.</p> <p>Defendant in an action for damages by reason of false representations of the soundness of animals sold by him, was entitled to requested charges affirmatively stating his right to a verdict upon a finding establishing his nonliability.</p> <p>3. Same—Burden of Proof.</p> <p>A charge on the burden of proof in an action for damages by false representations of the soundness of animals sold should require plaintiff to show that defendant made the representations charged and that they were relied on by plaintiff, as well as that they were untrue; but it should not require a finding that they were made with intent to deceive or that representations not necessary to a recovery were made.</p> <p>4. Sale—Bepresentations—Opinion.</p> <p>If the representations made by the seller are intended and understood as the mere expression of an opinion, the seller is not liable, though they may have been untrue; but when intended and understood as the affirmation of a material fact, and relied upon as true, the seller will be held liable if they are false; their purpose, when not manifest and certain, being a question for the jury.</p>

<p>Error to Harris. Tried below before Hon. War. H. Wilson.</p>

Tried below before Hon. F. G. Morris. The charge of the court upon the duty of the city was as follows: “It is not the duty of the city of Austin to, under all circumstances, keep its sidewalks free from every character of obstruction to the full extent of the sidewalks; but the question, whether in any case a sidewalk should be clear of obstruction for its'entire length, depends upon the further question, whether, as a matter of fact, it is reasonably safe for pedestrians,…

<p>1. Limitation—Possession Discontinued—Coverture.</p> <p>Title by limitation is not established where the possession under which it was claimed was interrupted, and was only renewed when those who were then the1 adverse claimants were and thereafter remained under coverture.</p> <p>■2. Trespass to Try Title—Improvements—Purchaser Pendente Lite— Notice.</p> <p>A purchaser of land from one against whom suit for its recovery was then pending, though ignorant of that fact, took and improved it subject to the result of the suit, and, losing the land, could not recover for his improvements.</p> <p>:3. Deed by Attorney—Ancient Instrument—Power Presumed.</p> <p>A deed over twenty years old, made by an attorney for the grantor whose power to execute it was not produced, was properly received in evidence on proof that the grantor had recognized its validity and the presumption of power in support of an ancient instrument.</p> <p>4. Deed by Attorney—No Power—Admissible to Fix Limits of Possession. A bond for title ineffective for want of proof of the power of the attorney executing it, may properly be received to show the boundaries claimed by the grantee in possession under it, in support of his defense under the ten years' statute of limitation.</p> <p>5. Limitation—Ten Years Possession—Boundary—Memorandum of Title.</p> <p>Under -the limitation law in force in 1874 (Act of 1841; Paschal's Digest, articles 4621, 4624), a bond for title constituted such memorandum of title as enabled one in possession thereunder for ten years to defend on the ground of limitation, to the extent of the boundaries in such instrument; and such bond, recorded, was sufficient also under the law in force since 1879.</p> <p>6. Limitation—Lis Pendens.</p> <p>One in possession under a bond for title before litigation began will not be shut out from his defense of limitation by accepting a deed, after suit, begun against the grantors, though the suit terminated against them.</p> <p>7. Limitation—Five Years—Deed Registered—Coverture.</p> <p>To establish limitation under the five years statute, claimant's deed must be recorded and limitation thus begin to run before the existence of a disability which would prevent the bar. Where a married woman acquired land in adverse possession, those adversaries whose deeds were previously recorded took the benefit of the statute; but those who registered their deeds after the title was in the married woman did not.</p> <p>8. Limitation of Five Years.</p> <p>Five years possession, etc., under a deed duly registered is sufficient to support limitation, though the deed be from a stranger to the title.</p> <p>9. Limitation of Three Years—Judgment—Lis Pendens.</p> <p>A recovery by a plaintiff, who claimed title under an alleged partition with part owners under whom defendants claimed, established, as against a purchaser pendente lite from such defendants, the fact of such partition, and a break in the chain of title of such purchaser which precluded him from availing himself of the three years statute of limitation.</p>

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

<p>Appeal from McLennan. Tried below before lion. Maeshall Subbatt.</p>

<p>Business Homestead—Abandonment—Deed of Trust—Attachment.</p> <p>Where a merchant conveying, by deed of trust, his stock of.goods for the security of creditors, with the then existing intention to permanently abandon his business homestead and discontinue business therein, includes his place of business also in the property so conveyed, such deed of trust is valid as to the business homestead, and prevails over the claims of creditors attaching same after the abandonment was completed.</p>

<p>1. Insurance—False Representations—Cancellation.</p> <p>Neither the assured nor his assignee could have an insurance policy canceled by reason of false representations on the part of the assured in procuring it.</p> <p>3. Same—Cross-Action.</p> <p>The right of the court to adjudge a recovery of the premiums paid was dependent on its right to decree cancellation of the policy.</p> <p>3. Same—Dismissal by Plaintiff—Cross-Action.</p> <p>A cross-action by the holder of an insurance policy who admits the right to its cancellation, sought by plaintiff company by reason of false representations by the person procuring it, and seeks a return of the premiums paid, but asserts no independent right in such holder to cancellation, will not authorize a decree for such cancellation and recovery back of premiums paid, after plaintiff company has dismissed its suit for cancellation.</p>

<p>Appeal from the County Court of Bell. Tried below before Hon. D. E. Pendleton.</p>

<p>1. Estoppel—Judgment on Note Binding on Beal Owner Not a Party.</p> <p>Where one who holds' the legal title to a note by due indorsement brings suit thereon against the makers, the judgment in such case is binding by estoppel against one who was the real or beneficial owner and who knew of such suit, though not a party thereto.</p> <p>2. Practice—Agreed Case—Judicial Notice.</p> <p>Where the judgment in an action on a note is affirmed by the appellate court as to some defendants and reversed as to another, and afterwards another suit is brought on the note by a different plaintiff, and is tried on an agreed statement reciting that the judgment in the former suit was affirmed on appeal, the trial court can not take judicial notice to the contrary, but must try the case on the record and agreement before it.</p>

<p>1. Arbitration and Award—Agreement- Construed—Hatters Submitted.</p> <p>Where an agreement for arbitration embraced “all questions and claims” between the parties “arising out of their partnership, and any other matters of property ■owned by them in common,” and in determining these matters the arbitrators were required to “take up” certain matters, including advancements to the partnership and the disposition and use of partnership effects by either party, the award was not vitiated by a failure to make any finding on the matter of mutual account, advancements, and services of either party, since the matters the arbitrators were to “take up” were merely to be considered in determining the questions submitted ■and not that there should be a specific statement in the award of the account between the parties as to such matters.</p> <p>.2. Same—Presumption in Favor of Award.</p> <p>In the absence of a statement of facts or evidence to the contrary, it is to be presumed in favor of the award that such matters were taken up and duly considered by the arbitrators in determining the questions submitted.</p>

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

<p>Appeal from Harris. Tried below before Hon. .William H. IYilson..</p> <p>O. T. 1-Iolt, for appellant.</p>

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

<p>Appeal from the County Court of Houston. Tried below before Hon. E. Wineree.</p>

<p>1. Practice—Findings of Fact by Trial Court.</p> <p>Where, in a case tried without a jury, the trial court’s findings of fact conclude with the'statement that further specific findings are not necessary, and “the statements of facts is also refeerred to as a part thereof,” all issues in the evidence will be resolved by the appellate court in favor of the judgment.</p> <p>2. Sheriff’s Sale—Inadequacy of Price and Fraud—Setting Aside.</p> <p>A sheriff’s sale will be set aside at the instance of the judgment creditor, for inadequacy of price and fraud, where the sheriff and the purchaser were closely connected with each other in their official capacities, and the sheriff, at the purchaser’s instance, sold the property half an hour earlier than the usual time, and during the temporary absence of the plaintiff’s agent from the courthouse.</p> <p>3. Same—Negligence Not Shown.</p> <p>Negligence on the part of plaintiff’s agent in not being present at the sale is not shown where it appears that he would have been present had the sale not been made half an hour earlier than the customary time.</p>

<p>1. Judgment—Direct Attack Iby Cross-Bill—Tax Title.</p> <p>Where one who had purchased from a city a lot which it had bought under a foreclosure of its tax lien thereon brought an action of trespass to try title against the original owner, and the latter filed a cross-bill denying the jurisdiction of the court in the foreclosure suit because he had not been cited and had not appeared therein, making the city a party, asking that such bill be taken as a direct attack on the judgment, and tendering the amount of taxes due, this was a direct and not a collateral attack on such judgment, and defendant was entitled to the same relief as if the suit had been brought by him.</p> <p>2. Same—Void Judgment—Jurisdiction—Estoppel.</p> <p>The owner of property sold under foreclosure of a city’s tax lien had in a suit to which he was not a party (citation therein having been served on another person of the same name) is not estopped from asserting the invalidity of the judgment because of the court’s lack of jurisdiction, and may recover the property from one who purchased it from the city.</p> <p>3. Same—Void Tax Title—Costs—Subrogation.</p> <p>The city of Houston conveyed land bought by it under a judgment foreclosing its tax lien thereon to S., who sued the original owner for possession, and the latter, making the city a party, by cross-bill attacked the foreclosure judgment as void and had it set aside. The city charter provided that if the title acquired by a purchaser of land sold for taxes shall be declared invalid, he shall be entitled to a lien and a judgment for its enforcement against the owner of the property in the same action for certain sums and for costs. Held, that it was error to adjudge the costs against S., since he was subrogated to the city’s rights as against the owner.</p> <p>4. Same—Innocent Purchaser—Void Judgment.</p> <p>One purchasing land from another who bought it under a foreclosure judgment regular on its face, but void because the judgment defendant was never a party to the foreclosure suit, will not be protected as an innocent purchaser.</p>

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

<p>Appeal from the County Court of Hunt. Tried below before Hon-L. A. Clark, Special Judge.</p>

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

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

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

<p>Deed—Instrument Held Hot Testamentary.</p> <p>A warranty deed in usual form, executed by parents to their son, and containing this stipulation, “It is distinctly stipulated, however, that this conveyance is not to take effect until our death, and that, so long as we or either of us shall live, the above described premises shall be and remain our homestead, and on the death of either of us, the homestead of the survivor,” is not, by such stipulation, converted into a testamentary instrument, but takes effect upon delivery within the lifetime of the grantors, and reserves to them a homestead life interest in the property.</p>

<p>Appeal from Orange. Tried below before Hon. S. P. West.</p>

<p>1. Judgment—Injunction—Venue.</p> <p>The district court wherein a judgment is rendered alone has jurisdiction of a suit to enjoin the execution of such judgment, unless it be void. Rev. Stats., arts. 1194 (sec. 17), 2996.</p> <p>2. Same.</p> <p>Where the judgment of a Court of Civil Appeals affirms the judgment below and adjudges that the appellee recover from the appellant and the sureties on his supersedeas bond “such amounts as were adjudged to them below, and all costs,” it is prima facie a valid judgment, and the district court of a county other than the one in which the original judgment was entered has not jurisdiction to enjoin an execution issued after filing of the mandate below on the ground that it is not a money judgment against the sureties.</p>

<p>Error from the County Court of Harris. Tried below before Hon. E. H. Vasmer.</p>

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

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

<p>1. Lease—Negotiability—Assignment of.</p> <p>A lease of land for five yegrs, the rental payable annually, but no note or notes being given for the rental, is not a negotiable instrument, but it may be assigned, and thereafter the lessee can do no act which would affect the assignee’s rights) but may avail himself of any equity existing between himself and the lessor at the date of the assignment.</p> <p>3. Same—Lease by Life Tenant Terminates at His Death—Assignee Not Protected,</p> <p>Where one having a homestead right in land the property of his minor child, of whose estate he is not guardian, leases out the land for a term of five years and dies before expiration of the term, his assignment of the last year’s rental to another ■ is unavailing, and the lessee is protected in paying such rental to the guardian of the minor, though he had notice of the assignment.</p> <p>3. Same—Lessee Not Estopped.</p> <p>Where the assignee of the last year’s rental under the lease, before taking the assignment thereof, asked the lessee if it would be “all right,” and he replied that “he always paid bis debts when due, and would pay this one, if he lived,” this did not estop him from pleading against the assignee’s claim for such rental his liability and his payment of the rental to the guardian of the minor.</p>

<p>1. Judgment by Default—Citation by Publication.</p> <p>In a case where some of the defendants are cited by publication, judgment final by default can not be taken against a defendant who has been personally served with citation until the appearance (second) day of the term next after publication has been completed. Only an interlocutory judgment by default can be entered prior to such day. Rev. Stats., arts. 1264, 1283.</p> <p>2. Same—Verification of Pleading—Amended Petition.</p> <p>rn an action to foreclose the State’s lien for taxes, it was error to render final judgment" by default upon an amended petition not sworn to as required by the statute (Acts 1897, p. 134, section 6), although the original petition was so verified.</p>

<p>State School Land Purchase—Actual Settlement—Issue for Jury.</p> <p>Where the issue was whether defendant, who had purchased certain State school lands as an actual settler thereon, was such an actual settler, and there was proof that at the time he so purchased he had been camped with his family on the land for about a week, etc., it was error for the court to peremptorily charge for the plaintiff, as the evidence was sufficient to require the submission of the issue to the jury. See the opinion as to the evidence relating to such settlement.</p>

<p>Homestead—Builder’s Lien.</p> <p>The owners of a homestead lot, desiring to have a residence erected thereon, arranged to obtain the necessary money from a loan company by making a building contract with its agent, giving him a note, secured by a contractor and builder’s lien, which he indorsed to the company, and thereupon, at such owner’s request, delivered the money to them in bulk to be by them applied to paying for the work and material, which was done, such agent noticing from time to time to see that the bills therefor were paid, but himself doing no part of the work. Held, that this was not a loan such as is inhibited by the Constitution (article 16, section 50) exempting the homestead from debts except for purchase money, taxes, and work and material used thereon, and the lien could be enforced.</p>

<p>1. Estoppel Must Be Pleaded.</p> <p>Matter of estoppel must be pleaded.</p> <p>0. Same—Appeal from Justice to County Court.</p> <p>In a case tried in the County Court on appeal from the Justice Court, it will not be presumed that an estoppel was orally pleaded in the Justice Court where the pleadings therein were written, and a notation of the pleadings in the justice’s transcript shows no such oral plea.</p> <p>3. Same—Silence of Owner in Possession Mot Estoppel.</p> <p>XX here the owner of property is in actual possession thereof, his mere silence or failure to give notice of his title to one whom he knows is contemplating a purchase of it from another person, will not work an estoppel.</p>

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

<p>Error from the County Court of Wise. Tried below before Hon. S. G. Tankersley.</p>

<p>Injunction—Fencing Pasture Inclosing Another’s Land.</p> <p>An injunction will not lie to restrain the owner of contiguous surveys of land from fencing them together on the ground that such inclosure will include a tract belonging to another, where the fencing will not encroach upon the land of such other person.</p>

<p>Appeal from the County Court of Clay. Tried below before Hon. H. A. Allen.</p>

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

<p>Appeal from Clay. Tried below before Hon. A. H. Carrigan.</p>

<p>Appeal from Haskell. Tried below before Hon. P. D. Sandees.</p>

<p>1. Limitation—Homestead—Acts of Husband.</p> <p>Where title to the homestead has been acquired under the ten years statute of limitation, the acts, conduct, and declarations of the husband alone will not be admissible to disturb the title so vested.</p> <p>U. Same—Purchase and Holding Under Adverse Title.</p> <p>The act of the husband in acknowledging and contracting to purchase under the title of another could not affect the rights of the wife in the land which they occupied as their homestead, and to which they had acquired title by ten years occupancy before such contract by the husband.</p> <p>3. Limitation—Pleading.</p> <p>A plea which alleges limitation by possession, etc., “for a period of more than ten years next before the commencement of this suit,” does not restrict the pleader, in his proof, to the ten years immediately preceding the suit.</p>

• Appeal from Caldwell. Tried below before Hon. H. Teichmueller. The argument of defendant’s counsel to the jury complained of by appellant and referred to in the opinion, consisted in reading and reference to opinions of the Supreme Court sustaining recoveries of damages in certain eases as not excessive.

<p>1. Master and Servant—Dangerous Machinery—Complaint by Servant—■ Promise to Repair—Assumption of Risk.</p> <p>The servant having knowledge of dangerous defects in the machinery may relieve himself of the risk by bringing the facts to the knowledge of the master and receiving such assurances as to show an express assumption of the risk by the master, or afford the servant reasonable guaranty that the danger will be removed in time to prevent injury to him.</p> <p>3.' Same.</p> <p>A servant having-knowledge of a defective drawhead on a car he was required to operate, called it to the attention of the master, who promised to repair it,—the complaint not being on the ground of danger in its use, but of its insufficiency for its work; thereafter the servant, continuing to use it with knowledge that it had not been repaired, was injured through its defects. Held, that the risk was assumed by the servant, and he could not recover.</p> <p>3. Same.</p> <p>The servant’s complaint and the master’s undertaking to repair being to facilitate the transaction of the master’s business, and not for the protection of the servant, there could be no assumption of the risk by the master.</p> <p>4. Practice on Appeal—Rendering Judgment.</p> <p>Where the appellate court reverses a judgment for plaintiff because the facts require a verdict for defendant, and the facts appear to have been fully developed, it is proper to,render judgment accordingly, instead of remanding.</p>

<p>1. Parties—Joint Promises—Breach as to One—Bail way Crossing.</p> <p>Upon a contract by a railway company agreeing with various parties conveying to it a right of way over their lands that it would keep up all necessary crossings, suit for breach of the agreement as to one of the tracts of land should be brought by the owner thereof, and the other joint promisees should not join.</p> <p>2. Bailway—Crossings—Contract—Public Policy.</p> <p>A railway company is not required to fence its track; and its contract with a landowner to afford him an open crossing, with cattle guards and wing fences, instead of gates, is not violative of any declared public policy of the State.</p> <p>3. Contract—Construction by Parties.</p> <p>Where there is doubt as to the meaning of a contract, the construction placed ■ upon it by the parties and their method of operating under it by way of performance, may be looked to in aid of its interpretation.</p> <p>4. Same—Bailway—Open Crossing or Gate.</p> <p>A contract by a railway company with the owner of land through which the road runs “to keep up all necessary cattle-guards and road crossings,” while not stating in express terms that the crossing should be kept open,—with cattle-guards and without gates,—may be treated as a contract to that effect, and its observance enforced by injunction, where such was the character of crossing maintained for eighteen years.</p>

<p>1. Deed—Married Woman—Certificate o£ Acknowledgment.</p> <p>A certificate of acknowledgment to a married woman’s conveyance of the homestead must show directly, or by equivalent expressions, that she was known or made, known to the officer, and that she executed it for the purposes and consideration there stated. See certificate held insufficient to pass title under this rule.</p> <p>2. Same—Impeaching Certificate—Parol Evidence—Immaterial Error.</p> <p>The admission of testimony by a married woman that she did not willingly sign a conveyance of the homestead and that it was not explained to her by the notary, thereby contradicting that officer’s certificate by paroi evidence of matters not known to the grantee, was not ground for reversal where the certificate was fatally defective in other particulars and the deed was excluded by the court, as against the married woman, for such defects.</p> <p>3. Sufficiency of Evidence—Several Theories.</p> <p>Where either of two or more alleged statements of fact will support the judgment, and it does not appear upon which the trial court proceeded, its ruling will be sustained in the absence of error in law, if there be sufficient evidence to support either.</p> <p>4. Married Woman’s Deed—Defective Certificate—Parol Evidence to Support.</p> <p>In the absence of pleading seeking the amendment of a defective certificate of acknowledgment by a married woman, paroi evidence that the officer complied with the law is not admissible.</p>

<p>1. Practice in Trial Court—Special Issues.</p> <p>Where a special issue submitted to the jury called for the aggregate amount of damage occasioned to a shipment of cattle, and the jury answered “two dollars per head,” without finding the number of the cattle, this could not suffice as the basis of a judgment, even though there had been no conflict in the evidence as to the number of the cattle. Rev. Stats., art. 1333.</p> <p>2. Carriers—Verbal Contract of Shipment.</p> <p>Where a verbal contract of shipment was made and the freight paid, and after the cattle had proceeded on their journey, the shipper was required to sign a written contract on the train, which he did without reading it, the verbal contract controlled the shipment.</p> <p>3. Same—Connecting Lines.</p> <p>Where the initial line contracts for a through shipment over connecting lines to the point of destination, it is, under the statute, liable for damages inflicted on the lines of its connecting carriers, no matter what restrictions be inserted in the contract. Rev. Stats., 331a, 331b.</p>

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

<p>1. Contract in Restraint of Trade.</p> <p>A conract between a wholesale dealer in vehicles and a retail dealer by which the latter is expressly obligated to handle no other vehicles except those furnished by such wholesale dealer, is in restraint of trade and void under the statute.</p> <p>2. Same—Fixed Time Not Essential.</p> <p>In a suit on notes, wherein the defendant pleaded that they were void because the contract was in restraint of trade, plaintiff’s contention that, as the time of such restraint of trade was not fixed by the contract itself, the defense could not obtain, was unavailing, since, having sued on the contract, he thereby admitted that it was in force up to the time he was demanding judgment on it.</p>

<p>1. Appeal-Estoppel.</p> <p>Statements in an application to the Supreme Court for writ of error that all the evidence in the case was in the record, and that no new evidence would or could be introduced on another trial, will not estop the applicant from introducing other evidence when the case is' again tried below.</p> <p>3. Charge of Court—Assumption of Fact.</p> <p>In an action for injuries resulting from plaintiff’s' being thrown from a car platform by a jerk of the train, a charge is properly refused which assumes that plaintiff’s action in going upon the platform contributed to his injury.</p> <p>3. Same—Negligence.</p> <p>A charge that'no deduction of negligence is to be made from the mere fact that a train in motion gave a violent jerk, is properly refused where it appears that the jerk was of an unusual nature.</p> <p>4. Same—Only Ordinary Risks Assumed.</p> <p>A charge that where a passenger, while the train is in motion, passes from one car to another without notifying the trainmen, the company owes him no duty in respect to movements of the train while he is engaged in such act, is properly refused, since he thereby assumes only the risks incident to such undertaking from ordinary causes.</p> <p>5. Same—Charge Restraining Verdict.</p> <p>A charge that the verdict must meet the approval of each juror’s conscience; that the juror should not agree to it unless it does, and if he does so he commits moral perjury, is properly refused.</p>

<p>1. Municipal Corporation—Contract Incurring Debt Ultra Tires.</p> <p>A contract made by a city for the purchase of fire hose for $750, payable in three years, without any provision being made for the levy of a tax to pay the debt, and with the constitutional limit as to taxation then already reached, is ultra vires and void. Const., art. 11.</p> <p>2. Same—Seller’s Bight to Beclaim Property.</p> <p>Where a contract by a city for the purchase of certain- fire hose was void because ultra vires, the sellér was entitled to recover the property by sequestration, and it was not necessary that there should have been any fraud or misrepresentation on the part of the city.</p> <p>3. Same—Option Beserved—Other Funds.</p> <p>The fact that the city reserved an option to pay the debt within twelve months, and the fact that it had on hand money belonging to a different fund sufficient to pay the debt, did not prevent the contract from being invalid.</p> <p>4. Same—Seller May Becover Bents.</p> <p>Where a contract under which rubber hose was sold and delivered to a city is void because the city did not comply with the constitutional requirements in creating the debt, the seller, seeking by sequestration to recover the property, may also recover compensation for its use while in the city's possession.</p>

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

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

<p>1. Judgment—Dormancy—Issuance of Execution.</p> <p>Where á first execution was issued' to the wrong county, and when a pluries execution was issued to the county wherein the judgment was rendered, it was enjoined because of the irregularity, such issuance of execution, being within a year, nevertheless had the effect of preventing the judgment from becoming dormant. Rev. Stats., arts. 2335, 2326a.</p> <p>2. Fees of Witness—OVEore than Two to Prove Same Fact.</p> <p>As against the fees of his own witnesses a party can not invoke the statute providing that the fees of only two witnesses to the same fact shall be allowed, but only when judgment is rendered against him and the witnesses have been subpoenaed by the opposite party. Rev. Stats., art. 2268.</p>

<p>Insurance Hot Payable to Mortgagee, When—Covenant to Repair Controls.</p> <p>Where a mortgage of a building contained a covenant to keep the property in repair and another to keep it insured for the benefit of the mortgagee, and it was so insured, in the mortgagor’s name, but with the insurance payable to the mortgagee as his interest might appear, and after the mortgagor's death the building was damaged by fire, but was repaired by his executors with funds of the estate "and put in as good condition as before, the insurance money due for the damage was payable to the executors, and could not be claimed by the mortgagee.</p>

<p>1. Trust Deed, for Creditors—Fraud—Beneficiary’s Bight of Action.</p> <p>Where the trustee in a deed of trust for creditors was fraudulently induced by other creditors therein secured to sell the trust property for much less than its value, another beneficiary in such deed, who was thereby prevented from realizing on his debt, can maintain an action against such trustees, and the creditors fraudulently conspiring with him, to charge them with the value of the goods above the amount the trustee had so received.</p> <p>2. Same—His Bight Against a Creditor Holding Collateral Security.</p> <p>Such beneficiary may also recover of a creditor secured by the trust deed who held collaterals, and who, after notice that plaintiff’s claim would be defeated thereby, surrendered such collaterals back to the debtor, such amount as plaintiff was damaged in consequence thereof.</p> <p>3. Same—Parties Not Necessary, and Others Properly Joined.</p> <p>In an action by a beneficiary "against the trustee and certain other creditors secured by the trust deed, for damages sustained by reason of their fraud and conversion of the trust property, it is not necessary that other beneficiaries who did not participate in the fraud and conversion should be made parties; but the creditor who, conspiring with the trustee and the others in the conversion of the trust property, surrendered the collaterals he held, was properly joined as a defendant.</p> <p>4. Same—Beneficiary Can Not Attack Other Secured Claims.</p> <p>A beneficiary in a trust deed for creditors who claims under it can not attack another claim secured by it as being fictitious.</p> <p>5. Same—His Bight to Buy and Sue Upon Other Secured Claims.</p> <p>A beneficiary in a trust deed who sues the trustee and certain other secured creditors for fraud and conversion may include with his original claim the secured claims of other beneficiaries which he has since purchased.</p> <p>6. Same—Facts Belevant as Showing Fraud.</p> <p>In such an action by the beneficiary the fact that the trustee was offered by an outside party a higher price than he sold the goods for, and the fact that the purchaser from him afterwards sold the goods for much more than he paid the trustee for them, were matters that could be pleaded and considered in determining the issue of fraud.</p> <p>7. Same—Conduct of Trustee.</p> <p>So, the fact that the trustee, who was himself a preferred beneficiary and whose claim was alleged to .be fictitious, accepted only 50 per cent of his claim, and surrendered the trust property to others, could "also be pleaded and shown as relevant upon the issue of fraud.</p> <p>8. Same—Pleadings—Exceptions Well Taken.</p> <p>In such action by the beneficiary, where the trustee has become insolvent and nonresident, it is enough to so allege, and special exceptions are properly sustained to pleading which set out the details of hi.s failure.</p> <p>9. Same—Pleading Praud.</p> <p>In pleading fraud the acts constituting fraud must be specifically alleged.</p> <p>10. Practice—General Demurrer Sustained—Amendment.</p> <p>Where a general demurrer to plaintiff’s petition was sustained, his failure to amend so as to meet the rulings of the trial court sustaining special demurrers, will not deprive him of his right to have a reversal of the judgment.</p>

<p>1. Conspiracy and Libel.</p> <p>Although the object of a combination of persons be lawful, yet if the means-adopted and used to bring about the desired end be unlawful and libelous, the parties are none the less conspirators.</p> <p>2. Same—Charge Where Several Defendants.</p> <p>Where the petition charged several defendants with a conspiracy to libel and injure plaintiff, the charge should have submitted conspiracy to the jury (there being some evidence tending to support it) as an issuable fact, limiting the acts and declarations of the defendants, in case the jury should find" against the charge of conspiracy, to the particular defendants whose acts and declarations were proven, and confining the liability of each to the damages resulting from his own acts.</p> <p>3. Libel—Privileged Matter—Church Convention Proceedings.</p> <p>Proceedings of a General Baptist' Convention denying to one appointed a member thereof by his local church any rights as a member and published in the usual and ordinary way, are privileged communications, such convention being a sovereign independent body, not exercising delegated powers nor acting in a representative capacity, and therefore having the right, although a member’s election should be valid and his credentials regular, to refuse him membership on- any grounds that might seem to it proper and sufficient.</p> <p>4. Same—Truth of Charges in Support of Good Faith.</p> <p>Where, in an action for libel, defendants pleaded that the matters and charges-alleged as libelous were privileged communications made in good faith, they should have been permitted to show the facts upon which their charges had been made, to prove good faith, even though they had not pleaded the truth of the charges as a justification.</p> <p>5. Same—Charge of Court—Malice and Presumption of Falsity.</p> <p>Where, in an action for libel, the defense pleaded is that the statements alleged to be libelous were privileged communications made in good faith, the charge of the court should not instruct the jury that the law presumes the charges false, nor should it indicate that it is the duty of the jury to find that the publication was malicious.</p> <p>6. Same—Malice and Sense of Duty.</p> <p>In an action of libel against defendants for their statements and proceedings in excluding plaintiff from membership in a church convention, it was error to charge the jury to find against defendants if malice, consisting in a desire growing out of ill will towards plaintiff to injure him, entered into the motive whch prompted their action, since the fact of their entertaining such a feeling should not be held to prevent them from discharging what they honestly believed to be their duty to themselves, the convention, and the church.</p> <p>7. Same—Evidence of Parliamentarians.</p> <p>Plaintiff having alleged, and having been permitted to prove, that the proceedings of a Baptist church convention excluding him from membership were harsh, unfair, and irregular, defendants should have been permitted to prove by men shown to be experienced parliamentarians, and who were present during the proceedings, that they were in accordance with the rules and regulations as understood and adopted by Baptists in their general bodies everywhere; but extracts from parliamentary authors were not admissible in evidence for that purpose.</p> <p>8. Same—Charge Ignoring Defense of Privileged Communication.</p> <p>A plea of privileged communication presenting a perfect defense to an action of libel and supported by evidence should not be ignored in the charge because the defendants failed to plead the truth of the alleged libelous matter in justification.</p> <p>9. Same—General and Special Damages—Pleadings.</p> <p>Damages to the character of plaintiff, a Baptist minister and editor of a religious paper of that denomination, by reason of his being excluded from membership in a Baptist General Convention on charges of personal unworthiness and hostility to the work of the convention, need not be specially alleged or proven, but injury to his newspaper business was a matter of special damage requiring to be specially alleged and proved.</p> <p>10. Same—Evidence Held Hot Secondary.</p> <p>In an action for libel, where the printed minutes of a church convention and its proceedings as published in a church paper are alleged to be the libelous matter, copies of such minutes and paper are admissible as originals.</p> <p>11. Same—Custody of Convention Papers.</p> <p>Where papers of a church convention, such as committee reports, after having been acted on and published in its minutes, appear to have no further useful purpose and to have gone into the hands of its secretary, notice to produce such papers, served upon the attorneys of the secretary, who is one of the defendants in the suit, will warrant the admission of secondary evidence thereof if the originals are not produced, at least as to that defendant, and it seems' that- as to papers of such transient character, the courts will relax the rule requiring the original to be produced or accounted for.</p>