Volume 49 — Texas Civil Appeals Reports

<p>1. —Railway—Public Road — Crossing—Pleading.</p> <p>In a suit against a railway company for personal injuries received at a crossing over defendant’s track, pleading considered, and held, to sufficiently allege that the railroad crossing was a part of a public highway.</p> <p>2. —Railroad Crossing — Statute Construed.</p> <p>A railroad crossing, within the meaning of article 4426, Rev. Stats., is not confined to that portion of a railway company’s road-bed upon which the cross-ties and iron rails are laid, but extends to and includes the approaches of public roads thereto on its' right of way. A charge upon the duty of railroads to keep the road-crossings in repair, considered, and held correct.</p> <p>3. —Same—Knowledge of Defect — Contributory Negligence.</p> <p>Because a plaintiff had previous knowledge of a defect in a bridge, it does not follow, as matter of law, that he is guilty of contributory negligence in attempting to cross it. This is a question of fact to be submitted to the jury.</p> <p>4. —Road Crossing — Duty of Railroads.</p> <p>An absolute duty rests upon railroads under our statute to keep in repair the crossings of their track over public roads, and in a suit for damages for failure to do so, it is no defense that other portions of the same public road were not kept in repair, or were in no better repair than the crossing in question.</p> <p>5. —Same—Negligence—Question of Fact.</p> <p>, Because there was room enough on a bridge, on a railroad’s right of way, to cross on one side without stepping into a hole in the bridge, it would not follow, as matter of law, that the railroad was not guilty of negligence in permitting the bridge to remain in such condition. It was a question of fact for the jury.</p> <p>6. —Personal Injuries — Evidence—Charge.</p> <p>Where there was no evidence to prove certain injuries alleged, and the evidence as to other injuries alleged was conflicting, it was not reversible error for the court to refuse a special charge directed to that state of facts when, in the main charge, the jury were instructed that the burden of proof was upon the plaintiff to make out his case by a preponderance of the evidence, and they must believe from the evidence the existence of every fact necessary to a recovery by plaintiff.</p>

<p>1. —Statement of Facts — Approval of Judge.</p> <p>A trial judge is not bound by what the parties to a suit might agree on as.a statement of facts proved on the trial, but he has the power to make such corrections as he deems proper in accordance with the facts before approving the same.</p> <p>2. —Trespass to Try Title — Boundary—Agreement—Estoppel.</p> <p>Growing out of a dispute as to a boundary, a suit of forcible entry and detainer was filed for possession of the strip of land in dispute; pending that suit the defendant executed to the plaintiff a release in writing of all his right to the land involved therein, and the suit was dismissed; subsequently, the defendant in that suit filed a suit of trespass to try title against the plaintiff in that suit to recover said strip of land; the land in dispute in the forcible entry and detainer case was described in the complaint as being upon one survey, and in the petition in the- suit of trespass to try title it was alleged to be upon a different survey, but in both documents it was described by metes and bounds so that it was obvious that the land in controversy in both suits was the same, and the plaintiff in the latter suit admitted on the trial that such vras the case. Held, that in the suit of trespass to try title the court properly instructed a verdict for the defendant.</p>

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

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

<p>1. —'Witness—Question—Statement of Case,</p> <p>In a suit for personal injuries, a preliminary statement to a witness of the substance of the allegations in plaintiff’s petition, followed by the question, whether or not plaintiff met with an accident at the time and place and under the circumstances mentioned, is not subject to the objection that it is leading and calls for a conclusion of the witness.</p> <p>2. —Same—Testimony—Facts, not Conclusions.</p> <p>The answer of a witness as follows, “The car moved ahead in obedience to the signals. It started with a jerk, as I have stated, and threw plaintiff off into the street,” was not subject to the objection that it consisted of conclusions of the witness.</p> <p>3. —Street Railroads — Signal to Stop — Evidence.</p> <p>In a suit for personal injuries received in alighting from a street car, evidence considered, and held sufficient to authorize the court to submit to the jury the issue whether or not plaintiff had signaled the conductor to stop the car. Such signal may be given indirectly as well as directly.</p> <p>4. —Negligence—Charge.</p> <p>A charge should be considered in its entirety. In a suit for personal injuries, charge considered, and held not subject to the objection that it required the jury to find that plaintiff had been guilty of two or more acts of contributory negligence before they could find for defendant, when any one such act would have relieved defendant from liability.</p> <p>5. —Charge—Grouping of Facts.</p> <p>A charge is not necessarily upon the weight of the evidence simply because it presents in detail the facts pertaining to a theory of recovery relied on by a party. A party is entitled to have his theory of the case presented to the jury in connection with the very facts upon which he relies in support of it.</p> <p>6. —Street Railroads — Alighting from Moving Car — Negligence—Question of Fact.</p> <p>Whether or not a passenger is guilty of negligence in attempting to alight from a car while in motion, is a question of fact for the jury. Special charge - considered, and held to withdraw this question from the jury, and hence properly refused.</p>

<p>Appeal from the County Court of Bed Elver County. Tried below before Hon. J. M. Deaver.</p>

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

<p>Appeal from the County Court of Parker County. Tried below before Hon. B. L. Stennis.</p>

<p>1. —Evidence—Judgment of Other State — Proof.</p> <p>The judgment of another State may be proved by an examined copy, as at common law, or by a certified copy as provided by section 905 of the statutes of the United States. A copy of such a judgment certified by the clerk alone and not accompanied by a certificate of the judge of the court that the attestation was in due form, is not competent evidence.</p> <p>2. —Deed—Eecital of Consideration — Proof of True Consideration.</p> <p>Although a deed recites a valuable consideration it is competent to prove by testimony or circumstances that it was in fact a deed of gift.</p> <p>3. —Same—Declarations of Ancestor.</p> <p>One claiming land as an heir cannot testify to the declarations of the ancestor tending to prove that the land was the separate property of the ancestor.</p>

<p>Appeal from the County Court of Tarrant County. Tried below before Hon. John L. Terrell.</p>

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

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

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

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

<p>1. —Contract for Specific Performance — Venue.</p> <p>A suit for the specific performance of a contract for the sale of land is not a suit for the recovery of land or damages thereto, and hence must be brought in the county of defendant’s residence.</p> <p>2. —Non-resident—Appearance—Jurisdiction.</p> <p>In a suit for the specific performance of a contract for the sale of land, by a resident of this State against a non-resident, the appearance of the defendant, though only for the purpose of pleading in limine to the jurisdiction of the court, gives the court jurisdiction over his person for the purpose of rendering judgment against him.</p> <p>3. — Contract—Sale of land — Specific Performance — Evidence.</p> <p>The language “I may be willing to take $1,000 * * * and if you are willing to pay this price let me know and I will write you acceptance of the deal,” contained in a letter written by the owner of land to a prospective purchaser, wras not such a proposition as, if accepted, could be enforced in a suit for specific performance, when viewed in the light of all the correspondence, in evidence.</p>

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

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

<p>1. —Fellow Servant — Charge—Construction.</p> <p>In a suit for damages for personal injuries to an employee, a charge upon the liability of a railroad company for the negligence of a fellow servant considered, and held not obnoxious to the objection that it ignored the defenses of assumed risk and contributory negligence. A charge should be considered as an .entirety.</p> <p>2. —Assumed Risk — Knowledge—Charge.</p> <p>In a suit for personal injuries a charge that the plaintiff, an employee, assumed such risks as were known to him or must necessarily have been known in the ordinary discharge of the duties of his service, was correct and not subject to the objection that it limited the risks assumed to such as were “necessarily” known to the servant instead of such as could have been known by the use of ordinary care and caution in the discharge of his duties. Specially was such charge harmless when the issue of assumed risk was not raised by the evidence.</p> <p>3. —Damages—issue—Charge.</p> <p>Where, in a suit for personal injuries, the plaintiff makes no claim for damages by reason of a certain element of damages, and the court in its main charge does not authorize a recovery upon said ground, it was not error to refuse a special charge to the effect that the plaintiff was not entitled to recover on said ground.</p> <p>4. —Charge—Contributory Negligence.</p> <p>In a suit for personal injuries the defendant requested the court to charge the jury that if the plaintiff voluntarily placed himself in a dangerous position and the train of cars was being operated in the usual or customary manner for the purpose of effecting a coupling, he could not recover. Held, properly refused because it denied the plaintiff the right of recovery if the business was done in the usual and customary manner whether plaintiff knew it or not and whether defendant was guilty of negligence or not.</p> <p>5. —Item of Damages — Special Charge — Refusal, Harmless.</p> <p>Where, in a suit for personal injuries, the charge of the court specifically names the items of damage which the jury might consider, the refusal of the court to give a special charge withdrawing from the consideration of the jury the item of expenses for medical attention, was harmless error though the state of the evidence warranted such a charge.</p>

<p>1. — Local Option Election — Contest—Pleading.</p> <p>In a contest of a local option election, contestant alleged generally that the election was invalid because the polls at one of the voting boxes were closed at six instead of seven o’clock, whereby a large number of voters, whose vote would have changed .the result, were prevented from voting; and that the oath administered to the officers of the election was illegal and not binding. -• Held, that an exception to the petition was properly sustained. The facts relied on by a contestant of an election should be set forth specifically . and definitely. Said pleading was defective in not alleging that the result of the election would have been materially changed, and in not setting out the oath which was in fact administered to the officers of the election.</p> <p>. -2. — Same—Justice Precinct — Diminishing Territory.</p> <p>To abolish local option in a justice’s precinct requires a majority vote of the inhabitants of the same territory which adopted it. While local option was in force in a justice’s precinct the Commissioners Court of the county reduced the territory of the precinct, and thereafter ordered a local option election in the precinct as reduced. Held, that the election was void.</p> <p>3. —Same—Second Election within Two Years.</p> <p>After the adoption of local option in a given territory, a second election upon the same question cannot be held in the same territory within two years after the 'first election.</p> <p>4. —Same—Collateral Attack.</p> <p>When a local option election is void because ordered and held in a territory of less area than that- which adopted it, the same may be attacked and declared void in a collateral proceeding. A formal contest and judgment to that effect is not necessary.</p> <p>5. —Same—Declaring Result — Limitation. |</p> <p>The fact that more than one year had elapsed since the holding of a local option election and that the ballots and election returns had been destroyed, will not deprive the Commissioners Court of the county in which the election was held, from declaring the result.</p>

<p>Appointment of Receiver — Appeal Bond — Liability of Surety.</p> <p>The liability of a surety on a statutory appeal bond on an appeal from an order of a court refusing to vacate a receivership, is limited to the costs incurred by the motion to vacate the order appointing the receiver and the appeal from the judgment overruling that motion. Such surety is not liable for the costs of the entire suit.</p>

<p>1. —Deed—Reservation of Improvements — Innocent Purchaser — Evidence.</p> <p>Ordinarily a statement in a deed in a chain of title that certain improvements on the land conveyed belonged to a third party then in possession of the land, would charge a subsequent purchaser of the land with notice that said improvements did not pass with the land. But where the owner of the improvements abandons them and allows the owners of the land to exercise exclusive acts of ownership over them for five years, and declares to the attorney of a subsequent purchaser that he has no interest in the property, such facts will warrant a finding that the subsequent purchaser was an innocent purchaser and therefore entitled to hold the improvements.</p> <p>2. —Judgment—Parties—Effect.</p> <p>Where a party admits that he has no interest or fails to show any interest in the subject matter of the suit, he cannot complain of the disposition of the same by the judgment.</p> <p>3. —Trespass to Try Title — Hot Guilty — Defenses.</p> <p>The impleading of his warrantors and praying that he be quieted in his title by a defendant in trespass to try title is not pleading his title specially, and does not prevent him from making any defense he may desire under his plea of not guilty, except limitation.</p>

<p>1. —Action—Personal Injuries — Conditions Precedent — Statute of New Mexico.</p> <p>The statute of New Mexico which requires that certain acts be performed by a party contemplating a suit for damages for personal injuries as a condition precedent to the right to maintain such a suit, does not deprive the party of his property without due process of law where the party’s cause of action arose after the statute was passed. A statute which abrogates a cause of action for a personal injury before such cause of action has arisen, or before the injury occurs, or requires certain things to be done by the injured party as conditions precedent to a cause of action, does not deprive the injured party of his property without due process of law. Nor is such statute in violation of that provision of the Constitution of the United States which requires that the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.</p> <p>2. —Contract—Breach—Action—Venue.</p> <p>The prima facie rule is that the nature, obligation and interpretation of a contract, made in one State or Country, for the transportation • of persons or property from a point in that State or Country to a point in another, are governed by the laws of the State or Country in which the contract is made or the transportation commences. Hence a suit for personal injuries received in the Territory of New Mexico, based upon a breach of contract made in Pennsylvania where the common law was in force, to transport a passenger from Pennsylvania to California, may be maintained in Texas notwithstanding a statute of New Mexico requiring all suits for personal injuries occurring the Territory to be brought in the courts of that jurisdiction, and the performance of certain acts as conditions precedent to the right to maintain such suit.</p>

<p>. 1. — Evidence—Interrogatory not Leading — Harmless Error.</p> <p>' To the question, “If you state that you once surveyed said Hill tract of land, then say whether or not at the time you made the survey the outer boundaries of said tract had not been recently cut out and surveyed by another party; and if yea, then state, if you know, who made such survey ?” the witness answered, “E. W. Fenner, county surveyor of Bee County, Texas, surveyed the boundary lines of said Hill survey prior to the time I surveyed and subdivided it. I found the lines recently cut out, and followed them.” Held the question was not leading.</p> <p>2. —Same—Leading Question — Harmless, when..</p> <p>Overruling an ^objection to a leading question is harmless error when other evidence to the same effect has been admitted ' without objection. Interrogatories considered, and held not leading, or if leading the admission of the answers to the same was harmless error because other testimony to the same effect had been admitted without objection, and because there was no statement in the brief showing that the testimony was material.</p> <p>3. —Same—Leading Question — Definition.</p> <p>It seems that the definition of a leading question as “one which admits of an answer simply in the affirmative or negative, or which, embodying a material fact, suggests the desired answer,” is not always accurate. But where a question contains a series or group of facts and admits of a complete answer by a bare affirmation or negation, it is "clearly leading.</p> <p>4. —Boundary—Agreement not Binding, when.</p> <p>Where there is no dispute as to the boundary between contiguous owners of land, and one of them points out a line which he mistakenly supposes to be the dividing line, in the absence of facts which would constitute estoppel, the owner pointing out the line is not bound thereby.</p> <p>6. — Same.</p> <p>An agreement as to the dividing line between the owner of one tract and a tenant of the other owner, is not binding on either owner in the absence of authority in the tenant to make the agreement.</p> <p>6. —Same—Acquiescence.</p> <p>Mere acquiescence in the position of a boundary line, when no one has been induced to change his situation, for a period short of the longest period of limitation, is insufficient to estop the acquiescing party or raise the presumption of an agreement.</p> <p>7. —Limitation—Payment of Taxes.</p> <p>Although the payment of taxes is not necessary to support the ten years statute of limitation, still the failure to do so after the expiration of that period is a significant circumstance in ascertaining the character of the claim asserted.</p> <p>8. —Same—Possession—Definition—Case Criticized.</p> <p>In a charge upon the ten years’ statute of limitation the court defined peaceable and adverse possession as that which was “actual, continuous, visible, notorious, distinct, hostile — that is, adverse — fair and open, and of such a character as to indicate clearly a claim of ownership in the occupant.” Held, correct, and not subject to the objection that the statutory definition gives the essential element constituting title by limitation as peaceable and adverse possession, and that the court should not undertake to amplify said terms. The case of Logan v. Meads, 43 Texas Civ. App., 477, criticised.</p> <p>9. — Evidence—Admissions—Competency.</p> <p>Admissions against interest made to a third party and not to the antagonist in the controversy or to some one representing him, are competent evidence, and cannot be avoided by the claim that they were made by way of compromise.</p>

<p>1. —Common law Marriage — Notice.</p> <p>The relation of husband and wife brought into existence by a common law marriage is precisely the same as that which attaches to a marriage entered into in conformity to the written law, and all persons dealing with the husband are charged with the same notice of the relationship in the one case as in the other.</p> <p>2. —Marriage license — Record—Purpose.</p> <p>The record of a marriage license and the return thereon showing the marriage of the parties, is not constructive notice to third parties dealing with either spouse of his or her relation to the other. Such license and record are primarily intended for the benefit of the parties and those claiming rights growing out of their relation as husband and wife.</p> <p>3. —Marriage—Notice of — loan on Homestead.</p> <p>One who lends money to a married man and takes a mortgage on real estate, the record title to which appears to be in him, to secure it, is not charged as matter of law with knowledge of the fact that the borrower is a married man. And if the lender has no notice that the borrower is in fact a married man, and is not charged with notice that the real estate is homestead, the mortgage will be valid as against a homestead claim.</p> <p>4. —Homestead—Designation—Prerogative of Husband.</p> <p>From the nature of the marriage relation in this State it belongs to the husband to designate the homestead. The wishes, intention and acts of the wife are immaterial.</p> <p>5. —Homestead—Designation—Evidence.</p> <p>' Where a married man purchased a house and lot suitable for a home, but never occupied- it and kept it rented for thirteen years to other persons, a mortgage upon the property by the husband a short time after the purchase, was valid as against the homestead claim of the wife asserted after she had been abandoned by her husband, fourteen years after the purchase.</p> <p>6. —Judgment—Recital—Presumption.</p> <p>Where a married woman, abandoned by her husband, attacks a judgment of foreclosure upon land claimed as her homestead, on the ground that she was not cited to answer the foreclosure suit and did not appear therein, a recital in the judgment that the defendants appeared “each in person” will be presumed to be true in the absence of direct evidence to the contrary, when such evidence is available. Inferences from circumstances will not be sufficient to overcome the recital and annul the judgment.</p> <p>ON REHEARING.</p> <p>7. —Homestead—Notice.</p> <p>Where property is in fact a homestead, evidenced by use and occupancy, knowledge of all the facts essential to its existence is imputed to a mortgagee, and the mortgagee stands charged with notice of the fact of homestead in spite of declarations to the contrary by the borrower. But where property is not in actual use as a homestead, representations by the owner amounting to fraud will estop him from setting up the claim against persons acting on such representations in ignorance of the homestead claim.</p>

<p>X. — Anti-Trust Law — Injunction—Equity—“Clean Hands.”</p> <p>In a suit by .injunction to restrain the officers of a corporation from violating the anti-trust laws of the State, an answer of the defendant, in effect, that the plaintiffs were formerly managing officers of the corporation and while such officers made the same character of contracts and engaged in the same practices as those which they now seek to enjoin, and that the suit was instituted for ulterior purposes, was properly stricken out on exception. The maxim “He who comes into equity must come with clean hands,” had no application. The iniquity which will bar a complaint must be directly connected with the matter - in litigation.</p> <p>2. —Injunction—Decree—Particularity.</p> <p>The decree of a court granting an injunction should specify with certainty the particular acts to be done or not to be done, in order that the party enjoined will have a definite guide by which to shape his conduct, and should within itself apprise the defendant what he is restrained from doing without the necessity of consulting the bill. Decree considered, and held defective in this respect.</p> <p>3. —Auditor—Duties—Report.</p> <p>The duty of an auditor is to so make up an account that the disputed items' upon either side may be eliminated from the contest and the issue thereby narrowed to the points in dispute. Items in his report not excepted to, are conclusive, but as to such as are excepted to, the report is without effect. Report of an auditor considered, and held to contain his conclusions and other matters upon which he was not authorized to pass.</p> <p>4. —Taxing Cost — Practice.</p> <p>An appellate court will not consider a question as to the taxing of costs when the record shows that the question was not raised or passed upon in the trial court.</p>

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

<p>1. —Evidence—Declaration of Injured Person.</p> <p>The mere descriptive statements of a sick or injured person can be admitted in evidence only when made (1), to a medical attendant or nurse for purposes of medical treatment; or (2), they must relate to existing pain or other symptoms from which the person is then suffering; or (3), such statements or explanatory symptoms are admissible when the medical attendant or nurse is called upon to give a conclusion based in part upon them and are explanatory of the conclusion of such medical attendant or nurse.</p> <p>2. —Same—Case Stated.</p> <p>In a suit for damages for personal injuries, a non-expert witness for the plaintiff was asked the following question:: “If Mr. R., (the plaintiff) during the time mentioned, has complained to you about his physical condition, then state what he complained about, and what he said were his feelings and sufferings, if any. If he complained of any pain, then state what his pains were.” To which the witness would have answered “Mr. R. during the fall of 1904 and since then, has often complained about his physical condition. Mr. R. complained of his side, often complaining of severe pain. The pains he suffered and complained of were in his side.” Held, the answer was not competent testimony.</p> <p>3. —Same—Res Gestae.</p> <p>The declaration of an injured person made immediately after the injury and at the place where the injury occurred, is admissible under the doctrine of res gestae.</p> <p>4. —Railroads—Passenger—Standing upon Platform — Negligence.</p> <p>Where a passenger on a railroad has been provided with a seat in the coach and he voluntarily abandons his seat and goes upon the platform of the car while the same is in motion, and his riding there contributes to his injury, he is prima facie guilty of negligence, and the burden rests upon him to overcome the imputation of negligence by showing that he was upon the platform either from the necessity of the situation, or by direction or inducement of those in charge of the train. When this is done, a question of fact is presented for the jury to say whether the passenger acted as a reasonably cautious and prudent person would have acted under similar circumstances. Evidence considered, and held to raise this question, and a charge considered and held to properly submit the same to the jury, in the absence of a special instruction presenting the converse phase of the case which the plaintiff might have requested but did not.</p> <p>5. —Same—W arning — Evidence.</p> <p>Evidence of warning, given by a railroad employee to a passenger, of an impending collision, considered, and held insufficient to raise the issue of contributory negligence on the part of the passenger in failing to heed the alleged warning.</p>

<p>Appeal from the District Court of Howard County. Tried below before Hon. B. G. Smith.</p>

<p>Homestead — Uses—Evidence.</p> <p>The mere fact that a lot in a city may be occasionally used for a family purpose, such as to grow vegetables, shelter live stock, or furnish water, is not enough to impress it with the homestead character. The principal use to which the lot is subjected must be looked to, and where such use is merely to bring in an income, and the family use is secondary and subordinate, the property cannot be deemed a part of the homestead. But where the conditions are reversed, and the principal use is by and for the family, a partial and occasional use for other purposes will not affect the homestead character.</p>

<p>Appeal from the District Court of Anderson County. Tried below before Hon. John J. Word, Special Judge.</p>

<p>1. —Appeal—Assignment of Error — Rule 31.</p> <p>An assignment of error based upon the admission of evidence, followed by a statement which fails to show what objection was made to the introduction of the evidence, or what ruling was made by the court upon such objection, and which does not refer to any bill of exception or page of the record from which the appellate court might ascertain what the objection and the ruling were, will not be considered on appeal.</p> <p>2. —Defective Deed — Ratification.</p> <p>Where a married woman and her husband sell and attempt to convey a tract of land, receiving from the vendee a valuable consideration, and subsequently a third party claiming the same land obtains from the vendors for only a nominal consideration, a quit claim deed to himself upon the understanding that the last deed was executed for the purpose of correcting the defects in the first deed, the grantee in the quit claim deed will be held a trustee of the legal title for the benefit of the grantee in the first deed who paid the only valuable consideration and was therefore the equitable owner.</p>

<p>• Appeal from the District Court of Potter County. Tried below before Hon. J. N. Browning.</p>

<p>Appeal from the District Court of Hale County. Tried below before Hon. L. S. Kinder.</p>

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

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

<p>1. —Peremptory Charge — Practice.</p> <p>Where there is no room for difference of opinion on the undisputed evidence it is proper for the trial court to instruct a verdict in accordance with the evidence.</p> <p>2. —Trial—Argument of Counsel.</p> <p>In a suit for damages for personal injuries received in a collision of railroad trains, counsel for plaintiff used the following language in his opening argument: “Consider how this man (the plaintiff) must have suffered, pinned there against the wall with all this weight of seats and debris piled on top of him, and poor old man Trippett beneath him.” Held, under the circumstances, the reference to Trippett, who was fatally injured, was not improper.</p>

<p>1. —Contract—Part Verbal, Part Written — Proof.</p> <p>Where a tract of land was exchanged for a stock of merchandise and several town lots, and deeds were executed by the parties respectively to the land and lots, but there was no written evidence of the terms of the exchange, paroi evidence was admissible as to the terms of the contract of exchange.</p> <p>2. —Contract—Breach—Damages—Estoppel.</p> <p>Where D. and S. exchanged property, D. agreeing to discharge certain debts which constituted an incumbrance on the property given by him in exchange, and failed to do so, whereby S. loses said property, the fact that S. sued the parties seizing said property for its value and for damages for the seizure of the same, would not estop him from demanding from D. the value of the property so lost, and which he failed to recover from the parties appropriating the same.</p> <p>3. —Set-off—Insolvency.</p> <p>Where the plaintiff in a suit upon promissory notes is insolvent, it is proper to allow the defendant to offset the amount of the notes with damages suffered by him by reason of a breach by the plaintiff of the contract to , which the notes relate.</p>

<p>1. —Trespass to Try Title — Limitation—Peremptory Charge.</p> <p>Where, in a suit of trespass to try title, it appeared from the undisputed competent evidence, that the adverse claimants of the land in controversy were in actual possession of the same at the time of the death of the owner and remained in such possession of the same for more than ten years before the institution of the suit, a peremptory charge for the defendants was proper without regard to possible errors in the admission of other evidence on the trial.</p> <p>2. —Same—Res Adjudieata.</p> <p>A final judgment of a court of competent jurisdiction against unknown heirs is conclusive of the rights of such heirs.</p>

<p>1. — Carrier of Live Stock — Negligence—Pleading.</p> <p>In an action against a railroad company for damage to a shipment of cattle caused by negligence in handling and delay in transportation, pleadings considered, and held not subject to special exception on the ground that they were not sufficiently full and specific.</p> <p>2. —Same—Reasonable Care — Charge.</p> <p>In an action against a railroad company for damage to a shipment of cattle the court charged the jury that it was the duty of a railroad company to transport the cattle with all reasonable diligence and speed and within a reasonable time. Held, that the distinction between said charge and a charge to the effect that it was the duty of the railroad company to exercise reasonable care to safely transport within a reasonable time etc., is too nice to justify the conclusion that the jury were misled thereby. The two forms of expression are often treated as interchangeable.</p> <p>3. —Charge—Practice.</p> <p>It is permissible for a trial judge in his charge to first state the rules of law pertinent to the case in the abstract, and then in the concrete in submitting the issues of fact to the jury.</p> <p>4. —Improper Argument — Harmless, when.</p> <p>Improper language used by counsel in addressing the jury becomes harmless when withdrawn by the counsel and the jury are instructed by the court to disregard it.</p>

<p>1. —Eire Insurance — Payment of Premium.</p> <p>The actual payment of the premium on a policy of fire insurance is not essential to the validity of the contract in the absence of a stipulation in the policy to that effect and in the absence of some limitation upon the authority of the agen,t of the insurance company to contract for insurance on a credit, and avoiding the policy if the premium be not paid.</p> <p>2. —Same—Contract of Renewal — Evidence.</p> <p>Upon the issue whether or not.a contract was entered into between the plaintiff and the agent of an insurance company for a renewal of a policy of fire insurance when the same should expire-, evidence set out and considered, and held sufficient to support a finding of the jury that such a contract had been made and that the insurance company was bound thereby.</p> <p>3. —Same—Same.</p> <p>When the contract is to renew a policy of fire insurance and there is no evidence of new or additional terms, the presumption is that the renewal is to be in the same company, for the same time, terms, amount, premium, and on the same property as the old policy. The very request to renew a policy implies that the new policy shall be exactly like and similar to the old policy.</p> <p>4. —Same—Contract of Renewal.</p> <p>An action may be sustained upon a contract to renew a policy of fire insurance, and in the absence of evidence to the contrary, the implication arises that the renewal is upon the same terms and conditions as stated in the old policy and for the same amount.</p> <p>5. —Same—Payment of Premium — Waiver—Evidence.</p> <p>In ascertaining whether or not the payment of the premium has been waived upon a contract for the renewal of a policy of fire insurance, the habit and custom and course of dealing between the assured and the agent of the company, may be looked to.</p> <p>6. —Conflicting Testimony — Province of Jury.</p> <p>Although the testimony in a case may ■ be ■ conflicting and totally irreconcilable, the jury have the right to accept the testimony of one party and to, discard that of the other, and to render a verdict accordingly.</p> <p>7. —Fire Insurance — Renewal of Policy Before Expiration.</p> <p>A policy of fire insurance contained the following provision: “This policy may, by a renewal, be continued under the original stipulations, in consideration of premium for renewed term, provided that any increase of hazard must be made known to this company at the time of renewal, or this policy will be void.” Held, not to prohibit a contract, for the renewal of the policy, several months before the expiration of the same.</p> <p>8. —Charge—Fuller Instruction — Practice.</p> <p>A mere suggestion to the court is not sufficient to require the court to submit an issue to the jury. To place the court in default, a charge should be prepared, properly presenting the issue desired to be passed upon, and the . court should be requested to give the same.</p> <p>9. —Fire Insurance — Accrual of Interest.</p> <p>The amount due upon a policy of fire insurance should bear interest from the date when it is made payable in case of loss. When the loss is made payable by the terms of the policy 60 days after proof of loss, this fixes the maturity of the contract. In case of proof of loss is waived, interest should run from the date of the waiver.</p>

<p>Appeal from the District Court of Johnson. County. Tried below before Hon. O. L. Lockett.</p>

<p>Appeal from the District Court of Harris Count}'. Tried below ■ before Hon. W. P. Hamblen.</p> <p>“Know all men by these presents: That we, J. I. Campbell Company, incorporated, of Houston, Harris County, Texas, acting by its President, I. L. Campbell, of the county and State aforesaid, for and in consideration of the sum of Ten Thousand and no 100 dollars to us in hand paid by Brazelton & Johnson, of Waco, McLennan County, Texas, the receipt of which is hereby acknowledged, have bargained, sold and delivered, and by these presents do bargain, sell and deliver unto the said Brazelton & Johnson, of the county of McLennan, and State of Texas, all of the following described personal property in Tyler County, Texas, to wit: all that certain lot of yellow; pine lumber stacked at our mill at Warren, Tyler County, Texas, which is shown in schedule attached, which lumber we agree to keep insured in the sum of Ten Thousand Dollars, or a suni ■ sufficient to repay Brazelton & Johnson’s interest in same. Policies to be delivered to them and payable to them as their interest may appear. Same to be marked in pile CB. & J.’ ”</p> <p>Exhibit “B” referred to reads as follows, to wit:</p> <p>“State of Texas, )</p> <p>■ County of.....}</p> <p>“This memorandum of contract made and entered into this, the 8th day of February, 1905, by and between the J. I. Campbell Company, incorporated, of Houston, Harris County, Texasj party of the first part, and Brazelton & Johnson, of McLennan County, Texas, party of the second part, witnesseth:</p> <p>“That the said J. I. Campbell Company does contract and bind itself and does by these presents contract and bind as follows:</p> <p>“Whereas, they have this day sold to the said Brazelton & Johnson a certain lot of lumber aggregating 1,253,021 feet of dry yellow pine lumber, now on their yards at their mill in Warren, Tyler County, Texas, schedule of which is hereby attached;</p> <p>“That they will dress, load upon cars and ship the same to such point or points as they may from time to time be ordered by Brazelton & Johnson to ship said schedule of lumber so sold.</p> <p>“They further agree and bind that whereas, they have at tlie , mill of the Lake Charles Lumber Company at Lake Charles, Louisiana, a certain schedule of lumber made and attached hereto aggregating 1,720,270 feet yellow pine lumber, that the said Brazelton & Johnson may have the option to order from the said schedule at . Lake Charles, La., and that they will exchange to them such lumber ordered from Lake Charles for equal number of feet in the list at Warren, Texas. They further agree that the said Brazelton & Johnson may send to them orders from time to time for lumber not shown upon either of above schedules, and that if they, the said J. I. Campbell Co., can fill the said orders from other stocks that they will do so and will exchange said stock so shipped for equal amount of lumber from the stock at Warren, Texas, described above.</p> <p>“They agree that the price upon which final settlement shall be made for the schedule of lumber at Warren, Texas, exhibited above, and this day sold to Brazelton & Johnson, shall be the net price received by Brazelton & Johnson from customers or their own yards, to which they will sell at wholesale less One Dollar ($1.00) per thousand feet, which shall be Brazelton & Johnson’s marginal profit in this sale and purchase.</p> <p>“The said Brazelton & Johnson hereby acknowledge the purchase of the schedule of lumber at Warren, Texas, and hereby agree to order out from said J. I. Campbell Company 1,253,821 feet of yellow pine lumber according to the terms and conditions above set out.</p> <p>“They agree that they will sell the same at wholesale to their customers and their retail yards at reasonable market values reasonably in line with market conditions and that they will pay to the said J. I. Campbell Company the net price" received after deductions of freight upon lumber sold delivered or the net price received F. O. B. when sold F. 0. B., less a profit to themselves of One Dollar ($1.00) per thousand feet on all lumber sold.</p> <p>“They agree that the settlement shall be made as follows: After</p> <p>shipments have been made by the said J. I. Campbell Company amounting to Ten Thousand Dollars ($10,000.00), the amount of the purchase price today paid them, they will on further shipments remit on the 6th day of each current month at prices named above, in cash, less (2%) two percent discount for all lumber shipped during previous month.</p> <p>“(Signed in duplicate this day.)</p> <p>“(Signed) J. I. Campbell Company,</p> <p>“By I. L. Campbell, President.'</p> <p>“Brazelton & Johnson.”</p> <p>Attached to this contract is a detailed description of the lumber at Warren, Texas, described in Exhibit “A” above set out, and also a detailed description of the lumber on hand at Lake Charles, Louisiana, referred to above.</p>

<p>Contract — Construction—Duty of Court.</p> <p>When there is no ambiguity in an instrument and the intention of the parties may be ascertained from its terms without explanation, it is the duty of the court to construe it for the jury and to instruct them as to the rights of the parties. Contract concerning the operation of a cotton press considered, and held to be free from ambiguity or technical words and such as called for a peremptory instruction from the court in favor of the defendant.</p>

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

<p>1. —Pawnbroker—Sale by — Failure to Comply with Statutory Regulations.</p> <p>A sale of pawned articles by a licensed pawnbroker is not rendered invalid by a failure on the part of the pawnbroker to comply with the requirements of article 3645 "of the Revised Statutes concerning the making and filing with the county clerk of a report of such sale. The purpose of said statute was to give publicity to such sales for police surveillance.</p> <p>2. —Pawnbroker—Trustee for Pledgor — Purchase at His Own Sale.</p> <p>A pawnbroker, in selling pawned articles, becomes a trustee for the owner. The sale -by him must be conducted fairly and in good faith, and in such a way as to subserve not only his own rights, but also the highest interests of the pledgor. Being a trustee, he cannot become a purchaser of the pledged property at bis own sale, without the consent of the pledgor. Such a purchase is prima facie voidable, and the burden is on the pawnbroker to show that the sale was made according to law and under circumstances of the utmost fair dealing and good faith.</p> <p>3. —Same—Case Stated.</p> <p>In a suit by the owner of pawned articles against a pawnbrokerage company for the value of certain articles pawned with it and sold and bought in by the company, it appeared that at the sale the jeweler of the company acted as auctioneer; that the defendant’s general manager, who was a stockholder in the company, conducted the sale and bid in the property at the amount of the loan, which he knew to be about one-half of its value and no other bidders were present at the sale. Held, that the sale was invalid, and the plaintiff entitled to recover. '</p>

<p>1. — Damages—Parties—Alternative Prayer.</p> <p>In a suit by several parties for the value of cattle alleged to have been seized by writ of attachment and converted by the defendant, it was competent for plaintiffs to allege, in separate counts, that they were partners in the ownership of the cattle, or that they were joint owners of the cattle, and to ask an alternative recovery in accordance with the facts found.</p> <p>2. —Announcement for Trial — Withdrawal—Practice.</p> <p>An assignment of error based upon the refusal of the trial court to allow appellant to withdraw its announcement of ready for trial, cannot be considered when the record contains no bill of exception to the action of the court.</p> <p>3. —Confusion of Goods — Evidence.</p> <p>When cattle which are bought and owned individually by one member of a partnership are so branded as to distinguish them from the partnership cattle, the doctrine of confusion of goods does not apply although the cattle are all placed in the same pasture.</p>

<p>1. —Personal Injuries — Section Foreman — Evidence—Charge.</p> <p>In a suit by the surviving wife and children for damages for the death of a section foreman on a railroad caused by injuries received while attempting to remove a handcar from the track before an approaching train, evidence considered, and held to support a finding by the jury that the deceased was not guilty of contributory negligence or of rash and reckless conduct, under all the circumstances, in attempting to remove said car, and the charge of the court correctly submitted the issues made by the pleading and the evidence on that issue.</p> <p>2. —Railroads—Section Foreman — Violation of Rules — Issue.</p> <p>The issue being whether or not a section foreman had violated the rules prescribed by the defendant company for the guidance and government of its section men in the performance of their duties, charge considered, and held to propel ly submit the question as one of fact for determination by the jury, and the evidence supported a finding by the jury that there was no violation.</p> <p>3. —Same—Road Crossings — Signals—Statute Construed.</p> <p>The provision of the statute requiring that the whistle shall be blown and the bell rung when a locomotive engine approaches the crossing of any public road or street, is intended for the protection of those engaged in the performance of their duties upon the track as well as for the protection of persons who may be about to cross the track.</p> <p>4. —Same—Operation—Duty of lookout.</p> <p>It is the duty of operatives of railroad trains to keep a general lookout, and to exercise ordinary care to discover persons rightfully on the track at such places as persons may be expected to be, and a failure to keep such lookout renders the company liable for injuries resulting therefrom in the absence of contributory negligence on the part of the person injured.</p> <p>5. —Discovered Peril — Evidence.</p> <p>In a suit for damages for the death of a section foreman while attempting to remove a handcar from the track while a train was approaching, evidence considered, and held to raise the issue of discovered peril, and to require thei submission of such issue to the jury.</p> <p>6. —Railroads—Passenger Train — Freight Engine — Harmless Error.</p> <p>In a suit for damages for the death of a section foreman struck by a passenger train, the admission of evidence that the train was drawn by a freight engine and that the engineer was a freight engineer, if error, was harmless in view of evidence that there was practically no difference in the construction of freight and passenger engines; that no greater skill was required to operate one than the other, and that the engineer was not lacking in skill in the operation of either.</p>

Tried below before Hon. A. E. Amerman. Heath purchased from Williamson a bull for breeding purposes, paying therefor the sum of $350, on the 7th day of April, 1903. Williamson guaranteed that the bull was a breeder and agreed to refund the difference between $350 and the value of the bull for beef in the event the bull proved impotent upon satisfactory proof of that fact being made.

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

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

<p>1. —Bailroad Crossing — Collision—Negligence.</p> <p>Railroad employees, having the right of way over the crossing of another railroad, have the right to presume that the employees of the other road will observe, not only the rules of the company but the dictates of common sense and a just recognition of the rights of others, and not recklessly cause a collision, and hence the employees of the road having the right of way cannot be charged with contributory negligence in-relying upon such presumption. Evidence considered, and held to show negligence on the part of the defendant company.</p> <p>2. —Personal Injuries — Pain—Declarations—Res Gestae — Evidence.</p> <p>In a suit for damages for personal • injuries declarations of the injured party made to a medical expert for the purpose of qualifying him to testify in the case, are not admissible in evidence. But declarations made during the course of treatment and while the patient-is still suffering are admissible as res gestae, and the length of time which may have elapsed between the injury and the declaration, is immaterial.</p> <p>3. —Charges—Conflict—Assignment of Error.</p> <p>In a suit for personal injuries, contributory negligence being the issue, a conflict in the charges of the court, by one of which it was assumed that the plaintiff saw the approaching engine and by the other it was left to be found as a fact by the jury, was not such error as could be taken advantage of on appeal without an assignment of error based thereon.</p>

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

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

<p>Parties — Action Against Partnership — Several Liability of Partners.</p> <p>Each member of a partnership is individually liable for tort or breach of contract by the firm of which he is a member, and may be sued therefor alone without joining the other members of the partnership or the partnership in the suit.</p>

<p>1. —Contract—Signature—Misnomer.</p> <p>Where a married woman was unable to write her name, and the notary at her request wrote her name for her to a contract for improvements on the homestead, the mistake of the notary in writing her name as “Lutiea” instead of "Lutitia” both in the signature and in the certificate of acknowledgment, was immaterial in the absence of any controversy as to the identity of the person who executed and acknowledged the contract.</p> <p>2. —Acknowledgment—Suit to Correct — Limitation.</p> <p>In a suit to correct a certificate of acknowledgment of a married woman, evidence considered, and held sufficient to support a finding that the suit was filed within four years.</p> <p>3. —Limitation—Filing Amendment — Leave of Court.</p> <p>It seems that the actual filing of an amended petition setting up a new cause of action will interrupt the statute of limitation although the pleading is filed without leave of the court having been previously obtained and without the knowledge of the defendant.</p> <p>4. —Acknowledgment of Married Woman.</p> <p>The certificate of acknowledgment of a married woman being in statutory form, the testimony of the notary that he did not remember whether or not he explained any part of the instrument to the woman, but if she objected, he did so, was insufficient to raise the issue as to the validity of said acknowledgment in the absence of evidence that the woman did not fully understand the instrument.</p> <p>5. —Judgment—Res Adjudicata.</p> <p>In a suit to correct the description of certain premises in a judgment foreclosing a lien thereon and for possession of said premises, it was not error to refuse to allow the defendant in the suit of foreclosure to introduce evidence that the judgment of foreclosure had been rendered for too large an amount. Such issue was res adjudicata.</p>

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

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

<p>Broker — Commissions—Evidence.</p> <p>In order to entitle a land agent to commissions which he would have made but for the refusal of the owner to consummate the sale, it must appear that the prospective purchaser was ready, able and willing to accept the terms proposed by the owner. Evidence considered, and held not sufficient to entitle an agent to recover commissions claimed by him.</p>

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

<p>Appeal from the District Court of Sherman County. Tried below before .Hon. L. S. Kinder.</p>

<p>1. —Assignment of Error — Practice on Appeal.</p> <p>An assignment of error based upon the admission of evidence will not be considered when it does not appear from the record that the evidence was objected to, or that the court ruled on an objection made.</p> <p>2. —Carrier of Live Stock — Seasonable Time — Evidence.</p> <p>In a suit for damages for negligent delay in the transportation of cattle from Texarkana to St. Louis, a witness who had been engaged in the shipment of cattle between said points for a long time and who was familiar with the route and distance, would be qualified to testify as to the time which would be reasonably required to make the trip.</p> <p>3. —Damages—Market Value — Evidence.</p> <p>Where, in a suit for damages for delay in the transportation of cattle to market, there is other evidence of the market value of the cattle at the time they were sold, evidence as to what the cattle in question sold for was admissible as a circumstance tending to show the market value of the cattle at that time in their then condition, from which the damages were to be determined.</p> <p>4. —Damages—Depreciation in Value — Testimony.</p> <p>- A witness who has had experience in shipping and selling cattle and who is informed by the market reports and quotations as to the market value of the different classes and grades of cattle on a certain day is qualified to testify as to the depreciation in value on said day of cattle, with which he is familiar, by reason of'delay and rough handling in transportation.</p> <p>5. —Damages—Weight and Price of Cattle — Evidence.</p> <p>Under an assignment of error that the court erred in refusing to allow the defendant to show that the plaintiff knew nothing of the weights of his cattle and the prices for which they sold except what was shown by the account sales, record considered, and held to show that the assignment was not supported thereby.</p> <p>6. —Damages—Carrier of Live Stock — Delay—Defense.</p> <p>A carrier being charged with delay in the transportation of cattle over its own line, the fact that a connecting carrier was guilty of negligence in failing to deliver said cattle to the defendant at an earlier hour, was irrelevant and immaterial, and the trial court properly refused to charge the jury that the negligence of the first carrier would excuse the negligence of the defendant.</p> <p>7. —Evidence—Issue—Charge.</p> <p>Where it appeared from the evidence that the delay in the transportation of cattle was caused solely by the failure of the carrier to provide a suitable engine to move the shipment, the court properly refused to give to_ the jury a charge upon the Federal statute forbidding railroads from detaining cattle in ears longer than ‘28 hours,</p> <p>8. —Contract—Clerical Error.</p> <p>Where, by the terms of a shipping contract, it appeared that the plaintiff agreed to pay any loss or damage to his own cattle in a certain contingency, the mistake was so evidently a clerical one, either in writing the contract or preparing the record, that it should be disregarded, and the contract construed to mean that the carrier would pay said damages.</p> <p>9. —Carrier—Shipping Contract — Value of live Stock.</p> <p>By the terms of a shipping contract it was provided that in case of loss or damage to the live stock, in consideration of a reduction in the freight rate, the liability of the carrier should be limited to the market value of the stock at the place of shipment and should not exceed a certain amount per head. Held, not binding on the shipper in the absence of evidence that there was in fact a reduction of rate, and that the contract was fairly made and entered into.</p>

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

<p>• 1. — Partnership—Dissolution—Pleading—Judgment.</p> <p>In a suit between partners for a dissolution of the partnership, an accounting and partition, the defendant partner appeared in person but filed no pleading; plaintiff’s petition averred that the partnership owned certain property and owed certain debts, including a debt to plaintiff; the court decreed a dissolution of the partnership, established plaintiff’s débt, and ordered a partition of the property, and made provision for the payment of partnership debts. Held, that plaintiff’s pleading was sufficient to support the judgment in the absence of pleading by the defendant raising issues as to other indebtedness of the partnership or the accounts between the partners.</p> <p>2. —Judgment—Agreement of Parties.</p> <p>Where a judgment recites an agreement of parties and is rendered in accordance with said agreement, the fact that the statement of facts contains no evidence of the agreement, is immaterial. A party who stands by and makes no objection in the trial court will not be heard to complain afterwards.</p> <p>3. —Partnership—Debt Due Partner — Judgment.</p> <p>A judgment which, upon dissolution of the partnership and partition of the partnership property, authorizes the entire amount of a debt due one of the partners by the partnership to be made out of the property set aside to the other partner is erroneous. Such partner should be charged with only one half the debt.</p>

<p>Appeal from the County Court of Brown County. Tried below before Hon. A. M. Brumfield.</p>

<p>1. —Venue—Plea of Privilege — Foreclosure.</p> <p>Where suit for recovery upon a note and for foreclosure of its vendor’s lien on land is brought in the county in which the note is made payable, the land being situated in another, parties defendant residing on and claiming the land and against whom foreclosure was sought, but who were not signers of the note, could, it seems, avail themselves, by proper plea, of their right to be sued in the county of their residence.</p> <p>2. —Same—Trespass to Try Title.</p> <p>Plaintiff sued in D. County on a note there payable and to foreclose a lien on lands in B County, and made defendants persons claiming and residing on the land in B. County, who were not parties to the note, and who plead limitation against its foreclosure; he then amended, seeking recovery in trespass to try title. Held, that such defendants who had throughout asserted by proper plea their right to be sued only in the county of their residence, were entitled to that privilege.</p> <p>3. —Same—Case Distinguished.</p> <p>Kendall v. Hackworth, 66 Texas, 499, distinguished.</p> <p>4. —Plea of Privilege — Change of Venue.</p> <p>On sustaining defendants’ plea of privilege to be sued in the county of their residence, the venue should be changed to that county and the original papers and transcript of the proceedings certified to the proper court thereof. (Act of April 18, 1907, Laws 30th Leg., pp. 248, 249, Rev. Stats. art. 1194c).</p>

<p>' 1. — Venue—Fraud—Private Corporation.</p> <p>Upon a plea of privilege by a private corporation to be sued in the county where its principal office and place of business was situated, evidence considered, and held to sustain the action of the trial court in overruling the plea both on the ground of fraud and' because the cause of action against the corporation arose in the county in- which the suit was filed. (Sections 7 and 23 of article 1194, Rev. Stats.)</p> <p>2. — Continuance—Want of Diligence.</p> <p>A request or demand upon the opposite party to produce his mercantile • books in court on the trial, is not sufficient diligence to entitle the party making the demand to a continuance because of the absence of said books. He should have applied for a subpoena duces tecum.</p>

<p>1. —Will—Incompleteness—Evidence.</p> <p>A testator wrote two holographic wills at different times, devising all of his property to different persons; the probate of the last will was contested on the ground that it was incomplete and never intended by the testator to take effect; the only evidence of incompleteness was in the word “witness” at the bottom of the will and the absence of signatures after or under that word. Held, that while the numerical weight of authority might be in favor of the proposition, that the natural inference to be drawn from an attestation clause at the foot of a testamentary paper is that the writer intended to execute it in the presence of witnesses and considered it incomplete "until that was done, such inference may be overcome by the testimony of witnesses as to the declarations of the testator that he had willed his property to the person named in the alleged incomplete will.</p> <p>2. —Will—Validity,</p> <p>Unlike deeds, delivery is not essential to the execution or validity of wills; and when an instrument has been executed in such a manner as to constitute it a valid will, it remains such until revoked by the making of another will or by the testator’s destroying, cancelling or obliterating the same or causing it to be done in his presence.</p> <p>3. —Wills—Application to Probate — Issue.</p> <p>In determining whether or not an instrument should be probated as a will, the courts are not required to construe the instrument and determine the rights of persons claiming it any further than is necessary to determine whether or not the particular instrument constitutes the will of the alleged testator.</p> <p>4. —Wills—Contest—Evidence.</p> <p>In a contest over the probate of two wills by the same testator, evidence considered, and held to require the probate of the will last made.</p>

<p>1. —Personal Injuries — Assumed Risk — Charge.</p> <p>Upon the issue of assumed risk in a suit for damages for personal injuries; the court charged the jury that “he (the plaintiff, an employee) does not assume the risks of any danger that may be brought about by the railway company or its other servants or employees, unless he knows of such negligence and the attendant risks, or in the ordinary discharge of his duties inust necessarily have acquired the knowledge.” Held not subject to the objection that it rendered the sompany liable for all the dangers brought about by itself, while the liability should be confined to such dangers as are brought about by its want of ordinary care.</p> <p>2. —Negligence—Act of Omission.</p> <p>An act of omission may constitute negligence as well as one of commission. Where an engineer sent the fireman under the engine to perform some duty, and, while the fireman was in this dangerous position, failed to use the means at hand to prevent the engine from moving, the railway company was liable for injuries resulting from the engine moving its position.</p> <p>3. —Same—Degree, of Care — Charge.</p> <p>A charge which makes it the absolute duty of a railroad company to keep its engines in a safe condition, instead of to exercise ordinary care to keep its engines in such condition, is erroneous.</p> <p>4. —Same—Charge.</p> <p>In a suit for personal injuries, a charge that the defendant would be liable if the injuries resulted from the failure of the engineer “to place the reverse lever at the center notch of the quadrant,” or by reason of his failure “to open the cylinder cocks to permit the steam to escape, or both,” was correct and not upon the weight of the evidence.</p> <p>5. —Laws of Other States — Presumption.</p> <p>In the absence of pleading and proof to the contrary, the laws of other States are presumed to be the same as the laws of this State, and a requested charge stating the law to be different, is properly refused.</p> <p>6. —Comparative Negligence — Act of Congress Unconstitutional.</p> <p>The doctrine of comparative negligence is not recognized by the courts of this State, "and the Act of Congress, known as the “Employer’s Liability Act,” which made provision for employees recovering for damages where the contributory negligence of the employee “was slight and that of the employer was gross in comparison,” has been declared unconstitutional.</p> <p>7. — Law—Constitutionality.</p> <p>Where a law is valid in part and invalid in part, but the valid and invalid parts are so interwoven and dependent that they cannot be separated, the whole law must be held void.</p>

<p>X. — Special Charge — Befusal—Practice.</p> <p>It is proper for the trial court to refuse a special charge when it is, in effect, the same as a charge already given; or when it is a mere abstraction and not applicable to the evidence; or when it is in part erroneous. In a suit to set aside a conveyance by an insolvent husband to his wife, special charges considered, and held subject to the foregoing objections.</p> <p>2. —Trial—Argument of Counsel — Brief.</p> <p>When an argument of counsel on the trial of a case is not improper per se, an assignment of error complaining of the same must be supported by a statement in the brief showing it was unwarranted by the facts or circumstances in evidence.</p> <p>3. —Same—Misconduct of Counsel — Practice.</p> <p>After the argument in a trial had been concluded and the jury were about to retire to the jury room, counsel for the plaintiff, in the hearing of the jury, asked counsel for the defendant if they were willing for the jury to take with them the depositions of one of the defendants; counsel for the defendants excepted to the conduct of counsel for plaintiff in asking such a question in the hearing of the jury on the ground that it was calculated and intended to prejudice the jury against the defendants, but the bill of exception did not show what reply was made by counsel for the defendants nor what was done in the matter. Held, it was the duty of defendants’ counsel, if they deemed the question improper, to have then and there requested the court to inform the jury that the law did not allow them to have the deposition, and in the absence of some such effort to correct the supposed prejudicial impression, no advantage can be taken on appeal of the supposed wrong.</p> <p>4. —Same—Same.</p> <p>Allegations in a motion for new trial, even though supported by the affidavits of some of the jurors, to the effect that they were influenced by the argument of counsel as to the effect of their verdict, are not sufficient to' make the fact of the argument having been made a part of the record pn appeal. That fact should be evidenced and presented by bill of exception.</p> <p>5. —Debtor—Conveyance by — Intent—Effect.</p> <p>When a debtor conveys property to pay a creditor but conveys more than is reasonably sufficient for that purpose, the setting aside of the conveyance will be solely for the benefit of the creditors he had at the time of the conveyance, provided the conveyance was made with the intention to pass absolute title to the property as distinguished from an intention to shield it from creditors. Where the latter intent exists, future creditors as well as existing ones may have the conveyance set aside as fraudulent.</p> <p>6. — Trial—Submission of Issues — Practice.</p> <p>Where, in a suit to set aside a conveyance by the husband to the wife because fraudulent as to creditors, the evidence was such as to authorize a finding by the jury either that the conveyance was fraudulent as to creditors generally, or only as to such creditors as existed at the time the conveyance was made, and the defendant fails to request that the case be so submitted as to ascertain which state of facts the jury found to exist, the court did not err in refusing to enter a decree avoiding the conveyance only as to creditors existing at its date, when the jury returned a general verdict for the plaintiff.</p>

<p>1. —Personal Injuries — Discovered Peril — Pleading.</p> <p>In a suit for damages for personal injuries, a petition charging discovered peril considered, and held not subject to the objection that the allegations failed to show that any duty rested upon the defendant to use all the means in its power to prevent the injury. The duty to use ordinary care, at least, to prevent injury follows as matter of law after discovery of peril.</p> <p>2. —Same.</p> <p>In a suit for damages for personal injuries the petition contained the following allegations: “That when the engine was nearing said crossing the said employees saw, or by the exercise of due care could have seen, the perilous position of Juan'Jewett, who. was then at or upon said track at said crossing and was not cognizant of the near approach of said engine, and the said employees could have caused said engine to stop before reaching said crossing and thereby could have prevented said injuries, etc.” Held, a sufficient allegation of discovered peril to require the submission of the issue under the evidence supporting the same.</p> <p>3. —Railroads—Public Crossing — Lookout—Charge.</p> <p>In a suit for damages for personal injuries received at a public road crossing over a railroad, a charge which, in stating the abstract principles of law deemed applicable to the facts, instructs the jury, as matter of law, that it is the duty of those operating an engine along a street, when approaching a public crossing, to keep a lookout for the protection of persons going along the street, the error, if any, is harmless when, in another portion of the charge, the court in applying the law to the evidence, instructs the jury that whether or not a failure to exercise ordinary care to keep a lookout was negligence, was a question of fact for them to determine.</p> <p>4. —Discovered Peril — Charge—Evidence.</p> <p>A charge which, upon the issue of discovered peril, instructs the jury that it was the duty of defendant’s employees “to use all means and appliances at hand to avoid the injury,” without any qualification as to the safety of the engine and operatives, is harmless when i|t is clear from the evidence that a sudden stopping of the engine would not have involved any danger to it or the operatives.</p> <p>5. — Pleading—Overruling Exception — Harmless Error.</p> <p>Error in overruling an exception to so much of a petition as sought to recover punitory damages, is harmless when the court does not submit the issue of punitory damages and the jury found only actual damages.</p>

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

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

<p>Appeal from the County Court of Erath County. Tried below before Hon. M. J. Thompson.</p>

<p>1. —Judicial Districts — Act of 1841.</p> <p>It seems that the Act of January 22, 1841, of the Congress of the Republie of Texas whereby it was attempted to create a judicial district out of a subdivision of Liberty County, and the appointment of Land Commissioners of said district, was unconstitutional.</p> <p>2. —Tenant—Attornment—Limitation.</p> <p>A tenant cannot dispute the title of his landlord and attorn to another without surrendering the possession to his landlord, and until such surrender and notice to the landlord the possession of the tenant inures to the benefit of the landlord.</p> <p>3. —Patent—Limitation of Three Years.</p> <p>The possession of a patentee extends to the boundaries of his patent. Evidence as to possession considered, and held to support a finding that a patentee acquired title under the three years’ statute of limitation to the land described in his grant.</p> <p>4. —Limitation of Three Years — Conflicting Surveys — Constitution of 1876.</p> <p>The provisions of section 2, article 14, of the Constitution of 1876 made no change in the rule that possession under a junior patent founded on junior rights will support the three years’ statute of limitation. Nor is said rule affected by the provisions of article 4174 of the Revised Statutes of 1895.</p> <p>5. —Junior Patent — Limitation of Three Years.</p> <p>It is established by the decisions of this State that where an officer having authority to issue a patent does so in the manner and form prescribed by law, the patent thus issued conveys to the patentee whatever right the State has and is good against the State and all parties not having a superior right, and will support the three years’ statute of limitation. While such patent may not pass the paramount title or even the legal title, the, law does not require that it should do so in order to be the basis for the three years’ statute of limitation.</p> <p>6. —Patent—Procurement—Fraud.</p> <p>. The fraud which will vitiate a patent issued by the proper authority must be one that is practiced upon the State or its duly constituted agents, and not upon the claimant of the land.</p>

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

<p>1. — Contract—Sale—Delivery—Breach—Measure of Damage.</p> <p>The profits on sales which the buyer would have made if the seller had complied with his contract to deliver certain articles, are recoverable in an action for breach of such contract where it was within the contemplation of both parties at the time of entering into the contract that the articles were to be delivered for sale.</p> <p>2. —Same.</p> <p>Ordinarily the measure of damage for breach of a contract to sell and deliver chattels is the difference between the contract price and the market value of the same at the time and place at which they should have been delivered.</p> <p>3. —Same—Time as Essence of Contract.</p> <p>Where time is of the essence of a contract of sale and delivery on the one hand'and purchase and acceptance on the other, the buyer is not required, in order to avail himself of the time stipulation, to notify the seller that he will treat the contract as breached if the goods are not delivered at the time named.</p>

<p>Personal Injuries — Belease—Misrepresentations—Evidence.</p> <p>In a suit for- personal injuries, the issue being whether or not plaintiff ■was induced to execute a release of his claim by the representations of the defendant’s surgeon to him as ,t.o his condition and the effect of the injuries and whether or not the claim agent of the defendant knew of said representations and took advantage of the effect of the same upon plaintiff’s mind in making a settlement, evidence considered, and held sufficient to support the finding of the jury in plaintiff’s favor.</p>

<p>1. —Evidence—Res Gestae.</p> <p>The doctrine of res gestae is based on the presumption that declarations made at the time of the act, transaction or event to which they relate, evoked by it, without premeditation, are part of the act, transaction or event. It is not necessary that the declarations be precisely concurrent in point of time with the principal transaction, but they should be so near as to preclude the idea of deliberate design.</p> <p>2. —Same—Case Stated.</p> <p>In a suit for damages for personal injuries received while attempting to board a moving train, the testimony of third parties as to an account given them by the plaintiff eight or ten minutes after the occurrence as to the cause of his injury and the manner in which he was knocked off the train, was properly excluded as wanting in the element of spontaneity.</p> <p>3. —Contributory negligence — Issue—Material Testimony.</p> <p>Where, in a suit for personal injuries received while attempting to board a moving train, the defendant charged the plaintiff with contributory negligence, testimony of the plaintiff to the effect that it was not an unusual occurrence for persons to board the trains at the station in question after they were in motion, and that he himself had at various times in the past done the same thing when the train was moving no faster than it was at the time he was hurt and had never received any injury, was admissible as a circumstance to be considered by the jury, together with all the other circumstances, in determining whether or not the plaintiff was guilty of contributory negligence.</p> <p>4. —Personal Injuries — Degree of Care — Charge Criticized.</p> <p>Where the plaintiff was injured while attempting to board a moving train, a charge which required the jury to find that the plaintiff had used that high degree of care “which very prudent persons are accustomed to use under ¡ like circumstances and conditions” was of questionable propriety in the use of the word “accustomed.” And so with regard to the use of the terms “generally” and “accustomed” in a charge in the same case which made it the defendant’s duty to exercise “that high degree of care and skill which very cautious and prudent persons generally in their line of business are "accustomed to use under similar circumstances, etc.”</p> <p>5. —Charge—Issue—Undue Emphasis — Proximate Cause.</p> <p>It is not good practice to repeat a charge upon an issue when such issue has been once sufficiently submitted. And a charge which, in a suit for personal injuries, precludes a recovery by plaintiff if the jury should find that he was guilty of negligence, without finding further that such negligence was the proximate cause of the injury, is erroneous.</p>

<p>Limitation — Three Years — Title or Color of Title.</p> <p>A junior patent is a sufficient grant of land which is subject to location and grant to support the defense of three years adverse possession, since it is effectual to convey to the grantee whatever right or title the government may have in the land at - the time of making the grant, although, on account of a previous grant, only an inferior title is conveyed. Such title is only void as to the prior grant. But an unauthorized patent to public school land is absolutely void and therefore is neither title nor color of title within the meaning of the statute of limitation.</p>

<p>Limitation Under Tax Deed.</p> <p>The statute of limitation of five years will not begin to run in favor of one claiming and holding land under a tax deed until after the expiration of the two years allowed the owner to redeem.</p>

<p>Appeal — Brief—Copying Assignment.</p> <p>An assignment of error not copied into appellant’s brief will not be considered on appeal when objection is made by appellee.</p>

<p>Carriers of Live Stock — Instructions to Jury.</p> <p>In a suit against several railroad companies for damages to a shipment of cattle alleged to have resulted from negligent rough handling and delay in transportation, the following portion of the court’s charge considered and approved:</p> <p>(A) . “You will find in favor of such defendants, if any, as you may find from the evidence did not contribute to the injury of said cattle by negligent rough handling and unreasonable delays.” Held, not subject to the objections, in view of other portions of the charge, that it required the jury to find affirmatively from the evidence that the defendants did not contribute to the injuries complained of before they could find for the defendants, and that the charge assumed that the defendants had injured the cattle.</p> <p>(B) . “If you shall find that the defendants or either of them transported said cattle with reasonable dispatch and did not delay the same unreasonably, and did not handle said cattle roughly or injure them thereby, or if you find said cattle were not damaged, then you will find for the defendants in this case or for such one as did not contribute to their injury by negligence in handling or transporting them.” Held, in view of another portion of the charge which required the jury to find that the delays and rough handling, if any, were negligent, the above charge was not subject to the criticism that it misled the jury to believe that one of the defendants was not guilty of negligence in the respects named, nor that rough handling constituted negligence as matter of law.</p> <p>(C) . “In estimating the damages you will take into consideration only such damages as may have been sustained by reason of unreasonable delays and rough handling, if any.” Held, apparent from the charge as a whole that by the terms “rough handling” the court meant such unreasonable and negligent handling of the cattle as was beyond the natural and usual way of handling such shipments.</p>

<p>1. —Carrier of Passengers — Alighting from Train — Personal Injury — Evidence —Charge.</p> <p>In a suit for damages for personal injuries received by a passenger while alighting from a railroad train, testimony of the injured party that the train started with a “jerk” was sufficient evidence to authorize the trial court to submit the issue as to whether or not the train started “suddenly and unexpectedly.” '</p> <p>2. —Same—“Reasonable Diligence” — Definition.</p> <p>The phrase “reasonable diligence” has no such technical meaning as to require a definition thereof by a trial court when used in its charge to the jury.</p> <p>3. —Same—Alighting from Moving Train — negligence—Question of Fact.</p> <p>Whether or not a passenger in alighting from a moving railway train acted as an ordinarily prudent person would have done under the same or similar circumstances, is a question of fact for the jury.</p> <p>4. —Trial—Suggestion of Counsel to Witness — Harmless Error.</p> <p>Where a passenger was injured while alighting from a moving train, the issue being whether or not such passenger had used due diligence in leaving the train, the passenger, in answer to a question as to how long it took her to walk from her seat to the steps of the coach, first answered that it did not take twenty minutes; one of her counsel then suggested to his co-counsel in the hearing of the witness that she be asked if she did not mean twenty seconds. Held, improper conduct on the part of counsel but harmless in view of the con- - elusive evidence that the train did not stop at the station, more than one or two minutes.</p> <p>5. —Personal Injuries — Expert Testimony.</p> <p>In a suit for damages for personal injuries, testimony of the attending physician concerning an examination made by him to ascertain the extent and character of the injuries, considered, and held not subject to the objection that it was immaterial, irrelevant and too remote.</p> <p>6. —Hypothetical Question — Requisites.</p> <p>A hypothetical question must be based upon evidence tending to support the facts assumed in the question.</p> <p>7. —Evidence of Pain.</p> <p>The testimony of a mother as to the condition of her injured daughter three or four days after the injury to the effect that “she was suffering from her back and neck and, well, principally all over,” was not subject to the objections that it was a conclusion of the witness, that it was not responsive to the question asked, and that it was too remote.</p>

<p>Estates — Appeal—Intervention in District Court.</p> <p>Under article 2262, Revised Statutes, providing that all appeals to the District Court from orders or decrees of the County Court, in the administration of estates, shall be tried anew, any one interested in the estate may intervene in the proceeding after appeal by other parties to the District Court; and this, although the intervener had been a party to the proceedings in the County Court and had not perfected the appeal from the County to the District Court.</p>

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

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

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

<p>Appeal — Justice Court — Appeal Bond Necessary, when — Jurisdiction.</p> <p>In order to perfect an appeal from a Justice’s Court by a party against whom a money judgment has been rendered, it is necessary to execute an appeal bond or make a pauper’s affidavit in lieu thereof. In the absence of such bond or affidavit the County Court would have no jurisdiction, and hence a Court of Civil Appeals would have none by appeal from the County Court.</p>

<p>Venue — -Plea of Privilege — Continuance, when No Waiver.</p> <p>A defendant duly filed a plea of privilege to he sued in a different county; ' on appearance day it called the court’s attention to the same, and asked that the hearing on the same be postponed to a future day of the term, when the issues of fact might be determined; afterwards, without the knowledge of the defendant, the case was set for a particular day of the term; on the day for which the case was set the attorneys for defendant were engaged in the trial of another case in the same building, and at the instance of an attorney for the plaintiff, without the knowledge or consent of attorneys for defendant, the case was continued for the term. Held, because it appeared that defendant desired to press its plea of privilege, and was not responsible for or in any way agreed to the continuance, the plea was not waived thereby.</p>

<p>Appeal from the County Court of Milam County. Tried below before Hon. John Watson.</p>

<p>1. —Grant—Patent to Heirs — Administration—Title in Estate.</p> <p>G., a widow with children, having emigrated to Texas, died in 1832, having taken no steps to obtain title to land. Under the Constitution, of the Republic (General Provisions, sec. 10), saving to orphan children of parents entitled to land under the colonization laws of Mexico the rights of which their parents were possessed at their death, a certificate was issued by the Board of Land Commissioners, in 1838, showing that G. was entitled to a league and labor of land. It was located in the same year, and a patent thereon issued to the heirs of G. in 1842. Held, that the land secured by the located certificate was asset of G.’s estate, and as such subject to administration; the certificate was not a mere donation to the heirs; grantees holding under a valid conveyance of the land by the administrator of G., in 1840, took title as against the heirs of G. to whom the land was subsequently patented.</p> <p>2. —Same—Cases Reviewed, etc.</p> <p>Fishback v. Young, 19 Texas, 515; Pendleton v. Shaw, 18 Texas Civ. App., 439; Soye v. Maverick, 18 Texas, 101; Lyne v. Sanford, 82 Texas, 61, and other cases, followed. Leonard v. Rives, 33 S. W., 291; McKinney v. Brown’s Heirs, 51 Texas, 94; Grant v. Wallis, 60 Texas, 352; Todd v. Masterson, 61 Texas, 618; Eastland’s Ex’r v. Lester, 15 Texas, 98; Causici v. La Coste, 20 Texas, 269, distinguished.</p> <p>3. —Administrator’s Sale — Lost Records — Presumption.</p> <p>Evidence considered under which an administrator’s deed was held to convey title-to land though order of sale and of confirmation were not shown, the records of the court having been burned, and presumptions in its favor from lapse of time and long delay in adverse claim being indulged.</p>

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

<p>I. — Railroad Crossing — Implied Invitation to Use — Evidence.</p> <p>In an action against a railroad company for damages for personal injuries caused by a defective crossing over defendant’s track, where plaintiff’s pleading and evidence raised the issue of an implied invitation on the part of the defendant to use said crossing, it was error on the part of the trial court to exclude the testimony of plaintiff to the effect that he believed, and relied on the fact, that it was expected by the defendant that he would use said crossing. On such an issue the'state of mind of the plaintiff was a material fact.</p> <p>8. — Civil Action — Preponderance of Evidence — Charge.</p> <p>In a civil action a plaintiff who establishes the material allegations of his petition by a preponderance of the evidence is entitled to recover, and the use of the word “fair” to qualify “preponderance” is condemned.</p> <p>3. — Contributory Ilegligence — Burden.of Proof — Charge.</p> <p>A defendant alleging contributory negligence has the burden of proof to establish the same, and a charge susceptible of the construction that the plaintiff has the burden of proving his own freedom from negligence is erroneous.</p>

<p>Railroads — Obstruction of Station Platforms — Negligence.</p> <p>Plaintiff was injured in an attempt to rescue a female passenger who, in walking around some trucks and a pool of water standing on the platform of defendant’s passenger station, approached too near an incoming engine and was struck and injured by the same. Evidence considered, and held to raise the issue of negligence on the part of the railroad company in failing to provide its passengers a reasonably safe approach to its trains at the station, and hence á peremptory instruction for the defendant was error.</p>

<p>Appeal from the District Court of Johnson County. Tried ■ below before Hon. O. L. Lockett.</p>

<p>1. —Paroi Gift of Land — Improvements—Consent of Donor.</p> <p>A paroi gift of land two days before the death of the donor, and consequently, not followed by permanent and valuable improvements made on the faith of the gift during the lifetime of the donor, is invalid in this State. It is indispensable that the improvements should be made with the knowledge or consent of the donor; this cannot be the case when made after his death.</p> <p>2. —Husband and Wife — Separation—Inheritance.</p> <p>H. married in 1883; about three years afterwards his wife voluntarily abandoned him and never lived with him again; in 1892 H., without obtaining a divorce, married another woman who was not aware of the existence of the first wife, and who lived with him in the faithful performance of all her duties as a wife until his death in 1895 or 1896. Held, upon the death of H. intestate the first wife was entitled to his property under our statute of descent and distribution.</p> <p>3. —Marriage—Good Faith — Community Property.</p> <p>A woman who marries a man in good faith, and without knowledge of the existence of another wife, is entitled to one-half of the community property of the second marriage.</p>

<p>Master and Servant — Assault and Battery — Pleading.</p> <p>A petition which alleged that an assault and battery was committed upon plaintiff by defendant’s servants, by the express or implied authority of the defendant, states a good cause of action. In considering a demurrer, the allegations of the pleading must be taken as true. If the master authorizes his servant to commit an unlawful act, whether beneficial to the master or not, the master is liable.</p>

<p>1. —Continuance—Discretion of Court.</p> <p>The action of a trial court in overruling an application for continuance which does not comply with the requirements of the statute, hut is addressed to the discretion of the court, will not be revised unless an abuse of such discretion is shown. An application for continuance based on the absence of witnesses considered, and held insufficient in the matter of diligence.</p> <p>2. —Negligence—Damages—Duty to Lessen or Prevent.</p> <p>One who is threatened with damage by reason of the negligent conduct of another should exercise reasonable prudence to avoid or lessen the conse- - quences of such neglect, provided it can be done at a reasonable expense. In a suit against a telegraph company for its failure to promptly deliver a death message, evidence considered, and held to raise the issue whether or not plaintiff exercised due diligence to lessen the injuries, and hence to require a submission of the issue to the jury.</p> <p>3. —Telegraph Company — Office Hours.</p> <p>Where a telegraph company, in the matter of important messages, customarily disregards its own rule as to hours for the delivery of messages to the public, the failure of the court to charge the jury, in a suit for damages for failure to deliver an important message, upon defendant’s -rule as to office hours, was harmless. And where such a message was in fact delivered after the alleged office hours the issue as to the reasonableness of the office hours became immaterial.</p> <p>4. —Same—Death Message — Negligence—Failure to Embalm Body.</p> <p>In a suit against a telegraph company for damages resulting from its failure to promptly deliver a death message, the failure of the plaintiff to request those in charge of the body to embalm, and so preserve it until he could arrive, is no defense.</p> <p>5. —Practice—Exclusion of Improper Testimony.</p> <p>A mere objection to improper testimony after it has gone to the jury, without a request that the jury be instructed not to consider the same after the objection is sustained or admitted by opposite counsel to be good, is not available on appeal.</p> <p>6. —Appeal—Practice.</p> <p>Only such objections as were made to testimony at the time it was admitted can be considered on appeal.</p>

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

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

<p>Railroads — Fencing Right of Way — Injury to live Stock — Statute Construed.</p> <p>The right-of-way fence of a railroad company was defective (or the gates placed therein by the railroad company) ; certain live stock of an adjacent landowner strayed through the fence or gate into and upon the right of way, and, becoming frightened at an approaching train, ran along the track and fell into a bridge on the track and were injured; they were not struck by the locomotive or any part of the train. Held, that the railroad company was liable at common law because of its negligence in failing to keep the fence or gates in repair. Article 4528, Revised Statutes, construed.</p>

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

<p>Appeal from the County Court of Coryell County. Tried below before Hon. R. E. West.</p>

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

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

<p>I. — Railroads—Getting on Moving Car — Negligence, Question of Fact.</p> <p>Knowledge that it is dangerous to get on a moving railroad train does not render the attempt to do so negligence per se, except in cases where the evidence excludes any other reasonable hypothesis than that the act was contributory negligence, and the rule applies more strongly in the case of a child who has been directed by an employe of the railroad company to board a moving train.</p> <p>2. — Same—Component Acts of negligence.</p> <p>In a suit for damages resulting from personal injuries received by a' minor -while attempting to board a moving railroad train, evidence that the ticket office was closed and the agent absent, that an employe of the company told the child to get off the train and buy a ticket, and that the ticket agent told him to get on the train, although then in motion, were all links in the chain of circumstances that led up to the accident, and therefore admissible in evidence.</p>

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

<p>Appeal from the District Court of Rolan County. Tried below before Hon. Jas. J. Shepherd.</p>

<p>1. —Corporation—Lien—Notice to Agent.</p> <p>The general rule that notice to an agent is notice to his principal can only be applied when the matter with reference to which notice is given is within the scope of the agent’s authority, or has some direct connection with his agency. Notice to an agent of a corporation, with reference to a matter entirely beyond the scope of his agency, would not be notice to the corporation.</p> <p>2. —Same—Notice to Director.</p> <p>An oil company made a contract with G. to build a mill, G. to furnish all material, labor and machinery, and to deliver the mill to the company complete and free from all liens; L. & B. sold to G. the engine which he installed in the mill, reserving a lien on the same to secure a part of the purchase money; this lien was never recorded; upon completion of the mill the company, through its proper managing officers, and without notice to them of the lien claimed by.L. & B., paid to G. the full amount due him for the construction of the mill. In a suit by L. & B. to foreclose their lien on the engine, on the issue of notice to the company of the existence of the lien, the court charged the jury, in effect, that the burden was on the defendant company to show that none of its directors or agents had knowledge of facts sufficient to put a reasonably prudent person upon notice of said lien in order to defeat a recovery by plaintiffs. Held, error. Notice to a director not connected with the transaction would not be notice to the company.</p>

<p>Appeal from the County Court of Shackelford County. Tried below before Hon. I. M. Chism.</p>

<p>Appeal from the County Court of Hardeman County. Tried below before Hon. H. W. Martin, Special Judge.</p>

<p>Appeal from the District Court of Fisher County. Tried' below before Hon. Cullen C. Higgins.</p>

<p>1. — Pleading—Substance—Exception.</p> <p>In a suit against a railroad company for personal injuries received by reason of a defective crossing at a public street, pleading considered, and held to show that the real and controlling acts of negligence alleged were that the defendant had permitted its roadbed at the crossing to become defective and dangerous to the traveling public, and said pleadipg was not subject to an exception on the ground that it required the defendant to maintain its crossing in a manner not required by law.</p> <p>3. — Pleading—Multitudinous Injuries.</p> <p>In a suit for personal injuries an exception to a petition on the ground that, “by reason of the multitudinous injuries alleged, the allegation has the effect to mislead the defendant, and to conceal from the defendant the real injuries which the plaintiff will attempt to prove,” must be overruled, since the court cannot know, in advance of its introduction, that the evidence will not sustain all the allegations.</p> <p>3. —Trial—Improper Remarks — Reversible Error, When.</p> <p>It is only when the verdict is against the preponderance of the evidence that an Appellate Court will ordinarily hold that improper remarks of counsel, constitute reversible error.</p> <p>4. —Improper Evidence — Not Reversible Error, When.</p> <p>Upon the issue of notice to a defendant railroad company of the defective condition of a crossing in a suit for personal injuries received at such crossing, the admission of testimony as to notice of the defective condition of said crossing, given to an agent of the defendant who was not shown to be the proper party to receive such notice, was harmless error, if error at all, when the defendant itself introduced testimony showing that the crossing was in bad condition, and had been so for several months, and that defendant’s section men, whose duty it was to keep the railroad track in repair, passed over the crossing in question every day.</p> <p>5. —Charge—Omission—Practice.</p> <p>Where the charge of the court is supposed to be defective in quoting the pleadings or stating the issues to the jury, it is the duty of the party considering himself aggrieved to cure the defect by a requested instruction; failing in this, he cannot complain on appeal.</p> <p>6. —Pleading—Charge—Construction.</p> <p>In a suit for damages for personal injuries received at the crossing of a public thoroughfare over a railroad track, by reason of certain specified defects in said crossing, charge considered, and held incapable of a construction which would authorize a recovery because of any other defects in said crossing except those substantially alleged.</p> <p>7. —Charge—Negligence—Contributory Negligence — Submission of Issues.</p> <p>Where, in a. suit for personal injuries, the defendant pleads contributory negligence of the plaintiff, the issues of negligence and contributory negligence should be separately and distinctly submitted. The submission of the one issue should not be encumbered with conditions as to the other.</p> <p>8. —Pleading—Charge—Verdict—Presumption.</p> <p>In a suit for personal injuries, under an instruction that plaintiff was entitled to recover if his wife “was injured in any or all of the parts of her person, or ways as alleged in plaintiff’s petition,” it must be presumed, in the absence of anything showing the contrary, that the jury observed the instruc- • tians given them and considered, in arriving at their verdict, no injury not shown by the evidence to have been sustained by plaintiff’s wife, although plaintiff- in his petition alleged multitudinous injuries.</p> <p>9. —Railroad Crossing — Contributory Negligence — Question of Pact.</p> <p>Whether or not. a person is guilty-of contributory negligence in selecting a route across a railroad which proved to be dangerous, instead of a safe route, is ordinarily a question of fact for the jury. In order that an act may be deemed negligent per se, it must have been done contrary to a statutory duty, or it must appear so opposed to the dictates of common prudence that a court can say, without hesitation or doubt, that no careful person would have committed it.</p> <p>10. —Personal Injuries — Future Consequences — Charge.</p> <p>In this State an injured person is entitled to recover not only for such future consequences as are reasonably certain to result, but also such as will reasonably and probably result from the injuries. Charge on the measure of damages considered and approved.</p> <p>11. —Verdict—Signature of Foreman.</p> <p>While our statute requires that the verdict shall be signed by the foreman of the jury, it does not expressly require that the word “foreman” shall be attached, and a verdict is sufficient if signed without such designation. In case c of an issue as to who was in fact the foreman, the court may properly enquire and determine.</p>

<p>Land — Parol Gift — Improvements—Death of Donor.</p> <p>It is settled law in this State that, to take a paroi gift of land out of the statute of frauds, possession of the land must be taken by the donee, and improvements of some substantial value, having relation to the value of land, must be made by him with the acquiescence of the donor. Such improvements must be made during the lifetime of the donor.</p>

<p>Appeal — Rule 31.</p> <p>Rule 31 for the Courts of Civil Appeals requires that a statement following a proposition under an assignment of error shall contain a “brief statement in substance of such proceedings, or parts thereof, contained in the record, as will be necessary and sufficient to sustain and support the proposition, with a reference to the pages of the record.” A statement which consists of mere legal conclusions, and contains no reference to the pages of the record, is not a compliance with said rule, and does not entitle the assignment of error to which it relates to consideration.</p>

<p>1. —School Land — Home Section — Additional Land.</p> <p>An actual settler and resident upon an individual survey — or land other than school land — is entitled to purchase four sections of school land as additional thereto. Four additional sections constitute the complement of school land to which a settler is entitled.</p> <p>2. —Same—Vendee of Home Section.</p> <p>The fact that some previous owner of an individual survey had bought three sections of school land as additional thereto would not prevent any subsequent owner of and resident upon such individual survey from also purchasing a complement of school land as additional thereto.</p> <p>Upon a motion for additional findings of fact, a Court of Civil Appeals cannot consider as evidence of any fact an affidavit attached to a motion for new trial in the court below when there is nothing in the record to show that the trial court considered said affidavit in finally disposing of the case.</p> <p>4. —Same—Case Followed.</p> <p>A Court of Civil Appeals has no power to consider a matter as evidence unless it was, in fact, introduced in evidence in the trial court. Eidson v. Reeder, 101 Texas, 202, followed.</p>

<p>Appeal — Agreement for Affirmance — Practice.</p> <p>When, by agreement of the parties, the judgment of the trial court is affirmed on appeal, and the agreement disposes of the appeal, and the questions • presented in the briefs of the parties are thereby rendered abstract and immaterial, the Appellate Court will not discuss or decide them.</p>

<p>Appeal from the County Court of Milam County. Tried below before Hon. John Watson.</p>

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

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

<p>Railroad — Cattle Guard — Injury to Live Stock.</p> <p>When a railroad company, in building its road through a private- enclosure, locates a cattle guard at the point where its track crosses the fence of the enclosure, as required by statute, the location of the cattle guard can not be considered as a factor in determining the liability of the company to the owner of the enclosure for injury to his live stock at the cattle guard, and a charge which authorizes the jury to consider the location of the cattle guard in determining the liability of the company in such case is reversible error.</p>

<p>Appeal from the 37th Judicial District, Bexar County. Tried below before Hon. E. Dwyer.</p>

<p>1. —Trial—Objection to Evidence — Practice.</p> <p>In a suit for personal injuries an objection to evidence as to the amount . that plaintiff earned twenty years before the injury, in a different employment at a different place, that it is “too remote,” is too vague and indefinite to require consideration on appeal. Only such objections as are made to evidence at the time it is offered can be considered on appeal.</p> <p>2. —Damages—Personal Injury — Impairment of Earning Capacity.</p> <p>Impairment of earning capacity is one of the elements which may be considered by the jury in estimating the damage one has sustained from a personal injury. The matter to be determined is not what the injured party was actually earning at the time of the injury, and the consequent diminution of that amount, but what amount he was capable of earning in any employment in any place at the time of the injury and the impairment of that capacity.</p> <p>3. —Same—Evidence—Salary.</p> <p>Evidence that one earned a salary of certain amount through a number of years before he was injured is admissible as tending to show what his earning capacity was when he was injured, provided it be further shown that he possessed the same qualifications when injured as when he earned such salary. The remoteness of the earnings would affect only the weight of the evidence.</p> <p>4. —Personal Injury — Element of Damage — loss of Time.</p> <p>In a case of personal injury, the loss of time between the injury and the trial of the suit for damages is an element of damage which should be submitted to and considered by the jury.</p>

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

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

<p>■Appeal from the County Court of Tarrant County. Tried below before Hon. John L. Terrell.</p>

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

<p>Appeal from the District Court of Bains County. Tried below before Hon. R. L. Porter.</p>

<p>1. —Pleading—Personal Injuries — Particularity.</p> <p>In a suit for personal injuries, pleading of plaintiff considered, and held not subject to an exception that the same was too vague, indefinite and uncertain, and did not allege with sufficient particularity the nature and extent of plaintiff’s injuries.</p> <p>2. —Evidence—Leading Question — Definition.</p> <p>A question which may be answered by “yes” or “no” is not leading unless - the form of the question suggests the answer. Question considered, and held not leading.</p> <p>3. —Health or Sickness — Non-expert Testimony.</p> <p>A non-expert witness may give his opinion on questions of apparent conditions of the mind or body, sickness, health, etc. Testimony as to physical pain considered, and held competent.</p> <p>4. —Master and Servant — Assumed Risk — Charge.</p> <p>A charge upon assumed risk should comprehend the dangers which the servant assumed by his employment and exclude the risks which he did not assume. In a suit by a servant against his master for personal injuries, charge upon assumed risk considered, and held correct.</p> <p>5. —Railroad—Operation—Evidence.</p> <p>A private corporation which owns and operates a sugar mill, lays tracks of standard gouge in the yard of its plant, rents a locomotive, employs a crew of men to operate the same, and switches cars back and forth between the mill and a siding of an adjacent railroad, is engaged in operating a railroad within the meaning of the fellow-servant statute.</p> <p>6. —Personal Injuries — Dangerous Place — Knowledge—Charge.</p> <p>In a suit by a servant against a master for damages for personal injuries caused by being crushed between 9, post and a moving train of cars, a charge to the effect that plaintiff’s right to recover would not be defeated by the proximity of the post to the track, and plaintiff’s knowledge thereof, if such proximity did not of itself, unaided by any negligent act of defendant’s servants, occasion the injury, was proper when considered in connection with other portions of the charge.</p> <p>7. —Master and Servant — Assumed Risk— Contributory Negligence.</p> <p>An employe has the right to assume that his fellow servants will conform to the rules and practices usually observed, and hence is not guilty of contributory negligence, nor does he assume any risk when, in reliance upon such presumption, he places himself in a position of danger in the discharge of his duties.</p> <p>8. —Damages—Verdict not Excessive.</p> <p>In a suit for personal injuries, a verdict for $4,300 held not excessive in view of the evidence.</p>

<p>1. — Carriers of live Stock — Damages—Evidence—Conclusion of Witness.</p> <p>In a suit against a railroad company for damages to a shipment of cattle caused by delay and rough handling, plaintiff’s witnesses were allowed to testify what would have been the market value of said cattle at their destination if they had been transported with ordinary care, speed and dispatch, and within a reasonable time. Held, said testimony involved the opinion or conclusion of the witnesses as to what is ordinary care and what is reasonable time, a mixed question of law and fact, and therefore incompetent evidence,</p> <p>2. —Same—Testimony as to Condition of Cattle.</p> <p>Testimony of witnesses as to the condition,of cattle upon their arrival at destination, considered, and held not an opinion, but a statement of fact as it appeared to the witnesses.</p> <p>3. —Same—Reasonable Time for Transportation — Evidence.</p> <p>- A witness who has made only one trip with a shipment of cattle between two given points is not, by reason of that fact alone, qualified to give his opinion as to the usual time required for the transportation of cattle between such points.</p> <p>4. —Same—Shipping Contract — Stipulation to Peed and Water.</p> <p>■A stipulation or requirement by a railroad company, in a contract for the transportation of live stock, that a request to stop its train for the purpose of feeding and watering the stock must be in writing, is unreasonable, and will not be enforced. A verbal request is sufficient.</p>

<p>1, — Illegal Contract — Profits—Action to Recover.</p> <p>After an illegal contract or enterprise is ended, and the profits or losses ascertained by an agreement or adjustment between the parties, the courts will enforce an obligation to account for such profits or losses. That the original enterprise -was against public policy, and therefore void, is no defense.</p> <p>2. — Same—Case Stated.</p> <p>Where, upon the closing of a deal in futures, one of the parties, by reason of fraud or mistake, paid to the other an amount in excess of the balance due, which had been ascertained by agreement of the parties, the fact that the original transaction was illegal' would not prevent a recovery of the amount so paid.</p>

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

<p>1. —Appeal—Demurrers—Practice.</p> <p>When it does not appear from the record that a general demurrer was called to the attention of the trial court and acted upon by the court, no assignment of error based thereon will be considered upon appeal.</p> <p>2. —Official Fees — Excessive Demand — Pleading—Amendment.</p> <p>In his original petition an official stenographer sued for fees in excess of those allowed by law for the work performed; by an amended petition his demand was reduced to the lawful amount. Held, that the amended petition superseded the original petition and constituted plaintiff’s demand, and the fact that he may have violated the penal laws, and become amenable thereto by demanding excessive fees in his original petition, was no reason why he should not recover the lawful fees claimed in liis amended petition.</p> <p>3. —Official Stenographer — Fees.</p> <p>The statute regulating official stenographers makes it their duty to furnish a transcript of the testimony in narrative form when requested so to do by a party to the suit, and when this duty is performed he is entitled to his fees regardless of any usage, practice or custom for the attorneys in the case to reduce the testimony to narrative form.</p>

<p>1. —Heading—Amendment—Identity of Defendants.</p> <p>In an original petition the two railroad defendants were fully and correctly named; in an amended petition it was alleged that “the defendants are railroad corporations . . . , and have been duly and legally cited, and have answered herein;” the defendants, in an answer to said amended petition, designated themselves as “defendants, the Ft. W. & B. G. By. Co. and the St. L. & S. F. By. Co.;” after the evidence was closed, and the first argument for the plaintiff had been made, the court permitted the plaintiff to file a second amended petition wherein the names of the defendants were stated in full. Held, that the filing of the first amended petition did not operate as a dismissal of plaintiff’s suit against the defendants named in the original petition, and the statute of limitation did not run against plaintiff’s cause of action by reason thereof.</p> <p>2. —Carrier of Live Stock — Delay—Measure of Damage.</p> <p>Where a shipment of sheep could not be sold until three days after their arrival at market, and their failure to arrive in time for an earlier market was caused by the negligence of the carrier, in estimating the damage sustained by the owner the condition of the sheep at the time they were sold, and not at the time of their arrival at their destination, should be considered.</p>

<p>[Note. — This case was not designated by the court as one to be reported until Volume 48 of the Texas Civil Appeals Reports was already in type. It consequently appears out of its order in point of time. — The Reporters</p> <p>Judgment Lien — Statutes of Limitation.</p> <p>Adverse possession by the vendee of a judgment debtor, under the circumstances and conditions prescribed by the three and five years statute of limitation, will destroy the lien of a judgment creditor and bar his right to recover the land under and by virtue of a foreclosure of his judgment lien and sheriff’s deed to him.</p>