Volume 48 — Texas Civil Appeals Reports

<p>1. —Railway—Assisting Passenger—Time to Get Off—Authority of- Brakeman.</p> <p>One assisting his wife, nearly blind, to a seat on the train might rely on a statement by the brakeman assisting passengers at the steps that time would be allowed him to do so and get off again, and the carrier was not relieved from liability for injuries caused him by starting the train before he could do so though the conductor was not informed of his intention to get off and there was no proof that the giving such assurance was within the s'cope of the brakeman’s duties. Charges presenting this view held proper, and peremptory instruction for defendant held properly refused.</p> <p>2. —Contributory Negligence of Passenger—Charge.</p> <p>Instructions as to matters to be considered by the jury in determining whether plaintiff was negligent in getting off the train while in motion after assisting a passenger to a seat thereon considered, and held not subject to various objections urged thereto!</p> <p>3. —Damages—Physical Injury—Pain.</p> <p>Evidence considered and held to show disabling injuries to the person as well as pain, and to justify the submission of both as elements of damage recoverable.</p> <p>4. —Passenger—Negligence—Contributory Negligence.</p> <p>If one assisting a passenger upon the train was allowed sufficient time and opportunity to leave it safely, this fact disproved negligence by defendant and a charge submitting it as supporting the plea of plaintiff’s contributory negligence was properly refused.</p> <p>5. —Charge.</p> <p>Instructions omitting material limitations of the principle invoked or presenting defenses sufficiently covered by the main charge held properly refused.</p>

<p>1. —Bond for Title—Construction.</p> <p>0. executed to G. a bond or contract for title to a certain half league of land, reciting a consideration paid in cash and containing the further stipulation “should I not be able from any cause to deliver to the said G. a deed for said land within the time above mentioned, then I am at liberty to convey to him within that time a warranty deed, in fee simple for a like quantity of land of equal value in some other part of Texas, which said conveyance when so made by me is to be in full satisfaction of this obligation.” Held, that 0. did not have the option to convey.other land than that specified in the contract in satisfaction of the same except upon the contingency named therein, nor could he convey adjacent land in satisfaction of the contract. Upon acquiring title to the land named in the contract within the time named he held the same in trust for G.</p> <p>2. —Deed—Date of Delivery—Presumption—Case Criticised.</p> <p>A deed is presumed to have been delivered on the day of its date, and pot on the day it was acknowledged for record. Kent v. Cecil, 25 S. W. Rep., 715, criticised. Evidence considered, and held to support this presumption.</p> <p>3. —Bond for Title—Discharge—Evidence.</p> <p>The issue being whether or not a different tract of land had been substituted by agreement of the parties for that specified in a bond for title and in satisfaction of the bond, evidence considered, and held insufficient to support a finding that such agreement had been made.</p> <p>4. —Same—Consideration—Presumption of Payment.</p> <p>The recital in a contract or bond for title of receipt of the purchase money is prima facie proof of that fact.</p> <p>5. —Bond for Title—Trespass to Try Title,</p> <p>A bond for title to land, reciting the payment of the purchase money, will support an action of trespass to try title or afford a ground of defense.</p> <p>6. —Same—Stale Demand.</p> <p>Neither limitation nor laches can be set up by plaintiffs in trespass^ to try title against defendants in possession under a bond for title from plaintiffs’ ancestor, the defendants simply resting upon their equitable title and asking no affirmative relief.</p> <p>7. —lost Deed—Evidence.</p> <p>In a suit of trespass to try title, evidence considered, and held to require a finding by the jury that plaintiffs’ ancestor had executed a deed to the land in controversy.</p>

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

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

<p>Appeal from the District Court of Dallas County. Tried below before Hon. E. B. Muse.</p>

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

<p>Street Bailway—Erection of Poles—Ordinance—Construction.</p> <p>By a valid ordinance a city granted to a street railway company the right to construct and operate its railway over certain designated streets; at the time the ordinance was passed it was not known where the power-house of the company would be located; the ordinance provided “that the grantees herein be and are hereby authorized to erect a system of overhead wires for the purpose of conducting the electric current to operate motors, and to properly cross from such electric current generating station, as may be required . . . that they be and are hereby authorized to erect poles to place the wires upon, etc.” Held, that the express authority granted to the company carried with it the right to make such use of other streets as was necessary to connect the power-house, afterwards located and erected, with its tracks, which was essential to the enjoyment of the right expressly granted.</p>

<p>1. —Carriers—Connecting Lines.</p> <p>A railway completing the transportation of one of two packages shipped from another State, over various connecting lines of road under a contract by the initial carrier, to whom the through freight was paid in advance, which limited its liability to losses occurring on its own line, can not be held liable for the loss of the other package which never came into its hands, being lost by the initial carrier, in the absence of proof of partnership or joint undertaking for the transportation.</p> <p>2. —Same.</p> <p>The carrier, under such a contract, would not be liable for goods never coming to its hands by receiving its proportionate share of the freight, nor will a point liability be presumed from its receiving and hauling the freight; nor would an arrangement with the connecting lines for receiving and hauling freight from each other, one collecting the entire toll, imply a joint undertaking of each to answer for loss by the other.</p>

<p>1. —Estates—Temporary Administrator—Powers.</p> <p>Under the probate law in force in December 1840, a temporary administrator had no power to sell land belonging to his intestate. A strict construction is given to statutes prescribing the powers and duties of a temporary administrator.</p> <p>2. —Same—Administrator’s Deed—Order of Sale—Presumption—Evidence.</p> <p>Evidence concerning the execution of a deed by an administrator in December 1840, considered, and held insufficient to show an order by the court for the sale of the land and insufficient to afford any basis for a presumption that such an order had been made, and hence, the deed was void.</p> <p>3. —Same—Confirmation of Sale—Law of 1840.</p> <p>While the probate law in force in 1840 did not expressly provide for a confirmation by the court of sales made by administrators, it was evidently intended that the Probate Court should have the power to approve or disapprove such sales. A confirmation by the court is conclusive of the validity of the sale.</p> <p>4. —Same—Confirmation—Evidence.</p> <p>It was not indispensable that a formal entry of confirmation of an administrator’s sale in 1840 should be made in the record books of the Probate Court; any writing among the papers of the case indicating directly or indirectly an approval of the sale by the court, would be sufficient to sustain its validity.</p>

<p>1. —Action—Death of Mother—Illegitimate Children.</p> <p>Under the statutes of this State illegitimate children have a right of action for the negligent killing of their mother.</p> <p>2. —Railroads—Street Crossing—Charge.</p> <p>In a suit against a railroad company by minor children for the negligent killing of their mother at a street crossing, charge considered, and held not on the weight of evidence in assuming that the gates were up at the time deceased attempted to cross the track.</p> <p>3. —Contributory Negligence—Question of Fact.</p> <p>An attempt to cross a railroad track while the street gates were down is not necessarily negligence, but negligence vel non is a question of fact for the jury under all the circumstances.</p> <p>4. —Charge—Conflicting Evidence.</p> <p>A special charge which ignores a phase of the evidence on a controverted issue, is properly refused.</p>

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

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

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

<p>Appeal from the County Court of Fannin County. Tried below before Hon. H. A. Cunningham.</p>

<p>1.—Depositions—Evidence—Argument.</p> <p>It was improper to permit the introduction of the endorsement on the envelope of a deposition showing that it was returned into court by defendant’s claim agent and comment thereon by plaintiff’s counsel, but under the circumstances it is here held not ground for reversal.</p> <p>2. —Passenger—Exposure to Weather—Pleading Evidence.</p> <p>The condition of the weather at the time a train was wrecked, though damages from exposure thereto were not claimed in the pleading, may be shown to explain the conduct and movements of the injured passenger, when limited by instructions to that purpose.</p> <p>3. —Leading Question.</p> <p>Asking a witness whether any one called his attention to the high speed of the train was not leading.</p> <p>4. —Charge—Omission and Request—Contributory Negligence.</p> <p>The omission to submit by the charge the issue of contributory negligence, when it arises only on a particular phase of the evidence, is not error in the absence of a requested instruction.</p> <p>5. —Demurrer—Harmless Error.</p> <p>Failure to sustain defendant’s exceptions to allegations presenting an issue on which the verdict was in defendant’s favor is not ground for reversal.</p> <p>6. —Charge—Requested Instructions.</p> <p>Where the charge authorized a verdict for plaintiff only on finding defendant negligent it was not error to refuse one to find for defendant if it was not negligent.</p> <p>7. —Damages—Nursing.</p> <p>Reasonable expenses for nursing may be recovered as an element of damages for injury to the person though the services in nursing were rendered by relatives of plaintiff who did not ask nor receive compensation.</p>

<p>1. —Remittitur—Practice on Appeal.</p> <p>On the filing in the Appellate Court of a remittitur of sums going to make up the judgment recovered below, which can be specifically determined and separated from the rest of the judgment and the recovery of which forms the only basis on which error is assigned, in this case of amounts assessed under article 3671, Revised Statutes, as statutory damages and attorney’s fees for refusal to pay a life insurance policy without suit, it is within the discretion of the court to reform and affirm the judgment at cost of appellee instead of reversing and remanding it.</p> <p>2. —Same—Reformation and Remand—Affidavits as to Merits.</p> <p>Where the errors assigned, being cured by remittitur, required reformation and affirmance of the judgment, rather than reversal and remand, the court declined to make the latter order on affidavits filed in the Appellate Court to show that appellant had a good defense to the entire action which by accident and without his fault he was prevented from making in the court below. Appellant should have presented this matter by motion in the trial court, or by original actiop there after its adjournment.</p>

<p>1. —Carrier—Failure to Furnish Cars—Statute Construed,</p> <p>Articles 4497 to 4502, as amended by the Act of 1899 (Gen. Laws 1899, page 67),- concerning the furnishing of ears by railroad companies to shippers, being highly penal both as to the railroad companies and the shippers, should be strictly construed, and the penalties therein denounced can not be invoked unless the complainant brings himself clearly within the terms of the law.</p> <p>2. —Same.</p> <p>Where the number of cars demanded by a shipper is less than ten, the railroad company has three days from the receipt of the application, in which to deliver them; hence a failure of such company to comply with a demand made on one day for two cars to be furnished on the next day would not render the company liable for the penalty . prescribed by the statute.</p> <p>3. —Same—Damages—Pleading.</p> <p>In an action by a shipper against a railroad company for damages for failure to furnish cars on demand, where the petition contains no allegation of a contract between plaintiff and defendant and breach thereof, nor of any negligent failure of the railroad to discharge any duty, but is based solely on the statute, a failure to show a right to recover the penalties denounced by the statute will preclude a recovery for the damages prescribed by the same statute.</p>

<p>Trespass—Cutting Timber—Measure of Damage.</p> <p>Where one in good faith cuts timber upon the land of another, believing that he has a right so to do, based upon reasonable grounds for such belief, he will, when sued for the value of the timber, be required to pay the owner no more than its value in the tree at the time it was cut. The owner is not entitled to recover the increased value added by the labor of the innocent trespasser.</p>

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

<p>1.—Personal Injuries—Pleading—Particularity.</p> <p>In a suit for damages for the death of a wife and mother resulting from personal injuries, pleading considered, and held not subject to an exception that the allegation of injury was too general and did not specify which of many injuries caused deceased’s death, nor how, when or wherein said injuries caused her death, and did not set forth with sufficient particularity in what manner said injuries caused her death.</p> <p>2. —Same—Cause of Death—Charge.</p> <p>In a suit for damages for the death of a wife and mother resulting from personal injuries, where the evidence was such as to warrant the jury in finding that death resulted from the combined effect of all the injuries, it was not error for the court to charge the jury to find for the plaintiff if death was caused by any of the injuries sustained, although the principal expert witness for the plaintiff testified that death resulted from a particular injury.</p> <p>3. —Damages—Several Plaintiffs—Charge—Harmless Error.</p> <p>In a suit by two plaintiffs for damages the court charged the jury that if they found from the evidence that the death of the deceased caused any pecuniary loss to the plaintiffs, or either of them, then the verdict should be for such plaintiffs. Held, an inadvertent and harmless error in view of the evidence.</p> <p>4. —Charge upon Issue not Raised.</p> <p>The suit being for damages for death resulting from injuries received in a collision of cars, there being no pleading or evidence that the collision was caused by the interference of third parties with the track, the court properly refused to submit such issue to the jury. The mere fact that the collision could not be accounted for in any other way was not sufficient to raise the issue.</p>

<p>1. —Railroads—Pedestrian—Failure to look and listen—-Contributory Negligence.</p> <p>Whether or not it is negligence to fail to look and listen for approaching trains when about to cross a railroad track, is ordinarily a question of fact to be determined by a jury; but where the injured party himself testifies and offers no excuse whatever for his failure to take this or any other precaution for his own safety before going into a place of known danger, no other conclusion but that of negligence can be entertained.</p> <p>2. —Same—Case Stated.</p> <p>Plaintiff, while walking in defendant’s railroad yard along the main track, stepped across a sidetrack to be further away from a train passing on the main track; after said train passed and without taking any precautions to ascertain if a train was approaching from behind him, plaintiff attempted to cross back over the sidetrack when he was struck by a train which came up from the rear. Held, the plaintiff was guilty of such contributory negligence as to require a peremptory instruction for the defendant. Even though plaintiff was a licensee in the yards he would be required to exercise ordinary care for his own safety.</p> <p>3. —Same—Same—lookout when Unnecessary.</p> <p>Where in a suit for personal injuries the evidence showed that plaintiff was injured by suddenly stepping in front of a passing train and that no degree of care in keeping a lookout for persons on the track would have prevented the injury, it was error for the court to charge the jury that it was the duty of defendant to maintain a lookout to discover persons on its track and to avoid injuring them.</p>

<p>Appeal from the District Court of Taylor County, fore Hon. J. H. Calhoun. Tried below be-</p>

<p>Appeal from the District Court of Johnson County. Tried helow before Hon. W. B. Walker, Special Judge.</p>

<p>1. —Death of Plaintiff—Prosecution of Suit—Pleading.</p> <p>Pending suit, the plaintiff died; a temporary administratrix was appointed with express authority to prosecute the suit; the said administratrix appeared in the suit and set up the facts authorizing her to prosecute the same, and did prosecute the same to judgment. Held, although there was no express adoption by the administratrix of the pleading theretofore filed by her intestate, such adoption will be implied.</p> <p>2. —Damage to Crop—Assignment of Claim—Pleading.</p> <p>Where, in a suit for damages to a crop by overflow, the plaintiff alleged that he had acquired the claims of all the tenants in such crop, giving their number, the total' damage to all the crops, the total number of acres in cultivation- in which the tenants were interested, attached as an exhibit a statement showing the name of each tenant, the number of acres cultivated by each and the total number of acres that were damaged, the petition was not subject to a special exception on the ground that it did not allege the amount of each of the numerous claims for damages assigned by the tenants to the plaintiff or the total amount, of such claims.</p> <p>3. —Briefs—Insufficient Statement.</p> <p>An assignment of error complaining of the admission of testimony, will not be considered when the testimony, the admission of which is complained of, is not set out in the statement thereto subjoined, nor any reference made to the pages of the record where the testimony might be found.</p> <p>4. —Administration—Estate—Claims for Damages—Judgment.</p> <p>In a suit by a temporary administratrix for damages to a crop, the community property of herself and her deceased husband, it was error for the court, in the absence of evidence that the administratrix was entitled to any part of the crop in her own right, to apportion the amount of the verdict between such administratrix and the estate.</p>

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

<p>Opinion Evidence—Proper Loading of Live Stock.</p> <p>On the issue as to whether a mule died in transit on the cars from natural causes it was competent to show that the animal was transported with due care, and the opinion of one skilled in loading stock and who placed it on and tied it in the car that this was done in a proper manner should have been admitted.</p>

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

<p>1. —Evidence—W itlidrawal—Charge.</p> <p>Neither the admission of improper evidence nor the refusal of a requested instruction to the jury to disregard it, will be ground for reversal where the court, after admitting, verbally instructed the jury to disregard it, and by the charge given withdrew from their consideration the issues to which it was directed.</p> <p>2. —Telegraph—Damages.</p> <p>A recovery of $400.25 in favor of the sender of the telegram to her brother announcing the imminent death of their mother, delay in delivery of which caused the failure of the latter to be present at the funeral, sustained as not excessive.</p>

<p>1. —Railway—Fences—Gates—Killing Stock.</p> <p>No action lies against a railway company for negligence in killing stock on its fenced right of way by reason of the fact that they got on the track through a gate left for crossing for the benefit of the adjoining land owners, the latch of which had become defective, in the absence of any undertaking on its part to keep the gate closed or in repair.</p> <p>2. —Same—Proximate Canse.</p> <p>When the gate opening upon a pi-ivate crossing over a railway track was securely fastened at night but left open during the night by persons passing, whereby stock escaped onto the track and were killed, the proximate cause of the loss was such act of leaving the gate open and the railway company was not responsible.</p>

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

<p>Ajopeal from the District Court of Travis County. Tried „below before the Hon. Y. L. Brooks.</p>

<p>Judgment of Foreclosure—Execution for Balance.</p> <p>Under a judgment foreclosing a lien on property and ordering the sale thereof for the satisfaction of the debt adjudged to be due, execution may issue for any balance, remaining unpaid although the judgment does not expressly provide for such execution.</p>

<p>1. —Landlord and Tenant—Lien—Limitation.</p> <p>In a suit by a landlord against his tenants for rent and against third parties for conversion of the agricultural products, the evidence showing that plaintiff’s suit was filed within less than two years from the time said products were received by said third parties, plaintiff’s suit was not barred by the two years statute of limitation. Various pleadings and amendments considered, and held to assert the same cause of action.</p> <p>2. —Tort—Parties—Practice.</p> <p>In cases of tort the injured party may sue one or all of the wrongdoers, and after making all the wrongdoers parties defendant he may dismiss as to one or more without affecting his right to prosecute his suit against the others, unless the pleadings of the defendants raise issues among themselves which require adjudication.</p> <p>3. —Dismissal—New Parties—Practice.</p> <p>A defendant who permits without objection the dismissal from the suit of a codefendant, cannot complain of the action of the court in refusing to allow him, when the case is called for trial, to make said codefendant again a party to the suit in order that he might ask for judgment over against such codefendant, especially when the trial of the cause would be thereby delayed.</p> <p>4. —Testimony—Recollection of Witness.</p> <p>A witness was allowed to testify that a certain quantity of rice was all delivered to two defendants, and from the best of his recollection,, without data, less than half was delivered to one defendant and.more than one half to the other defendant. Held, not subject to the objection that the testimony was an estimate based on recollection, and did not purport to be facts.</p> <p>5. —Same—Trial before Judge.</p> <p>Where a trial is before the judge without a jury, the admission of testimony of doubtful competency is not cause for reversal, especially when other testimony to the same effect has been admitted without objection.</p> <p>6. —Landlord and Tenant—Reduction of Acreage.</p> <p>Where, after the lease of certain premises, a part of the same was sold by the landlord and the tenant deprived of its use to that extent, a proportionate reduction in the rent would be the prima facie effect in the absence of evidence indicating a different rule.</p> <p>7. —Landlord’s Lien—Purchaser of Crop.</p> <p>One who purchases a crop from a tenant and converts the same to his own use within thirty days after its removal from the rented premises, is liable to the landlord for the value of the crop converted, and the fact that the landlord took no steps to prevent the conversion, is immaterial.</p> <p>8. —Tort Feasors—Several Liability.</p> <p>The rule that satisfaction by one joint tort feasor discharges the other, has no application where two tort feasors convert different parts of the same crop. They are not joint tort feasors.</p> <p>9. —Same—Non-suit—Effect.</p> <p>In a suit against several joint tort feasors, the plaintiff, in consideration of a certain sum paid by one of the defendants, agreed to dismiss and did dismiss the suit as to him, expressly reserving the right, however, to prosecute the suit against the other defendants for the balance of the damages claimed. Held, that the plaintiff did not lose his right to prosecute the suit against the other defendants by the compromise with the first defendant.</p> <p>10. —Landlord’s Lien—Conversion of Crop—Limitation.</p> <p>When a third party converts to his own use a crop during the existence of the landlord’s lien thereon it is not necessary that tjie landlord file his suit for such conversion during the existence of the lien.</p>

<p>1. —Jurisdiction—Personal Injuries—Nonresident.</p> <p>For the purpose of redress, it is immaterial where a wrong was committed. A wrong being personal, redress may be sought for it wherever the wrong-doer may be found. But to this rule there are three exceptions in respect to torts: (1) Where the lex loci delicti is in direct contravention of the law or policy of the forum; (2) where the remedy prescribed for the tort by the lex loci delicti is penal in its character; and (3) statutory torts, where the statute, in creating the liability, at the same time creates a mode of redress peculiar to that State, by which alone the wrong is to be remedied. And these exceptions are themselves subject to certain limitations.</p> <p>2. —Same—Case Distinguished.</p> <p>For a wrongful injury to the person of another, redress may be had in the courts of this State regardless of where the injury was inflicted, if such personal injury (not resulting in death) was actionable in the country where such wrong was done. The case of Mexican Nat. By. Co. v. Jackson, 89 Texas, 113, reviewed and distinguished.</p> <p>3. —Jurisdiction—Personal Injuries—Citizen of New Mexico—Suit in Texas.</p> <p>By a statute of New Mexico a citizen of that Territory is required to bring his suit for personal injuries in the courts of that Territory, and is prohibited from bringing such suit in any other jurisdiction. Hence a suit by a citizen of New Mexico for personal injuries received there, cannot be maintained in Texas.</p>

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

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

<p>1. —Pleading.</p> <p>Pleading should not contain matters of evidence. Rule applied.</p> <p>2. —Charge—Ho Issue—Harmless Error.</p> <p>Where it appears from the verdict of a jury that they were not misled by a charge submitting an issue not raised by the evidence, the error in submitting the issue will not be cause for reversal. In a suit upon a promissory note the defendant plead payment and satisfaction by reason of certain payments made to the payee; the plaintiff replied that the maker was indebted to him in other amounts than that evidenced by the note and that the payments made by the maker had been applied to such other indebtedness; there was no evidence of any other indebtedness, but the court submitted this issue to the jury. Held, that the verdict when read in the light of the evidence showed that the jury had not been misled.</p>

<p>Limitation—Payment of Taxes—Identity of Land.</p> <p>The payment of taxes on a certain patented survey by name, is sufficient, together with the other requirements named in the statute, to support the five years’ statute of limitation even though the lines of the survey were supposed at one time to be in one place, and at another time to be in another place.</p>

<p>Lunacy—Judgment of—No Appeal.</p> <p>From a judgment of lunacy rendered in accordance with the provisions of our statute on that subject, there is no appeal.</p>

<p>Evidence—Identity of Person—Verdict—Question of Pact.</p> <p>In a suit between different claimants to land, evidence as to the identity of the original grantee of the land bounty warrant, considered, and held sufficient to support the verdict of the jury notwithstanding strong circumstances to the contrary.</p>

<p>Appeal from the District Court of Wheeler County. Tried below before Hon. H. G. Hendricks.</p>

<p>1. —Master and. Servant—Vice Principal—Personal Injuries.</p> <p>In a suit by a vice-principal against his principal for personal injuries received .while operating a gin-stand, evidence considered, and held sufficient to support a finding that the plaintiff was guilty of contributory negligence and assumed the- risk which resulted in his injury.</p> <p>2. —Contributory Negligence—Erroneous Definition—Harmless Error.</p> <p>A charge defining contributory negligence considered, and held erroneous but harmless in view of other portions of the charge which correctly applied the law to the facts.</p> <p>3. —Assumed Risk—Knowledge of Danger.</p> <p>Where the plaintiff bases his claim for personal injuries on the ground of defective machinery, it is not error for the court to instruct the jury as matter of law that he cannot recover if he knew at the time of the injury that the machinery was defective and dangerous.</p> <p>4. —Contributory Negligence—Assumed Risk—Confusing Charge.</p> <p>Where, in a suit for personal injuries, facts existed which would relieve defendant from liability, either on the ground of contributory negligence or the assumption of the risk,' a charge which confused the two doctrines would not be cause for reversal of the judgment in defendant’s favor.</p> <p>5. —Defective Machinery—Assumed Risk—Charge.</p> <p>Where the parts of a machine are so intimately connected that they constitute and may be considered as a whole, and the evidence showed that only certain parts were defective and not the whole machine, a charge upon the doctrine of assumed risk which instructs the jury that if they believe the machine was defective, 'etc., to find for the defendant, was not misleading.</p> <p>6. —Invited Error.</p> <p>Where the charge of the court upon the burden of proof was erroneous but a special charge given at the request of the appellant contained the same error, the appellant cannot complain in the absence of anything in the record showing that the special charge was given after the main charge.</p>

<p>Appeal from the 61st District Court, Harris County. Tried below before Hon. Norman G. Kittrell.</p>

<p>1. —Bankruptcy—Discharge—Fiduciary Capacity vel non—Evidence.</p> <p>In a suit against a discharged bankrupt for a preexisting debt, evidence considered, and held sufficient to support a finding that the money sued for was not obtained by false or fraudulent representations, nor was the defendant occupying a fiduciary relation towards the plaintiff, hence the discharge in bankruptcy was a bar to the action.</p> <p>2. —Banks—Relation of Depositor.</p> <p>One who deposits money in a bank simply becomes a creditor to the amount of his deposit and has no right to demand of the bank the return of the identical money deposited by him, but only a sum equal to that deposited.</p> <p>3. —Bankruptcy—Creditor.</p> <p>One who receives the assets of a bank in liquidation and assumes its debts thereby becomes a debtor to the individual depositors, and in bankruptcy proceeding should name the depositors as his creditors.</p> <p>4. —Bankruptcy—Composition—Judgment of Discharge.</p> <p>A creditor who enters into a composition with his bankrupt debtor and is a party to the judgment of discharge based thereon, is bound by the recitals in the judgment and cannot collaterally attack the same.</p> <p>5. —Venue—Partners—Evidence—Bankruptcy.-</p> <p>In a suit against two defendants as partners the venue may be laid in the-county of the domicile of either. Evidence considered, and held to support the finding of the trial court that defendants were partners. Nor does the fact that one of the partners had been discharged in bankruptcy affect. the question when it was an issuable fact whether or not the discharge in bankruptcy relieved said defendant from liability.</p> <p>6. —Actions—Joinder of Causes.</p> <p>When causes of action are connected with each other or grow out of the same transaction, they may be properly joined, and all persons against whom the plaintiff asserts a common or alternate liability may be joined as defendants. Hence a petition which in one count alleges debt and in another alleges tort is not subject to an exception on the ground of misjoinder of causes of action when both counts relate to the same transaction.</p> <p>7. —Limitation—Breach of Contract.</p> <p>In a suit for breach of contract to pay a debt assumed by defendant, limitation would not begin to run until defendant made default, or until plaintiff himself paid the debt.</p> <p>8. —Statute of Frauds—Debt of Another.</p> <p>An undertaking for a sufficient consideration paid to pay the debt of another, is not within the statute of frauds.</p> <p>9. —Witness—Contradictory Statements.</p> <p>A defendant having denied in his testimony an alleged partnership between himself and his codefendant, pleadings filed by said defendants in a different suit, under oath, are admissible for the purpose of contradicting said defendant though not admissible to prove the partnership,</p> <p>10. —Costs—Practice.</p> <p>Where an appellant fails to call the attention of the trial court to an alleged error in taxing costs,- the matter will not be considered on appeal.</p>

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

<p>Error from the District Court of Nacogdoches County. Tried below before Hon. James I. Perkins.</p>

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

<p>X.—Jurisdiction—Forfeiture—Search and Seizure.</p> <p>Proceedings under the Act of April 5, 1907, Laws 30th Leg., p. 156 (Search and Seizure Law) to condemn intoxicating liquors seized under the process therein provided, constitute an action to declare a forfeiture within the meaning of article 8, section 5 of the Constitution, which confers the jurisdiction in such cases on the District and not on the County Court.</p> <p>ON REHEARING.</p> <p>2.—Practice on Appeal.</p> <p>One. who brings action and recovers in a court having no jurisdiction of the cause of action should bear all the costs that result by reason of the suit; the appeal of defendant will not be dismissed at his cost .for want of jurisdiction in the appellate court, but the judgment reversed and remanded with direction to dismiss in the lower court.</p>

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

<p>1. —Building Contract—Compliance—Decision of Architect.</p> <p>Though a contractor’s undertaking to erect a building in accordance with the architect’s plans and specifications was to be performed under the direction and to the satisfaction of the architect, the decision of the latter that it had been so constructed was not binding on the owner in the absence of a provision to that effect, and did not preclude him from defending an action for the contract price on the ground that the work was not done in accordance with the specifications. Boettler v. Tendick, 73 Texas, 488, distinguished.</p> <p>2. —Same—Intent, Question for the Jury.</p> <p>A written building contract considered and held so ambiguous as to require the question whether it made the decision of the architect as to the work having been properly performed binding on the owner, one of intent to be submitted to the jury.</p>

<p>1. —Negligence—Operation of Switch Engine—Issue of Fact.</p> <p>In a suit by an employee for personal injuries caused by being struck by a switch engine in the yards of a railway company, evidence considered, and held that it was a question of fact which the court properly submitted to the jury, whether or not the failure of the defendant company to have a switchman or other employee on the footboard of the backing engine at the time it struck and injured the plaintiff, was negligence. The question of negligence did not depend upon the existence of a rule upon the subject, but upon the exigencies of the situation.</p> <p>2. —Charge—Misusing Terms “Plaintiff” and “Defendant”—Harmless Error.</p> <p>Charge in which the terms “plaintiff” and “defendant” were misused or transposed considered, and held harmless in view of other portions of the charge.</p> <p>3. —Charge—Negligence—Accident.</p> <p>In a suit for personal injuries, the court having charged the jury to find against the defendant' only in the event they found that it was negligent and its negligence was the proximate cause of the injury, it was not error to refuse a special instruction to the effect that negligence could not be presumed from the mere happening of the accident.</p> <p>4. —Jury—Majority of Witnesses.</p> <p>A jury is not bound to render a verdict according to the testimony of a majority of the witnesses.</p>

<p>1. —Railroads—Derailment—Issue of Fact—Charge.</p> <p>The mother, wife and children of a locomotive engineer sued a railroad company for the death of the engineer caused by the derailment of his locomotive; the plaintiffs charged negligence in the failure to properly inspect the track; the defendant alleged that the derailment was caused by trespassers tampering with the track; the court charged the jury, in substance, that if they believed that the derailment was caused by trespassers drawing the spikes that held the rails in place, etc., to render a verdict for the defendant. Held that the charge took from the jury the issue of negligence on the part of the company in the proper inspection of its track, and was therefore reversible error. It is the duty of railroads to use ordinary care to guard against the acts of trespassers as well as other agencies affecting its track.</p> <p>2. —Charge—Positive Error—Practice.</p> <p>Where the charge of the court contains positive error, the party against whom the error is committed is not required to ask a special charge curing the vice.</p> <p>3. —Railroads—Derailment—Pleading.</p> <p>In a suit against a railroad company for the death of an engineer, pleading considered, and held sufficient to raise the issue of negligence on the part of the defendant in the failure to properly inspect the track, although the rails may have been intentionally displaced by evil-minded persons not connected with the defendant.</p> <p>4. —Ordinary Care—Dependent on Circumstances.</p> <p>Ordinary care will require the exercise of a very high degree of diligence under certain facts and circumstances, and what might be ordinary care under one set of circumstances might be culpable negligence under another combination of circumstances. The care to be exercised is proportionate _ to and measured by the necessities and exigencies of the time, place, occupation and situation. Facts considered and held to illustrate the rule.</p> <p>5. —Charge—Abstract Propositions.</p> <p>The court in its charge should give to the jury the law applicable to the facts in evidence. The giving of abstract propositions of law is not to be commended, and at times may be positive error.</p> <p>6. —Issue—Irrelevant Testimony.</p> <p>There being no issue as to the competency or incompeteney of an employee, the opinion of a witness on that subject was, at least, irrelevant and properly excluded.</p> <p>7. —Derailment—Condition of Track—Testimony.</p> <p>In a suit for damages caused by a wreck alleged to have been caused by a dangerous condition of the track, a witness not an expert may testify as to the curvature of the track, the condition of the rails, spikes, ties, etc., but should not be allowed to testify that in his opinion the track was dangerous.</p> <p>8. —Evidence—Photographs.</p> <p>To render photographs of a locality admissible in evidence it is only necessary that any witness who knows the fact should testify that it truly represents the scene.</p> <p>9. —Appeal—Practice.</p> <p>An appellate court will not go outside the record to consider and decide questions which might possibly arise on another trial of the case.</p>

<p>Appeal from the District Court of Montague County. Tried below before Hon, Clem B, Potter,</p>

<p>Appeal from the District Court of Cooke County. Tried below before Hon. W. 0. Davis, Special Judge.</p>

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

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

<p>1. —Receiver—App ointment—Appeal.</p> <p>Two persons were appointed joint receivers of two corporations; subsequently one of said persons resigned and an order was made appointing the other person as sole receiver for both corporations. Held, an appeal perfected within twenty days from the date of the last order was within due time under the provision of the statute requiring an appeal from an order appointing a receiver to be perfected in twenty days from the date of the appointment. (Justice Talbot dissenting.)</p> <p>2. —Receiver—Corporation—"Venue.</p> <p>The court having jurisdiction of the subject matter of a suit, though not in the county of the domicile of a defendant corporation, may appoint a receiver for such corporation. Besides, the question is one of venue and the privilege may be waived.</p> <p>3. —Receiver—Appointment—Appeal—Issues.</p> <p>On an appeal from an order appointing a receiver, a question as to the validity of an order of the trial court consolidating the two suits in which receivers were appointed, will not be considered.</p> <p>4. —Receiver—Appointment—Notice.</p> <p>■ The provision in the statute requiring notice to be given of an application for the appointment of a receiver, applies only to the defendant in the action, and an appointment without objection by the defendant is conclusive as to creditors in the absence of fraud or collusion.</p> <p>5. —Same—Insolvent Corporation—Pleading.</p> <p>In an application for the appointment of a receiver for an insolvent corporation, pleading considered, and held sufficient to require the appointment as prayed for.</p> <p>6. —Same—Defunct Corporation—Franchise Tax.</p> <p>The forfeiture of corporate rights by reason of failure to pay the franchise tax, is a statutory ground for the appointment of a receiver.</p> <p>7. —Same—Judgment Creditor—Laches.</p> <p>A creditor who has obtained judgment against an insolvent corporation with foreclosure of lien on a small portion of the corporation’s assets, but who has delayed for eighteen months to execute said judgment, cannot prevent the appointment of a receiver for said corporation. ■ Such rights as the creditor may have can be protected in the receivership.</p>

<p>1. —Contract of Sale—Breach—Damages—Loss of Profits.</p> <p>Loss of profits is recoverable as special damages upon a breach of a contract for sale of goods ordered solely for a certain holiday trade and not otherwise valuable to the purchaser, the seller being aware of that fact. But items of expense as for instance, extra clerk hire, which the buyer would have incurred whether the contract was kept or not, are not recoverable.</p> <p>2. —Verified Account—Denial Under Oath.</p> <p>When a suit is based upon a verified account, a denial under oath by the defendant of the correctness of the account destroys its effect as evidence.</p>

<p>1, —Personal Injuries—Allegation and Proof—Charge.</p> <p>. In a suit against a railroad company for personal injuries the court charged the jury to find for the plaintiff if they found from the evidence “that any act of defendant or any - of its employees was negligence.” Held, reversible error. The plaintiff was entitled to recover only for such acts of negligence as were both pleaded and proved. Proof without pleading will not support a verdict or judgment.</p> <p>2. —Special Charge—Practice.</p> <p>It is reversible error to refuse a special charge which relates to and correctly presents a phase of the case not covered by the main charge.</p>

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

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

<p>Personal Injuries—Assumed Risk—Knowledge of Danger.</p> <p>In a suit for damages for personal injuries received while unloading lumber from a car onto a wagon, alleged to have been caused by the negligence of the defendant in failing to furnish plaintiff a safe place at which to unload said lumber, it appearing from the petition that the situation was well known- and perfectly obvious to plaintiff and that the car and wagon were both standing still when the accident occurred, a demurrer to the petition on the ground that it appeared therefrom that plaintiff assumed the risk, was properly sustained by the trial court. Justice Speer, dissenting.</p>

<p>1.—Attachment—Levy on Interest of Partner—Damages,</p> <p>In a suit upon a money demand an attachment was issued upon the affidavit of the plaintiff and levied upon the interest of the defendant as a partner in a stock of goods: no seizure or actual trespass of any kind was committed, but the levy was effected as provided by statute, by giving notice to the other partner; there was .no evidence of any injury to the business or properly of the defendant. Held, that even though the attachment was wrongfully issued and levied the failure of the court to allow and of the jury to award even nominal damages was not cause for reversal of the judgment.</p> <p>2. —Same—Costs—Practice.</p> <p>The failure of the trial court to award the defendant his costs in a case where an attachment was wrongfully issued will not be cause for reversal of the judgment when the matter of costs was not called to the attention of the trial court.</p> <p>3. —Same—Exemplary Damages.</p> <p>In an attachment suit the recovery of only nominal damages is not a sufficient basis for the recovery of exemplary damages.</p> <p>4. —Fraud—Burden of Proof.</p> <p>Where, in a suit upon a money demand, the defendant alleges that he was induced to promise to pay the amount sued for by the misrepresentations of the plaintiff, the burden is upon the defendant to prove his allegations.</p> <p>5. —Partnership—Settlement—Buie.</p> <p>In a settlement of partnership affairs between two partners each partner is liable for only one-half of the outstanding indebtedness of the partnership, and a partner appropriating partnership property is liable to the other partner for only one-half of the value of the property appropriated.</p> <p>6. —Contracts—Misrepresentation—Rule in Equity.</p> <p>It is a rule in equity that all material facts must be known to both parties to a contract to render the agreement just and fair in all its parts, and if there be any intentional misrepresentation or concealment of facts in the making of the contract in cases in which the parties have not equal access to the means of information, it will vitiate the contract. This rule applied in a settlement between partners where one partner had peculiar and better means of information as to the financial condition of the partnership than the other partner.</p>

<p>1. —Partnership—Contract—Construction.</p> <p>An assignment of error that the court erred in submitting to the jury the construction of a written contract of partnership must be overruled when, if the court had construed the contract, the result would have been the same as that reached by the jury.</p> <p>2. —Same.</p> <p>Under the terms of a partnership contract between J. and S. for the raising and handling of sheep, S. was to receive one-half of the profits as compensation for his services as managing partner; there were no profits; J. sued S. for one-half of the losses and the value of property alleged to have been converted by 8.; the court by its charge submitted to the jury the question whether or not 8. was entitled to compensation other than one-half the profits, for his services. Held, reversible error, since, in view of the verdict, the jury may have offset the claim of J. against S. for the property converted by the claim of S. for services as manager.</p>

<p>Trespass to Try Title—Husband and- Wife—Separate Property—Evidence.</p> <p>In a suit of trespass to try title to a tract of land sold by a sheriff to satisfy a judgment for a community debt, the plaintiff claiming that the land in controversy was the separate property of the wife by reason of a gift from her husband, had the burden of proof to show that the husband was solvent at the time of the alleged gift, and failing in this, the court did not err in giving a peremptory charge for the defendant.</p>

<p>1. —Liquor Dealers—Statute Construed.</p> <p>The Act of the 30th Legislature, known as the Baskin-McGregor law, (Gen. Laws, 1907, p. 258) did not repeal the law theretofore existing, allowing suit upon a liquor dealers’ bond for violation thereof.</p> <p>2. —Plea in Abatement—Certainty.</p> <p>In a suit by a divorced husband upon a liquor dealer’s bond for selling intoxicating liquor to plaintiff’s minor child, a plea in abatement on the ground that the wife should be a party to the suit, which plea failed to show what disposition was made of the custody of the minor child in the decree of divorce between plaintiff and his wife; that the decree of divorce was a final decree; and that the wife was living at the time of filing the plea, was insufficient and properly overruled.</p> <p>3. —Liquor Dealer—Description of Locality.</p> <p>In a suit upon a liquor dealer’s bond, a description of the locality of his place of business giving the State, city, street and number, is sufficient.</p> <p>4. —Same—Pleading.</p> <p>Where, in a suit upon a liquor dealer’s bond for sale of liquor to a minor, the defendant alleged that the sale was made in good faith upon a well grounded belief that the minor was of age, it was not reversible error for the court to overrule an exception to that part of plaintiff’s petition alleging, in substance, that the minor was small of stature and youthful in appearance.</p> <p>5. —Same—Emancipation, of Minor.</p> <p>The fact that the father had abandoned his minor son and had lost all supervision and control over him prior to bringing a suit against a liquor dealer for sale of liquor to said minor, constitutes no. defense to the suit.</p> <p>G.—Same—Character of Plaintiff no Defense.</p> <p>The bad character of the father, plaintiff in a suit upon a liquor dealer’s bond, is no defense to the suit.</p> <p>7. —Witness—Impeachment—Moral Character Irrelevant.</p> <p>A witness cannot be impeached by proof of general bad moral character.</p> <p>8. —Charge—Failure to Submit Issue.</p> <p>Where, in a suit for breach of a liquor dealer’s bond by sale of liquor to. a minor, the defendant plead that the plaintiff consented to such sale, and there was testimony tending to support the allegation, it was error for the court to refuse to affirmatively submit this issue to the jury.</p>

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

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

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

<p>1. —Action—Husband and Wife.</p> <p>Under the laws of this State a husband may bring an action in Ms own name against a telegraph company for the negligent failure to deliver a message addressed to his wife alone, and this, although at the time of making the contract the company had no notice that the plaintiff was the husband of the addressee and her agent for the receipt of the telegram addressed to her.</p> <p>2. —Telegraph. Company—Pleading.</p> <p>A telegram was sent to a third party requesting him to notify plaintiff’s wife that her brother was dead; in an action for damages for failure to deliver said telegram it was necessary to allege that if the telegram had been promptly delivered said party could and would have notified the wife in time for her to have availed herself of the information.</p> <p>3. —Same—Liability—Insufficient Evidence.</p> <p>Evidence considered, and held insufficient to show that the plaintiff was damaged by the failure of a telegraph company to deliver a message promptly.</p> <p>4. —Same—Notice—Evidence.</p> <p>In a suit against a telegraph company for failure to deliver a telegram in due time, plaintiff having alleged that by the exercise of ordinary care the addressee could have been found in a short time, testimony that at the time the message was filed with the defendant its agent was informed how to locate the addressee, was material and competent.</p>

<p>1.—Land Agent—Sale—Commissions.</p> <p>A land agent is entitled to his commissions if he is the efficient cause of the sale, as where he brings the parties together for the purpose of negotiating, notwithstanding the sale is afterwards concluded by the principal himself.</p> <p>8.—Trial by Court—Practice on Appeal.</p> <p>Where trial is by the court without a jury, the sufficiency of the evidence to support the conclusions reached may be reviewed on appeal though not presented to the trial court in a motion for new trial.</p>

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

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

<p>1. —Commissioners’ Court—Release of Debt—Constitutional Prohibition—Case Followed—Case Distinguished</p> <p>Under the provisions of article 3, section 55 of the Constitution, a Commissioners’ Court has no authority to release any part of a debt due to the county. Hence, an agreement between such court and the purchaser of the county’s school land whereby the rate of interest on the purchase money of said land was reduced from seven to three percent, was void. Delta County v. Blackburn, 100 Texas, 51, followed, Waggoner v. Wise County, 17 Texas Civ. App. 226, distinguished.</p> <p>2. —Corporations—Ultra Vires.</p> <p>Unlike natural persons, corporations, whether private or municipal, possess only such powers as are conferred upon them by law, and when they make contracts in excess of their powers persons dealing with them are charged with a knowledge of that fact, and a partial compliance by the corporation with the contract cannot make it valid by estoppel, or make that valid which was void at its inception.</p> <p>3. —Equitable Estoppel—Necessary Element.</p> <p>In order to render available a plea of equitable estoppel the party relying on the same must allege and prove that injustice will result to him unless such estoppel is allowed. Plea of estoppel against a county because of the making of, and partial compliance by the county with, a contract allowing a reduction of the interest on a debt due the county, considered, and held insufficient for the want of such pleading and proof.</p> <p>4. —Mistake of Law—Equitable Relief.</p> <p>While, in some eases equity will grant relief against mutual mistakes of law, a misapprehension of the law as to the right of a Commissioners’ Court to release a part of the debt due the county, is not, under the facts of this case, one of them.</p> <p>5. —County—Deficient in Area—Objection.</p> <p>When a county has been created by an Act of the Legislature and has been organized and recognized by the State for many years as one of its legal subdivisions, no one but the State can question its legal existence as a county and the validity of its acts as such, on the ground that it has not the constitutional area of 900 square miles. And, because the present Constitution, adopted since the county was created, recognizes all counties then existing as legal subdivisions of the State, the State itself may be cut off from questioning the validity of the Act creating the county.</p> <p>6.—Judgment—Insignificant Error.</p> <p>An error of $3.27 in a judgment for nearly $10,000, falls within the rule de minimis non curat lex.</p>

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

<p>1. —Death—Fireman—Movement of Engine—Signal.</p> <p>While a locomotive fireman was upon the running board of the engine for the purpose of blowing out the boiler in obedience to the orders of the engineer, the engine was started for the purpose of making a coupling; the bell was not rung and no other signal or notice was given to the fireman of the intention to make the coupling just at that moment; the jar of making the coupling caused the fireman to fall and receive injuries from which he died. Held, the issue of negligence on the part of the defendant in starting the engine and making the coupling without giving some signal or notice to the fireman, was an issue for the jury under all the circumstances in evidence, and this, although the fireman knew that the engine had gone to that place for the purpose of making the coupling.</p> <p>2. —Railroads—Moving Trains—Signals.</p> <p>In a suit for damages for the death of a railroad fireman caused by starting the engine and making a coupling while the fireman occupied an insecure position, without ringing the bell or giving other notice of the intention to make the coupling just at that time, charge submitting the issues considered, and held not subject to the several objections urged against it.</p> <p>3. —Death—Negligence—Evidence.</p> <p>In a suit for damages for the death of a fireman caused to fall from a locomotive by the jolt in making a coupling, evidence considered, and held sufficient to support the finding of the jury that the defendant was guilty of negligence.</p> <p>4. —Railroads—Movement of Engines—Expert Testimony.</p> <p>Whether or not a locomotive under given conditions would start of its own motion or would require steam to start it, is a matter about which persons not experienced in the operation of engines cannot be presumed to have knowledge, and therefore expert testimony should be admitted.</p> <p>5. —Evidence—Res Gestae.</p> <p>A statement made by the deceased fifteen or twenty seconds after the accident as to the cause and manner of his injury, was res gestae.</p> <p>6. —Death—Damages not Excessive.</p> <p>In a suit by the widow and two minor children for the death of the husband and father, evidence considered, and held that a verdict in favor of the widow for $10,000, and in favor of the two minor children for $7,500 each, was not excessive. Justice Neill dissenting.</p>

<p>. 1.—Will—Power—Fraudulent Execution.</p> <p>A will contained the following provisions: “I do hereby give, will and bequeathe unto my beloved wife all the estate that I shall leave or die possessed of, including real, personal and mixed property, leaving the same to her absolutely and in fee simple; provided, however, that if my said wife should remarry, then immediately upon the remarriage all such part of my estate as may not have been consumed by my wife, or remain in her hands, shall pass to and vest in all of my children, share and share alike, absolutely and in fee simple. This provision shall in no manner prevent my wife from selling and disposing of or using my estate as she sees fit, so long as she remains unmarried.” Held, that conveyance by the surviving wife to her intended husband and a reconveyance by him to her upon the éve of her remarriage was fraudulent as to the children and did not prevent the estate from vesting in them upon the remarriage of the wife, as provided by the will.</p> <p>3.—Stare Decisis.</p> <p>The doctrine of stare decisis does not apply to obiter dicta.</p> <p>3. —Will—Provision Against Marriage.</p> <p>A provision in a will that property devised to the surviving wife should pass to and vest in the testator’s children in case of the remarriage of the wife, is valid in this State.</p> <p>4. —Unwilling Witness—Leading Question—Practice.</p> <p>Where a witness clearly manifests a desire to evade answering questions propounded to him it is not error for the trial court to allow leading questions.</p> <p>5. —Evidence—Former Testimony.</p> <p>Testimony given upon a former trial by a party to the suit is competent evidence when the testimony is in the nature of admissions against interest.</p> <p>6. —Married Woman—Surety for—Judgment Over.</p> <p>One who becomes surety for husband and wife by pledging real estate, does not become entitled to judgment over against the married woman, in case he is held to pay the debt, without alleging and proving that such indebtedness was incurred for the benefit of the separate estate of the married woman.</p>

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

<p>Appeal from the 57th District Court, Bexar Count}’. Tried below before Hon. A. W. Seeligson.</p>

<p>1. —Personal Injury—Discovered Peril.</p> <p>To make out a case on the ground of discovered peril, the evidence must reasonably show that plaintiff’s position of peril was in fact discovered. The phrase “discovered peril” imports the absolute necessity of such proof. Mot only this, but it must reasonably tend to show that, when discovered, the one charged with the infliction of the injury did not exercise ordinary care to use all the means at hand, consistent with his duty to himself and others, to avert the injury.</p> <p>2. —Practice—Insufficient Evidence—Motion for Verdict.</p> <p>When, upon the conclusion of plaintiff’s evidence, the defendant deems the evidence insufficient to support a verdict for the plaintiff, he should there rest his case and rely on the refusal of the court to give a peremptory instruction for him. By introducing his own evidence the defendant waives the right to have the appellate court review the action of the trial court if the evidence of both parties taken together is sufficient to carry the case to the jury on any one or more of the issues raised by the pleading.</p> <p>3. —Discovered Peril—Knowledge—Antecedent Negligence.</p> <p>The principle of discovered peril has no application in the absence of actual knowledge on the part of the person inflicting the injury of the peril of the party injured in time to avoid the injury by the use of the means and agencies then at hand. If he had no such knowledge, the duty was not imposed, though by the exercise of reasonable care he might have acquired such knowledge. Any question as to the antecedent negligence of either party has no place in a case based upon discovered peril alone.</p> <p>4. —Same—Ordinary Care—Rule of Law.</p> <p>While it is the duty of a motorman, operating a car along the streets of a city, to exercise ordinary care to discover persons on the track, and although, as an incident to the discharge of the duty, he may discover a person in a situation of peril, there is no rule of law which makes it his duty to exercise any* degree of care to make such discovery, and a charge to that effect would be upon the weight of the evidence.</p> <p>5. —Pleading—Construction—Charge.</p> <p>Where, in a suit for personal injuries, plaintiff relies upon several grounds of negligence on the part of the defendant, but they are all predicated on the allegation that plaintiff was walking over and along a certan street when one of defendant’s cars struck, knocked him down, ran over him and injured him, it was error for the court to submit to the jury the issue of discovered peril upon the hypothesis that plaintiff was lying in the street with his feet on one of the rails of the car track when he was injured. The proof must correspond with the allegations.</p> <p>6. —Street Railroads—Right of Way.</p> <p>In a suit for personal injuries caused by being struck and injured by a street car, a charge to the effect that the street car company had no exclusive right to the use of that part of the street upon which its tracks are laid, but that plaintiff had an equal right to its use in traveling over and across it, is misleading and erroneous. Pedestrians have no right to obstruct the speedy progress of those who see fit to use the street cars, and should step aside, if possible, and allow the car to proceed.</p> <p>7. —Contributory Negligence—Evidence.</p> <p>In a suit for personal injuries caused by being struck and injured by a street car, evidence considered, and held to show that plaintiff was guilty of guch contributory negligence as to preclude a recovery by him,</p>

<p>1. —Master and Servant—Employment—False Statement.</p> <p>The fact that a servant obtains employment by making false statements to the master as to his personal record in the matter of suing railroads, will not relieve a master from the consequences of his negligence whereby the servant suffered personal injury.</p> <p>2. —Master and Servant—Assumed Risk—Charge.</p> <p>A charge on assumed risk to the effect that a servant does not assume the dangers which may be brought about by the negligence'of the master, unless he knows of the negligence and the dangers arising therefrom, “or in the discharge of his duty must necessarily have acquired the knowledge,” held correct. The distinction between the phrase “in the ordinary discharge of his duty,” and “in the exercise of ordinary care in doing his work,” held too refined to affect the verdict of an average jury.</p> <p>3. —Pleading—Negligence—Failure to Inspect.</p> <p>In a suit for personal injuries, an allegation by the plaintiff that “at said time the defendant knew or by reasonable care and inspection could have known of the. defective and wornout condition of said brake-chain or bolt and could have protected plaintiff from injuries,” raised the issue of negligence in the matter of inspection.</p> <p>4. —Master and Servant—Negligence—Prima Facie Case.</p> <p>In a suit for personal injuries, plaintiff makes a prima facie case by proving that while he was setting the brake on a car the chain broke, causing him to fall from the car; and the burden was on defendant to show that the accident was unavoidable, and that it had used care to furnish reasonably safe appliances for plaintiff.</p> <p>5. —Personal Injuries—Extent—Testimony.</p> <p>It belongs to the province of a jury to determine between the positive testimony of the plaintiff in a case as to the extent of his injuries, and the testimony of medical experts as to the probable effects of given injuries, and its determination will not be revised by an appellate court.</p>

<p>Married Woman—Deed—Minority of Husband.</p> <p>A married woman must be joined by her husband in a deed to her separate estate, and the fact that her husband is a minor is immaterial. This was the law under the statute of 1846 as well as under the present statute.</p>

<p>Appeal from the District Court of Angelina County. Tried below before Hon. James I. Perkins.</p>

<p>Appeal from the County Court of Fannin County. Tried below before Hon. H. A Cunningham.</p>

<p>1. —Personal Injuries—Joint Tort Feasor—Liability.</p> <p>In a suit against both a railroad company and a traction company for damages for personal injuries, the jury having found upon sufficient evidence that the traction company was guilty of such negligence as, either alone or concurring with that of the railroad company, proximately caused the plaintiff's injuries, it was not error for the court to exclude evidence offered by the traction company for the purpose of showing that the railroad company was also negligent in a certain particular.</p> <p>2. —New Trial—Cumulative Evidence.</p> <p>A new trial should not be granted for the purpose of enabling a party to the suit to offer evidence which is merely cumulative of evidence adduced upon the trial. Application for new trial upon the ground of newly discovered testimony considered, and held properly refused.</p> <p>3. —Personal Injuries—Collision of Cars—Negligence—Charge.</p> <p>In a suit for personal injuries resulting, from a collision between the cars of a railroad company and a traction company, charge of the court upon the issue of negligence vel non on the part of the employees of- the traction company in the care which they exercised before attempting to cross the railroad track, considered, and held correct and sufficiently specific to justify the trial court in refusing a special charge upon the same subject.</p> <p>4. —Charge—Application to Facts—Special Charge.</p> <p>Where the general charge of the court fails to make a practical application of the rules of law governing the case to the specific facts relied upon and adduced in evidence, either party has the right to have such omission cured by special charge tendered for that purpose; but this rule applies only to such facts as in law constitute a defense. Rule applied.</p>

<p>1. —Negotiable Instrument—Assignment—Proof.</p> <p>The assignee of a negotiable instrument may maintain a suit upon the same in his own name and may prove his ownership by parol testimony. A written assignment or endorsement is not the only method of proving the assignment.</p> <p>2. —Appeal—Suggestion of Delay—Effect.</p> <p>When an appellee suggests that the appeal is taken only for delay and prays for the statutory ten percent damages, the appellate court is thereby authorized to consider any and all errors, whether assigned or not, which the record discloses.</p> <p>3. —Promissory Note—Attorney’s Fee Clause—Effect upon Negotiability.</p> <p>A stipulation in a promissory note for the payment of a certain percent of the amount due, as attorney’s fee, does not destroy the negotiability of the note.</p> <p>4. —Same—Same—Nature of Contract.</p> <p>A stipulation in a written contract for the payment of a certain percent of the amount due as attorney’s fee in case suit is brought upon the same or it is placed in the hands of an attorney for collection, is a contract of indemnity only. It is not a penalty nor is it an agreement for liquidated damages. The plaintiff can recover only the amount paid or agreed to be paid to his attorney, not to exceed the percent stipulated.</p> <p>5. —Same—Pleading and Proof.</p> <p>To entitle a plaintiff to recover attorney’s fees under a contract stipulating for the same, his pleading and proof must be as full as upon any other contract of indemnity, and as if the suit was brought separately upon the agreement to pay attorney’s fees.</p> <p>6. —Attorney’s Fee Clause—Review of Cases.</p> <p>See this case for a full review of the cases evolving the doctrine now accepted upon the subject of the attorney’s fee elapse in written contracts,</p>

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

<p>1. —Evidence—Deed—Recitals.</p> <p>Where a power of attorney is introduced in evidence simply as a basis for a deed executed thereunder by the attorney in fact, the recitals in the power of attorney as to the heirship of the maker of the power, are not evidence of that fact, and this though the power of attorney is an ancient instrument.</p> <p>2. —Ancient Deed—Powers—Presumption of Fact—Rebuttal.</p> <p>A deed executed by an attorney in fact will be presumed, after the lapse of thirty years, to have been executed by virtue of some power of attorney even though a power in evidence did not authorize the making of the deed. But this is a presumption of fact which may be overcome by evidence to the contrary. Evidence considered, and held sufficient to overcome the presumption of the existence of any other power than that in evidence.</p> <p>3. —Sale of Land—Power Construed.</p> <p>A power of attorney which authorized the agents “to bargain, sell and convey, in fee simple by quit-claim deeds, for such price, upon such terms or credit, and to such person or persons as they jointly and severally shall think fit,” did not authorize a conveyance of a part of the land in consideration of a sum of money expended by the grantee in defense of a suit for the land.</p> <p>4. —Appeal—Filing Statement of Facts—Statute Construed—Practice.</p> <p>The Act of the 29th Legislature (Gen. Laws, 1905, chapter 112) with regard to the filing of the official stenographer’s notes in lieu of a statement of facts, did not repeal the provisions of the statute then existing with regard to the time of such filing. Hence the filing of such notes within the time allowed but without the approval of the trial judge until after such time had expired, was not a compliance with the law. But a motion to strike out said notes or statement of facts, filed by the appellee only one day before the submission, comes too late and will be construed as a waiver of the objection.</p>

<p>Personal Injuries—Proof of Poverty—Error.</p> <p>In a suit for damages for personal injuries, the admission of evidence, over objection, that the plaintiff was in destitute circumstances, is reversible error.</p>

<p>1. —Will—Power of Executors—Construction of Will.</p> <p>A will contained the following provision: “It is my further desire and will that all doubtful questions of construction in the interpretation of said will be conclusively determined according to their best judgment by said trustees without resort to the courts.” Held, under the power thus conferred, the trustees or executors named in the will had the power to determine what property was embraced in and referred to by the provisions of the will, and hence to determine the question whether or not it was the intention of the testator to dispose of the community estate of himself and his surviving wife as well as of his separate estate.</p> <p>2. —Same—Exercise of Power—Conclusiveness.</p> <p>When an arbiter honestly and in good faith exercises his power and passes upon a doubtful question, either of law or fact, his decision will- not be revised by a court, notwithstanding the court, whose interposition is invoked, may" think his interpretation is erroneous. Rule applied to the interpretation of a will by executors, in whom the power to interpret the same was vested by the terms of the will.</p> <p>3. —Same—Election to Take Under.</p> <p>In order to create the necessity for an election to take under a will there must appear a clear, unmistakable intention on the part of the testator to dispose of property not his own. Evidence considered, and held to manifest such intention.</p>

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

<p>1.—Street Railroad—Maintenance of Track—Ordinance Construed.</p> <p>In a suit for damages for personal injuries resulting from the track of a -street railroad being above the surface of the street, a charge that it was the duty of the street car company to keep and maintain the top of each rail of each track on a level at all points with the surface of the street, being in the exact language of an ordinance concerning the duty of the street car company in maintaining its tracks, was correct. It would be a safer rule for the protection of the public that regard should be had to the surface of the street as it actually exists rather than' to the grade line, if there should be any difference between the two,</p> <p>2. —Same—Pleading—Charge.</p> <p>Where, in a suit for damages against a street railroad, plaintiff alleged two grounds for recovery, viz., the negligence of the defendant in permitting the rails of its track to be above the surface of the street, and running its cars at a rate of speed in excess of that prescribed by a city ordinance, it was proper for the court under the pleading and the evidence to submit both grounds in its charge.</p> <p>3. —Charge—Assumption of Fact.</p> <p>It is not error for the court in its .charge to assume a fact as established when the evidence on the point is undisputed. Rule applied.</p> <p>4. —Charge—Submission of Issue Without Evidence.</p> <p>Where, in a suit for personal injuries, the defendant contended that the evidence did not raise the issue of discovered peril, it was not error for the court to refuse special charges requested by defendant submitting such issue.</p> <p>5. —Evidence—City Ordinances.</p> <p>A book purporting to be the ordinances of the city in which the action arose, and published presumably in obedience to the provisions of its charter requiring the ordinances to be published, is competent evidence of the ordinances.</p> <p>6. —Damages—Loss of Wife’s Services—Value.</p> <p>Where a husband sues for damages for the loss of his wife’s services, it is not necessary either to allege or prove the value of such services to make them elements of damage.</p>

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

<p>Appeal from the County Court of Delta County. Tried below before Hon. Jno. L. Ratliff.</p>

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

<p>1.—Deed—Rule in Shelley’s Case.</p> <p>Under the rule in Shelley’s case, a deed which recites a valuable consideration and that the grantor does thereby “grant, sell and convey unto the said B. H. Scott for the period of his natural life and after his death to the heirs of his body, lawfully begotten, said property,” and in which the habendum clause reads “To have and to , hold the above described premises. . . . unto the said Scott for the term of and during his natural life, as aforesaid, and after his death to the heirs of his body, lawfully begotten, etc.,” vests a fee simple title in the grantee.</p> <p>2.—Same.</p> <p>If it appears from a deed or will that the words “heirs of his body” are used to designate the children of the grantee or devisee, effect will be given to that intention and the estate conveyed or bequeathed will be limited to the life of the grantee or devisee with remainder in fee to the children designated.</p>

<p>Appeal from the County Court, of Dallas County. Tried below before Hon. H. F. Lively.</p>

<p>1.—Land Certificate—Sale—Title to Land.</p> <p>A sale by an administrator of a land certificate after it has been located and patented, does not pass title to the land.</p> <p>2. —Trial—Agreement of Counsel.</p> <p>An agreement between counsel that either party may read from a certain abstract any instrument therein contained with the same effect as if the loss of the original had been duly proven, does not include the right to read from the deed record an instrument embraced in the abstract, without proof of the loss of the original.</p> <p>3. —Charge—Exclusion of Issue.</p> <p>In a suit of trespass to try title wherein the defendant plead not guilty as well as limitation, charge considered, and held erroneous in that it eliminated every issue except limitation, and allowed the plaintiff to recover without proving a superior title.</p> <p>4. —Possession—Declarations as to. '</p> <p>Declarations, as well as acts of one in actual possession of land, showing that he claims to be the owner, are admissible as tending to show hostility of possession, and are not subject to the objection that they are self-serving.</p> <p>5. —Cumulative Evidence—Exclusion—Error.</p> <p>The exclusion of competent evidence is not rendered harmless hy the fact that other evidence to the same effect is before the jury. A different rule obtains as to the admission of incompetent evidence.</p> <p>6. —Argument of Counsel—Practice.</p> <p>Where the evidence is sharply conflicting upon a material issue, the improper remarks and conduct of counsel will constitute reversible error. Rule exemplified.</p>

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

<p>1. —Powers—Partition of Land.</p> <p>A power of attorney which authorized the agent “to ask, demand, sue for and recover for us all lands in the State of Texas to which we are entitled by inheritance or purchase or otherwise, hereby giving our said attorney full power to make, execute and deliver deeds of conveyance or other instruments, and to do and perform any and all acts necessary to be' done in and about the business as fully as we could do if we were personally present,” included the power to make partition of and execute deeds to the land of his principal.</p> <p>2. —Trespass to Try Title—Parol Partition.</p> <p>Where joint owners of land, acting under a supposed power to partition the same, have agreed upon a partition which is in fact fair and equitable and have taken possession of their respective portions and made permanent and valuable improvements, a court of equity will not disturb the partition even though the power under which they acted was defective.</p>

<p>1. —Set Off—Unliquidated Damages.</p> <p>A suit for the price of property sold for an agreed sum was for liquidated damages, and was not subject to be offset by a claim of defendant for unliquidated damages, not arising out of the same transaction, though also based on a contract.</p> <p>2. —Practice—Beginning and Close—Admission.</p> <p>It seems (in the opinion of Justice Rice) that an admission by defendant of plaintiff’s claim except as defeated by his defense, for the purpose of obtaining the right to open and close, would admit that the articles were sold to defendant at an agreed price, if such was the form of plaintiff’s pleadings.</p> <p>3. —Harmless Error.</p> <p>In a trial before the court the admission of improper evidence is not ground for reversal where the record shows that it was not considered by the court in arriving at his judgment.</p> <p>4. —Sale—Evidence.</p> <p>Evidence considered and held insufficient to support a claim by defendant that a machine was not sold to him at a price fixed, but was furnished him by plaintiff in lieu of another which did not fulfill the warranty given on its sale.</p>

<p>1. —Pleading—Venue—Personal Privilege.</p> <p>An exception to a petition in a suit of trespass to try title on the ground that “the court had no jurisdiction of the subject matter,” cannot be" accepted and considered as a plea of personal privilege to be sued in the county in which it appeared from the allegations of the petition that the land was situated and defendant resided.</p> <p>2. —Same—Order of Pleading.</p> <p>When a defendant asserts his right to be sued in a particular county such assertion is a plea in abatement whether presented by exception or otherwise, and a plea presenting that question, whatever be its form, must precede an answer to the merits, otherwise it will be treated as waived; nor can this effect be avoided by withdrawing an answer to the merits and filing the plea in abatement in due order of pleading.</p>

<p>1. —Gambling Contract—Evidence—Question of Fact.</p> <p>Evidence considered, and held sufficient to require the trial court to submit to the jury the question whether or not the parties, at the time a contract was made for the future delivery of cotton, contemplated an actual delivery, and, hence, such a contract as the law would enforce.</p> <p>2. —Same—Relevant Evidence.</p> <p>The issue being whether or not the parties to a contract for the future delivery of cotton contemplated and intended an actual delivery, the testimony of the plaintiff that during the delivery month he made arrangements with a bank for the money necessary to buy the amount of cotton named in the contract, was relevant and admissible.</p> <p>3. —Same—Purpose of Testimony—Practice.</p> <p>Unless requested so to do, a party offering evidence is not required to disclose the purpose for which it is offered, and any misapprehension of the court as to the purpose for which it is offered will not excuse an error in excluding the same in the absence of some act by the party offering the same or his attorney calculated to mislead the court.</p> <p>4. —Same—Evidence—Cotton Exchange.</p> <p>Upon the question whether or not a contract for the future delivery of cotton in New York City was a gambling contract, the charter of the New York Cotton Exchange was admissible in evidence, under the facts of this case.</p>

<p>1.—Personal Injuries—Charge—Omitting Issues.</p> <p>In a suit for damages caused by the collision of a street car with plaintiff’s buggy, a requested charge which ignored the issues of proximate cause, contributory negligence and the fact of injury, all of which were raised by the pleading and the evidence, was properly refused.</p> <p>Z.—Charge—Discovered Peril.</p> <p>Upon an issue of discovered peril, a charge which imposed upon the defendant the absolute duty to use all the means in his power, consistent with his safety, etc., to prevent the injury, is erroneous. In such case the duty imposed is to use ordinary care to use all the means in his power, etc.</p> <p>3.—Personal Injuries—Community Property—Contributory Negligence.</p> <p>In a suit for damages for personal injuries to his wife, the contributory negligence of the husband will prevent a recovery. Damages for personal injuries to the wife are community property for which the husband alone should sue;</p>

<p>1.—Republic of Mexico—Aliens—Inheritance—Trespass to Try Title.</p> <p>Under the laws of the Republic of Mexico in 1835 an heir domiciliated out of the said Republic could acquire no right by inheritance to the lands of persons dying in the province of Texas. Such heirs did not take a defeasible title, but had no title, and hence could not recover in trespass to try title against one in possession of the land.</p> <p>2. —Aliens—Act of 1840 Construed.</p> <p>The inhibition against inheritance by aliens to the Republic of Mexico was not removed by the Act of 1840. Said Act had no retroactive effect.</p> <p>3. —Appeal—Practice.</p> <p>Where, in trespass to try title, the defendant plead three special defenses, including limitation, and the court gave a general instruction to find for the defendant, without indicating upon what ground the instruction was based, it devolves upon the appellant to successfully attack every issue upon which the verdict could have' been rendered, and hence a failure of the appellant to attack the action of the court on the ground that the evidence on one of the issues was insufficient to authorize the action of the court, absolves the appellate court from the' duty of considering an assignment.that the evidence was insufficient to authorize an instructed verdict.</p> <p>4. —Practice on Appeal—Assignment of Error.</p> <p>Under leave granted upon the submission of a case to file a written argument in answer to an argument filed by appellee, counsel for appellant filed a supplemental brief setting up for the first time a new assignment of error. Held, a. violation of the rules, and a motion to strike out the supplemental brief should be sustained.</p>

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

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

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

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

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

<p>1. —Passenger—Alighting from Moving Train—Charge.</p> <p>In a suit for damages for personal injuries received while alighting from a moving railway train, a charge which unqualifiedly authorizes a recovery by the injured party if the train was suddenly started while such party was alighting therefrom even though the train had been stopped a sufficient length of time to enable her, in the exercise of diligence, to have left the train in safety, while subject to criticism, was not reversible error in view of other portions of the charge which properly qualified the right of recovery in such case.</p> <p>2. —Carrier—Discovered Peril—Pleading and Proof.</p> <p>When a carrier of passengers stops its train a sufficient length of time to enable a passenger, in the exercise of ordinary care, to alight in safety, it is the duty of the passenger to do so, and if he fails in this particular the carrier would only become liable upon allegation and proof that the carrier, with knowledge of the perilous position of the passenger, negligently set its train in motion, thereby injuring him. In the absence of allegation and proof of such knowledge on the part of the carrier, it is reversible error for the court to submit the issue of discovered peril in such a suit.</p> <p>3. —Charge on Weight of Evidence.</p> <p>In a suit for damages for personal injuries received while alighting from a passenger train, a charge which singles out the circumstances which the jury might consider as tending to excuse the passenger in jumping from the moving train, and which directs the jury that said circumstances would excuse the passenger unless the danger was so apparent that no person of ordinary prudence would have undertaken it, is objectionable as upon the weight of the evidence.</p>

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

<p>School Land—Commissioners’ Court—Power to Sell Pending Lease.</p> <p>The fact that the school land belonging to a county has been leased for a definite term, and that the term of office of the County Commissioners will expire before the term of the lease, would not affect the power of the Commissioners’ Court to make a valid sale of the land pending the lease, in the absence of any question of unfairness or fraud in the transaction.</p>

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

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

<p>Chattels—Fixtures—Mortgage—Homestead.</p> <p>When chattels have become so attached to the freehold as to make them fixtures and change their character into realty, a mortgage upon them by the husband or by the husband and wife is void if the land is the homestead at the time of the mortgage, and no intention or agreement to the contrary by and between the mortgagor and mortgagee can make the mortgage valid.</p>

<p>1. —Homestead—Death of Husband and Wife—Administration.</p> <p>The provisions of section 50, article 16 of the Constitution of this State, and of our statutes, exempting the homestead and certain named articles from liability for debts, were intended for the benefit of the constituents of the family during the lifetime only of the head of the family. No estate or right in the homestead or exempt property can be asserted by any constituent of the family independently of the head of the family. Upon the death of both the husband and. wife the heirs or devisees take the homestead and othér exempt property subject to the superior claims of creditors, except in so far as such property may be withdrawn from administration by section 52, article 16 of the Constitution, and chapters 17 and 18 of the Revised Statutes.</p> <p>2. —Exemption, Who Entitled to.</p> <p>Under the provisions of article 1869, Rev. Stats., all the estate of a decedent “except such as may be exempted by law from the payment of debts” descends to and vests in his heirs, devisees or legatees, subject to the claims of creditors; and under the provisions of section 52 of article 16, of the Constitution, and articles 2037, 2044, 2046 and 2049' of the Revised Statutes, it is only that portion of the estate which the court is required to set aside for the widow and minor children and unmarried daughters remaining with the family of the deceased, that is exempt from the payment of debts within the meaning of article 1869.</p> <p>3. —Exemptions—Administration—Creditors.</p> <p>While the Constitution exempts the homestead, and other property mentioned, to the family during its existence, it has left to the Legislature the right to continue such exemptions as it saw fit, after the death of the head of the family. In doing this, the Legislature lias confined the exemptions to certain named persons, to wit: the widow, minor children, and unmarried daughters remaining with the family.</p> <p>4. —Same—Minor Children—Definition.</p> <p>By the term “minor children,” as used in ■ section 52, article 16 of the Constitution, and in article 2046, Revised Statutes, is meant the immediate descendants of the deceased. Minor grandchildren are not included. The term “children” is said to include grandchildren only when it is used in the sense of “issue” or “descendants.”</p> <p>5. —Exemption—Grandchild—Administration.</p> <p>The existence of a minor grandchild as a constituent member of the family at the time of the death of the head of the family, would not prevent the subjection of the homestead of the decedent to administration and sale for the payment of debts of the decedent.</p> <p>6. —Estate—Divorced Daughter—Homestead.</p> <p>A married daughter separated from her husband and living with the family at the time of the death of the head of the family, would not be within the class of persons named in the statute as “unmarried daughters remaining with the family,” and would not, therefore, be entitled to the homestead exemption.</p>

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

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

<p>1. —Estates—Probate Law of 1836—Sale of Land—Presumption.</p> <p>While the probate law of December 20, 1836, provided for special terms of the probate court for the transaction of certain business, there was no statutory requirement that the order for such term should be entered in the minutes of the court, and in a collateral attack upon an administrator’s sale of land ordered sold at a special term of a probate court in 1841 it will be presumed that the preliminary statutory requirements were complied with, in the absence of affirmative evidence to the contrary.</p> <p>2. —Estates—Administrator’s Sale in 1841—Terms—Description—Confirmation.</p> <p>The probate law in force in 1841 did not require an express confirmation by the court of an administrator’s sale. An order requiring the administrator to sell on terms prescribed by law, was sufficiently definite and certain, since the law required sales to be made on twelve months credit. The description of the land sold as the “N. E. league” of a block of four leagues, was sufficient.</p> <p>3. —Same—Administrator as Trustee for Creditor.</p> <p>By order of the probate court certain notes for the purchase money of lands of the estate sold by the. administrator were distributed among the creditors in payment of their claims; when one of the notes fell due, the purchaser at administrator’s sale conveyed the land to the administrator in his individual capacity as the agent of the creditors in part satisfaction of the note; the administrator afterwards, in discharge of his agency, conveyed the land to the creditor to whom the note had been distributed. Held, the conveyance to the administrator did not vest the estate with the title to the land, and to have been legitimate and unobjectionable.</p> <p>4. —Trespass—Descent—Evidence.</p> <p>In a suit for the value of timber cut from land, the issue being whether or not defendant had an interest in the land by descent from a former owner, evidence considered, and held insufficient to sustain such claim.</p> <p>5. —Implied Partition—Cotenant—Acquiescence.</p> <p>Where a cotenant sells by metes and hounds a part of the tract jointly owned by herself and others, such part being less than her interest, it constitutes a partition "of the land to that extent which is binding upon her and may be acquiesced in by her cotenants, and in the absence of evidence to the contrary, acquiescence will be presumed after the lapse of many years.</p> <p>6. —Interveners—V erdict—Practice.</p> <p>Where, in a suit of trespass to try title, the jury, under instructions from the court, return a general verdict for plaintiff, it is sufficient to support a judgment against an intervener as well as against the defendant.</p>

<p>1. —Civil Action.—Measure of Proof—Charge.</p> <p>Only a preponderance of the evidence is the measure of proof in a civil case; hence a charge which requires the evidence to show “conclusively” a fact in issue, is erroneous.</p> <p>2. —Requested Charge—Partly Correct—Practice.</p> <p>Where a party to a trial requests a charge consisting of many paragraphs which are in the main, but not all correct, it is not reversible error for the court to refuse to give the charge in the form requested.</p>

<p>Estates—Conversion—Evidence.</p> <p>In a suit by an administrator to recover money of the estate converted by defendants, evidence considered, and „ held insufficient to support a finding that defendants were entitled to a credit for money paid for the benefit of the estate or as advancements to the heirs,</p>

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

<p>Appeal from the District Court of Jones County. Tried below before Hon. Cullen P. Higgins.</p>

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

<p>1. —Action—Verified Account—Statute Construed.</p> <p>An action for the contract price of a set of track scales was not upon such an account between the parties as could be verified under the statute in such way as to dispense with proof upon the part of the plaintiff. The statute does not apply to an isolated transaction by which a single article is sold upon the one hand and bought upon the other at an agreed price.</p> <p>2. —Secondary Evidence—Predicate.</p> <p>Where the evidence showed that all the correspondence relating to a certain transaction was in the hands of the attorneys for plaintiff and said attorneys had been notified to produce a certain letter included in said correspondence, a sufficient predicate had been laid for the introduction of secondary evidence of the contents of said letter.</p> <p>3. —Same—Admissibility.</p> <p>Because a plaintiff denies having received a certain letter relating to the transaction in controversy, is no reason for excluding secondary evidence of the contents of the letter. The denial of the plaintiff only affected the weight of the proposed evidence.</p> <p>4. —Contract—Waiver of Terms—liability.</p> <p>Where an article contracted for is shipped before the time specified in the contract of purchase, the purchaser is liable on his contract of purchase only in the event he waives the premature shipment and accepts the article as having been shipped in accordance with the contract.</p>

<p>1. —Railroads—Switching—Negligence</p> <p>In a suit for personal injuries received by being knocked down and run over by a moving train in a switch yard of the defendant company, evidence considered, and held to raise issues of negligence on the part of the defendant company which justified the court in refusing a peremptory instruction for the defendant.</p> <p>2. —Samé.</p> <p>An employee of the defendant railroad, the foreman of its cement gang, was neither a trespasser nor licensee while in the switch yards of the defendant for the purpose of getting his boarding car and tool car placed so that he could do the work which he had been ordered to do.</p> <p>3. —Switch Yards—Thoroughfare—Due Care.</p> <p>Where defendant’s switch yards are used as a thoroughfare by its employees it is the duty of the defendant to use due care that those in the yards should not be injured by the negligence of other employees in switching the cars.</p> <p>4. —Crossing Track—Negligence.</p> <p>A person must use ordinary care in crossing a railroad track, but it should be left to the jury to determine whether or not ordinary care was used in failing to look and listen in approaching the track.</p>

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