Volume 35 — Texas Civil Appeals Reports

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

<p>1. —Usury—Penalty—Agreement of Indemnity.</p> <p>One who has not promised or paid usury to a bank on a loan made by it, but has merely agreed to indemnify the bank against a judgment collaterally connected with the loan as to which usury is claimed, has no right to recover a penalty for usury which he can assign to another.</p> <p>2. —Same—Loan on Condition of Paying Another Debt.</p> <p>The fact that upon a loan of money by a bank it exacts as a condition to making the loan that the borrower shall secure to it the payment of another genuine and subsisting debt to it for which the borrower is liable, does not render the loan usurious; nor is the case altered by the fact that the other debt is of such nature that the borrower, upon paying it, can not have contribution from the other parties jointly liable with him therefor.</p>

<p>Appeal from the District Court of Mitchell. Tried below before Hon.. 0. H. Earnest, Special Judge.</p>

<p>Appeal from the District Court of Hall. Tried below before Hon. Sterling P. Huff.</p>

<p>Appeal from the District Court of Hemphill. Tried below before Hon. B. M. Baker.</p>

<p>Appeal from the District Court of Donley. Tried below before Hon. Ira Webster.</p>

<p>Appeal from the District Court of Mitchell. Tried below before Hon. James L. Shepherd.</p>

<p>Surety—Conditional Signing—Further Name to Be Added.</p> <p>A bond to secure C. was signed by S. and N. as sureties for the obligor, S. instructing C.’s agent at the time, and in the hearing of N., that the bond was not to be delivered until one B. had also signed it as a surety, but the bond was delivered and accepted without B.’s signature and without knowledge on the part of the sureties that his signature had not been obtained. Held that the condition and failure to comply therewith operated to release N. as well as S., since N. signed with the understanding that the bond was not to take effect without B.’s signature.</p>

<p>Appeal from the District Court of Scurry. Tried below before Hon. H. B. Jones.</p>

<p>Error from the County Court of Harrison. Tried below before Hon. H. T. Lyttleton.</p>

<p>Appeal from the District. Court of Harris. Tried below before Hon. W. P. Hamblen.</p>

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

<p>1. —Injury to Passenger—Pleading.</p> <p>Allegations of the time, place and manner of receiving his injuries, by a passenger hurt by sudden jerking of train, held sufficiently definite as against a general demurrer.</p> <p>2. —Personal Injury—Evidence.</p> <p>Evidence of a plaintiff as to his conduct as affected by his injury—his subsequent work at his trade and desisting from same—held admissible.</p> <p>3. —Same—Exhibition of Injury.</p> <p>There was no error in permitting a plaintiff to exhibit an injured limb to the jury to show the extent of injury sustained.</p> <p>4. —Jury—Reading Authorities.</p> <p>It is within the discretion of the court to permit counsel to read extracts from legal authorities to the jury in argument, and ground for reversal only when such discretion appears to have been abused to the prejudice of the opposite party.</p> <p>5. —Charge—Degree of Proof.</p> <p>The difference between instructing a verdict for plaintiff if the jury find certain facts from a preponderance of evidence, and for defendant if they find certain facts, if prejudicial to the latter, held cured by a proper charge elsewhere on the defense of contributory negligence.</p>

<p>■ 'Appeal from the District Court of McLennan. Tried below before Hon. Sam. R..« Scott.</p>

<p>1. —Railway—Sidings and Spurs—Railroad Commission.</p> <p>The Act of March 27, 1903, requiring railroads to build sidings and spurs when ordered by the Railroad Commission, authorizes the commission to require such construction for public purposes only and free from discrimination in favor of any individual.</p> <p>2. —Same—Preference in Use.</p> <p>An order of the Railroad Commission requiring a railway company to lay a spur track to the premises of a lumber company, the latter furnishing a graded right of way therefor, to be used by the lumber company for loading and shipping carload freight, with right of the railway to use same for the business of other shippers if it could be done without inconvenience to the business of the lumber company, contemplated a construction of track with preference to the individual shipper contributing to build it, not one to be used by the public without discrimination, as required of common carriers by the Constitution (art. 10, sec. 2), and the Railroad Commission could be enjoined from enforcing such order.</p>

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

<p>Sale—Shortage—Kansas City Weights.</p> <p>A contract for purchase and shipment of corn, to be paid for by the buyer at a named rate per bushel, with the stipulation that it was sold “on Kansas City weights and grades,” was ambiguous, and evidence was admissible to show that such stipulation was intended to relieve the seller from loss by waste and shrinkage in shipment, but not from fraud or gross mistake in the Kansas City weights. :</p>

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

<p>1. —Sale—Fraud on Creditors.</p> <p>Evidence considered and held not to show conclusively that a sale for value of his entire stock of goods, by one who was at the time insolvent, was in fraud of creditors, but to require submission of that issue to the jury.</p> <p>2. —Insolvent—Sale of Goods—Fraud of Creditors—Intent.</p> <p>The fact that one buying from an insolvent has notice of such insolvency and pays cash for a stock of goods without seeing that the money is applied to creditors, does not, of itself, render the sale fraudulent; notice Of intent to defraud creditors is necessary.</p> <p>3. —Charge as a Whole—Contradictory Paragraphs.</p> <p>Inconsistent paragraphs in a charge are not ground for reversal wheré the charge, when read as a whole, does not leave the jury in doubt.</p>

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

<p>Appeal from the District Court of Presidio. Tried below before Hon. B. C. Thomas.</p>

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

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

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

<p>1. —Mental Anguish—Failure to Stop at Flag Station.</p> <p>The failure of the employes on defendant’s train to stop at a flag station when flagged warranted a judgment for damages for personal inconvenience caused by plaintiff being forced to walk two miles in the dark over rough roads; but was not ground for recovery of damages for mental anguish caused by delay in reaching a dying grandchild under circumstances not known to those who failed to stop on his signal.</p> <p>2. —Same—Notice.</p> <p>Notice to the station agent at another place or to the conductor on another train of the object of a passenger’s trip and his intention to return, that night was not notice to the employes of the train which refused to stop-for him when flagged nor to the company.</p>

<p>Appeal from the District Court of Harris. Tried below before Hon. W. P. Hamblen.</p>

<p>Pol iceman—D ischarge—Salary.</p> <p>The cases of City of Houston v. Estes, ante, p. —, and City of Houston v. Lubbock, ante, p. —, followed and control this case.</p>

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

<p>1. —City Ordinance—Construction—Sounding Signals.</p> <p>Article 453 of the ordinances of the city of Galveston, providing that it shall he the duty of those in charge of an engine in motion within the corporate limits “to cause the engine bell to be rung continually, and the whistle to be sounded at every street crossing,” construed as requiring the bell to be rung continually while the engine is in motion regardless of whether or not it is at a street crossing.</p> <p>2. —Wharf—Abutting Street—Signals at Crossings.</p> <p>Where a street abuts against a wharf upon which trains are operated, that part of the wharf at which the street abuts and which is used by the public as a highway is a prolongation of such street and the same diligence in giving signals, etc., is necessary as at any other street crossing, regardless of the ownership of the wharf.</p> <p>3. —Negligence—Signals—Question of Fact.</p> <p>Though the omission of crossing signals required by statute or city ordinance may be negligence in law only with respect to persons using the crossing, circumstances may make it a question of fact whether the omission was negligence as to persons rightfully on the tracks at other points.</p> <p>4. —Charge—Evidence Presenting Issue.</p> <p>A charge instructing the jury that "deceased in the discharge of his duties had a right to be upon the cars and track of the defendant company * * * ” can not be assailed on the ground that the issue of whether deceased was in the discharge of his duties was not presented where the evidence showed that he was an inspector of customs and that he had started across the track to inspect a car of rails which had been loaded for shipment when he was killed by defendant’s train.</p> <p>5. —Negligence—Charge—Duty to Keep Lookout.</p> <p>Deceased, in the discharge of his duty, was attempting to pass through a space between two cars standing on the track when he was caught and killed by the cars being pushed together for the purpose of making a switch. A charge that defendant would be liable for damages if the jury believed that the employes failed to have a lookout to discover and prevent injury to persons on the track can not be construed as requiring the company to station a man on the end of the car which struck plaintiff, but simply required the use of reasonable care in keeping a lookout to prevent injury to persons who might go on the track after the cars were put in motion; nor was it relieved from such duty by having sent a man to see if the track was clear before putting the cars in motion.</p> <p>6. —Requested Charge—Refusal—Contributory Negligence.</p> <p>It is not error to refuse a requested special charge upon contributory negligence where the same issues have been sufficiently presented in the main charge.</p>

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

<p>Appeal from, the County Court of Clay. Tried below before Hon. James F. Carter.</p>

<p>1. —Railroads—Fellow Servants—Contributory and Concurring Negligence.</p> <p>Plaintiff, while in the service of the Pecos & Northern Texas Railway Company and engaged in transferring a boiler from a pump house to an engine house in its yards, was injured by reason of a passing switch engine striking a plank left on a switch track by one of the crew engaged in moving the boiler. There was evidence that the foreman of such crew ordered plaintiff and others to clear the switch track, and that one of plaintiff’s fellow servants failed to do so, but plaintiff testified that he did not hear the order, and was at the time with his back to the switch track, supporting some timbers with a cowbar, awaiting orders, and did not know the conditions of the track or hear the approach of the engine. Held, that the court erred in instructing a verdict for defendants on the ground of contributory negligence. If there was negligence on the part of the engine crew, who were not, under our statute,- fellow servants of plaintiff, plaintiff’s right of recovery would not be defeated because negligence on the part of some of the boiler crew, who were his fellow servants, also concurred in producing the injury.</p> <p>2. —Same—Railroad Jointly Using Tracks and Yard.</p> <p>That the engine causing plaintiff’s injury may have belonged to and was being .then operated by another railroad company, which was jointly using the switch tracks and yards of the Pecos & Northern Texas Company, would not take away the liability of the latter company for the injury, although the other company might also be liable.</p>

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

<p>1. —Continuance—Application—Materiality.</p> <p>Where an application for continuance stated that “to show the materiality of the testimony of the witnesses for which this continuance is sought defend-1 ants state that they expect to prove,” etc., followed by a statement of facts which on the face of the application seem to have been material, but contained no direct averment that the testimony was material, the application was properly overruled. Rev. Stats., art. 1278.</p> <p>2. —Same—Due Diligence.</p> <p>An application for continuance is defective which fails to state that the applicant “has used due diligence" to procure the absent testimony, although the facts stated may seem to show diligence.</p> <p>3. —Pleading—Stating Date—Certainty.</p> <p>A petition alleging breaches of a liquor dealer’s bond as having been, made “on or about the 23d day of December, 1901, and on divers days before and after said date during said month,” was not subject to special exception for being too vague, indefinite and uncertain.</p>

<p>Appeal In Forma Pauperis—Proof Before Trial Judge.</p> <p>Proof of inability to give security for the costs of an appeal, when made before the trial court, must be made while the court is in session, and an ■order or judgment should be entered of record showing that the action taken was the action of the court. Proof before the clerk, with a fiat of approval by the judge indorsed thereon, it not appearing whether this was done in term time or in vacation, is not sufficient. Rev. Stats., art. 1401.</p>

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

<p>1. —Railroad in Street—Nuisance—Limitation.</p> <p>Recovery for permanent damages to property by the construction and operation of a railway in the street on which it abuts is barred in two years from such construction where such damages consist in the obstruction of the use of the street by such railway, or noise, smoke and vibration caused by a subsequently increased use of the track and not from a change in construction, or by diversion of surface water.</p> <p>2. —Same.</p> <p>Damages from such negligent maintenance of the railway embankment in a street as to obstruct, by dirt falling therefrom, the roadway beyond the limits of the embankment were not recoverable prospectively by the-abutting owner at the time of the original construction, and are only barred in two years from the time such negligence caused injury, and so also as to negligent injury by the company in trimming shade trees in front of the premises, though it might trim them in a proper manner to prevent their interference with its trains.</p>

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

<p>1. —Probate Sale—Description of Land Certificate.</p> <p>An order in administration proceedings for the sale of “one-third of a league of land the headright certificate of deceased" and report and confirmation of a sale of “one-third of a league of land granted to the heirs of J. R„ deceased, by the board of Land Commissioners of Harrisburg County, No. 396, dated February 3, 1838," sufficiently identified the land ordered sold.</p> <p>2. —Probate Sale—Close of Administration.</p> <p>Where no order appeared closing administration, the power to make sale of property of the estate was not lost though ten years had elapsed without any order being made in the administration proceedings.</p> <p>3. —Probate Records—Certificate.</p> <p>A certificate by the clerk that a transcript from the probate records was a correct copy of all the proceedings had in the estate and entered of record in certain pages of two named volumes of the records, did not show that no other orders were made and entered.</p>

<p>1. —Evidence—Transfer of Certificate—Ancient Instrument.</p> <p>A transfer of a land certificate coming from the proper custody, dated more than forty years ago, and under which title has been claimed, with no circumstances casting suspicion on its genuineness, is admissible without proof of its execution or that it had actually existed for twenty years, though its genuineness had been attacked by affidavit.</p> <p>2. —Same—Identifying Certificate.</p> <p>A transfer of a land certificate “No. - issued in said county of W„ for one-third of a league of land, to me, the said W. C., as a headright,” sufficiently identifies the duplicate one-third league headright certificate of the person transferring it, and evidence that an augmentation certificate for two-thirds of a league and labor was subsequently issued to the same party, had no tendency to disprove such identity.</p> <p>3. —Power of Attorney—Presumption—Ancient Instrument.</p> <p>A power of attorney is conclusively presumed in support of a conveyance by attorney, more than thirty years old, coming from the proper custody, and found to be genuine.</p> <p>4. —Evidence—Land Office Copy—Affidavit.</p> <p>A certified copy, from the records of the Land Office, of an affidavit by a third party that he was the owner of the headright certificate on which patent to the land in controversy was issued, is not admissible in disparagement of the title of another claiming the land by transfer from the grantee óf the certificate.</p> <p>5. —Evidence—Character for Truth.</p> <p>A’ party can not introduce evidence of his own character for truth, which has not been impeached otherwise than by the introduction of evidence conflicting with his own.</p>

<p>1. —Railway—Master and Servant—Death—Negligence.</p> <p>Facts considered and held to support a recovery for damages resulting from death of a watchman on railway bridge run down by train, by reason of negligence in running it at speed prohibited by the rules and without customary signals and in failing to use due care to discover his perilous position or to avoid striking him after discovering it.</p> <p>2. —Discovered Peril—Charge.</p> <p>A charge that if railway employes operating a train saw a person on the track in time to avoid striking him it became their duty to exercise ordinary care to avoid collision, held not to be upon the weight of evidence when considered in connection with other charges.</p> <p>3. —Charge—Evidence—Discovered Peril.</p> <p>Evidence considered and held sufficient to justify the submission of the issue of negligence in the duties arising from the discovery of the perilous position of a watchman on a railroad bridge by the engineer of a train, though the engineer denied having discovered it in time,—there being circumstances tending to show the contrary.</p> <p>4. —Persons on Track—Lookout.</p> <p>At points where persons may be expected to be rightfully found on the track, those operating railway trains must exercise ordinary care in keeping a lookout for them.</p> <p>5. —Contributory Negligence.</p> <p>Evidence considered, in case of a watchman on railway bridge run down by train, and held to show circumstances under which the question of his contributory negligence was one of fact for the jury, involving the effect of omission of usual signals, and his right to rely on them and to expect the train to be run within the speed limit required by the rules.</p> <p>6. —Negligence—Master and Servant—Assumed Risk.</p> <p>Where a judgment for death of a servant is sustained on the ground that the injury was caused by negligence of another employe (not his fellow servant) and without contributory negligence of deceased, no question of assumed risk is involved; risks arising from such negligence are not assumed by the servant.</p> <p>ON MOTION FOR REHEARING.</p> <p>7-—Death—Damages—Charge.</p> <p>A charge that the damages, recoverable for the death of a relative should be the “pecuniary loss, if any, sustained by the plaintiffs by reason of the death,” was not erroneous in the absence of request for a charge limiting recovery to the present value of the future benefits reasonably to be expected' had he not been killed.</p>

<p>1. —Assigning Part of Cause of Action—Attorney—Liability for Costs.</p> <p>An attorney for a plaintiff, ¡having become the owner of a part of the cause of action by transfer before suit is brought, is not thereby liable, as a party to the suit, for security for costs.</p> <p>2. —Permanent Injuries—Mortality Tables—Evidence.</p> <p>Evidence held to show permanent injuries to a railway switchman warranting introduction of mortality tables as evidence.</p> <p>3. —Argument of Counsel—Improper Remarks—Withdrawal.'</p> <p>Improper remarks by counsel to the jury, where withdrawn, held not ground for reversal.</p> <p>4. —Pleading—Raising Issue.</p> <p>Pleading and evidence held to properly raise the issue of negligence on the part of defendant in failing to keep appliances in repair.</p> <p>5. —Charge—Negligence—Issue Raised.</p> <p>A charge, upon negligence which ignores the defense of assumed risk is not erroneous where it is not shown that there was any testimony raising this issue.</p> <p>6. —Pleading—Defective Car—Failure to Inspect.</p> <p>A petition alleging negligence of defendant in respect to furnishing a safe car embraced a negligent inspection or failure to inspect such car.'</p> <p>7. —Verdict—Railway Switchman.</p> <p>Evidence considered and held to support a verdict of $7500 as not excessive, in the case of a railway switchman being thrown from the top of a moving box car by reason of a defective brake.</p>

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

<p>Error from the District Court of Presidio. Tried below before Hon. A. M. Walthall.</p>

<p>Public Land—Actual Settler—Proof of Occupancy.</p> <p>It was error for the trial court to exclude evidence offered to show that plaintiff was not an actual settler where defendant had settled on and made application to purchase the land in controversy before proof of occupancy was made by plaintiff to the Commissioner of the General Land Office. Par-due v. White, 21 Texas Civ. App., 121; Logan v. Curry, 95 Texas, 664, distinguished.</p>

<p>Error to the District Court of Smith. Tried below before Hon. J. Gordon Russell.</p>

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

<p>1. —Contributory Negligence—Riding on Freight Train.</p> <p>Where, in violation of the known orders of the railroad company, though with the permission of the conductor, deceased took passage on a freight train, and voluntarily assumed a dangerous position thereon, going upon an open flat car instead of into the caboose, and was killed .through a derailment of the train caused by running it at an excessive rate of speed over a rough track, he was guilty of such contributory negligence as precluded a recovery for his death. Following Railway v. Rogers, 93 Texas, 677.</p> <p>2. —Same—Charge Assuming Negligence.</p> <p>Under such facts the court would have been warranted in giving a charge which assumed that deceased was guilty of contributory negligence in so riding upon the train if he knew the rule was in force forbidding persons to ride on freight trains, and that the officers of the company were trying to enforce the rule, although the conductor may have given him permission to ride thereon.</p> <p>3. —Same—Duty Toward Trespasser—Excessive Speed.</p> <p>Running a freight train at an excessive rate of speed is not in itself such a reckless disregard of human life as will render the company liable for the death caused thereby of one who is a trespasser on the train.</p>

<p>Appeal from the County Court of Midland. Tried below before Hon. L. M. Murphy.</p>

<p>1. —Evidence—Reading Deposition—Witness at Trial.</p> <p>Where plaintiff was present and testified at the trial, and defendant’s counsel, in cross-examination and for the purpose of impeaching her, interrogated her as to certain answers she had made in a deposition of hers on file in the case, it was admissible for her to read in evidence, from the deposition, her answer to one of the interrogatories therein.</p> <p>2. —Same—Rule Stated—Judicial Discretion.</p> <p>The matter of permitting the deposition of a witness to be read in evidence after he has testified on the trial rests largely in the discretion of the trial court, and its action therein will not be ground for reversal unless it is made to appear that such discretion has been abused to appellant’s injury.</p> <p>3. —Trespass to Try Title—Improvements and Rental Value.</p> <p>In trespass to try title and’cancel a deed where the undisputed evidence showed that the rental value of the premises during the period of defendant’s possession and use thereof exceeded the value of his improvements, there was no basis upon which the jury could have predicated a verdict in his favor for the value of the improvements, and the court did not err to his prejudice in omitting to submit such issue.</p> <p>4. —Same—Delivery of Deed.</p> <p>In such action, while counsel for defendant was arguing the law to the court, the court stated that it did not desire to hear argument on the question of the delivery of the deed, as the jury would be charged, as an undisputed fact, that the deed was delivered. Such charge was not given, but the delivery of the deed appears to have been treated by the court and all the parties litigant as an established fact. Held, that defendant was not injured in being misled and deprived by the remark of the court of the benefit of an argument to the jury on the matter of the delivery of the deed.</p> <p>5. —Same—Cancellation of Deed for Fraud—Evidence.</p> <p>The fact that the deed from plaintiff to defendant, her son, was absolute on its face and was delivered to defendant, would not prevent plaintiff, under proper allegations, from showing that the agreement was that it was not to take effect until plaintiff’s death, and its consideration was to be that the grantee would support her during her life, and that she was to retain control of the premises, and that she was unable to read, and signed the deed relying upon the grantee having prepared it in accordance with the agreement. There was no assent of the grantor's mind to the deed that was executed, absolute in terms and reciting the consideration to be one dollar and love and affection.</p>

<p>1. —Contributory Negligence—Passenger Sitting by Window.</p> <p>A passenger injured by. reason of a cinder from the engine entering his-eye was not guilty of contributory negligence in sitting by an open car window through which the cinder entered the car.</p> <p>2. —Passenger—Waiver of Injury in Free Pass.</p> <p>A limitation of liability, in a railroad pass, signed by the recipient of the pass, .whereby he assumes all risks of accident or damage to person or property, is void as against public policy.</p> <p>3. —Carrier of Passengers—Degree of Care—Charge.</p> <p>A charge requiring a railway company to use “proper care” in keeping in repair the appliances for preventing the escape of sparks from its passenger engines does not require too high a degree of care, and the term “proper care” does not require any definition in order to prevent the jury from understanding it as requiring care in too high a degree.</p> <p>4. —Personal Injury—Damages for Lost Time.</p> <p>The fact that at the time of his injury plaintiff was not actually engaged in any employment and was not earning anything will not preclude a recovery for the value of his time lost on account of the injury, as it will not be presumed that he would not have secured employment had he not been injured.</p> <p>5. —Contributory Negligence—Care in Attending to Wound—Charge.</p> <p>Where the main charge instructed the jury that if plaintiff failed to use ordinary care to avert and lessen his injuries, and that by reason thereof they were aggravated, he could not recover for such aggravation, a special charge instructing that if plaintiff did exercise ordinary care in attending to his wound, then defendant would be responsible for same, although the jury might believe that had he pursued some other course or adopted some other measures the injury would not have resulted so seriously,—merely gave in an affirmative manner plaintiff’s contention on the issue, and was not on the weight of evidence in giving undue prominence to that matter.</p> <p>6. —Carrier of Passenger—Contributory Negligence—Passenger Sitting by Open Car Window.</p> <p>A requested charge, set out in the opinion, as to negligence on the part of a passenger in sitting by an open car window, held properly refused as on the weight of evidence, and one given held to fairly submit the issue, if it can be said in any case that such an act can constitute contributory negligence.</p> <p>7. —Personal Injury—Damages—Accident Policy as Lessening Recovery.</p> <p>In an action for personal injury evidence was not admissible on the issue.of contributory negligence to show that the injured person carried an accident policy which had since been paid, as this could not have the effect of reducing the compensation, if any, to which he was entitled.</p> <p>8. —Evidence—Exclusion by Oral Instruction of Court.</p> <p>Plaintiff's counsel, in the examination of certain witnesses on the trial, exhibited to them a piece of old wire netting such as is used in spark-arresters of engines and sought to have them identify it as part of the spark-arrester of the engine in question, but they did not so identify it, and the court thereupon told the jury not to consider the piece of netting at all nor the testimony in reference to it, as it was excluded. No special charge in writing was requested in reference to the matter. Held, that the presumption obtains that the jury were not influenced by the evidence.</p>

<p>1. —Will—Conveyance in Writing.</p> <p>Article 624, Revised Statutes, providing that a conveyance of interest in land from one person to’ another shall be m writing duly subscribed, applies to deeds and not to wills.</p> <p>2. —Description in Will—Intention of Testator.</p> <p>It is not held that a bequest may not be void because of a defective description of the thing intended to be conveyed, but where such thing is identified by sufficient description the intention of the testator will be carried out if it can be gathered from the entire instrument, and the broadest liberality in construction is allowed in ascertaining such intention.</p> <p>3. —Devise—Building—Houses—Rents Include Property.</p> <p>The terms “building” or “houses” include the real estate on which they are situated unless the general meaning of the terms is modified by the language of the context, and an absolute devise of the entire rents of a named property will carry the property also.</p> <p>4. —Will—Construction.</p> <p>See will construed as passing title to lots and improvements and not merely to rent from the same.</p> <p>5. —Will—Charitable Devise—Intention</p> <p>Where a will provided for the establishment, by the executors, of a charitable institution, after the death of certain devisees, from rents which were to go to such devisees during their life time, the fact that the devisees outlived the executors and the institution was never established by the executors named in the will for such purpose can not defeat the general purpose of the testator in the establishment of the charity.</p> <p>6. —Will—Charitable Devise—Designation of Beneficiaries.</p> <p>A will establishing a “widows and orphans home, * * * contributing as far as possible toward ameliorating the condition and comforting the unfortunate of that class,” held not subject to the objection that the class named as beneficiaries is too indefinite and includes all widows and orphans regardless of whether they are in need of charity, where the intention of the testator was that such home should be for the care of the poor and needy.</p> <p>7. —Charitable Devise—Trustees—Beneficiary.</p> <p>A devise of the estate in remainder after the death of devisees for lifei for the establishment of a widows and orphans home to be created and incorporated by the trustees for the relief of persons of that class in a 'certain city, held not void for want of a trustee or beneficiary capable of taking title; the title was in the trustees till the creation of and transfer to the contemplated corporation by them.</p>

<p>Lease—Tenancy at Will of Lessor.</p> <p>A lease of property giving the lessees permission to improve the premises as they desire and providing that “this lease is to continue for such time as the said Wilson & Runnels or either of them may desire to use the same,” is construed as creating a tenancy' at the will of the lessees and is therefore at the will of the lessor.</p>

<p>1. —Taxation—Personal Property of Nonresident.</p> <p>The State has power to tax all personal property within its jurisdiction though the owner resides beyond the State.</p> <p>2. —Same—Situs of Property—Municipal Bonds.</p> <p>Municipal bonds and securities, though issued by a city in and owned by a citizen of another State, assume a concrete form beyond that of mere evidence of debt, which gives them a tangible situs and renders them subject to taxation in Texas when brought here by the owner and employed in his business within the State.</p> <p>3. —Foreign Corporation—Deposit of Bonds.</p> <p>Bonds of the city of Baltimore owned by a Maryland surety company and deposited by it with the State Treasurer of Texas, in accordance with section 2 of the Act of June 10, 1897, for the purpose of enabling such company to do business in this State, were liable to rendition and taxation for State and county purposes in the county of Travis, in which they were so held by the Treasurer.</p> <p>4. —Same—Treasurer—Rendition for Taxes.</p> <p>Municipal bonds owned by a Maryland corporation and deposited by it with the State Treasurer of Texas, in Travis County, for the purpose of obtaining a permit to do business in the State were the personal estate of a moneyed corporation within the meaning of article 5063, Revised Statutes, and were properly taxable there under the laws of the State.</p> <p>5. —Same—Rendition—Bailee—Assessor.</p> <p>The State Treasurer, as bailee of bonds deposited with him by a corporation of another State in order to obtain permission to do business in Texas was such an agent or trustee as was authorized by the statute to render the same for taxation; and if not, the adoption of his rendition by the county officer was sufficient, it being his duty to list- unrendered property.</p>

<p>1. —Evidence.</p> <p>In a prosecution for breach of a liquor dealer’s bond for selling intoxicants to plaintiff’s minor son, it was error to permit defendant to prove that such minor was reputed to be or that he was in fact a gambler.</p> <p>2. —Same—Age—Comparison.</p> <p>In a suit for selling liquor to a minor is was not permissible for defendant to place witnesses on the stand merely to ask them their age, whether for comparison with the appearance of the alleged minor or for any other purpose.</p>

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

<p>1. —Injunction—Return—Judgment—Superior Lien.</p> <p>An injunction which did not attack the validity of a judgment foreclosing a lien on property or attempt to stay its execution, but was granted merely to protect property from sale upon which a lien was claimed superior to that held by the parties owning the judgment, might properly be returned to another county than the one in which the judgment was rendered.</p> <p>2. —Notice—Builder’s Lien—Deed of Trust.</p> <p>Notice to the agent of a machinery house that there was a builder’s lien on certain houses was notice to his employers, and the builder’s lien was superior to a deed of trust subsequently given on such buildings and the machinery therein.</p> <p>3. —Builder’s Lien—Recording—Constitutional Law.</p> <p>Article 16, section 37, of the State Constitution gives a lien upon buildings and lots upon which they are situated to the builder upon his furnishing the material, and the filing and recording of the building contract is not essential to the validity of the lien as to the parties or those dealing with them with notice; and an express lien by contract has the same effect.</p> <p>4. —Description of Property.</p> <p>Description in building contract and notes given for the erection of the buildings held sufficient where those giving the lien had no other property.</p> <p>5. —Constitution—Builder’s Lien.</p> <p>A “builder’s lien,” as defined by the Constitution, extends to the lots upon which the buildings are situated as well as the buildings themselves, and the same effect will be given to an express contract for a “builder’s lien.”</p> <p>6. —Liens—Sale to Satisfy.</p> <p>Where one has a first lien on the machinery in a gin plant and another a first lien on the building and lots, each having also second liens, the machinery should be sold separately from the building and lots.</p> <p>7. —Attorney Fees—Correcting Judgment.</p> <p>Agreement as to what should be secured by liens held not to include attorney fees, and judgment allowing such corrected.</p>

<p>Married Woman—Conveyance—Ratification.</p> <p>The act of a married woman in attempting to convey land by deed to her children, without being joined by her husband and having no power of attorney from him to act as his agent, though professing to act as -such agent in conveying, was, in itself, void; but where, after the death of her husband, she had a guardian appointed for her children, represented the land to be theifs, and acquiesced in and received the proceeds of the sale of the land by the guardian, such ratification of the deed estopped her and her heirs to set up title against the purchaser at guardian’s sale.</p>

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

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

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

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

<p>Appeal from the District Court of Harris. Tried below before Hon. Norman G. Kittrell.</p>

<p>1. —Notice—Minor—Guardian—Limitation.</p> <p>A minor was charged with notice o£ facts disclosed by the record in a legal proceeding to which her guardian was a party, and can not avoid the subsequent running of limitation on plea of ignorance and concealment of such facts.</p> <p>2. —Limitation—Constructive Trust.</p> <p>A mere admission that one has received money lawfully due another does not establish against him such a continuing trust as would prevent the running of limitation.</p>

<p>Appeal from the County Court of Tom Green. Tried below before Hon. Milton Mays.</p>

<p>1 —Master and Servant—Duty of Servant to inspect Appliances—Assumed Risk—Charge.</p> <p>A servant is not required to exercise even ordinary care to discover defects, though patent, in appliances furnished by the master, but could assume that they were safe, and in acting upon such assumption assumed no risk unless he actually knew of such defects. Charge on assumed risk held correct.</p> <p>2. —Charge—Modification by Court.</p> <p>The court has authority to modify a charge asked by a party and give it to the jury without rewriting the whole .charge.</p> <p>3. —General and Special Charges.</p> <p>There is no error in refusing special requested charges upon issues covered by the general charge.</p> <p>4. —Charge—Negligence—Proximate Cause.</p> <p>Charge upon negligence and proximate cause of injury to plaintiff caused by the breaking of a defective truck held correct when read in connection with other paragraphs of the charge.</p> <p>5. —Servant—Duty to Inspect Appliances.</p> <p>Evidence held not to show a duty of servant engaging in moving freight on a truck to inspect the appliances used by him.</p>

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

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

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

<p>Appeal from the County Court of Bosque. Tried below before Hon. B. J. Ward.</p>

<p>Appeal from the District Court of Archer. Tried below before Hon. Ira Webster.</p>

<p>Appeal from the District Court of Potter. Tried below before Hon. Ira Webster.</p>

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

<p>1. —Trust Deed—Substitute Trustee—Evidence.</p> <p>A written appointment, by the person secured by a trust deed, of a substitute trustee, reciting that the original trustee had declined to act, was evidence of the appointment of the substitute, but not of the happening of the contingency, the refusal of the original trustee to act, which by the terms of the trust deed authorized such substitution.</p> <p>2. —Trust Deed—Recitals in Trustee’s Deed.</p> <p>A provision in a deed of trust, that, in any deed given by any trustee thereunder, any and all statements of fact or other recitals therein made as to the nonpayment of the money secured, or as to the time, terms and place of sale and property to be sold having been duly published, or as to any other preliminary act or thing having been duly done by said trustee should be prima facie evidence of the facts so recited, did not make the recital by a substitute trustee of the refusal of the original trustee to act evidence of such fact.</p>

<p>1. —Acting from Terror—Actual Danger—Pleading.</p> <p>Allegation, of injury received in jumping from wagon in terror at alarm of team by railway train held sufficient to show that there was actual danger though not directly so stating.</p> <p>2. —Charge—Assuming Fact.</p> <p>Charge held erroneous as assuming the fact that there was real or apparent danger of the injured party being thrown from the wagon in which she was riding at the time she jumped therefrom and received injuries in consequence.</p> <p>3. —Negligence—Proximate Cause—Acting on Appearance of Danger.</p> <p>Where danger, real or apparent, caused by defendant’s negligence is relied on as having caused the act of the" injured party which, in the effort to escape such threatened danger, caused the injury, and not merely as excusing contributory negligence, such negligence of defendant can not be considered a proximate cause of the injury unless the circumstances created, in the mind of the injured person, a reasonable apprehension of danger. .</p> <p>4. —Fright of Team—Contributory Negligence.</p> <p>Charge on contributory negligence of driver of team in approaching a railway crossing which, it is held, should have been given.</p>

<p>1. —Public Road—Report of View—Objections.</p> <p>When, on petition for opening a road, a jury of view has reported and recommended a location, no form is prescribed for the objection to the commissioners court against its opening mentioned in ar-ticle 4695, Revised Statutes; and a written statement by one through whose land it is surveyed that he will take a less sum than the damages assessed if it is opened around instead of across his land, is a sufficient objection to laying it out as surveyed to authorize the court to depart from the line surveyed by the jury and accept that offered by such land owner.</p> <p>2. —Same—Discretion of Commissioners Court—Mandamus.</p> <p>The commissioners court is invested by the statutes with a discretion in determining the necessity for a public road and its location, which can not be controlled by mandamus.</p>

<p>1. —Charge—Asuming Facts.</p> <p>Charge held erroneous and on the weight of evidence because assuming the fact that plaintiff’s deceased son, for causing whose death defendant was sued, was of industry, capacity and disposition to continue to earn money and contribute to the father’s support in the future.</p> <p>2. —Transcript—Matters Improperly Included.</p> <p>The inclusion of matters not properly belonging in the transcript (a motion for continuance on which no errors were assigned and affidavits relating to exceptions not saved by bill) was not ground for striking out the statement in the appellate court, but merely for taxing appellant, though successful, with the unnecessary cost incurred.</p>

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

<p>Appeal from the County Court of Limestone. Tried below before Hon. James Kimbell.</p>

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

<p>1. —Garnishment—Surety Company—Deposit.</p> <p>Plaintiff, having a claim against a contractor, was not entitled to garnish a deposit which the contractor had made with a surety company as an indemnity for bonding him, where the amount which the surety company owed the contractor, after deducting commissions and attorney fees, was yet unsettled and not ascertainable.</p> <p>2. —Assignment of Deposit—Power of Attorney—Judgment.</p> <p>An assignment, by one claiming to be an attorney for a contractor, of a deposit with a surety company given as an indemnity for bonding him, to one to whom such contractor is indebted, held ineffective because the evidence supported a finding that no such power of attorney to assign was given and a finding to that effect would be involved in a general finding against the claim under the assignment.</p>

<p>1. —Heirs—Injury to Property—Burden of Proof.</p> <p>Plaintiffs suing, as heirs of their deceased parents, to recover damages for injury to property occuring before the death of the parents, could not recover the whole amount of the damages in the absence of proof that they are the sole heirs, nor any part thereof without showing what proportion of the whole damages they, as heirs, were entitled to recover, the burden of proof of the extent of their interest being upon plaintiffs.</p> <p>2. —Measure of Damages—Opinion Evidence—Market Value.</p> <p>The measure of damages for injury to a peach orchard was the difference between the market value of the land upon which the orchard was situated before and after such injury, and it was error to permit witnesses to give their opinion as to the market value of the land where the testimony showed that they were not acquainted with the market value of plaintiffs’ land or of similar land with orchards thereon.</p> <p>3. —Tort—Injury to Property—Death—Survival of Action.</p> <p>A right of action for injury by trespass to the real property of a decedent during her life, being assignable, survived her death and could be maintained by her heirs.</p>

<p>Negligence—Failure to Give Signals—Discovered Peril.</p> <p>Evidence considered and held sufficient to support a verdict for $1000. damages for the death of plaintiffs’ child at a railway crossing caused by failure of defendant to give signals and to use every means in their power to prevent the injury after discovery of the perilous position of deceased.</p>

<p>Husband and Wife—Community Property.</p> <p>There being community debts at the time of the death of the wife, the husband had the right to sell community property for the purpose of paying such debts. The purchaser’s title was good as against a claim for the land by the heirs of the wife, and he was not bound to see that the purchase money was applied to the payment of the community debts.</p>

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

<p>1. —County Taxes—Collector—Tax Rolls—Payment.</p> <p>A county tax collector has no right to receive a payment of taxes before the tax rolls of the county» have been turned over to him, although such tax rolls have been duly assessed and approved, and a county may recover from the taxpayer the amount of taxes so paid but not accounted for by the tax collector.</p> <p>2. —Same—Apparent Authority.</p> <p>The public must take notice of the actual authority of public officers and know that they can not bind the government beyond it.</p>

<p>Appeal from the County Court of Denton. Tried below before Hon. I. D. Ferguson.</p>

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

<p>Pleading—Defect Cured by Verdict—Mutual Mistake.</p> <p>Where, in an action to correct a mistake in a division of land, plaintiff’s petition alleged that the error was due to “some mistake, inadvertency, accident or miscalculation,” a failure to allege that the mistake was mutual was cured by the verdict, and objection on that account could not be made "for the first time on motion for new trial. '</p>

<p>1.—Charge—Ignoring Issue—Public Road—Telephone Line.</p> <p>Plaintiff’s petition claimed damages for injuries resulting from a telephone line being permitted to hang too low across a first-class public road he was traveling, and defendant's answer having alleged that there was no public road at the place of the accident, plaintiff replied by supplemental petition that if the road was not a public county road it was one continuously traveled by the public; and the evidence showed that the injury occurred at a point where the road as traveled by the public deviated from its line as established by the commissioners court. Held, that it was error •for the charge to ignore the issue thus raised and make plaintiff’s right of recovery dependent on the road being a lawfully established first-class public road at the place of the accident, as the deviation of the road at that point was immaterial.</p> <p>.2.—Same—Undue Prominence.</p> <p>A charge which repeatedly submits the issue of contributory negligence is erroneous as giving that matter undue prominence.</p>

<p>1. —Life Insurance—Beneficiary Must Have Insurable Interest in Life of Insured.</p> <p>The beneficiary named in a life insurance policy,-or an assignee thereof, must have an insurable interest in the life of the insured, and when such interest ceases, then interest in the policy terminates.</p> <p>2. —Same—Divorced Wife—Endowment Policy.</p> <p>A wife’s interest in a policy on her husband’s life ceases upon obtaining a decree of divorce, regardless of whether or not it was his fault that caused the divorce; and that the policy contained an endowment feature does not affect the matter, nor entitle the wife to the surrender value of the policy at the date of the divorce.</p> <p>3. —Same—Wife as Creditor—Lien.</p> <p>A creditor has an insurable interest in the life of the debtor, but only to the extent of the indebtedness. The wife having paid certain premiums on the policy out of her separate estate, was entitled, upon the divorce, to a lien on the policy for the amount of the premiums so paid.</p> <p>4. —Same—General Creditor Has No Lien on Policy.</p> <p>A moneyed judgment against the husband in the wife’s favor in the divorce suit, rendered on matters in no way connected with or pertaining to the policy in her favor on the husband’s life, gave her no right in or lien upon the policy as a creditor of the husband.</p> <p>5. —Same—Insurer Entitled to Cost and Attorney Fees.</p> <p>Where a husband assigned an endowment policy on his life to his wife, and was afterwards divorced from her, and brought suit on the policy against the insurance company, joining the wife, and the company answered that it was ready to comply with the contract of insurance as soon as it was properly determined who was the owner of the policy, it was entitled to recover its cost and attorney fees in the case and have the same made a lien on the policy.</p>

<p>1. —Deposition—Answer to Cross-Interrogatory.</p> <p>Answer to cross-interrogatory as to extent of witness’ habit of using narcotics held sufficient to justify refusal of motion to quash the deposition for failure of the witness to answer.</p> <p>2. —Deed—Delivery—Innocent Purchaser.</p> <p>A deed never delivered nor placed on record by the grantor is ineffectual to protect an innocent purchaser from a grantee who had, without the maker’s knowledge or consent, taken possession of it and had it recorded.</p> <p>3. —Deed—Delivery—Intention—Evidence.</p> <p>Evidence held to support the conclusion that an acknowledged deed retained in the grantor's^possession was not intended to take effect without manual delivery.</p> <p>4. —Deed—Delivery—Estoppel—Negligence.</p> <p>Evidence held to support a finding against estoppel of a grantor, as. against an innocent purchaser from grantee, to deny delivery of a deed by reason of his negligence in keeping it, the acknowledged instrument having been placed in a drawer in the home of the grantor of which the grantee was an inmate, and surreptitiously taken therefrom and placed on record by the grantee.</p>

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

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

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

<p>Interstate Commerce—Railway—Bailee—Rates—Contract—Public Policy.</p> <p>The Texas Short Line Railroad Company which had, in building its road into Grand Saline, contracted with a salt company there for the transportation of 66 per cent of such salt company’s product to any points on connecting lines, undertaking to meet any rate offered by other connections, having accepted a shipment at a rate published by the Texas & Pacific road and its connections to the destination in another State, routing same over its own line and the Missouri, Kansas & Texas Railway, there being no published through rate by such route, and the sum of the local rates thereon exceeding the rates charged, tendered the shipment to the Texas & Pacific road at the latter’s published through rate and on refusal to accept it sued for the difference it was compelled to pay in shipping over the Missouri, Kansas & Texas and its connections. Held:</p> <p>(1) The defendant was not justified in refusing the shipment by the requirement of the interstate commerce law that it should transport for no less nor greater amount than its published rates.</p> <p>(2) The Short Line company, as bailee of the property under its contract, had the same right as the manufacturer to demand the transportation of the property by defendant for it at the latter’s published through rate without transporting it over any part of its own line, though having no agreement with defendant for such through rate.</p> <p>(3) The contract between the Short Line company and the salt company was not void as against public policy.</p> <p>(4) The Short Line company was not obliged to publish the through rates made by other companies in order to avail itself of them in shipping over their lines, nor compelled to accept the sum of the locals instead of their published through rate.</p> <p>(5) The fact that the salt was tendered in cars of other companies gave defendant no right to refuse the shipment, its right being to load into its own if it wished to avoid the mileage charge on foreign cars.</p> <p>(6) The unlawfulness of plaintiff’s shipment over the Missouri, Kansas & Texas and its connections, without a published through rate and at less than the sum of locals by that route could not justify defendant’s refusal to transport at its own published rate which compelled plaintiff to adopt that route.</p>

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

<p>Power of Attorney—Presumption.</p> <p>Though a power of attorney was on record which was not in itself sufficient to empower the attorney to sell land, still such power will be presumed in favor of an ancient deed by the attorney where the grantor lived for over forty years after the sale and often declined to bring suit for the land.</p>

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

<p>1. —Power of Attorney—Specific Performance—Stale Demand.</p> <p>Suit by an attorney for recovery. of a half interest in a tract of land as attorney fees, according to agreement in a power of attorney given, is not an action for specific performance of a contract to convey land, but one for the recovery of land, and the doctrine of stale demand can not be invoked as a defense, because the suit was not instituted within ten years from date of giving such power of attorney.</p> <p>2. —Same—Title to Land—Tax Deed—Quitclaim Deed.</p> <p>A power of attorney conveying to attorneys one-half of all the lands of the donor, the title to which was recovered by them, held to include land held by parties claiming adversely under a tax deed, a quitclaim deed to which the attorneys secured by compromise.</p>

<p>Appeal from the District Court of Victoria. Tried below before-Hon. Jas. C. Wilson.</p>

<p>1. —Judgment in Suit by Publication—Attack Upon for Fraud.</p> <p>Where the judgment in a suit by publication recites that the defendant was duly and legally cited to appear, and that he appeared by his attorney under appointment of the court, fraud in its procurement does not render it void within itself, but merely affords ground to have it declared void by a proper proceeding seasonably instituted for that purpose.</p> <p>2. —Same—Purchaser Pendente Lite—Privity of Estate—Collateral Attack.</p> <p>Where the suit affects the title of land owned by the defendant, a purchaser from him takes the land subject to the contingencies of the suit; and, as a privy in estate, he is bound by the judgment, and can not collaterally attack it upon an allegation of fraud in its procurement.</p> <p>3. —Same—Collateral Attack.</p> <p>Where, in an action to try title to land, a judgment is offered as a link in the chain of title, and the adverse party attempts to avoid the effect of the judgment by alleging fraud in its procurement, this is a collateral and not a direct attack upon the judgment.</p>

<p>Telegraph Company—Mental Suffering—Evidence.</p> <p>In an action against a telegraph company for mental suffering resulting from failure to promptly transmit and deliver a message informing plaintiff of the dangerous illness of his father, whereby he was deprived of the privilege of attending the funeral, it was error for the court to admit, over objection, the testimony of a witness to the effect that, before the message was sent, the father said, “It is hard to die without friends or relatives about you. I want you to send word to all the children if anything should happen to- me, if I should get sick,” since such evidence had no legitimate bearing upon the issue to be determined, and was calculated to unduly excite the sympathies of the jury.</p>

<p>Appeal from the District Court of Tarrant. Tried below before Hon. M. E. Smith.</p>

<p>Appeal from the County Court of Denton. Tried below before Hon. I. D. Ferguson.</p>

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

<p>Promissory Note—Negotiability Destroyed—Agreement for Indefinite Extension of Time.</p> <p>Where a promissory note contained this provision, "‘The makers' and indorsers hereof hereby severally waive protest and nonpayment in case this note is not paid at maturity, and agree to all extensions and partial payments before or after maturity without prejudice to holder,” its negotiable quality was thereby destroyed, and a subsequent indorsee who received it before maturity took it subject to the rights of one who held as collateral security a prior note by the same makers, secured by chattel mortgage, for which the note in" question was given in substitution and renewal.</p>

<p>Appeal from the District Court of Eastland. Tried below before Hon. J. H. Calhoun.</p>

<p>Appeal from the District Court of Fannin. Tried below before Hon. P. C. Thurmond, Special Judge.</p>

<p>1. —Interrogatories to Party—Refusal to Answer.</p> <p>Where the refusal of a party to the suit to answer interrogatories propounded by his adversary is made under a belief that he was entitled to demand witness fees and followed by timely offer to answer on learning better, it should not be treated as an admission.</p> <p>2. —Hearsay.</p> <p>Evidence excluded as hearsay and self-serving declarations.</p> <p>3. —Evidence—Impeachment.</p> <p>Proof that a party, testifying in the case, had been, in various church trials, charged with and found guilty of unministerial conduct, embezzlement, slander, and false swearing, was not admissible.</p> <p>4. —Restricting Number of Witnesses.</p> <p>It is within the discretion of the court to limit the number of witnesses to a given point, and his action in refusing to permit more than six impeaching witnesses was not ground for reversal unless there was something else to show abuse of his discretion.</p>

<p>Appeal from the District Court of Upshur. Tried below before Hon. B. W. Simpson.</p>

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

<p>Dank Draft—Assignment of Deposit—Garnishment.</p> <p>Evidence considered and, held to show an assignment of a bank deposit by the execution by the depositor of a draft thereon as payment on an existing indebtedness, as against garnishment served at suit of other creditors, of the depositor after the execution of the draft and before presentation and acceptance.</p>

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

<p>1. —Public Land—Application to Purchase—Name—Identity.</p> <p>The application of plaintiff “W. M. Head” to purchase public school land was not invalidated by the fact that it was made under the name “Wm. Reed,” where the evidence identified plaintiff as the applicant.</p> <p>2. —School Land—Purchase for a Home—Affidavit.</p> <p>An affidavit for purchase of school land l'or a home was not invalid because it omitted the word “land,” where other parts of the application identified the section in question as the home desired.</p> <p>3. —Evidence—Intention of Purchaser.</p> <p>On the issue of a purchaser’s intention in good faith to buy school land for a home, the purchaser may himself testify to such intention and to the absence of collusion with others.</p> <p>4. —School Land:—Purchase for Home.</p> <p>An application to purchase together several sections of school land, with affidavit that applicant is an actual settler thereon, but without designating, except by a memorandum in pencil on the application, “settlement is on number 4,” gives the applicant no right, being insufficient to show which was purchased as the home and which as additional sections.</p> <p>ON REHEARING.</p> <p>5.—School Land—Application to Purchase.</p> <p>An application to purchase more sections of agricultural land than the applicant was entitled to buy gave no right to him as against a subsequent applicant, and it rested upon him to show that an amendment striking out one of the sections and reducing the amount to such as he was entitled to. purchase was made before the application of such subsequent purchaser to buy.</p>

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

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

<p>1. —Minor—Experience—Assumed Risk.</p> <p>Where a minor has the same. experience and knowledge as an adult he is held to assume the ordinary risks which he understands, and a master employing such minor is hot required to warn him any more than an adult of dangers which he could ascertain by the ordinarily careful use of such knowledge and experience as he possesses.</p> <p>2. —Same—Farm Hand—Assumed Risk.</p> <p>An experienced farm hand, though a minor, is held to have assumed risks incident to loading sheaf oats on a wagon frame and riding thereon over a road well known to him, and can not recover for injuries sustained by the oats sliding and causing him to fall.</p> <p>3. —Charge—Immaterial Error.</p> <p>Where the evidence is sufficient to have justified a peremptory instruction the question of error in charges given become immaterial and will not be considered. •</p>

<p>1. —Impeaching Witness—Indictment for Perjury—Evidence.</p> <p>Under the rule that in impeaching- a witness the examination must be confined to his general reputation and not include particular facts, the court properly sustained objections to a question asked of a witness whether he had ever been indicted for perjury, and the introduction in evidence of an indictment charging him with this offense; no presumption of guilt arose from such indictment.</p> <p>2. —Evidence—Pumping Station—Keeper—Authority.</p> <p>Excluded evidence offered to prove that a keeper of defendant’s pumping station had received instructions before, and at another place than the one where the accident happened, not to allow people on the premises, held immaterial where the testimony showed that he had no authority to invite people on the premises.</p> <p>3. —possession of Property—Right to Keep Out Intruders.</p> <p>When one places his property in the exclusive control of another the right to protect the possession from intruders and prevent any interference with the property arises from the duty of the one placed in possession to properly control and manage it.</p> <p>4. —Charge—Liability—Negligence—Child Scalded.</p> <p>Charge held correct which made defendant liable for injuries to a child scalded by steam and hot water from a stationary engine at defendant’s pumping station, if he was on the premises with the knowledge and consent of defendant’s servant; facts held to support a recovery for negligence in such case.</p> <p>5. —Same—Contributory Negligence—Evidence.</p> <p>A charge requiring the jury to find that the evidence establishes the existence of a specific group of facts before they can find for defendant on its plea of contributory negligence approved.</p> <p>6. —Same—Same—Degree of Care to Avoid Injury.</p> <p>A charge defining contributory negligence as to a child injured to be a failure on his part to exercise, for his own safety, such a degree of care as would have been reasonably expected of him, instead of such a degree of care as is reasonably to be expected from children of his age, was correct and required by the fact that plaintiff was a dull boy and might not have such discretion as is reasonably to be expected from a child of his age.</p> <p>7. —Burden of Proof—Charge.</p> <p>Pacts in this case held to warrant a charge on burden of proof.</p>

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

<p>1. —Mechanic's Lien—Mutual Mistake—Description of Property.</p> <p>The rule that equity will correct a mutual mistake in a voluntary contract applies to a mechanic’s lien which described the property upon which the lien was given as situated on lot 8 instead of lot 7; and such correction may be had though the lien is given on the homestead with the wife’s separate acknowledgment.</p> <p>2. —Same—Foreclosure.</p> <p>The fact that a mistake in a mechanic’s lien which described the property as situated on lot 8 instead of lot 7, was not discovered until after judgment foreclosing the lien had been obtained and the property sold under such judgment, can not defeat plaintiff’s right to have said mistake corrected and a foreclosure upon the property intended to be described in the lien.</p> <p>3. —Lien—Foreclosure.</p> <p>Suit for a debt and one to foreclose a lien given to secure the debt may be brought separately.</p> <p>4. —Practice on Appeal—Pleading—Amount of. Indebtedness.</p> <p>. .Where the amount of indebtedness due by defendants was .determined, in a former suit the question will not be inquired into on a subsequent suit to correct the description of property mortgaged therefor and have a new foreclosure.</p> <p>5. —Pleading—Allegations—Assignment of Claims.</p> <p>Allegations in pleading held to show assignment of claims to plaintiff and hence a right to bring the suit.</p>

<p>1, —Personal Injuries—Negligence—Defective Ladder.</p> <p>Evidence considered and held sufficient in an action to recover damages for personal injuries caused by plaintiff’s falling from a ladder, to require a special charge submitting the issue of defendant’s knowledge of defects, when they furnished the ladder to plaintiff.</p> <p>2. —Contributory Negligence—Pleading.</p> <p>Contributory negligence not having been pleaded and plaintiff’s evidence not having shown, as a matter of law, that he was negligent in the use of a ladder furnished him by defendants, it was not error to fail to charge on contributory negligence.</p>

<p>Motion for New Trial—Appeal.</p> <p>A motion for new trial which is not passed on during the term in which, it is filed but continued, is discharged by operation of law upon adjournment of court for that term and any subsequent action of the court with reference thereto was without jurisdiction and void, and appeal must be taken within the time limited from the date of the,( judgment, not from that of overruling the motion.</p>

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

<p>Appeal from the District Court of Eastland. Tried below before Hon. J. T. Cunningham, Special Judge.</p>

<p>1. —Contract—Breach—Agreement to Give Lien on Homestead—Nonjoinder of Wife.</p> <p>The validity of a contract whereby defendant company agreed to furnish plaintiff certain ice-making machinery, to be placed on his homestead, a lien on the property to be afterwards given by defendant and wife, could not be assailed by defendant, in an action of damages for its breach, on the ground that the wife had not joined in making the contract, since defendant would be liable on it in damages should the wife refuse, at the proper time, to join in executing the lien.</p> <p>2. —Same—Measure of Damages for Breach—Profits.</p> <p>In an action for damages for breach of a contract whereby defendant agreed to sell plaintiff certain machinery, wherein the profits to be derived from the operation of the machinery are shown to have been within the contemplation of the parties, and their loss the direct result of the breach of the contract, a recovery may be had for such lost profits.</p> <p>3. —Same—Anti-Trust Statute of 1895.</p> <p>The Texas anti-trust statute of 1895 being itself void, can not be invoked to defeat an action of damages for breach of a contract on the ground that the contract is in violation of such statute.</p> <p>4. —Same—Contract Made Subject to Approval of Principal.</p> <p>Where in an action for breach of a contract to sell certain machinery, executed for the seller by an agent, there was pleading and evidence to the effect that the agent signed the contract upon the understanding that it was to be submitted to and approved by the seller before taking effect,. it was error for the court to refuse to submit that issue to the jury.</p>

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

<p>1.—Judgment by Default-Collateral Attack—Service by Publication.</p> <p>Where a judgment by default in a suit by publication contained no recitals as to service on the defendant it was subject to collateral attack because of noncompliance of the citation or notice with the requirements of the statute.</p> <p>2—Same—Citation by Publication.</p> <p>Where a citation for publication was issued prior to the taking effect of a statute in relation to such process, but was not published until after the statute had taken effect, its sufficiency was to be determined, by the provision of such statute.</p> <p>3.—Same—Sufficiency of Citation.</p> <p>Under the statute (Acts 1897, p. 138) requiring that a citation to unknown defendants in a tax suit shall run in the name of the State and county, and shall be "directed to all persons owning or having or claiming any interest” in the land in suit, a citation running in the name of the State only and directed to the sheriff, commanding him to summon “unknown owner whose residence is unknown” to appear and answer, is substantially defective and a judgment based thereon is void.</p>

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

<p>Carrier of Passengers—Assault on Lady Passenger.</p> <p>While plaintiffs wife was traveling in a lighted passenger car at night it stopped at a regular station for a short period, during which time, the employes being temporarily absent from the car, a negro entered the car from the outside and finding plaintiffs wife alone in the car and asleep made an assault on her. Held, that the railway company was not liable therefor, since the assault was, under the circumstances, so unreasonable and out of the ordinary that it could not have been contemplated by a prudent person.</p>

<p>1. —Carriers of Live Stock—Overloading—Pleading.</p> <p>Where, in an action against a carrier for injury to live stock shipped under a contract' by the terms of which plaintiff, the shipper, assumed the risks of danger from overloading, the defendant pleaded that the cars were overloaded, no pleading on the part of plaintiff was necessary to rebut that defense and to warrant a charge submitting that issue.</p> <p>2. —Same—Value at Destination.</p> <p>Where horses are shipped on a through contract over connecting lines, and suit is brought against the initial line for injury occurring during the shipment, the fact that the contract limits the liability of the defendant to injury occurring on its own line does not make the value of the horses at the last point on defendant’s line the measure of damages, but such measure is their value at the point of destination, and it is immaterial whether or not defendant had notice that they were intended for sale at the point of destination.</p> <p>3. —Same—Evidence of Value—Good Condition.</p> <p>Where plaintiff’s witness testified as to the value of the horses at their destination, had they arrived in good condition, his testimony was not an opinion and subject to objection on the ground that he did not define what he understood “good condition” to be, since defendant, if he deemed that term not sufficiently explicit, could have, by cross-examination, ascertained what the witness meant thereby.</p>

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

<p>1.—Lease—Suit for Conversion—Tenants in Common.</p> <p>A lease of land providing that three-fourths of the cotton grown and two-thirds of the pecans gathered should go to the lessee, constituted him a tenant in common of such crop with the lessor and entitled him to bring suit at any time after the conversion of the property by the lessor, without waiting until the lease expired.</p> <p>2. —Conversion of Crop—Ejectment—Remedy—Lessor and Lessee.</p> <p>While the lessee might have brought an action for restoration of possession of the premises upon conversion of the crop and his ejectment by the lessor, his failure to do so can not defeat his right to recover the value of his property unlawfully converted and disposed of by the lessor.</p> <p>3. —Charge—General and Special.</p> <p>Where the general charge sufficiently presents an issue a special request thereon is properly refused.</p> <p>4. —Lessor and Lessee—Tender—Compromise.</p> <p>The offer of the lessor, after suit was instituted by the lessee to recover the value of property unlawfully converted, to pay the lessee his portion of the proceeds of the crop and permit him to re-enter upon the premises and gather the remainder of the crop did not amount to a tender but was only an attempt to compromise the suit.</p> <p>5. —Conversion—Growing Crops—Cost of Gathering.</p> <p>One tenant in common suing to recover for wrongful conversion by another tenant of his interest in a growing crop can not be charged with the cost of gathering such crop.</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 Lampasas. Tried below before Hon. Clarence Martin.</p>

<p>1—Evidence—Injury—Complaints of Suffering.</p> <p>Complaints of suffering in his back, made by plaintiff in a suit for personal injury, held admissible as original evidence, as being expressions of present pain.</p> <p>2.—Damages.</p> <p>Evidence held sufficient to support a recovery of $500 for personal injuries to a railway passenger from collision of train with an engine.</p>

<p>1. —Leading Question.</p> <p>An interrogatory is not necessarily leading because -it can be answered by yes or no, if it does not suggest the answer expected.</p> <p>2. —Evidence—Harmless Error.</p> <p>Admission of improper evidence it not ground for reversal if the same evidence has come in at another point without objection.</p> <p>3. —Master and Servant—Promise to Repair—Charge.</p> <p>Charge on continuance of servant in employ in reliance on promise to repair defects of which he has complained held correct and sufficiently full in the absence of request -for more specific instructions.</p> <p>4. —Promise to Repair—Time of Performance.</p> <p>The promise of the master to repair defects which will relieve the servant from assumption of risk therefrom need not be to repair in a definite time. Till a reasonable time for compliance has elapsed the servant may continue work in reliance on the promise.</p>

<p>Appeal from the District Court of Falls. Tried below before Hon. Sam R. Scott.</p>

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

<p>Appeal from the District Court of Galveston. Tried below before Hon. Frank M. Spencer.</p>

<p>1. —Foreign Corporation—Permit—Pleading.</p> <p>A foreign corporation manufacturing articles sold in this State through, its agents was not required to obtain a permit to do business in Texas, and. consequently suit could be brought for purchase price of its goods without, pleading and proving such permit.</p> <p>2. —Contract—Rescission—Waiver—Fraud.</p> <p>The continued use of an article after discovery of its worthlessness, while a waiver of the right to rescind the contract of purchase, does not preclude a recovery of damages for fraudulent misrepresentations in obtaining the contract.</p> <p>3. —Parol Evidence—Fraud.</p> <p>Parol evidence may be introduced to show fraud through which a contract has been obtained.</p> <p>4. —Contract—Notes—Cancellation—Fraud.</p> <p>Judgment canceling notes for the purchase price of a cash register machine and refunding the amount paid on it was supported. by the evidence whether the jury found on the ground that the machine was worthless, in which case there would be an entire want of consideration, or that there was fraud in procuring the contract.</p>

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

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

<p>Appeal from the District Court of Potter. Tried below before Hon. Ira Webster.</p>

<p>Appeal from the District Court of Wichita. Tried below before Hon. A. H. Carrigan.</p>

<p>1. —Estoppel—School Land—Mandamus Suit in Supreme Court.</p> <p>Plaintiff sued out a writ of mandamus in the Supreme Court to compel the Commissioner of the General Land Office to award him the section of school land here in controversy, and the judgment of that court determined against him the principal issue of law involved in his claim against the defendant here for the land. Plaintiff there sued in the district court in trespass to try title to recover the land, and sought to controvert the facts which he had admitted in the application for mandamus in order to obtain the ruling of the Supreme Court on the question there presented. Held, that he was not entitled to have the same matters litigated twice, and was estopped from controverting the facts which he had alleged or accepted as undisputed in order to obtain the ruling in the mandamus case.</p> <p>2. —Evidence—Certified Copies—Archives of General Land Office.</p> <p>Where transfers of school lands were recorded in the proper counties and then filed in the General Land Office, and. certified copies from the county records were offered in evidence, the fact that the originals were archives of the Land Office sufficiently accounted for their nonproduction.</p>

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

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

<p>1. —Shipment of Cattle—Delay—Evidence—Charge—Contract of Sale.</p> <p>Although there was no proof of the value of cattle, alleged to have been injured by delay in furnishing cars, on the day they arrived at defendant’s pens other than shown by the contract of sale, yet it was proper to refuse a peremptory charge in defendant’s favor where plaintiffs proof outside the contract of sale entitled him to at least nominal damages.</p> <p>2. —Same—Pleading—Measure of Damages.</p> <p>In the absence of notice of the contract of sale of cattle and complaint that special damages were suffered with reference thereto, the contract of sale made before shipment not having been pleaded, the sale price and the contract price could not properly furnish the measure of damages for a failure on the part of the railway to promptly furnish cars for shipment.</p> <p>3. —Charge—Failure to Feed and Water Cattle—Error.</p> <p>Charge placing liability upon defendant for failure to feed and water cattle during shipment, such liability to attach from the time of delivery and acceptance, held error in view of the undisputed evidence that plaintiff, for a valuable consideration, had assumed that duty.</p> <p>4. —Charge—Measure of Damages—Pleading—Error.</p> <p>A charge giving the measure of damages as the difference between the market value of the cattle when they should have arrived and when they did arrive at their destination, and also the deterioration in the condition of the cattle due to delay in shipment was erroneous as authorizing a double recovery, the pleading only seeking recovery for deterioration in condition of cattle and not for a fall in the market price.</p>

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

<p>1. —Appeal Bond—Affidavit of Inability—Contest.</p> <p>Where the record shows that appellant’s affidavit of inability to give bond on appeal from justice court was contested, no error is shown in dismissing for his failure to give it where the evidence on contest of his affidavit is not preserved in the record.</p> <p>2. —Same—Cost Bond.</p> <p>The fact that the rule made on contest of appellant’s affidavit was to give a cost bond merely, and his appeal dismissed on failure to comply, does not authorize the conclusion that the evidence passed on by the court referred merely to his ability to give bond for costs and not for the judgment recovered against him below.</p>

<p>1. —Evidence—Pleading—Defective Brakes.</p> <p>A petition to recover for personal injuries in derailment of tram car having alleged as a cause defect in the brakes in that the brake wheel was too small to furnish sufficient leverage, it was proper to strike out from a deposition of a witness for plaintiff the statement that the brake was “wood-bound,” in answer to a question as to the condition of the brake and the efforts made to stop the car with it, but to permit the reading of the rest of the answer, that plaintiff and witness “used every means in our power to get the brake to work, but the brake failed to work," over objection that it was immaterial, irrelevant, the opinion of witness, and not confined to the defects in the track alleged.</p> <p>2. —Evidence—Error Cured by Instructions.</p> <p>The admission of improper evidence held immaterial where instruction was afterwards given to disregard it.</p> <p>3. —Evidence—Pleading—Damages—Expense for Medicine.</p> <p>Plaintiff could testify to the amount expended by him for medicines in consequence of injury to his person though to an amount exceeding that alleged in his petition; but an instruction limiting recovery therefor to the amount alleged would have been proper.</p> <p>4. —Charge—Specific Facts.</p> <p>Charge to find for defendant in absence of proof of the defects in brake of tram car alleged in the petition, should have been given under the state of pleading and evidence in this case.</p> <p>5. —Assumed Risk—Contributory Negligence—Charge—Burden of Proof.</p> <p>Charge placing the burden of proof of assumed risk and contributory negligence upon defendant held erroneous upon the state of facts disclosed by plaintiff’s own testimony.</p>

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

<p>1. —Railway Crossing—Contributory Negligence.</p> <p>The question of contributory negligence of a plaintiff injured by collision with an engine at a crossing held to be one for the jury.</p> <p>2. —Negligence in Law—Violating City Ordinance.</p> <p>The violation of a city ordinance regulating the running of engines and trains within the city constitutes negligence and the court may so charge.</p> <p>3. —Ordinance—-Reasonableness—Pleading.</p> <p>The question whether a city ordinance on the subject is an unreasonable restriction on the right of a railway to operate its trains must be raised by proper pleadings and proof.</p> <p>4. —Lighting Crossing—Ordinance—Harmless Error.</p> <p>The admission in evidence of a city ordinance requiring a railway to keep an arc light at a certain crossing and refusal of defendant’s requested instructions thereon can not be ground for reversal where the court refused to submit the issue of negligence in failing to keep such light as required.</p> <p>5. —Evidence—Relevancy—Harmless Error.</p> <p>' On proof of failure .to maintain a light at a street crossing as required by a city ordinance, evidence as to how lights were kept at other crossings was immaterial; or, if material, its exclusion became harmless error when the court declined to submit the absence of light as a ground for recovery.</p> <p>6. —Injury at Crossing—Lookout.</p> <p>Failure to use Ordinary care to discover and avoid injury to one rightfully using a public street crossing by railway employes operating its trains is negligence.</p> <p>7. —Charge—Request—Refusal.</p> <p>Failure to give requested charges is not error when the ground is covered by the court’s general charge.</p>

<p>Appeal from the County Court of Wood. Tried below before Hon. A. A. Snow.</p>

<p>1.—Master and Servant—Knowledge of Defects—Risk Not Assumed.</p> <p>The servant though knowing that machinery- was defective, as that the washout plug of a locomotive engine was leaky, did not assume the risk of danger not implied by such condition, such as injury from such plug blowing out</p> <p>-2.—Injury—Pleading—Evidence.</p> <p>"Where plaintiff’s pleading stated the nature of the injuries to his person, it was not necessary to allege increased susceptibility to colds as resulting therefrom in order to admit evidence of a physician that such result was probable.</p> <p>3.—Evidence—Engineer’s Report of Defects.</p> <p>A locomotive engineer could testify that he had entered a certain defect in a locomotive in a book kept by the railway for such reports, without notice given to the defendant company to produce such writing.</p> <p>4.—Pleading—Evidence.</p> <p>Evidence that plaintiff jumped or fell from his engine in escaping from steam from a blown out plug was admissibble though the pleading alleged that he was blown from it by the escape of steam, such being proof of the substance of the issue.</p>

<p>1. —Official Bond—Liability of Sureties—Injury Resulting in Death.</p> <p>The ruling on former appeal herein (Moore v. Lindsay, 31 Texas Civ. App., 13) holding the sureties of a constable liable in damages for his wrongful act in killing one whom he was attempting to arrest upon a lawful warrant approved and followed.</p> <p>2. —Principal and Surety—Damages—Verdict—Judgment.</p> <p>Where, in an action against a constable and his sureties for injuries resulting in death caused by the officer’s wrongful act in making a lawful arrest verdict was rendered against the constable for $500 and against the sureties for $250, it was error for the trial court to render judgment thereon against both principal and sureties for $500; nor was it proper for the appellate court, on reversal therefor to render the same judgment or any judgment on such verdict.</p>

<p>1. —Grantor—Intention—Title—Charge.</p> <p>It was not error to refuse a requested charge instructing that testimony of statements made by defendant two years before she put plaintiffs in possession of the land in controversy should not be considered for the purpose of proving that she gave the land to plaintiffs but only as showing her intention, since the only issue was whether it was her intention to convey the absolute title or only a life estate when she put them in possession.</p> <p>2. —Continuance—Evidence—Affidavit of Physician.</p> <p>The trial court properly refused a continuance for the testimony of a party to the suit whose deposition had been taken ex parte by her adversaries, but not in her own behalf, where it appeared, upon the affidavit of her family physician, that she was at the time of trial too feeble in health and mind to attend court and would likely continue in that condition.</p> <p>3. —Evidence—Deposition—Interrogatories.</p> <p>Testimony of a witness who took the deposition of one of the parties to a suit that she asked him how she should answer the interrogatories, which would probably have been excluded if objected to, is not ground, when admitted without objection, for an application for continuance to meet and explain it.</p>

<p>1. —Deed—Description of Property—Correction of Mistake—Evidence.</p> <p>The only issue being a question of reforming a deed from defendant to plaintiff for mutual mistake in describing the property conveyed, the fact that a mistake occurred and had been corrected in reference to some other deed to the same property could not influence the jury in their decision of the issue before them. Further, testimony of such mistake and correction having been admitted without objection, it was not error to admit in evidence the deed of correction itself.</p> <p>2. —Same—Mistake in Description of Property.</p> <p>Plaintiff conveyed the lot in controversy to defendant without consideration upon the agreement that he should soon reconvey, and in the deed of reconveyance the lot was described as lot 4 instead of lot 3 in a certain block. Evidence held to show that such misdescription was a mistake and a peremptory instruction to find for defendant on the ground that he knew the description contained in the deed was properly refused.</p> <p>3. —Requested Charge—Assuming Fact,</p> <p>A requested charge assuming as a fact a certain issue in dispute was properly refused.</p> <p>4. —Same—Issue Suggested.</p> <p>A complaint that the court should have submitted an issue suggested in a requested charge, although the charge itself was erroneous, should be made by a separate assignment of error in order to be considered on appeal.</p> <p>5. —Mutual Mistake—Intention—Refusal of Requested Charges.</p> <p>Whether or not it, was the intention of the parties to convey the lot in controversy governs the question of mutual mistake in description, and not whether either party knew that the lot was described as No. 4, it being in fact No. 3 in a certain block. Requested charges on this point held properly refused.</p> <p>ON MOTION FOR REHEARING.</p> <p>6.—Charge Ignoring Issue Raised—Assignment of Error,</p> <p>A charge to find for plaintiff if the jury believed that defendant was under the impression that he was reconveying the property which plaintiff had conveyed to him a short time before, was erroneous in that it ignored the issue raised as to whether defendant was under obligation to reconvey; and defendant can complain of such error under a general assignment alleging error in the charge.</p>

<p>1—Illicit Relations—Presumption—Burden of Proof.</p> <p>The presumption is that illicit relations between parties, one o£ whom is married, continued illicit after dissolution of the marriage, and where it is sought to show that the illicit relations have changed to legal ones the burden rests upon the one attempting to show such change.</p> <p>2. —Same—Common Law Marriage—Community Property.</p> <p>Illicit relations began between parties while the woman had a lawful husband living and continued after his death, the parties living apart and seeing each other only occasionally. These relations- existed for several ye.ars until they finally took up their abode together and represented themselves as man and wife. Such state of facts held insufficient to show a common' law marriage, at least until they agreed to live together, and heirs of the woman by a former legal marriage could not recover any interest in land as community acquired before such agreement.</p> <p>ON MOTION FOR REHEARING.</p> <p>3. —Common Law Marriage—Presumption—Cases Explained.</p> <p>Yates v. Houston, 3 Texas, 442; Bonds v. Foster, 36 Texas, 68; Bull v. Bull, 29 Texas Civ. App., 364, explained as in harmony with the rule that where the original relations between parties were illicit a change in that relationship must be shown before the presumption of a common law marriage can arise.</p>

<p>City Charter—Street Improvements—Improvement Districts—T ax—Homestead.</p> <p>The amendment to the charter of the city of Dallas authorizing' the creation of improvement districts by the city council and the levy of- á tax against property owners in such improvement districts to meet expenses of improving streets was constitutional, and a tax was valid which was levied to pay for street paving though the property taxed was used as a homestead.</p>

<p>Appeal from the County Court of Harris. Tried below before Hon. T. Blake Dupree.</p>

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

<p>Appeal from the District Court of Eastland. Tried below before Hon. J. H. Calhoun.</p>

<p>1. —Evidence—Admission by Agent—Damage to Cattle in Shipment.</p> <p>Plaintiffs sued three railroads, connecting lines, for damages occurring to cattle in a through shipment, and a settlement having been made with two of the roads, the case was dismissed as to them. On the trial defendant offered in evidence a sworn claim for damages made out against all the roads by plaintiffs’ agent who accompanied the cattle. The claim was itemized and accompanied by a statement of the delays, etc., that occurred, and showed that the damages occurred principally on the other lines and did not include items claimed against defendant in the suit. Held that the claim and statement, being in the nature of an admission, was improperly excluded from the evidence.</p> <p>2. —Charge—Proximate Result.</p> <p>Where the court charged that plaintiffs could recover “for injuries and delays, if any, approximately resulting from the acts of the defendants,” etc., the use of “approximately” instead of “proximately” was error which I possibly might, of itself, have necessitated a reversal.</p>

<p>Appeal from the County Court of Jack. Tried below before Hon. K. S. Blair.</p>

<p>Appeal from the District Court of Lubbock. Tried below" before Hon. J. M. Morgan.</p>