Volume 32 — Texas Civil Appeals Reports

<p>Appeal from the District Court of Tarrant. Tried below before Hon. Irby Dunklin.</p>

<p>Benefit Society—Change of Beneficiary—Custom—Ho tice.</p> <p>An unincorporated mutual benefit society had no provision in its constitution or by-laws for making a change in the beneficiary originally secured by its certificate; but it had been the custom since its organization to permit a member to make such change by indorsement on the application. A wife taking insurance for the benefit of her husband, after divorce, so changed the benefit to her brothers and sisters without the consent of the original beneficiary. Held, that, in the absence of evidence that the custom was or was not known to the husband and wife when the benefit was secured, it might be presumed that’ it was known and that the parties contracted with a view to it, and the divorced husband could not recover the benefit on her death.</p>

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

<p>Appeal Bond—Approval by Judge—Injunction.</p> <p>Upon an appeal from an order of the district court appointing a receiver the judge may fix the amount of the bond, but its approval must be by the clerk; the judge has no power to approve the bond or to entertain a motion to expunge the clerk’s approval therefrom, and an injunction from the Court of Civil Appeals will lie to restrain such action.</p>

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

<p>1. —Briefs—Proposition—Refusal of Charges.</p> <p>A proposition in appellant’s brief urging error in the refusal to give certain special charges on its face fails to affirmatively show error where it fails to show that such special charges were not sufficiently comprehended in the charge given by the court.</p> <p>2. —Carrier of Passengers—Injury in Alighting from Train.</p> <p>The court properly refused a requested charge that, if defendant’s train stopped at the station a reasonable and sufficient length of time for plaintiff’s wife to have walked off before it started, had she acted with such diligence and promptness as a person of ordinary prudence would have exercised under the same circumstances', the jury should find for defendant, where such charge ignored an issue made by the pleadings and evidence of negligence on defendant’s part in failing to have any one in attendance to assist the wife in alighting from the train.</p> <p>3. —Same—Contributory Negligence.</p> <p>It is extending the doctrine of contributory negligence to great lengths to hold that the issue is raised by the mere fact that a passenger, who is a woman of ordinary strength, undertakes to carry her grip, weighing perhaps sixty pounds, along with her at the time of leaving the train, there being no porter offering to assist her or present within call.</p> <p>4. —Same—Warning—Harmless Error.</p> <p>It was harmless error to refuse a requested charge that if the wife was warned by a bystander not to get off the train, but she did so, and acted thereby as a person of ordinary prudence would not have done, the verdict should be for defendant, where the evidence showed that the warning, if heard by the wife, was not in time to enable her to grasp its import and act thereon.</p> <p>5. —Same—Usual Time of Stopping Not Sufficient.</p> <p>It is the duty of a railway company to give its passengers such reasonable time as will enable them to alight from the train at their destination under the usual and ordinary circumstances, whether or not the train be stopped the usual length of time.</p> <p>6. —Same—Contributory Negligence—Charge.</p> <p>A charge that if the wife, in attempting to get off the train, failed to exercise ordinary care, “and thereby contributed to her fall” (instead of to her injury), the verdict should be for defendant, was not prejudicial error as limiting the jury to finding that such negligence contributed to the fall, where plaintiff’s petition alleged that the injuries were the result of the fall, and the charge as a whole instructed that if the wife’s negligence contributed to her injuries the jury should find for defendant, and the evidence established that she was not guilty of contributory negligence.</p> <p>7. —Personal Injuries—Evidence—Value of Wife’s Services—Opinion.</p> <p>In an action for personal injuries to the wife, the opinion of the husband as to the value of her services was admissible in connection with the facts stated by him to the effect that she had been able to perform all of the ordinary duties of the household and family prior to the injury, but not thereafter.</p> <p>8. —Same—Hearsay.</p> <p>Testimony of a witness predicated alone on letters of the wife written by her to other members of her family, the letters not being accounted for, was properly excluded as hearsay.</p>

<p>1. —Bill of Exceptions—Refusal of Continuance.</p> <p>The action of the trial court in overruling a motion for a continuance will not be reviewed where the bill of exceptions thereto does not contain the motion, or in any other way sufficiently identify it.</p> <p>2. —Negligence—Injury to Employe—Railroad Hand Car.</p> <p>Evidence in an action by a railroad trackman for injury resulting from his being struck on a bridge by a defective hand ear approaching from the rear and running eight miles an hour, held to show negligence on the part of the employes in charge of the car, and absence of contributory negligence on plaintiffs part.</p> <p>3. —Same—Ordinary Care—Tools for Servant—Charge.</p> <p>A charge that it is the duty of railway companies to use reasonable care in furnishing their employes implements and appliances with which to work and to see that the same are ordinarily safe, was not objectionable as imposing a higher degree of care than the law requires, where the jury were told in the same "paragraph that the care which said companies are bound to use is such as an ordinarily prudent person would use in such matters.</p> <p>4. —Same—Discovered Peril.</p> <p>Where the evidence tended to show that the employes operating the hand car saw plaintiff ahead on the track, and could by the exercise of ordinary care have discovered his danger in time to have stopped before injuring him, and could have stopped in time to avoid the injury after having actually discovered such peril, it was sufficient to authorize instructions upon the issues of failure to use ordinary care to discover plaintiff’s danger, and upon discovered peril.</p> <p>5. —Same—Contributory Negligence—Burden.</p> <p>The case held not to come within any of the exceptions to the general rule that the burden of proof is upon the defendant to show contributory negligence, and special charges presenting different phases of contributory negligence were properly refused where they summarily required a verdict for defendant in the event of a finding of contributory negligence, thereby excluding the issue of discovered peril.</p> <p>6. —Same—Avoiding Injury—Presumption—Charge on Weight of Evidence.</p> <p>It would have been on the weight of evidence for the charge to have instructed that the operatives of the car could act upon the presumption that' plaintiff would leave the track in time to avoid the injury, he having done or said nothing to indicate that he would get out of the way.</p> <p>7. —Same—Duty of Discovering Peril—Charge—Harmless Error.</p> <p>Defendant was not harmed by an instruction that it was the duty of the employes in charge of the car to use ordinary care to discover and avoid injury to persons on the track, where the court had already charged that plaintiff was not entitled to recover if such employes used all reasonable means to avoid injuring him after discovering his peril.</p>

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

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

<p>Appeal from the District Court of De Witt. Tried below before Hon. James C. Wilson.</p>

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

<p>Appeal from the District Court of Jefferson. Tried below before Hon. W. H. Pope.</p>

<p>1. —City Policeman—Term of Office—Discharge.</p> <p>While the city charter of Houston provides that the terms of all police officers shall continue during efficient service and good behavior, yet as the Constitution declares that the term of all officers not fixed thereby shall not exceed two years, it is held that on the expiration of two years from a policeman’s appointment he ceased, in the absence of a reappointment, to be an officer de jure, so that the city was liable thereafter only for services actually rendered by him and accepted by it.</p> <p>2. —Same—Suspension After Term Expired.</p> <p>Where plaintiff was suspended from the performance of his duties as a policeman after the expiration of his term, it was immaterial whether or not such suspension was in accordance with the city charter.</p>

<p>Appeal from the District Court of Fort Bend. Tried below before Hon. Wells Thompson.</p>

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

<p>Intoxicating Liquors—License—Change of Place—Liability of Sureties on Bond.</p> <p>Where a liquor dealer’s license, issued on the giving of the statutory bond, designated a certain street corner as the place where the business would be carried on, and the dealer, by false statements to the county clerk, induced him to change the place named in the license to another comer, at which latter place he engaged in the business, the bond was not binding on the sureties, as to sales at the latter place, since the statute requires that the particular place at which liquor is to be sold shall be designated in the license, and further provides that the selling of liquor at any other place designated in the license shall be a penal offense. Rev. Stats., arts. 5060c-5060e; Penal Code, arts. 411a, 411b.</p>

<p>Appeal from the District Court of Red River. Tried below before Hon. J. G. McGrady.</p>

<p>Appeal from the District Court of Travis. Tried below before Hon. R. L. Penn.</p> <p>England sued the railroad company and appealed from a judgment for defendant.</p>

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

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

<p>Appeal from the County Court of Robertson. Tried below before Hon. Tom M. Taylor.</p>

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

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

<p>Appeal from the County Court of Eusk. Tried below before Hon. W. W. Moore.</p>

<p>Error from the District Court of Franklin. Tried below before Hon. J. M. Talbot.</p>

<p>1. —Carrier of Passenger—Injury on Freight Train—Charge.</p> <p>In an action by a passenger for injuries sustained while riding in a freight car, a charge that plaintiff assumed the risks incident to such pushing and jerking of cars as was necessary and proper in the handling of the car, was not erroneous in the use of the word “necessary,” and because of a refusal to charge that plaintiff could not recover if the car was handled in the usual and proper manner.</p> <p>2. —Same—Evidence and Charge.</p> <p>' Where plaintiff testified that the car containing himself and his furniture was kicked back onto a track where it struck some other cars in a train that was being made up, this was sufficient, in-the absence of evidence to the contrary, to warrant the charge in assuming that the car was then being moved for the purpose of incorporating it in a train.</p> <p>3. —Same—Same—Negligence.</p> <p>It was not error to refuse to charge that if plaintiff remained in the car while it was sidetracked in the yards at a junction point where the injury occurred, his act in doing so was negligence, where the only testimony relative to his remaining in the car was that of plaintiff to the effect that he so remained in it because he did not know when the car would continue the journey.</p> <p>4. —Same—Negligence Per Se—Standing Tip in Car.</p> <p>That plaintiff was standing up in the car at the time of the jerk and injury did not constitute negligence per se, there being no evidence as to how he came to be on his feet at that instant.</p>

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

<p>1. —Railroads—Negligence—Injury at Crossing.</p> <p>It is negligence for a railroad company to leave cars in a street so near a public crossing that a coupling therewith can not be made without forcing them onto the crossing, and to make the coupling without seeing that the crossing is clear.</p> <p>2. —Same—Contributory Negligence.</p> <p>Facts held to sustain a finding that deceased was not guilty of contributory negligence in attempting to cross a railway track near standing cars which were, in making a coupling, suddenly thrown back upon him, the evidence showing- that the moving cars and engine were making little noise and that the standing cars were moved suddenly and with great force.</p> <p>3. —Action for Death—Measure of Damages—Future Earnings—Charge.</p> <p>Where, in an action for death, the court charged that the measure of damages is such sum as would represent the value of the deceased’s future earnings, which plaintiffs, his daughters, had a reasonable expectation he would have contributed to them had he lived, such charge was not subject to the construction that plaintiffs might be allowed all of deceased’s future earnings.</p> <p>4. —Same—Evidence—Age—Opinion.</p> <p>It was competent in such action to prove the age of the deceased by the opinions of a daughter, and of another person who had. known him a long time, both testifying as to his appearance, and the daughter testifying that his age was not in the family Bible; and it was not necessary to account for the non-production of the Bible in order to admit such opinion evidence.</p> <p>5. —Same—Married Daughters—Expectation of Aid.</p> <p>Evidence was' admissible in such action to show that one of deceased’s daughters had separated from her husband and was, at the time of his death, on her way to him, and that the husband of another daughter was dying of consumption and unable to support her, as bearing on the question of the amount they might reasonably expect that he would have contributed to their support.</p> <p>6. —Bill of Exceptions—Continuance.</p> <p>The rule which provides that, in the absence of a bill of exceptions, the overruling of an application for continuance will not be reviewed, even though an exception be noted, is not in conflict with the statute, and is adhered to.</p> <p>7. —New Trial—Newly Discovered Evidence.</p> <p>An application for a new trial on the ground of newly discovered evidence is properly refused where it appears that the same evidence was set up in a motion for continuance which was abandoned before the trial.</p>

<p>Appeal from the District Court of McLennan. Tried below before Hon. Marshall Surratt.</p> <p>Certified questions in this case were answered by the Supreme Court in Cammack v. Eogers, 96 Texas, 457.</p>

<p>1. —Notes—Pledge—Estoppel—Innocent Purchaser.</p> <p>Where the owner of a note places the apparent title to it in another who induces a loan company to advance him money and accept the note as security therefor, the owner is estopped from questioning the validity of the pledge, and the loan company will be protected as an innocent purchaser.</p> <p>2. —Same—Notice—Sale of Pledge—Tender.</p> <p>The loan company could subject the note so pledged to It to the payment of the debt in the manner provided by the terms of the pledge, although notice of the owner’s claim was given to it after the right had become so vested, and it acquired a perfect title to the note by purchase at a sale thereof made after such notice, under the terms of the pledge, and in the absence of a tender by the owner of the note of the amount of the debt secured by the pledge.</p> <p>3. —Verdict—Intervener and Plaintiff.</p> <p>Where a verdict awards to an intervener the title to the cause of action, it authorizes a judgment against the plaintiff, although the latter is not named' therein, and another party who is not claiming adversely to the plaintiff can not complain of the verdict on that ground.</p>

<p>Life Insurance—Forfeiture—Nonpayment of Premium—Notice to Insured.</p> <p>In an action on a life policy made subject to the laws of New York it appeared that a statute of that State prohibited any life insurance company from declaring a forfeiture of a policy for nonpayment of a premium unless a notice had been mailed to the insured stating, inter alia, that if the premium is not paid at maturity “the policy apd all payments thereon will become forfeited and void, except as to the right to the surrender value or paid-up policy as in this chapter provided.” Held, that a notice merely declaring, in lieu of such clause, that if the premium is not paid at maturity, “the policy lapses,” was insufficient to warrant a forfeiture.</p>

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

<p>Appeal from the District Court .of Hunt. Tried below before Hon. H. C. Connor.</p>

<p>Jordan, Collins & Walker, for appellants.</p>

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

<p>1. —Trial—Special Issues—Setting Aside Findings.</p> <p>Where the trial judge considers that certain special findings by the jury are not sustained by the evidence, it is his duty to set them aside on motion.</p> <p>2. —Same—Action Not Reviewed.</p> <p>"Where the trial court set aside certain findings of the jury because not supported by the evidence, and there is no assignment requiring a review of that ruling, the question whether the answers of'the jury embraced in such findings entitled appellant to a judgment can not be considered on appeal.</p> <p>3. —Same—New Trial Required.</p> <p>Since a special verdict, though comprising many findings, is but one verdiet, no material part of it can be set aside for want of sufficient evidence to sustain it without setting it all aside, and in such case the court should not render a judgment on the remaining findings, but should grant a new trial.</p>

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

<p>Appeal from the District Court of Wilbarger. Tried below before Hon. G-. A. Brown.</p>

<p>1. —Limitations—Lease—Holding Ove:—Implied Contract.</p> <p>Where a lease for three years provided that at its end the lessee should have the refusal of an extension at the current market rates, and at its expiration he held over for another period of three years on the same terms, a further holding over on the expiration of such second period was not under the - written contract, hut by virtue of an implied contract, and an action for rents accruing thereunder was subject to the statute of limitations of two years. Rev. Stats., art." 3354.</p> <p>2. —Jurisdiction—Amount—Exceptions—Dismissal.</p> <p>Where, by virtue of exceptions interposing limitations, plaintiff’s claim for rent was reduced to an amount below the jurisdiction of the district court, wherein the suit was brought, it was proper for the court to enter a judgment dismissing the case.</p>

<p>1. —Citation—Name of Railway Company.</p> <p>Where the citation in an action against a railway company gave the name of the" defendant in full, it was not defective in failing to give it in full at each subsequent reference thereto.</p> <p>2. —Railroads—Rules of Company—Pleading and Charge.</p> <p>■ Allegations in the petition in an action for personal injury by a freight brakeman as to the duty of the engineer to give signals, held sufficient to warrant a charge on the subject.</p> <p>3. —Same—Charge—Negligence.</p> <p>A charge to find for the plaintiff brakeman if the jury found certain acts of negligence on the part of the engineer, was not on the weight of evidence in ignoring the duty of the brakeman to protect the rear end of his train by going back with a flag, where the charge was one presenting plaintiff’s theory, and concluded with the statement that if plaintiff was exercising all care for his own safety, the verdict should be for him, unless, under the other issues, the jury should find for the defendant, and among the other issues there was a special charge on the question whether plaintiff had- been' negligent in failing to protect the rear end of his train.</p> <p>4. —Same—Negligence Per Se—Violating Master’s Rules.</p> <p>It is not negligence per se for a servant to violate the rules of the master; and a requested instruction that if plaintiff’s acts, as specified therein, were a violation of the rules, the jury should find for defendant, was properly qualified by the statement that the jury should so find if they believed plaintiff’s violation of the rules was negligence.</p> <p>5. —Same—Evidence—Printed Rules—Varying.</p> <p>Where the printed rules were in evidence stating how a certain flag signal should be given, but not under what circumstances it was to be given, evidence was admissible to show the construction placed on the rules, such construction having been pleaded.</p> <p>6. —Same—Verdict Excessive—Injury to Brakeman.</p> <p>A verdict for $16,000 in favor of a freight brakeman for an injury rendering one of his arms permanently lame is held excessive, and a remittitur of one-half the amount is required.</p>

<p>1.—Guardianship—Appointment—Sale of Land—Probate Records.</p> <p>Where the probate records of a county court showed an application by M. to be appointed guardian of the estate of a nonresident insane person, and orders directing a sale of such person’s land by M. and confirming the sale, but did not show that said application had been acted on, or that M. was ever appointed guardian, the sale was void under the statutory provisions requiring that the orders and decrees of the county court in probate matters shall be entered on the records of the court and declaring such proceedings void if not so entered. Rev. Stats., arts. 1853, 2558.</p> <p>2. —Same—Bill of Review.</p> <p>The fact that such orders of sale were void and subject to collateral attack did not deprive complainant of his right, by bill of review under the statute, to go into the court where the orders were made and have them set aside. Rev. Stats., art. 2799.</p> <p>3. —Same—Presumption of Regularity—Jurisdiction.</p> <p>The rule that where a court having general jurisdiction over the subject matter has assumed to act, every presumption will be indulged in support of the decrees unless the contrary appears from the record, is applicable to collateral attacks, but not where the proceedings are directly assailed, and the statute declares them void if not entered of record.</p>

<p>Homestead—Rural or Urban?—Residence in Small Village.</p> <p>Defendant, in his application for a loan, stated that the ninety acres farm tract which he proposed to mortgage was no part of his homestead, which consisted of a house and lot in M., and that M. had a population of 100. It was shown by the evidence that defendant, who was both a farmer and merchant, resided with his family on a tract of two acres in M., which was a small collection of houses, consisting of six or seven residences, two stores, a blacksmith shop and a schoolhouse; that five or six families lived there; that it was not incorporated or laid off into lots and blocks, some of the residences being located at or near the corner of certain farms, while others were on small lots of land purchased for the purpose. Held, a village within the meaning of the eonstitutional provision that an urban homestead may consist of a lot or lots in a city, town or village, and that the farm tract so mortgaged was no part of the homestead. -<</p>

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

<p>Venue—Contract—Fraud.</p> <p>A suit for damages from falsely representing diseased hogs sold to plaintiff to be sound and healthy is an action for fraud, in which suit may be brought in the county where the fraud was committed (Rev. Stats., art. 1194), though defendant resides elsewhere and pleads his privilege.</p>

<p>1. —Insurance—False Representations—Waiver.</p> <p>The agent of an insurance company may verbally waive conditions in an insurance policy avoiding it for misstatements as to title or existing insurance, though the policy provides that no change of contract or waiver of the terms thereof should be claimed by the insured, unless in writing and attached to or indorsed on the policy.</p> <p>2. —Insurable Interest—Homestead.</p> <p>The husband has an insurable interest in the homestead in possession though the title thereto is in his wife and her children by a former marriage.</p>

<p>Insurable Interest.</p> <p>Plaintiff’s allegation that the insurance policy sued on was issued upon “his” household and kitchen furniture, sufficiently charged that he had an insurable interest; and his testimony that the property described in the, policy was destroyed in his house where he resided with his family was sufficient, prima facie, to show an insurable interest in him in the absence of controverting evidence.</p>

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

<p>Appeal from the District Court of Hunt. Tried below before Hon. T. D. Montrose.</p>

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

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

<p>Appeal from the District Court of Upshur. Tried below before Hon. Bichard B. ‘Levy.</p>

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

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

<p>I. —Public Road—Application for—Commissioners Court.</p> <p>Since the statute does not require the application for the laying out of a public road to more than specify its beginning and termination, the fact that an application specified the section lines along which the road was to run did not deprive the Commissioners Court of the power to open it, on the recommendation of the jury of view, along different lines. Rev. Stats., arts. 4671, 4687, 4688, construed.</p> <p>2.—Same—Notice to Landowner.</p> <p>The notice which the statute requires the jury of view to give to the landowner has reference to the time and place of assessing the damages, and not to the viewing out of the road, where the damages are not then assessed. Rev. Stats,, art. 4691.</p>

<p>Appeal from the District Court of Armstrong. Tried below before Hon. H. H. Wallace.</p>

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

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

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

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

<p>1. —Partnership—Knowledge' of One Member—Charge.</p> <p>Where plaintiffs, a firm, sued for commissions on a sale of an electric plant, and the court charged that if, at the time of the transaction, plaintiffs did not know of a certain fact rendering the sale illegal, then they might recover, etc., the failure to further state that knowledge of either partner was knowledge of both was not reversible error in the absence of request for an instruction to that effect.</p> <p>2. —Charge—Damages—Express and Implied Contract.</p> <p>Plaintiff sued for $5000 as commissions on a sale, and the court charged that if the jury found for plaintiffs, and they had a contract with defendants, either express or implied, for $5000, the jury should find the mount so expressed or implied, by the contract, but if there was no contract for a certain sum as commissions, they should find such an amount as was a reasonable compensation for the services performed. The jury found for a much less sum than $5000. Held, upon objection that as there could be no implied contract for a certain sum, this was in effect a direct charge to find for plaintiffs, that the charge was not error or misleading, since both clauses were evidently addressed to the amount of damages in case the jury found for plaintiffs.</p>

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

<p>1. —Railroads—Contributory Negligence—Violation of Rules—Coupling Cars.</p> <p>Where a rulé of the railroad company requiring brakemén, when coupling cars, to use a stick or safety coupler instead of their hands, had been uniformly disregarded, a brakeman was not necessarily guilty of contributory negligence in using his hands to make a coupling, and a verdict of the jury importing that he was not negligent in so doing is sustained.</p> <p>2. —Same—Negligence. Per Se.</p> <p>In this State a violation of that class of rules by an employe is not held to be negligence per se.</p> <p>3. —New Trial—Surprise.</p> <p>Defendant was not entitled to a continuance on the ground of surprise caused ■ by a witness having changed his testimony from that given on a former trial where it made no effort at the trial to obtain a continuance in order to obtain the evidence of a witness who, as it then knew, would contradict the testimony " so given.</p> <p>4. —Contributory Negligence—Charge.</p> <p>A charge was not erroneous which instructed that contributory negligence is where some negligent act or omission on the part of the plaintiff, co-operating with some negligent act or omission on the part of the defendant, contributes to and is the efficient cause of the injury, and that for it to prevent a recovery plaintiff must have acted as a reasonably prudent person would not have done under the circumstances, and that this must have co-operated with the negligence of defendant in producing the injury.</p> <p>5.—Railroads—Reasonableness of Rules—Jury Question.</p> <p>Where plaintiff’s violation of defendant company’s rules as to the manner of making couplings was important only as a fact to be considered by the jury in determining whether he was guilty of contributory negligence, it was not, reversible error that the charge left the reasonableness of such rules to the jury.</p>

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

<p>1. —Life Insurance—Answers in Application—Drinking Habit.</p> <p>Where the form of the questions in the application for a life policy and the accompanying instructions to the medical examiner indicated that the information sought as to the use of intoxicating liquors was the applicant’s habit or practice in that respect, and he having stated (his answers being made warranties) that he took a drink one a month, proof of occasional excesses did not show a breach of the warranty.</p> <p>2. —Same—Suicide—Evidence Hot Establishing.</p> <p>Evidence in an action on a life policy held not sufficient to show that the death of the insured resulted from suicide and not from natural causes, the burden being on the defendant to establish the theory of suicide.</p> <p>3. —Continuance—Diligence.</p> <p>A motion for continuance based on the absence of a witness was properly overruled where subpoena for the witness was not issued until the eve of the trial, and no sufficient excuse was shown for not having it issued earlier.</p>

<p>1. —Setting Fires—Railroads—Presumption—Negligence—Burden of Proof.</p> <p>Where property is shown to have been injured or destroyed by fire from the engine of a railway company, a presumption of negligence arises, and the burden is on the company to overthrow such presumption.</p> <p>2. —Same—Ordinary Care—Best Appliances.</p> <p>It is the duty of the railway company to seek the best appliances for preventing the escape of fire from its engines, and to use ordinary care to secure them and to keep them in proper repair, and a charge making it the absolute duty of the company to equip its engines with “the best approved appliances in use,” was error.</p>

<p>Appeal from the District Court of Van Zandt. Tried below before Hon. J. G-. Russell.</p>

<p>1. —Acknowledgment—Deed—Married Woman—Impeaching Certificate.</p> <p>Where the certificate of an officer, since dead, to the acknowledgment hy a married woman of a deed of homestead property was impeached by the unsupported testimony of the wife to the effect that the deed was never read or explained to her by the officer, and that she did not know a deed was then being made, and on this latter point she was contradicted by other witnesses, a finding upholding the deed and certificate was supported by the evidence.</p> <p>2. —Arbitration—Compliance with Agreement.</p> <p>Where plaintiffs sued to recover homestead property which they had previously conveyed to defendant’s vendor, alleging that their deed of it had never-been duly executed by the wife, it was not error for the court to refuse to permit plaintiffs to prove that there was a controversy about the deed which was by agreement submitted to arbitration, and that the arbitrators found that the' deed was to be returned to plaintiffs, and that the money and notes were to be returned to the purchaser, where it was not shown that such alleged arbitration occurred before the land was sold to defendant, nor that plaintiffs had offered to return the purchase money notes and refund the purchase money paid.</p>

<p>1. —Personal Injury—Expert Evidence—Simulation.</p> <p>In an action for personal injury where plaintiff claimed that she had no feeling in her limbs, and it was contended that some of her pretended injuries were simulated, it was error for the court to refuse to permit a physician to testify that she was not simulating the absence of pain upon the application of certain tests by him, he having previously testified that he had made such tests and that they showed she had no feeling in her limbs.</p> <p>2. —Railroads—Signals at Crossings—Person Hear Track.</p> <p>At places where public streets cross the tracks of a railway, and at other places in close proximity to the track, which the public have the right to use and which are so used, the servants of the company, when in- charge of locomotives and trains, must, in approaching such places, exercise ordinary care not only to discover if persons are on the track, but must also exercise such care to ascertain if any are in near proximity, and are about to cross the track.</p> <p>3. —Same—Evidence Raising Issue.</p> <p>Where there was some evidence that plaintiff, driving a horse to a buggy, was within twenty-five or thirty feet of the crossing at the time the train approached it and whistled as it crossed, the court should have submitted the issue of the railway company’s liability upon the theory that the engineer operating the locomotive could, in the exercise of ordinary care, by keeping a proper lookout, have discovered the near proximity of plaintiff and the team to the track.</p> <p>4. —Same—Forbearing to Sound Whistle.</p> <p>The engineer blew the whistle for a crossing ahead at a time when he was on another crossing and near plaintiff’s team. There was no evidence that he had then discovered or had reason to believe that some one else was in a perilous situation at the next crossing, or that conditions existed there at that time such as made it necessary for him to put plaintiff in peril by complying with the statutory duty of blowing the whistle for the crossing ahead. Held, that it was for the jury to determine whether the blowing of the whistle was unnecessary and constituted negligence.</p>

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

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

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

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

<p>1. —Deed—Ancient Instrument—Forgery—Evidence.</p> <p>Evidence upon an issue of forgery of a deed over thirty years old held to sustain a finding in favor of its genuineness.</p> <p>2. —Continuance—Diligence Wanting.</p> <p>Where, after plaintiff’s case had been pending on the docket for nine months, the defendants, nearly two months prior to the trial, filed a deed among the papers of the cause and served notice thereof on plaintiff’s counsel, an application for a continuance by plaintiff to obtain evidence to show the deed a forgery, and alleging as an excuse for not having obtained it that he had just discovered that defendants would rely on the deed, failed to show proper diligence.</p> <p>3.—New Trial—Cumulative Evidence.</p> <p>A new trial is properly denied where it is sought in order to obtain evidence which is merely cumulative, and which, in view of the opposing affidavits, does not make it reasonably probable that the result would be changed, and where the motion therefor is not accompanied by the alleged documentary evidence to be produced and the source of the applicant’s knowledge as to such evidence is not disclosed.</p>

<p>Carrier of Passengers—Injury by Passenger to Employe—Negligence Not Shown.</p> <p>Plaintiff’s son, while working for defendant as a section hand, was killed by a shot fired from the window of a passing excursion train. The crowd on the train was hilarious, but not disorderly, and as soon as the conductor learned of the shooting he made every reasonable effort to discover the offender. Held, that negligence on the part of the defendant company was not shown.</p>

<p>Error from the District Court of Marion. Tried below before Hon. J. M. Talbot.</p>

<p>1. —Street Railway—Negligence—Harmless Error.</p> <p>Where the evidence clearly showed that the injury to plaintiff’s wife resulted from the negligence of the motorman in failing to have his car under control and to use diligence to stop it after he saw her on the track and her danger, the introduction in evidence, over the objection that it was not pleaded, of a city ordinance requiring motormen to keep a vigilant watch and to stop their cars in time when they saw people or vehicles on the track, was not prejudicial error.</p> <p>2. —Same-^-Discovered Peril—Charge.</p> <p>Where the evidence clearly showed that the motorman discovered the peril of plaintiff’s wife in time to have avoided the collision, had he exercised the degree of care required by the circumstances, error in the charge, if it be such, in requiring that he should have stopped the ear in the shortest time and space possible, was not prejudicial. See charge on discovered peril held to correctly announce the law.</p> <p>3. —Charge—Excluding Evidence from Consideration,</p> <p>Error in the admission of evidence is cured by a charge instructing the jury that they shall not consider it for any purpose.</p>

<p>Appeal from the County Court of Navarro. Tried below before Hon. A. B. Graham.</p>

<p>1. —City Charter—Defect in Street—Notice to City.</p> <p>The provision in the legislative city charter of Houston that the city shall not be liable to any person for damages caused from streets, ways, crossings, bridges or sidewalks being out of repair from negligence of the city unless the same shall have so remained for ten days after special notice in writing to the mayor or street or bridge committee, is valid, and a bar to recovery where the required notice has not been given.</p> <p>2. —Same—Personal Injury—Damages Not Recoverable.</p> <p>Where the city’s failure to construct a crossing in the most substantial manner only remotely contributed to the injury to plaintiff’s wife in using the crossing, while the proximate cause was its failure to keep the same in repair, and the crossing had been out of repair for more than ten days prior to the injury, it was not liable in the absence of the notice prescribed by the charter.</p>

<p>1. —School Land—Sale During Term of Lease.</p> <p>A lessee of school land from the State, or his assignee, may, by surrender of the lease before the end of the term, become a purchaser of the land covered by it. Following Tolleson v. Rogan, 96 Texas, 424.</p> <p>2. —Same—Amending Application—Priority.</p> <p>Where plaintiff’s application to purchase was prior to defendant’s, but was amended after defendant’s appplication was filed, this did not destroy its priority unless it was fatally defective as originally made, or an essential change was made by the amendment.</p> <p>3.—Trial—Special Issues—Presumption.</p> <p>Where the judgment rests upon a special verdict and appellant failed to request the submission of an issue to the jury, it will be presumed from the evidence that the court found against him on such issue.</p>

<p>1. —Practice on Appeal—Statement of Facts—Insufficiency of Evidence—Charge.</p> <p>In the absence of a statement of facts the appellate court will not consider the question of the insufficiency of the evidence to warrant a peremptory charge, even though the charge sums up the judge’s conclusions of the facts upon which it is based.</p> <p>2. —Same—Motion to Dismiss.</p> <p>That the matters upon which appellant relies for reversal have not been presented in such manner as to require them to be passed on, is not a tenable ground for a motion to dismiss the appeal.</p>

<p>Appeal from the District Court of Ellis. Tried below before Hon. Chas. Fred Tucker, Special Judge.</p>

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

<p>1. —Assumed Risk—Railroad Brakeman.</p> <p>A railroad freight brakeman who knows that the engine operating the train on which he is working is not supplied with air brakes, assumes the risk of injury resulting from their absence.</p> <p>2. —Same—Cars Left Uncoupled.</p> <p>Where' a brakeman, while passing along the tops of a string of cars on a siding against which a train was being backed, was caused to fall between them when the impact occurred, because they were not coupled together, and so were driven suddenly apart, and he knew that the rule of the company requiring cars so left on sidings to be coupled together was not observed at that siding and others on the road, the risk resulting from the ears being uncoupled was one that he assumed.</p> <p>3.—Same—Defective Appliance—Knowledge.</p> <p>Knowledge of a defect in an appliance carries with it knowledge of the increased danger from its use, unless there is inexperience on the part of the servant of which the master had notice.</p>

<p>Appeal from the District Court of Hunt. Tried below before Hon. H. C. Connor.</p>

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

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

<p>Res Judicata—Partition—Injunction.</p> <p>A judgment in trespass to try title recovering an undivided half interest in certain lots and decreeing partition, concluded a defendant therein from subsequently claiming, that, by partition "with his codefendant, a former owner whose title piaintiff in that action was asserting, he had acquired title to the whole of one of such lots, and from enjoining a sale for partition; such defense could have been asserted under the general issue, and was necessarily determined, since the suit was for partition; nor could he avoid the effect of such judgment by showing that he had failed to set up such title on advice of counsel that the suit could be defeated by his codefendant’s claim of homestead.</p>

<p>Homestead—Purchase—Occupancy.</p> <p>Facts held to support a finding in favor of the homestead claim against creditors to property purchased for a home but attached four days later and before its actual occupancy by the purchaser.</p>

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

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

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

<p>1. —Chattel Mortgage—Reservation of Title.</p> <p>A reservation of title in goods sold, made in order to secure the purchase price to the seller, is, under the statute, but a chattel mortgage, and subject to the laws governing such instruments. Rev. Stats., art. 3327.</p> <p>2. —Trust—Equitable Lien on Proceeds—Intermingling—Identification Necessary—Trustee in Bankruptcy.</p> <p>H. bought goods from different parties under contracts stipulating that the title was reserved in the seller and that if the buyer sold the goods, the proceeds of such sales, whether cash, book account or notes, were to be held as the property of the seller as collateral security for his benefit and subject to his order until the contract price was fully paid. H. failed and went into bankruptcy. The evidence showed that he had never kept any separate account of sales, but that the proceeds of all goods sold went into the general business. In a contest between the trustee in bankruptcy and the lien creditors above mentioned the latter identified some of the goods sold by them as having been on hand at the time of the failure, and they further sought to enforce a trust and equitable lien upon the proceeds of the remainder of the general stock because of the investment of trust funds therein. Held, as to such further claim, that there was no such identification of any particular goods in which trust funds had been invested, or of the proceeds thereof, as would authorize such enforcement of the trust, and that the trustee held the proceeds of the stock not identified in trust for the general creditors, including such claimants.</p>

<p>1. —Contractor’s Bond—Sureties—Liability to Materialman.</p> <p>The sureties on a bond given by a contractor to the owner of a building to be erected are not liable to one who has furnished the contractor with materials used by him in the construction of the building,</p> <p>2. —Contract—Promise Without Consideration.</p> <p>Where the sureties on a contractor’s bond, who were not liable to materialmen who had furnished materials to the contractor, promised such materialmen to settle and adjust their claims with the contractor, such promise was without consideration and of no effect.</p> <p>3. —Same—Evidence—Immaterial Error.</p> <p>The promise being of no legal effect, it was immaterial that the court erred in permitting the sureties to testify that a letter of theirs to the materialmen containing the promise was written under the belief that the law would hold, them responsible to all parties who had furnished materials because of their being on the contractor’s bond.</p>

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

<p>1. —Will—Acceptance Under—Annulling Bequest—Year’s Allowance to Widow.</p> <p>Where a testator’s estate consisted of two city lots and four promissory notes, with some household furniture of little value, and by his will he devised all his property to his wife except the notes, which he bequeathed to a child,the widow was not entitled to accept under the will and also to have the clause giving the notes to the child annulled and the notes sold in order to raise the year’s allowance to her for which the statute provides.</p> <p>2. —Same—Jurisdiction of Probate Court.</p> <p>Under a will -providing that no action shall be had in the probate court with reference to the estate other than the probate and record of the will and filing of an inventory, that court' is without jurisdiction of a proceeding to annul the will in part in order to provide a year’s allowance for the widow.</p>

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

<p>Adverse Possession—Patented Land Supposed Vacant.</p> <p>Where defendant, supposing certain land which was in fact patented to be vacant public domain, took possession thereof with the intention of acquiring it from the State, his possession so continued for ten years did not give him title by limitation as against the true owner, since it was not adverse to all the world. Following Blum Land Co. v. Rogers, 11 Texas Civ. App., 184.</p>

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

<p>1. —Negligence—Definition—Carrier of Passengers—Degree of Care.</p> <p>Negligence, when applied to carriers of passengers, means a failure, in the performance of duty imposed by law for the protection of others, to exercise that high degree of care in acting and refraining from acting which very competent and prudent persons would usually exercise under the same or similar circumstances.</p> <p>2. —Same—Charge Not on Weight of Evidence.</p> <p>A charge instructing that if the carrier failed to use the requisite high degree of care as to stopping its train long enough for the passenger to alight, this would be negligence for which it would be liable if it was the proximate cause of the injury and plaintiff was not guilty of contributory negligence, was not erroneous as being on the weight of evidence in that it informed the jury that a failure to use the requisite high degree of care under the circumstances stated was negligence as a matter of law.</p> <p>3. —Same—Belief—Degree of Care.</p> <p>A charge was erroneous which made the question of the carrier’s negligence depend on the belief of its conductor that the passenger had alighted from the train at the time he put it in motion, and his use of ordinary care under the circumstances.</p> <p>4.—Same—Charge Referring to Petition.</p> <p>. In an action for personal injuries a charge referring the jury to the petition to ascertain the acts of negligence alleged was not error where no request was made for instructions more specific in this respect.</p>

<p>Appeal from the District Court of Scurry. Tried below before Hon. Arthur Yonge, Special Judge.</p>

<p>School Land—Lease—Purchase.</p> <p>Where a section of State school land was sold to W., who was duly qualified to purchase it, and such sale was made during the existence of a lease of the land by the State, but the lessee had assigned the lease to W., this removed the obstacle to the sale interposed by the lease, and the Commissioner thereupon had authority to make the sale. Following Tolleson v. Kogan, 96 Texas, 424.</p>

<p>1. —School Land—Actual Settlement.</p> <p>Evidence held sufficient to show that defendant was an actual settler on certain school land at the time his application was filed in the General Land Office, although at the "date of the application he had only staid one night on the land, aild had not removed his family and household goods to it.</p> <p>2. —Same—Mistake as to Boundary Line.</p> <p>Where the house which defendant occupied was near the line of the school land, and was supposed' to be on it, and he believed in good faith that it was on the land, his rights were not prejudiced by the mistake, if the house was in fact not on the land.</p> <p>3. —Same—Charge—Diligence to Discover Mistake.</p> <p>Where there was no one in actual possession of the land, and it was not shown that there existed any general knowledge of a certain survey of it which showed the house not on the land, and defendant testified’that he had no knowledge of such survey, the court properly refused, as not warranted by the evidence, to charge that if the jury found that the house was not on the land, and that defendant, by the exercise of reasonable diligence, could have ascertained that it was not, they should find for the plaintiff.</p> <p>4. —Same—Inquiry—Good Faith.</p> <p>As a matter of law, deféndant was not bound to accept as true the claim that the house was on a different tract, or to inquire of those holding constructive possession, such matters going only to the question of his good faith in malting the settlement.</p>

<p>1. —Citation by Publication—Tax Suit—Jurisdiction.</p> <p>In a suit for delinquent taxes against the unknown owners of certain land the citation was addressed to the sheriff and commanded him to summon by publicating the unknown owners of the land, describing it, “and you are notified that suit has been brought by the State for such taxes, * * * and you are commanded to appear and defend such suit,” etc. The statute requires the citation in such cases to be addressed to the owners of the land or those having or claiming an interest therein, and that it notify them that the suit has been brought and summon them to appear and defend. Held, that the citation was fatally defective, and the court without jurisdiction to render judgment for the taxes. Rev. Stats., art. 5232o.</p> <p>2. —Jurisdiction—Service of Citation—Collateral Attack.</p> <p>Where the service of citation is fatally defective and the record ■ fails to show that the court found that it had jurisdiction, the judgment is subject to collateral attack for want of jurisdiction, since it is presumed in such case that the court acted on the service shown in the record.</p>

<p>1. —School Land Purchase—Proof of Occupancy.</p> <p>As against plaintiff, suing for State school land by virtue of actual settlement and an application to purchase it, a certificate of three years occupancy issued to defendant by the Commissioner of the General Land Office after plaintiff’s rights had accrued and after commencement of the present action, is not conclusive.</p> <p>2. —Same—Acceptance of Application—Effect.</p> <p>The Commissioner’s acceptance of an application to purchase school land as an actual settler thereon is not, as against a subsequent applicant, conclusive of such settlement.</p>

<p>School Land—Sale—Prior Lease—Presumption.</p> <p>Where a junior .applicant to purchase State school land sued to recover it of a senior applicant to whom it had been awarded and patented, and the evidence showed that the senior application and award thereon were made within the time covered by a prior five years lease of the land by the State to another person, and that the first year’s rental under the lease was duly paid at its execution, but did not show whether or not any other payments of rent had been paid, or whether or not the lease had been canceled, the presumption that the Land Commissioner did his duty in so awarding and selling the land was not overcome, and judgment was properly rendered against the plaintiff. This case distinguished from Stokes v. Reilly, 29 Texas Civ. App., 375, where a right under the lease was asserted.</p>

<p>1. —Evidence—Boundary—Conflicting Calls in Field Notes.</p> <p>Where there are conflicting calls in the field notes of survey, a line of which has been adopted as the boundary line of a precinct, extraneous evidence showing the true location of the line and the mistake in the calls is not subject to the objection that it contradicts the calls and varies them by parol, and is admissible without the necessity of special pleading to authorize it.</p> <p>2. —Local Option Election—Precinct Boundaries—Mistake.</p> <p>Where a local option election was ordered for three commissioners’ precincts of a county, their boundaries' being designated by the order, a mistake in the boundary calls for a line of one of the precincts whereby some territory of the fourth precinct was apparently included, did not render the election void on the ground that it was held for more territory than was covered by the order, it being within the power of the commissioners court at any time to change precinct boundaries. Oxford v. Frank, 30 Texas Civ. App., 343, distinguished.</p> <p>3. —Same—Injunction—Appeal—Bond—Jurisdiction.</p> <p>Where a case was brought as a special statutory proceeding to contest a local option election, in which an appeal may be taken without giving bond, but on the trial no evidence was offered on those allegations under which the election could be contested under the statute, a judgment awarding relief to contestants by injunction and upon equitable grounds may be reviewed upon appeal of the case without bond. (Associate Justice Stephens expressing doubt on this point.)</p>

<p>Cities—Grant of Street—Grading—Damages.</p> <p>Where land was deeded by plaintiff to a city for street purposes, and in order to build a bridge to extend the street the city made a cut in front of plaintiff’s property, rendering it difficult of access, and the bridge could have been built without making the cut, although at greater expense to the city, plaintiff was entitled to recover for the damage thus done to her property, and did not, by the execution of the deed, consent to the injury occasioned by such extension.</p>

<p>1. —Deed of Trust—Power of Sale—Substitute Trustee.</p> <p>Where a deed of trust with power of sale by the trustee provides that a substitute trustee may be appointed by the cestui que trust upon the failure or refusal of the trustee to act, the appointment of a substitute without any failure or refusal of the trustee to act is unauthorized, and a sale of the property by him is void.</p> <p>2. —Same—Surprise—Withdrawing Announcement—Pleading.</p> <p>Surprise of defendant, claiming under the sale by the substitute trustee, at the testimony of the trustee to the effect that he had never declined to act and had never been requested to sell the land, did not warrant a withdrawal of announcement of ready and continuance of the case in order to meet such testimony, since defendant was charged by law with the knowledge that he would be required to prove a strict compliance with the terms of the deed of trust as against plaintiff claiming under an adverse deed from the grantor in the trust deed; and it did not aid defendant’s case in this respect that plaintiff had alleged a common source of title and by his pleadings attacked the deed of trust for fraud, without assailing the deed of the substitute trustee thereunder as being invalid because of such appointment, thereby leading defendant to believe that no attack would be made on that ground.</p> <p>3. —Same—Trespass to Try Title—Special Pleading.</p> <p>The fact that plaintiff, suing in trespass to try title, had specially pleaded fraud in the execution of the trust deed under which defendant claimed, did not preclude him from an attack on any link in the chain of defendant’s title, and the rule which confines the plaintiff in such an action to proof of the title pleaded by him has no application to the ease here.</p> <p>4. —Same—Ratification of Appointment.</p> <p>That the grantor in the deed of trust had, after the execution by him of the adverse deed under which plaintiff claimed, agreed to the appointment of the substitute trustee, could not affect the question of the legality of such appointment.</p>

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

<p>. 1.—Negligence—Personal Injury—Street Cars.</p> <p>Where, in an action for injury received in alighting from a moving street car after it had passed plaintiff’s stopping place, plaintiff testified that before reading the place he rang the bell three times, which was the signal to stop, and the motorman testified that he did not hear the bell ring, it was error for the court to charge that if the jury believed that the motorman did not hear the bell ring they should find for the defendant, as the evidence raised the issue of negligence on the motorman’s part in failing to hear the bell ring.</p> <p>2.—Same—Evidence—Contributory Negligence.</p> <p>Defendant having pleaded that plaintiff was guilty of contributory negligence in leaving the car as he did, evidence was admissible for the plaintiff, who was a boy, to show that the motorman—there being no conductor—was rough in his demeanor towards the boy while collecting fare, and again demanded the fare after it had been overpaid, as showing ground for the boy’s belief that the motorman would carry him on down town unless he got off at the time he did.</p>

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

<p>1. —Judgment—Case Followed.</p> <p>The rulings on former appeal followed (Davis v. Beall, 21 Texas Civ. App., 183) to the effect that a judgment was conclusive on the defendant therein unless he showed a good defense to the action which he had been induced by the plaintiff not to make, or a valid contract releasing him from the judgment.</p> <p>2. —Same—Guardian—Compromise—Judgment.</p> <p>The guardian of the estate of minors can not, without authority from the probate court, compromise the claims of his wards by releasing a judgment defendant from liability. 13</p> <p>3.—Same—Charge.</p> <p>Charge held misleading as liable to be understood, though not expressly asserting, that a compromise and release of a judgment by a guardian, without authority from the probate court, was valid.</p>

<p>Appeal to Comity Court—Bond—Filing—Approval.</p> <p>Where on appeal from a justice court there was an appeal bond among the papers filed in the county court, and one of the items in the bill of costs of the justice court as shown in the transcript was for taking an appeal bond, but the bond did not have indorsed on it the file mark of the justice or his approval thereof, it sufficiently appeared that the bond was filed and approved by him.</p>

<p>Contract of Sale—Right to Cancel—Public Policy.</p> <p>Where a purchaser’s order for an engine contained a clause giving' the seller the right to cancel the order at any time before shipment of the engine without liability for damages, and the seller accepted the order but afterwards , refused to fill it, such refusal created no liability, such provision in the contract not being against public policy.</p>

<p>1. —Amendment—New Cause of Action—Limitations.</p> <p>In an action for personal injuries an amended petition filed more than two years after the accident, asking only for greater damages and elaborating the allegations as to defendant’s negligence and the causes and manner of the acci_dent, did not set up a new cause of action subject to the bar of limitations.</p> <p>2. —Practice—Trial—Harmless Error.</p> <p>In an action for personal injury the overruling of special exceptions complaining of a failure to itemize a physician’s bill and bill for medicines was harmless error where the issue of liability upon these items was not submitted to the jury.</p> <p>3. —Assignment of Error—Excessive Verdict—Remittitur.</p> <p>Where the trial court required a remittitur, which was made, an assignment of error complaining of the verdict only as being "excessive, does not complain that the judgment as affected by the remittitur is excessive.</p> <p>4. —V erdict—Excessiveness—Remittitur.</p> <p>Where a verdict excessive in amount is reduced by remittitur in the trial court to an amount not excessive, the judgment thereon will not be reversed on the ground that its excessiveness shows that the jury was influenced by passion and prejudice which must have affected the verdict not only as to the amount, but also on the issue of liability. Following Gulf C. & S. F. By. Do. v. Darby, 28 Texas Civ. App., 413.</p>

<p>Contributory Negligence—Railway Brakeman—Violation of Orders.</p> <p>A railway brakeman working with a construction train was ordered by the conductor to remain at a point around a curve for the purpose of flagging approaching trains, but did not do so, and forty minutes later, when the train started to back, was run over and killed, none of the train operatives knowing of his presence there. Held, that he was guilty of contributory negligence precluding a recovery for his death, even though the whistle was not blown nor the bell rung at the time the train started to back.</p>

<p>1. —Master and Servant—Railroads—Assumed Risk—Charge.</p> <p>A charge that it was the duty of the railway company to use ordinary care in the operation of its cars so that its employes should be reasonably safe in the discharge of their duties was not erroneous as implying that by the exercise of ordinary care employes would be safe, where in other clauses the court had distinctly charged that plaintiff assumed the risks ordinarily incident to his employment as switchman, and further placed the burden of proof on plaintiff.</p> <p>2. —Personal Injury—Lessening Injury by Operation—Charge.</p> <p>Where the court had charged at defendant’s request, that if the jury found for plaintiff, in arriving at the amount of the verdict, if they believed that a surgical operation would benefit plaintiff, and that ordinary care would require him to have it performed, they should only consider plaintiff’s injuries as they would have been had such operation been performed at such time as a person of ordinary prudence would have had it performed, it was proper to charge at plaintiff’s request that plaintiff would not be required to have an operation performed that a person of ordinary care would not have had performed, and that if a person of such care, in the condition that plaintiff was in, would not have had the operation, they would consider plaintiff’s injuries as they were without the operation.</p> <p>3. —Negligence—Proximate Cause—Coupling Cars.</p> <p>Evidence held to show that the act of the yard foreman in changing the order in which he cut the cars that were being switched, without notice to a switchman assisting, was the proximate cause of the switchman falling between them, and not the act of the engineer in suddenly stopping the engine, and to warrant the refusal of a charge on the theory that such stopping was the proximate cause.</p> <p>4. —Same—Evidence—Custom.</p> <p>It was competent for plaintiff to testify as to the usual custom in the yards there of cutting and switching cars, where he had pleaded the instructions given him at the time by the foreman, and these, together with the general instructions, were in accord with the custom; and the evidence was also admissible to show whether, under the circumstances, the foreman was guilty of negligence and for refuting any imputation of contributory negligence on plaintiff’s part.</p> <p>5. —Res Gestae—Declaration.</p> <p>Testimony of a witness that he reached plaintiff a minute after he was injured, and that plaintiff said that the foreman had changed his mind as to the cut of the cars, was admissible as res gestae, and was not self-serving or hearsay.</p>

<p>School Land—Right to Purchase Additional Land.</p> <p>Under the statute providing that any bona fide owner of and resident on other land than school land within a radius of five miles of school lands may also buy any such school land, but must reside on his other lands or upon a part of the additional school land so purchased, for three continuous years, such additional school land may be purchased by one whose “other land” consists of lots in a town, there being no limitations as to the amount, character or source of title of such other land. Gen. Laws 1897, p. 184; Say les’ Civ. Stats., art. 4218fff.</p>

<p>Appeal from the District Court of Hardeman. Tried below before Hon. Gr. A. Brown.</p>

<p>1.—Evidence—Conclusion of Witness.</p> <p>Where in answer to the question, “Do you know whether or not E. was claiming the property during the last sixteen years?” the answer was, “The last sixteen years I know he has,” such question on its face sought to elicit a fact, not a conclusion, and the answer stated a fact.</p> <p>' 2.—Same—Hearsay—Limitations—Notoriety of Claim.</p> <p>Upon the issue whether or not title to the land had been acquired by limitations, it was competent for a witness who had lived near the land all his life to state that he had always heard that it belonged to defendant’s grantor, as this was evidence of reputation in the neighborhood, and not hearsay.</p>

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

<p>1. —Opening and Conclusion—Admission—Fire Insurance Case.</p> <p>Where defendant in an action on a fire policy entered an admission in the language of rule 31, that plaintiff had a good cause of action as set forth in his petition, except as defeated by facts of the answer constituting a good defense,—such defenses being that the insured had induced the burning of the property and had falsely represented the value of a certain article thereof,—he was entitled to open and conclude, the burden of proving such defenses being on him.</p> <p>2. —Same—Charge Eliminating Other Defenses—Jury.</p> <p>Where, upon such admission being made, the court’s charge expressly restricted the jury’s consideration to the first of the two affirmative defenses stated, all other defensive matters pleaded were thus eliminated, and plaintiff was not prejudiced by reason of the answer being read to the jury, and taken with them in their retirement.</p> <p>3. —Fire Insurance—Harmless Error.</p> <p>Where the jury must have found in favor of a defense going to the entire claim sued on, to wit, that the insured had caused the property to be burned, failure of the court to sustain exceptions to another defense pleaded as to only a part of the property, was harmless error.</p> <p>4. —Deposition—Quashal—Impeachment—Predicate.</p> <p>Where a deposition has been quashed it has no value as evidence, and is not admissible to impeach the testimony of the witness as given in another deposition unless the proper predicate has been laid by asking the witness as to the statements therein, nor can it be introduced by the opposite party to show that the party who had it taken had resorted to improper means to procure and color testimony.</p> <p>5. —Fire Insurance—Issue of Arson—Evidence.</p> <p>Where in an action on a. fire policy, the issue of arson is raised, all circumstances tending to prove criminal intent and the guilt of the party charged, are admissible in evidence.</p> <p>6. —Same—Action by Assignee—Evidence.</p> <p>Where an assignee of a fire policy sues for the loss, evidence which would have been admissible had the suit been by the insured is admissible against the assignee.</p> <p>7. —Same—Conspiracy—Declarations of Insured.</p> <p>Where in an'action on the policy by an assignee thereof, a conspiracy between the insured and another to burn the property is shown, declarations made by the insured, either before or after the fire, tending to corroborate the testimony given by his coconspirator, and to show that the property was destroyed in pursuance of the conspiracy, were admissible as original evidence in the nature of confessions or declarations against interest.</p> <p>8. —Same—Declarations of Coconspirator.</p> <p>It was competent to prove by a witness a' conversation between the insured and his coconspirator in which insured, speaking of the fire, asked the latter to stand pat and not toll anybody, and the reply of the latter that he would not.</p> <p>9. —Same—Letters.</p> <p>So, letters were admissible written by the insured to the coconspirator after the fire showing an anxiety to have the latter secretly leave his employment and go to the home of the insured, and offering him employment.</p> <p>10. —Same—Proof of Mortgage—Motive.</p> <p>Proof of the fact that the insured had mortgaged the property, and that the mortgage debt was about due, was admissible as tending to show a motive for burning the property.</p>

<p>Appeal from the District Court of Wharton. Tried below before Hon. T. S. Beese.</p>

<p>1. —Findings of Fact—Request for—Practice on Appeal.</p> <p>Where the case is tried by the court without a jury and there was no request that the court should And upon certain issues of fact and no complaint was made on that score until after an appeal had been perfected, such complaint comes too late.</p> <p>2. —Bond for Title—Limitations—Mortgage.</p> <p>Where S. executed a bond for title to J. and afterwards executed to another a mortgage on the same land, this could not put limitations in motion against the rights of the obligee in the bond until the obligor had been requested and had refused to perform the condition of the bond as to making a deed,—the payment of the consideration being acknowledged therein.</p> <p>3. —Same—Bond Passing the Legal Title.</p> <p>The ruling in Tomkins v. Broocks, 43 S. W. Rep., 70, holding that the bond for title involved in this case did not pass the legal title, is reviewed, but the point held immaterial here, since appellees in this case connected themselves with the equitable title it conveyed.</p> <p>4. —Same—Duplicate—Record—Copy.</p> <p>The fact that a bond for title, signed and acknowledged by the obligor and recorded, purported on its face to be a duplicate, did not warrant the assumption that it was a copy of the original bond that was recorded.</p> <p>5. —Same—Limitation of Three Years.</p> <p>A bond for title, where the consideration for the land has been paid, will support the plea of three years limitations as against the heirs of the obligor in the bond.</p>

<p>1. —Fire Insurance—Iron Safe Clause.</p> <p>It was a compliance with the iron safe clause that the insured kept his hooks in an iron safe of the kind, understood to be fireproof, and believed by him to be so, although the books were destroyed by fire while in the safe.</p> <p>2. —Same—Ownership of Property—False Statements.</p> <p>Where the policy provided that it should be void if the property was not owned in fee by the insured, or in case of fraud or false swearing by the insured, and a deed of the property had been made to the insured, but all the vendor’s lien notes, though due, had not been paid, and those facts were stated at the time to the insurance agent, a requested charge to find for the insurance company if the insured made false statements concerning the subject of the insurance was properly qualified by. the addition, “and known to be false at the time.”</p>

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

<p>'Appeal from the District Court of Houston. Tried below before Hon. John Young Gooch.</p>

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

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

<p>1. —Mortgage by One Without Title—Title Subsequently Acquired in Trust.</p> <p>L. gave defendants a mortgage upon a tract of land for which he was then being sued, and of which the adverse claimants afterwards proved to be the real owners, and he thereupon purchased their title, but not having the money to pay for it, agreed that plaintiff should take it, upon advancing the money, which plaintiff did. Judgment for the land was by agreement with the adverse claimants rendered in favor of L., and he was to convey it to plaintiff, but died without having done so. Defendants foreclosed their mortgage through the probate court without notice of plaintiff’s title, and purchased at the foreclosure sale, crediting the bid on their debt. Held, that plaintiff was entitled to recover the land of defendants, as L. never had the title thereto except in trust for plaintiff.</p> <p>2. —Same—Probate Foreclosure.</p> <p>The judgment of the probate court foreclosing defendants’ lien was not binding on plaintiff, the real and equitable owner of the land, who was not a party thereto.</p> <p>3. —Same—notice Immaterial.</p> <p>Defendants’ mortgage was of record at-the time plaintiff purchased through L., but questions as to the sufficiency of the record to charge notice are immaterial, since plaintiff, as a purchaser of the real title from an adverse claimant, could not be affected by notice of the mortgage either constructive or actual.</p>

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

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

<p>Appeal from the County Court of Dallas. Tried below before Hon. F. D. Cosby.</p>

<p>1. —School Land Purchase—Forfeiture—Reinstatement</p> <p>The Commissioner of the General Land Office may set aside an unauthorized and inadvertent attempt of his to forfeit a purchase of State school land and the payments thereon, for an abandonment, where there was no abandonment in fact.</p> <p>2. —Same—Sale to Minor—Validation.</p> <p>Where school land was sold in 1898 to a minor actually settled thereon, and he sold it to another person who became the substitute purchaser in the General Land Office and settled on the land, such sale to the minor, if void at all, was validated by virtue of chapter 150, General Laws 1899, p. 259.</p> <p>3. —Same—Substitute Purchaser—New Sale.</p> <p>Since the statute provides that when its terms have been complied with the substitute vendee of school land “shall become the purchaser direct from the State,” such substitute sale is to all intents and purposes a new sale. Rev.</p> <p>Stats., art. 4218k.</p> <p>4. —Same—Payments on Former Sale Credited.</p> <p>The Land Commissioner and State Treasurer having, however, recognized the conveyance from the original vendee to the substitute purchaser as at least having the effect of an equitable assignment of the benefit of the original vendee’s first payment of purchase money to the State and credited the substitute purchaser therewith, such action will he upheld as consonant with justice and contemplated by the statute, and it was not necessary for such first payment to be made again.</p>

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

<p>Appeal from the District Court of Matagorda. Tried below before Hon. Wells Thompson.</p>

<p>1. —County—Quarantine—Employment of Physician.</p> <p>The county physician has no authority to bind a county by employing physicians to treat smallpox patients except where the commissioners court has declared quarantine.</p> <p>2. —Pleading—Amendment.</p> <p>Refusing leave to withdraw announcement and amend pleadings will not tie ground for reversal without a showing by the complaining party as to what amendment he could have made and sustained.</p>

<p>1. —Practice on Appeal—Preponderance of Evidence.</p> <p>The jury being the judges of the credibility of witnesses, a verdict rendered on conflicting testimony will conclude the questions of fact.</p> <p>2. —Charge.</p> <p>A requested instruction on matters correctly submitted by the charge given, may be refused.</p> <p>3. —Estoppel—Pleading.</p> <p>The issue of estoppel by holding one’s self out as a partner should be made in the pleadings to entitle it to submission.</p>

<p>Chattel Mortgage—Registration—Landlord’s Lien.</p> <p>The landlord’s lien attaches to property of the tenant on the rented premises over the claim of a vendor of such property who took a chattel mortgage on it for the purchase money but filed same, not “forthwith” as required by the statute, but after a delay of seven days.</p>

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

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

<p>1. —Master and Servant—Railroad Hospital Service^—Incompetent Physician—Evidence.</p> <p>Where, in an action by an employe against a railroad for damages caused by an incompetent physician employed in the company’s hospital, the physician had testified that he had no diploma, it was harmless error for the court to exclude evidence that such physician was not a graduate of a medical college, because he had no diploma.</p> <p>2. —Same—Certificate—Evidence.</p> <p>Where such physician had been granted a certificate to practice medicine by the proper board of medical examiners, evidence was not admissible to show that he had not been properly examined by the board.</p> <p>3. —Same—Opinion.</p> <p>It was not competent for another physician who had never examined the company’s doctor, but had practiced medicine in the same town with him for eight years, to testify that he did not consider him well versed in the elementary branches of medicine.</p> <p>4. —Same—Hearsay.</p> <p>An account of the proceedings of the board of medical examiners, published in a newspaper in the county of the physician’s residence, was not admissible, it not being shown to have ever been brought to the attention of the defendant company.</p> <p>5. —Same—License to Practice—Record.</p> <p>The company’s physician having obtained a certificate from the board of medical examiners and deposited it for record with the clerk of the county and district court, this pretermitted any issue as to his being a licensed physician, although the' clerk wrongly recorded it with the county court records, instead of those of the district court.</p> <p>G.—Same—Hospital Fund—Ordinary Care.</p> <p>Where a railroad retains a certain sum monthly from the wages of its employes for the purpose of supporting a hospital for their benefit, but derives no profit therefrom, it is required to use only ordinary care in selecting a physician for such hospital, and where it uses such care it is not liable to an employe for injuries to him caused by such physician’s improper treatment.</p>

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

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

<p>1. —Life Insurance Policy—Death of Beneficiary.</p> <p>Where life insurance policies were made payable to the wife of the insured, if living, and if not living, then to his executors, administrators and assigns, and the wife died before the insured, the policies become, on his death,, a part of his estate, to be administered under the terms of Ms will.</p> <p>2. —Same—Will—Construction.</p> <p>Where the will of the insured did not mention the policies, but named certain of the testator’s children as Ms residuary legatees, other children not so named could claim no interest in the proceeds of the policies.</p>

<p>1. —Tax Sale—Collateral Attack.</p> <p>Where plaintiff purchased land at a sale trader a judgment in favor of the State for taxes and sued the former owner in trespass to try title to recover the land, defendant’s answer alleging a want of proper parties in the tax suit proceedings could not be regarded as a direct attack upon the tax sale.</p> <p>2. —Same—Limitation of Four Years—Sale Only Voidable.</p> <p>Where the tax sale was made in June, 1898, and defendant’s answer in the action of trespass to try title was filed August 7, 1902, it came too late, and could not be sustained as a collateral attack upon the sale, unless the sale was . void, and not merely voidable.</p> <p>3. —Same—Sale in Gross Not Void.</p> <p>A sale of several contiguous tracts of land in gross for taxes assessed in gross and under a judgment of foreclosure in gross, is not void. Following League v. State, 93 Texas, 553.</p> <p>4. —Same—Judgment—Writ of Possession.</p> <p>Although the defendant would have two years in which to redeem the land after the sale for taxes, the order of sale would properly issue on the judgment and the sale be made, but the judgment should withhold the writ of possession until the expiration of the two years.</p>

<p>1. —Injunction Restraining Judgment—County Court—Jurisdiction.</p> <p>A county court has not jurisdiction of a suit to enjoin a judgment rendered by the county court of another county.</p> <p>2. —Same—Adequate Remedy—Diligence.</p> <p>It was not ground for an injunction restraining the execution of a judgment that defendant and Ms attorney were prevented from being at the trial by quarantine restrictions where no effort was made to procure another attorney who could have continued the case or taken an appeal.</p>

<p>■1.—Estates of Decedents—Lien—'Jurisdiction of District Court.</p> <p>In an action to establish a claim against a decedent’s estate the district court has jurisdiction to establish a lien upon lands of the estate in plaintiff’s favor by virtue of a trust deed given to secure the debt. Following George v. Ryon, 94 Texas, 317.</p> <p>2. —Same—Parties—Trustee.</p> <p>’ In such an action it seems that it is not necessary to make the trustee a party. In this case, however, it appears that he was dead.</p> <p>3. —Homestead—Rural and Urban Not Combined.</p> <p>Where defendant, a farmer, lived with his family within the corporate limits of a town of 1500 inhabitants, upon lots aggregating an acre situated in an addition that was laid off into blocks, lots and streets, and owned 179 acres of land lying outside the city limits which he cultivated as a farm, the latter could not be claimed as exempt under the homestead law.</p>

<p>1. —Negligence—Concurring Cause—Separate Wrongdoer—Street Railway.</p> <p>Where, at the intersection of the defendant street railway company’s tracks with those of a railroad, the tracks of both companies were in bad condition, with the rails projecting above the surface of the street, and plaintiff's wagon wheel, striking the street car rail, was caused to slide until it struck the railroad rail, and he was thereby caused to fall and received injury, the defendant was not relieved from liability by reason of the concurrent negligence of the railroad.</p> <p>2. —Same—Pleading—Charge.</p> <p>While plaintiff’s petition did not allege that the culminating force causing his fall was the impact of the wheel with the railroad rail, yet, as it did not exclude such faci;, its mere appearance in the evidence did not justify a charge relieving the defendant of liability because of the concurring negligence involved.</p> <p>3. —Same—Charge.</p> <p>Such error in the charge was not relieved by a charge that if plaintiff was injured by reason of his wheel striking and sliding upon the street car rail, and defendant was guilty of negligence in failing to fill up the depression there to a level with the rail, the jury should find for plaintiff.</p> <p>4. —Evidence—Privileged Communication—Waiver.</p> <p>The bar of “privilege” to a communication testified to by defendant’s counsel was waived by plaintiff where he testified in relation thereto himself, and permitted the testimony of another witness relative to it to be received without objection.</p>

<p>1.—Boundaries—Agreement Fixing.</p> <p>Where a disputed boundary line between lands of the plaintiff and defend- • ant was fixed by agreement of the parties and survey thereunder, and later, defendant being dissatisfied with the result of the survey, a modified agreement was drawn up which defendant refused to sign, this left the original agreement in force and effect.</p> <p>g.-^-Same—Harmless Error.</p> <p>Where a survey under the modified agreement gave defendant more land than did the original agreement, defendant could not complain of a judgment in accordance with plaintiff’s prayer fixing the boundaries according to such latter survey.</p>

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

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

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

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

<p>1. —Appeal Bond.</p> <p>An appeal bond from justice court conditioned that appellant “shall prosecute his appeal to effect and shall pay off and satisfy'the judgment which may be rendered against him on such appeal,” complies with the statute in its conditions.</p> <p>2. —Same.</p> <p>Where the transcript from justice court showed that plaintiff had dismissed as to a defendant on whom it appeared to the court that the citation issued had not been served, but the final judgment was that plaintiff take nothing against such defendant and he go hence without day, a bond on appeal by a defendant against whom plaintiff had judgment was properly made payable to such codefendant as well as to plaintiff.</p>

<p>1. —Limitation—Pleading.</p> <p>A plea of the five years statute of limitation by which several defendants, each claiming portions of the land "sued for in severalty, unite in pleading possession of the land sued for, and that “they and each of” them plead the statute in bar of plaintiffs’ claim, is a plea of limitation jointly and severally for each defendant, which will entitle each to hold the portion respectively to which he established the defense of limation.</p> <p>2. —Five Years Limitation—Misdescription in Record.</p> <p>Record of a deed in which a conveyance of land out of the David Wilson survey was recorded, by error in copying, as the Daniel Wilson, the description being insufficient to identify the land without the name of the survey, was not such a registration of deed to the land as would support limitation under the five years statute; nor could the defect in the registration be aided by parol evidence to identify the land.</p> <p>3. —Limitation—Payment of Taxes—Description.</p> <p>A claimant rendering his land and paying taxes by a wrong abstract number, but giving the correct name of the survey, in the absence of a statement of facts, it will be presumed, in favor of a finding by the court that the land rendered and paid on was that in suit, that there was evidence warranting such finding.</p> <p>4. —Limitation—Payment of Taxes—Excess in Survey.</p> <p>Where a grantee in a recorded deed pays taxes on the number of acres called for in his conveyance, believing that he is paying for the full quantity in his possession, he may assert the five years statute of limitation to the extent of the boundaries in his deed, though it contains a greater acreage than he has paid taxes on.</p>

<p>1. —Assignment of Error—Generality.</p> <p>An assignment of error that “the court erred in instructing a verdict for the defendant in a fact case where there was ample evidence for the jury to have found for the plaintiff,” is not subject to the objection that it is too general for consideration.</p> <p>2. —Life Insurance—Lost Policy—Fact Case for Jury.</p> <p>Evidence held sufficient to require the submission of the case to the jury in an action on a life policy which had been lost.</p>

<p>1.—Deed—Delivery—Putting on Record.</p> <p>Where a father executed a deed of land to his minor children and on the . same day had it recorded, and thereafter retained possession of it until he ' produced it on the trial of a suit brought for partition of the land, there was a sufficient delivery of the deed.</p> <p>Z.—Bastards—Inheritance from, by Mother—Putative Father Excluded.</p> <p>By virtue of the statute which makes bastards capable of inheriting from and through their mother and of “transmitting estates,” the entire estate of a bastard dying intestate passes to his mother, to the exclusion of the putative father. Rev. Stats., art. 1700. '</p> <p>3. —Deed—Parol Evidence Varying—Delivery.</p> <p>Where a father executed a deed to his children and had it recorded, thereby making a delivery of it, parol evidence was inadmissible to show that he did not intend to give possession of the land until the youngest child became of age.</p> <p>4. —Same—Title Vesting—Subsequent Payment of Purchase Money.</p> <p>The deed of a father to his children having been delivered by virtue of its record, the fact that the father’s vendor lien notes, given to his grantor for the purchase money of the land, were still outstanding and were subsequently paid by the father, in nowise affected the absolute and full title which the deed had vested in the children.</p> <p>5. —Trespass to Try Title—Pleading—Rents.</p> <p>Where in trespass to try title plaintiff alleged that defendants had forcibly taken possession of the land and appropriated the rents and revenues thereof, this was sufficient to admit evidence that defendant had rented out the land and received the rents from his tenants.</p>

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

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

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

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

<p>Appeal from the District Court of Comanche. Tried below before Hon. J. C. Bandolph, Special Judge.</p>

<p>Appeal from the District Court of Hamilton. Tried below before Hon. W. J. Oxford.</p> <p>Certified questions in this case were answered by the Supreme Court in its opinion reported in Cox v. Thompson, 96 Texas, 468.</p>

<p>1. —Limitations—Adverse Possession—Judgment.</p> <p>A title to land obtained by judgment is within the purview of the statutes of limitations, and adverse possession of the land for ten years after the judgment, even though it be by the defendant in the judgment, will confer title.</p> <p>2. —Title—Recognition of—Judgment.</p> <p>The act of a buyer in purchasing land is not a recognition of a title to it held under and by virtue of a judgment where the seller’s title was not deraigned through the judgment, but from another source.</p> <p>3. —Limitations—Joint Tenancy—Partition.</p> <p>Where plaintiffs in an action in which the judgment divested defendant of the title to land did not claim an undivided interest, and the judgment decreed the title to be in plaintiffs, except a homestead already set apart by metes and bounds, the decree amounted to a partition, and there was no joint tenancy between plaintiffs and defendants which could prevent the statute of limitations from running in favor of defendant who remained in possession.</p>

<p>Appeal from the District Court of Tom Green. Tried "below before Hon. J. W. Timmins.</p>

<p>Appeal—Amended Bond—Fixing Amount.</p> <p>Upon permission granted to execute new appeal bond, it is to be approved by the Court of Civil Appeals and must be in double the probable costs as fixed by the clerk’s estimate in the record; an approval by the clerk of the trial court or a new estimate of probable costs at half the amount of the new bond, when the estimate in the record was more, is of no effect.</p>

<p>Appeal from the County Court of Nacogdoches. Tried below before Hon. Robert Berger.</p>

<p>1. —Partnership—Settlement—Limitations.</p> <p>In an action by one partner against his copartners for a settlement of the partnership accounts the cause of action is considered as having accrued on a cessation of the dealings in which they were interested together, and limitation runs from that date. Eev. Stats., art. 3356 (3).</p> <p>2. —Same—Pleading—Termination of Dealings—Conclusion.</p> <p>An averment that prior to a stated date it was not known to either of the partners and could not have been earlier ascertained by them, that all of the cattle (constituting the subject matter of the partnership) had been disposed of or had died, was not an averment that the dealings between the partners had not ceased prior to that time, and an averment that the agreement continued as an existing partnership until a given date was dependent on the averment that up to that time, and up to the present time, there had never been any settlement of the partnership business, and it was therefore a mere conclusion of the pleader.</p>

<p>Appeal from the District Court of Newton. Tried below before Hon. N. P. Nicks.</p>

<p>Appeal from the District Court of Nueces. Tried below before Hon. Stanley Welch.</p>

<p>1. —Killing Live Stock—Railroads—Negligence.</p> <p>In order to recover for live stock killed by a train in a railroad yard where the company is not required to fence its right of way, negligence on the part of the company must be shown. -</p> <p>2. —Same—Negligence for Jury.</p> <p>It was error for the court to charge that if the railway company maintained its stockyards and fencing in a stated way which was dangerous to stock this constituted negligence, as the question of negligence was one for the jury in view of all the surrounding circumstances.</p> <p>3. —Same—Evidence—Conclusion.</p> <p>It was error to permit witnesses to .testify to their conclusion that the place where plaintiff’s mule was killed by the train was “dangerous,” and that it could be closed up by a fence constructed in a particular manner.</p> <p>4. —Same—Charge—Fencing Right of Way.</p> <p>A charge that if plaintiff’s mule was killed at a point where defendant “had no right to fence in its right of way” then negligence must be shown, etc., was improper, and should have been to the effect that if the killing occurred at a point where defendant “was not required to fence” its right of way, then, etc.</p> <p>5. —Same—Value—Evidence.</p> <p>Whether the actual or the market value of the mule be considered as the measure of plaintiff’s damages, the facts that the animal was well broken and a good lead mule were admissible in evidence.</p>

<p>1. —Homestead—Release of Lien—Wife’s Separate Property—Descent—Heirs.</p> <p>Where a vendor’s lien on defendant’s homstead, evidenced by note secured by deed of trust, was released for a valuable consideration prior to plaintiff’s purchase of the note, and with his assent to such release, and this was prior to the death of defendant’s wife, who owned a two-thirds interest in the homestead as her separate property, her interest, upon her death, descended to her children free of such lien.</p> <p>2. —Same—Foreclosure—Parties—Heirs—Res Judicata.</p> <p>Plaintiff having, after the wife’s death, foreclosed the vendor’s lien on the property, bought it at the foreclosure sale, and subsequently recovered judgment against defendant; the husband, for possession of the property, the wife’s heirs not being made parties to either of these proceedings. Held, that the rights of the heirs were not concluded thereby.</p>

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

<p>1.—Sale—Delivery to Carrier—Title Passing.</p> <p>Where there is an oral contract for the sale of wheat, and the wheat is delivered to a common carrier and the bill of lading for it is delivered to the buyer, the title rests in him, and the transportation is at his risk.</p> <p>3.—Same—Contract Construed—Place of Delivery.</p> <p>Where there was an order by letter, for the purchase of two thousand bushels of “red wheat, new crop, at 65 cents delivered Galveston, f. o. b. — shipment within ten days. Delivery at -,” and the seller wrote in reply, “We book sale to you of 2000 bushels 65 cents Galveston,” the reference to Galveston was one of price only, and not as the place of delivery, and upon delivery to the carrier the title passed to the purchaser.</p> <p>3.—Evidence—Written Instrument Construed.</p> <p>Where a written contract is unambiguous, the admission of oral evidence as to its meaning which is in line with its proper legal construction is harmless error.</p>

<p>1. —Benefit Insurance—Membership—Initiation—Waiver.</p> <p>Where the deceased never appeared before the local lodge of a fraternal insurance order for initiation and was - never initiated into the order, but the order, with full knowledge of this fact, received all his assessments and dues and delivered to him the benefit certificate, it could not question his membership on that ground, as the initiation had been waived.</p> <p>2. —Same—Medical Examination.</p> <p>Evidence considered and held to warrant a finding that there was a sufficient medical examination of an applicant made under authority of the order.</p> <p>3. —Same—Answers of Application—Warranty—Opinion.</p> <p>It seems that the answer of an applicant for life insurance, that he has never had any serious illness, should be considered as a mere expression of opinion as to the character of the sickness, and should not avoid the policy, even though untrue and made a warranty, if the applicant did not know its falsity.</p> <p>4. —Same.</p> <p>Evidence held to warrant a finding that the applicant did not have tuberculosis at the time of the examination, although he afterwards died of it.</p>

<p>1. —Railroads—Signals at Crossing.</p> <p>The statute requiring that the whistle shall be blown and the bell rung at the distance of at least eighty rods from a public crossing and the bell kept ringing until the crossing is passed, requires that the bell be rung although the train starts from a point within less than eighty rods of the crossing.</p> <p>2. —Market Value—Charge—Harmless Error.</p> <p>Where no difference was shown in the evidence between the value and the market value of the property injured by an engine through a collision therewith, a failure of the charge to employ the term “market value” in defining the measure of damages was not reversible error.</p> <p>3. —Negligence—Joint Parties—Charge—Harmless Error.</p> <p>Where the charge instructed the jury to find against the plaintiff" whose negligence contributed to his injury, its failure to instruct—the evidence showing that both plaintiffs were traveling together at the time of the collision with their vehicle—that the negligence of either should be imputed to the other, if error, was rendered harmless by the fact that the jury, in finding a verdict for each plaintiff under the charge given, must have found that neither was guilty of negligence.</p>

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

<p>Usury—Contract for Compounding Interest.</p> <p>A contract stipulating that interest accruing each month on overdrafts to st bank shall be due and payable at the end of the month, and, if not paid then, shall bear interest at ten per cent per annum, is not tainted with usury, since it is permissible to so contract for compounding interest.</p>

<p>1. —Injunction—Restraining Justice Court Judgment.</p> <p>An injunction will not issue to restrain the execution of a justice court judgment—it being final’ and not appealable under the statute—where the court had jurisdiction and the object of the injunction suit is to review its action.</p> <p>2. —Same—Fact Case—Res Adjudicata.</p> <p>A justice of the peace, on the first trial, ruled out plaintiff’s sworn account as not being competent evidence, and rendered judgment against him. Plaintiff sued again and defendant pleaded res adjudicata, but in vain, the second judgment being for plaintiff, and defendant thereupon sued out an injunction to restrain its execution. Held, that as the justice had jurisdiction to determine the plea interposed and the amount involved was less than $20, plaintiff was without redress.</p>

<p>Appeal from the District Court of Hunt. Tried below before Hon. H. C. Connor.</p>

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

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