Volume 41 — Texas Civil Appeals Reports

<p>Appeal from the County Court of Galveston. Tried below before Hon. Lewis Fisher.</p>

<p>1.—Citation—Nonresident—Art. 1230, Rev. Stats., Construed.</p> <p>A nonresident defendant, found within this State, may be served with process in the same manner as though he were a resident of the county in which he is served. In such case the provisions of art. 1230, Rev. Stats., do not apply.</p> <p>2. —Same—Art. 1223, Rev. Stats., Construed.</p> <p>In the absence of proof that a defendant foreign corporation was not engaged in business in this State, service of citation upon the secretary of such corporation while casually in this State will confer jurisdiction upon the District Court to foreclose a mortgage lien upon personal property, as against such foreign corporation.</p> <p>3. —Personal Property—Fixture—Foreclosure.</p> <p>Under an agreement between a seller and purchaser of certain machinery, the machinery was to remain personal property, and subject to a mortgage lien; the rights of the lienholder could not be affected by attaching the machinery to the realty. In a suit by the lienholder to foreclose his chattel mortgage on said machinery as against those interested in the realty, a failure by such defendants to set up such rights as they may have by reason of the machinery being attached to the realty, renders the judgment foreclosing said lien as a chattel mortgage res adjudicata as to those claiming the realty.</p> <p>4. —Suit for Property in Possession of Receiver.</p> <p>In a suit to foreclose a lien on property in the hands of a receiver, the proper remedy is to intervene in the receivership suit. But a judgment in an independent suit against the receiver is not void. The pendency of the receivership is merely defensive matter which must be pleaded.</p> <p>5. —Service of Citation—Acting Officer.</p> <p>Service of citation upon one who is acting as, and discharging the duties of secretary and treasurer of a corporation with the knowledge and acquiescence of the other officers and directors of such corporation, is binding on the corporation, even though such person had theretofore resigned his position as secretary and treasurer.</p> <p>6. —Injunction—Dissolution—Damages.</p> <p>Facts considered, and held to warrant -a judgment for damages upon dissolution of an injunction.</p>

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

<p>1.—Personal Injúries—Qualified Passenger—Repeating Charges.</p> <p>Plaintiff was on a freight train in charge of hogs and chickens and was injured while the train was switching at a station; in the contract of carriage it was stipulated that plaintiff “would get on and be on no freight train or other car while switching was being done at stations.” Held, it was a question of fact for the jury to determine under all the circumstances whether or not the defendant should have been held to that high degree of care required of carriers of passengers, and it was reversible error for the court to single out and twice submit to the jury as a circumstance for their consideration the duty of appellant to use the utmost care to discover the presence of the plaintiff in the ear in time to avoid injuring him.</p> <p>2.—Relation of Carrier and Passenger—Termination.</p> <p>A traveler does not always cease to be a passenger when he ceases to ride; his rights as a passenger depends upon whether or not the relation of carrier and passenger has entirely ceased.</p>

<p>1.—Interrogatories Taken as Confessed, When.</p> <p>In the absence of evidence showing that the refusal of a witness to appear before an officer and answer ex parte interrogatories propounded to him was contumacious or deliberate, the interrogatories should not be taken as confessed.</p> <p>3.—Trespass to Try Title—Pleading—Affirmative Belief.</p> <p>It seems that in trespass to try title, where the pleadings are only those usual in such case and neither party pleads facts showing a right to affirmative, equitable relief, the holder of the legal title is entitled to recover, and his title can not -be avoided for duress.</p> <p>3.—^Duress of Property.</p> <p>The fact that plaintiff felt constrained, considering the wealth of the defendant and his own comparative financial weakness, to accept the terms proposed by the latter as the best tliat could be done under the circumstances, does not constitute duress of property. Facts considered, and held not to show duress of property.</p>

<p>1. —Delivery of Benefit Certificate—Agency—Waiver.</p> <p>The authority of an agent is to be determined by the actual power and authority conferred upon him, and not by the name which may be given him, nor by the restrictions contained in the regulations of the order, if these regulations are contrary to the actual power conferred. The application for a benefit certificate, the certificate itself, and the constitution and by-laws of appellant provided that no liability should begin on the certificate until delivered to the member in person and while in good' health. The secretary of the local camp was the agent of the appellant and the delivery of the certificate was entrusted to his discretion. With a knowledge of the facts, he delivered the certificate to the beneficiary contrary to said regulations. Held, the appellant was bound by his acts.</p> <p>2. —Conclusion of Witness.</p> <p>A witness undertook to testify as to the knowledge of other officers of the association concerning certain facts. Held, hearsay and a conclusion of the witness.</p> <p>3. —Other Similar Acts of Agent—Evidence.</p> <p>It was competent for plaintiff to prove that the same agent had delivered other benefit certificates to other persons than the member named therein, contrary to the regulations of the order, as a circumstance tending to show that said regulations were not binding.-</p> <p>4. —Amount of Assessment—When Material.</p> <p>The benefit certificate sued on provided “that the payment of the certificate will be based upon one assessment on the entire beneficiary membership.” Evidence of the amount of one assessment was material to show that one assessment would raise the amount called for by the policy.</p> <p>5. —Damages and Attorney Fees.</p> <p>The appellant being a mutual benefit organization, doing business through local camps, is not included in the penalty imposed by article 3071 of the Revised Statutes.</p>

<p>1. —Trust Deed—Power of Sale—Revocation by Death.</p> <p>The death of a purchaser of' land encumbered by a deed of trust lien revokes the power of the trustee to sell pending an administration by an independent executor as well as where the administration is by the Probate Court under the statute.</p> <p>2. —Same—Void Sale—Satisfaction.</p> <p>Where a debtor secured by a trust deed accepted in satisfaction of his debt a sum realized from a void sale of the property made by a substituted trustee, such payment, not being made with money furnished by the mortgagor or his vendee nor by their procurement or solicitation, did not enure to their benefit and constituted no bar to the execution of the trust.</p> <p>3. —Same—Power to Sell—Limitations.</p> <p>That a debt secured by deed of trust is barred by the statute of four years’ limitation does not affect the power to sell conferred by the trust deed.</p> <p>4. —Same—Limitations.</p> <p>One who bought land encumbered by a deed of trust could not, in a suit by him to enjoin the execution of the trust deed, invoke the statutes of limitations of three, five and ten years applicable to claims for land.</p>

<p>Appeal from the District Court of Galveston County. Tried below before Hon. Bobert G. Street.</p>

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

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

<p>Appeal from the County Court of McLennan County. Tried below before Hon. J. W. Baker.</p>

<p>Appeal from the District Court of Galveston County. Tried below before Hon. Robert G. Street.</p>

<p>1. —Town Plat—Dedication.</p> <p>Where the proprietor of an addition to a town makes a map of the same, laying it out into squares, lots, streets, etc., and causes such map to be recorded in the county clerk’s office, and sells lots with reference thereto, he •thereby dedicates the squares, streets, alleys, etc., to the public, and can not revoke the grant after the public has acquired an easement.</p> <p>2. —Same—^‘Railroad Reservation.”</p> <p>The owner of land adjacent to a town subdivided it into lots and blocks, streets and alleys and made and recorded a map of the same, designating it as an addition to the town; upon the map was shown a long, wide strip lying on both sides of a railroad track and designated as follows: “Reserved for Railway Purposes.” The owner sold lots fronting on this reservation, and after-wards sold portions of the reservation to parties who used it for other than railroad purposes. Held, that the owner and his vendees were estopped from appropriating said strip of land to any purpose inconsistent with that for which it was reserved, and the fact that it was dedicated to railroad purposes instead of to the public in general was immaterial; the dedication was of a quasi public character, and not to private purposes.</p>

<p>1. —Continuance—Surprise—Withdrawal of Allegation.</p> <p>The court properly overruled an application by defendant for continuance on the ground of surprise caused by certain pleading filed by the plaintiff on the day of trial, when the plaintiff admitted the truth of one of the facts which it was claimed absent testimony was necessary to establish, and withdrew the allegation which it was alleged caused surprise, said allegation being that the rule of the defendant forbidding passengers from riding on the engine was habitually violated and thereby abrogated.</p> <p>2. —Same—Pleading—Testimony—Riding on Engine.</p> <p>Plaintiff was injured while riding on one of defendant’s engines; he was traveling on a stock drover’s pass; defendant pleaded the stipulations of the pass to the effect that plaintiff would remain in the caboose while the train was in motion, and that a failure to do so would be prima facie evidence of negligence in case of injury; plaintiff pleaded in reply that the defendant through its conductor, who was authorized to do so, had waived this provision of the pass. Under this state of the pleading testimony was properly admitted . to the effect that it was habitual and customary for shippers of stock to ride upon defendant’s engines while so engaged, and this evidence was admissible, notwithstanding the withdrawal of the allegation as to the abrogation of said provision.</p> <p>3. —Argument of Counsel—Appeal for large Verdict.</p> <p>It is not reversible error for counsel in argument to appeal to the jury for a large verdict when the verdict actually rendered is less than that suggested, and no complaint is made that it is excessive.</p> <p>4. —Charges—Not Inconsistent.</p> <p>The court did not err in charging the jury that the contract by which plaintiff agreed to ride in the caboose was a valid contract, but that if he was acting as a reasonably prudent person in riding on the engine at the time he was injured he would be entitled to recover. By the terms of the contract riding on the engine only made a prima facie case of negligence.</p>

<p>1. —Venue—Fraud.</p> <p>Where an action is founded on fraud the defendant may be sued in the county in which the fraud was perpetrated.</p> <p>2. —Nonresident Defendant—Jurisdiction.</p> <p>Where a nonresident defendant appears for the purpose of quashing a citation the court acquires jurisdiction over his person and the cause of action.</p> <p>3. —Limitation—Fraud.</p> <p>Limitation does not begin to run against an action founded on fraud until the fraud is discovered or might have been discovered by due diligence.</p> <p>4. —Conclusion of Fact—Overruled.</p> <p>The evidence as disclosed by the statement of facts considered, and held not to support a finding of fact by the trial court.</p> <p>5. —Compromise—Bar to Action.</p> <p>Where a previous compromise or settlement includes the matter made the basis of an action it is a bar to such action.</p>

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

<p>Charge of Court—Allegations and Proof.</p> <p>The allegations of plaintiff’s petition, the evidence introduced, and the charge of the court considered, and held, that the charge was in accordance with the allegations and the proof, and was therefore correct.</p>

<p>1.—Charge—Assuming Fact.</p> <p>/The jury were charged “that if from a preponderance of the evidence they believe that any or all of plaintiff’s calves in question died of sporadic pneumonia, if they further believe that the negligent or rough handling of said calves by the defendant was the proximate cause of the death of said animals by disease of pneumonia, they will find for the plaintiff.” Held, error as assuming that there was negligent or rough handling, y</p> <p>2.—Charge—Contributory Negligence.</p> <p>It was error to refuse a requested instruction to the effect that if the plaintiff was guilty of contributory negligence the jury should find for defendant regardless of any negligence on defendant’s part.</p>

<p>Appeal from the District Court of Houston County. Tried below before Hon. John J. Wood.</p>

<p>1. —Action by State—Defining Boundaries—Pleading.</p> <p>In a suit brought by the State, by the Attorney-General, under sec. 11, ch. 4, Acts 1st Called Session, 27th Leg., p. 6, to determine the location and boundaries of land claimed under title from the Mexican Government and re-' cover that claimed under but not included in such grant, the excess sued for never having been previously segregated or defined, the petition was not subject to demurrer for failing to set up the boundaries of the land sought to be recovered.</p> <p>2. —Boundaries—Conflicting Evidence—Bindings by Court.</p> <p>Findings by -the trial court, supported by evidence, as to the original location of the lines of a grant under which defendants claimed, will not be set aside for mere conflict in the evidence.</p> <p>3. —Mexican Grant—Act of Confirmation—Resurvey.</p> <p>The Act of February 10, 1852, confirming grants of land made by the Mexican Government before annexation of the territory and providing for resurvey and return of field notes thereof by the claimants, and issuance of patent thereon, does not constitute an agreement by the State with the owners that they should be entitled to all the land embraced in such resurvey.</p> <p>4. —Same—Agency.</p> <p>The Act of February 10, 1852, confirmed grants of land by the Mexican Government only to the limits of such original grant; and, in the resurvey therein provided for, the surveyor was not the agent of the State—rather of the. claimant—and was without authority to bind the State by a survey extending beyond the limits as originally granted.</p> <p>5. —Same—Estoppel.</p> <p>Whether or not the State can be bound by the acts of the Commissioner of the General Land Office, the evidence here considered is held not to show such acquiescence by him in the resurvey, under the Act of February 10, 1852, of a grant made by the Mexican Government, as to prevent the State, by estoppel, from recovering lands not covered by the grant as originally located.</p> <p>6.—Mexican Grant—Resurvey—Patent.</p> <p>The owners of land granted by the Mexican Government, who, under the Act of February 10, 1852, confirming and providing for resurvey and patent of such titles, had accepted patents from the State to the land as resurveyed, relinquished thereby all claim to lands not included in the boundaries as patented, though they might have been embraced in the boundaries of their original grants, and held by valid title thereunder but for the acceptance of such patents.</p> <p>ON REHEARING.</p> <p>7.—Constitutional Law.</p> <p>Section 11, eh. 4, of the Act of the 27th Leg., 1st Called Session, as applied in this case, authorizing suit by the State to recover lands claimed under Mexican grants which did not embrace them in their boundaries as originally surveyed and granted and to identify the boundaries of such grants where the evidence on file in the General Land Office does not sufficiently identify them, neither impairs the obligations of the State’s contract as evidenced by the Act of February 10, 1852, for confirmation of such titles, nor deprives the claimants of their property without due process of law, nor denies them the equal protection of the law.</p>

<p>Statute of Frauds—Sale of land—Written Instrument.</p> <p>“Received of A. W. Penshorn fifty dollars on estate of Anna Fechner” is so radically defective as a written instrument showing a sale of land that it can not be aided by extrinsic evidence, nor support an action for specific performance.</p>

<p>1. —School land—Excess—Application to Purchase.</p> <p>One applying to purchase an entire section of school" land placed on the market as containing 533 acres and making his payment and executing his obligation for deferred payments at the due price for that acreage, and whose application, after it was awarded to him, by resurvey, was suspended upon discovering that the section contained 1191 acres, was recognized as purchaser of the entire tract on payment and execution of a new obligation based on the acreage as resurveyed. Held, that his title as purchaser prevailed over that of a subsequent applicant for purchase of the excess.</p> <p>2. —Same—Purchase of Excess.</p> <p>It seems, following Willoughby v. Long, 96 Texas, 194, that an application to purchase the excess in a .section of school land sold to another, before the excess has been ascertained by the Land Commissioner and segregated from the part already sold, is premature, and confers no title.</p> <p>3. —Evidence—Certificate of Land Commissioner.</p> <p>An explanation in the certificate of the Land Commissioner that a name and date given under the head of “remarks” signified the time when and to whom the section of school land mentioned had been sold was admissible to indicate that his certificate meant that the land had been sold, and not that it was still on the market.</p> <p>4. —Same—Certificate Admissible in Part.</p> <p>Where objection is made to the admission of a certificate by the Land Commissioner as a whole, and it is admissible to show some of the facts certified, it is immaterial that it embraces other facts or conclusions which could not be properly shown by his certificate.</p> <p>5. —Evidence—Harmless Error.</p> <p>Where defendant’s title to land in controversy was established by proper and uncontradicted evidence the admission of improper evidence to support it was not ground for reversal.</p>

<p>1. —Discharge in Bankruptcy—Does not Release, When.</p> <p>Sections 14 and 17 of the Bankruptcy Act, as amended by the Act of February 5, 1903, construed and held to be harmonious. The former section refers only to representations which will prevent a judgment of discharge. The latter does not require that the false representations which will prevent the judgment of discharge from operating to release the debt must be in writing.</p> <p>2. —False Representation to Commercial Agency.</p> <p>A written representation as to solvency, made to a commercial agency, for the purpose of being communicated to third persons to influence them to extend credit to the maker, is a representation in writing to such third persons.</p> <p>3. —Proof of Claim in Bankruptcy—Effect of.</p> <p>By proof of his claim in the bankrupt court and receiving dividends, a creditor is not precluded from suing for any balance that might be due if his debt is of the character mentioned in section 17 of said Act.</p>

<p>Appeal—Bond—Jurisdiction.</p> <p>The filing of an appeal bond (or affidavit of inability) within the time prescribed by law is necessary to give jurisdiction to the Court of Civil Appeals.</p>

<p>Appeal from the District Court of Bexar. Tried below before Hon. Edward Dwyer.</p>

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

<p>1. —Fellow Servant—Law Construed.</p> <p>One who was working about the depot under the employment and direction of the local agent was not a fellow servant with a train porter under employment from a different source, under the Act of 1897. (Sayles* Stats., 4560h.)</p> <p>2. —Master and Servant—Notice of Defect—Assumed Bisk,</p> <p>Where a servant having knowledge of the defective or dangerous condition of the platform where he was required to work made complaint of the same to his master and received assurances that the same should be remedied, he is not entitled to recover damages for any injury resulting therefrom if the complaints are made for the comfort and safety of the public rather than from any anticipated danger to himself, and if- the servant is not induced by the promises of the master to continue in the service.</p>

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

<p>Appeal from the County Court of Bosque County. Tried below before Hon. P. S. Hale.</p>

<p>1. —Personal Promise of Agent—Liability—Pleading.</p> <p>It appearing from the pleading of the defendant in reconvention that the promise of the plaintiffs to keep on hand and furnish such extras as might be needed for the machinery which plaintiffs, as agents for a manufacturing company, sold to defendant, was the personal promise of plaintiffs, it was error to sustain an exception to said pleading on the ground that defendant’s cause of action for breach of said promise was against the principal and not against the agents.</p> <p>2. —Same—Consideration.</p> <p>The commission received by such agents on the sale to defendant was a sufficient consideration for said promise.</p> <p>3. —Statute of Frauds—Pleading.</p> <p>A pleading which alleges a promise to answer for the default of another need not show that said promise was in writing.</p> <p>4. —Set-off—Note—Unliquidated Damages.</p> <p>In a suit on a note a counterclaim for unliquidated damages arising out of the same transaction in which the note.sued on was executed, is permissible.</p>

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

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

<p>1. —Pleading—Alternative Relief—Joinder of Partie.s.</p> <p>In a suit upon certain promissory notes to recover the amount of the same and to foreclose an alleged vendor’s lien, the plaintiff may properly join as a codefendant the party from whom said notes were bought, and who represented at the time of the purchase that the same were secured by a valid vendor’s lien, and pray in the alternative that in the event said lien should fail that plaintiff have judgment against the person making said representation for the money paid for said notes.</p> <p>2. —New Parties by Supplemental Petition.</p> <p>A plaintiff may bring in new parties by supplemental petition as well as by amended petition when the necessity for such parties is made to appear by facts pleaded in the answer of the original defendant.</p> <p>3. —Limitation—Praud.</p> <p>Plaintiff purchased the notes sued upon on the representation of the seller that they were secured by a vendor’s lien; limitation did not begin to run 'against the purchaser until the misrepresentation was discovered or should have been discovered by the use of ordinary diligence.</p>

<p>1. —Findings of Fact.</p> <p>Appeal from the District Court of Jasper County. Tried below before Hon. W. P. Nicks.</p>

<p>1. —Depositions—Delay in Return by Officer.</p> <p>The officer who took a deposition delayed returning them for six months after taking. The opposite party, however, was not prejudiced by the delay, nor was the party propounding the interrogatories responsible for it. Held, the motion to suppress because of such delay was properly overruled.</p> <p>2. —Names—Discrepancy.</p> <p>A grantee was designated as “Nathan Cordrey” in the patent. In a power of attorney to sell said land the patentee was designated as “N. C. Cordrey.” Held, immaterial discrepancy.</p> <p>3. —Power of Attorney—Warranty.</p> <p>A power of attorney only authorized the agent to convey by quitclaim. The agent conveyed by deed with covenant of special warranty. The deed was valid to the extent of the agent’s authority, and conveyed the land so far as his principal could do so.</p> <p>4. —Deed—Description of land.</p> <p>A deed described land conveyed by metes and bounds, and further described it generally as all of the land not sold by the patentee or his heirs. Because of the definite description by boundaries, it was not necessary, in order to identify the land conveyed, to prove what part of the survey had been sold.</p> <p>5. —Certificate of Acknowledgment.</p> <p>A grantor executed a deed for himself, and as survivor of the community, but signed and acknowledged it individually. Held sufficient.</p> <p>6. —Same.</p> <p>The grantor was named in the body of the deed, and signed the same as 8. W. 8holars. The certificate of acknowledgment named him as 8. W. Sholars, 8r. The notary certified that the party who acknowledged the deed was the same who executed it. Held sufficient.</p> <p>7. —Same.</p> <p>A notary signed a certificate simply as “Notary Public,” without designation of the State and county for which he was notary, the State and county for which he was notary being shown in the body of the certificate. Held sufficient.</p> <p>8. —Same.</p> <p>There were two grantors in a deed. The notary certifies that they appeared “and acknowledged that he executed the instrument for the purposes,” etc. This objection to the deed as a recorded instrument would have been good if made in the trial court, but can not be considered when made for the first time on appeal.</p> <p>9. —limitation—Adverse Holding.</p> <p>Facts considered, and held to show adverse holding for ten years.</p> <p>10. —Deed—Reservations.</p> <p>A person claiming under a deed conveying a tract of land with exceptions or reservations must show that the land claimed by him is not embraced within the excepted portions, if the deed itself does not clearly show it.</p>

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

<p>Connecting Carriers—Transfer of Shipments.</p> <p>In the absence of any law or regulation prescribing the manner in which freight is to be transferred between connecting carriers, this should be left to the carriers themselves, provided no unreasonable method of transfer be adopted.</p>

<p>1. —Use of Railroad Track—Licensee.</p> <p>It is well settled that if a portion of a railroad track has been commonly and habitually used for a long time by the public as a footpath, with the knowledge and acquiescence of the company, it is considered as having licensed the public to use such portion of its roadbed for that purpose, and a person so using the track would occupy the position of a licensee.</p> <p>2. —Same—Degree of Care.</p> <p>Both the licensee and the servants of the company are under obligation to .use ordinary care to avoid injury in such case.</p> <p>3. —Seeming Danger—Unnecessary or Imprudent Act.</p> <p>A party guilty ofJ negligence is responsible for the result, if that negligence lias caused another to be surrounded by such circumstances as to him appear to threaten injury, whether such person act prudently or imprudently, if, in an effort to avoid injury, he makes a choice of means from which injury results, although it may turn out that if he had done differently, or had done nothing, he would not have been injured.</p> <p>4. —Charge of Court—Harmless Error.</p> <p>The court charged the jury as follows: “If you find that, by reason of such negligence, if any, the plaintiff was placed in a position of great danger, and that he, in his efforts, if he used such efforts, to escape from such impending danger, if any, fell from said trestle,” etc. Held, if error, it was favorable to defendant, and furnishes no ground of complaint.</p> <p>5.—Disagreeing Jury—Instructions or Advice by Court—Error.</p> <p>A jury having notified the court that they could not agree, the court said to them: “I would suggest that you try to harmonize your views in a spirit of compromise and endeavor to reach a verdict.” And again: “It is very important that you reach a verdict if you can. Frequently jurors think they can not agree when, in fact, they can, and sometimes do agree. Jurors, in their deliberations, should exercise a spirit of compromise, and try to harmonize their views and differences, and reach a verdict, if possible. The question of arriving at a verdict; however, is with each of you individually, and is a matter with your own conscience and judgment, and no one has a right to question or gainsay your motives.” Held, reversible error.</p>

<p>Appeal from the County Court of Hardin County. Tried below before Hon. H. 1ST. Vickers.</p>

<p>1. —Brotherhood of Locomotive Engineers—Expulsion—Pretext—Question of</p> <p>Pact.</p> <p>Plaintiff was a member in good standing in the Brotherhood of Locomotive Engineers, and held his membership in Division 201. Charges were preferred against him in this Division for “unbecoming conduct and violating his obligation.” Under this charge there were two specifications. For the first specification the Division might lawfully expelí a member; for the second specification they could not do so because it would violate the laws of the land and an inalienable right of the member. After trial upon said charges plaintiff was expelled from the Brotherhood. Plaintiff alleged, and introduced sufficient proof to raise the issue, that the first specification was only a pretext, and that he was in fact expelled upon the second specification. Held, the issue should have been submitted to the jury and it was error for the court to instruct a verdict for defendants.</p> <p>2. —Unlawful Requirement.</p> <p>A regulation or requirement of an organization which forbids a member to appear in court and testify to the injury of other members is unlawful and void.</p> <p>3. —Expelled Member—Remedy.</p> <p>An expelled member is not required to exhaust his remedies within the order to correct a wrongful expulsion before bringing a suit for damages.</p> <p>4. —Damages—Elements.</p> <p>'It is proper and material to prove on the issue of damages sustained by a member wrongfully expelled, the publication of the fact of expulsion, the value of the, insurance policy in the order, of the traveling card, and of the sick benefits.</p> <p>5. —Evidence—Relevant and Irrelevant.</p> <p>Testimony of witnesses considered, and its relevancy and irrelevancy determined.</p>

<p>1. —Homestead—Designation.</p> <p>The head of the family has the right to designate, out of a larger tract occupied and used by them, the 200 acres which shall constitute the homestead, provided the right is exercised in good faith and the mansion house and appurtenant lands and improvements actually included and directly used in connection therewith included, and it is not necessary for the wife to join in the instrument of designation, or have knowledge of it. ,</p> <p>2. —Same—Evidence.</p> <p>A designation of 200 acres out of a tract of 511 acres, made by the husband in 1889, was admissible to show the location of the homestead in 1903, at the execution of a mortgage upon a part of the entire tract, though not made with reference to such mortgage; and, although not held conclusive, it was, in connection with evidence here considered of occupation and use of such 200 acres of a character consistent with such designation, sufficient to support a finding that the homestead continued to be upon the 200 acres so designated.</p> <p>3. —Same.</p> <p>Such designation and homestead character was not necessarily changed by the intermediate execution by the husband and wife of a mortgage to a third party, including a part of the 200 acres previously designated as homestead and disclaiming homestead rights therein.</p> <p>4. —Homestead Designation—Mortgaged Land,</p> <p>The husband may, in good faith, fix the homestead upon mortgaged land and so designate it, though having unincumbered land in a larger tract out of which the designation is made. Evidence considered and held to support the validity of such designation.</p> <p>5. —Homestead—Mortgagor’s Representations—Knowledge by Mortgagee.</p> <p>Evidence considered and held to support a finding that the mortgagee was without notice that the mortgagor’s representations that the land was not included in his homestead were untrue.</p> <p>6. —Homestead Designation—Acknowledgment—Evidence.</p> <p>The attestation by a notary public that the party making a designation of homestead personally appeared before him and made affidavit to the facts set forth in such designation, followed by its filing and recording with the county clerk, embraces the substance of a proper acknowledgment for registration and is sufficient to make a certified copy from the record admissible.</p> <p>7. —Homestead—Evidence—Admissions.</p> <p>Letters of the husband and the wife admitting that certain land offered as security for a loan was not embraced in their homestead were properly received in evidence of that fact.</p> <p>8. —Homestead—Disclaimer in Deed of Trust—Pleading.</p> <p>The wife can not be permitted to .testify that she signed the statement in a deed of trust disclaiming homestead interest in the land conveyed without reading it or knowledge of its contents in the absence of allegations of fraud or mutual mistake.</p> <p>9. —Same—Recitals not Conclusive.</p> <p>The recital in a deed of trust that the land incumbered was no part of the grantors’ homestead was not conclusive against them. Evidence considered and held to support finding that a part of the land, as to which such right was disclaimed, was in fact homestead.</p>

<p>Liquor Dealer’s Bond—Suit by Wife.</p> <p>A wife, not joined by her husband, may maintain action upon a liquor dealer’s bond for selling to him, an habitual drunkard, though she has given no written notice not to sell to him; being the “person aggrieved,” she is authorized to sue by the terms of the statute, whether the recovery would be community property or her separate estate. Wartetsky v. McGee, 30 S. W. Rep., 69, contra, will not be followed.</p>

<p>1,—Filing Amendment in Vacation—Failure to Give Notice—Bemoval of Causes.</p> <p>In his original petition plaintiff sued for $5,000 damages. By amendment filed in vacation the damage alleged was reduced to $1,999. No notice was given defendant of the filing of the amendment. On the first day of the return term of court the defendant presented its petition, affidavit and bond for removal of the cause to the Federal Court. Plaintiff contested the petition for removal and presented to the court his amended petition filed in vacation.</p> <p>Defendant moved to strike out because no notice of its filing had been given. This motion was overruled, and the petition for removal was refused. Held, there was no error in the ruling.</p> <p>2. —Death Message—Delay.</p> <p>Facts considered and held sufficient to support the finding of the jury that the defendant was guilty of negligence.</p> <p>3. —Pleading—Charge.</p> <p>By the language of the petition the claim for damages is restricted to the anguish suffered by plaintiff’s wife during the delay between the receipt of the message and the start on her journey to her wounded brother. This would not authorize a charge permitting a recovery for anguish suffered by the wife after she started on the journey.</p> <p>4. —Notice of Relationship.</p> <p>The defendant had notice that the parties were brother and sister; it was thereby charged with notice that they might be bound to each other by the strongest ties of affection and the consequent anguish which might result from delay in receipt of the message.</p> <p>5. —Charge—Weight of Evidence.</p> <p>A charge is error as being upon the weight of evidence which specially points out any part of the evidence and tells the jury they should consider it in arriving at their verdict.</p>

<p>1. —Tax Suits—Unknown Heirs—Citation.</p> <p>In a suit for taxes against “unknown heirs,” they being also in fact the “unknown owners” of the land in controversy, the citation was published for three weeks as provided by the delinquent tax act of 1897 (Rev. Stats., art. 5232o), instead of eight weeks, as provided by art. 1236, Rev. Stats., in suits against unknown heirs generally. Held, by a majority of the court, that the citation should have been published for eight weeks.</p> <p>2. —Foreclosure Sale—Innocent Purchaser.</p> <p>A purchaser of land at foreclosure sale, in good faith, under a judgment regular on its face and reciting that the defendants had been duly cited by publication, such purchaser paying a fair and adequate consideration, will be protected in his title as an innocent purchaser.</p> <p>3. —Certiorari.</p> <p>By motion for certiorari appellants ask that the clerk of the District court be required to send up certified copies of certain deeds in appellee’s chain of title. This can not be done, as to do so would be to amend or correct the statement of facts agreed to by the parties and approved by the court.</p>

<p>Appeal from the County Court of Montgomery County. Tried below before Hon. J. T. Bucks.</p>

<p>1. —Threatened Danger—Effort to Avoid—Injury.</p> <p>If one, by the negligent act of another, is placed in a situation of danger, and in order to save himself from the danger acts wildly and negligently, he would not thereby be precluded from a recovery for the injuries received in such- effort to escape.</p> <p>2. —Bes Gestae.</p> <p>A statement by one of defendant’s employes a few minutes after the injury is admissible as part of the res gestae.</p> <p>3. —Contributory Negligence—Definition.</p> <p>There was no error in defining contributory negligence as “negligence on the part of the party injured which directly and proximately contributed to and caused the injury.”</p>

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

<p>Appeal from the District Court of Aransas County. Tried below before Hon. E. A. Stevens.</p>

<p>1. —Deed—Quitclaim—Innocent Purchaser.</p> <p>It is settled law in Texas that if an inspection of the whole deed discloses that the vendee purchased, and the vendor sold, the land,- as distinguished from a mere claim or chance of title, the instrument will support the plea of innocent purchaser.</p> <p>2. —Notice—Junior Purchaser.</p> <p>Whether a junior purchaser had notice or knowledge of a prior conveyance is always a fact inquiry. The junior purchaser must, as against the legal title in the senior purchaser make his innocence affirmatively appear.</p>

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

<p>1. —Building Contract—Belay in Completion—Evidence—Charge.</p> <p>In a suit for a balance alleged to be due upon a contract for the construction of a building, which contract stipulated that the building should be completed by a certain day and that the owner should be entitled to liquidated damages in a certain amount for each day the completion of the building was delayed, provided the delay was not caused by the owner, and the owner plead in reconvention that the completion of the building was delayed twenty-eight days and prayed judgment for the damages, it was error for the court to submit to the jury the question whether or not the delay was caused by the owner when there was no evidence from which the jury could find that the owner was responsible for the delay.</p> <p>2. —Same—Burden of Proof—Quantum Meruit.</p> <p>The general denial of the defendant, the owner of the building, imposed upon plaintiffs, the contractors, the burden of pleading and proving that they in all respects complied with the terms and stipulations of their contract, otherwise they would not be entitled to recover. The facts of this case do not authorize a recovery upon quantum meruit. The rights of the parties must depend upon the contract.</p> <p>3. —Same—Bamages Pro Tanto.</p> <p>Even if the acts of the owner or his agent contributed to the delay in the completion of the building this would not authorize a finding against the owner on the whole case, but only pro tanto for the delay so occasioned.</p> <p>4. —Charge—Issue—Absence of Pleading and Proof.</p> <p>Where there was neither pleading nor proof that the architect in charge of the building had ever extended the time for the completion of the same, it was error for the court to submit this question to the jury.</p> <p>5. —Pleading—Evidence.</p> <p>Where the contract between the parties is pleaded by the defendant, the plaintiff may introduce the same in evidence.</p> <p>6. —Declarations—Res Gestae.</p> <p>Declarations contemporaneous with acts are admissible as part of the res gestae.</p> <p>7. —Contract—Liquidated Damages.</p> <p>Where the exact extent of one’s damages in case of a breach of a contract is incapable or at least extremely difficult of computation, and the parties, probably with a view to that fact, have agreed upon and stipulated for liquidated damages, the court will not be warranted in treating such provision as a penalty rather than as liquidated damages, and the provision will be enforced.</p>

<p>1. —Cross-Examination—Pertinent Questions.</p> <p>In a suit for personal injuries a witness for the defendant testified by deposition that the general reputation of the plaintiff for industry and energy was bad. In answer to cross-interrogatories he gave the name of a person whom he had heard say that the plaintiff did not like to do hard work. Plaintiff then placed the person named on the stand and proved by him that he made no such statement. Held, if the testimony of defendant’s witness as to the reputation of plaintiff was relevant and material, the impeaching testimony was also relevant and material.</p> <p>2. —Admission of Testimony—Harmless Error.</p> <p>Where the incompetency of the members of the train crew was not made a ground of recovery, the admission of testimony as to their incompetency was not cause for reversal when the court did not submit such issue, and there was other testimony to the same effect admitted without objection.</p> <p>3. —Refusal of Special Charge—Omission of Issues.</p> <p>It is not error to refuse a special charge directing the jury to find for the defendant when said charge does not include all the issues of negligence relied on by plaintiff.</p>

<p>Appeal from the County Court of Erath County. Tried below before Hon. L. N. Frank.</p>

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

<p>1. —Amendatory Act—Title—Article 3, Section 35, of the Constitution Construed.</p> <p>Article 397 of the Revised Statutes of 1895 was amended by an Act entitled “An Act to amend article 397, chapter 2, title 18, of the Revised Civil Statutes of the State of Texas, relating to cities and towns and the election of its officers.” The amendment relates to the same subject matter as the original article, and provides, in addition, that such towns and cities as contain over 200 and less than 5,000 inhabitants, and which have been incorporated under special Act of the Legislature, and whose offices have been vacated for ten years shall not again elect officers. Held, that the amendment is within the subject matter of the original article and germane thereto. If the title of an Act fairly gives reasonable notice of the subject matter of the statute it meets the requirements of the Constitution.</p> <p>2. —Same—Repealing Clause.</p> <p>The repeal of a statute on a given subject is properly connected with the subject matter of a new statute on the same subject, and the repealing clause is valid, although the title is silent on that subject.</p> <p>3. —Procedure for Municipal Incorporation.</p> <p>Articles 385, 580, 581, 585, 586, Revised Statutes, considered, and held, while it is necessary for the county judge to make the order for an election to incorporate a city or town, it is not necessary that such order be entered of record in any particular book. In this case such order was in fact made when the petition for the election was presented, but was not spread upon the minutes of the Commissioners’ Court at that time; subsequently, and after the election, the order was entered nunc pro tunc on the minutes of the Commissioners’ Court on motion of the county judge. Held, sufficient.</p> <p>4. —Same—Recitals in. Order—Conclusive.</p> <p>The order for an election recited the prerequisites prescribed by the statute. Held, that the finding of the county judge in these respects is conclusive.</p> <p>5. —Excessive Territory.</p> <p>The statute does not make it the duty of the county judge to determine whether the proposed limits of the city or town to be incorporated embraces territory that ought not to be included. This is the duty of the promoters of the corporation.</p> <p>6. —Amendatory Act—Title—Sufficiency.</p> <p>In 1901 an Act was passed entitled “An Act to amend article 386c, chapter 1, title 18, of the Revised Civil Statutes of Texas of 1895, relating to cities and towns.” Article 386c was amended in 1897, the amendment taking the place of the original article. This amendment of 1897 had become article 386c when the amendment of 1901 was passed, and the reference by that Act to “Article 386c” had reference to the article as amended in 1897 and was sufficient.</p> <p>7. —legislature—Called Session—Subjects of legislation.</p> <p>The courts will not go into an investigation to determine whether as a matter of fact the Legislature in enacting a law failed to observe some rule of procedure prescribed by the Constitution.</p> <p>8. —Defective Incorporation—Curative Act.</p> <p>While the Legislature could not under the Constitution by special Act create a municipal corporation, it has the power by special Act to pass a curative Act validating the defective incorporation of a city already in existence.</p> <p>9.—Validating Act.</p> <p>The Act of the Legislature of 1901, first called session, p. 32, validated any supposed defects in the procedure to incorporate a city or town resulting from irregularities in the petition for election, ordering or holding the same, declaring the result thereof, and as to the territory included in the corporate limits.</p>

<p>Error from the County Court of Travis County. Tried below before Hon. James R. Hamilton.</p>

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

<p>1. —Right of Administrator to Possession of Estate.</p> <p>As against an heir an administrator has a superior right to the possession of the property of an estate.</p> <p>2. —Payment of Debts by Heir—Credit for Same.</p> <p>In an action by an administrator against an heir to recover property of the estate, the heir may show in defense the application by him of such property of the estate to the payment of debts against the estate, and receive credit for the amount so applied.</p> <p>3. —Heirs—Possession and Distribution of Estate.</p> <p>The title to an estate being in the heirs, they have a right, in the absence of an administration or any known necessity for same, to take possession of the estate and distribute it among themselves. An administrator subsequently appointed would have to look to each heir for the portion received by him.</p>

<p>Delay in Transporting Saw Mill Machinery—Rental Value—Evidence.</p> <p>While the plaintiff testified he did not know the rental value of the saw mill, he further testified that it had a capacity of 20,000 feet per day, and when using said mill he made from $12.50 to $15 per day net. There was other evidence to the effect that saw mills usually rented for one-fourth of the output, and that lumber was worth $6 per 1,000 feet at the mill. Held, that the evidence was sufficient to enable the jury to determine the rental value of the saw mill.</p>

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

<p>1. —Assignments of Error—Practice—Rules 24, 25, 26 and 27 Enforced.</p> <p>Where appellant groups together a number of assignments raising as many distinct questions of law, involving the whole case and necessitating an examination of the entire record, the Appellate Court will not consider the questions so raised because in violation of the rules.</p> <p>2. —Plea of limitation—Sufficiency.</p> <p>Where defendant’s answer contained the following allegations: “For answer the defendants allege and show and would plead as a complete bar to plaintiff’s recovery herein that, as appears from said petition of plaintiff, the last of said installments and the final maturity of all of said indebtedness fell on February 18, 1884; that more than four years have elapsed since the accrual of the cause of action on said assumption by defendant, and on said note or notes themselves, prior to the institution of this suit.” Held, a sufficient plea of the statute of limitation.</p> <p>3.—Repudiation by Vendee of Vendor’s Title—Limitation.</p> <p>Repudiation by the vendee of the vendor’s title will set the statute of limitations in motion against the vendor’s superior title: Facts considered, and held to support a vendee’s plea of limitation.</p>

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

<p>1. —Evidence—Pedigree—Declarations—Litem Motam.</p> <p>The declarations of an ancestor are inadmissible for the purpose of proving heirship when such declarations were made after the controversy to which they relate had arisen.</p> <p>2. —Trespass to Try Title—Pleading—Evidence.'</p> <p>In trespass to try title where the defendant pleads his title specially and also the general issue evidence is admissible under the general issue to rebut the claim of title asserted by plaintiff.</p> <p>3. —Same—Prior Possession,</p> <p>The mere failure of a plaintiff in trespass to try title having prior possession to connect himself with the sovereignty of the soil does not destroy the presumption created by such possessipn. It is only when it is conclusively shown that the title under which possession is taken is no title that the presumption is rebutted.</p>

<p>Appeal from the County Court of Bosque County. Tried below before Hon P. S. Hale.</p>

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

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

<p>1. —Construction of Contracts.</p> <p>As a general rule, in the construction of contracts the ordinary use of its terms is to be applied. But this is not universally so. The dominant purpose is to ascertain what was in the minds of the parties to the contract at the time it was made. Unless the parties to a contract assent to the same thing in the same sense it is no contract. In ascertaining the meaning of the terms used, the situation of the parties and of the subject matter at the time, and the acts and declarations of the parties, may be looked to. A party to a contract will be held to that meaning which he knew the other party supposed the words to bear.</p> <p>2. —Same—Contract to Furnish Oil—Expression “Failure of Oil Wells” Construed.</p> <p>In a contract to furnish oil, it was provided that the contract should not be voidable except (among other reasons) “by failure of oil wells.” Facts and circumstances considered, and said expression held to mean a failure of the wells, then owned by the oil company, to flow by natural pressure, as they were doing when the contract was made.</p>

<p>Appeal irom the District Court of Havarro County. Tried below before Hon. L. B. Cobb.</p>

<p>1. —Lis Pendens.</p> <p>It is settled law in this State that lis pendens, in order to render the judgment in a cause binding upon a purchaser from a party to the suit, does not begin until the service of citation or process, or such voluntary appearance as would give the court jurisdiction.</p> <p>2. —Citation by Publication—“Brief Statement of Cause of Action.”</p> <p>By the expression “a brief statement of the cause of action,” as used in the statute concerning citation by publication, is meant, the substance of the cause of action as stated in the petition, but briefly stated, instead of “fully and clearly stated,” as is required in the petition. Citation considered, and held insufficient.</p> <p>3. —Purchaser Pending Suit—Not Bound by Judgment.</p> <p>B. purchased a tract of land from L., against whom a suit was then pending for said land; the suit had been filed several years before that, but L. had never been served with citation, and had never voluntarily appeared in the suit. After such sale by L. to B. a judgment was rendered in said suit against L. for the land. Held, B. was not a purchaser pendente lite, and was not bound by the judgment against L.</p> <p>4. —Burden of Proof.</p> <p>The burden of proof was on the parties asserting that said judgment was binding on B. to show that at the time of his purchase, L. had been served with citation or had voluntarily appeared in said suit. Evidence considered, and held insufficient to show this fact.</p>

Tried below before Hon. V. L. Brooks. The instructions of the court upon the issues presented by defendants plea in abatement and the form of their verdict thereon were as follows: “On the issue of the alleged extension of the time of payment of the note in suit, as pleaded by defendants, you are instructed that if you find from the evidence that on or about December 25, 1904, the plaintiff and defendant C. G. Ellis mutually agreed that the time of payment of the note in…

<p>1. —Opinion Evidence.</p> <p>If the facts'can be detailed and placed before the jury so that the jurors, as men of ordinary intelligence, can fully understand the matter and draw the proper inferences and conclusions, and there is no necessity for opinion evidence, such evidence, whether the opinion of an expert or a nonexpert, is inadmissible.</p> <p>2. —Same—Contributory Negligence—Child—Capacity to Appreciate Danger.</p> <p>On the issue as to the contributory negligence of a child of ten years in going upon a street-car track, the opinions of witnesses who know her, concerning her mental faculties, were admissible, but a witness could not give his opinion as to whether she had intelligence enough to appreciate the danger of going on the track without looking or listening for a car, thereby practically giving his opinion as to whether she was guilty or not of contributory negligence.</p> <p>3. —Certified Question—Conflicting Decisions.</p> <p>A ruling of the Court of Civil Appeals will not be certified to the Supreme Court because it conflicts with that in another Court of Civil Appeals, where such ruling alleged to be in conflict was reversed by the Supreme Court on writ of error.</p>

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

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

<p>Statement of Facts—Official Stenographer—Construction of Act.</p> <p>The Act of the 29th Legislature providing for official stenographers for the courts does not repeal any other law relating to the preparation of statements of fact in appealed eases. It is only in those eases where one of the parties to the suit requests the stenographer to make a transcript of the oral evidence and has such transcript signed and approved by the judge and filed among the papers of the cause, that it can be used as the statement of facts on appeal. If neither party requests such transcript, the appellant would have the right to have prepared and filed a statement of facts under the rules of practice heretofore prescribed, and it would be the duty of the clerk to copy such statement into the transcript for appeal.</p>

<p>Appeal from the County Court of Montague County. Tried below before Hon. Geo. S. March.</p>

<p>1. —Corporation—Vice-Principal—Bellow Servant.</p> <p>The general manager of a corporation to whom is entrusted the complete control of a business is the representative of the master, and is not a fellow servant with the employes engaged in the actual operation of its business, and this is the case whether such manager has the power to employ and discharge said employes or not.</p> <p>2. —Purchase of One Corporation by Another—Liability for Debts.</p> <p>The fact that one corporation purchases the plant and assets of another does not necessarily and of itself make the purchasing corporation liable for the debts of the sold-out corporation.</p>

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

<p>1. —Account Sales—Hearsay Testimony.</p> <p>In a suit for damages to a shipment of cattle the following interrogatory was propounded to the salesman who sold said cattle at Kansas City: “Please make and attach to your answers a true and correct copy of the account of sales showing the number of cattle sold; to whom sold; the price for which they were sold; their weight and total receipts, and mark in some way for identification, stating- the same is true and correct.” To which he answered: “I have attached to my answers a true and correct copy of the account sales showing the data requested. I will sign my name in full across account sales so that I may be able to identify it.” He was then asked: “If you weighed said cattle,. give their weights.” He answered: “Cattle were weighed by the Kansas City Stock Yards Company, disinterested parties. Account sales will show their weights.” Held, the account sales should have been excluded as hearsay.</p> <p>2. —Sales of Cattle—Evidence—Stock Journal.</p> <p>Where a stock journal of the date on which plaintiff’s cattle were sold was admitted in evidence and contained an account of cattle sold on that day, giving weights and prices, but did not indicate with any certainty that plaintiff’s cattle were included in said sales, the admission in evidence of said journal did not render harmless the admission of hearsay testimony.</p>

<p>1. —Nuisance—liability.</p> <p>Where it is proved that a nuisance actually exists, the person responsible therefor can not escape liability by showing that he exercised ordinary care to prevent it. Negligence is not an essential fact to be considered in determining liability.</p> <p>2. —Same—Human Agency.</p> <p>Where a nuisance is charged, no recovery can be had unless the injury can be attributed to the act of man rather than natural causes, and in order to make a nuisance it must be shown that it is the result of human agency in some form.</p> <p>3. —Concurring Nuisances.</p> <p>If the defendant company created a nuisance by causing water to collect and stand in holes and ditches on its right of way, and there were similar nuisances at the same time near plaintiff’s residence in no manner caused by the defendant, and the two combined resulted in the injuries complained of, the company -would be liable for the portion of the injuries which resulted from the nuisance created by it.</p> <p>4. —Notice of Nuisance.</p> <p>The plaintiff offered to testify that some time before filing suit he told a section boss and a station agent of the defendant that the right of way adjoining his premises was in bad condition; that there was stagnant water and rotting weeds on the.same, and asked to have same cleaned up. Held, admissible for the purpose of showing notice to defendant that plaintiff claimed he was being injured by the condition of defendant’s right of way.</p> <p>5. —Motion for New Trial—Tiling in Due Time—When not Necessary.</p> <p>Assignments of error based upon the insufficiency of the evidence to support the verdict will pot be considered on appeal unless specified in a motion for new trial. But in regard to the ruling of the court upon exceptions to the pleadings, the admission of evidence, and in the giving and refusing instructions a different rule prevails. Having once acted upon the matters last mentioned it is not to be presumed that the judge will change his ruling, and hence in order to appeal from such action it is not necessary that it be made ground for new trial. Such assignments will be considered on appeal, though the motion for new trial was not filed in due time.</p>

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

<p>1.—Jurors—Peremptory Challenges—Parties to Suit.</p> <p>Where the interests and claims of codefendants are antagonistic, each defendant is entitled to the full number of challenges given by the statute to each party to the suit. But the refusal of the trial court to allow this right Avill not authorize a reversal of the judgment unless it appears from the record that the party complaining Avas probably injured thereby.</p> <p>i$.—Chattel Mortgage—Registration—Notice.</p> <p>The registration of a chattel mortgage executed by a married woman is not constructive notice of the existence of the mortgage.</p> <p>3. —Same—Married Woman.</p> <p>A diamond ring purchased by a married Avoman with community funds becomes community property, and the husband Avould have the right to pawn or pledge the same; and the pledgee without notice, actual or constructive, of a prior mortgage executed by the wife alone would have a lien superior to that held by the mortgagee under the Avife.</p> <p>4. —Marriage—Evidence.</p> <p>Facts considered, and held insufficient to support a finding that the mortgagor of the ring in question was not a married woman at the time of the execution of the mortgage.</p>

<p>Carrier—Passenger—Termination of Transit.</p> <p>Evidence, in case of a passenger remaining asleep on the arrival of train at terminus and claimed to have been mistreated by a brakeman in waking and putting him off car, considered and held to support a verdict for defendant, on the ground that the relation of carrier had ended and that no unreasonable force was used.</p>

<p>Error from the County Court of Bell County. Tried below before Hon. W. R. Butler.</p>

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

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

<p>1. —Removal of Mortgaged Property—Trespass—Plea of Privilege.</p> <p>Cattle mortgaged to plaintiff were shipped by the mortgagor out of the county where they were held and to market in another State, consigned to and sold on account of the president of defendant bank, in pursuance of an arrangement made with such mortgagor, in that county, by the president acting on behalf of the bank. Held, that the trespass was committed in the county, and suit therein could be maintained against the bank and its president over their plea of privilege to be sued in the county of their residence.</p> <p>2. —Identifying Mortgaged Property.</p> <p>Evidence considered and held sufficient to identify cattle mortgaged to plaintiff with those shipped out to and sold on account of defendant.</p> <p>3. —Evidence—Communication by Telephone.</p> <p>. A conversation held by an unknown person purporting to speak for a bank, by long distance telephone, held admissible against the bank, where circumstances rendered such communication by its agents probable and no other party appeared to have an interest ixi holding such communication.</p> <p>4. —Evidence—Opinion as to Number.</p> <p>On the question of the number-of cattle in certain brands contained in a shipment, witnesses who saw the cattle in the shipping pens and testified to their inability to tell the number of them in such brands were properly permitted to give their opinion that about half of those shipped were so branded.</p> <p>5. —Mortgage—Default—Conversion.</p> <p>A mortgagee entitled to possession of property, after maturity of his debt, can maintain suit for conversion against one removing and selling it, and is not bound to pursue the property.</p>

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

<p>1. —Carrier—Contract of Shipment—Limiting Liability.</p> <p>A carrier of freight has the right by. the contract of shipment to limit its liability to its own line of road, and it was error to sustain an exception to an answer setting up such contract.</p> <p>2. —Judgment—Insufficient Evidence.</p> <p>Each judgment must be tested on appeal by the evidence in its own record. Because in other similar appealed cases there may have been evidence which would warrant such a judgment as was rendered in the case in hand, thi = would not authorize the court to take judicial knowledge of such evidence and render judgment as if said facts has been proven in the case on trial.</p>

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

<p>Appeal from the County Court of Stephens County. Tried below • before Hon. A. J. Powers.</p>

<p>1. —Lost Writing—Evidence—Predicate—Duplicate Original.</p> <p>Parol evidence is not admissible to prove contents of a lost contract where there was a duplicate original thereof delivered to the codefendant of the party offering such evidence, and no effort shown to produce or account for it.</p> <p>2. —Judgment—Purchaser Pendente Lite—Unrecorded Deed.</p> <p>One claiming land under deed not recorded at the time suit therefor was commenced against his grantor by a plaintiff without notice of the deed, is in the attitude of a purchaser pendente lite.</p> <p>3. —Lis Pendens—Judgment—Writ of Error—Dismissal—Cross Action.</p> <p>In an action to set aside defendant’s tax title to land, plaintiffs not appearing, their suit was dismissed and defendant had judgment on a crossbill for recovery of the land, filed on the same day and without notice, and sold to another prior to the suing out writ of error which resulted in reversal. Held, that there was a pending litigation during the time allowed by the law for prosecuting error, by the result of which the purchaser was bound; if the failure of plaintiff to appear interrupted the prosecution of his suit still the cross-action of defendant presented a pending litigation so long as it was open to writ of error.</p> <p>4. —Judgment—Dismissal—Crossbill—Service.</p> <p>Where, a plaintiff failing to appear for trial, defendant filed a cross-action on which, without service on plaintiff, he took judgment for the recovery of land with dismissal of plaintiff’s action therefor, the recovery on' such crossbill was void and subject to collateral attack for want of service and jurisdiction.</p> <p>5. —Limitation—Tenant—Repudiating Title.</p> <p>A tenant who had acquired tax title to the land could- not avail himself of limitation thereunder, except from the date that he distinctly repudiated his tenancy and gave notice thereof to the landlord.</p> <p>6. —Writing—Notice to Produce.</p> <p>A notice to produce letters written by R. to B. and M. did not cover letters written by R. to M.</p> <p>7. —Harmless Error—Findings.</p> <p>Exclusion of evidence is harmless error when its effect was only to establish a fact found in appellant’s favor, by the court, upon other testimony.</p> <p>8. —Appearance—Service—Recitals in Record.</p> <p>A recital that plaintiffs failed to appear and their suit was thereupon dismissed showed that the judgment against them on a crossbill filed by defendant on the same day was obtained without service.</p> <p>9. —Purchaser Pendente Lite—Notice—Pleadings. ,</p> <p>One purchasing property pending an action by his vendor for its recovery is bound by the result of the litigation in a recovery by such defendant, though had upon an interest in the land different from that asserted by the latter’s pleading at the time of such purchase, and on recovery against him is also liable for the rents.</p>

Tried below before Hon. Geo. Calhoun. The disqualification of Chief Justice H. C. Fisher to sit in this case having been certified to the Governor, Will G. Barber, Esq., was appointed and duly commissioned as special Chief Justice to sit with Associate Justice Eidson in its determination. Associate Justice Key did not participate.

<p>Appeal from the District Court of Bexar. Tried below before Hon. Edward Dwyer.</p>

<p>1. —Joinder of Party Defendant.</p> <p>Plaintiffs’ suit being for the contract price of timber cut from land, it was proper to make any one claiming an interest in said timber a party defendant.</p> <p>2. —Joinder of Causes of Action.</p> <p>In a suit for the contract price of timber cut from land, it was proper to join one who was asserting claim to part of the land and have the title to the-land adjudicated.</p> <p>3. —Statute of Frauds.</p> <p>Even if a sale of growing timber is a contract for sale of real estate, the defendants having appropriated the timber under an oral contract could not defeat plaintiffs’ suit for its value by pleading the statute of frauds.</p> <p>4. —Title—Pleading.</p> <p>Plaintiffs plead title both by regular chain from the sovereignty of the soil, and by limitation. They could therefore prove title by either or both methods.</p> <p>5. —Title by Limitation—Separate Property—When.</p> <p>When adverse possession of land is begun by the wife before marriage, the title which ripened by limitation after marriage is hers, and the land her separate property.</p> <p>6. —Transfer of Land Certificate—Title.</p> <p>The transfer in writing of a land certificate after it has been located is in equity a conveyance of the land.</p> <p>7. —Same.</p> <p>Possession of an unlocated land certificate is prima facie evidence of ownership.</p> <p>8. —Community Debt—Payment by Wife.</p> <p>Where at the time a community debt is made the wife agrees that her separate property may be applied to its payment, she cannot afterwards recover the money so applied.</p>

<p>Appeal from the District Court of Jasper County. Tried below before Hon. W. B. Howell.</p>

<p>1. —limitation—Charge—Ambiguity—Special Charge.</p> <p>Two tracts of land were conveyed to defendant by the same deed. The plaintiffs claimed an interest in only one of said tracts. In the main charge the court instructed the jury as follows: “Possession by one of land improved and enclosed holds all within his enclosure; if his possession is under a deed he has in addition to his actual possession, constructive possession to the extent of the boundaries indicated by his deed.” At the request of plaintiffs the court instructed the jury, in substance, that limitation would not begin to run against plaintiffs until defendant took actual possession of some part of the tract claimed by plaintiffs. Held, that the special -instruction cured any ambiguity in the main charge, and the two charges were not in conflict.</p> <p>2. —Charges—Not Necessary to Bepeat.</p> <p>The court having correctly instructed the jury upon certain phases of the evidence, it was not necessary to repeat such instructions in connection with special charges bearing on the same matter.</p> <p>3. —Charge on Weight of Evidence—Harmless Error.</p> <p>A charge which may be obnoxious to the objection that it is upon the weight of evidence is harmless error where, under the undisputed evidence, no other verdict could have been rendered.</p> <p>4. —limitation—Disabilities.</p> <p>The statute of limitation will be set in motion by a dissolution of the marriage relation by death or divorce, and having been once set in motion it will not be interrupted by subsequent disabilities of coverture or minority.</p>

<p>Appeal from the District Court of Calhoun County. Tried below before Hon. James 0. Wilson.</p>

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

<p>Appeal from the County Court of Wise County. Tried below before Hon. Jno. G. Gose.</p>

<p>Appeal from, the District Court of Childress County. Tried below before Hon. S. P. Huff.</p>

<p>Error from the District Court of Sherman County. Tried below Defore Hon. Ira Webster.</p>

<p>Services Rendered—Statute of Frauds—Quantum Meruit—Limitation.</p> <p>Where services were rendered by a niece to an uncle for twenty-two years under and by virtue of an agreement that the uncle, would devise all his property to her, and the uncle died intestate, the agreement being within the statute of frauds was unenforceable; but a suit based upon quantum meruit was not barred by limitation. The cause of action only arose on the death of the uncle.</p>

<p>Appeal from the County Court of Baylor County. Tried below before Hon. B. M. Britton.</p>

<p>Error from the District Court of Camp County. Tried below before Hon. P. A. Turner.</p>

<p>1. —Corporation Bonds—Consideration.</p> <p>The provisions of the Constitution (article 12, section 6) does not require that a corporation issuing bonds shall receive face value for the same, but that the amount received shall bear some reasonable approximation to the amount of the bond.</p> <p>2. —Bonds—Pledge of Same.</p> <p>A railway company has the right, under the Constitution, to pledge its bonds as collateral security for money or property actually received as a result of such pledge, as well as to sell the same.</p> <p>3. —Decree in Equity.</p> <p>This suit was brought by certain bondholders to establish the validity of such bonds, to foreclose a mortgage executed to secure the same, and to have a receiver appointed for the mortgaged property. It was proper for the court to determine the validity of the bonds, without determining the amount due on the bonds or who held them, especially when the court reserved the right in the decree to allow the bondholders to come in afterwards and prove up their ownership and indebtedness.</p> <p>Í.—Bondholders—Prorating Debts.</p> <p>A trust company, holding bonds of the defendant as security, issued certificates called “collateral trust certificates.” These certificates evidence the primary loans for which some of said bonds were pledged, others were pledged for other indebtedness. The trial court adjudged that the holders of the bonds should participate pro rata in the proceeds of the sale of the mortgaged property until their primary indebtedness was paid on the basis of the bonds held, aiid not of the debt. Held, correct.</p> <p>5.—Foreign Corporation—Suit in Texas.</p> <p>The plaintiff, a Missouri corporation, could prosecute this suit without taking out a permit to do business in Texas because it did not appear that said corporation transacted business in Texas.</p>

Tried below before Hon. N. E. Lindsey. Associate Justice Eidson, having been of counsel, did not sit in the case, and, by reason of his disqualification, D. E. Simmons, Esq., was appointed and commissioned as associate justice herein.

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

<p>Appeal from the District Court of Travis County. Tried below before Hon. V. L. Brooks.</p>

Tried below before TIon. W. R. Butler. The fifth assignment of error was upon the giving the following charge: “If you believe that plaintiff had been told that his ticket had expired, and was not good, and that he must pay his fare or get off the train, and that plaintiff; then said ho had no money with which to pay his fare, and that he would have to get off the train, and that ho did then, willingly and voluntarily, get off the train, then you will find for the…

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

<p>1.—Interlocutory Order—Appeal.</p> <p>No appeal lies except from filial judgments or from interlocutory orders where such appeal is specially authorized by statute.</p> <p>i$.—Same—Appointment of Receiver—Motion to Vacate.</p> <p>An appeal from an interlocutory order appointing a receiver must be taken within twenty days from the entry of such order (Rev. Stats., art. 1383). It does not lie from an order refusing a motion to vacate the appointment, made more than twenty days after entry of the order.</p>

Tried below before Hon. Sam. R. Scott. Mrs. Sinclair was a passenger on a street car, which collided with another car. She testified that she was thrown down and received bruises and injury to the womb and ovaries. The two motormen and a passenger who was sitting by her contradicted her testimony as to being thrown down or apparently injured.

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

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

<p>Public Road—Dedication.</p> <p>Whether or not land has been dedicated to the public depends upon the intention of the owner as evidenced by all the facts and circumstances surrounding the transaction. Evidence considered and held sufficient to support a finding that no dedication had been made.</p>

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

<p>1.—Trial of the Right of Property—Pledgee.</p> <p>A mere lienholder is not entitled to the remedy of the trial of the rights of property, but such remedy is given to a pledgee of property, provided the officer in making the levy takes possession of the property to the exclusion of the pledgee.</p> <p>2. —Same—Compress Receipts—Custom and Usage.</p> <p>The appellee advanced money to a cotton buyer to buy cotton, with the agreement that appellee should hold the cotton as security for the money so advanced. The cotton was shipped from Godley to Cleburne and delivered to a compress there. The bills of lading were delivered by the buyer to appellee. The compress gave receipts to the railroad for the cotton. The railroad exchanged these receipts with the appellee for its bills of lading. It was the usage and custom of the compress to consider the holder of its receipts as the owner of the cotton and entitled to demand possession of same. Held, the appellee was entitled to maintain this action, and to hold the cotton against the levy of an execution by appellant.</p> <p>3. —Bills of lading and Warehouse Receipts—Symbols of Possession.</p> <p>Bills of lading and warehouse receipts are not considered negotiable in the same sense as bills, notes, etc., but are regarded as representatives of the property covered by them, and when delivered with or without endorsement, in deference to the agreement of the parties, are a constructive delivery of the property.</p>

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

<p>1. —Contract by Corporation—Agent—Pleading.</p> <p>Where the petition does not disclose the name of the agent of a corporation by whom the alleged contract was made, it is subject to special exception on that ground.</p> <p>2. —Breach of Contract for Irrigation—Measure of Damage.</p> <p>In a suit for damages for breach of contract for irrigation the measure of damage is the probable value of the crop when matured less expense of cultivating, harvesting, marketing, etc.</p> <p>3. —Corporation—Agent—Authority—Pleading.</p> <p>In the absence of actual authority, either express or necessarily included within the general official powers of an agent, a corporation can be held only by estoppel. Estoppel must be pleaded.</p>

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

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

<p>Appeal from the District Court of Coke County. Tried below before Hon. J. W. Timmins.</p>

<p>Appeal from the District Court of Travis County. Tried below before Hon. George Calhoun.</p>

<p>1. —Fraud—latitude- in Proof.</p> <p>It is usually impossible to prove fraud by direct and positive evidence, and for this reason a large latitude is permitted in the admission of evidence on such an issue.</p> <p>2. —Representations as to Future Profits—When Competent.</p> <p>A statement that a purchase of property “is a splendid investment,” made at the same time and in connection with representations as to conditions from which, if true, would necessarily follow the conclusion expressed by such statement, can not, if erroneously admitted in evidence, be prejudicial.</p> <p>3. —Conclusion of Witness—When Competent.</p> <p>The testimony of a witness, who had been bookkeeper, secretary and treasurer of defendant company, that during a certain period of time the earnings of defendant were not sufficient to pay a certain debt, was competent and relevant. Also, that in the opinion of the witness it would take all of defendant’s assets to pay its debts.</p> <p>4. —Hypothetical Question—When Permissible.</p> <p>It is not essential that the hypothetical facts, upon which an expert bases his opinion or conclusion, should be uncontroverted; it is enough that there is evidence from which the jury may find the existence of the facts supposed.</p> <p>5. —Improper Argument to Jury—When not Ground for Reversal.</p> <p>By special charges the jury were instructed to disregard the language complained of. Assuming that the remarks in question were unauthorized by the evidence, it must be presumed in favor of the judgment that they were, in obedience to the instructions, disregarded by the jury and in no way affected the verdict.</p> <p>6. —Not Necessary to Prove Immaterial Allegations—Knowledge that Representation Inducing Purchase is Untrue—Not Material—When.</p> <p>The rule is general that, except as to allegations of essential description, 'whatever the pleader may allege as cause of action or ground of defense, it is only necessary to prove such allegations as are necessary to constitute a cause of action or establish a defense. If a statement of fact actually untrue is made by a person who honestly believes it to be true, but under such circumstances that the duty of knowing the truth rests upon him, which, if fulfilled, would have prevented him from making the statement, such - representation may be fraudulent in equity, and the person answerable for such fraud.</p>

<p>Appeal from the Gounty Court of Gregg County. Tried below before Hon. Edwin Lacy.</p>

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

<p>Appeal from the District Court of Clay County. Tried below before 1 Hon. A. H. Carrigan. ■</p>

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

<p>1. —Administration—Jurisdiction.</p> <p>Administration was granted in this State for the sole purpose of prosecuting a suit in this State against the appellee for damages, arising under the laws of the Indian Territory, for personal injuries to, and the death of, -the decedent; said injuries were inflicted in the Indian Territory; the decedent resided with his family in Oklahoma Territory and died there; his family resided then, and at the time said administration was granted,. in Oklahoma Territory; he had no kin in this State; he left no property of any kind in .this State to be administered, nor has any property of his come into this State since his death, unless the claims for damages be considered property and assets of his estate. Held, the granting of letters of administration upon the estate of said decedent was coram non judice and void.</p> <p>2. —Same—Contestant—Interest in Estate.</p> <p>The appellee having been sued by the appellant in his capacity of administrator had the right to inquire into the authority upon which he acted.</p>

<p>1.—Pullman Company—Contract for Berth—Liability for Breach.</p> <p>A passenger contracted for accommodations in a Pullman Palace car between two certain points on a line of railway. Before reaching its destination the Pullman car was detached from the train and attached to another train going in the opposite direction. The train conductor and the employes of the Pullman Company persistently insisted on said passenger being transferred from the sleeping ear to a chair car and so conveyed to her destination. The manner of their insistence caused said passenger to become the object of the curious and annoying gaze of other passengers, causing humiliation, mortification and mental anguish on the part of said passenger. This was continued until said passenger, under a threat of being carried back to Kansas City on said sleeper, consented to leave the sleeper. Held, that the purchase of a berth in the Pullman car was a contract for transportation in said ear to destination; that by requiring said passenger to leave the Pullman car before reaching her destination both the Pullman Company and the railway company were guilty of a breach of said contract, and liable for resulting damages.</p>

<p>1. —Breach of Contract—Special Damages—Pleading.</p> <p>To entitle the defendant company to recover from plaintiff on its plea in reconvention the damages which said company was obliged to pay to the contractors by reason of its failure to make prompt delivery of the material to said contractors, it was incumbent on the said company to plead and prove that at or before the execution of the contract sued on plaintiff had notice of the particular purpose for which the material was intended, and the probable consequences of a failure to make prompt delivery of the same.</p> <p>2. —Bargain and Sale—Inspection—Estoppel.</p> <p>A purchaser of personal property, under an executory contract for its sale and delivery, who inspects the same before receiving it, is estopped, as to patent defectives, from denying that it was of the character bargained for; and it matters not that at the time of receiving it he did so under protest; nor that he was compelled to accept and use it to prevent certain forfeitures.</p> <p>ON REHEARING.</p> <p>3. —Substitution of One Article for Another—Market Value.</p> <p>It appearing from the evidence that the defendant did not accept the splice bars in lieu of the angle bars contracted for, but used the same under the promise of plaintiff to do what was right in the. matter, it would only be liable for the reasonable market value of such as it used.</p> <p>4. —Pleading—Exceptions.</p> <p>Where the pleading is fairly susceptible of two intendments, on special exception that will be adopted which is most unfavorable to the pleading. In the absence of a special demurrer, and when tested by a general demurer the pleading will be given the most reasonable intendment in favor of its sufficiency.</p>

<p>Appeal from the District Court of Matagorda County. Tried below before Hon. W. C. Carpenter, Special Judge.</p>

<p>Appeal from the District Court of Jefferson County. Tried below " before Hon. A. T. Watts.</p>