Volume 28 — Texas Civil Appeals Reports

<p>1. —Married Woman—Specific Performance—Will.</p> <p>A married woman can not be compelled to make a will in favor of any person, nor can she bind herself not to make a will.</p> <p>2. —Fraud—Promise of Bequest—Value of Services—Limitation.</p> <p>A cause of action for the value of services rendered' on' the faith of a promise to give compensation therefor by devise or bequest arises when such promise is repudiated or otherwise broken, and limitation does not begin to run where the promise is merely a deceitful pretense until the fraud is or ought to be discovered.</p>

<p>1. —Citation—Judgment by Default.</p> <p>Where a citation fails to state the true date of the filing of plaintiff’s petition, as required by the statute, it will not support a judgment by default. Rev. Stats., art. 1214.</p> <p>2. —Writ of Error—Service.</p> <p>Where the petition and bond for writ of error are filed within one yeai from the rendition of the judgment in the trial court, it is immaterial that the writ is not served until after the expiration of the year. Rev. Stats., art. 1402.</p>

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

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

<p>1. —Quantum Meruit—Personal Services—Promise of Legacy.</p> <p>Where services are rendered in expectation of remuneration by a legacy, and from the circumstances of the case it is manifest that it was understood by both parties that compensation should be made by will, and none is made, a recovery may be had for the reasonable value of the services.</p> <p>2. —Same—Evidence Held Sufficient.</p> <p>Evidence of a circumstantial nature considered and held to warrant the" inference that certain services were rendered in the expectation of remuneration by legacy, induced by the dclarations of the deceased.</p> <p>3. —Wife’s Contract for Necessaries—Liability.</p> <p>In order to render the wife’s estate liable on her contract for necessaries, it is not necessary to show that the husband was unable or refused to pay for them; nor does it affect the wife’s liability that the services, rendered in waiting on her during sickness, necessarily inured in part to the husband’s benefit.</p> <p>4. —Assignment of Error—Insufficiency of Evidence.</p> <p>An assignment asserting that a verdict or a finding should have been set aside because there was no evidence to support it, raises merely a question of law, and not the question of fact whether or not there was sufficient evidence to support the verdict or finding.</p> <p>5. —Same—Complaint Against Verdict.</p> <p>An assignment complaining of the verdict on a ground not called to the attention of the trial court in the motion for new trial will not be entertained. Appeál from Tarrant. Tried below before Hon. Mike E. Smith.</p>

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

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

<p>Appeal from Shackelford. Tried below before Hon. Ñ. R. Lindsey.</p>

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

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

<p>1. —Railroads—Negligence—Running Over Child on Track.</p> <p>Where an engineer was negligent in failing to see a child on the track, and so ran over it, the fact that he used all diligence to stop the train after discovering the peril would not relieve the company of liability, since the essence of the fault was in not discovering the peril earlier.</p> <p>2. —Same—Fact Case—Failure to Discover Peril.</p> <p>Evidence considered and held sufficient to show negligence on the part of an engineer in failing to see a child on the track at a point where people were accustomed to use the track.</p> <p>3. —Same—Railroad Bridge as Footway.</p> <p>It was immaterial that the railroad bridge on which the child was run over was not a public footbridge where it was commonly used by people for crossing the river there, and the engineer ought therefore to have anticipated that people might be on the bridge at that time.</p> <p>4. —Measure of Damages—Killing Child.</p> <p>Where, in an action by parents for the negligent killing of a minor child, the court charged that the measure of damages would be “the present value of the pecuniary assistance, if any, plaintiff's would have received from the child if it had not been killed,” it was not error as matter of law to refuse a charge limiting the right of recovery to the minority of the child.</p>

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

<p>Note—Antenuptial Contract—Consideration—Finding by Jury.</p> <p>Where the court submitted to the jury the question whether the note sued on was given to plaintiff as an inducement to procure marriage, and if not, for what was it given, and the jury answered that it was given only as a bridal present and had no consideration, this was equivalent to finding that the note was not given in consideration of marriage, and plaintiff was properly denied a recovery thereon.</p>

<p>1. —Accident Insurance—Classification of Callings.</p> <p>An accident insurance policy upon the life of insured in a specified calling, providing that for injury in an occupation classed by the company as more hazardous than the one specified recovery should be limited to such indemnity as the premium paid would purchase at the rate fixed for such increased hazard, the question of such diminution in the recovery depended not on whether the occupation in which he was injured was more hazardous in fact, but on whether it was so classified by the company.</p> <p>2. —Same—Pleading.</p> <p>Pleading alleging that the occupation of locomotive fireman, in which insured: was killed, was more hazardous than that of roundhouseman, in which he was insured, and that the rates fixed by the company for the former calling were double those for the latter, held to be equivalent to an allegation that the former were classed by the company as more hazardous.</p> <p>3. —Evidence—Declarations.</p> <p>Expressions of pain by one claiming to have been injured are admissible in evidence, but not his statements in regard to doctoring himself or laying off from work.</p>

<p>Appeal from the County Court of McLennan. Tried below before Hon. G-. B. Gerald.</p>

<p>Appeal from the County Court of McLennan. Tried below before Hon. G-. B. Gerald.</p> <p>This case arose, out of a controversy between the vendor and vendee about an alleged deficiency in the quantity of land sold, in which a" deed was tendered into court by the vendor and performance by the vendee enforced by the judgment in case of Hunt v. Siemers, 53 Southwestern Reporter, 387.</p>

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

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

<p>1. —Statement of Facts—Filing Too- Late.</p> <p>Where a statement of facts, on failure of counsel to agree, was made out and filed too late by the trial judge, the diligence of appellant in presenting to the judge on the last day of the ten days after adjournment allowed for making it by his order, and while he was engaged in trying a ease in another court, a statement to which he found himself unable to agree, was insufficient, in the absence of a showing of facts excusing such delay, and the statement was stricken out.</p> <p>2. —Appeal Bond—Dismissal.</p> <p>An appeal upon bond in a sum merely equal to the estimated amount of costs will be dismissed in default of tender of a sufficient one.</p>

<p>Appeal from the County Court of McCulloch. Tried below before Hon. John W. Goodwin. •</p>

<p>Limitation—Commencement of Suit.</p> <p>Suit filed two days before period of limitation expired was not barred where plaintiff had service of citation suspended about two months, when his delaying service appeared to have been at request of defendant, who wished to avoid, costs.</p>

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

<p>1. —Railway Company—Bridge Totf-rPassenger Enhancing Damages.</p> <p>Where plaintiff, a railroad passenger, knew that a toll of 50 cents would be illegally exacted on crossing a bridge that would be reached at midnight, and refused to avail himself of an offered opportunity of paying it before retiring, and, on being awakened at the bridge and the toll demanded, refused to pay and persisted in such refusal until force was used on his person, and for the sole purpose of enhancing the damages, the court correctly charged that he was not entitled to enhanced damages for the assault and indignities so brought about.</p> <p>2. —Same—Evidence Raising Issue—Enhancement of Damages.</p> <p>Evidence held sufficient to warrant a charge submitting the issue of whether plaintiff’s refusal to pay the toll and resistance until the assault was made, was for the purpose of enhancing his damages, and also to sustain a finding to that effect.</p> <p>3. —Charge—Harmless Error.</p> <p>Where plaintiff appeals from a judgment in his favor because the damages awarded are inadequate, the giving of an erroneous charge which could not possibly have affected the amount of the damages was harmless error.</p> <p>Error from El Paso. Tried below before Hon. A. M. Walthall.</p>

<p>Appeal from the County Court of El Paso. Tried below before Hon. James R. Harper.</p>

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

<p>1. —Trespass to Try Title—Trespasser—Possession—Harmless Error.</p> <p>Where in trespass to try title against a mere trespasser prior possession of the land by plaintiff was shown, errors in relation to the admission in evidence of plaintiff’s title papers were harmless.</p> <p>2. —Tax Title—Improvements in Good Faith.</p> <p>A tax deed made on a sale for taxes assessed against one who was not the owner of the land will not sustain a plea of improvements in good faith, even in connection with proof that the person against whom the taxes were assessed was in possession of the land and rendered it for taxes and the tax purchaser considered him the owner.</p> <p>3. —Same—Subrogation—Reimbursement.</p> <p>Where plaintiff in trespass to try title recovers against a purchaser of the land at a void tax sale the defendant is not entitled to be subrogated to the rights of the State for the taxes paid, nor to reimbursement for such taxes from plaintiff.</p>

<p>Appeal from the County Court of Johnson. Tried below before Hon. O. T, Plummer, Special Judge.</p>

<p>1. —Nuisance—Damages—Injury to Wife.</p> <p>Where there is injury to the wife resulting from a nuisance, the husband can recover damages for loss of the society and comfort of his wife caused thereby.</p> <p>2. —Same—Medical Expenses—Pleading.</p> <p>Where plaintiff seeks to recover for medical expenses for” his wife and his children, made sick by a nuisance, his pleading should allege the sums expended for each, and that such expenses were reasonable and necessary.</p> <p>3. —Pleading and Proof—Demurrer—Harmless Error.</p> <p>Where a special answer pleads matters provable under a general denial, and proof of such matters is received, error in sustaining a demurrer to such special answer is harmless.</p> <p>4. —Nuisance—Sickness—Charge.</p> <p>Where there was evidence that the sickness of plaintiff’s wife was not caused, but only prolonged, by the nuisance, the charge should have clearly instructed that plaintiff was not entitled to damages for the entire sickness, but only for such continuance of it.</p> <p>5. —Same—Conduct of a Lawful Business.</p> <p>Where a person, though engaged in a lawful business, so uses his property or conducts the business as to prejudice the rights of another in an essential degree, he becomes liable to the party injured.</p> <p>6. —Same—Independent Causes—Separate Liability.</p> <p>Where a nuisance is caused by the acts of several persons acting separately and independently of each other, each is responsible only to the extent of the injury inflicted by his own wrong.</p> <p>7. —Charge—Presenting Defenses Affirmatively.</p> <p>A defendant is entitled to have all his defenses presented affirmatively, and it is error for the court not to do so, where special charges are requested calling attention to the omissions.</p>

<p>1. —Evidence—Expert Testimony—Railroad Engineers.</p> <p>Whether a rapidly moving train, on striking a person standing or walking on the track, would most likely throw him off or run over him, is a question upon which expert testimony by locomotive engineers is admissible, since it lies peculiarly within their knowledge and experience.</p> <p>2. —Same—Relevancy—Running Over Person on Track.</p> <p>Such evidence was relevant and material upon an issue as to whether the deceased, who was run over by a train, was walking on the track or lying down upon it at the time the train struck him.</p> <p>3. —Same—Predicate—Objection to Be Made- Below.</p> <p>That a proper predicate was not laid for the introduction of expert evidence is an objection that should be made at the time the evidence is offered.</p> <p>4. —Negligence—City Ordinance—Violation by Railroad.</p> <p>The neglect of the city officials to enforce, in a certain part of the city, an ordinance regulating the rate of speed at which trains should be run, did not excuse its violation there, so as to relieve a railway company from liability for personal injury caused by such a violation at a point where it permits the public to use the track as a highway.</p> <p>5. —Same—Knowledge' of Ordinance.</p> <p>Such violation of the ordinance as.to the rate of speed is negligence warranting a recovery for personal injury caused thereby, and that the injured person did not know of the ordinance does not affect the matter.</p> <p>6. —Same—Ordinance Not Reasonable.</p> <p>Evidence was not admissible to show that the ordinance was unreasonable in its application to the part of the city where the injury occurred, the place being at a point where the railway company had permitted the use of the track by the public as a footway.</p> <p>7. —Same—Intoxication—Charge.</p> <p>A charge requiring a finding for the railway company if deceased was intoxicated at the time he was struck by the train, without regard to whether his intoxication contributed to the accident, was properly refused.</p> <p>8. —Jury—Misconduct—New Trial.</p> <p>It was ground for setting aside the verdict that plaintiff’s brother, who was looking after the case for -her, met a juror pending the trial and had a private talk with him apart, and, being intimate friends, they then took dinner together, the brother paying for both, while the juror paid for drinks and cigars for both, although they both testified that the case was not mentioned, and it was shown that the juror bore a good reputation.</p> <p>9.—Mandate—Inability to Pay Costs—Showing.</p> <p>A party owning nonexempt property is not entitled to an order requiring the clerk to issue the mandate without payment of the costs upon a showing that she had not the money with which to pay the costs and can not give security therefor, and has unsuccessfully tried to borrow it on such property, where it does not appear that she has attempted to sell the property, or that it is impossible for her to do so.</p>

<p>1. —Notes—Default as Maturity—Election of Holder—Limitations.</p> <p>Where each of a series of notes stipulated that a failure to pay it should, at the election of the holder, mature all the notes, the. failure to pay the first note did not of itself mature the others, but the filing of suit on all the notes, after default in payment of the first, matured them all, and where such suit was dismissed and another suit was brought on the second and subsequent notes within four years after the filing of the first suit, limitation was not a bar thereto.</p> <p>2. —Fraud—Issues—Deed or Mortgage.</p> <p>Where the jury in answer to the special issues submitted found that defendant’s wife was induced to sign the conveyance of homestead property in question by his representations that he could thereby pay off all his debts and buy the property back at a profit, that but for this she would not have signed, and that defendant was requested by the plaintiffs to secure his wife’s signature to the conveyance, this did not show that defendant and his wife were induced to execute the conveyance by fraud, the jury having further found that the conveyance was an absolute deed and not a mortgage.</p> <p>3. —Evidence—Impeachment—Collateral Matter.</p> <p>A witness can not be impeached by a single transaction tending to show a want of integrity on his part where such transaction is not material to any issue in the case.</p> <p>4. —Same—Notary—Éxplanation of Deed to Wife.</p> <p>Where defendant’s wife testified that she would not have executed the deed had she ‘known or believed it was an absolute conveyance, testimony by the notary who took the wife’s acknowledgment was admissible in rebuttal to show that he explained the instrument to her, informing her that it was an absolute deed, and that she seemed to understand.</p>

<p>1. —Deed—Married Woman—Minority of Husband.</p> <p>A deed by a married woman in which she is joined by her minor husband, if acknowledged in compliance with the statute, is sufficient to convey her separate real estate. Rev. Stats., art. 4618.</p> <p>2. —Same—Attorney and Client.</p> <p>A deed made by a client to an attorney is not rendered invalid by the mere fact of such relationship, but will be upheld in the absence of unfairness or undue influence on the part of the attorney. Following Goar v. Thompson, 19 Texas Civil Appeals, 330.</p> <p>3. —Same—Married Woman’s Acknowledgment.</p> <p>A married woman’s separate acknowledgment of a deed is not vitiated by the mere presence of the grantee at her privy examination.</p>

<p>1. —Judgment—Setting Aside—Fraud.</p> <p>Relief will not be granted against a judgment unless the party seeking to set it aside shows that he was prevented from making a .valid defense to the action in which it was rendered by fraud, accident, or the act of the opposite party, unmixed with fraud or negligence on his part, and that a different result will probably be reached on another trial.</p> <p>2. —Same—Negligence Shown—Collateral Attack.</p> <p>Where facts relied on to' impeach a judgment were known at the time of a motion for new trial, and were not then urged, they can not be set up after-wards in an action to set aside the judgment.</p> <p>•3.—Trustee in Bankruptcy—Liability—Powers.</p> <p>A trustee in bankruptcy can not, in a collateral action involving title to the bankrupt’s property, be compelled to account for funds he has received as trustee, since he is responsible to the bankrupt court appointing him, and such relief must therefore be obtained through that court. See agreement .in a suit made by such trustee as a party which is held not beyond his authority to make.</p>

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

<p>Appeal from Hunt. Tried below before Hon. H. C. Connor.</p>

<p>Appeal from Galveston. Tried below before Hon. R. M. Franklin.</p>

<p>1. —Homestead—Elements of the Right.</p> <p>Where in an action to recover certain premises as a homestead and to cancel a sheriff’s deed thereto, the jury found in answer to special issues that plaintiff's intended in good faith to occupy such premises as a home, made such preparations as clearly evidenced that purpose, and occupied the premises as a home within a reasonable time thereafter, thus presenting every element which goes to make the homestead right, the court did not err in rendering judgment for plaintiffs on such answers.</p> <p>2. —Same—Intention—Acts of Preparation.</p> <p>A homestead may be created by intention prior to actual occupancy where it appears that the owner is entitled to exemption as the head of .a family, and that this intention has been manifested by such acts as amount to reasonably sufficient notice of it.</p> <p>3. —Same—Failure to Promptly Occupy—Excuse.</p> <p>The absence of these acts of preparation or a failure to promptly follow them by occupancy and use, may be accounted for, and in measuring the reasonableness of the excuse all the circumstances may be looked to.</p> <p>4. —Same—Fact Case—Evidence.</p> <p>See evidence held to require the submission of the issues of intention, good faith, preparation, and occupancy within a reasonable time, and such as is held to warrant a finding in favor of the homestead exemption.</p>

<p>1. —Mandamus by Appellate Court.</p> <p>The appellate court can by mandamus compel the district judge to act by proceeding to try a case pending before him agreeably to the principles and usages of law, but it has no power thus to control his discretion in matters relating to the trial of causes or to direct what judgment he shall render, and the writ will not be issued unless a right has been denied and complainant has no other legal remedy, and, in cases involving judicial discretion, a clear abuse of such discretion must be shown.</p> <p>2. —Same—Consolidation of Suits.</p> <p>Where the trial judge consolidated two cases, neither of them ready for trial, involving the title to the same original grant of land, the issue in each case turning upon the identity of the original grantee, there being numerous parties in both suits, though more in one than the other, and complainants having by pleas in reconvention become plaintiffs in both cases against all the other parties for the recovery of the undivided interests claimed by them in the entire grant, and it appearing that the title may be best adjusted as to all parties by one suit, a mandamus will not be issued to compel the judge to restore one of the cases and try it separately.</p>

<p>Appeal from De Witt. Tried below before Hon. J. C. Wilson.</p>

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

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

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

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

<p>X.—New Trial—Absence of Counsel Excused.</p> <p>Where a cause was tried in the absence of defendant and its attorneys, who resided in a distant county and had reasonable ground to believe that the case would not be reached so soon, a new trial should have been granted upon an application therefor made at the same term and in time to secure a trial at that term, and a showing that a meritorious defense existed.</p> <p>2.—Same—Meritorious Defense—Insurance Policy—Stipulation Avoiding.</p> <p>Where the action was on a fire insurance policy, a showing that the policy contained a stipulation that if the building or any part of it should fall, except as a result of the fire, the insurance should immediately cease, and that a part of the building did fall as the result of a storm, thereby avoiding the contract,— presented a meritorious defense.</p>

<p>Appeal from the County Court of Burleson. Tried below before Hon. E. E. Porter.</p>

<p>1. —Injunction—Dissolution—Appeal.</p> <p>Error of the trial court in dissolving a temporary injunction on its own motion and without the ten days’ notice is not available on appeal after a judgment on the merits, such as properly required a dissolution of the injunction, has been rendered against appellant, and he has filed no supersedeas bond on appeal.</p> <p>2. —Public Officer—Vacancy—Temporary Appointment by Mayor—City Charter of Houston.</p> <p>Under the charter of the city of Houston as granted by the Legislature in 1897, and providing that “in case of a vacancy in any elective office, from whatever reason, the council, upon nomination by the mayor, shall fill the vacancy by a majority vote of the aldermen,” the mayor has not the authority by his individual appointment to temporarily fill a vacancy in an elective city office, as that of health inspector, without the concurrence of a majority of the council, although the council be not then in session.</p> <p>3. —Same—Public Policy.</p> <p>That public policy requires a vacancy in such office to be filled, and that the mayor and council might fail to agree upon a suitable person to fill it, can not authorize the disregard of a plain legislative command and the exercise by public officers of powers not conferred by law.</p> <p>4. —Same—Appointment by Council Alone.</p> <p>Nor could the board of aldermen, without a nomination by the mayor or his concurrence, authorize or appoint a person to fill the vacancy in such office, since the charter provides that it can be filled only by the mayor and board of aider-men acting together as the city council.</p> <p>5. —Same—Holding Two Offices—Constitutional Law.</p> <p>An appointment authorizing a city health inspector to discharge the duties and receive the compensation of the city health officer, is virtually an appointment as such health officer, and is in violation of the provision of the State Constitution forbidding the holding of two offices of emolument by the same person.</p> <p>6. —Same—De Facto Officer.</p> <p>One who discharges the duties of an officer under an appointment void for want of authority to make it, is not a de facto officer, but a mere intruder.</p> <p>7. —Same—Injunction by Private Citizens.</p> <p>A private citizen is not entitled to maintain a suit to enjoin a person from filling a public office because of the invalidity of his appointment thereto, since the injury is one which affects the public generally, but inflicts no special wrong on the citizen individually.</p>

<p>1. —Corporation—Parties—Intervention.</p> <p>Where, in an action against a corporation upon notes executed by it, a third party intervened, alleging that he sold said corporation to a certain person, not a party to the suit, covenanting to protect him against all debts of the corporation in excess of a certain sum which did not include the note in suit, such intervener was not a necessary or proper party to the suit, and the error in permitting him to intervene over defendant’s objections was not harmless.</p> <p>2. —Same—Corporation Debt—Evidence.</p> <p>Testimony by the person to whom the intervener had sold the corporation, that the intervener had told him at the time of the sale that the corporation ■owed only $600, and that no mention was made of plaintiff’s claim, was not relevant, nor admissible to show how defendant treated plaintiff’s claim.</p> <p>3.—Same—Assumption of Liability—Burden of Proof.</p> <p>Where, in an action on notes executed on behalf of a corporation by its president, but for his individual debt, the plaintiff claimed that the payment of the notes had thereafter been assumed by the defendant corporation, the burden was on plaintiff to show that the corporation had, for a valuable consideration, assumed the payment of the notes.</p>

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

<p>Appeal from Burleson. Tried below before Hon. Ed R. Sinks.</p>

<p>1. —Marriage of Slaves—Emancipation—Validation.</p> <p>Where W., a negro slave, married after the manner of slaves in 1359, and was separated from his wife and married another slave with whom he cohabited and lived until the time of his death, which occurred after emancipation, the effect of the emancipation was to validate the second marriage. Following Cumby v. Henderson, 6 Texas Civil Appeals, 319.</p> <p>2. —Same—Inheritance—Community Property.</p> <p>Although after emancipation, W. resumed to some extent his cohabitation with his first slave wife, while living with the second, this did not entitle the children of such first wife to recover of those of the second community property ón which W. lived with the second wife at the time of his death.</p>

<p>1. —Wife’s Separate Property—Interest in Homestead as Consideration.</p> <p>The wife has a distinct interest in the homestead, whether the title be separate or community, and property conveyed to her in her separate right to induce her to part with her homestead interest becomes her separate property, and her absolute and exclusive title thereto, with its exemption from liability for the community debts, is not divested or affected by reason of the subsequent acquisition of another homestead. Giddings v. Ogden, 15 Texas, 485, criticised, and Blum v. Light, 81 Texas, 415, followed.</p> <p>2. —Same—Recital of Separate Property in Deed.</p> <p>The failure of the deed to the wife to recite that the property so conveyed to her in consideration of her homestead interests was to be her separate- estate, did not defeat her right to it as such, and the fact that it was her separate estate could be shown by paroi.</p> <p>3. —Same—Judgment Lien—Execution Purchaser With Notice.</p> <p>The wife’s title and that of her vendee was not subject to a prior judgment lien acquired against the husband for a community debt; and a purchaser at execution sale under the judgment with notice that the wife claimed the land as her separate estate, and that her vendee asserted title under "that claim, took no title by virtue of such sale.</p> <p>4. —Same—Divesting Wife’s Title.</p> <p>Where the title was once vested in the wife to her separate use, the statute prescribes that nothing short of her formal act can divest it. Bev. Stats., arts. 635, 4621.</p> <p>5. —Findings of Fact—Practice on Appeal.</p> <p>Where the findings of fact cover every issue material to the support of the judgment, their correctness will not be inquired into on appeal unless they were properly assailed by exception in the trial court. Bev. Stats., art. 1333.</p>

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

<p>New Trial—Absence of Counsel</p> <p>Where judgment was rendered upon an ex parte trial, a motion for new trial stating that defendant’s attorney was absent because engaged in the courts' of another county and could not be present without great loss to himself and injury to his clients, but not showing that defendant did not know of his absence, or relied on his being present, is not sufficient, although disclosing a de-; fense on the merits.</p>

<p>X.—Master and Servant—Safe Appliances—Charge.</p> <p>A charge is erroneous which imposes on the master the duty of furnishing the servant with a safe place to work and safe appliances, instead of a reasonably safe place and appliances.</p> <p>2. —Charge of Court.</p> <p>A requested charge on the subject of assumed risks is properly refused where that subject is fully covered in the main charge.</p> <p>3. —Master and Servant—Proximate Cause—Negligence.</p> <p>In order to warrant a finding that negligence is the proximate cause of an injury it should appear that the injury was the natural and probable consequence of the negligent act, and that it ought to have been foreseen by the master,—not necessarily the precise actual injury, but some like injury likely to result therefrom,—and it is not necessary that the exact injury complained of must have been foreseen as the probable result. This rule held properly applied by the court in a case where an employe was injured by the breaking of a belt on machinery.</p> <p>4. —Same—Evidence.</p> <p>In an action for personal injury caused by the breaking of a machine belt, evidence by a witness, who was an experienced man, that he had never seen a like injury inflicted in like manner, was correctly excluded.</p> <p>5. —Same—Defective Appliances—Issue—Evidence.</p> <p>Where a servant was injured by the breaking of a machine belt, ■ causing a staple that fastened it to be driven into his person, and the issue of negligence involved the question of the rottenness of the belt and also the sufficiency of the staples fastening it, it was error for the court to exclude evidence offered by the master to show that the staples were of the most approved character in use.</p> <p>6. —Same—Minor—Medical Bills.</p> <p>Where a minor’s action for personal injuries was brought by his father as next friend, it was error to allow as part of the damages recovered the amount of the minor’s medical bills in the matter, the father being presumably liable therefor and entitled to recover them in his own right from defendant, no special facts being alleged and proven such as would render the master liable for such bills notwithstanding the minority.</p>

<p>1. —Conversion—Attachment—Betum of Goods.</p> <p>Where an administrator sued to recover the value of certain goods of the estate which defendants had levied on as the property of another, an answer showing that the goods had been returned uninjured to the duly qualified temporary administrator of the estate upon his demand and bond therefor, and that they were sold under order of the court, and the estate got the benefit of the proceeds, presents a sufficient defense.</p> <p>2. —Appeal—Findings Below—Statement of Facts.</p> <p>In the absence of a statement of facts, an assignment that the court erred in a certain holding can not be sustained where such holding is sustained by the facts as found by the court.</p>

<p>1. —Judgment by Default—Setting Aside—Newly Discovered Evidence.</p> <p>Where there has been a judgment by default in an action foreclosing a vendor’s lien on land, a motion to set aside the judgment because of the discovery of evidence showing a defect of title is in effect a motion for new trial on the ground of newly discovered evidence, and must be tested by the rules applicable to such motions.</p> <p>2. —Same—New Trial.</p> <p>To warrant a new trial on the ground of newly discovered evidence it must appear that the evidence is such as would likely change the result upon another trial, and that the applicant could not, by the use of ordinary diligence, have discovered it before the rendition of the judgment.</p> <p>3. —Same—Warranty—Outstanding Title.</p> <p>Where plaintiff conveyed by general warranty, which is not a warranty against clouds on title, a judgment by default foreclosing his vendor’s lien will not be set aside on newly discovered evidence by defendant showing merely the existence of adverse deeds prior to the last deed in plaintiff’s chain of title, where it also appears that plaintiff has a complete chain of title from the original grantee, and no possession is shown under such adverse deeds, since no superior outstanding title is shown in such case.</p> <p>4.—Appeal—Damages for Delay.</p> <p>Appellants’ motion below to set aside the judgment is held not so wholly without merit as to justify the conclusion that this appeal was taken only for delay, and that the affirmance should for that reason be with 10 per cent damages.</p>

<p>1.—Railway Company—Negligence—Injury to Passenger—Charge.</p> <p>In an action by a passenger against a railway company for personal injuries, a charge that a failure of the company to announce the arrival of tho train at plaintiff’s station would in law constitute negligence such as, if it proximately caused the injury, entitled plaintiff to recover, was error as being on the weight of evidence.</p> <p>3.—Same—Negligence for Jury.</p> <p>Unless the act alleged to be negligent is prohibited by statute, or is one as to the negligent character of which reasonable minds can not differ, the issue of negligence must be left to the jury.</p>

<p>1. —Parties—Surviving Wife—Personal Injury.</p> <p>Where the husband died intestate pending an action for personal injury to the wife, she was properly allowed to prosecute the suit in her own name as survivor, there being no administration on his estate and no necessity for any.</p> <p>2. —Same—Intervention by Children—Harmless Error.</p> <p>The children of the deceased husband having intervened in the suit, claiming part of the damages, the refusal of the court to strike out their plea of intervention was not error of which the defendant could complain.</p> <p>3. —Contributory Negligence—Railroads—Accident at Crossing.</p> <p>Evidence considered in a case of injury at a railroad crossing and held’ to sustain a finding to the effect that plaintiff was not guilty of contributory negligence in going on the track.</p>

<p>1. —Appeal to County Court—Bond.</p> <p>In a ease appealed to the county court it has no power, after the expiration of ten days from the date of the judgment in the justice court, to permit a good appeal bond to be filed in lieu of one that is defective in substance.</p> <p>2. —Same—Final Judgment—Jurisdiction.</p> <p>Where, in an action in the justice court by attachment, there was a verdict and judgment for plaintiff for his debt, and for the defendant for certain damages he had pleaded in reconvention, and the justice set aside the judgment for damages, but did not dismiss the claim therefor, there was no final judgment, and the county court acquired no jurisdiction on appeal.</p>

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

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

<p>1.—Specific Performance—Sale of Land—Contract.</p> <p>Where a contract consisted of a letter by a land agent to defendant saying that he could sell • defendant’s land for a stated price and a letter from defendant in reply saying he would sell for the price stated, and for the agent to make out the deed and send it for execution, and the agent made out a deed to plaintiff who had offered for the land the price mentioned, and defendant refused to sign the deed, there was not such a contract of sale as plaintiff could enforce by specific performance, since he was not named or referred to therein.</p>

<p>1. —Principal and Agent—Fraud—Notice—Loan on Homestead.</p> <p>Bad faith towards a loan agency on the part of its agent in negotiating a loan was not sufficient to shield it from the consequences of the agent’s knowledge of the homestead character of the property, where it was not shown that the borrowers were aware of the agent’s purpose to deceive his principal, or themselves entertained a like purpose, or in some manner made him their agent to secure the loan.</p> <p>2. —Married Woman—Fraud—Loan on Homestead—Acknowledgment.</p> <p>Where a married woman is fraudulently induced to execute a deed of her homestead by false representations of the vendee that the homestead was not included therein, the latter will not be heard to urge that the fraud was cured by the act of the officer taking her acknowledgment in explaining the deed to her, from which she should have discovered the fraud, unless he shows that the fraud was actually disclosed to her thereby.</p> <p>3. —Sequestration—Replevy by Plaintiff—Measure of Liability—Rents.</p> <p>Where a plaintiff has, by sequestration and replevy thereunder, obtained possession of the defendant’s land, he is required by the statute, where the judgment goes against him, to account for “the fruits, hire, rent, and revenue” of the property, and it is error for the court in such a case to reject proof of the amounts of the rents actually received by him and to limit his liability to the rental value of the land. Rev. Stats., art. 4880.</p> <p>4.—Trespass to Try Title—Mortgage—Title in Trust.</p> <p>That defendant’s title deeds were prior in point of time did not preclude plaintiffs from recovery where the patent to the land under which both parties claimed, though issued to another person, was obtained by him in trust for plaintiffs, and this was disclosed in the mortgage by the patentee under which defendant claimed through foreclosure sale.</p>

<p>1. —Notes—Consideration—Paroi Evidence.</p> <p>Where a note does not recite the consideration for which it is given, and a deed of trust securing the note recites as its consideration the merely nominal sum of $10 and the uses, purposes and trusts set forth therein, paroi evidence is admissible to show the real consideration of the transaction.</p> <p>2. —Same—Negotiability Destroyed—Failure of Consideration.</p> <p>A note is rendered non-negotiable by a stipulation therein that no property of the maker shall be liable for the debt except a certain tract of land mortgaged to secure the note, and a failure of consideration may therefore be pleaded even as against an innocent purchaser of the note before its maturity.</p> <p>3. —Assignment of Error.</p> <p>An assignment complaining of the overruling of a general and several special demurrers and embodying several distinct propositions, and which is relied on as itself a. proposition, being followed only by a brief statement, is in violation of the rules and will not be considered.</p> <p>4. —Estoppel—Pleading Necessary—Failure of Consideration.</p> <p>The court properly refused to charge that defendant was estopped to plead failure of consideration where no estoppel had been pleaded by plaintiff.</p>

<p>1. —Charge of Court—Giving Undue Prominence.</p> <p>Where the court has already sufficiently charged upon the issues in the case, it is reversible error for it to give, at the request of one of the parties, other charges which are merely a repetition of certain ones already given, and thus unduly emphasize the pivotal issue in the case. See illustration in a personal injury case.</p> <p>2. —Same—Argumentative Charge—Railroads.</p> <p>A charge is argumentative which instructs the jury that if they find that plaintiff’s decedent could have gone from the boarding car from which he started to its passenger station by going due north in between its switch tracks until he reached the public highway, and that an ordinarily prudent person would have so gone, and that if he had so gone, he would not have lost his life, they should find for the defendant railway company.</p>

<p>Homestead—Deed—Mortgage.</p> <p>An instrument in form of an absolute deed of the homestead, duly acknowledged by husband and wife, may be shown by paroi evidence to have been intended as a mortgage, and as such to be void; the test of a mortgage is the relation of debtor and creditor, but all facts bearing upon the intention of the parties are to be considered together.</p>

<p>"1.—Carrier—Delay—Conversion—Loss by Act of God.</p> <p>Mere delay by the carrier in delivering a shipment does not amount to a conversion; and if the property is, meantime, destroyed by act of God, such as the great storm at Galveston on September 7, 1900, the carrier is not liable.</p> <p>■2.—Carrier—Notifying Consignee—Pleading.</p> <p>Pleading held to charge carrier with value of shipment as on conversion, ■did not warrant recovery against it for delay in complying with a special promise to notify the consignee of its arrival, whereby he failed to pay the shipper’s draft before its destruction by the act of God.</p>

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

<p>Appeal fróm McLennan. Tried below before Hon. Sam E. Scott.</p>

<p>Injunction—Trespass—Possession.</p> <p>One in actual possession of land (a lessee) may maintain injunction against trespass (fencing and cutting timber) by another, without deraigning title from the government, and when his possession and the trespass are undisputed, is entitled to a peremptory instruction for verdict in his favor.</p>

<p>1.—Injunction—Jurisdiction of District Court.</p> <p>The district court is without jurisdiction over an action to enjoin the enforcement of a county court judgment in favor of defendant against plaintiff for $481.10, and to offset against it that amount from three judgments, aggregating $800, in favor of plaintiff against defendant, who was insolvent; the writ should be returned to and tried in the county court where judgment was recovered.</p> <p>2.—Cloud on Title—Pleading.</p> <p>Allegations of hindering sale of plaintiff’s lands by recording abstract of judgment against him, considered and held not sufficiently specific to charge cloud of plaintiff’s title, so as to support the jurisdiction of the district court to relieve therefrom.</p>

<p>1. —Railway Company—Personal Injury—Freight Conductor—Violation of the Rules—Assumed Risk.</p> <p>Where a freight conductor, as soon as he observed that the train was being run backward too rapidly, went out on the steps of the caboose to signal the engineer, but did not do so because just then the speed was reduced considerably, though not to "within the limit required by the rules, and very quickly thereafter the accident occurred, such facts did not show, as matter of law, that the conductor was guilty of contributory negligence or that he had assumed the risk.</p> <p>2. —Same—Failure to Signal Engineer—Charge.</p> <p>A requested charge that if the conductor could. have lowered the speed by a signal to the engineer, and failed to do so, there could be no recovery, was properly refused as requiring a finding for defendant if the conductor could have checked the train, though not sufficiently to have prevented the accident.</p> <p>3. —Same—Evidence—Opinion—Harmless Error. ■</p> <p>There was • no harm in permitting a brakeman who was on the train to testify that in his opinion the rate of speed and coming in contact with the steer caused the derailment of. the train, where such opinion was in accord with all the testimony in the case.</p>

<p>1. —Bill of Exceptions.</p> <p>Where a bill of exceptions is taken to the exclusion of testimony, it should show what the testimony would have been.</p> <p>2. —Appeal—Special Issues.</p> <p>Where a case is tried on special issues, failure to submit an issue is not ground for reversal unless its submission was requested in writing; and an issue not requested and submitted is deemed to have been found by the court in such manner as will support the verdict. Rev. Stats., art. 1331.</p> <p>3. —Damages—Measure of—Injury to Land.</p> <p>A finding of the market value of land immediately before and immediately after an injury thereto gave the correct estimate of damages, and necessarily included injury from the destruction of shade trees and ornamental shrubbery and damages to a dwelling house thereon.</p> <p>4. —Same—Market Value.</p> <p>Failure of the court to instruct as to the legal meaning of “market value” is not error in the absence of request made for an explanation of the term.</p>

<p>Appeal from Bee. Tried below before Hon. Jas. C. Wilson.</p>

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

<p>1. —Amendment—New Cause of Action—Citation.</p> <p>Where, upon defendant’s demurrer being sustained, plaintiff has leave to amend, an amended pleading filed at the next term of court does not require citation to the defendant unless it sets up a new cause of action, and an additional allegation in such amended pleading that certain bonds upon which plaintiff’s original petition sought to foreclose a lien were of a value within the jurisdiction of the court, did not state a new cause of action.</p> <p>2. —Jurisdiction—Amount—Value of Bonds.</p> <p>Where the suit is on a note and to foreclose a lien on certain bonds given as collateral, the market value of the bonds, and not their face value, determines the amount in controversy with respect to the jurisdiction.</p>

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

<p>Appeal from the Comity Court of Galveston. Tried below before Hon. John W. Campbell.</p>

<p>Error from La Salle. Tried below before Hon. M. F. Lowe. •</p>

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

<p>Appeal from Johnson. Tried below before Hon. Wm. Poindexter.</p>

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

<p>Homestead—Oil Lease—Joinder of Wife.</p> <p>Since oil in place under the soil is a mineral, and minerals in place are land, .an oil lease investing the lessee with the right for an indefinite time to remove all the oil under a tract of land, and to erect on the land all buildings, etc., necessary for that purpose, in consideration of his giving the lessor 10 per cent of the net products of the oil, is in legal effect a sale of a portion of the land, and, where the land is homestead, is ineffectual without the joinder and separate acknowledgment of the wife. Eev. Stats., art. 636.</p>

<p>1. —Deed—Fee Simple Title—Rule in Shelley’s Case.</p> <p>Where a deed conveyed land to the grantees “during their natural life, and after their death to their heirs and assigns,” the rule in Shelley’s case is applicable, and the grantees took the title in fee simple, and not merely a life estate, the use of the word “assigns” evidencing an intention to give to the grantees the power to convey.</p> <p>2. —Same—Paroi Evidence of Grantor’s Intention.</p> <p>Where the language of a deed brings it within the rule in Shelley’s case, paroi evidence is not admissible to show the grantor’s intention in executing the conveyance.</p>

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

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

<p>1. —Mandamus—Statement of Facts—District Judge.</p> <p>An appellant is not entitled to a mandamus to compel the trial judge to make out and file a statement of facts unless he shows that he has been deprived of such statement by the acts of the judge or the opposite party, and that he has himself not been wanting in diligence.</p> <p>2. —Same—Diligence Not Shown.</p> <p>Where counsel for plaintiff, thirty days after the trial and two weeks after the stenographer’s transcript of the evidence had been placed in their hands, presented the statement of facts to defendant’s counsel on the last day before the expiration of the time for filing the same, and for want of the necessary time it was impossible for defendant’s counsel to properly examine and complete the voluminous statement and for the judge to make out and file a statement, and no excuse for the failure to sooner present the statement is shown, a mandamus will .not be granted to compel the judge to make out and file a statement of facts.</p>

<p>1. —Levy of Execution—Sheriffs.</p> <p>A levy made by unauthorized force is void and the officer is liable therefor.</p> <p>2. —Same—Entry Into Dwelling by Force.</p> <p>Although an officer has in his hands an order of court for the sale of specific property upon which a lien has been foreclosed, he has not the right to make a forcible entry into the dwelling of the defendant, for the purpose of seizing the property, nor the right to climb through an open window of the dwelling, if that is an unusual place of entry.</p> <p>3. —Same—Re-Entry by Force.</p> <p>Where an officer has effected a lawful entry into a dwelling house and thereby acquired the right to use all necessary force in making the levy, and he voluntarily leaves without doing so, he is not entitled to re-enter the house by force.</p>

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

<p>1. —Carriers of Freight—Negligence—Pleading—Issues—Charge.</p> <p>A general allegation in plaintiff’s petition that the stock pens in which defendant placed his cattle and from which they escaped, were insecure, was sufficient, in the absence of special exception thereto, to admit evidence of insecurity from any cause, and where the evidence showed an independent cause, such as the knocking down of the fence by a derailed car of another road, a charge in relation thereto was not objectionable as being outside the issues.</p> <p>2. —Same—Estoppel.</p> <p>Where defendant introduced evidence and requested charges upon such phase of the case, it could not complain on appeal that a charge given in relation thereto was not within the issues raised by the pleadings.</p> <p>3. —Same—Tender of Freight—Reasonable Hours.</p> <p>Where defendant had transported cattle and tendered them to the consignee at 12 o’clock on a cold, wet night, demanding the freight, which was a considerable sum, and the consignee had not the money with him at that time, and being a stranger in the city, knew not where to take the cattle, and declined to receive them, and defendant placed them in its stock pens, there was not such a tender at reasonable hours as exempted defendant from liability for the escape of the cattle from the pens that night.</p>

<p>1. —Costs—Rule for—Deposit.</p> <p>The fact that plaintiff’s counsel made a deposit on costs at the time of filing the petition and notified the clerk that they would make further deposits as demanded, could not affect the right of the clerk to make a motion for security for costs.</p> <p>2. —Same—Dismissal—Reinstatement.</p> <p>A motion to reinstate a ease dismissed for failure to give a cost bond should have been granted upon tender of a bond and a showing of a good cause of action which would otherwise be barred by limitations, plaintiff's attorneys testifying that their failure to give the bond was through their want of knowledge that a bond would be insisted on prior to the call of the case for trial.</p>

<p>1. —Negligence—Personal Injury—Charge.</p> <p>Where the action was for injury received by a railway mail clerk while leaving his car, a charge authorizing a recovery if defendant was negligent in starting the car or in having an improperly constructed platform there, if plaintiff’s injury was caused by such starting of the car or the defective platform, was erroneous in that it authorized a recovery if defendant was negligent only in starting the car and plaintiff was injured by reason of the defective platform, or if defendant was negligent only as to the platform and plaintiff was injured by the starting of the car.</p> <p>2. —Same—Contributory Negligence.</p> <p>A charge that if it was negligence for plaintiff, in leaving the car, to jump from the side door, instead of leaving it by the steps, the verdict should be for defendant, did not properly submit the real questions, which were, whether or not an ordinarily prudent person, situated as was plaintiff, would have remained in the car, and if not, whether he would have left it at the time and place and in the manner plaintiff did.</p>

<p>Appeal from Hill. Tried below before Hon. Wm. Poindexter.</p>

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

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

<p>1. —Note—Defense—Fraudulent Representations—Bank Officers.</p> <p>Where the president of a bank was one of the sureties on a railway contractor’s bond, and in order to raise the money to relieve that liability induced his cosurety to execute a note to the bank by representing that it would be a mere matter of form and for the purpose of satisfying the bank examiner, as he had a contract with the railway company by virtue of which the money would be paid, the bank, having no knowledge of such representations, was not bound thereby, and could hold the cosurety liable on the note so executed, and upon which it had advanced money.</p> <p>2. —Same^Note in Renewal—Knowledge of Fraud.</p> <p>Where a party executes a note in renewal of another note claimed by the holder to be valid, but which such maker knows to be fraudulent or without consideration, the giving of the new note will operate to purge the transaction of fraud and as a waiver of the want of consideration.</p> <p>3. —Appeal—Time of Perfecting—Cross-Appeal.</p> <p>Where the plaintiff duly appealed from a judgment against it rendered at a term of court which lasted more than eight weeks, and a defendant who had been denied relief on his cross-bill against a codefendant filed no motion for new trial and gave no notice of appeal, but more than forty days after the judgment filed an appeal bond, there was no appeal perfected by him within the. statutory twenty days, and he could not assign error against his codefendant. Rev. Stats., art. 1387.</p>

<p>Appeal from Harris. Triew below before Hon. Chas. B. Ashe.</p>

<p>1. —Land Certificate—Sale by Married Woman—Acknowledgment.</p> <p>A paroi sale of a land certificate, accompanied by delivery, made by a married woman in 1839, was sufficient to pass the title, although there was no privy acknowledgment.</p> <p>2. —Same—Evidence Showing Transfer—Indorsement and Location.</p> <p>A written indorsement on the back of a land certificate, made by the grantee therein, transferring it to A., together with proofs of its subsequent location in 1840 by A.’s assignee, who claimed title under it, is sufficient to justify a finding that the grantee sold and transferred the certificate.</p> <p>3. —Same—Community Property.</p> <p>A bounty land certificate earned by services as a volunteer in the army of the. Republic under a law in existence prior to such services, was acquired by onerous title, and though issued to the heirs of such volunteer it was community property of himself and wife where they were married at the time of his enlistment and she survived him.</p> <p>4. —Same—Paroi Partition—Acquiescence.</p> <p>Where a land certificate was located in two tracts, one of which was appropriated by the heirs of the deceased grantee therein and the other by his sur-, viving wife, and such .division was acquiesced in for more than half a century, this sufficiently shows a partition of the certificate and the land located by virtue of it.</p> <p>5. —Evidence—Certificate of Tax Collector—Tax Title.</p> <p>Where no objection was made to proof by certificate of the tax collector as to the rendition of land and nonpayment of the taxes due thereon, an assignment questioning the competency of the evidence to prove the facts can not be sustained.</p> <p>6. —Tax Title—Rendition—Identification.</p> <p>Error in the rendition of land for taxes as to the number of acres in the tract is immaterial where the land is otherwise identified.</p>

<p>^Railway Company—Setting Fire From Engine—Evidence.</p> <p>Evidence held insufficient to show that a„ fire which destroyed plaintiff’s wood adjacent to the railway track was set by sparks from defendant’s engines, which were equipped with approved spark arresters, and did not pass near the wood just prior to the fire.</p>

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

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

<p>1. —Injunction—Void Judgment—Adequate Remedy at Law.</p> <p>Equitable relief even as against a judgment which is void will be denied where the applicant for such relief has an adequate remedy at law, as where the time for a writ of certiorari had not expired when the injunction was applied for and obtained.</p> <p>2. —Same—Judgment on Injunction Bond—Practice on Appeal.</p> <p>Where defendant in an action for an injunction has not pleaded in reconvention against plaintiff and the sureties on his injunction bond, the appellate court, on the dissolution of the injunction, can not enter judgment on the bond for the amount of the defendant’s judgment sought to be enjoined.</p>

<p>1. —Railway Company—Baggage—Limiting Liability.</p> <p>A railway company has the right in an interstate contract of carriage to limit its liability for loss of baggage to its own line.</p> <p>2. —Samé—Pleading.</p> <p>Where a demurrer was sustained to the defendant railway company’s .answer setting up a contract limiting its liability for the loss of plaintiff’s baggage to $100, its assignment of error that, pn the evidence, plaintiff’s recovery should have been limited to $100, as stipulated in the contract, was untenable as being without support in the pleadings.</p> <p>3. —Same—Averment of Negligence—Public Policy—Common Law.</p> <p>■ Where plaintiff sought to hold the carrier upon its common law liability for loss .of baggage, without any averment that the damages were caused by its negligence, the question of the validity, upon grounds of public policy, of a stipulation limiting its liability for loss due to its negligence, does not arise.</p> <p>4. —Same—Pleading—Description.</p> <p>In an action for loss and injury of a passenger’s baggage, a description in .the petition of the articles alleged to be lost as “three dresses, worth $300,” and of those injured as “consisting of shirts, waists, collars, cuffs, and ladies’ undergarments,” was not sufficiently itemized and specific as against a special ■demurrer.</p> <p>.5.—Same—Measure of Damages—Value.</p> <p>. The measure of damages for loss of or injury to plaintiff’s baggage while in the hands of the carrier is the actual value of the articles destroyed, and the amount of damage to those partially destroyed, with legal interest, and a recovery could not be had for deprivation of the use of' the clothing, or ■ for inconvenience, annoyance, and.mortification resulting, therefrom.</p> <p>6.—Same—Evidence Immaterial.</p> <p>The length of time it took plaintiff to obtain other clothing, and the purpose for which he and his .wife went to the point of destination, furnish no basis for recovery, and evidence to show the same should not have been received.</p>

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

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

<p>1. —Pleading—Legal Conclusion.</p> <p>In determining the sufficiency of a pleading mere legal conclusions of the pleader will be disregarded and the pleading tested solely by the facts stated therein.</p> <p>2. —Injury to Child—Implied Invitation.</p> <p>Where the owner makes use of his property as others ordinarily do throughout the country, an invitation to a child to go thereon will not be implied, although the property be calculated to and does attract the child.</p> <p>3. —Same—Electric Poles.</p> <p>Electric light poles placed along the streets with spikes driven in them from a point near the ground for use by the owner’s servants in ascending the poles are not such unusually attractive structures to children as to come within the doctrine of the turntable cases and constitute an implied invitation to children to go thereon.</p>

<p>1. —Contract—Loan Company—Principal and Agent.</p> <p>Where the application made for shares in a loan company and for a loan stated that no agent had authority to make any statement or agreement concerning the - making of any loan, and that the authority to make or reject a loan was reserved to the directors of the company, a promise of a loan in a given amount made by the agent to an applicant whereby the latter was induced to purchase shares of stock was not binding on the company and did not render it liable to the applicant for the costs of the shares and expenses incurred by him where the company refused to make the loan because the security offered was inadequate, ■ and applicant’s statements in regard thereto were false, being so made at the agent’s suggestion.</p> <p>2. —Same—Breach of Contract—Counterclaim—Damages.</p> <p>Where in an action for damages against a loan company for breach of a contract to make a loan the defense was that the loan was refused because of false representation made by plaintiff as to the security offered, and defendant also pleaded in counterclaim against plaintiff the amount of profit it would have realized from the loan had the representations been true, and the expense it had incurred in examining the title, etc., exceptions to the counterclaim were properly sustained.</p> <p>3. —Same—Set-Off—Liquidated Damages.</p> <p>•A claim by the loan company for balance due upon plaintiff’s subscription for shares of its stock, being a liquidated demand, could not be set off against plaintiff’s claim for damages, unliquidated in character, for breach of the contract to make the loan, if the application for the stock and the one for the loan were distinct and independent transactions, and not a part of one and the same transaction.</p>

<p>1. —Contract—Waiver .of Stipulation—Forfeiture.</p> <p>Where a contract for the sale of cattle contained a stipulation that in order to make it binding each party should deposit a certified check payable to the other as a forfeit, the act of the parties in accepting each the uncertified check of the other as a compliance was a waiver as to the character of the check, and the contract became binding upon the deposit as made.</p> <p>2. —Same—Venue.</p> <p>The buyer having refused to receive and pay for the. cattle and to pay the forfeit check, and the contract having provided for the payment for the cattle in a certain county, this fixed the venue of the suit by the seller for damages for breach of the contract in such county.</p> <p>2.—Same—Forfeit as Liquidated Damages.</p> <p>The provision in the contract for each party to deposit a cheek for $1000 as a forfeit and “for the faithful performance of this contract,” and that if either party failed to comply with his part of the contract, the bank should deliver-his check so deposited to the other party, was a stipulation for liquidated damages, although the actionable damages are ascertainable.</p> <p>4.—New Trial—Absence of Counsel.</p> <p>See facts under which a new trial, applied for on the ground of absence of defendant and his counsel, was properly denied.</p>

<p>Appeal from Shelby. Tried below before Hon. E. B. Lewis, Special Judge. . .</p>

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

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

<p>1. —Eailway Company—Setting Out Fire—Evidence.</p> <p>Upon the issue whether a fire set in plaintiff’s house in July, 1894, while trees between the house and the railroad were in leaf, was set by sparks from a certain engine No. 78, evidence that a subsequent occupant of the house in March, 1895, found cinders in the gutters on the roof and the water in the cistern black, was too remote to be admissible.</p> <p>2. —Witness—Impeachment—Deposition.</p> <p>Where a witness who had testified by deposition for plaintiff also testified by deposition taken in behalf of defendant, plaintiff could not attack her latter testimony by impeaching her credibility, for which he had vouched in making her his own witness.</p> <p>3. —Pleading—Negligence—Issue—Competency of Servants.</p> <p>Where plaintiff’s • petition alleged as -negligence defective appliances upon the engine and the negligent and careless manner in which the servants operated it, but not their incompetency, the question of their competency was not an issue, and its submission was error.</p> <p>4. —Railway Company—Liability for Fires from Engine.</p> <p>A railway company is not liable for fires set by sparks from its engine where the engine is properly equipped with appliances to prevent the escape of sparks and is properly and carefully handled, even though the employes operating it are incompetent.</p> <p>5. —Same—Proof of Setting Fire—Burden—Preponderance.</p> <p>Evidence showing that a fire was caused by sparks from defendant’s engine makes a prima facie case such as entitles plaintiff to recover, unless rebutted, but defendant is required only to meet such case, and not to establish by a preponderance of evidence that it was not negligent.</p>

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

<p>1. —Deed Absolute as Mortgage—Charge—Degree of Proof.</p> <p>While, in order to authorize a finding that a deed absolute on its face was intended as a mortgage, such intention must be shown by the evidence with clearness and certainty, it is not proper to so instruct the jury.</p> <p>2. —Jury—Misconduct—New Trial.</p> <p>Where plaintiff and a friend held private conversation with jurors in recess of court during the trial, plaintiff treating a juror in a saloon and talking with him at length in a back yard there, such misconduct, in the absence of •explanation or denial, required the granting of a new trial.</p> <p>3. —Fraud Against Creditors—Homestead Eight.</p> <p>The grantee in a deed absolute on its face, but intended as a mortgage and made in fraud of grantor’s creditors, can not be set up as against their claims .the homestead rights of the grantor in the property. •</p>

<p>1. —Fire Insurance—Ownership of Property.</p> <p>Where by the terms of the policy the insured warranted himself to be the sole owner of the building destroyed by fire, while in fact he owned only an undivided one-half interest therein, and had verbally agreed with his co-owner to buy the other half, but there had been no payment or change of possession, there was such a- breach of the warranty as precluded a recovery on the policy.</p> <p>2. —Same—Inventory of Merchandise.</p> <p>A stipulation in a policy that an insured stock of merchandise should be inventoried is not complied with by an inventory showing as to nearly one-half the goods only such items as “Houston bill, $59,” “Showcase and contents, $100,” etc., without any further specification of the articles, their nature and value.</p> <p>3. —Same—Loss of Books—Negligence.</p> <p>Where the insured left his book showing the cash sales on the counter in the store, intending, after discharging an errand, to return and put it in the safe, but did. not do so, and it was destroyed by fire that night, there was a breach of the stipulation as to keeping and preserving the book, its loss being due to plaintiff’s own negligence.</p>

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

<p>Appeal from Gregg. Tried below before Hon. R. B. Levy.-</p>

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

<p>1. —Sale of Land—Executory Contract—Recission—Equity.</p> <p>While ordinarily a vendor may rescind an executory contract for the sale •of land for failure to pay the purchase money due, yet where there are facts making it inequitable for him to exercise this right a court of equity will not enforce it, but will leave him to his action for the purchase money. See example.</p> <p>2. —Assignment of Error.</p> <p>In the absence of a statement of' facts an assignment of error attacking the trial court’s findings of fact will not be considered.</p>

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

<p>1. —Contract of Sale—Option—Breach—Burden of Proof.</p> <p>Where plaintiffs sued for damages for breach of an option contract for the purchase of certain mining properties, which option had been extended by an agreement of defendant company that if plaintiff satifled defendant by February 1st that 'they could carry out the contract to buy the property on the terms of the option, then about to expire, they could have until March 10th to consummate the sale, the burden was on plaintiffs to show that, within the stipulated time, they had performed such acts or given such assurances as satisfied or were reasonably sufficient to satisfy defendant of their ability to carry out the terms of the sale as proposed.</p> <p>2. —Same—Evidence—Corporation.</p> <p>In the absence of any resolution by the board of directors of defendant corporation expressing satisfaction as to plaintiffs’ ability to carry out the contract, it was admissible for defendant to show by the testimony of its officers and agents that plaintiffs did not, by February 1st, satisfy them or either of them of plaintiffs’ ability to complete the purchase under the terms stipulated.</p> <p>3. —Same—Fact Case—Evidence Held Insufficient.</p> <p>Evidence considered and held not sufficient to show that plaintiffs were ready, willing, and able to comply with the terms of the contract and had offered to do so before the expiration of the stipulated time, and as not showing that certain acts and declarations of defendant’s secretary amounted to a-waiver or change of the conditions on which the option was extended.</p> <p>4. —Same Merchantable Title Sufficient.</p> <p>Since the option contract was silent as to the title to the property to be conveyed, it was sufficient on the part of the defendant vendor that it was in condition to convey a merchantable title.</p> <p>5. —Same—Acceptance of Offer—Change.</p> <p>Where the purchaser's acceptance of an offer to sell is not an unconditional one, but imposes new terms or departs from those offered, it is not sufficient, and amounts in law to a rejection of the offer.</p> <p>■6.—Same—Time of the Essence—Expiration of Option.</p> <p>Where an option to purchase requires an acceptance within a stipulated time, time is of the essence of the contract, and the option expires at the date named without any notice of forfeiture.</p>

<p>Witnes Fees—Compromise of Suit.</p> <p>The parties to a judgment may, pending an appeal therefrom, compromise the matter in dispute without the consent of the witnesses for the successful party whose fees are unpaid, and where, in such compromise, the successful party, who is solvent, agrees to pay his witnesses, but fails to do so, they are not entitled to execution for their fees against the other party.</p>

<p>Deed—Warranty Restricted—Incumbrances.</p> <p>A purchaser contracted for a deed which was to be in the statutory form, (containing the words “grant and convey”), but without warranty. The deed furnished contained an added clause warranting against claims through ■ and under the grantor “and none other.” The statute provides that from the use of the words “grant and convey” in a deed there shall be implied only a warranty against prior conveyances by the grantor and against incumbrances. Held, that the added clause rendered the deed, at; least as to incumbrances, more restrictive than the one contracted for, and was not a compliance with the contract, although it did not appear that there were any incumbrances. Rev. Stats., art. 633. .</p>

<p>1. —State School Land—County Attorney—Authority to Sue for State.</p> <p>A county attorney, as such, has no authority to intervene in a suit for State school land, seeking to have the original purchase forfeited and to recover the land for the State on the ground that the purchaser had failed to reside on the land as required by law, since the statute confers such authority upon the Attorney-General alone. Rev. Stats., arts. 4218x, 42181.</p> <p>2. —Same—Sale Only Voidable—Right of Another to Purchase Before Forfeiture.</p> <p>Where a sale of school land is regularly made to an actual settler, it takes the land off the market until a forfeiture of the sale is declared, and a third person can not, by virtue of a subsequent rejected application to purchase, maintain trespass to try title for the land, and have a forfeiture declared because of the defendant purchaser’s failure to continue his ocupancy for the required statutory period.</p>

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

<p>Telegraph Company—Delivery of Message Sent in Care of Another.</p> <p>Where a message addressed to F. in care of a business firm was accepted for transmission by the telegraph company upon information to its agent by the sender that if F. was away the firm would forward the message to him, and F. was in fact away, and the business office of the firm was closed at that time, it being Sunday, and the messenger, without further effort to find the members of the firm, who were well known, delivered the message to the clerk of the hotel where F. stopped while in town, and who had authority to forward mail and telegrams addressed to him, and the message was never delivered to F. , and the sender sued for failure to deliver, it was error for the court to instruct a verdict for the defendant, although if F. had brought the suit such charge might have been warranted.</p>

<p>1. —Fraudulent Conveyance—Creditors—Unrecorded Mortgage—Bankruptcy.</p> <p>Where a merchant executed a mortgage on part of his business property under an agreement that it should not be placed on record, so that he might continue to obtain credit from others, and the mortgage was withheld from record, the merchant obtaining credit meanwhile from parties who were ignorant of it, until he failed and went into bankruptcy, the lien of the mortgage could not be enforced against the trustee in bankruptcy.</p> <p>2. —Same—Bankrupt Law—Four Months Clause—Trustee’s Powers.</p> <p>Since the bankrupt law, by section 70a, vests the bankrupt’s title in the trustee as of the date he was adjudged a bankrupt to “property transferred by him in fraud of his creditors,” and the definition of “transfer” given in section 1,. subdivision 25, expressly includes a mortgage, the trustee has the same power as an attaching creditor to disregard a fraudulent mortgage, and this extends to mortgages made more than four months before bankruptcy the existence of which has been fraudulently concealed from creditors.</p>

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

<p>1. —State School Land—Proof of Occupancy—Certificate of Commissioner-Evidence.</p> <p>The certificate of the Commissioner of the General Land Office issued as provided by the statute and stating that proof of three years occupancy of a section of State school land, which proof is deemed by him sufficient, has been filed in his office by the purchaser named therein, is admissible in evidence to prove occupancy of the land for the requisite period. Rev. Stats., art. 4218j.</p> <p>2. —Same—Sale to Minor—Validating Act.</p> <p>See opinion for a sale of State school land to a minor, attacked also on the ground of collusion within the meaning of the statute, held to come within the validating act of May 27, 1899.</p>

<p>Appeal—Dismissal—Costs—Receiver.</p> <p>Where the interests of all the defendants in reversing a judgment appointing a receiver were identical and there was no reason why separate appeals should have been taken, the same grounds for reversal being urged in each, the costs on an appeal by one of them wherein the transcript was filed after the submisison of the other, will be taxed against appellant, although the judgment was reversed on the other appeal and the receiver discharged.</p>

<p>Appeal from Howard. Tried below before Hon. W. E. Smith,</p>

<p>1. —Personal Injury—Verdict Sustained.</p> <p>The fact that there was evidence in a personal injury case tending to show that plaintiff had exaggerated his pain and injury is held not to authorize the appellate court to disturb a verdict the amount of which is warranted by the injury and the extent of the suffering it entailed.</p> <p>2. —New -Trial—Settlement of Case.</p> <p>Where, pending a trial of a personal injury case, the plaintiff and defendant settle the case and leave the county without calling the court’s attention to the settlement, and plaintiff’s attorneys, who have a contract interest in the recovery, prosecute the case to trial, the settlement is not ground for granting defendant a new trial.</p> <p>3. —Personal Injury Claim—Contract and Assignment to Attorneys—Compromise.</p> <p>Where plaintiff contracted in writing with attorneys to file and prosecute in his name a suit for personal injury, assigning to them a certain per cent of the claim for their fee, a compromise of the suit so brought made between the client and the defendant who had knowledge of such contract was effectual only as to the unassigned interest of the client.</p>

<p>Error to Williamson County. Tried below before Hon. F. G. Morris.</p>

<p>Appeal from Milam. Tried below-before S. 0. Jones, Esq., Special Judge.</p>

<p>Appeal from Brown. Tried below before Hon. John W. Goodwin.</p> <p>Appellant’s eighth assignment of error was as follows: The court erred' in allowing the witness, M. C. Howard, to testify over defendant’s objection, as shown by its bill of exception number 11.</p> <p>The bill showed that plaintiffs’ witness Howard, a drayman in Brown-wood, was asked “whether or not an ordinary horse, that is, a horse that is regarded as ordinarily gentle, will stand when cars are bumping together right by his head.” Defendant objected to this question as immaterial, incompetent, and irrelevant, which objection was overruled, and the defendant excepted. Witness was allowed to state that most of them will jump away from the cars, when- they come together, or when the engine gets close to them.</p>

<p>1. —Cloud on Title—Injunction—Execution Sale.</p> <p>Sale of plaintiff’s land on execution against another will not be enjoined, as casting a cloud on title, when the purchaser, and not the owner seeking injunction, would be the one compelled to resort to evidence extrinsic of the conveyances, to show title in himself if sale were completed.</p> <p>2. —Same.</p> <p>An attempt to sell land under execution against plaintiff’s vendor, claiming the conveyance to him to be in fraud of the plaintiff in such execution, does not threaten such cloud on plaintiff’s title as to furnish him ground to enjoin the sale.</p> <p>3. —Fraudulent Sale—Pleading.</p> <p>Pleadings considered and held to sufficiently negative the inference of fraud in the purchase on credit of land of an insolvent debtor, following the rules announced in Paddock v. Jackson, 41 Southwestern Reporter, 700.</p>

<p>Appeal from Hamilton. Tried below'before Hon. W. J. Oxford.</p>

<p>1. —Carrier of Passengers—Separate Coach Law—Whites in Negro Coach.</p> <p>Evidence in case of a negro crowded out óf the coach provided for his race, which was partly occupied by whites, onto the car platform, where 'he was pushed from the train while in motion, held to require the giving of a requested instruction as to the duty of company to have removed the whites from the car.</p> <p>2. —Riding on Platform—Contributory Negligence.</p> <p>Whether it was contributory negligence under the facts considered, for a passenger to ride on the platform when there was no room in the car provided for his race, held a question of fact, not justifying a charge relieving him from such imputation as matter of law.</p> <p>3. —Overcrowded Train—Sections of Excursion Train.</p> <p>Under pleadings and evidence presenting that issue it was the duty of thie court to submit the question whether the railway was negligent, when the first section” of an excursion train became overcrowded, in failing to put the second section, not so crowded, in advance, and to refuse an instruction relieving it of this duty if it gave notice to passengers at.the depot to wait for the second section, which notice plaintiff did not appear to have heard.</p> <p>4. —Excursion—Advertisement—Evidence.</p> <p>Where the conduct of a railway company in permitting its train to be overcrowded was in issue as an element of negligence, it was proper to prove its advertisement of excursions for that day as bearing on the number of passengers it should have anticipated and provided for.</p> <p>5. —Overcrowding Train—Notifying Passenger to Take Another.</p> <p>Giving notice to passengers to wait for the second section of an exclusion, when the first was overcrowded, did not in law make a passenger boarding the first asume the risk from its crowded condition; he may not have heard the notice, or, hearing it, not have known there was room on the second for persons of his race; and the question of his negligence in boarding the first was one of fact.</p> <p>6. —Passenger—Carrier—Degrees of Negligence.</p> <p>A passenger is bound only to the use of ordinary care; a carrier to a high degree of care in furnishing seats to its passengers and protecting them from the danger from overcrowded cars; but the propriety of the expression of its duty as “the highest degree of care,” is doubtful.</p> <p>7. —Evidence—Harmless Error.</p> <p>The rejection of evidence that plaintiff’s ticket was for a first class passage was improper, but not reversible error where his rights in the matters at issue were the same whether it was first or second class.</p> <p>8. —Passenger Carrier—Mail Train.</p> <p>The fact that a passenger train carries the United States mail can not affect the obligation of the carrier in regard to its proper operation for the safety of passengers.</p>

<p>Appeal from the County Court of Hays. Tried below before Hon. Ed B. None.</p>

<p>1. —Appeal—Objections to Evidence Below.</p> <p>Where there is no bill of exceptions reserving any objections to the admission in evidence of certified copies of deeds, except in the body of the statement of facts, which was not filed until after the term, they stand as if admitted without objection.</p> <p>2. —Railroad—Mortgage Sale of—Legislative Act—Title to Its Lands.</p> <p>While the Act of July 27, 1870 (Special Laws Twelfth Legislature, page 45) is in itself prima facie proof of title in the Galveston, Harrisburg & San Antonio Railway Company to the property of the Buffalo Bayou, Brazos & Colorado Railway Company, yet inasmuch as its twelfth section provides that nothing therein shall be so construed as to deprive any party interested of the right to disprove any assumed fact stated in the preamble, such prima facie proof may be and is overcome as to a tract of land not covered by depots or necessarily occupied by the track of the road where it is shown that the mortgage referred to in the preamble of the act covered only so much of the land of the latter road as may be actually covered by depots or necessarily occupied in its operation, and specially excepts therefrom lands donated by the State, to which class the land here in controversy belongs.</p> <p>3. —Same—Statute Construed.</p> <p>It was not intended by the Act of December 19, 1857 (1 Paschal’s Digest Laws, page 1816) mentioned in the preamble as one of the bases of the Act of July 27, 1870, that a sale of the “roadbed, track, franchise, and chartered rights and privileges” of a railway company, which it declares “shall be deemed an entire thing, and must be sold as such,” should include any and all property of such “sold-out” company.</p>

<p>Taxation—School Land.</p> <p>School land purchased under the Act of July 8, 1879, as amended by the Act of April 6, 1881, is by the terms of the act subject to taxation from the date of the first payment to the State thereon, and the fact that the land is not yet paid out and the legal title still in the State does not render the act unconstitutional in the feature which subjects the land to taxation.</p>

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

<p>• Appeal from the County Court of Lavaca. Tried before Hon. James Ballard.</p>

<p>1. —Assignments of Error—Briefs.</p> <p>Where there are no assignments of error in the record, and necessarily none copied in the briefs, a motion to strike out the briefs must prevail unless the errors complained of therein are fundamental.</p> <p>2. —Statement of Facts—Conclusions.</p> <p>Where the statement of facts was filed after the term of court and without an order allowing such filing, it can not be considered, and the conclusions of fact of the trial court must necessarily be followed.</p> <p>3. —Tax Sale—Double Assessment—Erroneous Description.</p> <p>Where the owner of a town lot paid the taxes, thereon under his rendition, giving the lot and block number, but not the name of the addition, and the assessor placed the same lot, with the name of the addition, on the unrendered roll, and it was sold for the taxes thus assessed against an unknown owner, the case was one within the terms of the statute as to double assessment through erroneous description, and the sale for taxes was void. Sayles’ Civ. Stats., art. 52321.</p> <p>.4.—Same—Assessment—Unknown Owner—Homestead—Possession.</p> <p>The owner of land who is in the actual possession of it as his homestead can not he deprived of his title by á suit for delinquent taxes assessed against an unknown owner, and without actual notice of such suit, since his possession charges the officers with notice of his ownership.</p>

<p>State School Land—Void Railroad Location.</p> <p>By virtue of a railroad land certificate the land in controversy was first surveyed as an alternate State school section in 1861, and was subsequently located under another and different claim and patented to plaintiff’s grantor. After the issuance of such patent defendant purchased the land from the State as State school land. Held, that the location and patent under which plaintiffs claim conferred no title, since the Constitution of 1876 had prior thereto appropriated and set apart to the school fund the alternate sections of all railroad land grants, and the Act of February 3, 1883, had made this provision applicable 0 to all such alternate sections surveyed for the school fund, whether the certificate was valid or invalid, and that judgment for the land was therefore properly rendered for defendants. Const., art. 7, sec. 2.</p>

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

<p>1. —Religious .Societies—legal Church Meeting—Question of Law.</p> <p>Where the action was a contest over church property between factions of a Baptist church, each claiming to be the regular organization, it was error for the charge to submit to the jury the question of whether a certain meeting was a legal conference of the church, as this was a question of law for the court.</p> <p>2. —Same—Majority Rule.</p> <p>Where, in such contest, no departure from the church doctrines is claimed and it is admitted that in Baptist churches the majority rule obtains, the pivotal point in the case is which faction had a majority of the members adhering to it.</p> <p>3.—Briefs—Failure to File in Time—Waiver.</p> <p>The failure of appellants to file their briefs in time is waived where counsel for appellees treat the briefs as properly filed and make no complaint until a few days before the submission of the cause.</p>

<p>1.—Power of Sale—Administration—Decedent’s Estates.</p> <p>Where administration of an estate by an independent executor under a will is still pending, a power of sale in a deed of trust given by the deceased can not be executed, although four years have elapsed since the latter’s death. U.—Res Adjudicata—Judgment—Parol Evidence.</p> <p>Parol evidence is not admissible to show that a judgment in trespass to try title did not really adjudicate the title, and the statement of facts filed in the case, when offered in another case in support of the plea of res adjudicata, is extrinsic evidence, and no better than paroi.</p>

<p>Appeal from Gregg. Tried below before Hon. Gone Johnson, Special Judge.</p>

<p>1.—Limitations—Promise of Employment—Fraud—Diligence in Discovering.</p> <p>Where plaintiff, suing for' personal injuries, sought to avoid the bar of the two years statute of limitations on the ground of a fraudulent promise of defendant to give him employment for life, and the evidence showed that for three and one-half years, excepting two days of work, he was repeatedly and continuously denied employment by defendant, his failure to sooner discover the fraud was due to want of reasonable diligence, and the court should have instructed that his action was barred by limitations.</p> <p>'2.—Fraud in Procuring Release of Damages—Master and Servant—Evidence.</p> <p>Evidence in an action for personal injuries, to which defendant pleaded an unconditional written release by plaintiff for a given sum of money, held insufficient to justify the court in submitting to the jury the issue of fraud in the procurement of the release.</p>

<p>Appeal from Hill. Tried below" before Hon. Wm. Poindexter.</p>

<p>Appeal from Lamar. Tried below before Hon. V. W. Hale, Special Judge.</p>

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

<p>1. —Railway Company—Negligence—Evidence.</p> <p>Evidence held to warrant a finding that a freight conductor was not negligent in remaining in his caboose for the purpose of adjusting the switch he was about to enter at the time he was struck by a train approaching on the main track from behind.</p> <p>2. —Same—Master and Servant—Violation of Rules.</p> <p>The servant’s violation of a rule of the master is not negligence per se, but it is a question of fact for the jury whether, under all the circumstances, the failure to obey the rules is excusable.</p> <p>3. —Same—Expert Evidence—Rules.</p> <p>Where the rules of defendant company were in evidence and were plain and intelligible, it was not error to exclude the testimony of an experienced railroad man as to what was the duty, under the rules, of a conductor situated as was plaintiff at the time of the collision and injury, since the rules were the best evidence.</p> <p>4. —Pleading—Limiting Recovery—Charge—Remittitur.</p> <p>Where plaintiff’s petition claimed damages for time lost at the rate of $100 per month, and he testified that he earned from $100 to $125 per month according to the amount of work he did, and the charge authorized the jury to find “the reasonable value of plaintiff’s services for the time lost,” without limiting them to the amount claimed in the petition, this was error, since the evidence warranted a recovery for $125 per month, but the error could be cured by a remittitur of $25 for each month from the time of the injury to the trial.</p>

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

<p>1.—Appeal—Supersedeas Bond—Liability—Foreclosure.</p> <p>In an action of debt and for foreclosure of a mortgage a.third party was made a defendant in order that the foreclosure might be binding on it also. Plaintiff obtained a judgment for his debt against the mortgagor, with a decree of foreclosure as against both defendants, and the third party alone appealed, giving the statutory supersedeas bond (Revised Statutes, article 1404) in double the amount of the judgment" and conditioned that appellant should perform the judgment of the appellate court and pay all damages it should award against him. The appellate court affirmed the judgment below and entered judgment in the usual form against the makers of the supersedeas bond in favor of appellees, the plaintiff and the defendant mortgagor, that they recover of the bondsmen “such amounts as were adjudged to them by the court below.” Held, that such judgment was not to be construed as rendering appellant liable on the supersedeas bond for the entire money judgment rendered below against the mortgagor, but that, since the appeal had not suspended plaintiff’s right to execution against the mortgagor, appellant’s liability on the bond was not intended by such judgment to be extended beyond the loss occasioned by the suspension of the foreclosure sale.</p> <p>2. —Injunction—Relief Against Judgment—Enjoining Execution—Jurisdiction.</p> <p>Where the judgment of the appellate court, when properly construed, did not render the appellant and his bondsmen liable for the debt for which plaintiff had recovered judgment below against another party, the original defendant mortgagor, appellant was entitled to resist execution under such judgment of affirmance against him and his bondsmen for the entire amount of such debt and judgment below by injunction from a court other than that rendering the judgment of affirmance, and was not restricted to motion in that .court and application to the Supreme Court for writ of error.</p> <p>3. —Judgment—Construction ■ of—Presumption.</p> <p>In construing a judgment of another Court of Civil Appeals it will be presumed, in the absence of a clear expression to the contrary, that such sister court holds the same view of the law on which the judgment is based as does this court. =</p> <p>4. —Same—Dismissal—Res Adjudicata.</p> <p>Where a cause is dismissed for want of jurisdiction the judgment is not res adjudicata on the merits.</p>

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

<p>1. —Action for Personal Injury—Survival—Death Before Suit Brought, ,</p> <p>Under the article of the statute providing that causes of action upon which suit may hereafter be brought by the injured party for personal injuries other than those resulting in death shall not abate by reason of such party’s death, it is not necessary to the survival of the cause of action that suit thereon should be brought by such party in his lifetime. Rev. Stats., art. 3353a.</p> <p>2. —Railway Company—Assumed Risk—Engineer—Track.</p> <p>A locomotive engineer making daily trips over a certain track does not assume the risk of an unknown defect in the track unless the generally known condition of the track is such that he should have anticipated the existence of the particular defect.</p> <p>3. —Same—Duty of Lookout.</p> <p>A locomotive engineer is not bound, for the purpose of his safety, to keep a lookout ahead to ascertain whether the company has performed its duty as to furnishing him a reasonably safe track, as he has the right to presume that it has done so, and does not assume the risk of its failure in such respect.</p> <p>4. —Personal Injury—Evidence.</p> <p>Where the action is for personal injury, testimony that before the accident the injured party’s disposition was pleasant, and that after it he was melancholy and depressed, was admissible to show that he suffered physical pain and mental , anguish on account of the injuries.</p> <p>5. —Same—Survival of Action—Mental Suffering.</p> <p>Under the statute providing that a cause of action for personal injury shall not abate because of the death of the injured party, the entire action survives to the heirs, and they may' recover for physical pain and mental anguish suffered by the deceased up to the time of his death. Rev. Stats.,.art. 3352a.</p> <p>6. —Appeal—Bill of Exceptions and Statement of Facts in Conflict.</p> <p>Where the agreed statement of facts does not contain testimony which a bill of exceptions shows was admitted, the statement of facts will control, and an assignment of error based on the bill of exceptions will not be considered.</p>

<p>1. —Railway Company—Negligence—Charge—Issue.</p> <p>Where the evidence in an action for personal injury by a railway brakeman raised the issue of negligence in failing to properly attach a stirrup to a car, the court properly refused to submit the issue as one of negligence in failing to provide a proper stirrup.</p> <p>2. —Same—Assumed Risk—Servant’s Knowledge.</p> <p>A brakeman’s knowledge that sometimes the stirrup to a car was secured by a bolt on which there was a single nut does not charge him with assumption of the risk of injury by reason of such defective fastening, since he may assume that the usual precautions have been taken to prevent the nut from coming off, and in the absence of knowledge that such precautions have been neglected, he does not assume the risk.</p> <p>3. —Same—Defective Appliance—Charge Not Applicable.</p> <p>A charge that the mere absence of the nut and giving way of the stirrup was not sufficient to show negligence was properly refused where the evidence was such as to sustain a finding of negligence in failing to use proper precaution to prevent the nut from coming off.</p> <p>4. —Same—Personál Injury—Immaterial Evidence.</p> <p>In an action of damages for personal injury, evidence that within a week after the injury plaintiff consulted counsél about bringing suit and then refused to talk with defendant’s claim agent about a settlement, was immaterial and properly excluded.</p> <p>5. —Same—Pecuniary Aid by Counsel.</p> <p>Evidence to show that at thé time plaintiff employed counsel they gave him money and agreed to advance him $40 a month as long as the suit was pending, was properly excluded as immaterial.</p> <p>6.—Same.</p> <p>Evidence that plaintiff had borrowed money and assigned his pay to secure it, and that the lender had said he was going to report the matter to the company, which would have caused plaintiff’s discharge, were too remote to show a motive on plaintiff’s part for feigning injury.</p>

<p>1. —Railway Company—Injury to Child—Discretion—Contributory Negligence.</p> <p>Where a boy 10 years old and of average intelligence was told not to go about a work train, as he might get killed or hurt, but was not told as to how he might be killed or hurt, the issue as to his capacity and intelligence to comprehend and appreciate the danger was for the jury, and a finding to the effect that he was not guilty of contributory negligence in going about the train, by which he was run over and killed, is sustained.</p> <p>2. —Same—Peril Not Discovered.</p> <p>Where children were on and about a work train so frequently that a person of ordinary prudence would have apprehended danger to them, it was immaterial that the employes in charge thereof did not know that plaintiff’s child was on it in a dangerous position, since they were guilty of negligence in failing to use care to prevent him going thereon.</p>

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

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

<p>1. —Community Property—Damages—Parties—Charge.</p> <p>Where W. sued for damages caused to himself and family by the operation of a cotton gin near their residence, and upon his death, pending suit, the wife and children made themselves plaintiffs, the wife claiming damages in her own right, and she and the children claiming as heirs of W. for injuries to him in his lifetime, error of the court, if any there was, in overruling a demurrer urging a misjoinder of plaintiffs and causes of action was cured by a charge limiting recovery to the damages sustained by W. and his wife in his lifetime, and which were community property recoverable by' the wife and children after his death.</p> <p>2. —Nuisance—Operating Cotton Gin—Charge.</p> <p>Where the charge instructed that the business of operating a cotton gin was lawful and not necessarily a nuisance, but might become so when conducted in such close proximity to a private residence as to materially interfere with the comforts of such residence as a home, and that if defendants in operating the gin created and generated' noise, dust, and smoke which were carried into plaintiffs’ residence so as to interfere with the comfortable enjoyment of the home, and plaintiffs were thereby subjected to annoyance and discomfort, they were entitled to recover, such charge did not authorize the jury to find the gin to be a nuisance from the mere fact of its proximity to the residence, but authorized a recovery only in ease the jury found that the gin as located and operated constituted a nuisance.</p> <p>3. —Same—Expense of Removal—Abating.</p> <p>Since defendants could not be permitted to maintain the nuisance sought to be abated merely because it would be expensive to them to remove it, evidence offered by them to show it would cost $1000 to remove the gin plant was properly excluded.</p> <p>4. —Same—Equitable Relief—Injunction—Acquiescence—Laches.</p> <p>Plaintiff’s failure to protest against the erection of the gin near his residence, and his failure to complain of it as a nuisance until it had been operated for two annual seasons and sold to defendants, was not such conduct and loches as would prevent a court of equity from affording him relief by injunction restraining its operation as a nuisance where he did nothing to encourage its erection or its purchase by defendants, and it is not shown that he knew when it was being erected what conditions and results would attend its operation.</p> <p>5. —Same—Injury to Value—Abating.</p> <p>Where the desirability of residence property is affected by a nuisance, the value of the property as well as its rental value is necessarily impaired, and since the injury is not entirely personal to the occupant, the landlord as well as the tenant is entitled to have the nuisance abated.</p>

<p>1. —Carrier of Passengers—Excursion Ticket—Time Limit.</p> <p>Defendant railway company sold an excursion ticket over its own line and to G., on a connecting line, limited to the 23d of the month, but stipulating therein that the purchaser should be identified at G. and sign a return contract, and on the 23d the purchaser was so identified and signed the return contract, which provided that the purchaser agreed to use the ticket to the original starting point within the number of days punched in the return limit column thereon, the number of days so punched being “pne” day. The purchaser at once commenced her return trip, reaching the connecting point of the two roads on the 24th. Held, that the ticket was good when presented on a train of defendant on the 24th, although the train would not reach the original starting point until the 25th.</p> <p>2. —Same—Evidence—Opinion.</p> <p>Plaintiff’s witnesses should have been permitted to testify that the conductor’s manner when he refused the ticket and used certain language was rude, impolite, and insulting, although this was matter of opinion.</p> <p>3. —Same—Evidence.</p> <p>Testimony as to the difference between the excursion rate and the regular fare should have been excluded as immatrial, the issue being as to whether or not plaintiff’s ticket had expired by limitation.</p> <p>4. —Same—Written Contract—Parol Evidence Varying.</p> <p>The contract expressed by the ticket being a printed one, its terms could not be changed or varied by paroi, and evidence that a verbal announcement that the tickets were limited to the 23d the entire trip, going and returning, was made to purchasers assembled in front of the ticket window, including plaintiff, was not admissible.</p>

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