Volume 23 — Texas Civil Appeals Reports

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

<p>Appeal from the County Court of Johnson. Tried below before Hon. W. D. McKay.</p>

<p>1. Continuance—Diligence.</p> <p>Plaintiff’s application for a continuance was properly overruled where it disclosed that he had been notified more than two months before the trial that defendants would press a trial, and no diligence was shown to prepare for trial of the issue to which the motion was directed.</p> <p>2. Same—Harmless Error.</p> <p>Error in overruling plaintiff’s application for a continuance is harmless where the issue to which it related was found in plaintiff’s favor at the trial.</p> <p>3. Homestead—Change of—Fraud Upon Wife.</p> <p>Where, during and after a temporary removal of the family from the homestead, the husband secretly determined to make the new place of residence the future homestead, executing a mortgage on the old homestead to one whose agent in the matter knew of the secret nature of his intention to change the homestead and who aided in concealing such intention from the wife, the attempted change was not binding on her, and the mortgage created no lien.</p> <p>4. Same—Fact Case.</p> <p>For facts so clearly showing there was no abandonment or change of the homestead as not to require a submission of that issue to the jury, see the opinion.</p>

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

<p>1. Master and Servant—Independent Contractor.</p> <p>Where an oil company engaged D. to bale cotton seed hulls with its machinery at so much per bale and exercised control over the manner in which he did the work or over the means by which it was done, and another person engaged by D. to assist him in the work was under the control and management of the company, D. was but an employe, not an independent contractor, and such other person was likewise the servant of the company by virtue of his employment by D.</p> <p>2. Same—Test.</p> <p>A test by which to determine whether one who renders service for another does so as a contractor or not, is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of the work and not the means by which it was accomplished.</p> <p>3. Same—Evidence—Construction of Contract.</p> <p>Where the contract of employment was verbal and it was not shown that it was either definite in its terms or thoroughly understood by the parties in so far as the employer's right of superintendence were affected by it, the acts of the parties may be looked to in ascertaining what construction of it in fact prevailed, and where the employer has assumed certain powers of control, assented to by the other party, he can not afterwards, on the question of construction, be heard to say that the powers so assumed were unlawful and unwarranted.</p> <p>4. Practice—Special Issues—Charge.</p> <p>In a case submitted to the jury upon special issues the court’s failure to charge upon every phase of the case is not of itself reversible error, since the statute provides that on appeal an issue not submitted below and not requested by a party to the cause shall be deemed as found by the court in such manner as to support the judgment if there was evidence to sustain such finding. Eev. Stats., art. 1331, as amended by Act of June 18, 1897.</p> <p>5. Same—Same.</p> <p>In a case submitted upon special issues, where the general charge called for a special verdict, the court properly refused a request for a charge directing a general verdict for defendant if the jury found certain matters to be true.</p> <p>6. Same—Categorical Answers.</p> <p>Where a single issue is submitted in the form of several closely connected questions, a failure to require the jury to answer each and all the questions categorically is not error where the answer made covered the fact at issue.</p> <p>7. Evidence—Opinion.</p> <p>It was not error, as being matter of opinion, to permit a witness employed by the defendant company to state that he was foreman for defendant, although the contract of employment did not designate him as foreman.</p> <p>8. Practice—Argument of Counsel.</p> <p>Counsel have the right, in the argument of the case to the jury, to draw from the facts in evidence every legitimate influence deducible therefrom. See the opinion for illustration.</p>

<p>1. Sheriff—Commitment—Judgment.</p> <p>A judgment that a defendant convicted of misdemeanor stand committed to jail till the fine and costs are paid is a sufficient compliance with articles 845, 847, Code of Criminal Procedure, without issuance óf a writ of commitment or the furnishing a copy of the judgment to the sheriff, to render him liable for the fine and costs, if he permit the convict to go at liberty.</p> <p>2. Same—Other Remedy by State.</p> <p>Where the sheriff has set at large a county convict committed till fine and costs are paid, it is not necessary for the State to show, in order to recover against the sheriff, that it has exhausted its remedy by execution and copias pro fine against the convict.</p> <p>3. Sheriff—Setting Convict at Large—Suit by State.</p> <p>Suit against a sheriff and his bondsmen for setting at large a county convict committed till payment of fine and costs, is properly brought on his official bond in the name of the State, the recovery being for the use and benefit of the county and the officers entitled to the costs.</p> <p>4. Same—Discharge of Convict—Evidence.</p> <p>The sheriff is not relieved from liability for the fine and costs of a county convict committed till payment by testimony that the convict lay in jail long enough to discharge the fine and costs and was then released by direction of the county judge; he should show compliance with articles 847, 856, Code of Criminal Procedure, and obtain credit from the commissioners court under articles 838, 839, by the convict’s affidavit of inability to pay the fine and costs.</p>

<p>Appeal from Dallas. Tried below before Hon. Rici-iabd Mobgae.</p>

<p>1. Trespass to Try Title—Parties—Costs.</p> <p>Where, in trespass to try title, the petition alleges that P. formerly held the land in trust for the plaintiffs, and afterwards, in repudiation of the trust, conveyed it to the defendant M., who had knowledge of the trust, and asks a recovery of the land only as against M., stating a cause of action against P., only in that it alleges that he and M. converted certain improvements on the land belonging to plaintiffs, and the court, on the trial, finds no liability on account of the conversion, P. is entitled to recover his costs.</p> <p>2. Same—Resulting Trust—Variance.</p> <p>Where plaintiffs in trespass to try title specially plead their title, alleging a resulting trust in that defendant used money subscribed by them in his purchase. of the land, and that the purchase was for their benefit, they are not entitled to recover upon proof showing that defendant used his own money in such purchase, although the facts disclosed show a trust such as, under different pleadings, would warrant a recovery by plaintiffs. .</p> <p>3. Same—Recovery for Undivided Interest.</p> <p>Plaintiff in trespass to try title can not recover upon allegation and proof of an undivided interest, without establishing what that interest is.</p> <p>4. Same—Indorsing Petition—Practice.</p> <p>In trespass to try title a failure to indorse upon the petition that it is an action of trespass to try title, as prescribed by the statute, can not be urged by general demurrer, nor raised for the first time on appeal.</p>

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

<p>Appeal from the County Court of Harris. Tried before Hon. F. S. Burke, Special Judge.</p>

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

<p>1. Garnishment—Sale by Assignee for Creditors—Attack Upon.</p> <p>A firm executed a deed of trust for the benefit of certain preferred creditors which was attacked as fraudulent by another creditor, a bank, but was held valid. The trustees then sold the property to appellant, who resold it at a profit, which profit was not paid to her, hut was garnished by the bank, it charging that the sale by the trustees was fraudulent. Held, that the bank could not attack the sale by the trustee, because the deed of trust having been adjudged valid, if such sale was set aside the property would revert to the trustees for resale, and as the bank was not an accepting creditor, and according to its own allegations, the trust property was not sufficient to satisfy the preferred creditors, it could have no interest in the property or its sale; and further, its action in garnishing the profits resulting to the purchaser from the trustees’ sale was in affirmance of such sale.</p> <p>2. Trustee for Creditors Paying Claim with Individual Funds—Set-Off.</p> <p>One of the trustees in a deed for the benefit of creditors paid a rent claim against the trust property with money of his own, and having himself afterwards bought the trust property from appellant, who had purchased it from the trustees, he sought, to set ofi such payment of the rent claim against a balance due by him to appellant, for the property, on the ground that the rent claim was a lien on the property. Held, that he could not do this, since there was no warranty against such lien in appellant’s sale to him, and no knowledge or consent on her part to such payment of the rent claim, and it was his duty, as trustee, to have paid the claim out of the-trust fund so as to protect the title conveyed by the trustees.</p> <p>3. Same—Recovery Back of Such. Payments.</p> <p>Where trustees for the benefit of creditors allowed a rent claim against the-trust estate, and one of them paid it out of his own funds, instead of out of trust funds, he could not afterwards recover such amount from the rent creditor because-the latter had received a second satisfaction from sureties on the rent contract,. since such creditor was not bound to inquire and know that the claim had been paid by the trustee out oí private instead of trust funds, and was liable for payment back to such sureties out of the amount so paid by them.</p>

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

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

<p>Appeal from the County Court of Navarro. Tried below before Hon. J. F. Stout.</p>

<p>1. Damages—Mental Suffering—Breach of Contract.</p> <p>Mental anguish resulting from breach of contract is not an element of damages recoverable, unless the facts enabling the defendant to anticipate such result were known to him when making the contract—as the unprotected condition of the family of a plaintiff detained from them by failure of a railroad train to stop at a station.</p> <p>2. Harmless Error—Jurisdiction as to Amount.</p> <p>Error in sustaining exception to an item of fifteen dollars damages is immaterial where, exception to the other damage claimed being properly sustained, the court (district) was left without jurisdiction, through insufficiency of the amount properly alleged.</p>

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

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

<p>1. Accident Insurance—Cause of Death—Fact Case.</p> <p>For facts held sufficient to sustain a verdict finding that the death of the insured was caused by violent and external means, instead of the diseased condition in which he then was, see the opinion.</p> <p>2. Same—Same—Allegata and Probata.</p> <p>Where the petition in the suit on an accident policy averred that the death of the insured was caused from his having wrenched and hurt his back, ruptured his stomach, and dislocated one of his kidneys, and the evidence showed that the death was caused by injury either to his stomach proper, or to the pyloric orifice connecting the stomach with the intestines, with such effects as must have resulted from a rupture of the membrane, there was not such variance as to warrant the rejection of the evidence.</p> <p>3. Same—Disease and Voluntary Exposure Hot Contributing to Death.</p> <p>Recovery on an accident policy is not defeated by reason of a condition therein denying recovery if the death of the insured occurs while he is affected with disease, or is engaged in voluntary over-exertion or voluntary exposure to unnecessary danger, where the death occurred while the insured was ill and unnecessarily making a trip contrary to the advice of his physicians, but was not caused by the diseased condition nor the over-exertion, but entirely by an accident such as might have happened to anyone else.</p> <p>4. Attorney Fees—Penalty—Insurance Company.</p> <p>The statute allowing plaintiff in action against life or health insurance companies to recover 12 per cent damages and attorney’s fees is not obnoxious to the fourteenth amendment of the Federal Constitution. Rev. Stats., art. 3071.</p>

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

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

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

<p>1. Incorporation of Town for School Purposes Only—Petition for—Map.</p> <p>Under the Act of March 19, 1897, p. 45 (1 Sayles’ Revised Civil Statutes, article 616a), relating to the incorporation of towns for school purposes only, the limits of the proposed incorporation may be extended so as to embrace agricultural and rural lands; and where the petition for incorporation contains a statement clearly defining the boundaries thereof, it need not be accompanied by a map or plat of the town, as required by Revised Statutes, article 580, relating to the incorporation of towns for general municipal purposes. Furrh v. State, 6 Texas Civil Appeals, 221; State v. Bidson, 76 Texas, 302; MeClesky v. State, 4 Texas'Civil Appeals, 325, distinguished.</p> <p>2. Same—Infringing Upon Other Districts.</p> <p>The incorporation of a town for school purposes only under the Act of March 19, 1897, will not be held illegal because it infringes to a small extent upon other adjoining rural school districts established by the commissioners court.</p> <p>3. Same—Consent of Such Other Districts.</p> <p>Whether it would be necessary to obtain the consent of a majority of the voters in such other adjacent districts is not decided, since, in this case, the pleadings and evidence fail to show that the infringment is to any material extent, or that the consent of a majority of the'voters in such district was not obtained. Barrett v. Coleman, 12 Texas Civil Appeals, 663, and Junction City School Corporation v. Trustees, 81 Texas, 148, reviewed and distinguished.</p>

<p>1. Homestead of Insolvent Decedent—Title of Widow and Heirs Hot Absolute.</p> <p>Article 2055 of the Devised Statutes, which provides that should an estate upon final settlement prove to be insolvent, the title of the widow and children to all the property set apart to them, as exempt should be absolute, is held, as to the homestead, to be in contravention o£ article 16, section 52, of the Constitution. Following Zwernemann v. Yon Eosenberg, 76 Texas, 522.</p> <p>2. Same—Undivided Interest of Adult Heirs Subject to Execution.</p> <p>The undivided interest of adult heirs in the homestead of their deceased parents is subject to sale under execution, although the property is still occupied as a homestead by another minor heir not a party to the execution.</p> <p>3. Same—Injunction.</p> <p>An injunction will not lie at the instance of such minor in possession to restrain the sale at execution of the interest of the other adult heirs, since it would not affect her undivided interest in the property, nor operate to dispossess her, nor deprive her of the enjoyment of her homestead right therein.</p>

<p>1. Usury—Assumption of Usurious Debt.</p> <p>A purchaser of property who assumes a usurious debt as part of the purchase price is not entitled to plead the usury.</p> <p>2. Building Associations—Becoming Stockholder by Substitution.</p> <p>Where a borrowing member of a building association who has pledged his stock and given a mortgage upon land to secure his loan sells the land to another, who assumes his obligation to the association as part of the purchase price, and the association assents to the conveyance of the land, and thereafter recognizes and deals with the purchaser as a stockholder, receiving payments and dues from him on the shares of stock issued to such borrowing member, such purchaser thereby becomes a stockholder, though there be no transfer to him of the stock on the books of the association.</p> <p>3. Same—Sale of All Assets Terminates Contracts with Borrowing Members—Rescission.</p> <p>Where a building association, by a voluntary sale of all its assets in the interest of nonborrowing members, terminates its power to mature its stock by collecting dues and earning profits from loans as contemplated by its plan of organization, and upon which profits a borrowing stockholder has a right to rely, the latter has a right to a rescission of his loan contract, and to an equitable adjustment of his account with the association.</p> <p>4. Same—Adjustment of Account, How Made.</p> <p>In making such equitable adjustment of account, the borrowing member, if chargeable with no losses, should be debited with the sum loaned and legal interest thereon, and credited with all moneys paid by him, calculated on the principle of partial payments.</p> <p>5. Costs of Suit.</p> <p>Where, in an action brought by a borrowing member of a building association to cancel his loan contract, a rescission of the contract is had, and upon an equitable adjustment of the account a small balance is adjudged due the association, plaintiff is not entitled to recover costs because, prior to bringing suit, he had offered to pay defendant more than was awarded to it by the judgment—his pleadings making no tender, but claiming that there was nothing at all due.</p>

<p>Trespass to Try Title for Leased State School Lands—Burden of Proof as to Improvements.</p> <p>Plaintiff applied to the Commissioner of the General Land Office to purchase two sections of State school lands, then leased to defendants, alleging that defendants had not $200 worth of improvements thereon, as required by the statute and as stated in their' affidavit filed in the Land Office at the time the lease to them was made. His application to purchase having been rejected, plaintiff sued the lessees in trespass to try title for the lands, alleging that defendants had not $200 worth of improvement thereon, but on the trial there was no evidence adduced by either party as to the improvements. Held, that a judgment in plaintiff’s favor for the lands was not warranted.</p>

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

<p>1. Partnership Dissolution—Varying Written Contract.</p> <p>Where one partner sells out to the other and no mention is made in the written contract of dissolution of a personal debt due by the seller to the buyer growing out of the business and to have been paid at the seller’s convenience or when the profits of the firm business would justify it, it is not to be presumed that such debt was not taken into consideration, or was unaffected by the dissolution, and the jury may determine from all the circumstances attending the dissolution what was the intention of the parties in relation thereto, despite the rule as to varying written contracts by paroi evidence.</p> <p>2. Pleading—Debt Payable When Convenient.</p> <p>Where, in an action upon a due bill payable at the convenience of the maker, there is no attempt to declare upon the clause stating such condition, the petition is demurrable.</p> <p>3. Practice—Opening and Conclusion—Extent of the Admission.</p> <p>Where, after his demurrers to the petition were overruled, defendant, in order to obtain the right to open and conclude, admitted that plaintiff had a good cause of action as set forth in the petition, this did not estop him to complain of the error of the court in overruling his demurrers.</p>

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

<p>1. Transcript on Appeal—Costs, Where Too Voluminous.</p> <p>A failure to comply with the rules in the preparation of the transcript whereby it is several times more voluminous than it should be, is condemned and held in this instance to subject appellant to the costs thereof, and such failure in the future declared a cause for striking the transcript from the record.</p> <p>2. Contract for Sale of Cattle—Acceptance—Delivery.</p> <p>A contract for the sale of certain grades of cattle by defendant to plaintiffs provided that they were to be passed upon by plaintiffs at the ranch, and were then to be delivered by defendant f. o. b. at a given railroad point for shipment, with right reserved to plaintiffs to reject all unmerchantable or diseased cattle. Plaintiffs passed on the cattle at the ranch, and the defendant drove them to the shipping point and tendered them to plaintiff, when it was found that they were infested with ticks, which rendered them nontransportable to the point contemplated by plaintiffs in the ears they had provided. The cattle were not diseased by reason of being infested with ticks, though it rendered them nontransportable in certain directions. There was no warranty in the contract against ticks, nor did it provide against characteristics inhibited by a particular market or State, and no fraud or concealment was alleged. Held, that the title to the cattle passed to plaintiffs when they were passed upon and accepted.</p>

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

<p>Minor Emancipation—Liquor Dealer’s Bond.</p> <p>A minor over 19 years old, emancipated by his parents and doing business for himself, went into the retail liquor business with his brother as partner, the firm taking out a license from the State and giving the bond required by the statute, conditioned to permit no minors to enter and remain on the premises where thé liquors were sold. Held, that it was no infraction of the bond for such minor owner to remain on the premises and there conduct his business.</p>

<p>Minor Suing by Next Friend—Compromise Judgment Held Invalid.</p> <p>A widow brought an action for damages against a railway company for herself and as next friend for her minor daughter to recover for the death of her husband and father, and a judgment therein was rendered in favor of plaintiff in accordance with an agreement signed by the attorneys of both parties, which agreement fixed the total damages at $1000, and apportioned them in the sum of $997 to the widow, $1 to the minor child, and $1 each to two other adult children who were also plaintiffs, and the minor, through her said next friend, appealed from the judgment. Held, that as the compromise agreement made a division of the damages to the manifest detriment of the minor, and to the exclusive benefit 'of the next friend, who was legally incapacitated to represent her in that particular by reason of opposing interest, it would not warrant the judgment .</p>

<p>1. Evidence—Pricing of State School Land by Commissioner of the General Land Office.</p> <p>b'or secondary evidence held sufficient to show that the price of certain sections of State school lands had been reduced by the Commissioner of the General Land Office from $2 per acre to $1 per acre, see the opinion.</p> <p>3. Purchase of Leased State School Lands.</p> <p>An application to purchase, under Revised Statutes, article 4218s, State school lands already under lease to another, must show that the lease is not on record in the county where the lands lie, or that the lessee has neither a permanent supply of water thereon nor improvements thereon of the value of $200.</p> <p>3. Same—Cash Payment with Application.</p> <p>The Commissioner of the General Land Office properly rejects an application to purchase leased State school lands where, at the time he acts on it, the applicant has not deposited with the- State Treasurer- one-fortieth of the purchase price; and a deposit of such cash payment after the rejection will not require that the Commissioner should then award the lands to the applicant, since the rejected application is no longer pending before him.</p>

<p>Error—Suit by Administrator—Testimony of Party.</p> <p>To render harmless the error of permitting defendant, in an action by an administrator, to testify to transactions with the decedent, other testimony establishing the same defense must be conclusive.</p>

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

<p>Appeal from Nacogdoches. Tried below before Hon. Tom 0. Davis.</p>

<p>Appeal from Travis, Twenty-sixth District. Tried below before Hon. R. E. Brooks.</p>

Tried below before Hon. Marshall Surratt. The following are material portions of the answer of the jury to special issues, adopted by this court as findings of fact: The firm of A. and A. N. Schuster was, on December 5, 1893, indebted to Mrs. Lucretia Schuster in the sum of $6720. The deed of December 5, 1893, was executed by A. and A. N. Schuster to A. Judson Cole, as trustee for Mrs. Lucretia Schuster, and was received by her in payment and discharge of such debt.

<p>1. Evidence—Sufficiency.</p> <p>See evidence held sufficient to support conclusion that goods transported by a carrier to their destination were removed therefrom within twenty-four hours.</p> <p>8. Carrier—Warehouseman—Misdelivery of Goods.</p> <p>Where a carrier permitted goods consigned to shipper’s order (their draft on purchaser being attached to bill of lading sent to a bank) to be taken away by such purchaser, after arrival at destination, without paying the draft or producing the bill of lading, it was equally liable for their value whether its possession was that of a warehouseman or of a carrier and it was immaterial whether or not the trial court was correct in treating its liability, after arrival as that of a common carrier.</p> <p>.3. Same—Suit by Shipper Against Purchaser.</p> <p>A suit by the consignor at the instance and for the benefit of the carrier and judgment therein for value of the goods against one wrongfully converting them after their arrival at destination, did not affect the shipper's right of recovery against the carrier for misdelivery.</p>

Tried below before Hon. Ed. R. Sinks. From brief for appellant: Deceased was 39 years old at the time of his death. From testimony of C. C. Fawcett we find that deceased was a renter; that he usually cultivated from forty to fifty acres of land; that he was industrious, etc. With the help • of his family he raised on an average about ten bales of cotton per year, and from 300 to 350 bushels of corn. Out of this comes rent, one-fourth of the cotton, and $20 per year for corn.

<p>Vendor and Vendee—Partial Failure of Title—Sale in Gross.</p> <p>Where a sale of land is in gross, for a round sum, the purchaser can not recover back a proportionate part of the purchase money on failure of title to a part, except upon allegations showing the deficiency to be so great as to raise a presumption of fraud.</p>

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

Tried below before Hon. P. G-. Morris. Special charge number 3, requested by plaintiff in the trial court, was as follows: “You are instructed that unless the defendants Pace and wife established mutual mistake or fraud on the part of plaintiff in the execution of the deed of trust by a preponderance of the testimony, you -will find for plaintiff on these issues.” The following was applicant’s thirteenth assignment of error: “The court erred in not granting the motion of…

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

<p>1. Hon Est Eactum—Sufficiency of Evidence.</p> <p>See evidence held sufficient to support a finding that a note sued on, to which non est factum was pleaded,.was executed by defendants or by their authority.</p> <p>3. Execution of Instrument—Pleading—Agency.</p> <p>An allegation in the petition that a defendant signed and delivered the note sued on, to which defendant plead non est factum, was sufficient to admit evidence that his name was signed thereto by another, in his presence and by his authority.</p>

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

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

<p>Appeal from Bexar. Tried below before Hon. S. J. Brooks.</p>

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

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

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

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

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

<p>Appeal from Dallas. Tried helow before Hon. Richard Morgan.</p>

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

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

<p>1. Citation—Service—Foreign Corporation.</p> <p>A citation in an action against a foreign corporation commanding the officer “to summon Frick Company (serve E. T. Fletcher, with Myriek Ice Co.),” was sufficient, since the parenthetical matter was merely a suggestion, and not essential to the validity of the writ. Rev. Stats., art. 1223.</p> <p>2. Same—Local Agent—Amendment of Return.</p> <p>In an action against F. Co., a foreign corporation, the officer’s original return on the citation showed service on E. T. F., “agent of F. Co.” An order of court was had directing the officer to correct his return so as to give the correct name of the person served, and show that he was local agent in Texas of the defendant, and the officer thereupon corrected the return as to the agent’s name, but without changing the statement as to his agency. Held, that the amended return was sufficient, as it would be considered in connection with the order of court directing it to be made.</p> <p>3. Same—Same—“Doing Business in This State.”</p> <p>Where the record showed the defendant to be a foreign corporation, but there was no allegation that it was doing business in this State, and the court, in making an order directing the sheriff to amend Ms return on the citation, had found that the defendant had a local agent in the county where the suit was brought, this sufficiently supplied the want of such allegation, in so far as to render the service of the citation effectual.</p> <p>4. Interest on Open Account—From What Date Allowed.</p> <p>In an action on an open account for services rendered “in the fore part of 1897,” not stating when the account was due or that any interest had been agreed on, it was error to allow interest from January 1, 1897, since the statute prescribes that open accounts shall bear interest from January 1st after their date. Rev. Stats., art. 3102.</p>

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

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

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

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

<p>Appeal from the County Court of Fannin. Tried below before Hon. W. A. Evans.</p>

<p>1. Amendment of Pleading—Time of Filing.</p> <p>The rules of practice and procedure in the district and county courts are fixed by statute and by the rules prescribed by the Supreme Court, and the judges of such courts have not the authority to arbitrarily fix a certain day in the term after which amendments of pleadings may not be made.</p> <p>2. Same—Amendment at Time of Trial.</p> <p>Since the provision of article 1188, Revised Statutes, requiring that amendments must precede the announcement of ready for trial by the parties is held to be directory only, and District Court Rule 16 provides that when an amendment is presented at such a time as to take the other party by surprise it shall be ground for continuance and charging costs, it was error for the court to strike out an amendment offered by defendant after the case was called for trial and plaintiff had announced ready, merely on the ground that it was filed too late.</p> <p>3. Accident Insurance Policy—Other Insurance—Warranty.</p> <p>Where an accident insurance policy provided that “the assured makes the following statements which he warrants to be true, and such statements are hereby made a part of this contract,” followed by certain statements among which" is one that, “if during the period of this policy I take other accident insurance, I hereby agree to report the same to this company,” this latter stipulation was held not to constitute a warranty the breach of which would avoid the policy.</p>

<p>1. Contract with County—Requirement of Bond. '</p> <p>Where plaintiff’s contract with a county to print its delinquent tax list required that he should give bond for the faithful performance in a specified amount, and that until such bond should be approved by the county judge the contract should not be valid and binding, his petition in an action to recover on the contract was subject to demurrer in failing to allege that such bond had been given and approved.</p> <p>2. Same—Printing Delinquent Tax List—Liability Not Shown.</p> <p>Plaintiff contracted with a county to publish its delinquent tax list for 25 cents per tract, to be paid by and collected as costs from the delinquent taxpayers through the county treasurer, the county not to be hable therefor at all. He presented his account to the county for approval according to its terms, which was refused, and having sued the county in the County Court for the sum total of the account, $496.50, it was held that the county was not liable therefor because of its said exemption from liability by the terms of the contract; a.nd plaintiff’s further contention that some of the costs due under the contract had been paid to the county treasurer, and that other costs would continue to be paid as the taxes were paid, all of which he was prevented from collecting by the wrongful refusal to approve the account, was held not tenable, his allegations on this point not being sufficient to charge the county for money had and received by its county treasurer for plaintiff’s benefit because not averring the amount so received, nor from whom received, nor showing</p> <p>that the amount was sufficient to confer jurisdiction on the County Court, nor setting forth any reason for the failure to give such amount.</p> <p>3. Constitutional Law Excluding Legislators from Certain Contracts.</p> <p>Under the provisions of the Constitution (section 18 of article 3) forbidding members of the Legislature to be interested in any contract with the State or a county made by virtue of a law passed while he was a member, it is immaterial that at the time he becomes interested in such contract his term of office has expired.</p> <p>4. Same—Colquitt Delinquent Tax Law.</p> <p>Although the delinquent tax law passed by the Twenty-fifth Legislature may not have increased the fees to be paid for publishing delinquent lists, yet as it reenacted the law on that subject as a whole, it was “passed” by that Legislature within the meaning of the constitutional prohibition, and a member thereof could not lawfully contract with a county under its terms to publish the delinquent tax list.</p>

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

<p>1. Incorporation of Towns—County Judge Ordering Election for—Proof Before.</p> <p>An application was made to the county judge to order an election for the incorporation of a town under the general law, signed by' eighty-two citizens, and stating that the town contains more than 1000 inhabitants. The judge had resided for many years in the town, and, acting on his own knowledge and the representa tians in the application, ordered the election without formal or other proof as to the number of inhabitants. Held, that the order was not void, as this was a sufficient compliance with the requirements of the statute that he should order the election “if satisfactory proof be made that the town contains the required number of inhabitants.” Rev. Stats., arts. 580, 581.</p> <p>2. Same—Action of Judge Conclusive.</p> <p>The determination of the county judge that the town contains the required number of inhabitants when he ordered the election must be held conclusive where no fraud is alleged or shown.</p> <p>3. Same—Proceedings Held Hot Premature—Repealing Act.</p> <p>A town bad been incorporated under a special act of the Legislature, which was subsequently repealed. After the adjournment of the Legislature which passed the repealing act, but before it had gone into effect, an order was made for an election, to be held at a date subsequent to that on which such act would take effect, to determine whether the town should be incorporated under the general law. .Held, that the order was not invalid because made while the old incorporation was still in force.</p> <p>4. Local Law—Thirty Days H o tice—Presumption.</p> <p>Where a local law is brought in question, but it is neither pleaded or proved that the thirty days notice of intention to apply for its passage was not given, it will he presumed that it was passed in conformity with the constitutional requirement in this respect. Const., art. 3, sec. 57.</p> <p>5. Incorporation of Town—Area Held Hot Excessive.</p> <p>The incorporation of a town of something more than 1000 inhabitants with an area of 2500 varas square (1107 acres), will not, under the statute prohibiting incorporations with an excessive area be held invalid because 400 acres are used as agricultural lands, where it appears that they are suitable for town purposes, and that the town is a growing one. Eev. Stats., art. 580.</p> <p>6. Practice on Appeal—Exceptions to Findings Below.</p> <p>Where, in a case tried below without a jury, the record shows that the judgment overruling a motion for new trial was excepted to the appellant is not precluded from attacking the trial court's finding of law and fact, though exceptions were not taken below to such findings.</p>

<p>1. Assignment for Creditors—Acceptance—Garnishment.</p> <p>Where a general assignment for the benefit of creditors has been made, and a creditor of the assignor has garnished a debt due by virtue of the assignment to the assignee, such creditor’s acceptance under the assignment, reserving the right to pursue the garnishment, and made for the residue of his debt after the amount garnished shall have been applied to its satisfaction, may be rejected by the assignee, who has the right to require an unconditional acceptance.</p> <p>2. Same—Acceptance After Four Months Too Late.</p> <p>A creditor’s notification to the assignee of his acceptance under a general assignment for the benefit of creditors, given after the expiration of the four months within which the statute requires that such acceptance shall be made known, comes too late, where the assignee had already declared a partial dividend among the accepting ereditoi’s, and the reason for the delay in such acceptance was that the creditor, after the assignment, had resorted to a garnishment which put in question the right and title of the assignee to the garnished fund. Rev. Stats., art. 75.</p>

<p>Appeal iom Henderson. Tried below before Hon. A. B. Lipscomb.</p>

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

<p>Appeal from Fannin. Tried below before Hon. A. P. Park. Special Judge.</p>

<p>1. Case Followed.</p> <p>The former decision in this case (City of Corpus Christi v. Central Wharf Company, 8 Texas Civil Appeals, 94), to the effect that the contract sued on herein was ultra vires, but that, having been fully /executed by the parties thereto, such defense could not be urged by the defendant in the action, is adhered to.</p> <p>S. Municipal Corporations—Constitutional Law.</p> <p>The Act of March 15, 1875, repealing all other laws relating to the incorporation and franchises of the city of Corpus Christi, is not violative of article 12, section 46, of the Constitution of 1869 as amended in 1873, prohibiting the passage by the Legislature of any local or special laws incorporating cities or towns, or changing or amending their charters, since the intention of that article is to prohibit the granting of special favors by the Legislature, and not to deprive it of its inherent power of repealing its former laws.</p> <p>3. Same—City’s Lease of Franchises Without Consideration.</p> <p>A lease by the city of Corpus Christi to a wharf company of certain rights and franchises granted to it by a former act of the Legislature which had then been already repealed by the Act of March 15, 1875, was wholly without consideration, and the city could not recover thereon.</p>

<p>Appeal from the County Court of Fayette. Tried below before Hon. Joseph Ehlingee.</p>

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

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

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

<p>Appeal from Clay. Tried below before Hon. A. H. 0abrigan.</p>

<p>Sale Under Deed of '.Trust—Notice—Change of Law.</p> <p>A deed of trust was executed in 1889 after the taking effect of the act passed that year (Revised Statutes, article 2369) regulating sales of real estate made under powers conferred hy deeds of trust, and providing that notice of such sale “shall be given as now required in judicial sales.” The law then in force regulating judicial sales did not require that notice of the sale should be personally served on the owner of the property. Held, that a sale under the deed of trust, made after the law as to judicial sales was so changed as to require personal notice thereof to the owner (Revised Statutes, article 2306), was not invalid because made without such personal notice.</p>

<p>1. Election for Issuance of Bonds—Taxpayer.</p> <p>Under the law regulating elections to determine whether bonds shall be issued and restricting the right to vote therein to taxpayers of the county (Acts 1899, p. 258), one who owns property in the county at the date of the election, but who did not own it on January 1st of that year, so as to be a taxpayer chargeable by law with taxes for that year, is not a qualified elector.</p> <p>2. Same—Tax Bolls—Prima Facie Evidence.</p> <p>Where such election is held in October, after the rolls are made up, the fact that a voter’s name does not appear thereon is prima facie evidence that he is not a taxpayer.</p>

<p>Limitation and Laches—Action to Reform a Bond—Mutual Mistake.</p> <p>A bond of indemnity in the sum of $10,000 was so carelessly drawn that its conditions were patently unintelligible and the contingency upon which it was to become payable did not appear. The obligee could not read, but was a thrifty business man of considerable property, and in the transaction had the assistance of his son and son-in-law, the latter of whom read over the bond before its acceptance and so criticised it as to excite inquiry as to its sufficiency. More than ten years thereafter the obligee, in whose possession the bond had remained from its date, brought suit to reform the instrument and to recover thereon. Held, that as the case was one of mutual mistake, and as no sufficient excuse for the failure to sooner discover the error and bring the suit was shown, the action was subject to the legal defense of limitations and also the equitable defense of stale demand.</p>

<p>1. Contributory Negligence—Passenger Leaving Train.</p> <p>Where a passenger train has made its regular stop of ten to fifteen minutes at a station for the purpose of changing engines, a passenger is not guilty of contributory negligence in getting off the train there and standing on the platform near by it, nor in waiting for the customary signals to get on the train before attempting to do so.</p> <p>3. Negligence—Charge of. Court.</p> <p>A charge of court that if the defendant negligently started its train (which had stopped ten to fifteen minutes to change' engines) before plaintiff had reasonable time to return to and reboard it, and plaintiff was injured thereby as alleged by him, this would be negligence in the defendant, does not present reversible error in a case where the facts proved show that the defendant was guilty of negligence in so starting the train.</p> <p>3. Contributory Negligence—Burden of Proof.</p> <p>The burden of proof is on the defendant to prove the acts of contributory negligence alleged in his answer.</p>

<p>1. Garnishment—Failure of Garnishee to Answer Fully—Judgment by Default.</p> <p>Where a garnishee fails to folly answer the interrogatories in the commission issued to take his answer as a garnishee, no certificate by the officer of such failure to answer is necessary, since the failure in such case is patent, and the court may, upon sustaining a motion to strike out the answer as insufficient, proceed to render judgment by default against the garnishee as for want of an answer. Revised Statutes, articles 237, 238, construed.</p> <p>2. Same—Notice to Garnishee Not Necessary.</p> <p>Where a garnishee, whether residing in the county where the suit is pending or in another county, answers the writ of garnishment and files his answer in court, it is not necessary to serve him with notice of a motion to strike out the answer because insufficient, and for judgment by default as for want of an answer.</p>

<p>Appeal from Crosby. Tried below before Hon. S. I. Newtoh.</p>

<p>1. Land Certificate—Location in Part—Locative Interest.</p> <p>G. took a transfer of one-half of a land certificate that had been issued to B. for 640 acres, the consideration of the transfer being G.’s agreement to locate the certificate; and having located one-half of it in a separate tract, he returned the certificate along with the field notes to the General Land Office, stating in his letter to the Commissioner that the location he had so made was for the heirs of B., and that he desired the issuance of an unlocated balance certificate for the other half, to be located for himself under the transfer. This latter certificate G.’s brother located on land adjoining other lands owned by G., but because of conflict the location failed and the certificate became barred. Held, that the evidence conclusively showed that the first location was made exclusively for the heirs of B., and that the title thereto fully vested in them and their grantee as against G. and his heirs.</p> <p>2. Same—Evidence.</p> <p>The recital in the field notes of the tract first located, that the location was made for G., was at best but the statement of the officer making the survey, and was not necessarily inconsistent with the idea that in so malting the location G. was acting for the heirs of B.</p>

<p>Appeal from Harris County, Eleventh District. Tried 'below before Hon. John G. Tod.</p>

<p>Party Wall—Contract—Privity.</p> <p>Plaintiffs who, under contract with defendant, erected for him a building which included a party wall on the boundary between him and an adjoining proprietor, could recover of defendant the entire contract price, though contemporaneously they built for such adjoining proprietor and received, under their contract with him, pay for one-half of such wall.</p>

<p>Bes Judicata—Discharge of Principal—Sureties.</p> <p>Plaintiffs seeking damages for taking their property upon attachment, against another, can not, after having been defeated upon the merits in a suit therefor against the officer and the plaintiff in attachment, maintain suit upon the same cause of action against the sureties upon the indemnity bond given by the plaintiff in attachment to the officer in order to procure the levy.</p>

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

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

<p>Telegraph. Company—negligence—Contributory negligence—Damages.</p> <p>In a suit against a telegraph company for failure to deliver a dispatch to plaintiff from his agent in charge of a distant ranch, informing him of a failure of water thereon, damages to cattle for want of water being claimed because plaintiff, by failing to get the dispatch, was prevented from making timely arrangements to secure other water and range, which his agent could not effect,—it was necessary, in the absence of limitation on the agent’s powers, to show his inability to make such arrangement without plaintiff’s personal presence and influence.</p>

<p>1. Boundary—Conflicting Locations—Burden of Proof.</p> <p>Where a suit for land between claimants of different locations turns upon the question of boundary, plaintiff, holding under a junior location, has the burden of showing that defendant’s locations conflict with his own, though his is patented and defendant's are not.</p> <p>2. Same—School Land.</p> <p>Especially would this be the rule where defendants claimed as purchasers of land surveyed and set apart to the school fund as alternate sections of railroad grant surveys made before plaintiff’s location, and not patentable to the State or the school fund, but only to subsequent purchasers.</p> <p>3. Boundary—Conflicting Locations—Special Verdict—Additional Bindings—Harmless Error.</p> <p>In ease it should be held that a verdict of the jury upon special issues, that it could not determine the extent of the conflict which it found to exist between locations claimed by plaintiff and defendants respectively, precluded the court from making further findings establishing the extent of such conflict, his action in so doing was not error of which plaintiff could complain; the burden being on him to show the extent of the conflict, the verdict without such additional findings would only have warranted judgment against him for all defendants claimed.</p> <p>4. Constitution—Title of Act—Counties—Surveys.</p> <p>An Act of the Legislature entitled, “An Act attaching certain counties therein named to the counties of Jack and Montague for judicial and other purposes,” and which attached Hardeman and Young counties to Jack and Montague for surveying purposes (Act November 6, 1866) was not unconstitutional for failure to sufficiently describe such object in its title.</p> <p>5. ' Location—Estoppel of State—Commissioner of Land Office.</p> <p>The Commissioner of the General Land Office having, at the time of plaintiff’s location, no right to dispose of public school lands, the State and its grantees could not be estopped from claiming as against such location, lands previously set apart by surveys to the school land and conflicting with plaintiff’s location though the maps and records of the Land Office showed at the time that no such conflict existed.</p> <p>6. Same—Estoppel—Purchaser with Warranty.</p> <p>By Justice Key .—Plaintiff can not avail himself of such claim by estoppel, where he shows that he purchased the land sued for with warranty, and does not allege insolvency of the warrantor, failing therein to show ultimate injury.</p>

<p>1. Sheriff’s Sale—Inadequate Price—Collateral Attack.</p> <p>In trespass to try title, inadequacy of price (not gross) paid by defendant in purchase of the land at sheriff’s sale can not avail plaintiff, the attack on the sale being collateral.</p> <p>2. Sheriff’s Sale—Advertisement—Collateral Attack.</p> <p>That a sheriff’s sale was made without advertising it for the time prescribed, is only an irregularity, rendering the sale voidable, not void, and not subject to collateral attack in a suit of trespass to try title.</p> <p>3. Community Property—Innocent Purchaser—Notice.</p> <p>One purchasing property for a consideration not grossly inadequate, under execution against a holder of the legal title, is protected against the heirs of the community interest of the deceased wife of such owner, of whose death he had no notice, and knowledge by such purchaser’s agent that the owner had. a son will not put him upon inquiry as to such son’s interest.</p> <p>4. Innocent Purchaser—Possession—Notice.</p> <p>Possession by purchasers at sheriff’s sale under a judgment duly recorded and indexed, is notice of their rights to a subsequent purchaser from defendant in execution.</p> <p>5. Description—Sheriff’s Deed.</p> <p>See description of land in a sheriff’s deed held sufficient to identify it.</p> <p>6. Recovery of Land—Damages—Merger.</p> <p>Purchase of the land sued for, by defendants at sheriff’s sale, under execution against plaintiff, extinguished plaintiff's claim in the pending suit for damages for coal mined by defendants on the land before such purchase, the same being merged ■ in the title.</p>

<p>1. Registration—Tax Sale—Innocent Purchaser—Inadequate Consideration.</p> <p>The fact that property worth $1000 was purchased at tax sale for $30.18, will support a finding by the trial court that the purchaser, because of gross inadequacy, was not an innocent purchaser nor entitled to protection against an unrecorded deed.</p> <p>2. Unrecorded Deed—Purchaser for Existing Debt.</p> <p>One buying property in consideration of a pre-existing debt is not an innocent purchaser for value, as against the holder of an unrecorded deed.</p> <p>3. Deed—Delivery—Registration.</p> <p>See facts held to show delivery of a deed from husband to wife, passing title to her, though the deed was not recorded and was afterward destroyed.</p> <p>4. Estoppel—Inventory—Executrix.</p> <p>An executrix inventorying one-half of a lot of land as estate of her deceased husband was not estopped thereby from claiming legal title to the entire lot through a previous deed from her husband, as against purchasers claiming it under a sale for taxes assessed against the husband.</p>

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

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

<p>1. Justice Court—Jurisdiction—Waiver of Privilege—Judgment Not Void.</p> <p>Where a party is sued in a justice court of a county other than that of his residence, and fails to appear and plead his privilege to be sued in the county where he resides, he can not have a sale of land made in satisfaction of a judgment by default rendered against him, in such suit set aside on the ground that the court had no jurisdiction, since his failure to appear and claim his privilege was a waiver thereof.</p> <p>53. Same—Stating Number of Case in Citation.</p> <p>A judgment by default rendered in justice court is not void because the citation fails to state the number of the case, since the statute does not specially require the numbering of causes and citations in that court, as it does in reference to district courts. Revised Statutes, articles 1178, 1214, construed.</p> <p>3. Execution Sale—Inadequacy of Consideration.</p> <p>A sale under execution for $65 of property of the market value* of $150 will not be held void because of inadequacy of consideration.</p> <p>4. Same—Tender of Debt and Cost After Sale.</p> <p>It is no ground for setting aside a sale of land under execution to the judgment creditor for something more than one-half its market value that a few hours after the sale the debtor tendered to such purchaser the amount of the judgment and costs, which he declined to_ take for the land, insisting that he should also have his attorney’s fee of $6.50 in the case.</p>

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

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

<p>1. Practice on Appeal—Special Issues—Presumption.</p> <p>Where a case was submitted on special issues, and there is no statement of facts in the record, it will be presumed in reference to an issue that was not submitted nor requested to be submitted, that sufficient evidence was adduced to support a finding in plaintiff’s favor thereon. Rev. Stats., art. 1331.</p> <p>2. Municipal Corporation—Liability for Defective Bridge in Street.</p> <p>The mere stopping of one passing over a public street to converse with another, and leaning against the railing of a bridge that forms a part of the highway, thus bringing about a fall because of defect in the railing, does not, per se, and on the ground that he was not using the bridge for its proper purpose, forfeit the protection from injury that is enjoined upon cities to properly construct and keep in repair their streets.</p>

<p>Appeal from Fannin. Tried below before Hon. A. P. Park, Special Judge.</p>

<p>1. Jurisdiction of District Court Over Acts of Commissioners Court.</p> <p>Neither the Constitution nor the statute has conferred on the district court jurisdiction to review the action of the county commissioners court in the matter of fixing the boundaries of a school district. Rev. Stats., art. 1099.</p> <p>2. Pleadings—Particularity in Averment of Damages.</p> <p>A petition alleging in general terms that plaintiff would be inconvenienced and financially injured by the action of the commissioners court complained of, in fixing the boundaries of a school district, but not stating in what respect, does not allege the damages with sufficient particularity.</p>

<p>1. Practice—Evidence Not in Rebuttal—Harmless Error.</p> <p>In an action by plaintiff against a city for personal injuries to himself and wife resulting from an unguarded ditch in the street, it is not ground for reversal that the trial court permitted the wife to testify, in rebuttal, as to the nature and extent of her injuries, when the city had introduced no evidence on that issue,—her evidence being merely corroborative of that already given by the husband, and it not appearing that the city was surprised or improperly injured thereby.</p> <p>2. Charge of Court.</p> <p>Where, in the main charge, the court has instructed that plaintiff must prove the facts making out his case by a preponderance of evidence, there is no error in refusing to give a charge to the same effect requested by defendant.</p> <p>3. Same—Negligence—Statutory Duty.</p> <p>The violation of a statutory duty, such as a failure to put out, as required by a city's ordinances, danger signals at night where a ditch is being dug across a street, is negligence as a matter of law, and the court may so charge.</p> <p>4. Uity—Liability for Street Injury—Implied Consent.</p> <p>Where a city impliedly consents to the temporary digging of a ditch in its streets by private parties, it is liable for injuries resulting from their negligence in failing to pub out danger signals or barriers to guard it at night.</p> <p>5. Same—Joint Tort Feasors—City May Recover Over.</p> <p>The city’s consent will be implied only to the digging of the ditch in a lawful manner and in compliance with its ordinances requiring such temporary obstruction to be properly guarded; and not being a joint tort feasor in the failure to properly guard the ditch, it may have judgment over against the parties doing the work for the amount adjudged against it for injuries resulting from their negligence in failing to put out danger signals.</p> <p>6. Same—License—Presumption—negligence.</p> <p>License to commit negligence will not be presumed against the city from the overlooking by it of negligence committed on former occasions in similar cases.</p> <p>7. Same—Attorney Fees.</p> <p>A city can not recover attorney’s fees against parties digging a ditch in the streets and failing to properly guard it, in addition to a judgment over against them for damages recovered from the city for injuries resulting from such negligence.</p>

<p>1. Sureties on Appeal Bond—Discharge—Invalid Agreement.</p> <p>Sureties on a supersedeas writ of error bond are not released from liability by an agreement of the obligees made without their knowledge, and which is invalid and proves ineffectual, to the effect that the filing'of the transcript in the Court of Civil Appeals might be made after the time had expired in which it could legally be filed.</p> <p>2. Same—Deposit for Sureties.</p> <p>Money deposited to indemnify sureties on an appeal bond may be lawfully applied to a judgment against them as such sureties, although it is deposited with a bank, and by a receiver of the principal, where it is held by the bank subject to their control, and the receiver had authority to so use the money.</p>

<p>Appeal from Grimes. Tried below before Hon. J. M. Smithes.</p>

<p>1. Mortgage Mot Merged by Assignment to Purchaser of the Property.</p> <p>Where the owner of property subject in part to a judgment lien, and also in whole to a prior mortgage lien, sold the property to a purchaser who assumed the mortgage debt, and to whom the mortgagee assigned the mortgage, it being the intention of all the parties that the lien of the mortgage should be kept alive for the purchaser’s protection against the judgment, there was no extinguishment of the mortgage lien by operation of merger.</p> <p>2. Same—Subrogation Mot Applicable.</p> <p>The doctrine of subrogation has no application in this case, since, by virtue of the agreement and intention of the parties, the mortgage lien was kept alive, and was not extinguished.</p> <p>3. Same—Bond of Indemnity Mot Affecting the Purchase.</p> <p>Nor did the fact that the purchaser also took a bond of indemnity from the owner, their grantor, against the junior judgment lien, affect the question, since this was in no sense a satisfaction of the mortgage lien, and the liability of the obligors on it was continued.</p>

<p>Appeal from the County Court of Smith. Tried below before Hod. George W. Cross.</p>

<p>Appeal from, the County Court of Smith. Tried below before Hon. George W. Cross.</p>

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

<p>Appeal from Galveston. Tried below before Hon. B. D. Gavin.</p>

<p>1. Practice on Appeal—Briefs—Assignments and Propositions.</p> <p>Where fourteen assignments of error relating to different matters are copied together in the brief, followed by twenty-seven separate and distinct propositions, which can not relate to every one of the assignments, there is a failure to comply with rule 30, prescribing how cases shall be briefed, such as precludes consideration of the assignments.</p> <p>2. Bailway Company—Cattle Shipment—Duty of Furnishing Cars.</p> <p>When a railway company agrees to furnish stable cars for shipment at a designated time and place, it ,can not avoid the consequences of a breach of its duty to do so, by showing that its road is not equipped with ears of that character.</p> <p>3. Same—Suitable Cars and Stable Cars.</p> <p>Where plaintiffs sued for damages resulting from defendant’s failure to furnish them with suitable cars as agreed, a requested charge limiting the issue to a failure to furnish stable cars was properly refused, although it might be inferred from the evidence that stable cars were the kind contemplated by the parties. •</p> <p>4. Same—Charge of Court—Different Grounds of Becovery.</p> <p>Where plaintiffs’ case presented two grounds of recovery, one for failure of defendant to furnish suitable ears for the shipment of the cattle at the time and place agreed on, and the other for defendant’s failure to furnish cars within a reasonable time after plaintiffs tendered the cattle for shipment, a charge eliminating the second ground from the consideration of the jury was properly refused.</p> <p>5. Evidence—Whole Conversation Admissible.</p> <p>Where part of a conversation is introduced in evidence by one party, the other may give in evidence such other parts of the conversation as explain the part admitted.</p> <p>6. Railway Company—Apparent Authority of Agent—Unknown Limitation.</p> <p>Where the contract of shipment made by plaintiffs with the general live stock agent of the railway company was within his apparent authority, it was not error to exclude testimony of instructions to such agent by the company of which plaintiffs had no knowledge.</p> <p>7. Same—Opinion as to Cause of Death of Cattle.</p> <p>Where a witness for defendant had seen the cattle before shipment, but had not seen them, and knew nothing of their treatment or condition, after shipment, nor of intervening causes which there was evidence to show might have caused" their death, it was not error to exclude his opinion that the death of the cattle was caused by poor feed for some months prior to the shipment.</p> <p>8. Same—Expert Testimony.</p> <p>Even though such witness was an expert, his opinion was valueless without a knowledge of all the facts that might have contributed to the death of the cattle.</p> <p>9. Same—Estoppel as to Evidence.</p> <p>The exclusion by the court of the opinion of defendant’s witness as to the cause of the death of the cattle was. justified on the further ground that, upon a similar objection by the defendant, it had already excluded the opinion by plaintiffs’ witnesses that the death of the cattle resulted from their detention in the shipping pens while waiting for cars.</p>

<p>Appeal from the County Court of Ellis. Tried below before Hon. J. E. Lancaster.</p>

<p>Appeal from Fisher. Tried below before Hon. J. M. Wagstaee, Special Judge.</p>

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

<p>1. Jurisdiction of District Court—Enjoining Public Road.</p> <p>Where plaintiff’s petition was for an injunction to restrain the taking of his land for public road purposes by virtue of proceedings alleged to be void, no amount of damages being alleged or sought to be recovered, the case was one falling within the residuary clause of the Constitution giving to the district court general original jurisdiction over all causes for which jurisdiction is not otherwise provided. Const., sec. 8, art. 5.</p> <p>2. Public Road—Jurisdiction of Commissioners Court—Waiver.</p> <p>The statutory notice of application to the commissioners court for the opening of a public road, and the requirement that all roads shall be laid out by a jury of view, not being essential to the jurisdiction of such court over proceedings to open a road, may be waived by an agreement of parties across whose land the road is opened. Rev. Stats., arts. 4686, 4688.</p> <p>3. Same—Jurisdiction Hot Limited—Cases Disapproved.</p> <p>The commissioners court has general power and jurisdiction in the matter of public roads, and the words “as hereinafter prescribed,” at the end of article 4671, Revised Statutes, limits such power only as to discontinuing or altering roads, and do not render the requirement as to notice of application for the opening of a new road a jurisdictional matter. Cummings v. Kendall County, 7 Texas Civil Appeals, 165, and other cases, reviewed and not followed.</p> <p>4. Same.</p> <p>Where, in an action to enjoin the opening of a public road, a party plaintiff alleges no pecuniary damage to himself, and his only interest consists in residence in the neighborhood of the road, he shows no such actionable interest or injury as will entitle him to maintain the action.</p>

<p>Xife Insurance—Forfeiture—Waiver.</p> <p>A life insurance policy having lapsed by failure of insured to pay a quarterly premium, the next succeeding premium was remitted by him on receipt of notice that it was due;he was then notified of the forfeiture and of the terms of reinstatement— by remitting the unpaid installment and sending health certificate; he sent the payment but not the certificate; the insurer collected his checks sent for the two payments, placing the amount to his credit in a “suspense account," to be returned if he failed" to send health certificate; with the matter standing thus, insured died. Held, that there was no waiver of the forfeiture, and in a suit on the policy the court should have directed a verdict for defendant.</p>

<p>Appeal from Fannin. Tried below before Hon. A. P. Parks, Special J udge.</p>

<p>Appeal from Roberts. Tried below before Hon. B. M. Baker.</p>

<p>1. Carriers—Shipment of Live Stock—Damages.</p> <p>Dor evidence held to authorize a verdict of damages against a railway company in favor of a shipper whose cattle, by reason of defendant’s failure to furnish cars for eight days after the time agreed on, shrunk in weight, and were thereby also reduced to a lower class, having a lower market value according to actual weight, see the opinion.</p> <p>2. Same—Evidence of Damage—Objection to Competency—Practice.</p> <p>Where plaintiffs’ cattle were shipped to St. Louis and sold there, and the only evidence of the price at which they were sold was that of plaintiff, who was in Texas at the time of the sale, and who testified that the cattle brought $3.60 per 100 pounds, the jury .were authorized to conclude that they sold at that price, and to figure out their verdict on that basis, and an objection that such evidence could not legally support the verdict for plaintiff, going in effect to the competency of the evidence, could not be first raised on motion for new trial.</p> <p>3. Same—Charge—Harmless Error—Issue Practically Eliminated.</p> <p>Where the charge submitted to the jury as the only issue, whether defendant made an express contract to furnish plaintiff with cars for the shipment of his cattle on a certain day, and the verdict was in plaintiff’s favor on that issue, it was not reversible error for the court to refuse a charge, although there was evidence warranting it, that if such contract was not made, and at the time plaintiff’s cattle were offered for shipment defendant could not furnish the cars because of an unusual press of business, they should find for defendant, since the finding on the issue submitted necessarily precluded a finding in defendant’s favor on the other.</p>

<p>1. Assignment of Error.</p> <p>An assignment asserting error in the overruling of six different special exceptions, raising separate and distinct questions as to the sufficiency of the adversary’s pleading, will not be considered.</p> <p>2. Evidence—Certificate by State Officer.</p> <p>A certificate by the State Treasurer of the deposit of money for purchase of school land showing that it was returned because advised by the Commissioner of the General Land Office that the application was rejected because a prior application was on file, is no evidence of the facts so learned by the Treasurer from another office.</p> <p>3. Same—Indorsements in Land Office.</p> <p>A mere unsigned memorandum made in the Land Office on the back of an application to purchase school land is no evidence of the truth of the facts noted in such memorandum.</p> <p>4. Purchase of School Land—Pacts Showing Applicant an Actual Settler.</p> <p>See opinion for evidence held sufficient to establish the status of an applicant to purchase school land as an actual settler.</p>

<p>1. Continuance.</p> <p>Where a first application, for continuance was refused, but the case was reset for a later day of the term; and being then called continuance was again applied for by the same party, the application did not come under the statutory rule, but is addressed to the discretion of the court.</p> <p>2. Trial by Court—Weighing Testimony.</p> <p>The court trying a case without a jury was not bound to accept as true the uncontradicted testimony of a party as to his damages.</p> <p>3. Damages—Held Hot Inadequate. ■</p> <p>See evidence under which an assessment of- damages for delay in completing, according to a contract, a building leased during construction was held not inadequate.</p> <p>4. Contract—Execution—Stamping Corporate Hame.</p> <p>Affixing, by the bookkeeper, by means of a stamp, to a written contract, by direction of the managing officer of the corporation, its corporate name, in form: “Houston Horse, Mule, and Livery Co., Per-,” constituted a signing of the instrument.</p> <p>5. Contract— Performance—Acceptance.</p> <p>Acceptance, by the promissee, of an imperfect compliance with a contract is equivalent to performance.</p>

<p>1. Procedure—Delay in Filing Motion—Error Mot Waived.</p> <p>A motion to strike out a statement of facts because not prepared in accordance with the rules will not be disregarded because not filed within the time required; it is the duty of the appellate court to enforce the rules without motion.</p> <p>3. Statement of Facts—Disregard of Buies—Striking Out.</p> <p>See opinion for violation of the rules in regard to preparation of statement of facts held sufficiently flagrant to require that it be struck from the record.</p> <p>3. Errors Mot Considered in Absence of Statement of Facts.</p> <p>Neither the sufficiency of the evidence nor error in rulings on introduction of evidence or in overruling motion for new trial on account of newly discovered evidence, can be considered in the absence of a statement of facts.</p>

<p>1. Sequestration.—Bond.</p> <p>A sequestration issued without bond should be quashed on motion, though proper bond was filed on the day following its issuance.</p> <p>2. Suit Commenced on Sunday—Sequestration.</p> <p>Though sequestration suits may be commenced on Sunday, when the writ is quashed because issued 'without bond, the suit should then be dismissed on motion, as being an ordinary action commenced on Sunday.</p>

<p>1. Husband and Wife—Changing Separate into Community Property.</p> <p>A married woman may make a gift of her separate real estate to her husband by joining with him in a conveyance to a third party, who reconveys to the husband; but they can not, by such arrangement, convert it into community property.</p> <p>3. Same—Deed Construed.</p> <p>A deed to the wife’s separate property, by the husband and wife, for the expressed purpose of divesting her separate estate and enabling each to “have and enjoy an equal, undivided, community interest,” to the' end that it might be "community property,” and to avoid “keeping separate accounts,”—which conveyed the property in trust “for the purpose of conveying the same to” the husband “as the community property” of himself and wife, and in pursuance of which it was reconveyed by the trustee to the husband, to be “the community property” of the husband and wife, —could neither be given the effect of a deed of gift of the land to the husband nor operate to convert it into community property; the transaction was ineffective for any purpose, and the deeds should be canceled.</p>

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

<p>1. Description of Land—Probate Sale.</p> <p>See description in probate sale proceedings held insufficient to identify land claimed thereunder.</p> <p>2. Trial—Reopening Case for Evidence.</p> <p>No reversible error was committed in refusing to permit the introduction of further evidence during the argument or after it had closed.</p> <p>3. Default—Effect of Judgment for Codefendant—Warrantor.</p> <p>Defendants against whom default had been taken were entitled to judgment in their favor where their codefendants holding the same title, who had conveyed to them and were liable on their warranty, interposed a successful defense, though the latter did not defend for their vendees and were not impleaded as warrantors.</p> <p>4. Contenancy—Answer of One.</p> <p>See opinion as to answer of one joint owner enuring to the benefit of his co-tenants.</p> <p>5. Partition—Pleading.</p> <p>Decree of partition must be based upon proper pleading seeking such judgment.</p>

<p>X. Evidence—Fraudulent Conveyance—Vendor’s Subsequent Declarations.</p> <p>In support of the claim by plaintiffs that a deed of land in controversy by their debtor to defendant was fraudulent, declarations by such grantor, who had still retained possession, though made after he had conveyed, that the conveyance was simulated and made to keep creditors from seizing the property, are admissible against the grantee, as being res gestae and qualifying such possession.</p> <p>3. Fraud—Presumption—Charge.</p> <p>Where facts were proven warranting the jury in presuming fraud, it was error to charge that fraud is never presumed, but must be proven like any other fact.</p> <p>3. Charge—Fraud—Preference—Reservation of Interest.</p> <p>While it is proper to 'charge, on the issue as to fraud in a conveyance, upon the right of an insolvent to prefer one creditor over another, a requested charge as to the effect on such preference of the retention of any secret interest or advantage by the grantor should also be given where the evidence warrants such contention.</p> <p>4. Fraudulent Grantee—Payment of Taxes, Insurance, Etc.</p> <p>A fraudulent grantee, on recovery of the property by creditors of the grantor, can not charge the property with payments made by himself on account of taxes, insurance, or interest on an incumbrance.</p> <p>5. Fraudulent Conveyance—Retention of Property by Grantor—Charge.</p> <p>It is improper to charge that retention of possession of real property by the grantor and collection of rents by him as before the transfer is prima facie fraud. It is merely evidence of fraud.</p>

<p>1. Jurisdiction—District Court—Injunction.</p> <p>In a proceeding in the District Court of M. County to enjoin the execution of an order of sale and writ of possession against lands therein, issued upon a judgment in D. County, the court had power, while permitting the sale, to enjoin from putting in possession.</p> <p>2. Homestead—Rights of Minors—Order of Probate Court.</p> <p>The possessory right of minor children in the homestead of a decedent can only he based on an order of the probate court.</p> <p>3. Injunction—Cloud on Title—Tenants in Common.</p> <p>The sale of land under foreclosure of a mortgage by the owner of a half interest, the widow of the deceased owner, given after his death, can not be enjoined as a cloud upon the title of the children of deceased, tenants in common with the widow, and not parties to the foreclosure; their interest would not be affected, and they had an adequate remedy at law.</p> <p>4. Tenants in Common—Writ of Possession.</p> <p>On sale of land under foreclosure of a mortgage by one tenant in common, the co tenants, not parties to the foreclosure, can not wholly enjoin the enforcement of a writ of possession; it should put the purchaser in possession as tenant in common with them.</p>

<p>Appeal from Travis, Twenty-sixth District. Tried below before Hon. E. E. Brooks.</p>

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

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

<p>Taxation—national Bank Stock—Deducting Indebtedness.</p> <p>Under no circumstances, under existing taxation laws, can an owner of national bank stock be permitted to deduct his indebtedness from the value of the stock, for purposes of taxation. Rev. Stats., arts. 5063, 5064, 5079, 5080, 5081. Rev. Stats. U. S., sec. 5219.</p>

<p>1. Impeachment of Witness.</p> <p>A plaintiff who, while testifying, had denied upon cross-examination that she had been guilty of theft or had admitted such fact to W. (a fact not relevant to the issues on trial), could not be impeached by the testimony of W. that she had made such admission.</p> <p>3. Same—Objection to Testimony—Waiver.</p> <p>That counsel while objecting to the question whether witness had admitted guilt of theft to W., had conceded that W.’s testimony to such fact was admissible, did not prevent him from urging legal objections to such testimony when it was offered.</p> <p>3. Homestead—Sale—Interest of Surviving Wife.</p> <p>The surviving wife took a one-third interest for life, and a right to use it as a home, in the homestead, the separate estate of the husband; and on its sale by herself and the children she was entitled to a proportionate share of the proceeds, the value of which share the parties could fix by paroi agreement.</p> <p>4. Married Woman—Disability—Agreement to Divide Homestead.</p> <p>An agreement by a married woman with her husband or his heirs to sell the homestead and divide the proceeds, she to take a child’s share in satisfaction of her interest, was not binding upon her.</p>

<p>1. Dedication of Streets—Acceptance by City—Evidence.</p> <p>In an action against a city for land claimed by it to have been dedicated as streets, proof of the city ordinances prescribing the manner in which the streets may be dedicated and accepted by the city is admissible to show that there was never a statutory dedication of the land to street purposes.</p> <p>2. Same—Facts Hot Showing Dedication.</p> <p>The owners of land lying within the limits of a city had it surveyed and divided into blocks, lots, streets, and alleys, and a map made thereof, but it was never recorded in the office of the city engineer or elsewhere, nor exhibited to the city authorities or to the public, nor were the streets shown- thereon ever thrown open to the public. The owners afterwards made two deeds of portions of the land describing the property therein as bounded by the streets shown on the map; and another map made of the city, and purchased by the city as the official map, delineated all the subdivisions made in the survey, but by what authority did not appear. Held, that the evidence did not show an express dedication of the streets and its acceptance by the city, nor an implied dedication and acceptance by the public.</p> <p>3. Same—Injunction Warranted.</p> <p>Where, in trespass to try title and to enjoin defendant from interfering with plaintiffs possession of the land, defendant’s answer admits that it had entered upon the land in an effort to enforce the right claimed by it to open certain streets alleged to be thereon, it was unnecessary for plaintiff, upon making proof that entitled him to recover the land, to make any further proof in order to be entitled to the injunction asked. °</p>

<p>1. Mutual Benefit Society—Proof of Assessments.</p> <p>The fact that a benefit asses’sment was made may be shown, by paroi where the by-laws of the benefit society do not require that the assessment shall be made a matter of record.</p> <p>2. Same—Evidence of Assessment Held Hot a Conclusion.</p> <p>Where in order to render an assessment call by the executive committee regular, it was only necessary that it should have been made by the committee before a certain day and within certain limits, the statement of a witness that an assessment call within such limits was regularly made by such committee before the required date is not admissible as being a conclusion of the witness, since, if the word “regularly” were stricken out, the proof would still be the same.</p> <p>3. Same—Proof of Death.</p> <p>The beneficiary in the certificate is relieved of making proof of death where the by-laws of the society require the subordinate council to ascertain the cause and circumstances of the death and report them to the supreme secretary.</p> <p>4. Practice on Appeal—Cause Remanded, When.</p> <p>Where the judgment of the trial court is reversed because of the improper exclusion of offered testimony, the cause will be remanded, since excluded testimony can not be made a basis for the judgment of an appellate court,</p>

<p>1. Rescission for Fraud.—Cancellation of Deed—Pleadings—Charge.</p> <p>Where, in an action to rescind a contract and cancel a deed executed by plaintiff forming a part of it, on the ground of fraud, overreaching, inadequacy of consideration, and advantage taken of plaintiff’s pecuniary necessity, the matter of advantage so taken of his pecuniary necessity is pleaded by plaintiff only in connection with other facts and circumstances altogether intended to be taken as grounds for the rescission of the contract, it was error for the court’s charge to submit the taking of such advantage, in connection with inadequacy of consideration, as a separate and distinct ground authorizing the jury, on proof thereof, to find the deed fraudulent and subject to cancellation.</p> <p>$j. Same—Taking Advantage of Pecuniary necessity—Evidence.</p> <p>Nor did the evidence warrant a charge as to advantage taken of plaintiff’s pecuniary necessity where it showed that the transaction in which the deed was made was an exchange of property in which no pecuniary consideration passed between the parties, or was contemplated by them.</p> <p>3. Same—Drunkenness as Avoiding Contract.</p> <p>If the deed was executed while plaintiff was in such a state of intoxication as deprived him of his understanding, and rendered him for the time non compos mentis, it was voidable for that reason, though the intoxication was voluntary and not brought about by the other party.</p> <p>4. Same—Drunkenness and Subsequent Ratification—Charge.</p> <p>It was error for the charge to submit the question of plaintiff’s intoxication and the advantage taken thereof as a ground for canceling the deed without reference to the defense, pleaded and supported by evidence, that he had subsequently, and when sober, ratified the transaction.</p> <p>5. Same—Confidential Relations.</p> <p>Plaintiff's allegations that his father and the grantee’s father had long been friends and were partners during the farmer’s lifetime, and that plaintiff had entire confidence in the friendship of the grantee and his father, did not show such confidential relations between the parties to the deed as would raise the presumption of fraud and devolve on the grantee the burden of showing- that it was free therefrom.</p> <p>6. Same—Fraud—Charge of Court.</p> <p>A charge was error which authorized a recovery by plaintiff for fraud without limiting it to the specific acts of fraud alleged in his pleadings.</p> <p>7. Same—Pre-Existing Debt.</p> <p>It was error for the court to instruct, in reference to a mortgage of the property subsequently executed by defendant to a third party, and which plaintiff also sought to have canceled, that the mortgagee was not a purchaser for value if he took the mortgage to secure a pre-existing debt, where there was no allegation or proof that the debt was a pre-existing one.</p> <p>8. Same—Special Charges with Qualifications.</p> <p>Error in the court’s general charge in not submitting the matters pleaded in defense was not cured by giving special charges requested by defendant covering such matters, but to which charges the court attached qualifications not warranted by the law and facts of the case.</p> <p>9. Same—Ratification—Ignorance of Law.</p> <p>The rule that an act of ratification is not effectual as such if the party wronged supposes that the original contract is binding, does not apply where such supposition is erroneous and arises from ignorance of the law. See the opinion for full discussion of the principles applicable to ratification.</p> <p>10. Same—Right of Rescission Lost.</p> <p>A party seeking to rescind a contract for fraud must act with promptness, and dis-affirm it within a reasonable time after discovering the fraud, and if, after such discovery, he does anything to carry the contract into effect or to obtain or claim its benefits, he can not thereafter repudiate it.</p> <p>11. Same—Conspiracy to Defraud.</p> <p>A third party, the father of defendant, could not be charged with liability for having conspired with and. assisted defendant in defrauding plaintiff where the father took no part, in the alleged fraudulent transaction,—his kindredship with defendant and his mere failure to meddle with the transaction after he knew of it, not being sufficient to constitute a conspiracy or to render him liable for defendant’s acts.</p> <p>13. Same—Heir—Estate in Expectancy.</p> <p>Plaintiff’s father by last will devised one-fourth of his estate to his wife, plaintiff's mother, and bequeathed the residue to their eight children, share and share alike, with a provision that it should not be divided until the youngest child should have married or reached majority. Held, that plaintiff was not, upon the father’s death, an expectant heir as to his interest in his father’s estate, but was such expectant heir as to the estates of his mother, brothers, and sisters, and a sale by him of this latter interest in expectancy to defendant was void in law, because presumed to have been upon inadequate consideration.</p> <p>13. Same—Ho tice—Inadequacy of Consideration.</p> <p>Plaintiff having conveyed together his vested interest in his father’s estate and his expectant interest in the estates of his mother, brothers, and sisters, one who took from plaintiff’s grantee a mortgage on all the interests so conveyed for a single and indivisible consideration, since he was charged by law with notice that the sale of the interests in expectancy was for an inadequate consideration, was thereby put on inquiry and notice as to the adequacy of the entire consideration for the transaction and conveyance by plaintiff to the mortgagor.</p> <p>14. Rescission—Tender Back of Property.</p> <p>In an equitable suit to rescind a contract involving a sale and exchange of both realty and personalty, it is sufficient for plaintiff to offer, by his pleadings, to do equity, without specifically tendering back the property or part of the purchase price he has received.</p>

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

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

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

<p>1. Sale of Goods Induced by Fraud—Rescission—Seller’s Election of Remedies.</p> <p>. Where a sale of goods is induced by the buyer’s fraudulent representations as to his solvency, the seller, suing to recover the goods sold, or in the alternative the price thereof, may be required to elect upon which remedy he will proceed, since he must either rescind the sale and sue for the possession of the goods, or affirm, it and sue for the price.</p> <p>3. Same—Innocent Purchaser—Consideration in Part an Antecedent Debt.</p> <p>M. purchased goods from plaintiff through fraudulent representations as to his solvency, and afterwards sold the stock in which he had placed them to defendants, who had no notice of the fraud, and who, in consideration for the stock, canceled a pre-existing debt greater in amount than the value of the entire stock, and also paid in cash an amount something greater than the value of that part of the stock (about one-eighth) so bought by M. from plaintiff. Held, that defendants were innocent purchasers for value against whom plaintiff was not entitled to recover anything.</p> <p>ON REHEARING.</p> <p>3. Same—Harmless Error in Requiring Election.</p> <p>If there was error in the court’s action in requiring plaintiff to elect, it was harmless in this instance, since, in determining the issues upon the theory of a fraudulent purchase, Avith rescission thereof, elected by plaintiff, the court found against plaintiff the fact of an alleged partnership between plaintiff and M., the existence of Avhich was necessary to defendant’s liability upon the other theory of the case.</p>

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

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

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

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

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

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

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

<p>1. Municipal Bonds—When “Issued.”</p> <p>The act of the Legislature forbidding the issuance of municipal bonds unless a proposition for their issuance shall have first been submitted to the popular vote, took effect August 26, 1899. Certain bonds of the city of Galveston bad been duly executed by the city, had been approved by the Attorney-General, and were ready for negotiation and delivery, except that the State Comptroller had not registered them, although they had been deposited with him for that purpose on August 24, 1899. Held, that their deposit with the Comptroller for registration left nothing but a ministerial act to be performed by him, which should be regarded as done on the day of the deposit, and that the bonds had already been “issued” within the meaning of the law when the Act of 1899 took effect, and their validity was not affected by the requirements of that statute.</p> <p>2. Local Law—Publication of Notice of Intention.</p> <p>The requirement of article 3260, Revised Statutes, providing that notice of intention to apply for the passage of a local law shall be published “at least once a week for a period of thirty days” prior to the introduction into the Legislature of the bill therefor, is complied with by a publication made once a week for four successive weeks, the first publication being made thirty days before the introduction of the bill.</p> <p>3. Same—Legislature Sole Judge as to Compliance.</p> <p>The pasage of a local law by the Legislature must be held as conclusive of the fact that due notice of intention to apply therefor was given, as the Constitution requires evidence of the publication of such notice to be exhibited to the Legislature before such law shall be passed.</p> <p>4. Municipal Bonds—Constitutional Law—Gulf Coast Cities.</p> <p>The provision of the Constitution (section 7 of article 11) giving authority to counties and cities bordering on the Gulf of Mexico to create a debt for construction of sea walls, breakwaters and sanitary purposes upon a vote of the taxpayers as may be authorized by law, does not prohibit the Legislature from giving the power to be exercised in some other manner, and a city sewerage system is for “sanitary purposes.”</p> <p>5. Same—Delay in Issuance—Antedating.</p> <p>Municipal bonds are not rendered invalid by the fact that they are not issued until nearly two years after the passage of the ordinance providing for them, nor by the fact that, as authorized by the ordinance, they are antedated.</p>

<p>1. Garnishment—Answer of Garnishee Insufficient.</p> <p>The answer of a garnishee stated that the judgment debtor had conveyed to him as trustee for the benefit of five certain creditors, naming them and setting out the amounts due them respectively, two certain stocks of goods and all notes, bills and accounts due such debtor; that pursuant to the trust deed he had paid the first four of said creditors in full, which, together with the expenses of the trust, had exhausted ail the funds and property. Held, that exceptions should have been sustained to the answer for vagueness and want of particularity as to the quantity and value of the property, and as to how, when, to whom, and for what purpose, the goods were sold, and upon what account in detail the proceeds were distributed.</p> <p>2. Conveyance in Fraud of Creditors—Fraud Hot Vitiating Entirely.</p> <p>In a garnishment action against one "vvho was trustee for the judgment debtor in a deed of trust for the benefit of certain creditors, it was error to charge that it such debtor made the deed of trust to hinder, delay, or defraud his creditors, or any of them, and the trustee (garnishee) knew of such intention, it was void and plaintiff was entitled to recover his debt of the garnishee, since such intention of the maker would not render the deed void as to secured creditors whose claims were bona fide, and who had no knowledge of the fraudulent intention.</p> <p>3. Trustee for Creditors Liable in Garnishment, When.</p> <p>A trustee for the benefit of creditors is hound to use, in administering the trust, the care and prudence a man of ordinary prudence would use in his own affairs, and if, through his failure so to do, the property is wasted, or fails to bring what it should have brought, he will he liable in garnishment to an unsecured creditor for the excess of the ampunt the property ought to have brought over the amount of the claims of secured and accepting creditors and the reasonable expenses of administering the trust.</p>

<p>Appeal from Randall. Tried below before Hon. H. H. Wallace.</p>

<p>Appeal from Bandall. Tried below before Hon. H. H. Wallace.</p>

<p>1. Appeal—Fact Case—Credibility of Witnesses.</p> <p>The appellate court will not disturb a verdict supported by evidence and only to be set aside by determining the credibility of witnesses whose testimony conflicts.</p> <p>2. Charge—Damages—Evidence.</p> <p>An instruction permitting recovery for time lost since date of a personal injury is not unwarranted by evidence which shows some loss of time during the period though plaintiff continued to work.</p> <p>3. Damages—Mental Suffering—Physical Injury.</p> <p>Mental suffering may properly be submitted as an element of damages to be considered, though there be no evidence of its existence except proof of permanent injury and intense physical suffering.</p> <p>4. Fellow Servant—Laborers Under Different Foremen.</p> <p>A wiper employed under directions of the foreman of a roundhouse about an engine therein, and hurt by its being moved by another engine brought against it by one acting under orders of an outside foreman, was not injured by his fellow servant.</p>

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