Volume 27 — Texas Civil Appeals Reports

<p>1. —School Land—Purchase of Additional Sections.</p> <p>See this case as to whether a settler upon school land classed as dry grazing land can purchase additional sections of pasture land under chapter 47, Laws of 1895.</p> <p>2. —Same—Absolute Lease Line—Repeal.</p> <p>The Act of 1895 permitting purchase of land leased by the State to others was repealed as to lands lying within the absolute lease district created by the Act of 1897; an applicant who had not acquired his right to purchase before the latter law took effect could not thereafter buy such leased lands.</p> <p>3. —Same—Right to Home Section—Cash Payment—Draft.</p> <p>The execution and delivery by a purchaser of school land of the obligations required by the Act of 1895 did not vest title without making the cash payment required by that law; and inclosing a draft for that amount through the mail to the State Treasurer was not such payment nor did not give a right as a purchaser until same was accepted by the Treasurer.</p> <p>4. —Same—Acceptance After Repeal.</p> <p>Inclosing a draft for his first payment, to the Treasurer, on the last day before the repeal of the law, did not become such payment as fixed the applicant’s rights as a purchaser by the Treasurer receiving and cashing the draft after the law giving the right to purchase was repealed.</p>

<p>Appeal from Travis.</p> <p>Tried before Hon. B. E. Brooks.</p> <p>Yale sued the railway company and recovered judgment, from which it appealed.</p>

<p>1. —Deposition—Return—Names of Witnesses—Waiver.</p> <p>A defendant, taking depositions of his own witnesses, opened and read them-after return, and finding one Y., unfavorable, moved to quash his deposition because the name was not indorsed on the envelope in which it was returned, the indorsement showing the witnesses to be S. et al. Held, that defendant waived the irregularity by using the depositions of the other witnesses.</p> <p>2. —Evidence—Signature—Proof by Comparison.</p> <p>Instruments, which were admissible if the signatures, which were denied, were genuine, were offered without other proof of execution than such as could be drawn by the jury from comparison with other admittedly genuine signatures in evidence. Held, that their rejection could not be found error when the original instruments were not before the appellate court.</p>

<p>1. —Local Option—Void Election—Injunction Against Declaring the Eesult.</p> <p>A liquor dealer is not entitled to enjoin the commissioners court from declaring the result in favor of prohibition of a local option election in the locality where he is doing business, though the election was void because unauthorized within the limits in which it was held.</p> <p>2. —Injunction—Criminal Prosecution.</p> <p>A citizen is not entitled to injunction against an act in order to prevent an unfounded criminal prosecution against him as a result, unless it is made to appear that some property right of his will be interfered with and injury result, or that he will be harassed by a multiplicity of unwarranted prosecutions.</p>

<p>1. —Mechanic’s Lien—Owner of Property—Purchaser by Executory Contract.</p> <p>A person in possession of land under a written contract to purchase it, is-not the owner thereof within the meaning of the statute giving a lien to one who furnishes labor or material in the construction of a building under and by virtue of a contract with the owner, and such person is not entitled to fix a lien on either the lot or the building. Rev. Stats., art. 3294.</p> <p>2. —Same—Consent of Owner.</p> <p>Where the vendee in an executory contract for the sale of a lot agreed to-erect a building thereon, and the vendor agreed to advance him a certain sum of money for its construction, and the vendee went into possession and employed plaintiff, who furnished labor and material for the building, and the vendor, without notice of plaintiff’s employment, paid to the vendee the sum agreed to be advanced, plaintiff was not entitled to fix a lien upon the premises under the statute, since he had no contract with the owner, and the fact that the latter consented to the erection of the building would not give the right to a lien.</p>

<p>1. —Constitutional Law—Property Taken for Public Use—Compensation.</p> <p>The constitutional provision that property shall not be taken for a public- ' use until compensation therefor be first made, does not so apply, where the property is merely damaged but not appropriated, as to deprive the Legislature-of power to authorize acts for the public good that might result in damage to individuals without requiring as a condition precedent that all damages shall be-first paid. Const., art. 1, sec. 17.</p> <p>2. —Street Railroads—Damage to Abutting Owner—Injunction.</p> <p>Where a street railway company, by the establishment and operation of its. road along a street, had damaged but not appropriated the property of abutting owners, it can not be restrained from the use causing the damage because it has not made arrangements for compensation before the use began. Railway v.</p> <p>Fuller, 63 Texas, 469, distinguished.</p> <p>3. —Same—Nuisance.</p> <p>A corporation duly chartered under the statute authorizing the incorporation of street railway companies for transporting passengers and freight, and having the permission of the city to lay its tracks and operate its cars on the streets, can not be enjoined from such use of the streets, as being a nuisance, at the suit of an abutting property owner, although he may have granted the land occupied by the street to the city for street purposes alone,</p> <p>4. —Same—Injury Not Irreparable.</p> <p>A street railway incorporated for transporting freight will not be restrained from operating its road at the instance of a,n owner of property abutting on the street because it is using heavy electric motors and hauling large quantities of freight, rendering access to his premises dangerous and inconvenient, and endangering the lives of his family and other persons using the street, since the injury in such case is not irreparable and- compensation therefor may be had in damages.</p> <p>5. —Same—Transportation of Freight—Damages.</p> <p>Since a street railway for transporting freight is a commercial railway, its operation, where it- subjects the street to an additional servitude, entitles an abutting owner to damages for injury inflicted on his property, not suffered in common with other property along the route.</p>

<p>1. —Minor—Liability on Contract of Lease,</p> <p>Where a married infant entered into a written contract for the lease of a residence for his family for a term of years, and agreed to pay therefor a certain sum per month, and paid the rent for the first month in advance, but occupied the house only ten days, he could not be held liable for rent after his abandonment of the premises.</p> <p>2. —Same—Disaffirmance.</p> <p>While infancy is a personal privilege of which no one is permitted to take advantage except the infant himself, yet after he has disaffirmed the contract, anyone may take advantage of such disaffirmance.</p> <p>3. —Same—Party to Suit.</p> <p>Where a married infant abandoned a house which he had leased, leaving therein furniture he had purchased on credit of defendants, the title to which was reserved in defendants, and they, having taken possession of such property, were sued by the landlord to enforce a landlord’s lien on it, the infant was a proper party to the suit, and it was not error to require him to be made a party.</p> <p>4. —Same—Disaffirmance.</p> <p>The infant having answered in such suit by a plea of infancy, the defendants could take advantage of the disaffirmance and set up the nullity of the contract, and claim the furniture under the agreement that it should remain theirs until paid for.</p> <p>5. —Same.</p> <p>Since the plea of infancy was filed as soon as the infant was made a party, and within less than a month after he reached his majority, no question arose as to his promptness in disaffirming the contract, and a judgment against the infant and the defendants was unauthorized.</p> <p>6. —Same—Rents—Trespass.</p> <p>Plaintiff’s rent having been paid him for the month during which defendants took possession of the furniture, he had no right to recover for any trespass on the place not involving permanent injury to the property.</p>

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

<p>1. —Trespass to Try Title—Pleading—Evidence—Fraudulent Conveyance.</p> <p>Where in trespass to try title the defendants, who were husband and wife and who had pleaded only the general issue of not guilty, offered in evidence a deed by the husband to the wife to show title to the property in her as her separate estate, such deed could be attacked as fraudulent, although fraud was not specially pleaded by the plaintiff.</p> <p>2. —Community and Separate Estate—Deed to Husband or Wife—Presumption— Recital—Burden of Proof.</p> <p>A deed to the husband or the wife during coverture is presumed to be for the benefit of the community, unless it is expressly recited therein that the consideration was paid with separate funds of the one or the other, and in the absence of such recitals the burden is on the one claiming separate rights to the property to prove that his or her separate means paid for it.</p> <p>3. —New Trial—Newly Discovered Evidence—Diligence.</p> <p>A new trial sought on the ground of newly discovered evidence is properly refused where no diligence to obtain the evidence is made to appear.</p> <p>4. —Same—Defendant as Witness.</p> <p>It is not ground for new trial that the husband, who was one of the defendants, was not placed on the stand to testify because defendants thought that plaintiff would introduce him as a witness, and further thought their case was sufficiently proved up without him.</p>

<p>1. —Judgment—Collateral Attack.</p> <p>A purchaser of real property from a judgment debtor, after judgment but before execution, is not entitled to restrain by injunction a sale of the property under the execution on the ground that the judgment is void because the note on which it was rendered was not chargeable against the property in question, as being that of a married woman,—the action for injunction being a collateral attack on the judgment.</p> <p>2. —Same—Abstract—Evidence—Good Faith.</p> <p>Where the action was for an injunction to restrain an execution .sale, brought by one who purchased the property- from the judgment defendant after the judgment was obtained, a recorded abstract of the judgment was admissible under defendant’s general denial to show that plaintiff did not buy in good faith. e</p> <p>3. —Same—Lien—Indexing Abstract.</p> <p>The record of an abstract of a judgment does not create a lien unless it has been indexed.</p> <p>4. —Same—Married Woman—Separate Estate.</p> <p>A married woman’s separate estate is liable for the satisfaction of a judgment against her, notwithstanding' its failure in terms to direct that execution issue against her separate property.</p>

<p>1. —Evidence—Action Against Trustee for Creditors.</p> <p>Where an insolvent debtor has conveyed his property to a trustee for creditors, and is made a formal party to an action against the trustee, he can not be heard to object to evidence that does not in any manner increase his liability..</p> <p>2. —Judgment by Default Against Nonresident.</p> <p>Article 1504d, Sayles’ Civil Statutes, prohibiting judgment by default, against a nonresident, has reference to nonresidents cited by publication, but where a nonresident has been cited by personal notice as provided by the statute, and has failed to appear and answer, a judgment by default may be entered against him. Rev. Stats., art. 1234.</p> <p>3. —Liens—Priority—Garnishment and Trust Deed.</p> <p>Where a creditor obtained a writ of garnishment without affidavit, basing it) on the issuance of an attachment, and the record failed to show that a writ of' attachment was issued, his lien was properly held invalid as against a deed of trust under which the trustee had accepted before a valid writ of garnishment was issued.</p> <p>4. —Judgment Against Nonresident.</p> <p>Where a nonresident owning property in this State has been personally served with notice outside the State, a judgment against the property is authorized, but not a personal judgment against such defendant.</p>

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

<p>A.—Negligence—Charge of Court—Weight of Evidence—Defective Appliances.</p> <p>Where plaintiff sought to recover damages for personal injury caused by the "breaking of the side rod of an engine, a charge to the jury that if they believed ■from the evidence that the side rod was old, defective, and unfit for service, .and further believed from the evidence that it was negligence in defendant to rallow the rod to be in such condition, etc., to find for plaintiff, was not on the weight of evidence.</p> <p>•2.—Same—Charge Eliminating Issues.</p> <p>Where the petition alleged other forms of negligence than the condition of -the side rod which broke, as that the train was too heavy and was run too rapidly, a charge eliminating all the issues except that of negligence as to the .condition of the rod “as alleged in plaintiff’s petition,” did not by such reference to the petition tend to mislead the jury as to the issue submitted. .3.—Same—Charge—Defective Appliances.</p> <p>There being evidence that the side rods of engines undergo crystallization, -which, as explained by witnesses, consisted in losing their temper and fiber and becoming brittle, this was sufficient to warrant a charge submitting the issue as to whether the “metal” of the rod was weak and defective.</p> <p>■4.—Damages—Verdict—Evidence—Former Personal Injuries.</p> <p>Where the evidence showed that plaintiff had been seriously injured, but also that at the time of the accident here involved he had entirely recovered .from such injuries, the court can not say on appeal, on an assignment alleging ex..cessive damages, that the jury did not find that defendant had recovered from -.the former injuries and on that basis estimate the damages.</p>

<p>1;—Trust Deed—Recitals in Deed of Trustee Prima Facie Evidence—Presumption.</p> <p>A trust deed provided that in any deed given by the trustee thereunder all statements of facts or recitals as to the nonpayment of the money due by the note secured, or as to notice of the time,. place, and terms of sale having been duly published, or as to any other preliminary act having been done by the trustee, should be taken as prima facie evidence of such facts; and the deed by the trustee recited that whereas “the holder of said note has requested me, the said trustee, to sell said property,” etc. Held, that inasmuch as the deed by the trustee was made to plaintiff, to whom the note was executed, and plaintiff is here asserting the title he obtained at the trustee’s sale, it will be presumed that he was holder of the note and requested the sale; and the court also inclines "to the opinion that the recitals in this respect make, by virtue of the terms of the trust deed, a prima facie case anyway.</p> <p>3.—Same—Notice of Trustee’s Sale—Change of Statute.</p> <p>The Act of 1889 (Revised Statutes, article 2369) having provided that notice of sales of land under trust deed should be given as “now” required in judicial sales, the subsequent statute of 1895, requiring personal service of notice in making judicial sales, did not apply to sales under trust deeds, as to which "notice is still to be given in accordance with the statute governing judicial-sales in 1889.</p> <p>3.—Same—Adoption of Revised Statutes—Laws Wot Re-enacted.</p> <p>The adoption of the Revised Statutes of 1895 was not a re-enactment of the Act of 1889 so as to make the clause “as now required in judicial sales,” apply to the statute of 1895 relating to notice of such sales, since it is provided that the adoption of the Revised Statutes shall be construed as a continuation of the statutes then in force, and not as new enactments of the same.</p> <p>•4.—Same—Recitals Prima Facie Evidence—Notice of Sale.</p> <p>Where in the deed of trust it was provided that the sale “should be as under execution, in accordance with the laws of. the State of Texas governing sales under deed of trust,” and in the deed of the trustee it was recited that the land was sold “after having given public notice of the time, place and terms of such ■sale, by giving public notice as required by said trust deed,” this was the statement of a fact, and not a conclusion of law, and the recital was prima facie evidence that the law as to notice was complied with.</p> <p>5.—Citation—V ariance.</p> <p>A citation was not rendered void by a variance between the description of the property upon which foreclosure was sought as contained in the petition ;and that in the citation, where the only variance was that in the petition the property was described as on Corinth street, and in the citation as on Coruth street.</p>

<p>Appeal from Fannin.</p> <p>Tried below before Hon'. Ben H. Denton.</p>

<p>1. —Administration—Presumption—Closing Estate.</p> <p>The closing of administration on an estate will not be presumed from lapse of time.</p> <p>2. —Will—Construction—Legacies—“Winding Up” Estate—Partition.</p> <p>Where one item of a will provided that the testator bequeathed to a nephew $250 a year out of his estate “to be paid by my executors until my estate is wound up,” this did not necessarily mean until the estate was legally closed, where there was afterwards a partition and distribution of the estate and the property in the executor’s hands thereafter and until the estate was legally closed was insufficient to meet a prior bequest to a minor son, and by the judgment of partition was recognized as belonging to the son,—the partition proceedings being a winding up of the estate within the intent and terms of the will as regarded the further payment of the annual legacy to the nephew.</p>

<p>Appeal from the County Court of Dallas.</p>

<p>1. —Master and Servant—Assumed Risk.</p> <p>Where, in an action for personal injuries received in unloading ties from a moving train, the plaintiff, a section foreman, is shown to have been experienced in the work he was then doing, and in the manner of its performance, and fully comprehended the dangers and hazards involved, he must be held to have assumed the risks incidental to the business as it was being conducted, although he was acting at the time under the immediate direction of the division roadmaster.</p> <p>2. —Damages—Release Not Binding, When.</p> <p>An instruction that if, at the time plaintiff executed a release of his claim for damages, his injuries were in fact of a serious or permanent character, and that he had been led to believe by the company’s surgeon that they were only slight, and he was induced thereby to sign the release, the same, would not preclude a recovery,—is held to present the issues arising out of the release as favorably as plaintiff could require under the evidence.</p>

<p>1. —Master and Servant—Negligence—Warning Servant of Danger.</p> <p>Where one employed as fireman of a stationary engine, and ignorant of the-manner of operating it, as well as of the attendant danger, was directed by the-foreman, who knew of his inexperience, to take charge of the engine and run it,, the failure of the foreman to warn him of the danger was negligence such as-rendered the master liable for injuries resulting therefrom.</p> <p>2. —Same—Assumed Risk.</p> <p>A servant directed to perform work out of his regular employment and more-hazardous, does not assume the risk.</p> <p>3. —Same—Contributory Negligence.</p> <p>See the opinion for evidence under which it was held that the danger of starting an engine by using a rod to lift off the balance wheel was not so apparent as that the action of plaintiff, a fireman, in so starting the engine, was-contributory negligence under all the circumstances.</p>

<p>1. —Municipal Bonds—Validity—Provision for Payment.</p> <p>Where city bonds are issued and there is a failure to make provision at the time of their issuance for the assessment and collection annually of a sum sufficient to pay the interest thereon and create a 2 per cent sinking fund, as re•quired by the Constitution, the bonds can not be enforced. Const., art. 11, sec. 5.</p> <p>2. —Same—Estoppel—Innocent Purchaser.</p> <p>Where negotiable city bonds were issued by the mayor and city secretary, having printed on the backs thereof what purported to be an order of the city council authorizing their issuance, but no such order was in fact ever passed, the city was not estopped to deny the validity of the bonds, although they had been sold to an innocent purchaser for value and the proceeds appropriated by the city.</p> <p>3. —Same—Bonds in Excess of Tax Rate—Notice.</p> <p>Where city bonds have been issued to the full amount authorized under the constitutional limit as to taxation, a purchaser of bonds thereafter issued by the city is required to take notice of such fact.</p>

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

<p>1. —Community Property—Title—Execution Sale Against Husband.</p> <p>Where plaintiff claimed, as heir of her mother, land which was community property of her parents, she was not entitled to recover it against one having title by a valid sale of the land under execution against her father.</p> <p>2. —Title by Limitations—Pleading—Trespass to Try Title.</p> <p>Where in trespass to try title plaintiff claimed by virtue of limitations and adverse possession for ten years she is not required to allege and prove that there was no coverture or other disability excusing the holders of the prior outstanding title from bringing suit within such ten-year period of adverse possession, since that is a matter of defense.</p> <p>3. —Same—Variance.</p> <p>Where plaintiff in trespass to try title alleged that she had been in possession of the land “more than ten years next before the filing of this suit,” this was sufficient to admit evidence that she had been out of possession for several years next preceding the suit, but that the ten years limitation had been completed before she lost possession, and an objection that such evidence did not coniform with the pleading was not tenable.</p>

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

<p>1. —Fire Insurance—Clear Space Clause—Warranty.</p> <p>Where the policy of insurance upon lumber on which plaintiff’s action was brought contained a clear space clause which was a warranty, and the evidence showed that plaintiff had failed to comply therewith, the court properly instructed a verdict for the insurance company. See evidence held to show such failure of compliance, and as not showing fraud or mistake on the part of the agent in inserting such clause.</p> <p>2. —Same—Warranty—Written Contract—Evidence.</p> <p>Evidence of an implied agreement waiving the clear space clause, made prior to issuance, of the policy, was not admissible to contradict the terms of the written contract.</p>

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

<p>1.—Injunction—General Demurrer.</p> <p>Where the exceptions to a petition for injunction assert merely that “there is no equity shown in the bill and no cause of action sufficient to give jurisdiction to an equity court, and plaintiff has a full and adequate remedy at law," this amunts to nothing more than a general demurrer.</p> <p>'2.—Same—Sale of Homestead.</p> <p>That an injunction will lie to restrain an execution sale of the homestead is now well settled.</p> <p>3.—Same—Pleading—Petition Held Sufficient.</p> <p>A petition showing affirmatively that the property the sale of which is sought to be enjoined is the homestead of plaintiff’s, and negativing the fact that the judgment upon which the writ issued constituted any lien upon the property, is good as against a general demurrer.</p>

<p>Appeal from the County Court of Wharton.</p>

<p>Appeal from Harris.</p> <p>Tried below before Hon. Chas. E.': Ashe.</p>

<p>Appeal from Harris.</p> <p>Tried below before Hon. C. B. Ashe.</p>

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

<p>1. —Trespass to Try Title—Conflicting Locations—Burden of Proof.</p> <p>Where, in a case of conflicting locations, plaintiff sues for land. which is in possession of the defendant, the burden is on him to show by competent evidence that the land in controversy is within the boundaries described in the grant under which he claims. See evidence held not to show a conflict of locations.</p> <p>2. —Same—Appeal—Cross-Assignments Necessary.</p> <p>Where plaintiff obtained judgment establishing the location of his survey as including the land in controversy, and on appeal by the defendants the judgment was reversed as unsupported by the evidence, plaintiff was not entitled, even though the evidence warranted it, to have a judgment establishing the location of his survey so as to include land claimed by his coappellees where he had not appealed nor filed cross-assignments against them.</p> <p>3.—Appeal—Abandonment—Assignment of Error.</p> <p>Failure to file assignments of error constitutes an abandonment of an appeal that has been taken by the giving of due notice thereof.</p>

<p>Appeal from Galveston.</p> <p>Tried below before Hon. William H.. Stewart.</p> <p>Affirmed by the Supreme Court upon certificate of dissent.</p>

<p>1. —Deed—Certificate of Acknowledgment—Impeachment by Wife—Evidence.</p> <p>The rule that the uncorroborated testimony of the wife denying the due execution of her deed is not sufficient to overcome the officer’s certificate of her acknowledgment, regular on its face and supported by his testimony or other competent evidence, is held not applicable where the wife denies the execution of the deed and that she appeared before the officer. Following Wheeloclc v. Cavitt, 91 Texas, 679.</p> <p>2. —Same—Community Homestead—Estoppel.</p> <p>Where the wife did not in fact join in the husband’s deed conveying the community homestead, and at their death later on no constituent of the family remained, the deed operated by estoppel against the heirs of the husband from the time the homestead interest ceased, as to the husband’s half interest in the property; but the deed being void as to the wife, her half interest descended at her death to the children, and they were not estopped by the deed to assert title to such half, where it was not shown that they had received from their father’s estate enough property to render them liable on his warranty. Marler v. Handy, 88 Texas, 421, distinguished. '</p> <p>3. —Same—Fraud—Estoppel.</p> <p>The husband’s fraud toward the wife could not, as to her half interest in the property, be set up by his children in avoidance of the estoppel created by his deed.</p>

<p>■>.—Negligence—Erecting Wire Fence Across Road.</p> <p>Defendant’s action in erecting a barbed wire fence late in the afternoon across a road used by the public in attending a protracted meeting at a schoolhouse near by, where services were to be held that night, and in leaving such fence unguarded and without signals there to give warning of danger, the ensuing night being quite dark, was such negligence as rendered defendant liable for injury to one who, in going to the meeting, rode into the fence, although an agent of defendant remained there on guard to give warning until the church services had begun. °</p> <p>2. —Same—Evidence.</p> <p>There was no error in excluding evidence by defendant’s manager that in erecting the fence he thought he was placing it entirely on defendant’s lot, and not partly on the adjoining schoolhouse lot, since the case would still have been one of negligence had the fence been altogether on defendant’s lot.</p> <p>3. —Same—Pleading—Charge—Issue Raised.</p> <p>Where plaintiff’s petition for injury received by coming in contact with a wire fence alleged its wrongful erection across the traveled road, and that plaintiff’s son, because of his not having been warned of the fence, came in contact with it, but without specific allegation that defendant left the fence unguarded by danger signal or otherwise, this was sufficient to authorize a charge—the evidence admitted without objection so warranting—which allowed the jury to find that defendant was negligent in leaving the fence unguarded and without warning signals, such charge being within the issues raised by the pleading.</p> <p>4. —Same—Oral Evidence—Title to Land.</p> <p>There was no error in admitting evidence to prove that the trustees of the school district owned the schoolhouse lot over which the road was located, since there was undisputed evidence showing that the trustees were in the possession and control of the schoolhouse lot, and the title thereto was not in issue,</p> <p>5. —Same—Charge—Public Way.</p> <p>The court properly refused a charge exempting defendant from liability if it exercised ordinary care to prevent injury to persons who might attend the church services that night “during the time persons might be reasonably expected to pass along said road and fence in going to such services,” since defendant’s act having rendered a public way dangerous, it owed the duty of protection to persons passing along it at any time.</p>

<p>1. —Receivers—Appointment—Appeal from Order Appointing—Notice.</p> <p>An appeal from an interlocutory order appointing receivers, made in chambers on ex parte hearing, is properly taken when the order of appointment is filled with the clerk, although not yet entered on the minutes of the court, and although no notice be given in .open court of appeal from such order. Revised Statutes, arts. 1465, 1385, 1387, construed.</p> <p>2. —Same—Right of Appointment.</p> <p>The right to the appointment of a receiver of a corporation is not a cause of action, but only an ancillary right thereto, and if, when application is made for a receiver, it is not shown that applicants have a cause of action, no right exists to have the receiver appointed.</p> <p>3. —Same—Corporation—Contract with Its Directors Only Voidable.</p> <p>Contracts made by a corporation with a minority of its directors are not, as a general rule, void for that reason, but voidable only, even though such minority may have used their position and superior influence to advance their individual interests.</p> <p>4. —Same—Management of Corporations—Interference by Court.</p> <p>Mismanagement, neglect, or abuse of discretion on the part of officers of a corporation in their conduct of its business will not authorize the courts to interfere on behalf of minority stockholders to set aside contracts which are not void, unless there is plainly shown an intention to sacrifice the interests of the corporation and the minority stockholders.</p> <p>5. —Same—Appointment of Receivers Wot Warranted.</p> <p>See petition in an action by minority stockholders of a corporation to set aside as fraudulent and void a lease of all its property made by its board of directors to a minority of its own members, and for a winding up of the corporate affairs, which is held not to authorize the appointment of receivers, because not showing a cause of action.</p> <p>6. —Fraud Avoiding Written Instrument—Wecessary Allegations.</p> <p>A party is held to a knowledge of the contents of an' instrument he has signed, unless it is shown that the adverse party practiced some fraud, misrepresentation, or deceit whereby he was misled or misinformed as to its contents, and was thus induced to sign it in ignorance of its contents; and such facts must be alleged in an action seeking to avoid the effect of the instrument. See compromise agreement between stockholders of a corporation containing a clause herein sought to be avoided, ratifying former leases and contracts made by the corporation.</p>

<p>1. —Accord and Satisfaction—Settlement in Full—Protest.</p> <p>The acceptance even under protest of less than is due as full payment of a disputed claim is a bar to recovery of the balance.</p> <p>2. —Same—Evidence Not Showing a Final Settlement.</p> <p>Evidence held to sustain a finding that an adjustment and payment on a •contract for the delivery of cattle sold was not in reality a final settlement, because other cattle were still to be delivered and received.</p> <p>.3.—Measure of Damages—Failure to Deliver Cattle—Market Value.</p> <p>The measure of damages for failure to deliver cattle .sold is their market value at the time and place they were to be delivered, notwithstanding that the seller may have known they were to be shipped to another place.</p>

<p>1. —Jurisdiction of County and Justice Courts—Amount—Note—Interest.</p> <p>Since the Constitution provides that the county court shall have jurisdiction where the amount in controversy exceeds $200, exclusive of interest, and that justices of the peace shall have jurisdiction where the amount is $200 or less, exclusive of interest, the county court has no jurisdiction on a note for $200 having interest due thereon.</p> <p>2. —Same—Pleading—Exhibit—Attorney Fee in Note.</p> <p>Where the note sued on contained a stipulation to pay attorney fees, but the promise to pay such fees was not alleged in the petition, the want of such allegation was not supplied by the facts that the note was attached to the petition as an exhibit and referred to therein as such, and the prayer for recovery included the attorney fees.</p>

<p>Error from Archer.</p>

<p>Appeal from Bosque.</p> <p>Tried below before Hon. William Poindexter.</p>

<p>1. —Limitations—Action Against Guardian.</p> <p>A proceeding to set aside a judgment discharging a guardian and to require him to again file his. account for final settlement must be brought within four years, under article 3358, Revised Statutes.</p> <p>2. —Cases Distinguished.</p> <p>Murchison v. White, 54 Texas, 78, and Best v. Nix, 6 Texas Civil Appeals, 349, holding the two years statute of limitations applicable to cases of this character, distinguished as being under former statutes.</p> <p>3. —Judgment—Removing Disabilities of Minority—Irregularities.</p> <p>Where a judgment removing the disabilities of minority recited, and the facts were shown to be, that the minor, then 19 years old, appeared in her own proper person at the hearing of the application, and that the material averments of her petition were established by competent proof then heard, such judgment, it seems, is not rendered void and a nullity by reason of the fact that the ■minor’s application was not signed by her, nor sworn to by any one cognizant of the facts set out therein, as required by the statute. Rev. Stats., art. 3499.</p> <p>4. —Same—Discharge of Guardian—Conclusiveness.</p> <p>A judgment discharging a guardian is not absolutely void because at its rendition the person under guardianship was a minor, but it operates as any other judgment of like kind until in an appropriate proceeding and within a proper time it is reversed or set aside.</p> <p>3.—Same.</p> <p>So the recital and finding in such a judgment of the jurisdictional fact that -the person under guardianship was of age is conclusive until duly set aside, although false in fact.</p> <p>6. —Same.</p> <p>Nor is such judgment of discharge void because the petition therefor was •defective in form in wanting some of the elements prescribed by statute for final accounts.</p> <p>7. —Amendment—Limitations—New Cause of Action.</p> <p>Where appellees’ original complaint alleged that the guardian had not filed his final account, and asked that he be required to do so, and an amendment to such pleading alleged that there had been a final settlement and a discharge of the guardian, and prayed that the judgment of discharge be set aside because it was not rendered on a fair final account, the amendment set up a different cause of action, and not having been filed within four years, was "barred by limitation.</p> <p>8. -—Same—Looking to Superseded Pleading.</p> <p>Where an original pleading has been superseded by amendment, and has therefore, under rules 14 and 84 for the district and county courts, been omitted from the record, it may still be looked to on a question of limitations, although it was not introduced in evidence.</p> <p>9. —Guardian—Judgment Discharging Not Set Aside.</p> <p>See evidence in proceeding to set aside a judgment finally discharging a guardian, brought after. four years, held not sufficient to warrant such relief, because the circumstances shown merely tended tq prove fraud and concealment, and no sufficient reason appears why the proceeding was not instituted within -the statutory period.</p> <p>The courts of civil appeals are not required to set forth findings on such matters as forms of receipts, orders, decrees, and testimony fully set forth in the record, and about which no question of conflict arises.</p>

<p>1. —County Boundaries—Jurisdiction of County Court.</p> <p>Under the Act of 1897, adding article 808a to the Revised Statutes, the district court has jurisdiction of a suit to establish the boundary line between two counties, whether such line has been theretofore established or not, and although the counties may have appointed surveyors to establish such line and their duties be still uncompleted.</p> <p>2. —Same.</p> <p>The evidence in the present action in the district court to establish the boundary line between two counties showing the true line to be as located by a former survey made under the orders of the county court, it is immaterial whether such orders were regular and valid or not.</p> <p>3. —Same.</p> <p>A judgment establishing a county line as located by careful surveyors acting under the orders of the county court, and which line has been approved by the Commissioner of the General Land Office, and, with but slight interruptions, recognized by the counties concerned for half a century, will not be disturbed except on clear evidence that it is erroneous.</p>

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

<p>1. —Damages—Care in Avoiding Consequences of Unlawful Act—Charge.</p> <p>See charge of court, in an action for damages resulting from defendant’s unlawful act in turning plaintiff’s cattle out of a pasture, held to sufficiently submit the issue of whether there was negligence on plaintiff’s part in failing to exercise ordinary care to avoid the consequences of such act.</p> <p>2. —Same—Evidence Held Sufficient.</p> <p>See evidence held to warrant a verdict for damages resulting from plaintiff’s cattle being turned out of a leased pasture before expiration of the twenty days’ notice to which the lease entitled him.</p>

<p>Appeal from Taylor.</p>

<p>Appeal from Nolan.</p>

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

<p>1. —Usury—Pleading—Payment.</p> <p>See pleadings held not to show a right to recover back usurious interest paid, the payment, which was made out of plaintiff’s money, being alleged to have been made by one who claimed to act as, but was not alleged to be, the plaintiff’s agent.</p> <p>2. —Assignment of Error—Special Exceptions.</p> <p>An assignment that the court erred in overruling plaintiff’s special exceptions to defendants cross-action, eight in number, was too general to require consideration.</p> <p>3. —Usury—Payment Out of Loan by New Party.</p> <p>One who loaned money upon mortgage out of which a previous mortgage to another, affected with usury, was discharged, may recover, notwithstanding the usury in the first transaction.</p> <p>4. —Foreclosure—Parties.</p> <p>One to whom defendant in a foreclosure proceeding had conveyed the land was properly made a party to the foreclosure.</p> <p>5. —Mortgagee—Payment of Taxes.</p> <p>A mortgagee may recover, in foreclosure proceedings, taxes which he was compelled and authorized by his security to pay on the property to protect his lien.</p> <p>6. —Notary—Agent—Evidence.</p> <p>A notary taking an acknowledgment may testify that fact on a plea of non est factum to the instrument, though he was, at the time of taking it, agent of the party acknowledging it.</p>

<p>1. —Trespass—Venue—Tenant—Subletting.</p> <p>Cutting and removing timber from plaintiff’s land by one claiming as a subtenant under a lessee of plaintiff who had not consented to the subletting, was a trespass on which suit could be brought in the county where it was committed though defendant resided in another.</p> <p>2. —Trespass—Cutting Timber—Damages.</p> <p>A trespasser cutting and removing timber from the land of another is liable in damages for the value of the wood in its converted condition.</p>

<p>1. —Reconvention—Distinct Claims—Tort and Contract.</p> <p>A tenant’s plea in reconvention to an action for rent was not subject to demurrer because it joined a claim under contract with the landlord for clearing land with one for damages for wrongfully suing out a distress warrant.</p> <p>2. —Distress—Damage—Neglect of Officer.</p> <p>If property levied on was injured in the possession of the officer by his neglect, plaintiff who had wrongfully sued out the distress warrant under which it was seized, was liable therefor.</p> <p>3. —Contract—Pleading—Special Exception.</p> <p>See allegations of claim under contract for clearing land, held subject to special exception for not showing when the contract was made or performed.</p> <p>4. —Evidence—Pleading.</p> <p>Evidence irrelevant to any issue presented by the pleadings is inadmissible.</p> <p>5. —Same.</p> <p>Defects in pleading should be taken advantage of by demurrer, and not by objection to the evidence.</p> <p>6. —Oral Charge—Exception—Requested Instructions.</p> <p>The statute requiring the charge of the court to be in writing is only directory, and it is not ground for reversal that it was oral unless it appears that injury resulted and exception was made at the time; but the rejection of a proper, requested, written instruction is ground for reversal when the court’s charge, being oral, is not in the record, and therefore does not appear to have covered the point.</p>

<p>Appeal from McLennan.</p> <p>Fenton and Bomar sued the bank, and appealed from a judgment in favor of defendant on demurrer.</p>

<p>Appeal from Williamson.</p>

<p>1. —Homestead—Leasehold Interest.</p> <p>. A leasehold interest in land is exempt from execution, when occupied as the homestead of the family.</p> <p>2. —Same—Surviving Husband—Ungathered Crops.</p> <p>The surviving husband after death of the other members of the family is ■still entitled to the homestead exemption; and this includes and protects from execution matured crops grown on but not severed from the soil.</p> <p>'3.—Same—Gathered Crops.</p> <p>The husband is not entitled, after the death of the other members of the family, to the exemption of personal property secured to the survivors in case •of his death by article 2046, Revised Statutes; and gathered crops, though raised on the homestead, are in such case subject to execution.</p> <p>4.—Unlawful Levy—Pleading—Demurrer.</p> <p>A petition seeking damages on account of a levy of execution alleged to be unlawful both because made on exempt property and because excessive, is not • demurrable for insufficiency in its allegations on the former ground alone.</p>

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

<p>1. —Railway—Ticket Office—Charge.</p> <p>The statute requires a railway to keep its ticket office open thirty minutes before the departure of trains; a charge requiring it to be kept open for that length of time before arrival of the train is erroneous; and see opinion for facts under which the error was ground for reversal.</p> <p>2. —Charge—Error—Correction.</p> <p>An erroneous instruction is not rendered harmless by the fact that the law on the point was given correctly in other parts of the charge without withdrawing or correcting the erroneous one; but see instructions held not to correct the previous error.</p> <p>3. —Boarding Train—Duty to Trespasser.</p> <p>Those operating a passenger train do not owe to one attempting to board it unlawfully, without procuring a ticket as required by the company’s regulations, the duty to assist him on, nor do they owe to such trespasser a duty to prevent him from getting on.</p> <p>4. —Same—Charge—Preventing Injury.</p> <p>See charge held erroneous in requiring trainmen to assist in or prevent from boarding the train one unprovided with the required ticket, the issue on duty arising from imminent and known peril not being submitted or involved.</p>

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

<p>Appeal from the Cdunty Court of McLennan.</p>

<p>1. —Evidence—Certificate of Commissioner.</p> <p>A certificate by the Commissioner of the General Land Office that a certain, survey had been sold to an actual settler and the sale afterward canceled on account of abandonment was not admissible to impeach the title of one applying-to purchase it between the date of sale and that of abandonment as shown by such certificate.</p> <p>2. —Same—Certifying to Conclusions.</p> <p>The Commissioner is authorized by law to certify to copies of his records- or to facts that appear from the records; but his certificate to a sale having-been made is rather his conclusion from a combination of facts,—the many steps, to be taken by a purchaser to acquire title,—and is not admissible as evidence.</p>

<p>1. —Malicious Prosecution—Advice of Counsel—Fairness of Statement.</p> <p>See opinion for facts supporting’ a finding that prosecution was malicious, "though instituted upon advice of the assistant county attorney, when complainant should have inquired into the rights of defendant as a tenant in possession, and the conclusion was warranted that he did not state all" the facts nor institute the prosecution in good faith.</p> <p>2. —Malicious Prosecution—Damages, Actual and Exemplary—Loss of Credit.</p> <p>Loss of credit is an element in exemplary, not actual damages, and evidence thereof is admissible under a general allegation of exemplary damages.</p> <p>3. —Same—Charge of Court.</p> <p>See charge submitting injury “to plaintiff’s feeling, credit, or reputation” •as an element of actual damages, held not erroneous,—the term credit being there used in the sense of standing as a citizen, and not financial repute.</p> <p>4. —Evidence—Bill of Exceptions.</p> <p>A bill of exception to the rejection of evidence should, ordinarily, state what the testimony excluded would have been. See case held to fall under the general rule and not the exceptions.</p> <p>•5.—Malicious Prosecution—Evidence.</p> <p>A vendee of a landlord having prosecuted criminally the tenant under his vendor for breaking open a pasture gate which the vendee had locked, the tenant, in an action for malicious prosecution, could show the terms of his tenancy hearing on his right to do the act in question, though they were not shown to tie known to the prosecutor.</p>

<p>1. —Equity Jurisdiction—Cancellation of Void Deed.</p> <p>Although a deed be void on its face, yet since it operates as a cloud on the-title of the property conveyed, a court of equity in this State has jurisdiction of a suit to cancel it.</p> <p>2. —Power of Attorney—Sale of Land.</p> <p>A power of attorney to sell land authorizing the agent to sell "on such terms-as to him shall seem meet, did not empower him to convey in settlement of claims or debts, nor to take for part of the consideration a nonnegotiable note of the purchaser not due until one year after the removal of an attachment-lien against the land, of which the owner had no knowledge, claimed by the purchaser who was authorized to apply the money due by the note to discharging-the lien or judgment to be determined in such suit; and a deed by the attorney reciting such terms was void on its face.</p> <p>3. —Same—Reformation of Deed.</p> <p>The court could not reform such deed and impart validity to it upon the-offer of the defendant to pay the money due by the note in such reasonable tune-as the court should fix, “as long as he is protected against said attachment lien,” since the court had no power to add to or subtract from the agent’s authority,, or to change the contract as made.</p> <p>4. —Deeds—Reformation—Mistake of Law.</p> <p>A mistake by a party as to the legal meaning and effect of an executed, agreement such as a deed affords no ground for a reformation of the instrument.</p> <p>5. —Assignment of Error.</p> <p>See opinion for an assignment of error to the exclusion of evidence as to the custom in protecting against liens in making sales of land, held not sustained by the record and a bill of exceptions using broader and more general terms.</p> <p>6. —Power of Attorney—Usage and Custom.</p> <p>A publicly known usage may be proved to show that the authority of an. agent was conferred in contemplation of it, but such usage can not be so substituted for the power, as to give authority not conferred by the instrument itself-</p> <p>7. —Same—Allegata and Probata.</p> <p>Where there was no allegation in defendant’s answer that plaintiff had, before the execution of the deed, enlarged the authority of the agent as conferred in the power of attorney so as to fully authorize the conveyance as made to defendant, it was not error to refuse to admit evidence of such enlargement.</p> <p>8. —Same—Agent Exceeding his Powers—Cancellation of Deed.</p> <p>Since one dealing with an agent selling land is bound to ascertain the extent of his powers, where a deed by an agent is canceled because made in excess, of his powers, and therefore void, the principal is not required to refund a cash, payment made to the agent, but which the principal never received.</p> <p>9. —Same—Price Immaterial Where Deed Void.</p> <p>Where a deed by an agent is void bcause made in excess of his powers, evidence in an action to cancel it that the price was the full value of the land is immaterial.</p>

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

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

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

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

<p>Judgment Lien—Issuance of Execution.</p> <p>Where executions issued within twelve months after the rendition of a judgment, an abstract of which had been duly recorded and indexed, this was sufficient, under the terms of the statute, to fix the lien of the judgment, although the executions were, on partial payments being made thereon, returned by order of the judgment creditor. Eev. Stats., art. 3290.</p>

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

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

<p>1.—Limitations—Estoppel—Default Maturing Notes.</p> <p>Defendants, a husband and wife, executed for a debt secured by a mechanic’s lien on their homestead a series of notes, one maturing each month, with stipulation that default in the payment of any three of the notes should mature the entire debt. Default was made as to payment of three of the notes, but the husband paid them several months later, and at different times thereafter paid others of the notes, the parties acting as though no default had taken place. ’Suit was brought for the remainder of the debt more than four years after the ■default on the three notes, but at a time when none of the notes sued on were "barred on their face. Held, that the default in the payment of the three notes matured the entire debt, and limitations ran against it from that time, and that -the acts of the husband, consisting of promises to pay the notes with a plea for further time, coupled with a promise on the holder’s part not to sue, did "not estop the husband from asserting the bar of limitations.</p> <p>ÍZ.—Mechanic's Lien on Homestead—Foreclosure—Wife Necessary Party.</p> <p>The wife is a necessary party to an action to foreclose a mechanic’s lien on the homestead in the execution of which she necessarily joined.</p> <p>3.—Estoppel Against Wife—Lien on Homestead.</p> <p>In a suit on notes in connection with which foreclosure of a mechanic’s lien ■on the homestead is sought, acts of the husband constituting as to him an estoppel to plead limitations would not estop the wife, where she was not connected with such acts and was guilty of no positive fraud..</p>

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

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

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

<p>1. —Appeal—Filing Briefs—Inexcusable Delay—Cause Dismissed.</p> <p>Where an appeal was perfected May 19, 1901, and the transcript filed in the Court of Civil Appeals on June 27th, delay by appellant in filing briefs until October 12, 1901, not excused, was such gross negligence and such a violation of the statute providing that the briefs shall be filed not less than five days before the'filing of the transcript in the Court of Civil Appeals, as warrants sustaining a motion to strike out the briefs and dismiss the ease for want of prosecution. Rev. Stats., art. 1417.</p> <p>2. —Same—“Five Days Before” Construed.</p> <p>The statute, in requiring appellant’s brief to be filed below “not less -than five days before the time of filing the transcript in the Court of Civil Appeals,” means five days before the transcript is actually so filed regardless of when it is filed, so that it is filed within the ninety days fixed by the statutes. Following Railway v. Holden, 93 - Texas, 211.</p>

<p>Appeal from the County Court of Bexar.</p> <p>Tried below before Hon. R. B. Green.</p>

<p>1. —Appeal—When Perfected—City Exempt from Bond—Failure to File Transcript.</p> <p>Where a city, by virtue of a provision of its charter, is exempted from giving bond on appeal, notice of appeal by it fully perfects the appeal, so as to entitle appellee to an affirmance of the judgment on certificate upon the city’s failure, without good cause, to file the transcript in the appellate court within ninety days as required by the statute. Rev. Stats., arts. 1388, 1015, 1016.</p> <p>2. —Same—Failure to File Transcript Not Excused.</p> <p>That the city intends to bring up the case by writ of error affords no excuse for its failure to duly file the transcript on its appeal, where the appeal has not been abandoned.</p> <p>3. —Same—Transcript—Defective Preparation—Rules of Court.</p> <p>Where the transcript is not fastened together by a tape or ribbon and sealed over the tie with the seal of court, and the certificate contains a number of erasures, it does not conform to the rules, which will hereafter be strictly enforced. Rule 90 for District Courts; Locker v. Miller, 59 Texas, 499.</p>

<p>1. —Railway Company—Unguarded Turntable.</p> <p>Where, in an action for injuries to a child in playing on an unlocked and unguarded railroad turntable, there was evidence showing that the turntable was of unusual attractiveness to children, and that they played thereon in view of defendant’s employes without protest, a motion to instruct a verdict for the defendant company was properly refused.</p> <p>2. —Same—Implied Invitation to Children.</p> <p>It is immaterial whether a child injured on a turntable was on her father’s premises or those of the railway company at the time when, in acceptance of the invitation inferable from the attractiveness of the table to children, she went thereon to play.</p> <p>3. —Same—Lawful Use Not Determinative.</p> <p>That the railway company made a proper and customary use of its property by locating a turntable thereon, did not warrant the giving of a charge which would have withdrawn from the consideration of the jury the invitation given by implication to children to go upon the table.</p> <p>4. —Damages for Personal Injury—Evidence.</p> <p>Where the evidence in an action for injury to a child shows that she has been rendered a cripple for life, her capacity for manual labor totally destroyed, and that her education is insufficient to qualify her for any other vocation, evidence of the ordinary wages of household servants is admissible to aid the jury in estimating the damages to which she is entitled.</p>

<p>1.—Lease—Proviso—Option to Buy Held Conditional.</p> <p>Where a lease contained a proviso reserving to the lessor the right to sell the land and terminate the lease at the end of any rental year on six months’' notice, and giving the lessee the privilege of buying the land at a price to be fixed by the lessor, and which might be bona fide offered by any other party, the option to ' buy was conditional upon the lessor electing to terminate the lease by making a sale, and did not apply to a sale made subject to the lessee’s rights to the end of his term.</p> <p>'2.—Same—Paroi Evidence.</p> <p>The language of the proviso in the lease being unambiguous and certain, paroi evidence was not admissible to show that it was agreed and understood at the time the lease was executed that the option to buy should be unconditional.</p>

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

<p>1. —Carrier of Passengers—Negligence—Setting Passenger Off at Wrong Station.</p> <p>Evidence in an action by a passenger for being negligently set off at the wrong station, held insufficient to warrant a verdict for plaintiff who, because of defective hearing, mistook the station when its name was properly called,— the train porter, who did not know her destination, merely assisting her to alight.</p> <p>2. —Same—Passenger with Defective Hearing—Degree of Care.</p> <p>Where a passenger is subject to a physical infirmity, such as hardness of hearing, it is only where this is known to carrier or its servants in charge of the train that such passenger is entitled to a greater degree of care and attention than those not so affected.</p> <p>3. —Same—Charge Held Confusing.</p> <p>A charge in such action, that if defendant’s porter knew plaintiff’s destination, and in the exercise of ordinary care assisted her to alight at her request, to find for defendant, was confusing and misleading because, as plaintiff was not injured in alighting, the qualifying clause as to the “exercise of ordinary care” by the porter might be understood as intended to charge that he was to use ordinary care in directing plaintiff to alight, which was not part of his duty.</p> <p>4. —Same—Evidence—Duties of Train Porter.</p> <p>As tending to support the defendant company’s contention that its porter did not invite plaintiff to alight, evidence was admissible to show what were the duties of the porter, and that it was not his duty to know the destination of passengers and to inform them of their arrival there.</p>

<p>1. —Joinder of Parties and Causes of Action—Claim for Property Destroyed.</p> <p>Where the owner of cotton and an insurance company joined in an action against a railroad company for the value of the cotton, which had been destroyed by fire while in defendant’s possession, the insurance company claiming an interest in the amount recoverable under an assignment by the owner of his claim to the extent of the insurance paid, there was no mis joiner of causes of action or of parties.</p> <p>2. —Railroad Company—Fire—Spark-Arresters—Charge.</p> <p>In an action against a railroad company for the value of cotton destroyed by fire from its engines, a charge to the effect that defendant was bound to use the “best approved appliances” for preventing the escape of sparks from its engines was not critically correct; yet the giving of such charge was harmless error where defendant proved that its engine was equipped with the best appliances in use, and plaintiff made, no attempt to show that there were other appliances having the approval of scientific authority.</p> <p>3. —Same—Prima Facie Case—Charge.</p> <p>Plaintiff having proved that the fire was caused by sparks from defendant’s engine, and defendant having shown that its engine was equipped with a proper spark-arrester, but without proving the condition of the arrester at the time of the fire, or that ■ the engine was properly handled, the prima facie case of plaintiff was unrebutted, and there was no reversible error in the failure of the court to give an instruction to the effect that defendant was bound to use only ordinary care in keeping its arresters in good order and was not bound absolutely to maintain them in such condition.</p> <p>4. —Same—Negligence—Selection of Competent Servants.</p> <p>A railway company is liable for the negligence of its servants operating its engines, even though it has exercised ordinary care in appointing them.</p> <p>5. —Same—Burden of Proof.</p> <p>Where plaintiff’s evidence showed that the fire which destroyed the cotton was from sparks escaping from defendant’s engine, a prima facie, case was made, and the burden was shifted to the defendant to show that its engine was properly equipped and operated; and hence a charge that the burden was on plaintiff to show that the cotton was destroyed by fire set from the engine, and originating through defendant’s negligence, although a correct proposition, would have been misleading as to the burden of proof, and was therefore properly refused.</p> <p>6. —Same—Building House Near Railroad Track—Negligence.</p> <p>The owner of a lot is not guilty of negligence in building a house thereon and storing goods in it, although it be in close proximity to a railroad track where engines are constantly passing.</p> <p>7. —Same—Evidence—Inspection of Engine.</p> <p>Testimony of a foreman in charge of the company’s inspectors of engines that the record of inspections kept by him showed that the spark-arrester of the particular engine was in good condition was properly excluded where it was shown that he made the entry from a report handed him by a boiler maker, and it did not appear where the latter got it, or who made the inspection, or that the foreman ever saw the engine, and the non-production of the better evidence was not accounted for.</p>

<p>Error from the County Court of Bowie.</p> <p>Tried below before Hon. A. S. Wattington.</p>

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

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

<p>1. —Negligence—Repair of Sidewalk—City Ordinances—Liability of Property Owner for Personal Injuries.</p> <p>The owner of a building in á city having, as provided by its ordinances, obtained its permission to make certain repairs, including the taking up and lowering of the abutting sidewalk, erected barriers to close the sidewalk and to warn the public of the situation while the work was being done. Plaintiff was employed by the owner in repainting the building, and while working within the barriers was injured by stepping into a coal hole in the sidewalk, which was uncovered in making the repairs. Held, that ordinances of the city making it the duty of property owners to keep the sidewalks in good repair and free of obstructions and uncovered openings, did not apply to the sidewalk in question so long as it was not open at that point to travel by the public, and that the owner’s liability to plaintiff was to be determined by the common law and not by the city ordinances.</p> <p>2. —Same—Charge Assuming Negligence.</p> <p>The court properly refused a requested instruction containing a clause that “if by negligence of defendant in making the hole and leaving the same open, if in fact it was left open, defendant did not exercise proper care to prevent injury to others lawfully upon the sidewalk,” etc., since this assumed that defendant was negligent in making the hole and leaving it open, if same was left open.</p>

<p>Appeal from Fannin.</p> <p>Tried below before Hon. Ben. H. Denton.</p>

<p>Appeal from Eockwall.</p>

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

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

<p>1. —Presumption of Survivorship—Common Law.</p> <p>Under, the rules of the common law, which obtain in Texas, there is no presumption of survivorship or of simultaneous death in the case of persons who perish in a common disaster.</p> <p>2. —Same—Issue Not Raised by Evidence.</p> <p>Where a husband and wife perished in the great storm at Galveston, and the evidence showed merely that the husband, during the storm, started to his home to get his wife, and neither of them were ever seen aftrwards, the evidence was not sufficient to raise an issue of survivorship.</p> <p>3. —Life Insurance—Burden of Proof as to Survivorship.</p> <p>Where a life policy provided that it should be payable to the beneficiary named, “if living; if not living, to the insured’s executors, administrators, or assigns,” and the beneficiary and the insured perished in a common disaster, the burden of proof in an action for the proceeds of the policy was on the legal representatives of the beneficiary to show that the beneficiary survived the insured, and in the absence of such proof they were not entitled to recover as against the administrator of the insured’s estate.</p>

<p>1. —Contracts—Indivisible Nature—Payments in Installments.</p> <p>A provision in a building contract for payments in installments as the work progresses does not affect the entire and indivisible nature of the contract, and such payments are not an acceptance o.f the work pro tanto and acquittance of the contractor to that extent.</p> <p>2. —Garnishment—Uncompleted Contract.</p> <p>Money to become due on an entire but uncompleted building contract is not subject to garnishment.</p> <p>3. —Same—Answer of Garnishee.</p> <p>Where the answer of a garnishee set up a building contract with the debtor, entire in its nature and still uncompleted, but providing for- payments as the-work progressed, and further set up that the amount which the garnishee had paid the contractor was less than the estimated value of the work done, this; was not equivalent to an answer that the per cent of the value not covered by the payment had then accrued as a debt against the garnishee, since he did not then owe the unpaid balance of the estimated value, and even had a certain interest in the sums already paid in the. event the work was abandoned and he had to finish the contract.</p> <p>4. —Cases Reviewed.</p> <p>McClellan v. Routh, 15 Texas Civil Appeals, 344; Carter v. Bush, 79 Texas, 31, and Mensing v. Engelke, 67 Texas, 537, reviewed and distinguished.</p> <p>5. —Garnishment—Lien Extends to What Date.</p> <p>The garnishment lien attaches only to such liability as had accrued at the date of service of the writ or accrued between such service and the date named, for the answer, and the operation of the writ is not extended by virtue of a request of the garnishee for time in which to file an amended answer.</p> <p>6. —Same.</p> <p>Where by virtue of a garnishment a creditor asserts a lien on funds not subject thereto other creditors who have acquired rights in such funds may raise: the defense, as it is not personal to the garnishee.</p>

<p>1. —Married Woman—Contracts for Necessaries—Liability of Husband.</p> <p>Where a husband made ample provision for the support of his wife, but she left home without his consent, opened a boarding house and contracted debts for necessaries in running it, the husband was not liable for such debts, and in an action against him thereon it was error to exclude evidence that the wife left home without his consent.</p> <p>2. —Same—Application of Payments.</p> <p>In an action for such debts, brought upon an account with a merchant which the wife had made and upon which she had made part payments out of her earnings, the husband had the right to have such earnings, which were community-property and subject to his control, credited upon a part of the account for which he might be held liable as necessaries, as against another prior item therein in the nature of a loan or advance of money to the wife.</p>

<p>Appeal from Nacogdoches.</p>

<p>Appeal from Washington.</p>

<p>1. —Negligence—Telephone Company—Poles—Act of God.</p> <p>A finding that the telephone pole the breaking of which caused injury to plaintiff’s property was unsubstantial at the place where it broke, and that the defect was the cause of the breaking when other poles of less apparent strength were uninjured, was not a finding that the pole was unfit and insufficient under ordinary circumstances, and did not authorize a judgment for plaintiff where the breaking of the pole was caused by an unprecedented storm such as might be termed an act of God.</p> <p>2. —Same—Fact Case.</p> <p>See evidence held not to show that a telephone pole was insufficient under ordinary conditions.</p>

<p>1. —Real Estate Broker—Commissions—Exchange of Lands.</p> <p>Where defendant, wishing to exchange his lands, which were in three several tracts, for Texas land, agreed that if plaintiff brought about a trade he would accept, he would pay for the services, and that he could trade a part or all of his lands, and plaintiff found an owner of Texas lands willing to exchange, and brought the parties together and an exchange was consummated, plaintiff was entitled to his commissions, despite the facts that after the parties were brought together it developed that a lien existed on the Texas lands by reason of which one of defendant’s tracts was not included in the exchange as finally made.</p> <p>2. —Same—Quantum Meruit—Additional Agreement.</p> <p>An agreement by plaintiff to accept $500 for his services in effecting the exchange did not preclude him from recovering more on a quantum meruit where, as an inducement for such agreement, defendant promised to pay a further reasonable compensation if he found the Texas land satisfactory, and he did so find it.</p> <p>3. —Same—Paroi Evidence.</p> <p>Defendant’s promise by verbal representation to pay more than $500 if the lands proved satisfactory was an independent agreement, and could be proved by paroi, although plaintiff’s agreement to accept $500 was in writing and such promise was an inducement thereto.</p>

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

<p>Appeal from the County Court of Victoria.</p> <p>Tried below before Hon. Ben W. Fly.</p>

<p>1. —Railroads—Killing Live Stock—Fenced Right of Way—Ordinary Care.</p> <p>Where a railroad company fences its right of way it is liable .only for injuries resulting from want of ordinary care in the operation of its trains, or in failing to keep its fences in repair. Rev. Stats., art. 4528.</p> <p>2. —Same—Gap in Fence.</p> <p>Where the evidence showed that the railroad company had fenced its right of way, and that there was a gap in the fence through which plaintiff’s cattle came upon the right of way, and were killed by the train, it was error to hold that absolute liability of the company was shown, and to reject testimony tending to show ordinary care in keeping the fence in repair.</p> <p>3. —Practice on Appeal—Exceptions to Findings Below.</p> <p>Where an action against a railway company for killing live stock was tried "before the court alone, and the court erroneously rejected evdence showing diligence on defendant’s part in maintaining the fence along its right of way, and found as a fact that the was no negligence in the operation of defendant’^ train, and such finding was not excepted to by plaintiff, and he filed no cross-assignment of error attacking such findings as unsupported by the evidence, he was not entitled on appeal to urge that such ruling was harmless on the ground that the uncontradicted evidence showed that defendant was negligent in operating the train.</p>

<p>1.—Personal Injuries—Evidence—Damages—Earning Capacity.</p> <p>In an action for personal injuries evidence that plaintiff had been superintendent of a farm some five years before, at a salary of $700 per year, and that ¡such positions usually paid $700 to $900, was inadmissible, as being too remote, where it was not shown that plaintiff had in view or prospect such a position on leaving the one he then held, paying $35 per month, and which he would lose at •the end of that month.</p> <p>:2.—Trial—Reading Decisions to Jury—Argument of Counsel.</p> <p>In an action of damages for personal injuries it was reversible error for the ■court to allow counsel for plaintiff, over objection, to read to the court on the "trial and in the hearing of the jury, cases not bearing on any question of law involved in the trial, but very similar to the one at bar as to the circumstances of the accident and the character of the injury, and afterwards to comment to "the jury on the fact that in the case involving like circumstances the plaintiff "was held on appeal to have been without negligence, and in the one presenting ¡similar injuries a verdict allowing substantial damages had been approved.</p>

<p>1. —Execution—Paroi Evidence—Clerical Error.</p> <p>Parol evidence is admissible to show a clerical error in the return of an execution, such as a wrong recital of the date of the levy.</p> <p>2. —Same—Trespass to Try Title.</p> <p>Where in trespass to try title the defense was a purchase of the land at execution sale against the plaintiff, it was error to exclude the execution, which was issued June 9, 1899, and the sheriff’s deed thereunder, on the ground that the return recited that the writ was issued and levy made June 1, 1899, and that the deed also recited the levy as made on that date, it sufficiently appearing from the execution and return that the date of levy entered on the return was a clerical ej;ror, and defendant having offered evidence to show the mistake.</p> <p>3. —Trespass to Try Title—Common Source.</p> <p>Where in trespass to try title it was agreed that plaintiff was the common source of title the burden was on defendant to show that he had acquired the plaintiff’s title.</p>

<p>Appeal from Harris.</p>

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

<p>Traud—Pleading Requisite—Contract and Quantum Meruit.</p> <p>Where, in an action by an attorney to recover the value of services, defendant pleaded an agreement by which he was entitled to fix the amount to be paid, with proof of payment, plaintiff could not avoid defendant’s action in fixing the amount of the compensation and recover the reasonable value of the services upon quantum meruit without pleading that defendant acted in bad faith.</p>

<p>1. —Usury—Contract with Building and Loan Association.</p> <p>See contract with a building association, including a subscription for stock therein, application for a loan, execution of note therefor, with deed of trust and mechanic’s lien to secure same, and monthly payments on the stock, etc., held to be one entire transaction and a scheme to cover usury.</p> <p>2. —Same—Lien Rendered Invalid.</p> <p>The execution of the building contract giving a mechanic’s lien and its assignment to the association being parts of a single transaction designed to secure a loan which was usurious, the association was not entitled to enforce such lien, although itself bearing interest at a lawful rate.</p> <p>3. —Same—Mechanic’s Lien on Homestead—Attorney Pees.</p> <p>A mechanic’s lien on the homestead executed by the husband and wife for improvements thereon can not be made to include and fix on such property a valid lien to secure an attorney fee of 10 per cent of the amount stipulated as the value of the work and material in case such amount be collected by law.</p> <p>4. —Same—Withdrawal Value of Stock.</p> <p>Where a subscription for stock in a building association with provision for monthly payments thereon is but part of a scheme to cover usury in a loan to the subscriber, he is entitled to have the full amount of such monthly payments, and not their withdrawal value only, credited on the principal of the loan, there being in such case no bona fide subscription for the stock.</p> <p>5. —Same—Double Recovery for Usury—Penalty Credited on Principal.</p> <p>One who pays interest on a building and loan contract tainted with usury is entitled to recover double the amount of all interest actually paid, although the first payments were not themselves usurious, and also to have the entire penalty given by the statute for usury (double recovery of the interest paid), .credited on the principal of the debt. Rev. Stats., art. 3106.</p>

<p>1. —Sale—Venue—Corporation.</p> <p>Where a private corporation purchased goods to be delivered free on board cars in G. County for an agreed price fo be paid in cash, the contract was to be performed in G. County, and the corporation could be sued there for the price of the goods, although its domicile was in another county. Rev. Stats., art 1194 (exception 23).</p> <p>2. —Same—Delivery Complete—Injury in Transit.</p> <p>Upon the delivery of the goods free on board the cars in G. County, the title passed, and the risk of damage then became the buyer’s, although the seller drew drafts for the price, with bill of lading attached, on defendant at its domicile in H. County,—this being so done to meet the convenience of the purchaser in making payment.</p> <p>■3.—Same—Pleading Over Against Carrier.</p> <p>Where a buyer is sued for the price of goods shipped by rail and damaged in transit, he has the right, although he denies that the title had passed or that the .goods were his, to implead the carrier to recover the damages in the alternative that the goods should be held to have been at his risk in transit. See plea held good against a general demurrer.</p> <p>•4.—Same—Joinder of Actions.</p> <p>The joinder of causes of actions is left in a large measure to the discretion of the trial court, and where suit was brought for the price of goods damaged in ■ transit through the negligence of a common carrier, defendant was properly allowed to bring in the carrier on his plea for judgment over against it in the ■event he was found to be the owner when the damages occurred and liable to plaintiff for the full price.</p> <p>5.—Common Carrier—Negligence—Act of God.</p> <p>See evidence held insufficient to clear a railway company of negligence because of injury to its cars by an unprecedented storm.</p> <p><6.—Same—Right to Retain Freight Charges.</p> <p>Where goods were damaged in transit through negligence of the initial carrier, and the purchaser refused them on their delivery by a connecting carrier, and the latter sold the goods upon instructions of the purchaser, it was properly allowed to retain its freight charges out of the proceeds of the sale.</p>

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

<p>1. —Municipal Corporation—Defective Sidewalk—Personal Injuries—Title of City to Street.</p> <p>Where a city is sued for personal injuries caused by a defect in the sidewalk of a street, it is not necessary for plaintiff to prove title to the property in the city, but it is sufficient to show that the city had assumed ownership and control of the property for street purposes.</p> <p>2. —Same—Evidence of City’s Control.</p> <p>Evidence showing that the city had previously sold improvements on the property where the street was situated, and authorized their removal preparatory to opening the street, and had opened the street, was sufficient to warrant submitting to the jury whether or not the city had assumed ownership and control of the property for street purposes.</p> <p>3. —Same—City’s Liability—Notice Not Necessary.</p> <p>Where a city charter provided that the city should not be liable for any injuries sustained by reason of defective condition of sidewalks, etc., unless such ■condition should have continued for ten days after notice to certain city authorities, and the city sold certain fences on property through which a street was opened, and authorized the purchaser to remove them, which he did within the knowledge of the city, but he failed to fill a hole left where a fence post was removed, just beside the sidewalk, and a pedestrian stepped into the hole, the charter provision had no application to such case, and did not protect the city, although no notice of the hole had been given, since the act of the purchaser was to be considered the act of the city.</p> <p>4. —Practice bn Appeal—Verdict Directed.</p> <p>Where the trial court has directed a verdict the question of error in refusing charges is not in the case on appeal.</p>

<p>Venue—Sale of Claim—Collusion.</p> <p>Where the owner of a claim against a bank domiciled in another county, knowing that suit would have to be brought thereon, and in order to procure the venue in the county of his residence, sold the claim to plaintiff with guaranty of its payment, the plaintiff, having purchased in good faith, for value, and without notice of such purpose on the part of the owner, was entitled to maintain suit against his assignor and the bank in the county of the farmer’s residence.</p>

<p>1. —Public School Election—Validity—Irregularities—Quo Warranto.</p> <p>Where at an election for district school trustees held at the proper time and place for holding such election, the officers appointed to hold it failed to appear and act, and a person appointed by the county judge, without authority, to hold the election selected two others to assist him as clerks, and the election was held by them honestly and fairly, all legal votes presented being received, no one protesting against the election, and due return thereof being made, there was a ratification by the voters of the acts of such officers, and it was error to adjudge the election void in a quo warranta proceeding brought by the state at the relation of one having no interest in the controversy.</p> <p>2. —Same—Returns—Election Officers Hot Sworn.</p> <p>The returns of such election were properly made to the county judge, where he was ex officio superintendent of education; and the fact that the officers holding the election were not sworn did not render the election void.</p>

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

<p>1. —Exemptions—Buggy—Tools of Profession.</p> <p>A single man engaged in a land, loan, and insurance agency business is not. entitled to have exempted from execution, as tools and apparatus belonging to-his trade and profession, a harness and buggy which he uses in carrying on such business.</p> <p>2. —Plea in Reconvention—Insufficiency—Practice on Appeal.</p> <p>Where defendants’ plea in reconvention alleged merely that they had sustained damages from the wrongful suing out of the injunction to restrain a sale of property under their execution to the value of the property, and the court so found, in the absence of an exception to such plea and a statement of facts in the record, a judgment for damages in reconvention will not be disturbed.</p> <p>3. —Bill of Exceptions—Statement of Pacts.</p> <p>A bill of exceptions containing a statement of all the facts proven on the-trial can not be substituted for and treated as a statement of facts.</p>

<p>School Land—Appraisement—Mistake of Clerk—Award.</p> <p>A section of school land was classified by the Commissioner of the General Land Office in 1887 as “agricultural,” and appraised at $2 per acre, and after-wards the commissioners court reclassified it as “dry grazing,” but did not reappraise it, and the county clerk, in mistake of instructions from the Land Office, put the land on his record as grazing land at $1 per acre. The Commissioner awarded the land to defendant upon his application thereafter as an actual settler offering $1 per acre, but subsequently awarded it to plaintiff, who applied for it, at $2 per acre. The evidence showed that defendant was not an actual bona fide settler upon the land, and that his application was made in collusion with another. Held, that plaintiff was entitled to recover the land, and that, as the1 act of the clerk in putting the land on the record at $1 per acre was without authority, the sale at that price was void. Hunter, Associate Justice, holds that plaintiff was entitled to recover, but is of opinion that while the clerk had not authority to put the price on his records at $1, yet having done so, and the Commissioner having awarded the land at that price, this was such a ratification, as rendered the sale at $1 per acre valid:</p>

<p>1.—Negligence—Pleading in Action for Personal Injury—Jumping from Moving Train.</p> <p>Where in an action for personal injuries, the petition alleged that the train was moving rapidly at the time plaintiff, who had assisted his wife to find a seat, jumped off in the dark; that he was unable to see how fast it was moving or where he would alight, but that the train was still at the station where passengers get on and off, and that he supposed that it was moving slowly, no lights being placed whereby he could estimate the speed,—a general demurrer to the pleading, urged on the ground that it showed plaintiff was guilty of negligence in jumping from the train under the circumstances alleged, was properly overruled, as it was for the jury to determine whether a man of ordinary prudence and care would have reasoned and acted as plaintiff did.</p> <p>3.—Same—Evidence.</p> <p>It was competent for plaintiff to testify that the train was not going very fast at the time he jumped off, and that he thought he could get off safely.</p> <p>3. —Same.</p> <p>Plaintiff was entitled to prove, as a fact tending to show that the train did not stop for a reasonable length of time to allow passengers to get on, that another person was at the station the same morning and bought a ticket for the same train, and before he could get on it pulled out and left him.</p> <p>4. —Same.</p> <p>That other persons who had attended ladies into the train jumped off just before and in the presence of plaintiff and were not injured, could be shown, since this fact tended to produce the conclusion in plaintiff’s mind that the train was not moving rapidly and that he might safely jump.</p> <p>5. —Same—Notice of Custom.</p> <p>There was no error in permitting a witness to testify that on the same . morning he attended a passenger to the train, and seated her at the same time plaintiff seated his wife, and that two or three times before he had done the ■same with other pasengers, as this tended to establish that such was the custom there, and to show notice of such custom to the agent in charge of the train.</p>

<p>Appeal from the Comity Court of Cooke.</p>

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

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

<p>Appeal from Tarrant.</p>

<p>Appeal from the County Court of Tarrant.</p>

<p>Venue—Railway—Connecting Carriers.</p> <p>Under the Act of May 20, 1899 (Acts 26th Leg., p. 214) one of two or more connecting carriers transporting a shipment may be sued for injury to it in the county into which the other’s line extends, but defendant’s line does not, though such other carrier is not made a party.</p>

<p>Appeal from the County Court of Hamilton.</p> <p>Tried below before J. C. Roberts, Special Judge.</p> <p>Allen and his sureties appeal from a judgment against them in county court, on their appeal from one recovered in justice court, at suit of Glover.</p>

<p>Appeal from Coryell.</p>

Tried below before Hon. Marshall Surratt. The bank sued White and others for debt and foreclosure, and had judgment, from which White appealed.

Hanna and others sued the railway company for damages to real estate, and defendant made Cochran and others parties on a bond of in•demnity. Plaintiffs had judgment, but appealed.

<p>Appeal from Caldwell.</p> <p>La Prelie sued the railway company and recovered judgment, from, which the latter appealed.</p>

<p>1. —Jurisdiction—Amount—Interest—Amendment.</p> <p>Where the amount claimed as damages in plaintiff’s original petition, with interest thereon at 6 per cent from date of filing, did not exceed the court’s jurisdiction at the time of such filing, an amended petition, claiming the same amount, with interest from the same date, filed at a time when the accrued interest had raised the damages above the jurisdictional amount, was improper, but did not necessarily defeat the court’s jurisdiction over the proper amount; and it is suggested that upon another trial the plaintiff may amend his petition in this respect.</p> <p>2. —Contract for Live Stock Shipment—Prior Verbal Agreement.</p> <p>In the absence of any evidence of fraud, compulsion, or .want of time to read the written contracts for the shipment of the live stock, they must be taken as merging all previous understandings between the parties. See evidence held to show that the contracts sued on were duly executed by plaintiff’s direction in order to secure transportation for his helpers.</p> <p>3. —Same.</p> <p>Where plaintiff pleaded the written contract of shipment as well as the alleged verbal one, he was entitled to recover any damages that occurred on defendant’s own line.</p> <p>4. —Same—Waybill—Agent’s Report.</p> <p>The fact that a waybill issued by the defendant for the guidance of its employes was denominated a “through live stock waybill” to a point on the connecting line, via the point on defendant’s line specified in the written contract, did not change or affect the terms of such written contract, nor could the shipping report signed by plaintiff and the agent at the connecting line at the connecting point have such effect.</p> <p>5. —Same—Evidence—Value at Destination.</p> <p>A witness acquainted with live stock and their values generally and who saw the cattle at the point of destination may testify to their value and condition there, and the condition they would have been in if properly transported, although he did not see the cattle when shipped or en route.</p>

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

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

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

<p>Water Eights—Deed—Construction.</p> <p>In construing a clause of a partition deed having reference to the rights of the parties to the use of water in a system of irrigating ditches on the land, weight should be given to the conditions which existed at and before the execution of the deed. See construction of a water clause.</p>

<p>1. —Master and Servant—Assault by Servant—Scope of Employment—Master’s Liability.</p> <p>The master ran a lunch counter with an agent in charge, and plaintiff, having taken lunch there, paid for it, but was compelled by the starting of his train to leave before receiving back certain change due him. Some days later plaintiff, after again eating at the lunch stand and paying for his lunch, demanded the change theretofore due him, and the agent claiming that the change had already been returned, plaintiff charged him with taking the money, and the agent, with an oath, started to get over the counter. Plaintiff went out, and when just outside the door applied an insulting epithet to the agent, who then got a pistol and ran after plaintiff and shot him as he was getting on the train. Held, that the master was not liable for the injury, as the assault was not within the scope of the agent’s employment and duty.</p> <p>2. —Case Distinguished.</p> <p>Railway v. LaPrelle, ante, page 496, distinguished.</p>

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

See evidence held to warrant a finding that none of the husband’s money ■went to pay for improvements placed on the land conveyed to him by defendant. Error from Bexar. Tried below before Hon. S. J..Brooks,

<p>:l.—Venue—Fraud—Transfer of Judgment.</p> <p>Where the action is to set aside a fraudulent transfer of a judgment it may .be brought in the county where such transfer was obtained, though the defend.ants reside in another county, since the seventh exception in the article of the statute regulating the venue of suits permits suit for a fraudulent act to be ¡brought in the county where the act was committed. Rev. Stats., art. 1194.</p> <p>: 2.—Same—Jurisdiction—Collateral Attack.</p> <p>Where a county commissioners court has made a fraudulent transfer of a Judgment on a bail bond to the sureties thereon, an action to set aside such ■transfer is properly brought in the district court, and is not a collateral attack on the judgment of a court of competent jurisdiction.</p> <p>.3.—Constitutional Law—Release of Debt to County.</p> <p>The provision of the Constitution denying to the Legislature the power to ¡authorize the release of any indebtedness due to the State or a county renders void the action of a county commissioners court transferring a judgment on a forfeited bail bond to an agent of the judgment debtors, for their benefit, and for less than the amount of the judgment.</p> <p>•4.—Sale of Judgment by County—Statute Construed.</p> <p>The article of the statute authorizing the commissioners court to sell a Judgment belonging to the county, where the judgment debtors are insolvent, does not authorize the sale of a judgment at a discount where the judgment debtors are solvent and the sale is to one who is acting as their agent and for their benefit. Rev. Stats., art. 845.</p> <p>.5.—Misjoinder—Harmless Error.</p> <p>Where a person is improperly joined as a defendant, such action is not prejudicial to the other defendants where all the costs incurred thereby are taxed against him and he files no pleadings and introduces no witnesses.</p> <p>6.—Abstract of Judgment—Indexing—Certificate of Clerk.</p> <p>The indexing of an abstract of a judgment can not be proved by a eertifi-cate of the county clerk to the effect that at a certain time he had indexed it, .¡as such a certificate is not a copy of the record certified to by him.</p> <p>‘7.—Assignment of Error—Bill of Exceptions.</p> <p>An assignment of error to the exclusion of evidence will not be entertained where the bill of exceptions does not indicate the ground on which the evidence ■was excluded.</p>

<p>1. —Libel—False Imprisonment.</p> <p>A newspaper article alleging that A. was confined in the county jail without any commitment or other legal paper, having been sent in by a justice in charge of a constable, who asked that he be held for trial, since which time he had been a prisoner, no one seeming to know why he was there, and that efforts were being made to secure his release,—charges false imprisonment, and is libelous per se.</p> <p>2. —Same—Burden of Proof.</p> <p>Although the article was libelous, the burden was on plaintiff, the sheriff having control of the county jail, to establish that he was meant as the object of the libel.</p> <p>3. —Same—Issue for Jury.</p> <p>It was a question of fact to be determined by the jury whether or not the libel was aimed at plaintiff, and evidence showing that the prisoner was not delivered to the sheriff in person, and that he had others in charge of the jail as his deputies, with other facts in proof, justified a finding that the defendants had no reference to the sheriff in the publication .of the article.</p> <p>4. —Assignment of Error.</p> <p>An assignment that the court erred “in not giving to the jury special charge number 5 asked by plaintiff, which was refused,” followed by a copy of the charge, is not a proposition in itself, and where not followed by a proposition pointing out the error of which complaint is made, it will be held as waived.</p>

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

<p>Appeal from the County Court of Delta.</p>

<p>Appeal from Dallas.</p> <p>Tried below before Hon. Thos. F. Nash.</p>

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

<p>1. —Action for Death—Statutory Liability—Negligence of Agent or Employe.</p> <p>Under the article of the’ statute giving a cause of action “when the death of any person is caused by the wrongful act, negligence, unskillfulness, or default of another,” a party is not liable for the acts or omission of his agents or employes, causing death, but death must result from his own immediate act or omission. Rev. Stats., art. 3017.</p> <p>2. —Same—Charge.</p> <p>Where, in an action of damages for causing death, the petition charged negligence on the part of defendants, lessees of an electric light plant, and their employes, and the court instructed that defendants would be liable if they were negligent in operating the plant, a requested charge that they would not be liable if the real and direct cause of death was some negligent act or omission on the part of the persons they had placed in charge of the plant to operate it, should have been given.</p> <p>3. —Same—Liability for Negligence—Electric Plant.</p> <p>Where death resulting from defective construction of an electric light plant in failing to have a guy wire properly insulated, the liability of the lessee company operating the plant depended on whether or not. they were negligent in not discovering and remedying the defect.</p> <p>4. —Negligence—Electricity—Degree of Care.</p> <p>In the construction and operation of 'an electric light plant the highest degree of care must be used to protect persons and property from injury.</p> <p>5. —Same—Liability Defined.</p> <p>Parties operating an electric light plant are bound to exercise proper care to see that the plant is properly constructed before having it operated, and if they are negligent in this respect, the death of another caused by such negligence renders them liable without actual knowledge of the defect, and although the plant is operated by their employes.</p> <p>6. —Action for Death—Minor Son—Parent’s Measure of Damages.</p> <p>A parent may recover for the wrongful death of a minor son the pecuniary value of the son’s services during minority, less the expense of his maintainance during that period, and in addition, such pecuniary aid as the parent has reasonable expectation of receiving from the son after his majority.</p> <p>7. —Same—Discretion of Jury.</p> <p>Since the statute provides that in actions for death “the jury may give such damages as they think proportioned to the injury,” the amount of the damages on such cases is within the discretion of the jury, subject, however, to revision by the court in the event such discretion is abused. Rev. Stats., art. 3027.</p>

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

<p>Appeal from Bowie.</p>

<p>1. —Vendor's Lien—Homestead—Loan—Superior Title.</p> <p>Where an owner of land contracted to sell it to defendant for an agreed', price, and as part of the same transaction to advance defendant $1200 with which, to build a house thereon, notes to be given for both amounts, the $1200' to be made a first vendor’s lien and the price of the land a second vendor’s lien, and the $1200 was advanced and used as agreed, $500 of it being so used before the execution of the deed which retained the liens as agreed, the total sum was in effect given for the property; defendant took it burdened with a vendor’s lien for the total amount, and could not assert homestead rights in the property against the superior legal title remaining in the seller until all the money was-paid.</p> <p>2. —Same—Estoppel—Rescission.</p> <p>The seller was not estopped to rescind the sale by reason of the fact that he had collected the price of the land and part of the notes given for the $1200' advanced, and had permitted the purchaser to make improvements.</p> <p>3. —Same—Superior Title Asserted—Return of Purchase Money Paid.</p> <p>Where the action was not to rescind, but to recover the property by virtue of the seller’s superior legal title, and defendant did not tender the balance due and ask to be permitted to redeem, he was not entitled to a return of the purchase money paid by him.</p> <p>4. —Res Adjudicata.</p> <p>See evidence held not to sustain a plea of res adjudicata, the parties and issues in this suit not being the same as in the former suit, and the issues in the former suit not appearing to have been determined there. •</p>

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

<p>Appeal from Houston.</p> <p>Tried below before Hon. John Young Gooch.</p>

<p>1. —Sale of Land—Rescission—Vendor’s Lien Notes.</p> <p>An agreement between the vendor and vendee to rescind the sale of land upon the surrender by the former of the latter’s notes given for the land, is not consummated where the notes, which the vendor had transferred to a third party, are not procured back and surrendered, although the vendor is in possession of the land.</p> <p>2. —Same—Superior Title Not Subject to Execution.</p> <p>The vendor having transferred the lien notes was then the holder of the superior legal title merely as trustee for the owner of the notes, and had m> interest in the land subject to execution.</p> <p>3. —Same—Lien Owner’s Right to Foreclose—Rescission.</p> <p>Where a vendor’s lien note has been purchased for value and without notice the holder’s right to have the lien foreclosed can not be defeated by a rescission, of the sale of the land made by the grantor and grantee.</p> <p>4. —Same—Notice of Lien—Estoppel.</p> <p>Where the purchaser of a vendor’s lien note is not shown to have been present at a sale by another of the land under execution, or to have had any reason to believe that the execution purchaser did not know of his claim, he is not estopped from asserting his lien against such purchaser.</p>

<p>Appeal from Harris.</p>

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

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

<p>1. —¿Negligence—Carriers—Charge of Court—Degree of Care.</p> <p>Where in an action by a passenger for personal injuries the issue of contributory negligence was involved, the presence in the charge of a correct definition of ordinary negligence, though not applicable to the duty imposed by law on the defendant, was not such error as was calculated to confuse and mislead the jury, where the court elsewhere gave a proper charge upon the degree of care which a carrier owes to the passenger.</p> <p>2. —Same—Error of Omission—Request for Charge.</p> <p>Where the error in the charge is not affirmative, but one of omission merely, which could be obviated by a requested charge, it is the duty of the complaining party to ask for such a charge.</p> <p>3.—Same—Pleading Necessary.</p> <p>Where plaintiff did not plead as a ground of recovery the negligence of the carrier in failing to provide lights at the depot, he can not complain of the exclusion of proof of such failure, or of the charge in instructing that the jury should not consider the absence of such lights in connection with the question of negligence.</p>

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

<p>Bill of Exceptions—Exclusion of Deposition—Error Not Shown.</p> <p>Where a bill of exceptions to the exclusion of plaintiff’s deposition as taken- and filed by defendant merely stated the fact of such exclusion and the reasons-therefor,—an error in addressing the commission in the full terms of the statute,—and it appeared that plaintiffs testified in the case by depositions taken-in their own behalf with cross-interrogatories by defendant, and there was nothing to show that the plaintiffs refused to answer defendant’s interrogatories, or to what they related, the bill was not sufficient to show there was material-error in suppressing the deposition.</p>

<p>Appeal from Brazos.</p> <p>Tried below before Hon. J. C. Scott.</p>

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

<p>Appeal from the County Court of Harris.</p>

<p>Appeal from Leon.</p>

<p>1. —Streets—Dedication—Acceptance.</p> <p>See evidence held to show the dedication of a street to public use and an acceptance thereof by virtue of the city council’s action in adopting as official a map showing such street.</p> <p>2. —Same—Mandamus—Parties.</p> <p>In an action by abutting property owners to have obstacles removed from a street and to compel the city council by mandamus to open it, other persons who are occupying the street under contract with the council are necessary parties.</p>

<p>Appeal from San Jacinto.</p> <p>Tried below before Hon. L. B. High-tower.</p>