Volume 51 — Texas Civil Appeals Reports

<p>Appeal from the District Court of Val Verde County. Tried below before Hon. B. F. Higgins.</p>

<p>1. —Judgment—Community Debt—Wife’s Separate Property.</p> <p>A judgment against the husband alone for a community debt with foreclosure of a mortgage lien on certain property, is not conclusive against a claim by the wife that said property was her separate estate, when she was not a party to the suit in which the judgment was rendered.</p> <p>2. —Husband and Wife—Plea of Misjoinder—Construction.</p> <p>In a suit by the wife joined by her husband for the recovery of property alleged to be her separate property, a plea of misjoinder of parties considered, and held properly overruled.</p> <p>3. —Statute of Frauds—Insolvent Debtor—Gift to Wife—Who May Avoid.</p> <p>A gift by an insolvent debtor to his wife can only be avoided by a creditor prejudiced thereby, in an appropriate proceeding by him. The donee takes the title to this property subject to the demands of creditors.</p> <p>4. —Same—Trustee as Party to Fraud.</p> <p>An agent or trustee through whom a fraudulent gift of property is being effectuated can not, after accepting the title for that purpose, have the gift declared void when the effect would be to enable him to hold the property for himself.</p> <p>5. —Express Trusts—Proof.</p> <p>Express trusts in land are not -within our statute of frauds and can exist and can be proved by parol,</p> <p>6. —Agency—Ratification—Evidence.</p> <p>Upon an issue of agency and the ratification of the acts of the alleged agent, evidence considered, and held sufficient to support a verdict in favor of the alleged agency and ratification.</p> <p>7. —Practice—Objection to Testimony.</p> <p>Where,the testimony of a witness upon a given subject is partly competent and partly incompetent, an objection to the whole of the testimony is properly overruled.</p> <p>8. —Same—Exclusion of Testimony.</p> <p>Where, in ruling upon an objection to testimony and in excluding the same, , the court requires the stenographer to read over the objectionable portion and instructs the jury not to consider the portion so read, the action of the court was not subject to the objection that by the repeated reading the objectionable testimony was impressed upon the jury, thereby causing them to consider it instead of discarding it.</p> <p>9. —Trial—Order of Proof—Impeaching Testimony.</p> <p>Where it appears from the allegations of defendant’s answer that certain testimony would be offered by defendant in denial of plaintiff’s cause of action, it is not reversible error for the trial court to permit the plaintiff in the first instance to introduce testimony tending to impeach the testimony which it is apparent defendant would subsequently introduce and which was in fact introduced. An appellate court will consider the record as a whole and pass upon such questions in the light of the record as it stood when the case was submitted to the jury.</p> <p>10. —Agency—Conspiracy—Proof.</p> <p>In an action to set aside a conveyance on the ground that the same was procured by fraud, evidence considered, and held sufficient to support a finding of the jury upon issues of agency and conspiracy. A prima facie case of agency or conspiracy being made, the declarations of the agent or conspirator are admissible against the principal or co-conspirator.</p> <p>11. —Same—Direct Proof.</p> <p>It is not error to permit a party to a suit to testify that a certain person was not his agent in the transaction out of which the litigation arose, when the party testifies fully to the facts upon which the statement was predicated.</p> <p>12. —Deed—Fraud—Competent Evidence.</p> <p>The action being to set aside a deed which the defendant obtained at a trustee’s sale without competition, it was proper to permit the plaintiff to testify that he made no effort to get bidders or buyers at said sale because he relied on the promise of the defendant to hold the land in trust for him after the purchase. Such testimony was not subject to the objection that it was a conclusion of the witness.</p> <p>13. —Witness—Impeachment—Corroborative Statements.</p> <p>Whenever a witness is sought to be impeached by showing that he has made statements inconsistent with his testimony at the trial, and the tendency of the impeaching evidence is to show that the testimony of the witness is fabricated, it is proper to admit evidence of former statements which corroborate his testimony, provided such statements were made at a time when no motive or influence to fabricate, existed. Testimony considered and rule applied.</p> <p>14. —Trust Agreement—Evidence.</p> <p>In an action against a purchaser of land at trustee’s sale to enforce specific performance of an agreement to hold the land in trust for the debtor, testimony that the debtor dissuaded persons from bidding at said sale was material and relevant in proof of an allegation that the debtor relied and acted upon the trust agreement, and the testimony was not subject to the objection that it was hearsay.</p> <p>15. —Same.</p> <p>A deed can not be set aside or reformed except upon allegations of fraud, mistake and the like, but these allegations are not essential in order to charge the grantee in a deed with a trust in the land. Rule applied.</p> <p>16. —Verdict—Special Issues—Practice.</p> <p>When a case is submitted upon special issues it is proper for the court to refuse to submit an issue which is not involved in the law of the c'ase.</p> <p>17. —Appeal—Unsigned Bill of Exception.</p> <p>An unsigned bill of exception will not be considered on appeal.</p> <p>18. —Verdict—Special Issue—Prejudicial Error.</p> <p>Where a case is tried upon special issues it is reversible error for the court to submit to the jury an issue calculated to convey to the’ mind of the jury the impression that there was evidence which would support a finding on such issue.</p> <p>19. —Appeal—Cross Assignment—Practice.</p> <p>A cross assignment by an appellee will not be considered when it has not been filed in the trial court or such filing been waived and when the matter presented by it is not fundamental error.</p> <p>20. —Same—Additional Brief.</p> <p>Assignments of error omitted from appellant’s brief and presented for the first time in an additional brief, will not be considered unless presented by consent of appellee.</p> <p>ON MOTION FOB BEHEABINQ.</p> <p>21. —Appeal—Taxing Cost—Rule.</p> <p>Unless it clearly appears that the error for which a case is reversed is one which the trial court would have corrected had it been called to the attention of the court, the cost of the appeal should be taxed against the appellee.</p> <p>22. —Debt—Rate of Interest—Pleading.</p> <p>Where, in a suit involving the settlement of accounts between the plaintiff as debtor and the defendant as creditor, the plaintiff admits or insists in his pleading that the defendant be allowed ten percent interest on his claims such plaintiff will not be heard afterwards to say that the defendant should have been allowed only the legal rate of interest.</p> <p>23. —Practice—Filing Conclusions of Fact. ,</p> <p>The failure of the trial judge to file his conclusions of fact is not cause for reversal when there is a statement of facts in the record.</p> <p>24. —Special Issues—General Verdict—Practice.</p> <p>When a case is submitted upon special issues it is proper for the trial court to refuse a charge calling for a general verdict.</p> <p>25. —Same—Finding by Court—Judgment.</p> <p>When a case is tried upon special issues the court may make a finding from the testimony to supply a finding upon a material issue which was not submitted to the jury.</p> <p>26. —Fraudulent Conveyance—Burden of Proof—Evidence.</p> <p>Fraud should be proved with some degree of certainty, and the burden of proof is upon the party alleging it. Upon an issue of fraud as to a gift made by a debtor, evidence considered, and held to require a finding against the allegation of fraud.</p> <p>27. —Trial—Cross-Examination—Repetition of Improper Testimony—Waiver.</p> <p>Where, upon cross examination a party causes a witness to repeat testimony which he objected to on direct examination, the objection is thereby waived.</p>

<p>1. —Parent and Child—Gift of Child—Custody of Child—Pleading and Evidence.</p> <p>While the proposition may be correct that a parent has no such property interest in his child as may be given away, and that he can not relieve himself of his parental obligations to the child, still when a father has attempted to give his infant daughter to her aunt, and has voluntarily surrendered the control of his child for the first seven or eight years of its life, and permitted such aunt to exclusively feed, clothe and care for it, the courts, upon the application of the father to obtain possession of the child, will consider the attempted gift together with the other evidence in arriving at a conclusion as to where the custody of the child should be placed.</p> <p>2. —Same—Immoral Influences.</p> <p>In an action by a father to recover the possession and custody of his daughter from an aunt who had had possession and custody of the child from its infancy until it was eight years of age, the fact that the reputation of the father’s wife, the child’s stepmother, for chastity was bad, was a matter proper to be plead in defense by the aunt and to be considered by the court in awarding the custody of the child. The welfare and best interests of the child should be in the prime considerations. Evidence considered, and a judgment denying to a father the custody of his minor daughter, sustained. Justice Neill dissenting.</p>

<p>1. —Pleading—Hearsay Statements—Practice.</p> <p>Hearsay statements of third parties when not admissible in evidence should not be read to the jury as allegations in a petition, nor should the jury be permitted to take such pleading with them in their retirement.</p> <p>2. —Evidence—Hearsay.</p> <p>The testimony of a plaintiff as to what a third party had told him, plaintiff, that the defendant had said to such third party, would be hearsay and incompetent evidence.</p> <p>3. —Same—Declaration of Co-conspirator.</p> <p>The rule that a statement of-a conspirator is admissible in evidence against a co-conspirator applies only in the case of a cause of action which is based upon an alleged conspiracy. .</p>

<p>1. —Injunction Bond—Amendment—Signature of Principal.</p> <p>Upon motion to quash an injunction bond on the ground that it was not signed by the principal in the bond, it was not error to permit the attorney for the principal to sign the principal’s name to the bond, and thereupon overrule the motion to quash.</p> <p>2. —Limitation—Possession of Trespasser—Entry of Owner—Effect—Case Followed.</p> <p>The adverse possession of a trespasser upon land, so far as the statute of limitation is concerned, is immediately limited and restricted to the land actually enclosed by him, upon the entry into possession by the owner in person or through his tenant, even though the possession of the owner is of only a part and not of the whole tract. The case of Bowles v. Brice, 66 Texas, 730, followed.</p> <p>3. —Trial—Harmless Errors.</p> <p>Where it appeared from the undisputed evidence that an appellant recovered judgment in the court below for more land than he was entitled to under his plea of limitation, errors of procedure upon the trial complained of by him will be disregarded.</p> <p>4. —Reformation of Judgment—Practice.</p> <p>Where an appellee makes ho complaint in the trial court of the judgment rendered against him, the Appellate Court will not consider a mere request in his brief that the judgment be reformed in bis favor.</p>

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

<p>Urban Homestead—Evidence.</p> <p>A mere intention to make unoccupied property a homestead is insufficient to constitute it such. Some act or acts of preparation to seasonably and actually use and occupy the property for the purpose of a home must concur with such intention. Evidence considered, and held insufficient to impress upon urban property the character of homestead.</p>

<p>1.—Death—Measure of Damage—Case Distinguished.</p> <p>In a suit for damages for the death of plaintiffs’ wife and mother, the court charged the jury as follows: “If the death of the wife of plaintiff was proximately caused by the negligence of defendant, as charged, the plaintiff is entitled to recover on account of the death of his wife a sum the value of which is equal to the pecuniary benefit (if any) that the plaintiff or his children, for whom he sues, or any of them, had reasonable expectations of receiving from the said deceased had she not died.” Held, not subject to the objection that the charge was tantamount to telling the jury to allow the plaintiff such sum now as he might reasonably have expected to receive in a pecuniary way in the future if his wife had not died. Ft. Worth & D. C. Ey. Co. v. Morrison, 93 Texas, 529, distinguished.</p> <p>2.—negligence—Hastening Death—liability.</p> <p>One whose negligence hastens the death of another is liable proportionately for the resulting damages.</p>

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

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

<p>Estates—Suit Against Partnership—Judgment of Foreclosure.</p> <p>The District Court has jurisdiction to render judgment for debt and foreclosure of mortgage lien upon partnership property against a surviving partner and the administrator of a deceased partner although administration be pending on the estate of the deceased partner. Evidence considered, and held sufficient to support a finding that the note sued upon was a partnership debt, and land mortgaged to secure the same was partnership property.</p>

<p>Appeal from the District Court of Bastrop County. Tried below before Hon. Ed. ¡R. Sinks.</p>

<p>1. —Trespass to Try Title—Co-tenant against Trespasser—Harmless Error.</p> <p>Plaintiff in trespass to try title having- shown that he had acquired the interests of some of those owning the land as tenants in common, and having recovered the whole against defendant, who was a mere trespasser, errors in admitting evidence to show that plaintiff had also acquired the interest of other co-tenants disclosed no ground for reversal on defendant’s appeal.</p> <p>2. —Outstanding Title—Dedication as Public Street.</p> <p>Defendant in trespass to try title could not defeat recovery of part of the premises, on the ground of an outstanding title in the city, by relying on the invalidity of the action of the city authorities in vacating the dedication of the same as a public street, where (1) there was no proof of the original dedication, (2) the city was not complaining, and (3) the defendant (appellant) had no interest in the question. -</p>

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

<p>1. —Personal Injury—Sliver from Chisel—Danger not Incident to Employment.</p> <p>In a suit for damages for the loss of an eye caused by a sliver from a chisel while being used to cut an iron rail, evidence considered, and held to show that the danger from the sliver was not incident to plaintiff’s employment as a section hand on a railroad, and sufficient to support a finding that the defendant company was negligent in the use of an old and battered chisel.</p> <p>2. —Appeal—Motion for New Trial—Practice.</p> <p>An assignment of error not specified or relied upon in the motion for new trial will not be considered on appeal.</p> <p>3.—Personal Injury—Assumed Risk—Knowledge.</p> <p>In a suit by an employe for damages for the loss of an eye caused by a sliver from a chisel used in cutting a rail, the plaintiff testified: “After they began to cut the rail I got up to avoid the danger of slivers flying off from the chisel and hammer, because I have seen it occur at other times.” Held, not sufficient to show such knowledge of the immediate danger from the use of the hammer and chisel as would place the plaintiff in the position of assuming the risk, as matter of law.</p> <p>4.—Assumed Risk—Act Construed.</p> <p>Under the Act of 1905 on the subject of assumed risk, an employe of a railroad company does not as matter of law in every case assume the risk of a defect and danger which he knows of, but whether he does or not depends on whether or not his proceeding with the work is reconcilable with ordinary care. Evidence considered, and held insufficient to show assumption of risk, as matter of law.</p> <p>5.—Evidence—Occurrence—Physical Impossibility.</p> <p>Whether or not it was a physical impossibility for a sliver to fly from the head of a chisel in an upward direction from the blow of a hammer, so as to strike the eye of a person standing four or five feet- away, is a matter upon which an Appellate Court has no judicial knowledge.</p>

<p>1. —Appeal—Statement of Facts—Act Construed.</p> <p>The Act of 1907 (Gen. Laws, page 509) requires that a statement of facts, after it has been prepared by the official stenographer, must be agreed to in Avriting by the parties and approved by the trial judge, or when not agreed to by the parties must be approved by the judge. In every instance the approval of the judge is required, and no statement of facts can be considered without such approval.</p> <p>2. —Injunction—Judgment after Term.</p> <p>During the term of a Justice Court an order of dismissal was entered in a pending suit by agreement of the parties upon the understanding that the defendant was to pay a certain sum at once in full settlement of plaintiff’s claim; the defendant paid one-half of said sum at the time of the dismissal, receiving a receipt for the same, in which it was recited that the defendant “was to have a very short time, that is, immediately,” in which to arrange the payment of the balance; after the expiration of the term, the defendant not having paid the balance, the justice of the peace at the request of the plaintiff set aside the order of dismissal and entered a judgment against the defendant for the full amount of plaintiff’s claim. Held, the judgment was a nullity, and an injunction to restrain execution upon the same was properly granted.</p> <p>3. —Pleading—Amendment—Effect.</p> <p>An amended pleading takes the place of the original pleading, and matters in the latter not repeated in the amendment will be regarded as waived.</p> <p>4. —Injunction—Legal Remedy—Jurisdiction—Waiver.</p> <p>Where, in a suit to enjoin an execution on the ground that the judgment was void, it appeared from the averments of the petition that the plaintiff at one time had a plain and adequate legal remedy which he failed to avail himself of, and the defendant made no objection, but submitted to the jurisdiction of the court in the matter of the injunction and went to trial on the merits, it is too late to raise the point afterwards or on appeal. Such objection must be promptly raised and pressed.</p> <p>5. —Money Demand—Compromise—Consideration.</p> <p>The receipt of a part of the amount agreed upon in settlement of a money demand and the acceptance of the promise of the debtor to pay the balance in a short time, is a sufficient consideration to support the compromise.</p> <p>6. —Appeal—Practice.</p> <p>On appeal it is too late to raise the question for the first time that a compromise of a debt was without consideration, or that the attorney making the compromise was without authority to do so.</p> <p>7. —Compromise—Payment “at once,” Construed.</p> <p>Where, by the terms of a compromise, it was agreed that the debtor was to have “a very short time” in which to arrange for the payment of the sum agreed on, and upon receipt of one-half the money the attorney for the creditor gave a receipt for the same wherein it was stated that the balance was “to be paid at once,” held, that the expression “at once” would be construed to mean within a reasonable time.</p>

<p>1. —Statute of Frauds—Verbal Sale of Land—Requisites.</p> <p>In order for one claiming land under and by virtue of a parol gift, to obtain a decree in his favor he must allege and prove that there was a parol gift, an entry by him into actual, open possession of the land, and that he placed on the land, because of the gift, permanent and valuable improvements, and these acts must all have been done during the lifetime of the donor.</p> <p>2. —Same—Evidence.</p> <p>Under a claim to land by virtue of an alleged parol gift, evidence considered, and held insufficient to support the claim in the matter of possession and improvements,</p> <p>3.—Pleading—Overruling Exception—Harmless Error.</p> <p>Error in overruling an exception to a pleading becomes harmless when no evidence is introduced on the subject and the issue is not submitted to the jury.</p> <p>4.—Parol Gift of Land—Pleading.</p> <p>In an action to recover land based alone upon a verbal gift of the same, an allegation as to valuable services rendered by the donee to the donor is irrelevant and has no place in the suit, and should be stricken out on exception.</p> <p>5.—Trespass to Try Title—Improvements—Bents.</p> <p>When the plaintiff in trespass to try title gets the benefit of improvements made on the land by the defendant the courts will not give the plaintiff judgment for rents also, nor for the value of timber taken from the land by the defendant, although the improvements were not made by the defendant in good faith.</p>

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

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

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

<p>1. —Charge—Numerous Objections—Assignment of Error.</p> <p>An assignment of error directed to a specific part of a charge will be considered although numerous and contradictory objections are embraced therein, provided the objections are carried forward in appropriate propositions under the assignment.</p> <p>2. —Contributory Negligence—Definition.</p> <p>In a suit for personal injuries, the court defined contributory negligence as follows: “Contributory negligence means where the plaintiff does some negligent act or omits to perform some act which, co-operating with some negligent act or omission on the part of the defendant, contributes to and is the proximate cause of the injury.” Held, in substantial compliance with approved forms.</p> <p>3. —Charge—Contributory Negligence—Proximate Cause—Invited Error.</p> <p>In a suit for personal injuries received by a passenger while attempting to board a moving train, charge of the court upon contributory negligence and proximate cause, considered, and held not reversible error, if error at all, in view of a special charge requested by the appellant and embodying the same phraseology.</p> <p>4.—Same.</p> <p>In a suit for personal injuries, upon the issue of contributory negligence, the court charged the jury to find for the defendant if they found that plaintiff’s contributory negligence was “the cause of his injury,” instead of the proximate cause of his injury. Held, not reversible error in view of the evidence and other charges given.</p> <p>5.—Personal Injury—Measure of Damage—Charge Approved.</p> <p>Upon the measure of damages in a suit for personal injuries the court charged the jury as follows: “If under the foregoing instructions you find for the plaintiff, you should allow him such sum' in money as damages as, in your judgment, if paid to him in cash at the present time, would fairly eompensate him for the injuries, if any, you find he has sustained. In estimating or arriving at the sum or amount of damages, if any, which you may allow plaintiff, you will take into consideration the physical and mental suffering of the plaintiff, his loss of time, permanent injury, if any, his diminished capacity to earn money, if you find that his capacity to earn money had been diminished, resulting from the injuries, which you may find he sustained.” Held, not subject to the objection that it authorized a double recovery.</p> <p>6.—Carrier—Employee as Passenger.</p> <p>In a suit by an employe against a railroad company for damages for personal injuries received while attempting to board one of the company’s passenger trains, evidence considered, and held sufficient to show that plaintiff was a passenger at the time he was injured, and entitled to that high degree of care due by a carrier to a passenger.</p> <p>7.—Same.</p> <p>Where a railroad employe was directed by those in authority over him to alight from a passenger train at a certain station and obtain a pass upon which to continue his journey, it was negligence on the part of the company to start the train before a reasonable time had been allowed the employe to obtain the pass, and the company was liable for injuries received by him in attempting to board the moving train, in the absence of contributory negligence on the part of the employe in so doing.</p> <p>8.—Personal Injuries—Invalid Release.</p> <p>A release executed by a railroad employe to the company of all claims for damages for personal injuries received, considered, and held invalid and no defense to a subsequent suit for such damages.</p>

<p>Appeal from the County Court of Grayson County. Tried below before Hon. H. W. Hassell.</p>

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

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

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

<p>Appeal from the District Court of Jeiferson County. Tried below be- H fore Hon. E. E. Easterling, Special Judge. H</p>

<p>Appeal from the District Court of Harris County. Tried below before Hon. Lewis B. Bryan, Special Judge.</p>

<p>Railroads—Damage to Adjacent Property—Measure of Damage.</p> <p>In a suit for damage to adjacent property by the building of a spur track upon a portion of a street, the damage to the property can be offset only by such benefits to the property as accrued from the building of the spur track. Such enhanced value to the property as arose from building the railroad into the town, or from the location of the depot near plaintiff’s property, belonged to the plaintiff in common with the general public, and could not be taken away without compensation.</p>

<p>1.—County Judge—Sureties.</p> <p>Sureties on the bond of a county judge were only bound for his proper accounting for moneys which he was entitled to receive in his official capacity— not for fees or commissions unlawfully demanded and collected.</p> <p>2.—Same—limitation.</p> <p>Where action against the county judge for money had and received for commissions unlawfully collected was barred by limitation of two years, which was pleaded, the petition must show a liability covered by the term of his written bond.</p>

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

<p>Error from the 41st Judicial District, El Paso County. Tried below ■ before Hon. J. M. Goggin. I</p>

<p>1.—Innocent Purchaser—Record of Title—Transfer of Land Certificate.</p> <p>Purchasers of land, in good faith and for value, from heirs of the patentee are protected against the equitable title of one holding through an assignment of the certificate not of record in the county where the land was located. This principle applies where an assignment of the original certificate had been returned to and filed in the General Land Office with the certificate and the field notes of a former location, such location partly abandoned by reason of conflict, and certificate for unlocated balance relocated in another county, patented to the original grantee, and sold by his heirs to innocent purchasers.</p> <p>2.—Deed—Forgery—Alteration.</p> <p>Alteration of a deed by forgery of the name, as grantor, of a part owner not joining in its execution does not affect its validity to pass the title of those executing it. Harper v. Stroud, 41 Texas, 368, and other cases of alteration of notes and executory contracts distinguished.</p> <p>ON BEHEABING.</p> <p>3.—Innocent Purchaser.</p> <p>One buying land without notice of an unrecorded conveyance by a remote grantor to another is protected, without showing that his immediate grantor was also without notice.</p>

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

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

<p>1.—Municipal Corporation—De Facto Corporation.</p> <p>When a city or town, in the manner provided by law, holds an election to determine whether the town shall be incorporated, and the election results in favor of incorporation, and the town organizes and elects officers, and the officers assume to act as such, a corporation de facto is thereby created. The State alone can institute proceedings to test the validity of its incorporation. The corporate character of the town can not be questioned in a collateral proceeding.</p> <p>2.—Abolished Municipal Corporation—Creditor—Remedy.</p> <p>Under the provisions of the Act of 1895 (Gen. Laws, page 325) the District Court of the judicial district in which a defunct municipal corporation is situated, has authority to appoint a receiver for such corporation on the petition of any creditor thereof, and, upon proper showing, to levy yearly a tax upon all property situated within the previously incorporated limits, sufficient to discharge 1 the debts of such corporation.</p> <p>3.—Limitation—City Warrants.</p> <p>The four years, and not the two years statute of limitation applies to debts owing by a city, evidenced by its warrants.</p>

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

<p>1. —Secondary Evidence—Sufficiency of Predicate—Revision on Appeal.</p> <p>While the sufficiency of a predicate to admit secondary evidence is addressed to the sound discretion of the trial court, the exercise of such discretion in a given case may be reviewed by an Appellate Court.</p> <p>2. —Same—Insufficient Predicate.</p> <p>As a predicate for the admission of secondary evidence of the contents of a letter, the party offering the evidence testified, in substance, that he did not have the letter with him at the time of the trial and had not seen it lately, and had made no search for it. Held, insufficient.</p> <p>3. —Same—Same.</p> <p>As a predicate for the admission of secondary evidence of the contents of a letter, the party claiming to have received the same testified, in substance, that he left the letter at a certain store and had not seen it since; that he did.not know where the letter was at the time of the trial; that he did not . think it important enough to keep, and just left it at the store. Held, insufficient.</p> <p>4. —Attorney and Client—Privileged Communication—Evidence.</p> <p>Statements by a client to his attorney concerning the facts of a suit about to be filed, are privileged, and the client can not be required to divulge the same on the trial.</p> <p>5—Contract—Performance—Charge.</p> <p>In an action for money alleged to be due upon a contract, the court charged the jury to find for plaintiff if they believed from the evidence that he had complied with his contract “as a person should do, or was prevented from so doing by defendant.” Held, that the phrase “as a person should do” was sur- " plusage and should have been omitted.</p>

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

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

<p>1. —Verdict—Judgment.</p> <p>In a suit for damages for the levy of an execution, upon the ground, among others, that the judgment on which the execution issued had been satisfied before the execution issued, and where the court by its charge limited the right of the-plaintiff to recover to a finding by the jury that the judgment had been satisfied, a verdict in favor of plaintiff necessarily involved a finding that the judgment had been satisfied, and was sufficient to support a judgment cancelling the judgment.</p> <p>2. —Charges—Repetition—Undue Prominence to Issue.</p> <p>Upon an issue of exemplary damages for the levy of an execution upon property alleged to be exempt, special charges considered, and held to emphasize said issue unduly, and calculated to impress the jury with the belief that in the opinion of the court plaintiff was entitled to recover.</p> <p>3. —Exemplary Damages—Rule.</p> <p>To warrant a recovery for exemplary damages there must be some bad motive or such reckless conduct, either intentional or grossly negligent, as shows a conscious disregard for the rights of another. Charge considered, and held erroneous.</p> <p>4. —Exemptions—levy of Execution—Damages.</p> <p>One who knowingly causes an execution to be levied on exempt property • with the intent to harass and oppress the debtor, is liable for exemplary damages.</p>

<p>1. —Broker—Commissions—Contract of Sale Construed.</p> <p>In an action by a land agent for commission upon a sale of land, contract of sale considered, and held to constitute only an option on the part of the buyer either to consummate the purchase or forfeit the earnest money, and the buyer having elected to forfeit the earnest money, the agent was not entitled to commissions.</p> <p>2. —Same—Pleading—General Denial—Evidence.</p> <p>In an action by a land agent for commissions on an alleged sale of land, it was permissible for the defendant under a general denial to prove by the plaintiff that no sale of the land was ever in fact consummated.</p> <p>3. —Same—Insufficient Evidence.</p> <p>The mere fact that a land agent drew up a contract of sale and witnessed the same is insufficient to prove that he was instrumental in making the sale.</p>

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

<p>Shipper and Consignee—Conversion—Exemplary Damages.</p> <p>A milling company to which a dealer had shipped ears of grain with draft for the price accompanying the bill of lading, took possession and converted it, having made bond to protect the carrier in the amount of the draft; this it refused to pay to the shipper except on allowance of offset of its claims for damages arising out of previous shipments; such claim was found, upon sufficient .evidence, to be unwarranted. Held that the unlawful taking and conversion of the property with the intent of forcing an allowance of its claim for offset was ground for exemplary damages, though the claim to such offset was not fictitious, but made in good' faith. San Antonio & A. P. Ry. Co. v. Kniffen, 4 Texas Civ. App., 484, followed.</p>

<p>1. —Judgment—Payment—Appeal.</p> <p>In a suit upon vendor’s lien notes, plaintiff recovered judgment for the principal and interest, but the court refused to allow the attorney’s fee stipulated for in the notes. Upon rendition of the judgment the plaintiff received from the defendant the amount of the judgment, giving a receipt therefor in which it was stipulated that the money was accepted with the express understanding that the same should in no way affect plaintiff’s claim for the attorney’s fee. Held, that plaintiff was not thereby estopped from prosecuting an appeal from the judgment of the court in refusing to allow an attorney’s fee.</p> <p>2. —Note—Tender—Attorney’s Pee.</p> <p>Where the maker of a note was always ready and willing to pay but was prevented from doing so by the absence of the holder from the State, and the holder upon his return to the State filed suit without demand for payment or notice, and the maker tendered the full amount of principal and interest on the day after suit was filed and renewed the tender on the day of trial, and it further appeared that the holder filed the suit to gratify a personal pique, the holder was not entitled to recover the attorney’s fee.</p>

<p>1. —Agreement of Settlement—Subsequent Litigation—Bes Adjudícala.</p> <p>An employe sued a railroad company for damages for personal injuries; the defendant answered by general denial, contributory negligence, assumed risk, and an agreement on the part of plaintiff to accept a certain amount of money in settlement of his claim, which amount the defendant tendered at the trial, but which the plaintiff refused to accept; the issue of agreed settlement was raised by the evidence and submitted by the charge of the court. The jury returned a general verdict for the defendant. Held, it being impossible to determine from the verdict of the jury upon what issue or issues the jury rendered their verdict, the judgment thereon must be held a bar to a subsequent suit by the plaintiff or his heirs for said money.</p> <p>2. —Agreement of Settlement—Bepudiation—Failure of Consideration.</p> <p>The repudiation of an agreement of settlement of a claim and the subsequent filing of suit and prosecution of same to judgment, is a destruction of the consideration for the agreement on the part of the defendant to pay the sum agreed upon.</p>

<p>1. —Marketable Title—Definition.</p> <p>A “marketable title” is one that is free from reasonable doubt. A title tendered by an executrix to lands of an estate, considered, and held a marketable title.</p> <p>2. —Wills—Estate—Executrix—Power to Sell.</p> <p>A testator by his will directed that his estate should “be kept together” until his children, therein named, should come of age or be married; that his said children should be “kept, maintained and educated by his executrix in a manner suitable to their circumstances in life,” and “for this purpose” gave his executrix “full and unlimited power to manage, control and dispose of” his estate in the same manner as he could do were he alive, as in her discretion seemed best for the estate and his children. Held, that the executrix had authority during the minority of the children, for the purpose of maintaining and educating them, to sell and convey land of the estate, and that this right was so free from doubt as to render the title tendered by her to a prospective purchaser a “marketable title.”</p> <p>3. —Contract of Sale—Earnest Money—Forfeiture.</p> <p>A certain sum of money was paid by a purchaser to a vendor of land with the understanding that the money was to be applied as a part of the purchase money if the sale was consummated, or to be forfeited to the vendor as liquidated damages in case he tendered a marketable title to the land by a certain date and the purchaser refused to consummate the purchase; within the time stipulated the vendor tendered a title which the purchaser, on the advice of his lawyer, refused to accept on the ground that it was not a marketable title. In a suit by the purchaser for the earnest money, evidence considered, and held sufficient to support a judgment for the defendant.</p>

<p>1. —Citation—Omission of File Number.</p> <p>A citation which fails to state the file number of the suit in the body of the citation will not support a judgment by default, and the fact that the file number is written on the back of the citation is not a compliance with the requirement of the statute that the citation shall state the file number of the suit.</p> <p>2. —Same—Defective Return.</p> <p>The sheriff’s return upon a citation stated that the writ was executed “by delivering to J. H. D., Mrs. L. C. D., the within named defendants, in person, a true copy of this writ.” Held to show that but one copy of the writ was delivered to both defendants. The fact that the officer’s bill for fees endorsed on a writ contained a charge for serving two copies of the writ, did not cure the defect.</p>

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

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

<p>1.—Known Danger—Contributory Negligence—Question of Fact.</p> <p>The plaintiff, in an action against a railroad company for damages for personal injuries, was not necessarily guilty of contributory negligence in attempting to drive a shying horse over a defective railroad crossing partially obstructed by a box car. In a case of this character, a plaintiff who has been injured through the negligence of the defendant, is not precluded from a recovery merely because he knew there was some danger incident to the act through which he was injured. Whether or not he was guilty of negligence is a question of fact for the jury.</p> <p>2. —Railroad Crossing—Customary Construction—Negligence.</p> <p>Testimony that a certain railroad crossing was constructed in the same manner as other crossings in towns of the same size throughout the State, was irrelevant and immaterial upon the issue of negligence in the construction of the crossing in question. The fact that all such crossings were negligently constructed would not relieve the defendant from liability.</p> <p>3. —Same—Degree of Care—Statute Construed.</p> <p>Under the provisions of article 4426, Rev. Stat., ordinary care in the construction of crossings for public roads over railroad tracks, is not sufficient to relieve railroad companies from liability for defects in their construction.</p> <p>4. —Same—Right of Public.</p> <p>The public have a right to the unobstructed use of a public crossing over a railroad, and are not required to abandon the use of a defective crossing to avoid a charge of contributory negligence by using the same.</p>

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

<p>1. —Change of Venue—Statute Construed.</p> <p>Upon a proper application for change of venue of a civil case, it is mandatory upon the trial court to enter an order of removal to the nearest adjoining county, unless the disqualification of such adjoining county is shown in the application. Such qualification must appear in and from the application. When the application is controverted, the controversy might be as to the alleged disqualification of either the county where the suit is pending or of the adjoining county, or of both. Application for change of venue and alleged disqualification of adjoining county considered, and held, no abuse of discretion to order the case removed to the adjoining county.</p> <p>2. —Evidence—Reading Part of Written Instrument—Rule."</p> <p>The rule that where one party has introduced in evidence a part of a writing, the opposite party has a right to introduce the whole of the writing, means and refers to the whole of the writing bearing on, having connection with, and relating to the same subject matter as that introduced which is necessary to make it fully understood or to explain the same. It does not include immaterial or irrelevant matter.</p> <p>3. —Trial—Issue—Charge.</p> <p>Where, in a suit for the rental of land, plaintiff’s petition contained two counts, one upon a written contract and the other upon quantum meruit, and the court by its charge limited the right of plaintiff to a verdict to a finding by the jury that a written contract was actually executed, it was not error to refuse to instruct the jury that the antecedent negotiations did not amount to a contract.</p> <p>4. —Contract—Execution—Evidence.</p> <p>The issue being whether or not a contract had been executed, evidence considered, and held sufficient to require the court to submit the issue to the jury.</p> <p>5. —Contract by Letter—Acceptance—Evidence.</p> <p>Where correspondence and negotiations preliminary to a contract are transmitted and conducted through the mails, it is not indispensable that the letter of acceptance should be actually received. An acceptance may be inferred from the subsequent conduct of the parties.</p>

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

<p>1. —limitation—landlord and Tenant—Charge.</p> <p>Where a lease from plaintiff to defendant included the land in controversy, a charge which sustained defendant’s plea of limitation if he was in possession of the premises for the statutory period, without excepting from such possession the time during which he held as tenant of plaintiff, was error.</p> <p>2. —lease—land Included—Intent of Parties.</p> <p>Where the terms of a lease were clear as to the land included, the character of defendant’s possession thereunder could not be affected by his testimony as to his intent as to what was to be embraced at the time the contract was made.</p> <p>3. —limitation—Landlord and Tenant.</p> <p>Where the possession relied on by defendant was clearly as a tenant for plaintiff, the court should have instructed the jury to disregard the issue of limitation.</p>

<p>1. —Judgment—Pleading—Jurisdiction.</p> <p>Allegations in a bill of review to set aside a partition judgment entered in the trial court in pursuance of a decree by consent in the Court of Civil Appeals, held too meager and obscure to show want of jurisdiction over the complaining parties to render such consent decree, if intended for that purpose.</p> <p>2. —Same—Motion—Appearance.</p> <p>A motion filed in the trial court to set aside a judgment there ordering partition of land in pursuance of a consent decree rendered in the Court of Civil Appeals, on the ground that jurisdiction was still in the latter court at the time such partition judgment was rendered in the trial court, was an appearance by the parties making it, and they were bound by a judgment coiA recting the daté of the entry of the partition judgment and showing that it was actually rendered after jurisdiction of the trial court had attached. A motion of their adversaries to so correct the date was a proper answer to their own motion by which they had appeared.</p> <p>3. —Parties—Husband and Wife—Bill of Review.</p> <p>A wife who has appeared in a cause seeking relief from a judgment by motion, and without joining her husband, cannot by bill of review, assert the invalidity of the proceedings because her husband was not made a party. At least she should negative the existence of circumstances authorizing her to so proceed without joining him.</p> <p>4. —Judgment—Demurrer—Appeal.</p> <p>On the reversal of a judgment for defendant on sustaining a demurrer to plaintiff’s bill of review, which reversal is had on one only of the various allegations relied on, it seems that the other issues ruled against plaintiff below are settled, and further proceedings should relate only to a disposal of the issue held to be well pleaded.</p> <p>5. —Judgment—Disqualification of Court.</p> <p>An allegation that the judge trying the case was disqualified by interest in the property involved and by having been an attorney in the litigation affecting it, is sufficient to show the judgment to be void, not merely voidable; and a demurrer thereto was improperly sustained.</p> <p>6. —Writ of Error—Time.</p> <p>A petition for writ of error is in time when filed on the same day of the same month of the year following the rendition of the judgment.</p> <p>7. —Judgment—Disposition of Parties.</p> <p>A judgment for defendant in an action for the recovery of land sufficiently disposes of the issues as to parties interested only in recovery against a warrantor in case plaintiff recovers the land, though the judgment does not mention them.</p>

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

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

<p>1. —Injunction—City Ordinance—Property Eights.</p> <p>When the enforcement or attempted enforcement of a void city ordinance will result in irreparable injury to property rights, the person whose rights are thus affected can enjoin the enforcement of such ordinance. In a petition for injunction, allegations of injury to plaintiff’s business by the enforcement of an ordinance, considered, and held sufficient to warrant the issuance of an injunction, provided the ordinance was void.</p> <p>2. —Same—Criminal Prosecution.</p> <p>In a suit by a minor to enjoin a labor union from prosecuting him, under the criminal ordinances of a city, for pursuing the occupation of a plumber without a license, allegations considered, and held insufficient to show that any property rights were involved, and if the ordinance was void, he had a compíete and adequate legal remedy.</p> <p>3. —City Ordinance—Statute—Conflict.</p> <p>The rule that a city ordinance in conflict with a State law upon the same subject is void, can have no application unless the State law, with which the ordinance conflicts, is intended to apply and is in fact applicable and operative in the city in which such ordinance has been enacted. An ordinance of a city regulating the licensing of plumbers, compared with the State law on that subject, and held valid, inasmuch as the State law was not operative in the city in question.</p>

<p>Homestead—Mechanic’s lien—Change in Plans—Evidence.</p> <p>In a suit by the transferee of a mechanic’s contract for improvements on a homestead, evidence considered, and held to support a judgment foreclosing the mechanic’s lien. The fact that the original contract contemplated a five-room addition to a three-room house, and that afterwards the plans were so changed as to make an eleven-room house, did not nullify the original contract, it appearing that no fraud was practiced upon the wife, that the changes were made with her knowledge and consent, that the additional cost was paid with money obtained from another source and did not increase the incumbrance and that the money borrowed and secured by lien had all been used in the improvement of the homestead. Paschall v. Pioneer Savings Co., 19 Texas Civ. App., 102, distinguished.</p>

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

<p>1. —Personal Injuries—No liability without Negligence.</p> <p>In a suit for damages for personal injuries received by a minor while riding upon a moving freight train in the yards of a railroad company, the court by its charge made the defendant company conclusively liable if any of the employes operating the train knew that the plaintiff had caught or would catch and hold onto the moving train, regardless of whether or not his injuries resulted from any negligence on the part of defendant’s employes. Held, reversible error.</p> <p>2. —Trespassing Children—Duty of Railroads.</p> <p>Each case involving the liability of railroads for injury to trespassing children must depend for the most part upon its own peculiar circumstances. While the authorities conflict, the better reason requires those engaged in a dangerous business to exercise at least ordinary care in the conduct of such business to avoid loss of life or limb of even a trespasser. And this .rule applies with' greater force when the trespasser is a child of tender years.</p> <p>3. —Same—Case Distinguished.</p> <p>In a suit for damages for personal injuries received by a child six ypars old while holding on to a freight train, evidence considered, and held to raise a question of fact for the jury as to defendant’s negligence. St. Louis S. W. Ry. Co. v. Davis, 110 S. W., 939, distinguished.</p>

<p>Appeal from the County Court of Childress County. Tried below before Hon. W. B. Howard.</p>

<p>1. —Partnership—Competition by Partner—Action for Damages.</p> <p>E. & B. were partners in a local telephone exchange; R. owned certain connecting toll lines in his separate right which derived a revenue from the partnership exchange; B. entered into a contract with a third party for the establishment of toll lines which would compete with those owned by R.; in an action by E. against B. for damages for an alleged violation of the contract of partnership in the local exchange, and for damage to R.’s individual interests, pleading and evidence considered, and held insufficient to show that B. was under any obligation by contract or otherwise to refrain from competing with R.’s individual toll lines, and therefore insufficient to support a verdict and' judgment in E.’s favor.</p> <p>2. —Same—Ho Duty, no Liability.</p> <p>In the absence of some duty arising out of a contract, express or implied, to refrain from competing with the business of another, there can be no liability in damages for so doing.</p> <p>3. —Telephone Companies—Right to Construct Lines in Towns.</p> <p>Telephone companies are included in the statute concerning corporations created for the purpose of constructing and maintaining magnetic telegraph lines, and the statute granting city councils of towns and cities incorporated under the general law the exclusive control over the streets, alleys, etc., of the city, and the power to abate nuisances and remove encroachments or obstructions thereon, does not repeal the previous statute giving the right to telephone companies to use the streets for their poles and lines:</p> <p>4. —Partnership—Dissolution—Competition.</p> <p>After the withdrawal of a partner from a partnership, such partner may engage in the same business without liability for damages resulting to the old concern from competition.</p>

<p>1. —Mandamus—Public Service Corporation—Performance of Contract—Parties.</p> <p>A municipal corporation may maintain a suit by mandamus to compel a public service corporation (m this instance a water company) to comply with its contract with the city to supply the inhabitants with water. The city is the proper plaintiff, rather than the individual private citizen, to compel the performance of its duty to the public by such a corporation.</p> <p>2. —Same.</p> <p>In order to constitute existing legal remedies a bar to the use of the extraordinary remedy by mandamus, it must appear that the legal remedies are specific and appropriate to the particular circumstances of the case; otherwise or if the remedies are inadequate to afford the party aggrieved the particular right which the law accords him, mandamus will lie. This rule applied in a suit by a city to compel a water company to make connections between its water mains and the premises of the citizens, and to bear the expense of doing so.</p> <p>3. —Town—Water Company—Contract Construed.</p> <p>A contract between a town and a water company considered, and held to require the company to make all connections between its water mains and the premises of citizens desiring to use the water, and to bear the expense of same, and that such construction of the contract was not in violation of the constitutional rights of the defendant by impairing the obligation of its contract with the city, nor by the taking of its property without due process of law or compensation.</p> <p>4. —Contract—Construction by Mayor, not Binding on City.</p> <p>Concerning the construction of a contract between a city and a water company, a statement by the mayor in open council considered, and held not binding on the council or the city.</p>

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

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

<p>1. —telephone Company—Failure to Deliver Notice of Call—Notice of Damages.</p> <p>A telephone company cannot be made liable for damages resulting from its negligent failure to notify one for whom a call is put in" unless it is informed in some way of the nature, purpose and subject matter of the proposed conversation, so that the damages likely to result from such failure may be said to have been within the contemplation of the parties.</p> <p>2. —Same—Case Stated.</p> <p>Notice to a telephone company that a stock man at one point wished to talk with a stock man at another point, was not sufficient to charge the company with notice that the party calling desired to purchase a carload of mules from •the party called for.</p> <p>3. —Same—Measure of Damage.</p> <p>In a suit against a telephone company for damages for failure to deliver notice of a long-distance call, a charge which authorized a recovery by plaintiff for the difference between the price for which plaintiff could have sold a carload of mules had the notice been given, and the price which 'by the exercise of reasonable diligence he thereafter sold the mules for, was erroneous in that it only required diligence in obtaining a price and not in disposing of the mules.</p> <p>4. —Telephone Company—Nature of Business.</p> <p>The nature of a telephone company’s business is not the transmission of messages but to find and bring to the telephone office the party for whom a ' call is made.</p> <p>5.—Same—Negligence—Insufficient Evidence.</p> <p>In a suit against a telephone company for damages for failure to give notice of a long-distance call, evidence considered, and held insufficient to support a finding of negligence.</p>

<p>Injunction—Appeal—Effect.</p> <p>An injunction in force when an order dissolving it is entered, remains in force pending an appeal under a supersedeas bond; otherwise, under a cost • bond. A petition for injunction to restrain the sale of land under an execution, upon the ground that an appeal was pending from an order dissolving an injunction previously granted by a judge of a' different county, to stay said execution, considered, and held insufficient in that it failed to aver that the appeal from the order dissolving the prior injunction was by a supersedeas bond.</p>

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

<p>1. —Homestead—Assessment for Street Improvement—Case Distinguished.</p> <p>In a suit to collect an assessment against a homestead in a city, in accordance with an ordinance passed by the city council, for the purpose of improving the street upon which the property abutted and to foreclose a lien upon the homestead, evidence considered, and. held to justify the judgment of the triad court refusing to foreclose a lien upon the homestead, on the ground that the assessment was not a tax as that term is used in the Constitution authorizing the sale of the homestead for the non-payment thereof. Kettle v. City of Dallas, 35 Texas Civ. App., 632, distinguished.</p> <p>2. —Same—Benefits—Conclusion of Fact by Council—Case Distinguished.</p> <p>By the provisions of a city charter, the finding of fact by the city council, after citation and hearing, that the special benefits accruing to property exceeded the charges assessed against it for paving the adjacent street, was made conclusive against the owner. Held, that such finding if not conclusive was at least prima facie evidence of the fact so found, and in the absence of evidence tending to show that such finding was not correct, an objection that said provision in the charter was unconstitutional, will not be considered. Hutcheson v. Storrie, 92 Texas, 685, distinguished.</p> <p>3. —Same—Limitation—Evidence.</p> <p>A city charter provided that if an assessment for street improvement was not paid within thirty days after it became due, suit should be filed for the same. Evidence considered, and held insufficient to sustain a plea of two years’ limitation in a suit for the tax.</p>

<p>1. —Trastee—Purchase of land—Resulting Trust.</p> <p>Whenever a trustee or other person in a fiduciary position, acting within the scope of his powers, purchases land or other property with trust funds, or funds in his hands impressed with a fiduciary character, and takes the title to such property in his own name without any declaration of a trust, a trust with respect to such property at once results in favor of the original beneficiary.</p> <p>2. —Same—Case Stated—Conversion.</p> <p>M. and S. were equal joint owners of a promissory note secured by vendor’s lien on land; S. entrusted the collection of the note to M. who obtained judgment thereon, sold the land and bought it in through another party with whom he was interested; the land was worth much more than the amount of the in* cumbrance on it. Held, that S. was entitled to his proportionate part of the land or of the profits secured by means of the judgment in which he was interested. This right, however, he might waive and sue for the value of his part of the note converted by M.</p> <p>3. —Conversion—Damages—Interest—Pleading.</p> <p>A plaintiff in a Justice Court sued for the sum of $180 for the conversion of a promissory note; the transcript failed to show that the plaintiff sought to recover interest as a part of his demand either in the Justice Court or in the County Court, to which the ease was appealed. Held, that while the plaintiff would have been entitled to recover in the proper court the value of the converted note and, under the name of damages, interest thereon from the date of the note to the date of the conversion, still in the absence of such pleading the sum sued for, $180, was the limit of his recovery, and a judgment allowing interest on the value of the note was erroneous.</p> <p>4. —Appeal—Agreement in Brief.</p> <p>An Appellate Court cannot accept an agreement in the briefs of the parties as a substitute for what the law requires to be shown in the transcript.</p>

<p>1.—Breach of Promise—Defamation of Character—Joinder of Actions.</p> <p>Allegations, in a suit for breach of promise of marriage, of statements by defendant derogatory to plaintiff’s character, held not to present a misjoinder of actions on contract and in tort, but to relate to the measure of damages in the action on contract, and not to be subject to demurrer.</p> <p>2. —Evidence—Harmless Error.</p> <p>The admission of evidence from a third party of conversations with plaintiff, not in defendant’s presence, was not ground for reversal where the same matter was also brought out by defendant in his cross-examination of plaintiff.</p> <p>3. —Evidence—Promise of Marriage—Letters—Notice to Produce—Argument of Counsel.</p> <p>In a suit for breach of promise of marriage, letters of plaintiff to defendant, if containing matter relevant to the issue, might be admissible in evidence; and where they were shown to be in possession of defendant’s counsel, who, upon notice to produce them given in the course of the trial, declined to do so, the refusal to produce was a proper subject for comment by plaintiff’s counsel in argument.</p> <p>4. —Promise of Marriage—Pleading—Circumstantial Evidence,</p> <p>Allegations of an express undertaking to marry, not stated to be in writing, may be proved by circumstantial evidence, and a proposal of marriage and its acceptance would constitute such express contract.</p> <p>5. —Promise of Marriage—Time of Performance—Pleading and Proof.</p> <p>Plaintiff relying on a promise of marriage with no date set, and also a subsequent agreement fixing the date, it was proper for the court to instruct the jury that the promise, without date for performance, implied an agreement to marry within a reasonable time.</p> <p>6. —Pleading and Evidence—Harmless Error.</p> <p>Where plaintiff’s pleading and evidence showed an unconditional agreement to marry and denied any agreement releasing the defendant therefrom, and defendant’s, a conditional promise from which he had been released, neither asserting a renewal after release, a charge that if the agreement had been annulled and was afterwards renewed defendant would be bound thereby, was not ground for reversal, it being improbable that the jury were misled thereby.</p> <p>7. —Punitory Damages—Harmless Error.</p> <p>Error in the charge relating to punitory damages was harmless to defendant where none were recovered.</p> <p>8. —Requested Instruction—Evidence.</p> <p>A requested charge limiting the purpose for which the jury could consider the testimony of certain witnesses was rightly refused where some of their, testimony could properly be considered for other purposes.</p> <p>9. —Breach of Promise of Marriage.</p> <p>Evidence considered and held to support a recovery for breach of promise of marriage.</p>

<p>1. —Carriers—Connecting Lines—Charge.</p> <p>In an action against connecting lines oí carriers on a through shipment of live stock, under contract limiting the liability of each to injuries occurring on its own line, it was proper to direct a verdict in favor of those defendants as to whom there was no evidence as to delay or default in the transportation by them.</p> <p>2. —Same—Injuries Developing Later.</p> <p>In an action against connecting carriers of live stock, the liability of each being limited to injuries sustained on its own line, it was proper to charge that one was not liable for the results of weakness and injuries inflicted by the preceding carrier, though they were not manifest when received from such previous carrier, and developed only during the transportation by the one whose liability was considered in such charge.</p> <p>3. —Requested Charge—Absence of Evidence.</p> <p>It was not error to refuse a requested charge relieving defendant from liability upon a certain issue, where there was no evidence raising such issue.</p> <p>4. —Requested Charge Embraced in Instructions Given.</p> <p>It was not error to refuse a charge the principle of which was embraced in the instructions given.</p> <p>5. —Same.</p> <p>A general instruction that defendant was only required to furnish a reasonably safe car for transporting live stock was sufficient to justify the refusal of a requested one that it was not required to furnish a “stable car.”</p> <p>6. —Same.</p> <p>A general charge that injuries to live stock by rough handling would render defendant liable only where due to his negligence held sufficient to justify the refusal of a more specific requested instruction to the same effect.</p> <p>7. —Shipment—Oral and Written Contract.</p> <p>Evidence as to an oral contract for transportation of live stock, made with a station agent, and its ratification by superior officers, held admissible though a written contract was afterwards signed. Missouri K. & T. Ry. Co. v. Belcher, 88 Texas, 549, and Gulf, C. & S. F. Ry. Co. v. Dinwiddie, 21 Texas Civ. App., 344, distinguished.</p> <p>8. —Evidence—V alue—Opinion.</p> <p>Evidence considered and held to show witnesses to be qualified to testify to the value of live.stock in the condition in which they observed them.</p> <p>9. —Railways—Connecting Lines—Through Shipment—Venue.</p> <p>Connecting lines of carriers, having agents in this State, transporting live stock on a through shipment, but with the liability of each limited to damages on its own line, may be jointly sued in any county where either does business, and damages apportioned between the defendants. (Act of March 13, 1905, Laws, 29th Leg., p. 29.)</p> <p>10. —Connecting Carriers—Pleading.</p> <p>Petition in an action against connecting carriers charging them with negligence generally in the transportation, and with the resulting damages, is sufficient without alleging the effect of the negligence of each.</p> <p>11. —Pleading—Cattle Pens—Negligence. '</p> <p>Allegations of the negligence of carriers in furnishing defective and improper stock pens for cattle in transit, held sufficient.</p> <p>12. —Evidence—Declarations of Employes.</p> <p>Declarations of railroad employes as to the carrier being out of food for stock, made while unloading them at stock pens for feeding, were properly admitted.</p> <p>13. —Evidence—Carriers—Damages—Notice.</p> <p>In a through shipment of live stock over several connecting roads, each limiting liability to his own line, evidence that plaintiff gave notice of the ultimate destination of the shipment to the agents of one of the intermediate carriers, whose undertaking was only for transportation to its terminus and delivery to the next connecting line, was competent. Showing knowledge of the market to which the shipment was consigned did not vary the terms of the written contract; it was relevant to the measure of damages to which such intermediate carrier was liable for its default in transportation. For similar reasons evidence of the market value of the animals at their ultimate destination was admissible against such intermediate carrier.</p> <p>14. —Carriers of Live Stock—Feeding and Watering—Contract—Damages—</p> <p>Contributory Negligence.</p> <p>An undertaking by a shipper accompanying his live stock to himself feed and water the animals in transit was valid and effective against him only in case the carrier furnished him adequate facilities therefor; and his omission, on the carrier’s failure to do so, to procure feed and water elsewhere would not, under the circumstances, preclude him from recovering the damages caused by such default of the defendant.</p> <p>15. —Carriage of Live Stock—Suitable Car—Acceptance by Shipper.</p> <p>The shipper of live stock does not, by acceptance of an unsuitable car furnished him, when no choice between that and a proper one is offered, relieve the carrier from its liability for failure to perform its duty to furnish a safe and suitable car.</p> <p>ON MOTION FOB BBHEABINQ.</p> <p>16. —Proof of Agency Declarations.</p> <p>• Though agency cannot be proved by declarations of the alleged agent, they are admissible, in connection with other evidence, to prove that fact.</p> <p>17. —Evidence—Harmless Error.</p> <p>Eulings admitting testimony are not ground for reversal where the same facts are established by other evidence—especially that introduced by the complaining party.</p>

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

<p>1. —Negligence—Duty Dependant on Relation of Parties.</p> <p>A railroad mail clerk was injured by the movement of the train while he was alighting therefrom at its destination. Held that another road, to which he did not sustain the relation of passenger, was not liable for the negligence of its employe, present with a truck to receive the mail for its trains, in failing to warn plaintiff of the coming movement of the train from which he was alighting. No duty with respect to plaintiff’s protection from such injury rested on that company.</p> <p>2. —Carrier of Passengers—Degree of Care.</p> <p>The expression “a high degree of care,” in defining the duty of a carrier to its passengers, was indefinite and lacking in proper limitation; and the requirement of “the utmost care” was erroneous. The demand is, the care which a very prudent, cautious and competent person would use under the same circumstances.</p> <p>The degree of care which the defendants, their agents and employes owed the appellee, if any, is not correctly defined by the use of the words, “a high degree of care.” On the contrary, the degree of care which the M. K. & T. owed the defendant, if any, is properly defined as ordinary care, while that due from the H. & T. C. Eailroad Company, if any, is properly defined as that which very cautious persons generally, in their line of business, are accustomed to use under similar eireumstances. Railroad v. Halloren, 53 Texas, 53; Fordyce v. Withers, 1 Texas Civ. App., 544; Houston & T. C. Ry. Co. v. Dotson, 15 Texas Civ. App., 73; International & G. N. Ry. Co. v. Welch, 86 Texas, 203; Texas & P. Ry. Co. v. Miller, 79 Texas, 78, 82.</p>

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

<p>1. —Peremptory Charge—Presumption.</p> <p>In the absence of a proper assignment of error showing why such a charge was • error, the presumption will be indulged that the pleading and evidence authorized the trial court to give a peremptory charge for a party to the suit, and errors of procedure committed during the trial will not be cause for reversal of the judgment.</p> <p>2. —Same—Burden upon Appellant.</p> <p>Where, in a suit against a railroad company for damages for personal injuries, the company interposes several distinct defenses, and the court gives a peremptory charge for the defendant, if the evidence upon any one of the defenses justified such a charge, the judgment should not be reversed; and the burden is upon the appellant to show by proper assignment that such a charge was not justified by the evidence upon any of the issues.</p> <p>3. —Appeal—Brief—Assignment of Error—Statement.</p> <p>An assignment of error which is no.t followed in the brief by a proper statement of the evidence in the record, will not be considered on appeal. Rule applied.</p> <p>4. —Trial—Practice.</p> <p>The hearing and consideration of exceptions to pleading when such exceptions were filed out of due order, is harmless error when it appears that the exceptions were all overruled.</p> <p>5. —Same.</p> <p>Overruling an exception to a particular paragraph of an answer, even though the exception is well taken, is proper when the defect in the particular paragraph referred to in the exception is cured by the allegations of another paragraph.</p> <p>6. —Fellow Servant—Statute Construed.</p> <p>The employes of an independent contractor engaged in building trestles, cattle guards, fences, houses, etc., for a railroad company, are not “engaged in the work of operating the cars, locomotives or trains” of the railroad company, within the purview of articles 4560f, 4560g and 4560h of the Revised Civil Statutes.</p> <p>7. —Trial—Admission of Evidence—Defective Bill of Exception.</p> <p>When a bill of exception to the exclusion of testimony fails to state what objection was made to the testimony and the ground upon which it was excluded, an assignment of error based thereon will be overruled.</p> <p>8. —Appeal—Assignment of Error.</p> <p>An assignment of error that “The court erred in overruling appellants’ motion for a new trial for the reasons assigned therein,” is too general, and will not be considered when many grounds for new trial are urged in the motion.</p> <p>9. —Independent Contractor—Negligence.</p> <p>A railroad company is not liable for the death of an employe of an independent contractor caused by the negligence of such contractor or the co-employes of the deceased.</p>

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

<p>1.—Counterclaim—Plea in Eeconvention—Statute Construed.</p> <p>Under the provisions of article 755, Bevised Statutes, concerning counterclaims, if the demand sought to be adjudicated by the defendant be necessarily connected with and incident to the suit brought by the plaintiff, it is a proper matter of cross-action, whether liquidated or unliquidated..</p> <p>i$.—Same—Case Stated.</p> <p>In a suit to recover title and possession of a number of mules, it was permissible under our statute for the defendant to plead in reconvention for damages upon the ground that he was induced by the plaintiff to buy the mules from him by the promise of the plaintiff to let defendant a certain grading contract in which the mules could be profitably used, and that thereafter the plaintiff refused to allow defendant to perform the contract, and brought this suit for the possession of the mules. The fact that the suit was brought to recover possession of the specific property instead of for the value of the property, could not affect defendant’s right to plead his damages in reconvention.</p> <p>3. —Pleading—Generality—Admission of Evidence—Practice.</p> <p>When a defendant takes no exception to a petition because not sufficiently specific in its allegations, and makes no objection to the admission of evidence under said allegations, he can not, on appeal, object to the charge of the court submitting the issue on the ground that it was not raised by the pleading.</p> <p>4. —Sequestration—Beplevy—Value of Property.</p> <p>Where a number of mules have been seized under sequestration and replevied by the defendant, the verdict and judgment should show the value of each animal. In the absence of such showing no judgment can be rendered against the principal and sureties on the replevy bond.</p> <p>5. —Same—liability of Sureties.</p> <p>The liability of sureties on a replevy bond begins from the date of the bond, hence they can not be held liable for the use or hire of the property prior to the date of the bond.</p>

<p>Appeal from the District Court of Orange Comity. Tried below before Hon. W. B. Powell.</p>

<p>Appeal from the District Court of Burleson County. Tried below before Hon. E. R. Sinks.</p>

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

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

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

<p>Appeal from the District Court of Deaf Smith County. Tried below before Hon. J. FT. Browning.</p>

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

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

<p>School Land—Application to Purchase—Occupancy—Evidence.</p> <p>The issue being whether or not appellee was an actual settler upon school land at the time he filed his application to purchase, evidence considered, and held sufficient, although conflicting, to support the finding of the jury in his favor. However humble the habitation might be if it is the home and only home of the settler at the time he makes application to purchase, he is an ' “actual settler” as that term is used in the Constitution and statute, and his right to purchase will be upheld. The fact that the wife and children of the applicant did not join him in the occupancy of the land until about one year after his application to purchase was filed, will not defeat his right when it is shown that their absence was caused by sickness.</p>

<p>1. —Demurrer—Judgment—Railroad Commission—Injunction,</p> <p>The rule that a general demurrer admits the truth of the facts pleaded by plaintiff, and where it is overruled and defendant, having no other answer, declines to amend, judgment should be rendered for plaintiff, applies in suits to enjoin the Railroad Commission from putting into force an order alleged to he unreasonable and unjust. The law making the rulings of the Commission prima facie correct does not affect this rule of procedure.</p> <p>2. —Railroad Commission—Passenger Train Service.</p> <p>Under article 4580, Revised Statutes, as amended by the Act of April, 1903 (Laws, 28th Leg., p. 183), the Railroad Commission has power to require, if the circumstances and the public need demand it, that a railway company operate more than one passenger train daily each way over its line of road.</p> <p>3.—Injunction—Order Making Perpetual.</p> <p>An injunction against the enforcement of an order of the Railroad Commission found to be upon a subject over which it has no legal authority, may properly be made perpetual on final hearing; but if enjoined on the ground merely that the order, though within their jurisdiction, was unreasonable and unjust under existing circumstances, the injunction should not extend to the making or the enforcement by proper officers, of such orders as may be required by facts subsequently arising.</p>

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

<p>1. —Railroad Commission—Freight Rates—Discrimination—Galveston-Houston Differential. „</p> <p>Conclusions of the trial court (from findings of fact held to be supported by the testimony) that the differential, or added freight rate between Galveston and inland points over the rate between Houston and the same points, prescribed by various orders of the Railroad Commission, was, as applied to rates to and from points on the St. Louis, Brownsville & Mexico Railway, an unjust and unlawful discrimination against Galveston and its shippers and an undue and unreasonable advantage to Houston, such as is prohibited by article 4574, Rev. Stats., are sustained, the distances by rail from all points on said line being practically no greater to Galveston than to Houston, and on much of the line less.</p> <p>2. —Same—Natural Advantages.</p> <p>It was not the intention of the Legislature to confer upon the Railroad Commission the power to so regulate freight rates as to deprive one locality of the natural advantages possessed by it over a rival commercial point, with a view to equalizing conditions.</p> <p>3. —Same—Attacking Commission Rates,</p> <p>The fact that rates from inland points to Galveston, via Houston, may be, on the whole, fixed with justice to Galveston on the basis of the differential, does not justify the application of the same differential to traffic passing directly to Galveston from points equally or less distant therefrom than from Houston, and it was not necessary, in order to show undue preference in the particular rate, to attack the schedules and rates of the Commission in their entirety.</p> <p>4. —Same—Parties Complaining.</p> <p>The application of the differential to a certain line of railway may affect the interest of inland shippers on that line, as well as those of the two cities concerned, and such shippers could properly be parties to a proceeding attacking in court the rates fixed by the Commission.</p>

<p>1. —Pleading and Proof—Agreed Compensation—Quantum Meruit.</p> <p>Plaintiff suing on allegation of an agreed price for his services can not recover, without proof of such agreement, for their reasonable value; but see findings of trial court held to show agreement as to compensation.</p> <p>2. —Land Agent—Right to Commissions.</p> <p>An agent for sale of land who procures for his principal a purchaser able, ready and willing to take it on the terms authorized is entitled to his commissions as on sale, where the principal refused to consummate the deal, and though the negotiations with the purchaser procured were conducted by the principal.</p> <p>3. —Same—Revocation of Authority.</p> <p>The principal for whom his agent for the sale of land has procured a purchaser accepting the terms offered, can not defeat the agent’s right to commissions by revoking his authority after he had done so.</p> <p>4. —Land Agent—For Whom Acting.</p> <p>Evidence held to show that a land agent, in procuring a purchaser, acted for the seller and not for the buyer, and to show what the purchaser was procured by his efforts.</p>

<p>1. —Pleading—Judgment.</p> <p>Facts proved but not alleged can not be made the basis for a judgment.</p> <p>In a suit to take an estate out of the hands of trustees named in a will, and partition the same among the devisees, pleading considered, and held insufficient to warrant a judgment in favor of plaintiffs on the ground that there had been unreasonable delay on the part of the trustees in making partition, such ground for the action of the court not having been alleged.</p> <p>2. —Will—Partition—Interested Trustee.</p> <p>The fact that a trustee, named in a will to make partition of an estate, has an interest as devisee in the estate, would not of itself disqualify him from making the partition.</p> <p>3.—Will—Partition—Unreasonable Delay.</p> <p>Evidence considered, and held to support a finding of the trial court that there had been unreasonable delay, on the part of trustees named in a will, in making partition of the estate.</p>

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

<p>Appeal from the District Court of Tyler County. Tried below beforeHoh. W. B. Powell.</p>

<p>Appeal from the District Court of Clay County. Tried below before Hon. S. A. Denny.</p> <p>Allen & Wantland and P. M. Stine, for appellant.</p>

<p>1. —Master and Servant—Machinery—Obvious Danger.</p> <p>No duty rests upon a master to warn even a minor of the ordinary risks and dangers of his occupation which the latter actually knows and appreciates, or which are so open and apparent that one of his age and capacity would, under like circumstances by the exercise of ordinary care, know and appreciate.</p> <p>2. —Same—Minors—Duty to Warn.</p> <p>The duty of instructing minors as to the dangers of their employment being predicated upon the fact that without such warning they would be exposed to avoidable 'dangers of which they are presumably ignorant, it follows that after they have been properly instructed their minority will usually cease to be a material factor in determining the extent of the master’s liability. In such cases the defenses of assumed risk and contributory negligence will be as available against them as against adults.</p> <p>3. —Same—Case Stated.</p> <p>In an action by the parents against an oil mill company for damages for the death of their minor son whose clothing was caught in a revolving shaft near his place of duty, evidence considered, and held to justify the trial court in giving a peremptory instruction for the defendant.</p> <p>4. —Same—Warning—Assumption of Bisk.</p> <p>That the master’s machinery might have been arranged in a less dangerous manner is immaterial when the servant has been sufficiently instructed. '</p>

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

<p>1. —Account—Illegal Consideration.</p> <p>An account for intoxicating liquor sold in a local option county to be retailed in such county, and which account was to be paid with money derived from the sale of said liquor, can not be collected by law.</p> <p>2. —Locality—Judicial Knowledge.</p> <p>The courts will take judicial notice of the local divisions of the country, as States, counties, cities, towns, and the like, so far as political government is concerned or affected, and of the relative positions of such local divisions, but they will not take notice that particular places are, or are not, in particular counties, unless such place is the county seat of the county.</p> <p>3.—Intoxicating Liquor—Judicial Knowledge.</p> <p>The courts can not take judicial knowledge that an article sold as “beer” is an intoxicating liquor. It is only such well known beverages as whisky, brandy, gin and the like, that the courts judicially know to be intoxicating.</p>

<p>1. —Bankruptcy—Defense—Pleading.</p> <p>A discharge in bankruptcy, to be available as a defense in a suit for debt, must be plead and proved.</p> <p>2. —Exemption—Restaurant Furniture not Exempt.</p> <p>The interest of a partner in restaurant" furniture and fixtures is not exempt from forced sale.</p>

<p>1. —Personal Injuries—Minor—Change of Employment.</p> <p>The fact that a mother was willing that her minor son should be employed for the performance of certain duties in a cotton mill did not authorize the employer to change the employment to a more dangerous one without the consent of the parent, and the employer would be liable for damages resulting from such change. A charge to this effect, without submitting to the jury the question whether or not such change of employment by the employer was negligence, considered, and approved.</p> <p>2. —Husband and Wife—Action for Injuries to Minor Child.</p> <p>A suit for injuries to a minor child should be brought by the father; the mother can not maintain such suit in her own name alone without alleging and proving some exception to the general rule which requires such suits to be brought by the husband during the existence of the marital relation.</p> <p>3. —Pleading—Capacity of Plaintiff to Sue—Abatement.</p> <p>The plaintiff, a married woman, sued to recover damages for personal injuries to her minor son; she alleged that she was a widow; the defendant filed a general denial, and specially plead that plaintiff was a married woman. Held, that plaintiff was required to show her right to maintain the suit. It was not necessary that defendant should file a plea in abatement, in due order of pleading and under oath.</p>

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

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

<p>1. —Wills—Undue Influence—Definition.</p> <p>The undue influence which invalidates a will consists of substituting the will of the person exercising it for that of the testator. It is an influence which destroys the free agency of the testator, and places him in a position where he is dominated by another, and which acted directly on his mind at the very time when he executed the will. Persuasion, entreaty, cajolery, importunity, argument, intercession and solicitation are permissible, and can not be held to be undue influence unless they subvert and overthrow the will of the testator and cause him to do a thing that he did not desire to do.</p> <p>2. —Same—Undue Influence—Evidence.</p> <p>Fraud or undue influence is usually proved by circumstances, but the circumstances must necessarily and logically lead to the inference that fraud or coercion was employed, and that the will does not represent the real desire and intention of the testator. A wide range should be permitted in the evidence.</p> <p>3. —Same—Same.</p> <p>The execution of wills prior to the one being contested concerning which no undue influence is shown, disposing of property in substantially the same way as in the last will, is relevant and material as showing the absence of undue influence in the execution of the last will, while a sudden and complete change in the disposition of property would demand explanation, unless the change is made in favor of heirs. The fact that some of the children are disinherited and others favored, and the distribution seems unnatural or unreasonable, raises no presumption of undue influence, but such fact may, when taken in connection with other facts, have that effect.</p> <p>4. —Same—Same.</p> <p>Unreasonable prejudice or erroneous convictions towards one who has a natural claim upon the bounty of the testator is no evidence of fraud or coercion. ■ Such state of mind, to constitute a sufficient reason for a refusal to probate a will, must have béen fanned into life or nursed and fostered by a beneficiary. A will must be procured wholly by lying or false representations, made by a beneficiary with the intention of procuring the execution of the will, in order to invalidate it for such fraud.</p> <p>5. —Same—Evidence.</p> <p>Upon an application to probate a will, the issue being fraud and undue influence on the part of the beneficiaries in procuring its execution, evidence considered, and held irrelevant and immaterial, and insufficient to support the judgment of the court sustaining the contest.</p> <p>6. —Same—Subsequent Memorandum—Codicil.</p> <p>A memorandum made by a testator subsequent to the date of his will, considered, and held insufficient as a revocation either expressly or by implication, but intended by the testator as a codicil.</p> <p>ON BEHEABING.</p> <p>7. —Will—Contest—Statement by Testator—Statute Construed.</p> <p>A contest of an application to probate a will is not an “action arising out of any transaction with the decedent” and therefore the provisions of article • 2302, Revised Statutes, have no application, and a party to the contest may testify as to statements by the testator.</p>

<p>1. —Continuance—Application Considered.</p> <p>The action of a trial court in overruling an application for continuance to procure the testimony of witnesses to disprove allegations of fraud in an amended petition filed upon the eve of trial, considered, and held error, in view of the pleading and the evidence upon the trial.</p> <p>2. —Jury—Several Defendants—Peremptory Challenges.</p> <p>When there is no fact issue between co-defendants they are not each entitled to the statutory number of challenges, although one of such defendants raises a distinct and separate issue between himself and the plaintiff.</p> <p>3. —Fraud—Evidence.</p> <p>Where a plaintiff charges defendants with conspiring with other persons, named in the petition, to systematically defraud the public in general and the plaintiff in particular, testimony of fraudulent transactions similar to that described in the petition, although plaintiff was not affected by them, are admissible in evidence in support of the allegations of fraud in the transaction with plaintiff.</p> <p>4. —Fraud—Specific Crime—Evidence.</p> <p>Although a plaintiff charges the defendants with fraud in procuring a certain deed from him, and with practicing fraud upon the public in general, it is error to permit the plaintiff to ask one of such defendants if he had not been arrested for swindling, and was under bond to answer said charge.</p> <p>5. —Deceit—Action for Damages—Rescission—Tender of Consideration,</p> <p>In an action sounding in damages for deceit it is not necessary that the plaintiff tender a return of the consideration; but in an action to rescind a contract of sale and recover the property sold, the plaintiff should tender a return of the property received by him.</p> <p>6. —Conversion—Measure of Damage.</p> <p>In a suit to recover for the conversion of property obtained by fraud, the measure of damage is the value of the property at the time it was wrongfully obtained, or its value at any time thereafter and prior to the trial, and not the value named in the fraudulent contract.</p>

<p>1. —Receiver—Appointment by State Court—Bankruptcy—Jurisdiction.</p> <p>When a State Court has acquired jurisdiction of the affairs of a solvent partnership by the appointment of a receiver it has the right to retain such jurisdiction although a receiver in bankruptcy has been appointed by a Federal Court upon a petition by one of the partners, and this, though the petition in the State Court for the appointment of a receiver was imperfect and was amended subsequent to the appointment of the receiver by the Bankrupt Court.</p> <p>2. —Receivers—Intervention—Appeal—Practice.</p> <p>Where one of the defendants in an application for the appointment of a receiver for a partnership, makes no objection to the ruling of the trial court refusing to allow a receiver in bankruptcy to intervene in such proceeding, such defendant will not be heard to complain of said ruling on appeal.</p> <p>3. —Partnership—Receiver—Pleading.</p> <p>It is not necessary to allege the insolvency of a partnership to obtain the appointment of a receiver for the same. Where, because of disagreements among the partners and the pressing of creditors, a partner agreed to the appointment of a receiver in order to prevent a waste of partnership assets, such partner will not be heard afterwards to object to the receivership and move that it be vacated. ,</p> <p>4. —Receiver—Appointment—Notice.</p> <p>Where partners agree that an application may be made by one of their number for the appointment of a receiver to take charge of the partnership business, citation or notice of the hearing of the application is not necessary.</p> <p>5. —Practice—Bill of Exception.</p> <p>A bill of exception which fails to show what the testimony was which was objected to or what objection was made, can not be the basis for an assignment of error.</p> <p>6. —Receivership—Pleading—Amendment—Effect.</p> <p>Where an original application for the appointment of a receiver is defective, but, upon the hearing of a motion to vacate an appointment made thereunder, a trial amendment is filed curing the defects in the original application, a refusal of the court, after hearing the evidence, to set aside the original order of appointment, would in effect be a reappointment of the receiver.</p>

<p>1. —Power of Attorney—Deed—Construction.</p> <p>On the 9th day of April, 1872, N. executed to T. a power of attorney to sell, contract and convey a certain tract of land containing 640 acres, giving to said agent “full power by this to do with the said land as if the same was his own property, for so doing this shall be a full warrant and power of attorney.” At that time T. held a lease of the same land from Ñ. for a term of ninety-nine years; shortly thereafter T. executed a deed to said land to K. which contained the following recital in setting out the chain of title, “And sold by IT. to K. as per power of attorney to T. dated at Galveston April 9, 1871, and accompanying this deed for record, all of which deeds, power of attorney and certified copy of patent are hereby delivered and declared part of this conveyance.” This deed was signed by T. in his individual capacity. Held, the deed on its face indicated an intention on the part of T. to convey the fee simple title of N. and not only the leasehold interest of T.</p> <p>2. —Same—Clerical Error.</p> <p>In a deed by an attorney in fact the name of his principal was stated as “A. H.” instead of “A. N.” and the date of the power of attorney under which the agent was acting was stated to be “1871” instead of “1872.” Held, unimportant clerical mistakes, in the light of the context and other evidence.</p> <p>3. —Power of Attorney—Signature.</p> <p>The fact that an attorney in fact signs only Ms own name to a deed will not make it his individual act when it is apparent from the body of the deed that it was his intention to act as agent for the owner of the land.</p> <p>4. —Deed—Construction—Contemporaneous Interpretation.</p> <p>The contemporaneous and subsequent conduct of parties to a deed is material and significant in arriving at a proper construction or interpretation of the same when doubtful.</p> <p>5.—Power of Attorney—Authority—Sale on Credit.</p> <p>When an agent is given authority in a power of attorney to sell land, “to do with the said land as if the same were his own property,” a sale by him on credit and for a consideration which inured to his own benefit alone, will be valid.</p> <p>G.—Finding of Pact—Doubtful Meaning—Construction.</p> <p>When a finding of fact by a trial judge is of doubtful meaning, such meaning or construction will be given it as -will support the judgment rendered thereon.</p>

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

<p>Appeal from the District Court of Rockwall County. Tried below before Hon. F. L. Hawkins.</p>

<p>Agent—Can not Prosecute Suit for Another.</p> <p>In this State a party can not appear in a court of record and prosecute or defend his suit therein by his agent or attorney in fact who is not an attorney at law duly licensed to practice as such.</p>

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

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

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

<p>Appeal from the County Court of Comanche County. Tried below before Hon. Edwin Dabney.</p>

<p>1. —Appeal—Statement oí Pacts—Motion to Strike Out—Practice.</p> <p>A motion to strike out a statement of facts on appeal will be overruled without reference to the merits of the motion when the judgment of the Appellate Court is based upon findings of fact by the trial court incorporated in the record, and the judgment of the court would be the same whether the motion was sustained or overruled.</p> <p>2. —School Land—Purchase—Improvements—Statute Construed.</p> <p>Under the provisions of art. 4218, Revised Stats, of 1895, a purchaser of school lands is not required to make improvements thereon beyond those necessarily incident to the settlement and occupancy required by other provisions of the Act, and a failure to make more extensive improvements would be no ground for forfeiture of the purchaser’s right.</p>

<p>1. —Appeal—Forma Pauperis—Case Followed.</p> <p>In an appeal forma pauperis, the record must affirmatively show that the proof of inability to pay the cost of prosecuting an appeal or writ of error was made before the County Judge, or before the court trying the case when such court was in session, and that an order or judgment was entered of record showing that the action taken was the action of the court. Sidoti v. Rapid Transit Railway Co., 35 Texas Civ. App., 131, followed.</p> <p>2. —Same—Statute Construed.</p> <p>Where an affidavit for appeal in forma pauperis appeared to have been filed by the clerk of the court during the term at which the case was tried, but it did not affirmatively appear that the proof was made before the judge while the court was in session, nor that such proof was made before the County Judge of the county of appellant’s residence, the appeal will be dismissed.</p>

<p>Note—Consideration—Evidence—Pleading.</p> <p>A debt to become due in the future for rents due by defendant to third parties could not be made the consideration of a note by defendant to plaintiffs, agents for such third parties, in their own right. Pleading considered under which defendant was held entitled to prove by parol evidence such to have been the consideration, in part, of a note sued on. A finding of such fact, with proof of the payment of the full amount actually due plaintiff on the note and also of the rents included in it held to support a judgment for defendant, even if plaintiffs had acquired the right to the rents or authority to collect them for such third parties.</p>

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

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

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

<p>1. —Taxation—Board of Equalization—Authority—Injunction.</p> <p>A Commissioners’ Court sitting as a Board of Equalization has no power to assess property for taxes. This power, save in exceptional cases, is vested in the assessor of taxes of the several counties of the State, and the method of assessing is prescribed by the statute. The Board of Equalization has no. power to add to the tax rolls property not previously assessed, or to take from them property which they embrace, and such action on the part of the Board is absolutely void, and may be enjoined.</p> <p>2. —Same.</p> <p>To the amount of money on hand and credits listed by the owner and accepted by the tax assessor, a Board of Equalization added a large amount' and assessed the same for taxes. Such action by the Board was absolutely void, and it was not necessary for the tax payer to show that he had applied to said Board for relief in order to have such illegal assessment annulled and the collection of the tax enjoined.</p> <p>3. —Same—Injunction—Pleading.</p> <p>Where the facts alleged in a petition for an injunction show that the plaintiff is entitled to the equitable relief prayed for, it is not necessary for him to allege that he has no adequate remedy at law.</p>

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

<p>1.—Deed—Execution—Circumstantial Evidence—Question for Jury.</p> <p>Where, in trespass to try title, defendant claims under a deed alleged to be lost or destroyed and relies on circumstantial evidence to prove the existence and execution of the deed, a question of fact is thereby raised which should be submitted to and passed upon by the jury. The court should not pass upon the legal effect of the evidence.</p> <p>3.—Same—Recitals in Other Deeds.</p> <p>The recitals in an ancient deed as to the chain of title under which the vendor holds, is admissible in evidence as a circumstance tending to prove the existence of a deed in such chain of title which is alleged to be lost or destroyed and which can not, after due search, be found.</p> <p>3. —Same—Lost Deed—Evidence.</p> <p>Upon the issue of the existence and execution of a lost deed, evidence considered, and held sufficient to support the finding of the jury that such deed had been executed.</p> <p>4. —Deed of Assignment—Effect.</p> <p>A deed of assignment by a debtor for the benefit of his creditors will pass to the assignee all the property owned by the debtor whether the same be sufficiently described or not.</p>

<p>1. —Deed—Certificate of Acknowledgment.</p> <p>A certificate of acknowledgment to a deed dated in 1882, by a proper officer, which, besides the formal parts, simply states that the grantor appeared before the officer “and acknowledged the execution of the annexed deed,” is sufficient proof of its execution and to admit the same to record. It is not necessary that the certificate should state that the grantor acknowledged that he executed the deed “for the purposes and considerations therein expressed.”</p> <p>2. —Appeal—Assignment of Error.</p> <p>An appellant will be confined upon appeal to the precise objection to evidence specified in the proposition under an assignment of error based upon the admission of evidence.</p> <p>3. —Deed—Acknowledgment—Act of 1907.</p> <p>'A defective acknowledgment to a deed is cured by the Act of the 30th Legislature (Gen. Laws, 1907, page 308) so far as an adverse claimant of the land is concerned, when the deed has been on record for ten years prior - to the assertion of such adverse claim, and this, though possession was taken under the adverse claim prior to the enactment of said statute. There can be no constitutional objection to the enactment of a retroactive rule of evidence.</p>

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

<p>1. —Liquor Dealer—City Charter—Saloon Limits.</p> <p>A city charter gave to the city council the power to prescribe by ordinance in what portion of the city saloons or other places for retailing intoxicating liquors should and should not be conducted, and to provide a penalty for the violation of such ordinance; under the authority thus conferred the council passed an ordinance prescribing certain territory within the city in which the business of selling intoxicating liquors should not be conducted, providing penalties for a violation of the ordinance, and providing further that the ordinance should not be so construed as to vitiate any valid liquor license then in force within the city. Held, the charter provisions and the ordinance were not in conflict with or repugnant to the general statute known as the “Baskin-McG-regor Act,” and therefore were not void.</p> <p>2. —Statutes, General and Special—Repeal by Implication.</p> <p>It is well settled that special legislation or local laws are not repealed by a later general Act unless specially mentioned in the general law, or such purpose is made manifest from the plain provisions of the general law.</p> <p>3. —General Statute—City Charter—Delegation of Legislative Power.</p> <p>An Act of the Legislature granting to a city the power to fix saloon limits within the city, is not subject to the constitutional objection that it is an attempt on the part of the Legislature to delegate its power to suspend a general law.</p> <p>4. —Liquor Dealer—Saloon Limits—City Ordinance.</p> <p>The fact that a city ordinance fixing saloon limits permits each licensee in the prohibited territory to continue the sale of liquor until his license expired by its own limitation, did not unreasonably discriminate against those licensees whose license expired sooner than others. And the fact that the dealers in the prohibited territory paid less for their license than those within the saloon limits, did not render the districting ordinance subject to the objection that it imposed unequal taxation, the license fee being fixed by a separate ordinance.</p>

<p>1. —Vendor and Vendee—Rescission—Expression of Opinion—Statement of Pacts.</p> <p>Where one in making a trade, expresses a mere opinion with no intent to deceive, the party to whom it is made has no right to rely thereon. It is otherwise where a party intentionally expresses an opinion which is calculated to deceive by reason of the circumstances that surround the parties or transaction, or if he makes a positive affirmation that is false and upon which a party is, from the surroundings, authorized to rely and does rely, the party injured thereby is entitled to relief, and it is immaterial whether or not the statement was made in good faith.</p> <p>2. —Same—Rule Applied.</p> <p>In a suit to rescind an executed contract for the purchase of land wherein the vendor alleged and the evidence tended to show that his alleged false representations as to the title were mere expressions of opinion made in good faith, it was error for the trial court to refuse to submit "such issue to the jury.</p>

<p>■ Appeal—Insufficient Assignment of Error.</p> <p>Appellant relied upon a single assignment of error as follows: “The trial court erred in concluding under the facts found that the defendant was guilty of negligence and that plaintiff was not guilty of contributory negligence and in entering judgment for the plaintiff.” Held, the assignment was not entitled to consideration because it presented more than one distinct proposition, and ■ did not under either of them separately present any ground of error.</p>

<p>Appeal from the District Court of Bowie County. Tried below before Hon. Sam H. Smelser.</p>

<p>1. —Taxation—Situs of Personal Property.</p> <p>The Legislature may, in certain instances, give to property an artificial situs for the purpose of taxation; but where the property is physical in character, of a nature that can acquire an actual situs, it must, under our Constitution, be taxed in the county where actually situated or located.</p> <p>2. —Ships—Place where used—Registry.</p> <p>A Texas corporation, an oil company, having its principal place of business at Beaumont, in Jefferson County, owned certain ocean-going steamers and barges for transporting crude and refined oil. These were registered at Galveston, the nearest port of entry; but were employed in carrying oil from Port Arthur, a harbor in Jefferson County, to other ports, and bore the letters “of Port Arthur” upon each vessel. They had never been in a Galveston harbor. Held that their situs for purposes of taxation was in Jefferson County, and that they could not be assessed for city taxes in the city of Galveston, Galveston County.</p>

<p>1;—Master and Servant—Assumed Risk,</p> <p>The risks of injury from negligence of the master which the servant is to be held to have assumed include only such as he knows or must necessarily have known in the discharge of the duties of his service; they do not extend to such as he might have known by the exercise of ordinary care.</p> <p>2. —Negligence—Coupling Apparatus.</p> <p>The fact that the knuckle of the coupling device of a car was left closed instead of open, either through defect or through the negligence of another employe, whereby plaintiff, in attempting a coupling, was caught and injured by the rebound of a car switched against it, was sufficient to be submitted to the jury as evidence of negligence rendering the master liable.</p> <p>3. —Charge—Requested Instruction.</p> <p>An instruction to the jury to confine their inquiry as to defendant’s negligence to a single definite ground alleged is sufficient to justify refusal of a requested charge withdrawing other grounds of recovery from their consideration.</p> <p>4. —Master and Servant—Violation of Rule.</p> <p>Where a rule of the master against going between cars in coupling was shown to have been habitually disregarded by employes, a charge which made its violation by the servant a defense against his action for injuries received in consequence, if such act was one lacking in ordinary care, was proper; and a charge making such violation of the rule an absolute defense was incorrect.</p> <p>5. —Requested Charge—Invited Error.</p> <p>Appellant can not complain of the refusal of a requested charge which is inconsistent with another requested by him and given.</p> <p>6. —Requested Charge.</p> <p>Where the matter covered by a requested charge is substantially embraced in the instructions given, the requested charge is properly refused.</p> <p>7. —Instructions Approved.</p> <p>Charge of court in an action by a switchman injured while coupling cars, covering the subjects of negligence, contributory negligence, assumed risk, and violation of master’s rules by servant approved and commended.</p>