Volume 24 — Texas Civil Appeals Reports

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

<p>1. Leading Question.</p> <p>Questions by a party,,to his own witness as to the effects of an injury producing a concussion of the brain, asking if certain results, stating them, would not ensue therefrom, are leading.</p> <p>2. Same—Immaterial Error.</p> <p>In an action for damages for negligent personal injury, the allowance of leading questions the answers to which tended only to show the duration of plaintiff’s injuries, is not reversible error where no complaint is made of the verdict as being excessive in amount.</p> <p>3. Pleading and Charge—Negligence—Care of Railway Track.</p> <p>In an action for personal injuries to plaintiff while a passenger on defendant’s train, plaintiff’s petition alleged, as to negligence, only that defendant’s servants negligently ran the train against a car standing on a siding, causing the collision in and by which plaintiff was injured. The train ran onto the siding because of a switch being left open, and the court charged the jury that the failure of any employe charged with the management of defendant’s trains or the care of its tracks to exercise the requisite high degree of care was negligence on the part of defend.ant. Held, that the charge was not objectionable on the ground that the “care of the track” was not raised by either the pleading or evidence, since that expression, under the pleadings and evidence, could have been understood to mean only the care of the track as to the switch being kept in proper position. Pleasants, Associate Justice, dissenting.</p> <p>4. Pleading and Proof—Injury to Person.</p> <p>Where, in an action for personal injuries resulting from a collision of cars, plaintiff’s petition alleged that by the collision he was knocked down, his head wounded and cut, his teeth injured and one of them knocked out, his head and body battered and bruised, and his spine, chest and lungs and nervous system shocked and injured, and proof of injury to plaintiff’s arm had been admitted on the trial without objection, it was not error for the charge to submit, as one of the elements of damage in the case, any injury to any part of plaintiff’s person.</p>

<p>Appeal from Houston. Tried below before Hon. A. D. Lipscomb.</p>

<p>1. Courts of Civil Appeals—Power to Issue Injunction.</p> <p>The Courts of Civil Appeals and the judges thereof have the power to issue the writ of injunction whenever it may be necessary, and only where it may be necessary to enforce their jurisdiction.</p> <p>3. Same—Power from What Time.</p> <p>The power of the appellate court to issue an injunction to enforce its jurisdiction attaches from the time when, by the appeal being perfected, its jurisdiction has attached, and the rule is not changed by the fact that, because the term of the trial court at which the judgment was rendered has not yet expired, the lower court has the power to alter, revise or revoke the judgment.</p> <p>8. Same—Injunction Denied—Original Jurisdiction.</p> <p>Appellants brought suit in the District Court of B. County to restrain the levy of an execution issued from the District Court of T. County and to set aside the judgment rendered in T. County because of fraud, and as a cloud on their title. They obtained a temporary injunction which was dissolved on final hearing, and a general demurrer was sustained to their petition, from which judgment they appealed, and applied to the Court of Civil Appeals for an injunction to restrain the execution from T. County pending the appeal. Held, that the application must be denied, since the grant of the injunction in such case would be the exercise of original jurisdiction.</p> <p>4. Injunction to Restrain Execution—Eraudulent Judgment—Cloud on Title—Jurisdiction.</p> <p>The court wherein a judgment was originally rendered is, under the statutes, the ■court to which an injunction restraining the execution of the judgment is returnable, and the district court of another county, where a levy was made on land by virtue of the judgment, has not jurisdiction to enjoin its sale and to set aside a judgment of the Court of Civil Appeals affirming that of the district court originally rendering it, as being a cloud on plaintiff's title and as having been originally procured in the trial court by fraud. Rev. Stats., arts. 2996, 1141 (17). Adoue v. Wettermark," 22 Texas Civil Appeals, 545, followed.</p> <p>6. Execution—Levy on Land.</p> <p>Since an execution defendant whose land has been levied on has the right to have the land subdivided and sold in small tracts, he is not entitled to claim damages for an excessive levy on his land: Rev. Stats., arts. 2363, 2364.</p> <p>6. Same—Personal Property Mot Tendered—Trespass.</p> <p>An execution defendant, without offering or tendering to the officer personal property sufficient to satisfy the judgment, can not complain that the execution was levied on his land; nor is the mere levy of an execution on land in itself a trespass for which an action will lie.</p> <p>7. Injunction—Restraining Execution Sale—Homestead.</p> <p>In an action to enjoin the sale of land levied on, because of homestead interests of two of the plaintiffs who are tenants in common with another, the petition is insufficient where it does not designate what part of the property is claimed as a homestead.</p> <p>8. Same—Sureties on Supersedeas Bond as Parties.</p> <p>Sureties on a supersedeas bond on appeal are so far parties to the proceedings and judgment appealed from that they can not, as being strangers thereto, maintain in the district court of another county where land is levied on under the judgment, an action for an injunction to restrain the sale of the land and to set aside the judgment for fraud and as casting a cloud on their title.</p> <p>9. Same—Injunction Wrongly Granted—Jurisdiction to Dissolve.</p> <p>Where the court was without jurisdiction to determine the issues of a suit in which it had granted a temporary injunction, this fact did not render its action in dissolving such injunction void, thereby leaving the injunction still in force.</p>

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

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

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

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

<p>1. Pilots—Appointment of—Statute Construed.</p> <p>Article 3792 of the Revised Statutes, providing that “the board of commissioners of pilots shall require a certain term of residence in the State to authorize any person to exercise the functions of a branch pilot for their port, or said bays; as also to establish a term of probation not exceeding one year as a deputy pilot, before any person can exercise the functions of his office,” though faulty in expression in the use of the phrase “as also to,” is not void for uncertainty, and warrants the construction uniformly placed on it since its enactment in 1846, to the effect that it is the duty of the board to establish- and require a probationary term of one year as deputy pilot, without compliance with which by the applicant it. will not examine and recommend him for appointment as branch pilot; and the applicant has not the right, because the statute is in terms directory only and because the preceding article says the board “shall examine each new applicant,” to compel the board by mandamus to disregard the requirement of service as deputy.</p> <p>2. Same—Pilot Is State Officer.</p> <p>Under the provision of the statute a branch pilot is a State officer, though required to obtain license from the United States government, and an applicant for appointment as branch pilot can not compel the board of pilot commissioners to examine and recommend him for appointment by the Governor without showing that the Governor has declared it necessary to appoint new pilots. Revised Statutes, arts. 3791, 3792, 3796, construed.</p> <p>3. Same—Constitutional Law—Monopoly.</p> <p>The statute relating to the appointment of branch pilots is not unconstitutional because it limits the number who may become pilots, or because, since the appointment of deputies is by the statute left at the option of the pilot, and no one can be appointed pilot until he has served as deputy, it is possible for the pilots in office to monopolize the pilot business to the exclusion of all others.</p> <p>4. Same—Mandamus Hot the Remedy.</p> <p>Plaintiff, seeking by mandamus to compel the board of pilot commissioners to examine and recommend him for appointment as branch pilot, he not having complied with the terms of the statute as to service as deputy, had no standing in court when, to excuse such noncompliance, it would be necessary to hold the statute under which he asserted his rights unconstitutional and inoperative.</p>

<p>Deed—Parol Evidence of Consideration—Warranty Against Incumbrances.</p> <p>Appellant conveyed certain city lots to appellee, receiving in part exchange a tract of land subject to a vendor's lien the payment of which appellant agreed to assume, but at his request mention thereof was omitted from the deed to him, which was thereupon drawn and executed by appellee in the usual form of a warranty deed, reciting only the cash part of the consideration, and carrying the warranty against incumbrances implied under the statute from the use therein of the words “grant and convey.” Appellant having failed to pay off the lien on the land, it was foreclosed and the land sold thereunder to another and thereby lost to appellant, who then sued appellee to cancel the deed of the city lots for failure of consideration and to recover that property. Held, in such action, that although it would contradict the warranty against incumbrances, yet paroi evidence was admissible to show that part of the consideration of the deed of the land by appellee was the assumption by appellant of the vendor’s lien, and that by reason thereof the consideration had not failed. Gabbett, Chief Justice, dissenting.</p>

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

<p>Venue—Waiver of Plea of Privilege.</p> <p>Where a defendant who was sued out of the county of his residence filed exceptions, which were overruled, and the ease was continued several terms by consent and without prejudice to the pleas „of either party before the filing of defendant’s plea of privilege to be sued in his own county, such plea is held to have been waived.</p>

<p>Appeal from Nueces. Tried below before Hon. Stanley Welch.</p>

<p>1. Boundary Line—Construction of Calls.</p> <p>Upon an issue of boundary the trial court did not err in concluding from the facts and circumstances shown, and in the absence of evidence as to how the original survey was made, that a call for the line of an adjoining survey, which line was ascertained and fixed with certainty, should prevail over a call fbr distance which, if followed, would make a shortage in the quantity of land called for in the grant.</p> <p>2. Same—Plat as Evidence.</p> <p>Upon an issue of boundary it was not error to admit in evidence, in connection with the testimony of a surveyor who had run out the line, and .as -explanatory thereof, a plat of the survey in controversy as made by him; and that such plat was inaccurate in part did not render its admission prejudicial where the trial was by the court and the other evidence in the case was sufficient to sustain the judgment.</p> <p>3. Limitations—Color of Title—State School Land Purchase.</p> <p>The inchoate right of one whose application for the purchase of State school land has been accepted, and where the acquisition of title to such land depends upon its actual occupancy by such purchaser for a period of time yet unexpired, is, like that of a pre-emptor, not such color of title as will support the statute of limitation of three years.</p> <p>4. Same—Title Under Void Location on Older Grant.</p> <p>One whose title is derived by virtue of the location of the certificate upon land already titled or equitably owned under color of title from the State, has neither title nor color of title within the purview of the statutes of limitation, since such location is rendered absolutely void by the inhibition of the Constitution, article 2, section 14.</p> <p>5. TTew Trial—Absence of Counsel.</p> <p>A new trial was applied for by one of several defendants, and by motion not sworn to, upon the ground of the absence of the mover’s attorney because of sickness. The judgment recited that “the parties appeared and announced ready for trial,” and the record showed that the mover was represented on the trial, as the exceptions to the admission of evidence appeared to have been made by all of the defendants, and the motion did not show affirmatively that any of the defenses relied on by the mover were not fully developed on the trial. Held, that there was no error _ in- refusing the motion.</p>

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

<p>1. Tax Sale—Judgment—Collateral Attack.</p> <p>A judgment foreclosing the State’s lien for taxes and ordering sale of land therefor is not subject to collateral attack; it protects the purchaser at such sale, though the proceedings were irregular, and is conclusive that the taxes were regularly assessed.</p> <p>2. Tax Sale—Foreclosure—Showing Title—Order of Sale.</p> <p>A sheriffs deed by virtue of sale under a judgment foreclosing a tax lien is not sufficient to show title in the purchaser without introducing the order of sale. iSayles’ Civ. Stats., arts. 1340, 1341, 5232h, 5232g.</p> <p>3. Tax Lien—Foreclosure—Parties—Homestead.</p> <p>In the opinion of Hunteb, J., the wife should be held a necessary party to a suit to foreclose a tax lien on the homestead.</p>

<p>1. Loan Association—Taking Stock as Device to Cover Usury—Charge.</p> <p>Plaintifi, wishing to borrow money, applied to a building and loan company and was informed that in order to do so he must subscribe for certain shares of stock, which he did, informing the company's agents that he did so only to obtain the loan. Held, in an action to cancel the loan debt for usury, that evidence of the facts stated warranted the court in submitting to the jury the question as to whether plaintifi was a bona fide stockholder, or his subscription merely a device to evade the usury law .</p> <p>2. Usury—Constitutional Law—Legislature Prescribing Penalty.</p> <p>Where, at the time a usurious contract was made, usury was prohibited by the Constitution, the Legislature had the right, without impairing the obligation of contracts, to affix such penalty as it saw proper to the collection and receipt, after the passage of the legislative acts, of usurious interest accruing under the contract.</p> <p>3. Voluntary Payment of Taxes.</p> <p>A loan company, under the terms of the loan contract, paid certain taxes on property mortgaged to it for security at a time when, by virtue of a subsequent judicial application to the principal debt of certain usurious payments of interest theretofore made, the loan was satisfied, and the lien on the property discharged. Held, that in making such payment the company was a mere volunteer, and could not recover therefor.</p>

<p>1. Telegram—Delivery Beyond Line—Contract—Agent—Authority.</p> <p>Where the agent of a telegraph company had authority to contract to deliver a message beyond its lines for extra compensation, an agreement to forward it by mail to the postoffice of the addressee, and secure its special delivery beyond that point was not for such unusual means of delivery as to be beyond the apparent authority conferred, and the company was liable for failure to secure such special delivery from the postoffice, though it was shown that the agent had no authority to contract for that form of delivery.</p> <p>2. Telegram—Nondelivery—Negligence.</p> <p>Where a telegram of which defendant had undertaken to make personal delivery was merely sent by mail from the telegraph office nearest to addressee, this was not delivery as contracted, and it was not proper to submit any issue as to negligence.</p> <p>S. Charge—Harmless Error.</p> <p>Refusal of a correct charge as to effect of notice of agent’s want of authority was harmless error where the charge given was more favorable to the party than the one requested.</p>

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

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

<p>State School Lands—Forfeiture.</p> <p>Under the statute authorizing an actual settler to purchase three sections of additional State school lands within a radius of five miles of the land on which he resides, and providing that if he, or his vendee, does not continue to reside for three years either on the original tract or on such additional lands, the purchase of the latter shall be forfeited, the purchase of a section of such additional lands is forfeited where the purchaser, within a year' after the purchase, removes from the original tract to another section'which he had leased, but had never attempted to purchase, although such purchaser and his vendor together had resided on the original tract for ten years prior to the purchase of such additional section. Sayles’ Civ. Stats., art 4218fff.</p>

<p>Appeal from Ector. Tried below before Hon. W. B. Smith.</p>

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

<p>1. Land Certificate to Heirs—Recitation of Ancestor’s Death in the Alamo.</p> <p>Where a bounty land certificate issued by the Secretary of War in 1838 recited that the heirs of W. T. M., who served in the army of the Republic and had fallen in the Alamo, were entitled to the amount of land named therein, this was conclusive of the fact that W. T. M. had so fallen, although the official muster rolls of those who fell at the Alamo did not show such name; and the heirs of a W. T. M. who served in the army of the Republic about that time, and who seems to have been the only person of that name who did so serve, but who survived for many years thereafter, were not entitled to the land located by virtue of such certificate. ■</p> <p>2. Same—Grant of Land to Heirs of a Living Person a Uullity.</p> <p>A land certificate and patent thereon issued to the heirs of a person still living is a nullity, and conveys no title to those who are heirs of such person at his death thereafter. Conner, Chief Justice, dissenting.</p>

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

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

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

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

<p>Appeal from Nolan. Tried below before Hon. William Kennedy.</p>

<p>Appeal from Travis. Fifty-third District. Tried below before Hon. F. G. Morris.</p>

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

<p>1. Charge of Court.</p> <p>It is necessary only that the court should submit to the jury the questions of fact raised by the pleadings and instruct upon the law as to the issues submitted; and where, the charge, in its preliminary part, undertakes to state the substance of the matters pleaded by either party, and omits an issue that should have been determined, its submission should be specially requested in order to render such omission reversible error.</p> <p>2. Practice on Appeal—Assignment of Error—Statement Under.</p> <p>The statement under an assignment of error, treated as a proposition, is not sufficient to require its consideration under the rules where, instead of stating from the record the evidence pertaining to the proposition, a conclusion as to the effect of the evidence is stated.</p> <p>3. Charge of Court—Contributory Negligence—Request.</p> <p>A party can not complain of the failure to instruct the jury as to what was meant by contributory negligence in the charge, where no request was made for such instruction.</p> <p>4. Same—Weight of Evidence.</p> <p>A charge is properly refused as on the weight of evidence where it assumes material facts at issue in the case.</p> <p>5. Master and Servant—Knowledge of Defect in Machinery.</p> <p>The servant’s knowledge of a defect in the machinery furnished him does not necessarily carry with it a knowledge of danger incident to, or attending, the defect, and, in the absence of such knowledge of the danger, does not preclude him from recovering damages incurred by reason of the defect.</p> <p>6. Same—Inherent Defects in Construction.</p> <p>Though the servant be an experienced engineer he can not be presumed to have knowledge of defects in an engine which arose from the application of mechanical principles in its construction, and he has the right to assume that the master has exercised the proper degree of care to ascertain that the engine is reasonably free from such defects, and reasonably safe for the use he is to make of it.</p> <p>7. Assignment of Error—Statement Under Required.</p> <p>Where several assignments of error complaining of the admission of different testimony are grouped together in the brief, and there is no separate statement under the several propositions asserted by them, they will not be considered.</p> <p>8. Practice—Evidence—Harmless Error.</p> <p>Error in admitting in evidence a question and the answer thereto in a deposition is obviated where such question and answer were subsequently withdrawn, and the jury directed by the court not to consider them as evidence.</p> <p>9. Same—Argument of Counsel.</p> <p>A judgment will not be reversed on account of the language of counsel where the jury were instructed by the court to disregard it, and it does not appear that appellant was injured or prejudiced by it.</p>

<p>Railway Company—Ejecting Trespasser from Train—Assault—Charge.</p> <p>Where a trespasser riding on top of a freight ear was assaulted by the conductor while attempting to get off in obedience to the conductor’s order, and there was no evidence showing that he was trying to break into the car, it was not error of which defendant could complain to instruct that though plaintiff was on the car without right and attempting to break into it, yet if the conductor used more force than was necessary to eject him and keep him from breaking into the ear, the defendant company would be responsible for the damages resulting to plaintiff from the assault.</p>

<p>Contributory Negligence—Charge Directing Verdict.</p> <p>Where, in an action against a railway company for causing the death of a person killed while crossing the track in front of a rapidly moving train in plain view, contributory negligence on the part of the deceased is so clearly established by the undisputed testimony as to admit of no other reasonable hypothesis or conclusion than that of its existence, the court may properly assume its existence and instruct the jury to return a verdict for the defendant.</p>

<p>1. Decedents’ Estates—Lien Hot Waived in Filing Claim.</p> <p>Where the holder of a judgment foreclosing a lien on land made an agreement with the owner of the land to convey to him on payment of the amount due within a specified time, but the full amount was not so paid, and on such owner’s death the holder of the judgment, by agreement with his administrator, put in a claim against the estate for the balance due, without specifying a lien, upon the representation that the estate was solvent and the claim would be paid, and it was</p> <p>allowed as a fourth class claim only, and was never paid, the estate proving insolvent, such filing and allowance of the claim did not estop the holder of the judgment from asserting his lien, and the guardian of the heirs of such deceased owner were not entitled to have canceled a sheriff’s deed made under foreclosure of the lien without tendering the balance due under the agreement.</p> <p>2. Same—Setting Apart Homestead—Kes Judicata.</p> <p>Filing a claim in the probate court against an estate for an amount secured by a judgment lien on land on payment of which the claimant was to convey the land back to the estate, did not make such claimant a party to a proceeding in that court whereby the land was set apart to decedent’s minor children as a homestead, and hence such proceeding was not res judicata as to him.</p>

<p>1. Fire Insurance—Waiver by Agent—Case Followed.</p> <p>Insurance Company v. Wagner, 92 Texas, 549, followed on the point that an agent of an insurance company may verbally waive conditions in the policy, notwithstanding a stipulation therein requiring that such waiver must be in writing and indorsed thereon or attached thereto.</p> <p>2. Same—Ownership of Property.</p> <p>Where the insurance company’s agent was informed by the insured that they did not own part of the property, but held it for sale on commission, and the agent made out the policy in their name, designating them as the owners, this was a waiver of a stipulation in the policy that it should be void if the interest of the insured was not truly stated therein.</p> <p>3. Same—False Statement by Insured Must be Willful.</p> <p>Where the company’s agent was informed prior to the issuance of the policy that plaintiff did not own part of the property insured, but held it on commission, and plaintiffs made the same statement to the company’s adjuster after the loss, a statement subsequently made by plaintiffs in the proofs of loss that they were the owners of the property, would not avoid the policy, since it could not have been willfully false and made with intent to deceive.</p>

<p>1. Railway Company—Rules for Employes—Switching in Yard.</p> <p>A railway brakeman injured while switching cars in the yards is not precluded from recovering therefor by reason of the fact that a printed rule of the company did not require lookouts on trains backing in the yards, as was the one that struck him, where it was the custom at that yard to keep a lookout stationed on trains while backing there, and such had long been the practice.</p> <p>2. Same—Printed Rules—Parol Evidence Varying.</p> <p>It may be shown by paroi evidence that a printed rule of the company governing the conduct of employes was customarily not enforced, and was thus abrogated.</p> <p>3. Same—Contributory Negligence—Burden of Proof.</p> <p>In an action against a railway company for personal injuries the burden of alleging and proving contributory negligence is on the defendant.</p> <p>4. Same—Charge Held Proper.</p> <p>Where plaintiff, a railway employe, was injured by a coal car that was being pushed at a place where employes were likely to be, it was not error for the court to charge that if he was struck by cars operated by defendant, and those in charge of the engine failed to keep the proper lookout for persons on and about the track, and that if they had kept a proper lookout they would have seen plaintiff in time to have avoided injuring him, and if this failure was negligence under all the circumstances, and was the proximate cause of plaintiff's injury, and if plaintiff did not assume such risk, to find for plaintiff.</p> <p>5. Same—Verdict Not Excessive—Railway Brakeman.</p> <p>Where a railway brakeman 28 years old, earning $100 to $125 per month, was negligently injured, so that he lost an arm, his vision was permanently impaired, his collarbone fractured, his nose probably broken, and he was otherwise seriously cut and bruised and suffered great pain, a verdict for $10,000 was not excessive.</p>

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

<p>1. Charge of Court—Undisputed Fact.</p> <p>It is not error for the charge to submit to the jury a positive and undisputed fact, unless it be done in such manner as to mislead them and induce them to doubt the existence of such fact; and an objection of this character is obviated where, in a special charge given, such fact is treated as undisputed.</p> <p>2. Same—Bequest necessary.</p> <p>Where a party desires a fuller and more complete statement of the issues evolved from the pleading and evidence than is given in the general charge, he should request special charges covering the desired matter, or else the omission will not constitute reversible error.</p> <p>3. Same—Contributory negligence.</p> <p>Error in charging, in an action for personal injury, that plaintiff could recover if he “was not guilty of any negligence” is obviated where, in subsequent paragraphs of the charge, ordinary care and negligence are properly defined.</p> <p>4. Same—Special Exception necessary.</p> <p>An allegation in defendant’s answer that plaintiff’s injury "resulted from his own negligence,” is sufficient, in the absence of special exceptions to the pleading taken below, to admit evidence of contributory negligence, and objection on that account can not be first raised on appeal.</p>

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

<p>1. Homestead—Mechanic’s Lien for Borrowed Money.</p> <p>The owner of a homestead lot who contracted with a party to erect for him a residence thereon can not charge the premises with a mechanic's lien in favor of another party to secure a loan of the money with which such owner pays the contractor for erecting the building, since the lender does not “perform labor or furnish material.”</p> <p>2. Same—Case Distinguished.</p> <p>If, however, such latter party furnishes the money with which the material is furnished and the labor is paid for under his contract with the owner, he will be deemed to have furnished the material and performed the labor so as to entitle him to the lien given by the statute. Citing Downard v. Investment Company, 22 Texas Civil Appeals, 570, which is held not to be in conflict with the opinion in this case.</p> <p>3. Same—Assignee of Lien Mote Acquires Mo Lien, When.</p> <p>One who, for value and before its maturity, takes a negotiable note purporting to be secured by a mechanic’s lien on the homestead, is held to know that such security must arise from the statute, and takes the paper charged with notice of the facts of the transaction, and if such facts are insufficient to create the lien, none is acquired by the assignee.</p>

<p>1. Practice in Trial Court—Submission of Case on Special Issues—Bequest for.</p> <p>Where the trial judge and the attorneys for plaintiff and defendant discussed the question of submitting the case to the jury on special issues, and only the attorney for 'defendant objected, and the attorney for the plaintiff thereafter presented to the court in writing certain special issues upon which, with an added issue by the court, the case was submitted to the jury, there was such a request therefor by one of the parties as, under the statute, authorized a submission of the case on special issues. Acts 1899, p. 190.</p> <p>2. Same—Uneontradieted Pacts Not Submitted.</p> <p>Where a case is submitted to the jury on special issues, it is not error for the court to fail to submit matters shown to be facts by uncontradicted testimony:</p> <p>3. Same—Bequest Necessary.</p> <p>In a cause so tried, a failure of the court to submit other issues can not be taken advantage of on appeal, where appellant did not request their submission by the trial court.</p> <p>4. Vendor’s Lien Note—Innocent Purchaser—Purported Sale of Homestead—Estoppel.</p> <p>Where a husband and wife execute a pretended deed of their homestead in order to raise money on notes given to the husband therefor and secured by-vendor’s lien reserved in such deed, and they have such deed placed on record, and negotiate the notes for value and before maturity to one having no notice that the deed is not a bona fide conveyance, neither the grantor nor the grantee can set up against such purchaser of the notes that the deed conveyed no title and created no lien because it was never intended that it should pass title and was never delivered to the grantee.</p> <p>5. Same—Assignment of Vendor’s Lien Motes and Superior Title Mot a Mortgage.</p> <p>Where the owners of a homestead have conveyed it by deed expressly reserving a vendor’s lien to secure notes given for the purchase money, and afterwards make a written assignment of the notes, guaranteeing their payment and covenanting that there are no prior liens, and that they have the superior title to the premises, and that such assignee acquires full right and title to the same,—such assignment is not a mortgage of the homestead.</p> <p>6. Acknowledgment by Wife—Certificate—Exhibiting the Deed.</p> <p>While article 4618 of the Revised Statutes directs that the officer taking the separate acknowledgment of a married woman shall show the deed to her, yet a failure of the certificate of acknowledgment to show that this was done does not render her deed invalid, since the form of the certificate as prescribed by the statute does not require such fact to be recited therein. Rev. Stats., art. 4621.</p>

<p>Appeal from Bexar. Tried below before Hon. S. J. Brooks.</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>1. Foreign Law—Common Law Buie Hot Proved.</p> <p>Where the only evidence as to the law of another State was the testimony of an attorney that he was acquainted with the law of such other State, and that the common law prevailed there, except as modified by the statute, this was too indefinite and uncertain to establish that the common law rule whereby money inherited by the wife becomes the property of the husband obtains in such other State.</p> <p>2. Wife’s Separate Property—Charge of Court.</p> <p>Under a judgment against the husband plaintiff purchased land the title to which stood in the wife’s name, and brought suit therefor against them in trespass to try title. There being evidence that the land was bought with money that was the wife’s separate property, the court charged that if the purchase price was paid out of the separate estate the jury should return a verdict in her favor; but refused a charge requested by defendants to the effect that if, at the time they bought the land, taking the deed in the wife’s name, it was their intention that it should be her separate property, and that defendant had notice of the wife’s claim prior to his purchase under the judgment, then the verdict should be in the wife’s favor, whether the land was bought with her separate property or not. Held, that the charge given was not sufficiently full and specific, and that it was error to refuse the one requested.'</p> <p>3. Same—Land May Be Community in Part.</p> <p>Where land with improvements thereon is purchased in part with community and in part with separate property funds, it becomes community property to the extent of the community funds used in the purchase of the improvements.</p>

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

<p>Original application for mandamus.</p>

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

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

<p>1. Verdict—Findings on Special Issues—Second Trial.</p> <p>Where a verdict was rendered on special issues submitted, and on which no Judgment was entered because the findings did not dispose of all the material issues of the case, such findings are not conclusive on another trial of the cause, although they are not set aside.</p> <p>8. Land Certificate—Recommendation by Traveling Board.</p> <p>A land certificate for a league of land granted under the Act of December 18, 1837, to one who had been permanently disabled in the service of Texas, was not required to be examined and recommended by the traveling board, nor to be established by suit under the Act of February 4, 1841.</p> <p>3. Same—Sale in Partition.</p> <p>Where, in an action of partition and under proceedings regular in form, a land certificate for an unlocated balance was sold by a special commissioner under the decree of partition, and the price was paid by the purchaser, such proceedings operated as a partition of the certificate, binding upon the parties and vesting title in such purchaser.</p> <p>4. Same—Decree of Partition Hot Specifying Certificate.</p> <p>Although the original decree in a partition suit did not in express terms mention a land certificate, it will be held to have effected a partition of such certificate where the certificate was mentioned in the petition for partition, and the report of sale, the decree of - sale, the order of confirmation, and the conveyance made, show that the certificate was embraced in the property partitioned.</p> <p>5. Judgment in Partition Binding—Parties.</p> <p>In an action to remove cloud from title brought against heirs who were parties to a prior suit for the partition of the property, such heirs and those claiming under them can not set up that the decree of partition is not binding on them because of a failure to make the wife of the decedent whose property was partitioned a party to such partition suit.</p> <p>6. Practice on Appeal.</p> <p>A party can not complain on appeal of an error by the trial court in a matter of practice which was invited by himself.</p> <p>7. Same—Affidavit Hot Part of the Record Below.</p> <p>The appellate court will not consider matters set up in an affidavit which is not a part of the record- of the case as tried in the court below, and which matters should have been passed on in the first instance by the trial court.</p>

<p>1. Bailway Company—Killing Live Stock—Evidence of Negligence.</p> <p>See the opinion for evidence held insufficient to show negligence on the part of a railway company in the killing of live stock struck by an engine at night on a fenced track and at a curve in the road.</p> <p>2. Same—Grates Left Open—Fenced Bight of Way.</p> <p>Where, in an action against a railway company for horses killed on a fenced right of way, the evidence left it uncertain whether the gate through which they entered onto the right of way was so defective that it would not stay closed and was blown open by the wind, or whether a third person left it open, it was not sufficient to authorize a judgment for plaintiff, since the burden was on him to show negligence on defendant’s part in such case, and defendant was not liable i: the gate was left open by a third person.</p> <p>3. Same—Defects in Grate.</p> <p>Where, for the benefit of one who lived on lands crossed by the railroad, the company puts a sufficient gate in the fence of its right of way and keeps it in substantial repair, it is not liable for the killing of stock on the track resulting from trivial defects in the gate which such owner can remedy practically without labor or expense, and which he has assumed to remedy and treated as too trivial to call to the company’s attention.</p> <p>4. Practice on Appeal—Judgment Beversed and Bendered, When.</p> <p>Where, on appeal, a judgment for the appellee is reversed on the facts, the ease being tried by the court below without a jury, and there is nothing in the record to indicate that appellee’s case was not fully developed on the trial, or that other and stronger evidence can be produced, judgment will be rendered for the appellant without remanding the cause. Rev. Stats., art. 1027.</p>

<p>1. Minor—Suit by Guardian as Next Friend.</p> <p>Where plaintiff in trespass to try title died pending suit, and his widow and minor son were substituted as plaintiffs, the wife suing as guardian for the son, alleging her appointment as such ‘ in another State, and seeking to recover for him his interest in the land, a judgment for plaintiff will not be disturbed on the ground that the wife, as a foreign guardian only, could not prosecute a suit in Texas, since, being the mother and natural guardian of the child, she had the right to prosecute the suit as next friend, and, in the absence of objection on the trial, her suit will be treated as having been prosecuted in that capacity, and; her allegation as to suing as guardian will be regarded as a mere technical inaccuracy.</p> <p>2. Parties—Death of Joint Defendant.</p> <p>Where an action of trespass to try title was brought against a husband and wife as defendants, and the wife died pending the suit, plaintiffs had the right to prosecute their action to judgment against the husband alone, without making the heirs or legal representatives of the wife parties, and the judgment would be binding as to the husband’s interest in the land, whatever that interest might be.</p> <p>3. Same—Admissions—Probate of Will.</p> <p>Where the wife was a codefendant with the husband and died pending the suit, an admission by him on the trial that her will, devising all her property to him, was duly probated, is to be treated as an admission that the will was legally probated in Texas, and that everything had been done necessary to vest the title of all her property in him.</p> <p>4. Judgment by Collusion—Third Party’s Bight to Attack.</p> <p>Plaintiff, by virtue of a levy under a judgment held by him against defendant, bought the land in controversy, and brought suit against defendant in trespass to try title therefor. Defendant claimed that he held the legal title to the land in trust for his son, the heir of his deceased wife whose moneys he had used in the purchase of the land, and that, in a suit by the son against himself (brought after the execution sale to plaintiff) the trust had been established and the land decreed to belong to the son. Held, that the plaintiff, not being a party to the judgment in such suit between the father and son, was not bound by it, and was entitled to prove all the facts concerning it to show that it was collusive and fraudulent.</p> <p>5. Trust in Favor of Son—Deceased Mother’s Property Used by Father.</p> <p>See the opinion for facts held insufficient to show that the title of land was held by a father in trust for his son "by reason of an alleged claim that the father had used means of his wife, of whom the son was sole heir, in making payment for the land.</p>

<p>Appeal from Delta. Tried below before Hon. L. L. Wood, Special Judge.</p>

<p>1. Trespass to Try Title—Charge Hot on Weight of Evidence.</p> <p>In trespass to try title where defendants claimed under a lost deed from plaintiff's (husband and wife), and the wife claimed that she did not sign the deed, the court charged the jury that if they believed from the evidence that the wife signed the deed, which had just before been signed by her husband, conveying the land in controversy to defendants, and that she afterwards acknowledged the same, and such deed and certificate of acknowledgment, if the instrument was acknowledged, had been lost or mislaid, they could find for the defendant. Held, not a charge on the weight of evidence.</p> <p>2. Same—Charge Assuming Fact.</p> <p>Nor was the charge objectionable in assuming that the husband had executed the deed, since he had testified that he executed it, and the testimony was uncontradicted.</p> <p>3. Lost Deed—Affidavit of Loss and Search.</p> <p>Where an affidavit of the loss of a deed stated that the original deed was lost; that affiant did not know where it was, and that it was recorded, attaching a certified copy thereof to the affidavit, this was a sufficient compliance with the statute to admit evidence that the deed was lost and that defendant could not procure it. Rev. Stats., art. 2812.</p> <p>4. Same—Affidavit of Forgery—Proof of Execution.</p> <p>Where an affidavit of the forgery of a deed has been filed, it is the duty of the opposing party offering a certified copy of such deed from the record to show by some of the known rules of the common law the due execution of the original.</p> <p>5. Same—Preliminary Proof—Proof of Execution—Practice.</p> <p>Where a lost deed was attacked as a forgery by affidavit filed as required by the statute, it was for the court to determine whether the preliminary testimony offered to show that the deed was signed by the grantors was sufficient to authorize the admission in evidence of ■ a certified copy thereof, and it then became a question of fact for the jury, under all the evidence touching the execution of the deed, as to whether or not it was a forgery. Rev. Stats., art. 2312.</p> <p>6. Same—Forged Deed—Certificate of Acknowledgment Hot Conclusive— Charge.</p> <p>Where, in trespass to try title, defendants claimed under a deed from plaintiffs which was lost, and which plaintiffs by affidavit under the statute attacked as a forgery, it was error, since the affidavit placed upon defendants the burden of showing that the deed was acknowledged, for the court to charge that the recitals in the certificate of acknowledgment to a deed are presumed to be true, except in case of fraud, accident, mistake or deception, and in such cases the recitals may be shown to be untrue by a preponderance of evidence clearly showing that fact.</p> <p>7. Same—Affidavit of Forgery—Alteration of Deed—Charge.</p> <p>An affidavit of forgery, filed under the statute, charging a deed under which the defendants claim to be a forgery, sufficiently raises the issue of alteration to warrant a charge as to the effect of such an alteration of the deed as the unauthorized insertion therein of the name of plaintiff’s wife as a party grantor, she being a necessary party to the validity of the deed.</p>

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

<p>Appeal from Dallas. Tried below before Hon. John M. Avery, Special Judge.</p>

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

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

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

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

<p>Error from Fort Bend. Tried below "before Hon. Wells Thompson.</p>

<p>1. Railway Company—Street Crossing.</p> <p>The provision of the statutes imposing on railway companies the absolute duty to restore a street which its road may cross to its former condition, or to such condition as not to unnecessarily impair its usefulness, is applicable only when the road is constructed across a street already established, and' does not apply to a street crossing in which the public have acquired a right by long permissive use. Rev. Stats., art. 4426.</p> <p>2. Same—Degree of Care in Keeping in Repair.</p> <p>Where, subsequent to the acquisition of the right of way and the construction of the railroad, a street is laid out so as to cross the track, the duty of the railway company in making repairs at such crossing is to exercise ordinary care to prevent injury to those using the crossing, to finish its repair work within a reasonable time, and to exercise ordinary care to maintain the crossing in a reasonably safe condition for the use of the public.</p> <p>3. Same—Same.</p> <p>Though a crossing be not technically a street crossing, yet where the railway company by its acts invites its use as such by the public, it assumes the duty of acting towards it in all respects as if it were a lawful crossing, and is chargeable, as in the ease of other crossings, with the use of ordinary care, but not of the highest care, to keep it in a reasonably safe condition for use by the public.</p> <p>4. Same—Hoise by Engine—Assumed Risk.</p> <p>One driving near an engine on the assumption that it will remain quiet has not the right to complain where the horse takes fright at noises necessarily and usually incident to the safe operation of the engine, but does have such right where the horse was frightened by a sudden and unexpected starting of the engine, accompanied by unnecessary noise of escaping steam, and was caused to run away.</p> <p>5. Measure of Damages—Personal Injury—Double Recovery.</p> <p>A charge authorizing a recovery by plaintiff, suing for personal injuries to his wife, to recover the value of the time and services lost by reason of such injuries, and also, if the injuries are found to be permanent, compensation for her future diminished capacity to labor, is not objectionable as allowing a double recovery where the context shows that the element of loss of time had reference to time lost prior to the trial.</p> <p>6. Same—Husband’s Damage for Injury to Wife.</p> <p>In an action by a husband for negligent personal injury to his wife by a railway company, defendant is not entitled to have the jury deduct from the damages representing the value of her services lost thereby the necessary expenses which the husband must incur in maintaining the wife.</p> <p>7. Assignment of Claim for Damages—Parties.</p> <p>When a contract by which plaintiff assigned to his attorney one half his claim for damages growing out of negligent personal injury to his wife was executed prior to the institution of the suit and prior to the enactment of article 3353a of the Revised Statutes, the court did not err in excluding evidence of the contract, as the assignee was not a necessary party to the suit.</p> <p>8. Charge of Court—Personal Injury—Distinct Issue.</p> <p>In an action for personal injuries occurring to persons in a buggy at a railway street crossing, it was the right of the defendant company to have the charge submit as a distinct issue, there being evidence to support it, that if the horse was frightened at the noise necessarily required to stop the engine to avoid a collision with the buggy, and was thus caused to run and overturn the buggy, the jury should find for defendant, if the engineer exercised ordinary care in stopping the engine.</p> <p>9. Jury—Right to Test Intellectual Qualification.</p> <p>Where counsel for defendant requested the court by motion to allow him to ask each juror on the panel on his voir dire examination certain questions tending to disclose the familiarity, or lack of it, on the part of the jurors with courts and legal terms and expressions, the court did not err in denying the motion, and in declining to suggest such .questions as he would allow counsel to ask the jurors.</p>

<p>Carrier—Live Stock Shipment—Limiting Liability—Oral Contract Sued On, and Written Contract Pleaded by Carrier.</p> <p>Plaintiff sued for damages on an oral contract made by Mm with defendant’s agent for the sMpment of plaintiff’s horses from Texas to Alabama over connecting lines, and defendant having pleaded a written contract of shipment limiting its liability to its own lines, plaintiff’s agent in charge of the horses testified that the written contract was signed by him without knowing its contents, as he did not have time to read it before the train carrying the stock left the depot. There was also evidence to the effect that the prior oral contract was a mere inquiry by plaintiff and an answer thereto by the carrier’s agent stating the through rate, and that plaintiff and his agent had made such shipments before, and had always signed written contracts such as the one in this ease. Held, that the court erred in refusing a charge requested by defendant to the effect that if the shipper, from former dealings with the defendant, knew that it was the regular rule for the shipper to sign such written contract as the one in this case, and that when he inquired of the carrier’s agents as to the best rate to Alabama he contemplated entering into the written contract when the horses should be shipped, and that he knew, or could have known, from previous dealings, what stipulations were in the contract, the verdict should be for the defendant.</p>

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

<p>Charge of Court—Cause of Injury—Burden of Proof.</p> <p>Where, in an action for injuries resulting from the breaking of a handle on a handcar, the charge of the court distinctly placed the burden of proof on the plaintiff, it was not error to refuse a charge instructing the jury to return a verdict for defendant if they could not determine what caused the handle to break.</p>

<p>Trespass to Try Title—Pleading in Replication—Estoppel.</p> <p>In trespass to try title where defendant pleads specially his title and asks for affirmative relief, plaintiff can not avail himself of matter of avoidance, such as an estoppel, unless he has pleaded it.</p>

<p>1. Appeal Bond—Justice Court—Filing Hot in Ten Days.</p> <p>An appeal from the justice court to the county court was properly dismissed where the appeal bond was filed nine days after an order overruling a motion for new trial in the justice court, which order was unauthorized because made eleven days after the rendition of the judgment. Rev. Stats., art. 1670.</p> <p>2. Same—Sunday Hot Judicial Day.</p> <p>A motion for new trial in justice court, not acted on within ten days, will not be considered as having been overruled on the tenth day when such day falls on Sunday.</p>

<p>1. Fraud—Presumption of—Erroneous Charge.</p> <p>A charge that “fraud can not be presumed, but must be proved to the satisfaction of the jury by competent evidence,” is erroneous, since fraud may be presumed, and such charge requires a higher degree of certainty in the evidence than is required by law.</p> <p>2. Minor—Emancipation—Charge.</p> <p>Where a minor daughter had intervened in a creditor’s suit against her father, asserting a lien on the property (farm products) in controversy on the ground that she had hired to her father as a farm hand in making the crop, and had duly filed her account for services under the statute, it was error for the court to charge that as she was a minor at the time she so hired to her father, she could not recover, since, if the father had emancipated her, she had the right to contract with him, and the fact that he contracted with her for services was evidence tending to establish, as against him, her right to do so.</p>

<p>1. Pleading—Attachment—Reconvention—Description of Goods.</p> <p>A plea in reconvention for damages from the levy in an attachment suit which describes the property seized as a stock of hardware in certain buildings, was not subject to special exception for failure to specify the articles seized, where plaintiff’s amended pleading reciting the levy and sale referred, for a particular description of the goods, to the officer’s return indorsed on the writ on file in the case.</p> <p>2. Evidence—Amount of Goods—Previous Inventory.</p> <p>Ap. inventory of a stock of goods exposed to sale may be admitted, in connection with other .evidence, to show what it contained when levied on under attachment two months after the inventory was taken.</p>

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

<p>1. Abatement—Waiver.</p> <p>A plea that defendant, sued as a corporation, was not one, but a voluntary association, being in abatement only, was waived where it followed a plea of general denial and defendant did not appear to have invoked a decision upon it, but had agreed that if a former judgment by default was set aside the court should determine the merits of the case without a jury.</p> <p>2. Benefit Insurance—Change of Constitution Hot Retroactive.</p> <p>A member of a benevolent order had named his creditor as the beneficiary of his life insurance, agreeing to comply with all laws then or thereafter to be enacted by the order. A subsequent amendment of its constitution enacted that, “The beneficiary named in the beneficiary certificate shall be confined to one or more of the family of the member, or some person related to him by blood or who shall be dependent upon him.” Held, that such amendment was not, by its terms, retroactive in effect and did not prevent recovery by the creditor, as beneficiary, on the death of the member.</p>

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

<p>1. Practice—Exceptions to Pleading—Action for Personal Injuries.</p> <p>In an action by an employe against a transfer company for injuries caused by plaintifi being thrown from one of the company's wagons, where the evidence indisputably showed that the accident was not caused by the negligence, incompetency, or inefficiency of the driver of the wagon, the action of the trial court in sustaining exceptions to that part of plaintiff’s petition which alleged that such driver was overworked and physically and mentally, by reason thereof, unfit to drive the wagon, could not have prejudiced the plaintiff.</p> <p>2. Pellow Servants—Negligence—Personal Injury.</p> <p>In an action against á transfer company by an employe, a driver, for injuries caused by his being thrown from a wagon driven by another employe, the court did not err in instructing the jury that the two drivers were fellow servants, and that, as there was no evidence of any negligence on the part of the company, they should return a verdict for defendant.</p>

<p>1. Pleading—Allegation of Personal Injuries.</p> <p>See the opinion for allegations in plaintiff’s petition in an action of damages for personal injuries, as to the character and nature of the injuries and their effects on plaintiff’s present and future mental and physical condition, held not to be conclusions, and to sufficiently apprise defendant of the grounds on which damages were sought.</p> <p>2. Practice at Trial—Epileptic Pit in Courtroom.</p> <p>Plaintiff testified, without contradiction by any evidence, that he had been, subject to epileptic fits since the injury to his head for which damages were sought, and as a result of such injury; and before defendant’s evidence was concluded, he was seized with an epileptic convulsion in the presence of the jury, and defendant thereupon asked that the cause be withdrawn from the jury and the trial postponed, on the ground that plaintiff’s condition may have aroused the sympathies of the jury and prejudiced defendant’s case. The verdict in plaintiff’s favor was not excessive in amount. Held, that no reversible error appeared in the action of the court denying such request.</p> <p>3. Charge of Court—Statement of Issues.</p> <p>While it is customary and proper for the trial court to make a brief presentation of the issues raised by the pleadings as a preface to the law embodied in the charge, yet a failure to do so is not reversible error where the issues are sufficiently presented in the different paragraphs of the charge.</p> <p>4. Action for Personal Injury—Charge—Want of Knowledge of Danger.</p> <p>Where, in an action for personal injuries, there was evidence tending to show that plaintiff, a mere boy, was not apprised of the danger of going under the tender of an engine at the time he was injured, the fact that he did go under it, standing alone, would not justify a verdict for defendant, and a charge so instructing was properly refused, since it ignored the question of the lack of knowledge on plaintiff’s part.</p> <p>5. Same—Assumed Risk.</p> <p>Where there was uncontradicted evidence that plaintiff, an employe, was ordered by his foreman to go under the tender of the engine, and that he had never been called on to do such work before, and did not know that any danger attended his going there, a charge that plaintiff had assumed the risk of going under the tender was properly refused.</p>

<p>Appeal from El Paso. Tried below before Hon. J. M. Goggin.</p>

<p>1. Evidence—Contributory Negligence and Ordinary Care.</p> <p>In an action against a railway company for negligence causing the death of a train conductor killed by being brought in contact with a cattle-guard, at a time when he had descended a ladder on the side of a car to pour water into a hot box, it was competent, on the issue of contributory negligence and ordinary care, for a witness to testify that in like circumstances conductors and brakemen frequently go down ladders of cars to look after the running apparatus while the train is in rapid motion.</p> <p>0. Same—Discrediting Testimony—Cross-Examination.</p> <p>Defendant company’s witness having testified to the dangerous nature of the act in going down the side of the car, as deceased had done, it was competent, as discrediting his testimony, for plaintiff to ask the witness on cross-examination if he himself had gone down ladders under the same conditions, the witness having also testified that he considered himself a prudent man.</p> <p>3. Same—American Mortality Tables.</p> <p>In an action against a railway company for the death of an employe, it is not error to admit in evidence the "American Tables of Mortality” for the purpose ot showing what would have been the probable duration of the life of deceased. Following Railway v. Johnson, 24 Texas Civil Appeals, —.</p> <p>4. Assumed Risk—Master and Servant—Charge of Court.</p> <p>A charge that if the deceased knew, or had reasonable ground to believe, that the cattle-guards along the line of the railroad were constructed so near the track as to render it possible for him, in going down the car to pour water on a hot box, to he struck thereby, he assumed the risk of such danger, was properly refused, as a knowledge of conditions involving the mere possibility of a danger is not such a state of facts as necessarily charges a person with knowledge of the danger. The court properly gave the charge with the word “probable” substituted for “possible.”</p> <p>5. Damages—Verdict Held Excessive.</p> <p>In an action against a railway company for negligence causing the death of a train conductor, the jury returned a verdict in favor of the wife and children of the deceased, and also for $500 for his mother. The evidence showed that she was 52 years old and had other means of support, and that the deceased sent her only about $10 a year. Held, that the verdict was, as to her, excessive to the amount of $300.</p>

<p>Appeal from 'El Paso. Tried "below before Hon. J. M. Goggin.</p>

<p>Appeal from El Paso. Tried below before Hon. J. M. Goggin.</p>

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

<p>1. " Gifts Inter Vivos—Promissory Note.</p> <p>Where a husband and wife had executed their note to the wife’s stepmother, and the latter took the note from a bank where she had deposited it, and handed it to her stepdaughter, with the declaration, “You keep this; I give this to you,” there was a completed gift of the note such as discharged the debt evidenced by it.</p> <p>2. Same—Mortgage Is Discharged with the Debt.</p> <p>Where - the debt was discharged by a gift of the note to the makers, a mortgage given to secure the note was thereby discharged also, and its makers were entitled to maintain an action against the executor of the donor to cancel the mortgage as a cloud on their title to the land covered by it.</p>

<p>1. Joint Tort Feasors—Judgment Against One Only.</p> <p>Since each of two joint tort feasors, though they be sued together as defendants, is separately and individually liable for the damages, one of them can not complain, as against the plaintiff, that the verdict and judgment in plaintiff's favor were rendered against himself alone.</p> <p>2. Same—Contribution and Indemnity.</p> <p>Plaintiff sued a gas company and a city for injury resulting from the failure of the gas company to properly guard, as it was bound to have done, certain trenches which it was digging in the street under license, and of which failure the city was ignorant. Held, that the gas company could not complain of the fact that the judgment for plaintiff was against it alone, since it would have been liable over to the city; and it was immaterial that the city had not prayed for judgment over against it.</p> <p>3. Hew Trial—Hewly Discovered Evidence—Diligence.</p> <p>Where plaintiff testified that she was accompanied by W. at the time the injury occurred, and W. was present at the trial, but did not testify, a motion for new trial based on the evidence of W., which plaintiff’s attorney had learned of after the trial, was properly overruled, since it did not appear that due diligence was used to obtain the evidence; and it did not alter the case that W., when defendant’s attorney made inquiry of him, before trial, had refused to tell about the matter.</p> <p>4. Same—Affidavits Attacking the Veracity of Witness.</p> <p>Where application was made for new trial on the ground of newly discovered evidence of a witness, it may be shown by counter affidavits filed that the reputation of the witness for truth and veracity is bad.</p> <p>5. Same—Judicial Discretion.</p> <p>An application for new trial on the ground of newly discovered evidence of a witness whose veracity is attacked is largely addressed to the discretion of the trial court, and its action in refusing the application will not be revised unless it clearly appears that the applicant’s showing is within the rules entitling him to a new trial as a matter of law, and that the newly discovered evidence is of such character as would probably produce a different verdict on another trial.</p>

<p>Practice on Appeal—Filing Transcript After Ninety Days.</p> <p>While the appellate court may, under the statute and for good cause shown, permit a transcript to be filed after ninety days, yet such permission will be denied where more than a year has, elapsed since the appeal was perfected, although appellees’ attorney consents to the filing, and the delay was, for part of the time, at his request, made because of a pending effort between the parties to compromise. Rev. Stats., art. 1015.</p>

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

<p>1. Practice on Appeal—Bill of Exceptions in Conflict with. Statement of Pacts.</p> <p>Where, on appeal, the bill of exceptions shows that certain testimony was admitted on the trial below, but the contrary appears from the agreed statement of facts in the case, no error is shown as to the admission of such testimony.</p> <p>3. Deed in Escrow—Title of Cattle Hot Passing by Delivery.</p> <p>Where a deed conveying both land and cattle was delivered to a third person in escrow, and was not to take effect until the purchaser. had complied with certain conditions, a delivery of the cattle to the purchaser did not pass the title until the conditions had been fulfilled, unless they were waived. See the opinion for charge held not to give too much prominence to such proposition.</p> <p>3. Damages for Levy on Property—Indemnity Bond for Officer—Charge.</p> <p>Where defendant was sued for damages resulting from an attachment levy made at his instance on plaintiff’s property, henean not complain that there was no verdict against the officer (jointly sued with him) who made the levy and to whom he had given an indemnity bond, nor of error in the charge in stating the measure ■of damages as against the officer, where the measure of damages as against himself was correctly given.</p> <p>4. Same—Measure of Damages.</p> <p>Where an attachment was levied on personal property, and the owner recovers it (as by purchase at the sale under the levy) for less than its value, such facts may be shown in mitigation of damages for an unlawful levy; but the rule that the value of the property is the measure of damages was properly applied where a receiver had been appointed for the owner, and the attachment creditor was still seeking, in the receivership proceedings, to establish the validity of his levy, and to prevent the proceeds of the sale from being applied therein to the owner’s ‘benefit.</p>

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

<p>1. Life Insurance—Forfeiture of Policy—Reinstatement.</p> <p>Where a life insurance policy, providing that a failure to pay any premium when due should render the policy void, also provided that if death should occur within six months from the maturity of the dues unpaid, the policy should nevertheless be payable to the beneficiary, this latter provision did not confer upon the insured the absolute right to renew and continue the policy by paying the overdue premium within that time, but was intended only for the benefit of the beneficiary in the event the insured died within six months from the date of default in the payment of the premium.</p> <p>2. Same—Conditional Receipt of Back Premium.</p> <p>Where the insured forfeited his life policy by failing to pay a premium when due, but afterwards paid it, taking a receipt containing a provision that such payment was received by the company only on condition that he was and had been for a year in good health, and he was not in good health at such time, the payment did not operate to reinstate the policy.</p> <p>3. Same.</p> <p>Where such receipt further provided that the receipt of future premiums by the company should not be a waiver of such condition as to health, no waiver can be presumed from the payment of subsequent premiums in the absence of evidence that the company knew at and before the payments were made that the condition as to good health in the first of such receipts had been violated.</p> <p>4. Practice on Appeal—Statement of Facts—Costs.</p> <p>Where the statement of facts on appeal is made up in violation of the rules, and so as to contain a large amount of immaterial matter, the costs thereof will be taxed against the appellant, although the judgment is reversed.</p>

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

<p>1. Evidence—Identity of Land.</p> <p>Where a witness who had resided for many years on the land in controversy testifies that it is included in and is a part of a larger survey, his evidence is not destroyed by reason of a statement on cross-examination that he did not know the corners of the larger survey.</p> <p>2. Same.</p> <p>See the opinion for evidence held sufficient to show that the land in controversy was included in a larger survey previously conveyed by plaintiff’s grantor to the ancestor of defendant.</p> <p>3. Constructive Possession—Conflicting Deeds from Same Grantor—Innocent Purchaser—Limitation.</p> <p>H. conveyed 200 acres of land to defendant, and then, before the record of that deed, conveyed a 20 acres tract of the same land to plaintiff who had no notice of the prior conveyance, and who did not at any time take actual possession. After such conveyance to plaintiff, defendant recorded his deed and settled on the land, but did not take actual possession of the 20 acres tract until thirteen years later. Held that plaintiff, having acquired the superior title by her purchase without notice, had thereby the constructive possession of the 20 acres tract, and that limitations ran against her only from the date when plaintiff took actual possession of the part in controversy.</p>

<p>Appeal from the County Court of Austin. Tried below before Hon. John P. Bell.</p>

<p>Appeal from Wharton. Tried below before Hon. J. 0. Wilson.</p>

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

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

<p>Appeal from Erath. Tried below before Hon. J. W. Pabkeb.</p>

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

<p>1. Charge of Court on Weight of Evidence.</p> <p>The singling out of any fact by the court in the charge and telling the jury what effect it should or should not have, gives such fact undue prominence, and renders the charge obnoxious as being on the weight of evidence.</p> <p>3. Same—Error Immaterial, When.</p> <p>That a charge is upon the weight of evidence is not ground for reversal where the fact to which it calls attention is wholly unimportant.</p> <p>3. Limitation—Adverse Possession in Common with Another.</p> <p>Where the issue, under defendant’s plea of limitations, was whether his possession was adverse to plaintiff, the fact that land of another person was, by a common fence, inclosed together with that of defendant, their common possession excluding all other persons, was immaterial, as it did not tend to show that the possession was not adverse to plaintiff.</p>

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

<p>X. Practice on Appeal.</p> <p>The appellate court, in reviewing the action of the county court in dismissing an appeal, is confined to the grounds specified in the motion to dismiss as made below.</p> <p>3. Affidavit in lieu of Appeal Bond—Justice and County Courts.</p> <p>Under article 1571, Revised Statutes, relating to appeals in forma pauperis to the county court and providing that the proof of inability to pay costs shall be made before the county judge, or before the justice court trying the case, and that the proof shall be by affidavit, such affidavit may be sworn to before any notary public within the State, under article 4 of the Revised Statutes.</p> <p>3. Same—Description of Judgment.</p> <p>An affidavit in lieu of an appeal bond to the county court stated the style and number of the cause, the court wherein it was pending, and the date of the judgment, but did not state the nature or amount of the judgment, nor against which party it was rendered. Held that, as read in the light of the transcript from the justice court, the description was sufficient.</p> <p>4. Same—Proof Before Justice Court Hot in Session.</p> <p>Where the affidavit of inability to pay costs is contested, the justice of the peace of the precinct where the case was tried may, under the statute, hear and determine the contest, whether his court is still in session or not. Rev. Stats., art. 1671.</p>

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

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

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

<p>Evidence—Hearsay.</p> <p>The admission of hearsay testimony upon a material issue as to which the evidence is sharply conflicting is reversible error. See the opinion for illustration.</p>

<p>Contributory Negligence—Obvious Danger—Foreman Ordering Inexperienced Servant.</p> <p>Where a railroad section hand was injured in getting oS a moving train as directed by his foreman, and the evidence showed that it was no part of his duty to get on and off moving trains, and that he was inexperienced in so doing, but that the foreman was an experienced railroad man, and knew the danger, and that the order to get off was imperative, requiring immediate action such as gave no time for deliberation or estimating the chances, the danger in getting off the train was not so obvious as to preclude a recovery for injury resulting therefrom.</p>

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

<p>Error—Citation—Waiver.</p> <p>Waiver of notice of plaintiff in error’s brief is not equivalent to waiver of service of citation in error. Stephenson v. Chappell, 12 Texas Civil Appeals, 296, disapproved.</p>

<p>1. Party Wall—Windows—Injunction.</p> <p>A party wall, in the absence of an agreement to the contrary, necessarily means a solid wall; and the fact alone that the adjoining proprietor did not consent to the erection of it with windows is sufficient to entitle to injunction against so constructing it.</p> <p>2. Same—Irreparable Injury.</p> <p>Irreparable injury need not be shown in order to entitle, such adjoining proprietor to relief by injunction; the invasion of his right to the protection afforded by a solid party wall' is all that is necessary.</p>

<p>1. Injury by Street Car.</p> <p>Findings of negligence on the part of defendant and absence of contributory negligence in case of one killed by collision with street car in attempting to drive across track, sustained.</p> <p>2. Contributory Negligence—Acting in Emergency.</p> <p>One suddenly discovering a rapidly approaching car while attempting to drive across a street ear track was only required to resort to such means to avert collision as would suggest themselves to a man of ordinary prudence in his situation, and is not necessarily negligent in erroneously concluding that he could get across safely, though cool judgment would have required him to turn his horse away from the track.</p> <p>S. Same—Charge.</p> <p>See charges given and refused upon contributory negligence of one acting in emergency while attempting to cross street car track, held to present no error.</p> <p>4. Death—Damages.</p> <p>A verdict for $1777 as damages to parents .from the death of a son eight years old is sustained as not excessive.</p> <p>5. Death—Damages—Evidence of Plaintiff’s Poverty.</p> <p>In an action by parents for damages from the death of their minor son, evidence that the plaintiffs were poor was properly admitted -with instructions that the jury should not consider it as a basis for increasing or diminishing damages, but to show the usefulness of the child.</p>

<p>Appeal from McLennan, Fifty-fourth District. Tried below before Hon. Sam R. Soott.</p>

<p>1. Telegram—Free Delivery Limits—Negligence—Evidence.</p> <p>Where action for delay in delivering a telegram was defended on the ground that the addressee resided beyond free delivery limits of the receiving office and no delivery charge was paid, there was no error in permitting the sender to testify that no inquiry was made by the operator as to where addressee lived.</p> <p>2. Mental Suffering—Exclamations—Res Gestae.</p> <p>In an action by a mother for suffering from failure to reach her son before his death by reason of delay in delivery of a telegram, her exclamation in the presence of his body, “0 that I could have seen him before he died,” could be proven as part of the res gestae.</p> <p>3. Negligence—Death Message—Statements of Operator.</p> <p>Statements of an operator to one who came to send a second message, not hearing from the first, that it was unnecessary to do so, that it was an important death message and would be delivered, were admissible as- showing knowledge by the company of the importance of the message.</p> <p>4. Telegraph Company—Negligence—Evidence.</p> <p>Evidence of persons who went by rail to bring news to plaintiff of the death of her son, that they found her place of residence, by inquiry, in twenty or thirty minutes after reaching the town, was admissible where nondelivery of a telegram previously sent was sought to be excused on the ground of inability to find the addressee.</p> <p>5. Telegraph—Free Delivery Limits.</p> <p>A telegraph company was not excused for nondelivery of a message to one living beyond the free delivery limits, though no extra charge for delivery was paid, where none was demanded and the company usually delivered messages beyond such limits.</p> <p>6. Same—Negligence—Question of Fact.</p> <p>Whether or not a telegraph company was negligent in failing to notify the sender of its inability to find the address of the party to whom a message was directed, was a question of fact for the jury.</p>

<p>1. Harmless Error—Charge.</p> <p>An erroneous charge will not be ground for reversal where a requested instruction stating the law on the subject correctly was given.</p> <p>2. Carrier of Live Stock—Damages—Charge.</p> <p>See charge upon the' measure of damages for delay and negligent handling in the transportation of live stock held erroneous because confused and indefinite, and ground for reversal where a proper charge was asked.</p>

<p>Appeal Bond—Name of Appellee.</p> <p>A bond payable to J. T. Hubbert was insufficient to perfect an appeal from a judgment in justice court recovered by T. J. Hubbert, and the appeal should have been dismissed.</p>

<p>1. School District Formed from Two Counties—How Changed.</p> <p>Under the statute providing that where a school district organized out of territory from two counties is established, it shall be regarded and treated in all respects as a district of the county by whose commissioners court it is established, it can be changed only by the commissioners court of such latter county, with the consent of a majority of the legal voters of the districts afiected by such change, and the commissioners court of the other county has no such authority. Sayles’ Civ. Stats., arts. 3946a, 3946b, 3938.</p> <p>2. Same—Suit for School Funds by County Treasurer—School Trustees</p> <p>as Plaintiffs.</p> <p>A school district of A. County was formed in part of territory of M. County, and the latter county wrongfully refused to transfer to the trustees of such district the school fund collected for the part in M. County, and suit was instituted therefor by such trustees. Held, that the county treasurer of A. County, being by statute the custodian of the school fund of his county and charged with the duty of directing prosecutions for the recovery of all debts due his county, was alone authorized to prosecute such suit. Rev. Stats., arts. 926, 927, 3935.</p>

<p>1. Divorce—Common Law Marriage—Pleading and Proof.</p> <p>In an action for divorce, under a general allegation of marriage, a common law marriage may be shown in evidence.</p> <p>¡3. Same—Evidence—General Reputation—Address of Letters.</p> <p>In an action of divorce, evidence of general reputation is admissible to prove the marriage, and the addresses of letters written to the alleged wife may be given in evidence to show such reputation.</p> <p>3. Same—Presumption of Competency for Marriage.</p> <p>Where it is shown that the parties are man and woman, and of age at the time of the alleged marriage, it will be presumed, in the absence of proof to the contrary, that no impediment to their marriage existed.</p> <p>4. Same—Issue of Incompetency—Request for Charge Necessary.</p> <p>If defendant in an action for divorce deemed the evidence sufficient to raise the issue of plaintiff’s incompetency to marry him on the ground that a prior husband was living at that time, he should have requested a special charge upon that issue.</p> <p>5. Same—Common Law Marriage—Cohabitation.</p> <p>It is not sufficient to constitute a common law marriage that there was cohabitation under an agreement to marry in the future. See the opinion for a full statement of the principles applicable to such a marriage.</p> <p>6. Same.</p> <p>Where, at the time cohabitation was begun, there was no marriage contract, the mere continuance of the cohabitation as man and wife, without something more to indicate a change in the relations of the parties, is not sufficient to show a marriage in fact subsequent to the commencement of the cohabitation.</p> <p>7. Same—Evidence—Former Suit—Estoppel.</p> <p>The fact that plaintiff in an action for divorce had once brought suit against defendant for breach of promise of marriage, which suit was dismissed by her, does not estop her from asserting that she was at such former time actually married to the defendant, but the allegations in the petition in such former suit are admissible as declarations against interest to show that she was not then married to defendant, as also is evidence that upon her testimony in a criminal action the defendant had been formerly convicted of illicit cohabitation with her.</p>

<p>1. Municipal Corporation—Failure to Guard Street with Barrier—</p> <p>Proximate Cause.</p> <p>Where plaintiff was driving an ordinarily gentle horse along a street exposed to a river’s front, and the horse, becoming suddenly frightened, backed the buggy into the river, injuring plaintiff, and which injury would not have occurred had there been a suitable barrier erected between the street and the river, the failure of the city to provide such barrier was the proximate cause of the injury, and it was liable therefor.</p> <p>2. Same—Contributory Negligence.</p> <p>It was not negligence per se for plaintiff to drive an ordinarily gentle horse along such unguarded street, nor was she necessarily precluded from recovery because the horse took fright, nor because of the fact that she knew the street was defective in having no barrier next to the river, but such facts were matters to be considered with the other facts of the case in determining whether she was guilty of such negligence as would preclude recovery.</p> <p>3. Evidence—Leading Question—Immaterial Error.</p> <p>Where a party complaining of a leading question was not prejudiced by it, the fact to which it related being proved by other competent evidence, the judgment will not be reversed because an objection to such question was not sustained.</p> <p>4. Same.</p> <p>The allowance of a leading question which elicited the answer that before the accident occurred plaintiff had the full use of her mental faculties, was not material error, since everyone is presumed to have the full use of their mental faculties until the contrary is shown.</p> <p>5. Evidence—Personal Injury—Physicians’ Charges.</p> <p>In an action for negligent personal injuries plaintiff could testify as to amounts charged by her physicians for treating her for the injuries, and by the druggist for medicine, the reasonableness of the charges being shown by other competent testimony.</p> <p>6. Same—Injury to Mental and Nervous Condition. '</p> <p>Where plaintiff’s petition alleged that by reason of the accident and injury she received a severe nervous and mental shock, it was competent for her to testify in regard to her mental and nervous condition after she received the injury.</p> <p>7. Same—Opinion as to Horse Being Gentle.</p> <p>Where plaintiff's horse became frightened and backed the buggy over an unguarded bank into a river, the opinion of a witness, based solely on the horse's action at the time, as to whether the horse was a safe one for a lady to drive, was not admissible.</p> <p>8. Same—Interest of Witness—Immaterial Error.</p> <p>Where, in an action of damages for personal injury, plaintiff offered her attorney as a witness, he could be required, on cross-examination, to state- whether he had an interest in the recovery, and also the extent of such interest, but a refusal of the court to require him to state the extent of such interest was harmless error where the fact to which the attorney was called to testify was sufficiently established by other evidence.</p> <p>9. Municipal Corporation—Defective Street—Charge of Court.</p> <p>In an action for personal injury resulting from the failure of a city to erect barriers along a street next to a river bank, an instruction was not erroneous in failing to define under what circumstances it would have been the city’s duty to erect such barriers, where the entire charge showed that if the facts admitted were proved, such circumstances were shown as made it the city’s duty to have erected the barriers.</p> <p>10. Same—Negligence—Charge on Weight of Evidence.</p> <p>A requested charge declaring it negligence per se ■ for plaintiff to have driven along the unguarded street with knowledge of its condition, if she ought reasonably to have avoided doing so, would have been on the weight of evidence, as would also a charge assuming that the plaintiff was wanting in ability or care in driving her horse, or negligent in handling the lines,</p> <p>11. Same—Intervening Act of Third Party.</p> <p>Since the intervening act of a third party could not excuse the city for its negligence in failing to erect barriers along the street next to the river hank, a charge instructing a finding for the defendant city if the accident' to plaintiff was occasioned by bystanders endeavoring to assist plaintiff by taking hold of the bridle, thereby causing the horse to back over the bank, was properly refused.</p>

<p>1. Building and Loan Association—Fraudulent Representations.</p> <p>Representations by officers of building and loan associations as to the time when shares of t'heir stock will mature are mere matters of opinion, and do not constitute such fraud or misrepresentation as will vitiate the contract of membership.</p> <p>2. Same—Stockholder’s Right of Recovery—Measure of Damages.</p> <p>Where plaintiff’s petition alleged that at the time he was induced to take stock in a loan association, it falsely represented to him that there was an annual accumulation on the stock of not less than 25 per cent, and that he was induced thereby to become a member, and that the continued misrepresentation of the association on that point caused him to continue his monthly payments and not withdraw, and that he was not in a position to discover the true facts of the case, and acted alone on the assurances of the association, it stated a cause pf action entitling him to recover his payments on the stock, with interest, less the amount of his indebtedness to the association for any sums borrowed by him, with the interest accrued thereon, but as his action rested upon fraud inducing the contract, he could not at the same time destroy the contract and yet recover a judgment under it for the value of paid up stock.</p>

<p>1. Pleading and Charge—Variance—Blaster and Servant—Defect in</p> <p>Bfachinery.</p> <p>In an action by an employe for negligent personal injury, an allegation in the petition that a lever which the employe was using in hoisting a stringer was constructed of such soft material that it bent in use and slipped out of its place, causing him to fall, was sufficient to warrant a charge which submitted the defect in the lever as being that it was not sufficiently tough and hard to use in hoisting the stringer without bending.</p> <p>2. Same.</p> <p>See the opinion for charge held, as a whole, not to vary from the pleading in submitting the issue of negligence in the master in furnishing a servant with a defectively constructed tool which bent while being used, thus causing the servant to fall and be injured.</p> <p>3. Blaster and Servant—Experience of Servant—Inherent Defect.</p> <p>Where tools furnished by the master for the use of the servant are composed of defective material, even an experienced servant will not be charged with a knowledge of such defect, nor be held to have assumed the risk of danger in their use.</p> <p>4. Bleasure of Damages-—Personal Injury—Charge.</p> <p>In an action by an employe against a railway company for negligent personal injury, a charge that, in fixing the amount of the verdict, the jury should consider plaintiff’s physical and mental suffering, his loss of time, and, if they found his injuries were permanent and would diminish bis capacity to labor and earn money in the future, this should also be considéred, was correct as to the measure of damages as far as it went, and, in the absence of a requested charge, presented no reversible error in failing to give some rule by which the jury were to measure the damages, such as finding a sum that would compensate plaintiff.</p>

<p>Promissory Note—Non-Negotiability—Failure of Consideration—Notice.</p> <p>Although a note be non-negotiable because made payable “in current funds/' yet an assignee thereof for value before maturity is entitled, under the statute, to recover thereon as against the defense of failure of consideration of which he had not notice prior to the assignment. Rev. Stats., art. 314.</p>

<p>1. Charge of Court—Error Not Available.</p> <p>A party will not be heard on appeal to complain of a charge where, at the trial below, he requested the submission of a charge to the same effect.</p> <p>2. Malicious Prosecution—Probable Cause—Motive.</p> <p>Where a criminal prosecution for arson, resulting in an acquittal, was instituted on probable' cause, and under the advice of the county attorney, to whom the prosecutor fairly communicated all the material facts, it was not sufficient to sustain an action by the defendant for malicious prosecution, though the motive of the prosecutor was to defeat a claim for insurance on the house that was burned.</p> <p>3. Same—Good Faith—Advice of Attorney.</p> <p>To justify a criminal prosecution on the ground that it«was advised by an attorney, a statement of all the facts known to the prosecutor must be made in good faith to the attorney, but the good faith refers not to the object of the prosecution, but to the honest desire of the prosecutor to ascertain if the facts stated make out a case against the accused.</p> <p>■4. Charge of Court—Repetition.</p> <p>While it is improper for the court, by frequent repetition, to place a principle of law too prominently before the jury, yet a violation of the rule will not require a reversal where the repetition does not indicate the court's opinion on the facts.</p> <p>5. Evidence—Declarations—Conspiracy.</p> <p>Declarations of a third person made to a party charged with conspiracy, after the alleged conspiracy has been consummated, and in the absence of the other party charged therewith, are not admissible as against such other party.</p> <p>6. Assignment of Error.</p> <p>Where an assignment of error to the admission of evidence does not point out the error, and the bill of exceptions on which it is based does not point out the question asked or answer given to which objection is made, the assignment will not be considered.</p>

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

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

<p>1. Master and Servant—Defective Tools—Assumed Risk—Charge.</p> <p>In an action by an employe for injury caused by a piece of steel flying off from a rivet hammer, defendant requested the court to charge that as it was shown that such hammers were of the best make, and as it was "agreed that they had to be highly tempered, and were on that account necessarily to some degree brittle and liable to chip off, plaintiff had assumed the risk of being injured by such chipping off. Held, that the charge was properly refused as not applicable, since the testimony further showed that the hammer had Become cracked from use, and was more liable in that condition to chip off than when new.</p> <p>2. Same.</p> <p>Nor was it error, under such state of facts, for the charge to submit the question las to whether or not defendant had used. ordinary care in furnishing safe rivet hammers for the purposes for which they were being used.</p> <p>3. Same—Servant’s Knowledge of Defective Condition.</p> <p>Where plaintiff's part of the work was merely to hold the rivet hammer while it was being used by another employe, and he had been, engaged at such work only a few days, and there was testimony that he knew nothing about the condition of the hammer, it was for the jury to determine whether he knew, or was negligent in not knowing, the danger, although the cracked condition of the hammer was apparent on a casual examination.</p> <p>4. Damage—Diminished Capacity to Labor—Evidence of.</p> <p>In an action for injury to an employe resulting in the loss of an eye, the court properly permitted the jury to find damages for plaintiff’s diminished capacity to labor and earn money in the future upon testimony merely tending to that effect, since, in the nature of things, such element of damage can not be proved with exactness, and must in a large degree be left to the sound discretion of the jury.</p> <p>5. Argument of Counsel—Immaterial Error.</p> <p>An improper remark of counsel in his argument t,o the jury was not ground for reversal where the court, at the time it was made, directed the jury to disregard it, and counsel thereupon withdrew the remark and asked the jury to be governed by the law and evidence, and the remark went merely to the amount of the verdict, an excess in which could be remedied by remittitur.</p> <p>6. Damages for Loss of Eye Held Excessive.</p> <p>A verdict for $8000 for loss of an eye by an employe, 24 years old when hurt, is held excessive, and a remittitur of $1000 required.</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 below before Hon. W. J. J. Smith.</p>

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

<p>Homestead—Abandonment—Separate Tracts of Land.</p> <p>Plaintiff, owning a 60 acres tract of land as his homestead, bought another 64 acres tract three miles distant, moved to it and resided there a year, renting out the first tract, except five or six acres which he still cultivated. He cultivated both tracts the next year, but having lost the latter tract in a law suit he moved back to the former. While living on the 64 acres tract he designated both tracts as his homestead and had the designation recorded, and at the trial testified that both tracts, while he owned both, were his homestead, but on two prior occasions he had stated that the 64 acres tract was not then his homestead, nor claimed as such. Held, that the removal to the latter tract was not an abandonment of the 60 acres tract as part of the homestead so as to subject it to a judgment lien attaching thereto during plaintiff's residence on the other tract.</p>

<p>1. Superior Title—Rescission of Sale of Land After Vendee's Death.</p> <p>Where, by reason of the retention of an express lien in a deed of land to secure unpaid purchase money, the sale is executory and the superior title remains in the vendor, his right to rescind the sale and recover back the land upon default in payment is ‘ not affected by the death of the vendee, since the latter’s heirs and legal representatives take only such estate as he had, subject to all the terms and conditions of the contract of sale.</p> <p>Z. Same—Presentment of Vendor’s Claim to Deceased Vendee’s Estate.</p> <p>Where the vendee has died, it is not necessary that the vendor present his claim for interest falling due on the purchase money notes for allowance against the estate in order to entitle him to rescind the sale and recover the land for default in the payment of such interest.</p> <p>3. Same—Jurisdiction of Probate Court—Making Payments on Land.</p> <p>Under article 5, section 16, of the Constitution, the probate court has general jurisdiction over estates, and by virtue thereof may make such orders as are necessary to prevent a forfeiture of the rights of the estate under an executory purchase of land, without the presentation to it for allowance of a claim for such payment by the vendor.</p> <p>4. Same—Jurisdiction of District Court—Trespass to Try Title.</p> <p>The Constitution confers on the district courts exclusive jurisdiction of all suits for the trial of title to lands, and where a vendor of land who has reserved the superior title rescinds the sale for default in payment by the vendee, the action of trespass to try title is his proper remedy for the recovery of the land.</p>

<p>1. Parol Evidence—Varying Written Contract—Insurance.</p> <p>Where plaintiffs sued for the value of hay destroyed by fire while stored with defendants, alleging that they insured the hay for his benefit, collected the insurance money and held the same in trust for him, it was admissible for defendants, as against plaintiff, who was not a party to the contract with the insurance company, to show by paroi evidence that plaintiff's hay was not in fact covered by the insurance, although such evidence tended to contradict the written terms of the policy in its description of the hay covered thereby.</p> <p>2. Custom—Issue Abandoned—Exclusion of Evidence.</p> <p>Where plaintiffs alleged that it was the general custom of warehousemen to insure hay stored with them, but introduced no evidence on that point, and such an issue was not submitted to the jury, it was immaterial that the court excluded evidence offered by defendants to show that such was not their custom.</p> <p>3. Insurance by Warehousemen in Trust.</p> <p>Plaintiff sued defendants for the value of hay stored with them, alleging that defendants insured the hay for his benefit, and held the proceeds derived from the insurance in trust for him. Defendants’ policy of insurance was in its terms broad enough to cover any hay stored with them, but the amount of insurance money they received under the policy was not sufficient to cover their loss on their own hay destroyed by the fire. Held, that plaintiff could not charge defendants as trustees for any part of the insurance money, in the absence of a shelving that they were under obligation, either by contract or custom, to insure his hay, and that he had elected to adopt their acts in procuring the insurance and so notified them.</p>

<p>1. Habeas Corpus—Jurisdiction of County Court.</p> <p>The county court has not jurisdiction of an action by habeas corpus the sole object of which is to determine to whom, the custody of a minor child belongs, since the Constitution has conferred only upon the district courts the general equity power of issuing the writ of habeas corpus in cases where it is not necessary to enforce a jurisdiction that has otherwise attached. Constitution, article 5, sections 8 and 16, construed.</p> <p>2. Same—Appeal.</p> <p>A. proceeding by habeas corpus from the county court to determine merely the right to the custody of a minor child is not one relating to the guardianship of the minor and of which the district court has appellate jurisdiction over the county court, but is a civil proceeding in which, though the county court is without jurisdiction, an appeal lies only to the Court of Civil Appeals.</p>

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

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

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

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

<p>Res Judicata—Plea in Reconvention Waived.</p> <p>In an action in which an injunction has already issued at plaintiff's instance, defendant, besides pleading to the merits, reconvened for damages, but at the trial did not read or submit such plea, offered no evidence on it, no charge was asked or given on it, nor did the verdict or judgment refer to it. Held, that in a subsequent action for such damages, brought on the injunction bond, the judgment in the former case could not be pleaded as res adjudicata, since the plea in reconvention was waived at the former trial.</p>

<p>Injunction to Restrain Judgment of Justice Court—Adequate Remedy Otherwise.</p> <p>Judgment by default for $2.50 was rendered in justice court against a corporation upon citation, the officer’s return of which showed due service on defendant’s local agent. Defendant knew of the rendition of the judgment, but made no effort in that court to set it aside or to obtain a new trial, and upon application to the district court for an injunction to restrain the judgment, on the ground that the person served with the citation was not its agent, it did not show any excuse for its failure to take such steps, or that it had a meritorious defense. Held, that the injunction was properly denied.</p>

<p>Appeal from the County Court of Tarrant. Tried below before Hon. M. B. Harris.</p>

<p>1. Vendor’s Lien—Exchange oí Land—Unliquidated Damages—Lis Pendens.</p> <p>In the case of an exchange of lands with general warranty of title, a vendor’s lien does not exist upon the land received by one of the parties to satisfy a judgment based upon a claim for unliquidated damages for fraudulent representations as to the land conveyed by him, and the pendency of an action for such damages and to foreclose such a lien was no notice whatever to a subsequent purchaser from such party of the land so received.</p> <p>2. Same—Lis Pendens.</p> <p>Where the claim for a lien on the land was first set up in such action for damages by an amended petition, the lis pendens, if operative at all, could only, as to the lien, date from the filing of such amendment, which set up a new cause of action.</p>

<p>Appeal from Borden. Tried below before the Hon. W. B. Smith.</p>

<p>1. Usury—Assumption of Usurious Debt.</p> <p>Usury in the original debt can not be pleaded by a subsequent purchaser of the property given as security therefor, who has assumed to pay the full amount of the usurious debt as a part of the consideration for the property.</p> <p>3. Same—Parol Evidence of Usury Admissible Against Written Contract.</p> <p>Under the plea of usury, as under that of fraud, accident or mistake, the matter alleged may be shown by paroi testimony, notwithstanding it varies, contradicts, or even destroys the written contract.</p> <p>3. Estoppel.</p> <p>Plaintiff, a mortgagee, could not set up that defendants were estopped from claiming relief against mistake in the 'recitals of subsequent deeds transferring the property, where he was not induced by such recitals to change his own position in any way.</p> <p>4. Evidence—Opinion—Agency.</p> <p>It was not competent for plaintiff, as a witness, to state that a g:ven person through whom he negotiated a loan contract with defendant corporation,. was the agent of such corporation. Hunter, Associate Justice, not concurring.</p> <p>5. Same—Parol Evidence of Intention Varying Written Contract.</p> <p>Where the consideration expressed in a deed is contractual, it is not competent to prove the intention of the parties where that intention varies or contradicts the plain terms of the written contract, without showing that such terms were inserted by mistake.</p>

<p>1. Railway Company—Ejectment of Passenger from Freight Train.</p> <p>In an action against a railway company for the ejectment of plaintiff from a freight train, he having obtained a permit to ride thereon from defendant’s local agent, it was error for the court to submit to the jury as an issuable fact the authority of the agent to issue such permit, where the evidence was undisputed that he had no such authority, and the error was not cured by a further charge to find against plaintiff if the authority to issue permits had been revoked.</p> <p>2. Same—Degree of Care—“Humane Person.”</p> <p>A charge that the conductor, in ejecting plaintiff, was required “to exercise such care to avoid unnecessary injuries to plaintiff’s feelings and person as a humane person of ordinary prudence would usually exercise with reference to a similar matter,” required, it seems, in the use of the word “humane,” a higher standard than the law fixes.</p>

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

<p>Appeal from Taylor. Tried below before Hon. H. B. Lindsey.</p>

<p>Appeal from Llano. Tried below before Hon. James Flack.</p>

<p>1. Flea of Privilege—Trespass—Conspiracy.</p> <p>The obtaining and conversion of a promissory note in which plaintiffs had an interest by conspiracy with a resident of B. County was such a trespass com mitted there, within the meaning of the statute regulating venue (Revised Statutes, article 1194), as to authorize a party charged with such conspiracy and conversion to be sued in B. though residing in M. county and pleading his privilege.</p> <p>2. Same.</p> <p>The fact that a defendant charged in the petition as a coconspirator had admittedly been made a party for the purpose of subjecting his codefendant residing in M. County to suit in B. County, did not entitle the latter to compel suit against him in the county of Ms residence where the action was for a trespass committed in B. County.</p> <p>3. Negotiable Instrument—Assignee—Good Faith.</p> <p>One acquiring a negotiable instrument in due course of' trade before maturity is protected against the claims of others thereto unless he acts in bad faith; and a mere suspicion that there may be a defect of title in its holder or knowledge of circumstances which would excite suspicion in the mind of a prudent man, is not sufficient to impair the title of the purchaser.</p> <p>4. Argument of Counsel.</p> <p>In a close ease with the evidence apparently preponderating against the verdict, it was reversible error for counsel in argument to attempt to read from an instrument (application for continuance in another case by his adversary) which had not been offered in evidence, and where, on objection, he was stopped by the court, to indulge in sarcastic comments on having “hit them in a tender place.”</p>

<p>Error to the County Court of Falls. Tried below before Hon. W. E. Hunnicutt.</p> <p>T. J. Kempner testified: “The furniture was paid for in cash, or she was to pay $25 per month for the house and furniture for twelve months and the furniture was to be hers. I sold her the furniture. I had no writing to that, effect; there was no writing in evidence of my reversion of title in this property that I sold her. ■ I did sell it to her with the understanding that she was to pay $5 per month for twelve months, when the property was to be hers, if you call that a sale. If she failed to pay the monthly installment of $25 per month the property was to revert back to me. She was to pay monthly in advance.”</p> <p>Mrs. Nations testified: “When I leased the house from Mr. Kempner, I was to pay him either $50 cash for the property he turned over to me and pay him $20 a month rent, or he said I could pay him $25 per month in advance for the house; at the end of twelve months the things would be mine. I accepted the proposition to pay him $25 per month. That was $5 for the furniture and $20 for the house. I did pay him $25 per month for the house and furniture as long as-1 was there.”</p>

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

<p>Appeal from Tom Green. Tried below before Hon. J. W. Timmins.</p>

<p>Telegram—Cotton Purchase—Damages.</p> <p>In order to show that damage resulted to plaintiff from so incorrectly transmitting his telegram to his agent as to authorize and cause the purchase by the latter of cotton at a higher price than the market warranted, it was necessary to allege, either that the cotton could and would have been bought for less but for the mistake, or that it had been sold for less than was paid, or was still on hand and worth less.</p>

<p>1. Insurance—Forfeiture—Use of Gasoline in Laundry—Custom.</p> <p>Forfeiture clauses in insurance policies being construed most favorably to the insured, the operation of a laundry should not be held a trade or manufacture within the meaning of a provision forfeiting the policy in case gasoline was used on the premises, and the rule announced in Insurance Company v. Green, 16 Texas Civil Appeals, 531, permitting evidence of the common use of gasoline by residents of the town at the time the policy was issued, in order to limit the application of the forfeiture clause, is applicable in such case.</p> <p>3. Insurance—Forfeiture—Increase of Hazard.</p> <p>Insurance being forfeited by the terms of the policy if the hazard were increased . by any means within the control or knowledge of the insured, instructions submitting the question of such forfeiture, where proof of increased hazard was uncontradicted but insured's knowledge thereof was left in question, should inform the jury that the policy was not forfeited if the increased hazard was not within the knowledge or control of insured.</p>

<p>1. Carrier of Dive Stock—Shipper’s Contract to Doad—Overloading.</p> <p>A contract for transportation of cattle by which the shipper agrees to load and unload at his own expense and risk can not relieve the carrier from his duty to furnish cars of sufficient space to carry them safely, and where they were overloaded, over the shipper’s protest, the carrier was liable for the resulting damages.</p> <p>2. Carrier—Negligence—Burden.</p> <p>It was not necessary to allege or prove negligence on the part of the carrier in order to recover for loss or injury to cattle while transported.</p> <p>3. Justice Court—Appeal—Pleading.</p> <p>The rule that pleading in justice court is oral and that a brief statement thereof on the docket is sufficient governs also the trial of the case in the county court on appeal.</p>

<p>Appeal from the County Court of Bell. Tried below before Hon. D. R. Pendleton.</p> <p>The assignments overruled without discussion related to the admission of oral evidence to prove that an arrangement was made by the city with Andrews for the use of his premises as a pound, also to prove that the person placing the hogs in pound was a deputy marshal, and further asserted that the power granted to impound stock “running at large” did not embrace animals at large without the owner’s consent.</p>

Tried below before Hon. J. 0. Woodward. On cross-examination of Ricks, a witness for defendant and engineer of the passenger train, he was asked: “How many collisions have you had?” On objection, the question was ruled out.

<p>Appeal from El Paso. Tried below before Hon. J. M. Goggih.</p>

<p>1. Charge of Court—Considered as a Whole.</p> <p>In determining objections to a charge of court as not properly stating the law, the charge will be taken and construed as a whole.</p> <p>2. Same—Repetition.</p> <p>It is not error to refuse a special charge which would be merely a repetition of an instruction already given.</p> <p>3. Carriers—Damages to Cattle in Shipment—Measure of—Charge.</p> <p>See the opinion for a charge of court, in an action for damages to cattle during shipment, held not subject, as a whole, to objection that it left the jury uninstructed as to what care should have been used by the carrier, and that it made the defendant carrier liable for injury occurring on other connecting lines, and injury resulting from plaintiff's own negligence in overloading and keeping the cattle in the cars too long.</p> <p>4. Same—Shipper’s Negligence Not Barring Recovery Entirely.</p> <p>Though the shipper may have been negligent in failing to unload, feed, water, and rest his cattle, as it devolved on him to do under the contract of shipment, yet such negligence would only preclude him from recovering "such damages as ensued therefrom, and would not bar his recovery of damages that were proximately caused by the negligence of the carrier.</p>

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

Tried below before Hon. M. Kewhoh. The twenty-second assignment of error, referred to in the opinion, was as follows: “The court erred in refusing to charge the jury, as requested by the defendant in charge number 6, to the effect that if Iiarnes himself prepared hijs statement on medical examination, and he falsely answered questions therein as to his wound and surgical operation, and that he took the paper to Dr. Jones merely to get him to sign the certificate, and that he…

<p>Appeal from Maverick. Tried below before H.on. J. S. Moeix, Special Judge.</p>

<p>1. Exceptions to Pleading—Harmless Error in Overruling.</p> <p>Where, in an action of damages for the conversion of cattle, the court charged the jury to find the value of the property at the time of the seizure, with interest, and they returned a verdict for that amount and no more, the refusal of the court to sustain exceptions to a clause in the petition for expenses of feeding the cattle before the seizure, was harmless error.</p> <p>2. Evidence—Record of Cattle Brand—Bill of Sale.</p> <p>In an action for the conversion of cattle, plaintiff claimed ownership under a ibill of sale from defendant, which the latter claimed was intended only as a mortgage, and this was the issue in the case, there being no question as to the identity of the cattle. Held, that an objection to the introduction of the bill of sale in evidence because there was no proof that the brands designated therein were recorded, was not wéll taken.</p> <p>3. Sheriff—Liability for Wrongful Seizure of Property.</p> <p>Where the sheriff, by virtue of a writ, seizes property which belongs to a third person and not to defendant in the writ, he can not justify the seizure under the plea that he did not know that such third party owned the property, nor can he escape liability on the plea that he was compelled to levy the writ, since he can-require an indemnity bond before making the levy.</p>

<p>1. Justice Court—Judgment—Appeal—Execution—Mandamus.</p> <p>A judgment was entered for plaintiff in an action in justice court, and on the same day the court, of his own motion, set it aside and rendered a judgment for defendant, from which latter judgment plaintiff appealed to the county court, and also applied thereafter to the justice to issue execution on the first judgment in his favor. Held, that after the appeal was perfected the justice had no further jurisdiction in the case, and was without authority to issue such execution, and hence mandamus would not lie to compel him to do so.</p> <p>2. Same—Power to Alter and Set Aside Judgment.</p> <p>The statutory provisions requiring motion in the justice court for new trial or to set aside judgment to be in writing and one day’s notice thereof given to the opposite party, do not control the power, inherent in courts generally and in the justice courts as well, to control their judgments during the term, and there is no restriction by statute on the exercise of such power by the justice court, except perhaps that it must take place within ten days from the rendition of the judgment..</p>

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

<p>Appeal from the County Court of Bexar. Tried below before Hon. Peter Jonas.</p>

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

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

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

Tried below before Hon. J. E. Lancaster. The amount of the rental claim in controversy between appellee and his tenant was $510, and the cotton seized under the distress warrant was valued by the officer making the levy at $145. In the trial of the right of property in Ellis County, from which this appeal is taken, appellee, the landlord, successfully pleaded the judgment in the County Court of Johnson County foreclosing his lien on the cotton.

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

<p>1. Building and Loan Association—Stockholder’s Right of Rescission—</p> <p>Fraud.</p> <p>Where a stockholder in a building and loan association was induced to subscribe for its stock by fraudulent representations of its agent, he may rescind his contract, after the corporation has been declared insolvent and a receiver appointed, where the rights of third parties have not intervened since he became a stockholder, and he has never participated in any of the proceedings of the company.</p> <p>2. Same—Want of Diligence in Discovering Fraud.</p> <p>Want of diligence in discovering the fraud will not alone,- where the rights of third parties have not intervened, affect the stockholder’s right to rescind. See the opinion for facts held not to show loches on the part of the stockholder in discovering the falsity of representation as to the solvency of a foreign corporation.</p> <p>3. Same—Stockholder’s Rights in Settlement.</p> <p>Where a borrowing stockholder in a building and loan association was induced to subscribe for the stock by fraudulent representations of an agent of the association as to its solvency and profits, he is entitled to a rescission of the contract of subscription, and to have the amount paid by him as dues on his stock credited on the debt he owes the association.</p> <p>4. Attorney Fees Stipulated in Contract.</p> <p>Attorney fees stipulated for in a contract will not be allowed in favor of a party who has not carried out the contract, although suit is brought and a recovery had in part on such contract.</p>

<p>1. • Mechanic’s Lien—Bights of Materialman.</p> <p>Where a materialman who furnishes material to a contractor fails to give notice of his claim to the owner of the building within the time prescribed by the statute, he acquires no lien against the property, and the statute regulating the matter, and in this case cutting off the claim, is not unconstitutional as being so restrictive as not to afford an efficient protection to a lien given by the Constitution. .Following Berry v. McAdams, 93 Texas, .431.</p> <p>2. Same—Contract.</p> <p>Where the materialman, failed to comply with the statute- as to fixing a lien against the owner of the building, he could not, after the owner had settled in full with the contractor, establish a lien by showing that by the building contract the owner was authorized to retain 20 per cent" of the contract price; since he was not himself a party thereto. . , : -</p>

<p>1. Husband and Wife—Separate Property—Implied Agreement by Husband to Pay Wife.</p> <p>Where a husband appropriated certain property the separate estate of his wife, and afterwards conveyed other property to her in satisfaction of the alleged debt, it is not, as against creditors of the husband, necessary to the validity of the wife's title to such latter property that the husband should have agreed to pay for thd property so appropriated, since such agreement may be implied, if the first transaction was not in fact a gift by the wife.</p> <p>2. -Same—Wife’s Separate Estate—Degree of Proof—Charge.</p> <p>In a contest between the wife and creditors of the husband who had levied on land which was apparently community property, but which the wife claimed as her separate estate because bought with funds -arising from separate property of hers used and appropriated by the husband, a charge that the jury, before they could find in her favor, must be satisfied that the land was paid for with her separate means, was error as requiring too high a degree of proof.</p> <p>3. Same—Husband's Bight to Prefer Wife as a Creditor.</p> <p>Where the husband is insolvent and the wife is one of his creditors, she stands on the same footing as his other creditors, and he has the legal right to prefer her claim, just as he has the right to prefer that of any other creditor.</p>

<p>Receiver—Appeal from Order Appointing—Delivery Back of Property.</p> <p>When, by interlocutory order in a cause pending in the district court, a receiver has been appointed for the defendant company and its property delivered to him, and the defendant appeals from such older, executing a supersedeas bond, it is thereupon entitled to have the receiver, pending such appeal, return to it the property, even though by an injunction from the trial court still in force it is forbidden to use or dispose of the property pending the litigation.</p>

<p>1. Railway Company—Spark Arrester—Negligence—Burden of Proof.</p> <p>A charge to the jury that “if you find that plaintiff [a passenger on the defendant company’s train] was injured in the eye by a cinder from the engine, the burden of proof is on the defendant to show that its engine was equipped with the best appliances obtainable for preventing the escape of sparks and cinders; that it had used ordinary care to keep its said appliances in good condition, and that its. servants in charge of the train used ordinary care in its operation at the time,” is held a correct statement ofjthe law. Following Railway v. O’Kelleher, 21 Texas Civil Appeals; 96.</p> <p>2. Same—Degree of Care Required of Railway Company.</p> <p>A change in such case that the defendant company must show that its engine was equipped with the best appliances obtainable, without qualification as to whether such appliances are in use, or have been approved, placed upon the railroad a higher duty than that imposed by law.</p>