Volume 31 — Texas Civil Appeals Reports

<p>1. —Officer—City Policeman—Unauthorized Discharge—Recovery of Salary.</p> <p>Where a policeman is discharged without cause, under an order from the mayor made without authority, he is entitled to recover of the city the amount of bis salary for the balance of his term of two years. °</p> <p>2. —Same—City Charter—Appeal to City Council.</p> <p>Since the city charter required an appeal to the city council only from the action of the police, fire and health hoard, it was not necessary that the policeman, as a prerequisite to the recovery of his salary for the 'remainder of his term, should have appealed to the council from the action of the city marshal in discharging him on the order of the mayor.</p> <p>3. —Same—Salary—Extent of Recovery.</p> <p>Where the salary of the policeman was $75 or $85 per month, according to the detail of the work, he could recover, for the unexpired part of his term, upon being illegally discharged, only at the rate of $75 per month.</p>

<p>Appeal from the County Court of Jefferson County. Tried below before Hon. D. P. Wheat.</p>

<p>Appeal from the County Court of Nolan County. Tried below before Hon. John H. Cochran.</p>

<p>Appeal from the County Court of Waller. Tried below before Hon. John M. Pinckney.</p>

<p>Appeal from the District Court of Bosque. Tried below before Hon. Wm. Poindexter.</p>

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

<p>1. —Contempt—Authority of Court to Punish—Forbidding Appearance.</p> <p>The district court has not authority to punish a party for contempt in filing a scurrilous motion by forbidding him to further appear at the bar of the court in that or any other ease, and such an order is void.</p> <p>2. —Same—Purging Contempt.</p> <p>An order forbidding a party to appear or file any other pleading until he shall have purged himself of contempt does not forbid the filing of a motion by him to purge himself of the contempt.</p> <p>3. —Same—Mandamus Against Judge.</p> <p>The refusal of the clerk to file such motion will not authorize the issuance of a mandamus against the judge, it not being the latter’s duty to file papers.</p> <p>4. —Same—Adequate Relief by Appeal.</p> <p>Nor will mandamus issue to compel the judge to vacate such order, since the applicant has an adequate remedy by appeal therefrom.</p>

<p>Appeal from the District Court of McLennan. Tried below before Hon. Marshall Surratt.</p>

<p>Injunction—Restraining Penal Violation of the Sunday Laws.</p> <p>Injunction to restrain a barber from keeping Ms shop open on Sunday in violation of article 196 of the Penal Code, will not lie at the suit of another barber upon the ground that such action by the defendant gives him an unfair advantage in business over the complainant, since this does not involve invasion of any property right.</p>

<p>1. —Homestead—Title Merely Possessory.</p> <p>Property rightfully and peaceably held in possession and occupied as the home of the family, should be held exempt from forced sale, though that possession be merely permissive.</p> <p>2. —Same—Case Stated.</p> <p>A husband occupying, with his minor children, a homestead on property of his deceased wife, and having inherited from one of the children, on its death, a small, undivided interest in the land, temporarily removed therefrom to educate the children; afterwards the land was partitioned, the residence tract being set aside to one of the children; they having no guardian, he rented out the land and used the proceeds for the support of himself and family, intending to return with them and live in the home; afterwards he inherited half the tract of another child, who died. Held, that his interest in this and in the tract partitioned to him were protected from Tevy and sale on execution against him.</p> <p>3. —Homestead—Assignable Interest.</p> <p>The interest of one claiming the homestead exemption need not be such as is capable of assignment.</p>

<p>1. —Railway Company—Fires from Engine—Burden of Proof.</p> <p>Where in the petition in an action against a railway company for damages caused by fire set from defendant’s engines, the negligence charged was in the construction and operation of the engine, overloading the train, use of improper fuel, and leaving weeds on the right of way, as well as in not having proper spark arresters, an instruction that “if the plaintiff has shown by a preponderance of the evidence that the fire originated from sparks from one of defendant’s locomotives, then the burden rests on the defendant to show that the escape of such sparks was not due to negligence on its part,” was erroneous, since this shifted the whole burden of proof on to the defendant, in relation to all the matters of negligence alleged.</p> <p>2. —Same—Ordinary Diligence—Putting Out Fire.</p> <p>Where grass was set on fire by sparks from an engine, it was not negligence for the train crew to fail to leave the train and extinguish the fire, although the diligence required of a railway company under such state of facts is the same as would be required of an ordinarily prudent man under like circumstances.</p> <p>3. —Same—Measure of Damages—Value of Grass.</p> <p>For the destruction of grass by fire the measure of damages is its reasonable market value at the time of its destruction, and if it had no market value, then its value in view of the use to which it was to be put.</p> <p>4. —Same—Injury to Soil—Value of Fence.</p> <p>Where the fire destroyed plaintiff’s grass and fence and burned the soil, the measure of damages was the value of the grass, the actual value of the fence (considering the cost of labor and material necessary to construct one-equal in value to that destroyed), and the difference in the value of the land immediately before and after the fire.</p> <p>5. —Same—Evidence.</p> <p>Where the evidence left it in doubt as to which engine fired the grass, it was permissible to show that sparks and burning coals were frequently dropped by engines passing, at or about the time of the fire, occasioning other fires of the same character.</p>

<p>Appeal from the District Court of McLennan. Tried below before Hon. Marshal] Surratt.</p>

<p>Appeal from the District Court of Bexar. Tried below before Hon. S. J. Brooks.</p>

<p>Appeal from the District Court of Williamson. Tried below before Hon. R. L. Penn.</p>

<p>Appeal from the District Court of Bexar. Tried below before Hon. S. J. Brooks.</p>

<p>1. —Assignment of Error—Demurrer—Evidence.</p> <p>An assignment of error to the court’s action in overruling a general demurrer to plaintiff’s petition because it does not allege that there was no administration on the estate of plaintiffs’ ancestress and no necessity therefor, and because there is no evidence in the record to show such facts, will not support a proposition that it was necessary to prove such facts, and does not raise the question of the sufficiency of the evidence to sustain the judgment on that issue.</p> <p>2. —Common Source—Void Deed of Wife to Husband—Pleading.</p> <p>Where the action was in trespass to try title, brought by the heirs of a married woman who had undertaken to convey the property to her husband by deed, such deed, though void and ineffectual to pass title, was admissible to show common source of title, and it was not necessary for plaintiffs to plead common source.</p> <p>3. —Lunatic—Suit by Next Friend.</p> <p>A suit in behalf of a lunatic may be maintained by next friend.</p> <p>4. —Assignment of Error Too General.</p> <p>An assignment of error that “the court erred in overruling defendants’ motion for a new trial, in that the motion set out good cause for a new trial,” is too general.</p> <p>5. —Findings of Fact Below—Practice on Appeal.</p> <p>Complaint of the insufficiency of the trial court’s findings of fact can not be made for the first time in -the appellate court.</p> <p>6. —Parties—Heirs.</p> <p>In an action of trespass to try title against H., who is still living, ft is not necessary to try to make his heirs parties, as he has no heirs until his death.</p> <p>7. —Trespass to Try Title—Error in Description of Lot—Evidence—Clerical Mistake.</p> <p>Where the petition and the judgment correctly described a lot sued for as lot 2, block 62, and a witness testified that plaintiffs’ ancestress, was in possession of, owned, and claimed that lot, but the deed to such ancestress described it as lot 2, block 2, it will be presumed that such misdescription was a clerical error, and the judgment will be upheld.</p>

<p>Appeal from the County Court of Burleson. ' Tried below before Hon. B. J. Alexander.</p>

<p>Appeal from the District Court of Leon. Tried below before Hon. J. M. Smither.</p>

<p>Appeal from the District Court of Chambers. Tried below before Hon. L. B. Hightower.</p>

<p>Sureties—Contract Binding—Extension by New Notes—Consideration—Forbearance to Sue.</p> <p>Where the notes of a principal with sureties thereon were renewed by new notes, signed by all the parties, due ninety days from date, nothing being said by the payee as to forbearing suit until they should become due, but they were not sued on until after their maturity, defense by the sureties that there was no consideration, as to them, for the new notes, was unavailing, since the payee, by taking the renewal notes, became legally bound not to sue until they became due, and the fact that under extraordinary circumstance he might have sued by attachment prior to their maturity did not alter the case.</p>

<p>Error from the District Court of Hardin. Tried below before Hon. L. B. Hightower.</p>

<p>1. —Corporations—Receivership—Practice on Appeal.</p> <p>Where on an appeal from an order refusing to vacate a receivership the point is first urged in the appellate court that the receivership should have been vacated because the receiver was appointed on an ex parte application without notice, it will not be considered because not made below.</p> <p>2. —Same—Venire—Waiver of Privilege.</p> <p>Where a corporation contracts to pay an indebtedness in another county than that of its domicile, it may be sued therein and a receiver appointed for it in the district court of such other county, as it is held to have thereby waived the privilege given by the"statute to have a suit for the appointment of a receiver for its property brought in the county of its domicile. Rev. Stats., art. 1448.</p>

<p>Appeal from the District Court of Nolan. Tried below before Hon. H. C. Hord, Special Judge.</p>

<p>1. —Certiorari—Justice Court Judgment.</p> <p>A certiorari can not, under the terms of the statute, be granted after ninety days from the final judgment in the justice court sought to be reviewed, and such judgment is final from the date of its rendition where there is no motion for a new trial. Rev. Stats., art. 346.</p> <p>2. —Same—Principal and Indorser—Judgment—Execution Over.</p> <p>Where the action was on a note against a principal and an indorser, it was not ground for a certiorari that the justice announced to the attorney for the indorser, at the conclusion of the trial, that he would enter judgment against the defendants as principal and indorser, respectively, and he thereafter so entered the judgment, and also awarded execution in favor of the indorser against the principal in case the indorser paid the debt, since it was authorized by the statute. Rev. Stats., art. 3815.</p> <p>3. —Same—Injunction.</p> <p>Suit by injunction in the district court can not be substituted for the remedy by appeal or certiorari given by the statute.</p>

<p>1. —Fire Insurance—Stock Cars—Identification.</p> <p>The insured owned 283 stock cars at the time of the insurance covering that number, and that were otherwise described only by their value,—$125 each. The burned cars, with others of like condition, were not in actual use at the date of the insurance, or between that time and the fire; were standing upon storage tracts, and so out of repair as not to be interchangeable under the rules of the Master Car Builders’ Association, but were worth $250 each. The policy provided that in the event of loss the value of the destroyed property should be settled in accordance with the rules of said association. Held, that this did not conclusively establish that the cars were not insured, it clearly appearing that they were not so out of repair as to lose their identity.</p> <p>2. —Same—Subrogation—Parties.</p> <p>Where an insurance policy provided that, in the event of fire caused by the act or negligence of another, the insurer, on payment of the loss, should be subrogated, to the extent of such payment, to all right of recovery of the insured, in an action on the contract of insurance by the insured, a party whose negligence caused the fire, being impleaded by the insurer, was properly joined, though the insurer had not paid the loss.</p> <p>3. —Same—Evidence—Negligence in Setting Fire.</p> <p>In an action on a fire insurance policy the evidence shown is held sufficient to warrant a finding that the fire was negligently set by a third party, impleaded as a defendant in the case.</p>

<p>Statement of Facts—Filing Too Late.</p> <p>Where the term of court at which the case was tried expired April 2d, a statement of facts filed June 19th can not be considered, and is not aided by an order of court authorizing it to be filed in vacation within ten days after adjournment. The requirement of the law as to filing is mandatory, and the appellate court is without discretion in the matter.</p>

<p>Accident Insurance—Intentional Injury.</p> <p>In suit on an accident policy, not insuring plaintiff against injuries intentionally inflicted by himself or others, evidence is considered and held to show that plaintiff’s injury was intentionally inflicted, in self-defense, by one on whom he had made an attack, and judgment reversed and rendered.</p>

<p>1. —Telegram—Diligence to Deliver—Charge.</p> <p>A charge on the care necessary to deliver a telegram to the addressee is erroneous, which relieves defendant from liability if it “searched for plaintiff and failing to find him” took ordinary precautions to inform him of said telegram, since it excuses defendant from delivery, if search of any character or in any place was made, though it fell short of ordinary care.</p> <p>2. —Charge—Distinct Grounds of Negligence.</p> <p>When plaintiff relied on defendant’s lack of care to make prompt delivery, both of a message to him and gf others sent by him after its delayed delivery, it was error, in charging separately on each issue, to direct a verdict for defendant, if due care was used to deliver the message involved in it.</p>

<p>1. —Homestead—Mortgage—Subsequent Abandonment.</p> <p>A mortgage or trust deed lien on the homestead property, executed while it' was being used as a homestead, is utterly void, and is incapable of being given any force by a subsequent abandonment of the premises as a homestead. Const., art. 16, sec. 50.</p> <p>2. —Same—Estoppel.</p> <p>The maker of a deed of trust on homestead property was not estopped by his representations as to the character of the property, made to the lender when the loan was applied for, from asserting his homestead rights therein, where the lender referred him to his attorney, and the latter advised the loan on his own knowledge of the circumstances then attending the use of the premises.</p>

Tried below before Hon. Marshall Surratt. Bell and another sued the bank and others to enjoin an execution sale and obtained judgment perpetuating their injunction, from which defendants appealed.

<p>1. —Assignment of Error—Vagueness—Rules of Court.</p> <p>An assignment of error complaining of several different matters without segregating the particular errors complained of, and which is not followed by a proposition and statement from the record as required by the rules, can not be considered. Rev. Stats., art. 1018; Rules of Courts of Civil Appeals, 25, 26, 30, 31.</p> <p>2. —Same—Statement.</p> <p>Where an assignment alleges error in the charge of the court, the portions complained of should be copied in the statement following the proposition, with reference made to the pages of the record on which they may be found.</p>

Tried below before Hon. Marshall Surratt. Edwards, the plaintiff, and Mrs. Kempner, intervener, appeal from a judgment in favor of Anderson, the defendant.

<p>1. —Telegraph Company—Mental Anguish.</p> <p>Evidence held to warrant a verdict for $1000 against a telegraph company for negligence in failing to promptly forward a message calling a mother to the bedside of a sick child that died before her delayed arrival.</p> <p>2. —Same—Negligence—Estoppel—Falsehood by Agent.</p> <p>Where a telegraph company received a message in time to have forwarded it before closing hours that evening, an agreement by the sender that it should be sent next morning, induced by the false statement of the agent that it could not be sent that evening as the office at the point of destination was already closed, would not estop the sender from recovering damages for the failure to forward it before the next morning.</p>

<p>1. —Res Adjudicata—Partition—Community Estate.</p> <p>Where there was a suit for partition of the community estate between the husband and wife after their divorce, and the judgment of partition therein gave to each party an undivided half of the estate, and determined for what sum the community was liable, such judgment was conclusive as to any claim of the husband against the community existing and known to exist at the time the judgment was rendered, and whether or not it was adjudicated in the partition suit.</p> <p>2. —Same—Maintenance of Child—Expense.</p> <p>Where the husband voluntarily expended money for the maintenance and education of a minor daughter after the decree of divorce, he could not charge the expenditure against the wife’s half of the community estate, and a subsequent decree of partition of the community estate was res judicata of his right to reimbursement for such expenses out of the wife’s half.</p> <p>3. —Same—Payment of Taxes.</p> <p>Where such partition judgment decreed that each party should recover of the other one-half of the community property; that the taxes for'a certain year were a community debt for which the estate was liable, that the half interest allotted to each party should be liable for one-half of the debt; and that each party should have a lien on the other’s interest for reimbursement of any payment in excess of such charge, such judgment was res judicata of the husband’s rights, on paying the taxes, to charge them against the wife’s interest.</p> <p>4. —Same—Interest.</p> <p>The husband was not entitled to charge interest on community debts and • taxes paid by him against the wife’s half of the estate, where the evidence showed that she had paid the half of the community debts charged to her, and he had not paid his half.</p> <p>5. —Same—Rents.</p> <p>The decree of partition having adjudged that all rents of the community estate collected by either party after its date and before final partition should be a part of the community, such amount was involved in the partition, and the final decree having charged a certain sum received by the husband for rents after the order for partition and before the final judgment, the judgment was res adjudicata as to such rents.</p>

<p>1. —Personal Injuries—Evidence—Mortality Tables.</p> <p>Life tables are admissible in evidence in cases of personal injuries that are permanent in character.</p> <p>2. —Negligence—Railroads—Charge.</p> <p>A charge that it is the duty of a railway company to use ordinary care to see that its tracks and sidings are not in such close proximity to other structures as to unnecessarily endanger its employes, engaged in the discharge of their duties on trains passing by, was not objectionable as inf eren tially telling the jury that such proximity of structures would be negligence.</p> <p>3. —Master and Servant—Duty of Inspection—Railroads.</p> <p>Where a railroad switchman is unfamiliar with the locality where he is at work, he owes no duty of inspection of the premises, and it is the company’s duty to exercise ordinary care to see that the premises are safe, and to give him notice of the proximity of dangerous structures where he has no experience or acquaintance with the premises. See charge held correct.</p> <p>4. —Same—Contributory Negligence—Railroad Switchman.</p> <p>Where plaintiff, a railroad switchman, at the time he was struck by a projecting warehouse shed, was standing on a ladder on the side of a car looking in an opposite direction for signals from the conductor, which it was his duty to repeat to the engineer, and the work he was then doing was the first in which he had been engaged at that place, and his position was the proper one for the performance of such duties, he was not guilty of contributory negligence.</p>

<p>I. —Street Railroads—Negligence—Injury to Child.</p> <p>Evidence held sufficient to warrant a finding that a street car motorman was negligent in failing to see a child that ran upon and obliquely along the track twelve feet in front of his car while it was moving slowly, or that he was negligent in failing to stop the car.</p> <p>3.—Same—Pleading and Charge.</p> <p>A charge that if the motorman failed to use ordinary care to discover the child on the track, or was negligent in failing to stop the ear in time to avoid the injury after having discovered her on the track, plaintiff was entitled to recover, was warranted by pleadings which alleged that the motorman did not look in the direction that the car was going, but looked in an opposite direction, and that he well knew that the child 'was on the track in front of the car, and her dangerous and hazardous position.</p> <p>3.—Same—Evidence—Variance.</p> <p>Plaintiff’s petition alleged that an injury resulting from the child being struck by a street car occurred at the crossing of a particular street, and the evidence showed that the child was injured at a point perhaps forty feet from such street. There was no objection interposed to the evidence, and defendant made no claim of surprise. Held, that there was no material variance.</p>

<p>1. —Attorney Fees—Notes Collected Through Probate Court—Presentment and Rejection of Claim—Limitation.</p> <p>Before the maturity of a note calling for attorney fees, if collected by judicial proceedings, the maker died, and plaintiff, the holder of the note, employed an agent who was not an attorney to present the note against the maker’s estate. Such presentment was made before the maturity of the note, and the amount due, with interest, was allowed. The claim on the note not having been paid when the note matured, plaintiff employed attorneys who procured an order of the probate court for the sale of property of the estate to pay the note, after which they presented a claim for attorney’s fees, which was not allowed by the executor. The affidavit to the original claim by the agent stated that “the claim represented by said note and deed of trust was just.” Held that this was broad enough to embrace the whole debt, including the attorney fees, and the allowance of only the principal and interest was equivalent to a rejection of the attorney fees, and claim therefor not having been brought within ninety days after the rejection, was barred by limitation.</p> <p>2. —Same—W aiver—Estoppel.</p> <p>If, as contended, the claim for attorney fees was not presented to the executor, then it was waived, and plaintiff is thereby estopped to afterwards claim it.</p> <p>3. —Same—Limitations.</p> <p>The claim for the attorney fees not having been presented until more than four years after the maturity of the note, was barred by the four years statute of limitations.</p> <p>4. —Same—Maturity of Claim.</p> <p>The contention that the claim for the attorney fees could not be presented to the executor at the time the claim for the note was presented because the note had not then matured is not tenable, since the fact that the principal and interest of the note could be then claimed carried with it the right to have claimed the attorney fees.</p> <p>5. —Same—Employment of Attorney—Judicial Proceedings.</p> <p>The collection of the note through the probate court was by judicial proceedings, and no attorneys having been employed to procure the allowance of the claim, the holder of the note was not entitled to maintain a suit against the estate for the attorney fees on the ground that after the judgment of the probate court was obtained he employed attorneys to collect the claim, or to accelerate its payment.</p>

<p>Deed—Consideration Contractual—Cancellation—Reformation.</p> <p>A conveyance of land on an expressed consideration of an annual rental of a part of the crops thereon to be paid the grantor during life, was contractual, and not a bare recital of consideration, and, in the absence of allegation of fraud or mistake and attempted reformation of the instrument, pleading and evidence that it was upon a different and executed consideration presented no defense to an action to cancel the deed for failure of the grantee to make such payments of rent.</p>

Tried below before Hon. Marshall Surratt. Seley & Early sued the railway company and recovered judgment from which defendant appealed.

<p>1. —Attachment—Affidavit—Debt.</p> <p>In a suit on a note, an affidavit for attachment which correctly states the amount of the debt due need not state that it was due on the note sued on nor show what payments thereon had reduced it to the amount claimed.</p> <p>2. —Community Property—Attachment—Abandoned Wife.</p> <p>An answer by the wife to a suit upon a note given by the husband, with attachment of community property, which alleges abandonment of her by the husband and appropriation by him of the larger part of their common property, and seeks to have the attached real estate decreed to her free from the attachment lien, disclosed no defense and was subject to demurrer, being, in effect, an attempt to procure a partition of the community property, with which plaintiff had no concern.</p>

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

<p>Appeal from the District Court of Washington. Tried below before Hon. Ed B. Sinks.</p>

<p>School Land—Additional Section Purchase—Occupancy of Home Section.</p> <p>Where plaintiff had acquired his home section of school land as a vendee of the original purchaser from the State, and had settled on the land, continuing his occupancy for three years and making proof thereof, his right to purchase additional land was not affected by the failure of his vendor to comply with the law as to actual settlement on the home section.</p>

<p>Appeal from the District Court of King. Tried below before Hon. J. A. P. Dickson.</p>

<p>Appeal from the District Court of Fisher. Tried below before Hon. P. D. Sanders.</p>

<p>Appeal from the District Court óf Dallas. Tried below before Hon. Thos. F. Nash.</p>

<p>Error from the District Court of Dallas. Tried below before Hon. Thos. F. Hash.</p>

<p>Appeal from the District Court of Grayson. Tried below before Hon. Rice Maxey.</p>

<p>1. —Sale of Land—Good Title—Parol Evidence.</p> <p>Where a contract for the sale of land requires that the title be “good,” this does not in all cases requite that the record title be absolutely perfect, but parol evidence is sometimes admissible to explain apparent lapses and defects in the title.</p> <p>2. —Same—Identity of Names.</p> <p>Where a patent issued to Levi H., and the land was subsequently conveyed by O. L. H., parol evidence was admissible to show identity of name.</p> <p>3. —Same—Payment of Note.</p> <p>So parol evidence is admissible to show that a purchase money note which by the abstract was apparently outstanding has been paid.</p> <p>4. —Same—Time—Curing Defects.</p> <p>Under a contract which provided that if the title was good the earnest money was to be forfeited unless the vendee took the property within two days after the delivery of the abstract, but if the title was defective two days were allowed the vendor to perfect the same, the vendor was entitled to two days in which to cure designated defects after objections to the title were filed by the vendee.</p> <p>5. —Same—Abstract of Title—Definition.</p> <p>A charge defining an abstract of title as a statement in substance of what appears on the public records affecting the title, and also a statement in substance of such facts as do not appear upon the public records which are necessary to perfect the title, is substantially correct.</p> <p>6. —Same—Title Not Marketable—Adverse Grant.</p> <p>For the purpose of showing that the title offered him was not a good and marketable one, defendant had the right to show a prior adverse grant by the government of Coahuila and Texas, although such grant was apparently void, since it would be valid if it could be shown that it had received the approbation of the supreme executive; and the probability of an adverse claim growing out of such grant was proper to be considered in view of the lapse of time since it was made, the absence of claim under it, and adverse possession under plaintiff’s claim.</p> <p>7. —Same—Certified Copy—Foreign Language.</p> <p>Where the certified copy of such grant in the Spanish language was also a correct translation thereof, it was admissible in evidence.</p> <p>8. —Same—Burden of Proof.</p> <p>Where the action is by the vendor to enforce a forfeiture of the earnest money, the burden is 'on the defendant to show that his objections to the title not arising on the record, but resting in extraneous facts, are of such a nature as to threaten and diminish the market value of the property.</p> <p>9. —Same—Good Faith—No Title When Contract Made.</p> <p>Where the contract provided that the title might be made good by the vendor upon objection to it by the vendee, the latter could not refuse compliance with the contract upon the ground merely that the vendor had no title at the time the contract was made, unless it was not made in good faith, and evidence of a prior oral gift of the land to the vendor by his father was admissible to show good faith on his part.</p> <p>10. —Same—W aiver—Estoppel—Pleading.</p> <p>Where the defendant pleaded fraudulent representations of the vendor, and the latter did not plead waiver or estoppel, defendant can not be held to have waived such defense by having taken other steps in the matter after learning of the fraud.</p> <p>11. —Same—Fraudulent Representations Prior to Contract.</p> <p>Fraudulent representations as to the character and quantity of the land could be urged by the defendant to defeat the contract, though they were made prior thereto, and were not embodied therein.</p>

<p>Appeal from the County Court of Walker. Tried below before Hon. John C. Williams.</p>

<p>1. —Citation—Copy of Supplemental Petition.</p> <p>Service on a defendant outside the county of the forum, by delivering, with the citation, a copy of plaintiff’s original petition, was sufficient to sustain judgment by default, though made without delivering a copy of an instrument, styled first supplemental petition, but which was a mere direction to issue citation to a county not named as defendant’s place of residence in the original petition.</p> <p>2. —Citation—Return</p> <p>A citation will be presumed to have been returned in due time, where the court has acted on it by taking judgment by default, though it does not appear, by the citation, return, file mark, or otherwise, when it was returned.</p> <p>3. —Officer de Facto—Issuing Process.</p> <p>Judgment by default upon process issued by one who has acted for some time as a deputy clerk will be sustained, though no jurat appears to his oath of office on file.</p> <p>4. —Judgment by Default—Diligence.</p> <p>To set aside a judgment by default, where process and service were sufficient, defendant must show not only that he had a good defense, but a sufficient excuse for not presenting it.</p> <p>5. —Defunct Corporation—Judgment Against—Who May Complain.</p> <p>It would seem that only parties whose interest is affected thereby and /those who are not in default in asserting their rights on the trial, can complain that judgment was rendered against a dissolved corporation.</p> <p>G.—Corporation—Dissolution—Consolidation—Judgment.</p> <p>It seems that consolidation of a defendant corporation with another by authority of special legislation (the Calvert, W. & B. V. Railway Co. with the International & G-. N. Railway Co. under the special act of the Twenty-seventh Legislature) would not work such dissolution of its corporate existence as to prevent judgment against it in a pending suit.</p> <p>7.—Judgment—Motion to Set Aside—Judicial Discretion.</p> <p>A motion to set aside a judgment dismissing from the suit the complaining company, which had answered and was represented by attorney, and taking judgment by default against another defendant corporation which had been consolidated with it, and which had been cited but had not answered, was addressed to the discretion of the court, where filed after more than two days, and no error was committed in striking it out. •</p>

<p>1. —Libel—Proving Truth,</p> <p>A statement warning the public that plaintiff, who was soliciting advertisements to be published with the folders of a railway, had no connection with the company, and that it did not propose to issue such folders, was not held to have been proven true, where plaintiff, whose account was accepted by the jury, had testified that he had a contract with the company to place within and cir-° culate with its folders certain printed matter descriptive of towns within its territory.</p> <p>2. —Libel—Privileged Communication—Charge.</p> <p>A communication warning the public that plaintiff had no connection with defendant, was not absolutely, but only conditionally privileged. A requested charge that it was privileged, ignoring the question of good faith in its publication, was properly refused, and was insufficient to make the failure to submit the issue as to its qualified privilege error.</p> <p>3. —Contract—Consideration—Libel.</p> <p>A contract to insert in a publication matter to be prepared and furnished by another, was not, it seems, without consideration, though nothing was paid for the privilege. But, if not a binding contract, that fact did not justify the publication of a statement amounting to -the charge that the party, in acting on such gratuitous agreement, was a swindler in soliciting advertisements to be inserted in the matter he expected to so publish.</p> <p>4. —Libel—Falsity of Charge.</p> <p>A requested instruction that defendant was not guilty of libel if the charge 'published was true, was properly refused where the general charge authorized recovery only in case of its falsity.</p> <p>5. —Issues—Failure to Submit.</p> <p>Failure to submit a matter of defense is not ground for reversal unless a charge submitting it was requested or the record shows that, if requested, it would have been refused.</p> <p>6. —Libel—Exemplary Damages—Corporation—Malice—Act of General Officer.</p> <p>A corporation is liable in exemplary damages for a malicious libel by a superior officer representing it in its corporate capacity; and the general passenger and ticket agent of a railway is such an officer.</p> <p>7. —Malice—Evidence.</p> <p>Conduct considered and held to furnish some evidence of express malice in the publication of a libel by an officer of a corporation.</p> <p>8. —Bills of Exception.</p> <p>Exceptions to rulings on admissibility of testimony can not be considered where the bills are embraced in a statement of facts filed after adjournment of the term.</p>

<p>1. —Passenger Carrier—Negligence—Assisting to Alight.</p> <p>Though the duty of a carrier, generally, is only to furnish proper facilities for alighting, circumstances may impose upon it the duty, also, of rendering assistance to the passenger in so doing. See case of woman incumbered with hand baggage and requesting assistance, in which failure to assist in alighting could be held to be negligence.</p> <p>2. —Same—Pleading.</p> <p>^Pleading charging that station platform was too low and negligently constructed, that no stool was used to assist in alighting and no assistance rendered to a woman getting off a train incumbered with parcels, was sufficient to authorize a charge permitting recovery if the assistance furnished for alighting was not reasonably safe.</p>

<p>1. —Easement—Assignability.</p> <p>It seems that the common law distinction between easements in gross and those appendant, with reference to their assignability, has been changed by article 308, Rev. Stats., and that they are now alike assignable, except as to matters involving personal trust or skill.</p> <p>2. —Homestead—Easement—Grant by Husband Alone.</p> <p>The right for an indefinite period, to take and use the waters of a spring and to erect a pump and lay pipes in the soil for that purpose was such use and appropriation of a part of the homestead of the family as could not be granted by the husband alone.</p> <p>3. —Value of Use of Land.</p> <p>While the use of land and water might be assumed, as matter of common knowledge, to be of some value, there must be evidence of its value to support a recovery of damages in the sum of $50.</p>

<p>Carrier—Compressing Cotton in Transit—Railroad Commission—Foreign Shipment.</p> <p>Owners of cotton, destined by them for shipment to foreign ports, applied to a railway for foreign bills of lading over its road and defendant’s connecting line to Galveston, with directions to compress it at Palestine, where it reached such connecting line and where they were operating a compress. This being refused they took bills of lading to Galveston, with directions to transport “flat,” that is, without compressing, and at Palestine exchanged these for foreign bills of lading by defendant, and had the cotton compressed there in disregard of the rules of the Railroad Commission as to compressing cotton in transit. Held, that the shipment was a foreign one, despite the form of the original bill of lading, and not subject to state regulations as to compressing.</p>

<p>Error from the District Court of Travis. Tried below before Hon. E. E. Brooks.</p>

<p>Appeal from the District Court of Nacogdoches. Tried below before Hon. Tom C. Davis.</p>

<p>Appeal from the District Court of Washington. Tried below before Hon. Ed. R. Sinks.</p>

<p>1. —School Land—Actual Settlement—Charge on Weight of Evidence.</p> <p>In an action where the all-important question for the jury was whether defendant had in good faith settled upon the school land in controversy for the purpose of making it his home, it was error, as being on the weight of evidence for the court to charge that “an actual settler on school land is one who has in good faith established his residence thereon for the purpose of making his home thereon. It is not necessary for him to have his wife or family on the land at the very time he makes such settlement, if in fact he' has himself, in good faith, established his residence upon the land with the bona fide intention of making his home there.”</p> <p>2. —Same—Application—Time of Settlement.</p> <p>Where an application to purchase school land as an actual settler thereon was sworn to and mailed to the Commissioner while the applicant was on his way to the land, this was sufficient, he having reached and made settlement on the land on the same day, and being a settler on it when his application was received and took effect by being filed in the Land Office, and no rights of third parties having intervened.</p> <p>3. —Same—Special Issue—Payment.</p> <p>Where the action involved conflicting rights of applicants to purchase a tract of State school land, and the case was submitted to the jury on special issues, it was error for the court to refuse to submit to the jury, upon request so to do, the issue of whether defendant made a tender to the State Treasurer of the first payment due under his application, and this even though defendant’s evidence on that point had been uncontradicted, since it was necessary for the jury to find on that issue before the court could properly render its judgment.</p>

<p>1. —Appeal—Misjoinder—Harmless Error.,</p> <p>Where in an action against two defendants, one of them pleads a misjoinder of parties and actions in that the causes of action asserted against the defendants respectively are separate and distinct, but upon a trial on the merits judgment is rendered in favor of the defendant so pleading, error of the court in overruling such plea is not reversible error as to the other defendant, in the absence of a showing of injury thereby.</p> <p>2. —Same—Plea in Abatement—Insolvency of Corporation.</p> <p>It was not error to overrule a plea in abatement setting up that defendant was an insolvent corporation in the hands of its trustees, where the plea was not sworn to, nor filed in due order of pleading, and no evidence was offered in its support.</p> <p>3. —Same—Liens.</p> <p>That the judgment declared plaintiff’s lien on the property in controversy superior to that of another defendant who is not complaining, is not reversible error in the absence of a showing of injury thereby.</p>

<p>Appeal from the County Court of Mitchell. Tried below before Hon. W. B. Crockett.</p>

<p>1. —Mortgage—Deed Absolute—Purchaser Without Notice.</p> <p>A pureehaser for value from one holding under a deed absolute on its face, and who is without notice that it was intended as a mortgage, takes the legal title free of the equity, and his grantee, irrespective of notice to himself, will take clear of such equity, being entitled to protection for his grantor’s sake.</p> <p>2. —Same—Evidence of Notice—Conclusion.</p> <p>Where the evidence was conflicting upon the issue whether plaintiff’s immediate vendor, T., was a purchaser without notice that a prior deed from L., the common source, to C. was in fact a mortgage, it was admissible for C. to testify that T., his vendee, so far as witness knew, had no knowledge that L. was claiming any interest in the land, or that the deed from L. to C. was only a mortgage, as this was not a conclusion, and such testimony was important to rebut the adverse inference which would arise from the failure of the witness to testify on this point.</p> <p>3. —Same—Registration of Mortgage as Deed.</p> <p>A creditor can not avail himself of the provisions of the registry statutes declaring mortgages and other conveyances void as to all creditors and subsequent purchasers for value without notice unless filed for record where the debtor has executed a deed of the property absolute on its face, but intended as a mortgage, and the instrument has been duly filed as a deed. Rev. Stats., art. 4640.</p> <p>4. —Same—Trust—Exception to Registry Law.</p> <p>While the parol trust created by such a mortgage is not a resulting trust, it is nevertheless, it seems, so far in analogy thereto as to be unaffected by the denouncement of the registration law.</p> <p>5. —Innocent Purchaser for Value—Creditor.</p> <p>A creditor without notice who purchases through foreclosure proceedings of his own, merely crediting the purchase price on his debt, is not a purchaser for value entitled to the protections of the courts of equity or of the registration statutes as a purchaser for value.</p> <p>6. —Triel—Evidence—Suppressed Deposition.</p> <p>Where on formal motion before trial a deposition had been suppressed, and the order to that effect had never been set aside, it was error to admit the deposition in evidence on the trial.</p>

<p>1. —Exempt Property—Crops on Homestead—Garnishment.</p> <p>Oops growing upon the homestead do not lose their exempt character by virtue of being severed from the soil and gathered under a writ of garnishment , wrongfully levied thereon.</p> <p>2. —Same—Offset—Judgment.</p> <p>A judgment can not be offset against a claim for the proceeds of .exempt property wrongfully converted, as this would render the exemption laws ineffective.</p> <p>3. —Same—Offset—Unliquidated Damages.</p> <p>Where the action is one of tort for the conversion of exempt property, it is for unliquidated damages, and a judgment can not, under the statute, be pleaded as an offset to plaintiff’s claim. Rev. Stats., art. 754.</p>

<p>1. —Jury—Selection—Talesmen.</p> <p>Where, when a case was called for. trial, a jury was out, and from the remainder of the regular jury, more than twelve in number, only six jurors were obtained for the second jury, and the court ordered talesmen summoned, interrogated, qualified, and plaintiff made his challenges as to them and returned the list to the clerk, when the other jury returned their verdict and took seats in the courtroom, it was in the discretion of the court to then complete the second jury from the list of the talesmen, or from the jury just discharged.</p> <p>2. —Contributory Negligence—Burden of Proof—Charge.</p> <p>Where the evidence adduced by plaintiff, standing alone, does not present the issue of contributory negligence, a charge that the burden of proving contributory negligence on the part of the injured party is upon the defendant, is not error.</p> <p>3. —Same—Fact Case—Horse Taking Fright.</p> <p>Evidence in an action for injuries to plaintiff’s wife caused by her horse taking fright at a hand car standing on the track near a railroad crossing, held not to present the issue of contributory negligence.</p>

<p>Appeal from the District Court of Bexar. Tried below before Hon. S. J. Brooks.,</p>

<p>Appeal from the County Court of Wilson. Tried below before Hon. Thomas P. Morris, Special Judge.</p>

<p>1. —Personal Injury—Pleadings.</p> <p>Where the petition in an action for personal injuries consisted of positive, though alternative, allegations, the court properly overruled special demurrers urged upon the ground that its allegations were inconsistent, vague and indefinite.</p> <p>2. —Same—Objection to Evidence.</p> <p>Where in a personal injury case a physician was asked whether, from his examination of plaintiff, plaintiff impressed him as a temperate or intemperate man, and objection was made on the ground merely that the question was not a proper one, such objection was correctly overruled, as no ground therefor was stated.</p> <p>3. —Same^Contributory Negligence—Charge.</p> <p>Where in an action for personal injury, the court charged that plaintiff was bound to use ordinary care to prevent accident, and if he failed in this, and if such failure contributed to his injury, he could not recover, such charge did not present reversible error for failure to add “though the jury should also believe that the defendant was negligent.”</p> <p>4. —Same—Act of God—Washout—City Bridge.</p> <p>Evidence, in a personal injury case against a city for permitting an approach to a bridge to become defective, which showed that nearly two months before the accident a heavy rain had damaged the approach; that the bridge had been washed out several times; that about the time of the accident, and before, several bridges had been washed out; that on the evening of the accident a heavy rain fell and washed out the bridge and injured the approach; and that no notice had ever been given the city of the defects in the approach,—was not sufficient to warrant submitting the issue as to whether the condition of the approach was caused by the act of God.</p> <p>5. —Same—Contributory Negligence—Burden of Proof.</p> <p>The defendant in an action for personal injuries can not complain of a charge that the burden of proof is on it to show contributory negligence, unless plaintiff’s testimony has made a prima facie case of contributory negligence.</p>

<p>1. —Jurisdiction—Amount in Controversy—Pleading.</p> <p>Where the amount of damages for which defendant to a distraint for rent sought judgment by cross-action was limited to an aggregate of less than one thousand dollars, his claim was within the jurisdiction of the county court, though the statement of the items claimed might be construed as alleging different items which, added, would make more than that sum.</p> <p>2. —Distress Warrant—Removal of Property.</p> <p>Where a distress warrant was procured upon affidavit that defendant was about to remove his property from the rented premises, and the tenant, between the making of the affidavit and the service of the writ, without consent of the landlord, carried away and sold a bale of cotton raised on the premises, devoting the proceeds to paying his cotton pickers and to his personal benefit, the warrant could not be held to have been wrongfully issued and levied, nor-that question submitted to the jury.</p> <p>3. —Damages—Evidence.</p> <p>Damages for depriving a tenant of the use of water or of the use of a building, to which he claimed a right under his lease, and which the landlord had denied him, could not be left to the jury in the absence of evidence as to the value of their use.</p> <p>4. —Landlord and Tenant—Repairs.</p> <p>The landlord is not liable to the tenant for the cost of repairs upon a building for his subtenant in the absence of an agreement to compensate him therefor, though made necessary by the landlord’s breach of contract to permit his subtenant to occupy another building than the one repaired.</p> <p>5. —Landlord and Tenant—Distress—Satisfaction.</p> <p>The seizure under a distress warrant of a tenant’s personal property operates as a satisfaction of the landlord’s claim to the extent of the value of the property so seized.</p> <p>6. —Same.</p> <p>The landlord is liable for property seized under a distress warrant, though converted by others, if it was done with his consent.</p>

<p>Appeal from the District • Court of Travis. Tried below before Hon. F. G. Morris.</p>

<p>1. —Telegram—Delay—Contract—Time of the Essence—Damages.</p> <p>Correspondence by mail and telegram held to show a contract in which prompt acceptance was necessary to a completed sale; and a message, “Offer on cattle accepted. Come on quick. Letter delayed,” sufficiently informed the telegraph company, or put it on inquiry, to make it liable for loss of profits of the purchase through its negligent delay in delivery.</p> <p>2. —Telegram—Delay in Delivery.</p> <p>A finding of negligence in delaying delivery of a telegram and the loss of a contract as a proximate result, held warranted by the facts shown by the findings and supported by evidence.</p> <p>3. —Telegraph—Contributory Negligence.</p> <p>A finding that the addressee of a telegram was not guilty of negligence in failing to send a message before starting to accept the delivery of cattle offered him by wire, was supported, where he did not discover, till reaching his destination, when he found the cattle sold to another, that the message received by him was so delayed in delivery as to call for such action on his part.</p>

<p>Error from the District Court of Harris. Tried below before Hon. Chas. E. Ashe.</p>

<p>1. —Boundary—Course and Distance Controlling.</p> <p>In a case of conflicting boundaries where there is no evidence of the footsteps of the surveyor of either survey or of possession or of acquiescence, course and distance must control, and the 'junior survey must yield to the senior.</p> <p>2. —Same—Estoppel.</p> <p>Upon an issue of boundary it was shown that plaintiff, several years before, recovered in a suit the land that he claimed to be in the survey here in controversy, and had a writ of possession executed, and appointed an experienced surveyor who received possession from the sheriff, and that the line selected by him was the same as here contended for by defendant. Held, that such facts did not constitute an estoppel.</p> <p>3. —Same—Evidence.</p> <p>Where a witness testified that a surveyor was with him when he found a certain marked line, but he related no declaration of surveyor, such testimony was admissible as showing how, when, and under what circumstances the witness gained his knowledge.</p> <p>4. —Trial—Admission of Evidence—Harmless Error.</p> <p>Where the trial was before the court without a jury, the admission of hearsay testimony was harmless error where the court certified in the bill of exception relative thereto that the evidence was not considered by him in reaching a conclusion.</p>

<p>1. —Partnership—Proof of—Pleading and Evidence.</p> <p>Where in an action on a note signed by one defendant, seeking to charge all three defendants as partners, plaintiff was asked why he did not get the other two to sign the notes, and he would have answered that it was because the signer of the note told him that it was not necessary for the other defendants to sign, as they had agreed to pay the debt, such answer, in the absence of any allegation in the petition that the other two defendants had agreed to pay the debt, was not admissible.</p> <p>2. —Same—Admission of Partner.</p> <p>Where there was some evidence tending to prove a partnership, but the great preponderance of the evidence was to the contrary, tne admission of one of the parties, made in the absence and without the knowledge or authority of the others, was not admissible to prove a partnership.</p> <p>3. —Same—Issue Not Raised by Pleadings.</p> <p>Where in an action on a note signed by one defendant, seeking to charge all three defendants as partners, the petition alleged that they were partners, or, if they were not, then the signer of the note was the agent of the other two, this did not raise the issue as to whether the other two had agreed to pay for the work for which the note had been given in consideration of ten per cent interest on a loan therefor and two-thirds of the profits realized from the construction.</p> <p>4. —Same—Partnership Not Shown—Loan.</p> <p>Where parties made a loan to a contractor erecting waterworks, to be paid for in bonds, and became the custodian of the bonds, the proceeds to be used to pay the debt, and the remainder of the bonds, if any, to be divided between them, this did not make such parties and the contractor partners in the contract for the erection of the waterworks.</p>

<p>Appeal from the District Court of Jack. Tried below before Hon. J. W. Patterson.</p>

<p>Appeal from the District Court of Shackelford. Tried below before Hon. N. R Lindsey.</p>

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

<p>Appeal from the District Court of Grayson. Tried below before Hon. Rice Maxey.</p>

<p>Appeal from the District Court of Harris. Tried below before Hon. Wm. H. Wilson.</p>

<p>Estoppel—Banks—Authority of Cashier—Misapplication of Deposit.</p> <p>Where the insolvent cashier of .plaintiff bank instructed defendant bank to apply plaintiff’s deposit to the payment of a loan to such cashier, and this was done, without notice of want of authority, and at the end of a month defendant sent to plaintiff a statement of account showing the transaction, which was seen by plaintiff’s book-keeper and by one of its directors, a failure to give notice of a want of authority in the cashier within a reasonable time and until, more than six months thereafter, the cashier was discharged and had subsequently become a fugitive from justice, whereby defendant was deprived of his testimony and the opportunity by legal proceedings or moral suasion to protect itself, operated to estop plaintiff to deny such cashier’s authority to have the deposit so applied. Following opinion of Supreme Court on a former appeal, 92 Texas, 436.</p>

<p>1. —Limitations—State.</p> <p>Limitations do not run against the State.</p> <p>2. —Same—Conflicting Boundaries—Actual Possession.</p> <p>Where the boundaries in a deed conflict with an older or superior survey, there must be actual possession under the junior title of the part so in conflict in order for limitation to run in favor of the possession.</p> <p>3. —Same—Ten Years Possession—Character.</p> <p>Possession, in order to give title under the ten years statute of limitation, must be by acts done upon the land such as give unequivocal notice to all persons of a claim to it adverse to the claims of all others, whether the land be inclosed or not.</p> <p>4. —Same—Evidence.</p> <p>See evidence of possession held not sufficient to support title under the ten years statute of limitation.</p>

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

<p>Appeal from the District Court of Gonzales. Tried below before the Hon. M. Kennon. \</p>

<p>1. —Proximate Cause—Railroads—Personal Injury.</p> <p>Where the engineer of a freight train, in violation of the rules of the company, failed to signal on approaching a stopping place, but slowed up without being signaled so to do by the bralceman, thereby causing him to be thrown off his guard so that he did not discover a break in the train until too late to cheek the rear part in time to avoid a collision of the two parts, whereby he was injured, such failure of the engineer to signal was the proximate cause of the injury.</p> <p>2. —Personal Injury—Negligence—Charge.</p> <p>An expression in the charge, in an action for personal injury, which precluded plaintiff from a recovery if guilty of negligence which “contributed to his injury,” would be understood by any jury to mean the same as negligence that “contributed to cause or produce the injury."</p> <p>3. —Same—Contributory Negligence—Evidence.</p> <p>See evidence given by plaintiff and contradictory in character under which it is held that the issue of contributory negligence on plaintiff’s part was nevertheless for the jury.</p> <p>4. —Same—Contributory Negligence.</p> <p>Since men, under stress of circumstances creating a fear of death or serious bodily injury can not usually act with calmness and composed judgment, the party creating such circumstances can not be allowed to plead a lack of judgment on the part of the injured person to excuse the negligence -which created the circumstances, and it is therefore no defense that it may turn out that if the party injured had done differently at the time, or had done nothing, he would have escaped injury.</p>

<p>Appeal from the District Court of Bell. Tried below before Hon. John M. Furman.</p>

<p>Appeal from the County Court of Williamson. Tried below before Cooper Sansom, Esq., Special Judge.</p>

<p>Appeal from the District Court of Bell. Tried below before Hon. Marshall Surratt.</p>

<p>Appeal from the District Court of Caldwell. Tried below before Hon. L. 'W. Moore.</p>

<p>1. —Rewards—Penal Statute Construed—Injury to Telegraph Lines.</p> <p>Under the penal statute making it an offense to willfully obstruct or interfere with the transmission of messages along a telegraph or telephone line, there must be, to constitute an offense, a breaking, cutting, etc., of some wire, post, machinery, or other necessary appliances, so as to interfere with the transmission of messages. Penal Code, art. 784.</p> <p>2. —Same—Construction of Offer—Notice.</p> <p>Where a telephone company offered a reward for the conviction of any person guilty of cutting, pulling, tearing down, or misplacing its wires, posts, etc., or unlawfully obstructing the transmission of messages in violation of art. 784, Penal Code, the company had the right, in an action against it to recover the reward because of the conviction of one for cutting a wire, to plead as a special defense the fact that the wire cut was a dead one, and did not come within the offer, and that plaintiff had personal notice that the reward did not apply to such wires.</p> <p>3. —Same—Officer—Right to Claim Reward.</p> <p>Where a private corporation offers a reward for the arrest and conviction of any one violating a criminal statute, an officer making the arrest in the discharge of his duties is not entitled to recover any part of such reward.</p> <p>4. —Practice on Appeal—Cross-Assignments.</p> <p>A party who has not appealed from the judgment is not entitled to file cross-assignments of error, attacking the judgment as between himself and his coappellees.</p>

<p>1. —Judgment—Default—Setting Aside—Discretion.</p> <p>The setting aside of a judgment by default is a matter resting largely, if not entirely, in the discretion of the trial court, and is rarely reviewed by the appellate courts.</p> <p>2. —Same—Compromise Judgment—Fraudulent Representations.</p> <p>Where the judgment was rendered on a compromise, it will not be set aside as obtained by the fraud and misrepresentations of the defendant as to his title, where the only representations made were those contained in the pleadings, as to the truth or falsity of which plaintiff should have known.</p> <p>3. —Deed—Husband and Wife—Deed to Wife.</p> <p>A deed from the husband to the wife vests the title in her as her separate property without any recital to that effect, or proof of payment from her separate estate.</p> <p>4. —Same—Innocent Purchaser at Execution Sale.</p> <p>Where the purchaser of land at an execution sale made subsequently to a deed by the judgment debtor to his wife does not affirmatively show that he purchased without notice and in good faith, claimants through the wife need only show that the deed to her was sufficient to pass title.</p> <p>5. —Same—Color of Title—Limitation.</p> <p>The three years statute of limitation as to those in possession under color of title does not apply to a purchaser at execution sale after title had passed from the judgment debtor to his wife.</p> <p>6. —Same—Limitation of Five Years.</p> <p>The five years statute of limitation does not apply unless there is a recorded deed and payment of taxes on the land.</p> <p>7. —Same—Ten Years Statute—Possession.</p> <p>Where no muniment of title is of record a party in possession of land can claim only 160 acres by virtue thereof. Rev. Stats., art. 3344.</p> <p>8. —Land Certificate—Location—Merger.</p> <p>Land scrip, when located and the land surveyed, becomes merged in the land, though no patent is issued, and a deed to the land passes the title.</p>

<p>Deed of Trust—Foreclosure—Maturity of Notes—Option.</p> <p>Where plaintiff had given a series of notes secured by deed of trust and providing that in case of default in any payment all the notes might be declared due, and, default having been made at the maturity of the first note, such declaration was made and foreclosure proceedings begun, plaintiff was not entitled to enjoin a sale thereunder upon tender, after the sale was advertised, of the amount due under the first note and the expenses to date.</p>

<p>Appeal from the District Court of Walker. Tried below before Hon. J. M. Smither.</p>

<p>Appeal from the County Court of Lubbock. Tried below before Hon. W. D. Crump.</p>

<p>Married Woman—Separate Property—Gift from Husband.</p> <p>Where the husband, who had insured his life, on the endowment plan, in the wife’s favor, received a sum of money in settlement of the policy which he delivered to the wife, and afterwards his firm borrowed the money from her, executing to her a note therefor, which was paid in part by a conveyance of land to her during the marriage, he and the firm being solvent up to that time, there was a gift of the money to the wife, and the land so conveyed to her was her separate estate, and not liable for the husband’s debts.</p>

Tried below before Hon. R L. Penn. The State brought suit against Mrs. Kempner and others to cancel a patent and receiver land. Plaintiff had judgment and defendant Kempner appealed.

<p>1.—New Trial—Newly Discovered Evidence.</p> <p>Where a new trial is applied for on the grounds of newly discovered evidence, it must be shown that such evidence was discovered since the former trial, and without any lack of diligence; that it is material, and such as would probably change the result upon another trial; and that it is not merely cummulative.</p> <p>%—Same—Judicial Discretion.</p> <p>A motion for new trial upon the ground of newly discovered evidence is addressed to the discretion of the trial court, and unless an abuse of such discretion is shown, its action thereon is not subject to review on appeal.</p> <p>3. —Personal Injuries—Medical Expenses.</p> <p>In order to recover as items of damage for personal injury the expenses necessarily incurred for medical and surgical treatment it is not essential to prove that the money was actually paid, but only that such expenses were actually incurred and were reasonable.</p> <p>4. —Same—Expert Evidence.</p> <p>Where in an action for personal injuries the evidence showed that medical and surgical treatment was rendered necessary, but. did not show what were the charges made therefor, and a physician, testifying as an expert, stated that the services such as were rendered plaintiff were reasonably worth a certain amount, but the hypothetical question to which the statement was an answer assumed a certain operation had been performed, while the evidence failed to show such fact, it was error to submit to the jury as an item of damage the expense incurred for medical treatment.</p> <p>5. —Same—Expert Evidence.</p> <p>Where the evidence showed that a witness was a practicing physician and surgeon, and as such had treated plaintiff and assisted in the operation performed on him for his injuries, and was thoroughly cognizant of their nature, it was competent for him, as an expert, to give his opinion as to the probable duration and effect of such injuries.</p> <p>6. —Same—Mortality Tables,</p> <p>Where the capacity of a party injured to earn money is partially though permanently impaired for life, mortality tables -are admissible for the purpose of determining the amount of damages sustained.</p>

<p>1. —Joint Stock Company—Partnership—Voluntary Association.</p> <p>A joint stock company or voluntary, unincorporated association, composed of a great number of persons whose interests are evidenced by certificates of stock, and which transacts its business through trustees, with prescribed powers, is a partnership, subject to be sued as such, governed by the laws fixing partnership liabilities, as to third parties, and is distinguishable from an ordinary-partnership only in the respect that the death or withdrawal of one or more members does not effect a dissolution, and that the stock can be bought and sold without affecting the integrity of the association.</p> <p>2. —Same—Restricting Personal Liability.</p> <p>Such voluntary association may contract with another so as to exempt the members or partners from personal liability, and to require such other party to look alone to the common holdings of the association, since such contract is not in violation of any rule of law or public policy, and the common law right to so contract is not affected by the statutory provisions prescribing how a limited partnership may be formed. Rev. Stats., arts. 3533-3605.</p> <p>3. —Same—Contract—Lien.</p> <p>Where there is a contract entered into by such voluntary associations which requires the latter to look alone to the common property for indemnity and releases the members from personal liability, this does not necessarily create a lien upon the property of the concern. If the contract evinces a purpose that a lien should exist, but falls short of its creation, the courts will carry out such purpose and declare the lien, if it appears that a lien was intended or promised upon some specific property. See facts held not to authorize the conclusion either that a lien was intended by the parties, or that equity would imply one from the facts.</p>

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

<p>1. —Insolvent Corporation—Contract—Compromise Agreement.</p> <p>Where the largest creditor of an insolvent corporation agreed to advance money to pay off its debts at 35 cents on the dollar, and to take in full satisfaction the property and other assets of the corporation, and the individual notes of two of its stockholders for any deficit which should remain between such creditor’s claim and the amount realized from sale of the property and collection of outstanding obligations, such agreement was a complete defense to an action by such creditor brought against the corporation before the collection of all outstanding claims.</p> <p>2. —Same—Ratification—Individual Notes.</p> <p>Where such compromise agreement was made on behalf of the corporation by two of its stockholders who had the actual management of its affairs, and the corporation ratified and complied with its terms, it became the agreement of the corporation, binding on both parties, and the fact that it contemplated the giving of the individual notes of two of the stockholders in final settlement did not affect its validity.</p> <p>3. —Practice—Exclusion of Evidence—Harmless Error.</p> <p>Where the action of the court in excluding certain evidence could not have operated to the injury of appellant, the error, if any, is harmless.</p>

<p>1. —Guardian and Ward—Bond of Guardian—Amount.</p> <p>Where a guardian’s bond is made in double the amount of the value of the ward’s estate as shown by the inventory and estimate of the court, it is sufficient, although it is not in double the amount of the estimated value of such estate as set out in the application for letters of guardianship, since such latter estimate is not binding on the court. Rev. Stats., art. 2600.</p> <p>2. —Same—Oath—Sale of Lands.</p> <p>A sale of land made by a guardian under order of the court can not be avoided on the ground that the oath of the guardian describes him as “guardian,” without also reciting “of the person and estate,” where the application, the appointment and the bond of the guardian all show that he is guardian of the person and estate of the ward, and the oath is on the same paper with the bond, and is otherwise sufficient.</p> <p>3. —Same—Irregularities in Sale.</p> <p>Where an order for a guardian’s sale of lands of the ward did not mention the time and place of the sale, as required by law for a public sale, but was treated by both the guardian and the court as an order for a private sale, such irregularity did not render the sale void and subject to collateral attack.</p> <p>4. —Same—Confirmation.</p> <p>The making of the order of confirmation of a guardian’s sale before the expiration of the five days which the statute provides shall intervene between the filing of the report of sale and action thereon, is' an irregularity such as does not render the sale void.</p> <p>5. —Same—Partition of Lands—Probate Court.</p> <p>Although the probate court is without jurisdiction to partition lands belonging to the estate of minors, yet where, on the application of a guardian, it made a partition of such lands between the ward and others by which a tract of land was set aside to the ward more than equal in value to his interest in the entire property, and thereafter ordered the land sold, and confirmed the sale by the guardian, the ward’s estate receiving the proceeds from the sale, which was double the value of his interest in the entire property, neither the partition nor the sale could be set aside by the ward in an action against innocent purchasers for value, the partition appearing to have been made in good faith, and to have been acquiesced in for more than 20 years.</p>

<p>Appeal from the District Court of San Jacinto. Tried below before Hon. L. B. Hightower.</p>

<p>Appeal from the District Court of Brazos. Tried below before Hon. J. C. Scott.</p>

<p>Public Schools—Independent District—Election of Trustees.</p> <p>The Act of February 21, 1900, providing for an election to incorporate a town included in a public school district for school purposes only as an independent district, requires, by section 10 thereof, that trustees for the new district shall be elected at the same election at which the question of incorporation is voted on. Gen. Laws 1900, p. 18.</p>

<p>Pleading—Exceptions to Citation—Waiver—Jurisdiction.</p> <p>Where defendants filed exceptions to the citation and an answer to the merits at the same time, it was error to sustain a motion by plaintiff to strike out the exceptions on the ground that they had been waived by the filing of the answer, since the statute permits the pleading of as many several" matters of defense as may be deemed necessary, provided they are filed “at the same time and in due order of pleading.” Rev. Stats., art. 1262.</p>

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

<p>Appeal from the District Court of Palo Pinto. Tried below before J. B. Keth, Esq., Special Judge.</p>

<p>1. —Homestead—Abandonment.</p> <p>Where the owner of a business homestead conveyed it to another and also his stock of goods to a third party and entirely ceased to do business, there was an abandonment of the homestead right in the property.</p> <p>2. —Registration of Deed—Notice—Attachment Lien.</p> <p>Where a purchaser of land failed to record his deed for three days, and until after a writ of attachment in a creditor’s suit against his grantor had been levied on the property, the lien thereby acquired was the superior right. Eev. Stats., art. 4640.</p>

<p>Judgment Lien—Failure to Issue Execution—Diligence.</p> <p>A money judgment was rendered in H. County in favor of a bank against E. and H. upon a note, and in favor of certain other defendants upon their pleas to the jurisdiction, and ten days afterwards an abstract of the judgment was duly filed in T. County so as to fix a lien. Thereafter the plaintiff bank appealed from the judgment, the only error it assigned being as to the action of the court in sustaining the pleas to the jurisdiction. The judgment was affirmed, the court holding incidentally that there was no appeal from the judgment against E. and H., and execution was issued to H. County within a year from the affirmance and receipt of the mandate, but more than three years after the date of the original judgment. Alias execution to T. County did not issue until more than a year after the date of such first execution. Held, that the lien created on land in T. County by the record of the judgment there was lost by reason of failure to use diligence, as required by the statute, in having executions issued on the judgment. Rev. Stats., arts, 3289, 3290.</p>

<p>1. —Judgment—Joint Defendants—Payment—Contribution.</p> <p>Where a judgment against three joint makers of a note is paid off in full by one of them, who takes an assignment thereof to himself, the judgment is thereby extinguished, whatever may have been the intention of the parties as to keeping it alive by such assignment, and it will not support an execution issued in favor of such purchaser to enforce contribution against his coobligors.</p> <p>2. —Execution Sale—Enjoining—Damages—Profits—Pleading.</p> <p>In an action to enjoin an execution sale and for damages, an allegation that the levy on plaintiff’s saloon had injured his trade and business was sufficient to warrant a charge submitting the profits lost as the measure of damages, in the absence of any special exception to the pleading.</p> <p>3. —Same—Attorney Fees—Vindictive Damages.</p> <p>Where in such action vindictive damages were claimed for the wrongful levy, and the proof showed that plaintiff had been compelled to employ two firms of attorneys and to make four trips from Sherman to Gainesville, and the item allowed by the jury for such fees -was admitted before them to be reasonable in amount, this warranted the allowance as against the objection that the proof did not show that plaintiff had paid or would be compelled to pay such amount to his attorneys.</p> <p>4. —Same—Pleadings and Verdict Warranting Judgment.</p> <p>Where in such action plaintiff’s petition, in which he claimed certain damages, alleged that the judgment on which the execution issued had been paid off and satisfied in full, with prayer that the injunction be made perpetual and for general relief, and the verdict merely found for the damages claimed, such verdict, under a charge instructing that the undisputed facts showed that the judgment had been paid off and extinguished, imported a finding to that effect, and warranted a decree perpetually enjoining it.</p>

<p>• Appeal from the District Court of Bowie. Tried below before Hon. J. M. Talbot.</p>

<p>1. —Contract—Mental Incapacity—Burden of Proof.</p> <p>The law presumes all persons to be of sound mind and capable of contracting, and where a contract is assailed on the ground of mental incapacity of one of the parties, the burden is upon the opposite party to show such incapacity.</p> <p>2. —Same—Opinion of Sanity—Nonexpert Witness.</p> <p>A nonexpert witness is only permitted to give his opinion as to the sanity or insaniay of a person, whose mental condition at a particular time is in issue, when such witness states the facts upon which his opinion is based, and the weight of such opinion is always for the jury.</p> <p>3. —Same—Verdict Sustained—Fact Case.</p> <p>A verdict finding that a person was of sound mind at the time he made a contract will not be set aside unless incapacity is the only reasonable conclusion to be drawn from the facts, or the verdict is against the great weight and preponderance of the evidence. See evidence held to sustain a finding that a person was not so mentally incapacitated as to render his contract void.</p> <p>4. —Judgment—Wrong Reason Therefor.</p> <p>It is immaterial that the trial court gives an unsound reason for its judgment, where the judgment can be sustained upon the facts found by the court.</p>

<p>Appeal from the District Court of Caldwell. Tried below before Hon. L. W. Moore.</p>

<p>1. —Garnishment—Bankruptcy Proceedings—Judgment—Appeal.</p> <p>Where plaintiff, pending his action in a State court by garnishment, instituted a proceeding in bankruptcy in the Federal district court against the debtor to have him declared a bankrupt, in which such adjudication was refused, a judgment rendered by the State court after ten days from such d'ecree in bankruptcy and before an appeal therefrom was taken, was not premature, although thereafter an appeal was taken upon the order of the Federal judge allowing ninety days to perfect the appeal,—such appeal having been after-wards dismissed.</p> <p>2. —Same—Garnishment Lien.</p> <p>A garnishment lien 'acquired within four months before the filing of a petition in bankruptcy against the debtor is not dissolved where the bankruptcy court refuses to adjudicate the debtor a bankrupt. Bankrupt Act of 1898, sec. 67c.</p> <p>3. —Same—Dissolution of Lien.</p> <p>Where an action by garnishment was begun against a debtor within four months before the filing of a petition in bankruptcy against him, the garnishment was not dissolved by the mere filing of such petition in bankruptcy, and where the court refused to adjudicate the debtor a bankrupt, the garnishment remained in force.</p> <p>4. —Same—W aiver—Abandonment.</p> <p>Although the garnishment creditor filed a plea in the bankruptcy proceedings waiving and relinquishing for the benefit of all creditors all lien and preference acquired by virtue of the garnishment, yet as the Federal court finally refuse to adjudge the debtor a bankrupt, such waiver was not an abandonment of the garnishment, as it contemplated the prosecution of the suit, but admitted the creditors to share without preference to plaintiff.</p>

<p>1. —Pleading and Charge—Issue Not Raised—Injury to Passenger.</p> <p>Where plaintiff’s petition alleged that defendant’s ticket office was not open until the arrival of the train, and that upon its arrival she hastened at once to the train, leaving her daughter to get the tickets, and began to ascend the steps of the car, but that before she reached the platform and before the train had remained stopped a sufficient length of time, it was suddenly started with a jerk, causing her injury, such failure of the train to stop long enough was the only issue of negligence presented, and it was error for the charge to submit, as a distinct basis of liability, the failure to open the ticket office sooner.</p> <p>2. —Same.</p> <p>The court having submitted an issue of negligence not pleaded as a basis of recovery, the judgment should not be affirmed upon the ground that the defendant asked charges restricting the effect of evidence, where such requested charges did not show that such negligence not alleged was regarded as presenting a distinct basis of recovery.</p>

<p>Appeal from District Court of Hardin. Tried below before Hon L. B. Hightower.</p>

<p>Appeal from the County Court of Armstrong. Tried below before Hon. Q. Mopre.</p>

<p>Appeal from the District Court of Fannin. Tried below before Hon. Ben H. Denton.</p>

<p>Appeal from the District Court of Grayson. Tried below before Hon. Rice Maxey.</p>

<p>Appeal from the District Court of Harris. Tried below before Hon. Wm. H. Wilson.</p>

<p>1. —Purchase from Agent—Notice—Valuable Consideration.</p> <p>One who has entrusted personal property to an agent with power to sell may recover it, or damages for its conversion, from one who bought of the agent without notice of the principal’s rights, where the "only consideration of such sale was a previous indebtedness of the agent to the purchaser.</p> <p>2. —Practice , on Appeal—Remand.</p> <p>Reversing a judgment for defendant in a suit for conversion of personal property, the appellate court will remand, and not render, where the evidence leaves a question as to the value of the property or the damages for its detention in any doubt.</p>

<p>1. —Carriers of Freight—Live Stock Shipment—Connecting Lines—Measure of Damages.</p> <p>Where plaintiff sued two connecting railways for damages from delay, etc., in the transportation of cattle, and the charge limited the liability of each to negligence occurring on its own line, without reference to a third road not sued, on whose line part of the delay occurred, it was not on that account erroneous as to the measure of damages as permitting the jury to assess damages against the two companies sued that in fact occurred on all three of the lines.</p> <p>2. —Same—Harmless Error.</p> <p>The evidence showing that the delay on such third line could not have injured the cattle or affected their market price, the charge as given could not have been prejudicial to defendants.</p> <p>3. —Same—Charge—Undue Prominence.</p> <p>The court having charged that each defendant could be held liable only for its own negligence, a reference in the charge to the fact, pleaded by plaintiff, that the train broke in two on one of the lines and ran together, injuring the cattle, was not error as giving undue prominence to such fact and tending to minimize the injuries on the other line.</p> <p>4. —Same—Joint Contract—Common Law Liability.</p> <p>Where the suit was against connecting carriers for injuries to cattle occurring on a through shipment, and plaintiff in his evidence expressly repudiated any averment in his petition declaring upon a joint contract for the delivery of the cattle at destination, and no such issue was submitted to the jury, but only those arising from defendants’ common law liability, the court properly refused a peremptory instruction to find for one of the defendants based on the ground that plaintiff had declared upon a joint contract which was not proved.</p> <p>5. —Same—Issue for Jury—Conflicting Evidence.</p> <p>Although plaintiff, who was unacquainted with the distance, testified that the connecting carrier could not have delivered the cattle at the time agreed, having received them from the other line so late, yet as one of defendants’ witnesses testified to facts tending to show that this could have been done, the issue so raised was one for the jury.</p> <p>6. —Evidence—Market Value—Objection.</p> <p>Where an objection to the evidence of a witness as to a fall in the market price went to the whole of such evidence, and at least a part, of it was admissible, there was no error in overruling the objection.</p>

<p>1. —Attorney Fees as Actual Damages.</p> <p>Attorney fees, in actions for conversion, are not recoverable in this State as actual damages.</p> <p>2. —Conversion—Value—Charge.</p> <p>Where in an action for the conversion of cotton the evidence»was conflicting as to its value, no witness placing the value as high as alleged in the pleading, a charge that if the jury found that defendant did convert the cotton, they should find for plaintiff in any sum not to exceed the amount prayed for by plaintiff, was erroneous.</p> <p>3. —Same—Exemplary Damages—Charge.</p> <p>Where in such action exemplary damages were also claimed, the charge should have required the jury either to find the facts alleged as the basis for that recovery, or else to find against plaintiff on that issue.</p>

<p>Appeal from the County Court of Falls. Tried below before Hon. W. E. Hunnieutt.</p> <p>Lenoir sued Parazette and Jim Stewart, continued as to the latter, and had judgment against Parazette Stewart, who appealed.</p>

<p>1. —Insurance—Avoidance by Incumbrance.</p> <p>A fire insurance policy covering a house and certain personal property and stipulating that “this entire policy shall be void if the subject of insurance or any part thereof be or become incumbered by mortgage or otherwise” was made void by the existence of a vendor’s lien on the land on which the house stood antedating the construction of the house. Bills v. Insurance Co., 87 Texas, 547, distinguished.</p> <p>2. —Same—Waiver—Proofs of Loss.</p> <p>The fact that insured and the adjuster of insurer together prepared proofs of loss on blanks furnished by the latter and negotiated about a settlement at a reduced figure without reaching an agreement, constituted no evidence to warrant a submission of the issue of waiver by insurer of the clause avoiding the policy by reason of the existence of an incumbrance, where such proofs of loss stipulated that the furnishing blanks therefor and making up proofs by an agent of insurer should not waive any of his rights.</p>

<p>Appeal from the District Court of Galveston. Tried below before Hon. William H. Stewart.</p>

<p>Appeal from the District Court of Ellis. Tried below before Hon. • J. E. Dillard.</p>

<p>1. —Action for Death—Pleading—Negligence.</p> <p>In action of damages for causing death a petition is sufficiently specific as to the negligence charged where it alleges that the deceased, while a passenger on defendant’s train, was killed by reason of the derailment of the train, caused by the negligence of the servants in charge thereof.</p> <p>2. —Same—Posthumous Child.</p> <p>Where a posthumous child sues for damages sustained through negligence causing his father’s death, the fact that his mother and the other children have already recovered for the damages they sustained by the death can not defeat plaintiff’s right of recovery, but may he shown by the defendant as bearing on the extent of the present recovery.</p>

<p>Appeal from the County Court of De Witt. Tried below before Hon. C. A. Summers.</p>

<p>Adverse Possession—Inclosure by Stream—Charge Without Evidence.</p> <p>Where in trespass to try title the defendant pleaded limitation and adverse possession by inclosure, and the court charged that if the land was inclosed by fences on three sides, and that a bayou on the fourth side was a stream of such nature and depth as to constitute a barrier, there was such an inclosure as would satisfy the statute, such charge was reversible error in the absence of any evidence as to the nature and size of the stream.</p>

<p>Appeal from the District Court of Galveston. Tried below before Hon. William H. Stewart.</p>

<p>1. —Railroads—Fellow Servants—“Car” Defined.</p> <p>A push car used by a railroad in carrying rock down an inclined plane to a crusher to be there made into ballast for the track, is a car within the fellow servants statute .making corporations, etc., engaged in operating a railroad liable for damages sustained by any servant, while engaged in operating their cars, locomotives or trains, although the injury may result from the negligence of a fellow servant. Rev. Stats., art. 4650f.</p> <p>2. —Same—Operating Car.</p> <p>Within the meaning of that statute plaintiff was “operating” the push car where his employment was for the purpose of loading the ear with rock, then mounting it and regulating its speed with brakes down to the crusher, unloading jit there and returning with it again, although he was hurt in loading the ear while it was standing still.</p>

<p>Appeal from the District Court of Colorado. Tried below before Hon. M. Kennon.</p>

<p>Accident Insurance—Exempting Clause—Involuntary Taking of Poison.</p> <p>A clause in an accident policy stipulating that the insurance does not cover an accident or death resulting wholly or partially from the “voluntary or involuntary” taking of poison, exempts the insurer where the death of the insured results from the taging of a dose of poisonous medicine through mistake, as the term “involuntary,” as used in the policy, is not restricted to an act forced on the insured, but properly includes acts not intentionally done.</p>

<p>Appeal from the District Court of Denton. Trial below before Hon. Ben H. Denton.</p>

<p>1. —Practice on Appeal—Piling Briefs.</p> <p>Where appellant’s brief was filed in the trial court after filing the transcript on appeal and only thirteen days before the time for submission, since appellee was thereby deprived of a substantial right, the appeal should be dismissed.</p> <p>2. —Same—Diligence.</p> <p>Affidavit to excuse failure to file briefs in time held too indefinite and uncertain.</p>

Tried below before Hon. J. W. Timmins. Mayes sued Irwin & Sanders in trespass to try title and recovered judgment, from which defendants appealed.

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

<p>1. —Conditional Sale—Delivery—Title—Waiver.</p> <p>Plaintiff sold furniture to defendant for cash on delivery, defendant making a part payment on account at the time, and the furniture was delivered from time to time. Before the delivery was completed plaintiff left the city, instructing his clerk to complete the delivery and collect the purchase money, and upon his return, finding that the money had not been paid when the furniture was delivered at once demanded payment, and defendant being unable to pay, the sale was changed into one on credit, at an added price, with notes and a chattel mortgage on the furniture. Held, that such delivery was not a waiver of the requirement of a cash payment, and the title did not pass until the execution of the mortgage.</p> <p>2. —Chattel Mortgage—Registration “Forthwith”—Landlord’s Lien.</p> <p>A chattel mortgage on furniture sold to a tenant was executed on Saturday at 2 p. m., and the mortgagee, between that time and 5 o’clock, passed by the county clerk’s office, but failed to file the mortgage until the following Monday. Held that, as against the landlord’s lien, there was not a filing of the mortgage “forthwith,” as required by the registry statute, and the seller’s lien was subordinate to that of the landlord. Rev. Stats., art. 3328.</p>

<p>Error from the District Court of Harris. Tried below before Hon. William H. Wilson.</p>

<p>Appeal from the County Court of Nueces. Tried below before Hon. W. B. Hopkins.</p>

<p>1. —Conditional Sale—Default in Payment—Retaking Possession.</p> <p>Where a contract for the sale of a sewing machine stipulated that the title was to remain in the seller until payment in full of the price, and reserved the right to retake possesion on default without resort to the courts, the seller had the right, where default was made in payment, to resume, possession of the machine, and was not liable for conversion in so doing.</p> <p>2. —Same—Charges for Repair.</p> <p>Where repairs are made on a machine at the owner’s request, the person making them has the right to retain possession of the machine until payment of the charges.</p>

<p>1. —Severance—Trial—Judicial Discretion.</p> <p>The matter of a severance in the trial is one within the discretion of the court, and unless an abuse of its discretion it shown, operating to the injury of the complainant, its action in refusing a severance will not be reviewed on appeal.</p> <p>2. —Trial—Postponement—Harmless Error.</p> <p>Complaint of the action of the court below in granting a postponement of the trial is unavailing where it is not shown that any injury resulted therefrom.</p> <p>3. —Evidence—Plat of Survey.</p> <p>A plat showing surveys of land is not admissible as independent evidence of the surveys where it is authenticated only by the testimony of a witness who was not a surveyor, had made no survey of the land, and did not make the plat, though he testified that he was familiar with the land, was with the surveyor who made the survey, and knew the plat was correct.</p> <p>4. —Same—Trial by Court—Improper Evidence.</p> <p>Where the trial is by the court without a jury, the improper admission of evidence is not sufficient ground for reversing the judgment.</p> <p>5. —Limitations—Ten Years’ Possession.</p> <p>Where defendant had acquired title to the land by virtue of possession for ten years, plaintiff, who formerly held the legal title, could not upon his subsequent entry and possession claim under the three and Vfive years statutes of limitations,—nothing short of ten years possession being' sufficient to re-invert him with the title.</p> <p>6.—Appeal—Cross-Assignment—Jurisdiction.</p> <p>Where the plaintiff recovers against several defendants and only one of them appeals, the appellate court has not jurisdiction to consider a cross-assignment by the other defendants seeking a reversal of plaintiff’s judgment as against them.</p> <p>7.—Same—Clerical Error—Certiorari.</p> <p>The appellate court will not correct a probable clerical error in the transcript, the proper remedy being by certiorari to perfect the record.</p>

<p>Appeal from the 'District Court of Mitchell. Tried below before Hon. W. R. Smith.</p>

<p>Appeal from the District Court of Eastland. Tried below before Hon. N. B. Lindsey.</p>

<p>1. —Trespass to Try Title—Land Certificate—Identity of Grantee.</p> <p>Where a headright issued in 1839 to the heirs of J. A. recited proof by his administrators that he came to Texas prior to 1835, was married and the head of a family, and patent issued therein in 1848 to his heirs, under whom plaintiffs claim, this was sufficient to support if not compel a finding that this was not the J. A. who was the ancestor of defendants, in whose name no claim to the land or the certificate was made until 1900, who did not die until 1857, and as to the date of whose coming to Texas the evidence is uncertain.</p> <p>2. —Same—Ancient Instrument—Power Presumed.</p> <p>Where a bond for title executed in 1840 recited that the makers purported to act in an administrative capacity j their power to so act will be presumed after so great a lapse of time.</p> <p>3. —Same—Deed—Description—Misrecital.</p> <p>Where a deed recited that the grantor, who is shown to have had title to a J. A. league survey in B. County, thereby conveyed an interest in the J. A. one-fourth league survey in B. County, there being no such one-fourth league survey there, this will be held a misrecital, the subsequent conveyances purporting to convey the land as part of the J. A. league survey.</p> <p>4. —Same—Proof of Certificate—Presumptions on Appeal.</p> <p>It will be presumed on appeal in support of the judgment in plaintiffs’ favor that the land in controversy, the J. A. league survey, was located and patented under a certificate making recital of proof by the administrators of J. A., where the record shows that plaintiffs introduced such certificate in evidence without objection, and introduced no other certificate, and their brief recites that they introduced in evidence the original certificate on which the patent issued.</p> <p>5. —Same—Cross-Action—Possession—Burden.</p> <p>Where plaintiffs sued to remove cloud from title, and defendants presented a cross-plea, in effect an action of trespass to try title, alleging ownership and ouster, the action became in effect one of trespass to try title wherein plaintiffs’ long possession under recorded deed, with payment of taxes, entitled them to judgment for the land unless defendants proved a better title.</p>

<p>Appeal from the District Court of Dallas. Tried below before Hon. T. F. Hash.</p>

<p>Appeal from the County Court of Hill. ' Tried below before Hon. L. C. Hill.</p>

<p>Appeal from District Court of Jefferson. Tried below before Hon. J. D. Martin.</p>

<p>1. —Eminent Domain—Railroads.</p> <p>The discretion of a railway company as to the land it may select for right of way and depot grounds is absolute, and where, in condemnation proceedings, the sole issue is the market value of the property, evidence that the company owned other adjacent property equally as suitable for the purpose was not admissible.</p> <p>2. —Same—Market Value—Homestead.</p> <p>Where the land sought to be condemned for depot purposes is shown to have a market value, evidence was not admissible to show that it was the homestead of the owner, and had been for years, and for that reason had a peculiar value to him.</p>

<p>1. —Set-Off—Contract of Agency—Insurance.</p> <p>Where an insurance company sued its agents for moneys collected by them on policies under a contract of agency, defendants were entitled to plead in set-off a specific sum of money paid by them to plaintiff in consideration of its further contract, made subsequent to the original, but during its existence, to enlarge its line of business so as to include additional kinds of property, which contract plaintiff had wholly failed to perform,—such new contract being merely an enlargement of the original, and the two transactions being so related as to authorize even the set-off of an unliquidated demand.</p> <p>2. —Same—Equitable Grounds of Set-Off.</p> <p>Under defendants’ allegations of the nonresidence of plaintiff and of a total lack of remedy in case the set-off be not allowed, it seems that it should have been allowed, even if the contracts were entirely separate and distinct.</p>

<p>Appeal from the District Court of Fayette. Tried helow before Hon. L. W. Moore.</p>

Tried below before Hon. R. P. Conner. Butler and others sued the railway companies and recovered judgment, from which defendant appealed.

Error from the District Court of Tom Green. Tried below before Hon. J. W. Timmins. Mrs. Cornicle and others prosecute writ of error from a judgment for defendants in their suit against Arthur and others.

<p>Garnishment After Judgment—Judicial Notice.</p> <p>A. proceeding to obtain garnishment after judgment is ancillary to the main suit, and, as the court takes judicial notice of the proceedings therein, it is unnecessary to show in the application that judgment was rendered against the defendant against whom garnishment is sought.</p>

<p>Appeal from the District Court of Brown. Tried below before Hon. John W. Goodwin.</p> <p>Mrs. Thompson appeals from a judgment for defendant in a suit brought by her against the railway company.</p>

<p>Appeal from the District Court of Webb. Tried below before Hon. A. S. McLane.</p>

<p>Appeal from the District Court of Dallas. Tried below before Hon. Richard Morgan.</p>

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

<p>1. —County Convicts—Hiring Bond—Inhuman Treatment.</p> <p>Under the statute providing that hirers of county convicts shall execute bond to the county in the amount of hire agreed-on, conditioned that the hirer will pay, when due, all moneys becoming due under the contract of hire, and also that he will treat the convicts humanely, etc., the county can recover on the bond only for failure to pay the hire agreed on, and not for breach of the covenant to treat the convicts humanely. Rev. Stats., art. 3745.</p> <p>2. —Same—Common Law Obligation—Damages.</p> <p>Even if such bond could be treated as a common law obligation, so as to permit a recovery thereon for breach of the condition as to humane treatment, the amount of the recovery would be limited to the actual damages resulting to the county, since the sum named in the bond is not liquidated damages or a penalty fixed by the statute for a breach.</p>

<p>1. —Railroads—Personal Injury to Child—Contributory Negligence—License.</p> <p>A child of six years is too young to be chargeable with contributory negligence in going upon cars in a railroad yard habitually used by the children of the neighborhood as a playground, nor is it necessary, in order to charge the railway company with negligence, that the child should be on the premises as a licensee.</p> <p>2. —Same—Avoidance of Injury—Ordinary Care.</p> <p>Where children habitually played in and about a switch yard and the care therein, with the knowledge and acquiescence of the railway company and its employes, it was the duty of such employes in the movement of the cars, to use ordinary care to discover the presence of a child there and to avoid injuring him.</p>

<p>Appeal from the District Court of Wise. Tried below before Hon. J. W. Patterson.</p>

<p>1. —Landlord and Tenant—Attornment.</p> <p>Where the lessor was not a party to a foreclosure suit, a foreclosure sale of the land therein did not, as between him and the lessee, terminate the lease, nor justify the lessee in attorning to the .purchaser at such sale.</p> <p>2. —Same—Lessor Selling Title in Part.</p> <p>Where plaintiff purchased land at a foreclosure sale, and after leasing it to .a tenant, again purchased it at a sheriff’s sale for taxes claimed against a third party, a deed subsequently made by him, and conveying only such title as he acquired by the first sale did not pass his title acquired at the second sale, and the tenant could not question such title, or attorn to another.</p>

<p>1. —Public Road—Injury to, by Railroad—Suit by County.</p> <p>Where a railway company appropriates part of a public road for its track, the eounty may maintain ’ a suit for the damages thus occasioned.</p> <p>2. —Same—Measure of Damages.</p> <p>Where a railroad made use of part of a public road for its tracks, but constructed a new road near to and parallel with the part so occupied, the measure of damages was the amount required to put such new road in as good condition as was the road before such appropriation.</p> <p>3. —Same—Evidence Too Remote in Time.</p> <p>Testimony was not admissible to show the condition of the public road long before the construction there of the railroad, nor the condition of the new yoad long after its completion.</p> <p>4. —Same—Evidence—Pleading Requisite—Charge.</p> <p>Where evidence was admitted showing that the railroad had made excavations near the new road since its construction, but there was no pleading authorizing it, it was error for the court to refuse a charge that no damages could be allowed on that account.</p>

<p>Appeal from the District Court of Fannin. Tried below before Hon. Ben H. Denton.</p>

<p>Appeal from the District Court of Jefferson. Tried below before Hon. J. D. Martin.</p>

<p>Appeal from the District Court of Hamilton. Tried below before Hon. W. J. Oxford.</p> <p>Sawyer sued Cooper & Company and others and recovered damages, and defendants appealed.</p>

<p>Appeal from the District Court of Williamson. Tried below before Hon. F. G. Morris.</p> <p>The city of Georgetown sued Jones, and appealed from a judgment for defendant.</p>

Error from the District Court of Travis. Tried below before Hon. F. G. Morris. Amelia Hall and husband sued the city of Austin, and appealed from a judgment dismissing the case.

<p>'1.—Evidence—Execution of Instrument.</p> <p>Evidence considered and held sufficient to establish the execution of "several instruments constituting, together, a bond of indemnity to secure the faithful discharge of duty by an employe of a railway.</p> <p>2.—Surety Company—Penalty.</p> <p>An action under the statute (Acts of 1897, chap. 165, sec. 10, p. 246) to recover the penalty imposed thereby upon a surety company for failing to furnish a statement of reasons for its refusal to again guaranty the fidelity of a person for whom it has once acted as surety can not be maintained where the proof shows that it did make such contract of guaranty, but afterwards withdrew from it, the refusal to guaranty and withdrawal from a guaranty given being distinguished in the statute.</p>

<p>Appeal from the District Court of Lamar. Tried below before Hon. Ben H. Denton.</p>

<p>Appeal from the District Court of Dallas. Tried below before Hon. Bichard Morgan.</p>

<p>Appeal from the District Court of Colorado. Tried below before Hon. M. Kennon.</p>

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

<p>Appeal from the District Court of Shelby. Tried below before Hon. Tom 0. Davis.</p>

<p>Appeal from the District Court of Bosque. Tried below before Hon. Wm. Poindexter.</p>

<p>1. —Trial—Charge Controlling Evidence.</p> <p>The improper admission of evidence held not to present reversible error where the charge in effect excluded it from the consideration of the jury.</p> <p>2. —Carrier of Passengers on Freight Train—Negligence.</p> <p>It was not error for the court, in an action for negligent injury to plaintiff while a passenger on a freight train, to refuse a requested charge to the effect that if plaintiff stood up in the caboose without holding on to anything at the time the train was being, to his knowledge, backed against the caboose for a coupling, and that a man of ordinary prudence and care would not have done so, the jury should find for defendant, since the defendant would not be so entitled to a verdict unless such negligence on plaintiff’s part was the cause in whole or in part of his injury.</p> <p>3. —Same—Contributory Negligence—Charge.</p> <p>It was not error for the charge to submit whether or not plaintiff’s negligence in so standing up contributed to his "injury, since, if the shock in coupling was of unexpected and extraordinary violence, plaintiff’s failure to take hold Of something in anticipation of the usual jolt could not properly be regarded as a concurring or contributing cause of his injury.</p> <p>4. —Same—Degree of Care—Freight Train for Passengers.</p> <p>It is the duty of a railway company in transporting passengers to use such degree of care, prudence and foresight as would be used by very cautious, prudent and competent persons under similar circumstances, and that a freight train is employed in such transportation does not change the rule.</p> <p>5. —Contributory Negligence—Burden of Proof.</p> <p>In an action for personal injury the burden of proving contributory negligence is on the party pleading it.</p>

<p>Appeal from the District Court of Montague. Tried below before Hon. D. E. Barrett.</p>

<p>Appeal from the District Court of Montague. Tried below before Hon. D. E. Barrett.</p>

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

<p>1. —Liquor Dealer’s Bond—Dismissal—Insolvent Partner.</p> <p>Where a partnership had executed a liquor dealer’s bond, and suit was brought thereon against the partnership, the individual members thereof and the surety, a dismissal as to one of the partners not served was not prejudicial where the evidence on the trial of the cause showed that he was , notoriously insolvent and a nonresident of the State.</p> <p>2. —Citation—Stating Nature of Demand,</p> <p>Where the citation had attached to it a copy of plaintiff’s petition which was made a part thereof by reference, and the whole duly served on defendant, a mere want of fullness in the citation in stating the nature of plaintiff’s demand could not have operated prejudicially.</p> <p>3. —Liquor Dealer’s Bond—Agency—Charge.</p> <p>In an action on a liquor dealer’s bond, where the evidence showed without doubt that the sales complained of were made by parties for whose acts the defendants were liable, it was not necessary that the charge should define the terms “agency” and “employe.”</p> <p>4. —Same—Dismissal of Partner—Judgment Against Partnership and Surety.</p> <p>In such action against a partnership and a surety on its bond, it was proper to dismiss as to one of the partners in his individual capacity, he being insolvent and a nonresident, and to render judgment against the firm and the surety. Rev. Stats., arts. 1204, 1224, 125G, 1257, 1259, 1347, construed.</p> <p>5. —Same—Continuance.</p> <p>It was not prejudicial error to refuse to continue the case in order to obtain service on the insolvent partner.</p>

<p>Appeal from the District Court of Harris. Tried below before Hon. Chas. E. Ashe.</p>

<p>Appeal from the District Court of Liberty. Tried below before Hon. L. B. Hightower.</p>

<p>Error from the District Court of Mills. Tried below before Hon. John W. Goodwin.</p>