Volume 46 — Texas Civil Appeals Reports

<p>Appeal from the District Court of Gonzales County,</p>

<p>Appeal from the District Court of Uvalde County.</p>

<p>Appeal from the District Court of Bastrop County.</p>

<p>Appeal from the District Court of Atascosa County.</p>

<p>1. —Suppression of Deposition—Act of 1905 Construed.</p> <p>Under the provisions of article 2284 of the Revised Statutes, as amended by the Act of 1905, the right to suppress a deposition at any time exists only when any of the provisions of that particular article has been violated by a party to the suit, and that fact is made to appear aliunde the deposition.</p> <p>2. —Same—Notice of Taking Deposition.</p> <p>The requirement under the Act of 1905 that the notary taking depositions shall give at least five days- notice to the parties is found in article 2282 as amended, by that act, and not in article 2284. Hence a motion to suppress a deposition because of the failure of the officer to give such notice can not be made at any time, but is controlled by the unamended article 2289, Revised Statutes, and must be made at the first term after the deposition is filed in court.</p> <p>3. —Application for Continuance—Insufficient Diligence.</p> <p>Where counsel for defendant made a waiver in writing, of time, service of copy, filing of interrogatories, issuance of commission, etc., and the depositions taken under said agreement were filed in the clerk’s office on September 1, 1905, and such filing duly noted at the time on the proper docket, and said depositions were taken from the clerk’s office by plaintiff’s counsel on September 9, 1905, and receipted for on the proper docket, and the case was not called for trial until June 8, 1906, during which time the deposition remained in the possession of plaintiff’s counsel, an application for continuance on the ground that defendant did not know of the existence of the deposition and required time to procure testimony to rebut the same, was properly overruled. The deposition tended to prove an issue clearly presented by the pleading and defendant should have prepared to meet it.</p> <p>4. —Hew Trial—Newly Discovered Evidence.</p> <p>When, during the progress of a trial, the importance of certain absent testimony is developed it is the duty of the party desiring such testimony to withdraw his announcement of ready for trial and ask for a continuance for the purpose of obtaining the testimony. Failing in this, a motion for new trial on the ground of newly discovered testimony is properly overruled.</p> <p>5. —Unforeseen Accident—Proximate Consequences.</p> <p>In a suit for personal injuries a charge requested by defendant to the effect that if the jury believed from the evidence that plaintiff’s injuries resulted from an accident which could not have been foreseen by defendant by the use of ordinary care, they should return a verdict for defendant, was properly refused because the injurious, proximate and natural consequences of an act of negligence are always deemed to be foreseen.</p> <p>6. —Personal Injury—Loss of Time—Pleading.</p> <p>The loss of time consequent upon a personal injury may be proved without specific allegation of the same.</p>

<p>1. —Receiver—Partnership—Pleading.</p> <p>In a suit by one partner against another for an accounting and the appointment of a receiver, an allegation in the petition “that heretofore, to wit, on or about May 1, 1899, plaintiff and defendant entered into a partnership for the purpose of conducting a bottling works, bottling soda and mineral water for sale in the city of San Antonio, Bexar County, Texas, under the firm name of ‘Rische Brothers,’ and they continued to conduct said partnership business until about September 10, 1900,” was a sufficient allegation of the partnership; it was not necessary to set out the details of the partnership, and said allegation together with the allegation that plaintiff had been ousted from participation in the management of the partnership affairs, and that it was probable the partnership assets would be lost, was sufficient to authorize the appointment of a receiver under article 1465 of the Revised Statutes.</p> <p>2. —Application for Receiver—Duty of Court.</p> <p>Upon an application for a receiver for a partnership the court is not required to pass on any question involving the respective or ultimate rights of the partners, but the matters alleged must require the dissolution of the partnership. The court is vested with large discretion as to the necessity for a receiver, and its decision when the evidence is conflicting is conclusive.</p> <p>3. —Same—Statute Construed—Case Criticized.</p> <p>Under the provisions of article 1492, Revised Statutes,, one partner suing another need not allege and prove that the partnership property is in danger of being lost, removed or materially injured, to entitle him to a receiver; it is sufficient if he has been wrongfully excluded from participation in the management of the partnership affairs. The statement to the contrary in the case of Bank v. Dunham, 44 S. W. Rep., 605, is obiter dictum.</p>

<p>Estates of Decedents—Will—Trust—Jurisdiction.</p> <p>A testator, dying in 1886, made by his will certain bequests to his widow, and entrusted the rest of his estate to an executor to be managed for twenty-five years, with provision for a home and monthly allowance to his son, who- was to receive the estate at the end of that period. All debts were settled by a temporary administrator during the pendency of litigation over the probate of the will. The executor received the estate in 1895, and continued to execute the trust until his death, in 1905. The widow, meantime, elected not to take-under the will, and received the share given her by law. Held, that the executor, at his death, was managing the estate, not as executor, but as a trustee, holding the legal title under the will; that the County Court had no jurisdiction to take control, on his death, by appointment of an administrator with the will annexed; and that the District Court alone had power to appoint a new trustee to carry out the trust.</p>

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

<p>Penalty—Water Closet Act, Unconstitutional.</p> <p>The Act of April 17, 1905, to compel railroad corporations to erect and maintain water closets at passenger stations, and fixing a penalty for violation of the same, held unconstitutional.</p>

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

<p>I. —Mortgage—Foreclosure—Pleading.</p> <p>In a suit for debt and foreclosure of a mortgage lien it is not necessary that plaintiff allege the value of the mortgaged property. Such allegation is certainly unnecessary when the matter of value is put in issue by other parties to the suit.</p> <p>2. —Sale of Personal Property—Caveat Emptor.</p> <p>In the sale of personal property the rule of caveat emptor applies in this State, and one who buys stolen property takes no title as against the true owner.</p> <p>3. —Mortgage Lien—Future Advances—Validity.</p> <p>Mortgages to secure future advances are upheld both by the common law and the courts of this country; and even when no limit is fixed to the amount of such advances a recorded mortgage to secure the same is notice to a subsequent encumbrancer as to all sums advanced upon the mortgage prior to the acquisition of the subsequent lien and notice thereof to the first mortgagee.</p> <p>4. —Live Stock—Market Value—Evidence.</p> <p>Upon an issue as to the market value of certain horses and mules, a livestock journal published at the place of sale, the reports in which were regularly made and correctly kept, was competent evidence. It was not essential that the editor should have personal knowledge of the sales reported, nor that the sales reported should he of mules and horses of the precise age, character and condition of those in controversy; it was sufficient if from the general classes reported the jury could deduce the value of the animals in controversy.</p>

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

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

<p>1.—Unsafe Building—Liability—Landlord and Tenant.</p> <p>As between a landlord and tenant, in the absence of a covenant on the part of the landlord to repair, there is no implied warranty by the landlord -that the premises are in a tenantable condition.</p> <p>Z.—Same.</p> <p>. When a structure is leased to several independent tenants, in the absence of a covenant there is no warranty by the lessor that the structure is fit for occupancy, and he does not become responsible for injuries caused from a defect in the structure, unless made so by some concealment or misrepresentation on his part.</p> <p>3.—Same.</p> <p>In a suit by a tenant against his landlord for damage to a stock of goods caused by the collapse of the rented building, evidence considered, and held not to support a finding against the landlord.</p>

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

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

<p>Appeal from the District Court of Harris County.</p>

<p>1. —Carrier of Passengers—Refusal to Pay Pare—Ejection of Mother and Child.</p> <p>Where the mother of a child, the latter being of paying age, refused to pay fare for her child the conductor of a passenger train has the right to require the mother as well as the child to leave the train.</p> <p>2. —Same—Trespasser—Degree of Care.</p> <p>A mother who refuses to pay fare for her minor child upon a passenger train does not occupy the position of a passenger, and hence the carrier and its employees are not bound to exercise that high degree of care towards her as towards a passenger.</p> <p>3. —Trespasser—Alighting from Train—Contributory Negligence.</p> <p>In a suit by a trespasser for personal injuries received while alighting from a passenger train, charge considered, and held insufficient in presenting the issue of contributory, negligence.</p>

The refused charge was to the effect that plaintiff could not recover if he did not own the land, and the charge requested by appellee, and given, was to the contrary.

<p>Citation—Corporation—Agent.</p> <p>A citation in a suit -against a corporation alleged to have an agent in the State which commands the officer to summon the agent named, and not the corporation itself, to appear -and answer, will not support a judgment by default.</p>

<p>Briefs,—Assignment not Copied.</p> <p>Where the assignments of error are not copied in appellant’s brief, they will not be considered, and the case will be affirmed in the absence of fundamental error.</p>

<p>1. —Jury—Crediblity of Witness.</p> <p>The jury, being the sole judges of the credibility of witnesses and the weight to be given to their testimony, have the right to reject the testimony of a witness although he is not contradicted by other witnesses, when the circumstances cast suspicion upon his statements or render them inconsistent with reason and common observation.</p> <p>2. —Negligence—Prima Facie Case.</p> <p>In a suit for personal injuries caused by the straightening of a hook used to lift a smoke-staelc and the consequent falling of the smoke-stack, proof of the straightening of the hook under the circumstances shown made a prima facie case of negligence against the defendant which it was required to meet by evidence of careful selection and testing of the hook, and the duty of doing this rested upon the vice-principal of the defendant and could not be delegated, to a fellow-servant of the plaintiff.</p>

<p>Appeal from the District Court of El Paso- County.</p>

<p>Appeal from the County Court of Uvalde County.</p>

<p>1.—Forgery—Evidence.</p> <p>Upon an issue of the genuineness of a deed, evidence considered, and held sufficient to -require that the issue be submitted to the jury.</p> <p>Z.—Deed—Ambiguous Description.</p> <p>A deed which describes the land conveyed as being situated in J. County and as the same granted to the maker of the deed by a certain commissioner of a certain empresario, can not be held void for -insufficiency of description although it developes that the laud described is in fact situated in a different county.</p> <p>3. —Same—Construction—Latent Ambiguity.</p> <p>When it is shown by extrinsic evidence what land was the subject matter of the contract, and the land actually sold and purchased and intended to be conveyed is thus identified, the false portion of the description in the deed should be rejected as surplusage and the instrument construed in conformity with the intention of the parties.</p> <p>4. —Deed—Description—Record—Notice.</p> <p>When the description in a deed is sufficient to identify and convey the land, the record of such deed is constructive notice to subsequent purchasers.</p> <p>5. —Same—Case Distinguished.</p> <p>The case of Neyland v. Texas Yellow Pine Lumber Co., 64 S. W. Rep., 696, discussed and distinguished from the present case.</p> <p>6. —Record—Examined Copy.</p> <p>An examined copy of the record of an instrument improperly admitted to record is not competent evidence.</p>

<p>Appeal from the County Court of Callahan County.</p> <p>Tried below before Hon. I. N. Jackson.</p>

<p>County Court—Practice—Written Charge.</p> <p>Under article 1316, Revised Statutes, as amended by the Act of 1903, page 55, it is obligatory upon a County Judge to prepare and deliver a charge in writing covering the law of a case tried before him, in the absence of an express waiver by the parties.</p>

<p>Appeal from the District Court of Williamson; County.</p>

<p>Receiver—Interlocutory Order—Appeal.</p> <p>An appeal does not lie from an interlocutory order in a receivership proceeding suspending the enforcement of a judgment foreclosing a mortgage lien on property in the hands of the receiver.</p>

<p>Appeal from the District Court of Harrison County.</p> <p>Tried below b.efore Hon. Richard B. Levy.</p>

<p>1. —Telephone Company—Negligence—Nominal Damage—New Trial.</p> <p>In a suit against a telephone company for negligent failure to deliver a death message, the jury by their verdict expressly found the defendant guilty of negligence but assessed plaintiff’s damages at one dollar. Held, the jury having found that defendant was guilty of negligence, and the undisputed evidence showing that plaintiff suffered great mental pain, the jury should have awarded adequate damages, and a new trial should therefore have been granted.</p> <p>2. —Credibility of Witness—Immaterial Contradictory Statements.</p> <p>The credibility of a witness can not be impeached by showing that he has made contradictory statements about immaterial and collateral matters.</p> <p>3. —Contradicting Witness—Stenographer’s Notes.</p> <p>A transcript of an official stenographer’s notes of the testimony taken upon a former trial is not competent evidence of the testimony of the witnesses upon such trial, and he can not be contradicted thereby.</p> <p>4. —Undisputed Evidence—Submission of Issue.</p> <p>In a suit against a telephone company for delay in delivering a death message, the evidence being undisputed that plaintiff could and would have reached his mother before her death if the message had been promptly delivered, it was error to submit such issue to the jury. And so with regard to the fact that plaintiff suffered mental distress.</p> <p>5. —Telephone Message—Delay—Contributory negligence.</p> <p>When plaintiff was led to believe by the agent of the telephone company that he could communicate with his sick -mother as quickly by telephone as by telegraph plaintiff was not guilty of contributory negligence in failing to use the telegraph.</p> <p>6. —Counsel and Juror—Misconduct.</p> <p>A reference by counsel in his argument to the fact that the jury disagreed on a former trial, and.an effort by a member of the jury to find out how the jury stood on a former trial, were both reprehensible</p>

<p>1. —Carrier of Passengers—Damages.</p> <p>Evidence considered and held to support a recovery of '$100, damages, in case of a passenger carried beyond her destination and thereby compelled to walk over muddy roads and incur exposure and sickness.</p> <p>2. —Flag Station—Stop—Knowledge of Passenger’s Destination.</p> <p>By selling a ticket for a flag station to the passenger, the railway company undertook to stop there to let her off, and was not excused for failure by the fact that, the train being crowded, the conductor did not take up the ticket in time to learn that he had a passenger for such station.</p>

<p>Appeal from the District Court of Hamilton County.</p>

<p>1. —Charge.</p> <p>Requested instructions on damage to land by overflow held properly refused because embraced, in substance, in the charge given.</p> <p>2. —Same—Overflow—Damage—Johnson Grass.</p> <p>Instructions as to the measure of damages for injury to land by spread of Johnson grass thereon, washed upon it by overflow, held correct when considered in connection with entire charge.</p> <p>3. —Charge—Proximate Cause—Overflow.</p> <p>An instruction permitting recovery for injury to land proximately caused by the digging of a ditch, was not erroneous for failing to limit recovery to injuries caused by diversion of water by such ditch, which was remote from plaintiff’s land and capable of injury thereto only by diversion of water upon it.</p>

<p>Appeal from the District Court of Kaufman County.</p>

<p>Appeal from the Fifty-eighth District Court, Jefferson County.</p> <p>Tried below before Hon. W. H. Pope.</p>

<p>Error from the District Court of Brewster County.</p>

<p>Appeal from the County Court of Wharton County.</p>

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

<p>1—Guardian’s Deed as Evidence.</p> <p>A guardian’s deed duly executed and in proper form is prima facie proof that the guardian’s sale was regular, but it does not furnish presumptive evidence of the existence of all the prerequisites necessary to authorize a valid sale.</p> <p>2. —Evidence of Probate Orders.</p> <p>An unsigned form of a decree found among the papers of a guardianship in the Probate Court, purporting to have been rendered by the Probate Court, but never entered on the minutes of said court, would not be evidence that such a decree was rendered by the court.</p> <p>3. —Guardianship—Report of Sale—Record.</p> <p>The provision of the statute requiring a report of a sale by a guardian to be recorded is directory, and an unrecorded report filed among the papers of the case is admissible in evidence as one of a series of acts necessary to the validity of the sale.</p> <p>4. —Probate Orders—Record—Statute Construed.</p> <p>By the provisions of the Revised Statutes all probate orders and decrees must be entered upon the records of the court at the term at which they are made, and unless so recorded they are nullities.</p> <p>5. —Probate Sales—necessity for Order—Evidence.</p> <p>It is statutory that an order of sale by the court is necessary to the validity of a sale of land by an administrator or guardian, and such order can only be proven by the record entry.</p> <p>6. —Same.</p> <p>To constitute a valid sale of land by a guardian it must be shown, among other things, that there was an application for the sale and an order of sale duly made and entered of record.</p> <p>7. —Warrantors—liability.</p> <p>The liability of warrantors of title is not adjudicated when the judgment in trespass to try title is for their vendee.</p>

<p>Appeal from the County Court of Waller County.</p>

<p>1. —Ten Years limitation—Evidence.</p> <p>W. without deed or other right entered upon a 320 acre survey, intending to acquire the whole of it by limitation; he cleared some of the land, built a house, barn and out-houses, fenced about 40 acres and occupied and used that ■ much, claiming the entire survey until informed that he could not acquire more than 160 acres by limitation, when he reduced his claim to the south half of the survey, but never had the lines marked; he had the 40 acres, actually enclosed and occupied by him, surveyed and staked off; he rendered and paid taxes on only 40 acres. Held, the burden was upon W. to establish his plea of limitation by affirmative proof, and evidence of the facts stated was insufficient to prove title by limitation as to any part of said survey except the 40 acres.</p> <p>2. —Same—Payment of Taxes.</p> <p>Evidence of the payment of taxes on only a certain number of acres is admissible on the issue of the extent of the claim of the person in possession.</p>

<p>1. —Sequestration—Verdict—Judgment.</p> <p>When in a sequestration suit the judgment was that the plaintiff recover the property in controversy, and not the property or its value, the defendant can not complain that the verdict of the jury and the judgment did not find and specify the value of the various items of property involved, since he can be relieved of all liability by delivering the property to the sheriff, and in the event he fails to do so the plaintiff can not have execution for the value of the property or any part of it.</p> <p>2. —Practice on Appeal—Duty to Pile Conclusions—Act Construed.</p> <p>The Act of the Twenty-ninth Legislature, page 71, adding article 1024a to chapter 17, title xxvii of the Revised Statutes, when construed in connection with article 1039 of the Revised Statutes, does not require the Courts of Civil Appeals to file their conclusions of law upon each and all of the issues raised by the various assignments of error presented in the briefs in all eases appealed to said courts, but only in such cases as may be taken to the Supreme Court by writ of error.</p>

<p>1. —Defendant—Dual Capacity—Final Judgment.</p> <p>When the plaintiff sues to recover a debt against a decedent’s efstate and to have certain property in the hands of the defendant applied to the satisfaction of such debt, and the defendant, who is sued in the dual capacity of independent executor and sole devisee and legatee of said decedent, by his answer claims to be the sole owner of the property by virtue of the decedent’^ will, the judgment, which disposes of all the issues between the parties, is a final judgment although no disposition is specially made of the defendant in Ms capacity of independent executor.</p> <p>2. —Independent Executor—Jurisdiction.</p> <p>Of a suit by a creditor against a party as independent executor or as sole devisee and legatee of the testator, who has possession of the property of the estate, the Probate Court, after probating the. will and receiving and filing an inventory and appraisement of the estate, would have no jurisdiction.</p> <p>3. —Petition—Hot Multifarious.</p> <p>When the purpose of plaintiff’s suit is to establish a debt against the estate of a decedent and to subject property in the possession of the defendant to the satisfaction of such debt the petition is not multifarious.</p> <p>4. —Deed to Wife—Separate Property.</p> <p>When the husband pays for land out of his separate estate and causes the deed to be made to his wife this is sufficient, as between the paJrties, to show that he intended it as a gift to her. although there is no express recital that it is to be her separate property.</p> <p>5. —Same—Hates to Husband and Wife.</p> <p>The fact that in the sale of the wife’s separate property the notes for the purchase money are made payable to both the husband and wife affords no presumption that the notes are community property.</p> <p>6. —Husband—Conversion of Wife’s Estate—Liability.</p> <p>When the husband converts the wife’s separate estate into money or property and uses it to improve his separate or the community estate he is liable for its value, and the wife has an equitable lien on the land so improved to secure its payment.</p> <p>7. —Heir—Liability.</p> <p>An heir is liable for the debts of his ancestor only to the extent of the property received from such ancestor.</p> <p>8. —Declarations of Decedent.</p> <p>In a suit by an heir to subject property in the hands of defendant to the payment of her claim the testimony of defendant as to statements or the absence of statements by plaintiff’s ancestor, is incompetent.</p> <p>9. —Pleading's—Pacts—Agreement.</p> <p>An agreement that the allegations in plaintiff’s pleadings are true will not prevent the husband from recovering as heir of his wife when it is alleged in said pleading that he was living at the time of his wife’s death, although it is also alleged that plaintiff, a child of the wife, was her sole heir.</p>

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

<p>Appeal from the County Comet of Coleman County.</p>

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

<p>Appeal from the District Court of Bowie County.</p> <p>Tried below before Hon. P. A. Turner.</p> <p>The application for continuance in this case was to obtain the testimony of defendant Henry, who was absent by reason of sickness, that the judgment against him in the District Court, on mandate from the Court of Civil Appeals showing that it was so rendered there, was entered without notice or new citation to him.</p> <p>Appellant’s sixth assignment asserted error in admitting the transfer of the judgment in question to the Red Water Lumber Company, and assigned some five reasons why it was not admissible.</p> <p>The evidence of witness Rogers was that the land described in the petition was embraced in that involved in the judgment, and was objected to because he did not show that he was qualified as an expert surveyor nor how he knew the facts testified to.</p>

<p>1.—Jury—Separation during Trial.</p> <p>A motion that the jury be kept together during the trial is addressed to the discretion of the court, and abuse of such discretion does not appear from the mere fact that the case had excited great interest and sympathy for plaintiffs.</p> <p>Ü.—Evidence—Death—Damages—Care of Parent</p> <p>In an action for damages by the death of plaintiffs’ father, evidence that their mother, who survived him, but died before the trial, was not strong or healthy, was admissible as bearing on the loss by plaintiffs of the care and nurture from their father which might be expected under such conditions.</p> <p>3. —Evidence—Materiality—Harmless Error.</p> <p>The admission of evidence, over objection as to its materiality, is not ground for reversal where not prejudicial to the party complaining.</p> <p>4. —Evidence—Rebuttal—Former Testimony.</p> <p>The testimony of witness for defendant on a former trial as contained in the statement of facts having been read in evidence, it was within the discretion of the court to permit plaintiffs to read, in rebuttal, from the stenographer’s notes, the cross-examination and re-cross examination of such witness.</p> <p>5. —Master and Servant—Negligence—Assumed Risk.</p> <p>Recovery sustained in case of a section foreman killed in removing a push car from the track in order to avoid collision with a train, the evidence being held to support a finding of negligence of the trainmen and absence of contributory negligence or of assumption of risk by deceased, he acting in an emergency and to avoid peril of life from derailment of train, and these issues held to have been properly submitted.</p>

<p>1. —Personal Injuries—Alighting from Train—Charge.</p> <p>In a suit for personal injuries caused by the failure of a railway company to stop its train at a station long enough to • allow a passenger to alight therefrom, charge of the court upon the duty of the railway company considered, and held not subject to the objection that it indicated the opinion of the judge on the question of negligence, and that it properly instructed the jury as to the degree of care required of railway companies in connection with its passengers.</p> <p>2. —Same—Charge—Construction.</p> <p>The charge of a court should be considered in its entirety and the different portions should be construed together as complementing and correcting or qualifying each other. When so considered the charge in the instant case held not subject to the objection that it permitted a recovery against the defendant although the plaintiff’s wife may have been guilty of contributory negligence.</p> <p>3. —Special Charges—Case limited.</p> <p>The ease of Missouri, K. & T. By. Co. v. McGlamory, 89 Texas, 635, does not hold that special charges as to a group of facts should be given when the same has been already fully presented by the court in its main charge.</p> <p>4. —Alighting from Moving Train.</p> <p>Whether or not alighting from a moving train is negligence is a question of fact to be determined by the jury.</p>

<p>1. —Cancellation of Deed—Duress of Married Woman.</p> <p>In a suit by a widow to annul a deed to her homestead executed during the lifetime of her husband on the ground of fear of her husband, the following charge was given: “If you believe from the evidence that the plaintiff was induced by threats or acts of the husband to sign the said deed, and that she signed the same unwillingly, but you believe from the evidence that she acknowledged before the notary that she executed the same willingly, as required by law, and further believe from the evidence that the said Storms and Look and London had no notice of her unwillingness, if any, to execute said deed, then and in that event your verdict must be for the intervenor, Look, as to all such property, if he is not owner of all, and if not, as to such part as you believe he acquired and owns.” Held, not subject to the objection that it prevented a verdict for defendants if they knew of the unwillingness of the wife before the deed was executed, and not at the time the deed was executed; nor to controvert the proposition that the acknowledgment of a married woman together with the delivery of the deed, passes the title; and that the use of the word “not” was a self evident error and therefore harmless.</p> <p>2. —Charge—Harmless Error.</p> <p>A charge which permits the jury to find against a defendant as to a certain interest in the land in controversy only in the event they find that a codefendant was interested in the same, could not have prejudiced such defendant when his said codefendant had disclaimed all interest, and the verdict of the jury was against the defendant for the entire property.</p> <p>3. —Bill of Exception—Filed too Bate.</p> <p>The provisions of the statute which permit an Appellate Court under certain circumstances to consider a statement of facts filed after twenty days from adjournment, have no application to bills of exception.</p> <p>4. —Same—Right to Bill of Exception.</p> <p>Even though it appears that a party made proper effort and used due diligence to ■ obtain a bill of exception and was therefore entitled to a bill, still unless it appears that the party duly excepted to the ruling complained of in the bill the refusal to give the bill was harmless.</p>

<p>Appeal from the District Court of the Fifty-seventh Judicial District, Bexar County.</p> <p>Tried below before Hon. A. W. Seeligson.</p>

<p>Appeal from the County Court of Cameron County.</p>

Tried below before Hon. Ben. W. Fly. account, within the provisions of article 2323 Eevised Statutes, and being supported by the prescribed affidavit, in the absence of a counter 'affidavit by the appellant (defendant below) said account is considered proved, and to permit the defendant (appellant) to plead a counter claim or cross action, as an offset thereto, without a denial under oath of the verified account would defeat the purposes of the statute. Eev.

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

<p>1. —Brief—Insufficient Statement.</p> <p>Where the record does not show that a witness made any answer to a question .objected to, and made the basis of an assignment of error, the assignment is without merit. The “statement” in a brief should contain the evidence necessary to support the assignment of error without requiring the Appellate Court to examine the record for the evidence.</p> <p>2. —Headings—Refreshing the Memory.</p> <p>In a suit for the possession of a number of various articles constituting a well-boring outfit, it having been shown that the enumeration and description of said articles as contained in the petition was furnished to his counsel by the plaintiff from a list which the plaintiff knew to be correct, it was not error to permit the plaintiff to refer to said petition to refresh his memory as to said articles.</p> <p>3. —Evidence—Precise Objection.</p> <p>Only the precise objection to evidence as shown by the record will be considered on appeal'.</p> <p>4. —Contract for Boring a Well—Construction.</p> <p>When by a contract between plaintiff and defendants for boring a well it was stipulated that if no oil was found at a certain depth and the well was taken over by the oil company and any further boring was done it would be done by the plaintiff with no charge for the use of his machinery, the company to pay only the actual cost of such work, such contract did not give the company any right to seize plaintiff’s machinery for the purpose of boring the well deeper, much less did it give such right to parties who failed to show that they succeeded to the company’s rights under the contract.</p> <p>5. —Evidence of Ownership—Statement of Third Party.</p> <p>The statement of a third party as to his ownership of the property in controversy, made in the absence of the plaintiff and without authority from him, is not admissible in evidence against the plaintiff.</p>

<p>Appeal from the District Court of Fannin County.</p>

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

<p>Appeal from the County Court of Falls County.</p>

<p>Error from the District Court of Williamson County.</p>

<p>1. —Fraudulent Representations—Charge.</p> <p>In an action for damages by false representations alleged to have been made by defendant and his agent in procuring the contract, it was error to charge the jury that plaintiff must show such representations by defendant and his agent; making them by either was sufficient.</p> <p>2. —Same—Irrelevant Evidence.</p> <p>In an action to recover damages for false representations inducing the making of a contract evidence that plaintiff had endeavored to overreach or oppress defendant in the transaction and of advice given to defendant by his attorneys was not material to the issue and was prejudicial to plaintiff.</p>

<p>Disqualification of Judge—Mutual Insurance.</p> <p>A judge who is a holder of a policy in a mutual insurance company, payable to his wife on his death, but entitling him at the end of twenty years to participate in dividends from the accumulated profits, has such pecuniary interests in the result of a suit by the beneficiary of a policy against the company as to disqualify him from trying it.</p>

<p>When an appellant has failed to except to the findings of fact by the trial judge he can not complain of the same on appeal.</p> <p>2. —Change in Public Hoad—Power of Commissioner’s Court.</p> <p>The power to determine whether a proposed change in a public road would be for the benefit of the public, is vested in the Commissioner’s Court, and its decision in such eases can not be reviewed unless an abuse of said power is clearly shown. The mere fact that the proposed change would lengthen the road, is not sufficient.</p>

<p>1.—Blooding Land—Liability.</p> <p>The owner of land which he knows is liable to be flooded by water from the ditches of an adjacent irrigation plant, is not required to desist from planting crops on said land nor to build ditches or embankments to perfect his crops or land. It is the duty of the owner of the irrigation plant to so construct its ditches and use its property as not to injure others.</p> <p>2. —Same—Preventing Injury.</p> <p>Where one person" suffers injury by the carelessness of another, occurring unexpectedly, and in a transitory manner, the one so suffering must go to some trouble or expense to avoid or lessen the damage; but if the injury be a continuing one, and the person causing the same has equal knowledge of, and opportunity to prevent, the damage, it is his duty to prevent it, and he can not avoid responsibility by showing that the person injured might have avoided the damage by a slight expense.</p> <p>3. —Bill of Exception—Duty of Judge.</p> <p>It is the duty of a trial judge to hear courteous objections to evidence and rule upon the same, or to give a bill of exception to his refusal to hear such objections.</p>

<p>1. —Immaterial Variance—Substance of Issue.</p> <p>When plaintiff alleged that defendant’s wires were suspended over and upon plaintiff’s premises and the proof was that the wires were eight or ten feet distant from said premises, the variance was immaterial. The substance of the issue was the negligence of defendant in permitting one of its wires to fall and remain upon plaintiff’s premises. Courts disregard immaterial variances that mislead no one.</p> <p>2. —Repetition of Charges.</p> <p>Where, upon an issue of contributory negligence, the court in its charge fully covered the facts, it was not error to refuse a special charge repeating the submission.</p> <p>3. —New Trial—Newly Discovered Evidence.</p> <p>A motion for new trial on the ground of newly ■ discovered evidence is fatally defective which fails to show that any effort was made to secure the evidence although apparently available, and which motion is not verified.</p>

<p>1. —Contract of Employment—Pleading.</p> <p>In a suit for damages for the breach of a contract of employment, a pleading setting up a ratification and renewal of the contract by the defendant, considered and held not subject to the objection that it consisted of conclusions of the pleader.</p> <p>2. —Contract—Statute of Frauds.</p> <p>A paroi contract entered into to begin at a future date and to run a year from such future date, is within the statute of frauds, and a part performance of such contract does not remove the bar.</p> <p>3. —Same—Consideration.</p> <p>When the first contract was void because not to be performed within one year, a subsequent contract relating to the same matter can not be said to be void on the ground that the parties only bound themselves to do what they were already bound to do.</p> <p>4. —Contract of Employment—Breach—Pleading.</p> <p>In a suit for breach of contract of employment it is not necessary for the petition to allege that plaintiff after his discharge endeavored to find work, or the amount of his earnings. This is defensive matter.</p> <p>5. —Same—Duty of Employee.</p> <p>It is the duty of an employee whose contract of employment has been breached to use reasonable diligence to obtain other work.</p> <p>6. —Corporation—Statement of Deceased Officer.</p> <p>The statute prohibiting a party to a suit to testify as to statements of a deceased person can not by construction be extended to actions by or against corporations.</p> <p>ON REHEARING.</p> <p>7. —Void Contract May be Considered, When.</p> <p>A void contract may be looked to for the terms of any new arrangement made with express reference to the subject matter of the void contract.</p>

<p>1.—Vendor and Vendee—Contract—False Representations.</p> <p>Where the representations of a vendor as to the value of the subject matter of the contract are made as a statement of fact, and not as a mere expression of opinion, and with the knowledge that the purchaser had not seen the property and would not investigate the truth of the representations, such representations are material, and their falsity sufficient cause for annulling the contract of purchase.</p> <p>8.—Same—Defense—Pleading.</p> <p>In a suit to enforce a contract to purchase land, the defendant alleged, in substance, that he was unlearned in the law; that he was not aware that by accepting the vendor’s offer and closing the deal by telegram that a contract, binding under ordinary circumstances, had been made by him; and that it was always his intention to examine the property before finally concluding the trade, in order to verify the representations of the vendor. Held, not inconsistent with other allegations to the effect that he relied on the representations of the vendor as to material facts.</p>

<p>1. —Bill of Sale—Construction—Charge.</p> <p>In a suit for the possession of certain cattle the defendant claimed under a bill of sale which, after describing certain stock specifically, contained the following language: “all other livestock which I own in O. and W. Counties,” and “This is intended to include all personal property of whatever description which I now possess.” The cattle in controversy were on the range in W. County at the time of the execution of the bill of sale. Held, the title to the cattle passed to the defendant by the terms of the bill of sale if they were the property of the vendor, and it was error to submit to the jury the question of the intention of the parties.</p> <p>2. —Paroi Gift—Void.</p> <p>Under the provisions of article 2546, Revised Statutes, á paroi gift of cattle without change of possession is void as against an innocent purchaser from the donor.-</p>

<p>1. —Mutual Insurance Companies—Garnishment—Act Construed.</p> <p>The provisions of chapter OIX of the general laws of 1903 apply to mutual insurance companies organized under laws in force previous to that time as well as to such companies as have been organized under that law, and the securities deposited by such companies with the State Treasurer are subject to garnishment.</p> <p>2. —Corporate Name—Change—Estoppel.</p> <p>When a corporation uniformly does business, and suffers a judgment to be obtained against it, under a name slightly different from that given in its charter, it will be held to have changed its name in fact, although not in the manner required by law, and will not be heard toi question the validity of a judgment so obtained and subsequent garnishment proceedings based thereon.</p>

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

<p>Appeal from the District Court of Lubbock County.</p>

<p>Appeal from the District Court of Erath County.</p>

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

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

<p>Appeal from the District Court of Lamar County.</p>

<p>1. —Death of Son—Measure of Damage.</p> <p>In a suit by parents for the negligent killing of their son who was contributing to their support, the measure of damage is such a sum as placed at legal rate of interest would yield the amount annually that the son contributed to the support of the parents.</p> <p>2. —Same—Excessive Verdict.</p> <p>Where it appeared from the evidence in a suit by parents for the negligent killing of their son that the deceased was 22 years of age at the time of his death; that he was earning $70 per month, with fair prospect of promotion and larger wages; that during the year preceding his death he had contributed $100 to the support of his parents, and the total amount contributed by him up to that time was only about $200, a verdict for $5,000 was excessive, and a remittitur of $1,500 required.</p>

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

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

<p>1. —Damages—Personal Injury.</p> <p>A verdict for $1,250 damages to a child, a passenger, by the fall of a window sash of the car upon her hand, sustained as not excessive.</p> <p>2. —Error—Dill of Exceptions—Deposition.</p> <p>A motion to quash a deposition on the ground that the officer’s certificate was not in compliance with law having been overruled because made too late, such ruling could not be held error when the bill of exceptions thereto did not show the certificate in question and. thus disclose merit in the objection.</p> <p>3. —Damages—Mental Suffering of Child.</p> <p>A child four years old is not incapable of mental suffering from a physical injury.</p> <p>4. —Damages—Evidence—Musical Talent.</p> <p>Evidence was admissible to show prospective musical talent of a child four years old, in order to enhance damages from an injury crippling the fingers of her hand.</p>

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

<p>Appeal from the 55th District Court, Harris County.</p> <p>Tried below before Hon. W. P. Hamblen.</p>

<p>1.—County Treasurer—Misappropriation—Subrogation.</p> <p>Where a county treasurer used the county’s money to discharge a mortgage lien on his wife’s separate property the county will be subrogated to the rights of the mortgagee under the mortgage, and this even though the mortgage is formally released by the mortgagee.</p> <p>ON BEHEABING.</p> <p>8.—Assignment of Error—Proposition—Statement—Insufficiency.</p> <p>An assignment of error based upon the refusal of the trial court to suppress depositions on the ground that certain written memoranda referred to in the answers of the witness were not attached to said answers, will not be considered when it does not affirmatively appear from the assignment or the proposition thereunder or the statement that such memoranda or copies thereof were not in fact attached to the answers of the witness.</p> <p>3. —Same—Rule 31 Enforced.</p> <p>An assignment of error will not be considered when there is no statement or an insufficient statement subjoined in appellant’s brief.</p> <p>4. —liability for Money Received.</p> <p>One who receives money in any transaction, even though the money be stolen, is not liable to the true owner either for the specific money or its equivalent, unless he actually knows at the time of its receipt that it does not belong to him from whom it is received..</p>

<p>1. —Warrantor—Cost of Suit—Liability.</p> <p>The original warrantor of title to land when the title fails is responsible, in the discretion of the trial court, for all the costs of suit involving the title although there are several intermediate vendors and warrantors between the plaintiff and such warrantor who are parties to the suit. Appellate courts will not reverse the ruling of the trial court as to costs unless it plainly appears from the record that the discretion of the court has been abused.</p> <p>2. —Judgment on Warranty—Interest.</p> <p>Interest is properly allowed in a judgment against a warrantor on his covenant of warranty from the date of the eviction of the warrantee or a judgment of eviction.</p> <p>3. —Partial Failure of Titles—Liability of Warrantor.</p> <p>When land is conveyed by metes and bounds with covenant of general warranty and the title to a part of it fails the warrantor is liable on his covenant whether or not the grantee knew at the time of purchase that a part of the land was enclosed and in the adverse possession of a third person.</p> <p>4. —Deed—True Consideration.</p> <p>Parol evidence is always admissible to prove the true consideration for a deed, and when property constitutes part of the consideration its reasonable value may be shown.</p> <p>5. —Breach of Warranty—Measure of Damage.</p> <p>In case of a partial breach of a covenant of warranty the measure of damage is the actual value of the particular lot of land lost, as compared with the balance of the land, assuming the price agreed upon by the parties to be the value of the whole.</p> <p>6. —Same—Deficiency in Quantity.</p> <p>The rights of a warrantee are different in a case where the title to a part * of the land fails and where there is merely a deficiency in the estimated quantity within the metes and bounds.</p>

<p>1. —Trespass to Try Title—School Land—Contemporaneous Applications.</p> <p>In a suit of trespass to try title to public school land the rule that the plaintiff in such suit must recover on the strength of Ms own title, applies; and where it appeared in such suit that the plaintiff and defendant filed their applications to purchase the land in controversy with the county clerk of the proper county at the same instant of time, the plaintiff failing to show a better right to the land was not entitled to recover. The fact of prior possession is of no avail in such case.</p> <p>2. —Improvements in Good Earth.</p> <p>In order to constitute a person a possessor of land in good faith he must not only believe that he is the true owner, but he must be ignorant that Ms title is contested by any one claiming a better title. The value of improvements made after suit filed can not be recovered.</p> <p>3. —Public School Land—Act Construed.</p> <p>Under the law of 1901 (Acts of 1901, p. 292), the public school land is awarded to the first applicant who is able to make the affidavit as to actual settlement, and comply with the other requirements of the law; and the fact that some other person may have preceded him in settling thereon will not deprive Mm of the right thus guaranteed.</p> <p>4. —Home Section—Additional Land.</p> <p>The right to additional land, under the statute, is dependent on the right to the home section, and one failing to show title to the home section can not hold additional land.</p> <p>on beheabinq.</p> <p>5. —Same.</p> <p>The law places every qualified purchaser of public school land on the same footing, and while it requires of the homeseeker that he shall actually occupy the land he desires for a home it does not give Mm any advantage over the man who may desire the land as an addition to Ms home section, as to both of them the application fixes the right.</p> <p>6. —Contemporaneous Applications—Effect.</p> <p>It seems that applications to purchase public land made at the same time by different parties would nullify each other and a subsequent application would secure the land.</p>

<p>1. —Trespass to Try Title—Boundary—Burden of Proof.</p> <p>In trespass to try title, the issue being one of boundary, the burden is on the plaintiff to show that he has title to the land claimed by him. •</p> <p>2. —Same—Actual Survey—Presumption.</p> <p>The presumption is that the surveyor actually ran upon the ground all the lines called for by him in the field notes certified to by him, and the burden of proving the contrary is upon the party denying this fact.</p> <p>3. —Boundary—Evidence,</p> <p>In a suit of trespass to try title, the issue being one of boundary, evidence considered, and held insufficient to support the verdict of the jury.</p>

<p>1.—Promissory Mote—Attorney’s Fee—Pleading and Proof.</p> <p>Where a promissory note stipulates for an attorney’s fee if the note is placed in the hands of an attorney for collection, in case of suit upon the note it is necessary to plead and prove that the same has been so placed. But if the stipulation is that the attorney’s fee shall be paid in case suit is brought on the note, it is not necessary to plead or prove the suit, for that fact is established by the proceeding itself.</p> <p>Z.—Debt of Ancestor—Assumption by Heirs.</p> <p>Although heirs may not be liable for the debts of their ancestor, still if they assume the same by executing their note therefor with mortgage upon land inherited from such ancestor which otherwise would be exempt, they thereby make such debts their own and their obligation may be enforced.</p> <p>3,—Pretended Vendor’s Lien—Knowledge of Facts—Homestead Exemption.</p> <p>Evidence considered, and held to show that the purchaser of a note purporting to have been given for the purchase money of land, knew that such was not the fact, and that the land on which a lien was given to secure the note, was the homestead of one of the makers.</p> <p>4. —Widow—Mortgage of Homestead.</p> <p>A widow may mortgage her homestead.</p> <p>5. —Specific lien—Pleading and Proof.</p> <p>The designation by a plaintiff of the lien, which he seeks to have foreclosed, as a vendor’s lien, will not preclude the court from foreclosing the lien, though it prove to be a mortgage lien.</p> <p>6. —Homestead—Foreclosure of Lien—Wife not necessary Party, When.</p> <p>In a suit to foreclose a lien upon the homestead, the wife is not a necessary party when her homestead right could not defeat the foreclosure.</p> <p>7. —Married Woman—Judgment Against.</p> <p>It is error to render a personal judgment against a married woman who is sued with her husband for a community debt.</p> <p>8. —Incumbrance—Adjustment of Equities.</p> <p>Out of a tract of land incumbered by mortgage the children conveyed to the surviving widow a certain number of acres in severalty in consideration of her releasing her homestead claim to the remainder of the land. In a suit by the creditor to foreclose the mortgage it was error to charge the portion of the land relinquished to the children with the debt, and exempt that set aside to the widow, in the absence of evidence that the children had assumed the payment of the mortgage debt.</p>

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

<p>1. —Street—Ownership of Pee—Bight of Action.</p> <p>Owners of abutting property own the fee to an adjacent street and may maintain a suit of trespass to try title against anyone claiming and holding the street adversely to them and the public.</p> <p>2. —Trespass to Try Title—Common Source—Presumption.</p> <p>Where the plaintiff and defendant in trespass to try title claim under a common source the defendant can not defeat a recovery by plaintiff by merely showing that a person other than the common source at one time held the title; he must go further and show at least prima facie that the common source never acquired such title.</p> <p>3. —Street—Limitation—Statute Construed.</p> <p>The Act of 1887, amending article 3200 of the Revised Statutes, was onily intended to protect the rights of the city and the pulbie against limitation, and not the right of private owners to the fee in the streets, hence the right of private owners may be lost by adverse possession.</p> <p>4. —Same—Continuity of Possession.</p> <p>Where one in adverse possession of land conveys the same such conveyance breaks the continuity of adverse possession in the absence of evidence that his continued possession was under and for his grantee.</p>

<p>1. —Conversion of Property—Pleadings—Evidence—Charge.</p> <p>In a suit for damages for the conversion of property where defendant’s pleadings did not allege that the property in question was delivered to defendant by plaintiff’s agent, and there was no evidence of the fact, it was error to submit such issue to the jury.</p> <p>2. —Agency—Scope—Evidence.</p> <p>One authorized by the owner to procure and bring a few bottles of whiskey from the owner’s home to his place of business is not thereby authorized to deliver the whole of the whiskey at the owner’s home to a third party, and such evidence is not sufficient to raise the issue of the agent’s authority to do so.</p> <p>3. —local Option—Seizure of Whiskey—Authority—Defense.</p> <p>Where a sheriff without writ or other lawful process seizes whiskey in a local option district, in a suit by the owner from the value of the whiskey, the sheriff can not defend by showing that after the seizure he levied an execution on the whiskey, sold it thereunder and applied the proceeds to the payment of the owner’s debt. A claim for damages growing out of a tort can not be offset by a debt.</p>

<p>Appeal from the District Court of Liberty County.</p>

<p>1. —Railroads—Nuisance—Limitation.</p> <p>In the ease of the construction by a railroad company of a water-tank and turntable on its right of way in such proximity to private property as to constitute a nuisance, limitation would not begin to run until the establishment of such structures.</p> <p>2. —Same—Damage to Private Property.</p> <p>The construction by a railroad company of a water-tank and turntable, even though on its own right of way, in such proximity to private property as to depreciate the value of the same and to cause the occupants of the dwelling thereon annoyance and discomfort, will give the owner of the property a cause of action against the company.</p> <p>3. —Same—Measure of Damage.</p> <p>Where a railroad company constructed a water-tank, and about _ a year thereafter a turntable on its right of way, the jury are justified, in arriving at the damage resulting from both to private property, in deducting from the value of the property before the erection of the water-tank the value of the property after the construction of the turntable, as the proper measure of damage.</p> <p>4. —Same—Double Cause of Action.</p> <p>A recovery against a railroad company for injury to real estate occupied by the plaintiff and for personal annoyance, is not a double recovery.</p> <p>5. —Railroads—Nuisance—liability.</p> <p>A railroad company is liable to the owners of private property for annoyance, discomfort, etc., if the same amount to a nuisance, without regard to the degree of care exercised by the company.</p> <p>6. —Variance.</p> <p>Where a plaintiff sues for damages resulting to himself and wife alone from a nuisance, the admission of evidence to prove, and a charge authorizing a recovery for damages to the entire family, is reversible error.</p>

<p>1. —Carriers of Live Stock—Damage—Pleading.</p> <p>In a suit against two carriers for damage to a shipment of cattle, where the plaintiff alleges that the two carriers are really one and the same line of road, operated by the same management, an exception to the plaintiff’s petition on the ground that the same was insufficient in regard to the times and places of delay and rough handling, is properly overruled in the absence of specific denial of the identity of the two roads.</p> <p>2. —Same—Evidence.</p> <p>In a suit for damage to a shipment of cattle caused by rough handling, testimony that other cattle in the same train, not belonging to plaintiff, were killed en route, was competent to prove rough handling, and this without pleading such fact.</p> <p>3. —Cattle—Market Value—Evidence.</p> <p>A witness who gets his information from reading the market reports may testify as to the market value of cattle in a certain market on a certain day, though he can not testify to such fact from information derived solely from what others told him.</p>

<p>Appeal from the District Court of Dickens County.</p>

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

<p>1.—Breach of Contract—Special Damage—Pleading.</p> <p>In a suit for special damages for breach of a contract to- return within a reasonable time certain rented personal property, pleading considered, and held sufficient as against a general demurrer. As against a general demurrer every reasonable intendment will be indulged in favor of the pleading.</p> <p>2. —Same—Notice of Special Damage—Case Followed.</p> <p>It is not necessary that notice be given at the time a contract is made of special damage likely to result from a breach of the same, provided such notice is given before such damage results and in time for the defendant to have avoided the same by compliance with his contract. Bourland v. Choctaw 0. & Gr. Ry. Co., 99 Texas, 407, followed.</p> <p>3. —Bailee—Liability.</p> <p>A bailee is required to exercise ordinary care to preserve the property in his custody and is liable only for such injuries as proximately result from his failure in this respect. Where one renting a tent permitted it to be used at a different place and for a different purpose from that specified in the rent contract, he would not be liable for injuries to the tent while being so used unless the injuries were the result of negligence.</p> <p>4. —Same—Prima Facie Case—Charge.</p> <p>Evidence that an article was in good condition when delivered to a bailee and in a damaged condition when returned, might make a prima facie case of liability against the bailee, but it would not' be proper for the court to so charge the jury.</p> <p>5. —Verdict Contrary to Evidence.</p> <p>In a suit for damages for breach of contract, evidence considered, and held insufficient to support a verdict for defendant.</p>

<p>Appeal from the District Court of Tarrant County.</p>

<p>1. —Conditional Certificate—Disposition by Will—Act Construed.</p> <p>The inhibition of the Act of the Congress of the Republic of Texas, approved January 4, 1839, against the sale of a conditional certificate, did not apply to the disposition by will of such certificate, especially in the ease of one who had fully complied with the provisions of said Act prior to the making of his will.</p> <p>2. —Patent to Heirs—Naked legal Title, When.</p> <p>Where the owner of a land certificate has previously sold the same, the issuance of the patent to his heirs vests them with only a naked legal title which they hold in trust for the owner of the certificate.</p> <p>3.—Trespass to Try Title—Legal Title.</p> <p>The holder of the naked legal title may maintain an action of trespass to try title, especially against a trespasser.</p>

<p>Appeal from the District Court of Hopkins County.</p>

<p>1. —Accident Insurance—Intentional Killing—Policy Construed.</p> <p>In a suit upon an accident insurance policy where the petition alleged that the insured was intentionally killed by a third party, and the policy provided that where the injury resulted from the intentional act of the insured or any other person, the amount payable should be one-tenth of the amount which otherwise would be payable under the policy, the beneficiary was entitled to recover only one-tenth of the principal sum ($500) and a plea to the jurisdic.tion of the County Court should have been sustained.</p> <p>2. —Same.</p> <p>The word “injury,” as used in said policy, includes fatal as well as nonfatal injuries.</p> <p>3. —Agreed Pacts—Waiver of Demurrers.</p> <p>The rule that the submission of a case on an agreed statement of facts is a waiver of all demurrers and issues arising on the pleadings, is not applicable when the question of jurisdiction is raised.</p>

<p>1. —Charge—Omission—Special Charge.</p> <p>Where in a suit against a city for personal injuries caused by a defective sidewalk the court charged fully on contributory negligence and the defendant desired a particular phase of contributory negligence submitted to the jury it should have requested a special charge submitting such issue and stating a correct proposition of law.</p> <p>2. —Defective Side-Walk—Personal Injuries.</p> <p>In a suit against a city for personal injuries caused by a defective sidewalk, charges considered, and held correct.</p> <p>3. —Same—Safe and Unsafe Pass-Ways—Contributory Negligence.</p> <p>Where there are two passways equally convenient, one safe and the other unsafe, and a pedestrian knowingly uses the unsafe way and is injured, it is a question for the jury whether or not his act was that of an ordinarily prudent person.</p>

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

<p>Appeal from the District Court of Smith County.</p>

<p>Error from the District Court of Galveston County.</p>

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

<p>1. —Telephone Message—Delay in Delivering.</p> <p>In a suit against a telephone company for delay in delivering a message, where it appeared from the undisputed evidence that even if the message had been promptly delivered the plaintiff, to whom it was sent, could not have reached his sick child before its death, because of a delayed railway train, the evidence was insufficient to sustain a verdict against the company. .</p> <p>2. —Same—liability—Notice of Urgency.</p> <p>A telephone company is not liable for delay in delivering a message unless notified of the fact that it is urgent, either by actual or constructive notice.</p> <p>3. —Same—Same.</p> <p>Where one telephone company is the agent of another company for the purpose of receiving messages to be transmitted over the line of the principal company, or where there is a partnership between the two companies, the negligence of the receiving company is attributed to the other.</p> <p>4. —Negligence—Probable Consequence.</p> <p>A telephone company is not liable for consequences, from delay -in delivering a message, of which it has no notice either in the call itself or otherwise.</p>

<p>1.—Telegraph—Mental Suffering—Law of Place of Contract.</p> <p>The liability of a telegraph company for merely mental suffering from failure to deliver a death- message, is dependent on the law of the place of contract; no action lies therefor in Texas for nondelivery of a telegram sent from Missouri, where such damages were not recoverable, to the plaintiff in Texas.</p> <p>2.—Same—Misleading Advice.</p> <p>A service message from Texas advising the sender of a dispatch, from Missouri to Texas of the company’s inability to deliver it, reporting the party addressed to be out of town, can not be held to have made the company liable for mental suffering on the ground that the sender was misled thereby, where the information given was true and the sender knew that the person addressed was a railway engineer who, at such time, would regularly be out of town on his run.</p>

The judgment appealed from was affirmed on March 6, 1907, and the opinion following was pronounced on appellant’s motion for rehearing. The trial court gave a peremptory charge to find for defendant.

<p>Appeal from the District Court of Ellis County.</p>

<p>1. —Railroad—Damage to Property—limitation.</p> <p>Limitation begins to run against a claim for damages to adjacent private property not necessarily from the time the railroad is constructed, but from the time when, by reason of the use to which the road is put, the property is damaged.</p> <p>2. —Same.</p> <p>Where a railroad company constructed a spur track near plaintiff’s property and used the same only occasionally and for light trains from which no injury resulted to said property, but afterwards extended the track so as to connect with the main line of another railroad and used it as a thoroughfare for long and heavy trains whereby plaintiff’s property was damaged, plaintiff’s cause of action did not arise until the damage accrued, and the period of limitations should be computed from that time.</p>

<p>1. —Practice—Rule 31 Enforced.</p> <p>When no reference is made to the pages of the record where the evidence, set out in a statement, may be found, an assignment of error based upon such evidence, will not be considered.</p> <p>2. —Personal Injuries—Measure of Damage—Charge.</p> <p>In a suit for personal injuries, a charge which, after telling the jury if its verdict should be for the plaintiff to assess his damages at such sum of money as, if paid now, would fairly compensate him for the injury sustained, then enumerates the elements of damages to be considered in estimating them, is not obnoxious to the objection that it authorized double damages.</p>

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

<p>Appeal from the District Court of the 57th Judicial District, Bexar County.</p> <p>Tried below before the Hon. A. W. Seeligson..</p>

<p>Appeal from the County Court of Harris County.</p>

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

<p>Appeal from the District Court of Jones County.</p>

<p>1. —Bill of Exceptions—Stating Excluded Evidence—Practice.</p> <p>Permitting counsel to state in the hearing of the jury what he expected to prove by certain witnesses, whose testimony had been excluded upon objection by the opposite counsel, for the purpose of taking a bill of exception to the ruling of the court, is a matter within the discretion of the trial court, and will not be reviewed in the absence of an affirmative showing that the discretion has been abused to complainant’s substantial injury.</p> <p>2. —Insufficient Culverts—Overflow—Evidence.</p> <p>In a suit for damage to crops alleged to have been caused by insufficient culverts in a railroad embankment it was permissible for defendant to prove that at a point in the valley near plaintiffs’ land the water receded as quickly after the embankment was built as it did before, the amount of rainfall being the same.</p> <p>3. —Same—Charge.</p> <p>In a suit as above in which one of the alleged causes of damage to plaintiffs’ crops was the increased velocity of the water through the culverts, a charge which instructed the jury to find for plaintiffs if any or all of the damage done plaintiffs was caused by the dam, embankment and culverts or openings, was not subject to the objection that it omitted said alleged cause of damage.</p>

<p>1. —Absent Justice of the Peace—Statute Construed.</p> <p>It was the intention of the statute (art. 1566, Rev. Stats.), in case of the absence of a justice of the peace, to authorize the nearest justice of the peace in the county to perform the duties of such absent justice, but the duties must be performed by such nearest justice within his own precinct.</p> <p>2. —Issuance of Citation—Irregularity—Waiver.</p> <p>The issuance of a citation by a justice of the peace outside the limits of his own precinct while acting for an absent justice is merely an irregularity affecting the jurisdiction over the person of the defendant, and may be waived by him by failing to promptly move to quash the citation and thereby submitting himself to the jurisdiction of the court.</p> <p>3. —Acting Justice—Attachment—Void.</p> <p>A writ of attachment issued by a nearest justice of the peace, while acting for an absent justice, outside the limits of his own precinct, is void.</p> <p>4. —Exemplary Damages—Basis for.</p> <p>In the absence of a recovery for actual damages caused by the issuance of an attachment exemplary damages can not be recovered.</p> <p>5. —Absence of Issue—Refusal of Charge.</p> <p>It was not error to refuse a charge based upon the existence of a partnership and submitting certain offsets claimed by defendant when such charge was not warranted by the evidence.</p> <p>ON BEHEABING.</p> <p>G.—Failure of Court to Act on Motion—Waiver.</p> <p>When the record fails to show that a motion to quash an attachment was presented to or acted upon by the trial court it will be presumed that it was waived.</p>

<p>Order of Sale—Irregularities—Invalid Sale.</p> <p>A sale made by virtue of an order of sale which did not have the seal of the court attached, which failed to name all the parties to the suit, which failed to specify out of whose property any unpaid balance of the judgment should be made, was so irregular as to authorize the court to set aside the same when the property sold for less than half of its cash market value. The inadequacy of price for which the property sold will be attributed to the irregularities in the writ.</p>

<p>1. —Carrier—Unloading Stock.</p> <p>A carrier is liable for injury to an animal in taking it from the car, though it was unloaded by the shipper himself, where the injury was caused by requiring it to be unloaded at depot platform not adapted to the purpose.</p> <p>2. —Evidence—Opinion as to Market Value.</p> <p>A witness may qualify himself to give an opinion as to market value of a race horse at the place of destination of shipment though he had never seen a sale of stock there.</p>

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

<p>2.—Husband and Wife—Homestead—Parties.</p> <p>The wife has such an interest in the homestead as to entitle her to maintain alone an action to cancel a conveyance of it which she had joined her husband in making, being induced thereto by his fraud, when he has abandoned her and refuses to join in the suit, though she remains in undisturbed possession.</p> <p>2. —Conveyance obtained by Fraud—Representations—Promise.</p> <p>Fraudulent representations which will avoid a contract may consist in false statements as to existing facts or promises as to the future not intended to be performed.</p> <p>3. —Same—Homestead—Consideration—Innocent Purchaser.</p> <p>The wife’s joinder in a conveyance of the homestead was obtained by representations to her by the husband that the consideration was, as recited in the deed, partly a cash payment, and that this would be used in the purchase of another home. Held, that the consummation of the transaction by the husband’s delivery of such deed to the grantee on consideration, instead, of settlement of an existing debt was a departure from the contract to which the wife agreed, and the conveyance was sustainable only in case the grantee acted innocently and in good faith.</p> <p>4. —Same—Notice.</p> <p>Notice may be inferred from circumstances which would put the person on inquiry, and the fact that the purchaser consummated the transaction for a consideration different from that recited and that the deed was prepared by him with such false recital of a cash consideration was sufficient to support a finding against him on the issue of good faith.</p> <p>5. —Valuable Consideration—Preexisting Debt.</p> <p>In the opinion of Chief Justice Fisher, a purchaser of the homestead in consideration of a pre-existing debt from the grantor is not an innocent purchaser for' value nor entitled as such to defeat the wife’s action to set aside the conveyance because her joinder in and acknowledgement thereof was obtained by fraud practiced on her by her husband.</p>

<p>Appeal from the District Court of Jefferson County.</p> <p>Tried below before Hon. L. B. Hightower, Jr.</p>

<p>Appeal from the District Court of Brazos County.</p>

<p>1. —Personal Injuries—Negligence—Evidence.</p> <p>In a suit by a locomotive engineer for personal injuries caused by a sudden, violent and unexpected coupling of a switch engine onto his locomotive, evidence considered, and held sufficient to support the finding of a jury that the defendant company was guilty of negligence.</p> <p>2. —Same—Measure of Damages—Euture Consequences—Charge.</p> <p>In a suit for personal injuries, charge considered, and held not obnoxious to the objections that it authorized a recovery for" double damages, nor that it was misleading. In such a suit, in estimating the damages, the jury may take into consideration such consequences as will reasonably and probably ensue in the future.</p> <p>3. —Locomotive Engineer—Assumed Bisk.</p> <p>The same rule as to assumed risk applies to an engineer operating a locomotive as to any other servant using any other appliance or machinery. In no case does the servant assume the risk created by the negligence of the master.</p> <p>4.—Verdict, not Excessive.</p> <p>A verdict for $10,000 in favor of an, engineer forty-four years of age, in good health, and earning $1,800 a year, but who by reason of the injuries was permanently disabled from pursuing his profession, was reduced in weight from 165 to 140 pounds, could not do any heavy work and suffered constant pain, was not excessive.</p>

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

<p>1. —School Land—Application to Purchase—Clerical Mistake.</p> <p>Where, in an application to purchase school land and in the obligation for the balance of the purchase money accompanying the application, it appeared from the papers themselves that the amount named in the obligation as the balance of the purchase money to be paid was a clerical mistake, the application to purchase will not be thereby vitiated. Such mistake will correct itself.</p> <p>2. —School Land—Withdrawal of Application to Purchase.</p> <p>Where an application to purchase school land was lost or mislaid in the Land Office and the applicant, in reply to an enquiry about the same, was told by the Commissioner that no such application was in his office, and the applicant thereupon withdrew the deposit which he had made in the State Treasurer’s office and made no effort to assert his rights, such acts will be held to constitute an abandonment of his claim and rights as against a subsequent applicant.</p>

<p>Appeal from the District Court of Tarrant County.</p>

<p>Landlord and Tenant—Judgment—Fundamental Error.</p> <p>In a suit by a landlord against a tenant to recover title and possession of certain teams and farming implements furnished by the landlord to the tenant to make the crop, where the tenant recovers damages upon a plea in reconvention, but admits the landlord’s title to the property sued for, it was fundamental error to refuse to render judgment for the landlord for said property.</p>

<p>. 1.—Alighting at Wrong Station—Negligence of Carrier—Damages.</p> <p>Where a female passenger is caused to alight at a wrong station by the negligence of defendant’s porter in calling a wrong name for the station, and the passenger in order to reach her destination travels by buggy over a rough road in a cold and damp night, and sickness results from the exposure, the passenger is not guilty of contributory negligence as matter of law.</p> <p>2.—Same—Contemplated Damages.</p> <p>Where a carrier breaches its contract by failing to convey a passenger to her destination, it can not be said that it was not contemplated that the passenger would continue her journey at the earliest possible period consistent with prudence to her welfare. Evidence considered, and held sufficient to sustain a verdict against the defendant. '</p>

<p>Appeal from the District Court of Harrison County.</p>

<p>Dismissal of Appeal—Reinstatement.</p> <p>When an appeal has been dismissed on motion of appellant before appearance by appellee the case will not be reinstated upon motion of appellee in order that appellee might suggest delay and ask for the statutory damages. Appellant has the right to have his appeal dismissed before appearance by appellee.</p>

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

<p>Error from the District Court of Hill County.</p> <p>Tried below before Hon. W. C. Wear</p>

<p>1. —Community Property—Presumption.</p> <p>The presumption is that property acquired during marriage is community property, and the burden rests upon him asserting the contrary to introduce evidence reasonably sufficient to overcome this presumption. Evidence considered, and held insufficient to show that the land in controversy was the separate property of a deceased father.</p> <p>2. —Suit on Community Debt—Parties.</p> <p>Inasmuch as the surviving partner of the community may convey community property in payment of a community debt, a sale of such property under a judgment for such debt against the survivor alone will pass the title to such property as against the children of the deceased spouse.</p> <p>3. —Letters as Evidence—Proqf of Execution.</p> <p>It is not error to exclude letters and written agreements purporting to have been written by an agent in the absence of evidence of their execution, and that such person was in fact authorized to sign them.</p>

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

<p>Death—Negligence—Pact Case.</p> <p>In a suit by a widow and minor children for the death of the husband and father, evidence considered, and held sufficient to support a finding that defendant’s engineer was negligent in failing to heed a slow-down signal given by deceased; that said engineer was habitually reckless in the handling of his train, to the knowledge of the defendant; that the timbers of the cars were old and weakened; and that the deceased was not guilty of contributory negligence in riding upon the stringer of the car.</p>

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

<p>1. —Interrogatories pro oonfesso.</p> <p>Unanswered interrogatories propounded by a plaintiff to a defendant must be taken as confessed in the absence of pleading and proof which would excuse the failure to answer.</p> <p>2. —Deed from Father to Son—Presumption.</p> <p>Prima facie a deed from a father to his son based upon a nominal consideration, and conveying an interest in community lands after the death of the mother will be presumed to have been executed in discharge of the son’s interest in the community.</p> <p>3. —Probate of Will—Order Conclusive.</p> <p>The order of a probate court admitting a will to probate is a judgment in every essential sense, and as such, is immune from collateral attable, and is conclusive of the matters therein adjudicated.</p> <p>4. —Same—Proceeding to Set Aside—Limitation.</p> <p>Where a probate order is obtained by fraud, the four year statute of limitation will not bar a direct and timely proceeding to annul the order after the discovery of the fraud.</p> <p>5. —Will—Revocation—Statute.</p> <p>By our statutes no written will may be revoked except by written revocation or by destruction of the will by the testator or by his order in his presence.</p>

<p>1. —Mandamus—Contract—Pleading.</p> <p>In a mandamus suit to compel a tax collector to comply with an order of the Commissioners’ Court to pay over money to a third party due on a contract for the collection of delinquent taxes, it was not necessary to set out the contract in detail; it was sufficient to state enough to show the interest of the plaintiffs in the contract and the order of the court.</p> <p>2. —Same—Enforcement of Contract—Remedy.</p> <p>A party with whom a Commissioners’ Court had made a contract for the collection of delinquent taxes was entitled to mandamus to compel the tax collector to pay over to him the commissions to which he was entitled on the taxes collected, in obedience to an order of said court to that effect, and this although such party had an adequate remedy at law.</p> <p>3. —County Funds—Authority of Commissioner’s Court.</p> <p>Under the general powers vested in the Commissioners’ Court to direct how county funds shall be paid out said court has authority to order the tax collector to pay to a third party ten percent of the delinquent taxes collected by said third party under contract with the court. Rev. Stats., 828.</p> <p>4. —Delinquent Taxes.</p> <p>The Commissioner’s Court has authority to make a contract for the collection of delinquent taxes.</p>

<p>Filing Suit—Issuance of Process—limitation.</p> <p>Where plaintiff filed his petition on December 27, 1904, at which time he was notified by the clerk that citation would not issue until a cost bond was filed; on January-2, 1906, a rule for cost was entered upon motion of the clerk, and complied with by the plaintiff on March 26, 1906, but no citation issued until September, 1906, nor was any request made for the issuance of citation earlier, the statute of limitation was not interrupted by the filing of the petition.</p>

<p>1. —Judgment—Sheriff’s Deed—Variance.</p> <p>Where a sheriff’s deed, recited that the sale was made by virtue of an execution issued out of the District Court and that the judgment bore eight percent interest, evidence of a judgment in the County Court bearing ten percent interest is properly admitted when said judgment as to dates, amounts, parties, etc., is identical with the judgment described in the sheriff’s deed, and when it is shown that no such judgment was rendered in the District Court, that the papers in the case were lost, and that there was no County Court execution docket or execution to be found.</p> <p>2, —Sheriff’s Deed—Description.</p> <p>Where the land sued for, 321 acres, was a part of a tract of 554 acres which was itself carved out of the if. E. corner of a league, and a sheriff’s deed to the land in controversy described it as follows: “354.4 acres of land, the same being pointed out to me by 0., defendant, as his own property and a part of the headright of the L. league and being situated in the County and State aforesaid, and described as follows, to wit: Commencing at the 2ST. E. corner of said survey, and thence running west to a point sufficient by running thence south to the south boundary of said survey, by thence running east to the southeast corner of said survey, from thence north to the place of beginning, so the said survey shall contain 354.4 acres of land . . . and for further description see the records of the county of Jasper,” held, when construed in connection with extrinsic evidence, that the terms in said deed, “hi. B. corner of said survey,” “south line of said survey,” “S. E. comer of said survey” must be referred to the lines and comers of the 554 acre tract and not of the league.</p> <p>3.—Description in Deed—Reference to Records.</p> <p>While it has been held that a general reference in a deed to the records of the county for description is insufficient, still when the description is ambiguous, and the deed recites that the land was pointed out by the grantor as his property and the records show but one deed to the grantor it is not error to consider the record in aid of the description in the deed.</p>

<p>Appeal from the District Court of the 45th judicial district, Bexar County.</p> <p>Tried below before the Hon. J. L, Camp.</p>

<p>Error—Charge—Statement of Facts.</p> <p>Errors assigned to the charge of the court will not be considered in the absence of a statement of facts.</p>

<p>1. —Injunction—Venue.</p> <p>A writ of injunction, sued out by a stranger to the judgment, to restrain an execution sale, is returnable to the county in which the property levied on is situated when the validity of the judgment itself is not attacked.</p> <p>2. —Discontinuance—Statute Construed.</p> <p>An entry of discontinuance, purporting to be made by the plaintiffs but signed by attorneys for plaintiffs, is valid and effective under art. 1258, Rev. titats.</p> <p>3. —Reconvention—Jurisdiction.</p> <p>A plea in reconvention filed in a court that has no jurisdiction of the plaintiffs, is ineffectual to hold the plaintiffs in such court.</p>

<p>1. —Conclusions of Fact and Law—Request for.</p> <p>In the absence of a showing in the record that no request was made upon the trial judge to file conclusions of fact and law, it will be presumed that such conclusions found in the record were filed in compliance with a request.</p> <p>2. —Exchange of Land—Specific Performance.</p> <p>In a suit to enforce specific performance of a contract for the exchange of lands, evidence considered, and held sufficient to justify the trial court in refusing to decree a specific performance, on the ground of misrepresentation as to value on the part of plaintiff.</p> <p>3. —Same—Requisites.</p> <p>In order to require a court of equity to decree a specific performance of a contract for the exchange of lands the contract must be reasonably certain, unambiguous and based upon a valuable consideration; it must be perfectly fair in all its parts; free from any misrepresentation, fraud, mistake, imposition, or surprise, and the situation of the parties must be such that specific performance will not be harsh or oppressive.</p> <p>4. —Same—Statements as to Value.</p> <p>Statements of value made by the owner of property are held, as a general rule, to be merely expressions of opinion and not binding. But when such statements are made by one occupying a position of trust or confidence, or by one party to a sale who assumes to have special knowledge of the value of the property, in regard to which the other, being known to be ignorant, trusts entirely to the good faith of the' former, it is proper to consider such representations as representations of fact.</p> <p>5. —Misrepresentation—Scienter.</p> <p>In order to defeat the specific performance of a contract on the ground of misrepresentation it is not necessary to show that the misrepresentation was knowingly made; it is sufficient that the statement is actually untrue, and misled the party to whom addressed.</p>

<p>Appeal from the District Court of Jefferson County.</p>

<p>1. —Johnson Grass—Pleading.</p> <p>The allegations of a petition seeking damages, actual and exemplary, for injury to plaintiff’s premises by Johnson Grass permitted to mature on the premises of a railway company and to spread by washing over plaintiff’s land, are held to present the facts with sufficient particularity as against special exceptions.</p> <p>2. —Same—Constitutional Law—Case Overruled.</p> <p>The statute on the subject of Johnson Grass permitted to mature on and spread from the premises of a railway is held constitutional, following the ruling herein on certified question (100 Texas, 532), and overruling Gulf, O. & S. F. Ry. 'Co. v. Stokes, 91 S. W. Rep., 328.</p>

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

<p>Garnishment—Intervention—Notice—Certiorari.</p> <p>B., a judgment creditor of M. sued out" a writ of garnishment to S., a nonresident of the county from which the garnishment issued; S. answered admitting a small indebtedness and pending the preparation and filing by B. of the papers in the county in which S. resided for the purpose of contesting said answer, A. was permitted by the court in which the garnishment was pending to intervene in the garnishment proceedings without notice to either the judgment creditor or the garnishee, and judgment was rendered without notice to said parties in favor of the intervener against both the judgment creditor and the garnishee for the amount which the garnishee admitted in his answer owing the judgment debitor. Held, that while ordinarily parties must take notice of -an order of the court permitting an intervention, under the facts of this case the judgment creditor was not guilty of inexcusable neglect in the prosecution of his suit and it was error for the County Court to dismiss his writ of certiorari.</p>

<p>Appeal from the County Court of Potter County.</p>

<p>1.—Negotiable Note—Corporation—Authority of Secretary.</p> <p>In a suit by a purchaser before maturity upon a negotiable promissory note, purporting to have been executed by a hotel company (a corporation) by its secretary, the plaintiff was not entitled to recover against the corporation when the by-laws required the obligations of the corporation to be signed by • both the president and the secretary, and the corporate seal was not upon the paper.</p> <p>Z.—Same—Estoppel.</p> <p>Even though a corporation so acts as to induce third parties to believe that a subordinate officer of the corporation has authority to issue negotiable paper in the name of the corporation, one who buys such paper without being influenced by such acts can not claim estoppel.</p>

<p>Appeal from the District Court of Cooke County.</p>

<p>Appeal from the District Court of Henderson County.</p> <p>Tried below before the Hon. B. H. Gardner.</p>

<p>1. —Trespass to Try Title—Easement.</p> <p>Plaintiff suing in trespass to try title could not recover by reason of a judgment showing him entitled to an easement in the land, his pleading seeking no protection in- this right.</p> <p>2. —Disclaimer—Judgment.</p> <p>Where defendant in trespass to try title disclaims as to a part of the land sued for, plaintiff is entitled to judgment therefor though defeated as to the rest.</p>

<p>1. —Sale—Rescission—Parties.</p> <p>Where the plaintiff sues for a balance due upon the purchase money of land and the defendant pleads in reconvention for a rescission of the sale and for recovery of the purchase money already paid, plaintiff’s vendor, who was in no manner implicated in the wrong which is made the ground for rescission, is not a necessary party to the action, although the legal title to the land was in such vendor at the time plaintiff made the sale to defendant.</p> <p>2. —Agent as Joint Purchaser—Collusion—Rescission.</p> <p>Where an agent who is to receive a commission for effecting a sale of land conceals this fact from one who becomes a joint purchaser of the land with such agent, it is such a fraud upon the purchase as will warrant a rescission of the sale, the vendor knowing of and being a party to the fraud.</p> <p>3. —Same—Remedy.</p> <p>Under facts as above stated the purchaser may either recover from the agent, a sufficient portion of the commissions received by him to equalize their payments on the land, or he may sue to rescind."</p> <p>4. —Same—Lien to Secure Repayment.</p> <p>Upon rescission of a sale on the ground of fraud it is proper to secure a repayment of the money paid by the purchaser by a lien on the land.</p> <p>5. —Rescission—Joint Purchasers—Fraud as to One.</p> <p>Where only one of several joint purchasers has the right to rescind a contract of sale because of fraud practiced upon him alone, he is entitled to a rescission even against the wishes of his copurchasers.</p> <p>6. —Joint Tortfeasors—Wo Recovery Over.</p> <p>Where the owner of land and his agent by collusion consummate a fraud upon a purchaser of the land and the sale is set aside at the suit of the purchaser neither the owner nor the agent has any remedy over against the other.</p>

<p>1. —Stenographer’s Act, Constitutional.</p> <p>That part of section 5 of the Stenographer’s Act, passed hy the 29th Legislature, which provides “that original documentary evidence, maps, plats or other matters introduced in evidence, and if embraced in the stenographer’s report, may be made part of the record of said cause by written direction of the court, which may be sent up in the original form if requested by either party to the suit, or transcribed by the clerk with other parts of the record therein,” is not void because in derogation of section 3, article 35, of the Constitution which provides that no bill shall contain more than one subject, which shall he expressed in its title.</p> <p>2. —Appeal—Original Documents Parts of Record, When.</p> <p>To authorize the sending up of original documents and to constitute them a part of the record on appeal, it is necessary that a written order to this effect be made by the trial court during the term at which the case was tried. A written order by the trial judge to the clerk of his court, after the adjournment of the term, to send up such original papers, will not have the effect of making them a part of the record, or entitle them to consideration.</p> <p>3.—Imperfect Record—Instructed Verdict—Burden of Proof—Presumption.</p> <p>Where the documentary evidence used on the trial of a boundary case, is stricken from the record on appeal and the record is therefore incomplete, it will be presumed in favor of an instructed verdict for the plaintiff (appellee), that the entire evidence on the trial was such as to justify the court in giving such peremptory charge.</p>

<p>1.—Judgment—Direct Attack.</p> <p>In an action by a husband and his wife to enjoin an execution issued on a judgment rendered against the wife as surety on a sequestration replevy bond ana to annul said judgment as to the wife, pleadings considered, and held to be a direct and not a.collateral attack on said judgment.</p> <p>2. —Judgment—Injunction—Statutes Construed.</p> <p>Article 2991; Rev. Stats., of 1895, which inhibits an injunction to stay execution upon any valid and subsisting judgment after the expiration of one year from its rendition, unless, etc., has no application to an action brought upon equitable grounds to vacate a - judgment and enjoin its execution. The period of time within which such action must be brought is determined by. article 3358.</p> <p>3. —Married Woman as Surety—Summary Judgment.</p> <p>While it is true that in the case of persons who are competent to execute such instruments a summary statutory judgment against the obligors on replevy bonds is as conclusive as other judgments, it does not necessarily follow that such judgment may be rendered against a married woman who has signed such bond as surety without the knowledge of her husband who is not a party to the. suit and has made no appearance therein.</p> <p>4. —Replevy Bond—Discharge of Surety.</p> <p>The discharge by the obligee of one of several sureties upon a sequestration replevy bond, with an express reservation as to the other sureties, does not release the other sureties or the principal, nor affect the remedy of a surety, who may pay the debt, against his principal and cosureties for indemnity or contribution.</p> <p>5. —Defect of Parties—Practice.</p> <p>A question as to the joinder of parties can not be raised by general demurrer. Such objection must be interposed by special exception or plea in abatement.</p> <p>6. —Replevy Bond—Married Woman as Surety—Judgme'nt—Nullity.</p> <p>A statutory judgment rendered against a married woman upon a replevy bond which she signed as surety without the knowledge or consent of her husband, in a suit to which neither he nor she was a party, in which neither appeared (save such appearance of the wife as the law may imply from her signature as surety to the replevy bond) nor had notice of the judgment until an execution was issued thereon and levied upon their community property,' more than twelve months after its rendition, can be decreed a nullity and its execution enjoined by a direct proceeding brought for that purpose.</p>

<p>1. —Carriers of Freight—Over-Charge—Penalty.</p> <p>Under an agreement between a shipper and a railroad, the railroad was to handle all of the shipper’s cars at a certain rate per car; the rate agreed upon on the interstate shipments was less than the railroad might have charged under the ruling of the Bailroad Commission of Texas, but on the intrastate shipments it was greater than allowed by such ruling. In a suit for the excess charged on the intrastate shipments, the fact that less was charged than might have been charged on the interstate shipments, was no defense, and the overcharge having been made in pursuance of an agreement negatived the claim that it was unintentionally and innocently made through a mistake of fact.</p> <p>2. —Same—Switching Charges.</p> <p>Switching charges over the line of a connecting carrier can not be charged in addition to the freight rates prescribed by the Bailroad Commission.</p>

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

<p>Appeal from the District Court of Jasper County.</p>

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

<p>1.—Fellow-Servant—Operating Train.</p> <p>The term “operation” as used in article 4560f of the Revised Statutes evidently comprehends something more than the running of cars, locomotives, and trains of a railway company. It includes within its meaning every employee who, when injured, was performing some work in the line of his duty directly connected with or incident to the movement or operation of a car, locomotive or train.</p> <p>2.—Same.</p> <p>Members of the same section crew engaged in the work of unloading cross-ties from a railroad train, as it was moved, and stopped at intervals along the track, fall within the protection of article 4560f of the Revised Statutes.</p>