Volume 57 — Texas Civil Appeals Reports

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

<p>1.—Railroads—Negligence—Projection from Train—Pleading.</p> <p>In an action to recover damages for personal injuries caused by a piece of timber projecting from a freight train while passing through a town at night, pleading considered and held not subject to exception on the ground that the acts or facts constituting the negligence for which it was sought to hold the defendant railroad company responsible, were not specifically stated, but that negligence was alleged as a conclusion.</p> <p>3.—Same—Contributory Negligence—Evidence.</p> <p>In an action for damages for personal injuries caused by being struck by a piece of timber projecting from a freight train, evidence considered and held insufficient to require the court to submit the issue of contributory negligence on the part of the plaintiff and sufficient to justify a verdict against the defendant.</p> <p>3. —Same—Argument of Counsel.</p> <p>Where, in an action against a. railroad company for damages for personal injuries, plaintiff alleged that the defendant was guilty of negligence in running its train through a station at night at a high rate of speed, counsel for plaintiff had a right in his closing argument to comment upon that phase of the case although counsel for defendant had made no reference to it in bis argument.</p> <p>4. —Trial—Refusal of Charge—Practice.</p> <p>When the proposition embraced in a requested charge is included in the main charge of the court, the requested charge is properly refused.</p> <p>5. —Same—Thoroughfare—Licensee.</p> <p>It is the duty of a railway company to use ordinary care not to injure persons at a place commonly and habitually used by the public as a passway with the knowledge and consent of the company, and any neglect of such duty will render the pompany liable in damages when injury results therefrom.</p>

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

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

<p>1. —Practice—Charge—Ordinary Care.</p> <p>In a suit for damages to a shipment of cattle the trial court defined negligence to be a failure on the part of the defendant carrier to use ordinary care in handling plaintiff’s cattle. Held, in the absence of a requested charge defining ordinary care, the charge was sufficient.</p> <p>2. —Action against Carrier—Burden of Proof.</p> <p>When a carrier receives for transportation, property which is shown to be in good condition at that time, and which is never delivered at destination or delivered in a damaged condition and no caretaker accompanies the property, the burden of proof is on the carrier to show that such failure or condition was not due to its negligence; this burden, however, is discharged by evidence which tends to explain the failure or condition, and the burden of proof on the whole case is on the plaintiff.</p> <p>3.—Same—Diseased Cattle—Evidence.</p> <p>In an action against carriers for the death- of some of the cattle and injury to others during transportation, evidence as to a diseased condition of the cattle when received by the carriers, considered and held sufficient to support a verdict for the defendants.</p>

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

<p>Evidence—Transaction with Deceased—Statute Construed,</p> <p>In a suit by an administrator against an agent of the deceased for money of the deceased had and received by the agent, the administrator called the defendant to the witness stand and asked him whether or not a certain statement of moneys received and disbursed by him was in his handwriting, to which the defendant answered that it was. Held, that the defendant was “called to testify” as to a transaction with the deceased, -within the purview of article 2302, Ecv. Stats., and should therefore have been allowed to testify further 'that there was a mistake in the statement.</p>

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

<p>Appeal from the District Court of Palo Pinto County. Tried below before Hon. J. H. Arnold, Presiding Judge on exchange.</p>

<p>Cotton Compress—Negligence—Insufficient Evidence—Assumed Risk.</p> <p>In an action against a ginning company for damages for personal injuries received while operating a round bale cotton compress, evidence reviewed, and held insufficient to show any defect in the press for which defendant would be liable, but sufficient to show that plaintiff assumed the risk of operating the machine if it was defective.</p>

<p>1. —Appeal—Practice.</p> <p>An assignment of error based upon the alleged action of the trial court in overruling appellant’s application for a continuance, can not be considered when the record fails to show any order made by the court upon the application.</p> <p>2. —Limitation—Enclosure of Part—Charge—Statute Construed.</p> <p>In enclosing his own land a defendant in trespass to try title had intentionally enclosed a few acres belonging to an adjacent owner, and by reason of such enclosure and possession asserted title under the ten years statute of limitation to one hundred and sixty acres of said adjacent owner’s land; the court charged the jury that the fencing and possession of the few acres in connection with defendant’s adjoining tract would not support defendant’s claim of title by limitation to land beyond the defendailt’s actual enclosure, unless such fencing and possession in connection with all the other acts and conduct of the defendant in reference to said land were sufficient for ten years next before the filing of the suit to put a reasonably prudent person on notice that defendant was claiming title to one hundred and sixty acres. Held, the charge was correct and in accordance with articles 3343 and 3344, Sayles Civ. Stats.</p>

<p>1.—Conspiracy—Evidence—Charge.</p> <p>In a suit for damages for conspiracy to swindle, it is the duty of the trial court to tell the jury that although evidence of the conspiracy had been introduced, still it was the right of the jury to determine whether in fact a conspiracy had been established, and if not established, then not to consider the acts and declarations of any one defendant as evidence against his codefendant. Charge upon such issue considered and approved.</p> <p>3.—Same—Consummation.</p> <p>A conspiracy to defraud in the sale and purchase of land is not necessarily consummated when the deeds are executed: If the original purpose of the conspirators contemplate other consequent and subsequent transactions then the conspiracy was not completed in all its parts until those were done. Rule illustrated.</p>

<p>1. —Contributory negligence—Custom.</p> <p>To stand upon a window sill, being the usual and customary way of oiling machinery which could not be reached from the floor, an employee could not be charged with .contributory negligence in following said custom although the window sill was not primarily intended to be so used and the employer knowing of the custom would be guilty of negligence in permitting said sill to become decayed and insecurely fastened.</p> <p>2. —Preponderance of Evidence.</p> <p>It is tire peculiar statutory right and prerogative of the jury to decide upon the credibility of witnesses and the weight of their testimony, and if they choose to credit one witness, although he may be contradicted by a score of others, an Appellate Court can not on that ground alone disturb the verdict. A preponderance of evidence is not created by the number of witnesses alone.</p> <p>3. —Master and Servant—Duty of Inspection.</p> <p>A servant has the right to rely upon the assumption that the machinery, tools and appliances with which he is called upon to work are reasonably safe and that the business is conducted in a reasonably sáfe manner. No duty of inspection rests upon a servant, and, in the absence of knowledge of the defects and the attendant risks, he does not assume the risks arising from a failure of the master to perform his duty. This rule applied where an employee was injured by standing upon a decayed window sill.</p>

<p>1. —Appeal—Filing Conclusions of Fact and Law—Statute Construed.</p> <p>Under the provisions of section 1, chapter 7, Acts of First Called Session of the 30th Legislature (Laws 1907, p. 446), the judge of the trial court may file his conclusions of fact and law at any time within ten days after adjournment of the term although no order to that effect was made during the term.</p> <p>2. —Same—Impeaching Record—Affidavits,</p> <p>On appeal affidavits will not be considered for the purpose of contradicting the record as to the date when the judge’s conclusions of fact and law are filed. Such proceeding must be inaugurated in the trial court.</p> <p>3. —Deed—Sufficiency of Description—Reference to Other Document.</p> <p>To support a plea of limitation and to identify and render definite the description of land in a registered deed, resort may be had to a decree of partition in the District Court although the same is not recorded in the county clerk’s office as provided by article 4649, Rev. Stats., in the same way and to the same extent as to a recorded deed. The prohibitions of said article have no application in such case.</p> <p>4. —Same—Undivided Interest—Limitation—Apportionment of Recovery,</p> <p>When a defendant in trespass to try title claims title by limitation under the five years statute to a specific part of a larger tract claimed by the plaintiff, and the defendant’s claim is based upon deeds conveying undivided interests in the larger tract, defendant can acquire title under said statute to only a ratable proportion of the smaller tract claimed and occupied by him.</p> <p>ON REHEARING.</p> <p>5. —Appeal—Correcting Record—Laches—Practice.</p> <p>A record was filed in a Court of Civil Appeals on July 3, 1908; on October 5, following, the appellee filed a motion to strike out the findings of fact and conclusions of law of the trial judge; this motion was overruled on June 21, 1909; on July 4, 1909, appellee filed his motion for rehearing, and on October 5, 1909, filed a motion praying that proceedings on appeal be stayed until the record could be corrected in the District Court, and stating that a suit for this purpose was instituted in the District Court on August 8, 1909. Held, that while in a case of this kind it would be proper to delay the decision of the ease until the record could be corrected, the loches of the appellee in this ease was such as to require a refusal of liis motion.</p>

<p>ON MOTION TO AFFIRM ON CERTIFICATE.</p> <p>1.—Affirmance on Certificate—Transcript.</p> <p>A properly certified copy of the judgment sought to be affirmed on certificate must accompany the motion to affirm, otherwise the motion will he refused.</p> <p>%■—Same—Statute.</p> <p>Under the provisions of article 1016, Dev. Stats., the appellee or defendant in error is required to file the certificate for affirmance of a judgment at the term of the Appellate Court to which the appeal is returnable. A failure to do this is fatal to a motion to affirm.</p>

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

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

<p>1. —Capacity to Sue—Practice—Receivership.</p> <p>The plaintiffs, in an action against the receiver of a railroad company for damages, alleged that they were duly authorized by the court in which the receivership was pending to file said suit, but no evidence was introduced to sustain the allegation. Held, the authorization by the court to sue related to plaintiff’s capacity to sue, and in the absence of a denial under oath by the defendant, the allegation will be taken as true.</p> <p>2. —Parties—Receiver.</p> <p>The receiver is a proper party defendant in an action against a railroad company for damages upon a cause of action which arose before the appointment of the receiver.</p> <p>3. —Receiver—Judgment for Costs.</p> <p>A judgment against the receiver of a corporation instead of against the corporation itself for the costs of a suit against the corporation, is harmless error, if error at all, when the judgment provides that such costs should be paid in due course of the receivership.</p>

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

<p>1. —Conflicting Testimony—Province of Jury.</p> <p>When the testimony is conflicting it is the province of the jury to decide between the witnesses, and the mere fact that there was a conflict in the testimony, is not sufficient ground for setting aside the verdict.</p> <p>2. —Negligence—Unloading Oil Car.</p> <p>In a suit for damages for personal injuries received while unloading a tank car of petroleum, evidence considered and held sufficient to support a verdict finding the defendant guilty of negligence and that the plaintiff did not assume the risk arising from the situation.</p> <p>3. —Same—Pleading—Evidence.</p> <p>When there was no allegation that gravel or some other substance had in some manner gotten into a valve in an oil car and caused the oil to spout in plaintiff's face, thereby injuring him, and the theory of the defense was that plaintiff had voluntarily assumed the risk of the situation, it was not error for the court to exclude evidence of the surmises of witnesses as to the cause of the oil spouting.</p> <p>4. —Charge—Unknown Dangers.</p> <p>When the pleadings raise the issue, it is proper for the court to charge the jury that if the dangers were hidden so that an employee could not and did not know of them, the employer would be liable for sending the employee into a place where such hidden dangers would be developed by the acts of the employer’s agents or servants in the performance of the work in hand.</p> <p>5. —Practice—Befusal of Special Charge.</p> <p>It is proper for the trial court to refuse special charges when the same are substantially included in the general charge or when there is no evidence warranting the same.</p>

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

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

<p>1. —Appeal—Practice—Approval of Statement of Pacts.</p> <p>Where it appeared from the record that the appellee, defendant in the court below, was a nonresident of the State and was neither present nor represented by attorney at the trial, and that the statement of facts prepared by the appellant, plaintiff below, was presented to the attorney who tiled a disclaimer for appellee, and said attorney declined to examine the same upon the ground that he did not represent the appellee in the matter of appeal, a motion by appellee to strike out the statement of facts because it did not appear from the certificate of the trial judge appended thereto that the same was ever submitted to appellee or his attorney or an opportunity given them to prepare a statement, will be overruled.</p> <p>2. —Vendor and Vendee—Rescission—Damages.</p> <p>It matters not how fraudulent a transaction may have been by' which a vendee induced a vendor to accept a reconveyance of the property and to cancel and surrender the notes given in consideration therefor, the vendor would not be entitled to keep the property and also recover of the vendee as actual damages the. amount of the notes given therefor, in the absence of allegation and proof that the property reconveyed was not worth the amount of the notes surrendered.</p> <p>3. —Actual Damages—Attorney’s Fees.</p> <p>In a suit by a vendor against a vendee to rescind a sale of land, the vendor is not entitled to recover attorney’s fees as actual damages.</p> <p>4. —Exemplary Damages.</p> <p>Exemplary damages can not be recovered unless plaintiff is shown to have sustained actual damages.</p>

<p>1. —Damages—Personal Injury to Minor—Measure of Damage to Parent—Case Limited.</p> <p>Where personal injuries to a minor do not result in death, the measure of damages to a parent is the diminution in the value of the minor’s services during minority, together with such expenses by the parent as may have been rendered necessary by the injury. The right of action for all other damages resulting from the injury after the minor arrives at age, belongs to him and an action can not be maintained therefor by the parent. Gulf, C. & S. F. Ry. Co. v. Hall, 35 Texas Civ. App., 535, limited.</p> <p>2. —Master and Servant—Negligence—Contract of Immunity.</p> <p>Although a contract for immunity from the consequences of negligence may be valid so far as property rights are concerned, a different rule prevails as to personal injuries received by a servant through the negligence of the master. Such contracts have been held void as contrary to public policy and this, whether the negligence of the master be actual or passive only.</p>

<p>1. —Life Insurance—Application—Answer to Question.</p> <p>When, in an application for life insurance, the applicant was asked if he had ever been afflicted with “ulcers or open sores,” liis answer in the negative was literally true when he had as a matter of fact been afflicted with only one ulcer.</p> <p>2. —Same.</p> <p>An applicant for life insurance represented in his application that he had never been afflicted with ulcers or open sores; he also stated in the same application that he had had piles, and gave the details of the attack. In a suit upon the policy of insurance a finding by the jury that the deceased had an ulcer of the rectum was not inconsistent with his representations taken as a whole, and was not sufficient to avoid the policy.</p> <p>3. —Verdict—Preponderance of Evidence—Practice.</p> <p>Although a verdict may be against the preponderance of the evidence, it will not be disturbed by an Appellate Court when there is testimony legally sufficient to support it.</p> <p>4. —Insurance Policy—Affidavit of Minister.</p> <p>Where, under a liberal interpretation of the by-laws of an insurance fraternity, an affidavit by the minister who officiated at the funeral of the insured was only to be supplied when required by certain officers of the society, in the absence of pleading and proof that such requisition was made and that the furnishing of such affidavit was a condition precedent to a recovery by the beneficiary in the policy, the failure to furnish the same would not defeat a recovery by the beneficiary in the policy.</p>

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

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

<p>1.—Injunction—Waste.</p> <p>The fact that plaintiff in trespass to try title had a legal remedy by sequestration to prevent the defendant from removing timber from the land in controversy, was not a sufficient reason why a writ of injunction should not issue to prevent such waste.</p> <p>8.—Same—Pleading.</p> <p>In the absence of a special exception an allegation that defendant was about to enter upon and remove the timber from “the three hundred acres off the eastern portion of the land in controversy,” was a sufficient description of the land upon which defendant threatened to commit waste.</p> <p>3.—Same—Same—Irreparable Injury.</p> <p>When the facts alleged are sufficient to warrant the issuance of an injunction, it is not necessary that the plea should allege that the threatened wrongs would result in irreparable injury to him and that he has no legal remedy.</p>

<p>1. —Election—Local Option—Contest—Special Session of Legislature—Proclamation of Governor.</p> <p>The language “to enact adequate laws simplifying the procedure in both civil and criminal trials in the courts of this State” contained in the proclamation of the Governor convening the Legislature in special session, was sufficient under section 40 of article 3 of the Constitution to confer authority upon the Legislature at said special session to enact the law relating to contests arising under local option elections (Acts 1907, page 447).</p> <p>2. —Same—Civil Trial.</p> <p>By the provisions of article 3397, Rev. Stats., a proceeding to contest a • local option election under the Act of 1907 is a “civil trial,”</p> <p>3. —Same—Legislative Act—Judicial Interference.</p> <p>If an Act of the Legislature is within the scope of legislative authority, it must stand; nothing but a clear violation of the Constitution, a clear usurpation of power prohibited, will justify the judicial department in pronouncing an Act of the legislative department unconstitutional and void.</p> <p>4. —Same—Constitutional Law.</p> <p>The Act of the Thirtieth Legislature (Gen. Laws, 1907, page 447) making an election held and the result declared by the Commissioners Court binding unless contested within the time prescribed, and making the result of such contest binding upon one not a party to the same, is not contrary to or violative of the: Fifth and Fourteenth Amendments to the Constitution of the United States, and is valid and binding.</p>

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

<p>Appeal from the County Court of Navarro County. Tried below before Hon. J. N. Blanding.</p>

<p>on rehearing.</p> <p>1. —Lost Instrument—Proof of Execution.</p> <p>In an action to foreclose a mortgage upon land where it is alleged in the pleading or shown by the evidence- that the original mortgage had been lost - or destroyed, a -general denial on the part of the defendant is sufficient to require the plaintiff to prove the execution of the mortgage.</p> <p>2. —Same—Testimony by Surviving Wife—Statute Construed.</p> <p>In a suit by a surviving wife in her own right as the owner of a one-half community interest in certain notes and a mortgage securing the same, the wife was a competent witness to prove the execution of the mortgage by the defendant, and did not come within the inhibition of article 2302, Rev. Stats., forbidding heirs, legal representatives and others from testifying in certain suits.</p>

<p>1. —Trial—Improper Argument—Withdrawal.</p> <p>Improper remarks by counsel for plaintiff in his closing argument in a suit against a railroad company is not cause for reversal when said counsel at once, upon objection .being made, withdrew the remarks, stating to the jury that they were improper and asking the jury not to consider them and requesting the court to instruct the jury to disregard them, which the court did; and this, though the verdict against the defendant was a large one.</p> <p>2. —Same—Justification.</p> <p>Where, in a suit against a railroad, improper argument is made by counsel for plaintiff, the defendant can not complain when such argument is in response to improper argument by counsel for defendant.</p> <p>3. —Evidence—Sickness and Injury</p> <p>In a suit for damages for personal injuries to his wife, the husband while testifying in his own behalf was asked the, following question: “What is the condition of your wife’s lower limbs now?” To which he replied: “She suffers a great deal now. She is crippled and can not walk. She has been in bed or in the rolling chair and suffering all the time since that accident. Her lower limbs are in a paralyzed condition now.” Held, the question did not call for the opinion of the witness, and the answer was a statement of facts and not an expression of an opinion or a conclusion, and hence the testimony was competent. A witness although not an expert may give his opinion on questions of apparent conditions of the body or mind.</p> <p>4. —Personal Injuries—Efforts for Restoration—Evidence.</p> <p>In a suit by a husband against a railroad company for damages for personal injuries to his wife, the plaintiff proved by medical experts that if the wife was not in a situation to have a change of. scenery and the like to divert her mind, her chances for recovery would be less than under more favorable circumstances. Held, the testimony was not subject to the objection that plaintiff could not recover damages which could be reasonably avoided by proper care and attention.</p> <p>5. —Same—Open Switch—Evidence—Charge.</p> <p>Evidence considered and held to justify the trial court in submitting.to the jury the issue whether or not a railroad switch had been left open by an employee of the railroad company thereby causing the derailment of a passenger train and the injury to plaintiff’s wife.</p>

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

<p>1. —Bills and Notes—Failure of Consideration—Innocent Purchaser—Bank— Deposit.</p> <p>A bank which was a purchaser .for value of time acceptances, having notice of a defense of the acceptor for failure of consideration after its purchase but before maturity of the acceptances, could not avail itself of its right to enforce them as an innocent purchaser where it had funds of the payee on deposit at the time the acceptance fell due, by which it could have protected both itself and the acceptor from loss. But it was otherwise as to such funds on deposit after it had notice of defense but which it permitted to be withdrawn before the acceptance fell due; these it could not so apply to a claim not due.</p> <p>2. —Same—Guaranty Bond—Estoppel.</p> <p>The fact that the maker of acceptances having the right to rescind for fraud the contract of sale for which they were given paid two of them before the fraud was discovered or while making an effort to adjust the dispute over them, will not preclude him from urging his défense against the other acceptances.</p>

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

<p>1. —Street Railways—Construction upon Highways—Constitution.</p> <p>Section 7, of article 10, of the Constitution, is merely prohibitive, but recognizes by implication the right to build' street railways within any city, town or village, or upon any public highway when the consent of those to whom the supervision and control of the streets and highways are confided, is obtained.</p> <p>2. —Public Highways—Constitution.</p> <p>The term “public highways” as used in section 7, article 10 of the Constitution is used to describe some public thoroughfare different from a street in a city, town or village and can not be construed to mean streets, nor can it be held to apply to streets in an incorporated town or village as distinguished from the streets in an unincorporated city, town or village.</p> <p>3. —Same—local Authorities.</p> <p>The Commissioners Court are the “local authorities” in this State within the purview of section 7, article 10 of the ■ Constitution, who have authority to grant permission to build a street railway along a public highway in the country.</p> <p>4. —Street Railway—Intersection of Railroad.</p> <p>A street railway company to whom has been granted by the Commissioners Court of the county the right to construct its road along a public highway can not be prevented by a steam or commercial railroad company from intersecting its track also on said highway.</p> <p>5. —Corporation—Rights Fixed by Charter.</p> <p>The character, rights and duties of a corporation arc fixed by its charter, and these can not be changed by an order of a Commissioners’ Court authorizing it to do acts and perform services which are not warranted by its charter.</p> <p>6.—Street Railways—Acts Construed.</p> <p>Neither the Act of 1901 (Gen. Laws 1901, pp. 255, 256), nor the Act of 1907 (Gen. Laws 1907, p. 23) has reference to street railways.</p>

<p>1.—County School land—Sale by Agent.</p> <p>In 1881 a County Commissioners’ Court made and entered an order wherein it was recited that in the judgment of the court it was for the interest of the county that its school land be sold and the proceeds be invested as provided by law, and to that end it appointed the county judge as agent for the county “with full power to sell all of said school land, either at private or public sale as in his judgment he may deem best for the interest of the county, and to make good and sufficient title to the purchaser or purchasers of said lands; provided that said lands or any part thereof shall not be sold for a less price than $1.50 per acre.” On the same day the court made and entered another order allowing the agent five percent commissions on all sales of said land made by him. Shortly thereafter the agent sold the land for a cash consideration in excess of the minimum price fixed by the court, and executed a deed therefor to the purchaser. Held, the Commissioners’ Court being itself a trustee as to the school lands belonging to the county, it had no authority to delegate its trust or to vest an agent with discretionary powers in effecting a sale of said land, and the sale by the agent was therefore invalid.</p> <p>2. —Same—Cases Reviewed. •</p> <p>•Logan v. Stephens County, 98 Texas, 283, approved. Matagorda County v. Casey, 4 Texas Civ. App., 35; Nichols v. State, 11 Texas Civ. App., 327; Noel v. City of San Antonio, 11 Texas Civ. App., 586; Daniel, v. Mason, 90 Texas, 240, distinguished.</p> <p>3. —Same—Ratification.</p> <p>A Commissioners’ Court having full power and authority under the Constitution and the statutes to sell the county school land, a sale of the same through or by an agent would be a mere irregularity which the court might cure by ratification. It would be otherwise if the court itself did not have the power in the first instance to sell the land, and in such case the doctrine of estoppel would have no application. The authority could not be created by estoppel.</p> <p>4. —Same—Same.</p> <p>Where a Commissioners’ Court sold the county school land through the medium of an agent and accepted, retained and used the consideration for more than twenty years, it will be held to have ratified the unauthorized and illegal sale and to be estopped from recovering the land.</p> <p>5. —Trustee—Employment of Agents.</p> <p>While a trustee may not delegate the exercise of the judgment and discretion reposed in him, he may employ agents to a limited extent to aid him in the execution of the powers intrusted to him, but the "powers of the agent must be restricted to carrying out the will and judgment of the trustee.</p> <p>6. —School Eund—Depletion—Commission to Agent.</p> <p>The fact that a Commissioners’ Court unlawfully allowed an agent who effected a sale of the county school land to retain out of the purchase money the commissions which the court had agreed to pay him, would not affect the power of the court to ratify the acts of the agent in making the sale, nor prevent the purchaser from pleading ratification when the purchaser had no notice of the illegal agreement between the court and the agent when he páid the purchase money.</p>

<p>1. —Removal of Cause to Federal Court—Waiver.</p> <p>When, during the progress of a trial in a State Court, the cause becomes removable to the federal court by reason of the dismissal from the cause of the resident defendants, the right to removal by the remaining defendant will be waived and lost by its failure immediately upon dismissal of the other defendants to request the court to suspend the trial in order that it might have time to prepare a bond and application for removal. Such defendant will not be allowed to continue the trial and take the chances of a favorable verdict.</p> <p>2. —Torts—Concurrent Jurisdiction.</p> <p>It is well established that the courts of one State have the right to take jurisdiction of causes of action for torts to persons based upon acts or omissions done or occurring in other States where the tort is actionable under the laws of both States. If the laws of the two States are dissimilar the trial court will apply the laws of the State where the cause of action arose.</p> <p>3. —Abatement—Pendency of- Another Suit.</p> <p>The fact that after the institution of a suit in this State for damages for personal injuries, the plaintiff filed suit against the same defendant on the same cause of action in another State furnished no cause for abating the suit in this State.</p> <p>4. —Negligence—Concurring Cause.</p> <p>A defendant is liable for injuries to another when its negligence is merely a concurring and not the sole cause of the injuries.</p>

<p>1.—Contract—Consideration—Abandoning Contest of Will.</p> <p>The withdrawal by the daughter of her pending contest of the probate of the will of her mother leaving her property to her husband, was consideration for his contract to pay to the daughter a part of the proceeds of the property, a contemplated sale of which the probate of the will permitted him to consummate.</p> <p>2. —Parties—Death—Heirs—Pleading.</p> <p>On death of the plaintiff in an action surviving to heirs the latter could be made parties on suggestion of the death. (Rev. Stats., art. 1246). Sucn suggestion formed a part of the pleadings. It was not necessary for the heirs to file new pleadings. They could pz'osecute the action under the original petition, and, it seems could do so in the name of the deceased.</p> <p>3. —Husband and Wife—Homestead.</p> <p>The owner of land having bound himself by contract to pay a part of the consideration from its sale to heirs of his deceased wife, a second wife, who married him after such agreement, acquired no homestead rights in the property or proceeds as against the rights of the heirs of the first under such contract; neither did she incur any personal liability to the heirs, being no pazdy to the contract.</p> <p>4. —Injunction—Perpetuation—Dissolution.</p> <p>On the claim of plaintiffs to the stzm of $1,500 out of a much larger aznouzzt received by defendant on sale of land, a temporary injunction against the disposition of the fund by defendant should not lzave been made perpetual on final judgment. Provision should be made for its dissolution on payment by defendant of the sum to which plaintiffs were held entitled.</p> <p>5. —Minors—Judgment—Payment to Next Friend.</p> <p>A judgment in favor of minors suing by next friend should not be made payable to the latter without bond given by him as required by article 3498w, Revised Statutes; it was proper to make it payable to the sheriff, to be disbursed by him under direction of the court.</p> <p>6. —Appeal—Reformation of Judgment—Costs.</p> <p>Where the judgment appealed from is reformed and affirmed the appellees were liable for costs, and being minors it was proper to direct the payment of such costs out of the sum recovered by them.</p> <p>ON BEHEABING.</p> <p>7. —Contract—Statute of Frauds.</p> <p>A contract to pay to another a certain sum out of the proceeds of land to be sold is one for the payment of money, not for the sale of land, nor required to be in writing.</p> <p>8. —Appeal—Findings.</p> <p>Findings for appellant on certain special issues are immaterial where the findings on others in favor of appellee require a judgment in his favor.</p>

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

<p>1. —Brokers—Division of Commissions.</p> <p>Where a broker or land agent has the agency to sell a certain tract of land and agrees with another broker to divide with him the commissions or compensation for effecting a sale in the event such other broker produces a purchaser for the land, said brokers are not partners in a legal sense so that either would be bound by the acts of the other, or that notice to one would be notice to the other. Evidence, as to the relation of brokers to each other in a sale of land, considered and held insufficient to establish a partnership.</p> <p>2. —Same—Defect in Title—Knowledge of Broker—Evidence.</p> <p>A broker is not entitled to a commission on the purchase price of land when the sale fails because of a defect in the title, of which defect the broker had notice or was charged with notice at the time he entered into the contract to sell the land. Evidence considered, and held sufficient to put a broker upon notice that the title he undertook to sell was defective. •</p> <p>3. —Title—Representation.</p> <p>A statement by an owner of land that he had owned it thirty or forty years and for that reason he thought the title was good, was not equivalent to a representation that the title was in fact good.</p> <p>4. —Estoppel—Pleading.</p> <p>In a suit by a land agent for commissions on a sale of land, the defendant answered in substance that the plaintiff was estopped from claiming more than fifty cents per acre because after the purchaser, produced by plaintiff, had offered fifty cents an acre more than the price stipulated for by defendant, and after said offer had been rejected by defendant and before defendant had himself sold the land at a better price, the plaintiff demanded of defendant fifty cents per acre as his compensation under their contract, and defendant was thereby led to believe that plaintiff would demand no more than that amount in full of his claim. Held, the answer was not good as a plea of estoppel and an exception thereto should have been sustained.</p> <p>5. —Broker—Contract—Sale by Owner.</p> <p>When a tract of land is sold by the owner himself upon terms different from those specified in his contract with a land agent, the agent would not be entitled to receive the'' compensation or commission named in the contract. The contract could not be the basis of his action.</p> <p>6. —Same—Breach by Owner.</p> <p>Upon the wrongful refusal by the owner to complete a sale of land made by an agent in accordance with the terms of a contract between them, the owner thereupon became liable to the agent in the amount he would have been entitled to under the contract if the owner had ratified the sale, and the rights of the agent would not be changed or affected by a subsequent sale made by the owner himself upon different terms from those contained in the contract between the owner and the agent.</p> <p>7. —Appeal—Refusal of Charge—Assignment of Error.</p> <p>Where an assignment of error is based upon the refusal of the court to give a special charge, and the charge is not copied or referred to in the statement following the assignment, the assignment will not be considered. And so, when the record does not show that appellant made any request in the trial court that the court instruct the jury as indicated in an assignment of error.</p> <p>8. —Trial—Submission of Case—Harmless Error.</p> <p>Where an appellant has judgment for. the full amount to which he ia entitled under the pleading and the evidence, any error in the submission of the case to the jury would not be cause for reversal.</p> <p>9.—Broker and Principal—Contract—Termination by Principal.</p> <p>Although the owner of land stipulated in his contract with a land agent that he, the owner, should have the right to terminate the agency at any time, such right could not be exercised by the owner to the prejudice of the agent after the agent had found and produced a purchaser ready, able and willing to buy the land on the terms specified in the contract of employment.</p>

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

<p>1. —Homestead—Designation—Intent to Occupy.</p> <p>Intention alone is not sufficient to impress upon unoccupied premises the homestead character. It must be accompanied by some conduct or overt act on the part of the claimant that may justly be considered reasonable diligence in carrying into execution the intention to actually use and occupy the premises for some of the purposes of a home.</p> <p>2. —Same—Cases Discussed.</p> <p>Gardner v. Douglass, 64 Texas, 78, and Scott v. Dyer, 60 Texas, 135, distinguished, and numerous Texas cases on homestead discussed and reconciled.</p> <p>3. —Homestead—Designation—Case Stated.</p> <p>The head of a family, a carpenter and not a farmer, owning and residing on a house and lot in town, purchased a small farm in the country, partly improved and having a dwelling house. This he subsequently mortgaged, designating the premises he occupied in town as his residence. The latter he subsequently sold and abandoned. His judgment creditors levied executions on the farm, and he obtained injunction against the sale on the ground that it was homestead. At the time he sold the town residence, the farm was under lease, which subsequently expired. He let the premises again for a year and removed with his family to another town to follow his trade there. He testified to a declared intention from the time of such sale to make the farm his home when he could make money to pay off the indebtedness and the conditions should be such that he could make a living for his family there, but to no definite time for such removal nor to any act done toward carrying out his intention. Held, that the proof showed no homestead right in claimant, and final judgment should be rendered on appeal dissolving the injunction.</p>

<p>1. —Pleading and Proof—Judgment without Pleading.</p> <p>In a suit for damages to a crop of rice caused by the appropriation by the defendant of all the water in an adjacent stream, and wherein plaintiff alleged that he was deprived of the water by a dam built by defendant across a certain prong of the stream, but the evidence showed that the damage was not caused by the building of said dam but by the building of dams on a different prong of the stream, a judgment for plaintiff was not warranted by the pleading.</p> <p>Facts proved but not alleged can not form the basis for a judgment.</p> <p>2. —Riparian Rights—Use of Water.</p> <p>Each riparian owner has equal rights in the stream of water which flows by him, but the use of each must be reasonable as regards the rights of others; what is such reasonable use is a question of fact for the jury in each case. The right to take is not only to use the water as it flows by, but also to store it in reservoirs or confine it for future use after it has ceased to flow, provided this can be done consistently with the rights of lower owners.</p>

<p>1.—Carrier oí Freight—Delay in Delivery—Special Damages—Hotice.</p> <p>After a shipment of freight has arrived at its destination and is in the possession and control of the carrier, notice then given to the carrier of special damages likely to accrue to the consignee by delay in the delivery of said freight, is sufficient to render the carrier liable for damages thereafter accruing. The rule that such notice must be given at the time the goods are received for transportation is not applicable in such case.</p> <p>2.—Conversion of Property—Value—Insufficient Evidence.</p> <p>Where, in a suit for the value of a carload of coke converted by the defendant, the only testimony as to its value was that of witnesses who on cross-examination admitted that théy had not seen the coke and did not know its quantity or quality except from the invoices in the possession of the plaintiff, the evidence as to the value of the property was insufficient to support a verdict against the' defendant.</p> <p>3.—Same—Special Damages—Insufficient Evidence.</p> <p>Where the testimony showed that plaintiff was simply delayed in filling an order for work by reason of the failure of defendant to promptly deliver a carload of coke, but that the order was subsequently filled and no loss of profit resulted from the delay, the testimony was insufficient to support a verdict for special damages because of said delay.</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 Cooke County. Tried below before Hon. R. E. Carswell, Special Judge.</p>

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

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

Á finding as a conclusion of fact by a trial judge that a certain deed conveyed to the grantee all the right, title and interest of the grantor in a certain league of land, including the land in controversy, was not in violation of the statute which requires conclusions of fact and law to be separate. 2. —Limitation—Title—Deed or Option.

<p>1.—Evidence—Seconded Deed—Acknowledgment before Unauthorized Officer—’ Amended Statute of 1807.</p> <p>A deed to land in Texas acknowledged in another State before a justice of the peace, an officer not authorized by the law of Texas to take acknowledgments, but on record for more than ten years without the assertion of adverse claim, was admissible in evidence without proof of its execution, when offered by defendant in an action of trespass to try title to show an outstanding legal title in the grantee, as against plaintiffs who claimed under a subsequent deed from the same grantor.</p> <p>Í3.—Same.</p> <p>The words “acknowledged in the manner required by law,” in" article 2312, Revised Statutes, and in the second clause of the amendment to that section by . the Act of April 23, 1907, Laws 30th Leg., p. 308, referred to the authority of the officer to take the acknowledgment as well as to the form of certificate required, and the amendment made such deeds, where recorded for ten years, admissible without proof of their execution, though acknowledged before an unauthorized officer.</p> <p>3.—Limitation—Tax Deed.</p> <p>A deed under tax sale will not support limitation by possession, use, etc., for five years under a recorded deed, until the expiration of the two years given the owner in which to redeem; possession under such deed was not adverse to the owner during the time allowed for redemption.</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 Grimes County. Tried below before Hon. T. P. Buffington.</p>

<p>1. —Delay in Delivering Telegram—Prolongation of Anxiety.</p> <p>An exception was properly sustained to a petition in a suit against a telegraph company for damages arising from delay in delivering a message when it appeared from the allegations of the petition that the anxiety and mental anguish suffered by the plaintiff was not caused by but merely prolonged by, the negligence of the defendant.</p> <p>2. —Jurisdiction—Amount in Controversy.</p> <p>When, by sustaining an exception to a count in a petition, the amount in controversy is reduced below the jurisdiction of the court in which the case is pending, and the objection is not cured by amendment, the suit is properly dismissed.</p>

<p>1. —Promissory Note—Oral Promise of Payee.</p> <p>An oral promise by the payee to the payer, made at the time a note is executed, not to enforce the payment of the note according to its tenor and effect, would destroy the obligation evidenced by the written instrument, and would therefore be no defense to a suit upon the note.</p> <p>2. —Same—Extension of Time—Eelease of Surety.</p> <p>The extension of an interest bearing debt for a definite period of time upon an agreement between the payee and payer based upon a consideration, will discharge a surety upon the debt, he not being a party to the agreement.</p>

<p>1. —Sale—Refusal of Purchaser to Receive—Damages—Charge.</p> <p>In an action to recover back money advanced for the purchase of cattle, which it was alleged the seller had failed to deliver, the latter alleged their tender to the purchaser and damages by expense, loss and injury to cattle in gathering them. The evidence was conflicting as to whether the cattle tendered were such as the contract called for, but there was no evidence of any damages alleged by defendant. Held, that a peremptory instruction to find for plaintiff the amount of the money advanced was proper.</p> <p>2. —Same—Election of Remedies—Damages—Pleading.</p> <p>The seller, when the purchaser refuses to receive and pay for the thing sold, may hold it as property of the purchaser and sue for the price; or foreclose his lien therefor by a fair sale of it: or treat the property as his own and sue for damages, recovering in the latter case the difference between the market value and contract price, if any, and any special damages by the failure of the purchaser to comply. But if he elects this latter remedy he must prove the damages as alleged, in order to recover.</p>

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

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

<p>Arbitration—Award Conclusive.</p> <p>Upon the termination of a partnership the differences of the partners as to their rights growing out of the partnership were submitted by the partners to a common law arbitration, and upon rendition of an award the partners against whom it was rendered complied with the same by paying to the other partners the amount of money awarded to them; thereafter the losing partners brought suit against the other partners for an accounting of the partnership matters and for a balance alleged to be due the plaintiffs and appropriated by the defendants, held;</p> <p>(a) Awards by arbitrators -chosen by parties to a controversy are regarded with favor in law and, in the absence of fraud, mistake or misconduct, are final and conclusive as to all matters embraced in the agreement, and are a bar to a subsequent suit upon the same matters.</p> <p>(b) Although the arbitrators may have erred in their decision, that would furnish no reason for vacating the award if the error was an honest one.</p> <p>(c) The fact that by a rule of procedure adopted by the arbitrators the parties to the controversy were not allowed to be present when other witnesses were examined, would not be cause for vacating the award when the parties were informed of the rule at the outset and acquiesced therein.</p>

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

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

<p>1. —School District—Formation—Change.</p> <p>When a majority of the citizens residing in a certain territory in a school community county petition the Commissioners’ Court of said county in the manner prescribed by law to organize said territory into a school district, and the said court, after hearing evidence, grants the petition and orders that the territory described in the petition be created into a common school district with the name, metes and bounds as prayed for in the petition, such action on the part of the court constitutes said territory a common school district, with all the privileges appertaining to such districts; and the boundaries of the same can not be changed without the consent of a majority of the legal voters in all districts aifected by the change.</p> <p>2. —Same—Mandamus—Pleading.</p> <p>In a petition for mandamus to compel the members of a Commissioners’ Court and the superintendent of public instruction to recognize a certain territory as a school district, and to require said officers to perform the duties prescribed by law appertaining to said district, an averment that said district was legally formed, and that a proposed change in the boundaries of the same was without authority and void, was sufficient, in the absence of an exception, to admit proof of" any fact or facts that rendered void the' action of the Commissioners’ Court in changing the boundaries of the district; as, for instance, that the change was made without the consent of a majority of the voters in the district.</p> <p>3. —Same—Ministerial Duties.</p> <p>When a school district has been legally established, the duty resting upon the Commissioners’ Court and the superintendent of public instruction to recognize it and accord to it all the rights and privileges of a school district, involves no judicial discretion, but is plainly ministerial, and mandamus will lie to compel the performance of the official duty.</p> <p>4. —Same—Attempted Ratification—Evidence.</p> <p>The acts of the patrons in an illegal school district, in electing or appointing school trustees, employing a teacher, and conducting a school therein, will not validate the unlawful act of the Commissioners’ Court in establishing the .boundaries of the school district, and testimony to prove such acts on the part of the patrons and trustees is properly excluded as irrelevant and immaterial.</p> <p>5. —Mandamus—Judgment—Ministerial Duties.</p> <p>When the duties of an office are prescribed by law and are purely ministerial, it is not necessary that the judgment of the court granting a petition for mandamus should specify the duties to be performed and expressly direct the officers to perform the same.</p> <p>6. —Same.</p> <p>The issue made by the pleading being whether or not an election for school trustees was legally held, a judgment which declares vacancies to exist in the trusteeships and directs that the vacancies be filled, in effect declares that the election was illegal. (</p> <p>7. —Same—Judgment—Construction.</p> <p>A judgment against individuals, naming them, as county judge and county commissioners, "composing the Commissioners’ Court” is a judgment against the court and not against the persons in their individual capacity.</p>

<p>1. —Building Contract—Delay—Notice to Perform.</p> <p>Defendant, who had failed to perform his contract to construct a building for plaintiff within the time specified therein, the action being for damages by such delay, could not show as a defense that he had told plaintiff, during the progress of the work that he would shortly complete and deliver it upon notice from. 2>laintiff that he desired to use or rent it. He could not, by such course impose on plaintiff a duty to give such notice not provided for by the contract, and no doctrine of contributory negligence of plaintiff in failing to give notice to him to perform was applicable to the case.</p> <p>2. —Nominal Damages—Charge—Costs—Remittitur.</p> <p>Where plaintiff, under a given state of the evidence, was entitled to only nominal damages, it was error to charge the jury in such event to find for defendant; and this was not cured by defendant remitting his recovery of costs under such charge and having the costs of suit taxed against himself.</p> <p>3. —Evidence—Damages—loss of Rents.</p> <p>Where plaintiff sued for loss of the rental value of a building during the period of defendant’s delay in performance of his contract to construct it within a given time, not for loss of its use in his own business, evidence that plaintiff had gone out of business and did not need it for his own use was irrelevant in defense, and was improperly admitted.</p> <p>4. —Evidence—Relevant Circumstances.</p> <p>Circumstances which considered separately may have little probative force, may have, in combination, a material bearing on the issues, and be therefore admissible.</p>

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

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

<p>Motion to dismiss writ of error from the District Court of Taylor County.</p>

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

<p>Receivership—Ratable Distribution of Assets—Powers of Court.</p> <p>A ‘corporation chartered and authorized to do business only in Texas acquired the plant and assets of a corporation authorized to do a similar business in Louisiana, and thereafter operated said plant as a separate concern and without change of its name; the Texas corporation was placed in the hands of a receiver; creditors who had dealt with the Louisiana corporation and become its creditors as such, had a receiver appointed by the Louisiana courts for the Louisiana plant, and the proceeds of the sale of that property was by order of said court applied as credits upon the claims of said creditors alone to the exclusion of the Texas creditors; afterwards the same creditors sought to intervene in the receivership proceedings in Texas for the balance due on their claims. Held, the Texas court rightly refused to permit them to intervene unless they should pay to the Texas receiver within a fixed time what had been received by them through the receivership in Louisiana. The Texas corporation was the equitable owner of the property in Louisiana as well as of that in Texas, and the very purpose and soul of a receivership is to secure an equal sharing of the assets of the insolvent, which said creditors were seeking to avoid.</p>

<p>1. —Findings of Fact—Harmless Error.</p> <p>Appeal from the District Court of Red River County. Tried below before Hon. Ben H. Denton.</p>

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

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

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

<p>Appeal from the District Court of Knox County. Tried below before Hon. Chas. E. Coombes. ■</p>

<p>1. —Contract—Change—Principal and Agent.</p> <p>A bid to do certain work at a certain price, an acceptance of the bid, and notice to the contractor of the acceptance, constituted a complete contract; and, in the absence of evidence that a building committee appointed by the employer had authority to change the contract by a subsequent agreement tending to excuse the contractor from a compliance with the terms of his contract, the admission of evidence that such change was made by said committee, constituted reversible error in a suit between the contractor and the employer concerning the contract price.</p> <p>2. —Requested Charge—Omission of Issue.</p> <p>A requested charge which authorizes a verdict for defendant if the jury find in his favor upon one of several material issues in a case, thus ignoring the other issues, is properly refused, and so of a requested charge which is substantially covered by the main charge.</p>

<p>1. —Railroads—Injured Employee—Medical Attention—Rules and Regulations.</p> <p>In a suit by an injured employee against a railroad company for damages resulting from the negligence of the company in failing to promptly transport him to the company hospital and furnish him with medical treatment as by contract the company was bound to do, evidence considered and held to justify the court in refusing a charge requested by the defendant to the effect that if the company complied with its established rules for the government of its hospital department in the matter of transportation and medical treatment, to find for the defendant. Under the circumstances it was the duty of the defendant to exercise ordinary care to promptly furnish the plaintiff with medical treatment without regard to its hospital rules and regulations.</p> <p>2. —Same—Proper Charge.</p> <p>The issue being whether or not a railroad company had exercised reasonable diligence and care in furnishing an injured employee with medical attention, charge requested by the defendant company considered, and held to have properly grouped the facts which defendant was entitled to have specifically submitted to the jury and which if found to be true would have exonerated it from liability, and its refusal was, therefore, reversible error.</p> <p>3. —Depositions—Certificate of Officer—Insufficiency—Case Criticised.</p> <p>The caption to the deposition of a witness was as follows: “Pursuant to the attached commission and interrogatories, I, E. A. Boyd, a notary public within and for the county of Pittsburg, State of Oklahoma, summoned before me Dr. W. 0. Graves, who being first duly sworn to testify the truth, the whole truth and nothing but the truth, testified as follows:” then followed the answers of the witness to the direct and cross interrogatories, duly signed by him, to which the officer attached his .jurat as follows: “Subscribed and sworn to before me this 5th day of September, 1908. My commission expires March 31, 1911. (signed) E. Allen Boyd.” Attached to the deposition was the following certificate : “I, E. Allen Boyd, a notary public in and for Pittsburg County, Oklahoma, do hereby certify that the above named Dr. W. C. Graves, the witness whose name is subscribed to the foregoing depositions, was by me first duly sworn to testify the truth, the whole truth and nothing but the truth in the case mentioned in the caption, and that the deposition by him subscribed was reduced to writing upon a typewriter by me in the presence of said witness and the same was subscribed by him in my presence,' said deposition being taken upon the attached direct and cross interrogatories and pursuant to the attached commission . . . (signed) E. Allen Boyd, Notary Public.” Held, said deposition should have been quashed on motion on the ground that the officer before whom they were taken did not certify that the answers were sworn to before him by the said witness. Missouri, IC. & T. By. Co. v. Hennesey, 20 Texas Civ. App., 316, held, not in accord with the decisions of the Supreme Court.</p> <p>4. —Evidence—Expert—Inadmissible Opinion.</p> <p>The testimony of one doctor that in his judgment the proper thing for another doctor to have done under particular circumstances when notified of an injury to his patient, was to go immediately and attend to the case, was not admissible as expert testimony.</p> <p>5. —Evidence—Hearsay—Statement of Messenger.</p> <p>What a messenger may report to the person who sent him on an errand is hearsay and incompetent evidence when repeated by the person who sent him.</p> <p>6. —Same—Quoting Medical Authority.</p> <p>One medical expert should not be permitted to testify to what another medical expert says upon a certain subject. Such testimony is hearsay.</p> <p>7. —Charge—Withdrawal of Issues—Error.</p> <p>When special charges are given, an instruction by the court to the jury to disregard all of the issues raised by the pleadings other than those “submitted in the preceding paragraphs of this charge” is improper in that it may cause the jury to disregard the special charges.</p>

<p>Damages—Injury by Fright—Agency—Question of Fact.</p> <p>A railroad company’s special agent and detective accompanied by the company’s station agent and his employee, went upon plaintiff’s premises about midnight in search of evidence against plaintiff on a charge of theft of the company’s property; the plaintiff was not at home and his wife discovering their presence on the premises was very much frightened and humiliated; said parties entered the premises without the consent of plaintiff or his wife and without legal process. In a suit by the husband against the company for damages resulting from the fright and humiliation of his wife, evidence considered, and held to raise the issue whether or not said detective and the others were acting within the scope of their authority in entering upon plaintiff’s premises, and whether or not the shock and its injurious results were proximately caused by the acts of said parties, and whether or not such results ought to have been foreseen as a natural and probable consequence of said acts; and the court therefore erred in instructing a verdict for defendant.</p>

<p>1. —Carrier of Passengers—Defective Platform and Stepping Stool—Charge.</p> <p>In a suit for damages for personal injuries received by a passenger while alighting from a railroad train, said injuries being caused by an uneven brick pavement and a defective stepping stool, charges considered and held not subject to the objection that they imposed upon defendant a higher degree of care and foresight than is required by law.</p> <p>2. —Same—Degree of Care.</p> <p>A public carrier is not only required to provide reasonably safe means whereby its passengers may alight from its cars, but the safest which are known and have been tested.</p> <p>3. —Trial—Refusal of Charges.</p> <p>The refusal of requested charges is not error when the law embraced in such charges has already been given to the jury in other charges. Charges considered and held properly refused for this reason.</p> <p>4.—Carrier of Passengers—Defective Stepping Stool—Evidence.</p> <p>The issue being whether or not certain stepping stools furnished by a railroad company as a means for passengers to alight from its trains, were defective, the testimony of witnesses that they had on different occasions seen said stools turn over or slip about when passengers stepped on them in alighting from the trains, was admissible.</p>

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

<p>Promissory Note—Maturity—Contingency.</p> <p>A promissory note was executed for a certain amount payable at a certain time, but contained the stipulation that it was to “remain in full force until paid according to the contract under which it was given.” The contract referred to was for the sale of an interest in a mill and gin company, the vendees being the makers of the note above referred to, and, after providing that the vendees should be allowed to make certain improvements in the property, contained the following provisions: “It is further agreed and understood by the parties of the first part (the payees in the note) that after the above, together with the operating expenses, have been paid, and not until then, shall they have any claim on the net earnings of the plant . . . the same to be paid as the net earnings of .the gin may be able to pay them as per face of note.” In a suit upon the note, held, that the petition was not subject to a demurrer because it did not allege that there were net earnings which could be applied to the payment of the note. The instruments should be construed together, and when so construed the right to pay out of the net earnings was only a privilege granted to the payers to pay such earnings on the contract at any time before the maturity of the note, and said amount not having been paid at or before the due date named therein, it became a certain demand for money and the makers were liable therefor.</p>

<p>1. —Personal Injuries—Collision of Street Cars—Pleading.</p> <p>In a suit for damages for personal injuries sustained by plaintiff while riding upon the bumper of a street car, pleading of plaintiff considered, and held not to show prima facie negligence or assumed risk on his part, and hence not subject to general demurrer.</p> <p>2. —Same—Charge—Practice.</p> <p>Where a charge is correct as far as it goes but fails to submit a phase of the case which appellant deems important, appellant can not complain in the absence of a request for a charge covering the point.</p> <p>3. —Street Car—Passenger.</p> <p>Evidence considered and held to show that plaintiff was a passenger on a street car although riding on the bumper on the outside of the car, and hence entitled to the care due by a carrier to a passenger.</p> <p>4. —Contributory Negligence—Burden of Proof—Charge.</p> <p>Upon an issue of contributory negligence the court charged the jury as follows: "But the burden of proof to establish contributory negligence as pleaded by defendant, rests upon the defendant, but in determining whether defendant has discharged such burden you will look to all the facts and circumstances introduced in evidence before you regardless of whether the same were introduced by the plaintiff or the defendant or both.” Held, not materially different in legal' effect from a charge that the jury should look to all such evidence in determining whether plaintiff had been guilty of contributory negligence.</p> <p>5. —Appeal—Brief—Rule 31.</p> <p>When assignments of error and the propositions thereunder are not followed by statements from the record sufficient to explain and support the proposition, the assignments are not entitled to consideration.</p> <p>6. —Assumed Risk—Evidence—Charge.</p> <p>In the absence of evidence that the bumper of a street car was a place of obvious and certain danger, it was not error for the court to refuse an instruction that the bumper of a car was a dangerous place for a person to attempt to ride upon, and that the plaintiff, who was injured while riding thereon, assumed the risk of danger of such position, although he was there by invitation of the defendant.</p>

When a finding of fact by a trial court is attacked by an assignment of error on the ground that it is without evidence to support it, the appellant must show or allege in the statement of the evidence under such assignment that the evidence therein set forth is all the evidence bearing on the fact; otherwise the assignment will be overruled. 4. —Contract of Sale—Possession of Land—Rent.

<p>Appeal irom the District Court of Bell County. Tried below before Hon. John D. Robinson.</p>

<p>1. —Appeal—Filing Bond—Resident Appellant.</p> <p>When an appeal bond is not filed by a resident appellant within twenty days after the end of the term of the trial court, a Court of Civil Appeals has no jurisdiction of the appeal.</p> <p>2. —Same—Non-resident Appellant.</p> <p>A nonresident appellant has thirty days after notice of appeal within which to file his appeal bond only in case the term of court at which the judgment was rendered might continue by law longer than eight weeks.</p>

<p>1.—Mental Suffering—Damages—Evidence—Transportation of Corpse.</p> <p>In an action for mental suffering caused by delay in transporting the corpse of plaintiff’s wife, it was improper to admit plaintiff’s testimony that the conductor told him that the body was on the same train in which he was then traveling toward the place for interment, it being on another and later train, which fact he first discovered on reaching the destination. Such misstatement did not tend to aggravate his mental suffering—rather the contrary.</p> <p>2. —Same—Suffering of Relatives.</p> <p>Plaintiff suing for damages by delay in the transportation of the body of his wife by rail to the place of interment, could not recover by reason of mental suffering sustained by his daughter and sister-in-law by reason of such delay, and evidence thereof was improperly admitted.</p> <p>3. —Evidence—Error—Trial by Court.</p> <p>The admission of improper evidence over objection, by the court trying a cause without a jury, will be held cause for reversal where it is not shown to have been excluded from consideration by the court in making his findings.</p>

<p>Appeal from the District Court of Grimes County. Tried below before Hon. S. W. Dean.</p>

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

<p>1. —Vendor and Purchaser—Lien—Payment—Subrogation—Legal Title.</p> <p>One who furnished money to a purchaser of land to discharge notes secured by a vendor’s lien retained in the deed by a former vendor and of which such purchaser had assumed the payment, under an agreement with the latter subrogating him as security for the money so furnished to the lien securing the notes so discharged, acquired a lien only, and not the superior legal title. He could not rescind the former sale for nonpayment, but was compelled to resort to foreclosure of his lien, to which action a subsequent purchaser of the land was a necessary party; and hence could not recover in an action of trespass to try title, the land and the timber growing therein from one who had purchased such growing timber from the holder of the title of the original vendee. The latter was entitled to recover the timber and damages for the issuance, in such action, of an injunction restraining him from removing it.</p> <p>2. —Same—Case Stated.</p> <p>A. sold land to B., reserving in his deed a lien to secure notes given for the purchase money. B. sold to 0., who assumed the payment of such purchase money notes. 0. conveyed the growing timber on the land to D. and after-wards sold the land itself to 35., who in turn assumed the notes, and who furnished the money with which 0. paid them off. Held, that E., if entitled "to subrogation to the lien of the notes by arrangement with 0., did not thereby become the legal owner of the timber as against D., nor entitled to recover it from him, together with the land, in an action of trespass to try title.</p> <p>3. —Lien—Payment—Subrogation.</p> <p>Where notes for purchase money of land were paid by a subsequent purchaser, who had assumed them, with money advanced for the purpose by another, the lien is discharged, in the absence of an agreement between them that it shall be kept alive for the protection of the person so advancing the money, and he be subrogated thereto. <</p> <p>4. —Findings of Court—Presumption.</p> <p>Facts supported by evidence, and not inconsistent with the facts found, will be presumed in support of the judgment rendered.</p> <p>5. —Deed—Failure of Consideration.</p> <p>Failure of consideration for the conveyance of an interest in land does not make the conveyance ipso facto void; it merely entitled the grantee to rescind, and is not available to others to defeat the title.</p> <p>6. —Minor—Deed—Disaffirmance.</p> <p>The deed of a minor is voidable only, subject to repudiation within a reasonable time after attaining majority, and then only on returning the consideration, if still in the minor’s possession.</p> <p>7. —Same.</p> <p>Evidence of probate proceedings and conveyances considered and held to show an intention to ratify rather than to repudiate a conveyance of land by minors.</p> <p>8. —Tenants in Common.</p> <p>One owning an insterest in growing timber only as tenant in common thereof with the owner of the land, had a right to cut and remove the timber to the extent of his interest.</p>

<p>1.—Railroads—Connecting Carriers—Liability—Statute Construed.</p> <p>In the absence of pleading and proof that a shipment of livestock was received by a common carrier from a connecting carrier under a through bill of lading, the second carrier would not be liable for damages which occurred while the stock was in the possession of the first carrier. In spch cgse articles 331af Rev, Stats, does not apply.</p> <p>2. —Same—Recovery Over.</p> <p>Where a connecting or second carrier 'was not liable to the plaintiff for damages to a shipment of livestock, it would not be entitled to recover over against the first carrier a sum wrongfully recovered against it by the plaintiff; and this although the damage to the stock in fact occurred on the road of the first carrier.</p> <p>3. —Justice Court—Written Pleadings.</p> <p>Parties are not required to file written pleadings in a Justice Court, but having done so they are bound by the allegations as in a court of record.</p> <p>4. —Same.</p> <p>Pleadings in a Justice Court are not required to be as definite and specific as in courts in which written pleadings are required, but even in a Justice Court a pleading which asks a specific and definite relief without any prayer for general relief will not support a judgment granting entirely different relief from that asked for.</p> <p>5. —Same—Recovery Over—Void Judgment—Injunction.</p> <p>In a suit originating in a Justice Court against two connecting carriers for damages to a shipment of cattle, the second carrier answered that the entire damage occurred on the road of the first carrier, and prayed that no judgment be rendered against the second carrier but that judgment for damages sustained by the plaintiff be rendered against the first carrier; judgment was rendered in favor of plaintiff against the second carrier for damages to the cattle, and in favor of the second carrier over against the first carrier for the same amount. Held, because there was no pleading to support the judgment over against the first carrier the judgment against it was void, and injunction would lie to restrain execution thereon.</p>

<p>1. —Fraudulent Conveyance—Gift to Wife—Increase of Cattle.</p> <p>The issue being whether or not certain land levied upon as community property, was in fact community property or the separate property of the wife because bought with the proceeds of the increase of cattle which were the separate property of the wife, said increase having been given to her by a debtor husband, evidence, as to the solvency of the husband at the time of this gift, considered, and held to require the submission of the issue to the jury, and a peremptory instruction by the court was reversible error.</p> <p>2. —Same—Statute Construed.</p> <p>Under the provisions of article 2545, Batts’ Civ. Stats, a conveyance not upon a valuable consideration is prima facie void as to prior creditors and the grantee therein has the burden of proving that the grantor possessed at the time property within this State subject to execution sufficient to pay his existing debts; and by the words “subject to execution” is meant that the grantor retained the open and visible ownership of property of such value that when subjected to forced sale it would yield a sufficient sum to pay all existing debts and the costs of collection.</p> <p>3. —Practice—Peremptory Charge.</p> <p>A party introducing evidence sufficient to support a verdict in his favor is entitled to have the issue submitted to the jury, however strong the contradictory evidence might be, and in determining the propriety of directing a verdict the evidence must be viewed from a standpoint most favorable to such party, disregarding conflicts and contradictions.</p> <p>4. —Fraudulent Conveyance—Gift—Husband and Wife.</p> <p>An agreement by a husband to give to his wife the increase of her cattle can have no effect as against existing creditors of the husband after the time the husband became insolvent, and the placing of the wife’s brand upon such increase after the date of insolvency will not render the gift valid.</p>

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

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

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

<p>1. —Promissory Note—Married Woman—Pleading.</p> <p>In a suit against a husband and wife as makers of a promissory note and against the endorser of the nóte, the husband and wife made default, and judgment was rendered against the husband and the endorser but not against the wife; there was nothing in the pleadings of either the plaintiff or the endorser to disclose the fact that the two makers of the note were husband and wife, but the court found such to be the fact. The endorser, by cross plea, prayed for judgment over against the makers, but the record failed to show that any notice of this cross plea was served on them.. Held, while the plaintiff might have complained of the failure to render judgment against the wife, the endorser could not do so.</p> <p>2. —Co-defendant—Cross Plea—Notice—Default.</p> <p>. Where, in a suit against the maker and endorser of a promissory note the maker fails to appear and judgment is rendered against him by default, the court is without jurisdiction to render judgment awarding affirmative relief prayed for by the endorser over against the maker in the absence of service of citation upon the maker on such cross plea; and upon appeal service of citation or appearance by the maker must be shown otherwise than by recitals in the judgment.</p> <p>3.—Promissory Note.—Maker and Endorser—Cross Plea—Default—Pleading.</p> <p>In a suit against the maker and endorser of a promissory note, the maker failed to appear and judgment was rendered against him by default; the endorser answered, among other things, that certain policies of fire insurance had been hypothecated by the maker with the plaintiff as security for the payment of the note; that the property on which the policies were issued had been destroyed by fire, and prayed that the plaintiff be required to exhaust said security before execution should issue against the endorser; plaintiff’s pleading contained no allegation or prayer concerning said security. Held, because the record failed to show any citation to the maker upon the cross plea of the endorser, the court was without authority to decree a foreclosure of the lien upon the policies of insurance as against the maker of the note in whose favor they were issued.</p>

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

<p>1.—Trial—Application to Postpone—Sufficiency.</p> <p>An application for a second postponement of a trial because of the absence of one of the defendants was supported by the affidavit of defendant’s counsel in which it was stated that counsel needed the presence and assistance of the absent defendant in conducting the defense, and that counsel had just received a telegram from said defendant to the effect that it was impossible for him to be present at the trial on account of sickness in his family. There was no averment that the statement in the telegram was true, nor that counsel could not fully develop the defenses to the suit. Held, there was no error in overruling the application.</p> <p>2. —Trial by Jury—Statutory Requirements.</p> <p>A demand for a jury in a civil case is properly refused where the party making the demand has failed to comply with the preliminary regulations prescribed by statute, and where a compliance with such demand would materially affect the rights of the opposite party. A mere deposit of the jury fee without a demand for a jury brought to the attention of the court, is not a sufficient compliance with the requirements of the statute.</p> <p>A finding of fact by a trial court can not be reviewed on appeal in the absence of an assignment of error based thereon.</p> <p>4. —Promissory Rote—Extension of Time—Conditional Promise.</p> <p>The payee of a promissory note wrote to the payor: “I am willing you should pay the interest when due, and extend the time of payment until January 1, 1909.” Held, the interest not having been paid on January 1st, the promise to extend the time for payment of the principal was not binding.</p> <p>5. —Same—Foreclosure of Lien on Collaterals.</p> <p>Certain vendor’s lien notes having been deposited with a creditor as collateral to secure the note of the debtor, in a suit upon the principal note and for foreclosure upon the collateral, the court properly refused to foreclose the vendor’s lien retained in the collateral notes, but instead foreclosed the lien on the collateral notes themselves and ordered them sold to satisfy the plaintiff’s judgment, the collateral notes not being due.</p>

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

<p>1. —Foreign Corporation—Failure to Pay Franchise Tax—Right to Defend Suit.</p> <p>A foreign corporation which had paid its franchise tax and had a right to do business in this State at the time a suit was filed against it, would not be deprived of the right to defend the suit by the fact that it had failed to again pay said tax which became due pending the suit.</p> <p>2. —Evidence—Expert Testimony—Machinery.</p> <p>Although a witness had qualified as an expert of large experience in the construction of steel buildings, tanks, etc., it was error to permit him to testify that a certain steel elevator building, line of piping and storage tanks were constructed and erected in accordance with the terms of a certain contract.</p> <p>3.—Same—Statement of Fact as Distinguished from Opinion—Case Distinguished.</p> <p>When a witness had testified that the work of erecting a certain building, pipe line and tanks was under his supervision during construction, that he had possession of and was fully acquainted with the contract, agreement and specifications concerning said improvements, and gave the size of the building and tanks; the character of the material used and the manner in which the work was done, which was substantially as called for in the contract, his further testimony that the building, pipe line and tanks were constructed in accordance with the contract, was the statement of a fact and not an opinion or conclusion. Anderson Elec. Light Co. v. Cleburne W., I. & L. Co., 23 Texas Civ. App., 328, distinguished.</p> <p>4.—Evidence—Letter—Proof of Execution.</p> <p>Where the evidence showed that a certain letter offered in evidence against the defendant was on the letter-head of the defendant; that it was entirely typewritten, but that certain initial letters after the typewritten name of the defendant were the initials of the name of defendant’s assistant bookkeeper; that plaintiff received the letter in due course of mail and acted upon the same by sending a man to defendant’s place of business in accordance with a request contained in the letter, the letter was properly admitted .in evidence over the objection that its execution was not sufficiently proved.</p> <p>5. —Parties—Transfer of Claim Pending Suit.</p> <p>When the claim sued upon is transferred after suit filed and pending the suit, it is not necessary to make the transferee a party; the transferee may make himself a party but it is not necessary that he do so.</p> <p>6. —Appeal—Brief—Grouping Assignments.</p> <p>When assignments of error embrace distinct and inconsistent propositions of law, they are not entitled to consideration when grouped and presented together in appellant’s brief. Rule applied.</p> <p>7. —Charge—Mo Evidence.</p> <p>A requested charge submitting an issue not raised by the evidence is properly refused.</p> <p>8. —Contract—Completion of Building—Damages.</p> <p>Where a contract did not stipulate when the construction of certain tanks should be completed, and there was no evidence that they were not completed within a reasonable time, the court properly refused to instruct the jury that the owner was entitled to damages if the tanks -were not completed in a reasonable time.</p> <p>9. —Same—Measure of Damages.</p> <p>Where a contractor undertook to erect only portions of an elevator plant under contracts executed at different times and for different, separate and distinct portions thereof, the measure of damages for failure to complete his contract within a reasonable time would be the rental value of the building during the delay, and not the profits that the owner might have made during such time.</p>

<p>Appeal from the County Court of Liberty County. Tried below before Hon. I. B. Simmons.</p>

<p>Disqualification of Judge—Parties—Daughter-in-law.</p> <p>One of the parties to a suit for debt and foreclosure was a widow who sued as survivor of the community; the debt sued on belonged to the community estate of herself and her deceased husband; the daughter of said widow by her deceased husband was the daughter-in-law of the trial judge. Held, the trial judge was disqualified by reason of his relationship to the daughter-in-law to hear an application for injunction to stay a sale of property under the judgment for foreclosure, and also to hear a motion to dissolve the' injunction when granted by another judge.</p>

<p>1. —Contract—Personal Trust—Assignment.</p> <p>A contract involving the entrusting by one of the management of business transactions to the personal attention of another is not capable of assignment by the latter to a third person unless the former consent to such substitution.</p> <p>2. —Same—Case Stated.</p> <p>M., owning a tract of land on which the site of a new town was located, contracted for a sale thereof to S. & H., who undertook to give their active attention to selling off same to purchasers. The deed to S. & H. was to be placed in escrow, deliverable on the payment of the purchase price by them out of the proceeds of such sales, and M. had the right to forfeit -the contract if they abandoned the prosecution of such sales for ninety days. S. & H. contracted to transfer their contract with M. and rights thereunder to W., and they sued him for damages from his failure to comply with his part of the agreement for such transfer. Held, that the contract was not assignable without consent of M., and plaintiffs must show such consent by M. to entitle them to recover against W; that the failure to show consent of M. to such substitution, he having refused to substitute W. to the contract except upon terms different from those made with S. & H., and which W. refused to accept, was fatal to plaintiff’s right to recover, and an instruction to find for defendant was warranted.</p>

<p>1. —Record of Title—Constructive Notice.</p> <p>Plaintiff suing for the recovery of land was charged with constructive notice of his grantor’s want of title where the facts relating thereto appeared by conveyances in his chain of title, as against defendant’s claim as previous purchaser under a deed recorded but defectively acknowledged and of which he had no actual notice, though he did not introduce nor need to introduce such deeds by which the constructive notice was made to appear in his chain of title.</p> <p>2. —Same—Estoppel.</p> <p>One who purchased land without actual notice of its previous conveyance to another whose deed was recorded though defectively acknowledged, being informed of the existence thereof, made claim against his grantor on the ground that he acquired no title, and received and cashed the grantor’s check for money “in full settlement” for the' land, which however he did not reconvey. Held, that he was concluded thereby and estopped from recovering the land as an innocent purchaser against those holding it under the previous conveyance, though offering to return to his grantor the money paid by him in settlement.</p>

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

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

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

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

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

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

<p>1. —Pleading—Supplemental Answer.</p> <p>The office of a supplemental answer is not to supply allegations which should have formed a part of the original answer, but to reply to new matter in avoidance thereof set up in a supplemental petition. So far as it attempts the former object it is subject to exception.</p> <p>2. —Vendor’s Lien—Failure of Title—Executed Contract—Pleading.</p> <p>A deed, though reserving an express lien for purchase money notes, is an executed contract, so far as concerns the right of the vendee to avoid payment by reason of failure of title. A plea setting up such defense must show, not merely that the title of the vendor apparent of record was imperfect, but that the superior title was in another and the vendee liable to eviction, and that he had not undertaken to accept an imperfect title in reliance on the warranty of his grantor.</p> <p>3. —Same—Contract for Title Good of Record.</p> <p>Though the vendee might defend against payment of purchase money on failure of the vendor to furnish abstracts showing good title in hiipself by the records, which defense he had plead, no error in this respect appeared from sustaining exceptions to a further and insufficient plea by him of actual failure of title. Error in disallowing the former defense must be based on the rulings on that issue, such as the rejection of evidence offered to sustain it.</p>

<p>1. —Evidence—Declarations of Assignor of Land Certificate—When Inadmissible.</p> <p>Testimony as to the declarations of the assignor of a land certificate, made after the death of the assignee and in the absence of his heirs and assigns and when the assignor was not in possession of the land located by virtue of said certificate, to the effect that the assignment of said certificate by her was in trust, or was intended to convey only on undivided interest in the certificate would not be admissible in evidence in a suit between parties claiming under the assignor against narties claiming under the assignee, for the purpose of showing that the title to the whole of the certificate did not pass by the assignment. Such declarations are hearsay and self-serving.</p> <p>2. —Same—General Reputation.</p> <p>The issue being whether or not an assignment of a land certificate, absolute on its face and for the whole certificate, was intended to be a conveyance in trust or for only an undivided interest in the certificate, testimony as to general reputation in the neighborhood of the land was admissible upon the bare fact that the assignor notoriously claimed the land after it was patented; but testimony as to the opinion of the community in general upon the validity of the assignor’s claim was not admissible for any purpose.</p> <p>3.—Presumption of Conveyance—Charge.</p> <p>In a suit by persons claiming under an original grantee of a land certificate, against those claiming as heirs and assigns of an assignee of the certificate and patentee of the land, a charge upon the presumption of a grant or conveyance prior to the adoption of the common land in Texas, considered and approved.</p>

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

<p>1. —Street Cars—Vestibule Act—Constitutional law—Case Distinguished.</p> <p>The provisions of section 1, chapter 112, of the General Laws of 1903, making it unlawful for street railway corporations to operate street cars during certain months without providing screens or vestibules for the protection of the motorman, is in violation of article 1, section 3 of the Constitution of the State, and of section 1, of the Fourteenth Amendment of the Constitution of the United States, in that it imposes duties and restrictions upon corporations operating electric street cars that are not imposed upon natural persons, firms or associations of persons engaged in the same business, and said Act is therefore unconstitutional and void and the penalties imposed thereby can not be enforced. Beaumont Trac. Co. v. State, 46 Texas Civ. App., 576, distinguished.</p> <p>2. —Same—Offense—Uncertainty.</p> <p>Said Act is void also because of tne uncertainty and doubt arising from the language of the Act as to what constitutes an offense thereunder, it being impossible to determine therefrom whether it was the intention of the Legislature to make each trip of each car, or each day’s operation of the cars a separate offense. Courts ought not to be required to make a blind guess at the intention of the Legislature.</p>

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

<p>Appeal from the County Court of Taylor County. Tried below before Hon. T. A. Bledsoe.</p>

<p>Public School Land—Certificate of Occupancy.</p> <p>In an action of trespass to try title to a section of public school land wherein the plaintiff sought to impeach the sale to defendant by "the State by showing that defendant was not at the time of the award to him an actual settler upon his home section, the certificate of the Commissioner of the Land Office as to three years occupancy by the defendant was not conclusive of the question, and the plaintiff should have been allowed to disprove that fact.</p>

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

<p>Easement—Right to Repair.</p> <p>The owner of a pass-way easement across a strip of land has the right +o repair the fences around said land when they fall into decay, so as to prevent his cattle when passing over said land from trespassing upon the adjoining cultivated land of the owner of the fee, and so maintain the full use and enjoyment of the easement. The rights of the owner of an easement are paramount, to the extent of the grant, to those of the owner of the fee.</p>

<p>Personal Injuries—Release—Mental Capacity—Mutual Mistake—Evidence.</p> <p>Where, in a suit against a railroad company for damages for personal injuries resulting in death, the defendant plead in bar of the action a settlement with and a release by the deceased, and the plaintiff replied that the settlement and release were not binding, (1) because of the mental incapacity of the deceased to understand the transaction, and (2) because the same was made under a mutual mistake as to the gravity and extent of the injuries of deceased, evidence considered and held insufficient to avoid the settlement and release.</p>

<p>1. —Note—Indorser—Waiver—Protest.</p> <p>A waiver of protest and notice by the indorser of a promissory note has the same effect in fixing his liability as though the protest and notice were duly made. It is not necessary in such case that it be fixed by timely suit or by showing insolvency of the principal at the time of maturity.</p> <p>2. —Note—Action Against Indorser.</p> <p>Action against the indorser of a note whose liability has been already fixed by his waiver of protest and notice, may be maintained without joining the principal maker as defendant, where the residence of the latter is unknown. It is. not necessary to show also that he is insolvent.</p>

<p>1.—Landlord and Tenant—Failure to Give Possession—Damages.</p> <p>A tenant Avho has rented land to cultivate but, after entering upon part has been denied possession of the remainder leased to him, too late in the season to secure other land to work, may recover as damages the value of his share of the crop which he could have raised on the premises so withheld from him. Crews v. Cortez, 102 Texas, 111, folloAved.</p> <p>2.—Same—Evidence.</p> <p>To show the yield and value of the crop which a tenant might have raised on premises leased to but wrongfully withheld from him by the landlord, evidence of the amount and value of the crop raised by him on the adjoining land which he received and cultivated under the lease, and of the comparative quality of the two tracts, was admissible.</p>

<p>1. —Master and Servant—Foreman—Injured Employe—Authority to Employ— Surgeon.</p> <p>A construction company was engaged in a building contract at a town remote from its general place of business* where a foreman was in charge of its work and the servants engaged in it. One of these being seriously injured in such service, the foreman employed surgeons to attend to his injuries, under circumstances demanding such attention immediately and making it impracticable for the general officers of the company to act therein. Held, that the company became liable to the surgeons so employed for reasonable compensation for their services.</p> <p>2. —Same—Duty of Master.</p> <p>It seems that in case of emergency where an employe is seriously injured and immediate medical attention demanded, the master is under a duty to furnish same, and its foreman or representative highest in authority present and able to act for it, though not authorized to make such contract for it, would have an implied authority to do so and to bind the master thereby.</p> <p>3. —Same—Interest of Master.</p> <p>It seems also, that, irrespective of the existence of a legal duty on the part of the master to furnish medical aid to an injured servant, the master has an interest in having such aid furnished which would imply authority to take action to that end by an employee not otherwise empowered to so act for the master, if he were in charge of the work being done and the only one who could take such necessary action in the master’s interest.</p>

<p>1. —Will—Probate—Limitation—Statute Construed.</p> <p>Under the provisions'of article 1881, Rev. Stats, a purchaser from a devisee is entitled to have the will probated when the same constitutes an essential link in his chain of title; such right in the purchaser is not dependent on the existence of the same right in the devisee; the latter may have lost his right by his default in presenting the will for probate within the four years prescribed by the statute, while the purchaser may at the same time have the right because of his want of knowledge of the existence of the will. The purchaser is not necessarily chargeable with the loches or default of the devisee.</p> <p>2. —Same—“Default”—Purchase from Devisee.</p> <p>A purchaser of land many years after the death of the ancestor from one who represented that he acquired the land as an heir and not as a devisee, and who, together with the surviving wife and other children, had held and dealt witli the property for twenty-one years in the same proportions as they would have held and claimed under the statute of descent and distribution, should be held not guilty of loches or “default” in presenting the will for probate when he does so promptly after learning that a will in fact existed.</p> <p>3. —Same—Right to Probate.</p> <p>When a will is an essential link in a chain of title to_ land, the owner of the land is entitled to a judgment of probate; and an offer of release by those claiming adversely under the will- is not a substitute for such judgment and can not deprive him of his right thereto.</p> <p>4. —Same—Default.</p> <p>It is the policy of the law to enforce the timely probate of wills, and one yrho has the custody of a will and refrains for the statutory period from presenting it for probate, for personal considerations or because he believes his title to be safe without it, is in default within the meaning of the statute.</p> <p>5. —Will—Revocation—Subsequent Will—Evidence.</p> <p>In determining which of two wills executed by the same testator on the same day, was executed last, extrinsic evidence should not be considered when intrinsic evidence exists.</p> <p>6. —Same—Intrinsic Evidence.</p> <p>Each of two wills executed by the same testator on the same day contained a revoking clause; the clause in one was “Hereby revoking all others which I may have heretofore made;” the clause in the other was “Hereby revoking all other wills that I have heretofore made.” Held, the phraseology of the clause last quoted indicated that the will in which it was used, was the will last executed.</p> <p>7. —Same.</p> <p>Each of two wills executed by the same testator on the same day named the surviving wife as one of the executors, but in one will two other executors were named, and in the other three other executors were named; both wills contained a provision that the. “wife and any two of the other executors” should have power to make sales of property. Held to indicate that the Will appointing the wife and three other executors was executed last.</p> <p>8. —Same—Probate—Sufficient Evidence.</p> <p>Evidence considered and held sufficient to require the probate of a will although offered for probate twenty-one years after death of the testator.</p> <p>ON MOTION FOB BEHEARING.</p> <p>9. —Same—Adoption—Record—Notice.</p> <p>While the record of an act of adoption may be constructive notice to all persons, it is not such notice as will necessarily charge one interested in the probate of a will in which the adopted- child would also have an interest, with such default as will preclude him from having the will probated after the lapse of four years from the death of the' testator. The want of actual notice is a factor to be considered in such case.</p> <p>10. —Will—Repudiation.</p> <p>A testator declared in his will that the property disposed of by him therein was his separate property, and devised to his wife one-fifth of the same; the property was in fact community property, and the children knowing such to be the case gave their mother one-half of the property. Held, the act of the wife in accepting one-lialf the property was not necessarily a renunciation of the will.</p> <p>11. —Will—Application to Probate— Motive.</p> <p>If a party has a legal right to have a will probated, the motives which actuate him are immaterial.</p>