Volume 42 — Texas Civil Appeals Reports

Where the evidence is conflicting a finding of fact by the trial court will not be disturbed. 2.—Contract—Acceptance—Estoppel. If in fact plaintiff did not comply with his contract for boring a well, and was not excused therefrom by some act or interference on the part of defendant, the latter was not thereby bound to refrain from using the well or else incur liability for the contract price.

<p>1. —Evidence—Declarations of Agent—Cases Discussed.</p> <p>The grounds of decision in City of Austin v. Forbis, 12 Texas Court Reporter, 147 (reversed by Supreme Court, 13 Texas Ct. Rep., 818), explained.</p> <p>2. —Declarations of Corporate Agent.</p> <p>The declarations of an agent, made in reference to an act which he is authorized to perform, and at a time when he is conducting the business, stand upon the same footing as the acts themselves and are admissible against the principal.</p> <p>3. —Same.</p> <p>A statement by the foreman in charge of the electric lighting plant of a city who came to the place where an employe of a business to which the city furnished lights had been injured by an overcharged wire, for the purpose of investigating the accident and about fifteen minutes after it occurred, to the effect that the “transformer” therein was of an old style and insufficient, that the city had sent for new ones to replace them, and that some other kind of light would have to be used till the new “transformers” arrived, was admissible against the city ip an action by the injured person to show that such machinery used by defendant was defective.</p> <p>4. —Declarations—-Res Gestae.</p> <p>Declarations on one in a position to know the cause of an injury to plaintiff, made spontaneously under the immediate influence of the transaction, and characterizing or explaining it, though shortly after the occurrence, are admissible as part of the res gestae.</p> <p>5. —Municipal Corporation—Duty of Inspection.</p> <p>Whether the duty of inspection of its appliances by the proprietor of an electric plant applies to a municipal corporation engaged in such service or not, there was no error in submitting the issue as to negligence in such inspection when the evidence showed that it was in fact made the duty of the foreman to inspect.</p> <p>6. —Negligence—Electric Appliances.</p> <p>Evidence considered and held insufficient to justify submission of the issue whether an electric appliance was insufficient when originally established, the testimony showing only that it was of old style and had become defective.</p>

<p>Appeal from the County Court of Falls County. Tried below before Hon. D. H. Boyles.</p>

<p>1. —Community Property—Survivor—Judgment.</p> <p>A judgment awarding a recovery of a named sum against the surviving wife of the maker of a note sued on, though it directs execution to issue against the community estate of her and her husband, is a personal judgment against such surviving wife, authorizing execution for its amount against her property; it is not supported by allegations in the petition that the husband died intestate and that there was. no administration or necessity of administration upon his estate which had gone into the hands of the wife; to authorize such judgment the petition should show the value of the property which came to her.</p> <p>2. —Judgment—Process—Control by Court.</p> <p>The court rendering a judgment has power, at a subsequent term, to direct process to enforce' it, and, if the judgment rendered against a surviving wife on a community debt was a personal one, it could later award execution against her personally, though the original judgment only directed its issuance against the community property.</p>

<p>1. —Safe Deposit Company—Bailee for Hire—Liability for Loss.</p> <p>The evidence showed that there were only two keys to the deposit box, the plaintiff -kept one and the company the other; neither key alone could open the box, to effect this, both keys must be used; a sum of money deposited by plaintiff in the box disappeared. Held, the defendant company was a bailee for hire, and all plaintiff had to show was the deposit in the box and the disappearance of the same therefrom, in order to make a prima facie case of liability.</p> <p>2. —Immaterial Negligence of Depositor.</p> <p>Upon the receipt given plaintiff for the rental of box were endorsed the following regulations: “Patrons must give immediate notice to the company of loss of keys. . . . Patrons will register every time they enter the vault and identify themselves to the satisfaction of the company. This rule is made for their protection as well as ours. . . . All authorizations to open boxes must be in writing, duly signed and witnessed, and the person presenting them must be identified.” Plaintiff lost his key at some unknown time before discovery of loss of money. Held, not such negligence as would relieve company from liability for its own negligence.</p>

<p>1. —Face of Telegram—Notice of What Damages.</p> <p>While a telegram may show on its face that it is important, yet the telegraph company would be liable for only such damages as might reasonably be supposed to have been in the contemplation of the parties from the wording of the telegram as likely to flow from a failure to properly transmit and expeditiously deliver the same.</p> <p>2. —Statement of Counsel—As Affecting Charge of Court.</p> <p>Where counsel for plaintiff stated to the court that he did not rely upon the language upon the face of the telegram to charge the defendant with notice of the damages alleged, and the court prepared its charge to the jury accordingly, plaintiff was precluded from complaining of the charge in that respect.</p> <p>3. —Right to Recover Toll Paid.</p> <p>Unless defendant was guilty of the negligence alleged, plaintiff was not entitled to recover the toll paid.</p> <p>4. —Omission in Charge—Failure to Bequest Instructions.</p> <p>Ordinarily, if the court omits to charge upon a particular phase of a case, it is the duty of a party to request an instruction covering the omission, and his failure to do so is conclusive against him.</p> <p>5. —Qualification of Witness as to Beputation.</p> <p>Where the reputation of a witness for truth has been impeached, and it is sought to support his reputation by other witnesses, the predicate must first be laid by showing that they are acquainted with his general reputation, etc., before they can testify concerning the same.</p>

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

<p>1. —Pleading in Justice Court.</p> <p>Pleadings in a Justice Court, although in writing, need not be more certain and specific than when oral. Such pleadings are not governed by the same strictness as pleadings in the District and County Courts; and the same rule applies on appeal from the Justice to the County Court.</p> <p>2. —Injury to Horse—Improper Testimony.</p> <p>Although improper to permit plaintiff to testify that he could not sell his horse for a certain price because of the injuries inflicted by defendant’s negligence, such error was harmless, there being uneontradieted competent testimony as to the market value of the horse.</p>

<p>Appeal from the County Court of Liberty County. Tried below before Hon. T. C. Crane.</p>

<p>1. —Trial Court—Change of Ruling—Control of Case.</p> <p>A trial court has the power at any time previous to the end of the trial to correct errors theretofore committed by him in the progress of the trial, and to alter, amend or set aside the judgment rendered by him at any time before the expiration of the term at which it was rendered.</p> <p>2. —Open Account—Verbal Promise to Pay—Limitation.</p> <p>A verbal promise on' the part of the debtor to pay at a future date a past due open account, is not a sufficient consideration to support a promise on the part of the creditor not to sue until such date, and does not interrupt the running of the statute. Under the statute (art. 3370) any acknowledgment made after the debt is due must be in writing in order to extend the bar.</p>

<p>Bill of Review—Pleading—Judgment.</p> <p>In a proceeding in the nature of a bill of review the plaintiff must show not only his right to another trial, but that a hearing of his bill will probably have a different result. All parties interested in or under the former judgement must be parties to such proceedings, and the judgment rendered therein must dispose of all the issues presented in the bill of review and thus become a substitute for the judgment set aside. A judgment failing to do this is not a final judgment and an appeal therefrom will be dismissed.</p>

<p>1. —Recital in Patent—Transfer of Certificate to S., Deceased.</p> <p>The patent to the land in controversy issued in 1863 to the heirs of S. It contained a recital that the certificate, by virtue of which the land was surveyed, was transferred to S., deceased, in 1854. S. died in 1855. Held, that the recital in the patent meant that S. was deceased at the date of the patent, and not at the date of the transfer of the certificate to him, and did not affect the validity of the patent.</p> <p>2. —Tax Sale and Deed—Misdescription of Land.</p> <p>The original grantee of the land was Judson M. Meador; the correct abstract number was 151; it contained 320 acres, and it was the only survey of that name in the county. The land was assessed in 1880 as the property of “unknown owners;” in making the assessment it was described by the assessor as “abstract No. 151, certificate No. 95, 'headright survey, Joseph M. Meador, number of acres, 320.” No survey number was given. In advertising the property as delinquent it was described as “abstract No. 157; original grantee Joseph W. Meador.” In the tax deed it was described as the “Joseph W. Meador survey, abstract No. 157, certificate No. 95, in Gregg County.” Held, the misdescription of the land on the tax rolls as the Joseph M. Meador survey, and the omission of the survey number were fatal to the assessment; and the misdescription in the advertisement and the collector’s deed was not cured by the fact that it was the only Meador survey in the county.</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 Potter County. Tried below before Hon. Ira Webster.</p>

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

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

<p>—Liquor Dealer’s Bond—One Surety—Bonding Company.</p> <p>Sayles’ Eev. Stats., art. 733, passed in 1897, provides in substance, that a bond required by law, other than State and county official bonds, may be made by a surety company. In 1901 the Legislature reenacted art. 5060g, Eev. Stats., 1895, requiring bonds of liquor dealers to have “at least two good, lawful and sufficient sureties,” the provision in the original enactment as to the number of bondsmen being in no manner changed. The Act of 1901 was merely an amendatory Act of the former statute. This being the case the reenactment of the provision of the law as it existed prior to 1897 will be construed as continuous, and the said Act of 1897 will have the same effect as to bonds as though no amendment had been made. The bond was valid.</p> <p>2.—Same—Pleading.</p> <p>It was not necessary for plaintiff to allege that said bonding company was a surety company, or that it was authorized to become surety on the bond sued on. If for any reason the bond was defective the defendants should have shown such defect.</p>

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

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

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

<p>Error from the District Court of McLennan County. Tried below before Hon. Sam R. Scott.</p>

<p>1. —Charge—Assuming Facts.</p> <p>Charge on the measure of damages held to involve error in its assumption that cattle transported by rail arrived at market in a damaged condition.</p> <p>2. —Connecting Lines—Charge.</p> <p>Charge on the duty of connecting lines of railway, under contracts limiting the liability of each to its own line, criticised for requiring the defendants to use due care to transport a shipment of cattle to their destination.</p> <p>3. —Evidence—Entries in Books—Account of Cattle Sales.</p> <p>Entries made in the books of a live stock commission house by its employes, showing the receipt, number, weight and price realized on a shipment of cattle, were admissible in evidence in a suit by the shipper against the carriers, as verbal acts cotemporaneous with the principal fact, forming links in the chain of events and constituting a part of the res gestae, or as entries made at the time and in the ordinary course of business by a person whose duty it was to make them, though entered on report from others, and not by the persons who weighed or sold the cattle, and identified by witnesses unable to remember the facts. The authorities on admissibility of such testimony reviewed.</p>

<p>Appeal from District Court of El Paso. Tried below before Hon. J. M. Goggin.</p>

<p>1.—Lease of Public School Land—Title 87, Chapter 12a, Revised Civil Statutes of Texas, 1895, and the Amendment Thereto of May, 1897, Construed.</p> <p>On October 25, 1899, the Commissioner of the General Land Office executed and delivered a lease in due form to a section of school land in Brewster County for a term of ten years, beginning August 26, 1899; at the date of the lease the land had not been classified by the Commissioner, but the same was classified by him on November 30, 1901, as dry grazing land and valued at $1.50 per acre;, appellee holds by regular assignment under the original lessee. On December 23, 1904, appellant made application in regular form for the purchase of the same section of land, and complied with the requirements of the law concerning the purchase of school land. On the — day of -, 1905, the Commissioner of the General Land Office, after receiving and considering affidavits as to whether or not said land was watered or dry grazing land, rejected appellant’s application to purchase. Held, that under the law the Commissioner had the right to execute said lease before the land had been classified and appraised. It is not agricultural lands which the Commissioner is not authorized to lease for more than five years, but lands which have been classified as agricultural. The ■ Commissioner having exercised the discretion confided to him, his action is conclusive.</p>

<p>1. —Charge Must he Construed in the Light of the Evidence.</p> <p>The court charged the jury that in order for plaintiffs to recover in' this case they must show by a preponderance of the evidence that the accident, resulting in the death of deceased, was directly caused by the negligence of the defendant in the manner charged in their petition. There were three acts of negligence charged in the petition. Plaintiffs complain of the charge on the ground that it required them to prove each act of negligence charged. The evidence on the trial was confined almost exclusively to one of said acts of negligence; it was the embodiment of their whole case, and was so treated by counsel for both sides, and evidently so considered by the court and jury. No special charge was requested submitting any other alleged ground of negligence. Held, the charge is not open to the criticism made, when taken and considered as a whole.</p> <p>2. —Charge on Weight of Evidence.</p> <p>It is not error to assume in a charge an uncontroverted fact, as proven.</p>

<p>1.—Open Account—Credits—Limitation.</p> <p>Plaintiff being indebted to defendant on open account turned over to Mm several carloads of lumber with the understanding that defendant should sell the same and credit plaintiff’s account with his portion of the net proceeds, and any excess should be paid by defendant to plaintiff. The lumber was sold by defendant, and plaintiff’s portion of the proceeds applied in satisfaction of his indebtedness. In a suit by plaintiff for the excess or balance over and above the account, the defendant plead that more than two years had elapsed between the delivery of the first cars of lumber and the filing, of the suit. Held, because defendant had agreed to and had in fact applied the proceeds of the lumber to the payment of the account, the statute of limitation did not apply.</p> <p>2. —Same—Note as Item of Open Account.</p> <p>One of the items of defendant’s account against plaintiff was a note executed by plaintiff and owned by defendant. This note being among the items of the account cancelled by credits, could not prevent the accounts from being offset one against the other.</p> <p>3. —Partnership Account—Offset.</p> <p>Where a creditor has separate accounts with the individual members of a partnership and agrees to account to them separately and individually for the proceeds of a certain transaction, he can not hold a balance due one of them for a debt owing by the partnership.</p>

<p>1. —Judgment—Affirmance.</p> <p>Where no other judgment than that rendered could have been rendered by the trial court upon the undisputed facts the Appellate Court will not discuss in detail the various assignments of error relating to the rulings of the court during the trial.</p> <p>2. —Dedication—Public Park—Map.</p> <p>Where the owner of land adjoining a town caused a map of the same to be made, designating it as an addition to the town, which map delineates the lots, blocks, streets and alleys, and one undivided block designated as a “Park;” and where the owner causes such map to be placed upon the deed records of the county and sells lots designated on said map by reference to the same, such facts constitute an irrevocable dedication of the block marked “Park” to the public use.</p> <p>3. —Same—Acceptance by City.</p> <p>Under the facts of this case a formal acceptance of the dedication by the city was not necessary. The dedication was sufficiently accepted by the public where some of its individual members acted upon the offer and purchased the lots with reference to the exhibited map.</p>

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

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

<p>1. —Defective Track—Degree of Care.</p> <p>Defendant asked the court to charge the jury that if they believed from all the facts and circumstances in evidence that a man of ordinary care and prudence would have reasonably believed that the rail alleged to have been defective was reasonably safe for use in the track, etc. Held, properly refused. It was the duty of the men employed by defendant to inspect the track, to use .ordinary care to discover any defects therein, and if such inspectors failed in their duty the defendant would be liable.</p> <p>2. —Proof Necessary to Recovery—Charge.</p> <p>Special charge considered, and held to impose a greater burden on plaintiff than the law requires. '</p> <p>3. —Surgical Operation—Consequent Suffering.</p> <p>At the request of plaintiff the court gave the following charge: “If you find that a man of ordinary care would have submitted to a surgical operation, then in estimating plaintiff’s damages you will take into consideration the added physical and mental suffering, if any, he would suffer on account of such operation, and if you find that such operation would be attended with danger and with uncertainty as to whether or not a cure would be effected, then you will consider that also.” Held, proper under the facts and charges already given.</p>

<p>1. —Ancient Seed—Recitals—Evidence.</p> <p>A deed was executed by an independent executor who was himself one of the heirs of the testator; the parties to the transaction were dead; the deed was ancient; the recitals in the deed were against the interest of the party making them. Held, whether the independent executor had authority to make the deed or not the recitals in the same were competent evidence.</p> <p>2. —Independent Executor—Authority.</p> <p>What a regular executor or administrator will be required by a court of probate to do, an independent executor will be authorized voluntarily to do.</p> <p>3. —Title—Proof.</p> <p>Because one of the links in a chain of title depends upon circumstantial evidence is no reason why subsequent deeds in the chain should be excluded; such deeds are admissible, but their legal effect and sufficiency depends upon the finding by the jury as to the missing link.</p> <p>4. —Affidavit of Forgery as Evidence.</p> <p>An affidavit that one of the deeds in a chain of title is a forgery is not evidence for any purpose in a suit of trespass to try title.</p>

<p>1. —Drainage of Streets—Liability of City.</p> <p>Where the petition alleged that the city in paving its streets diverted surface water from its former and natural course, and caused it to flow and stand upon a lot upon which a brick building was being erected whereby one of the walls was destroyed, a general demurrer to such petition was properly overruled. An express allegation of negligence Was not necessary. It was the duty of the city to provide adequate outlet or escape for the water thus collected. It was not a question of ordinary care tooprovide such outlet, but the duty and obligation was absolute.</p> <p>2. —Assignment of Error and Statement Thereunder.</p> <p>An assignment of error and statement under the same should show the materiality of excluded testimony, and ma.ke the error of the court in excluding the same apparent.</p> <p>3. —Same—Refusal of Special Charge.</p> <p>An assignment of error based upon the refusal of the court to give a special charge in the form in which it was requested will not support a proposition that the requested charge was sufficient to call the court’s attention to the point and to require a correct charge. Appellant must stand or fall upon the proposition that the charge should have been given in the terms asked.</p> <p>4. —Defective Construction of Wall—Not Contributory Negligence.</p> <p>The plaintiff could not be required to anticipate the negligence of the defendant, or to presume that the defendant would fail to perform its duty, and to act accordingly in the construction of his wall.</p>

<p>1.—Written Instrument—General Denial—Evidence.</p> <p>In an action against a defendant for breach of contract to erect a building and against a surety on his written guaranty of performance of such contract by the principal defendant, a general denial put in issue the contract of guaranty and made necessary its introduction in evidence, though a copy of such contract was made a part of plaintiff’s petition as an exhibit, its execution was not denied under oath, it was referred to in the oral testimony without stating its terms, and its execution was admitted in a special plea, following the general denial, but seeking to attack it for fraud.</p> <p>2.—Same.</p> <p>Where the written instrument sued on and made a part of the petition by exhibiting a copy was not read in evidence a peremptory instruction to find for defendant was proper.</p>

<p>1. —Gaming Debt—Indorsement of Securities.</p> <p>When the law declares void the indorsement of securities in payment of a gambling debt the indorser is not precluded from asserting its invalidity because in pari delicto with the indorsee.</p> <p>2. —Same—Money Advanced to Continue Play,</p> <p>Under the statutes of Missouri (Rev. Stats. Mo., see. 3432), making void the indorsement of a bank draft in consideration of money won at gaming, where the draft was indorsed as security for money to enable the indorser to continue play, which was advanced to him in sums of $50 at a time, and these successively lost till the amount equalled that of the draft, which was then retained by the winner in settlement, the transaction constituted an indorsement for money won at gaming, and was void under the statutes,</p> <p>3. —Same—Limitation.</p> <p>The limitation imposed by the statutes of Missouri (Rev. Stats. Mo., sec. 3432), upon actions to recover back money or property won at gaming, does not apply to a defense urged against the enforcement of a bank draft indorsed to the winner in settlement of a gambling debt; such indorsement being made void by the statute, the defense can be urged whenever it is sought to be enforced by the holder, though after the time fixed for bringing suit to recover back money, etc., won.</p> <p>4. —Gaming Transaction—Winnings by Several Participants.</p> <p>It seems that the indorsement of a draft in settlement for money won at gaming may be avoided in the hands of the indorsee, though others than he participated in the game and the winnings; but the evidence here is held to support the conclusion that all was won by the indorsee.</p>

<p>1. —Railway—Negligent Construction—Peremptory Charge.</p> <p>The evidence in this case held not to warrant a peremptory instruction for defendant on the ground that no negligence in the construction of its roadbed had been proven.</p> <p>2. —Railway Construction—Negligence—Charge.</p> <p>. An instruction in an action for damages to land caused by improper and negligent construction and maintenance of roadbed in various particulars should not preclude recovery by reason of failure of proof to establish one only of the series of negligent acts complained of.</p> <p>3. —Railway Embankment—Negligence—Charge.</p> <p>A charge that the plaintiff can not complain of a negligent construction of a solid embankment which benefited rather than injured his land during its continuance was properly refused when plaintiff’s claim was of a negligent construction which caused injury only after the embankment failed to furnish such protection.</p> <p>4. —Charge—Weight of Evidence.</p> <p>A requested instruction limiting plaintiff’s "right to recover, held to be on the weight of testimony by intimating a doubt as to plaintiff’s right to recover at all, and erroneous as denying his right to recover upon a theory of the case which was supported by evidence.</p> <p>5. —Railway Embankment—Overflow—Purchaser After Construction.</p> <p>The owner of land may recover for damages thereto by overflow caused by negligent construction of a railway embankment, though he bought after the construction.</p> <p>6. —Overflow—Damages—Land—Crops.</p> <p>The same result is reached, and without error, where the jury, as directed by the charge, find separately the damage by overflow to plaintiff’s growing crops and that to the land • independently of the crops, as where the entire damage is assessed as damage to the land.</p>

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

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

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

<p>1. —Estate of Decedent—Existence of Debt—Jurisdiction of Probate Court.</p> <p>The existence of one debt, even though small, is sufficient to give the Probate Court jurisdiction of an estate.</p> <p>2. —Report of Commissioners of Partition—Approval of Court—Conclusive in Collateral Proceeding.</p> <p>Commissioners appointed to partition an estate reported that the lands could not be divided fairly in kind. It must be presumed the court considered the matter and arrived at the same conclusion, and its approval is not subject to collateral attack.</p> <p>3. —Appraised Value—Purchase by Heir for less.</p> <p>To an administrator’s sale of land for the purpose of partition and distribution, art. 2178, Sayles’ Rev. Stats., has no application. The only requirement is that such sale be confirmed by the court.</p> <p>4. —Presumption of Regularity—Guardian ad litem—Premature Judgment.</p> <p>In collateral attack, in the absence of affirmative proof to the contrary, presumption will be indulged that proper service was had on parties interested, even on a minor. The fact that no guardian ad litem appears to have been appointed does not render the proceeding void. A premature judgment is not void.</p> <p>5.—Probate Courts—General Jurisdiction Over Partition of Estates—Administrator’s Deed.</p> <p>The statute was intended to confer upon the Probate Court general jurisdiction over the subject of partition of estates, and an order of that court can not be declared void, if within the scope of such jurisdiction, simply because the procedure prescribed has not been strictly followed. It is not essential that the administrator’s deed should recite the order of confirmation in a sale for partition.</p>

<p>1,—Pleading—Specific Allegations of Details not Necessary.</p> <p>In a suit upon a contract for boring a well, where the petition fully and clearly sets up the contract for boring, alleging the depth of the well, the price to be paid per foot, the reasonable value of a liner, the performance of the work and an acceptance of the same by the owner, the petition was sufficient, and it was unnecessary for the pleader to go into details as to the size of the hole, the kind of well, etc.</p> <p>2.—Absence of Proof—Refusal to Submit Issue—Harmless Error.</p> <p>There being no evidence of the market value of the casing sued for by defendant, the court properly refused to submit that issue, and the verdict of the jury on other issues excludes the supposition that defendant was prejudiced by such refusal.</p> <p>3. —Remarks of Counsel.</p> <p>Upon the court sustaining objections to certain testimony offered by plaintiff his counsel remarked, “that’s all right, it doesn’t hurt much;” and again when counsel for defendant announced they would object to certain testimony when offered,, counsel for plaintiff said, “I have no doubt you will,” held, not cause for reversal.</p> <p>4. —Recalling Witness.</p> <p>By recalling witness of opposing party for the purpose of laying a predicate for contradicting him, does not make such witness the witness of the party recalling him.</p> <p>5. —Accrual of Interest.</p> <p>Revised Statutes, art. 3102, concerning interest on open accounts has no application to a demand for the contract price for boring a well.</p>

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

<p>1.—Building Contract Construed.</p> <p>The owner of a lot employed an architect to furnish plans and specifications and to supervise the construction of a building thereon. The owner paid the architect $400 cash and agreed to pay $500 when the building was completed. It was provided in the contract between the owner and the builder that upon all questions as to the proper interpretation of the plans and specifications the decision of the architect should be final. The builder failed to comply with his contract in material respects, and the architect failed to comply with his contract in the matter of supervising the construction of the building. The building never was, in fact, completed according to said plans and specifications, but the owner took possession of and occupied the same, with the distinct understanding and agreement that by so doing he did not waive his right to- contend that it was not constructed in accordance with the contract, and he denied any liability to the architect for the balance due him. A creditor of the architect garnished the owner of the building for the $500 and the architect was made a party. Held, that the provision in the contract between the owner and the builder to the effect that the decision of the architect should be final upon all questions as to the proper interpretation of the plans and specifications was not intended to include controversies between the owner and the architect, nor to allow the architect to conclusively determine whether or not he had complied with his own contract.</p> <p>2.—Garnishee—Attorney’s Fee.</p> <p>Even though the garnishee controvert the right of the creditor to the fund in his hands, he is entitled to his attorney’s fee when, upon final hearing, he is discharged on his answer.</p>

<p>1. —Charge on Weight of Evidence.</p> <p>The evidence was conflicting, and one of plaintiff’s witnesses was impeached. The court charged the jury as follows: “You are the sole and exclusive judges of the credibility of each of the witnesses, and of the weight to be given his testimony; and, this is true, notwithstanding testimony offered for the purpose of impeaching him, either by attacking his general reputation for truth and veracity, or by seeking to show that he has made statements elsewhere inconsistent or in conflict with his testimony before you. You should, in such case nevertheless give to his testimony and to the testimony of each of the other witnesses, such credit and weight, as in the light of all the evidence in the case, you may believe it is entitled to.” Held, error, as upon the weight of evidence.</p> <p>2. —Agent—Principal—Liability.</p> <p>A principal is liable for the acts of his agent done in the line of his duty and in furtherance of the business of the principal.</p>

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

<p>1. —Amended Motion for New Trial.</p> <p>It is within the discretion of the trial court to allow a motion for new trial to be amended after the expiration of the two days after trial. The practice, however, of filing a mere skeleton of the motion within the two days and a full motion afterwards should be discouraged.</p> <p>2. —Pleadings—Issue—Charge of Court.</p> <p>The real issue was as to whether projecting spikes and a sliver, or an unblocked frog, was the immediate cause of the employe’s death, his remaining between the cars while trying to uncouple them being, in either case, only remotely the cause of his death. The plaintiffs alleged that the former was the immediate cause of his death. The court charged the jury, in substance, that if, through the negligence of defendant, the defective coupling caused the employe’s death they should find for plaintiffs. Held, error.</p> <p>3. —Same.</p> <p>It was proper for the court to submit to the jury the issue of fact as to the condition of the coupling appliance, for without this, there would be no explanation of the employe remaining between the moving cars.</p> <p>4. —Invited Error.</p> <p>The rule of invited error is one of estoppel. Where the court, upon the trial, is requested to affirm a proposition of law in the charge and it is so affirmed, the rule applies.</p> <p>5. —Death of Father—Measure of Damages.</p> <p>Minor children are entitled to recover whatever pecuniary benefits they may have been deprived of by the death of their father, including the reasonable value of such nurture, care and education as they would have received had he lived, but neither sorrow for his death nor loss of his society are elements of damage.</p>

<p>1. —Bankruptcy—Elea in Abatement.</p> <p>Where the record fails to show that an alleged proceeding in bankruptcy was pending at the time the cause was tried, a plea in abatement setting up bankruptcy proceedings was properly overruled.</p> <p>2. —Referee in Bankruptcy—Dismissal of Petition—Authority.</p> <p>A referee in bankruptcy has authority, subject to review by the district judge, to dismiss a voluntary petition in bankruptcy filed with him, when such dismissal is on the merits; and in such case it is not necessary that the creditors be notified before the order is entered.</p> <p>3. —Apportionment of Damages—Charge.</p> <p>Where the suit was for damages to a shipment of cattle over two different roads and the claim for damages to the cattle on one of the roads had been settled, a charge in effect to measure the damages by the difference between the market value of the cattle at the point of destination at the time and in the condition of their arrival, and at the time and in the condition they should have arrived had they not been delayed on the other road, was correct.</p>

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

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

<p>Appeal from the District Court of Grimes County. Tried below before Hon. T. C. Buffington, Special Judge.</p>

<p>1. —Disqualification of Judge.</p> <p>It is ground for reversal of a judgment that the judge was disqualified by relationship to one of the parties, though the point was first raised on motion for new trial.</p> <p>2. —Same—Kindred Within Third Degree.</p> <p>Persons who had the same great-grandmother are related within the- third degree.</p> <p>3. —Same—Party—Community Property.</p> <p>In a suit by the husband for damages which on recovery would be community property, the wife is a party within the meaning of the statute disqualifying a judge related to the litigants within the third degree from trying the case.</p>

<p>Appeal from the District Court of Milam County. Tried helow before Hon. J. C. Scott.</p>

<p>1. —Attack on Judgment—Limitation of Four Years.</p> <p>Exception to a cross-bill, attacking a judgment on the ground that there was fraud in its procurement, was properly sustained where it appeared from the allegations of the cross-bill that more than four years had elapsed since the rendition of the judgment; and no excuse was given for not discovering the alleged fraud sooner.</p> <p>2. —Attack on Judgment—Requisites.</p> <p>It is requisite in an attack upon a judgment rendered voidable by fraud in its procurement, that the suit should be brought in the court in which the judgment was rendered, and all the parties to the fraud must be made parties to the suit.</p> <p>3. —Failure of Judgment to Dispose of all Parties.</p> <p>In a collateral attack it will be presumed, in .aid of the judgment, that ■ some disposition was made of the party not mentioned in the judgment, prior to its rendition.</p> <p>4. —Void and Voidable Judgments—Distinction.</p> <p>There is a distinction between a judgment which, though really void, carries in its records the evidence of validity, and one which bears on its record the proofs of its own invalidity. The one is held subject only to direct attack, the other may be attacked under any and all circumstances wherever it presents itself. The first is void, the latter is voidable. The recitation in a judgment of jurisdictional facts, if not contradicted by the record, will be presumed to be true, and they can not be denied or questioned in any collateral proceeding.</p> <p>5. —Same.</p> <p>Where the recitals in the judgment are such as to demonstrate the impossibility of there having been jurisdiction of the person or subject matter, the judgment is void and subject to collateral attack.</p> <p>6. —Suit Against Unknown Person.</p> <p>In May, 1897, there was no law in effect by which an unknown person could be cited, unless he was the heir of some known ancestor, whose name was required to be set out in the citation by publication; the only other persons allowed to be cited, except by personal service, were nonresidents of the State, absentees from the State, transients or persons whose residences were unknown. In August, 1897, provision was first made for citing an unknown person in any case.</p> <p>7. —Record or Judgment Roll—What is Meant by.</p> <p>By the record or judgment roll, referred to as being proper to consider in determining the validity of a judgment, is meant at least the process filed in the suit, the judgment itself, and the pleadings of the parties.</p> <p>8.—Limitation—Sufficient Occupancy of Land.</p> <p>If one go into possession of land and cultivates and uses it, claiming it as his own, the possession would be adverse, although the land was not fenced; so, if a man claimed land within certain limits, and herded his stock thereon, and used the timber, and performed other acts of ownership, he might perfect title by limitation without the aid of an enclosure.</p>

<p>Appeal from the County Court of Guadalupe. Tried below before Hon. H. M. Wurzbach.</p>

<p>1.—Executory Sale—Right to Countermand.</p> <p>A party to an executory contract always has the right, subject to claim for damages, to stop performance of same for any reason deemed to his interest.</p> <p>2.—Usages of Trade—Not Binding, When.</p> <p>Usages of trade that are presumed to enter into a contract must not be opposed to well-settled principles of law, nor unreasonable.</p>

<p>1. —Warranty—Breach—Impeaching Testimony.</p> <p>A witness for defendant having testified that he had previously owned the engine in controversy and had refused to keep or pay for the same because it was worthless it was competent for plaintiff to prove that said witness refused to'keep or pay for said engine, not because it was worthless, but because he was insolvent and unable to pay for the same.</p> <p>2. —Same.</p> <p>Defendant’s witness having testified that the engine in controversy did not pump sufficient water to irrigate the crop, it was competent for plaintiff to prove that the well, from which the engine was used to pump water for irrigating, did not. furnish water enough for that purpose.</p>

<p>Shipment of Cattle—Charge—Error.</p> <p>In a suit for damages to a shipment of cattle the defendant railroads plead and introduced evidence tending to prove that the injuries to the cattle were the proximate result of their poor condition and improper loading by plaintiff. The court charged the jury as follows: “If you find for the plaintiff any damages, you will assess such damages for the cattle lost and dying, if any, at the market value, if any, of the same at Mounds, Indian Territory, at the time and in the condition said cattle should have arrived there, had they not been roughly handled and delayed, if they were roughly handled and delayed, to which you will add the difference between the market value of the surviving cattle at Mounds, at the time and in the condition they arrived there, and their market value at said place at the time and in the condition they should have arrived there had they not been injured by the negligence of the defendants.” Held, error, because upon the weight of evidence, and in effect assuming that rough handling constituted negligence.</p>

<p>Appeal from the District Court of Jefferson County. Tried below before Hon. G. P. Dougherty, Special Judge.</p>

<p>1. —Foreclosure of Judgment Lien—Parties.</p> <p>In a suit to foreclose a judgment lien against the debtor and his vendee, the debtor having conveyed all his interest in the land to another was not a necessary party to the suit.</p> <p>2. —Payment of Mortgage Debt—No Subrogation.</p> <p>Where the purchaser of mortgaged property assumes, as a part of the purchase money, to pay off the mortgage lien against the property, such payment extinguishes the lien and there is no subrogation. Such payment is a payment of the purchaser’s own debt and extinguishes the lien for all purposes.</p>

<p>Appeal from the District Court of Titus County. Tried below before Hon. R. T. Wilkinson, Special Judge.</p>

<p>Homestead Donation—Act of 1900 Construed.</p> <p>Under the Act of 1900, called session, page 29, a party seeking to acquire a homestead donation out of the public domain, forfeits all right to such donation by failure to file proof of occupancy and apply for patent and pay the patent fees before the 1st day of January, 1902.</p>

<p>Appeal from the District Court of Grayson County. Tried below before Hon. B. L. Jones.</p>

<p>1. —Objection to Testimony—Trial Court.</p> <p>Objections to testimony not made in the trial court can not be urged on appeal.</p> <p>2. —Expert Testimony—Discretion of Court.</p> <p>Whether a witness has qualified himself to testify as an expert, or to express an opinion upon a subject undergoing investigation, is a question for the determination • of the trial court, and its action will not be reviewed by an Appellate Court unless a gross abuse of discretion is made to appear.</p> <p>3. —Statement of Fact—Not Opinion.</p> <p>A witness testified that he examined the contents of a car upon arrival at destination and discovered that the goods had not been properly and securely packed; that from the general appearance of the goods it was his judgment that the damaged condition of the shipment was due to careless and improper packing in the car; that from the evident condition of the packing of said car it must necessarily have resulted in injury to the goods in the usual and customary carriage of a freight car; and that the injury was caused by the goods being insecurely packed. Held, a statement of fact, and not merely an opinion of the witness.</p>

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

<p>1. —Tax Suit—Foreclosure—Deed—Limitation.</p> <p>On the theory that a life tenant of an undivided interest in certain lots was the sole owner of the property suit was brought by the city of Houston against her alone for taxes due on said lots and for foreclosure of tax lien. The lien was foreclosed. as against her upon the entire premises, and the deed on its face purported to pass title to the entire property. Held, the deed was sufficient to support the plea of limitation of five years.</p> <p>2. —Limitation of Five Years—Possession.</p> <p>To support the five years’ statute of limitation the possession must be fair and open and continuous; the mere fencing of land or erecting other improvements thereon will not constitute such possession if unaccompanied by actual occupancy or open use.</p> <p>ON MOTION FOB REHEARING.</p> <p>3. —Tenants in Common—Mutual Obligations.</p> <p>It is generally true that a tenant in common can not purchase an outstanding title or encumbrance and refuse to permit his cotenant to share in the benefit by bearing his share of the burden. But the rule has important modifications. In this State it is the rule that the mutual obligation between cotenants to protect the common title and share the burden arises only where the parties have acquired the property by the same instrument or act of the parties or of the law, or where there in fact exists between the cotenants a relation of mutual trust and confidence.</p>

<p>4. —Additional Findings of Fact.</p> <p>Appeal from the District Court of Grimes County. Tried below before Hon. Gordon Boone.</p>

<p>1. —Discovered Peril—Boy on Engine.</p> <p>Evidence that plaintiff, a boy of sixteen, got on the rear of the tender of an engine engaged in switching, and being discovered there was ordered by the engineer to get off while it was in motion, and in trying to do so fell and was run over, held to support a submission of the issue of negligence after discovery of plaintiff’s peril and a recovery on that ground.</p> <p>2. —Same—Contributory Negligence.</p> <p>Prior contributory negligence of plaintiff in , getting into a dangerous position on an engine, as a trespasser, is no defense to an action for injuries received by subsequent negligence of the engineer in ordering him to get off while the engine was moving; but defendant can not complain of the submission of contributory negligence on the ground that such issue was not involved.</p> <p>3. —Impeachment of Witness—Conviction of Crime.</p> <p>The. fact that a witness has been convicted of a felony and confined in the penitentiary may be shown in impeachment of his credibility, though his right to testify has been restored by pardon.</p> <p>4. —Evidence—Statements to Counsel.</p> <p>An account of circumstances attending his injury, given by plaintiff to a lawyer not yet employed by him, but with a view to the lawyer determining whether plaintiff had a case which he would undertake, is a privileged communication which is protected from disclosure; and this is true, though plaintiff denied that he made any statement to such lawyer.</p> <p>5. —Misconduct of Jury.</p> <p>Where counsel for defendant was informed, during the trial, of facts alleged to constitute misconduct by the jury, and took no action thereon till after verdict was returned, he can not obtain a new trial on that ground.</p> <p>6.—Jurisdiction—Action Originating in Another State.</p> <p>A railway company can be sued in Texas though the cause of action for personal injury originated and the plaintiff resides beyond the State.</p>

<p>1. —Contested Election—Youthful Appearance of Voter—Hot Evidence.</p> <p>A judge trying a contested election, without a jury, excluded a vote because of the youthful appearance of the voter, and this, although the voter had testified that he was twenty-one years of age and there was no evidence to the contrary. Held, error. The findings of a court should rest upon the testimony offered alone, and not upon information gained by some other method, whether by observation or otherwise.</p> <p>2. —Illegal Votes—Allegata et Probata.</p> <p>Only the ground alleged, as making the vote illegal, can be the basis of a verdict or judgment, whatever other fact might develope on the trial.</p> <p>3. —Payment of Poll Tax—Loss of Hand or Eoot.</p> <p>The law exempts those from the payment of poll tax who have lost a hand or foot. It can not be said that loss of a portion of the hand or foot would bring the person within the exemption.</p> <p>4. —Changing Official Ballot—Section 63, Election Law of 1903, Construed.</p> <p>A ballot prepared by tearing off the National ticket of one political party and attaching it to the State ticket of another political party is illegal.</p>

<p>Appeal from the County Court of Orange. Tried before Hon. W. J. Wingate.</p>

<p>1.—Moving Handcar—Personal Injuries—Assumed Risk—Charge.</p> <p>In a suit for personal injuries received while moving a handcar from the tool house to the track, the plaintiff’s theory was negligence of his coemployes in shoving the car with more force than usual, causing it to run upon and injure him, while the theory of defendant was that the car was being moved in the usual manner, with which plaintiff was' familiar, and that he assumed the risk. The evidence-was conflicting. The court charged the jury, in effect, that if said employes, who were shoving said car, gave an unusual, quick and sudden push and shoved it on plaintiff, and such manner of moving the car was not usual or necessary, etc., to find for plaintiff; and refused a special charge requested by defendant to the effect that if the car was moved in the usual and customary manner which was known to plaintiff, that he could not recover. Held, error to refuse such special charge; the defendant was entitled to have the law affirmatively applied to its defense as made by the evidence.</p> <p>2.—Res Gestae—Hearsay.</p> <p>A remark of the foreman of the section gang, who did not see the accident, made just afterwards, as follows: “You all must be careful how you put the car on, or you are going to kill some man,” was not admissible as res gestae.</p>

<p>1.—Trespass to Try Title—Burden oí Proof.</p> <p>Where the plaintiff in trespass to try title claims under a deed conveying a large tract, but expressly excepting from the conveyance such smaller tracts as may have been previously conveyed, the burden of proof is on such plaintiff to prove that the tract sued for is not one of nor included in any of the tracts previosuly conveyed and a failure to make such proof will defeat a recovery.</p> <p>2. —Same—Common Source.</p> <p>_ The plaintiff claimed under a deed from the heirs of Z. The defendants claimed under a judgment for delinquent taxes with foreclosure of tax lien against Z., and his unknown heirs, and the unknown owners of the land. Held, that the plaintiff and defendants did not necessarily claim under a common source.</p> <p>3. —Tax Suit—Proceeding in Bern.</p> <p>The proceeding in a tax suit is one m rem. All persons owning or claiming any interest in the property are required to be made parties to the suit and to be served with citation, and when this is done, a judgment establishing and foreclosing the State’s lien upon the property is conclusive against all persons who are parties to the suit and have been served with citation whether they are named in the judgment or not.</p>

<p>1. —Failure to Furnish Cars—Articles 4497 and 4499, Revised Statutes, Construed.</p> <p>Although in cases based solely upon negligence in furnishing cars to shippers, an extraordinary rush of business and a scarcity of cars are circumstances which may properly be submitted to the jury in determining the issue of negligence, such is not the ease in actions based upon articles 4497 and 4499, of the Revised Statutes of 1895, to recover the penalty therein prescribed. In such actions such circumstances are immaterial.</p> <p>2. —Authority of Local Agent.</p> <p>The station agent of a railroad company has authority to receive an application for cars under the provisions of articles 4497 and 4499, of the Revised Statutes.</p> <p>ON BEHEABING.</p> <p>3.—Articles 4497 and 4499, Revised Statutes, Void.</p> <p>(The provisions of articles 4497 and 4499, of the Revised Statutes of 1895, are'void both as to interstate and intrastate shipments because they transcend the legitimate powers of the Legislature. Houston & T. C. Ry. Co. v. Mayes, 26 U. S. Sup. Ct. Rep., 491 (50 L. Ed., 772), followed.)</p>

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

<p>1.—Attachment—Actual Damages—Replevy—Mitigation—Pleading.</p> <p>The wrongful seizure of property by attachment constitutes a conversion, and the owner is entitled by reason thereof to recover as actual damage the value of the property seized with legal interest from the date of conversion. The subsequent replevy of the property by the owner might be shown only in mitigation of the damage; a general allegation of damage because of the wrongful levy and conversion is a sufficient pleading to authorize a recovery.</p> <p>2.—Note—Attorney’s Fee—Penalty or Liquidated Demand.</p> <p>The authorities seem to hold that the stipulation in a promissory note for the payment of attorney’s fee is a penalty and not a liquidated demand, and that the holder of the note cannot collect the fee unless he has in fact' paid it or agreed to pay it.</p>

<p>. Appeal from the County Court of Hardeman County. Tried below before Hon. J. Shirly Cook, special judge.</p>

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

<p>1.—Contract of Husband to Convey Homestead—Befusal of Wife—Liability— Case Distinguished.</p> <p>A contract by the husband for the sale of the homestead is valid, and when such contract is breached by reason of the refusal of the wife to join in the conveyance the husband is liable in damages. Specific performance can not be enforced. Berlin v. Burns, 17 Texas, 532, distinguished.</p>

<p>Appeal from the District Court of Haskell County. Tried below before Hon. H. R. Jones.</p>

<p>Dangerous Premises—Owner—Liability.</p> <p>The plaintiff while traveling a public road was unable to follow the same because hidden by snow, and, wandering from the road, drove into an old well on defendant’s premises distant from three hundred yards to a half mile from said public road, and lost his horses and harness therein. Held, that the defendant was not guilty of negligence, and therefore not liable.</p>

<p>1. —Breach of Contract—Motive—Proof.</p> <p>The plaintiff having specifically plead that he was discharged for the sole purpose of reinstating the old employes of defendant, and not for good cause, and prayed for exemplary damages, had the right to introduce evidence of the motive of appellant in discharging him.</p> <p>2. —Contract of Employment—Breach—Damages.</p> <p>Where a contract for employment has been breached by the employer, suit may he brought by the employe immediately, or after the expiration of the contract term. If brought before the expiration of the contract term, only such damages as have accrued up to the time of trial can be recovered. It is the employe’s duty to use reasonable diligence to obtain other employment, and lessen the loss. The burden is on the employer to plead and prove the amount that the employe could have earned by the exercise of ordinary diligence.</p> <p>3. —Charge on Weight of Evidence—When not Error.</p> <p>Where a charge submits matters which are undisputed, it is not subject to the objection that it is on the weight of evidence.</p>

<p>1. —Vendor’s Superior Title—Rescission.</p> <p>A vendor of land expressly reserved in the deed a lien to secure the notelS given for the purchase money. These notes were assigned by him after maturity. The assignee filed suit upon the notes against the widow and children of the original vendee, and certain parties who claimed to have bought at execution sale the equity or title of the vendor in and to the land, all of whom were in possession. The defendants plead limitation against the notes. The assignee of the notes secured from the vendor a conveyance of all his title and interest in the land, and changed his suit to trespass to try title. Held, plaintiff was entitled to recover the land.</p> <p>2. —Interest of Vendor—Execution Sale.</p> <p>The interest of a vendor in land which has been sold by him on credit and a lien retained to secure the purchase money, is not such interest as is subject to levy and sale under execution, until there has been a rescission of the sale.</p> <p>3. —Fraudulent Sale—Homestead.</p> <p>Creditors have no interest in homestead property, and it can not be the subject of a fraudulent sale.</p> <p>4. —Same—Illegitimate Children.</p> <p>A man and woman living in adultery can have no homestead exemption; but the father of illegitimate children, living with him, may assert homestead rights.</p>

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

<p>1. —Benevolent Association—Failure to Pay Assessment—Forfeiture.</p> <p>The certificate of membership or policy issued by appellee was conditioned on compliance by the assured with the laws, rules and regulations governing the local lodge or assembly of which he was a member, and was payable upon proof of death, provided the member was in good standing. The laws and rules stipulated that a failure to pay an assessment should work a forfeiture of all benefits. It appearing that at the time of the member’s death he stood suspended for failure to pay an assessment within the time required, the appellee was discharged from liability.</p> <p>2. —Hearsay Testimony—Harmless Error.</p> <p>Hearsay testimony becomes harmless where the same facts are brought out, on cross-examination of another witness, by the party complaining. Any form of secondary evidence, if admitted, may be considered.</p> <p>3. —Presumptions.</p> <p>Presumptions are not indulged against testimony.</p> <p>4. —Estoppel.</p> <p>Facts considered and held not to constitute estoppel, or waiver.</p>

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

<p>1.—Pleading—Fellow Servant—Loading Cattle.</p> <p>Petition and exception thereto considered, and held that the conclusion does not necessarily arise from the allegations in the petition that plaintiff and defendant’s servant were in the same grade of employment at the time the alleged negligent act occurred. Plaintiff, while cleric and warehouseman of appellant at one of its stations and in pursuance of his duties as such, was engaged in preparing the chute and car door for the purpose of unloading cattle, when one of the trainmen proceeded to place the running board, which connected the stock pens with the car door, and while so engaged, negligently dropped the running hoard, thereby injuring plaintiff. Held, that under the allegations of the petition, plaintiff was not engaged in operating defendant’s cars.</p> <p>2.—Master not Responsible for Negligence of Servant in Services Beyond Scope of Employment.</p> <p>The evidence tended to show that the duty of preparing the car and chute devolved upon plaintiff alone, and that he himself engaged the trainman to assist him; if this was the fact, then defendant would not be liable for the negligence of the trainman in performing said services, whether plaintiff was guilty of contributory negligence or not. Failure to so charge was error.</p>

<p>1.—Improper Argument—New Trial.</p> <p>In a personal injury suit against a railroad company, counsel for plaintiff in his closing speech to the jury, without anything in the record to justify such language, denounced the defendant as an octopus, and it and its witnesses as frauds and fakes, and charged a sworn officer of the law with acting as the agent of the defendant, and expressed the belief that one of defendant's witnesses was an ungodly liar. Because the evidence was conflicting, and because it is probable that such inflammatory and vituperative language was prejudicial to defendant, a new trial should have been granted.</p> <p>2.—Same—Absence of Exception to Argument.</p> <p>Counsel will not be required to except at the time to an improper argument by opposing counsel, nor to request a charge instructing the jury to disregard the same, when the presiding judge had repeatedly stated to the attorneys that he would not sustain an objection to improper arguments to juries in his court, nor instruct the jury to disregard them, and an assignment of error predicated upon such argument will be considered on appeal.</p> <p>3.—Case Approved.</p> <p>Houston & T. C. Ry. Co. v. Rehm, 11 Texas Ct. Rep., 41, approved, but held not applicable to this case.</p>

<p>Appeal from the County Court of Hardeman County. Tried below before Hon. J. C. Marshall.</p>

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

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

<p>1. —Judgment—Jurisdiction—Collateral Attack.</p> <p>In a judgment of a District Court of this State partitioning land between joint owners, the defendant was a minor and a nonresident of the State. In a subsequent suit of trespass to try title to the land so partitioned, the said defendant offered to testify that she had never been cited in said partition suit. Held, properly excluded. A judgment rendered by a court of competent jurisdiction in a cause involving property rights is not subject to collateral attack dehors the record.</p> <p>2. —Judgment—Subsequent Agreement—Modification.</p> <p>Subsequent purchasers of the property involved without notice can not be affected by an agreement between the parties to a judgment modifying or changing the terms of the judgment.</p> <p>3. —Trespass to Try Title—Abstract of Title.</p> <p>Article 5262, Revised Civil Statutes, construed. A sale designated in the abstract of title, provided "for in said article, as a “parol sale,” can not be shown by a deed and purchase money notes recited therein, the deed not having been included in the abstract.</p> <p>4. —Vendor—Subsequent Agreement.</p> <p>A vendor, having parted with his interest in land, can not, by an agreement concerning the boundaries or area of the same, affect the rights of his previous vendees.</p> <p>5. —Estates—Purchase by Administrator.</p> <p>The decedent having parted with his interest in the land before his death, there was nothing wrong in his administrator purchasing said land from the decedent’s vendee. The holder of the legal title to land can maintain suit to recover the same.</p>

<p>1. —Commission to Take Deposition—Officer.</p> <p>The commission to take depositions being directed to any notary public of C. Parish, the taking of the deposition by a notary public of N. Parish was not a taking by the officer to whom the commission was directed, and the deposition was properly quashed.</p> <p>2. —Suit on Policy—Parties—Creditor.</p> <p>Where a policy of fire insurance stipulated on its face the person to whom the loss is payable, such person may sue alone and recover the entire loss. Neither the assured or his legal representatives are necessary parties to the suit. A creditor, holding the policy as collateral security, may sue alone.</p> <p>3. —Rights of Beneficiary in Policy—Acts of Assured.</p> <p>A clause in a policy of fire insurance making the loss under it payable to a person therein named, gives such person an interest in the policy of which he can not be deprived without his consent. Where the insurance company paid into court a certain amount of money, which it claimed was the extent of its liability, and the assured, without the knowledge or consent of the party to whom the loss was payable, demanded and received said deposit and attempted to release the company from further liability, the rights of the beneficiary in the policy were not prejudiced thereby.</p> <p>4. —Proof of Loss—Value of Property—Adjustment—Charge.</p> <p>Where plaintiffs alleged an adjustment of the loss under a policy of fire insurance, and ask for judgment for the amount due as fixed by said adjustment, the “proof of loss” constituted part of the adjustment, and the' adjustment* was evidence of the value of the goods destroyed, and prima facie proof of the amount due; therefore a requested charge to the effect that the jury should not consider the “proof of loss” as evidence of value would have been misleading, and was properly refused.</p> <p>5. —Insurance Policy—Assignment—Evidence.</p> <p>A fire insurance policy may be orally assigned after loss thereunder; hence evidence that the insured, after the fire, recognized the right of an assignee to the proceeds was competent.</p> <p>6. —Suppressed Deposition—Not Evidence as Admissions—Declaration of Assignor.</p> <p>Depositions which have been suppressed because taken by an unauthorized officer can not be introduced in evidence to prove an admission of the witness against his interest without independent proof that the witness made the statements contained in the deposition. The certificate of the officer is not evidence of this fact. Declarations of an assignor after sale are not admissible against his assignee.</p> <p>7. —Suit Upon Adjustment of Loss—Evidence.</p> <p>A suit to recover upon an adjustment of a loss under a policy of fire insurance is based upon a new and independent contract, and not upon the policy; and the insurer can defeat such action only by shqwing fraud or mistake in the adjustment unknown to the insurer at the time of adjustment, and which could not have been discovered by the use of reasonable diligence.</p> <p>8. —Charge—Not on Weight of Evidence.</p> <p>A charge which instructed the-jury to find for plaintiff unless they found for defendant on one or more of the issues submitted, is not upon the weight of the evidence where by the face of the policy the loss is payable to the plaintiffs, and the evidence showed an adjustment of the loss by defendant’s agent.</p> <p>9. —Nonwaiver Clause.</p> <p>A nonwaiver clause in a policy of insurance will not be extended beyond its plain terms, and has no application after an adjustment of the loss.</p> <p>10. —Adjustment of Loss—Knowledge of Facts.</p> <p>That the company had no knowledge of facts which might, if known, have defeated the claim, is of no avail, if the insurer might have known them upon inquiry at the time of adjustment, and was not fraudulently prevented by the insured.</p> <p>11. —Instructions to Agent—Knowledge of Insured.</p> <p>A failure of an agent to obey instructions of his company will not defeat a recovery on the policy where such disobedience is not known to the insured.</p> <p>12. —Contract of Insurance—Loss Payable Clause.</p> <p>A policy of insurance remains a contract between the insurance company and the person originally insured, notwithstanding the subsequent insertion of a clause making the loss, if any, payable to another person.</p> <p>13. —Dual Agency.</p> <p>Facts considered, and held not sufficient to show that the person acting as agent of the company at the time the policy of insurance was issued, was also agent for the insured.</p> <p>14. —Fraud—Repudiation of Contract.</p> <p>Facts considered, and held to show that the insurance company did not promptly repudiate the contract of insurance made by its agent upon discovery of the fraud, if there was any fraud.</p>

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

<p>Appeal from the District Court of Rusk County. Tried below before , Hon. Richard B. Levy.</p>

<p>Negligence—Contributory Negligence—Frightening Horse.</p> <p>Plaintiff, riding one of his work horses and leading another, was going to his work over a private crossing on the railway running through his farm. The section men putting a handcar on the track at the crossing and the fall of some tools from the car scared his horse, which threw and injured him. The pleadings are held sufficient in their allegations of negligence; the charge, given in full in opinion, to be a fair submission of the issues of negligence and contributory negligence, and the evidence sufficient to warrant a recovery.</p>

<p>1. —Insolvent Creditor—Fraudulent Transfer.</p> <p>Where an insolvent tenant, by consent of his landlord, who owned as rent one-fourth of the crop of cotton, transferred to a creditor the entire crop, receiving one-fourth in cash, which he paid over to the landlord as his rental, the balance going to discharge his debt to the purchaser, which was equal in amount thereto, the transaction could not be held fraudulent as to other creditors of the tenant by reason of the payment to him in cash of the excess over the debt discharged.</p> <p>2. —Execution—Levy—Exemplary Damages.</p> <p>Evidence considered and held to support a recovery of exemplary damages for seizure and sale of plaintiffs’ property under execution against another, where defendant had notice of plaintiffs’ claim and opportunity to inform themselves of the facts showing it to be valid.</p> <p>3. —Damages—Value—Evidence.</p> <p>Evidence as to value, at time of seizure, of cotton sold under execution, considered and held sufficient to support recovery, though addressed to its value before and after that date, where there was nothing to indicate a different value at time of levy.</p> <p>4. —Charge—Assuming Pacts.</p> <p>A requested instruction which assumes as facts matters in controversy under the evidence should be refused.</p> <p>5. —Landlord’s Lien—Sale by Consent.</p> <p>Though the landlord’s contract is not for one-fourth of the crop as rent, but for one-fourth of its value in money, his lien therefor, a® against an execution creditor of the tenant levying on it, is not lost by its sale by the tenant, by his consent, and payment of his share of the proceeds to him, such sale constituting a waiver of his lien only as to the purchaser.</p> <p>6. —Fraudulent Conveyance—Purchase by Creditor.</p> <p>Where a creditor purchases from a debtor he knows to be insolvent only property reasonably sufficient in value to satisfy his debt, the transaction is not rendered fraudulent by his knowledge of an intent of the seller to hinder and delay other creditors thereby.</p>

<p>1. —Negligence—Peremptory Charge—Killing Stock.</p> <p>Evidence tending to show fast running and failure to keep proper lookout and to discover stock on the track at a point where they might be, held sufficient to require the question of defendant’s negligence in killing horses to be submitted to the jury.</p> <p>2. —Evidence—Negligence—Cross-Examination.</p> <p>An engineer who had testified that he did not strike the animals for the killing of which suit was brought, could be cross-examined as to whether he did not sometimes run over crossings before knowing that he was approaching them.</p> <p>3. —Negligence—Fast Running—Custom.</p> <p>A train dispatcher who had testified that a certain train was late, its fast running being an issue, could be questioned as to the custom in such cases as to making up lost time.</p> <p>4.—Evidence—Negligence—Fencing—Subsequent ■ Changes.</p> <p>It was not competent to prove, on the question of negligence in killing stock by a railway, that the defendant company had fenced its track at the point in question after the accident.</p>

<p>Service by Publication—Setting Aside Judgment—Limitation as Defense.</p> <p>The refusal to set aside, in an action brought within two years from its rendition, a judgment recovered on citation by publication (Rev. Stats., art. 1375) where the only defense shown was that the note sued on was barred by limitation was not -reversible error.</p>

<p>Appeal from the District Court of Matagorda. Tried below before Hon. J. V. Meek.</p>

<p>1. —Boundary—Conflicting Testimony.</p> <p>Where the evidence as to the true location of a boundary line is conflicting, the judgment of the trial court will not be disturbed, even though the Appellate Court, upon consideration of the evidence, might reach a different conclusion.</p> <p>2. —Surveyor—Compensation.</p> <p>Article 5264, Revised Statutes, makes no provision for compensation for services rendered by a surveyor appointed by order of the court to survey the premises in controversy. The fact that his report and map are rejected on motion of one of the parties to the suit is no reason for depriving him of compensation. The amount of compensation rests in the sound discretion of the court.</p>

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

<p>1. —Garnishment—Tort.</p> <p>* In a suit for the value of two horses alleged to have been driven to death by the defendant the plaintiff sued out a writ of garnishment and had it served upon a deputy sheriff with whom defendant had deposited money in lieu of an appearance bond in a criminal case. Held, the suit was for unliquidated damages, and the writ should have been quashed.</p> <p>2. —Same—Assignment—Hotioe.</p> <p>Before the service of the writ of garnishment the money in the hands of the sheriff had been assigned to third parties by the defendant, and the garnishee had notice of the fact. The money, therefore, was not subject to garnishment for the debt of the defendant.</p>

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

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

<p>1. —Due Order of Pleading.</p> <p>Defendant, in an amended answer, specially excepted to plaintiff’s petition on the ground that it appeared upon the face of said petition that there was a misjoinder of parties defendant and causes of action. The exception was overruled by the trial court. The contents of the original answer do not appear in the record. Due order of pleading requires that exceptions in the nature of pleas in abatement must be filed prior to an answer to the merits. The presumption must be indulged on appeal, in support of the judgment, that the exception was not made in the original answer.</p> <p>2. —Common Carriers—Codefendants.</p> <p>If appellant operated any part of its railroad in this State it was properly sued with the initial carrier. But, if the joinder was error at the time, since the trial in the court below the Act of the Twenty-ninth Legislature, approved March 13, 1905, which would make the joinder proper, has become effective, and the judgment should therefore not be reversed.</p> <p>3. —Carrier—Liability—Pleading.</p> <p>Plaintiff’s petition alleged that defendant was a common carrier of freight, fully set out the facts constituting his cause of action, and charged a breach of duty imposed upon defendant by law. This was sufficient without an express declaration upon any bill of lading or contract which may have been made.'</p> <p>4. —Issue—Evidence—Charge.</p> <p>The court should not submit an issue where there is no evidence to support a finding.</p> <p>5. —Requested Instruction—Modification by Court.</p> <p>It is not error for the court to modify a requested charge when the charge™ is so modified that the precise charge requested and the precise modification made by the court distinctly appear; or where the charge asked consists of several separate subdivisions defining as many distinct conditions of fact to be found by the jury, and one of such subdivisions is not the law, such subdivision may be eliminated and the remaining portion of the charge given.</p> <p>6. —Contributory Negligence—Burden of Proof.</p> <p>It is not error to refuse a special charge which in effect imposes on plaintiff the burden of disproving contributory- negligence.</p>

<p>Divorce—Proceeding In Rem—Constructive Service—Jurisdiction.</p> <p>A decree of divorce is a proceeding in rem; it has extra-territorial force, and is conclusive on the parties to the cause, although one of them was a nonresident of the State in which the divorce was granted. Where the steps are taken which the statutes of a State prescribe as necessary to confer upon the court granting the divorce power to render the decree, jurisdiction attaches, and the decree is binding on the defendant in the case, although she was at the time a nonresident of the State, and no personal service was had upon her, and she did not enter an appearance.</p>

<p>1. —Bankruptcy—Assignment of Claim—Evidence.</p> <p>For the purpose of showing title to an account against a bankrupt, the defendant introduced in evidence a letter from C., signed as trustee in bankruptcy of the estate of the bankrupt, reciting the sale of the account to defendant and authorizing the payment of the same to him. This letter was objected to by the plaintiff, first, because it was not the best evidence of the sale, and, secondly, because it was not shown by any evidence that 0. had ever been appointed trustee. Held, the letter should have been excluded on both grounds.</p> <p>2. —Same—Preference.</p> <p>A transfer by a debtor to one of Ms creditors within four months of bankruptcy of an account in part payment of the debt due said creditor, is such a preference as is forbidden by the bankrupt act.</p> <p>3. —Same—Chose in Action—Sale by Trustee—Rights of Purchaser.</p> <p>A trustee in bankruptcy may sell the choses in action belonging to a bankrupt’s estate, though the title to same be in dispute, and the purchaser would have the right to contest with the claimant the right to the same.</p> <p>4. —Same—Collateral Attack.</p> <p>The regularity of a sale by a trustee in bankruptcy can not be collaterally attacked, and any question concerning the same can be raised only in the court in which the proceedings are pending.</p>

<p>1. —Charge—Measure of Damages—Omission—Waiver.</p> <p>The omission of an instruction as to the measure of damages will not be considered ground for reversal where the parties agreed that the court need not charge the jury except as requested.</p> <p>2. —Evidence—Records.</p> <p>Evidence of contents of record (of movement and transfer of railway cars) can, it seems, be given by one who neither made the record nor knows personally the facts recorded, in connection with testimony of another that he knew them and made it.</p> <p>3. —Evidence—Admission—Withdrawal.</p> <p>Error, if any, in admission of testimony, held cured by subsequent instructions withdrawing and instructing the jury to disregard it.</p> <p>4. —Charge—Issues—Reference to Pleadings.</p> <p>A charge to find for plaintiff if defendant was found from the evidence guilty of negligence as alleged in the petition, was not erroneous in permitting them to find negligence in respect to matters alleged of which there was no proof.</p> <p>5. —Excessive Damages—Remittitur—Costs.</p> <p>A remittitur, by appellee, of a part of the damages recovered, admits excess, and affirmance of the judgment so reduced carries costs of appeal against appellee.</p>

<p>1. —Trespass—Cutting Timber—Measure of Damages.</p> <p>The measure of damages against a trespasser cutting timber' from another’s land and converting it into posts, where the trespass is not intentional, but through a mistake as to boundaries, is not the market value of the timber after it was so cut and converted into posts, but its value before being converted into such form.</p> <p>2. —Trespass—Receiving Benefit.</p> <p>Where defendant’s contractor cut timber on the land of another through mistake, and not through the direction or negligence of defendant, the latter would not be liable therefor unless he received or appropriated the timber cut.</p> <p>3. —Charge—Ignoring or Assuming Facts.</p> <p>A charge should not ignore a theory supported by' the evidence nor assume as fact a theory contradicted or left in doubt by the evidence.</p>

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

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

<p>1. —Issue of Fact—Peremptory Charge.</p> <p>It is only where the state of the testimony is such that but one conclusion can be deduced from it by ordinary minds, that the question at issue becomes one of law and the court is authorized to peremptorily instruct a verdict. Facts considered, and held error to instruct a verdict.</p> <p>2. —Incorporating Towns or Cities—Statutes Construed.</p> <p>The Act of the Twenty-fourth Legislature, page 17, fixes the area which may be included within the corporate limits in proportion to the number of inhabitants. The Act of the Twenty-fifth Legislature, page 193, provides that the boundaries of a town or village shall include therein no territory “except that which is intended to be used for strictly town purposes.” Facts considered, and held, that it could not be said, as matter of law, that all of the territory embraced within the limits described was not intended by the incorporators to be used for strictly town purposes. In determining this question it is proper to make allowance for future growth and expansion by so embracing territory as to insure symmetry of proportion, uniformity and continuity of blocks and streets, etc.</p> <p>3. —Res Inter Alios—Harmless Error.</p> <p>A deed between third parties was inadmissible and irrelevant to show that the property conveyed had been divided into lots and blocks, and its exclusion, at all events, harmless when that fact was established by other evidence.</p> <p>4. —Ordinances of City Council—Incompetent Evidence.</p> <p>An ordinance of the city council whereby the council undertook to reduce the boundaries of the city was inadmissible. If the city was incorporated it was beyond the scope of its authority; if it was not incorporated there was no city council.</p>

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

<p>1. —Employer—Degree of Care.</p> <p>The court charged the jury that it was the duty of the employer to provide such reasonably safe foundations for its lumber piles as is commonly used by skilled and experienced mill men, and such as it could, by the use of ordinary skill, provide, and a failure to so do and provide would be in law negligence; and that it was the duty of the employer to keep said stacks in safe repair, as far as ordinary skill and diligence could do. Held, error. By said charge the duty of the employer is made absolute, and although he may have exercised, not only ordinary care, but the highest degree of care, if the foundation of the lumber pile proved to be not reasonably safe, and not such as he could by the use, not of ordinary care, hut of ordinary skill, provide he would be guilty of negligence. Trinity Lumber Co. v. Denman, 85 Texas, 56, discussed.</p> <p>2. —Inconsistent Charges.</p> <p>Where the charge, taken as a whole, gives the jury two entirely different and inconsistent standards by which to measure defendant’s liability, it is reversible error.</p>

<p>Judgment—Finding of Fact—Presumption.</p>

<p>1. —Lost Baggage—Liability.</p> <p>Although the agent of the defendant railroad company was also agent for an expre'ss company, where the facts show that plaintiff dealt with such agent in his capacity as agent for the railroad company in delivering her baggage to him, the railroad company would he liable for the loss of such baggage.</p> <p>2. —Baggage—Value.</p> <p>The strict rule of market value can not be applied to baggage consisting of household goods and wearing apparel.</p>

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

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

<p>Appeal from the County Court of Panola County. Tried below before Hon. J. G. Woolworth.</p>

<p>1. —Justice Court—Motion for New .Trial—Appeal.</p> <p>While art. 1654, Rev. Stats., declares that all motions for new trial in a Justice Court shall be filed within five days after the rendition of the judgment, this provision is merely directory, and under art. 1652 that court may consider such motion filed at any time within ten days from the rendition of the judgment.</p> <p>2. —Appeal From Justice Court—Effect.</p> <p>A. sued B. in Justice Court, and B. made C. a party defendant and prayed for judgment over against him. Upon trial, A. recovered judgment , against B., and B. had judgment over against C. for same amount. C. alone , appealed to the County Court. Held, that the appeal by C. did not give the County Court -jurisdiction of the case as between A. and B.</p> <p>ON REHEARING.</p> <p>3. —Same.</p> <p>The effect of the appeal by C. was 1o remove the entire case from the Justice to the County Court for trial de novo, and give that court jurisdiction of all the issues and parties.</p> <p>4. —Breach of Contract to Buy—Remedy.</p> <p>Upon breach of a contract by a buyer to receive and pay for the article, ' the seller has three remedies, one of which is to resell the article and credit the proceeds on the contract price, and sue the buyer for the balance; but in pursuing this remedy he must act in good faith in making such resale, and use due diligence to secure the best price. Evidence considered, and held to require the submission of such issue to the jury.</p>

<p>Error from the District Court of Llano County. Tried below before Hon. Clarence Martin.</p>

<p>1. —Best Evidence—Written Memorandum.</p> <p>Accounts and written memoranda, if used as original evidence, must be shown to be original and contemporaneous entries; but a witness who weighed live stock may testify to their weight using, to refresh his memory, copies of the weight entries made by him from the original memorandum and known to be correct.</p> <p>2. —Carriers—Connecting Lines—Joint Liability.</p> <p>Though articles 331a, 331b, Sayles’ Civil Statutes, may not preclude a connecting carrier from making an independent contract limiting its liability on a through shipment to damages inflicted on its own line, all are jointly liable for the entire damage where, without such restriction, they acquiesce in and act on the contract for through shipment.</p> <p>3. —Carrier—Negligence—Time of Transportation.</p> <p>' The carrier’s obligation with respect to transportation within a reasonable time should be defined as a duty to exercise ordinary care to that end.</p> <p>4. —Requested Charge—Abstract Question.</p> <p>A charge presenting only an abstract question is properly refused; circum-stances rendering it otherwise, such as argument of counsel, should be preserved in the record by bill of exceptions.</p> <p>5.—Damages—Fundamental Error.</p> <p>The submission to the jury of items of damage in support of which there is no evidence is fundamental error and ground for .reversal.</p>

Tried below before Hon. V. L. Brooks. Appellant’s second and third assignments of error were based on the refusal of the trial court to give a peremptory instruction to find for defendant because the evidence was insufficient to show that the bursting of the turbine engine was caused by negligence in respect to defects in the machinery.

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

<p>1. —Railway—Frightening Teams—Duty of Lookout.</p> <p>It can not be said as matter of law that no duty rests on those operating a railway engine in a town to keep a lookout with reference to the danger of alarming teams traveling upon a street parallel with the railroad; the duty would depend on the circumstances.</p> <p>2. —Brief—Propositions—Assignments.</p> <p>Propositions in a brief, in order to require consideration, must be raised by and relevant to the charge attacked as erroneous by the assignment of error under which they are made.</p> <p>3. —Charge.</p> <p>The hypothesis justifying the giving of a requested charge must be one supported by evidence in all material features.</p>

<p>1. —Trespass—Parties—Cotenants—Judgment.</p> <p>While tenants in common must join in actions of trespass quare clausum fregit, yet the nonjoinder of a cotenant can, in general, only be taken advantage of by a plea in abatement, or by way of apportionment of the damages on the trial.</p> <p>2. —Same—Plea of Xot Guilty—Effect of.</p> <p>In actions of trespass quare clausum fregit the plea of not guilty operates as a denial that the defendant committed the trespass alleged in the place mentioned, but not as a denial of the plaintiff’s possession or right of possession of such place; this must be specially denied.</p> <p>3. —Wilful Trespass—Damages.</p> <p>The proposition that where a party innocently cuts timber from the land of another he is accountable only for the value of the standing timber, has no application in a case such as this, where the defendant cut the timber, knowing that he had no right to do so, or where he ought to have known it.</p> <p>4. —Trespass—Innocent Purchaser—Measure of Damage.</p> <p>The owner of land from which timber has been cut and upon which timber labor has been bestowed, making it more valuable, can recover from an innocent purchaser of such timber its value in the condition it was when purchased from the trespasser.</p> <p>5. —Sequestration—Replevy Bond—Validity.</p> <p>Discrepancies in a replevy bond as to dates should be regarded as surplusage, not affecting its validity, when it appears upon its face that it was issued in the same case, describes the number and brand of the logs as in the writ of sequestration, recites their seizure by virtue of such writ, and is conditioned as required by statute. No question as to the validity of such bond having been raised in the trial court, it can not be raised for the first time on appeal.</p> <p>6. —Replevy Bond—Return of Property.</p> <p>The defendant who has replevied property in sequestration proceedings has the right to return the same to the sheriff, if not damaged or injured during the replevy, and receive credit therefor, and a judgment denying this right is erroneous.</p> <p>7. —Same—Judgment Reformed.</p> <p>Where the case was tried before the court without a jury, and there_ is evidence in the record sufficient to enable the Appellate Court to <|etermine the value of the articles replevied, the judgment will be reformed by the Appellate Court so as to correct the errors.</p> <p>8. —Cost of Appeal—Modified Judgment.</p> <p>Where an error in a judgment has not been called to the attention of the trial court and no opportunity afforded said court to correct the same, the cost of the appeal will be adjudged against the appellant, although the Appellate Court reformed the judgment.</p>

<p>1. —Elea of Privilege—Trial by Jury.</p> <p>A plea of privilege presents a question of fact, and the defendant has the same right to have this question tried by a jury as any other question of ■ fact in the case.</p> <p>2. —Elea of Privilege—Verification of by Codefendant.</p> <p>One defendant may verify a plea of privilege for a codefendant when duly authorized to do so.</p> <p>3.—Venue—Residents and Nonresidents as Codefendants.</p> <p>There is no provision of law that will authorize suit against a resident by joining him with a nonresident in any other than the county in which the resident resides.</p>

<p>1.—Endorser—Nature of Obligation.</p> <p>Where one, not a payee of a note, puts his name on the back of it at the time of its inception, without any words to impress the nature of his undertaking, he is to be held liable as an original promisor, or surety, or endorser according to the evidence as to the real obligation intended to be assumed at the time of signing.</p> <p>2.—Articles 3811 and 3812, Revised Statutes of 1895, Construed—Sufficiency of Required notice.</p> <p>A statement in a letter by the surety to the creditor, as follows: “It will be necessary for you to exhaust every means possible to make it (the money) out of Mess. Robinson and Ogg (the makers of the note) as we do not intend to pay any more of the notes until we are forced to do so;” and again, that he “did not • intend to pay the notes or any expenses attached to them until the courts say he will have it to do,” is not a compliance with the requirement of the statute that notice be given to the obligee “forthwith to institute suit.”</p>

<p>1. —Cipher Message—Notice of Importance.</p> <p>If the telegraph company is informed by any means that a message is important it is liable for unnecessary delay in its transmission.</p> <p>2. —Presumption of Solvency.</p> <p>It was not necessary for plaintiff to prove that the party contracting for the cotton was solvent and would pay for the same.</p> <p>3. —Negligent Delay.</p> <p>If a message had been promptly sent from the receiving office it would probably have reached its destination before the wire got out of working order. No probable cause was shown for the wire being out of order. No effort was made to send the message over any other wire, nor was any notice given to the sender of the inability to transmit the message. Held, such negligence as to justify the verdict.</p>

<p>1. —Statement of Facts—Amending Same—Filing After Prescribed Time.</p> <p>There is no authority for amending a statement of facts after the time limited by law for filing the same. The trial court has no power after the time prescribed by law to approve and make a part of the record a statement of facts to amend or supersede one certified and filed within the time.</p> <p>2. —Identity of Ancestor with Patentee—Burden and Sufficiency of Proof.</p> <p>Certain lands were patented to one, Greenberry Dorsey. Both the plaintiffs and the defendants had an ancestor by that name, and claimed that he was the patentee. Facts considered and held insufficient to support a verdict for defendants.</p> <p>3. —Presumption of Conveyance.</p> <p>The case of Fletcher v. Fuller, 120 U. S. 534, distinguished, and held that the doctrine of that case, insofar as it recognizes a presumption of a conveyance as a presumption of law, is not admitted in this State.</p>

<p>Surgical Services Rendered to Passenger—Agent—Scope of Authority.</p> <p>A surgeon who, under contract with defendant’s local surgeon, perforins services for a passenger injured without fault on the carrier’s part, and who was informed at the time that such local surgeon had no authority to make said contract, has no claim against the defendant company.</p>

<p>Bankrupt—Composition—Preference.</p> <p>One who has been adjudged a bankrupt may pay one of his creditors more than the others, provided the transaction is fair and open, and known to and acquiesced in by all concerned.</p>

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

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

<p>Appeal from the District Court of Galveston County. Tried below before Hon. Geo. B. Mann, Special Judge.</p>

<p>Appeal from the County Court of Brazoria County. Tried below before Hon. A. E. Masterson.</p>

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

<p>1. —Evidence—Entries in Order Book by Agent.</p> <p>Entries made by an agent in an order book kept by him in the transaction of his principal’s business are not admissible in evidence by simply proving the handwriting of the agent. Such entries are secondary evidence.</p> <p>2. —Same.</p> <p>Where incompetent evidence has been admitted, the testimony of witnesses to the same effect and evidently derived from or based upon the incompetent evidence does not render the error harmless.</p>

<p>1. —Sale—Conclusion, of Witness.</p> <p>In a suit concerning the ownership of cotton where the issue was whether or not a consummated sale of the same had been made, it was error for the court to permit a witness to testify that she had sold the cotton to the plaintiffs. This was a conclusion of the witness.</p> <p>2. —Same—Consideration—Irrelevant Testimony.</p> <p>In a suit involving the ownership of cotton the consideration paid by the defendant for said cotton was immaterial. The plaintiffs must show themselves the owners of the same. And so with regard to the testimony of the original owner of the cotton, that she never intended to give the defendant a mortgage on the same.</p> <p>3. —Sale—Agreement to Sell—Distinction.</p> <p>Evidence showing an intention or agreement on the part of the original owner of cotton to sell the same to the plaintiffs and an agreement on the part of plaintiffs to accept and pay the highest cash price for the same on delivery does not prove a sale, but only an agreement to sell.</p> <p>4. —Burden of Proof—Charge.</p> <p>The burden of proof being on the plaintiffs to show that they were the owners of the cotton, it was error for the court to charge the jury that if they found from a preponderance of the evidence that the plaintiffs were not the owners of the cotton they should return a verdict for the defendant.</p> <p>5. —Sequestration—Judgment.</p> <p>In a sequestration suit involving the title to property if the plaintiff fails to recover the property sued for, the defendant is entitled to judgment for possession of the same or for its value.</p> <p>6. —Same—Damages in Reconventiou—Material Evidence.</p> <p>In a sequestration suit where the defendant sues in reconvention for damages it was proper to allow the plaintiff to plead and. prove that he had a mortgage on the property in controversy.</p> <p>7. —Title to Personal Property Passes, When.</p> <p>The title to personal property passes at the time it was the intention of the parties dealing with it that it should pass, and this is a question of fact.</p> <p>8. —Sequestration—Judgment—Alternative Relief.</p> <p>In a sequestration suit the plaintiff may allege and prove that the defendant has converted to his own use the property which the plaintiff claims to own or to have a valid lien upon, and pray in the alternative for the property or its value.</p>

<p>1. —Negligence—Peremptory Charge.</p> <p>Because under the evidence in this case it was a question of fact whether or not the defendant company was guilty of negligence the court erred in instructing a verdict for the defendant. Such charge should only be given where there is no conflict in the evidence and there is no room for different minds to draw different inferences.</p> <p>2. —Railroad—Duty to Passenger—Platform.</p> <p>A carrier, of passengers owes to the latter the same degree of care in providing for their safety when making proper efforts to board its train as when on the train, and whether or not proper facilities have been provided is a question of fact for the jury.</p> <p>3. —Duty to Hold Train, When.</p> <p>When a passenger has been instructed by a conductor in charge of a train to procure a ticket at a certain station, it is the duty of the conductor to hold the train a reasonably sufficient length of timé to enable the passenger to do as instructed.</p> <p>4. —Employe is Passenger, When.</p> <p>A railroad employe who is upon a passenger train in pursuance of a com- ■ mand of his master is a passenger, and is entitled to the same degree of care as other passengers.</p> <p>5. —Specific Negligence—Amended Pleading—Limitation.</p> <p>Plaintiff’s original petition contained a general allegation of negligence proximately resulting in injury. More than two years afterwards he Sled an amended petition setting out the specific act of negligence causing the injury. Held, the general allegation, in the absence of special exceptions, would interrupt the statute of limitation.</p>

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

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

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

<p>1.—Evidence—Res Inter Alios—Harmless Error.</p> <p>The admission, against a railroad company, of a letter from an agent of a connecting line to his own company, purporting to give statements of plaintiff about damage to his cattle in shipment over such connecting lines, was error; but not cause for reversal where the facts recited therein were testified to by plaintiff on the trial.</p> <p>2.—Contract—Cattle Shipment—Notice of Claim—Reasonableness.</p> <p>An agreement, by a shipper of live stock, to give notice of his claim for damages within 91 days was not unreasonable, where the evidence showed circumstances under which it could have been readily complied with, and failure to give such notice constituted a defense to his action for damages, on which plaintiff was entitled to have specific requested instructions given.</p> <p>3. —Same—Connecting Lines.</p> <p>Where on a shipment of live stock over connecting lines the contract with the initial carrier limited its liability to damages on its own lines and provided for notice to it of the shippers claim therefor, notice given to the agent of the terminal carrier without proof to show that he was agent to receive same for defendant, the initial one, was not a compliance with the contract.</p> <p>4. —Notice of Claim for Damages—Waiver.</p> <p>A contract by a live stock shipper that he would give notice in writing to the contracting carrier of his claim for damages, was not waived by a merely incidental conversation of the shipper with the agent, in which he stated that his horses were damaged, and the agent replied that he had got such notice from the company, and it was error to submit the question of waiver of the stipulation upon such evidence.</p> <p>5. —Same.</p> <p>To constitute waiver of a contract by plaintiff to give notice of his claim for damages the acts relied on must have led plaintiff to believe that the provision would not be insisted on and induced him to omit compliance therewith.</p>

<p>Appeal from the District Court of Llano County. Tried below before Hon. Clarence Martin.</p>

<p>1. —Pleading—Negligence—Defective Machinery.</p> <p>An allegation of negligence in furnishing defective machinery is sufficient if it points out the particular thing or apparatus which was defective, without specifying the imperfection, though specially demurred to.</p> <p>2. —Assignments—Briefs.</p> <p>Assignments of error not copied in the brief need not be considered.</p> <p>3. —Assumed Risk—Charge.</p> <p>In an action by a servant against the master for personal injury, a charge on the risks assumed, which did not except those arising from defective machinery and negligence of other servants for which the master was liable, was properly refused.</p> <p>4. —Charge—Proximate Cause—Contributory Negligence.</p> <p>A charge was properly refused which precluded a servant from recovery for personal injuries if he boarded a ear moving at a dangerous rate of speed, without the qualification that such act, instead of defective machinery or negligence of other servants of defendants must have caused the injury.</p> <p>5. —Same.</p> <p>The act of plaintiff in boarding a rapidly moving car could not constitute negligence preventing a recovery for injuries received, after he had got on the . car safely, by the car being suddenly stopped.</p> <p>6. —Charge on Weight of Evidence.</p> <p>A requested charge was properly refused as being on the weight of evidence where it required the jury to consider all the facts and circumstances in evidence in determining the question ■ of contributory negligence, the jury having the right to disregard facts for which they consider the evidence insufficient.</p> <p>7. —Evidence.</p> <p>Where an automatic coupling device was shown not to have worked it was proper to show that such devices worked well when in good order, in support of other evidence of the existence of defects.</p> <p>8. —Negligence—Knowledge.</p> <p>An instruction does not impose a burden of more than ordinary care which requires the exercise of such as would have been used by a man of ordinary prudence under the circumstances known or which “should” have been known to him.</p>

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

<p>Appeal from the County Court of Hays County. Tried below before Hon. Ed. R. Kone.</p>

<p>1. —Personal Injuries—Previous 111 Health.</p> <p>One who is in ill health previous to the occurrence oí an injury caused by the negligence of a railroad company is not precluded by such ill health from recovering for such injuries as are the- proximate result of the accident.</p> <p>2. —Extent or Duration of Suffering.</p> <p>It is not possible, and therefore not required, to produce direct or positive testimony of how long a person will live to suffer from permanent injuries. This is ordinarily a question which must be left to the judgment of the jury.</p>

<p>1. —Principal and Agent—loyalty and Good Faith.</p> <p>The relation of principal and agent is fiduciary, requiring the most perfect loyalty and the utmost good faith, the strictest integrity and the fairest dealing on the part of the agent to his principal.</p> <p>2. —Same—Fraud—Forfeiture of Compensation.</p> <p>Where an agent has heen guilty of such misconduct as amounts to treachery, or has wholly failed to recognize the duties and responsibilities imposed upon him by his situation, he is not entitled to compensation for services rendered.</p> <p>3. —Same—Same.</p> <p>Where an agent made a sale of land belonging to his principal, and reported the sale as having been made at a price less than that actually received, in 'a suit by the principal for the difference, the agent is not entitled to compensation for making the sale.</p> <p>4. —Findings of law and Facts—Exceptions not Necessary—When.</p> <p>It is not necessary to take exception to findings of law and facts when there is a statement of facts in the record in order to review them on appeal.</p> <p>5. —Same—“Error Apparent on Face of Becord.”</p> <p>Appellate Courts will consider errors apparent on the face of the record, although not objected to below. By an “error apparent on the face of the record” is meant “a prominent error, either fundamental in its character, or one determining a question upon which the very right of the case depends.”</p>