Volume 26 — Texas Civil Appeals Reports

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

<p>1. —Survivor in Community — Exchange of Property — Liability of Sureties.</p> <p>In an action by an heir on the bond of a survivor in community to recover her interest in certain community real estate disposed of by such survivor, it was not a defense to plaintiff’s claim that such survivor had exchanged the community property for other real property which was stilll on hand, where the values of the respective properties were not shown, and the exchange included other property also, and the legal title to the property received in exchange vested in such survivor and his wife by a later marriage, and was incumbered with her homestead claim, although plaintiff might, if it became necessary, charge such latter property with a trust.</p> <p>2. —Same—Ratification.</p> <p>Where a duly qualified survivor in community had sold a parcel of the community land, and the purchaser thereof, after the heir of the deceased spouse had attained her majority, procured from her a quitclaim deed of the property in ratification of the sale, this afforded no defense to the sureties on such survivor’s bond against the heir’s claim for the. value of her interest in the property so sold.</p>

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

<p>1. —Railroads—Contributory Negligence — Failure to Look and Listen at Crossing.</p> <p>The court should not charge that, as a matter of law, the failure of one approaching a railway crossing to look and listen for trains would be negligence, the question being one for the jury, and the inquiry in such case being, did the party injured, considering all the surrounding circumstances, act as a person of ordinary prudence would have acted. See evidence held not to show contributory negligence on the part of the deceased, who, in attempting to cross a railway track near a station, was struck by a fast express train.</p> <p>2. —Release of Damages — Mental Incapacity.</p> <p>A release of damages for injuries received at a railway crossing was not binding on the releasor or his family where .it was executed at a time when he was sick from the effects of the injuries, suffering great mental and physical pain, and was never m a normal mental condition from the date of the accident until his death.</p> <p>3. —Same—Ratification.</p> <p>The fact that the wife of the deceased, after his death, used part of the money received for the release, was not conclusive proof of ratification, and it was competent for her to testify that she did not intend thereby to ratify the settlement for the damages, and did not know that using part of the money would have that effect.</p> <p>4. —Evidence—Mental Condition — Nonexpert Witnesses.</p> <p>It was competent for nonexpert witnesses to testify as to the mental condition of deceased prior to, at the date of, and subsequent to the execution of the release, where they stated the facts upon which their conclusions were based.</p> <p>5. —Continuance—Surprise.</p> <p>There was no reversible error in overruling an application for a continuance sought on the ground that plaintiff’s supplemental pleading alleged a matter causing surprise, where, when the case had been first called for trial, such surprise was urged and the case reset for a date nine days ahead, and the applieatian for continuance did not show the existence of any evidence that was not used at the trial, and it was not made to appear that other and different evidence could likely be procured.</p>

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

<p>1. —Railway Company — Accident at Crossing — Discovered Peril.</p> <p>Where there was evidence showing. that the engineer of a passenger train, when approaching a public crossing, saw plaintiff with his team near the other track, endeavoring to control them, and made no effort to check the train, but .unnecessarily began to blow the whistle, causing the team to become frightened, a charge upon discovered peril was proper.</p> <p>2. —Same—Charge Not on Weight of Evidence.</p> <p>See charge as to accident at crossing held not on the weight of evidence.</p> <p>3. —Same—Liability for Negligence.</p> <p>Where no signal was given by the engineer of the train at the proper distance from the public crossing, nor was the bell kept ringing as the train approached it, and the engineer, after discovering plaintiff with his team near the crossing, frightened the team with the unnecessary blowing of the whistle, the railway company was liable for the injury resulting to plaintiff from negligence.</p>

<p>1. —Master and Servant — Assumed Risk — Obvious Defects.</p> <p>The master is not liable for injuries to the servant arising from obvious-' defects in the instrumentalities of the business in which the servant is employed, the danger therefrom being an assumed risk on the part of the servant.</p> <p>2. —Same—Defective Car — Injury to Brakeman.</p> <p>Where an experienced brakeman sustained injuries by reason of defects in a disabled car which was, in due and usual course, being carried to the repair shop as part of his train, and the 'injury resulted from his failure to observe its dangerous condition, he could not, its defects being patent and obvious, recover for such injuries.</p> <p>3. —Same—Rule of Liability — Injury as Probable Result.</p> <p>There can be no liability for an injury unless the act, which causes the injury, was one from which, under all the circumstances, it might reasonably have been anticipated that the injury would have resulted as a probable consequence.</p>

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

<p>Contested Election — Local Option Law — Notice and Service — Jurisdiction.</p> <p>In an action brought in the District Court to contest the result of a local option election, the jurisdiction of the court was sufficiently invoked where contestants, within thirty days after the return day of the election, filed with the clerk of the court a statement of the grounds of contest, put in the form of a petition, and notice thereof was given to the contestees in the form of a citation containing the requisites prescribed for a citation in other cases; and it was immaterial that, instead of serving contestees with the original petition or statement and filing a copy with the clerk, the original was filed with the clerk and the copy served upon contestees. Articles 1798-1803, 1804t, construed.</p>

<p>1. —Stock Law — Validity of Election — Filing Petition.</p> <p>Where a petition for an election to determine whether sheep, goats, and hogs should run at large in a subdivision of the county was filed by the county clerk while the commissioners court was not in session, and the election was ordered at the next term of the court after such filing, the election was not rendered invalid by reason of such facts, since the filing of such papers, where not otherwise provided for, falls within the duty of the clerk. Eev. Stats., arts. 4978-4981.</p> <p>2. —Same—Boundaries of Territory — Calls.</p> <p>The rule that a call for course and distance must yield to one for an established corner or well known objects, applies to calls in the description of the territory in an order for an election under the stock law.</p> <p>3. —Same—Description of Territory — Immaterial Variance.</p> <p>The omission from the description'of the territory as contained in the published notice for a stock law election of one call and two calls for course contained in the order for the election, will not affect the validity of the election in the absence of allegations that such a number of voters had been thereby misled and prevented from voting as would have changed the result had their votes been, cast.</p>

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

<p>1. — Public Land — Conflict of Applications to Purchase.</p> <p>. On March 1 appellee applied to purchase a section of State asylum lands which had been forfeited by the Land Commissioner on February 25th. M. was occupying three-quarters of the section at the time of forfeiture, claiming under the original purchaser, and had a statutory preference of ninety days to repurchase, within which time he duly applied to purchase those three-quarters, and his application was at once accepted. At the same time, on May 8th, appellant moved on to the unoccupied quarter, and two days later filed affidavit of settlement .and application to purchase it, which was rejected on May 25th. On May 18th appellee also moved on to the unoccupied quarter, and on May 20th filed an amended application to purchse it, stating therein that he did not waive his rights to such quarter acquired by virtue of his former application for the entire section,- and this amended application was accepted May 25th. Held, that the acceptance of M.’s application amounted in law to a rejection of appellee’s application to purchase the entire section under which the Commissioner had no power to award appellee only one quarter; that appellee’s right to purchase the unoccupied quarter dated from the filing of the amended application, and as it was later in date than appellant’s application, the latter should have been accepted by the Commissioner, and appellant was entitled to recover the land in trespass to try title.</p> <p>S¡. — Same—Abandonment.</p> <p>The fact that appellant afterwards, in obedience to a judgment of ouster in forcible entry and detainer, moved off the land without waiting to be put off by an officer was no evidence that he abandoned Ms application and claim to the land.</p>

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

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

<p>1. —New Trial — Judicial Discretion — Revision.</p> <p>The discretion involved in the granting of a new trial on account of newly discovered evidence is committed in the first instance to the trial court, and its conclusion will not be disturbed by the appellate court except where clearly wrong.</p> <p>2. —Same—Newly Discovered Evidence.</p> <p>A new trial will not be granted on the ground of newly discovered evidence which would not be admissible as original evidence.</p> <p>3. —Same—Evidence—Declarations of Agent.</p> <p>To be admissible as original evidence the declarations of the agent must be shown to have been authorized by the principal, or to have been made as part of the res gestae of the act or business committed to and performed by such agent.</p>

<p>1. — Confusion of Goods — Equity—Apportionment.</p> <p>Where there has been a confusion of goods, such as stock cattle, resulting from accident or the wrong of a third party, and the proportion of interest of each claimant may be reasonably ascertained notwithstanding the confusion, equity has power to afford a remedy through an apportionment of the property.</p> <p>H. — Same—Judgment Foreclosing Chattel Mortgage — Sheriff Given Judicial Power.</p> <p>A judgment of foreclosure directing the sheriff to seize out of a larger number of cattle and to sell “an interest of 304 head, the fair average of all of said cattle,” confers power judicial in its character, and is erroneous where the mortgagee in whose favor it is rendered has, as against the other parties, no right of selection. Oxsheer v. Watt, 91 Texas, 124, distinguished.</p>

<p>1. —Trespass to Try Title — Equitable Belief — Jurisdiction.</p> <p>Where defendant in trespass to try title, in addition to the plea of not guilty, specially answered, setting up an oral contract of sale under which he had gone into possession and on which he had paid $300, alleging that plaintiff had put it beyond his power to perform the contract, with prayer that defendant recover back the $300 so paid, it was error to sustain a demurrer to the special answer on the ground that the oral contract was within the statute of frauds and the district court had not jurisdiction of the amount of such payment, since equity would not allow plaintiff to recover the land and rents and yet retain the money defendant had so paid.</p> <p>2. —Same—Rents.</p> <p>Where a purchaser of land under an oral contract of sale has gone into possession by virtue of the contract, he can not be held liable on an implied contract for rent, although the oral contract is obnoxious to the statute of frauds, since the actual relation of the parties is that of vendor and vendee, — the oral contract of sale being rendered neither void nor illegal by the fact that the statute prohibits its enforcement into title.</p>

<p>1. —State School Land Purchase — Mistake in Obligation — Statement of Amount.</p> <p>An application by an actual settler to purchase a section of 640 acres of State school land appraised at $150 per acre, accompanied by one-fourth of the total price and an obligation of the purchaser, in terms of the statute, to pay the annual interest and one-fortieth of the principal each' year, was not vitiated by the fact that the obligation recited the amount of the unpaid principal as $636 instead of $936, since the statute does not specifically require the amount of the principal to be thus stated, and such statement could be rejected as surplusage. Say les’ Civ. Stats., art. 4218j.</p> <p>2. —Same—Tract Partly in Absolute Lease District — Exception—Construction.</p> <p>Under the statute providing for the sale of all State school lands except leased lands lying south and west of a designated line, the Land Commissioner was not prohibited from selling an entire section to an actual settler thereon because the west half thereof (320 acres) had been leased, and 77 acres of it fell across such line, since that did not suffice to bring the west half within the exception. Sayles’ Civ. Stats., art. 4218s.</p>

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

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

<p>1. — Injunction—Local Option Election — Right to Maintain Action.</p> <p>That plaintiff was a citizen, voter, and taxpayer of the school district wherein a local option election was held, did not entitle him to maintain an action by injunction to restrain the commissioners court from declaring the result of such election.</p> <p>Í2. — Same—Void Election.</p> <p>If the commissioners court had no power to order the election, as alleged, its action was void, and a court of equity would not entertain a bill to enjoin it from doing what could not have resulted in injury to complainant.</p>

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

<p>1. —Telephone Company — Agency—Negligence.</p> <p>Appellant telephone company operated a line between H. and W., and another company operated a line between A. and W., where both companies had a common agent. Appellant company had no agent of its own at A., but by agreement the other company’s operator at A. acted for appellant in making calls and securing line connections at W. for points beyond on appellant’s line, and the two companies divided the fees in such cases. Held, that the operator at A. was to be regarded as appellant’s agent for making calls for line connections at W. for points beyond on appellant’s line, as was H., and appellant was chargeable with the knowledge of such operator of the purport and importance of an intended verbal message (which was to have announced to plaintiff that his father was dying and wanted to see him), so that, in conjunction with the failure of the operator at W. to answer the call from A. and make the desired line connection, appellant was liable for the damages resulting to plaintiff from his failure to promptly receive such intended message.</p> <p>2. —Contributory Negligence — Fact Case.</p> <p>See facts held not to show that plaintiff was guilty of contributory negligence in failing to go as speedily to the bedside of his dying father as he might possibly have gone, it appearing that, under all the circumstances surrounding plaintiff at the time, he acted with the diligence and prudence of a reasonably prudent and diligent person.</p>

<p>.Benefit Insurance — Assignment of Certificate to Beneficiary Not a Relative or Dependent.</p> <p>The constitution of a fraternal benefit order provided for the payment of a •death benefit fund to the family or heirs, widows, orphans, and dependents of its deceased members; and F., who was a member of such order, and a bachelor, designated his brother as the beneficiary in the certificate issued to himself. .Afterwards he assigned the certificate to W., a minor, who was not related to him, nor dependent on him, no consideration being received for such transfer, .and F. continuing to pay the membership dues up to the time of his death. Held, that the assignment was void, as W. could not be a beneficiary, and that the brother named in the certificate was entitled to the entire fund as against ■other brothers who were, with him, the only heirs of the deceased.</p>

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

<p>1. — Venue—Indorser of Accommodation Note — Issue of Suretyship.</p> <p>Where an indorser of a note residing in a county other, than where suit thereon was brought was properly made a party, the fact that plaintiff dismissed as to such indorser did not warrant the court in then sustaining the indorser’s plea of privilege to be sued in his own county, where the other defendant had pleaded that the note was in fact an accommodation note, given for the indorser’s benefit, by virtue of which he was in equity the real principal therein, and such defendant only surety, — it not appearing that the trial of such issue of suretyship would have unreasonably delayed plaintiff’s suit. Rev. Stats., art. 3813.</p> <p>ON REHEARING.</p> <p>2. —Accommodation Note — Right of Holder.</p> <p>That a note was an accommodation note and the maker a surety for the payee will not affect the right of a subsequent holder to enforce it against the accommodation maker, though the holder may have known of its accommodation character at the time he took it.</p> <p>3. —Same—Release of Accommodation Payee.</p> <p>But where such subsequent holder, knowing that the note was given to accommodate the payee, his indorser, releases such payee, this operates to release the maker also.</p>

<p>1. —Warranty of Title — Breach—Limitations.</p> <p>Until the grantee’s title has in some manner been assailed or called in questian, limitation does not run in the grantor’s favor against a claim made by the grantee on the covenant of warranty for the value of part of the land subsequently lost to him by reason of the assertion of a superior adverse title.</p> <p>2. —Same—Measure of Damages — Interest.</p> <p>Where title to part of the land fails, and the grantor thereupon purchases for his grantee’s benefit the superior adverse title to such part, the grantee is entitled to recover of the grantor on the covenant of warranty interest on the value of the part to which the grantor’s title failed for such time only as the grantee was actually deprived of the land, but not for a period of time prior to the assertion of the adverse title during which the grantee had the undisturbed possession and free use of the land.</p> <p>3. —Same—Rate of Interest.</p> <p>Where the grantee had executed his note bearing 10 per cent interest to the grantor for deferred payments of the purchase money due on the land, he was entitled to recover interest at the same rate for such time as he was deprived of part of the land by reason of the superior adverse title.</p>

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

<p>Passenger Carrier — Negligence—Conductor Exceeding Authority.</p> <p>It was no defense to a passenger’s action for injuries received from negligent starting of train while he was getting off at a station, that the train was forbidden to stop at that station by the company’s rules, and the conductor in letting plaintiff off there exceeded his authority.</p>

<p>Appeal from Bell. Tried below before Hon. Jno. M. Furman.</p>

<p>Laborer’s Lien — Farm Crops — Monthly Wages.</p> <p>Under the Act of May 27, 1897 (Laws Twenty-fifth Legislature, page 218), a farm laborer working for the season at monthly wages payable at the completion of the agreed service, is entitled to fix a lien on the crop raised, on completing his season’s labor, for the entire balance due, and not merely for his wages during the last month of his service.</p>

<p>Appeal from Bell. Tried below before Hon. Jno. M. Furman.</p>

<p>1. —Trespass to Try Title — Disclaimer—Costs.</p> <p>Where defendants in trespass to try title, more than two years after the filing of the suit, entered a disclaimer as to part of the land sued for, they were liable for all costs up to the time of filing the disclaimer, although the judgment was in their favor for the part as to which they had not disclaimed.</p> <p>2. —Warranty of Title — Quantity—Pleadings.</p> <p>An action for a deficit in the quantity of land conveyed by a deed can not be maintained on the covenant of warranty of title, and a recovery for such deficit can not be had on a naked allegation of warranty of title. Where the vendee’s claim is not that there is a deficiency in the quantity of land described in the deed, but that, by reason of the land so described being in conflict with land held by a superior adverse title, part of the land conveyed is lost to him, the facts should be alleged entitling him to relief in that character of case.</p>

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

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

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

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

<p>1. — Vendor and Purchaser — Equitable Relief for False Representations — Similar Relief to Defendant Also.</p> <p>Where a purchaser of land sued to cancel a note given for part of the purchase money because of misrepresentations as to the quantity of the land and a shortage in the amount, defendant had the right to plead misrepresentations by plaintiff as to the quantity and quality of the land which defendant had received in exchange as part consideration of the sale to plaintiff, setting off its damages by reason thereof against plaintiff’s claim, and to recover judgment for a difference in its favor.</p> <p>% — Same—Equitable Relief — Prayer.</p> <p>Since the prayer does not control a court of equity in determining what relief should be given, it was proper for the court, where the pleadings and evidence in an equitable suit showed that a note given in part payment for land was secured by a deed of trust, in rendering judgment for the balance due on -the note, to also decree a foreclosure of the lien, although there was no prayer for such latter relief.</p> <p>.3. — Same—Unpaid Taxes — Offset.</p> <p>Where the purchaser under a warranty deed is compelled to pay taxes that had accrued and become a lien on the land prior to the purchase, the court should have credited him with the amount thereof in rendering judgment on a :note given for part of the purchase price.</p>

<p>1. —Fire Insurance — Mutual Companies — Power to Issue Unconditional Policy.</p> <p>Where a mutual insurance company is incorporated for the purpose of carrying on a general fire insurance business, and there is nothing in its charter or the statute prescribing the mode and manner of doing this business, it is authorized to issue policies in the usual maimer, that is, unconditional, policies, undertaking for a fixed premium to insure the property for a stated sum.</p> <p>2. —Same—Ultra Vires — Insuring Outside the State.</p> <p>Where the charter of a mutual insurance company permits it to insure property situated in Texas only, and it issues a policy on property situated in Canada, and receives the premiums thereon, it can not invoke its want of power to issue such policy as a defense in an action thereon, such contract being an executed one.</p>

<p>1. —Partnership—Existence a Question for Jury — Participation in Profits.</p> <p>Where plaintiff’s evidence tended to show a partnership between defendants "by virtue of participation in profits, the question of whether there was such a partnership should have been submitted to the jury, and a peremptory instruction in defendants’ favor on that issue was error. See evidence held to .raise such an issue of partnership in a case where the defendant in whose name the ■business was transacted had undertaken a contract for the construction of a "waterworks system, and the other defendants advanced the necessary money on .an agreement to share in the profits.</p> <p>2. —Same—Pleading—New Cause of Action.</p> <p>Where plaintiff brought suit against defendants, alleging a partnership be- ■ tween them, and the partnership was denied by them, a supplemental petition alleging liability on the' theory of principal and agent, in case the partnership should not be found to exist, did not set up a new cause of action.</p> <p>3. —Same—Varying Written Contract.</p> <p>Nor was the allegation in such supplemental petition of liability on the part of all the defendants, on the theory that the defendant who alone signed the notes sued on was agent for the others, an attempt to vary by paroi the «contract as expressed by the notes.</p> <p>4. —Same—Partnership in Name of One Member.</p> <p>If defendants were partners doing business under the name of one of them, and the notes sued on were executed by and in the name of that partner for "the benefit of the firm, all the partners were liable thereon.</p>

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

<p>1. —Expert Evidence — Cause of Injury.</p> <p>An opinion by an expert witness that the condition of plaintiff’s lungs was due to some injury inflicted from the outside, was admissible as expert testimony.</p> <p>2. —Deposition—Objections—Filing Presumed.</p> <p>Objections to a deposition on the ground that the interrogatories were leading, must be made before trial, if the deposition is filed more than one day before; and in the absence of any showing on this point, the presumption is in favor of such facts as to the filing as will sustain the ruling of the trial court.</p> <p>3. —Evidence—Leading Questions.</p> <p>Where in an action for personal injuries, after defendant’s application for continuance had been handed to plaintiff, and his attention called to statements of the amount of his earnings as they would be testified to by an absent witness, he was asked whether or not the amounts named were correct, and all that plaintiff earned, the question was not a leading one.</p> <p>4. —Same—Immaterial Error.</p> <p>Error in allowing a leading question is immaterial where counsel making the objection to it was himself offering to prove the fact shown by the answer thus elicited, and in the argument of the case to the jury claimed it as an admitted fact.</p> <p>5. —Ordinary Care — Definition in Charge.</p> <p>A charge in an action for personal injury by a railroad fireman defining ordinary care as “such care as a person of ordinary prudence would have used under like circumstances,” instead of “such care as a person of ordinary prudence would reasonably be expected to exercise under similar circumstances,” was not misleading, since the two expressions mean substantially the same.</p> <p>6. —Charge of Court — Burden of Proof — Weight of Testimony.</p> <p>A charge that “the burden of proof is on the plaintiff to establish his case by a preponderance of evidence, but you are the sole judges of the credibility of the witness, and of the weight to be given to the testimony,” is not objectionable as argumentative, and as intimating the court’s opinion that the preponderance was for plaintiff.</p>

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

<p>1. —Foreclosure of Lien for Taxes — Jurisdiction.</p> <p>The Constitution gives the district courts exclusive jurisdiction of all suits for the enforcement of liens on land, no matter what the amount of the debt or taxes may be.</p> <p>2. —Same—Right of City to Enforce Tax Liens.</p> <p>The right of cities incorporated under the general incorporation act to foreclose liens on real estate for city taxes due thereon is now clearly settled. Following City of Henrietta v. Eustis, 87 Texas, 14.</p> <p>3. —Same—Evidence—Tax Rolls.</p> <p>In proving the assessment of the property it was permissible for the person who was city assessor at the time of trial to testify that the general tax rolls of the city were true copies of the assessment lists for the years for which taxes were claimed in the action, and that the defendant owner had not paid his taxes for those years, although, the witness was not the assessor nor a deputy for these years, — he testifying that he assisted in making up the rolls for those years and knew that they were correct copies of the original assessment lists, and that such lists were lost.</p> <p>4. —Same—Description of Land — Tax Rolls and Petition.</p> <p>Where land was described on the tax rolls by the abstract number, name of original grantee, name of owner, number of acres assessed, and as lying in the city of B., and the petition in a suit to foreclose the lien for taxes described the land by field votes, and alleged that.it was the same land described in the tax rolls and the only land owned by defendant off the named survey, the description was in compliance with law, forming a sufficient basis for the foreclosure of the lien, and was not variant from the description set out in the petition.</p> <p>5. —Same—Sufficiency—Misleading.</p> <p>Where the description given in the assessment is such that by applying' it to the land it can be identified, it is a substantial compliance with the statute; and where the owner has himself so rendered the land for taxes, he can not be misled by the description. ,</p> <p>6. —Same—Ordinance Aiding Description.</p> <p>It was not error in a suit to foreclose a lien for city taxes, to allow the introduction in evidence of an ordinance permitting the pleader, in such an action, to give a perfect description of land not fully described in the assessment roll, and to identify the property aliunde the roll, since the ordinance conferred no right that was not possessed without it, and its admission was not prejudicial to the defendant.</p>

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

<p>1. —Connecting. Carriers — Jurisdiction—Parties.</p> <p>Where in an action against a connecting carrier for injuries to a through shipment of cattle, the defendant made the initial carrier a party, alleging that the injuries occurred while the cattle were in its possession, and praying for judgment over against such initial carrier in the event plaintiff recovered in the suit, the court properly overruled a plea by the initial carrier to the jurisdiction of the court, made on the ground that its road did not extend into the county of the suit, and that it had no agent or office in such county, since the statute gives jurisdiction in such a case against each and all the carriers engaged in the through shipment. Gen. Laws 1899, p. 214.</p> <p>2. —Same—Judgment Over.</p> <p>Plaintiffs having recovered judgment against the connecting carrier, a judgment in its favor for the amount was properly rendered against the initial carrier upon proof that the injuries to the cattle occurred wholly upon the latter’s line.</p>

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

<p>1. —Incorporation of Towns — Contested Election.</p> <p>Where a local option election in an incorporated town was contested on the; ground that parties were permitted to vote who resided in a part of the town which had been added to the incorporation by a proceeding which'was void,, the issue in the case being as to what were the legal boundaries of the town, an objection to the proceedings as being an attack on the corporate existence of the town such as could be made only by proper State authority in an action brought, especially for that purpose, was not-well taken.</p> <p>2. —Same—Boundaries—Evidence.</p> <p>Where the petition for the incorporation of a town is lost, the order of the? county judge declaring the result of the election will be taken, in the absence of evidence to the contrary, as showing the boundaries set out in the petition, and the action of the judge in ordering the election is conclusive that such boundaries, contained the requisite number of 200 inhabitants.</p> <p>3. —Same—Void Extension of Boundaries — Validating Act.</p> <p>The action of the commissioners court in making an order to change the boundaries of an incorporated town upon the petition of 25 citizens was void, and such attempt to extend the corporate boundaries is not validated by the Act of 1895. Sayles’ Civ. Stats., arts. 616c.</p> <p>4. —Same—De Facto Corporation.</p> <p>The extension of the boundaries of the town having been made without color of law, there is no force in the contention that, having exercised jurisdiction over the additional territory, the town became a de facto corporation as to such territory, whose authority could not be questioned except by the State.</p>

<p>1. —Vendor’s Lien — Homestead—Borrowed Money.</p> <p>Where the purchaser of an unimproved city lot, bought for homestead purposes, paid therefor in cash, and after taking possesion of the lot, but before receiving deed thereto, borrowed from the vendor a sum of money with which to erect a dwelling on the lot, and the deed was then executed to him by the vendor reciting the sum so borrowed as the purchase price of the lot, and retaining a vendor’s lien to secure purchase money notes given therefor, the lien so created was valid against the homestead right of the purchaser’s wife, although she did not know at the time of the terms of the deed and the arrangement so made to secure the borrowed money, since no homestead rights attached until the title to the lot was acquired.</p> <p>2. —Same—Title—Paroi Sale with Possession and Improvements.</p> <p>The purchasers did not acquire title to the lot by virtue of paying the purchase money therefor and taking possession and making some slight improvements, too inconsiderable to have authorized them to maintain an action for specific performance of the paroi contract to convey the lot.</p> <p>3. —Same—Innocent Purchaser of Lien Notes.</p> <p>"Where a lien apparently valid and appearing to be for the purchase money, is created on land of a homestead character, a good-faith purchaser of the lien may enforce it.</p>

<p>1. —Evidence—Transactions with Decedent.</p> <p>In an action by the heirs of P; to recover on a lease executed by P. to defendant, the latter was not, under the statute, a competent witness to testify, over plaintiff’s objection, as to renting the land from the deceased and the execution and terms of the lease. Rev. Stats., art. 2302.</p> <p>2. —Same—Secondary Evidence of Lost Instrument.</p> <p>After a trial had, it was agreed between the attorneys in the case that each party should withdraw his written evidence from the papers filed in the cause. At a subsequent trial defendant’s attorney offered secondary evidence of certain written instruments that he had put in evidence at the former hearing, testifying that he had intended to withdraw the originals, but did not do so, and had never seen them since the former trial. The, clerk of the court testified that he had searched for them among the papers in the case and all of the papers of his. office, and had not seen them since the former trial. Held that the secondary evidence was improperly admitted, since defendant himself, to whom, under the agreement, the custody of the instrument belonged, had not been called to testify as to their loss.</p> <p>3. —Jurisdiction of County Court — Amount—Plea in Reconvention.</p> <p>The county court is without jurisdiction of a plea in reconvention by the-defendant for an amount aggregating more than $1000, although defendant, credits plaintiff thereon with an item of $272 for which plaintiff sues, thus leaving a balance of $983 shown by the plea.</p>

<p>1. —Deed—Condition Subsequent — Forfeiture and Reversion of Title.</p> <p>Where a deed of land provided that “the above property is conveyed solely for the purpose of a gin and to be solely and only used for a gin site, and in the event it is not used for such purposes, then it is to revert to me,” and the vendee erected a' gin on the land and continued to operate it, the facts that he built a small residence house on the lot for the use of his hands, and permitted the erection thereon of a blacksmith shop, did not work a forfeiture and reversion of the title, since such use for the other purposes did not interfere with the use of the property for gin purposes.</p> <p>2. - — Same—Waiver of Conditions.</p> <p>See facts under which it is held that the grantor had waived the condition of forfeiture in the deed.</p>

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

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

<p>Appeal from Van Zandt. Tried below before Hon. J. Gr. Russell.</p>

<p>Damages — Injury to Land by Sewer — Practice on Appeal.</p> <p>Plaintiff sued a city in damages for permanent injury to Ms land caused by noxious vapors arising from a city sewer farm, and the evidence being conflicting and sufficient to warrant a verdict in the city’s favor on the ground that the sewer farm was a public necessity and skillfully constructed, and that plaintiff’s land was not damaged thereby, the judgment will not be disturbed on appeal.</p>

<p>1. — Estates of Decedents — Appointment of Temporary Administrator — Appeal to District Court.</p> <p>From an order of the county judge refusing to appoint a temporary administrator and dismissing the application therefor, an appeal may be taken to the district court.</p> <p>Ü. — Same—Appointment by District Judge in Vacation — Receiver.</p> <p>Where the district court has acquired jurisdiction by appeal from an order of the county judge refusing to appoint a temporary administrator, the district judge has authority, in vacation, to appoint a receiver of the estate upon proper showing therefor, and to confer on him such powers as may be necessary to preserve the property of the estate until the appeal can be heard and determined, and it is immaterial that the receiver is denominated a temporary administrator.</p> <p>3. — Same—Conflicting Jurisdiction of Courts.</p> <p>Under Revised Statutes, article 1844, where two courts have concurrent jurisdiction of an estate, the one in which application for letters testamentary or of administration thereon is first made is entitled to the exclusive jurisdiction. See case where the statutory rule is applied as between an application for letters in the county of the decedent’s residence, and the subsequent appointment by the court of another county of a receiver for the joint estate of the decedent and his former wife, made in connection with a suit and administration of the latter’s estate in such other county.</p>

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

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

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

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

<p>1. —Corporation—Liability for Death.</p> <p>By virtue of the statute a private corporation other than a common carrier may be held liable for injury resulting in death. Rev. Stats., art, 3017, clause 2.</p> <p>2. —Same—Fellow-Servants.</p> <p>Deceased, in the employ of an oil company, was assigned to a given piece of work, and placed, as to its discharge, temporarily under the control of C., a fellow servant, who was instructed by the company’s superintendent to station a watchout while the work was being done, but who neglected so to do. Held, that the duty of the company to protect deceased was a nonassignable one, and with reference to such protection C. represented the company, which was liable for the injury resulting from his negligence.</p> <p>3. —Same—Contributory Negligence.</p> <p>Where deceased was working as one of a gang in a place he must have known was unsafe, and heard the superintendent instruct the foreman of the gang to have a watchout for passing engines, and knew that this had not been done, it was proper to submit the issue of contributory negligence to the jury.</p> <p>4. —Negligence—Railroads—Movement of Engine — Signals.</p> <p>See evidence held not to charge a railway company with liability on the ground of negligence of its servant operating its switch engine in failing to give signals and to observe a broken cable while placing ears, etc., at an oil mill.</p> <p>5. —Damages for Death — Verdict Too Small.</p> <p>Where the deceased husband was constantly employed, earned $1.50 to $1.75 per day, contributing $300 per year to the support of the wife, was 28 years old and in perfect health, a verdict and judgment allowing the widow $500 as damages for negligently causing his death, should be set aside as insufficient, and a new trial awarded.</p>

<p>1. —Limitation—Accrual of Cause of Action — Damages—Continuing Injury.</p> <p>Where improvements made by a city in paving its streets and changing its sewers and drainage ditches caused the flow of surface water, in times of rain, to be increased beyond the capacity of a certain culvert, resulting in the overflow of plaintiff’s adjoining land, limitation did not begin to run against plaintiff’s right of action for damages from the time that such improvements were made, since the making of them was not of itself the invasion of any private right, but merely the negligent execution of a lawful right, not actionable until injury had resulted therefrom.</p> <p>2. —Same—Limitations, How Applied.</p> <p>The injury in this case being continuous, the jury were properly allowed to consider such damages, and only such, as accrued within two years next preceding the filing of the suit.</p> <p>3. —Cases Followed and Distinguished.</p> <p>Railway v. Goldman, 8 Texas Civil Appeals, 257, and City of Houston v. Parr, 47 Southwestern Reporter, 393, followed; and Waterworks Company v, Kennedy, 70 Texas, 233, and Railway v. Geiselman, 12 Texas Civil Appeals, 123, distinguished.</p>

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

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

<p>3. — Receivership Expenses — Priority of Lien — Partnership—Mortgage Lien.</p> <p>Where a receiver was appointed to wind up a partnership business at the instance of one of the partners, the expenses of the receivership were wrongly adjudged a first lien, superior to that of a mortgagee of the partnership property who had intervened in the receivership proceedings. Article 1472, Revised Statutes, has application where the receivership is at the instance or for the benefit •of the lien holder.</p> <p>'2. — Sanie—Bankruptcy—Priority of Mortgage.</p> <p>Where, pending such receivership, the partners had filed a petition in bankruptcy, and on a sale of the assets by the receiver the proceeds were less than the amount of the intervener’s mortgage on the partnership property, it was error to order such proceeds to be paid over to the trustee in bankruptcy, since the general creditors could have no interest in the fund.</p> <p>•3. — Same—Distribution of Assets.</p> <p>As intervener’s mortgage did not cover all the partnership property, which was sold together by the receiver for a gross sum, intervener was entitled only to the remainder of the proceeds of sale after deducting the value of such property as was not covered by the mortgage, and the amount received for such latter property should be applied to the cost of the receivership proceedings.</p>

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

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

<p>1. —Malicious Prosecution — Ending of Prosecution.</p> <p>■ In an action for malicious prosecution plaintiff must allege and prove that the criminal prosecution upon which the action is ba'sed has ended.</p> <p>2. —Same^-Discharge by Committing Magistrate.</p> <p>Where, in a case of ordinary felony, the committing magistrate discharges the accused, and it does not appear that the discharge was improperly procured, or that a subsequent indictment or prosecution for the same offense has been instituted, such discharge will constitute an ending of the prosecution such as will sustain an action for malicious prosecution by the accused.</p> <p>3. —Same—Good Faith of Defendant.</p> <p>In an action for malicious prosecution the fact that defendant, in making the complaint at the request of the county attorney, gave such attorney a full and fair statement of all he knew of the matters on which the criminal prosecution was based, constitutes a perfect defense; but it is otherwise where defendant failed to disclose to such attorney facts which he must have known were relevant and material.</p>

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

<p>1. —Gamer and Passenger — Assault on Passenger by Third Party on Depot Grounds.</p> <p>A person traveling by train remains a passenger, after alighting from the-train and while still on the depot grounds of the railroad company, until such a, time as may be reasonably necessary to enable him to leave the premises, and: during such time he is entitled to protection at the hands of the company’s: agents and servants against assaults by third persons.</p> <p>2. —Same—Fact Case.</p> <p>There being evidence to show that the railroad station agent knew that the-assault would be made on the plaintiff, if he did not instigate it, and that he took no steps to prevent it, and made no attempt to interfere for plaintiff’s protection! after he knew the assault was being made, a judgment against the company was; warranted.</p>

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

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

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

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

<p>1. — Partnership—Accounting—Liability Between Partners.</p> <p>In the absence of an accounting and settlement of the partnership business, •one-partner can not be held liable to another for sums paid by the latter in the course of the business, at least without showing a special agreement, or a separation of the transaction from the partnership accounts.</p> <p>'2. — Same—Set-Off—Unliquidated Damages.</p> <p>Expenses paid by one partner on account of an order wrongfully and fraudulently made by the other for the purpose of obtaining possession of partnership goods, constitutes an unliquidated demand for damages for a tort such as can not, under the statutes, be set off against a certain demand, Kev. Stats., art. 754.</p> <p>:3. — Fundamental Error — Practice on Appeal.</p> <p>Where the defect in a plea is one of substance and not of form merely, rendering it obnoxious to a general demurrer, the rule that objection thereto is waived unless made in the court below, does not obtain.</p>

<p>1. —Municipal Corporation — Notice to City of Claim for Damages.</p> <p>Where a city charter provided that before the city should be liable for any damages notice of claim therefor should be given to the city secretary or mayor in writing within thirty days after the injury, the averment and proof of such notice was a condition precedent to any recovery against the city for damages, resulting from the failure of the city’s servants to properly burn or inter refuse matter deposited by them at the city dumping ground near plaintiff’s premises, and such notice can not be dispensed with because plaintiff’s petition charged the negligence complained of as being that of the city’s servants and officers, it not being made to appear that the mayor or secretary, or any member of the city council, was a party to such acts of negligence. City of Houston v. Isaacs, 68 Texas, 111, distinguished.</p> <p>2. —Same—Negligence—Joint Liability of Citizen — Nuisance.</p> <p>Where a city assumes the duty of disposing of its refuse matter by burning- or interment, a railway company having a depot therein, which delivers the bodies of dead animals to the city servants to be so disposed of, can not, because of such delivery and the knowledge on its part that the city’s servants disregarded their duty as to making a proper disposition of such bodies, be held liable for damages resulting from their failure to properly inter or dispose of such bodies at the city dumping ground.</p>

<p>"Boundary Line — Construction of Calls — Comer on River.</p> <p>In this ease, involving the location of the boundary line of an original survey calling to run with a river from a corner on the banks of the river, there was evidence tending to locate such comer as being not on the first bank of the river, but on the second or valley bank, some distance back from the river. See the opinion for a charge held error, as on the weight of evidence, in assuming that there was a vacant strip between the river and that line of the survey, :and as misconstruing the calls by which the location of the line was to be .ascertained.</p>

<p>1. —Railway—Killing Stock — Negligence—Charge. ,</p> <p>A charge holding a railway liable for killing a cow within cor prate limits, if the train was running more than six miles per hour in violation of the rules of the company, was erroneous in assuming the rate of speed to be the cause of the injury.</p> <p>2. —Killing Stock — Public Street.</p> <p>Where an animal was killed by the train at the crossing of a public street, negligence in the management of the train must be shown, to support a recovery.</p>

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

<p>1. —Exception—Failure to Present.</p> <p>Error assigned on failure to pass on appellant’s exceptions to adverse pleadings is not available where the record does not show that they were called to the attention of the court.</p> <p>\</p> <p>2. —Executory Sale — Lien—Transfer—Deed by Vendor.</p> <p>The vendor who has retained the superior title, by reserving an express lien for the purchase money, can not, after transferring the purchase money notes, convey to another by his deed a title superior to that held under his vendee.</p> <p>3. —Statement of Facts — Rules of Court — Instruments Not Copied.</p> <p>A statement of facts which directs the cleric to copy as part thereof a judgment attached to defendant’s answer, Violates rules 86 and 74 for district courts, and does not slow the admission of evidence of such a judgment as would support an executim sale under it.</p>

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

<p>1. —Probate Sale — Collateral Attack.</p> <p>See probate proceedings held to show, as against collateral attack, that title to a land certificate passed from the estate of decedent by administrator’s sale, -though the order granting letters appeared to be for guardianship of the persons and estates of the minor heirs, rather than for administration, the county records having been burned, and it not appearing that a previous order appointing the administrator might not have been made.</p> <p>2. —Same—Administrator—Recognition by Court.</p> <p>On collateral attack upon an administrator’s sale, it seems that action of the probate court recognizing one as administrator who had given bond as such and ordering and approving sale by him would be equivalent to a formal appointment.</p> <p>3. —Same—Limitation—Color of Title.</p> <p>See record of probate sale which, if not sufficient to show title in the purchaser, constituted color of title which would support limitation under the statute of ten years. .</p>

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

<p>1. —Constitution—City Ordinance — Suspending State Laws.</p> <p>The Legislature alone can suspend State laws (Constitution, article 1, section 28) and such power can not be delegated to a municipal corporation.</p> <p>2. —Same—Railways—Signals—Ordinance.</p> <p>An ordinance of the city of Dallas prohibiting the blowing of steam whistles of locomotive engines was unconstitutional, though the city charter gave it the power to regulate trains, being in conflict with article 4507, Revised Statutes, requiring whistle signals for crossings, and thus prohibited by article 1, section 28, of the Constitution.</p> <p>3. — Railways—Crossings—Signals.</p> <p>Article 4507, Revised Statutes, requires that a locomotive whistle he blown on starting a train towards a crossing, though the train when started was less than eighty rods from the street.</p>

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

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

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

<p>1. — Practice on Appeal — Presumption as to Facts.</p> <p>Where there was no request to submit any other issue to the jury, and the answers of the jury were responsive to the issues submitted, and neither the agreed facts nor the special verdict furnished the facts necessary to form a basis •for the judgment, the court is presumed to have found the facts essential to •support the judgment, if they appear in the statement of facts.</p> <p>:2. — Building and Loan Associations — Usury—Premium.</p> <p>The premium which the by-laws of a building and loan association require to be bid on loans made by it, should be taken into consideration in determining whether the loan contract bears a usurious rate of interest. See contract of a borrowing stockholder of such association held to call for more than 12 per cent interest.</p> <p>3. —Same.</p> <p>A contract for the usurious interest due on another contract is also usurious.</p> <p>4. —Same—Original Contract Not Tainted.</p> <p>Where notes secured by a vendor’s lien were transferred to a building and loan association, and afterwards to defendant with the express provision that ■defendant should be subrogated to the rights of the original vendor, the fact that a subsequent usurious agreement was made with reference to the debt -would not affect the original contract evidenced by the notes, or the interest due thereon.</p> <p>.5. — Same—Subrogation—Credits.</p> <p>Where plaintiff subscribed to the stock of a building and loan association •and borrowed therefrom money with which to pay off a vendor’s lien on his property, agreeing with the association to pay 6 per cent per annum interest and 1 per cent per month as premium and sinking fund, the compensation thus to be paid being usurious, and subsequently the association transferred the loan to a third party with the right of subrogation under the original lien, the premium, interest and sinking fund paid by plaintiff should be credited at the time -of payment on the original note.</p> <p>■6. — Same—Eight of Offset.</p> <p>Where a building and loan association transfers notes and a lien on land to defendant, and the maker of the notes was a stockholder in the association, he would have no right, on obtaining judgment against the association for the value of his stock, to offset this against the debt so transferred.</p> <p>7. — Same—Transfer of Business — Stockholder Estopped.</p> <p>Where a stockholder of a building and loan association was present at a meeting thereof at which its property, including a debt he was owing it, was transferred to a third party, resulting in its suspension of business, and he made no objection thereto, he is estopped thereby from claiming credit for his shares of stock on such debt, he not being included by the agreement among the ■class of stockholders who were to be paid anything by such transferree.</p>

<p>Error from Dallas. Tried below before Hon. J. J. Eckford.</p>

<p>Appeal from Bexar. Tried below before Hon. John H. Clark.</p>

<p>Statement of Facts — Failure to File in Time — Diligence.</p> <p>In order to excuse a failure by appellant to file a statement of facts in time, such failure must hare resulted from causes beyond the control of appellant or his counsel, and in such cases the greatest possible diligence is essential. Where appellant’s counsel relied on a local attorney to forward the necessary papers to them in a distant county, and through delay in sending the papers and a mistake as to the date when court adjourned, such statement was ’filed one day after the expiration of the ten days allowed, the excuse was not sufficient.</p>

<p>Appeal from Bexar. Tried below before Hon. John H. Clark.</p>

<p>1. —Sale—Inspection of Goods — Warranty—Fraud.</p> <p>Where goods are sold subject to inspection, there is no implied Warranty of quality, but the maxim of caveat emptor applies; and where the buyer, with full opportunity, makes a careless inspection, or neglects to inspect at all, his position will, in the absence of fraud, be the same as if he had fully inspected.</p> <p>2. —Same—Fraud Vitiating Sale.</p> <p>Plaintiff received a carload of oranges which were shipped to him under a contract of purchase by which he had the right to inspect them as to quality before accepting them. He examined several boxes of the oranges, and finding them good, paid the shipper’s draft which accompanied the bill of lading, but while removing the oranges from the car discovered that a large proportion of them were unsound and unfit for market, and at once offered to return the •oranges to the seller’s possession, and demanded a return of the money he had paid for them and for the freight thereon, and afterwards sued to recover the same, alleging that the seller had fraudulently so loaded the car as to deceive him and induce him to accept the oranges as sound. Held that plaintiff was entitled to have the issue of fraud submitted to the jury, and a refusal of the court to so submit it was reversible error.</p>

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

<p>1. —Will—Election by Wife — Devise.of Community Property.</p> <p>The husband can not devise community property contrary to the wife's wishes; but if he attempts to do so, and she recognizes such disposition by accepting, under the will as devisee, rights she would not otherwise be entitled to, she is precluded from disputing the validity of such disposition of her community interest in the property upon the doctrine of election.</p> <p>2. —Same—Lapse of Devise — Estoppel.</p> <p>Where a testator devises certain real estate, his separate property, on which there were improvements that were community property, to his mother, but giving the first year’s rent thereon to his wife, and the mother died before the testator, the wife’s acceptance of the rent did not estop her from claiming the improvements as community property, since the devise to the mother had lapsed, and the will did not then pass any community property.</p> <p>3. —Community and Separate Property — Community Improvements — Reimbursement.</p> <p>Where community funds are used in making improvement on the separate lands of the husband, and the wife, on the death of the husband, succeeds to the rights of the community, she is entitled to reimbursement from the husband’s heirs for the funds so expended.</p> <p>4. —Same—Issue for Jury.</p> <p>Where the evidence showed that the improvements were made upon the separate real estate of the husband during the marriage, but it did not appear whether they were paid for with separate or with community funds, the question was for the jury, and it was error to refuse to submit such issue and to reject evidence as to the amount so expended on the improvements.</p> <p>5. —Same—Evidence—Statements by Decedent.</p> <p>In an action by the husband’s heirs against the wife, and upon the issue whether certain improvements on land descending to such heirs had been made with community funds, the wife could not, under the statute, testify that the deceased husband told her after their marriage that he had but very little money. Rev. Stats., art. 2302.</p> <p>6. —Same—Separate Estate Hot Chargeable by Survivor.</p> <p>Where the wife upon the husband’s death succeeded to the community property and liabilities, she was not entitled to reimbursement, by the husband’s heirs to whom separate real estate had descended, for community funds expended by her for street improvements thereon, the cost of which was not a lien on the land; nor for money expended by her for the husband’s funeral expenses, that being a community debt; nor for attorney’s fees paid by her in a contest over the husband’s will, that being her individual debt.</p> <p>7. —Will—Lapse of Legacy — Death of Devisee.</p> <p>The lapse of a devise of real estate charged with payment of a specific legacy, by the death of the devisee before the testator, does not cause the legacy to lapse.</p> <p>8. —Same—Legacy Charged with Payment.</p> <p>Where land was devised to the testator’s mother, with a specific legacy of one year’s rent to his wife, but requiring the latter to pay $150 thereof to the mother, and the devise lapsed by reason of the mother’s death before that of the testator, the $150 was held by the wife in trust for the testator’s heirs.</p> <p>9. —Tenants in Common — Expense of Insurance.</p> <p>A joint owner, who does not represent his co-owner, but holds the property adversely to him, can not legally insure the entire property from loss by fire and charge any part of the insurance expense to his co-owner against his consent.</p>

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

<p>1. —Appeal—Notice.</p> <p>That plaintiff below gave notice of appeal will not inure to the benefit of the defendant so as to entitle him, plaintiff having failed to perfect an appeal, to prosecute an appeal without notice given and have the clerk file the transcript in the appellate court.</p> <p>2. —Same—Affidavit in Lieu of Appeal Bond — Certainty.</p> <p>The same certainty is required of an affidavit of inability to give an appeal bond as is required of such a bond, and the affidavit is insufficient where it fails-to give the date of the judgment, the nature thereof and in whose favor rendered.</p>

<p>Appeal from the County Court of Collin. Tried below before Hon. J. H- Faulkner. '</p>

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

<p>1. —Contributory Negligence — Looking and Listening Before Crossing Track.</p> <p>Where a passenger is required to cross a railway company’s intervening-tracks in order to. take the train or leave it, it is not negligence per se for him not to look and listen for approaching trains, since he has the right to assume-that the company will so' regulate its trains that the road will be free from obstructions and danger when passenger trains stop at the depot to receive or-deliver passengers.</p> <p>2. —Charge Not on Weight of Evidence.</p> <p>A charge setting forth plaintiff’s side of the case, and instructing that if" the jury found certain facts, they should return a verdict for the plaintiff, is. not on the weight of the evidence. See illustration.</p> <p>3. —Same—Statutory Signals at Crossing.</p> <p>A charge that if plaintiff “had no notice” of the approach of the train that, struck him while attempting to cross the railway track near the station to board a train, he could recover, was not error on the ground that the evidence showed the defendant had given the statutory signals, since these relate to public crossings, and not the passengers about to board a train at a station.</p>

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

<p>1. —Contributory Negligence — Injury to Employe — Charge.</p> <p>A charge is erroneous which instructs, in an action by an employe for personal injury resulting from a collision of handcars, that if plaintiff was negligent, and the defendant was also' negligent, and defendant’s negligence concurred! with that of plaintiff and his fellow-servants • on the car, and contributed to the injury, then defendant would be liable, since plaintiff could not recover if his negligence contributed to his injury.</p> <p>2. —Same—Burden as to Negligence.</p> <p>A charge that if plaintiff’s negligence, or that of his associates operating-the ear with him, was the cause of the injury, and was not contributed to by the negligence of the defendant, then defendant should recover, was erroneous, as placing too great a burden on defendant to show that its negligence did not. contribute to the injury.</p> <p>3. —Same—Charge Too Limited as to Defendant’s Negligence.</p> <p>A charge that if plaintiff’s violation of a rule of the defendant company as to the manner of running the handcar caused the injury, and the injury was. not contributed to by negligence of the defendant in' regard to the brake or wheels of the car, then plaintiff could not recover, was subject to the criticism that if such violation of the rule by the plaintiff caused the injury, he could not recover, even though the injury may have been contributed to by the. [other] negligence of the defendant.</p>

<p>1. —Appeal—Time Within Which to Take — Entry of Judgment Nunc Pro Tunc.</p> <p>Where a party has procured the entry of a judgment nunc pro tune in the trial .court, the time of the adverse party’s right of taking an appeal or writ of error dates from the actual entry of, or perfecting of, the judgment, and not from the original date of its actual rendition.</p> <p>2. —Writ of Error — Service—Acceptance by Attorney in Fact.</p> <p>It seems that the authority of a party to accept service of a writ of error for his coplaintiffs is sufficiently made to appear where the written acceptance disclosed that he represented them as attorney in fact, and the record showed that he had so acted for them from the inception of the suit.</p> <p>8. — Same—Failure to Serve One Party — Dismissal.</p> <p>A motion to dismiss a writ of error must be sustained where one of the parties plaintiff to the judgment sought to be reviewed is not served with the writ, and is a party whose rights would necessarily be affected by the proceeding.</p>

<p>1. —Railway Company — Negligence—Injury to Person on Track.</p> <p>See evidence warranting a verdict against a railway company for injury to plaintiff, struck by a train while walking on and along a part of the railway track long used without objection by the public as a foot path.</p> <p>2. —Same—Signals at Crossing — Contributory Negligence.</p> <p>It was admissible in such an action to show that it was the usual and known custom for trains to signal for a station and two road crossings, all of which were not far behind where plaintiff was at the time he was struck, and that the signals were not given in this instance, since this bore on the issue of whether or not plaintiff was guilty of contributory negligence in failing to look back for the approach of the train.</p> <p>3. —Same—Failure to Signal as Negligence.</p> <p>Such evidence was also admissible on the issue of' whether or not defendant’s employes were using ordinary care at the time in the operation of the train; and the court therefore properly refused to charge that the signals customarily given at crossings and stations are intended only as notice to persons at the station or intending to use the crossings.</p> <p>4. —Same—Trespasser on Track — Customary Use.</p> <p>Plaintiff was not a trespasser in walking on and along a part of defendant’s railway track that had been used by the public as a foot path for twenty-five years without objection to such use by defendant.</p> <p>5. —Damages for Personal Injury — Verdict Not Excessive.</p> <p>A verdict of $12,500 in plaintiff’s favor, while deemed large, is not so excessive as to warrant the appellate court in setting it aside, — plaintiff being a healthy man, 52 years old, earning $1.75 to $3 per day, in addition to what he made on his farm, and the injury being permanent and such as to totally incapacitate him for work, besides causing him a great deal of pain.</p> <p>■6. — Juror—Disqualification—Objection Too Late.</p> <p>Objection to a juror on ground of disqualification, in that he was neither a freeholder nor a householder, comes too late when first urged after verdict, although the disqualification was not known before, and the juror had answered on his voir dire that he was qualified, since it is the duty of parties to inform themselves of the qualifications of the jurors so as to make such objection at the time they are being impaneled.</p>

<p>Costs — Correction After Judgment on Appeal.</p> <p>Plaintiff having been allowed to withdraw his announcement of ready for trial and to have a continuance of the case, was by order of the court taxed with all costs up to that time, and to this order no exception was taken. After trial of the case and on appeal by plaintiff judgment was rendered in his favor by the appellate court, and that he recover all costs both in the court below and on appeal, but the order taxing him with the costs prior to the continuance was not considered on appeal. Held, that plaintiff remained liable for such costs, and that a motion by defendants in the trial court, after mandate filed there, was the proper remedy to prevent the clerk from taxing them with the entire bill of costs.</p>

<p>"1. — Jurisdiction of Court of Civil Appeals — Habeas Corpus.</p> <p>The Court of Civil Appeals has no original jurisdiction to issue a writ of habeas corpus to determine the right to the custody of minor children.</p> <p>2. — Same—Mandamus.</p> <p>The Court of Civil Appeals is without jurisdiction to issue the writ of man•damus to compel a district judge to grant and hear an application for a writ of ..habeas corpus to determine relator’s right to the custody of minor children, where such application is an attempt to have a judgment of the district court in a divorce suit reviewed in that manner, instead of by appeal.</p>

<p>1. — Trust—Statute of Frauds — Parol Evidence.</p> <p>The statute of frauds does not apply to trusts arising directly from an express contract, nor to implied or constructive trusts, and the contract by which an express trust is created, or the facts from which an implied trust will result, may alike be proven by paroi.</p> <p>:2. — Same—Legal Title Held in Trust.</p> <p>Where three joint creditors took a trust deed in the name of one of them •only, and it was foreclosed under an oral agreement by which the one named therein was to purchase the property for the benefit of all, the price bid being •credited on the joint debt, the purchaser held the legal title to a two-thirds interest in the property in trust for the benefit of such other creditors.</p>

<p>1. — Railway—Negligence—Fire Set by Engine — Burden of Proof.</p> <p>Where, in an action for damages to property caused by Are charged to have been set out by sparks from a passing engine, the evidence was conflicting as to the cause of the Are, it was proper for the court to instruct that if the jury found from the evidence that the Are was caused by sparks from the engine, then, upon the issue of the condition of the spark arrester and the proper handling of the engine, the burden of proof was on the railway company.</p> <p>8. — Same—Allegata and Probata — Measure of Damages — Improvements as Part of Realty.</p> <p>Where plaintiff’s petition charged that the improvements destroyed by fire set from defendant’s engine were part of the realty, which was thereby damaged in a gross sum, and the evidence was conflicting as to whether the property had a market value, but tended to show the reasonable cash value of the improvements, .'it was error for the court to charge that if the real estate had no market value, then the reasonable cash value of the property destroyed must be the measure of damages, since this allowed plaintiff to recover the value of the improvements, without reference to the effect of their destruction upon the value of the property as realty.</p> <p>3. —Same—Rule of Damages — Market Value.</p> <p>In such case the measure of damages would be the "difference between the value of the realty just before and just after the fire, whether that value be made to appear by showing its market value, or, in the absence of any market, the reasonable cash value of the property.</p> <p>4. —Evidence of Market Value.</p> <p>Where a witness had testified to the market value of property, and upon cross-examination admitted he did not know its market value, a motion to exclude his testimony should have been sustained.</p>

<p>1. —Judgment—Disqualification of Justice of the Peace.</p> <p>Under section 11, article 5, of the Constitution, a judgment rendered by a justice of the peace who is interested in ,the suit, and has been of counsel in the case, is utterly void.</p> <p>2. —Same—Void Judgment Enjoined — Defenses.</p> <p>Where a judgment is void its enforcement will .be enjoined without reference to any defenses that might have been made to the cause of action.</p>

<p>Appeal from Grayson. Tried below before Hon. Rice Maxey.</p>

<p>1. —Deed—Description—Limitation.</p> <p>The description of land in a deed is sufficient for the conveyance to support the plea of limitations where the land is described as “1000 acres of land off. of the lower part of the league of land originally granted to D. H. and situated in H. County, Texas; said tract of 1000 acres fronting on the river and running back to the western boundary of the league for quantity” where the .southern and western boundaries of the league are straight lines, and the southwest corner a right angle, and the river forms the eastern boundary, since a surveyor could from this description locate the northern boundary of the 1000-acre tract by running a line from the river west to the west line of the league at a point far enough up on the river and west line to leave the quantity of acres called for south of the line so run.</p> <p>2. —Limitations—Possession Under Recorded Instrument — Lease.</p> <p>One can not claim by limitation under an instrument executed by himself; and where defendant held part of a tract of land under a deed duly recorded, he could not extend his holding to the balance of the tract never in his actual possession by executing a lease of the whole tract to his tenant.</p> <p>3. —Same—Possession Mot Constructively Extended — Two Deeds.</p> <p>Where a party had adverse possession of part of a league of land under a deed thereof until title was acquired by limitation, and he afterwards took a deed to another part of the league, but did not take actual possession of such "other part, the possession of the first tract was not to be extended by eonstruc- ■ tian so as to include the tract described in the second deed. .</p>

<p>1. —Assignment of Error.</p> <p>An assignment of error not followed by any proposition, and which alleges merely that “the special findings of the jury were not, sufficient to authorize the judgment,” will not be considered, because too general and not in itself a proposition.</p> <p>2. —Same—Case Tried on Special Issues.</p> <p>Where the case was submitted below on special issues, an assignment of error predicated on the trial court’s refusal to submit certain other special issues as requested, can not be sustained where the record does not show that appellant, as required by the statute, requested the court in writing to submit such other issues. Bev. Stats., art. 1331.</p> <p>.3. — Trust—Repudiation—N otice.</p> <p>Plaintiff, having bought land from a county under a contract which provided that upon default in payment of the purchase money the sale might be ■canceled by the county, deeded the land to defendants under an agreement that Be should pay the purchase money to the county, procure a deed to himself, and reconvey the land to plaintiff’s son in trust for her, taking notes which would give an extension of time. Defendant applied to the commissioners court for the deed, but it was refused, after which he told plaintiff’s son that he would .have nothing more to do with the matter, but did not notify plaintiff, or reconvey to her, and subsequently, upon a cancellation by the commissioners court of the contract of sale for nonpayment by plaintiff of the purchase money, defendant bought the land from the county for the balance of principal and interest •due-thereon by plaintiff, and as defendant had previously agreed with the court to do. Held, that the trust relation between plaintiff and defendant continued -to exist, and by virtue thereof defendant’s purchase from the county inured to plaintiff’s benefit.</p>

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

<p>1. —Contributory Negligence — Employe Riding on Lumber Train.</p> <p>Where plaintiff was an employe of a lumber company, and, desiring to go to its mills and get his pay, obtained proper permission to ride on a railway logging train owned and operated by the company, he was not guilty of contributory negligence in so going on the train, although he knew the cars were not built for the carrying of passengers, and that the track was not kept in the best condition.</p> <p>2. —Railway Company — Operation—Liability.</p> <p>A lumber company, for the purpose of getting logs to its mill, built a railroad extending out seven miles, and in order to procure a division of freight rates with other railroads, they incorporated as a railroad company, the members of the lumber company being the sole incorporators of the railroad company, but the lumber company operated the railroad, and no transfer of the road or rolling, stock was ever made by it to the railroad corporation. Held, that the lack of such transfer and of actual control by the railroad corporation did not exempt it from liability as a railway corporation for personal injuries received by an employe of the lumber company while riding over the road, — such injuries resulting from the negligence of the train operatives and the bad condition of the road.</p>

<p>1. —Contract for Sale of Land — Waiver of Forfeiture — Default in Payments.</p> <p>Where a contract for the sale of land provides for its forfeiture for default of payment by the vendee .of any of the installments of purchase price due thereunder, the vendor waives the forfeiture and his right to recover the land itself by indulging the vendee in the payment of the installments, and insisting on their payment after they are due.</p> <p>2. —Usury—Purchase Money Advanced — Addition to Price a Device.</p> <p>Where defendant agreed with the owner of a lot to purchase it at a fixed price, and plaintiff agreed to furnish defendant the money with which to pay for it, to be secured by a lien on the property, and the owner thereafter conveyed the lot to plaintiff and he to defendant, but adding a further sum to the agreed price as additional compensation or premium for the use of the money, and taking notes of defendant for the whole amount bearing 10 per cent interest, the addition of such further sum to the price was a mere device to cover usury, and plaintiff was entitled to recover only the original price. ■</p> <p>3. —Same—Charge—Issue—Estoppel by Request.</p> <p>Where plaintiff requested special instruction upon the issue of usury, he can not be heard to complain that the pleading of the defendant did not authorize the submission of such an issue.</p> <p>4. —Same—Costs—Tender.</p> <p>Where usury was the sole question in the ease, and the suit was commenced after defendant had tendered the full amount for which he was liable, the plaintiff was properly charged with all the costs.</p> <p>5. —Evidence—Contradicting Witness — Motive—Charge of Court.</p> <p>Where defendant testified to a certain fact in his favor, but did not remember he had so testified on a former trial; plaintiff could not, for the purpose of showing a motive for change in defendants testimony, put in evidence the charge-given at the former trial and instructing that there was no evidence of such fact, nor was the charge admissible to contradict defendant, since it was not. itself evidence of what the testimony was at the former trial, and there was no-proof offered to show that defendant’s testimony was different from what it was. before.</p>

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

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

<p>1. —Probate Sale of Land — Application to Sell — Land Certificate.</p> <p>An application by an administrator for an order of corut to sell “all the property” of the estate in his hands, where the only property mentioned, besides certain town lots, was described as “a certificate calling for 320 acres of land, No. 88, third class, which had been located in M. County and patented,” is, as to such latter property, an application to sell land, and not a land certificate or mere chattel. See opinion for probate proceedings held sufficient to identify the land sold, and to sustain the validity of the sale and administrator’s deed thereof.</p> <p>2. —Same—Administrator’s Deed — Recitals.</p> <p>Where a sale of land was ordered and approved by the probate court, the deed of the administrator, acknowledged thereafter, was sufficient to pass the title, without reciting the source of the power, or his official capacity.</p> <p>3. —Same—Decedents’ Estates — Application for Letters of Administration.</p> <p>The failure of an application for letters of administration to show that the intestate died possessed of an estate to be administered was not fatal to the jurisdiction of the probate court, where there was such estate, and the necessity for administration existed and was shown in the application.</p>

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

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

<p>Appeal from Tarrant. Tried below before Hon. Mike E. Smith.</p>

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

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

<p>Appeal from Wichita. Tried below before Hon. A. H. Carfigan.</p>

<p>1. —Pleading—Averment Upon Information and Belief.</p> <p>Where plaintiff, the purchaser, suing for the cancellation of an executory contract for the sale of land, charged the fact to be that defendant had no title to the land, it did not destroy the effect of the material fact so averred that it was charged “upon information and belief.”</p> <p>2. —Same—Alternative Pleas — Cancellation and Enforcement of Contract.</p> <p>Where a purchaser of land under an executory contract brought suit to cancel the contract and recover payments made thereunder, and for improvements made on the land, alleging that the defendant vendor had no title to the land, and praying in the alternative for' a reformation and enforcement of the contract in the event that the title should be found good, the pleading was not subject to demurrer as being inconsistent or contradictory because seeking both to annul and enforce the contract, since such form of pleading in the alternative is permissible under our blended system.</p> <p>3. —Contract—Sale of Land — Rescission—Possession—Damages—Sequestration.</p> <p>Plaintiff purchased land under an executory contract providing that upon default in any payment the vendor should have the right to declare the contract forfeited and resume possession, and thereafter plaintiff, being erroneously informed that his vendor had no title, made default in payment and brought suit for rescission of the contract and adjudication of his equities, tendering the vendor repbssession of the premises. Subsequently plaintiff was dispossessed -under sequestration proceedings regular in form sued out by the vendor, plaintiff having refused to surrender possession until his claims and equities were adjusted. Held, that a charge was erroneous instructing that plaintiff was entitled to retain possession until the vendor had returned the purchase money already received and had paid plaintiff for improvements he had placed on the land, and also erroneous in authorizing a recovery of damages by plaintiff for being lawfully dispossessed under the writ of sequestration.</p> <p>4. —Same—Default—Time—Equitable Relief.</p> <p>But a peremptory instruction to the jury to return a verdict for defendant vendor upon all the issues was properly refused, since the mere fact that plaintiff, without sufficient cause, but through an honest mistake and not willfully, had failed to make payment at the time specified in the contract would not necessarily prevent the administration of equitable relief in his behalf, if he had acted as would a person of reasonable prudence and diligence under the circumstances.</p>

<p>Appeal — Transcript Insufficient — Dismissal.</p> <p>Where the appeal bond purports to perfect an appeal from the original judgment, while the transcript purports to contain only the proceedings had on the trial of a motion to correct the judgment and retax the costs, — in legal effect a motion for new trial, — and the judgment is found only in the statement of facts proven on the hearing of that motion, the appeal will be stricken from the docket for want of a transcript of the record.</p>

<p>1. —Homestead—Urban or Rural.</p> <p>One can not have an urban and a rural homestead at the same time; but whether the particular place of residence is urban or rural is generally a question of fact; it may be rural though within jurisdictional limits of a municipal corporation; or urban when within the limits of a town or village not incorporated, though not platted, numbered, or designated as a lot.</p> <p>2. —Same—Question of Fact.</p> <p>See evidence under which it was error to hold that the place of residence in. an unincorporated village, and upon ground not platted or numbered in lots, was. in law a part of a rural homestead, and to include in the exemption with it farm property ten miles distant, situated in another county, and rented out for the support of the family.</p> <p>3. —Homestead—Use—Renting.</p> <p>Whether urban or rural, the homestead must be used as a residence or place of business; and property remote from the residence does not become homestead, as matter of law, by being rented out and the proceeds used for the support of the family.</p>

<p>1. —Abatement—Order of Pleading.</p> <p>Pleas in .abatement for misjoinder of parties and of causes of action are waived unless presented in due order.</p> <p>2. —Sale—Shipper and Consignee — Draft With Bill of Lading.</p> <p>Where a seller shipped goods to the buyer, over several lines of railway,, attaching bill of lading to draft for the price, it was error, in a suit by the purchaser against the last carrier and the shipper for the value of the goods, which were delivered spoiled, to instruct a verdict for the carrier and against the shipper if they were spoiled before reaching the hands of such last carrier.</p> <p>3. —Same.</p> <p>On shipment of. goods between buyer and seller with draft for price attached to bill of lading and to be paid before delivery, the goods remain the property of the shipper during transit, and an action for damages to them should be by him and not by the consignee.</p>

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

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

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

<p>Error to the County Court of Brown. Tried below before Hon. R. P. •Conner.</p>

<p>1. —Special School Tax — Foreclosure—Pleading.</p> <p>In an action to recover a special school tax assessed on property within the limits of an independent school district and to foreclose lien for same on real estate, it was necessary to allege that the land in question lay within the limits of the district; this is not covered, against general demurrer, by the allegation that the tax was duly and legally levied and assessed.</p> <p>2. —Same—Election.</p> <p>A petition to recover a district school tax levied in pursuance of vote, should, it seems, allege that the electors voting it were property tax payers within the district.</p> <p>3. —School Tax — Constitutional Law.</p> <p>Article 541c, Sayles’ Statutes, 1879, conferring on towns and villages incorporated for school purposes only the power of levying school tax, is not void as contravening article 7, section 3, of the Constitution.</p>

<p>1. —Jury—Waiver of Objection.</p> <p>A party who consents to the resetting of a jury case (which could not be tried on the day set for hearing) for a day for which it was known that no jury had been drawn, waives objection to the selection of a jury from a panel to be then summoned by the sheriff, and not selected in the regular manner.</p> <p>2. —N egligence — Evidence.</p> <p>Proof of an advertised excursion and the presence of a large crowd at the station, was admissible on the issue of negligence of the railway company in running over plaintiff, as bearing on the care to be exercised by it under the circumstances.</p> <p>3. —Harmless Error — Exception.</p> <p>Error in overruling special exceptions to and admitting evidence of allegations as to the crowded condition of a waiting room, which was held to have no connection with an injury to a person crossing the tracks, was not ground for reversal in the absence of probable prejudice to defendant from such ruling.</p>

<p>1. —Carriers—Damage to Baggage.</p> <p>Where, in an action against a carrier for damages to baggage, the jury could not under the evidence separate any damage done thereto before its delivery to the carrier from that which might have occurred afterward, defendant was entitled to a verdict, if it appeared that the articles had not been delivered to it in good condition, and in such case it would not have been proper to give a charge which contemplated a separation of the damages.</p> <p>2. —Argument of Counsel — Reversible Error.</p> <p>Where the evidence showed that defendant’s agent, who was also one of its material witnesses, had merely inquired of plaintiff’s witnesses what they knew about whether plaintiff’s trunks had been delivered to defendant carrier wet or dry, it was reversible error for the court to pointedly refuse to restrain plaintiff’s counsel from stating to the jury that such agent had attempted to “fix the witnesses.”</p>

<p>1. — Life Insurance Policy — Evidence of Forfeiture.</p> <p>Where a life insurance policy lapsed, and in the renewal contract the insured .admitted that the policy had been forfeited for nonpayment of the premium, it was permissible for the president of the insurance company to testify that the ■condition as to payment of premiums was not complied with by the insured, .and that the acknowledgment of forfeiture upon the part of the insured was ¡stated in the certificate of health and the renewal contract.</p> <p>.2. — Same—Knowledge of Agent as Notice.</p> <p>A banker holding for collection claims for premiums due on an insurance policy and also a renewal contract to which he was to obtain the signature of the insured, is not such an agent of the insurance company as that knowledge on his part of the falsity of the insured’s statements in the renewal contract, mot obtained by him while acting in the company’s business, would be notice to ■the company.</p> <p>3. —Same—Renewal—False Statements as Warranties.</p> <p>Where a life insurance policy was forfeited, and the certificate of health and renewal contract, signed by the insured, stated that the declarations therein were made to obtain a renewal and reinstatement of the policy, and as a basis-for such reinstatement, such declarations were warranties, and whether material or not, their falsity would render the renewal contract void.</p> <p>4. —Same—Material Misrepresentations.</p> <p>Declarations in the renewal contract that the insured had not had any injury, sickness, or ailment of any kind, and that he .had not consulted with or been prescribed for by any physician, or received any medical treatment since-the date of the original application for insurance, even if they were mere representations, were material, and their falsity vitiated the renewal contract.</p> <p>5. —Same—Reinstatement—Contestability.</p> <p>Where an insurance policy which provided that it should be incontestable-after five years was forfeited for nonpayment of the premium, it was again subject to forfeiture because of false statements made by the insured to obtain-a reinstatement thereof.</p> <p>6. —Same—Law of Foreign State — Presumption.</p> <p>Where an insurance policy provides that it is to be construed under the law of another State, and no proof is made as to what is the law of such other State, it will be presumed the same as the law of this State.</p>

<p>Error from Dallas. Tried below before Hon. J. J. Eckford.</p>

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

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

<p>Appeal from El Paso. Tried below before Hon. J. M. G-oggin.</p>

<p>1. —Office—County School Superintendent — Abolition—Unexpired Term.</p> <p>Where a county commissioners court has, as authorized by the statute, abolished the office of county superintendent of public instruction, an incumbent of the office then serving by appointment of such court to fill a vacancy has not the right to serve out the unexpired term, since the reservation of such right in the statute is restricted to cases where the county superintendent serving at the time of the abolition was elected to the office. Rev. Stats., art. 3930.</p> <p>2. —Same—Office Is Not Property.</p> <p>Within the meaning of the constitutional provision against depriving persons of property without due process of law, a public office is not property.</p>

<p>1. — Judgment—Collateral Attack — Citation by Publication.</p> <p>Where defendant was cited by publication to appear before the justice court) on October 23, and the date of the last' one of the four weekly publications was -October 21st, less than a week previous to the return day, the service was good for the ensuing November term, and a judgment entered at the December term was not subject to collateral attack because there was no order entered continuing the case over to the December term.</p> <p>3. — Same—Service—Death of Partner.</p> <p>In a collateral attack upon a judgment rendered against the person attacking it, and also against two others sued as partners, the fact that one of such partners was not served with citation because he was dead, would not affect the validity of the judgment.</p> <p>3. —Same—Date of Entry — Parol Evidence.</p> <p>Nor, in such case, would paroi evidence be admissible to contradict the record as to the date of entry of the judgment.</p> <p>4. —Same—Nonresident—Seizure of Property — Jurisdiction.</p> <p>In an action to foreclose a lien brought against a nonresident by publication, it is not essential to the jurisdiction of the court that there should be, before judgment, a seizure of the property under a writ.</p> <p>5. —Same—Jurisdictional Amount — Foreclosure of Lien.</p> <p>The amount of the debt sued for in the justice court determines the jurisdiction, and not the value of the property upon which it is also sought to foreclose a lien securing the debt.</p>

<p>1. —Carriers of Freight — Statutory Penalty — Discrimination and Delay.</p> <p>Where, in an action for the statutory penalty for unjust discrimination on the part of defendant company in failing to promptly forward a car of salt tendered it by a connecting line, it was not claimed that there was no delay, the court properly directed a verdict for the plaintiff, since the statute expressly declares that delay shall constitute discrimination. Rev. Stats., arts. 4574, 4575.</p> <p>2. —Same—Tender of Original Car to Connecting Line.</p> <p>In an action against a railway company for discrimination and delay in failing to receive and forward a car of salt tendered it by a connecting line, it was no defense that the salt was not tendered in the car in which it was originally loaded.</p> <p>3. —Same—Sufficient That Car Is Suitable.</p> <p>Nor was it a defense that the car tendered was a refrigerator car, not commonly used for the transportation of salt, it appearing that such car was adapted to the use to which it was so applied in this instance.</p> <p>4. —Same—Cumulative Penalties — Railroad Commission Law.</p> <p>Where plaintiff presented a case entitling him to recover against a common carrier, under Revised Statutes, article 4575 (the Railroad Commission Law), the penalty there declared for unjust discrimination, he may so recover, irrespective of whether or not the prior law, embodied in article 4496 and declaring a penalty against railroads for delay in shipping freight, was repealed by the commission law, since article 4581 (part of the commission law) provides that such law shall not release any right of action for any right or penalty which may have arisen or may thereafter arise under any law of this State.</p>

<p>Judgment — Mutuality—Estoppel.</p> <p>For a judgment to create an estoppel, it is essential that its operation be mutual; and where appellant was not a party to an action in which appellee R., as trustee for one bank, asserted and successfully maintained the priority of a certain trust deed, appellant can not invoke the judgment therein to estop R., as receiver for another bank, from attacking the validity and priority of the trust deed in a subsequent and different action.</p>

<p>Appeal from Hunt. Tried below before Hon. R. L. Porter, Special Judge.</p>

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

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

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

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

<p>1. —Garnishment—Replevin Bond.</p> <p>Where the defendant in an action in which a writ of garnishment has been issued and served executes to the plaintiff a replevin bond conditioned, as required by the statute, for the payment of any judgment that may be rendered against, the garnishee, the effect of such bond is to release the garnishee from liability to» the plaintiff in ■ garnishment, and a judgment thereafter entered against him as garnishee is unauthorized.</p> <p>2. —Same—Limitations—Maturity of Obligation.</p> <p>Where defendants, having been garnished for a debt they owed T., executed to him an instrument in writing agreeing to pay him the amount of such debt upon their discharge from all liability in such garnishment, and T. executed a statutory replevin bond in the garnishment proceeding, this had the effect, since it released the garnishees from all liability as such, to at once mature such written obligation, and an action begun thereon more than four years afterwards was barred by limitation.</p>

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

<p>1. — Mechanic’s Lien — Pleading.</p> <p>Where, in an action against the husband and wife to enforce a mechanic’s lien on homestead property, the petition merely alleges in general terms that . defendants executed a joint mechanic’s lien on the property, it is subject to special demurrer, since the manner in which a statutory lien has been created must be alleged in an action for its foreclosure.</p> <p>2. — Same—Homestead—Waiver.</p> <p>A waiver by the husband of all claims for damages against the contractor (plaintiff) for failure to comply with the contract in building the house would not affect the right of the wife to assert the invalidity of the mechanic’s lien if the property was homestead, and no liability had in fact attached by reason of plaintiff’s failure to substantially comply with his contract.</p> <p>3. — Same—Breach of Contract by Builder — Lien Lost.</p> <p>Where the builder fails to comply substantially with his contract, his right to maintain an action to enforce the mechanic’s lien is lost, and his remedy, if any, is upon a quantum meruit.</p>

<p>Appeal from Dallas. Tried below before Hon. T. F. Hash.</p>

<p>1. —Guardian and Ward — Appointment—Final Order — Appeal to District Court.</p> <p>The denial by the probate court of an application to set aside the appointment of a guardian for a minor and to appoint the applicant as guardian, is a final order from which an appeal may be taken to the district court.</p> <p>2. —Same—Sureties Need Not Appeal.</p> <p>It was not necessary that the sureties on the cost bond of the applicant in such proceeding should give notice of appeal, or be made parties thereto.</p> <p>3. —Same—Appeal Without Bond.</p> <p>Under the terms of Article 2789, Revised Statutes, the applicant in such a proceeding in guardianship had the right to appeal without giving bond, although the subject matter was of personal interest to himself.</p> <p>4. —Probate Court — Power to Set Aside Order of Former Term.</p> <p>The probate court may, like other courts of general jurisdiction, revise and set aside its orders and judgments made at a former term upon a direct proceeding for that purpose and sufficient grounds shown therefor.</p> <p>5. —Same—Motion to Set Aside — Grounds For.</p> <p>A motion to set aside an order of a former term appointing a guardian is a direct proceeding, and an averment therein that the order of appointment was made without due notice given of the application for appointment presents a sufficient ground.</p> <p>6. —Presumption on Appeal — Trial De Novo in District Court.</p> <p>Where, on appeal to the district court from an order of the probate court denying a petition for appointment as guardian, the conclusions of fact found by the district court recite that, the cause having been submitted on a transcript of the proceedings in the probate court without additional testimony, the court adopts so much of the transcript as shows and states the orders, proceedings, and judgments as the findings of the district court, in the absence of any bill of exceptions it will be presumed that such proceedings were had by agreement o£ the parties, and that the trial in the district court was had de nova as contemr plated by the statute.</p> <p>7. —Same—Statement of Facts Necessary.</p> <p>Where, on appeal from the district court in such guardianship pioceedings, there was no statement of facts, but certain pleadings and proceedings purporting to have been filed and had in the probate court, were copied into the record, but not agreed to by counsel, nor certified by the judge, nor approved by him as the facts produced at the trial, such matters will not. be considered, and it will be presumed that there was sufficient evidence submitted to the court to support the judgment.</p>

<p>1. —County Court — Guardianship—Allowance in Lieu of Exemption.</p> <p>The statute does not confer authority upon the county court while sitting in a guardianship case to set aside to minor children, out of the estate of a deceased person, the homestead or other exempt property, or make allowances in lieu thereof.</p> <p>2. —Consolidating Cases — Immaterial Error.</p> <p>A party can not complain of an order consolidating cases where he has not been injured thereby, his claim being wholly untenable.</p> <p>3. —Mortgage—Homestead—Estoppel.</p> <p>See the opinion for facts relative to a mortgage of separate property of the wife, formerly occupied as a homestead, and the mortgage made after the husband and wife had removed out of the State, held to create an estoppel good" against the claims of minor children of the wife to whom she had devised the property.</p> <p>4. —=Same—Remedy of Mortgagee — Decedent’s Estates.</p> <p>Where a mortgagee of realty, the mortgagor having died, has presented, within the prescribed time, his claim to the administrator, and it has been rejected, his only remedy is by suit in the district court to establish and enforce his lien, and an order of the county court setting aside the property to minors in lieu of the statutory exemptions will not operate as a bar to such foreclosure •suit where the mortgagee has not presented his claim to the administrator at the time such mortgage was made.</p> <p>5. — Same—Jurisdiction—Enforcement of Mortgage Lien — Decedent’s Estate.</p> <p>Where a mortgagee of realty, seeking to protect and enforce his lien, was a party to a guardianship proceeding in the county court which was appealed to the district court and there consolidated with administration proceedings on appeal, and the district court entered an order establishing his lien and certifying its judgment to the county court for observance, such judgment was correct; and whether the district court had jurisdiction in that proceeding to determine whether the lien was superior to the rights of the minors is immaterial, since, if it had not, the issue can be settled in the county court when the mortgagee attempts to there have the property subjected to his lien.</p> <p>6. — Parties—Trustee—Objections Too Late.</p> <p>The fact that the trustee in a deed of trust was not made a party can not be taken advantage of where the question is not raised until after trial..</p>

<p>Appeal from Harris. Tried below before Hon. Charles E. Ashe.</p>

<p>Pleading — Affirmative Relief — Demurrer—Error Not Harmless.</p> <p>The fact that evidence to sustain a plea which set up matter of estoppel was also admissible under the general denial, did not render error in striking ■out the plea harmless where it contained a prayer for affirmative relief which "the pleader had the right to interpose, and which could not be successfully interposed unless the facts were pleaded on which it was predicated.</p>

<p>1. —Mechanic’s Lien — Pleading in Reconvention — Damages for Delay.</p> <p>See cross-bill and plea in reconvention in an action to enforce a material-man’s lien held to show, as against a general demurrer, a good cause of action by the owner of the building against the contractor and sureties on his bond for damages resulting from failure to complete the building within the stipulated time.</p> <p>2. —Same—Payments—Sureties—Release.</p> <p>Where by the terms of a builder’s contract the owner was allowed to retain 25 per cent of the price until completion of the building, his payment of the entire amount was not such a change in the contract as would release the sureties on the contractor’s bond.</p> <p>3. —Same—Fixing Lien for Material — Itemized Account — Dates.</p> <p>The filing with the county clerk of. an itemized account for material furnished in the construction -of a building is insufficient to fix a lien where the account does not state the dates at which the material was furnished, since it does not show that such filing was within ninety days from the accrual of the indebtedness, as required by the statute. Rev. Stats., arts. 3296, 3309.</p> <p>4. —Same—Account Rot Itemized.</p> <p>An account by a materialman against the contractor for material furnished, filed for the purpose of fixing a lien on the building, and specifying as follows: “Bill of sash and doors, per contract, $640; to bill of mill work (contract), $175,” — was not sufficiently itemized to fix any lien as against persons not parties to the building contract.</p>

<p>1. —Railroads—Lien for Traffic Balance.</p> <p>The lien given by statute to secure a traffic balance due by any railroad to a connecting road interchanging business with it, is not to be restricted to the same species of property covered by the statutory laborers’ lien, but extends to all the property of such railroad, including town lots received by it as a bonus and held for sale. Rev. Stats., art. 4538.</p> <p>2. —Same—Priority of Lien of Receiver's Certificates.</p> <p>Where the receiver of an insolvent railroad under orders of court issued receiver’s certificates to repair and operate the road and pay expenses of the receivership, such certificates are a lien superior to the lien securing a traffic balance due a connecting road even, as to town lots not used by the road in its business, in the absence of an affirmative showing that the indebtedness covered by the certificate did not inure to the benefit of such lot. Garrett, Chief Justice, dissenting.</p> <p>3. —Same.</p> <p>Where receiver’s certificates were issued under order of court to satisfy pay roll indebtedness incurred prior to the appointment of the receiver, and were by the order made a lien on the property, the lien in favor of the traffic balance due the connecting line was, as to the town lots, superior to the lien of such certificates, in the absence of evidence showing that the payment of such antecedent indebtedness was essential and necessary to the operation, preservation, or management of the property by the receiver.</p> <p>4. —Same—Order Held to Carry Lien.</p> <p>Where the order of court for the issuance of receiver’s certificates to satisfy pay roll indebtedness did not expressly give them a lien, but provided that they should be of like character as other certificates previously authorized and which were by order secured by lien on the property of the railroad, the pay roll certificates were also secured by the same lien.</p> <p>5. —Same—Priority of Liens — Res Adjudicata.</p> <p>Where the order of court for the issuance of receiver’s certificates and providing that they should be secured by first lien on the property of the railroad, was made before the intervention of a creditor claiming a traffic balance lien, such order was not res adjudicata as to the latter lien.</p> <p>6. —Same—Laborers’ Lien Not Secured by Receiver’s Certificate.</p> <p>Where an indebtedness of an insolvent railroad for labor done and material furnished it, accruing more than six months prior to the appointment of a receiver, was not evidenced by receiver’s certificates, nor secured by statutory lien on certain town lots owned by the railroad the lien of such indebtedness was, as to such town' lots, subordinate to the' lien of "a connecting road for a traffic balance due it.</p> <p>7. — Same—Tax Liens.</p> <p>The lien of a connecting railroad for a traffic balance due it by an insolvent r.oad can be subordinated, in so far as it aifects town lots owned by the debtor road, to the lien in favor of the receiver’s claim for taxes paid on the property of the debtor road, only to the extent of the taxes due on such lots.</p>

<p>.1. — Personal Injury — Measure of Damages — Earning Capacity.</p> <p>One who is injured by the negligence of another is entitled to compensation for the loss of earning capacity thus sustained, and the fact that when injured he was engaged as a section hand and earning only $1.25 per day, will not prevent his pleading and proving that he was a blacksmith, and capable of earning more at such trade; nor is it necessary for him to allege and prove that such fact was known to the defendant.</p> <p>2. —Deposition—Suppressing—Impeaching Notary.</p> <p>Where the notary taking a deposition writes down and reads to a witness .answers materially different from those made by him, and thus makes a false certificate, the deposition should be, suppressed on motion, and it is not error to .exclude testimony to impeach the notary, he not being a witness in the case.</p> <p>3. —Personal Injury — Evidence.</p> <p>In an action for damages for personal injuries it was not error to admit the "testimony of plaintiff and his brother that plaintiff could not see and hear and "turn his head as well as he could before the accident.</p> <p>4. —Assignment of Error — Exclusion of Evidence.</p> <p>An assignment of error to the exclusion of certain testimony can not be sustained where such testimony is not stated in the bill of exceptions, and was in substance and effect admitted.</p> <p>5. —Evidence—Opinion of Witness.</p> <p>There was no error in refusing to permit a witness who had testified to all the facts attending a collision with a handcar causing plaintiff’s injuries to testify that plaintiff knew of the approach of the handcar in time to have avoided the injury.</p> <p>6. —Same—Life Expectancy — Expert.</p> <p>Although a witness was familiar with plaintiff’s physical condition, he did not render himself competent to state the life expectancy of plaintiff before he was injured by merely stating that he knew it as a practicing physician, but did not base his opinion on any mortality tables.</p> <p>7. —Contributory Negligence — Charge.</p> <p>It was error for the court to refuse to charge in an action for personal injuries that if plaintiff failed to use such care as a person of ordinary prudence would have used under similar circumstances to know of the near approach of the handcar and avoid the injury, he could not recover, where this phase of the defense, if submitted at all in the main charge, was couched in the most general terms.</p>

<p>1. —Cities—Incorporation by Election — Independent School District.</p> <p>Where the inhabitants of a city on the same day voted to incorporate under the general laws as a city of over 1000 population, and also as an independent school district, such district embracing all the city and some additional territory, and the result of the election for the school district was first declared’ by the county judge, the incorporation as a city was nevertheless valid.</p> <p>2. —Same—City’s Control Over Schools.</p> <p>It seems to have been contemplated by the Legislature that when a city assumes control of the public schools within its limits the jurisdiction of an independent school district over that territory ceases. Rev. Stats., art. 4032.</p>

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

<p>Contract — Time of Essence — Rescinding.</p> <p>Where plaintiff' failed to complete certain work upon a hotel within the time required by the contract, and defendant thereby lost the rent of rooms for two weeks, and the evidence showed that such loss was within the contemplation of the party, being stipulated against at the time the contract was made, it was error to instruct that defendant was required to rescind the contract at the expiration of the time fixed by it for the completion of the work, before time could be made of the essence of the contract.</p>

<p>1. —Judgment by Estoppel — Pre-emption Claims — Assignee After Judgment— Patent.</p> <p>While plaintiff and one W. each claimed the land in controversy by virtue of adverse pre-emption files thereon, the land being unpatented, W. brought suit in the district court for the land against plaintiff and a tenant of his in possession, and judgment was rendered in that action against W. Afterwards the tenant purchased W.’s pre-emption claim, and as his assignee secured the issuance of patent to himself, and plaintiff brought this action against him for the land. Held, that defendant was estopped by the judgment in such former action, and that the patent issued to him inured to plaintiff’s benefit.</p> <p>2. —Same—Trespass to Try Title — Equitable Title — Possessory Action.</p> <p>Since the statute makes an equitable title sufficient to sustain the action of trespass to try title, W.’s action against plaintiff, wherein the petition alleged possession and ouster, and that plaintiff “claims the land under and by reason of the following” — setting out his pre-emption claim, and praying that he -“be restored to the possession of said land and confirmed in his pre-emption right,”— was an action of title, and not one for possession merely, and the fact that plaintiff’s petition was not indorsed, “This action is brought as well to try title as for damages,” as required by the statute in actions of trespass to try title, did not change the'case.</p> <p>3. —Same—Codefendant in Judgment.</p> <p>Since defendant herein claims under W., against whose title judgment was rendered in the former action, and is chargeable with notice of such judgment, he can not avoid the effect of estoppel by that judgment on the ground that he was a codefendant with plaintiff in such former action.</p>

Tried below before Hon. J. E. Dillárd. Joy sued the insurance company and recovered judgment from which defendant prosecuted writ of error.

<p>1. —Deed—Description—Limitation.</p> <p>A deed did not support defendant’s claim of limitation, under the five years' statute, when suit was for a specific tract of 100 acres out of a 1280-acre survey, and the deed described the land conveyed as 100 acres out of that survey deeded to B. whose deed was of 100 acres to be selected out of the survey.</p> <p>2. —Limitation of Five Years — Quitclaim Deed.</p> <p>A deed conveying only the grantor’s right, title, and interest in the land described, such interest being only that of a tenant, will not support a claim" by the grantee to limitation under the five years statute.</p> <p>3. —Limitation—Landlord and Tenant — Repudiation of Tenancy.</p> <p>The right of a tenant to set limitation running by claiming the land under conveyance to himself, without surrendering the possession, is questioned; but held not involved here, the period of limitation not having expired after notice to the landlord that the tenant claimed title.</p> <p>4. —Trespass to Try Title — Common Source.</p> <p>Plaintiff may recover in trespass to try title without deraigning from the State, on proof that defendants claim under one who obtained the possession as plaintiff’s agent and tenant.</p>

Tried below before Hon. F. G. Morris. Wren sued Calhoun and others to enjoin the payment to him of money by the county. Injunction was granted and perpetuated on trial, and the defendants appealed.

Tried below before John G-. Winter, Esq., Special Judge. Lena Beese sued and recovered judgment against Sam.

<p>1. —School Land — Sale—Interest Payments.</p> <p>Upon school land sold by the State under Act of April 23, 1891 (Session Laws, page 180), interest was payable on- the first day of April of each year; ■and when the purchaser sold his claim to another on the 15th of March, the latter assuming the payment of the balance due the State, and the seller reciting that all interest due to date had been paid, such purchaser could not permit a forfeiture for failure to pay the interest falling due on April 1st and plead same as a failure of consideration in defense against his notes given for deferred payments on the land.</p> <p>2. —Sale of School Land — Fraud—Assignee.</p> <p>Only the State could take advantage of fraudulent representations as to the ■character of the land by a purchaser of school land from it; a vendee of such purchaser could not defend against the payment of his notes for deferred purchase money on the ground that his vendor’s claim was fraudulent as against the State.</p> <p>'3. — School Land — Purchaser—Assignable Right.</p> <p>A purchaser of school land who has not acquired title by completing his payments, has nevertheless an interest assignable to another and capable of being the subject of purchase and sale.</p>

<p>Appeal from the County Court of Lee. Tried below before Hon. I. H. Bowers.</p>