Volume 25 — Texas Civil Appeals Reports

<p>Will—Codicil—Paper Held Testamentary and Not Undelivered Deed.</p> <p>A testatrix duly executed a will, and in connection with it there was offered for probate, as a codocil, a separate paper, signed by her, reciting briefly that she that day gave to her daughter, O. W., her residence place, to have and to hold forever in her own right. This paper was in the handwriting of the testatrix and was acknowledged by her before a notary, and after her death was found in an envelope among her valuable papers, and on the back of the envelope was an indorsement in her handwriting and signed by her, as follows, ‘Tor O. W. at or after my death.” Held, that the indorsement should be considered in connection with the instrument to which it referred, and so considered the paper was in legal effect a codicil, and not an undelivered deed of gift.</p>

<p>1. —Carrier of Passengers—Connecting Lines—Liability of Initial Carrier.-</p> <p>Where a railway company sells to a passenger a through ticket over its own and connecting lines, stipulating that it acts only as agent for the other lines, its contract of carriage is complete when it has safely transported the passenger and delivered him at its depot at the point of connection with the next line, and it can not, after a reasonable time has been allowed the passenger for departing from the depot, be held liable on its contract of carriage for any act occurring thereafter.</p> <p>2. —Same—Misdirecting Passenger—Only Ordinary Care Required.</p> <p>Where a railway company’s contract of carriage with a passenger, holding a through ticket over connecting roads, has ceased by virtue of his delivery at its depot, it is liable for the mistake of its agent there in directing the passenger to a wrong train for the continuance of his journey only in the event of want of ordinary care on the part of the agent.</p> <p>3. —Same—Negligence Is Question for the Jury.</p> <p>A requested charge making the act of the carrier’s agent, in giving the passenger erroneous information as to which train he should take next, negligence per se, is properly refused, since it is for the jury to determine whether or not such act was negligence.</p>

<p>1. —Survey—Land Certificate—Location of Alternate School Section.</p> <p>While the law requires the survey of a railroad land certificate and the alternate survey of a like amount for the State to be contiguous to each other, yet if made apart, they are not void, but only irregular.</p> <p>2. —Same—Correction—Void Location Upon Appropriated Land.</p> <p>Where a survey was made so as to cover an excess of land, and afterwards another certificate was located in part on the tract, such second location was. upon appropriated land, and was subject to a correction of the prior survey such as fixed it on that part of the land covered by the second location.</p> <p>3. —Archive of Land Office—Affidavit Explaining Field Notes.</p> <p>An affidavit filed in the Land Office explanatory of field notes is not an archive of that office so as to make it admissible in evidence, and the fact that the affiant was the surveyor who did the work and was dead when the affidavit was offered does not alter the case.</p> <p>4. —Land Office Map as Evidence.</p> <p>A map compiled in the Land Office, and lithographed, printed and published by that office, is an official map, and admissible in evidence for the purpose of identifying the location of surveys.</p> <p>5. —Judgment—Description of Land.</p> <p>A judgment by which a party recovers all of a designated survey not in conflict with another specified survey which can be easily identified upon the ground is not void for uncertainty.</p>

<p>1. —Jurisdiction of District Court—Lien for Taxes—Homestead Allowance.</p> <p>Where, after the State had sued to foreclose a lien for taxes, the defendant died, and the property, taken by the widow at its valuation, was set aside to her by the probate court in lieu of the allowance for a homestead, the district court had jurisdiction to determine in the tax suit, to which the widow, as administratrix, was made a party, the question of priority between the tax lien and the widow’s homestead allowance. Following George v. Ryon, 94 Texas.</p> <p>2. —Priority of Lien for Taxes Over Allowance for Homestead.</p> <p>When article 5175a of the Revised Statutes is construed in connection with other articles of the statutes relating to the same subject matter, it does not have the effect to exempt property set apart in lieu of an allowance for the homestead from the lien for taxes due thereon.</p>

<p>1. —Conversión—Measure of Damages—Market Value.</p> <p>Where, in an action for conversion, there was evidence tending to show that the goods had a market value at the time of their conversion, it was error for the court to instruct that the measure of damages was their reasonable value.</p> <p>2. —Same—Insufficient Proof of Market Value.</p> <p>Proof establishing merely that second-hand furniture of the kind involved in the suit was often sold there by persons desiring to leave the city, or who were forced to sell, at from 10 per cent to 60 per cent of its original value, was not sufficient to show the market value of the property.</p> <p>3. —Same—Same—Price Paid for Property.</p> <p>Evidence of what plaintiffs paid for a piano a number of years before could form no basis • for the ascertainment of its present value, unless such amount was shown to have been its value at the time of the purchase.</p>

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

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

<p>1. —Usury—Contract for Taking Up and Holding Judgment.</p> <p>Where a judgment debtor agreed to pay 10 per cent interest per annum on all the indebtedness, principal, interest and cost of taking up a judgment against him, and also executed his note for $300 as compensation for advancing money— the expenses and compensation of the loan agent covering but $60 of that' amount—the note was usurious and void, except as to such $60.</p> <p>2. —Same—Original Contract Not Tainted.</p> <p>The judgment, not being itself tainted with usury, was not affected by the subsequent usurious and void contract under which it was purchased and carried for a year, and was therefore still enforcible for its full amount of principal, interest and costs.</p>

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

<p>Promissory Notes—Assignment and Payment—Joint Security—Subrogation.</p> <p>D. & Son, owners of a series of notes secured by a mortgage, parted with their title to the first four of the notes, before maturity, and the owners sent them to a bank for collection. The makers of the notes arranged with plaintiffs to take them up as they fell due, upon an understanding that the notes were to be kept alive, and that plaintiff would be entitled to the same security that D. & Son had, and the notes, upon payment of "the amount due thereon, were assigned to plaintiffs by the bank. Held, that the notes had not been paid, but had been purchased, by plaintiffs, and the rule that, in order to become subrogated to the lien of the mortgage, plaintiffs would have to pay off the whole series of notes, did not apply, and that a judgment foreclosing the mortgage and directing the proceeds to be paid pro rata on thé entire series of notes was correct.</p>

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

<p>1. —Harmless Error—Amendment—Negligence.</p> <p>It was harmless error for the court to overrule exceptions that asserted limitations against an amendment alleging an act not before pleaded, where the case was so submitted as to permit recovery only on the negligence averred in the original petition.</p> <p>2. —Limitations—Delay in Taking Out Mandate.</p> <p>That six years elapsed after the reversal of a case by the appellate court before plaintiff took out the mandate and filed an amendment below, did not necessarily bar his right to further prosecute the case, there being no statute limiting the time within which the mandate must be taken out, and, in this case, no issue made as to abandonment of the suit.</p> <p>3. —Telegraph Company—Evidence Held Competent.</p> <p>In an action for the nondelivery of a telegram announcing that plaintiff’s son was dying, it was competent for plaintiff to testify that had it been delivered he would have understood it correctly, although the son’s first name was wrongly given therein, and that he would have gone to the son, and would have wired back for the body to be held awaiting his arrival, and to show by another that the body would have been so held.</p> <p>4. —Same—Unrepeated Message—Prima Facie Case of Negligence.</p> <p>In an unrepeated message the name of the addressee was changed in transmission from “Norris” to “Nortys.” The contract by virtue of which it was sent provided that the defendant company should not be responsible for any errors in its transmission. No evidence was offered at the trial showing how or why the mistake of name occurred in the transmission, and defendant requested a charge, in effect, that by virtue of such contract it was not liable for the error. Held, that the charge was properly refused, since the company, as a common carrier of messages, could not contract against exemption from liability for its own negligence, and such change of name of the addressee presented a prima facie ■case of negligence.</p>

<p>1. —Practice on Appeal—Assignment of Error—Brief—Proposition.</p> <p>The propositions, or assignments of error submitted as propositions, in an appellant’s brief, should each present a single idea, a distinct ground for reversal, and be supported by a statement giving not argumentative deductions, but copies of the charge complained of or other matter in the record, or at least its substance. See propositions and statements held insufficient.</p> <p>2. —Community Property—Sale by Survivor—Necessity.</p> <p>Where community debts existed, the survivor, being clothed with a general power to sell for'their payment, must determine the necessity for sale, and the title of a purchaser, in the absence of fraud, can not be made to depend on the actual existence of such necessity.</p> <p>3. —Same—Fraud—Evidence.</p> <p>Proof that no actual necessity for the sale existed is admissible, in such cases, only on the issue as to whether the sale was fraudulent and collusive.</p> <p>4. —Community Debts—Good Faith.</p> <p>A charge should not require proof that the community debts authorizing sale by the survivor were bona fide, where no issue was made as to their validity.</p> <p>5. —Community—Purchaser from Survivor—Adequate Consideration.</p> <p>The purchaser of community property from the survivor selling to discharge community debts need not show that he paid a “fairly adequate” consideration, to sustain his title.</p>

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

<p>1.—State School Land—Proof of Reclassification and Appraisement—Presumption from Record.</p> <p>Where it appears from the statement of facts that the State school lands in controversy were reclassified and appraised, the dates thereof and the prices fixed being recited, it will be presumed in favor of the judgment that the reclassifications and appraisements were duly made by the proper authority, and objection to the effect that there had been no legal reclassification or appraisement and application to purchase in conformity thereto, unsupported by evidence in the bills of exception, or otherwise, can not be sustained.</p> <p>2,.—Same—Forfeiture—Improvements—Fixtures.</p> <p>Improvements placed on State school land by a purchaser of such character as to become fixtures will pass to the State on a legal forfeiture of the contract of purchase.</p> <p>S.—Improvements Claimed by Lessee.</p> <p>Where one asserting right to State school land under a lease seeks, under Revised Statutes, article 4218s, to avoid a subsequent sale of the land by the State on the ground that he owned improvements on the land worth more than $200, and that he had bought such improvements from a prior owner, whose contract of purchase with the State had been forfeited, it devolved on him to show the extent and value of such improvements, and that they were in the nature of personalty.</p> <p>4.—Same—Additional Lands—Lease Subordinated to Sale.</p> <p>One who shows himself to be a purchaser of and actual settler upon a section of State school land, and a fair and regular purchase by himself from the State of an additional section of grazing lands situated within a radius of five miles of his home section, after due classification and appraisement thereof, is entitled to recover such additional sections from one claiming under a lease thereof who fails to show that he had placed or acquired improvements thereon of the value of $200.</p>

<p>Argument of Counsel—Improper Remarks—Prejudicial Error.</p> <p>Where, in a railroad grass-burning case, counsel for plaintiff, in his argument to the jury, stated that the depositions in the case of defendant company’s engineers and boiler inspector as to the inspection and condition of the engines were the same, and almost verbatim copies, of the first deposition that was ever used in a grass-burning case, and that these engineers are always engineers of fifteen to twenty years experience, etc., such remarks were prejudicial error, requiring a reversal of the judgment.</p>

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

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

<p>1. —Assignments of Error.</p> <p>Where the record does not show any assignments of error filed, none will be considered, although appellant’s brief purports to set forth assignments taken apparently from the motion for new trial.</p> <p>2. —Appeal—Cross-Assignments Against Parties Not Appealing.</p> <p>Where, in an action for land brought by several plaintiffs among whom there is no conflict of interest, some of the plaintiffs recover a part of the land, and defendant has judgment against the others, and these alone appeal, cross-assignments by defendant against the plaintiffs who recovered, defendant not having perfected a cross-appeal, will not be considered.</p>

<p>' Limitation of Five Years—Description in Deed—Conflicting Boundaries.</p> <p>Where the field notes of a deed, though calling for the line of the original survey of which it purports to convey a fractional part, gives such further description, by established and marked corners, as to the location of such line as ; affords reasonable notice to the true owner of a strip of land adversely occupied under the deed—and being in fact part of the next adjoining survey—that such line is claimed to be at a different place from that claimed by the owner of such adjoining survey, the deed will suffice to support the five-year statute of limita- , tions.</p>

<p>1. —Telegraphs—Death Message—Delay in Delivery—Excuse for Recipient’s Failure to Act Promptly.</p> <p>Plaintiff sued for damages for delay in delivering a message announcing the serious illness of his brother, whereby he was prevented from being at the funeral. Had he taken the first train after receiving the delayed message, he would still have arrived in time for the funeral, but he failed to take such first train because of his son’s sickness, the condition of his business, and other circumstances. See the opinion for facts held to warrant the court in refusing to direct a verdict for the defendant, and in submitting to the jury the issue as to whether there was a sufficient excuse for plaintiff’s failure to act promptly in starting.</p> <p>2. —Same—Charge.</p> <p>• In submitting the issue as to whether there was a sufficient excuse shown for plaintiff’s failure to take the first train, the court charged the jury: “If you believe from the evidence that a reasonably diligent and prudent man, possessed of the same information that plaintiff had, and similarly situated and circumstanced as plaintiff was, as shown from all of the evidence before you, would have started to his brother on the train that passed C. at 2:30 o’clock of that day, then the plaintiff will he precluded from a recovery.” Held, that the charge was all that was required.</p> <p>3. —Same—Same.</p> <p>The court properly refused to charge that defendant was not liable if, by a reasonable expenditure of money, plaintiff could have lessened or prevented the injury, since plaintiff’s excuse for delay involved more than an expenditure of money.</p> <p>4. —Same—Office Hours.</p> <p>Evidence that the telegraph office was kept open until 12 o’clock at night, and no regular office hours had been fixed, though it was the usual custom to keep such office open from 8 a. m. to 6 p. m., authorized the submission to the jury of the question as to what were defendant’s office hours.</p> <p>5. —Same—Charge of Court—Submission of Issue.</p> <p>Where the appellant company requested a charge exonerating it from liability if the message was received after its reasonable office hours, it can not object to the submission to the jury of the question whether such office hours were reasonable.</p> <p>G.—Assignment of Error—Brief.</p> <p>An assignment of error to the sufficiency of the evidence will not be considered where it relates to diverse issues which are grouped in the assignment, and no one of them is separately briefed.</p>

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

<p>1. —Charge on Weight of Evidence—Negligence—Fires Set by Engine.</p> <p>A charge instructing that for defendant railway company to permit dry and inflammable matter to accumulate and remain upon its right of way would be .such negligence upon its part as would make it liable for any damage occasioned by fires through such negligence, was error as being on the weight of evidence.</p> <p>2. —Same—Prima Facie Negligence—Rebutting—Condition of Engine.</p> <p>It was not error, nor on the weight of evidence, for the court to charge that, if the fire was caused by sparks from an engine, such fact would prima facie establish negligence on the part of the railway company; but a further clause instructing that, in order to rebut such prima facie case, the defendant company must show to the satisfaction of the jury that the engines were in good condition, was erroneous, as requiring a higher degree of certainty than the law requires.</p>

<p>Error from Mitchell. Tried below before Hon. Ben. Randalls, Special Judge.</p>

<p>Appeal from Baylor. Tried below before Hon. S. I. Newton.</p>

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

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

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

Tried below before Hon. Sam. B. Scott. [This ease was designated as one to be reported, but was inadvertently omitted from the proper volume.]

Tried below before Hon. D. R. Pendleton. [The contract sued on is given in the opinion on the former appeal in this cause, 22 Texas Civil Appeals, 89.]

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

Tried below before W. F. Robertson. The citation in this case was served on defendant’s local agent May 22; received by its general attorney at Dallas May 23; sent by him, after employing the interval in having investigation made of the facts, to local attorneys at Bastrop who were to defend the case, at 5:50 p. m. on Saturday, June 2, being delayed in transit; and the motion to set aside default detailed their unsuccessful efforts to procure, by telephone, an attorney at…

<p>1. —Married Woman—Promissory Note—Purchase of Land.</p> <p>A married woman is not liable upon a promissory note not given for necessaries, such as one executed jointly with her husband for the purchase money of land.</p> <p>2. —Homestead—Pretended Sale—Vendor’s Lien—Innocent Purchaser.</p> <p>Homestead rights can not be asserted to defeat a vendor’s lien, against a purchaser of the lien notes having no notice that the sale, which was absolute on its face, was merely to raise money and in effect a mortgage.</p> <p>3. —Married Woman—Deed—Privy Acknowledgment—Omission of. Christian Name.</p> <p>A certificate of privy acknowledgment of a deed by a married woman is sufficient, though her Christian name is left blank, where it describes her as the wife.</p> <p>4. —Note—Maturity—Limitation.</p> <p>The act of a holder of vendor’s lien notes not mature in indorsing them as canceled on his purchase of the property securing them at a trustee’s sale under another incumbrance, if construed as declaring them then due for default in payment of interest, as by their terms he might do, had not that eSect after such trustee’s sale had been set aside by the court, and limitation did not then run till their maturity.</p> <p>5. —Vendor’s Lien—Homestead.</p> <p>The wife’s homestead rights did not attach to land conveyed to the husband, as against the holder of a vendor’s lien note given on such conveyance, though the transaction was an attempt to mortgage the grantor’s homestead under guise of a sale.</p> <p>6. —Res Judicata—Notes—Vendor’s Lien.</p> <p>A judgment against the holder of vendor’s lien notes, who had plead them as a defense to an action by the payor to recover the land, but had not asked judgment on them, was no bar to a subsequent suit by him to recover on the notes and foreclose the lien.</p>

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

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

<p>Error from Lampasas. Tried below before Hon. John M. Furman.</p>

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

<p>Mortgage—Sequestration—Damages.</p> <p>A mortgagee who has the right under his contract to take possession of the mortgaged property on default in payment of the debt secured, can not be held liable for damages by taking such property by writ of sequestration, though it be alleged that the writ was wrongfully procured, on false affidavit, and for the purpose of injuring the mortgagor, since he has done no more by the writ than his contract gave him the right to do without it.</p>

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

<p>1. —Corporation—Directors as Trustees—Purchase by Directors at Receiver’s Foreclosure Sale.</p> <p>The directors of a corporation occupy towards it the position of trustees, and their acts in connection with the property, such as a purchase of it for themselves at a foreclosure sale, are controlled by the principles governing other trustees, as to the obligation of the trusteeship, and in determining what action on their part will constitute a fraud, and what remedies may be applied; and such a purchase by them is held voidable at the instance of the corporation.</p> <p>2. —Same—Setting Sale Aside—Tender of Amount Required.</p> <p>A railway corporation made a contract for the building of its road with a construction company which was composed in part of, and controlled by, men who were directors of the corporation. Thirty miles of the road were built, and the construction company received bonds of the railway corporation in payment therefor, and the road having then been placed in the hands of a receiver, certain directors of the corporation who were also members of the construction company bought in the entire property and franchises of the road for themselves, the payment therefor being made principally in claims for debts (bought up by such purchasing directors) which had been incurred by the construction company in building the road, and which were a lien against the property. Under the decree of foreclosure ordering the receiver to sell, the purchasers took the property freed of all claims, and as the bonds issued to the construction company were not filed in the receivership proceedings, the effect of the decree of foreclosure was practically to cancel the bonds. Held, in an action by the railway company to recover the property and to have the sale decreed to inure to its benefit, that plaintiff could not recover without offering either to pay back to the purchasers the amount so paid out for the property, or to rehabilitate the bonds by taking the property subject to the incumbrance created by them.</p>

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

<p>1. —Jurisdiction of Court of Civil Appeals—Appeal from County Court—Amount.</p> <p>The Court of Civil Appeals has no jurisdiction in a case originating in the justice court where the amount in controversy and the amount for which the judgment was rendered is less than one hundred dollars, although the county court may have erroneously dismissed the appeal thereto from the justice court. Following Railway v. Rowley, 22 Southwestern Reporter, 182.</p> <p>2. —Same—Cases Reviewed.</p> <p>Williams v. Sims, 4 Willson Con. Cases, section 151, and Loper v. State, 17 Southwestern Reporter, 1090, not followed, and Pevito v. Rodgers, 52 Texas, 581, held not to be in conflict with the ruling in this case.</p>

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

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

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

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

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

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

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

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

<p>Mutual Benefit Insurance—Death of Beneficiary Without Designation—Right of Wife.</p> <p>A certificate in a mutual benefit order was issued to M., a member, payable at his death to his mother. M. afterwards married and died after the death ot his mother, without having designated any other beneficiary. The constitution of the order provided that at the death of a beneficiary member the sum specified in the certificate shall be paid to the person named therein, who should be “his wife, children, adopted children, parents, brothers, sisters, or other relatives,” and in case the certificate was payable to one of such relatives who should, at the time of the death of the member, be also deceased, and no designation or change had been made by the member in writing upon his certificate during life, it should he paid “to the next living relative in the order named in this section.”' Held, that the certificate was payable to M.’s wife, to the exclusion of his-brothers, as she was next in order of relationship, although not, as were: “brothers,” named next after the mother, the original beneficiary.</p>

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

<p>1. —Claimant’s Bond—Return of Property—Deterioration from Use.</p> <p>A claimant of property seized under judicial process who has, under the statute, given bond stipulating that if he fails to establish his right to the property he will return it “in as good condition as when he received it,” or pay its value, is not entitled to have excluded from consideration a deterioration in the condition and value of the property resulting from reasonable wear and tear incident to its careful use while in his possession, since the statutory requirement, as to the condition is an absolute one.</p> <p>2. —Same—Determining Condition of Property—Charge.</p> <p>Where the court had properly submitted the issue whether the property,, when tendered back, was in as good- condition as when claimant received it, a requested charge as to determining the condition of the property, not called for by the evidence and which could only have served to confuse the jury, was. properly refused.</p> <p>3. —Same—Description of Property in Charge of Court.</p> <p>Where, in an action to enjoin a judgment for the value of an engine on the-ground that plaintiff, as a statutory claimant thereof, had duly tendered back the-property itself, and the pleadings and evidence, to which no objections were made, described the engine as consisting of a carriage, boiler, and other parts, it was not error for the charge of court, in submitting the issue as to the condition of the engine when tendered back, to describe it by a specification of such parts.</p>

<p>1. —Injunction—Suits to Collect City Taxes—Legal Defenses Available.</p> <p>Where a city has brought a number of suits against different parties to enforce against different pieces of property its lien for taxes, an injunction will not lie at the joint suit of such defendant owners to restrain the prosecution of the tax suits upon grounds that would be fully available as a legal defense therein.</p> <p>2. —Municipal Incorporation—Validating Acts.</p> <p>Where the attempt of a town council to accept the Act of 1875 and thereby become incorporated as a city of over 1000 inhabitants was insufficient in manner, and therefore illegal, as also its subsequent action in annexing additional territory, these things were validated by the Acts of 1891 and 1893 contained In article 386, Revised Statutes, and thereafter the right of the city to collect its taxes could not be defeated because of such irregularities.</p>

<p>1. —Judgment—Collateral Attack—Trespass to Try Title.</p> <p>Where, in a suit of trespass to try title, the plaintiffs sought, on the ground of fraud, to set aside certain partition judgments affecting their title to the land, and all parties to such judgments were made parties to the suit, as also subsequent purchasers of the land, claiming under the partition and the court in which the suit was brought had rendered the partition -judgments arid had jurisdiction to set them aside, the attack so made on the judgments was a direct and not a collateral one, and the action such a one as plaintiffs were entitled to maintain.</p> <p>2. —Same—Fraud—Minor Heirs.</p> <p>Plaintiffs, suing to set aside a judgment of partition between themselves, as minor heirs of their deceased father, and their mother, alleged that the property partitioned was the separate estate of their father; that after their father’s death their mother married again, and that they were in the care, custody and control of their stepfather at the time the partition judgment was rendered; that "both their mother and stepfather knew that the land was separate and not community property, and fraudulently withheld the facts from the court; and that those of the defendants now claiming under the judgment as purchasers had notice of the fraud. Held, that the allegations stated sufficient grounds for' vacating the judgment as to all the defendants.</p> <p>3. —Plea of Privilege—Fraudulent Conversion—Venue.</p> <p>Plaintiffs sued in the county where the land lay for recovery thereof, with an alternative plea in tort for damages for a fraudulent conversion of the land "by certain of the defendants, residing in another county, who, as against such claim for damages, pleaded their right to be sued in the county of their residence, but did not negative the fact that the conversion, or fraudulent sale of the land by them, was made in the county where suit was brought. Held, that the plea of privilege was properly overruled.</p> <p>4. —Misjoinder of Actions—Alternative Plea.</p> <p>That plaintiff in trespass to try title pleads in the alternative for damages for a fraudulent conversion of the land by defendant in selling it to another, does not constitute a misjoinder of actions.</p> <p>5. —Mortgage of Wife’s Separate Property to Secure Community Debt.</p> <p>Where the wife joins with the husband in a mortgage of community property arid of her separate estate to secure a debt of his, or of the community, she is entitled to have the community property first exhausted before resort can be had to her separate property; and in such a case parties claiming the separate property through a conveyance from the wife have ground for relief against the mortgage incumbrance where the creditors secured by it permit the community property to be squandered by the husband’s other creditors and otherwise, though notified to foreclose.</p> <p>6. —Presumption of Community Property—Innocent Purchaser.</p> <p>The presumption of law is that land deeded to a husband after marriage is community property, and one who purchases it on the faith of that presumption, and without notice that it is in fact separate property, is entitled to protection.</p> <p>7. —Failure of Consideration—Mortgage—Surety.</p> <p>Where, as part consideration for a mortgage, the mortgagees agreed to advance to the mortgagor $1000 to be used by him in trading, and did advance $500 thereof, but were never called on by him for the balance, his wife, a party to the mortgage because her separate property was included therein as security for his debt, had no ground for avoiding the instrument because of failure of consideration.</p> <p>8. —Notice to Mortgagee to Foreclose—Wife’s Property as Security.</p> <p>It seems that where, in a joint mortgage by husband and wife, the wife’s separate property, as security for the husband’s debt, is included along with community property a notice by the husband alone to the mortgagee creditor, requiring him to foreclose his lien, but making no mention in the notice of the interest of the wife, is sufficient to require the creditor to first exhaust the community property before he can resort to the separate property of the wife.</p> <p>9. —Subrogation—Paying Off Prior Lien.</p> <p>Where parties purchasing land under a foreclosure of their mortgage lien thereon, in order to protect their title pay off another lien on the land superior to their own, they are not mere volunteers in making such payment, and are entitled to be subrogated to the rights, of the holder of the lien so discharged.</p>

<p>1. —Allegation and Proof—Variance—Description of Judgment.</p> <p>Where plaintiff’s claim of title to the property in controversy was by virtue, of a judgment and execution sale thereunder, and his petition alleged that the judgment was rendered in the district court, but the judgment introduced in. evidence was rendered in the county court, an objection on the ground of variance came too late after verdict.</p> <p>2. —Execution Against Interest of Partner—Return—Presumption.</p> <p>Where the return on an execution against the interest of a partner in firm, property shows a levy, but not the manner in which it was made, the presumption of law is that the officer did his duty and made the levy as the statute-directs (Revised Statutes, article 2352); and where the legality of the levy is. not raised by the pleading, the return can not be attacked collaterally.</p> <p>3. —Same—Omission in Return.</p> <p>The .omission of certain fixtures from the description of the property levied on does not affect the validity of the levy as to the other property seized.</p> <p>4. —Pleading by Trustee in Bankruptcy—Admission—Intervention.</p> <p>Where a plea of intervention by a trustee in bankruptcy failed to allege, that the bankrupt had been adjudged such, the defect was obviated by an averment of such matter in defendant’s answer although a demurrer by plaintiff (appellee) to that allegation of the answer had been sustained.</p> <p>5. —Same—Allegation of Appointment as Trustee.</p> <p>An allegation by a trustee in bankruptcy that he was duly appointed trustee, by the referee is equivalent to a declaration that the. circumstances existed, which empowered the referee to make the appointment.</p> <p>6. —Trustee in Bankruptcy—Leave of Court.</p> <p>An objection that a trustee in bankruptcy had no right to intervene in the, suit without showing that he had obtained leave to do so from the bankruptcy-court, comes too late where first made after verdict.</p> <p>7. —Same—Proof of Appointment and Qualification.</p> <p>W’here a trustee in bankruptcy intervenes in a suit, he is not required to. prove his appointment and qualification as such trustee where his right to. recover in that capacity is not denied under oath, under Revised Statutes, article 1265.</p> <p>8. —Partner’s Interest Sold Under Execution—Purchaser’s Right of Recovery.</p> <p>Where a partner’s interest in a mercantile business was levied on and sold, under execution, but the firm continued for some months thereafter to carry on the business at a profit, selling the old goods and replenishing with new from the proceeds, the execution purchaser-, suing for the debtor partner’s interest,, was not limited to the goods bought by him which were actually in stock at, time of the trial, but was entitled to compensation for the property disposed, of, as fcr a conversion.</p> <p>9. —Same—Extent of Recovery Determined by Agreement.</p> <p>Since the intervening trustee in bankruptcy was entitled to recover all the property sued for except the part which plaintiff, the execution purchaser, was entitled to, and since intervenor and plaintiff had agreed upon a division of the recovery satisfactory to themselves, it was not a tenable objection on the part of the defendants that plaintiff’s proof failed to show the extent of plaintiff’s, interest and the value of the goods converted.</p> <p>10. —Same—Legal Title Placed in Another.</p> <p>Where S. had loaned to D. the money to buy the interest in the stock, and the purchase was made for D., although the title was taken in the name of S. for the purpose of protecting the property from D.’s creditors, the property belonged to D., and was subject to the levy of an execution against him.</p> <p>11. —Same—Evidence—Fraud and Collusion.</p> <p>Evidence as to the financial condition of S., both before and after the purchase for D. of an interest in the business, and statements by S. in relation thereto, were admissible to prove whether he or D. was the real purchaser.</p> <p>12. —Same.</p> <p>So, evidence of D.’s prior failure in business and insolvency was admissible as tending to show a reason for his making the purchase in the name of another,, and evidence that, though insolvent, he had some money, tended to prove ability on his part to make the purchase.</p> <p>13. —Same—Conspiracy.</p> <p>Statements by D. as to an attempted purchase of a stock of goods by him were admissible, though made when S. was not present, the jury being instructed that they could not consider the same unless they found them to have been made in pursuance of an agreement btween D. and S. by which D. was authorized to-use the name of S. to cover up property he might buy.</p> <p>14. —Receiver—Appointment—Action Against One Partner.</p> <p>After verdict and pending an appeal in an action to subject the interest of a partner in firm property to his debts,—he being insolvent, in possession and management of the property, but likely to misappropriate it,—the court may, under Revised Statutes, article 1465, appoint a receiver to carry out the provisions of the judgment directing a sale of the property, although the other partner is solvent and able to respond in damages, should he waste or misappropriate the property pending the appeal.</p> <p>15. —Same—Case Distinguished.</p> <p>This case distinguished from Bank v. Dunham, 18 Texas Civil Appeals, 184, upon the point as to when the appointment of a receiver is authorized.</p>

<p>1. —Fire Insurance—Total Loss of Building.</p> <p>Under the article of the statute making fire insurance companies liable for the full amount of the policy in a case of total loss of property other than personal, a building is to be regarded as a total loss where the remnant left is inconsiderable, compared with the part entirely destroyed, and is not such as to constitute a sufficient basis upon which to restore the structure. Rev. Stats., art. 3089.</p> <p>2. —Same—Use of Wall in Rebuilding.</p> <p>The fact that part of one wall of a brick building destroyed by fire was used in constructing another building on the site of the destroyed one, the wall so used being a division wall and such use of it being over the protest of the constructors, does not prevent the loss.of the building from being a total one within the meaning of the statute. Insurance Company v. Garlington, 66 Texas, 103, followed, and Insurance Company v. McIntyre, 90 Texas, 170, distinguished.</p> <p>3. —Same—Foundation of Building Not Considered.</p> <p>In determining whether there has been a total loss of a building by fire, the foundations are not to be considered, as the contract of insurance is made with reference to the part of the structure above ground.</p> <p>[Note.—After the remand of this cause, and upon another trial had below, the jury were instructed to find for plaintiff the full amount of the policy, upon the ground that the loss was a total one. The judgment was for plaintiff accordingly, and, upon a -second appeal, was affirmed by the Court of Civil Appeals (61 Southwestern Reporter, 956), and writ of error was denied by the Supreme Court.]</p>

<p>1. —Jurisdiction of District Court—Tax Suits—Presumptions—Collateral Attack.</p> <p>Where a special and limited authority has been prescribed for a court of general jurisdiction, as in enforcing a sale of land for taxes, nothing is taken by intendment in favor of its action, even in a collateral attack on its judgment, but it must appear by the recitals of the record itself that the facts existed which authorized the court to act, and that it acted within the limits of its authority.</p> <p>2. —Same—Galveston City Charter.</p> <p>The Galveston city charter of 1871 and ordinances thereunder had the effect, of rendering the jurisdiction of the District Court of Galveston County in the. sale of lands for taxes a special and limited one.</p> <p>3. —Same—Void Judicial Sale for Taxes.</p> <p>A sale of land for city taxes, made to the city under decree of the District. Court of Galveston County foreclosing the tax lien, conferred no title where the amount of such taxes was less than $100, and the city charter and ordinances, were not complied with in that notice of the sale was given for only twenty-two instead of thirty days, and that no confirmation of the sale was ever had..</p> <p>4. —Purchaser at Judicial Sale—Effect of Reversal of Judgment.</p> <p>Where the plaintiff purchases land under his own foreclosure proceedings, and conveys it to a purchaser for value, a subsequent reversal of the judgment, upon writ of error sued out by the defendant therein, operates to extinguish the title of such second purchaser.</p> <p>5. —Judgment by Confession—Power of Attorney—Estoppel.</p> <p>Where a landowner empowered her attorney to confess judgment for a given amount of lien debt, and he confessed judgment for a much larger amount, the letter of attorney being copied into the judgment entry, the owner of the land. was not estopped, from asserting her right to have set aside a foreclosure sale of the land made under the judgment which thus showed on its face to be unwarranted.</p>

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

<p>Mandamus—Statement of Facts—Appeal—Delay.</p> <p>While mandamus is the proper remedy to obtain a statement of facts on appeal where the trial judge fails to do his duty in making up the statement, the writ requiring him to do so will not issue where the relator fails to apply for it until after the time has expired in which the record should be filed in the appellate court.</p>

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

<p>1. —Partnership—Power of Partner to Bind Firm by Note for Borrowed Money.</p> <p>In order for an implied power to exist in a partner to bind the firm by partnership notes for borrowed money, the business must be of a character which makes frequent resort to borrowing a necessity not existing by reason of embarrassment or the happening of some fortuitous event, but for the advantageous prosecution of even a prosperous business.</p> <p>2. —Same—Firm Name Must Be Used.</p> <p>Where a partner undertakes to bind the firm by the issuance of commercial paper, in the absence of express authority or some other fact fixing the film’s liability, the paper must be executed in the firm name, or else in the name commonly used by the firm in transacting its business.</p> <p>3. —Same—Case Where Partner Had Not Implied Power.</p> <p>For facts held to sustain a finding that no implied power existed in a partner to borrow money on the firm name, see the opinion.</p> <p>4. —Practice on Appeal—Issue of Law or Fact.</p> <p>Whether or not there is any evidence on an issue is a question of law, and not of fact, as to which the finding of the Court of Civil Appeals is not binding on the Supreme Court.</p>

<p>1. —Verdict on Special Issues—Judgment Must Conform.</p> <p>Where the facts of a ease have been submitted to the jury upon special issues, the judgment of the court must conform to the verdict, and is but the legal conclusion arising from the facts found by the jury.</p> <p>2. —Community Interest in Lands Exchanged.</p> <p>Where the land in controversy was acquired through an exchange for it of other land in which plaintiff had an equitable community interest, and the jury so found, a judgment in defendant’s favor for title to all the land in suit was not warranted.</p> <p>3. —Same—Community Improvements.</p> <p>Where an original community interest in the tract so given in exchange was enhanced by reason of improvements placed thereon by the community, the equitable community interest should be measured by such enhanced value of the land at the time it was exchanged for the tract in controversy.</p> <p>4. —Trespass to Try Title—Equitable Interest May Be Offset.</p> <p>Where plaintiff had acquired the legal title to the land in controversy by an exchange therefor of lands in which she had an equitable community interest, she was entitled to offset such equitable interest against an equitable claim of defendant to the land in suit.</p> <p>5. —Community Property—Assertion of Widow’s Claim in Administration— Estoppel.</p> <p>Where land bought by the husband before marriage is, in the administration of his estate, set apart to the widow as a homestead, the fact that she presented no claim against the estate for an interest in the land by reason of community funds having been used to pay for it, and of improvements placed on it by the community, does not estop her from asserting her community claim against one acquiring the land from the heirs of the husband, nor render such claim res adjudicata.</p>

<p>1.—Deed—Filling Blanks After Acknowledgment—Registry as Constructive Notice.</p> <p>Where the description of the land in a deed was filled in by the grantor after he had duly acknowledged the instrument, and he then forwarded the deed to the grantee, who accepted it and placed it on record, not knowing that it was incomplete at the time of its acknowledgment, the conveyance was valid between the parties, and its registry imparted constructive notice of the rights of the grantee to third parties who subsequently acquired an interest in the property from and under the grantor.</p> <p>2.—Same—Notarial Record—Description of Property Therein.</p> <p>The statute requiring the notary to enter the facts of acknowledgment and a description of the land affected in a record kept for that purpose are directory only, and his failure to perform such duty invalidates neither the deed nor the certificate of acknowledgment.</p> <p>3.—Acknowledgment—Certificate Conclusive Except in Cases of Fraud.</p> <p>Where the certificate of acknowledgment is regular on its face, it can not be so impeached as to destroy the effect of the record of the instrument thereon except in cases of fraud.</p>

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

<p>1. —Damages—Measure of, for Injury to Land—Market Value of Sand Taken.</p> <p>Where defendant, in digging a pit on his own land, caused the land of plaintiff, containing valuable sand, to slide into the pit, and appropriated such sand to his own use, the measure of plaintiff’s damages was the market value of the sand, and not the difference which was thereby made in the market value of plaintiff’s tract.</p> <p>2. —Evidence of Market Value—Incompetent Witness.</p> <p>A witness is not qualified to testify as to the market value of sand where his testimony shows that he is only repeating the statement of another as to such value.</p> <p>3. —Facts Not Sustaining Verdict as to Amount of Sand Taken.</p> <p>See the opinion for facts held not to show as large an amount of sand taken "as is allowed for in the verdict and judgment.</p>

<p>Counties—Contract—Condition Precedent—Costs.</p> <p>Where certain county officers agreed with the county that if it would turn over to the county attorney for suit thereon all its outstanding county convict bonds, the county should not be taxed with any of the costs in the suits thereon, the retention by the county of a part of the bonds was a failure to perform a ■condition precedent to its right to exemption from liability for costs in suits on the bonds, and the measure of damages for such breach of the contract was not the amount of the further costs that would have accrued to the officers if suits had been brought on the bonds not turned over.</p>

<p>Bond to County for Convict Hire—Surety Signing Conditionally.</p> <p>Where a bond for the hire of county convicts, duly executed to the county judge, was signed by appellant as surety on condition that he was not to become liable thereon unless it should be also signed by one K. as surety, and the county judge, knowing of such condition, accepted the bond without K.’s signature, appellant was not liable, the condition upon which he signed never having been fulfilled.</p>

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

<p>1. —Fellow-Servant—Assumed Risk—Incompetency.</p> <p>Where a servant who knows of the reckless character of a fellow-servant, or if his incompetency, whereby it becomes dangerous to work with him, assumes the risk of longer working with him, yet he is not bound to inquire as to the competency of a fellow-servant, but may assume that the master will put only safe and competent men to work him.</p> <p>2. —Same—Application of Rule Limited.</p> <p>The rule that, if the servant had equal facilities with the master for ascertaining the danger incident to the work, he is held to have assumed the risk, does not apply where the injury is caused by the incompetency or recklessness of a fellow-servant, but only where the physical surroundings make the danger as obvious to the servant as to the master. Following Railway v. Lempe, 59 Texas, 19.</p> <p>3. —Same—Operating Cars.</p> <p>The unloading of a car by section hands is not operating it within the meaning of the article of the statute making railway companies liable, as to employes engaged in operating its cars and trains, for injury to an employe occasioned through the negligence of a fellow-servant. Rev. Stats., art. 4560f.</p>

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

<p>1.—Fire Insurance—Waiver of Forfeiture.</p> <p>See the opinion for evidence sufficient to show a waiver, by the subsequent ■conduct of the insurance agent, of a claim by the company ot forfeiture of the policy by reason of the insured removing nis family from the building, in which "his servant continued to sleep at night.</p> <p>3.—Same—Vacancy of Premises.</p> <p>Also, see evidence held by the Supreme Court, upon application for writ of error, to show that the building had not become vacant or unoccupied within the meaning of the contract of insurance.</p>

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

<p>1. —Judgment—Settlement of, Obtained by Fraud—Setting Aside—Evidence.</p> <p>A settlement by defendant of certain California judgments against him for much less than their face will not be set aside on the ground that it was obtained through his fraudulent representations that he was insolvent when in fact he then owned eight sections of Texas lands, where the evidence shows that, prior to such settlement, but after rendition of the judgments, defendant had conveyed the lands to his wife for “love and affection,” and plaintiffs then knew of these facts, and were advised that, although defendant claimed that the lands were the separate property of his wife, they could be subjected to the payment of the judgments.</p> <p>2. —Same—Proof of Transfer of Judgment.</p> <p>In an action on judgments, brought by an assignee thereof, the execution of the transfer of the judgments should be proved before they are admitted in evidence.</p>

<p>Appeal from the County Court of Parker. Tried below before Hon. D. M. Alexander.</p>

<p>1. —State School Land—Forfeiture—Resale.</p> <p>Under the statutes governing a sale of State school land made to an actual settler in 1897 and providing for a forfeiture of the sale in case of nonpayment of interest due thereon or nonoccupancy of the land, no forfeiture takes place, though there be such default by the purchaser, until the Land Commissioner makes in his office the indorsement of “Land forfeited,” as required by the statute; and until this be done, the land can not be again purchased from the State by another. Sayles’ Civ. Stats., arts. 4218l, 4218j. Bank v. Dowlearn, 59 Southwestern Reporter, 308, disapproved.</p> <p>2. —Same—Listing Land With County Clerk.</p> <p>Even if such forfeiture was duly indorsed and declared by the Land Commissioner, the land would not be subject to sale again until he had listed it with the county clerk, or otherwise placed it on the market under some proper regulation.</p> <p>3. —Same—Abandonment of Purchase.</p> <p>A sale of the land to a minor, made by the original purchaser before his contract is fulfilled with the State, can not, even of it be assumed that such sale to the minor is void, work an abandonment of the purchase such as will, of itself alone, authorize the Land Commissioner to resell the land to another, and without talcing any of the steps requisite to placing it again on the market.</p> <p>4. —Same—Sale to Minor.</p> <p>While considering it not necessary to the disposition of this case to decide whether a sale of State school land to a minor, over 18 years old and an actual settler, is void or not, the court deems it proper to say that it is disposed to adhere to its ruling in Weatherford v. McFadden, 21 Texas Civil Appeals, 260,. upholding the validity of such a sale, as such ruling is not necessarily in conflict with Walker v. Rogan, 93 Texas, 248.</p>

<p>Appeal from Eastland. Tried below before Hon. H. R. Lindsey.</p>

<p>1. —Damages for Personal Injuries—Amount—Fact Case.</p> <p>See the opinion for evidence under which the appellate court declined to> disturb a verdict for $500 in favor of a railroad fireman for personal injuries, complained of on the ground that the amount was too small.</p> <p>2. —New Trial—Rule Applicable to Amount of Damages.</p> <p>Where there is not a legal measure of damages, or they are unliquidated, and the amount thereof is referred to the discretion of the jury, the court will not, although it may think the verdict to be for considerably more or less than it ought to have been, interfere with it, unless the amount allowed is so great or small as to indicate, that the jury must have found it while under the influence of passion, prejudice, or gross mistake.</p>

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

<p>1.—Contributory Negligence—Requested Charge—Grouping Facts.</p> <p>On the issue of contributory negligence by one who, crossing in front of a steet car, was struck by another car moving on a parallel track, see a requested instruction grouping certain facts which would constitute contributory negligence. which was improperly refused.</p> <p>3.—Charge.</p> <p>A requested charge should be read in connection with the instructions given by the court, and need not embrace matters fully covered therein.</p> <p>:3.—Same—Negligence—Causal Connection.</p> <p>When there is no doubt that conduct of the injured party, such as walking in front of or against a moving car, was a cause of the injury, a charge may ■declare such conduct, if negligent, to constitute a defense, without submitting the question of its causal connection.</p>

<p>Error from the County Court of Tom Green. Tried below before Hon. Milton Mays.</p>

<p>Appeal from Falls. Tried below before H. C. Lindsey, Esq., Special Judge.</p>

<p>1. —Judgment—Receiver—Intervention.</p> <p>One intervening in a receivership upon a judgment of foreclosure against property in the hands of the receiver can not, in the absence of allegation of fraud or mistake in his former judgment, have the same so corrected and enlarged as to foreclose on interests in the property not affected by such first judgment.</p> <p>2. —Receiver—Intervention—Foreclosure.</p> <p>One who has recovered judgment with foreclosure upon the interests of defendants in property held by the receiver of a company of which they were part owners, may by intervention in the' receivership case follow such property in the receiver’s hands and have the question as to his superior right to it passed upon.</p>

<p>1. —Death—Damages—Habits of Deceased.</p> <p>In an action for damages from injuries resulting in death, defendant may show, as tending to reduce damages, habits of drunkenness, profligacy or indifference to the welfare of his family on the part of deceased.</p> <p>2. —Charge.</p> <p>Special charges requested are properly refused where the same ground is sufficiently covered by the charge of the court.</p> <p>3. —Same—Trespasser.</p> <p>The court may instruct the jury that the injured party was a trespasser where the evidence indisputably establishes that fact.</p> <p>4. —Newly Discovered Evidence.</p> <p>A new trial should not be granted for newly discovered evidence which is not calculated to change the result.</p>

<p>1. —Fire Insurance—Avoided by Alienation—Mortgage—Notice to Agent.</p> <p>In an action on a fire insurance policy by a mortgagee secured as his interest might appear, which was made void as to the insured owner by his alienation of the property and to be avoided also as to the mortgagee on his failure, having knowledge of the alienation, to notify the insurer thereof, the issue as to its avoidance by failure to give such notice should have been left to the jury where there was evidence tending to show that the owner, at the time he alienated the property, was such agent and representative of the mortgagee as to tax the latter with knowledge of the transfer.</p> <p>2. —Insurance—Mortgagee—Subrogation. '</p> <p>An insurance company, where the policy so provides, is entitled, on payment of the policy to a mortgagee protected as his interest should appear, when it had been avoided as to the insured owner by his alienation of the property, to be subrogated to any securities for the debt held by the mortgagee against such owner.</p> <p>3. —Same—Payments by Mortgagor.</p> <p>The mortgagee protected by an insurance policy as his interest might appear can recover only to the amount of his debt, and where the insured owner has made the policy void as to himself by alienation of the property, evidence is admissible, under proper pleadings, of any payments made by the mortgagor upon the debt up to the time of trial.</p>

<p>Proof of Death—Absence.</p> <p>The fact that an owner of land, then thirty-five or forty years old, went to California in 1854, to work in the mines, leaving his family in Texas, and ceaspd to write and had not been heard from by them since the beginning of the Civil War, was not, in the absence of evidence of unsuccessful inquiry for him in California, conculsive proof that he was dead and that the land had descended to his heirs in 1900.</p>

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

<p>Appeal from Falls. Tried below before J. E. Boynton, Esq., Special Judge.</p>

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

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

<p>Connecting Carriers—Interstate SMpment—Liability "of Connecting Line.</p> <p>Where there is an interstate shipment of goods from another State to a. point in Texas over several connecting lines of railway, with a stipulation in the contract of shipment limiting the liability of the carriers to damages occurring on their respective lines, and the goods are lost before they come into this State and before reaching the last, connecting carrier, the latter is not liable therefor; and article 331a of the Revised Statutes (the connecting carriers’ act of 1895), fixing the liability of connecting carriers for a through shipment of goods between points in this State, has no application.</p>

<p>1. —Pleading—Amendment—Allegation of Damages.</p> <p>A trial amendment is properly allowed which simply alleges the breach of ■ the contract declared on in the original petition, and avers as damages for such breach the highest sum recoverable under the contract.</p> <p>2. —Same—New Cause of Action.</p> <p>Where plaintiff sued upon a benefit certificate upon the ground that he had become totally and permanently disabled, a trial amendment alleging that on account of plaintiff’s mental disability he should recover, did not set up a new ■cause of action.</p> <p>3. —Practice on Appeal—Statement Under Propositions.</p> <p>Where there is no statement subjoined to appellant’s proposition under a given assignment of error, such assignment will not be considered.</p> <p>4. —Jurisdiction of District Court—Amount.</p> <p>An objection that plaintiff’s petition (in an action in the district court) shows his cause of action to be for a less amount than the jurisdiction of the •court, is not well taken where it appears from the pleadings that at least $600 was then due under the terms of the contract sued on.</p> <p>5. —Benefit Insurance—Permanent Disability—Charge.</p> <p>Where plaintiff sued for an amount due under a benefit certificate in the event he should become disabled to “perform or direct any and all kinds of labor,” it was not error of which defendant- could complain for the court to submit the issue as being whether plaintiff had become disabled to perform and direct any and all kinds of labor, since this required both where either would have sufficed.</p> <p>6.—Same—Judgment for Annual Installments Ahead.</p> <p>Where, under the benefit certificate sued on, plaintiff was entitled to receive annually one-tenth of the amount named in the crtificate, he could recover only the amount of the installments due at the time of the trial, and a judgment for the entire amount and providing that execution might issue annually thereafter for the remaining installments, was error.</p>

<p>1. —Dedication to Public Use—Park and Lake.</p> <p>Where the owner of a tract of land divides it into blocks, lots, streets, and alleys, with reservation of a lake and park shown on the plat, which was duly recorded, and in his sales of the lots repeatedly declares that the lake and park are reserved for the public use, this is a sufficient dedication of them to such purpose.</p> <p>2. —Same—Deed Not in Conflict with Dedication.</p> <p>Where such owner subsequently conveyed the land covered by the lake to a railroad company, with condition that the lake should be maintained thereon, and a reservation of the right of the public to use the water, in connection with the company, this did not declare a trust in the company in favor of the public, but was merely declarative of a benefit already set apart to the people of the town.</p> <p>3. —Same—Acceptance of Dedication.</p> <p>Where, immediately after the dedication of the park and lake to public use, the inhabitants of the town entered upon their use and continued such use until they were interfered with by appellants, claiming adversely, this constituted an acceptance, and the dedication becomes irrevocable.</p> <p>4. —Same—Subsequent Incorporation of Town.</p> <p>¡It was not necessary that the town corporation should have been created at the time of the dedication, and the right by the dedication passed to the corporation when it was created.</p> <p>5. —Same—Limitations Not Set in Motion—Quitclaim.</p> <p>Where the original owner of the townsite tract conveyed to a land company all the unsold portions thereof, subject to his deed of the lake to the railway company, containing a reservation of the right of the public to use the lake, and the land company then conveyed the lake tract to appellants by quitclaim, such latter deed did not of itself suffice to put in motion the five years statute of limitations in appellants’ favor.</p> <p>6. —Same—Lake May Be Dedicated.</p> <p>A lake may be dedicated to the public use, and is comprehended under the term “grounds” as used in the article of the statute which provides that no right shall be acquired by adverse possession and limitations to any street, sidewalk or grounds belonging.to or dedicated to any city, town or county. Rev. Stats., art. 3351.</p> <p>7. —Same—Taxation by Town Not Impairing Dedication.</p> <p>The fact that after the quitclaim deed of the lake tract to appellants, the town corporation assessed taxes thereon against him and collected the same, did not impair the rights acquired by the dedication.</p> <p>8. —Same—Limitations—Recognition of the Public's Right by Attempt to Lease.</p> <p>Where appellants, after the quitclaim deed of the lake tract to themselves, attempted to lease the property from the people of the town, this was such a recognition of the right by dedication as prevented the running of limitations in appellants’ favor prior to’ that time.</p> <p>9. —Same—Judgment Sustaining Dedication Too Broadly.</p> <p>In an action by a town on behalf of its citizens to recover the use of a park and lake dedicated to the public, a judgment in favor of the town which also adjudges that it should not deprive the defendants “or other persons” of the proper or reasonable consumption of water from the lake, is erroneous in so far as it relates to the “other persons,” since these latter were not parties to the suit, nor their rights in any way involved.</p>

<p>Appeal from Lamar. Tried below before Hon. E. S. Chambers.</p>

<p>1.—Landlord and Tenant—Stipulation Against Damages for Illegal Distraint.</p> <p>A stipulation in a lease exempting the landlord from liability for damages resulting from any future distraint is void as being against public policy in depriving the courts of the power to redress wrongs done to the tenant.</p> <p>2.—Same—Distress Warrant—Damages.</p> <p>Where the landlord establishes any one of the statutory grounds upon which the distress warrant is sued out, his failure to establish the others does not. subject him to liability in damages to the tenant.</p> <p>8. —Same—Damages Where Part of Debt Not Due.</p> <p>Where the proof showed that a part of the debt alleged to be due by the landlord in his application for the distress warrant was in fact due and a part was not due, the tenant was not entitled to damages because the entire crop was distrained, since the landlord was entitled to levy upon all the property covered by his lien, but only to such damages as he actually sustained by reason of the wrongful averment in the application of a greater amount due than was actually •due at that time. Following McKee v. Sims, 92 Texas, 51.</p> <p>4. —Evidence—Self-Serving Letter Suggesting Settlement.</p> <p>A letter by defendant’s attorney to plaintiff, to the effect that defendant was ready to consider any reasonable proposition of settlement plaintiff might submit, is not admissible in evidence.</p> <p>.5.—Same—Parol Varying Writing—Consideration of Note.</p> <p>Parol evidence is admissible to show that a note was without consideration, since this does not change or vary the written contract.</p> <p>■6.—Same—Answer in Another Suit as Corroboration.</p> <p>Where defendant testified that.he paid certain money to W. for plaintiff, as a payment on the note sued on, he could corroborate this by putting in evidence , an answer filed by plaintiff in an action against him by W., stating that defendant had paid such money to W. for plaintiff.</p> <p>V.-^-Same—Evidence to Show a Mortgage.</p> <p>A bill of sale absolute on its face may be proven a mortgage by parol evidence showing that it was intended merely as a security for a debt.</p> <p>5. —Same—Illegal Distress Warrant—Exemplary Damages.</p> <p>Where exemplary damages are sought for an illegal distraint by the landlord, the tenant may, as bearing on that matter, give evidence of loss of time by himself and family, as a result of the seizure of his crop.</p> <p>9. —Landlord and Tenant—Distress Warrant—Damages.</p> <p>Where a distress warrant is wrongfully sued out the value of time spent,, and •expenses incurred, by the tenant in regaining possession of his property by replevying it, is a proper element of damage.</p> <p>10. —Evidence Held Secondary—Books of Account.</p> <p>Testimony that certain books of account show a certain indebtedness is secondary evidence and not admissible.</p> <p>11. —Chattel Mortgage—Live Stock.</p> <p>A duly recorded chattel mortgage upon all live stock owned by the maker is superior to a chattel mortgage subsequently given by him upon two certain ■ mules that he owned at the date of the first mortgage.</p> <p>12. —Costs—Amendment.</p> <p>Where an amendment merely omitted a part of the amount claimed in the ■original petition, the trial court went beyond sound judicial discretion in taxing against the party all costs up to that time.</p>

<p>Error from the County Court of Rockwall. Tried below before Hon. E. D. Foree.</p>

<p>1. —Railway Company—Negligence—Passenger Alighting from Train.</p> <p>The mere fact that a passenger was injured in stepping off a ear, none of the attending circumstances going to show negligence, will not authorize a presumption of negligence on the part of the railway company.</p> <p>2. —Same—Facts Not Showing Negligence.</p> <p>Where a lady passenger was injured in alighting from a car, and the only negligence alleged was a failure to provide a platform upon which she could alight and to provide a box or stool to aid her in reaching the ground, and the evidence was that there was a cement platform level with the tracks and eighteen inches below the step of the ear, and that the passenger received careful assistance in alighting, and there was no proof of defects in the platform, or that it was not the usual and ordinary distance from the step of the car, or that it would have been safer to step on a box or stool, the evidence was not sufficient to authorize a recovery.</p>

<p>1. —Principal and Agent—Insurance Broker’s Eight to Eecover for Premiums Paid.</p> <p>Where an insurance broker was applied to by a firm to procure for them a policy upon their property, and he undertook to and did procure it, and in pursuance of the employment paid the premium and policy fee due thereon, he is entitled to recover from the firm the amounts so paid, if they are reasonable.</p> <p>2. —Same—Delivery of Policy.</p> <p>The delivery of the policy to the broker, if he was the agent or broker of the firm to procure it, Vould be a delivery to the firm.</p>

<p>Appeal from Lamar. Tried below before Hon. E. S. Chambers.</p>

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

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

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

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

<p>1. —Rescission of Contract—Sale of Mill Machinery with Warranty—Damages— Demurrer.</p> <p>In an action to rescind, in the alternative, a contract by which plaintiff purchased certain mill machinery under a warranty that it would work well, a demurrer by the defendant to certain items of damage charged in the petition as-the cost of dravage and of placing the machinery in position was properly overruled, since there might have been shown a state of facts that would have authorized a recovery of those items.</p> <p>2. —Same—Damages Where Fraud Not Shown and Rescission Denied.</p> <p>Where, however, on the trial a rescission of the contract was denied, no-fraud on defendant’s part being shown, and plaintiff recovered the difference between the cost price of the machinery and its actual value as affected by certain defects, it was error to further allow -plaintiff the items of drayage and cost of placing the machinery in position, since these items must have been incurred by the purchaser in any event. See facts under which a rescission was properly denied.</p> <p>3. —Practice—Trial Upon Special Issues.</p> <p>Where the jury, upon special issues submitted, found the value of the property in a certain sum, and the court, in rendering judgment, found it at a different sum, there was error in the judgment.</p>

<p>1. —Parol Evidence—Written Instrument Lost—Boundaries.</p> <p>Upon proof of the loss of a petition for the incorporation of a town, parol evidence is admissible to prove, as part of its. contents, the boundaries therein shown.</p> <p>2. —Incorporation of Towns—Excessive Territory—Validation—Commissioners Court.</p> <p>Where the incorporation of a town was invalid because 75 to 80 per cent of the territory included was agricultural and pastoral land, such invalidity was not cured by article 616c, Revised Statutes, since that article has no application to incorporations in violation of law, but only to such as were defective because of a failure to comply with all the requirements of the law; nor could such invalidity be cured by an order of the commissioners court changing and making smaller the boundaries, since that court had no jurisdiction in the matter.</p> <p>3. —Same—Act of 1893—Constitutional Law.</p> <p>Nor was such invalidity cured by the Act of 1893, page 175, relating to the incorporation of .towns for school purposes, .since that act has no application to general municipal corporations, and if intended to. have such application, it is obnoxious to the provision of the Constitution (section 35, article 3) prohibiting the inclusion of more than one subject in the same bill.</p> <p>4. —Same—Revised Statutes—Codification Not a Re-enactment.</p> <p>The invalidity of an act of the Legislature resulting from its violation of the provision of the Constitution prohibiting more than one subject in the same bill is not obviated by the subsequent inclusion of the act, with a division of it into two articles, in the codification of the present Revised Statutes, and upon the ground that the adoption of the Revised Statutes was a re-enactment of the law, since the Revised Statutes, by virtue of express provision therein, are to be construed as continuations of the existing law, and not as new enactments of the same. Final Title, sec. 19.</p>

<p>1. —Homestead—Abandonment.</p> <p>That the surviving wife allows her grown daughters to live with her and to share in the general income of the homestead property, and that the daughters paid taxes on the Respective portions therof allotted to them in remainder, does not show that the wife had, as against the claims of the daughters, abandoned her homestead rights in the property.</p> <p>2. —Same—Same—Adult Unmarried Daughter.</p> <p>An adult unmarried daughter, though a constituent member of the family, has no right in the homestead property, nor in the rents and income thereof, as against the use of the property as a homestead by the surviving parent. Ashe v. Youngst, 65 Texas, 631, followed.</p> <p>3. —Same—Guardian—Receipt as Estoppel.</p> <p>Where a surviving wife was guardian of her minor daughter, and the latter, upon her own marriage, gave to the former a receipt in full for her interest in the estate which recited that the guardian “has turned over to me all the real estate belonging to me,” this did not raise the issue of estoppel against the guardian to assert thereafter her homestead right in such real estate.</p> <p>4. —Same—Income of Homestead—Immaterial Error.</p> <p>Where, in a contest between children and their mother as to homestead property, the verdict of the jury found in favor of the mother’s homestead rights, it was immaterial that the verdict did not specifically dispose of certain sums of money the income of the property, since it necessarily followed from the verdict that the mother was entitled to such money.</p> <p>5. —Same—Misjoinder.</p> <p>Error in refusing to sustain objections to plaintiff’s petition on the grounds of misjoinder, in that it combined a demand for judgment on certain money claims with a suit to recover possession of the homestead, was harmless where no recovery was had on the money demands.</p>

<p>1. —Fire Insurance—Misjoinder of Actions.</p> <p>Where plaintiff, whose lumber was insured with two different companies by-separate policies issued at different times, but covering the same property, brought a single action against both companies to recover for its loss, there was ■a misjoinder of causes of action, as there was no privity between the defendants •and no equities to be adjusted between them.</p> <p>2. —Same—Knowledge by Insured of Clause in Policy.</p> <p>Where a clause requiring a clear space of 100 feet to be maintained between "the lumber insured and any dry kiln, is referred to in the body of the policy as being attached thereto and made a part thereof, the assured, in the absence of allegations of fraud or mistake, will be conclusively presumed to have had knowledge of the contents of such clause.</p> <p>3. —Same—Allegations of Knowledge by Insurer.</p> <p>Allegations that the insurance agent had knowledge of the fact that the lumber was piled within less than 100 feet of the dry kiln, and that he agreed to insure it as it was then situated, were insufficient to avoid the effect of the ■clear space clause.</p> <p>■4.—Same—Waiver Because of Knowledge.</p> <p>Where the insurance agent issued a policy with knowledge of facts such as would render it void in its inception, if its provisions were insisted on, it will be presumed that such provisions are waived, rather than that he fraudulently delivered and received payment for an invalid policy.</p> <p>5.—Same—Evidence of Clause Attached to Policy.</p> <p>In an action on an insurance policy the defendant company has the right -to introduce in evidence a clause or provision which is attached to the policy •and mentioned in the body of it as constituting a part thereof.</p> <p><6.—Practice in Trial Court—Special Issues.</p> <p>It is an abuse of the statute authorizing the submission of special issues to the jury for the court to submit fifty questions to be answered, since the law does •not contemplate that the jury shall find every material fact in evidence, but only -upon the substantial and material issues that arise on the -facts.</p> <p>ON REHEARING.</p> <p>•7.—Fire Insurance—Parol Agreement Varying Policy.</p> <p>A parol agreement of the insurance agent made prior to the execution of the policy can not be shown to vary or contradict' its terms.</p> <p>3.—Same—Waiver Not Presumed from Agent’s Prior Knowledge, When.</p> <p>The mere fact that the insurance agent had knowledge, at some time prior to the issuance of the policy, of a condition of the property violative of its terms, will not authorize the presumption that he knew such condition existed at the time the policy was issued, and waived a provision of the policy relating thereto.</p> <p>•9.—Same—Extent of Waiver.</p> <p>Where a condition of the property violative of the policy (lumber so piled as to reach within 100 feet of a dry kiln) could readily be changed by the insured, the issuance of the policy with knowledge by the insurer of such condition, waived the requirement forbidding it only to the extent of allowing the insured a reasonable time within which to comply with the policy by removing the lumber.</p>

<p>1. —Pleading—Foreign Law—Partition of Community Property.</p> <p>Where, in partition of community property, the defense is that defendant bought the property with money he had earned in a foreign State, under the laws of which such money was his separate property, he must plead such matters to admit evidence thereof and of the laws of such foreign State.</p> <p>2. —Practice in Trial Court—Withdrawing Announcement—Discretion.</p> <p>Since it is within the discretion of the trial court to allow a party to withdraw his announcement of readiness for trial for the purpose of filing an amendment, the action of the court in refusing such permission will not be reviewed on appeal.</p> <p>3. —Practice on Appeal—Foreign Law to Be Shown in Record.</p> <p>Where defendant’s motion for new -trial to permit him to introduce the laws of a foreign State (which he was unable to adduce at the trial) shows that such laws had been obtained, the refusal of the motion will not be held error where the laws so relied on are not shown in the record on appeal, so that it can be determined whether or not they sustain defendant’s contention.</p> <p>4. —Community and Separate Property—Surviving Spouse.</p> <p>Where a surviving husband, after his wife’s death, bought land and paid for it out of his earnings from a gin and farm that were community property, this did not affect the land with the character of community property, though the husband might be indebted to the community estate for the money invested in it.</p> <p>5. —Practice on Appeal—Motion for New Trial Below.</p> <p>The rule requiring that an objection questioning the sufficiency of evidence must be brought to the attention of the trial court in a motion for new trial, is not applicable where the trial is had before the court without a jury.</p> <p>6. —Homestead—Abandonment.</p> <p>See the opinion for evidence held sufficient to show that a rural homestead, had been abandoned and another acquired in town.</p> <p>7. —Partition of Land—Description.</p> <p>In a partition of land a tract set aside to ‘defendant as his homestead, which is not asked to be partitioned and is adjudged not subject to partition, is sufficiently described as the house and lot on which he was residing at the death of his wife.</p>

<p>Vendor and Purchaser—Contract—Forfeit Conditioned on Good Title.</p> <p>Where a purchaser of land put up a forfeit for the performance of the • contract on his part, to be returned to him if the title should be found bad, the vendor was not entitled to recover the forfeit of the depositary unless he was in position to furnish a good title and require specific performance, although the purchaser has written him that he could not raise the money to pay for the land and would have to lose the forfeit, and had given the vendor an order for the deposit, which he afterwards countermanded.</p>

<p>1.—Land Certificate—Probate Sale of—Writing Unnecessary.</p> <p>A valid sale of an unlocated land certificate may be made without being ■evidenced by a conveyance in writing. See evidence held sufficient to show a’ valid probate sale of such certificate.</p> <p>:2.—Limitation Against Married Woman—Law Hot Retroactive.</p> <p>The Act of 1895 (Revised Statutes, article 3352, section 3) as to limitation Tunning against married women, was not retroactive in its effect, and limitation would run only from the end of the year after its passage.</p> <p>3.—Same—Judgment Against Tenant Binds Landlord.</p> <p>A judgment in trespass to try title in plaintiff’s favor for the land against a tenant in possession will stop the running of limitations in favor of the landlord, and it does not affect the conclusive force of the judgment that it was one rendered by agreement</p>

<p>1. —Léase for Mining Oil—Conditions of Forfeiture—Estoppel.</p> <p>See evidence held not sufficient to raise the issue as to whether a lessor was estopped from claiming the forfeiture of an oil mining lease on the ground that the lessee had failed to begin a well on the land within the time stipulated in the lease contract.</p> <p>2. —Same—Beginning of Well—Question for Jury.</p> <p>Where the lease provided that it should be void in case no well was begun by the lessee within a specified time, and on the last day of such time the lessee hauled some lumber on the land with which to construct a derrick for boring the well, the court correctly refused to instruct, as a matter of law, that this was a beginning of the well, but properly left that question to the jury in connection with testimony as to the general understanding among persons engaged in the business of boring oil wells as to when a well was begun.</p>

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

<p>1. —Negligence—Railway Brakeman—Low Bridge—Warning—Charge.</p> <p>An instruction to the effect that if deceased, a brakeman in defendant’s employ, was advised by the book of rules furnished him at the time he was employed that it was dangerous to stand erect on the top of cars while passing through a certain bridge, he assumed the risk of injury, and if killed by reason of so doing, his parents could not recover, was properly refused, because it took from the jury the issue as to whether such warning was adequate.</p> <p>2. —Same.</p> <p>It being negligence for the railway company to construct bridges dangerous to the lives of its employes, and provide no contrivances to give warning of them to brakemen on approaching trains, it can not excuse itself by simply showing that the brakeman knew, before receiving the injury, that the bridge was so low he could not pass it with safety while standing on top of the ears.</p>

<p>Trespass to Try Title—Action Against Unknown Heirs—Pleading.</p> <p>In an action of trespass to try title to lands brought against unknown heirs, plaintiff’s petition must, under article 1504c, Revised Statutes, set forth plaintiff’s title, as well as the claim of defendants, if known, although in other cases of trespass to try title this is not requisite under article 5250, relating generally to-that form of action.</p>

<p>1. —Contract of Sale—Acceptance—Charge.</p> <p>In an action to recover a typewriter shipped subject to trial and acceptance, ■ it was error for the court to instruct that if defendant notified plaintiff’s authorized agent that the machine was satisfactory before plaintiff revoked its offer to sell, they should find for defendant, where the whole conversation between plaintiff’s agent and the defendant, upon which the instruction was predicated, showed that defendant had no intention then of notifying the agent that he accepted the machine, and the only authority shown on the part of the agent was that he was plaintiff’s traveling salesman.</p> <p>2. —Same—Same—Real Issue Ignored.</p> <p>Where the real issue in the case was as to the identity of the machine shipped with one mentioned in plaintiff’s prior letter making an offer to sell, a charge that if the jury should find that a certain letter from defendant to plaintiff contained an acceptance, they should return a verdict for defendant, was erroneous in ignoring the question of identity of the machine.</p> <p>3. —Same—Evidence Not Too Remote.</p> <p>Upon the issue as to whether plaintiff offered at $50 the new machine shipped, or whether that offer and price applied to a different machine, it was competent for plaintiff to give in evidence letters written by it to defendant some eight months prior to the transaction, pricing a second-hand machine for $50 and new machines, of the kind shipped, for $102.</p>

<p>1.—Negligence—Railroads—Failure to Inspect Cars.</p> <p>See evidence held sufficient to show that an injury to a freight conductor, caused by the top round of a ladder on the side of a car giving way, was due to negligence of the company in failing to have the car properly inspected.</p> <p>Ü.—Same—Evidence Tending to Show Negligence.</p> <p>It was competent for plaintiff, suing for injuries that resulted from a failure of defendant to have its ears properly inspected, to show that defendant formerly had car inspectors at the point where the injury occurred, but had none there at the time of the accident, as this tended to prove the want of due care on defendant’s part as to the inspection of its cars.</p> <p>3,—Mental Anguish—Evidence of.</p> <p>In an action of damages for serious personal injuries, permanent in character, it is competent for plaintiff to testify to his mental suffering in contemplating his changed and crippled condition and reflecting that he must continue to be laid up and suffer the balance of his life, this being a natural result of such injuries.</p>

<p>Constitutional Law—Counties—Act Disorganizing and Attaching Not a Local Law.</p> <p>The Act of 1897 (General Laws 1897, page 205) disorganizing Loving County and attaching it to Reeves County, and providing that the commissioners court of the latter shall audit claims against Loving County and levy and collect taxes on the property in Loving County for their payment, is a general and not a local law within the provision of the Constitution requiring that no local or special law shall be passed unless thirty days’ notice of intention to apply for its passage has been first duly published, since the above stated act, though relating to only two counties, deals with the political division of the State, affecting its judicial organization, its taxes, revenues, and school fund.</p>

<p>Municipal Corporation with Waterworks—Negligence—Liability for Injury by Fire.</p> <p>A municipal corporation undertaking by the establishment of waterworks, or through other means, to prevent the destruction by fire of the property of its inhabitants, is not1 liable to them for the burning of such property in consequence of its failure, or that of any agency employed by it, to accomplish that result. Lenzen v. City of New Braunsfels, 13 Texas Civil Appeals, 335, not followed.</p>

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

<p>1. —Verdict—Special Issues—Conclusiveness.</p> <p>Where a ease is submitted to the jury on special issues, and no complaint is made in motion for new trial or otherwise in the court below of the verdict, it becomes, under the statute, conclusive as to the facts found. Rev. Stats., art. 1332.</p> <p>2. —Finding of Fact by Court.</p> <p>That a finding of fact by the trial court is copied into the transcript among the conclusions of law does not deprive it of its character as a finding of fact and its right to be so accepted.</p> <p>3. —Trespass to Try Title—Prior Possession Insufficient, When.</p> <p>Plaintiff in trespass to try title, seeking to eject mere intruders, and having failed to show title in himself, can not recover on the strength of a prior possession where the evidence affirmatively shows that such possession was under and by virtue of an unfounded and mistaken claim of title, since the prima facie inference of ownership arising from the possession is rebutted, and no presumption arises that an independent outstanding title had been acquired.</p>

<p>1.—Assignment of Error.</p> <p>An assignmen of error to the sufficiency of the evidence to support the: verdict may he denied consideration on account of the too general statement in the motion for new trial, that the finding complained of “was contrary to the-evidence and unsupported by the evidence.”</p> <p>3.—State School Land—Actual Settlement—Mistake as to Tract.</p> <p>" See the opinion for evidence held sufficient to warrant a finding that one who-had purchased school land as an actual settler thereon had duly established his. residence in a certain dugout in the belief that it was on the tract, and that this belief was well founded—although the evidence strongly tended to show that it. was in fact across the line on an adjoining tract.</p> <p>3.—New Trial—Bias of Juror—Conflict of Evidence.</p> <p>Where on a motion for new trial on account of bias of certain jurors, the evidence was conflicting, the trial court’s action in denying the motion will not be-reviewed. ,</p>

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

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

<p>Appeal from Lamar. Tried before Hon. E. S. Chambers.</p>

<p>1. —Carrier—Live Stock—Damages.</p> <p>See evidence held to support a verdict in the amount of $518.55 for damages in transportation of 128 head of cattle, by delay, rough handling, insufficient food and water, and muddy pens.</p> <p>2. —Carrier—Delay—Regular Trains.</p> <p>A carrier can not avoid liability for failure to transport cattle within a reasonable time by showing that its regular trains did not connect in time to avoid the delay.</p> <p>3. —Carrier—Feeding and Watering Cattle—Pleading—Evidence.</p> <p>An allegation in a suit against a carrier for damages to live stock in their transportation, that they were delivered in a damaged condition through defendant’s negligence and delay in transporting them, was sufficient to admit evidence as to failure to properly feed and water them; and such, evidence was also admissible on the issue made by defendant, that their injury was due to their wild and restless nature, as showing the cause of their restlessness to be the fault of defendant.</p>

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

<p>Appeal from the County Court of Kaufman. Tried below before Hon. John Vesey.</p>

<p>Appeal from McLennan, Nineteenth District. Tried below before J. G. Winter, Esq., Special Judge.</p>

<p>Homestead—Occupancy—Intention.</p> <p>When the homestead of a family is exchanged for an improved farm intended to be occupied as a home, their homestead rights attach thereto as against an execution creditor, before any actual occupancy.</p>

<p>1. —Variance Between Allegation and Proof—Practice on Appeal.</p> <p>The rule that an objection that the verdict is contrary to the evidence will be deemed as waived if not called to the attention of the court below in a motion for a new trial applies where the objection is that the proof offered by a party is variant from the allegation in his pleading.</p> <p>2. —Same—Variance Not Shown.</p> <p>Where, in an action for damages against a railway company, plaintiff alleged that his wife was refused permission to ride in the car for white people and forced to ride in the negro coach, and the proof showed only that the train conductor, after having twice promised to do so, failed to assist the wife to change from the colored coach to the one for whites, there was no variance, since the proof was reasonably sufficient to establish the substance of the issue.</p> <p>3. —Damages for Mental Anguish Alone.</p> <p>Damages for mental pain, anxiety, distress or humiliation suffered, if the direct result of a common carrier’s failure or neglect to perform its duty, may be recovered, though unaccompanied with physical injury, pain, or suffering.</p> <p>4. —Same—Common Carrier—Putting White Woman in Negro Coach.</p> <p>A common carrier is liable in damages for such discomfort and humiliation as proximately result from its action in compelling a white woman and her children to ride in a coach designed for and occupied by negroes.</p> <p>5. —Same—Use of Profane Language.</p> <p>Such damages as result from the humiliation caused by profane language used by the negroes in the presence of plaintiff’s wife while in the negro coach were not recoverable where it was not shown that such misconduct of the negroes was known to the carrier or its servants. (Neill, Associate Justice, dissenting.)</p> <p>6. —Same—Excessive Verdict.</p> <p>A verdict against a railway company for $1000 for compelling a white woman to ride in the negro coach for sixty miles is held grossly excessive, and a remittitur of $900 required.</p>

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

<p>Married Woman—Liability of Separate Estate—Attorney’s Fee.</p> <p>Where a husband and wife were jointly sued on the wife’s subscription to> a railway company, and the husband employed an attorney to defend the suit, the wife’s separate estate could not subsequently be charged by judgment in an action brought by such attorney for his fee, in the absence of evidence that his employment was contracted for by the wife, or by her authority.</p>

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

<p>Plea of Privilege—Waiver of—Jurisdiction.</p> <p>Defendant, being sued out of the county of ■ his residence, filed with his answer a plea to the jurisdiction, asserting his privilege to be sued in his own county. His attorney, over the telephone, asked plaintiff’s attorney to have the ease set for a day certain of the appearance term, and the latter stated that he would insist upon this as a waiver of the plea, and defendant’s attorney said he would not agree to waive his plea. Plaintiff’s attorney then, in accordance with this conversation, had the court to enter an order setting the case for a day certain “by. request of defendant’s attorney.” Held, that there was no waiver of the plea of privilege.</p>

<p>Appeal from Justice Court—Plea of Suit Pending.</p> <p>Where plaintiff sued in justice court and defendant pleaded that a suit was then pending in the district court between the same parties which involved the same subject matter, and the plea having been sustained, plaintiff appealed to the county court, and after such appeal the suit in the district court was dismissed, it was error for the county court to sustain the same plea when there interposed by defendant, since the appeal had the effect to dissolve the justice’s judgment, and the case was to be tried in the county court de novo upon the law and facts as then existing and applicable.</p>

<p>1. —Garnishment—Equitable Assignment of Fund in Bank.</p> <p>Where a debtor, having funds to his credit in a bank, drew a check thereon in favor of one of his creditors before garnishment of the bank by another creditor, the delivery of the check operated as an equitable assignment of so much of the fund, although the bank had no notice thereof at that time, and the bank was authorized to make payment of the check after the garnishment had been served upon it.</p> <p>2. —Same—Setoff by Bank—Insolvent Debtor—Notes Not Due.</p> <p>A bank, when garnished by creditors of one of its depositors who has become insolvent and who is indebted to it by notes secured by personal indorsement, has the right, as against the garnishing creditors, to set off the deposit, so in its hands against such notes, although the notes be not yet due.</p>

<p>1. —Fire Insurance—Inventory—Iron Safe Clause.</p> <p>Where a stock of groceries was replenished from time to time by shipments, from another store belonging to the insured, who kept itemized lists of the merchandise so shipped, this was not a compliance with a provision in the iron safe clause of a policy on such stock of groceries requiring an inventory of the stock on hand to be taken and preserved.</p> <p>2. —Same—Failure Not Excused.</p> <p>That it is not practicable nor customary to procure from each customer from whom a grocery merchant purchases butter, eggs and chickens a bill or invoice thereof, is no excuse for such merchant’s failure to comply with the provision in his policy of insurance requiring an inventory of the stock on hand, to be taken in thirty days after the date of the policy.</p> <p>3. —Same—Waiver of Requirement as to Inventory—Proofs of Loss.</p> <p>See the opinion for evidence as to requiring proofs of loss after a fire, held not to constitute a waiver by the insurer of a provision in the iron safe clause of a policy requiring the insured to take and preserve an inventory of the stock, of goods covered by the policy.</p>

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

<p>1. —Plea in Abatement—Jurisdiction—Waiver.</p> <p>A plea in abatement alleging that plaintiff fraudulently stated his claim in the amount for which he sues for the purpose of conferring jurisdiction on the court, is waived where defendant permits three terms of court to pass without calling attention to the plea. Rev. Stats., art. 1269.</p> <p>2. —Jurisdiction—Amount—Amendment.</p> <p>The amount of the demend as set up in the amended petition upon which plaintiff goes to trial is the amount in controversy, and this amount prima facie determines the jurisdiction of the court.</p> <p>3. —Rent Payable in Kind—Measure of Damages.</p> <p>Where plaintiff sues for rent payable in products, the measure of damages is the market value of such products at the time the rent accrued, with interest to the time of trial.</p> <p>4. —Landlord and Tenant—Exemption in Lease from Damages for Distraining.</p> <p>A provision in a lease exempting the landlord, in the event he should dis-train for rent, from any claim for damages alleged by the tenant for any cause whatever, is valid, and will exempt the landlord from damages arising from a legal distraint, but not from an illegal and unjust suing out of the writ.</p> <p>5. —Evidence—Absence of Revenue Stamp.</p> <p>The Act of Congress of 1898 providing that certain instruments shall not be admissible in evidence unless bearing revenue stamps, applies only to the courts of the United States, and not to the State courts.</p>

<p>Appeal from Fannin. Tried below before Hon. E. S. Chambers.</p>

<p>Probate Court Proceedings—Appeal from Interlocutory Order Approving Account.</p> <p>An administrator filed an account, styled his final account, showing a balance of money on hand, which account was approved by the court. He did not aslc for a final discharge, and no order; to that effect was entered. Afterwards he filed another final account which was contested by the heirs, specifying in their contest objections to items stated in such former account, to which the administrator demurred on the ground that the approval of such account by the court was conclusive as to the items therein. Held, that an appeal would not lie from the order of the court overruling such demurrer, since it was interlocutory and did not finally adjudicate any contested issue between the parties. Rev-Stats., art. 2255.</p>

<p>Appeal from Delta. Tried, below before Hon. L. A. Clark.</p>

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

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

<p>Appeal from Hopkins. Tried below before Hon. B. W. Foster, Special Judge.</p>

<p>Appeal from Hunt. Trial before Hon, L. A. Clark.</p>

<p>1. —Railroads—Accident at Crossing—Brakeman—Pleading.</p> <p>Where plaintiff had driven up near a railroad crossing, and a brakeman on a train which had just cleared the crossing and stopped, signaled plaintiff to cross over, plaintiff was wairanted in relying on such invitation and attempting then to cross. See opinion for allegations held sufficiently full to show liability on the part of the railway company in such case.</p> <p>2. —Damages for Personal Injuries—Doctors’ Bills—Pleadings.</p> <p>In an action of damages for personal injuries, including doctors’ bills incurred for medical treatment, it is not necessary that plaintiff’s petition allege the time and place at which such medical services were rendered, as in an action on account brought for the value of such services.</p> <p>3. —Same—Loss of Time—Double Recovery.</p> <p>Where plaintiff alleged his lost time to be worth $150 per month, aggregating $385, for which he asked judgment, and also that the injuries had diminished his capacity to labor and earn money, and that his loss of time and personal injuries had damaged him in the sum of $10,000, for which he prayed recovery, the petition was not subject to exception on the ground that he claimed damages twice for the, loss of time.</p> <p>4. —Same—Evidence of General Reputation Warranted.</p> <p>Where defendant offered proof that plaintiff, who was a witness in the case, . had been indicted for perjury, this was a direct attack upon his truth and veracity such as warranted evidence in rebuttal to show that his reputation was good in that respect.</p> <p>5. —Charge—Clause Not Ignoring Other Sections.</p> <p>Where a clause of the court’s charge instructed the jury that if they should find that the action of defendant’s servants in charge of a train causing it to back on the crossing was negligent under the circumstances, and that but for such negligence plaintiff would not have been injured, then they should find for plaintiff, unless they should find for defendant “under the instruction hereinafter given,” this "was not misleading as tending to induce the jury to understand that they could return a verdict for plaintiff independent of what followed in the other paragraphs.</p> <p>6. —Same—Acts Causing Injury Need Not Be Willful.</p> <p>The court properly refused a charge to the effect that plaintiff could not recover by reason of his team becoming frightened, unless the act of defendant’s, servants which caused the team to become frightened were wantonly and willfully done.</p> <p>7.—Same—Contributory Negligence—Mistaking Signals.</p> <p>It was a question for the jury whether or not the defendant’s bralceman. signaled plaintiff to cross the track; and if he intended to signal for the engineer only, it was still a question of fact as to whether the operators of the. train acted with ordinary care, and whether plaintiff was guilty of contributory negligence under the circumstances. See opinion for charge held sufficient on. this phase of the case.</p>

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

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

<p>1. —Verification of Pleadings—Injunction and Trespass to Try Title.</p> <p>Where plaintiffs sued in trespass to try title and for an injunction to restrain a judgment under which the land had been sold, a complaint against the judgment rendered therein in plaintiffs’ favor, on the ground that their petition for injunction was not sworn to, is not well taken where the ease was finally tried on an amended petition and no exception appears to have been made to the original pleadings (upon which a temporary injunction had issued) because not sworn to.</p> <p>2. —Judgment by Default—Grounds for Vacating.</p> <p>A judgment vacating and setting aside a former judgment by default is warranted by evidence showing that in such former suit there was, because of the existence of smallpox and quarantine, an oral agreement between counsel for the parties that the case should be passed and continued until the next term, whereby the defendants were prevented from attending court and of learning of such default judgment until after the term had expired.</p> <p>3. —Excution Sale Set Aside—Inadequacy of Price—Notice.</p> <p>Where the amount bid 'by plaintiff at his own execution sale is grossly inadequate, and the defendant in execution is possessed of personal property subject to execution sufficient to pay the debt and has not been called upon to pay the execution or to point out property, and a levy is made by the officer upon real estate and he fails to give notice thereof to the defendant, the jury is justified m finding that the constable’s deed should be set aside.</p> <p>4. —Same—Actual Notice of Sale.</p> <p>Actual .notice of the sale of land to the defendant in execution will not dispense with the necessity of notice to him of the levy of the execution which the statute requires the officer to give.</p> <p>5. —Tender of Money Into Court—judgment Awarding Execution Therefor.</p> <p>Where plaintiffs, seeking to have an execution sale of land set aside, tendered into court the amount which defendant had bid for the land, and there was judgment in plaintiffs’ favor setting aside the sale, and in defendant’s favor for the amount of such bid, it was not a tenable objection to the judgment in favor of plaintiffs that the amount of the bid should have been left in the custody of the clerk, defendant being awarded execution therefor and it not appearing the plaintiffs were insolvent.</p> <p>6. —Abandonment of Contract to Acquire Land.</p> <p>See evidence held to warrant a verdict finding, in effect, that a contract by which the parties were to acquire land under the five years statute of limitations and one-half of it to be then conveyed by one of them to the other, who was to pay half the taxes from year to year, had been abandoned by such other party.</p>

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

<p>Deed—Delivery—Intent of Grantor.</p> <p>. To show delivery of a deed it is necessary not only that it should appear that the instrument had been placed in the control of the grantee, but that the grantor intended it should become operative as a conveyance; and a charge to the jury, as to what would constitute a delivery, pretremitting the question of such intention, was erroneous.</p>

<p>Appeal from Walker. Tried below before Hon. J. M. Smither.</p>

<p>1. —Limitations—Minor—Suit by Next Friend.</p> <p>The bringing of a suit by the father as next friend to recover damages for injuries to a minor, and its subsequent dismissal for want of prosecution, does not put the statute of limitations in motion against the claim of the minor from and after the date of such dismissal.</p> <p>2. —Argument of Counsel—Immaterial Error.</p> <p>Remarks of counsel to the jury asserting facts of which there is no evidence in the case are improper, but will not necessitate a reversal where it is not shown that they had any effect on the jury, and the verdict is not against the preponderance of the evidence.</p> <p>3. —Limitations—Plea of Minority in Reply.</p> <p>Where defendant sets up in one plea limitation of one and two years, a plea of minority by plaintiff in reply is sufficient where it mentions only the plea of two years, but sets up.facts sufficient to meet the plea of one year as well.</p> <p>4. —Evidence—City Charter—Authentication.</p> <p>The charter of the city of Houston is a public act of the Legislature of which the court will take judicial notice, and by virtue of sections 36 and 53 thereof a printed book purporting to contain the city ordinances and to be published by authority of the city council, is admissible in evidence as proof of such ordinances without further authentication.</p> <p>5. —Action for Personal Injuries—Issue of Unavoidable Accident Raised.</p> <p>See the opinion for evidence in an action for personal injuries to a boy by a moving train held to raise the issue of unavoidable accident and to require its submission to the jury upon defendant’s request.</p> <p>6. —Judgment for Damages—Disposition of Proceeds.</p> <p>Where plaintiff recovers a judgment for damages resulting from personal injuries, defendant will not be heard to complain that it directs one-half the amount thereof when collected to he turned over to counsel for'plaintiff.</p>

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

<p>Error from Anderson. Tried below before Hon. A. B. Lipscomb.</p>

<p>Appeal from Anderson. Tried below before Hon. A. B. Lipscomb.</p>