Volume 52 — Texas Civil Appeals Reports

<p>1. —Charge—Statement of-Issues — Weight of Evidence.</p> <p>An instruction stating to the jury the issues in the case which substantially copies the allegations of the petition or refers the jury thereto, but without intimation that they are true, is not a charge on the weight of evidence.</p> <p>2. —Charge—Negligence—Carriers of Passengers — Speed.</p> <p>Where there was evidence that the track was in bad condition and the speed of the train, .a mixed one, eighteen to twenty miles per hour, the submission of the issue as to negligence in operating the train was not error; such speed might be negligent if made over a" defective track; the condition of its track should have been known to the carrier; and the 'derailment, in itself, furnished evidence of negligence.</p> <p>3. —Damages—Personal Injury — Charge.</p> <p>Charge as to the damages recoverable for injuries to the person approved and held not objectionable as allowing the jury too much latitude.</p> <p>4. —Damages—Remittitur—Costs.</p> <p>Error in submitting the expense for physician’s bills and medicine as an element of damages recoverable, in the absence of proof that they were reasonable, was cured by a remittitur by appellee of the full amount of such expense which the evidence showed; but appellee must be held for the cost.</p> <p>5. —Evidence—Defective Ties — Point of Derailment — Rebuttal.</p> <p>Defendant, in disproof of plaintiff's evidence as to the existence of defective ties at the point of derailment, offered evidence of the general good maintenance of all its tracks thereabouts by creosoted ties replaced as fast as defective. It was allowable, in rebuttal, for plaintiff to show the existence of numerous rotten ties one hundred yards or more from the point of accident.</p> <p>6. —Evidence—Harmless Error.</p> <p>The admission of evidence immaterial to the point it is sought to prove is not ground for reversal where the verdict is supported, on that point, by other and competent evidence.</p> <p>7. —Argument of Counsel.</p> <p>Where the argument is confined to the evidence, it is no ground for reversal that the inferences sought to he drawn from that evidence by counsel are unwarranted.</p>

<p>1. —limitation—Possession under void Grant.</p> <p>One in actual possession under a void grant which described the land in controversy could prescribe under the ten years statute of limitations to the extent of the boundaries of the grant, provided he held possession thereunder.</p> <p>2. —Same—Case Stated — Grant within littoral leagues.</p> <p>Possession of land granted by the Mexican authorities in 1834 was held by one claiming it as tenant of the whole tract for the grantee, and afterwards under a deed from such grantee to him of the portion in controversy, for a period of more than ten years. Held that he acquired title by limitation, though tlie grant should be held void because located within the littoral leagues without consent of the General Government.</p>

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

<p>Irrigation — Contract to Furnish Water.</p> <p>An irrigation company agreed with rice growers to use its best endeavors to furnish a quantity of water, through its canals and laterals, in addition to the natural rainfall, to properly irrigate the rice planted by the latter on their land. The land in question was rented by the planters from another, and was half a mile from the canal and not reached by any of the company’s laterals; but these connected with a lateral on the premises of and owned and controlled by the planters’ landlord and leading to the rented premises. The company furnished sufficient water to irrigate, through its own canals and laterals, but this failed to reach the land by reason of defects in the landlord’s lateral ditch to which it was conducted. Held that, in the absence of proof that the planters knew that such lateral was the property of their landlord and not of the company or undertook any maintenance of it, the contract of the company was to use diligence to furnish the water to them on their land, either by maintaining the lateral leading thereto, or by constructing a proper one of its own and it was liable for damages caused by its failure to do so.</p>

<p>1. —Pleading—Sustaining Exception — Harmless Error.</p> <p>When it appears that the action of a trial court in sustaining an exception to a part of defendant’s answer deprived the defendant of no substantial defense, and the vital issue in the case remained and was tried upon evidence pro and con, the ruling of the court, if error at all, is not reversible error.</p> <p>2. —Contract—Pleading—Evidence.</p> <p>In a suit by a contractor for the contract price of a bridge built by him, the defendant refused payment on the ground that certain plans and specifications, offered in evidence by the plaintiff, and in accordance with which the work was done, were not the plans and specifications on file in the clerk’s office at the time the contract was made and which were referred to and made a part of the contract; plaintiff alleged that they were the identical plans and specifications then on file in the clerk’s office and referred to in the contract. Held, plaintiff was entitled to support his allegations by any evidence which tended to prove the same, and the plans and specifications claimed by plaintiff to be the true and original plans and specifications were properly admitted in evidence.</p> <p>3. —Building Contract — Reference to Plans and Specifications.</p> <p>Where a county, in a contract for the building of a bridge, refers to certain plans and specifications at the time on file in the clerk’s office and makes the same a part of the contract, the contract will be binding on the county even though the original plans, which the county had adopted' and by which it intended to build the bridge, had been purloined and others substituted, the substituted plans being on file when the contract was matte, and the contractor not having notice of the fraudulent substitution.</p> <p>4. — Contract—Unilateral Mistake.</p> <p>In the absence of fraud, a court of equity will not grant relief because of a mistake of fact on the part of one only of the contracting parties.</p>

<p>1. —Libel—Pleading.</p> <p>In a suit for libel a petition which alleges the essential statutory ingredients of libel and which copies literally the alleged libel, is good against a general demurrer. It is not necessary for a pleader to anticipate and avoid that which, if pleaded and proved, would defeat plaintiff’s action.</p> <p>2. —Same—Malice.</p> <p>In an action for libel an allegation “That the defendant herein contriving and maliciously intending to injure plaintiff in her good name, fame and credit and to bring her into public hatred, contempt and disgrace among her neighbors and all good citizens of this State, etc., was not subject to special exception on the ground that it did not aver any fact but stated merely the opinion or conclusion of the pleader. It is the usual form of alleging malice in actions of this character.</p> <p>3. —Same—Financial Injury.</p> <p>To render a publication libelous it is not necessary to allege it exposed or tended to expose the complainant to financial injury.</p> <p>4. —Same—Effect of Publication.</p> <p>When a publication is in fact libelous and is set out at length in plaintiff’s petition, it is not necessary "to allege that said publication tended to and did in fact expose the plaintiff to public hatred, etc.</p> <p>5. —Same—Innuendo.</p> <p>Plaintiff’s construction or interpretation by innuendo of an alleged libelous publication is not a subject of exception to the petition. It presents a question of fact for the jury which the plaintiff must prove and which the defendant may disprove or avoid.</p> <p>6. —Same—Mental Suffering.</p> <p>In an action for damages for libel it is not necessary to aver the nature, character or extent of the mental suffering caused by the publication of the libelous article, nor to allege any mental suffering at all. This may be inferred from proof of the libel, and adequate damages allowed.</p> <p>7. —Same—Pleading—Reckless and Wilful Publication.</p> <p>In an action for libel, an allegation that “The defendant published and caused to be published of and concerning plaintiff the aforesaid article recklessly and willfully, without having made any proper and sufficient investigation of the truth of the charges therein contained,” is not subject to exception on the ground that it stated merely the opinion or conclusion of the pleader and did not state any facts.</p> <p>8. —Same—Financial Injury — No Issue — Charge.</p> <p>Where, in an action based upon libel, no issue as to financial injury is presented by the pleading and proof, it was error for the court to include financial injury as an element of damage in its definition of libel. But in view of an explicit charge to the jury not to consider any financial injury suffered by plaintiff in estimating her damages, the charge was harmless,</p> <p>9. —Same—Authorship—Assumption of Fact — Charge.</p> <p>In an action for libel, there being no conflict in the evidence as to the fact that the defendant owned and published the newspaper in which the libelous article appeared, the court was justified in assuming in its charge that the article was published by the defendant.</p> <p>10. —Same—Truth as Defense.</p> <p>The truth of the matter published is a complete defense to action for libel both at common law and under our statute, but to be available it must be plead.</p> <p>11. —Same—“Good Name” — Definition.</p> <p>The phrase “good name” is synonymous with reputation.</p> <p>12. —Same—Financial loss — Charge Construed — Act of 1901.</p> <p>In an action for libel, the following charge, “If you find for the plaintiff, then you should award her such compensatory damages as would ordinarily and probably result from the article as published, and in estimating her damages, if any, you may consider plaintiff’s mental suffering, if any, caused by the publication of said article, but you can not allow her any exemplary damages.” Held, not subject to the objection that it authorized a recovery for financial loss. The Act of 1901 does not undertake to state the elements of damages in a civil action for a libelous publication in a newspaper, but leaves the measure of damages, save as to certain matters of mitigation, as it was before the enactment.</p> <p>13. —Same—Statute of 1901 Construed — Privileged Publication.</p> <p>If comment upon and criticism of official acts and matters of public concern is made and published, and it is in fact libelous, the statute of 1901 does not exempt the publisher from the consequences of the publication unless it be shown that such comment and criticism is fair and reasonable. Probable cause for making the comment or criticism is not a factor to be considered in determining whether or not it is privileged.</p> <p>14. —Customs Duties — Right of Seizure.</p> <p>The officers of the customs service are not authorized by the laws of the United States to enter a private residence, search for and seize property without warrant, even though they have reasonable cause to suspect that the property has been imported contrary to law.</p> <p>15. —Laws of United States — Proof of.</p> <p>The courts of the several States take judicial knowledge of the laws of the Federal Government, and testimony as to what the laws are, is not admissible. Testimony as to official acts in making a seizure of property believed to have been smuggled, considered, and held irrelevant.</p> <p>16. —Libel—Malice—Effect.</p> <p>Proof of actual malice on the part of a publisher of a libelous article prevents the publication from being privileged, though it would otherwise be so.</p> <p>17. —Libel—Official Proceedings — Matters of Public Concern.</p> <p>Newspaper comments on official proceedings which are neither true, fair nor impartial, are not privileged, even though they be upon matters of public concern and are published for general information.</p> <p>18. —Libel—Belief—Probable Cause.</p> <p>Probable cause for believing the truth of matters^ contained in a libelous article, while it may mitigate the damages, will not justify its publication.</p> <p>19. —Smuggling—Definition.</p> <p>Smuggling consists of the clandestine introduction of goods subject to duty .yrith the intent to defraud the Government,</p> <p>20. —‘Libel—Mental Suffering.</p> <p>Mental suffering on the part of the person defamed is one of the direct results of the publication of libelous matter, and in an action for libel the plaintiff may recover compensation therefor.</p> <p>21. —Trial—Improper Evidence — Refusal to Strike Out — Practice.</p> <p>A party who introduces improper evidence can not complain of the refusal of the court to strike out the same on his motion.</p> <p>22. —Libel—Privileged Publication — Charge.</p> <p>In an action for libel, a charge upon the issue of privilege which is in the language of the statute is proper, and the refusal of a requested charge to the effect that the defendant was not required to prove its defense of privilege literally but may prove the same in substance and fact, was not error.</p> <p>g3. — Same—Charge.</p> <p>In an action for libel the court properly refused the following requested instruction “In determining the issue ás to whether the alleged article tended to injure the reputation of the plaintiff and thereby expose her to public hatred, contempt or ridicule, you may look to the cause and circumstances of its publication and the entire language used, because though some language used may be defamatory if it stood by itself, still other language in said article may so limit or qualify its meaning in your opinion as to prevent the article as a whole from being libelous,” because not warranted by the alleged libelous article.</p> <p>24. —Same—Argument of Counsel.</p> <p>In commenting upon a libelous article in a newspaper, counsel for plaintiff said to the jury in his argument, “What do you reckon Mrs. L. (the plaintiff) thought next morning when she read that article in the paper?” Held, proper and legitimate argument upon evidence before the jury.</p> <p>25. —Same—Official Report — Hearsay.</p> <p>What a customs official reported to his superior officer as to what the party investigated said to him, and his official conclusions thereon, is hearsay and irrelevant to any issue in a suit for libel, the said report not being mentioned in or commented upon in the libelous article.</p>

<p>1. —life Insurance — Assignment of Policy — Widow’s Allowance.</p> <p>Where a debtor during his lifetime places a policy of insurance upon his life in the hands of a creditor as collateral security for his debt, the creditor is entitled to the proceeds of the policy, to the extent of the indebtedness, as against the claim of widow and children for a yearly allowance and an allowance in lieu of a homestead.</p> <p>2. —Same—Form of Assignment.</p> <p>When a transfer or assignment of a policy of insurance is not in the form prescribed by the company, only the insurance company can object to the informality.</p>

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

<p>1. —Railway—Overflow—Permanent or Successive Injuries.</p> <p>1 Injury to land by the construction of a railway embankment causing constant and regularly recurring overflows is permanent in its nature, and the right to one action therefor, embracing all future damages, belongs to the owner at the time of construction; but when not so, the right is to compensation for successive injuries as they occur, and to the owner at the time each of such successive injuries was inflicted.</p> <p>2. —Same—Recovery by Former Owner.</p> <p>A "recovery of damages for overflow by a former owner, treating the injury as permanent and receiving compensation for future effects on that theory, will not preclude a purchaser from him, without knowledge of such recovery, from maintaining his action for overflows during his ownership of the land of a nature giving right of action for successive injuries and not for permanent nuisance.</p> <p>3. —Same—Release of Permanent Damages.</p> <p>Compensation to the former owner of land for injury thereto by construction of a railway embankment and his release of all past and future damages, on the basis of a permanent nuisance, by an instrument not of record, will not preclude a subsequent purchaser, having no notice of such transaction, from his action for injuries to him by overflows of such a nature as to give right to successive actions for damages.</p>

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

<p>Contract — Strict Compliance.</p> <p>A plaintiff had entered into a contract to construct an electric sign the border of which should contain two hundred and ninety-six lights; the sign as actually constructed contained only two hundred and sixty-three lights; in a suit to collect the contract price the court charged the jury to find for the plaintiff if they believed from the evidence that the sign as constructed was a substantial compliance with the contract. Held, error. The courts can not make a new or different contract for the parties. As parties bind themselves so must they be bound. It was immaterial that the sign actually constructed was as good or even better than that stipulated for.</p>

<p>On application for rehearing.</p>

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

<p>Appeal from the District Court of Johnson County. Tried below before Hon. 0. L. Lockett.</p>

<p>1. — School Land — Authority of Commissioners’ Court — Sale—Option.</p> <p>The power of a county to sell or lease its school land includes by implication the power to give its lessee an option or preference right to purchase the land, especially where the option is granted as an incident to and in furtherance of the lease. This is evidenced by the provisions of the Constitution, the decisions of the courts, and the laws giving a like privilege to lessees of State school land.</p> <p>2. —Same—Estoppel.</p> <p>Plaintiffs held a lease upon county school land with a preference right to purchase should the county offer the same for sale; the county did offer the land for sale and the plaintiffs, together with several other parties, became the joint purchasers, plaintiffs waiving their preferred right to buy for the benefit of their copurchasers, but stipulating that in the event any one of said copurchasers should fail to take the part allotted to him, plaintiffs should have the right to pay for and take such part; one of said copurchasers failed to consummate the purchase of his part and attempted to transfer his right. to his copurchasers. Held, the stipulation and reservation to plaintiffs of the preferred right to buy the interest of the defaulting purchaser, was valid, and the other copurchasers were not in a position to repudiate the same.</p> <p>3. —Same—Agreement to Buy — Competition.</p> <p>Where a county, by its properly constituted authority, offers to sell its school land and voluntarily fixes a price on the same, the fact that several prospective purchasers combine and buy the land jointly at the price and upon the terms demanded by the county, would not render the agreement between the purchasers as to the joint purchase and the division of the land among themselves, void as tending to prevent competition, in the absence of evidence that the land did not sell for its value or that the sale was unfairly made.</p> <p>4. —Same—Parties.</p> <p>Where a county sells its school land to several parties as cotenants, taking their joint note for the purchase money and a lien upon the entire tract to secure the same, the county is not a proper party in a suit between the purchasers as to their respective rights.</p>

<p>1, —Vendor and Vendee — Title—Fraudulent Representation — Rescission.</p> <p>An unqualified declaration of ownership of land and of title thereto is an affirmation of fact as distinguished from an expression of opinion although, it may involve an opinion as to the legal sufficiency of the evidences of such title; and such declaration constitutes such legal fraud in case the title proved invalid as will authorize a court of equity to rescind the contract and decree a return of the purchase money paid, when it is shown that the vendee had a right to rely and did rely on said declaration and was induced thereby to make the purchase and pay the money, and it is immaterial whether such declaration was made with or without knowledge of its falsity; nor does the fact that the vendee accepted a deed with covenants of warranty, deprive him of his remedy of rescission.</p> <p>2. —Same—Investigation of Title by Vendee.</p> <p>The fact that the vendee made a partial investigation of the title to the land before purchasing the same, will not affect his right to a rescission if he was in fact induced to purchase by the false representations of the vendor as to the validity of his title.</p> <p>3. — Same—Title—Expression of Opinion.</p> <p>The representation by a vendor as to the validity of his title, even though only the expression of an opinion, is not always harmless; such representation may lull suspicion or cause an imperfect examination of the title by the vendee. In order to obtain a rescission of a contract of sale it is not necessary that the vendee should rely solely on the false representations of the vendor as to the title. It is sufficient if he accepted the representations as true and was induced thereby to make the purchase, and the fact that the vendee’s belief in said representations was strengthened by other things or the statements of other parties, is immaterial.</p>

<p>1. —Homestead—Exemption—Pendency of Suit for Divorce.</p> <p>The pendency of a suit for divorce by the husband against the wife on, the ground of abandonment, and the subsequent rendition of a decree for divorce in such suit would not affect the legal status of the husband as that of a married man and the head of a family (there being several minor children living with the husband) so far as the homestead exemption was' concerned.</p> <p>2. —Homestead—Occupancy—Dedication—Case Distinguished.</p> <p>Where there has been no previous" occupancy there should be at least a present bona fide intention to dedicate the property to homestead use coupled with such acts of preparation as would amount to notice of the dedication, in order to invest the property with the homestead exemption. Scott v. Dyer, 60 Texas, 135, distinguished,</p> <p>3. —Same—Mechanic’s lien.</p> <p>In a suit to foreclose a mechanic’s lien upon property claimed by the defendant to have been his homestead at the time the material was furnished, evidence considered, and held to support a finding of the trial court that said property was not invested with the homestead character at that time.</p> <p>4. —New Trial — Sickness and Absence of Plaintiff.</p> <p>Motion for new trial based upon sickness 'and absence of plaintiff at the time of the trial considered, and held sufficient to entitle plaintiff to a new trial.</p>

<p>App.eal from the District Court of Hood County. Tried below before Hon. W. J. Oxford. ,</p>

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

<p>1. —Sequestration—Damages—Mortgage Foreclosure — Right of Possession.</p> <p>No damages can be recovered for unlawfully suing out a writ of sequestration in foreclosing an overdue mortgage on personal property, where the contract itself gave the mortgagee the right to take possession of the property on default in payment.</p> <p>2. —Appeal—Damages for Delay.</p> <p>That an appeal was taken for delay can not be inferred from the fact that appellant filed his bond and transcript on the last days allowed by law therefor.</p>

<p>1. —Railway—Public Road.</p> <p>Where a railway company constructed and fenced its road along and across a public highway for a distance of 400 yards, opening up a new way through woods parallel with its track, for that distance, it was not, by obtaining consent for such change from the county authorities and by their accepting and working the new road, relieved from its obligation to restore the new road to its former state or to such state as to not unnecessarily impair its usefulness (Rev. Stats., art. 4426).</p> <p>2. —Same—Agreement to make New Road.</p> <p>Where a public road, unobstructed by stumps of trees, was occupied by a railway with its track under an undertaking' by it with the county authorities consenting to such occupation to make a new road parallel with and substantially the same as the old, any member of the public suffering injury in using the new road through the failure of the railway company to comply with such undertaking was entitled to redress from the company.</p> <p>3. —Same.</p> <p>The agreement with the county authorities for vacating the old and constructing a new road was one for the benefit of the public; the company accepting its benefits owed a duty to the public compelled to use the new one to perform the contract on its part; it was not, in so doing, in the attitude of an independent contractor to make roads for the county authorities; its falure to remove obstructing stumps as required by the road law was a failure in its undertaking; and the acceptance of the new road by the county authorities did not preclude action by one of the public injured by such failure. •</p> <p>4. —Same—Pleading—Proximate Cause.</p> <p>An allegation by plaintiff that the occupation of the public road by the railway was unlawful, being without authority, and a proximate cause of the injury on the new road constructed to take its place, if the unlawfulness of the occupation was not proved, did not prevent recovery upon other allegations of injury by defendant’s default in making a proper road in the new location.</p>

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

<p>1. —Argument of Counsel.</p> <p>An appeal to the jury to assess damages to punish the defendant, and make it do right is improper and cause for reversal in a case where compensation is the measure of damages.</p> <p>2. —Evidence—Conclusion of Witness.</p> <p>Testimony of a witness that he made a trip as quick as he could was a conclusion; he should have stated the facts.</p>

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

<p>1. —Appeal—Cross-assignment of Error — Fundamental Error.</p> <p>A general demurrer raises a question of fundamental error, and a cross assignment of error based upon the action of the trial court in overruling a general demurrer, will be considered on appeal although the assignment was not filed in the court below, as required by rule 101 for the District and County ■Courts.</p> <p>2. —Liquor Dealer’s Bond — Breach—Baskin-McGregor Law.</p> <p>The Baskin-McGregor law did not repeal the provisions of the previous law which permitted aggrieved persons to recover the penalties prescribed for infractions of liquor dealers’ bonds, but repealed only those parts of the previous law which were in conflict with its provisions.</p> <p>3. —Same—Charge upon Issue not Plead — General Verdict.</p> <p>In a suit against a retail liquor dealer for breach of his bond in selling intoxicating liquor to an habitual drunkard, although the defendant had not plead the same the court submitted to the jury as a defense, among others, the issue of a sale in good faith on the belief that the party to whom, the liquor was sold was not an habitual drunkard. Held, the verdict being a general one for the defendant, and it being impossible to say upon what issue it was rendered, the judgment must be reversed.</p> <p>4. —Appeal—Motion for New Trial — Assignment of Error.</p> <p>In order to base an assignment of error on the rulings of the trial court upon exceptions to the pleadings, the admission of evidence, and in the giving and refusing of instructions, it is not necessary that these questions be presented in the motion for new trial. The court having once acted upon them it is not to be presumed that it will change its ruling.</p> <p>5. —Liquor Dealer’s Bond — Breach—Good Faith as Defense.</p> <p>In a suit for breach of a liquor dealer’s bond, the defense of good faith in the sale upon the belief that the person was not an habitual drunkard, must be plead and proved by the defendant. In the absence of pleading presenting the defense, even though there be evidence to prove it, a verdict for the defendant must be set aside.</p> <p>6. —Intoxicating Liquors — Notice not to Sell — Statute Construed.</p> <p>The wife, mother, daughter or sister of any person has the power under our statute to place him in- the class of those to whom the sale of intoxicating liquor is prohibited by giving the notice to the liquor dealer prescribed by the statute, and has the power to withdraw him from that class by withdrawing or revoking the notice. The sale of such liquors to a minor, a student of any institution of learning or to an habitual drunkard is absolutely prohibited, and no one has authority to consent to a sale to them. It is otherwise where a person is made a member of the prohibited class through and b'y virtue of the notice prescribed by statute. The withdrawal of the notice removes the illegality of the sale.</p> <p>7. —Same—Revocation of Notice — Evidence.</p> <p>Testimony that the notices given to other saloon keepers not to sell intoxicating liquors to a certain person, had been revoked by the person giving the notice, would only be admissible as a circumstance corroborative of the defendant’s testimony that the notice had been revoked as to him also, and the court should by its charge limit the testimony to this purpose.</p> <p>8. —Same—Motive Prompting Suit — Pleading.</p> <p>The motive which may prompt an aggrieved person to sue upon a liquor dealer’s bond is irrelevant .and immaterial, and the allegations of an answer setting up that the suit was instituted for purposes of speculation should, on exception, be stricken out.</p>

<p>1. —Telegram—Name of Sender — Delivery—Pleading.</p> <p>A telegram, notifying a wife of the death of her husband, was sent by one person in the name of another who was absent at the time; an answer to the telegram addressed to the party whose name was signed to it, requesting that the funeral be delayed, could not have been delivered to him in person because of his absence, but it would have been delivered to the party who sent the first message, and the purpose of the answer would have been accomplished. Pleading and evidence considered, and held to warrant the submission of this issue to the jury.</p> <p>2. —Same—Notice of Importance — Duty of Company.</p> <p>The fact that a telegraph company accepts for transmission a message which in and of itself gives notice of its importance, carries with it an implied obligation of prompt delivery.</p>

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

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

<p>1. —Streets—Lots Bounded by — Plat.</p> <p>A purchaser of lots described in his conveyance as bounded by public streets of a city, not yet opened to travel, acquires title, as against the rights of the public, only to the limits of such streets as laid out and platted, though the enclosure extended beyond, and into the street as platted.</p> <p>2. —Public Streets — Limitation.</p> <p>One in possession of ground laid out and platted as a public street could not prescribe against the public by such possession after the Act of 1887 (Rev. Stats., art. 3351) ; nor did limitation against such right begin to run by reason of possession and enclosure of former owners of the land prior to the time such streets were laid out, platted, and dedicated to public use; only an adverse possession between those dates and for ten years would suffice.</p> <p>3. —Limitation—Pleading.</p> <p>An allegation of adverse possession of land “for fifteen or twenty years, or more or less,” questioned as to its sufficiency as a plea of limitation by ten years possession.</p>

<p>1. —Secondary Evidence — Carbon Copy.</p> <p>There is no logical difference between a carbon copy and a letter press copy of a letter; they are both secondary evidence and, therefore not admissible in evidence without accounting for the original.</p> <p>2. —Same—lost Deed — Predicate.</p> <p>Letters received in reply to letters written in making search for a lost deed, are material and competent evidence to prove that diligence had beep used to obtain possession of the original deed, and thus lay a predicate for the introduction of secondary evidence of the execution and contents of the missing deed. Proof of the genuineness of the signatures to the letters received need not be made; this will be presumed. "The material enquiry is, had reasonable diligence been used to get the missing deed? Evidence considered, and held to constitute a sufficient predicate for the introduction of secondary evidence of the execution and contents of the lost deed.</p> <p>3. —Same.</p> <p>In an effort to lay a predicate for the admission of secondary evidence of the execution and contents of a lost deed, facts considered, and held to render admissible in evidence a certificate of a county clerk, dated in 1847 and before the deed records of the county were destroyed by fire, to the effect that the deed in question was of record in his office. The sufficiency of the predicate in such cases is left to the sound, though not uncontrolled, discretion of the trial court.</p> <p>4. —Notice of Adverse Claim — Evidence.</p> <p>Upon .an issue of innocent purchaser of land without notice of an adverse claim, evidence as to recitals in deeds and in a judgment between parties under whom defendants claim, considered, and held sufficient to support a finding .that defendants were not purchasers without notice.</p> <p>6. — Power of Attorney — Description of Land — Existence Presumed.</p> <p>A power of attorney described the land authorized to be sold as, “A certain tract situated in L. County, a part of the F. heádright, my interest in said survey being about 2000 acres, as will more fully appear by reference to the county records of L. County.” Held, not void for want of proper description, although the interest of the principal in the league referred to amounted to only 1700 acres. Extrinsic evidence was admissible to show what land the principal owned in the league named. After the lapse of thirty years the existence of a power of attorney will be presumed when the purchaser takes possession of the land under the deed.</p> <p>6. —Deed—Sufficient Description,</p> <p>A deed described the land conveyed as “640 acres situated in h. County, east of the T. river, about 25 miles above L., and out of the north one-half of I. F. headright league, it being the E. end of 1,700 acres sold by the aforesaid F. to W. D. S., and conveyed to me, W. H., by power of attorney irrevocable by the said S. as will appear from the records of L. County.” Held, a sufficient description to identify the land with the aid of extrinsic evidence, which was admissible.</p> <p>7. —Lost Deed — Execution—Evidence,</p> <p>Evidence as to the execution of a lost deed considered, and held sufficient to support a finding that the deed was executed.</p> <p>8. —Improper” Evidence — Trial Without Jury.</p> <p>The erroneous admission of letters in evidence is not reversible error when the cause is tried before the court without a jury.</p>

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

<p>1. —Carrier—Heading.</p> <p>A suit_ against a carrier for negligent loss by fire of goods received for transportation may be in form of an action on contract or in tort. If the allegations are sufficient to support a recovery in the latter form the pleadings as to the terms of the contract are merely matters of inducement and a variance therefrom in the proof is not material.</p> <p>2. —Carrier—Switching Service — loss by Fire.</p> <p>A railway company owning a spur track leading to the warehouse of a shipper, and undertaking, for a switching fee paid by the shipper or another carrier, to set thereon and haul out when loaded cars for shipment of freight over other lines of railway with which it connects at that place, is a common carrier with respect to such freight, and is liable, as other carriers, for the destruction by fire of freight delivered to it upon such spur, to be transferred to a connecting road for transportation over the latter’s line.</p> <p>3. —Carrier—Delivery and Acceptance.</p> <p>A railway company set in upon its spur track by the warehouse of a shipper a car which was there loaded with freight for transportation over another line of road with which it connected in that city; being twice notified that the car was ready, it promised to move it to the proper connection; but before doing so and before the execution of a bill of lading, the ear and contents were burned by a fire which destroyed the warehouse. Held that there was sufficient delivery and acceptance by it of the freight to attach to it the liability of a common carrier.</p> <p>4. —Bills of Exception — Statement of Facts.</p> <p>The right to preserve a bill of exceptions to evidence in the statement of facts was not dependent on the “Stenographer’s Act,” and hence not lost by its repeal.</p> <p>5. —Evidence—Books—Refreshing Memory.</p> <p>No error appeared in permitting a witness to use the entries in his ledger to refresh his memory as to the quantities and values of goods shipped, his other books having been destroyed by accidental fire.</p>

<p>1. —Contract of Sale — F. 0. B. Cars — Title to Goods.</p> <p>When goods aré sold at a certain price f. o. b. cars at place of shipment, but the consignee has the right of inspection and approval before accepting them, the title to the goods remains in the consignor until the goods are accepted by the consignee.</p> <p>2. —Carrier of Freight — Error in Waybill — Notice of Contract — Special Dam-</p> <p>ages.</p> <p>A carrier had notice at the time it received certain goods for transportation that they were sold subject to inspection by the consignee, and was instructed to allow said privilege; through the negligence of the carrier in preparing the waybill the right of inspection was denied the consignee' upon arrival of the goods at their destination and the goods were damaged by delay in their delivery; the consignee refused to receive the damaged goods and they were sold to the highest bidder. Held, the special terms of the contract between the consignor and consignee having been made known to the carrier, it was liable for the damages resulting from its breach.</p> <p>3. —Contract—Breach—Duty to Lessen Damage — Labor on Sunday.</p> <p>The delivery of a shipment of perishable goods having been wrongfully delayed by a carrier until too late on Saturday afternoon to inspect and unload" them on that day, the owner of the goods was not required to unload the goods on Sunday to lessen the damage to the goods and the consequent liability of the carrier.</p> <p>4. — Evidence—Account Sales.</p> <p>In view of other evidence in the record stated and considered, held, that certain copies of account of sales of goods received by a broker for sale on consignment, were properly admitted in evidence as against the objections that they did not show on their faces that they were true statements of the matters they purported to show, and were not verified by any witness as being true and correct within his own knowledge.</p>

<p>1. — Contract—Joint Liability — Contribution—Evidence.</p> <p>Plaintiff and defendants were members of a committee bound by contract to secure a right-of-way for a railroad; it was expected to raise the necessary money by general contribution; pending the collection of contributions it became necessary from time to time to borrow money to pay for the right-of-way, and plaintiff advanced the money for this purpose, taking the notes of such members only as were accessible as evidence of the advancement; upon a final settlement it was found that the donations and contributions received by the committee were not sufficient to repay to plaintiff the money advanced by him. In a suit by the plaintiff against the other members of the committee for contribution, the plaintiff should have been permitted to testify that the</p> <p>money was advanced to discharge the joint obligation of the entire committee, and that in taking the notes it was not intended to hold responsible only those members of the committee who signed them. The notes were not necessarily conclusive evidence- of the character of the transaction.</p> <p>2. —Contribution—limitation. '</p> <p>In suits for contribution the right of action is upon the implied promise for reimbursement, and the statute of limitation commences to run against such action from the date of each payment by the plaintiff, but when, by agreement between the parties, the contribution is not to be paid until a certain date, limitation will not commence to run until such date. Evidence considered and held to raise this issue.</p> <p>3. —Statute of limitation — Application of Payments — Equitable Rule.</p> <p>Where, of two debts, one would be barred by limitation at the time suit was filed and the other would not, unapplied previous payments should be applied to the debt which was barred by limitation. Rule applied.</p>

<p>1. —Bank—Power of Cashier.</p> <p>The charter of a banking corporation organized under the laws of this State provided that the property or business of the corporation should be controlled and managed by the directors; the by-laws of the corporation defined the duties and powers of the cashier without giving him power to make or change contracts for the bank; the cashier, without authority from the board of directors, undertook to change a lease contract executed by the bank. Held, that the action of the cashier was not binding on the bank.</p> <p>2. —Contract of lease — Use of Premises — Injunction.</p> <p>A contract of lease restricted the use of the building to a billiard and pool hall; it also stipulated that no alterations should be made in the building without the written consent of the lessor, and that it should not be used for any purpose deemed hazardous on account of fire; without the consent of the ■ lessor the lessee began to make certain alteration in the building for the purpose of converting it into a moving picture hall. Held, that an injunction would lie at the suit of the lessor to restrain the lessee from the contemplated use of the premises, and the fact that no particular damage would result to the building was immaterial.</p>

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

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

<p>Appeal from the County Court of Briscoe County. Tried below before Hon. Jno. B. Renfro.</p>

<p>Appeal — Defective Brief.</p> <p>Where appellant’s brief fails to point out wherein the charge of the trial court is on the weight of the evidence or authorizes a double recovery, assignments of error based upon such supposed errors will not be considered.</p>

<p>1. —Boundary—Evidence—Patent.</p> <p>In a boundary suit the fact that only a part of the survey is in controversy is no valid objection to the admission in evidence of the patent to the entire survey.</p> <p>2. —Boundary—Evidence—Charge.</p> <p>The issue being one of boundary and it having been shown that three different lines had been, run by as many different surveyors, a charge of the court that the lines run by the several surveyors in attempting to locate the boundary in dispute were not binding upon the parties, but that evidence as to said lines was admitted only for the purpose of aiding the jury in locating the line as it was originally run, was not subject to the objection that it prejudiced appellant’s contention that a certain one of said lines was the true line.</p> <p>3. —limitation—Boundary—Calls in Deed.</p> <p>A holding under the three or five years statute of limitation must be under a deed and according to the calls in the deed. Although a boundary may be in doubt, a claimant imder a deed cannot prescribe to a line or boundary which under no interpretation of the calls could be included in or justified by the calls.</p> <p>4. —Boundary—Estoppel—Brivity,</p> <p>The plaintiff and defendant entered into an agreement as to the boundary line between them; plaintiff lost his title to the land by forfeiture to the State and afterwards bought the same land from another party holding by a different title. Held, there being no privity of estate between plaintiff’s latter and former holding, he was not estopped by the agreement as to the boundary.</p> <p>5. —Boundary—Evidence—Hearsay Evidence.</p> <p>The issue being one of boundary, it was reversible error to allow a third party claiming land on the same survey with the defendant, to testify that lie claimed and recognized as the true boundary a line different from that claimed by the defendant. Such testimony was hearsay.</p>

<p>1. —Wife’s Separate Property — Express Trust.</p> <p>A wife entrusted to her husband money which was of her separate estate to buy certain lots: he, without her knowledge, took deed in his own name, giving his note for the purchase money; afterwards, on her learning the facts, he paid for the property with the means so entrusted to him. Held that by the transaction he acquired the property upon an express trust in favor of the wife; and one taking a deed of trust from or levying an execution against the husband thereon with notice of the facts took subject to her equitable interest, and could be enjoined from making sale under the trust deed or the execution.</p> <p>2, —Same—Cases Distinguished, etc.</p> <p>Carter v. Bolin, 30 S. W., 1084; Brotherton v. Weathersby, 73 Texas, 471; Sparks v. Taylor, 99 Texas, 411, followed; Strnad v. Strnad, 29 Texas Civ. App., 124, distinguished as a case of resulting and not of express trust.</p>

<p>1. —Trial—Burden of Proof — Charge.</p> <p>In an action for the possession of certain promissory notes the title to which was claimed by the plaintiff, the defendant alleged that the assignment of the notes to the plaintiff was obtained by fraud and undue influence and that the assignor was mentally incapable of making the assignment; the court charged the jury, in effect, that if they believed from the evidence that the assignor was so affected by disease or age as to make it difficult for her to exert her will freely and assert her true intention against the wishes of those to whose influence she was subjected, then and in such case the burden of proof was upon the plaintiff to show that the assignment to him was fairly obtained and without undue influence. Held, error. The plaintiff made his case when he • proved the execution of the assignment and the delivery of the notes to him. The burden was on the defendant to prove the assignment void.</p> <p>2. —Contract—Mental Incapacity — Charge.</p> <p>In an action to recover the possession of certain promissory notes which the payee had transferred to the plaintiff, the defense being that the transfer was void because of undue influence on the part of the plaintiff and the want of mental capacity to contract on the part of the payee, charge of the court considered, and held to so marshal and present the facts upon which the defendants relied, at such length and in such manner and in such graphic array and persuasive form, as to give too much emphasis to said facts, and to constitute reversible error.</p> <p>3. —Same—Undue Influence — Self-serving Declaration.</p> <p>Upon the issue of undue influence of a son upon his mother in the making of a contract, testimony of a daughter as to what she said to her mother, considered, and held incompetent because self-serving.</p> <p>4. —Pleading—Irrelevant Issue.</p> <p>Upon the issue of undue influence exercised by a son over his mother, testimony as to the disposition of one of the daughters, in respect of gentleness, kindness and unselfishness, was irrelevant and immaterial, the disposition of the daughter not being an issue in the case.</p>

<p>1. —Trust—Evidence.</p> <p>The issue being whether or not a certain deed, although absolute in form, was intended "by the parties thereto to convey the land in trust for the grantor, and the grantor having testified that such was the purpose in executing the deed, it was competent for the grantee to testify to the contrary, and to disprove the statement of the grantor by any proper evidence.</p> <p>2. —Deed—Proof by Parol.</p> <p>While the deed itself is the best evidence, and ordinarily the only competent evidence, of a conveyance of land, still, when a defendant in a cross-action alleges that he executed a deed to the plaintiff, or to one under whom the plaintiff claims, and the proof of this allegation is necessary to make his ease, he can not complain that the plaintiff was allowed to testify that such a deed had been made,</p> <p>3. —Estoppel—Evidence.</p> <p>The issue being whether or not a certain deed was in' trust or in fee simple, a letter by the grantor to the grantee stating, in effect, that the conveyance was in fee simple, was competent evidence upon a plea of estoppel.</p> <p>4. —Trial—Opening and Concluding.</p> <p>In the absence of a bill of exception showing that a request by defendant to be allowed to open and conclude the argument in a trial was called to the attention of the court, and that the request was refused by the court, an as- j signment of error based upon an alleged refusal of said request, can not be considered.</p>

<p>1. —Trespass to Try Title — Estoppel—Pleading.</p> <p>Under the general allegation of title in an action of trespass to try title in this State, the rights of the plaintiff are as broad as the rights of the defendant under a plea of not guilty. Either party is entitled to show any title they may have, legal or equitable, or any facts which would defeat the title shown by his opponent. It is therefore not necessary for the plaintiff in such action to plead title by estoppel against the defendant.</p> <p>2. —Same—Defense by Warrantor.</p> <p>A warrantor of title to land, when made a party to a suit of trespass to try title involving the title conveyed by him, may interpose any defense that his warrantee might interpose, including estoppel.</p> <p>3. —Estoppel in Pais — Duty to Speak.</p> <p>If one remain silent when it is his duty to speak, he will not be heard to speak thereafter to the injury of one who was induced to act by his silence. But in the absence of the duty to speak, no rights can be lost or acquired by silence.</p> <p>4. —Same—Possession of Land as Notice of Title.</p> <p>Actual possession of land by the owner is notice to all the world of his claim. One who buys land in the possession of another from a person other than the party in possession, will not be heard to say, for the purpose of estoppel, that he did not know of the claim of the party in possession. Such possession is equivalent to actual notice and, having notice, the purchaser could not claim that he was misled by the silence of the party in possession. Under such circumstances no duty rests upon the owner to give other notice of his title to a prospective purchaser.</p> <p>6. — Same—Charge—Evidence.</p> <p>In an action of trespass to try title wherein the plaintiff relied upon title by estoppel in pais, evidence considered, and held insufficient to justify the court in submitting the issue to the jury.</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 Jasper County. Tried below before Hon. W. B. Powell.</p>

<p>1. —Nonresident—Service Outside State — Personal Judgment.</p> <p>No personal judgment can be rendered against one who neither resides in nor owns property within the State, upon personal service obtained upon him in another State.</p> <p>2. —Venue—Plea of Privilege.</p> <p>A corporation can not be sued in a county where it maintains no office or agent, where the cause of action did not originate, and on .an action showing no joint liability with the other defendants (as where distinct acts of negligence of various parties combine to inflict injury) if it claims its privilege by proper plea.</p> <p>3. —Evidence—Res Inter Alios.</p> <p>Transactions between others than those sought to be affected by them are not admissible (statements by the agent of employer to servant that the work was not dangerous, the case having been dismissed as to the employer and the other defendants not being present at the conversation).</p> <p>4. —Negligence—Escape of Noxious Gas.</p> <p>Evidence considered and held sufficient to require a submission to the jury and forbid a peremptory instruction in favor of defendant, in a case where the escape of noxious gases from defendant’s oil tank, collecting near the surface of the ground, caused the death of one working in the vicinity and not in defendant’s employ.</p>

<p>1. —Trial—Charge—Submission of Undisputed Fact — Harmless Error.</p> <p>When the complaining party would not be entitled to a verdict, under any possible view or construction of the evidence, the submission by the court of an undisputed fact as an issue, is harmless error.</p> <p>2. —Contract—Essential Element.</p> <p>One of the essential elements of a contract is an agreement or meeting of the minds of the parties by an offer on the one hand and an acceptance on che other. This element must be present in every contract whether express or implied.</p> <p>3. —Same—Broker—Bright to Commissions.</p> <p>A real estate broker is not entitled to commissions on a sale of property when his conduct, acts and services concerning the sale were voluntary and without authority or promise of compensation from the owner, even though his conduct, acts and services were conducive to the consummation of the sale.</p> <p>4. —Trial—Limiting Effect of Evidence — Practice.</p> <p>When testimony is evidence upon only one issue, and it is apprehended it might be considered by the jury in determining other issues, it is the duty of the party desiring to limit the effect of the testimony to the proper issue, to ask a special charge to that effect.</p> <p>6. — Principal and Agent — Implied Contract — Pleading.</p> <p>When, in an action by an agent against his principal for commissions on a sale of property, the agent relies on an implied contract, he should plead the same by specifically alleging the facts and circumstances from which the contract might be implied so as to enable the court to determine from the allegations whether they were such as would constitute a contract. An implied contract can not be proved under allegations of an express contract.</p> <p>6. — Principal and Agent — Appointment of Agent — Proof—Volunteer.</p> <p>A broker, or other agent, has authority to act for his principal only by virtue of an appointment, express or implied, by the latter. No particular form of appointment is necessary; it is sufficient, ordinarily, to show that the agent acted with the consent of his principal, and this may be shown by written instrument, by words or by implication from the conduct of the parties. But proof of this appointment or- consent in some form is indispensable in an action by an agent against his principal for compensation for services rendered.</p> <p>A volunteer is not entitled to compensation for services rendered.</p> <p>7. —Contract—Breach—Pleading and Proof.</p> <p>To authorize a recovery for breach of a contract the proof must show that the very contract declared upon was breached, and the charge of the court should so instruct the jury.</p> <p>8. —Trial—Improper Argument — Bill of Exception — Requisite.</p> <p>A bill of exception which shows on its face that improper language or argument of opposing counsel was not excepted to at the time it was used, and possibly not until after court adjourned, will not be considered on appeal.</p> <p>Such exception should be taken at the time the language is used or, at least, during the trial.</p>

<p>1. —Deed—Granting Clause — Exception from Grant — Construction.</p> <p>A deed contained the following language in its granting clause: “Have</p> <p>granted, sold and conveyed ... all that certain piece or parcel of land . . . being all that portion of a tract of 150 acres . . . conveyed to A. by M. . . . except certain pieces or parcels of land out of said tract which we have heretofore conveyed by deed to ... all of said deeds to said grantees- being recorded in the deed records of said county . . . and excepting further three acres upon which our residence now is and adjoining the same, and which said tract is to be hereafter surveyed for us.” Held, said clause when read in its entirety evidenced an intention on the part of the grantors to convey the entire tract of 150 acres, excepting only therefrom the tracts that had been previously conveyed and the three acres, and hence was not void for uncertainty as to the particular land on which the grant was to operate. If there was any uncertainty it attached to the parts which were to be excepted, but. these parts being capable of identification by the aid of ex- • trinsie evidence, the deed was valid.</p> <p>2. —Same—Excepted Part — Duty to Designate.</p> <p>The granting clause of a deed contained the following language: “And ex-</p> <p>cepting further three acres upon which our residence now is and adjoining the same, and which said tract is to be hereafter surveyed for us.” Held, said language did not necessarily impose upon the grantees the duty of surveying and segregating said three acres from the remainder of the tract. Evidence as to the conduct of the grantors themselves considered, and held competent and sufficient to show that the grantors recognized the duty as devolving upon them to segregate said homestead tract from the land conveyed.</p> <p>3. —Same—Executory Grant — Stale Demand.</p> <p>When the duty rests upon the grantor in a deed to select and segregate a particular part or portion reserved to himself out of a larger tract, he can not, by his own failure to make the selection for twenty years, defeat the grant on the ground that it is executory and the right to execute it was barred by limitation.</p> <p>4. —Trespass to Try Title — Pleading—Judgment—Description of land.</p> <p>Where the plaintiffs in trespass to try title seek to have a deed executed by their ancestor set aside and to recover the entire tract of land thereby conveyed, they can not complain that the judgment which awards to them only a small portion of the tract sued for does not describe the same by metes and bounds.</p> <p>5. —Trespass to Try Title — Pleading by Defendant — Bight of Plaintiff to Be-</p> <p>cover.</p> <p>The fact that a defendant in trespass to try title pleads his title specially and fails in his proof of the same will not entitle the plaintiff to a judgment for the land in controversy unless he proves a right in himself to do so.</p>

<p>Appeal from the District Court of Leon County. Tried below before Hon. Gordon Boone.</p>

<p>Injunction — Appeal—Interlocutory Order.</p> <p>On the filing of a petition for injunction the court set a day, giving notice to the parties, for hearing as to the granting of a temporary writ, upon which hearing it was refused. Held that no appeal lay from such interlocutory order, the right thereto existing only as to final orders granting or dissolving temporary injunctions.</p>

<p>Raise Representations — Measure of Damages — Accident Insurance.</p> <p>• An employer, representing that he was carrying accident insurance for the benefit of his employes in ease of their injury, retained' twenty cents per week from their wages in payment therefor. One of them, being injured, and finding that the employer had taken out no insurance except a policy indemnifying himself against damage suits by his servants, sued to recover damages from such false representations. Held:</p> <p>(1) That the measure of damages was not what plaintiff would have been entitled to receive from an accident insurance policy, had one been taken out.</p> <p>(2) He was entitled only to such damages as would place him in statu quo, a recovery of what he had lost.</p> <p>(3) He could recover no more than the sums kept out of his wages, at least in the absence of allegation that the deceit had prevented him from himself taking out a policy.</p> <p>(4) If entitled to recover for value of the insurance which the master had promised to carry, no recovery could be had where the undertaking was wholly indefinite as to the amount and terms of the policy undertaken to be secured, and where there was no allegation or proof as to the amount of insurance the sums deducted from his wages would suffice to carry.</p> <p>(5) And having brought his action for no actual damages which he was legally entitled to recover, no claim for exemplary damages for the fraud could be submitted to the jury.</p>

<p>1. —Appeal—Practice—Assignment of Error — Preponderance of Evidence.</p> <p>A Court of Civil Appeals will not reverse a judgment merely because it may appear from the record that the evidence preponderates in favor of the losing party or against the findings of fact of the trial court; and an assignment of error which only complains that the preponderance of the evidence is against a finding of the trial court upon which judgment was rendered, is not sufficient to require consideration.</p> <p>2. —Vendor and Vendee — Purchase Money — Equitable lien — Waiver.</p> <p>The grantor of land who has delivered possession to the grantee retains an equitable lien upon the land for the unpaid purchase money although he has ' taken no distinct agreement or separate security for it, and even though the’ deed recites that the consideration has been fully paid. The burden is on the vendee to show that this lien has been waived, and the mere fact that the vendor's lien clause in a blank form of deed was erased when the deed was prepared, does not establish such waiver when the vendee, after obtaining possession of the deed and the land, refused to pay the cash recited in the deed.</p> <p>3. — Deed—Consideration—Recital not Conclusive — Pleading.</p> <p>Parol evidence is admissible to contradict the recited consideration in a deed and to prove the real consideration in an action between the original parties to the instrument, nor is it necessary to plead fraud, accident or mistake as to the recital to admit such proof.</p>

<p>1. —Marshaling Securities.</p> <p>The doctrine of marshaling securities has, as a general rule, no application as between a debtor and a creditor; but where the creditor holds a claim against the debtor only as collateral security for the debt of a third party, and both the creditor and the debtor are creditors of such third party, the doctrine may be invoked by the debtor.</p> <p>2. —Same—Case Stated.</p> <p>H. being indebted to a bank transferred to it the note of K. and certain stocks and bonds as collateral security; II. was adjudged a bankrupt, and at the time of the adjudication was indebted to IC. in an amount larger than the amount of K.’s note transferred to the bank; the bank sued IC. on the note;</p> <p>IC. invoked the doctrine of marshaling securities, alleging, among other matters, that the stocks and bonds and other securities held by the bank and in which it alone was interested, were more than sufficient to pay the indebtedness of H. to it. Held, that while IC. occupied the relation of debtor to the bank they were both creditors of H. and the doctrine of marshaling securities was applicable.</p> <p>3. —Inadequate Remedy — Injunction.</p> <p>When the remedy or right of subrogation will not afford as practical, prompt and efficient protection and relief as injunction, the remedy by injunction may be invoked.</p> <p>Appeal from the District Court of Harris County. Tried below before Hon. Norman G. Kittrell.</p>

<p>Attachment — Defective Affidavit — Amendment.</p> <p>Since the adoption of the Revised Statutes in 1879 an affidavit for attachment must be signed by the affiant before the issuance of the writ. A failure to sign the affidavit is fatal to the writ, and it can not be subsequently amended by attaching the signature thereto.</p>

<p>1. — Equity Jurisdiction — Injunction.</p> <p>A court of equity never aids in the commission of a wrong, nor will it lend its aid in the protection or preservation of an unjust advantage wrongfully obtained. Whatever be the nature of the plaintiff’s claim and of the relief which he seeks, if his claim grows out of, or depends upon, or is inseparably connected with his own prior fraud or unconscionable conduct, a court of equity will in general deny him any relief, but will leave him to whatever remedies and defenses he may have at law.</p> <p>2. —School Property — Dedication—Evidence.</p> <p>The owner of a tract of land verbally donated it to a school community to be used for school, religious and cemetery purposes; the citizens of the community by voluntary contributions built a house thereon suitable for school and church purposes; on several occasions thereafter the donor offered to execute a deed to the lot if the donees would have the deed prepared; this was never done, but for twenty-five years the lot, with the knowledge and acquiescence of the donor, was used and controlled for school purposes. Held, that these facts constituted a dedication of the property to the school community for school purposes.</p> <p>3. —Injunction—Trespass upon Realty.</p> <p>Parties who had wrongfully and unlawfully moved a school building from the land which had been dedicated to its use, onto land owned by them, and so attempted to convert the same, are not entitled to a writ of injunction to prevent the lawful owners of the house from repossessing themselves of the house and removing it to the original lot.</p>

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

<p>. Appeal from the County Court of Galveston County. Tried below before Hon. George E. Mann.</p>

<p>1. —Mental Capacity — Expert Testimony — Conclusion of Law.</p> <p>The issue being as to the mental capacity of the grantor to execute a certain deed, a physician, duly qualified as an expert upon diseases and infirmities of the mind, who was acquainted with the grantor and had attended her professionally, was aslced the following question by the grantor’s counsel: Whether between certain dates the grantor had, in the judgment of the witness, mind enough to comprehend and understand the legal effect of a deed or legal instrument. To which the witness answered, “In mv opinion she had not.” He was also asked: “Now, in seeing her in the condition you saw her in January, in your judgment, would it have been possible for her to have mind enough to have understood and comprehended the legal effect of a deed made in September.” To which he answered, “No, I do not think she did.” Held, the questions and answers sought and obtained from the witness a legal conclusion upon the very issue to be determined by the jury, and an objection upon that ground should have been sustained.</p> <p>2. —Same—Same.</p> <p>While the authorities are conflicting on the subject, it has been held in this State that it is not permissible to allow a witness who was acquainted and familiar with the grantor, to give in evidence his opinion that she did not have sufficient mind to execute a deed, or would know its effect or value.</p> <p>And so, it is not permissible for an expert to testify that a certain person whose mental capacity is in question, has not in his opinion sufficient mental capacity to transact business, because the opinion involves a conclusion of law.</p>

<p>1. — Insurance Company — Authority of Agent — Presumption.</p> <p>In the absence of any provisions in the application for insurance or in the policy itself limiting the power of the soliciting agent in making verbal contracts or agreements with persons seeking insurance, such agents will be presumed to be authorized to make any contract that the company could make.</p> <p>i$. — Principal and Agent — Contract—Fraud of Agent.</p> <p>The fraud of an authorized agent will invalidate a contract entered into by him on behalf of his principal though in perpetrating the fraud he acted without the knowledge or consent of his principal. This rule applies to an ostensible as well as to an actual agent.</p> <p>3. —Contract—Rescission—Promise of Future Act — Fraud, when.</p> <p>It is the general rule that a promise to perform some act in the future will not amount to such fraud as can be made the basis for the rescission of a contract induced thereby. But the rule is otherwise in this State when the promisor, at the time the promise was made and the contract entered into, had no intention to keep or perform the same and the promise was only made to entrap the other party.</p> <p>4. —Corporation—Deceit of Agent — No Liability.</p> <p>An action can not be maintained against a corporate body for the deceit or false representations of its agents or officers unless it be shown that the same were authorized by the corporate body.</p> <p>5. —Contract—Rescission—Conversion—Evidence.</p> <p>In a suit against an insurance company to recover the amount of a promissory note delivered by the plaintiff to defendant’s agent and by him negotiated and the proceeds paid over to the company for the amount of the first premium, evidence considered, and held to require a judgment for the plaintiff on the grounds, first, that the note was obtained by such fraud as would require a rescission of the contract, if any contract was made; secondly, the defendant’s contention being that the agent had no authority to make the agreement by which the note was obtained, his acts were binding on no one, and the defendant could not keep the money and profit by his acts; and, thirdly, no contract was in fact consummated, and the defendant was retaining money belonging to plaintiff.</p>

<p>1. —Written Contract — Evidence to Vary or Contradict.</p> <p>Parol evidence is inadmissible to vary or contradict the terms of a valid written instrument. If, however, all the terms of a contract,. such as would</p> <p>make it complete, are not expressed in the writing, paroi evidence is admissible between the parties for the purpose of showing the entire agreement. But where a part of a transaction has been embodied in a single writing with the intention that it shall express the agreement as to such part, the rule against disputing the terms of the document is applicable to so much of the transaction as is so embodied. If the particular element in the transaction, upon which paroi evidence is offered, is mentioned, covered or dealt with in the writing, then presumably the writing was meant to represent all the transaction on that element; if it is not, then probably the writing was not intended to embody that element of the negotiations.</p> <p>2. —Same—Case Stated,</p> <p>An applicant for life insurance signed an application for the same, executed a note for the premium,' and received from the agent of the company a receipt for the premium, setting forth fully the terms of the contract. The three instruments together constituted a contract complete, plain, and unambiguous. In a suit upon the note, held, that the applicant or maker of the note should not have been permitted to introduce testimony to show that a contemporaneous paroi agreement was made between himself and the agent of the company whereby, in certain contingencies, the note was not to be paid.</p> <p>3. —Same—life Insurance — Forfeiture of Premium.</p> <p>An applicant for life insurance $vho pays the first premium at the time of signing the application and afterwards prevents the issuance of the policy by his own failure to comply with the conditions of the application, can not recover the premium paid.</p>

<p>1. —Garnishment—Damages—Liability of Surety.</p> <p>The liability of a surety on a garnishment bond extends only to consequences which follow as the proximate result of the suing out of the writ.</p> <p>2. —Same—Case Stated.</p> <p>A surety on a garnishment bond is not liable for damages resulting to the defendant in garnishment by the refusal of the garnishee, under a mistaken and unwarranted view of the obligations of the writ, to proceed with and carry out a contract previously entered into with the defendant in garnishment, whereby said defendant was damaged.</p>

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

<p>Married Woman — Note.</p> <p>A married woman is not liable on her promissory note given for a previous debt of her husband.</p>

<p>1. — dity Ordinance — Regulation of Public Vehicles — Injunction—Pleading,</p> <p>In a suit to enjoin the enforcement of a city ordinance prohibiting public vehicles from standing on certain streets during certain hours, a general allegation in the petition that the ordinance in question was unconstitutional, unreasonable and void was insufficient; it should have been shown in and by the petition wherein the city had exceeded its authority, and xyherein the ordinance was unreasonable.</p> <p>Z. — Same—Same.</p> <p>A city ordinance which vests in the city authorities the power to grant a license to one public vehicle and refuse it to another, or to revoke a license for violation of an ordinance, is not necessarily void on the ground that it is discriminatory and partial. Such right is given in the interest of the public.</p> <p>Especially can not one who has not been refused a license, complain.</p> <p>3. —Same—Fee for License — Constitutionality.</p> <p>Charging a reasonable fee for the issuance of a license to own and operate a public vehicle in a city, is not double taxation, and therefore is not unconstitutio.nal.</p> <p>4. —Same—Criminal Prosecutions — Injunction.</p> <p>Ordinarily an injunction will not lie to restrain criminal prosecutions, because an adequate and complete remedy is provided by law.</p> <p>5. —Same—Case Distinguished.</p> <p>The case of ex parte Battis, 40 Texas Grim. Bep., 112, considered and distinguished.</p>

<p>1. —Evidence—Ancient Instrument — Grounds of Suspicion,</p> <p>An ancient instrument, to be admissible in evidence without proof of its execution, must be free from just grounds of suspicion, must come from the proper custody, and must have been so acted upon as to afford some corroborative proof of its genuineness. What corroborative evidence will be necessary when there are suspicious circumstances connected with such an instrument, must depend upon the facts of each ease.</p> <p>2. —Same—Case Stated,</p> <p>Endorsed upon a bond for title to land was a transfer in writing, apparently more than thirty years old, by the obligee in the bond to his daughter and her husband; paper similar to that upon which the bond was written was so pasted over said transfer as practically to obliterate the same. Held, such obliteration of the transfer east such doubt and suspicion upon its genuineness as called for an explanation by the party offering it in evidence, and in the absence of evidence that the transfer in its original form was delivered to the transferees or was ever in their possession, and of any claim to the land by virtue of the transfer during the lifetime of the grantor, the transfer was properly excluded when offered in evidence as an ancient instrument.</p> <p>3. —Administration—Inventory—Evidence.</p> <p>The issue being whether a certain tract of land was the separate property of a surviving wife or the community property of herself and her deceased husband, the mere fact that the wife as administratrix of her husband’s estate included said land in the inventory of said estate, was insufficient to require the conclusion that the land belonged to the community as against other evidence introduced to the contrary.</p>

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

<p>1. —City Council — Appointment of Officer.</p> <p>The charter of a city provided for choice of a city attorney by the council; by a new charter such officer was to be elected, and S., who received a majority of the votes, was declared by the city council chosen to that office. It was ’ claimed by the former incumbent that the new charter was unconstitutional. Held that the action of the council was equivalent to his selection under the old charter, which was in force if the new one was invalid, and the court would not inquire into the validity of the new charter or election under it or of the reasons moving the council to declare him chosen.</p> <p>2. —Constitution—Delegating legislative Power.</p> <p>An Act of the Legislature creating a new special charter for a city, but providing that it should be of no further force or effect if rejected at an election of the voters of the city, was not unconstitutional as being a delegation of legislative power.</p> <p>3. —Constitution—Title of Act — City Charter — School District.</p> <p>A new special charter entitled an Act to incorporate and define the powers of a city, was not unconstitutional because it also enacted that such city should constitute an independent school district under the government of trustees whose election was provided for by such charter. This provision was germaine and subsidiary to the matters embraced in the title of the Act and was not necessary to be specially enumerated in such title.</p> <p>4. —Same.</p> <p>The failure to enumerate in the title of an Act a subject of legislation embraced therein, is fatal to the validity of only the part of the Act not embraced in the title, if this can be separated from the other provisions.</p> <p>5. —Statute—Emergency.</p> <p>The Legislature is judge of the emergency requiring a law to take effect at once; and a recital in an Act creating a new charter for a city that the existing one was wholly insufficient and unsuitable and that there is an immediate necessity for enlarged powers, is held to refer to the necessity that the Act take effect at once, as well as to that for suspension of the rules governing its passage, and to show a sufficient declaration of emergency with' relation to the time of its taking effect.</p> <p>6. —Elections—Special City Charter.</p> <p>A special city charter contained provisions concerning the manner of its submission for adoption to the voters of the municipality and the form of the ballot, and these were substantially complied with in the election. Held that the charter, as the latest expression of legislative will, prevailed over the general election law, where in conflict therewith.</p> <p>7. —Election—Collateral Attack.</p> <p>Mere irregularities in the manner of conducting an election will not suffice to require it to be held void in a collateral attack on the declared result.</p>

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

<p>Injunction — Void Judgment — Jurisdiction—Jury—Oath.</p> <p>An injunction granted by a judge of the District Court against the enforcement of a judgment of the County Court, on the ground that the jury on whose verdict the judgment was rendered had not been sworn, was dissolved by the District Judge in chambers. On appeal from this order it is held:</p> <p>(1) That the injunction was returnable and to be tried in the County Court, even if the District Court had authority to grant it.</p> <p>(2) That the order dissolving it was beyond the jurisdiction of the District Judge.</p> <p>(3) That appeal lay from such order, as from a case of exercise of original jurisdiction of the District Court, though it acted without jurisdiction and though the amount involved in the County Court judgment was insufficient to give a right of appeal.</p> <p>(4) That the County Court judgment was not void because of the failure to swear the jury, though such fact appeared on the face of the judgment; having a right to waive a jury, a party waives objections to its qualifications not reserved by exception.</p> <p>(5) That appellee was properly taxed with costs of the appeal from the interlocutory order.</p>

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

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

<p>1. —Evidence—Charge.</p> <p>A fact admitted by the plaintiff in his testimony may be treated by the court as settled against him.</p> <p>2. —Unrecorded Deed — Notice—Agency.</p> <p>Where the agent who negotiated for the vendee a purchase of land had knowledge of a previous unrecorded conveyance by the vendor of the timber thereon to another, the purchaser was taxed with notice thereof and took subject to the rights of the first purchaser to the timber.</p> <p>3. —Harmless Error.</p> <p>Errors by the trial court in rulings not affecting a question which is decisive of the case and requires an affirmance, are harmless and immaterial on appeal.</p>

<p>1. — Intoxicating Liquors — Sale—“Baskin-McGregor Law.”</p> <p>The Act known as the “Baskin-McGregor Law” did not have the effect of repealing all pre-existing laws regulating the sale of intoxicating liquors.</p> <p>Z. — Same—Service of Notice not to Sell — Pleading.</p> <p>In a suit upon a liquor dealer’s bond for selling intoxicating liquors to an habitual drunkard after service of notice not to do so, an allegation that a certain constable served said notice on the defendant, without stating that the notice was delivered to him, was sufficient as against a special exception.</p> <p>3. —Liquor Dealer’s Bond — Suit for Penalty — Evidence—Practice.</p> <p>When substantially the same testimony has been admitted during a trial without objection, a- party can not complain of the subsequent admission of similar testimony over his objection. In an action for breach of a liquor dealer’s bond by the sale of intoxicating liquors to an habitual drunkard, it having been proven without objection that the inebriate would not work while he was drinking and that his wife (the plaintiff) would then do his work, it was not error to admit testimony as to the details of the work she did on such occasions, over the objection that it was calculated to prejudice the jury against the defendants.</p> <p>4. —Same—Same—Conspiracy—Evidence in Denial — Practice.</p> <p>In an action by a wife against a liquor dealer for selling intoxicating liquor to her husband, an habitual drunkard, the defendant having plead that the husband and wife had conspired to .obtain liquor for the husband for the sole purpose of mulcting the defendant in damages, evidence of violent threats and conduct on the part of the husband at his home while drinking, was admissible in refutation of said charge, and this, although the defendant had introduced no evidence in support of said allegation at the time said evidence . was admitted.</p> <p>5. —Practice—Cross-Examination of Witness — Reproduction of Objectionable</p> <p>Testimony — W aiver.</p> <p>When a defendant, upon cross-examination of the plaintiff’s witness, reproduces testimony objected to on direct examination, he thereby nullifies his previous objection.</p> <p>6. —Sale of Intoxicating Liquors — Habitual Drunkard — Relevant Testimony.</p> <p>Upon the issue whether or not plaintiff’s husband was an habitual drunkard, testimony as to disturbances heard by neighbors in plaintiff’s home and the frequency of the same, considered, and held admissible over the objection that said testimony was irrelevant and inflammatory.</p> <p>7. —Same—Relevant Testimony.</p> <p>The wife having testified, in a suit by her against a liquor dealer for selling intoxicating liquor to her husband, to having seen her husband take a drinic at defendant’s saloon on a certain occasion and the subsequent conduct of the husband at his home, it was permissible, for the purpose of directing his attention to the same occasion, to ask the son if he remembered any time his mother claimed to have seen his father drink at defendant’s saloon. An objection that said question elicited hearsay testimony corroborative of the wife’s statement as to seeing- the husband take a drink, was properly overruled.</p> <p>8. —Same—Withdrawal of Notice — Relevant Testimony.</p> <p>In an action by a wife against a liquor dealer for selling intoxicating liquor to her husband, the defendant having plead that the plaintiff had withdrawn the notice and that he made no sales to the husband until after the notice had been withdrawn, the testimony of the son to the effect that on one occasion his mother sent him to defendant’s place of business to tell defendant to stop selling whisky to the husband, was admissible to show that the notice was in force at the time.</p> <p>9. —Same—Dates of Sales — Pleading—Proof.</p> <p>The" plaintiff having alleged that the defendant “on or about” certain dates, naming eight in all, unlawfully sold intoxicating liquors to her husband, the court properly charged the jury that the plaintiff would not be confined to the specific dates of sale alleged in her petition but might prove any sales between the date of defendant’s bond and the filing of the suit.</p> <p>10. —Same—Burden and Degree of Proof.</p> <p>It is not necessary for a plaintiff, in a suit upon a liquor dealer’s bond to recover a penalty for a breach of the same, to prove his case beyond a reasonable doubt; a preponderance of the evidence is all that is required.</p> <p>11. —Same—Charge—Submission of Issue.</p> <p>A charge worded as follows: “Unless you further find from the evidence that when he (the defendant) sold or gave intoxicating liquor, etc.,’’ in a suit upon a liquor dealer’s bond, is not subject to the objection that it assumed the fact, or did not submit it to the determination of the jury.</p> <p>12. —Same—Defense—Withdrawal of Notice.</p> <p>The fact that a wife sent word by a third party to a saloon keeper that she withdrew her notice to him not to sell intoxicating liquors to her husband, would be no defense to a suit upon the bond by the wife if the message was never in fact communicated to the defendant and did not induce his action.</p> <p>13. —Same—Charge—Assumption of Pact.</p> <p>It is not error for the trial court in its charge to the jury to assume as true a fact about which there is no conflict in the evidence.</p> <p>14. —Same—Charge—Construction.</p> <p>In a suit upon a liquor dealer’s bond, charge considered, and held not subject to the construction that it authorized a verdict against the defendant for sales made prior to the execution of the bond sued on.</p> <p>15. —Same—Charge Approved.</p> <p>In an action upon a liquor dealer’s bond, charges considered, and held not subject to the objection that they assumed that certain controverted issues had been established and were therefore on the weight of the evidence.</p> <p>16. —Same—Principal and Surety — Admissions of Principal — Evidence.</p> <p>Statements of a principal in a bond are not admissible as an admission against the sureties on the bond unless said statements are res gestae. This rule applied in a suit upon a liquor dealer’s bond.</p> <p>17. —Same—Liability of Surety — Insufficient Evidence.</p> <p>A liquor dealer’s bond was dated on February 1st; a suit was filed against the principal and sureties on the bond in the following August; the competent testimony showed only two specific sales to plaintiff’s husband between the date of the bond and the filing of the suit. Held, that testimony that about ten sales were made to plaintiff’s husband between January 1st of the same year and the filing of the suit, was insufficient to show that more than two -sales were made during the life of the bond, and therefore insufficient to support a larger verdict against the sureties than the penalty for the two sales.</p> <p>18. —Practice—Special Charge — Limiting Effect of Evidence.</p> <p>Ordinarily, when evidence is properly admitted against one party to a suit, the party as to whom it is not admissible should request a special charge limiting its effect, but this rule does not apply when the question presented is, Does the testimony support the verdict against the party as to whom the evidence was not admissible. In such case the failure to request a special charge is immaterial.</p>

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

<p>Error from the Tenth Judicial District, Galveston County. Tried below before Hon. Lewis Fisher.</p>

<p>Intoxicating Liquor — Sale to Minor — “Person Aggrieved” Defined.</p> <p>By the expression “person aggrieved” as used in article 3380, Sayles’ Civil Statutes, concerning the sale of intoxicating liquors to minors, is meant any person whose legal rights have been invaded by a breach of the bond provided for in the statute. A widowed sister who from his infancy had stood in loco parentis towards an orphaned brother is included within the meaning of the term “person aggrieved” as used in said article, and may bring suit for a violation of the conditions of a liquor dealer’s bond by the sale of intoxicating liquor to said brother.</p>

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

<p>Appeal from the County Court of Harrison County. Tried below before Hon. H. T. Lyttleton.</p>

<p>1. —Nuisance—Damages—Depreciation of Property.</p> <p>One who had constructed on his own premises a pond for collecting .surface water in which no water had yet accumulated, could not be held liable to an adjacent proprietor for depreciation in the value of the latter’s residence property on the theory that the pond was a permanent nuisance, which threatened, though it had not yet caused, an unwholesome accumulation of stagnant water, breeding mosquitoes and propagating malaria.</p> <p>2. —Same—Apprehension of Danger.</p> <p>Various definitions of nuisance considered, and held that depreciation of plaintiff’s property by the use made by defendant of his own is not necessarily actionable; that there must be a substantial invasion of the legal rights of the owner; that the use was not actionable because of apprehended danger when it had not yet become a nuisance creating danger in fact.</p> <p>3. —Same—Permanent Injury — Abatable Nuisance.</p> <p>Use of property threatening future injury, but which will be abatable when it causes actual injury, discomfort, or inconvenience, can not be treated as a permanent nuisance giving rise to an action for diminution in the value of neighboring property. Cases of nuisance authorized to be created by public service corporations in the public interest distinguished, as to the right to abate, from those by strictly private proprietors.</p> <p>4. —Same.</p> <p>The right of abatement is not affected by the fact that affirmative action by the creator of the nuisance may be necessary to accomplish it; he may be compelled to perform such action.</p>

<p>1. —Deed—Delivery—Evidence.</p> <p>Evidence considered, and held sufficient to support a finding of the trial court that a deed from a father to his son, and relied upon by the son to sustain his claim to the land, was never in fact delivered to the son by or with the consent of the father.</p> <p>2. —Homestead—Evidence.</p> <p>Evidence considered, and held sufficient to support a finding of the trial court that a tract of land described in a deed, which was signed and acknowledged by the husband but not by the wife, was a part of a rural homestead at the date of the deed.</p> <p>3. —Homestead—Deed by Husband Alone.</p> <p>A deed to the homestead, or a part of the same, by the husband without the signature and acknowledgment of the wife, is void as to the wife, and after the death of the husband, no other homestead having been acquired, she may sue and recover the same.</p>

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

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

<p>Error from the County Court of Comanche County. Tried below before Hon. Edwin Dabney.</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 Baylor County. Tried below before Hon. Chas. B. Coombes.</p>

<p>1. —Evidence—pedigree—Declarations.</p> <p>The rule admitting hearsay evidence in matters of pedigree permits proof by a member of the family of their descent from a certain ancestor and of his death and the date thereof, though known to the witness only from declarations of other living members of the family, or of persons not members.</p> <p>2. —Same—Understanding in Community.</p> <p>Hearsay admissible in proof of matters of pedigree includes evidence of the general understanding of the community on descent, widowhood at a given date, etc.</p> <p>3. — Agency—Death—Revocation.</p> <p>A deed by an agent made after the revocation of his authority by death of the principal is void; and such revocation on death must be assumed in the absence of evidence that the agent’s power was coupled with an interest.</p> <p>4. — Same—Limitation—Color of Title.</p> <p>A conveyance by an agent after revocation of his authority by death of the principal, being void, will not furnish color of title under the three years statute of limitation.”</p> <p>5. — Limitation—Ten Years — Constructive Possession.</p> <p>Constructive possession does not extend to the boundaries described in the muniment of title, other than a deed, under which the possessor claims, unless the instrument is duly registered. If same is a will, the record of which has been destroyed, the registration must be supplied within the time and in the manner prescribed in order to maintain constructive possession. (Rev. Stats., arts. 3344, 4597, 4600, 5352.)</p> <p>Appeal from the District Court of Sabine County. Tried below before Hon. James I. Perkins.</p>

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

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

<p>1. — Pleading—Amendment—Same Cause of Action.</p> <p>In a suit for damages for personal injuries, plaintiff alleged first that the defendant railroad company was guilty of negligence in placing and leaving certain torpedoes on its track without warning to plaintiff, and in failing to have a flagman remain near the torpedoes until recalled by the whistle from the train, which had placed them there, when ready to depart. In an amended petition plaintiff alleged that the negligence consisted in not having a flagman remain at the torpedo nearest to the train until recalled by whistle when the train was ready to depart. And in his last amended petition he alleged, in substance, that in the practical application and construction of the rule concerning the placing of torpedoes in defendant’s business, it was the custom and practice that the flagman should be recalled just as the train was ready to depart and not before, so that had the flagman remained where the torpedoes were, on the occasion in question, he would have been plainly visible to plaintiff as he approached the train, and that the failure to have a flagman so stationed was contrary to the uniform custom and practice of the business. Held, that the amended pleading did not set up a new cause of action but simply amplified the original pleading.</p> <p>2. —Master and Servant — Rule—Failure to Observe — Negligence.</p> <p>Without regard to the purpose for which a rule may have been promulgated by a master, a servant has the right to act on the presumption that it will be complied with by the master and his other servants, and the master is liable for damages proximately resulting from a failure to do so.</p> <p>3. —Railroad—Torpedo on Track — Negligence.</p> <p>In an action for damages by an -employe against a railroad company for personal injuries caused by the explosion of a torpedo on a railroad track, pleading and evidence considered, and held to support a judgment against the company.</p> <p>4. —Personal Injuries — Verdict not Excessive.</p> <p>A verdict for $14,000 for the loss of a leg by a man forty-nine years of age, of robust health at the time of the accident, and earning about $100 per month, and who endured great mental and physical suffering, can not be held excessive.</p>

<p>Appeal — Tiling Bond — Time.</p> <p>The thirty days allowed a nonresident within which to file an appeal bond applies only in cases where, the term continuing longer than eight weeks, the time begins to run from the date of the judgment, and does not apply to cases where the time does not begin .to run until adjournment.</p>

<p>Appeal — Failure to File Brief — Dismissal.</p> <p>When an appellant files no brief in the court from which the appeal is taken, and files none in the Court of Civil Appeals until the day of submission, in the absence of excuse for such failure to comply with the rules, the appeal will be dismissed on timely motion of the appellee.</p>

<p>Bond — liability of Sureties — Agreement Between Obligor and Sureties.</p> <p>Where the obligee in a bond prepared the same for execution by the obligor and his sureties, and expressly stipulated therein that the bond would not be operative without three sureties, the obligee was charged with notice when the bond was returned to and accepted by him with only two sureties that the sureties who signed the bond did so upon condition that the bond would not be operative unless a third surety was obtained. In a suit upon such bond, evidence considered, and held sufficient to support a verdict for the defendant sureties.</p>

<p>Homestead — Sale by Husband — Estoppel of His Heirs.</p> <p>A deed by a married man, the head of a family, to the homestead without the consent and joinder of the wife is inoperative only as against the homestead rights of the wife so long as the property was her homestead, but after the property is abandoned as a homestead by the wife, the deed by the husband becomes effective by estoppel against his heirs.</p>

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

<p>Appeal from the District Court of Tarrant County. Tried below before Hon. W. T. Simmons.</p>

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

<p>1. — Receivership—Creditor—Interest and Attorney’s Fee.</p> <p>A creditor holding a secured claim against an insolvent corporation in the hands of a receiver, is entitled to interest and attorney’s fee upon his claim, when the note or other contract provides for the same, so far as the same can be paid out of the proceeds of the securities, to the date when the claim is paid by the receiver. No interest, however, should be allowed to be paid out of the general fund after the date of the appointment of the receiver unless there should be, after all the debts and expenses of the receivership are paid, a surplus to be returned to the stockholders of the corporation, in which case interest should be paid in full to date of payment out of such surplus, if not fully satisfied out of the proceeds of the security. The rule that interest ceases to run when the court takes charge of the property, only applies in so far as a distribution of the assets in the hands of the receiver among the creditors is concerned, and can not be used to protect the corporation from full liability, if it be solvent.</p> <p>2. —Same—Same—Collateral Security — Attorney’s Fee.</p> <p>A creditor of a corporation in the hands of a receiver, is entitled to recover attorney’s fees stipulated for in notes held by him as collateral security for his main debt when it becomes necessary by reason "of the •' insolvency of the corporation to place said notes in the hands of an attorney for collection.</p> <p>3. —Same—Contract for Attorney’s Fee.</p> <p>A contract to pay attorney’s fees is a contract of indemnity and not for liquidated damages. A creditor can only recover such portion of the attorney’s fee provided for as he has obligated himself to pay or, in the absence of such contract, such as is reasonable.</p> <p>4. —Attorney’s Fee — Necessity for Suit.</p> <p>When the sole stipulation in a note is to pay certain attorney’s fee if the note is placed in the hands of an attorney for collection, the payee or other holder of the note is entitled to collect the fee if the note is in fact placed in the hands of an attorney for collection and a necessity existed for such action. And this; though the note was not due when so placed.</p>

<p>1. —Homestead—Tax Sale — Redemption.</p> <p>On a judgment by a city for taxes, a homestead, acquired when worth less than $5,000, was sold to the city and by it to another. The owner, remaining in possession and having under the city charter two years in which to redeem, brought suit against the purchaser to set aside the sale. By a compromise the purchaser had judgment for the property, then worth $12,000, and reconveyed to the owner for $4,000. Held, that the transaction was equivalent to a redemption from the sale; the owner was reinstated in his original homestead rights to the entire property, and not limited therein to a $5,000 interest, as in a newly acquired homestead.</p> <p>2. —Tax Sale — Redemption.</p> <p>Where a right to redeem from tax sale exists, the purchaser acquires no constructive possession or right to possession during its continuapce,</p> <p>3. —Same.</p> <p>The effect of a tax sale and the rights thereunder are to be determined by the law in force at the time of the sale; and a right of redemption exists, if given by the law then in force, though the sale was for back taxes accruing at a time when the law gave no right to redeem.</p> <p>4. —Same—Judgment.</p> <p>A judgment and sale for back taxes which expressly recognized the right of the owner to redeem was conclusive as to the existence of that right in a controversy as to the homestead rights between the widow and the independent executor of such owner, both claiming under him.</p> <p>5. —Judgment—Paroi Evidence.</p> <p>Parol evidence of the purpose and consideration of an agreed judgment recovering land and a conveyance from the party recovering to his adversary, not contradicting the record or deed, was admissible to show that the transaction was in effect a redemption of the land from a tax sale.</p> <p>6. —Homestead—Abandonment of Part.</p> <p>Where the homestead was established in a building used as a hotel, and incapable by its nature of specific partition, there could be no abandonment of a part only of the premises by failing to use such part for homestead purposes. Following Forsgard v. Ford, 87 Texas, 185.</p> <p>7. —Estates of Decedents — Jurisdiction.</p> <p>The District Court had jurisdiction of an action by the widow against the independent executor of deceased, to recover the property to which she was entitled as homestead and allowances, she declining to take under the will.</p> <p>8. —Widow—Homestead and Exemptions — Remarriage.</p> <p>The widow of a decedent is not deprived by remarriage of her right to the homestead and allowances secured her by law.</p>

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

<p>Appeal from the County Court of Colorado County. Tried below before Hon. J. J. Mansfield.</p>

<p>Libel — Charge of Lying.</p> <p>Á. publication in a newspaper charging plaintiff with lack of veracity is' libelous per se, and actionable without allegation of special damage.</p>

<p>1. —Divorce—Heading—Bona Fide Inhabitant.</p> <p>Allegations in a petition for divorce held to constitute an averment, in substance, that plaintiff was an actual bona fide inhabitant of the State, though not in the words of the statute. Haymond v. Haymond, 74 Texas, 414, distinguished.</p> <p>2. —Divorce—Cruelty—Pleading.</p> <p>The allegation in a petition for divorce that the acts of cruelty charged were “unendurable” was equivalent to the statutory word “insupportable.”</p>

<p>Limitation — Cotenants—Adverse Holding — Notice.</p> <p>When the deed to a purchaser of land from one of several cotenants particularly describes and designates the land purchased, such deed and his possession of that particular tract, is sufficient notice to the other cotenants that such purchaser is holding the portion claimed by him adversely to them, and so set the statute of limitation in motion.</p>

<p>Trespass to Try Title — Community Property — Purchase from Surviving Husband — Innocent Purchaser — Burden of Proof.</p> <p>In an action of trespass to try title by the heirs of a deceased wife against a remote vendee of the surviving husband for community property sold by the husband after the death of the wife, the burden of proof is upon the heirs to show that not only the defendant but each and all of the intermediate purchasers had notice of the equitable title of the heirs, in order to entitle them to recover such land.</p>

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

<p>Appeal from the District Court of Tarrant County. Tried below before W. T. Simmons.</p>

<p>1. —Contract—Bailroad Bight-of-Way — Contribution—Pleading.</p> <p>In a suit for contribution between subscribers and obligors upon a contract to furnish a right-of-way and terminal facilities for a railroad company, petition and the contract upon which the suit was based, considered, and the petition held not subject to exception on the ground that it failed to allege that the railroad had been built to the town in question before the payments were made by the plaintiffs to which contribution was demanded of the defendants; that so far as the rights of the parties were concerned it was a matter of no consequence under the stipulation of the contract whether the road was ever built. Defendants were bound in equity to pay their proportion of the expenditures by plaintiffs.</p> <p>2. —Same—Definition of “Bequired.”</p> <p>A contract to furnish the right-of-way and terminal facilities for a railroad company in a certain town contained a provision that the obligors would “give the company whatever right-of-way, depot ground and lands for railroad purposes which it may require” at the town in question. Held, because the contract as a whole evidenced that the object to be attained was the construction of the railroad so as to form a connection with two other railroads named in the contract, all that the railroad company could legally “require” of the obligors was such right-of-way as was reasonably necessary to accomplish that purpose, and those obligors who, at the request of the company, expended money in securing a right-of-way beyond said connection could not demand contribution therefor from the other obligors.</p> <p>3. —Same—Contribution—Voluntary Payment.</p> <p>The fact that certain obligors had voluntarily contributed more than they were legally bound to contribute under the terms of a contract to furnish a right-of-way to a railroad company, was no reason why the other obligors should not pay their proportion of the amount for which they were legally bound.</p>

<p>Appeal from the County Court of Hale County. Tried below before Hon. Geo. L. Mayfield.</p>

<p>1. — Sale—Personal Property — Defects—Acceptance.</p> <p>Where there is a sale of personal property to be delivered, and no express warranty that would survive delivery, the purchaser cannot afterwards complain of visible defects therein, but will be held to the contract price when he accepts the property upon delivery, having an opportunity to examine the same. And this is true although he continuously protested that the property was not of the kind or quality contracted for.</p> <p>3. — Same—Charge.</p> <p>In a suit for the contract price of certain safes sold by plaintiff to defendant, charge of the court considered, and held reversible error in that it deprived plaintiff of the right to recover if defendant within a reasonable time notified plaintiff that the safes were not satisfactory, although defendant may have retained possession of and used the safes. '</p> <p>3. — Same—Patent Defects.</p> <p>The retention and use of personal property delivered in pursuance of an executory contract of sale will amount to an acceptance of the sale when the alleged defects are patent and must have been observed when the property was received.</p>

<p>Appeal from the County Court of Nolan County. Tried below before Hon. Jno. J. Ford.</p>

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

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

<p>1. — Principal and Agent — Power of Attorney with Interest — Fraud—Evidence.</p> <p>In an action of trespass to try title and for partition, the defendants denied plaintiffs’ title to any part of the land sought to be partitioned and alleged that plaintiffs’ vendor had obtained a power of attorney from defendants coupled with an interest in said land, by false and fraudulent representations that the title to said land was disputed and that litigation would be necessary to obtain possession of the same, of which fact plaintiffs had notice when they bought; evidence upon said issues considered, and held sufficient to require a submission of the same to the jury, and hence a peremptory instruction for the plaintiffs was reversible error.</p> <p>а. —Power of Attorney with Interest — Revocation.</p> <p>An instrument purporting to be a revocation of a power of attorney to sell land, recited the execution of the power of attorney and the authority of the agent to recover and take possession of said land and to sell and convey the same with the consent of the owners, and a conveyance of a one-lialf interest in said lands to the agent, and then proceeded: “Therefore, know all men by these presents, that we have countermanded and revoked, and by these presents do countermand and revoke, the said power of attorney and all power and authority thereby given to the said F. H. Y.” Held, to manifest an intention to revoke and cancel the entire instrument referred to, that is,, the conveyance of an interest in the lands as well as the power to sell the same.</p> <p>3. —Same—Right to Revoke,</p> <p>A power of attorney coupled with an interest in land can be revoked, set aside or cancelled only for fraud, misrepresentation or other sufficient cause.</p> <p>4. —Husband and Wife — legal Title — Purchaser from Heirs of Husband.</p> <p>When the legal title to land is in the husband, a purchaser from his heirs will take good title as against the heirs of the wife, in the absence of notice that the land was community property.</p> <p>5. —Guardian and Ward — Power of Attorney by Guardian,</p> <p>A power of attorney by a guardian coupled with an interest in the ward’s land, is not binding upon the ward unless ratified by him after he attains his majority.</p> <p>б. —Deed—Secondary Evidence,</p> <p>Parol evidence of the existence and contents of a deed is not admissible when it appears that the deed is in existence, and by proper diligence might be produced.</p> <p>7. — Deed—Proof of Execution.</p> <p>The fact that a suit was originally one for partition will not make the deed to the land admissible in evidence without proof of its execution and without the three days filing and notice required by statute when the suit becomes in effect one of trespass to try title to the land between the alleged owners.</p>

<p>Appeal from the County Court of Coleman County. Tried below before Hon. F. M. Bowen.</p>

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

<p>1. —New Trial — Newly Discovered Testimony — Diligence.</p> <p>When a party goes into a trial without any effort to postpone the same for the purpose of obtaining the testimony of important witnesses of whose whereabouts and testimony he is informed, he is not entitled to a new trial, in the event of a verdict against him, for the purpose of obtaining said testimony. The same rule applies when the existence of important but absent testimony is developed during the progress of the trial. Parties will not be allowed to speculate upon obtaining a verdict with the evidence at hand, and complain afterwards if the verdict is against them.</p> <p>2. —Brief—Multifarious Proposition.</p> <p>The following proposition in a brief held, multifarious and therefore not entitled to consideration on appeal, viz.: “Because the officer taking the deposition was guilty of improper conduct in using memoranda in taking said deposition, and the said witness having failed to answer fully or having evaded answering certain material cross-interrogatories, the deposition should have been suppressed.”</p> <p>3. —Charge—Verdict—Immaterial Error.</p> <p>An error in the charge in submitting a certain issue becomes harmless when it is evident that the verdict of the jury was not based upon any finding upon such issue.</p> <p>4. — Appeal—Brief—Buies.</p> <p>When an assignment of error is not a proposition in itself and is not followed by a proposition in appellant’s brief it will not be considered on appeal.</p> <p>6. — Evidence—Answer not Besponsive to Question.</p> <p>An answer not responsive to the question asked is properly excluded.</p> <p>6, —Evidence—Hypothetical Question.</p> <p>When a hypothetical question does not sufficiently or fairly embody the facts of a case, the exclusion of the answer of the witness is not error.</p> <p>7. —Charge—Evidence without Pleading.</p> <p>It is not error for the trial court to instruct the jury to find for the defendant on an issue made by the evidence but not by plaintiff’s pleading.</p>

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

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

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

<p>Appeal from the County Court of Uvalde County. Tried below before Hon. W. D. Love.</p>

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

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

<p>1. —Husband and Wife — Control of Community Funds.</p> <p>The right of the husband to dispose of community funds during marriage is absolute, so long as it is not exercised for the purpose of defrauding the wife; she cannot follow and recover such funds lawfully disposed of by the husband for other purposes than the benefit of the community estate.</p> <p>2. —Same—Insurance.</p> <p>A husband, of limited means, paid ° premiums aggregating $73.20 out of community earnings upon an insurance policy for $1,000, taken out before marriage for the benefit of his children by a former wife. Held, that the wife had no right to recover any part of the proceeds of such policy, which had been collected by the guardian of the children after the father’s death. It was his right and duty to provide for the children; the continued payment of premiums on a policy for their benefit evidenced such purpose, and not that of investment for the benefit of the community; and no intent to defraud the wife appeared therefrom.</p> <p>3. — Same—Case Limited.</p> <p>The case of Martin v. Moran, 11 Texas Civ. App., 509, distinguished and limited.</p>

<p>Appeal from the District Court of Dallas County.. Tried below before Chas. Fred Tucker, Esq., Special Judge.</p>

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

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

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

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

<p>Appeal from the District Court of ¡Navarro County. Tried below before Hon.. L. B. Cobb.</p>

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

<p>Promissory Note — Attorney’s Pee — Necessity for Attorney.</p> <p>A creditor of an estate held a promissory note executed by the decedent and secured by mortgage lien, in -which it was stipulated that if the note was placed in the hands of an attorney for collection or if collected by suit, ten percent additional would be due as attorney’s fee; soon after the administrator qualified, and before the creditor had taken any steps to establish his claim, the administrator notified the creditor that he was ready and willing to pay the claim upon approval by the court, and prepared and handed to the creditor a proper proof of the claim, which the creditor did not use, but placed his claim in the hands of an attorney who prepared the necessary affidavit and presented the claim to the administrator for allowance; the administrator allowed the claim in full, except the ten per cent added for attorney’s fee which was disallowed. In a suit upon the note and to collect the attorney’s fee, held, that no such necessity existed for the services of an attorney as would create the .contingency for the payment of the attorney’s fee stipulated in the note, and the creditor was not entitled to recover the same.</p>

<p>1. —Partition—Sale of land — County of Sale — Judgment—Collateral Attack.</p> <p>Even if it be true that under the provisions of articles 2360 and 3621, Rev. Stats., a sale of land for the purpose of partition should be made in the county-in which the land is situated, still an order of a court having jurisdiction of the parties and the subject matter, directing that the sale be made in a different county and a sale in pursuance of such order, are not void in the sense that they are subject to a collateral attack.</p> <p>2. —Jurisdiction—Definition.</p> <p>Jurisdiction means the lawful power to hear and determine the matter in controversy. The validity of a judgment does not depend upon its correctness.</p> <p>3. —Partition—Citation by Publication — Adjudication of Costs.</p> <p>Because a decree of partition incidentally adjudges the costs of the proceeding against the several parties to the suit, it does not follow that the judgment is such a personal judgment as cannot be rendered against nonresidents who are cited by publication and who appear only by an attorney appointed by the court.</p> <p>4. —Partition—Citation by Publication — Sufficiency.</p> <p>A petition in a suit for partition contained a prayer for' partition and, in case the land was incapable of division, for a sale for that purpose; it also contained a prayer for general relief; the defendants were nonresidents; the citation by publication was regular in all respects but omitted the specific prayer for a sale of the land if found to be incapable of partition. Held, that such specific prayer was not essential; a sale would have been authorized by the prayer for general relief. The omission did not affect the jurisdiction of the court to order a sale of the land.</p> <p>5. —Citation—Recital in Judgment.</p> <p>A recital in an order appointing a guardian ad litem in a suit for partition, that the defendants “had been duly cited .by publication” will support the jurisdiction of the court as against a collateral attack on the ground that the citation was defective.</p>

<p>1. —Foreign Corporation — License Tax — Constitutional Law.</p> <p>Though a former permit had been granted a corporation of another St'ate to do business in Texas for a term of ten years, on payment of the franchise tax then fixed by law, it was not unconstitutional for the Legislature to impose a higher tax thereafter and during such term for the same privilege and to provide for forfeiture of the right to do business on failure to pay it.</p> <p>2. —Same—Taxation.</p> <p>The charge imposed by a State on the privilege granted to a foreign corporation to do business therein is a license, and not’a property tax; and this is so though the amount required to be paid is a graduated one, based on the gross receipts, or the profits of the business, or amount of capital, or such other basis as may be fixed by the Legislature; and this does not constitute double taxation.</p> <p>3. — Unlawful Taxation — Voluntary Payment — Protest.</p> <p>Payment of an illegal demand, with full knowledge of the facts which render it illegal, must be deemed voluntary, though made under protest, unless made under urgent necessity or to release from detention or to prevent immediate seizure of person or property.</p> <p>4. —Same—Duress—Interstate Commerce.</p> <p>If a foreign corporation is engaged only in business which is interstate commerce, and hence not taxable by the State, its rights would not be affected by a forfeiture of its permit to do business in the State; and such forfeiture for nonpayment of a license tax would not be duress which would make the payment thereof by it under protest an involuntary one.</p> <p>5. —Taxation—License—Equality and Uniformity.</p> <p>A license tax on foreign corporations is not invalid if equal and uniform in its operation and application to all of that class, though a like tax is not imposed on domestic corporations.</p> <p>6. —Unlawful Taxes — Action to Recover Back — Parties.</p> <p>It seems, in the opinion of Mr. Justice Rice, that, in an action to recover back from the Secretary of State taxes illegally collected by him from a corporation, the petition should allege that the money collected was still in the possession of that officer. c</p>

<p>1. —Evidence—Information Explaining Motive.</p> <p>The evidence being in conflict on the issue whether plaintiff, a tenant, was wrongfully dispossessed of his leased premises by defendant, his landlord, or left voluntarily because he had contracted debts to the latter equaling his prospective interest in the crop, plaintiff, who had testified that he did not know the amount of such indebtedness when he left the premises, should have been required to answer, on cross-examination, whether the defendant had not previously told him that he would not have anything left out of the crop at the end of the year.</p> <p>2. —Evidence—Landlord and Tenant — Dispossession—Damages.</p> <p>Damages being claimed by a dispossessed tenant by reason of loss of employment for the members of his family during the season they would have worked on the leased premises if undisturbed, it was' permissible for the defendant to inquire" into the earnings after leaving the premises of a son who had worked thereon as one of the family.</p>

<p>1. —Illegal Contract — Public Office.</p> <p>A contract for the sale of his store and business as a druggist which involved an agreement by the vendor also to resign his office as postmaster and endeavor to procure the appointment of the purchaser to that position was illegal, being contrary to public policy.</p> <p>2. —Same—Executory Agreement — Recovery of Money Paid.</p> <p>One who pays money upon an illegal contract may recover it back, though deposited as a forfeit, while the agreement remains executory, such action being not an affirmance but a repudiation of the illegal undertaking.</p>

<p>1. — Evidence—Certificate of State Oflicer — Statute Construed.</p> <p>Under the provisions of article 2308, Sayles Civ. Stats., a copy from the records of the State Treasurer of an account duly certified by him showing the payment of principal and interest due the State by a purchaser of school land, is competent evidence, and not subject to the objection that it was the conclusion of the treasurer.</p> <p>2. —School Land — Sale by Commissioner — Presumption—Burden of Proof.</p> <p>When school land has been sold and awarded by the Commissioners of the General Land Office to one purchaser such sale and award will be presumed to be valid, and the burden of proof is on a subsequent purchaser of the same land to prove the invalidity of the first sale and award. The action of the Commissioner is not conclusive upon the question of conflicting property rights of the claimants.</p> <p>3. —Same—Certificate of Occupancy — Effect.</p> <p>It seems that under the case of Logan v. Curry, 95 Texas, 668, a certificate of occupancy by the Commissioner of the Land Office is conclusive of the question of occupancy of the home section by a purchaser of school land.</p> <p>4. —Same—Purchaser of Additional Section — Occupancy.</p> <p>A purchaser of school land who had proved his three years’ occupancy of the home section at the time he applied for and was awarded an additional section, is not required to occupy either section for three years next after the purchase of the additional section.</p>