Volume 29 — Texas Civil Appeals Reports

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

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

<p>1. —Railway Company—Custom in Uncoupling Cars—Charge.</p> <p>Where, in an action for the death of a switchman killed while uncoupling ears, the evidence showed that the speed of the cars was increased on a kick signal being given by another, and the deceased was struck, and the evidence was conflicting as to whether it was arranged by him with others that the signals should be so given at such a time, and as to whether it was the custom there to so give it, a charge to the jury to return a verdict for the defendant if the deceased knew that the speed was to be so increased, and if there was such custom, was error, since either fact constituted a defense.</p> <p>2. —Same—Custom in Other Yards.</p> <p>Under the facts as shown in evidence the court should not have refused a requested charge to the effect that if a kick signal, whereby the speed of the ears was increased, was given in accordance with the custom of the yard where the aceidenct occurred, and that the custom was known to the switch crew, it was immaterial how the work was done in other yards.</p> <p>3. —Same—Charge Upon Issue Not Raised.</p> <p>A charge submitting the issue of whether the act of the deceased in exposing his body between cars, if negligence, contributed to the accident, was erroneous, since the evidence presented no issue whether such act did contribute to the accident, and it was inevitable that it did.</p> <p>4. —Contributory Ngligence—Burden of Proof—Charge.</p> <p>Where,- in an action for the death of a switchman, plaintiffs had, in the development of their ease, presented the issue of contributory negligence, and had given evidence of facts which, standing alone, would have authorized submission of that issue, the court should have given no charge as to the burden of proof on that issue, or given one permitting the jury to look to the whole evidence in determining whether that defense was established, but riot one that the burden was on the defendant to show by a preponderance of evidence that the deceased was guilty of contributory negligence.</p>

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

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

<p>1. —Tax Sale Without Reserve—Other Liens Discharged.</p> <p>Where a city recovered a tax judgment against certain real property for the taxes of certain years, and afterwards recovered another judgment against the same property for taxes of other prior and subsequent years, and had the property sold without reservation under the latter judgment, the purchaser took the property free from any lien under the first judgment. The tax purchaser had no actual notice of the existence of the other judgment, but such notice, it seems, would have made no difference.</p> <p>2. —Same—Exhausting Security—Release of Tax.</p> <p>Since the city, by such sale without reservation, merely exhausted the security it held in favor of the other judgment, there was no violation of a provision of the city charter prohibiting the release or compromise of unpaid taxes.</p> <p>3. —Same—City Charter as to Tax Lien.</p> <p>A provision of the city charter that anyone purchasing property incumbered with taxes should be deemed as to such taxes a delinquent taxpayer, taking it charged with the lien, does not apply to a purchaser under a tax sale made by the city, but only to the purchaser from a delinquent taxpayer.</p> <p>4. —Same—Municipal Corporations—Rights as Litigant.</p> <p>The city was bound by the action of her attorney in making the sale without reservation the same as any other party litigant, and that the lien so held discharged was for taxes does not affect the case.</p>

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

<p>Eminent Domain—Condemning Railroad Right of Way—Appeal and Supersedeas —Possession—Injunction.</p> <p>In a proceeding by a railway company to condemn for its use a crossing over the track and right of way of another company, there was an award of $1 damages, but on appeal to the county court judgment of condemnation was rendered without any damages, and defendant appealed, executing a supersedeas bond. Appellee then made a deposit of double the amount of damages originally awarded, and executed a bond as required by the statute (General Laws 1899, page 105) authorizing the petitioner in such a proceeding to take possession pending appeal upon depositing double the amount of damages awarded, paying the costs and giving bond to secure future costs. Appellant then applied to the Court of Civil Appeals for an injunction to restrain appellee from taking possession of the crossing pending the appeal, claiming that the statute did not apply where no damages were awarded. Held that appellee, having complied with the statute, was authorized to take possession, and that the injunction should be denied.</p>

<p>1. —Jurisdiction—Amount—Sequestration.</p> <p>In an action of sequestration brought by a purchaser of personal property against the seller to recover the possession the jurisdiction is determined by the value of the property, and not by the amount plaintiff had agreed to pay for it.</p> <p>2. —Same—Fraudulent Valuation—Justice Court—Presumption.</p> <p>The jurisdiction of the justice court in an action of sequestration will be determined by the valuation placed on the property by the plaintiff, unless it is shown that the valuation has been fraudulently understated for the purpose of conferring jurisdiction; and in doubtful cases of this character all intendments will be in favor of the jurisdiction.</p>

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

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

<p>1. —Assignment of Error—Charge—Statement Necessary.</p> <p>Assignments of error to the refusal of requested charges, not followed by a statement showing what the charges were, and giving no reference to any page of the record containing such charges, can not be considered.</p> <p>2. —Same—Specifying Error.</p> <p>Where asssignments do not point out the specific errors complained of and are not followed by a sufficient statement, they will not be considered.</p> <p>3. —Interest on Account.</p> <p>Where plaintiff in an action on an account did not claim interest, and the verdict did not find any interest, it was error for the judgment to award plaintiff interest on the account from 'its date.</p> <p>4. —Citation—Summoning Company.</p> <p>Where a citation commanded the officer to serve H., president of a named oil company, and it was served as directed, this did not suffice to bring the oil company into court and authorize a judgment against it.</p> <p>5. —Appeal from Justice to County Court—Jurisdiction.</p> <p>Where the justice court' had no jurisdiction over one of the parties defendant because not cited therein, the county court acquired none as to such party by virtue of the case having been appealed to it.</p> <p>6. —Judgment—Finality—Other Parties.</p> <p>The finality of the judgment for plaintiff against the original defendants is not affected by the fact that a judgment in their favor over against another party, attempted to be brought in by them as a codefendant, is void for want of jurisdiction as to such other party, where the issue upon which plaintiff sought to recover was in no way dependent on the defendants’ right to recover against such third party.</p>

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

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

<p>1. —Trespass to Try Title—Adverse Possession—Harmless Error.</p> <p>Where in trespass to try title the court correctly found that plaintiff’s title had been divested by virtue of adverse possession for ten years, error in the admission of deeds showing title in defendant was harmless.</p> <p>2. —Same—Limitations—Pleading.</p> <p>Where in trespass to try title plaintiff’s amended petition asserted claim to only ten acres of the tract in controversy, and defendants replied claiming the whole tract by virtue of ten years limitation, and the evidence sustained their claim, a judgment in their favor for all the land could not be held erroneous as to the ten acres because they had not specifically pleaded limitation as to that part.</p> <p>3. —Appeal—Findings of Fact—Exceptions.</p> <p>Where the case is tried by the court without a jury, a party who excepts to the judgment rendered thereby preserves his right to assail the findings of fact as being unsupported by the evidence.</p>

<p>Appeal from the County Court of Jefferson. Tried below before Hon. George C. O’Brien.</p>

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

<p>1. —Contract—Sale of Cattle—Payment in Land—Breach—Action for Price—Election.</p> <p>Where there was a contract for the sale of cattle at an agreed price, to be paid in land, the seller, on the buyer’s failure to pay in land, may, at his option, recover in money the agreed price of the cattle which were delivered and accepted, or he may, in the alternative, recover the value of the land.</p> <p>2. —Same—Immaterial Errors—Market Value—Agreed Price.</p> <p>The verdict being for a less sum of money than the agreed price of the cattle, defendant was not injured by any errors in the charge on the measure of damage, nor by the admission of evidence as to the market value of the cattle.</p> <p>3. —Same—Deed—Delivery—Pleading—Release. •</p> <p>The court did not error in refusing to instruct a verdict for defendant because plaintiff had not returned a deed of the land delivered to him by defendant, where it clearly appeared that plaintiff asserted no title thereunder; that the deed was never accepted as a conveyance; was not acknowledged, and was delivered to plaintiff’s attorney solely to have the title examined. If defendant desired to have the deed delivered back to him, he should have asked for such relief.</p>

<p>1. —Mortgage—Absolute Deed—Parol Evidence.</p> <p>A deed absolute on its face may be shown by paroi evidence to be in fact a mortgage.</p> <p>2. —Same—Constructive Trust.</p> <p>Where B.’s interest in land was to be sold on execution, and it was agreed that R. should purchase the land at such sale, and take title as security for the payment to him by B. of the amount of the debt, such agreement being unknown, except to the parties, and R. thereafter died, and B. sued his devisee to recover the land, tendering the amount of the debt, the transactions did not create a constructive trust, although the sheriff’s purpose was to pass the legal title, and he was no party to such private agreement.</p> <p>3. —Same—Limitations.</p> <p>Where there is a deed of land absolute in form, but in fact a mortgage, nothing short of adverse possession of the land on the part of the mortgagee satisfying the requirements of the statute of limitations barring an action for land will vest the title in the mortgagee by limitations.</p>

<p>1. —Mutual Benefit Insurance—Wrongful Expulsion from Order—Recovery of Premiums—Limitations.</p> <p>Where a member of a mutual benefit insurance association was wrongfully expelled, limitations began to run from the day of the expulsion against his action to recover premiums paid by him.</p> <p>2. —Same—Value of Insurance as a Credit.</p> <p>If plaintiff’s expulsion from the association was wrongful then it would not be entitled, as against his claim to recover the premiums he had paid, to. a credit . for the value of the insurance during the time it was in force.</p> <p>3. —Same—Defense—Expulsion Void.</p> <p>As against plaintiff’s claim, after his wrongful expulsion from the association, to recover the premiums he had paid, the association was not entitled to urge as a defense that the expulsion was void for want of notice and trial, as required by its laws.</p> <p>4. —Same—Expulsion—Appeal Necessary.</p> <p>Where the association was composed of a supreme council and local lodges, and plaintiff was expelled by a local lodge without trial or notice as required by the laws of the order, and although he was advised of the illegality of the action and his right of appeal, he made no appeal to the supreme council, he was not entitled to maintain an action to recover the premiums he had paid.</p> <p>5. —Same—Reinstatement.</p> <p>Plaintiff’s expulsion not having been ratified by the supreme council, which was invested with full power in the premises, there was no expulsion in fact, and he was not entitled to recover for premiums he had paid, but had the right to be reinstated in good standing upon the payment of all dues and premiums that had accrued.</p>

<p>1. —Divorce—Action to Set Aside.</p> <p>Where in a divorce suit the defendant knew of its institution, and a citation, issued on the original petition, was served on him and explained to him, and he knew of the decree twenty days after it was rendered, he was not entitled to maintain a suit to set aside the decree for fraud, his remedy being by appeal, although the case was tried on an amended petition, which did not set up a new .cause of action, and notice of which was not served on him.</p> <p>2. —Practice on Appeal—Parties with Adverse Interests.</p> <p>Where the interests of plaintiff and an intervener are adverse, the former can not complain of errors which affected only the rights of the latter.</p> <p>3. —Same—Briefs—Intervener.</p> <p>See case where the appellant and an intervener whose interests were adverse to each other, though common as against the appellee,1 were permitted to file a joint brief, although the propriety of such practice is doubted.</p> <p>4. —Trial—Submission of Issue—Charge.</p> <p>Where the pleading and evidence raised the issue of fraud and the court was requested to submit such issue, it was error not to submit it, although it should not have been submitted in the form requested.</p>

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

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

<p>1. —Principal and Surety—Agreement to Indorse Notes—Refusal—Liability.</p> <p>Where a sale of land on credit was made in reliance on the written agreement of L., a third person, to indorse one of the purchase money notes, L.’s liability under the agreement after his refusal to indorse the note was the same as though he had indorsed it, and the payee owed him no duty to endeavor to obtain another indorser in his stead.</p> <p>2. —Same—Bankruptcy of Maker.</p> <p>The payee of a bankrupt note owes no duty to a surety thereon to prove up the debt as a claim against the brankrupt estate.</p> <p>3. —Same—Note—Indorser.</p> <p>The indorser of a note which retains a vendor’s lien on land has not the right to require the holder to enforce the lien and sell the property before he can have judgment against such indorser.</p>

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

<p>Appeal from Taylor. Trieb below before Hon. N. R. Lindsey.</p>

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

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

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

<p>1. —Clerk of Court—Misappropriating Trust Fund—Evidence.</p> <p>See evidence of a clerk of court held insufficient to sustain a finding that money deposited with him and adjudged to nonresident defendants in a suit was not in his hands at the time the judgment was rendered, but had been previously embezzled by him, and limitations thus made available by his testimony as a defense in this case.</p> <p>2. —Practice on Appeal—Assignment of Error.</p> <p>The failure of appellant’s assignment of error to specify wherein the evidence is insufficient to support the finding of the trial court is a defect which justice demands to be overlooked in this case, where an officer of a Texas court of justice has misappropriated trust funds and seeks to swear away the rights of nonresidents thereto.</p>

<p>Landlord’s Lien—Oral Lease—Agreement to Purchase—Waiver—Charge.</p> <p>A landlord, claiming a lien on the crop raised on his land, sued defendant, who had purchased the crop, for its conversion, alleging that he made an oral contract with one K., who raised the crop, leasing him the land for that year for an agreed rental, which agreement was afterwards reduced to writing,—and plaintiff testified to that effect. K. denied the execution of the written lease, and claimed to have made an oral contract over a year previous to purchase the land, under which he took possession. The court charged the jury, in effect, to find for defendants if they found there was such an oral contract of purchase, or that K. did not sign the alleged written lease contract. Held error, as the lease, if made, was a waiver for that year of a previous oral contract of purchase, and plaintiff’s failure to prove a written lease did not deprive him of the right to recover if he proved an oral one.</p>

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

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

<p>Wife’s Separate Property—Community—Mortgage—Resulting Trust—Subrogation.</p> <p>A husband purchased land, taking deed to himself but paying part of the price with his wife’s separate means and giving, for the balance, his own note which he afterwards paid with his wife’s money. Held:</p> <p>(1) The land so bought became, under the doctrine of resulting trust, the wife’s separate property to the extent of the cash payment, but was community to the extent of the deferred payment for which the husband gave his own note, in the absence of any other circumstances evidencing an intent to make it all the wife’s separate property.</p> <p>(2) A resulting trust can arise only from a payment made at the time of the purchase, and to the extent that the property so purchased by the husband became community estate it was subject to a deed of trust given by him before such purchase, the holder of which was entitled to. foreclosure as to such community interest.</p> <p>(3) The wife was not entitled to be subrogated to the rights of the lien-holder to the extent that her means were applied to discharge the note given for the deferred payment, in the absence of appropriate pleadings seeking such relief.</p>

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

<p>Contributory Negligence—Pleading.</p> <p>Allegations held to disclose a cause of action against a railway company for one injured while walking on the track, by a train approaching him in front, circumstances being alleged sufficient to make the question of his contributory negligence one of fact for the jury, and discovery of his peril and failure to attempt avoidance of injury, to which contributory negligence furnished no defense, being also alleged.</p>

<p>1. —Guardianship—Vacating Appointment.</p> <p>Article 1917, Revised Statutes, providing for vacating letters of administration, granted to one person, on application of another who has a prior right thereto under the statute, applies, by force of article 2558, equally to letters of guardianship.</p> <p>2. —Guardianship—Right to as Between Stepmother and Kindred.</p> <p>The kindred of a minor by blood have a prior right to his guardianship over that of a stepmother.</p> <p>3. —Practice on Appeal.</p> <p>A contest over guardianship may be remanded, instead of finally determined on appeal, where the conditions may be changed since the former trial, as by the minor reaching the age entitling him to select his guardian.</p>

<p>1. —Handcar—Use in Employe’s Private Business—Charges Construed Together.</p> <p>A charge with reference to the liability of a railway company for injuries by collision at a road crossing with a handcar then being used, by an employe about his private business, which required, in order to support recovery, a finding that he was and should have been known to the company to be in the habit of disobeying the company’s rules prohibiting such use of the handcar committed to his charge, was to be considered in connection with a subsequent paragraph requiring a finding that he had also been guilty of negligence causing the injury in its operation, and not taken as authorizing a recovery independent of such negligence in its use. See charges held to properly present the issues in such case.</p> <p>2. —Requesting Charges—^Selection by Judge—Undue Prominence.</p> <p>When counsel request several charges on the same issue, and the giving of all would give it undue prominence, they can not complain that the one selected to be given presents the issue less specifically than one refused.</p> <p>3. —Verdict—Correction qf Form. .</p> <p>A verdict in a personal injury case by which the jury “find the defendant guilty for the sum of fifteen hundred dollars,” signed by the foreman, but without title of the case, was properly corrected in open court, by direction of the judge, so as to give it due form, before being received.</p> <p>4. —Assignment of Error—Verdict Contrary to Evidence.</p> <p>Appellate courts do not revise the action of the jury. Error by reason of the insufficiency of evidence to support their verdict should be assigned upon the action of the court in refusing a new trial.</p>

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

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

<p>Appeal from the County Court of Dallas. Tried below before Hon. Ed. S. Lauderdale.</p>

<p>1. —Judgment—Injunction.</p> <p>See petition held to state a good cause of action for enjoining execution and the prosecution of garnishment upon a judgment, it having been obtained without service of process, and for a debt not owed, and without defendant’s knowledge till it was sought to be enforced.</p> <p>2. —Direct or Collateral Attack.</p> <p>A proceeding in the district court to enjoin execution sale and prosecution of garnishment upon a county court judgment for more than $500 and have the judgment declared void because obtained without service of process, was a direct and not a collateral attack.</p> <p>3. —Void Judgment. •</p> <p>A judgment obtained without service of process on defendant (falsely recited) is void and may be enjoined; it is not necessary to show fraud in obtaining it; and limitation did not run against the action till complainant knew of the existence of the judgment.</p>

<p>1. —Railway Company—License to Use Track for Crossing—Trespasser—Personal Injury—Negligence.</p> <p>Where there was a license to the public to use any part of a railroad yard for the purpose of crossing the track, this did not warrant a person in going upon the track for another purpose, and where one from curiosity stopped to examine the coupler of a flat ear standing on the track in such yard, and was killed by the moving of the car, he was a trespasser to whom the railway company in the absence of knowledge of his presence there, did not owe the duty of giving warning of the movement of the ear.</p> <p>2. —Same—Signals at Crossing.</p> <p>It is usually held that where the statute does not specifically name the class of persons to whom the duty of giving signals at a railroad crossing is owing, it is due only to those who are about to use, are using, or have lately used the crossing, and that no others can recover for injuries resulting from a failure to give the signals.</p> <p>3. —Same—Contributory Negligence.</p> <p>See evidence held to show that deceased was guilty of contributory negligence in stopping on the track by a car in a railroad yard.</p>

<p>Appeal from Dallas. Tried below before Hon. Thomas B. Hash.</p>

<p>Appeal from the County Court of Fannin. Tried below before Hon. W. A. Evans.</p>

<p>Error from Johnson. Tried below before Hon. William Poindexter.</p>

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

<p>1. —Appeal—Record—Presumption—Plea of Privilege.</p> <p>In the absence from the record of the evidence heard on a defendant’s plea of privilege to be sued in the county of his residence, the presumption is in favor of the judgment thereon denying the plea.</p> <p>2. —Same—Ruling on General Demurrer—Fundamental Error.</p> <p>Where the record fails to show that a general demurrer was presented and acted on, but does disclose that a motion to have the judgment entry corrected so as to show such action was overruled, it will be presumed that the record is correct, as against a contention by appellants that their demurrer was sustained; but since a petition not good against a general demurrer would not support the judgment of recovery thereon, the question raised by the general demurrer will be treated as one of fundamental error.</p> <p>3. —Jurisdiction—Amount—Sureties.</p> <p>Where the court has jurisdiction of the principal amount sued for, the fact that the amount for which each of two different sets of sureties may be held liable in less than the requisite statutory amount will not deprive the court of jurisdiction.</p> <p>4. —Assignment of Error.</p> <p>Where an assignment alleging error in the judgment is not followed by any proposition, and is too general to be considered as a proposition in itself, it will not be considered.</p> <p>5. —Same—Propositions.</p> <p>Where assignments to separate and distinct matters are blended and but one proposition presented under them, it will not be considered.</p> <p>6. —Judgment—Principal and Sureties.</p> <p>Where in an action against a principal and sureties, the judgment, rendered separately against the principal and the sureties, fails to provide that a satisfaction of the judgment against the principal will be a satisfaction of that against the sureties and vice versa, it will be reformed on appeal so as to have that effect.</p>

<p>1.—Appeal—Conclusions of Law Below.</p> <p>Where the trial judge’s conclusions of law do not show that the judgment was based upon any particular issue, it will be affirmed if the facts sustain it upon any issue.</p> <p>2.—Limitations—Adverse Possession—Finding.</p> <p>Where the trial court found that plaintiff’s possession of the land was under recorded deeds and accompanied by assessment and payment of taxes, it follows as a necessary inference that it was adverse in character.</p> <p>3. —Same—Conflicting Locations—Quieting Title.</p> <p>Evidence considered and held to show that plaintiffs, claiming under a junior location of a certificate made in 1838, had acquired title to the land by limitations, and were entitled to a judgment quieting their title against claims under the adverse prior location.</p> <p>4. —Same—Survey—Land Certificate.</p> <p>Where the survey under which defendants claimed required correction by reason of a part of the certificate having subsequently been located elsewhere, they could not, by refraining for thirty years from making the correction, hold their claim to the land in abeyance and thereby defeat the running of limitations against them.</p> <p>5. —Same—Curative Act of 1871.</p> <p>The league and labor certificate ■under which defendants claim having been validated by the curative Act of April 25, 1871 (2 Paschal’s Digest Laws, article 7089), so that thereafter they could have maintained a possessory action against trespassers, limitations ran against them from that date.</p>

<p>1. —Landlord and Tenant—Removal of House.</p> <p>Where plaintiff leased a portion of his homestead to W. in consideration that W. would erect a storehouse thereon which was to belong to plaintiff at the end of the lease, and W. erected the house and sold his lease to defendant with plaintiff’s consent, defendant was not entitled, on quitting the property before the end of the lease, to remove the storehouse, and an injunction to prevent him from so doing was properly granted.</p> <p>2. —Homestead—Lease—.Joinder of Wife.</p> <p>A written option for a lease of four years on land that is part of a homestead, given by the husband but not signed by the wife, can not be enforced.</p>

<p>1. —Railway Company—Assault on Passenger—Liability.</p> <p>A common carrier undertakes absolutely to protect passengers against the misconduct of its own servants, and hence is liable for an assault wrongfully committed by one of them on a passenger.</p> <p>2. —Same—Assault Not Justified.</p> <p>The fact that a passenger had been drinking and was noisy, while it might have warranted his expulsion from the train, afforded no justification for an assault on him by the conductor.</p> <p>3. —Same—Negligence—Charge.</p> <p>Since an unwarranted assault by the train conductor upon a passenger was negligence per se, the submission of the question as to whether it constituted negligence was an error in the carrier’s favor of which it can not complain.</p> <p>4. —Same—Charge—Harmless Error.</p> <p>An erroneous charge that if the conductor tried to get plaintiff to keep quiet, and plaintiff, by any wrongful conduct on his part, brought on the fight between himself and the conductor, he could not recover, was not one of which the defendant carrier could complain.</p>

<p>1. —Pledge of Notes—Action by Pledgor.</p> <p>Where commercial paper is pledged under an agreement that, all actions on past due notes shall be brought and prosecuted by the pledgor, the defendant in such an action can not complain that it is so brought, since the judgment will fully protect him, especially where the pledgee becomes a party to the suit by intervention.</p> <p>2. —Same—Possession and Title.</p> <p>Since the beneficial interest in the note was in the pledgor, the defendant in such action was not entitled to have the court instruct a verdict in her favor because the legal title of the note was in the pledgee, and it also had possession of the note at the time the suit was brought.</p> <p>3. —Same—Paroi Evidence—Written Contract.</p> <p>Defendant being a stranger to the written contract of pledge, Was not entitled to urge that a modification thereof which the parties had made could not be shown by paroi evidence.</p> <p>4. —Assignment of Error.</p> <p>An assignment that the court erred in instructing a verdict for plaintiff “because the evidence supports the several' defenses plead by defendant,” is too general.</p> <p>5. —Limitations—Note—Absence from State.</p> <p>Where a note fell due February 1, 1891, and the maker was then temporarily absent from the State,' remaining away until the fall of 1893, a suit brought on the note January 27, 1896, was not barred by the four years statute of limitations, since the time he was so absent is excluded.</p> <p>6. —Vendor’s Lien—Judgment—Alternative Relief.</p> <p>Where plaintiff prayed for foreclosure of a vendor’s lien and in the alternative to recover the land itself, and the undisputed evidence showed that he was entitled to" such a recovery, defendant could not complain of a judgment foreclosing the lien, no personal judgment except for costs being rendered against defendant.</p>

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

<p>1. —Cities—Ratification—Acknowledgment of Tax Deeds—Fees of Notary.</p> <p>Where a notary public took the acknowledgment of the city collector of taxes to quite a number of tax deeds executed to the city and presented his bill to the city council at the statutory rate, and the council offered to pay at the rate of 20 cents each, such acceptance of the notary’s work without objection except as to the amount of price was a ratification of the collector’s act in employing him, and he was entitled to recover for the work at the rate fixed by statute.</p> <p>2. —Same—Authority of Tax Collector.</p> <p>Where a city charter provided that the collector of taxes, where any real estate has been sold for taxes, should execute a dyed to the purchaser of the property sold, the collector had authority to employ a notary to take the acknowledgment to such deeds to the city, and the city was liable for the notary fees.</p>

<p>Appeal from the County Court of Johnson. Tried below before- Hon. W. D. McKay.</p>

<p>1.—Telegraph Company—Delayed Message—Damages Too Remote.</p> <p>Plaintiff’s wife had been notified that her brother was dangerously ill, and as there was a failure to deliver a second telegram announcing his death, and that it was from smallpox, she went with her young baby to his home, and learning there that he had died of smallpox, was compelled to wait out in the cold and rain until she could get a carriage back to the depot, whereby she contracted malaria and was sick for a long time and incurred medical and drug bills, etc. Held, that the damage resulting from her having to wait outside for a carriage and from the sickness consequent thereupon were too remote.</p> <p>2. —Same—Claim Within Ninety Days.</p> <p>Where the contract for the transmission of a telegram provided the company would not he liable for damages or statutory penalties in any case where the claim was not presented within ninety days, and plaintiff filed a claim for only actual expenses occasioned and paid out, he could not, upon a claim by suit brought after the ninety days, recover for other subjects of damage, such as mental anxiety, not indicated in the claim filed.</p> <p>3. —Same—Mental Anxiety.</p> <p>A recovery for mental anguish suffered by the wife on account of the exposure to smallpox was not warranted by evidence consisting of her testimony that, when told of her brother’s death from smallpox, it was a great shock to her at the time, especially on account of the baby, and that if she had been alone she would not have felt the same effect,—the telegraph company not being liable for her alarm because of the baby’s exposure, since it had no ground to anticipate that she would have a child with her.</p>

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

<p>1. —Negligence—Pleading and Proof—Defective Car.</p> <p>Under an allegation by plaintiff in an action fbr personal injury that defendant had negligently permitted the handhold on the side of a car to become defectively and insecurely fastened, evidence was admissible to show that the wood in which the end of the handhold, which pulled out, was inbedded, was not sound.</p> <p>2. —Same—Evidence.</p> <p>That a witness was not present at the accident and did not disclose the source of his information as to the condition of the car, did not render his testimony as to such condition inadmissible as being hearsay.</p> <p>3. —Same—Inspection of Car—Competency—Question for Jury.</p> <p>Although defendants car inspector testified that he had been inspecting cars for many years and that no other accident had ever occurred from a defect in a car inspected by him, and this was uncontradicted, yet as the handhold of the car in question did pull off while being ordinarily used a few hours after his inspection, the question of his competency was properly submitted to the jury.</p> <p>4.—Personal Injury—Measure of Damages.</p> <p>In an action for negligent personal injury the court properly charged that the jury might allow plaintiff such sum as would compensate him, taking into consideration mental and physical pain suffered, consequent upon his injuries, and his diminished capacity to labor and earn money in the future, and the charge was not objectionable as allowing double damages.</p>

<p>1. —Nonsuit—Dismissal—Conterclaim—Affirmative Relief.</p> <p>The statutory articles to the effect that a nonsuit by the plaintiff shall not prejudice the right of the defendant to be heard on his- counterclaim seeking affirmative relief will not prevent a dismissal of the action upon a nonsuit taken by the plaintiff where the matters pleaded by the defendant are purely defensive and such as would not support an affirmative action. Rev. Stats., arts. 1260, 1301.</p> <p>2. —Same—Fact Case.</p> <p>Where defendant’s answer in an action for the recovery of land alleges that she purchased it in good faith and for value, without any knowledge that her grantor had procured his deed from plaintiff by fraud, and praying that she be held to have title free from all claims and clouds thereon, this claimed only such relief as could be obtained under the general issue, and would not preclude a dismissal of the suit on nonsuit taken by the plaintiff.</p>

<p>1. —Paroi Evidence—Mortgage—Consideration.</p> <p>In an action by a surety to foreclose a mortgage paroi evidence was admissible to correct what was clearly a mistake therein in stating the amount of the note secured, and to show that the true consideration of the mortgage was plaintiff’s suretyship on the note, and for this latter purpose no allegation of fraud, mistake, or accident was necessary.</p> <p>2. —Same—Payment—Check.</p> <p>Where the payee of the note testified that it was paid, and there was no controversy as to the payment, objection to plaintiff’s testimony that he paid it in part by a check, on the ground that the check was the best evidence, was not well taken.</p> <p>3. —Usury—Surety Paying—Recovery.</p> <p>Where a surety pays a note bearing usurious interest with knowledge of the usury, he can not recover from the principal the usurious interest so paid, and that he gained knowledge of the usury after he signed the note does not affect the matter.</p>

<p>Appeal from the County Court of Lamar. Tried below before Hon. Wm. Hodges.</p>

<p>1. —Evidence—Limitations—Minority.</p> <p>Where a mother, though asked in a deposition, failed to state the age of her children, this could not, in the absence of any evidence impeaching her, properly be taken as in conflict with her subsequent deposition that one son was born on a particular date such as would permit him to reply minority to a plea of limitations; and the mother’s evidence will therefore support a finding in the son’s favor on that issue.</p> <p>2. —Motion for Hew Trial—Diligence—Cumulative Evidence.</p> <p>In trespass to try title the defendant pleaded limitations and plaintiff pleaded her coverture in reply and testified by deposition that she was married in 1879, and the verdict was in her favor. A witness in the case testified that plaintiff was married in 1880, a date at which her action would have been barred. Defendant moved for a new trial, and attached to his motion an ex parte deposition of plaintiff subsequently taken in which she testified that she was married in 1879. Held, that although such evidence was cumulative and due diligence by defendant was not shown, yet the motion should have prevailed as against a judgment in plaintiff’s favor obtained by virtue of her own false testimony.</p> <p>.3.—Same—Evidence—Certified Copy from Another State.</p> <p>To his motion for a new trial defendant attached also a copy of plaintiff’s marriage license and the return thereon, certified to by the clerk of the court in another State. Held, that while the court might, in determining the motion for a new trial, take into consideration the copy of the marriage license so certified, yet it would not, under the statute, be admissible in evidence where certified only as is required of instruments recorded in this State, the statute being different as to proving matters recorded elsewhere.</p> <p>4. —Deed—Construction.</p> <p>Where a deed did not purport to be made for anyone except the grantor, the court properly declined to charge that the jury might take into consideration the other evidence as to facts and circumstances and the length of time which had elapsed since the execution of the deed in determining whether the grantor had authority to act for others.</p> <p>5. —Evidence—Ex Parte Affidavit.</p> <p>An ex parte affidavit of a third person, with which a party to a suit is in no way connected, is not admissible in evidence against such party.</p> <p>6. —Practice on Appeal—Harmless Error.</p> <p>Error in refusing special charges affecting the interests of a plaintiff who recovered nothing is harmless as to the defendant.</p>

<p>1. —Trespass to Try Title—Common Source.</p> <p>In trespass to try title the parties will be held to claim under a common-source where it is shown that the plaintiffs claim in part as heirs of T. and in part under other heirs of his, and that defendant, while in possession, received^, deed from the grantee of T.’s executor, and also one from T.’s remaining heir, under which conveyances he had maintained suit to quiet title against outside claimants, and no other deraigniqent of defendant’s title is shown.</p> <p>2. —Same—Operation of Rule.</p> <p>Where plaintiffs proved common source and a superior title in the land under such sources, it devolved upon defendant to meet the prima facie ease thus made against them by proving that they held by virtue of a title superior to the common source; and evidence merely of title in some one anterior to the conveyance of the common grantor does not make such proof.</p> <p>3. —Same—Burden Not Shifted.</p> <p>The fact that defendant, while in possession, took his conveyance from the common source merely for the purpose of “buying his peace,” does not shift the burden of proof upon the other party.</p> <p>4. —Same—Possession.</p> <p>Nor is mere possession by defendant at the time of receiving conveyances from the common source alone sufficient to show a title superior to the common source and defeat plaintiff’s „ action, where the latter has shown common source and superior title deraigned thereunder.</p> <p>5. —Same—Costs and Expenses—Lien.</p> <p>Where in trespass to try title the defendant has pleaded and claimed the exclusive benefit of a judgment against outside parties quieting title in him, he is not entitled to ask that, in case the plaintiff recover, the expense of such former litigation be decreed to be a lien on the land in his favor.</p> <p>6. —Practice on Appeal—Cause Remanded, When.</p> <p>' Where it appears that appellee has some evidence showing a right to recover, and which should be considered by a jury, the Court of Civil Appeals, on reversing a judgment in his favor, will remand the case, instead of rendering judgment for the appellant.</p>

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

<p>1. —Homestead—Remainderman.</p> <p>, Whether a remainderman can acquire a homestead right in the land during the life estate, his possession and occupancy thereof being permissive and he" managing the property for ,the holder of the life estate, is doubted, but not decided.</p> <p>2. —Same—Deed Without Wife’s Joinder—Abandonment.</p> <p>Where the homestead is the separate property of the husband, his deed thereof in which the wife does not join will operate as a conveyance where he afterwards leaves the place and acquires another homestead.</p> <p>3. —Same—Limitations.</p> <p>Where the surviving wife exercised her right of possession of the homestead, and the son of the deceased husband resided thereon with his family by her permission, managing the place for her, limitations did not run in his favor.</p>

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

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

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

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

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

<p>1. —Stock Law Election—Qualification of Voter—Freeholder.</p> <p>The conveyance to a person of an undivided interest in one acre of land, made for the purpose of enabling him to vote, does not render him eligible to vote as a “freeholder” at an election to determine" whether stock may run at large.</p> <p>2. —Same—Designating Boundaries of District.</p> <p>The designation of a district for an election to determine whether stock shall be allowed to run at large is not rendered invalid by the fact that an intermediate and easily identified corner is called for as being on a creek when it is half a mile distant therefrom, but in line with the creek.</p>

<p>Error from Hill. Tried below before Hon. W. F. Ramsey, Special Judge.</p>

<p>1. —Evidence—Harmless Error.</p> <p>The exclusion of evidence which is in part hearsay and the other part of no material relevancy is harmless error.</p> <p>2. —Same—Trespass to Try Title—Common Source.</p> <p>It was error in trespass to try title to admit a deed offered by plaintiff to show common source of title where he failed to connect defendant’s title with the deed, but the error was harmless where plaintiff recovered by virtue of limitations and possession.</p> <p>3;—Same—Claim of Title—Limitations.</p> <p>In an action of trespass to try title wherein plaintiff claimed title by virtue of possession and limitations, an unrecorded deed of the land to plaintiff’s ancestor was admissible as tending to show plaintiff’s claim to the land.</p> <p>4. —Same—Statement by Decedent.</p> <p>Testimony by plaintiff that he had heard his parents claim the land iñ controversy prior to the claim in this suit was not objectionable as being irrelevant, immaterial, and hearsay, and objection that it was a statement by a deceased person and prohibited by article 2302, Revised Statutes, can not be considered where it was not made in the trial court.</p> <p>5. —Trespass to Try Title—Title by Possession—Charge.</p> <p>In trespass to try title where no title was shown in defendant, nor right of possession, and plaintiff showed prior possession by himself and those under whom he claimed, there was a presumption of title in plaintiff, and the court correctly refused to charge that since plaintiff had failed to show a common source of title, or that the State had ever parted with title to the land, the verdict should be for defendant.</p>

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

<p>1. —Pleading—Defects in Machinery—Particularity.</p> <p>In an action by parents to recover for negligence causing the death of their son while employed in operating a lathe machine, plaintiff’s pleading containing general allegations of defects in the machinery, with an averment that the specific defects were unknown to plaintiffs, was sufficiently specific.</p> <p>2. —Master and Servant—Defective Appliances.</p> <p>Where the evidence showed that the- starting of the machinery, by which the injury was occasioned, could have been caused only by the act of some person or by defects in the machinery, and that no person did start it, this warranted a finding that the moving cause was some defect, although the particular defect was not shown.</p> <p>3. —Same—Duty of Inspection—Assumed Risk.</p> <p>Where the defect was of a kind .such as required an inspection, made for the purpose of ascertaining the condition of the machinery, to disclose its existence, the duty of inspection rested upon the master, and the servant, although an experienced operator, did not assume the risk. See evidence of casual inspection held not to relieve the'master of negligence.</p> <p>4.—Same—Assumed Risk—Evidence—Issue for Jury.</p> <p>Where a witness for plaintiffs testified that before the accident deceased told him the machinery was out of order and he had asked the inspector to have it fixed, and the inspector testified that no such complaint and request had been made to him, this did not require the court to instruct that the deceased had assumed the risk and the question was properly one for the jury.</p>

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

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

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

<p>1. —Land Certificate—Unrecommended Headright.</p> <p>A headright land certificate not recommended by the traveling board of land commissioners nor established as genuine and valid by decree of the district court, was void, and a survey under it conferred no rights.</p> <p>2. —Same—Evidence of Recommendation.</p> <p>Evidence held to show that a headright certificate was duly examined and recommended by the board, although the number and date as given in the board’s report did not correspond with its true number and date.</p> <p>3. —Same—Evidence—Defacement.</p> <p>A headright certificate was not inadmissible in evidence because some of the words in it had become obliterated, where it was offered in connection with the testimony of witnesses who had examined it before it was defaced, nor could the opposite party object to its admission because of such defacement where he afterwards offered it in evidence himself.</p> <p>4. —Public Domain—Pre-emption Rights—Repeal.</p> <p>A filing and settlement on public land under the pre-emption law of February 1, 1861, with occupancy of the land for more than five years thereafter, conferred no vested right in the land where the proof of occupancy was not filed in the General Land Office until long after the pre-emption law had been repealed by the Act of 1889, and the 50 cents per acre due the State was never paid.</p> <p>5. —Evidence—Deposition—Exhibits Attached.</p> <p>A witness testifying by deposition was asked to attach certain instruments as exhibits to his answers, and he replied that they had been already attached to his answers to a deposition in another case, “and are hereto again referred to, affirmed, and made part of my foregoing answer in this case.” Held, that the exhibits were properly received in evidence, although the first deposition was taken in a suit between other parties pending in the same court.</p> <p>6. —Same—Conclusion.</p> <p>Where a witness was asked whether there were any files missing from the General Land Office in regard to a certain certificate, and he answered that “it appeared” that the original file with its contents was abstracted from the office many years ago, objection that the witness was not stating a fact, but the appearance of a fact, was not tenable where his other answers stated all the facts, so far as the record of the Land Office showed, about the loss of the certificate and its subsequent return.</p> <p>7. —Same—Expert Evidence—Handwriting—Letters.</p> <p>A witness who qualified as an expert in handwriting and showed himself familiar with the records of the Land Office, and especially with a certain land certificate, were properly permitted to testify that a transfer of the certificate to an assignee, written on its back, was in the same handwriting as letters received at the Land Office purporting to come from such assignee.</p> <p>8. —Same.</p> <p>It was permissible for a witness to testify that the report of the traveling board of land commissioners on file in the General Land Office showed that land certificates had been issued to certain persons, and that the numbers of the certificates as stated in the report were not their real numbers, where the report was read in evidence, as this did not contradict the report, but was explanatory of it.</p> <p>9. —Land Certificate—Recommendation.</p> <p>Where the evidence showed that the headright certificate in controversy had been duly recommended by the traveling board, but that its number was wrongly stated in the board’s report, the court correctly refused to charge upon the theory that the certificate had not been recommended.</p>

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

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

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

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

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

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

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

<p>Execution. Sale—Sheriff’s Deed—Description of Land.</p> <p>Where a sheriff’s deed conveyed all the right, title, and interest of the defendant in execution in and to 2300 acres of land, forming a part of the Benjamin Page survey, and extrinsic evidence showed that the defendant owned at the date of the levy and sale an undivided one-half interest in not less than 2849 acres of the survey, after deducting what had been previously sold to others, such description was insufficient to identify the land attempted to be conveyed. Had the deed purported to convey all the interest of defendant in the Page survey, estimated at 2300 acres, or the evidence shown that he owned a segregated tract of 2300 acres of the survey, the description might have sufficed.</p>

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

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

<p>1. —Telegraph Company—Negligence—Connecting Line.</p> <p>Where, by the contract of transmission, the telegraph company was to transmit the message by telegraph to a point not on its own line, and its liability was limited to its own line, and the message was delivered by it to the connecting line, its failure to transmit it to the addressee at destination by mail or telephone, on ascertaining that the connecting line was not working to that point, did not render it liable as for negligence.</p> <p>2. —Same—Forwarding by Mail—Charge.</p> <p>A message was addressed to a point on a connecting line, and defendant company delivered it to such connecting line, and discovered that the line was not in order. Plaintiff sought to recover on the grounds of failure to send to destination by mail or telephone, and of failure to notify defendant. The court overruled defendant’s exception to the first ground. Held, that it was error to admit evidence in support of such first ground, and to allow argument in behalf of a recovery thereon, and the error was not cured by a charge limiting recovery to the second ground, and by addendum instructing the jury that they could not hold defendant liable for failure to transmit by mail or telephone.</p> <p>3. —Same—Duty of Notice to Sender.</p> <p>Where a telegraph company discovers, after accepting a message for transmission, that by reason of the disturbed conditions of its own line it can not perform its contract, the law imposes the duty to notify the sender, but this duty is not absolute, and arises only when ordinary prudence in the protection of the interests of the party concerned requires it.</p> <p>4. —Same.</p> <p>A telegraph company accepting a message, the importance of which it knows, for delivery at a point on the line of a connecting carrier, undertakes as the agent of the sender to deliver it to the connecting line, and where it ascertains, on delivering the message to such connecting line, that the latter can not promptly transmit it, it is its duty to notify the sender, and for its failure to do so it will be liable as for negligence.</p>

<p>1. —Wife’s Separate Property—Deed by Husband.</p> <p>Where a husband buys land for his wife, and, by virtue of a power of attorney from the owner, conveys the land to the wife and delivers the deed to her, no community interest in the land is thereby vested in the husband, and his heirs can claim nothing under the conveyance.</p> <p>2. —Witness—Discrediting.</p> <p>Appellants are in no position to discredit the testimony of a witness for whose credibility they have vouched by introducing her as a witness at the trial below. .</p> <p>3. —Trespass to Try Title—Issues Rendered Immaterial.</p> <p>Where plaintiffs sue in trespass to try title as the heirs of H. and fail to show that any title was ever vested in H., error in the rulings of the court upon an issue of forgery in one of the links of the title is immaterial.</p> <p>4. —Appeal—Special Issues—Findings Below—Jury Trial—Waiver.</p> <p>Under the statutory provision that, upon appeal, an issue not requested or submitted below shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such finding, the appellate court may, in support of a judgment rendered upon special issues, and where the uncontradicted evidence warrants it, ascribe to the trial court a finding upon an issue not submitted to the jury, and appellee’s failure to request the submission of such issue was a waiver of his constitutional right of a trial by jury as to that issue. Rev. Stats., ar.t. 1331.</p>

<p>Appeal from Jones. Tried below before Hon. N. E. Lindsey.</p>

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

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

<p>Appeal from the County Court of Eastland. Tried below before Hon. J. E. Stubblefield.</p>

<p>1. —Marriage—Presumption—Cohabitation.</p> <p>Where there was a second marriage invalid because of the fact of a former marriage, without divorce, and the former husband then still living, and the woman’s second marriage relation continued for several years after the death of the first husband, the second husband treating her at all times as his wife, it will be presumed, in the absence of evidence to the contrary, that there was a good statutory or common law marriage after the death of the first husband such as gave her homestead rights in the lands of the second husband.</p> <p>2. —Same—Common Law Marriage.</p> <p>The doctrine of a common law marriage by. cohabitation is recognized in this State. Following Ingersol v. McWillie, 9 Texas Civil Appeals, 543.</p>

<p>1. —Building Contract—Alterations—Condition Precedent.</p> <p>Where by the terms of a building contract the order of the architect for an alteration in the original plans and a reference to arbitrators to fix the value of extra cost occasioned thereby was required only in the event of a failure of the contractor and architect to agree upon the value, an agreement as to the valuation of extras, or an arbitration as to their value, is not a condition precedent to a recovery where there is no controversy as to the reasonableness ■of such extra cost.</p> <p>2. —Same—Issue Raised by Evidence.</p> <p>Evidence that the architect was present when an alteration was made and said that stone would be better than iron for certain work, and told the contractor to put in stone and he would allow the extra cost, authorized the submission of the issue whether the architect, as authorized by the contract, ordered the change.</p> <p>3. —Same—Surety—Contract Abandoned.</p> <p>Where a contractor abandoned work on a building and it was completed by the owner at a cost which did not exceed the contract price, a surety on the contractor’s bond was entitled to have returned to him collateral which he had deposited to secure whatever damage the owner might suffer by reason of default by the contractor.</p> <p>4. —Same—W aiver—Pleading.</p> <p>Waiver of a provision of the contract requiring a written order of the architect for alterations must be pleaded in order to be available in an action to recover the extra costs of such alterations.</p> <p>5. —Same—Architect’s Estimates Conclusive.</p> <p>Where a building contract provided that payments should be made as the work progressed on certificates of the architect, not to exceed 90 per cent of the value at the time, the estimates of the architect were conclusive unless impeached for fraud.</p> <p>6. —Same—Claim for Extras—Evidence.</p> <p>While a failure of the contractor to make claim at the time for the extra cost of changes would be evidence that he made them of his own volition, and without intent to charge for them, it would not be conclusive against him.</p>

<p>1. —Trespass to Try Title—Leasehold Estate—Pleading.</p> <p>An action of trespass to try title may be brought for the recovery of mere possession of land, and the plaintiff therein, under a general allegation of a fee simple title, may prove a leasehold interest, although the statute requires that in trespass to try title the petition shall state the character of the title claimed. Rev. Stats., art. 5250.</p> <p>2. —Public School Lands—Lease—Railroad Reservation.</p> <p>The acts creating the Memphis & El Paso Railway reservation did not segregate the lands therein from the public domain, but merely withdrew them for the time from location by others, and such portions thereof as were not located and appropriated under and by virtue of those acts became, by the Constitution of 1876, a part of the public free school' fund, and were subject to lease by the Land Commissioner.</p> <p>3. —Same—Lease—Recording Abstract—Evidence.</p> <p>The record in the county where the lands lay, and in compliance with article 4218v, Revised Statutes, of an abstract of a lease of the lands executed by the Commissioner, is sufficient to admit in evidence a copy of the lease over the objection that the original instrument had not been recorded in the county where the lands lay.</p> <p>4. —Trespass to Try Title—Abstract of Title—Evidence.</p> <p>Where the abstract of title filed by plaintiff with his pleadings did not contain, as required by the statute, copies of certain unrecorded instruments relied on by him, defendant’s remedy was by motion before trial to have the defect cured, and not by objection on that ground to the admission in evidence of copies of such instruments. Rev. Stats., arts. 5261-5263.</p> <p>5. —Same—Mistake in Name.</p> <p>In an action of trespass to try title brought by a lessee of school lands paroi evidence was admissible on plaintiff’s behalf to show that the lease, though issued in the name of A. Z. Reedy, was in fact issued and delivered to A. Z. Reeder, as this was a mere matter of identity, and the evidence showed that no such person as A. Z. Reedy was known.</p> <p>6. —School Lands—Forfeiture of Lease.</p> <p>The mere failure of a lessee of State school lands to pay or tender within the prescribed time the exact amount of the annually accruing rents that may be due will not of itself abrogate the lease, nor will such effect be given to the act of the Commissioner in awarding the land to another applicant. The statute requires the lease to be canceled by a written instrument under the hand and seal of the Commissioner and to be filed with the papers relating to the lease. ,Rev. Stats., art. 4218v.</p> <p>7. —Same—Assignment of Lease—Assent.</p> <p>While there is no express authority for the requisite lessor’s consent to an assignment of a lease of State school lands by the lessee, yet a power in the Commissioner to consent to such an assignment may be implied from his power to make and cancel leases and to re-lease the lands, and hence where a lessee assigned his lease to another and the Commissioner recognized it by accepting rentals from the assignee, the assignment was valid. Rev. Stats., arts. 3250, 4218t.</p> <p>8. —Same—Evidence—Archive—Certified Copy.</p> <p>Such an assignment of a lease of school lands, filed in the General Land Office, became an archive thereof, and could be proved by certified copy of it under the hand and seal of the Commissioner. Rev. Stats., 4218u, 2308.</p>

<p>1. —Usury—Loan Association—Contract.</p> <p>Evidence held to require the submission of the issue whether the stock subscription and payments of fines and on stock under a contract with a loan company were mere devices to avoid the usury laws.</p> <p>2. —Same—Cancellation.</p> <p>The rule that cancellation will be granted only upon payment of the debt, with interest at the highest rate allowed by law, is held not applicable to a case of this character.</p>

<p>Evidence—Expert Testimony—Overflow.</p> <p>In an action for damages caused by the overflow of a creek across which defendant had built a dam some distance below plaintiff’s land, it was error to exclude the testimony of a civil engineer of long experience in constructing such dams and observing their effects and who had made a topographical survey of the premises, to the effect that a dam of the height and at the place of the one in question could not cause an overflow of plaintiff’s land or have any effect in causing it.</p>

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

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

<p>1. —Building Contract—Mistake in Bid—Forfeit.</p> <p>Defendant having advertised for bids to erect a building according to plans and specifications furnished, accompanied with deposit of a certified cheek as a forfeit to secure the making of a bond for compliance with a bid if accepted, a bidder who, by mistake in addition of the items of his estimate, made his bid for $10,000 less than the sum of those items as he had intended, for which mistake the defendant was in no way responsible, forfeited such deposit by his refusal, on discovery of his mistake, to give bond in accordance with his undertaking, and could not recover back the amount of the check which defendant, on such refusal, had collected.</p> <p>2. —Same—Bond for Compliance With Bid.</p> <p>A contractor whose bid for constructing a building had been accepted, being required, by his acceptance of the proposals as advertised, to furnish bond within ten days for performance of the conditions of his contract, did not comply therewith by the tender of a bond imposing upon the other party the performance of conditions for the protection of the surety which would not otherwise be required of him, such as compelling him to give immediate notice to the surety of any default by the principal, or, if the parties could contract to change the period of limitation, by requiring suit on the bond to be brought within six months.</p>

<p>1. —Innocent Purchaser—Nonnegotiable Instrument.</p> <p>Plaintiff can not be protected as an innocent purchaser of notes sued on against the plea of defendant to rescind the sale on which they were given for misrepresentations, where the record fails to show that the notes were made payable to order or bearer.</p> <p>2. —Sale—Rescission—Misrepresentation—Written Contract.</p> <p>The vendee may- have rescission of a contract of sale induced by false rep-representations by the vendor of the capacity of the machinery sold to furnish power, though the written warranty was different from the representations and was not broken; and the representations may be proved by paroi.</p>

<p>Charge—Assuming Position to Be Dangerous.</p> <p>Plaintiff, employe of a milling company, while engaged in sacking grain inside a car on the track, was injured by the falling of the inner door of the car, caused by the employes of defendant railway company switching another car against it. Held, that an instruction which assumed that plaintiff’s position was a perilous one, and bases the care required of defendant on that fact, if it was known, was upon the weight of evidence and erroneous.</p>

<p>1. —Distraint—Judgment—Trial of Right of Property.</p> <p>On the trial of right of property between a distraining landlord and a claimant who bought it from the tenant, the judgment recovered by the landlord against the tenant is conclusive as to the amount of the latter’s indebtedness for rents and advances, unless attacked for fraud or collusion.</p> <p>2. —Landlord’s Lien—Waiver.</p> <p>A landlord did not waive his lien on cotton raised on the rented premises by permitting the tenant to sell other cotton so raised to other purchasers, where the purchase, by the claimant, of the cotton against which the lien was sought to be enforced was not influenced by the fact that such other sales had been permitted.</p>

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

<p>Appeal from the County Court of Brown. Tried below before Hon. B. P. Connor.</p>

<p>Claimant's Bond—Extent of Liability—Parol Evidence.</p> <p>The liability of sureties upon a claimant’s bond for the trial of the right to property seized under execution is measured by the terms of the bond, and, in the absence of an allegation of fraud or mistake, can not be varied by evidence that the bond was given under a paroi agreement between counsel for plaintiif in execution and the claimant that the property should be valued at a certain sum, whereby the sureties understood their liability to be limited to that amount.</p>

<p>1. —Mechanic’s Lien—Prior Mortgage.</p> <p>A mechanic’s lien for repairs to the roof of a building, incapable of separation from it and made under contract with the owner, was subordinate to a mortgage on the property previously executed; though the repairs were necessary for the protection of the building and enhanced its value.</p> <p>2. —Foreclosure—Junior Lien—Redemption.</p> <p>The remedy of the holder of a junior lien, after sale under foreclosure of the prior incumbrance to which he was not made a party, is to redeem from such sale, not to foreclose.</p> <p>3. —Same—Practice on Appeal.</p> <p>Where the holder of a mechanic’s lien subordinate to a prior mortgage which has been foreclosed without making him. a party has erroneously obtained judgment of foreclosure to the extent that his improvement enhanced the value, instead of offering to redeem from the first sale, the case will not be remanded, on reversal, to permit him to redeem, where it appears that such remedy would be of no value to him.</p>

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

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

<p>1.—Negligence—Electricity—Uninsulated Wire.</p> <p>Where a lineman engaged at work on an awning in front of a store, assisting in erecting a pole, was killed by coming into contact with an uninsulated wire belonging to defendant which was strung over the awning, it was admissible to prove in an action for causing his death that the awning had frequently been used by persons going on the roof to repair and paint the awning, to paint the walls of the building, and to put in telephone connections, as this raised the question of negligence on defendant’s part.</p>

<p>1. —Railway Company—Assisting Passenger Aboard.</p> <p>Where plaintiff entered a train to assist a passenger aboard, the railway company, in the absence of notice of his intention to then get off, was under no obligation to hold the train long enough for him to do so, and was not liable for injury caused by his jumping from the moving train after it had stopped at the station the usual and sufficient length of time, the train employes having no reason to suppose he had entered the train for a purpose other than to take passage thereon.</p> <p>2. —Same—Contributory Negligence Verdict Instructed.</p> <p>Where plaintiff, after assisting parties on board a train, walked rapidly out and leaped off in the dark front the moving train at a point where he knew there were side tracks with cars usually standing on them, there was such negligence as warranted the court in instructing a verdict for the defendant in an action for- the injury so received.</p>

<p>1. —Negligence—Personal Injury—Pleading—Servant.</p> <p>Where the action was for injury to a servant caused by his being struck by a piece of timber sawed off and allowed to fall by workmen above him, an allegation in the petition that the master’s agent was present and knew that, workmen above plaintiff were sawing off timbers and allowing them to fall, can not be construed as an allegation that plaintiff continued his work with knowledge of such action on the part of the workmen above him, especially in view of other allegations of a contrary effect.</p> <p>2. —Same—Contributory Negligence—Master and Servant.</p> <p>Plaintiff was not guilty of contributory negligence as matter of law because he knew the piece of timber was being sawed off above him, nor did he assume the risk.</p> <p>3. —Master and Servant—Vice-Principal—Concurring Negligence—Fellow-Servant.</p> <p>Where the negligence of a foreman in charge of the work concurring with the negligence of a fellow-servant causes the injury to a servant, the master is liable, and the fact that the servant injured knew that the fellow-servant was negligent does not in such case preclude a recovery.</p> <p>4. —Negligence—Charge—Assumed Risk.</p> <p>Failure of the charge to define “negligence” and to submit the issues of contributory negligence and assumed risk was not error where there was no request for such charges.</p> <p>5. —Verdict—Clerical Error.</p> <p>A judgment will not be reversed because the verdict found for “plainiff,” instead of for “plaintiff.”</p>

<p>1. —Condemnation Proceedings—Appointment of Commissioners.</p> <p>Where, in proceedings to condemn land for a railroad right of way, and on a motion to set aside the appointment by the county judge of commissioners to appraise the value of the land, it appears that the parties had failed to, and could not, agree on commissioners, thus warranting such appointment under the statute, the motion was properly denied. Kev.-Stats., arts. 4447, 4448.</p> <p>2. —Same—Estimating Value—Charge.</p> <p>In such proceeding it was error for the court to refuse to charge that in estimating the value of the land taken the jury could consider the present condition of the locality as to business and demand for property, and also any increase or development thereof that could be expected in the immediate future.</p> <p>3. —Same—Evidence—Other Sales.</p> <p>Evidence was admissible to show the price at which the owner had recently sold a similar tract in the immediate vicinity, but not what he paid for the land ten years before, though there was evidence that its market value had remained unchanged.</p> <p>. 4.—Same—Market Value—Opinion.</p> <p>Where a witness shown to be familiar with the land and its surroundings and competent to testify as to the value of property in that locality was asked what in his opinion was the market value of land in the neighborhood per acre, an objection to the question as calling for the cash market value was improperly sustained.</p> <p>5.—Same—Evidence of Offers and Prices Asked.</p> <p>Evidence was not admissible to prove offers for adjacent and similar property, or the price at which the owners of such property had offered it for sale.</p>

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

<p>1. —Abstract of Judgment—Evidence—Certificate.</p> <p>The original certificate of the county clerk required by law to be given to the owner of a judgment at the time an abstract of it is recorded is not objectionable as secondary evidence when offered to prove the record of such abstract, nor inadmissible because it fails to give the page of the record.</p> <p>2. —Same—Deed in Fraud of Creditors.</p> <p>Where the deed of a judgment debtor under which defendant claims was not in good faith, it is immaterial that an abstract of a judgment against the grantor under which plaintiff claims through a sheriff’s sale was not recorded untü after such deed was made.</p> <p>3. —Evidence—Execution—Date—Immaterial Variance.</p> <p>Where plaintiff alleged the levy of the execution through sale under which he claimed as of July 11th, and the sheriff’s return showed it as of July 8th, the variance was immaterial.</p> <p>4. —Same—Notary's Certificate to Deposition.</p> <p>Where a motion was made to strike out a notary’s certificate to a deposition, certifying that the witness had refused to answer the questions, and evidence was heard as to the truth or falsity of the certificate, the action of the court in denying the motion and refusing to allow the witness to testify at the trial will not be revised in the absence from the record of the evidence so heard.</p> <p>5. —Judgment—Verdict Not Supporting.</p> <p>Where verdict was rendered against two defendants for the land and the damages claimed by plaintiff, a judgment thereon against both defendants for the land, but against only one of them for the damages, was unauthorized.</p>

<p>1. —Railway Company—Personal Injury—Double-Headers—Evidence.</p> <p>Where plaintiff, a telegraph operator, after delivering orders to an engineer whose train was on a siding, stepped backwards on the main track and was struck by an incoming train, evidence was admissible to show that the trains were double-headers, making more noise than other trains, to account for plaintiff’s action, and the charge properly restricted its consideration to that purpose, and not as showing negligence by defendant in the use of double-headers.</p> <p>2. —Negligence—Charge—Weight of Evidence—Assuming Fact.</p> <p>A charge which groups certain facts shown in the evidence and instructs that if found to exist they constitute negligence, is proper, and appellant can not compalin that it assumes one of the facts where all of its own evidence shows such fact.</p> <p>3. —Same—Evidence Warranting Charge.</p> <p>Where the engineer testified that he was running at six miles per hour; that he saw plaintiff step backwards on the track eight or ten feet ahead of his engine, and that he did not blow the whistle or give any signal, it was for the jury to determine whether the failure to give such signals was negligence.</p> <p>4. —Same—Estopped to Complain of Charge.</p> <p>While a charge was erroneous which instructed that in order to find for defendant the jury must find not only that plaintiff was guilty of contributory negligence, but in addition that defendant was then operating the engine in a reasonably safe and prudent manner, yet defendant could not complain of the error where it had invited it by requesting a similar charge.</p> <p>5. —Personal Injury—Pain Suffered—Charge.</p> <p>A charge in an action for personal injuries, that mental and physical pain suffered by plaintiff “must be,” instead of “may be,” considered, was not error.</p>

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

<p>1. —Fire Insurance—Ownership—Use of Firm Name.</p> <p>Where there is no misrepresentation as to the ownership, the mere fact that goods owned by one person are insured in a firm name which he uses and in which he carries on the business will not avoid the policy, and it does not affect the case that the other member of the firm is a clerk in the store.</p> <p>2. —Same—Appraisement—Continuance.</p> <p>Where the insurance company relied as a defense on failure to make an appraisement, which must have been required within sixty days of loss, and was notified in advance that plaintiff would plead waiver, but made no effort to obtain the testimony of the officer who had seen the demand, it was not entitled to a continuance.</p> <p>3. —Same—Appraisement—Waiver.</p> <p>A demand for an appraisal comes too late where made six months after the fire and five months after proofs of loss have been received and retained without objection, and the policy required proofs of loss within sixty days, to be accompanied by an award when appraisal had been required.</p> <p>4. —Same—Concurrent Insurance.</p> <p>Where concurrent insurance is permitted by the policy, it may be on a portion of the property only, and in such case it will not be treated as on the whole property in prorating the loss.</p> <p>5. —Same—Method of Computation.</p> <p>Where the loss exceeded the whole of the insurance, an insurer could not complain that the court deducted certain concurrent insurance from the total loss and made the sum remaining the basis of liability.</p> <p>6. —Evidence—Presumption—Receipt of Letter.</p> <p>Positive evidence that a letter was not received rebuts the presumption of its receipt arising from the fact that it was duly mailed.</p>

<p>1. —Mandamus—Specific Performance—Street Paving Contract.</p> <p>Where a city’s contract for grading and paving a street binds the contractors to repair defects, and it has taken a bond for faithful performance, it can not compel the contractor to repair by mandatory injunction, since it has an adequate. remedy at law and a decree of specific performance could not be enforced by the ordinary processes of the courts.</p> <p>2. —Same—Mandatory Injunction.</p> <p>The law applying to an ordinary writ of mandamus applies to the writ of mandatory injunction.</p>

<p>Judgment—Dormancy—Nunc pro Tunc Entry.</p> <p>Where a judgment of a justice court was rendered but no entry of it was made and no execution issued thereon for more than ten years, it wholly ceased to have any effect and could not be revived by an action of sire facias, and a nunc pro tune entry of it by order of the justice court more than ten years after its rendition being also of no effect, a mandamus to compel the issuance of execution on the judgment will be refused.</p>

<p>Appeal from Menard. Trial below before Hon. J. W. Timmins.</p>

<p>Error from Gillespie. Tried below before Hon. M. D. Slator.</p>

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

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

<p>Local Option Election—Mandamus.</p> <p>Where an election has been duly had within less than a year past prohibiting the sale of intoxicating liquors throughout an entire county, citizens of a given division of the county are not entitled to have an election held therein to determine-whether liquors may be sold in such division, and a mandamus will not be awarded to compel the commissioners court to order such election.</p>

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

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

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

<p>1. —Appeal—Reversal—Preponderance of Evidence.</p> <p>The appellate court will not, in a case where the evidence is conflicting, reverse the judgment because the verdict is contrary to the preponderance of the evidence. See evidence not warranting a holding on appeal that the verdict was against the manifest truth of the ease.</p> <p>2. —Evidence—Mortuary Tables.</p> <p>Where it is shown in an action for personal injuries that plaintiff has been in part permanently disabled in his earning capacity, mortuary tables of life expectancy are admissible in evidence</p> <p>3. —Contributory Negligence—Charge. •</p> <p>In an action for personal injuries received by a servant, a requested charge that if plaintiff’s act in attempting to get on the engine, the steps of which gave way, was negligence under all the circumstances of the case, he could not recover, was properly refused for want of the qualification that the negligence must have contributed to the injury.</p> <p>4. —Charge of Court—Request—Omission.</p> <p>Where the court has failed to charge on an issue, the request for a special charge which is incorrect will suffice to call attention to the omission and to require a proper charge on the issue; but where the main charge gives a correct general presentation of the issue, a party desiring a fuller charge thereon must request a correct one, and if, as requested, it be incorrect, the court is not bound to submit a further charge.</p>

<p>1. —Fellow-Servants—Express Messenger and Guard.</p> <p>An express messenger in charge of a car and a guard employed to go with the car to protect it from robbers are fellow-servants, and the fellow-servants’ statute does not apply to express companies so as to render them liable for injuries caused by the negligence of a fellow-servant.</p> <p>2. —Same—Assumed Risk.</p> <p>An express messenger in arranging the express matter in his car is acting within the ordinary scope of his duties as servant, and a fellow-servant can not recover for an injury resulting from the negligent manner in which the arranging is done, since the risk of such danger is assumed in accepting the employment.</p>

<p>1. —Contract—V ariance.</p> <p>Where plaintiff alleged a contract of employment “during his lifetime or so long as he might desire,” proof showing a contract for life was fatally variant.</p> <p>2. —Same—Term of Employment Indefinite.</p> <p>Where the term of service in a contract of employment is left to the discretion of either party, or the time left indefinite, either party may terminate the contract at will and without cause.</p> <p>3. —Same—Fixing Term.</p> <p>Under a contract for plaintiff’s employment “during his lifetime or so long as he might desire,” the employer could discharge him at will until he had fixed the term of service, and a pleading which failed to allege that plaintiff had fixed the term of service did not show a binding contract.</p>

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

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

<p>1. —Railway Company—Connecting Carriers—Through Contract.</p> <p>Where a carrier has agreed to transport freight to its destination over its own and a connecting line it is immaterial whether or not an agency or partnership exists between it and such connecting line, and it is responsible for safe carriage and for damage from neglect occurring on the connecting line as well as on its own.</p> <p>2. —Same—Evidence.</p> <p>In an action against a carrier .for damages to freight occurring on the line of a connecting carrier, evidence that it was customary for the defendant to contract to carry freight to any point on the connecting line was admissible in corroboration of other evidence that the contract in question, the terms of which were in dispute, had been so made.</p> <p>3. —Same—Interstate Commission—Tariff Rates.</p> <p>Until a tariff rate of the Interstate Railroad Commission is established and published as required by law, it is not binding on the public, and a contract for a different rate is valid and enforcible.</p> <p>4. —Same—Proof of Tariff Rate.</p> <p>Proof of the publication of a Commission tariff rate is insufficient where it fails to show how- it was published or what publication thereof was required by the Commission, and evidence that it was on file in a railroad office and acted on -by that company does not suffice to show that it has been legally established.</p> <p>5. —Same—Shipping Contract—Proof—Secondary Evidence.</p> <p>Where 'the defendant carrier was alleged to be in possession of the contracts of shipment, and after notification to produce them, defendant introduced secondary evidence of them, the court did not err in refusing to strike out such evidence upon defendant’s subsequently offering the written contracts in evidence.</p> <p>6. —Same—Damage to Cattle—Delay—Overcharge.</p> <p>Where the shipper had a contract for a lower rate than that demanded at destination, his refusal for a time to pay the exorbitant rate for which the cattle were held will not prevent him from recovering damages for injuries to them occasioned by ill treatment while they were unjustly detained.</p>

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

<p>1. —Probate Court—Presumption of Jurisdiction—Community Administration— Bond of Survivor.</p> <p>The probate court having authority to require a new bond of a survivor in community under certain conditions, it could not be shown in a collateral attack on its order approving a new bond, which in terms released the old bond here sued on, that the conditions did not exist justifying the making of such order, as the probate courts are courts of general jurisdiction within the scope prescribed in the Constitution, and entitled to the same presumptions in favor of their judgments, within that scope, as are other courts of general jurisdiction.</p> <p>2. —Same—New Bond Upheld.</p> <p>Where plaintiffs, as heirs of the wife, sued on the first bond given by the husband as survivor in community, alleging that a second bond, by virtue of which the obligors on the first bond claimed to be released, was executed without any order requiring it, and without any prior proceedings, and that no conditions existed requiring a new bond, but the petition also disclosed that the first bond was for a less amount than the appraised value of the community estate, the court was thereby shown to have had authority to act, since the statute provides that insufficiency in the amount of a bond is a ground for requiring a new one, and as the order is to be presumed regular, despite the failure of the record to show the prior proceedings, a demurrer to plaintiff’s petition was properly sustained.</p>

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

<p>1. —Deed—Description of Land—Trespass to Try Title.</p> <p>Where, in trespass to try title for 476 acres of the J. B. survey of 1476 acres, the 476 acres was described by metes and bonds and covered the eastern portion of the survey, of which portion the defendant was in possession, and there was no evidence that plaintiff claimed any other part of the survey, the court did not err in admitting in evidence for the defendant deeds from plaintiff which described the land conveyed as 476 acres, “being the eastern portion' of the J. B. third league survey,” since such description was sufficient identify the land in controversy.</p> <p>2. —Same—Certificate of Acknowledgment—Names Idem Sonans.</p> <p>Where the certificate of acknowledgment to a deed signed by Mary Arnall certifies that Mary “Arnold” acknowledged that she signed it, the discrepancy is immaterial, as the names are idem sonans.</p> <p>8.—Same—Married Woman’s Acknowledgment.</p> <p>A certificate of a married woman’s separate acknowledgment reciting that she declared that she had “willingly signed, sealed, and delivered the same of her own free will and accord, .without fear or compulsion on the part of her said husband, and that she wished not to retrait it,” instead of “willingly signed the same for the purposes and considerations therein expressed, and that" she did not wish to retract it,” as in the statutory form, shows a substantial compliance with the statute, and is sufficient. Rev. Stats., art. 4621.</p> <p>4.—Same—Deed by Husband as Agent—Evidence.</p> <p>Although a deed of the wife’s separate property executed by the husband as agent for her was ineffectual to pass the title, it was admissible in evidence in aid of the description of the land in a subsequent valid deed of confirmation by the wife which referred to such prior deed.</p>

<p>1. —Landlord and Tenant—Advances—Account Due, When.</p> <p>Where the only evidence that the account sued on was not due when the distress warrant was sued out was a statement by plaintiff, the landlord, that he knew that whatever was paid on the account had to come out of the crop, this did not warrant a charge upon the theory that the account was not to become due until the crop was gathered and marketed.</p> <p>2. —Same—Marketing Crop—Removal.</p> <p>Such a charge was also misleading as conveying the idea that the defendant tenant had the right to remove the crop from the rented premises and market the same,—a thing prohibited by the statute unless done with the consent of the landlord. Rev. Stats., art. 3236.</p> <p>3. —Same—Liability of Tenant’s Widow.</p> <p>Where, pending an action by the landlord for rents and advances, the tenant died and his widow was made a party, her liability was properly limited to the value of the crop or its proceeds received by her from the deceased or his estate.</p> <p>4. —Same—Replevy Bond Invalid.</p> <p>Where a replevy bond given by a tenant for crops distrained is more onerous on the sureties than the statute requires, it is not good as a statutory bond and the sureties are not liable thereon.</p>

<p>1. —Telegraph Company—Cipher Message—Notice of Importance.</p> <p>Where a telegraph company received for transmission, from one known to it to be dealing in and selling cotton, and whose messages were all “rush” messages, a message partly in cipher, but commencing, “All right; sell,” it was sufficiently charged with notice that the message related to a cotton transaction and was important.</p> <p>2. —Same—Stipulation Against Liability—Unavoidable Interruptions.</p> <p>Where a contract for the transmission of a message provided that the telegraph company would not be liable for delays arising from unavoidable interruptions in the working of its lines, this would apply to interruptions occurring after the receipt of the message, but would not protect from liability where such interruptions existed at the time the message was received, and the company’s agent had knowledge of their interruptions but the sender had none.</p> <p>3. —Same—Sender’s Knowledge of Line Interruptions.</p> <p>Where the sender knew at the time that certain lines were down, but did not know that the company did not have other lines by which the message could be sent, this did not exempt the company from liability for the delay.</p> <p>4. —Same—Notice to Sender.</p> <p>The mere fact that the telegraph company had posted notices in its office, at the place where persons come to send messages, stating that its wires were down and that all messages would be delayed, would not of itself charge the sender with notice, and there was no error in excluding proof of such fact where actual notice to the sender was not shown.</p>

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

<p>1. —Decedent’s Estates—Presentment of Claim to Administrator.</p> <p>The article of the statute requiring a claim against a decedent’s estate to be first presented to the administrator for allowance, and if rejected by him to be sued on within ninety days, does not apply to a claim which is a contingent n one, or for an uncertain amount, but only to claims the amount whereof is liquidated or susceptible of being reduced to a definite and specific sum. Bev. Stats., art. 2082,</p> <p>2. —Same—Adjustment of Liens.</p> <p>Where plaintiff’s claim was upon a note the payment of which had been guaranteed by the decedent, and which was further secured by different liens executed by the maker and by the deceased guarantor which would have to be enforced and the equities of the parties adjusted, it was not necessary for the claim to be presented to the administrator of the deceased guarantor’s estate, since the relief to which plaintiff was entitled was beyond the power of the county court to grant.</p> <p>3. —Same—Limitations of Ninety Days.</p> <p>The presentment of plaintiff’s claim to the administrator having been unnecessary, his action in rejecting it was a nullity, and the statute of nonclaim because of failure to bring suit within ninety days from the rejection has no application.</p>

<p>1. —Judgment—Pleading Requisite.</p> <p>In an action for divorce and to adjudicate property rights, a judgment against the defendant for an item of money loaned him by plaintiff can not be sustained where1 there is no allegation of a liability of that sort and nothing in the pleadings to support that feature of the judgment.</p> <p>2. —Divorce—Divesting Title to Real Estate.</p> <p>Under the terms of the statute the court has not the power, in an action for divorce, to divest either party of the title to community real estate, but it may decree to the complainant an undivided one-half interest in fee and the use of the entire property for life. Rev. Stats., art. 2980.</p>

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

<p>1. —Garnishment Against Two—Causes Not Joint—Docketing.</p> <p>Where an application for garnishment against two parties alleged that both owed the defendant debtor, and asked that writ of garnishment be issued to each of such parties, but without allegation of a joint indebtedness or joint possession of effects, the clerk of court was not authorized to docket the two separate causes as one suit.</p> <p>2. —Same—Judgment Final.</p> <p>The two causes in garnishment having been improperly docketed as one suit, and one of the parties having answered therein, a judgment against it was final, although there was no disposition as to the other party who did not answer and was not required to answer.</p>

<p>1. —Evidence—Transactions with Decedent.</p> <p>In an action by heirs on a note to their deceased ancestor testimony by the defendant makers that the deceased got from them a lot of wood in payment, and as to a settlement of accounts between one of the makers and deceased, and that some of the makers signed the note only as sureties, was inadmissible over objection that the witnesses were parties and the testimony inhibited by the statute because relating to and involving transactions with the deceased.</p> <p>2. —Same—Erroneous Admission—Reversal.</p> <p>When it is manifest from the record that the court was influenced by illegal testimony admitted over objection duly reserved, the judgment will be reversed, although there is some competent evidence to support it.</p>

<p>1.—Contract—Breach—Measure of Damages—Cotton Gin Profits.</p> <p>Where appellees contracted to sell and deliver within a reasonable time certain machinery necessary for the operation of a cotton gin, with notice of the purpose for which it was wanted and of the character and extent of the cotton ginning season, and it was not delivered until the most active part of the season was past, the measure of damages was the value the use of the gin would have been for the time it was so compelled to remain idle, and this could not be more certainly determined than by ascertaining the net profits the gin would have earned.</p> <p>2. —Same—Saw Mill.</p> <p>A different rule, however, is applied as to delay from like cause in getting a saw mill into operation where the evidence showed there was no special season for sawing lumber, and that logs on hand at the mill could be sawed as well after the delay, and the measure of damages here is the cost of having the defective saw mill machinery furnished by the seller repaired and was in good condition.</p> <p>3. —Res Adjudicata—Damages—Suit on Note.</p> <p>Although the defendant in an action brought on a note given for the price of certain machinery could have pleaded therein in set-off the damages he sustained by reason of plaintiff’s -failure to deliver the machinery in proper time, the fact that defendant did not do so will not estop him from claiming such damages in a separate suit, and a plea that the cause of action for the damages was adjudicated in the suit on the note is not well taken.</p>

<p>Appeal from Victoria. Tried below before Hon. J ames C. Wilson.</p>

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

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

<p>Appeal—Reversal on Facts—Judgment Rendered.</p> <p>Where the trial court should have instructed a verdict for appellants, the defendants below, because of the insufficiency of the evidence, the appellate court, upon reversal, will render judgment in their favor. Following Chase v. Bank, 1 Texas Civil Appeals, 595.</p>

<p>1. —Railway Company—Blowing Whistle at Street Crossing—Negligence—Statute Construed.</p> <p>The article of the statute requiring the whistle to be blown at least eighty rods from a street crossing does not apply where the engine starts from a point less than eighty rods distant from such crossing, and it was error to charge, under such circumstances, that a failure to blow the whistle in approaching the crossing was negligence per se. Rev. Stats., art. 4507.</p> <p>2. —Same—Contributory Negligence—Charge.</p> <p>Although the charge submits, in general terms, the issue of contributory negligence, yet where a phase of such negligence is specially pleaded and finds support in the evidence, a special charge thereon should be given if requested and correctly expressed.</p>

<p>1. —Office—Term—Resignation—Constitutional Law.</p> <p>Under the mandate of the Constitution that “all officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified,” the term of a county officer continues until his successor qualifies, although he has resigned unconditionally and his resignation has been accepted by the commissioners court. Const., art. 16, sec. 17. Following McGhee v. Dickey, 4 Texas Civil Appeals, 104.</p> <p>2. —School Land—Purchase by County Surveyor.</p> <p>Where a county surveyor had unconditionally resigned his office and .his resignation had been accepted by the commissioners court, but no one had been, appointed to fill the vacancy, he was still disqualified from purchasing State school land by virtue of the penal statute imposing a penalty upon county surveyors for making such a purchase. .Penal Code, art. 133.</p>

<p>1. —Railway Company—Fencing Track—Killing Live Stock.</p> <p>A railroad right of way and track is not fenced within the meaning of the statute regulating the liability for killing live stock where by agreement with the owner of the soil a public road is located and maintained on and along the right of way and between the fences of the railway company. Rev. Stats., art. 4528.</p> <p>2. —Same—Contributory Negligence.</p> <p>Failure of a railway company to fence its track does not render it liable for live stock killed thereon by the trains regardless of negligence on the part of the owner of the stock proximately contributing to the injury. See evidence requiring that the issue of such contributory negligence should have been submitted to the jury.</p>

<p>1. —Guardianship—Appeal to District Court—Jurisdiction.</p> <p>The statute gives to any person aggrieved the right of appeal to the district court from an order of the probate court approving the final account of a guardian, and it is therefore error for the district court to dismiss such an appeal for want of jurisdiction. Rev. Stats., arts. 2255, 2558.</p> <p>2. —Same—Parties—Abatement—Death of Guardian.</p> <p>Where, pending such appeal, the guardian dies intestate, his heirs may be made parties in his stead where there is no administration on his estate and no necessity therefor. Rev. Stats., art. 1249.</p>

<p>1. —Evidence—Written Instrument—Notice to Produce.</p> <p>Where an insurance agent’s written commission had been sent to the attorneys of the defendant insurance company at W., in another county, and during the trial and after secondary evidence of its contents had been offered and objected to, notice was given defendant’s counsel to produce the commission, and he testified that he could not then produce it for want of time to obtain it from W., such notice to produce was insufficient to authorize the introduction of the secondary evidence.</p> <p>2. —Fire Insurance—Agent’s Authority—Proof of—Secondary Evidence.</p> <p>Where the owner of property destroyed by fire sued an insurance company for its value upon an agreement to insure it made by defendant’s agent, no policy having been issued, the case was not one where the agent’s authority was only collaterally involved and therefore provable by secondary evidence of it without notice to produce the written commission.</p> <p>3. —Same—Pleading—Ownership.</p> <p>In an action against an insurance company for the value of property destroyed by fire plaintiff’s petition must allege that he was the owner of the property at the date of the contract of insurance.</p> <p>4. —Appeal—Suggestion of Delay—Fundamental Error.</p> <p>Where an insurance company appeals from a judgment against it for the value of property destroyed by fire, and the cause is advanced upon a suggestion of delay, the appellate court will look to the record and reverse the judgment for a failure of the plaintiff’s petition to distinctly allege that he was owner of the property at the date of the contract of insurance, though such error be not assigned.</p>

<p>1. —Trespass to Try Title—Title in Trust.</p> <p>A fee simple title to land in this State, vested in a foreign corporation in trust for the benefit of certain persons, will sustain an action of trespass to try title by the corporation to recover possession of the lands and for rents.</p> <p>2. —Same—Foreign Corporation—Permit—Right to Sue.</p> <p>A foreign corporation holding the fee simple title to land in this State in trust may sue here to recover possession of the land and rents without having obtained a permit to do business in this State.</p> <p>3. —Title to Land—Trust—Lease by Beneficiary.</p> <p>Where a father’s will devised land to be held in trust for the benefit of his son during life and otherwise manifested the purpose that neither the legal nor equitable title should ever be vested in the son, the latter was a mere usufructuary, and his use and occupancy of the land merely permissive in character did not affect the title, and a lease of the land executed by him after testator’s death was unauthorized.</p>

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

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

<p>1. —Evidence—Deposition—Objections.</p> <p>A deposition is treated as the evidence of the party who offers it, though taken at the instance of the opposite party, and an objection to matter contained it as being hearsay is not obviated by reason of the fact that it was taken at the other party’s instance.</p> <p>2. —Same—Hearsay—Entry in Books.</p> <p>Where the date on which a person was buried was a material and controverted fact, evidence of such fact by an entry in the books of an undertaken stating the burial as on a certain date, was objectionable on the ground of hearsay where it was shown that the employe who made and testified to the entry did not know of his own knowledge when the burial took place and appears to have made the entry before the burial.</p>

<p>1. —Community Property—Sale by Survivor—Debts—Charge on Issue Not Raised.</p> <p>. Where, in an action brought by heirs to recover land, the defendant claimed under a sale made by decedent’s widow as survivor in community, to pay community debts, and it was shown that such debts existed, but no issue was made by the pleadings or evidence as to their validity, it was error for the charge to submit to the jury whether "or not such debts were fairly and honestly incurred.</p> <p>2. —Same—Other Reasons for Selling.</p> <p>A sale made by the survivor to pay community debts is not rendered void by the fact that there were also other reasons inducing the sale, such as making a change of an objectionable family residence and providing means of subsistence elsewhere.</p> <p>3. —Appeal—Briefing Assignment of Error.</p> <p>An assignment complaining of a charge submitting the issue of good faith in incurring the community debts for which the land was sold by the survivor, is properly and sufficiently briefed where the statement forming part of the brief informs the court that the language of the charge is given in the assignment;. that the existence of the debts was proved and admitted, referring to the pages of the record, and that there was no evidence as to whether the debts were or were not fairly and honestly made.</p>

<p>Trial—Improper Remarks by Judge.</p> <p>Where a wife sued on a liquor dealer’s bond to recover for the sale of liquor to her husband, and it was a controverted issue as to whether or not the husband was an habitual drunkard, remarks by the judge to husband, who was a witness in the case, made in the presence and hearing of the jury, commanding him not to get drunk during the trial and threatening him with imprisonment if he did so, constituted reversible error.</p>

<p>Appeal from the County Court of Callahan. Tried below before Hon. B. L. Russell.</p>

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

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

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

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

<p>1. —Evidence—Limiting Effect—Requesting Charge.</p> <p>The admission in evidence of a judgment binding one plaintiff, who was a party to it, is not ground for reversal as to the others, who were not; to be entitled to complain they should have requested an instruction limiting its application.</p> <p>2. —Assignment of Error—Sufficiency of Evidence.</p> <p>An assignment of error in that the verdict was not supported by the evidence, not followed by a proposition showing in what respect it was deficient, will not be considered.</p>

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

<p>1. —County Treasurer—Commissioners—Refunding Bonds.</p> <p>A county treasurer is entitled to his commissions on money realized on a sale of county bonds issued and sold for the purpose of refunding outstanding bonds of the same character, although the money was by direction of the county judge, acting as the agent of the county, turned over by the purchaser directly to the owner of the old bonds.</p> <p>2. —Same—Interest on Commissions.</p> <p>Where the statutory limit of $2000 per year as compensation for the county treasurer would not have been exceeded had certain commissions he was entitled to been paid to him when due, interest thereon is authorized for the time payment is delayed, although it will increase the compensation beyond such limit.</p>

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

<p>1. —Railway Company—Connecting Carriers.</p> <p>Where a railway company contracts to ship freight over its own and a connecting line to destination, it is liable for injury occurring on the line of the connecting carrier.</p> <p>2. —Same—Judgment Over.</p> <p>A railway company sued for injury to freight which occurred on a connecting line could not complain of a judgment over in its favor against the connecting carrier, nor could the latter complain of the judgment in that form where it was shown to be primarily liable.</p> <p>3. —Citation—Appearance—W aiver.</p> <p>Where, in an action against two railway companies, citation was served on the traveling passenger agent of one of them, and before the appearance term it had passed into the hands of the attorneys of the other company, who obtained a continuance for both defendants, there was a voluntary appearance shown sufficient to waive the defect, if any, in the service of the citation.</p> <p>4. —Market Value—Measure of Damages—Default Judgment.</p> <p>Where judgment by default was taken against a railway company for damages to cattle in shipment, and writ of inquiry awarded, it can not object for the first time on appeal that the proper measure of damages was not applied because the witnesses stated the extent to which the cattle were damaged in dollars and without any mention of market value.</p>

<p>1. —Estate in Expectancy—Sale oí—Fraud—Equitable Relief.</p> <p>An heir apparent may make a valid conveyance of his estate in expectancy, and equity, it seems, will afford relief against fraud in obtaining such a conveyance,—certainly so where the conveyance is in part of an estate in praesenti and the consideration for the whole transaction is entire and inseparable.</p> <p>2. —Fraud—Cancellation—Pleading.</p> <p>In an action to cancel a conveyance for fraud, allegations in the petition that the grantee knew the value of the property when the sale was made and fraudulently concealed it from the grantor, knowing that he was ignorant of its real value, are material where made and taken with other appropriate pleadings.</p> <p>3. —Same—Friendly Relations—Pleading.</p> <p>In such action evidence of the friendly relations of the parties may be considered in connection with other facts and circumstances in determining whether fraud was practiced in obtaining the deed, and such relations need not be specially pleaded in order to admit proof thereof.</p> <p>4. —Assignment of Error.</p> <p>Where several assignments of error referring to different subjects are not briefed separately, and no propositions of law or fact are made under them, they will not be considered. j¡</p> <p>5. —Jury—Challenges.</p> <p>Complaint on appeal that the trial court refused to allow each of several defendants six peremptory challenges and separate jury lists, is unavailing where it is not shown that defendants exhausted the number of challenges allowed them.</p> <p>6. —Fraud—Cancellation—Charge—Harmless Error.</p> <p>Where, in an action to cancel a deed for fraud, the charge required a finding by the jury of matters well pleaded and sufficient to authorize the cancellation on the ground of fraud, mental incapacity of the grantor and inadequacy of price, and the evidence was sufficient to sustain the findings for plaintiff therein, it was harmless error that the charge also required a finding as to other matters the submission of which was not justified by the evidence.</p> <p>7. —Same—Ratification.</p> <p>The question of ratification is one of fact for the jury where there is evidence tending to show that at the time of the alleged ratification the grantor had no more knowledge of the facts and fraud than at the time of the conveyance.</p> <p>8. —Same—Inadequacy of Price—Charge—Harmless Error.</p> <p>A charge that the jury should find that the conveyance was procured by fraud if the consideration was so inadequate as to shock the conscience was error as being on the weight of evidence; but the error was harmless where the evidence was sufficient to establish fraud and that the grantor had not mental capacity enough to know what he was doing, and it was not shown that an adequate consideration was paid for that part of the property conveyed consisting of an estate in expectancy.</p> <p>9. —Same—Mental Incapacity—Evidence.</p> <p>Where mental incapacity of plaintiff at the time of making the conveyance was one of the grounds alleged for cancellation, the opinion of witnesses as to his mental condition at the date of the conveyance, at the time of the acts offered to show ratification, and thereafter to the time of the trial, were admissible to enable the jury to determine whether such condition was temporary or a fixed mental condition.</p>