Volume 62 — Texas Civil Appeals Reports

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

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

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

<p>1.—Deed—Erroneous Description—Evidence Aliunde.</p> <p>The following objections were made to a deed when offered in evidence: (I) that the deed described the land in controversy as patented to Gr, whereas said land was patented to C, assignee of G; (2) that while the correct patent number was given, the number of the volume in which the patent is recorded was not given, and there were over one hundred volumes in each of which was a patent of the same number; and (3) that the deed refers to mesne conveyances from said “patent®®” to the grantor in the deed for further description, whereas said grantor held title by deed from a sheriff under execution against O, who was in fact the patentee. The deed stated the correct number of acres in the patent, the patent number and the county in which the land was situated. Held, the deed was properly admitted in evidence in connection with undisputed testimony that the parties intended the deed to convey the land in controversy.</p> <p>3.—Same.</p> <p>If, by rejecting that part of the description in a deed which is false, and retaining that which is true and applying thereto evidence offered aliunde, it can be determined that it was the intention of the parties to convey the land in controversy, such intention ought not to be defeated by rejecting the deed.</p>

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

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

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

<p>1.—Absolute Deed—Conveyance in Trust—Cancellation.</p> <p>In an action by heirs to cancel an absolute deed made by their parents to another heir, evidence reviewed and held sufficient to support a finding that said deed was executed by the parents for the sole purpose of enabling the son, the grantee named in said deed, to sell and convey the land described therein and to account to the parents, the grantors, for the proceeds thereof; and that the sale never having been consummated, the trust or purpose for which the deed was executed failed, and the other children and heirs were entitled to recover from the heirs of said grantee son their respective interests as heirs of the parents.</p> <p>2. —Same.</p> <p>A deed absolute on its face may be shown to be subject to a paroi trust.</p> <p>3. —Same—Failure of Consideration—Remedy.</p> <p>Where á deed to land is executed in consideration of services to be rendered by the grantee, but the services are never in fact rendered, the grantor would not be entitled to recover the land when he neglected to reserve any title in himself, or to insert in the deed any condition of defeasance, or to make any provision for the reversion of the estate in the event the grantee should fail to perform the service which constituted the consideration.</p>

<p>8. —Findings of Fact—Statement of Facts.</p> <p>Appeal from the District Court of Williamson County. Tried below before Hon. 0. A. Wilcox.</p> <p>The judgment appealed from was first reversed and rendered in part and affirmed in part, in an opinion by Mr. Justice Bice. The opinion •following was rendered on rehearing, Justice Bice dissenting and adhering to his conclusion expressed in the original opinion. The decision of the majority having been approved by the refusal of a writ of error by the Supreme Court, only that opinion has been designated to be reported.</p>

<p>1. —Briefs—Statements.</p> <p>A proposition presented by appellant’s assignment of error will not be considered unless its presentation in his brief is accompanied by such statement of the facts as will enable the court to pass thereon without examining the record.</p> <p>2. —Written Instrument—Varying by Parol—Charge.</p> <p>A written lease giving the tenant no right to sell any timber from the premises except that cut from such part as “shall be actually put in cultivatian” by him, was unambiguous, and a charge allowing the jury to consider a subsequent paroi agreement authorizing the tenant to sell the timber before placing the land in cultivation, if the contract was uncertain and the paroi agreement did not materially change its terms, was erroneous.</p> <p>3. —Same—Statute of Frauds—Lease—Fundamental Error.</p> <p>A lease of land for three years, being required to be in writing, could not be changed as to its terms by subsequent paroi agreement, and a charge permitting this to be.done was fundamental error.</p> <p>4. —Action for Conversion—Title of Plaintiff.</p> <p>The action being for conversion of property to which plaintiff claimed title only through contract with the defendant charged with converting it, which contract did not convey the right claimed, it was immaterial whether the title was, in fact, in defendant or in third parties. Plaintiff must show title, in himself in order to recover.</p> <p>5. —Same—Estoppel.</p> <p>One purchasing timber known to have been cut by a tenant on leased prem-. ises, the lease contract forbidding him to sell same, was bound to inquire as to the tenant’s authority to sell. The lessor was not estopped from claiming it, in the absence of something done by him misleading the purchaser.</p> <p>6. —Reversal—Rendering Judgment.</p> <p>The rights of the parties being clear and the facts fully developed on the trial, the appellate court, on reversing, will render judgment instead of remanding.</p>

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

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

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

<p>1.—Deed—Acknowledgment of Married Woman.</p> <p>The certificate of acknowledgment' to a deed by a married woman to her separate property in 1860, so far as it related to the wife, was as follows: “Also on the same day personally came (the wife) wife of (the husband) who, after understanding the said deed, and subscribing the same privily and apart from her said husband, declared the same to be her voluntary act and deed to (the grantee) and that she wished not to retract it.” Held, fatally defective and not sufficient to pass the title of the married woman.</p> <p>3.—Same—Illegal Acknowledgment—nullity.</p> <p>A deed by a married woman purporting to convey her separate estate, where there has been a failure on the part of the officer taking her acknowledgment to the deed to comply with the provisions of the statute on that subject, is not merely voidable, but absolutely void.</p> <p>3. —Same—Defective Certificate—Distinction.</p> <p>By the decisions in this State a distinction is clearly drawn between a defect in the officer’s certificate and in the act of acknowledgment itself.</p> <p>4. —Same—Ho Estoppel.</p> <p>The fact that a married woman signed a deed to and received the purchase money for her separate property will not estop her or her heirs from setting up the invalidity of the deed when it was not acknowledged in the manner prescribed by law.</p> <p>5. —Same—Void Deed—Ho Ratification.</p> <p>A void deed by a married woman can not be ratified by her; any act of alleged ratification must have the essential elements of a valid conveyance.</p> <p>6. —Same—Defective Acknowledgment—Act of 1907.</p> <p>The Act of 1907 (Gen. Laws, 1907, p. 308) was not intended to give validity to deeds of married women which had not been acknowledged as required by the statute; if said Act should be given such construction, as t.o such deeds, at least those executed prior to the enactment of the statute, it would be retroactive and in contravention of art. 1, see. 10, of the Constitution.</p>

<p>1. —Masonic Lodge—Grand Lodge—Relative Rights and Powers.</p> <p>Evidence as to the relative rights and powers of a subordinate Masonic Lodge and of the Grand Lodge, under and by which it was chartered, considered, and held that it was not within the power of the subordinate lodge to withdraw from the jurisdiction of the Grand Lodge without its consent, nor to transfer to a different organization property which had been bought by the subordinate lodge for lodge purposes; and that the legal title to said property remained in the trustees to whom it had been conveyed for the benefit of the lodge, notwithstanding such attempt to transfer it.</p> <p>2. —Same—Members—Rights of Property.</p> <p>A member of a subordinate Masonic Lodge loses his interest in the property of the lodge when he ceases to be a member of the same; such property belongs to the lodge as an entity, and not to the individuals constituting the membership.</p> <p>3. —Trial Without Jury—Findings of Fact—Purpose.</p> <p>The purpose of findings of facts by a trial court is not to present the evidence, but the court’s conclusions as the result of the entire evidence, and such findings may embrace such reasonable inferences of fact as are fairly deducible from the evidence.</p>

<p>1.—Surety—Change of Obligation—Kelease.</p> <p>One who has agreed to become surety for the payment of a debt in monthly installments should be held released when the creditor and the principal debtor enter into a binding agreement, without the consent of the surety, whereby the contract is changed from monthly to yearly payments. This rule applied in favor of a wife in a case where her separate property was mortgaged to secure a note given by her husband.</p> <p>8.—Same—Payment of Interest—Binding Contract.</p> <p>A promise not to enforce the payment of a debt in monthly installments, as required by the original contract, is valid and supported by sufficient consideration when the debtor agrees to pay interest on the entire debt for the full term of the original contract, and such a change in the original contract would operate as a release of a surety upon the original contract.</p> <p>3. —Same—Loan—Wife’s Separate Property.</p> <p>The wife’s separate property being primarily liable for money borrowed and used for the improvement of the same, a deed of trust given by her on her separate property to secure such loan would not be released by a change in the terms of the loan made by her husband without her consent. And so as to money borrowed and used to pay taxes and insurance on her separate property.</p> <p>4. —Homestead—Mortgage—Estoppel.</p> <p>Even though the property upon which a mortgage or deed of trust is given be the homestead, the mortgagee'is entitled to a foreclosure upon the husband’s interest in the same after the death of the wife when the husband, by his conduct and representations in securing the loan, is estopped from setting up the fact of homestead.</p> <p>5. —Mortgage—Warranty—After-acquired Title.</p> <p>An after-acquired title or interest by a mortgagor who has warranted the title to the property, inures to the benefit of the mortgagee.</p> <p>6. —Wife’s Separate Estate—Improvements by Husband—Remainderman •—Creditor.</p> <p>Improvements made by the husband upon the wife’s separate estate after her death, become a part of her estate and can not be separated therefrom and subjected to a mortgage executed by the husband and wife, to the prejudice of the remainderman in the estate.</p>

<p>1. —Trial—Withdrawal of Issues.</p> <p>The fact that much testimony had been introduced upon certain issues raised by the pleadings, but which issues were by the charge of the court subsequently withdrawn from the jury, would not necessarily be cause for reversal. If the testimony is such that a jury of practical and average intelligence could separate that part of it relating to the issue still left for their consideration from that part relating to the issues which had been wihdrawn, an appellant would have no cause of complaint.</p> <p>2. —Railroad—Grading Street—Damages—Ordinance.</p> <p>A railroad company can not use a city ordinance as a defense in a suit by an abutting property owner for damages resulting from raising the grade of a street, when the ordinance authorizing the work to be done was passed at the instance and for the benefit of the company.</p> <p>3. —Same—Abutting Property Owner—Pleading.</p> <p>In a suit by an abutting property owner against a railroad company for damages for raising the grade of the street in front of plaintiff’s property, thereby impairing the means of ingress to and egress from said property, pleading considered, and held sufficient.</p> <p>4. —Same—Damages—Non-expert Testimony.</p> <p>It is not necessary that a 'witness be a real estate expert in order to qualify him to testify as to depreciation in the value of property caused by the construction of railroad tracks, switches, etc., nearby. It is sufficient if the witness has had experience with real estate in the neighborhood and is familiar with the values.</p> <p>5. —Trial—Refusal of Witness to Answer.</p> <p>A plaintiff having testified that she could not separate the damage to her property (by the construction of a railroad in an adjacent street) from the value of the property, it was not reversible error for the court to refuse to compel her to answer what she would take for said property at the time of the trial, although she had previously testified as to the damage to the property.</p> <p>6. —Charge—Measure of Damage—Error of Omission.</p> <p>An error in a charge in instructing that the measure of damage to property would be the difference in the value (instead of the market value) of the property before and after it was damaged would be an error of omission, which must be cured by a requested charge.</p> <p>7. —Special Charge—Requisites.</p> <p>A special charge, in order to require an elaboration of a general charge, should he addressed to the trial court in such form that the particular request would he brought directly and unmistakably to the knowledge of the court. A desired instruction is not properly requested when contained only in a requested instruction which includes other propositions.</p> <p>8. —Railroad—Abutting Property Owner—Remedy.</p> <p>A property owner is not required to adjust his premises to the new conditions and overcome the damages resulting from the construction of a railroad nearby, instead of resorting to a suit for damages.</p> <p>9. —Same—Measure of Damage—Harmless Error.</p> <p>The undisputed evidence being to the effect that the values of property in the vicinity of plaintiffs’ had constantly increased since and on account of the building of certain railroad terminals nearby, a charge to the jury to find for the defendant railroad company if they believed that plaintiff’s property was 'worth as much or more -now without reference to the general increase in values, than it would have been had the work complained of not been done, etc., was prejudicial to the plaintiff rather than the defendant, and the defendant could not therefore complain of the use of the word “now.”</p> <p>10. —Same—Common Benefits.</p> <p>Plaintiff’s suit being for damages to her property by obstructing the access to the same by raising the grade of the street and increasing the number of railroad tracks thereon, the fact that her property in common with that of all others in the community was benefited by the establishment of a depot and other improvements as a component part of the construction complained of, was irrelevant and immaterial.</p> <p>11. —Same—Limitation.</p> <p>The statute of limitation will not bar a suit for damages to abutting property by raising the grade of the street and laying -tracks thereon, when the work complained of lacked substantial completion until within two years of filing the suit.</p> <p>ON BEHEABING.</p> <p>12.—Charge—Alternative Presumed.</p> <p>A charge to find for the plaintiff for the reduction of value, if any, of her property arising from the causes alleged, was in effect a charge to find for defendant if the jury found no reduction of value.</p>

<p>1. —Vendor and Purchaser—Liens—Purchasers of Incumbered Land—Order of Priority.</p> <p>When lands subject to an incumbrance are sold to different purchasers, in different parcels and at different times, as between the several grantees, the lands are chargeable in equity in the inverse order of their alienation.</p> <p>2. —Same—Repurchase and Resale by Grantor.</p> <p>An owner of incumbered land conveyed it, at different times, to two different purchasers, that taken by the second vendee becoming thereby first liable to satisfy the lien. Afterwards the grantor repurchased the tract first conveyed, and this he subsequently sold to another. Held, that when he reacquired the tract first sold it became, in his hands, subject to the lien in priority to the lands held under his second conveyance; the subsequent purchaser from him took such rights only as his grantor possessed; and on foreclosure, his tract was properly ordered to be first sold for satisfaction of the lien.</p> <p>3. —Same—Reason of Rule.</p> <p>The rule as to priority of subjection to liens between purchasers of different parts of encumbered land, rests on principles of equity, and not on the effect of the grantor’s covenants of warranty.</p> <p>4. —Record of Title—Notice—Identity.</p> <p>One who claimed title under a conveyance from John W., whom other deeds in his chain of title designated as J. W. W., could not claim that the record of a conveyance to another from J. W. W. was insufficient to inform him of the identity of that grantor with the John W. conveying to him.</p> <p>5. —Subrogation—Assumption of Debt.</p> <p>One who, in purchasing land, assumed the payment of an existing incumbrance thereon, was paying his own debt when he discharged it, and could not acquire, it seems, a right by subrogation to assert its priority to the liens of other incumbrancers.</p> <p>6. —Warranty—Incumbrance—Indemnity Bond.</p> <p>A purchaser of land with warranty of title received also a bond from the grantor and sureties to indemnify him against outstanding incumbrances. These being enforced against the land, and being for a sum greater than the amount of the indemnity bond, but less than the purchase price, the vendee was entitled both to judgment on the indemnity bond for its amount, and against the warrantor for the amount of the incumbrances, with provision for credit on either recovery for payment made on the other.</p> <p>ON MOTION BOB BEHEABING.</p> <p>7. —Subrogation—Pleading.</p> <p>One claiming subrogation to a lien by having, for his own protection, paid the debt, which was that of another, must both plead and prove the facts, entitling him to such subrogation.</p>

<p>Appeal from the District Court of Stephens County. Tried below before Hon. Thomas L. Blanton.</p>

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

<p>1.—Public Bead—Alteration—Commissioners’ Court—Power.</p> <p>A County Commissioners’ Court lias the power to institute condemnation proceedings upon their own motion to alter by widening a public road which had been acquired by purchase and not by statutory proceedings; and neither the fact that a majority only of the commissioners consented to the condemnation order, nor the fact that the jury of view did not act in conjunction with the county surveyor would invalidate the judgment of condemnation,</p> <p>8.—Same—Injunction.</p> <p>A petition for a temporary injunction restraining a Commissioners’ Court from condemning land for the purpose of widening a public road, on the grounds that the final order of condemnation was not rendered at a regular term of the court; that the jury of view did not make their report to the next regular term of the Commissioners’ Court; that the commissioners did not make a full investigation of the proposed alteration in the road, and did not find that the public interest 'would he better served by such alteration; and that the minutes of that term of the Commissioners’ Court were not signed, considered, and held insufficient to show cause for the issuance of the injunction.</p> <p>S.—Same—Condemnation—Effect.</p> <p>By condemnation proceedings for road purposes an easement only is obtained in the land, and this legal effect can not be affected by the form of the report of the jury of view.</p> <p>4.—Same—Purpose of Condemnation.</p> <p>A Commissioners’ Court having the power to condemn land for the purpose of widening a public road, the" fact that the court may intend to permit the road, as widened, to be used by a street railway, is immaterial.</p>

<p>Appeal from the District Court of Beeves County. Tried below before Hon. S. J. Isaacks.</p>

<p>1. —Interstate Commerce—Jurisdiction of State Court—Shipment of Live Stock.</p> <p>When a cause of action against a railroad company for damages to an interstate shipment of live stock is based upon a breach of defendant’s common law or contractual duty, which is not regulated, trenched upon nor in any manner affected by the Acts of Congress regulating interstate commerce, the State courts have jurisdiction to try the same.</p> <p>2. —Trial Amendment—Continuance.</p> <p>Pending the trial of suit against several railroad companies for damages to a shipment of live stock, plaintiffs filed a trial amendment alleging the intrinsic value of the animals at their destination, in addition to the market value theretofore alleged, and prayed in the alternative for such intrinsic value; the defendants thereupon moved for a continuance on the ground that they were not prepared to meet the change in plaintiffs’ pleadings; the court overruled the motion. Held, because it was not shown that any evidence was introduced by plaintiffs to prove intrinsic value; and because if there was in fact any difference between the intrinsic and market value of the stock the trial was taking place in the very town which was the destination of the stock, and a continuance was not necessary to enable the defendants to obtain evidence to meet said issue; and because it was not shown in the motion for new; trial that defendants were prejudiced by the action of the court, an assignment of error complaining of such action must be overruled.</p> <p>3. —Master and Servant—Proof of Relationship.</p> <p>While the relationship of master and servant can not be proved by the bare statement to that effect by the servant, still the admission of a statement by a person at a railroad station that he was the company’s yardmaster at that station could not be prejudicial to the company when supplemented with evidence that said person was engaged at that place in directing the management and movement of the company’s trains, and that the authority thus exercised was such as is usually given a yardmaster.</p> <p>4. —Carrier of Live Stock—Failure to Bed Cars—Negligence.</p> <p>Testimony that it was usual and customary for railroad companies to bed cars in which cattle were shipped is admissible as tending to prove negligence il failing to do so for the shipment of horses; and in the absence of evidence ti the contrary it will be presumed that the duty to so prepare the ears devolved on the railroad company and not on the shipper.</p>

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

<p>Appeal from the County Court of Shackelford County. Tried below before Hon. W. L. Morris.</p>

<p>Public School Land—Substitution of Purchaser—Effect.</p> <p>When a vendee of the original purchaser of public school land receives a conveyance of the same from such ■ purchaser and files such conveyance in the General Land Office and is there duly substituted by the Commissioner for the original purchaser from the State, and such vendee complies in all things with the requirements of the law governing the occupancy of the land, the Commissioner has no lawful right to forfeit the original a-ward and the substitution because of some dereliction on the part of the original purchaser occurring before the substitution. The substitution is in effect a sale to the substitute.</p>

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

<p>Appeal from the District Court of Eastland County. Tried below before Hon. Thos. L. Blanton.</p>

<p>Railroad Company—Penalties—Right to Sue.</p> <p>The county attorney of a county which is included within a judicial district having a district attorney has no authority to sue a railroad company for the penalties prescribed by article 4512, Sayles’ Civ. Stats., for a failure by the company to provide separate coaches for the accommodation of white and negro passengers traveling upon its trains, unless such county attorney was authorized to do so by either the Railroad Commission or the Attorney General of the State.</p>

<p>Accord and Satisfaction.</p> <p>Where there is a dispute between a debtor and creditor as to the amount of the indebtedness, and the debtor tenders a check accompanied with a declaration that it was in full settlement of his indebtedness, an acceptance of the check by the creditor will preclude him from afterwards recovering for any item included in the controversy; and it would be immaterial that after accepting the check the creditor told the debtor that it would not settle a certain -item included in the controversy.</p>

<p>Husband and Wife—Divorce—Purchase from Husband—Innocent Purchaser.</p> <p>A deed to a wife contained no recital which would indicate or give notice that the land was intended to be the wife’s separate property; the husband and wife were subsequently divorced but there was no partition of the property; the ” husband sold the land to one who had no actual notice of the decree of divorce. Held, the deed to the wife vested the legal title to the land in her; the purchaser from the husband could not claim to be an innocent purchaser of the entire estate in the land;, and the husband’s deed conveyed only his community interest therein.</p>

<p>Fraud—Exchange of Land—Measure of Damages.</p> <p>In a suit for damages for fraudulent representations by which plaintiff was induced to exchange land with the defendant, the true measure of damage would be the difference between the market value of the land received by plaintiff from the defendant, and that given by plaintiff therefor.</p>

<p>1.—Carrier—Assault by One Passenger Upon Another—Liability.</p> <p>Whenever a carrier through its agents or servants knows or has opportunity to know of a threatened injury, or might have reasonably anticipated the happening of an injury, to a passenger and fails or neglects to take the proper precaution or to use proper means to prevent or mitigate such injury, the carrier is liable. Evidence considered, and held sufficient to raise a question of fact as to whether or not a railroad company was negligent in failing to prevent an assault by one passenger upon another.</p> <p>2. —Same—Actual Damages—Joint Liability.</p> <p>If a carrier is liable at all for damages resulting to a passenger from an assault and battery by a fellow passenger, it is jointly liable with the" party committing the assault for the actual damages resulting therefrom. In a suit by a passenger against an assaulter and a carrier for actual damages, charge considered and held misleading because subject to the construction that a verdict for a less amount of actual damages might be returned against the carrier than against the assaulter.</p> <p>3. —Same-—Due Care—STotice of Former Assault.</p> <p>The fact that the conductor and brakeman of a railroad company were notified that a certain passenger had previously committed an assault upon plaintiff and that plaintiff feared a repetition of the offense while on defendant’s train, is a circumstance which might be considered by the jury in determining whether or not the railroad company exercised due care on the occasion in question to prevent the assault. Charge considered, and held error in excluding from the jury all consideration of a former assault.</p>

<p>1.—Pledges—Sale—Notice.</p> <p>Notice of the time and place of sale of pledged property must be given both to the public and to the pledgor, unless these requirements are in some way waived, which may be done.</p> <p>3.—Same—Contract Construed.</p> <p>A debtor bank conveyed to a creditor bank promissory notes of various persons as collateral security, and at the same time executed a contract whereby, in case of default in the payment of its indebtedness at maturity, it invested the creditor bank with full power and authority to transfer, hypothecate, sell and convey said notes or any part thereof, “at public or private sale with or without notice to any of us, at such place and on such terms as to it may seem best, and to deliver the property sold,” etc. Upon default in the payment of its indebtedness by the debtor bank, the creditor bank attempted to sell the collateral notes at public outcry but gave no public notice of the time, terms or place of sale. Held, in a suit by the debtor bank against the purchaser of the notes at said sale for the value of the same, the failure of the creditor bank to give due notice of the attempted public sale rendered the sale voidable, and the fact that the contract concerning the collaterals authorized a private sale of the notes did not do away with the necessity of giving due notice of the public sale.</p>

<p>1.—Receivers—Appointment—Insufficient Cause.</p> <p>It is an elementary principle that a receiver should not be appointed when no benefit is to be gained by the appointment.</p> <p>3.—Same.</p> <p>Where it appeared in a proceeding for the appointment of a receiver for an insolvent corporation, that the appointment was sought, not for the purpose of winding up the affairs of the corporation and subjecting its assets to the liquidation of its liabilities, but for the purpose of conducting and managing the business of the corporation, and it was not shown that a receiver would have any more funds or any better facilities for conducting the business than the officers of the corporation then had, it was error to appoint a receiver.</p>

<p>Peremptory Charge—Conflicting Evidence—Practice.</p> <p>In a suit for damages for an alleged breach of contract for the exchange of property, evidence considered and held to raise an issue of fact which should have been submitted to' the. jury, and a peremptory instruction for the plaintiff was therefore reversible error.</p>

<p>Appeal from the County Court of Collingsworth County. Tried below before Hon. J. K. Duke.</p>

<p>Appeal from the District Court of Hartley County. Tried below before Hon. D. B. Hill.</p>

<p>Appeal from the District Court of Carson Coimty. Tried below before Hon. F. P. Greever.</p>

<p>1. —Public Beads—Injunction.</p> <p>An injunction will lie to restrain the opening of a public road when there has been a failure to comply with the terms of the statute requiring previous notice to the owner of the land across which the road is to be established.</p> <p>2. —Same—Ho tice to Owner of Land—Contract of Sale—Owner.</p> <p>At the time proceedings were instituted to open a public road across a tract of land the owners had entered into a contract to sell the same, and a part of the purchase money had been paid; it was not shown that the vendors were in possession of the land nor that the vendee would probably fail to comply with his contract; the vendors when asked by the jury of view as to the proper party to serve with notice of the time and place of assessing damages, referred, the jury to the vendee. Held, the right to damages resulting from the opening of the road was prima facie in the vendee, and the service of notice upon him was sufficient.</p> <p>3. —Same—Claim for Damages—Tender of Compensation.</p> <p>Where it appeared that two joint owners of land were both served with notice of the meeting of the jury of view, and they both appeared through and by a common attorney before the jury of view and before the Commissioners’ Court, and made no objection to the action of the court" in making the allowance of damages in the name of one of the owners, the claim for damages having been so presented by the attorney; and where there was no evidence that the owner in whose name the allowance was made denied that the other joint owner had an interest in' the same, nor that they were unable to agree upon a division of the allowance among themselves, the owner whose name was- not mentioned in the allowance was not entitled to an injunction to restrain the Commissioners’ Court from opening the road.</p> <p>4.—Same.</p> <p>Where it appeared that upon an award of damages by a Commissioners’ Court for opening a road through private lands, the clerk of the court offered to draw a warrant for the amount of the award, which would have been paid upon presentation to the county treasurer, which offer was refused by the owner of the land, and the county, in a proceeding afterwards to enjoin it from opening the road, tendered in money the amount of damages awarded by the court, there was a substantial compliance with the requirements of the statutes relative to the payment of the damages before the opening of the road.</p>

<p>1. —Divorce—Trial—Bight of Judge to Examine Witnesses.</p> <p>In the trial of a suit for divorce the presiding judge has the right on his own motion, in order to avoid collusion between the parties, and to test the credibility of the witnesses, and to determine the sufficiency of and the weight to be given to their testimony, to examine and to cross-examine the witnesses; this right being subject, however, to review by an appellate court for abuse of discretion.</p> <p>2. —Same—Personal Violence—Insufficient Evidence.</p> <p>In a suit by a wife against her husband for divorce on the ground of such excesses, cruel treatment and outrages by the husband towards the wife as to render their living together insupportable, evidence as to jealousy and personal violence on .the part of the husband considered, and held insufficient to justify the appellate court in setting aside the judgment of the trial court denying the divorce. When a husband and wife have lived together for nineteen years and have children nearly grown, a single hasty and not altogether unprovoked act of personal violence by the husband towards the wife would not absolutely and necessarily render their longer living together insupportable.</p>

<p>1.—Local Option Election—Contest—Disqualification of Judge—Exchange of Districts.</p> <p>Upon a certification by a district judge of his disqualification to try a contested local option election case in Ms district, any other district judge in the State may, upon an exchange of districts, try the ease. In the matter of disqualification of district judges, neither the Constitution nor the statutes make any distinction between contested local option elections and ordinary suits or cases.</p> <p>8.—Same—Official Contestee—Death of County Attorney.</p> <p>In a proceeding to contest a local option election, the statute prescribes that the county attorney of the county shall be named. as the contestee; the proceeding is against the officer and not against the individual incumbent; hence, upon retirement of the individual holding the office of county attorney at the time the proceeding was instituted, his successor in office may properly make himself or be made the contestee in the proceeding.</p> <p>3. —Same—Abatement—Practice.</p> <p>After a contest of a local option election has once been tried, appealed and reversed, it is too late for the contestee for the first time to raise the question of the sufficiency of the citation or notice served upon him.</p> <p>When a case is tried without a jury and the trial judge at the request of the appellant has filed his conclusions of fact, the appellant can not complain on appeal of the omission of the judge to find a material fact when the attention of the judge was not called to the omission and no request was made for a finding upon such issue.</p> <p>5. —Contested Election—Local Option—Qualification of Contestant.</p> <p>The statute' regulating a contest of a local option election provides that the contestant or contestants must be qualified voters of the county in which the election took place. Held, any question as to .the qualification of the contestants in said respect must be raised by plea in abatement.</p> <p>6.—Same—Irregularities—Hew Election.</p> <p>Evidence of irregularities in the conduct of a local option election considered, and held not only sufficient to justify the trial court in setting aside the declared result of the election, but to require that such judgment be entered. The true result of an election can not always be ascertained by the addition of some votes and the subtraction of others, as the evidence might warrant; and when it is doubtful if the true result can he so arrived at, a new election should be ordered.</p>

<p>Pleading—Trespass to Try Title—Injunction—Possession of Church Property.</p> <p>In a suit over the right of possession of á church building and to restrain the defendant from interfering with the possession thereof by the plaintiffs, petition considered, and held sufficient when taken in connection with the prayer for general relief, to maintain an action of trespass to try title to the property, and to entitle the plaintiffs to the injunction sought; hence it was error for the court to sustain a demurrer thereto.</p>

<p>Appeal from the District Court of Taylor County. Tried below before Hon. T. L. Blanton.</p>

<p>1.—Carrier—Shipment of Live Stock—Failure to Provide Pens—Statute Construed.</p> <p>Where, by the contract of shipment, certain live stock were to be delivered to the consignee at the Fort Worth Stock Yards, article 4519, Revised Statutes, requiring railroad companies to provide suitable pens for the reception and delivery of the stock at the place of delivery, would have no application, and the giving of said article in charge 'in such case would be reversible error.</p> <p>8.—Market Value—Evidence—Stock Journal.</p> <p>A live stock journal (in this case, the “Fort Worth Live Stock Reporter”) is admissible in evidence for the purpose of proving the live stock market on certain dates, when accompanied by testimony that the publication was issued daily, was a credible journal, gave daily reports of sales of live stock on the market in Fort Worth, had been so published for many years, and was relied on by stockmen and cattle shippers in general as giving correct and reliable reports.</p> <p>3.—Practice on Appeal—Refusal of Instruction.</p> <p>Where the record does not show that a requested instruction was refused by the trial judge, an assignment of error based upon an alleged refusal of such instruction,' can not be considered.</p> <p>4.—Charge—Burden of Proof.</p> <p>In a suit for damages to a shipment of cattle, the court charged the jury as follows: “If you do not find from the preponderance of the evidence that the plaintiff was damaged, as he has alleged in his petition, and that the damage, if any, was the proximate result of the negligence of the defendant’s employees, then you will find for the defendant.” Held, not subject to the objection that it placed the burden of proof upon the defendant of establishing its defense by a preponderance of the evidence.</p>

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

<p>1. —Disqualification of District Judge—Exchange by Judges—Constitution.</p> <p>When a district judge is disqualified to try a case pending in his district, the Governor may appoint another district judge to try said case. Article 1069, revised Statutes, and the amendment thereof in 1897, are not in violation of section 11, article V, of the Constitution, giving to litigants the right to agree upon a suitable person to try a case in which the regular judge is disqualified.</p> <p>2. —Powers—Commissioners Court—Building Court House and Jail—Issuance of Bonds.</p> <p>There is nothing in the statutes of this State which requires a Commissioners’ Court to provide separate buildings for a courthouse and jail; they may be built under the same roof if such a structure is deemed expedient by the court; and, hence, bonds issued for the construction of such a building would not for that reason alone be illegal.</p>

<p>Error from the District Court of Sherman .County. Tried below before Hon. D. B. Hill.</p>

<p>1. -—Bailor and Bailee—Delivery to Wrong Person—Liability.</p> <p>The degree of diligence which- is exacted of each of the several classes of bailees in respect to the care of the thing bailed has no application to the rights of the bailee in respect to its return and delivery. Every bailee is bound at his peril to know that the person to whom he delivers the chattel is .the proper person to receive it, and if he delivers it to the .wrong person, "though acting in perfect good faith, he is nevertheless liable for its conversion.</p> <p>2. —Same—Warehouseman.</p> <p>A warehouseman is liable for conversion of property where, without authority, he delivers it either negligently, intentionally or by mistake to one not entitled to it, and he is liable although the mistake is not the result of any want of ordinary care or prudence on his part. This rule applied in a suit by a bailor against a defendant as warehouseman and bailee for hire for the value of certain chattels which the defendant delivered to a third party, by whom they were converted.</p> <p>3. —V alues—Testimony—V erdict.</p> <p>The plaintiff alone testified expressly as to the value of the articles in controversy; other witnesses described the articles hut did not place a value upon them; the jury returned a verdict for much less than the value testified to by the plaintiff. Held, the appellate court would not disturb the verdict of the jury.</p> <p>4. —Practice on Appeal—Cross Action.</p> <p>A prayer in appellee’s brief that he have judgment over against a co-defendant in the trial court for such sum as he might he required to pay under the judgment, will be denied when the record does not show that said codefendant was served with notice of the appellee’s cross action in the trial court, nor that said codefendant answered thereto, nor that the appellee appealed from the judgment as rendered in the court below.</p>

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

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

<p>1.—Husband and Wife—Separation—Contract to Support.</p> <p>A contract between husband and wife for a separation in the future is void; but where the separation has already taken place and is not brought about or induced thereby, an agreement or obligation by the husband to pay the wife a stipulated amount periodically would be valid and binding.</p> <p>8.—Evidence—Failure of Party to Answer Interrogatory.</p> <p>The failure of a party to a suit to answer a categorical interrogatory bearing upon a material issue in the case, is a fact which may be shown to the jury and considered by them.</p> <p>3.—Husband and Wife—Separation—Evidence.</p> <p>The issue being whether or not a husband and wife had actually separated at the time a contract of separation was executed, testimony of the wife as to their manner of living considered and held relevant and material.</p> <p>4. —Same—“Living Together”—Definition.</p> <p>■ A charge that by the phrase “living together as husband and wife” was meant the dwelling together in the same house, eating at the same table, and holding themselves out to the world and conducting themselves towards each other as husband and wife, held a correct definition of the phrase.</p> <p>5. —Same—Contract—Liquidated Damages.</p> <p>A bond in a certain amount, secured by pledge of real and personal property, conditioned that the husband would thereafter pay to his wife a certain amount weekly according to the terms of a contract of separation, considered and held, when construed in the light of the facts and circumstances, to evidence an intention by the parties that the amount named in the bond was to be treated as liquidated damages and not as a penalty in case of a. breach of the bond. Hence, upon breach of the bond by the husband, the wife was entitled to recover the entire amount of the bond, less such sums as had been paid before the breach.</p>

<p>Original application for mandamus to the District Court of Harris County.-</p>

<p>1. —Carrier of Passengers—Putting Off Train—Contributory Negligence— Charge.</p> <p>In an action for damages from being unlawfully put off a train, with circumstances of indignity and personal injury by a fall down the embankment, a requested charge that plaintiff could not recover if the fall was due to his own intoxication was properly refused, since it ignored his right to recover for unlawful ejection, irrespective of the injury from his fall.</p> <p>2. —Evidence—Conclusion of Witness.</p> <p>Plaintiff, who had made a former written statement differing from his testimony on the trial, could not be required to state, on cross examination, whether such statement was more apt to be correct than his testimony. The question called for a mere conclusion of the witness.</p> <p>3. —Charge.</p> <p>Requested instructions on points fully covered by the charge given, were properly refused.</p> <p>4.—Sufficiency of Evidence.</p> <p>A verdict will not be disturbed on appeal merely because the evidence is in conflict, especially where three recoveries have been had thereon.</p>

<p>1. —.Contributory Negligence—Question of Fact—Burden of Proof.</p> <p>The issue of contributory negligence is ordinarily one of fact for the jury to determine from the evidence, the burden being upon the defendant to prove the same.</p> <p>2. —Same—Crossing Railroad Track—Going Between Cars.</p> <p>While it has been held in some cases that the act of crossing a railroad track by going between, under or over the cars of a train standing Upon it, is negligence per se, yet the facts and circumstances of those particular cases show that no rational mind in view of them could reach any other conclusion; therefore it does not follow that every act of this kind presents a ease of contributory negligence. Rule applied, in such a case and judgment against a railroad company affirmed.</p> <p>3. —Personal Injury—Boss of Foot—Damages.</p> <p>A verdict for $15,000 for the loss of a foot held not excessive in the case of a boy fourteen years of age.</p>

<p>Error from the Eleventh Judicial District, Harris County. Tried below before Hon. Chas. E. Ashe.</p>

<p>I.—Nuisance—Cotton Gin—Injunction.</p> <p>The construction and operation of a cotton gin near private .residences is not per se a nuisance; and in a suit to enjoin the erection of such structure near plaintiff’s home, the burden was upon plaintiff to prove that the particular kind of cotton gin which the defendant purposed to erect—and which it was alleged by defendant was different from and less objectionable than other gins—would cause the annoyances incident to the operation of gins having less improved machinery. Testimony that other gins constructed in a different way, caused annoyances, was not pertinent to the issue.</p> <p>8,—Trial Without Jury—Improper Evidence—Practice on Appeal.</p> <p>When a trial is before the judge without a jury, and there are no conclusions of fact filed by the judge in the record, the admission of improper evidence on the trial is not necessarily cause for reversal of the judgment. It will be presumed that the judge did not consider such evidence in rendering his judgment.</p> <p>3. —Nuisance—Injunction—Insufficient Evidence.</p> <p>In an action to enjoin the erection of a cotton gin, evidence considered and held insufficient to warrant the issuance of the injunction. Great caution is exercised in interfering with establishments and structures which tend to promote public convenience; in such cases it will not suffice to show a probable or contingent injury, but it must be shown to be inevitable and undoubted.</p> <p>4. —Cotton Gin—Nuisance—Remedy.</p> <p>If after a cotton gin is erected its operation proves to be a nuisance, persons injured thereby may have the same enjoined, and also recover such damages as they may show they have suffered.</p> <p>5. —Same—Diminution in Value—Fire Risk—Assembly of Crowds.</p> <p>The mere fact that the value of a homestead may be decreased or the risk from fire increased by the erection of a cotton gin nearby, is not a sufficient reason for enjoining _the erection of the gin. And so as to the fact that crowds of people with their teams will be caused thereby to assemble near the. home.</p>

<p>1. —Deed—Description—Limitation Title.</p> <p>The owner of a town lot acquired title by limitation under the ten years statute to a strip of land adjoining her lot; after the limitation period was complete, the owner conveyed the lot describing it by lot and block number only. Held, the deed conveyed the vendor’s title only to the lot and not to the strip of land acquired by limitation.</p> <p>2. —Covenant of Warranty—Eight of Actio-</p> <p>In an action of trespass to try title, a defendant vendee vouched in his vendor and warrantor; the plaintiff recovered judgment for the land, and the defendant recovered judgment against his warrantor on the covenant of warranty; the warrantor alone appealed. Held, because the plaintiff in that suit failed to show title to the land in controversy superior to that conveyed by the warrantor to the defendant, the defendant was not entitled to recover over against his warrantor on the covenant of warranty; but the defendant not having appealed, the judgment against him for the land would not be disturbed; the judgment, however, in his favor against the warrantor would be reversed.</p>

<p>Error from the County Court of Tarrant County. Tried below before Hon. C. T. Prewett.</p>

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

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

<p>Trespass to Try Title—Disclaimer—-Damages—Jurisdiction.</p> <p>A claim for rent and for damages to the premises in an action of trespass to try title is a part of plaintiff’s cause of action, and the fact that the defendant disclaims as to the land would not deprive the court of jurisdiction to try and determine the issues as to the rent and damages even though the value of the same was less than $500.</p>

<p>1. —Public Land—Husband and Wife—Occupancy by Wife.</p> <p>In determining the question whether or not public school land had been settled upon and occupied in accordance with the spirit of the law requiring actual occupancy of such land by a purchaser from the State, the jury should be allowed to consider the joint acts of the husband and wife in that respect.</p> <p>2. —Same—Occupancy—Definition—Charge.</p> <p>The issue being whether or not a purchaser of public school land had settled upon and continuously occupied the same as required by the statutes, the court charged the jury as follows: “By the term ‘actual settler’ as used herein is meant one who actually, in person and in good faith, settled upon and lived upon the land for the purpose of making same his home, and such residence and occupancy must be continuous (except the temporary absence as hereinafter explained) and in person. Occupancy by one’s wife without his presence is not sufficient.” Held, in view of the facts of this case, too restrictive of the settler’s rights, and upon the weight of the evidence in excluding from the consideration of the jury the occupancy of the land by the wife during the absence of her husband.</p> <p>3. —Same—Occupancy by Wife.</p> <p>Intimated that occupancy of public school land purchased from the State, by the wife and children while the 'husband pursued his occupation (in this case, that^ of a blacksmith) in a neighboring town, might be a sufficient compliance with the requirements of the statute in the matter of occupancy.</p>

<p>1.—Judgment Lien—Abstract—Pleading—Variance.</p> <p>A judgment lien is strictly a statutory right, and, to be valid, the recorded abstract • of the judgment must truly show the date of the judgment, the amount of the same, and the names of all the parties thereto. The- allegations of these facts are material, and any variance between them and the proof would be good cause for the exclusion of the abstract of the judgment in a suit to foreclose the judgment lien.</p> <p>3.—Same—Case Stated.</p> <p>In a suit to foreclose a judgment lien it was alleged that the date of the judgment was April 28th, that the judgment was against two parties, and that the amount of the same was $1007.72. The recorded abstract of the judgment, upon which plaintiff relied to establish his lien, showed that the judgment was rendered on April 18th, that it was against three parties instead of two, that it bore interest at the rate of ten per cent per annum, and was for costs amounting to $23.25 in addition to the principal sum. Held, the abstract was properly excluded as evidence because of the variance between it and the petition.</p> <p>3. —Same.</p> <p>A judgment lien -can not be established by abstracting a judgment which is not final.</p> <p>4. —Same—Judgment by Default—Practice.</p> <p>An interlocutory judgment by default was taken against two out of three defendants, and the cause continued upon motion of the third defendant; at a succeeding term the cause was dismissed as to the third defendant and no other order was made as to the two defendants against whom judgment by default had been rendered. Held, the judgment was not a final judgment and therefore no lien could be fixed on land by abstracting the same. Upon dismissal of the cause as to the third defendant the judgment should have been made final against the other two.</p>

<p>1. —Judgment—Failure to Dispose of Party.</p> <p>A judgment in favor of several plaintiffs, naming them, but which omits the name of one of the plaintiffs stated in the petition, is not a final judgment.</p> <p>2. —Partnership—Final Judgment.</p> <p>A partnership is not a legal entity, and hence can sue and be sued only in the names of its individual members; a judgment therefore in favor of or against a partnership in order to be final must either expressly or by fair implication dispose of all the members of the plaintiff or defendant firm.</p>

<p>Appeal from District Court, Potter County; J. W. Browning, Judge.</p> <p>Action by Rolla De Bord against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. —Evidence—Obvious Eact—Harmless Error.</p> <p>When the testimony of a witness is as to a fact so obviously true that proving it could not have prejudiced an appellant, the admission of the testimony, although irrelevant and immaterial, would not be. cause for reversal.</p> <p>2. —Same—Personal Injuries—"Exhibiting to Jury.</p> <p>In a suit for damages for personal injuries it is not error to permit the plaintiff to exhibit his injuries to the jury.</p> <p>3. —Hegligence—Charge—Assumption of Eact.</p> <p>Where a railroad employee predicated his right to recover damages for personal injuries upon the allegations that the defendant’s coal bins were built too close to defendant’s railroad track, and that defendant’s engineer was negligent in failing to keep watch for signals from plaintiff, it was reversible error for the court in its charge, the evidence being conflicting, to assume that the bins were in fact too close to the track, and that it was the duty of the engineer to receive signals from the plaintiff.</p> <p>4. —Personal Injuries—Double Recovery—Charge.</p> <p>A" charge upon the elements of damage which the jury might consider in a suit for personal injuries, considered and held ambiguous and open to the objection that it might be construed as permitting a double recovery for the same injuries.</p> <p>5.—Same—Voluntary Exposure to Danger—Rule.</p> <p>When an employee in the discharge of his duties voluntarily occupies a position which is not in itself dangerous and only hecomes so through the negligence of another employee, the doctrine that one who voluntarily occupies a dangerous rather than a safe place to do his work can not recover, has no application.</p>

Error from District Court, Jones County; C. C. Higgins, Judge. Action by James T. Cumley against I. J. Pierce and G. W. Power, copartners, doing business as the Santa Fé, Llano, Estacado & Pacific Land & Trust Company. From a judgment for plaintiff, defendants bring error.'

<p>1.—Jurisdiction—Plea of Privilege—Appearance.</p> <p>A plea of privilege is such an answer and appearance as will give the court jurisdiction over the person of the defendant and dispense with the necessity for the service of citation upon him.</p> <p>8.—Pleading—Written Obligation—Delivery—Judgment by Default.</p> <p>An allegation that the defendant executed and entered into the instrument in writing sued upon, imports that the instrument was delivered, and is sufficient to support a judgment by default.</p> <p>3. —Same—Ownership.</p> <p>An allegation that the instrument in writing sued upon (in this case a due bill) “evidences an indebtedness due the plaintiff by reason of the premises” is sufficient as against an objection, on appeal from a judgment by default, that plaintiff’s petition did not allege that plaintiff was the legal owner or holder of the instrument sued on.</p> <p>4. —Same—Husband and Wife—Bight to Sue.</p> <p>The husband is the proper party to bring suit upon a written obligation given to his wife.</p> <p>5. —Plea of Privilege—Change of Venue—Judgment by Default.</p> <p>When the venue of a suit is changed upon defendant’s plea oi privilege to be sued in another county, the defendant must take notice of all proceedings in the court and county to which the case is transferred; and the fact that the plaintiff excepted to the order changing the venue and gave notice of appeal therefrom, would not be sufficient reason to set aside a judgment by default taken by the plaintiff against the defendant in the court and county to which the case was transferred, after the time for perfecting the appeal had expired and the appeal had therefore been 'abandoned by the plaintiff.</p>

<p>1.—School Land—Bond for Title—Illegal Contract.</p> <p>A contract of sale or bond to make title to school land after the period of occupancy required by law is complete, but executed during such period, to one who is not and does not intend to become an actual occupant of the land, is in violation of the school land law of this State, and therefore a specific performance of the same will not be decreed although a valuable consideration has been paid.</p> <p>3.—Same—Cases Distinguished.</p> <p>Lovan v. Curry, 95 Texas, 664; Underwood v. King, 102 Texas, 561; Witcher v. Wiles, 33 Texas Civ. App., 69, distinguished.</p>

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

<p>Appeal from the District Court of Jefferson County. Tried below before Hon. J. D. Martin, Special Judge.</p>

<p>1.—Homestead—Purchase with Proceeds of Home in. Another Státe.</p> <p>The fact that a husband gave to his wife the proceeds of a sale of their home in another State, and. that the wife after the death of her husband invested such proceeds in a residence in this State, would not of itself be sufficient to invest the residence property in this State with such homestead character as would exempt it from sale for debts of the wife.</p> <p>8.—Homestead—Acquisition by Surviving Spouse—Dissolution of Family.</p> <p>The protection of the homestead from forced sale for debt does not continue after the family has ceased to exist, in a case where the homestead was acquired by a surviving spouse after the severance of the marriage relation. As to such person the right depends wholly upon the existence of a “family”' within the meaning of that term as used in the Constitution.</p> <p>3. —Same—Head of Family—Pleading—Evidence—Variance.</p> <p>An answer that defendant’s family consisted of herself and four of her own children, naming them, would not support proof that the family consisted of defendant and a grandchild.</p> <p>4. —Trial by Court—Improper Evidence—Reversible Error, When.</p> <p>When it affirmatively appears that the court, trying a case without a jury, considered and acted upon improper evidence, the admission of the evidence over objection would be reversible error.</p> <p>5. —Judgment—Proof Without Pleading.</p> <p>Facts proved but not pleaded, will not support a judgment.</p> <p>6. —Homestead—Family—Widow and Grandchild.</p> <p>Evidence considered as to the relationship of a widow and a grandchild nine years of age of whom the widow had had exclusive care and control from its birth, and held sufficient to support a finding that the widow and grandchild constituted a family within the meaning of the Constitution exempting the homestead of a family from forced sale for debt.</p> <p>7.—Conversion—Pleading.</p> <p>In order to hold a third party liable for the conversion of property of a debtor, the creditor must show some title to or interest in the property alleged to have been converted. Pleading considered and held insufficient.</p>

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

<p>Evidence—Landlord's Lien—Waiver—Consent to Sell.</p> <p>On the issue of waiver by the landlord of his lien on crops raised by the tenant by consenting that the latter sell the cotton raised, he agreeing to deposit the landlord’s part to his credit in bank, but not doing so, and the proof conflicting as to such consent being given, the defendant purchaser should have been permitted to show other sales of cotton by the tenant with deposit to the landlord’s credit of his proportion of the proceeds and the landlord’s acceptance of same, though such other sales were made after that of the cotton in question and after suit begun by the landlord to enforce his lien against it. Such evidence tended to support the purchaser’s claim of waiver of the lien by consent of the landlord to the sale.</p>

<p>Appeal from the District Court of Coryell County. Tried helow before Hori. J. H. Arnold.</p>

<p>1. —Argument of Counsel.</p> <p>Argument of counsel considered and held improper and its permission by the court reversible error, it being an inflammatory appeal to passion, and invoking a punishment of defendant with damages because of false attacks on plaintiff's evidence.</p> <p>2. —Misconduct of Counsel.</p> <p>Conduct of counsel for plaintiff in interrupting comments of opposing counsel on his failure to introduce testimony by offers to now produce it and intimations that it would be favorable to plaintiff if produced, held improper and ground for reversal.</p> <p>3. —Evidence—Cross-examination—Medical Expert—Use of Books.</p> <p>On cross-examination of a medical expert counsel should be permitted to use extracts from medical books, not for the purpose of making their statements evidence, but to test the qualifications of the witness and weight to be given to his testimony.</p> <p>4. —Evidence—Custom.</p> <p>Plaintiff having testified that he had been neglected by the physicians in a railroad hospital several years before, and such physicians • having no recollection of his ease or treatment, it was permissible for defendant to show that their custom was to give prompt, careful and proper attention to patients.</p> <p>5. —Evidence—Force of Collision—Bes Gestae.</p> <p>Plaintiff, a brakeman, having testified that by a collision of trains he was violently thrown from the coach platform some distance inside the car, it was permissible as part of tbe res gestae for defendant to show the effect of the collision on passengers in such coach and.that no one else was injured there.</p> <p>6.—Evidence—Expert—Eees.</p> <p>Plaintiff not being entitled to recover as damages 'the fees paid to experts to obtain their evidence, the opinion of such expert as to the reasonableness of the fee which he charged plaintiff was immaterial, and should have been excluded on objection.</p>

<p>Appeal from the Fifty-fifth Judicial District, Harris County. Tried below before Hon. W. P. Hamblen.</p>

<p>Appeal from the County Court of Fayette County. Tried below before Hon. George Willrich.</p>

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

<p>Error from the District Court of Tarrant County. Tried below before Hon. R. H. Buck.</p>

<p>1. —False Arrest—Pleading—Judgment.</p> <p>In an action for damages occasioned by shame, mortification and humiliation of mind, and injury to reputation and character consequent upon false arrest and imprisonment on a. charge of swindling, a judgment for damages for loss of time and credit caused by a negligent breach by defendant of its contract in dishonoring plaintiff’s check, would not -be warranted by the pleadings.</p> <p>2. —Same—Causing Arrest—Ratification of Arrest—Insufficient Evidence.</p> <p>In an action for damages for causing the arrest of plaintiff, the issues being whether appellant, acting together with its codefendants, caused the arrest of the plaintiff, or whether, knowing all the facts, it had ratified the arrest after it had been made at the instance of a eodefendant, evidence reviewed and held insufficient to support a judgment against the appellant on either issue.</p> <p>3. —Loss of Credit-—-Burden of Proof.</p> <p>A plaintiff who is neither a merchant nor trader must prove affirmatively an allegation that his credit was injured or lost hy reason of an arrest on a charge of swindling.</p> <p>4. —False Imprisonment—Negligence—Proximate Result—Case Stated.</p> <p>Plaintiff had $400 on deposit in a bank in T County and drew his check for that amount on said bank, and forwarded it for collection through a bank in H County; the bank in H County forwarded it to its correspondent in D County for collection; by some mistake in its bookkeeping the books of the bank' in T County showed only $287 to the credit of plaintiff, and when his check was presented payment was refused on that ground; the bank in H County was erroneously informed by its correspondent bank in D County that the check had been paid, and the bank in H County thereupon paid the $400 to plaintiff, who went to a neighboring county on business; when the bank in H County learned that the check had not jin fact been paid it caused plaintiff to be arrested in the county to which he had gone; immediately after and while under arrest plaintiff communicated by phone with the bank i-n T County and asked why his check had not been paid, and notified it that he was under arrest for swindling the H County bank, and insisted that his cheek was wrongfully dishonored; in about one and a half hours the bank in T County discovered its mistake and phoned to that effect to the officer having plaintiff in charge and also to the bank in H County, whereupon the plaintiff was released. Held, because the defendant bank in T County neither caused nor instigated the arrest of the plaintiff, and because his arrest could not have reasonably been anticipated as a proximate result of its negligence in bookkeeping, the T County bank was not liable for the damages suffered by plaintiff by reason of his arrest, and the court erred in refusing a peremptory instruction to that effect.</p> <p>5. —Practice on Appeal—Cross Assignments.</p> <p>A co-appellee must appeal from the judgment of the trial court in order to have cross assignments by him considered.</p>

<p>1. —Carriers—Delay—Shortage of Cars.</p> <p>A' railway company was not excused for its delay of four days in forwarding a shipment of cattle received from a connecting line by its inability to furnish cars therefor through a press of business, not unusual or unforeseen, but common at that season of the year, where it did not show the amount of its equipment for the service nor the number of previous orders for cars; nor by its reliance, without inquiry or assurance, on the connecting line permitting its ears to go through with the shipment; nor by the fact that 10 to 20 days’ notice to provide cars was customary, only 20 hours’ notice being given; nor by the fact that other shippers had sometimes held their cattle at that point while in transit in order to negotiate for their sale.</p> <p>2. —Interstate Commerce—Published Bates—Contract for Less Bate.</p> <p>There being three lines of connection by rail from the point of shipment to destination, only two of which were wholly within the State, the agent of the initial carrier quoted to the shipper the same rates by each of the three, and the latter selected the interstate route. There was no through rate established for such shipment, the only published rate being the sum of the local tariffs of the connecting lines, which was greater than the rate via the intrastate connections agreed on by the initial carrier with the shipper. The last carrier collected in full the greater, or interstate, rate. Held, that the shipper could not recover from the initial carrier the difference between the rate agreed on and that collected. To permit such recovery, either as damages for failure to comply with the contract, or for misquoting the rates and inducing shipper to select the more expensive route, would accomplish an evasion of the Interstate Commerce Law. Texas & P. By. Co. v. Mugg & Dryden, 202 U. S., 242, followed.</p> <p>ON MOTION FOB BEHEABING.</p> <p>3. —Practice on Appeal—Bemittitur.</p> <p>Error being found in respect to only one element of damages recovered, the appellate court, where the amount in question is certain, will reform and render judgment, instead of remanding unless remittitur is entered.</p>

<p>1, —Homestead—Partition.</p> <p>The prohibition against a partition of a community homestead, contained in section 52, article XVI, of the Constitution, and in articles 2057 and 2062, Bev. Stats., applies only to the heirs of the deceased spouse, and not to those who claim an interest in the homestead through titles acquired otherwise than by descent from the deceased spouse.</p> <p>2. —Same—Purchaser of Survivor’s Interest.</p> <p>One who acquires the interest of a surviving wife in the community homestead, whether by voluntary sale or under foreclosure proceedings, is entitled to partition of the same as against the heirs of the deceased husband; and this right can not be affected by the fact that the surviving wife has subsequently been appointed guardian of a minor daughter by a proper court and as such guardian authorized to occupy the homestead with the minor.</p>

<p>1. —Appeal—Defective Brief—Bule 31.</p> <p>An assignment of error will not be considered when it is not followed by a statement from the record explaining and supporting the proposition thereunder, as required by Bule 31.</p> <p>2. —Same—Evidence—No Objection in Trial Court.</p> <p>An assignment of error based upon the admission of evidence will not be considered when the record does not show that any objection was made in the trial court.</p> <p>3. —Debtor and Creditor—Fraudulent Sale—Title.</p> <p>As between a debtor and creditor no title passes out of the debtor in an attempted sale by him for the purpose of defrauding the creditor when the vendee or transferee participates in the attempted fraud. In contemplation of law the title remains in the debtor.</p> <p>4. —Garnishment—Answer—Beceipt of Effects, Time When.</p> <p>The answer of a garnishee should include effects of the debtor coming into his hands between the date when the writ was served and the date when his answer was filed.</p> <p>6.—Judgment—Evidence—Presumption.</p> <p>In the absence of specific findings of fact to the contrary, the judgment of the trial court will not be disturbed if there is any phase of the evidence which will support it.</p> <p>6. —Garnishment—Title to Effects—Evidence.</p> <p>In a garnishment proceeding, contract and evidence considered, and held sufficient to support a finding that the title to certain logs or piling had passed out of the debtor and vested in the garnishee at the time the writ was served, and this, though the piling was in course of transportation to its destination and was invoiced to a different party.</p> <p>7. —Sale—F. O. B.</p> <p>An agreement to sell goods f. o. b. cars at a designated place will ordi- ' narily be regarded as an agreement to deliver the goods at such designated place; but the meaning of the term f. o. b. depends on the connection in which it is used, and if the meaning of the contract is doubtful the construction placed on it by the parties will be adopted. Contract for the sale of logs f. o. b. cars at place of destination considered, and held, when construed in the light of the evidence and the dealings of the parties, to mean that the title to the logs should pass when the logs were delivered to an agent of the buyer at an intermediate point.</p> <p>8. —Fraudulent Conveyance—Parties—Practice.</p> <p>A fraudulent vendee although a proper is not a necessary ^party to a suit attacking the conveyance or transfer. The failure of the plaintiff to make such vendee a party'to the suit should he taken advantage of hy plea in abatement or by exception in the trial court, otherwise the point can not he raised on appeal.</p>

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

<p>1. —Statute of Frauds—Parol Sale of Land—Public Lands.</p> <p>A lessee of public school lands, for a promised consideration, sold his rights under the lease, delivered possession of the land to the vendee and complied with and fulfilled all of his obligations under the contract of sale in assisting the vendee to acquire title from the State; the vendee took possession of the land, occupied and used the same, and accepted the services of the vendor in buying the land from the State. In a suit for the promised consideration, held, if the agreement when first made came within the purview of the statute of frauds invalidating paroi sales of land, the statute had no application after the vendor had fully performed the obligations imposed upon him by the terms of the contract and the vendee had accepted the benefits of such performance.</p> <p>2. —Vendor and Vendee—Sale of Lease—Consideration—Pleading.</p> <p>In a suit for the promised consideration for the sale or transfer of a lease of public school land, petition considered, and held not subject to general nor to certain special exceptions urged.</p>

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

<p>1. —Vendor and Vendee—Rescission—Intervening Rights.</p> <p>A rescission of a contract for the sale of land by a vendor and vendee can not affect the lights of a third party who acquires from the vendee the equity of redemption before the rescission. This rule applies in favor of a creditor who by levy acquires a lien upon the interest of the vendee before the . attempted rescission.</p> <p>2. —Equity of Redemption—Purchaser—Remedy.</p> <p>While the purchaser of the equity of redemption in land has not such title as would support an action of trespass to try title against the vendor, he has such equity as, under appropriate pleading accompanied by a tender of the balance of the purchase money due, would entitle him to recover the superior title and the land.</p> <p>3.—Appeal—Reversal—Practice.</p> <p>Although a judgment rendered by a trial court may be technically proper under the pleadings, the judgment will be reversed and the cause remanded • When it appears that the appellant has equities which entitle him to relief and which might be granted on another trial under appropriate pleadings.</p>

<p>1.—Bight of Action—Chose in Action—Assignment.</p> <p>The assignee of a chose in action holds the legal title and may sue thereon though the equitable ownership be in another, but the debtor’s defenses against the assignor in such case would be as available against the assignee as against the assignor.</p> <p>8.—Trial—Sustaining Exception—Harmless Error.</p> <p>An appellant has no cause of complaint against the action of a trial court in sustaining an exception to a part of his pleading when the court afterwards permits him to introduce evidence on the issue raised by said pleading.</p> <p>3.—Corporation—Domicile—Bight to Sue—Pleading and Proof.</p> <p>A corporation chartered under the laws of this State, although it maintained its manufacturing plant in another State, would not be a foreign corporation within the meaning of the laws of this State regulating the right of foreign corporations to do business in this State. Pleading and evidence considered and held insuEcient to raise the issue of the right of a plaintiff corporation to sue.</p>

<p>1.—Husband and Wife—Contract by Wife, Invalid.</p> <p>Promissory notes executed by a married woman without the knowledge or consent of her husband áre not binding upon either the husband or wife.</p> <p>8.—Same—Mortgage—Foreclosure Without Personal Judgment.</p> <p>Where a married woman, without the knowledge or consent of her husband, bought a piano and executed promissory notes for the purchase money and gave a mortgage on the piano to secure the notes, the owner of the notes, although not entitled to a personal judgment for the debt against either the husband or the wife, would be entitled to a judgment establishing his debt and a foreclosure of the mortgage lien and a sale of the piano for payment of the debt.</p> <p>3.—Same—Married Woman—Contract Induced by Fraud.</p> <p>Where a married woman is induced by fraudulent representations of the seller as to the value of the article sold, to buy and promise to pay a price largely in excess • of the value of the article, the seller is entitled to recover only the market value of such article.</p>

<p>1. —Vendor and Vendee—Warranty—Breach—Injunction—Pleading.</p> <p>In a petition for injunction to restrain the collection of notes given for the purchase money of land, it was averred that a suit of trespass to try title had been instituted and was then pending against plaintiff for the land for which the notes were given, hut it 'was not averred that the title to the land had in fact failed in whole or in part, nor that plaintiff did not know of the alleged defect in the title at the time he executed the notes and intended to run the risk of said defect. Held, a temporary injunction was properly dissolved on motion to that effect.</p> <p>2. —Same—Executed Contract.</p> <p>A deed to land with a contemporaneous deed of trust hy the vendee to secure the vendor in the payment of the purchase money notes, evidences an executed contract of sale although the vendor’s lien was reserved in the deed by the vendor.</p>

Appeal.from District Court, Parker County; J. W. Patterson, Judge. Proceeding by Fritz G. Lanham for the probate of the will of Edwin M. Lanham, which was contested by Mrs. Bessie Stephens Lanham. From a judgment declaring the will invalid, the proponent appeals. By an instrument wholly written by himself, dated July 24, 1908, Edwin M. Lanham, who died December 3, 1908, bequeathed to his brother, Fritz G.

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

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

<p>1.—Pleading—Justice Court—Appeal.</p> <p>The rules of pleading in .the County and District Courts do not apply to Justice Court. Pleadings there may be oral, and also in cases appealed therefrom to the County Court. A' demurrer to defendant’s answer there can not be said to have been improperly overruled where it did not appear that so much of same as appeared in writing was the only answer presented by him.</p> <p>8.—Practice of Medicine.</p> <p>A traveling physician examined a patient and took from such patient a promissory note to himself for medical services, entering into a written contract with such patient for his treatment by a certain Medical and Surgical Institute in another county, signed on behalf of such Institute by him as “Diagnostician.” He testified that he did not furnish the medicines and directions, that being done by the “Institute.” Held that he was practicing medicine and the note was given, at least in part, for his professional services, and invalid if his license to practice medicine was not filed in the county at that time. (Act of Feb. 22, 1901, sees. 12, 13, Laws 27th Leg., p. 15.)</p> <p>3. —Same—Mote for Services—Innocent Purchaser.</p> <p>The defense to a note given for medical services that the payee had no certificate to practice medicine on file in the county at the time it was given is available against an assignee of the note unless he is an innocent purchaser of it.</p> <p>4. —Same—Motice.</p> <p>Evidence considered and held not to present a preponderance in support of the claim of plaintiff to be a purchaser of a note sued on without notice that it was given for medical services to one having no license as a practitioner on file in the county.</p> <p>5. —Mote—Innocent Purchaser—Burden of Proof.</p> <p>It seems that the burden is on the plaintiff claiming to hold the promissory note sued on as an innocent purchaser without notice of facts rendering it invalid against the payee, to show absence of such notice.</p> <p>6. —Practice on Appeal.</p> <p>Appellate courts do not reverse recoveries because of mere preponderance of the evidence against them.</p>

<p>Error from the County Court of Falls County. Tried below before Hon. W. E. Hunnicutt.</p>

<p>1. —Telegraph Company—Negligence—Consequential Damages—Pleading.</p> <p>In an action against a telegraph company for damages caused by failure to deliver a telegram concerning the movement of cattle, petition considered and held sufficient as against exceptions on the ground that there was no distinct allegation that the cattle would have been moved, and so the alleged injuries averted, if the telegram had been promptly delivered; and sufficient to show that the damages for which a recovery was sought must have been within the contemplation of the parties at the time the telegram was delivered for transmission.</p> <p>2. —Appeal—Brief—Defective Statement.</p> <p>A reference in a brief to a bill of exceptions is not a sufficient substitute for a statement of the evidence under an assignment of error.</p> <p>3. —Telegraph Company—Notice to Agent.</p> <p>A telegraph company is charged with knowledge in the possession of its agent even though the agent obtained such knowledge by reason of being also agent for a railroad company, or in any other way.</p> <p>4. —Same—Non-delivery of Message—Failure to Notify Sender.</p> <p>The failure of an agent of a telegraph company to notify the sender of a message, known to the agent to be important, that the same had not been delivered, and knowingly to permit the sender to act upon the belief that it had been delivered, would be negligence for which the company would be responsible, and hence material to be proved in support of such allegation.</p> <p>5. —Same—Damages—Pleading.</p> <p>A plaintiff is not required to plead his evidence.. Rule applied in an action against a telegraph company for damages caused by failure to deliver a telegram concerning the movement of cattle.</p> <p>6. —Same—Negligent Delay—Evidence.</p> <p>To prove negligence in the transmission and delivery of a telegram it is competent for the sender, although not an expert in telegraphy, to testify that he had previously sent many telegrams between the same points and that they had been quickly delivered.</p> <p>7. —Trial—Incompetent Testimony—Practice.</p> <p>The admission of incompetent testimony is not cause for reversal when other testimony of the same character is in the record without objection.</p>

<p>1. —Deed—Mental Incapacity—Evidence.</p> <p>In a suit to annul and cancel a deed on the ground that the grantor at the date of its execution was of unsound mind and incapable of understanding the nature and effect of his acts, and that the deed was without consideration, and the grantee obtained the same through fraud and undue influence practiced upon the grantor while he was in a feeble condition mentally and physically, evidence considered and held sufficient, although conflicting, to support a judgment cancelling the deed. In determining this question it was permissible for the court, trying the case without a jury, to hear and consider proof as to the mental and physical condition of the grantor both before and after the date of the deed.</p> <p>2. —Same—Absence of Consideration.</p> <p>Provided a grantor has mental capacity' to understand in a reasonable manner the nature and effect of his act, a conveyance completely executed, although unsupported by a valuable conveyance, will be upheld as against the grantor and his heirs. But it is otherwise if the grantor is wanting in mental capacity.</p>

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

<p>Minor—Suit by Next Friend—Appeal After Majority of Minor.</p> <p>A mother, as next friend of her minor son, filed suit for damages for personal injuries to such son; judgment was rendered against the minor plaintiff; between the date of the judgment and the suing out of a writ of error, the minor attained his majority; the defendant in error moved in the appellate court to dismiss the writ of error on the ground that the next friend as such had no authority to sue out the writ of error after the minor attained his majority; the next friend answered admitting the majority of the plaintiff but praying that he be allowed to prosecute the appeal in liis own name and for his own benefit; the son filed no answer and made no appearance in the appellate court. Held, the appellate court had no jurisdiction of the appeal and the same should be dismissed.</p>

<p>1.—Mechanic’s Lien—Saw Mill—Statute Construed.</p> <p>The statute (article 3339a, Rev. Stats.) gives a lien to persons therein named who may labor or perform services “in any manufactory or mill of any character.” Held, said expression should be construed to mean in or about any such place, and can not be extended to include persons who render services in a different county many miles distant from a mill, and that have no immediate connection with the actual operation of the mill, though they be in furtherance of its business.</p> <p>8.—Same—Case Stated.</p> <p>The employees of one who had entered into a contract with a saw mill company to cut logs from the land of the company in one county and haul and deliver them to a railroad station therein whence they would be conveyed by the railroad to the mill in a different county, would have no mechanic’s or laborer’s lien upon the property oí tlxe company to secure the wages due them by their employer, the contractor; and this, though the logs were hauled by said employees from the woods to the railroad station over a tram road and by engine and cars owned by the company in the county where the labor was performed.</p>

<p>1. — Governmental Agency — Power of Legislature to Change — Public School Property.</p> <p>The Legislature has the power to change at will a mere governmental agency holding public property for a governmental purpose, such as public school property. There can he no vested right in a governmental agency.</p> <p>2.—Same—Title to School Property—Constitutional Law.</p> <p>Where, at a time when there were no independent school districts, property had been conveyed to the superintendent of public schools of a county and his successors in office, for the benefit of the public schools of the entire county, a subsequent Legislature would have the right, when creating an independent school district, in which said property was situated, to divest the title out of the county superintendent and vest the same in the board of school trustees for the independent school district.</p>

<p>Appeal from the County Court of Parmer County. Tried below before Hon. R. W. Connell.</p>

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

<p>1.—Trial—Special Issues—Verdict—Basis of Judgment.</p> <p>In cases submitted upon special issues, as in ail others submitted for the determination of a jury, the verdict alone constitutes the basis of the court’s judgment upon the issues submitted. It is beyond the power of the court to enter a judgment contrary to those findings, even if the evidence upon the issues is undisputed.</p> <p>3.—Same—Special Issues—Failure of Jury to Answer.</p> <p>No judgment can be rendered in a case tried upon special issues when the jury fall's to answer a question submitting a material issue.</p>

<p>1.—Debtor and Creditor—Resulting Trust—Basis of Credit—Estoppel.</p> <p>In the absence of evidence tending to show that the equitable owner of land knew that the title to certain property, which had been bought with her separate funds, was in the name of a certain merchant and not in her own name, or that said merchant was using the same as a basis of credit; and in the absence of evidence that any credit had in fact been extended to said merchant by reason of his apparent ownership of said land, it was reversible error for the trial court to permit the introduction in evidence of a statement by said merchant of his assets, including the land in controversy, as a basis of credit and in submitting to the jury the issue of estoppel as against the equitable owner.</p> <p>8.—Same—Execution of Trust—Prior Right.</p> <p>Where the holder of the legal title to land conveys the same to the equitable owner in compliance with his promise so to do, before the creditors of the former acquire any lien upon or interest in the land, such creditors can not set side the conveyance in the absence of acts and facts which would estop the equitable owner.</p> <p>3.—Evidence—Ex parte Statement of Bankrupt.</p> <p>The ex parte statements of a bankrupt before a referee in bankruptcy are not admissible in evidence against one claiming title to a part of the bankrupt estate.</p>

<p>1.—Appeal—Delay in Filing Brief—Practice.</p> <p>An appeal was perfected Nov. 2, 1909; counsel for appellee agreed' orally to waive the filing of briefs by appellant within the time required by the statute and the rules, provided he was given time within which to brief the case for the appellee; the appeal was set down for submission on Oct. 15, 1910; counsel for appellant failed to present a copy of his brief to counsel for appellee until Oct. 7, 1910; appellant’s brief presented twenty-four assignments of error, many of which were predicated upon a voluminous statement of facts. Held, appellant’s motion to be permitted to file its brief in the Court of Civil Appeals should be denied on appellee’s objection that the time allowed was not sufficient within which to prepare his brief.</p> <p>¡2.—Same.</p> <p>It appears that the law contemplates that an appellee -shall be given ample time, presumably in no event less than twenty days, within which to answer the brief of appellant.</p> <p>3. —Same—Rule 46—Oral Agreements.</p> <p>Rule 46 for the Courts of Civil Appeals, requiring agreements between counsel to be in writing, contemplates that the courts should not be required to consider and determine the conflicting contentions of counsel as to the form and effect of oral agreements.</p> <p>4. —Same—Dismissal.</p> <p>In passing upon a motion by appellant to be allowed to file briefs after the time required by the statute and the rules, the rights and convenience of the appellee should be considered.</p>

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

<p>1.—Injunction—Dissolution—Practice.</p> <p>Upon motion to dissolve an injunction on bill and answer, the answer when sworn to is taken as true in so far as it is responsive to the bill; and ordinarily a temporary injunction granted ex parte, upon tlié coming in of a sworn answer explicitly and unqualifiedly denying all the material allegations of the bill, will be dissolved. But the rule is not absolute, and the court may in the exercise of a sound discretion refuse a dissolution when the peculiar circumstances warrant a departure from the rule.</p> <p>3.—Fraternal Societies—Judicial Control.</p> <p>While the courts will not undertake to direct or control fraternal societies in the matter of discipline or internal policy, they will entertain jurisdiction and afford relief when some valuable or property right is involved.</p> <p>3. —Same—Injunction—Property Bights.</p> <p>In an injunction suit between members of a fraternal society, the question being whether or not any property rights of the plaintiffs were affected by the suspension of their lodge, and if not, was notice to the lodge or some member thereof prior to the issuance of the order of suspension by the supreme lodge, essential to the validity of said order, pleadings considered and held insufficient to warrant the interposition of the courts.</p> <p>4. —Same—Possession of Paraphernalia.</p> <p>The possession of the paraphernalia used in the ritual and secret work of a lodge is not such a property right as will warrant the courts in taking cognizance of a controversy between members of a lodge concerning the same when it appears that the title to the paraphernalia is vested in a supreme lodge and the members of the local lodge have only a right to use the same.</p> <p>5. —Same—Dissolution—“Improper Conduct.”</p> <p>The constitution and laws of a fraternal society provided that a subordinate lodge might be dissolved by the supreme lodge for improper conduct. The term “improper conduct” was not defined by the laws of the society. Held, there likewise being no definition of said term by the laws of this State, its meaning and scope should be left to the determination of the society itself.</p> <p>6. —Same—Benefit Certificate—Injunction.</p> <p>When it appears that the validity of benefit certificates issued by a local lodge of a fraternal society is not necessarily affected by the dissolution of the lodge which issued them, the mere fact that they were outstanding would not be sufficient cause for invoking the equity powers of the courts to prevent the dissolution of the lodge.</p> <p>7. —Injunction—Trivial Value.</p> <p>The courts will not interfere by injunction to prevent the loss of a trivial amount—in this case one dollar.</p> <p>8. —Same—Fraternal Order.</p> <p>Pleading considered and held insufficient to show such valuable or property rights in the moral, social or intellectual privileges possessed by members of a fraternal order, or in the right to participate in the control and management of the affairs of the order, or in the right to receive such “sick benefits” as the lodge might prescribe, as would justify the courts in taking cognizance of a controversy growing out of a dissolution of the lodge.</p> <p>9. —Same—Property Bight—Definition.</p> <p>The property right in a fraternal order which will justify the courts in taking jurisdiction and granting an injunction, must be some distinct individual right under a contract or other obligation of the order with a member' as such, and not merely a right incidental to membership.</p> <p>10. —Same—Other Bemedy.</p> <p>If -the courts will ever entertain jurisdiction of a controversy in a voluntary society where no property rights are. involved, they will not do so until all the remedies within the society have been exhausted.</p>

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

<p>1. —Carrier—-Discrimination—Failure to Furnish. Cars—Pleading.</p> <p>In an action against a railroad company for damages for failure to comply with an alleged contract to furnish cars for the shipment of logs, and for alleged discrimination against plaintiff in the matter of furnishing cars, pleading considered and held to state a cause of action.</p> <p>2. —Same—Damages, Notice of.</p> <p>A railroad company would be liable to a shipper for additional expenses caused him by a wrongful or negligent delay in furnishing cars when the company had notice of the facts which rendered it necessary for the shipper to incur the expenses.</p> <p>3. —Same—Discrimination—Damages.</p> <p>If one class of shippers is given any advantage over another in the transportation of freight by a carrier, such carrier will he liable to the shipper so discriminated against for the damages thereby sustained by him. And the fact that the shipper does not seek to recover the statutory penalty for such discrimination would not prevent his recovery of the damages.</p> <p>4. —Same—Exemplary Damages—Pleading.</p> <p>In an action against a railroad company for exemplary damages for failure and refusal to furnish cars for the transportation of freight, and for discrimination against plaintiff in the matter of furnishing cars, allegations considered and held sufficient to support a recovery for such damages.</p> <p>5. —Same—Notice to Furnish Cars, Sufficiency.</p> <p>When the purpose of a notice to a railroad company to furnish cars is not to lay a predicate for the recovery of the statutory penalties, but simply to give notice to the carrier of the damages resulting from its delay in furnishing the cars, the fact that the notice is not in compliance with the statute concerning the recovery of penalties, is immaterial.</p>

<p>1.-—Appeal—Affirmance—Reason for Judgment.</p> <p>If any phase of the facts found by a trial court will support the judgment rendered, it should be affirmed on appeal, without regard to the reason assigned by the trial judge for rendering the same.</p> <p>3.—Deed of Trust—Construction—Promise to Pay.</p> <p>A deed of trust considered, and held, although it contained no explicit promise to pay the debt therein mentioned together with compound interest thereon, a fair and reasonable construction of the instrument in the light of the concomitant circumstances evidenced an undertaking on the part of one of the signers to pay said debt and interest, and on the part of the other signer that her land therein described, should be bound for the payment of said debt and interest.</p> <p>3. —Purchase Money Notes—Compound Interest—Novation.</p> <p>An agreement, in consideration of an extension of time, to pay compound, instead of simple, interest on notes given for the purchase of land, would make such interest part and parcel of the purchase money debt evidenced by the notes.</p> <p>4. —Surety—Deed of Trust—Release of Principal.</p> <p>Notes given for the purchase of land were signed by the two purchasers; subsequently, in consideration of an extension of time granted to the makers of the notes, a third party gave a deed of trust on her land to secure the payment of the notes, and in the same instrument one of the makers of the notes agreed to pay compound instead of simple interest on the debt, the other maker refused to pay compound interest or to sign the deed of trust containing such agreement; thereafter without the consent of the owner of the land described in the deed of trust the holder and owner of the notes accepted from the maker who had refused to pay compound interest the amount of the debt and simple interest thereon in full payment and satisfaction of the notes and the vendor’s lien, and transferred and assigned said notes to said maker. Held, said transaction released the other maker of the note from bis obligation to pay compound interest, and discharged and released the land as security for the debt.</p> <p>5. —Principal and Surety—Release of Security—Intention of Parties. ■</p> <p>A surety will be discharged by the act of a creditor in releasing the property of the debtor from a lien held by the creditor as security for the debt, and this, though it was not the intention of the creditor that his act should have the effect of releasing the lien. Parties can not avoid the legal consequences of their acts by merely declaring that they should not have such and such effect.</p> <p>6. —Written Instrument—Construction Against Writer.</p> <p>Certain promissory notes described in a deed of trust, on their face bore simple interest; the deed of trust was given subsequently in consideration of an extension of time, and stipulated that the notes should bear compound instead of simple interest; still later the deed of trust was renewed by an agreement in writing prepared by the holder of the notes in which it was recited that said notes were just, due and unpaid and that “in order to secure the payment of each of said notes according to their face, tenor and effect” the deed of trust was revived, renewed or reinstated. Held, the renewal agreement required the payment of only simple interest on the notes.</p> <p>7. —Deed of Trust—Payment of Debt—Power of Trastee.</p> <p>After the payment of a debt, to secure which a deed of trust was given, the trustee has no power to sell thereunder the property pledged as security.</p> <p>8. —Same—Beneficiary—Bequest to Sell.</p> <p>A deed of trust provided that the trustee was empowered to sell the property at the request of the beneficiary named therein, his heirs, executors, administrators, assigns, or the holder and owner of the notes to secure which the deed of trust was given. Held, the language must be construed to mean that upon the transfer of the notes the legal holder and owner alone had authority to request the trustee to sell.</p> <p>9. —Same—Condition of .Sale—Strict Observance.</p> <p>The conditions imposed by the grantor upon the trustee in a deed of trust must be strictly observed in making a sale thereunder. Said conditions can not be disregarded because it may have become impossible to comply with them.</p> <p>10. —Same—Trustee as Owner of Debt.</p> <p>Intimated that when the trustee named in a deed of trust becomes the holder of the debt to secure which the deed was executed, his power to act as trustee ceases.</p> <p>11. —Same—Paroi Testimony to Vary, Incompetent.</p> <p>Testimony of a grantor in a deed of trust as to his or her understanding of the intention or purpose of the instrument is incompetent in the absence of evidence that the beneficiary was in any manner responsible for a misunderstanding of the legal effect of the same. And so as to the understanding of the grantor that other persons were to join in the execution of the same.</p>

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

<p>1.—Death—Damages—Adult Son.</p> <p>Evidence considered in case of action of a son of 35 for death of his mother, 65 years of age, assisting in housekeeping for him and for his wife, and held to show such financial interest of plaintiff in the life of deceased as to support a recovery of damages.</p> <p>8.—Negligence—Contributory—Crossing</p> <p>Evidence considered in case of a woman run down by an engine in crossing railway tracks, showing failure of deceased to stop or look before stepping on track, but not necessarily failure to listen, held not so conclusive as to the contributory negligence of deceased as to establish same as matter of law, the question being for the jury. International & G. N. R. Co. v. Edwards, 100 Texas, 22, distinguished.</p>

<p>Appeal from the County Court of Harris County. Tried below before Hon. A. E. Amerman.</p>

<p>Appeal from the Eleventh Judicial District, Harris County. Tried below before Hon. Chas. E. Ashe.</p>

<p>1.—Practice on Appeal—Charge—Invited Error.</p> <p>An appellant who in the court below requested and induced the court to give a charge upon a certain issue can not on appeal complain of the submission of said issue to the jury on the ground that the evidence did not warrant the submission of the same.</p> <p>3.—Overflow—Permanent Injury—Pleading—Proof.</p> <p>In an action for damage to land by reason of overflow, the plaintiff having alleged only permanent injury, the defendant was entitled to have the jury expressly instructed that the plaintiff could not recover in the present suit for any temporary injury to the land; and this right was substantial in view of the fact that the evidence was conflicting as to whether the injury was permanent or temporary.</p> <p>3. —Charge—Error of Omission—Practice.</p> <p>The failure of the trial court to define “permanent injury” would be an error of omission, if error at all, and an appellant can not complain of the same in the absence of a refusal of the court to give a requested charge supplying the omission.</p> <p>4. —Overflow of Land—Measure of Damage.</p> <p>In an action for damages for permanent injury to land by overflow, the measure of damage is the difference in the market value of the land immediately before the erection of the obstruction which caused the overflow, and its value when the permanent injury is finally accomplished by the particular cause; and this without reference to any other cause or causes which might have affected the value of the'land in the meantime.</p> <p>5. —Same—Tramping of Cattle—Proximate Cause of Injury.</p> <p>When land is damaged by overflow, the fact that the damage is augmented by the tramping thereon of cattle, will not affect plaintiff’s right to recover for all the damage, even though the allegation was that the land was damaged by overflow. The overflow was the proximate cause of plaintiff’s loss.</p> <p>6. —Railroad—Ho Title to Right of Way—Trespasser.</p> <p>When a railroad company owns no title to the land upon which its road is built, it occupies the position of a trespasser towards the owner of the land, and is liable accordingly for injuries caused to the owner by its presence on the land.</p>

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

<p>1. —Telegraph—Contract—Special Damage.</p> <p>Dor the failure to transmit and deliver a message only such damages can be had as could be reasonably anticipated. There can be no recovery for damages arising out of special circumstances, such as the existence of an option to purchase certain property at a named price, which would have been closed had the message been delivered, unless the knowledge of its existence was disclosed to the carrier or could be gathered from the contents of the message.</p> <p>2. —Same—Case Stated.</p> <p>A member of a firm which had an option to purchase certain horses at a price fixed wired its agent on the ground as follows:. “Buy horses. Ship at once. Other parties after them. Confidential.” The message was not delivered; the agent returned without purchasing; and the horses were sold to others. Held that the message did not convey such notice of the special circumstances as to permit recovery of the loss of profits which would have resulted from the purchase and resale of the horses had the message been delivered.</p>

<p>Telegraph Company—Failure to Deliver Message—Special Damages.</p> <p>A husband sued a telegraph company for mental and physical suffering caused his wife by the failure of the defendant to deliver a message from her to him notifying him that she would arrive at her home on a certain day by a certain train, and requesting him to meet her; the evidence failed to show that the wife would have suffered any inconvenience or pain but for the fact that she had fever at the time of her arrival at her destination and had been suffering in the same way for some time past; the telegraph company had no notice of these conditions at the time it received the message for transmission, nor that any special damages were likely to result from a failure to deliver the message. Held, the plaintiff was not entitled to recover for the alleged mental and physical suffering of his wife.</p>

<p>Appeal from the District Court of Dallam County. Tried below before Hon. Durrell Hiller.</p>

<p>1. —Mechanic’s Lien—Contract—Misdescription—Correction—Practice.</p> <p>Where, in a written contract to furnish material and labor for the erection of a homestead, the contractor is erroneously described as a corporation instead of a partnership, and the location of the lots on which the improvements were to be made as being in H. County instead of D. County, and where the mistakes were evidently those of the scrivener who reduced the contract to writing, and where all the parties acted on the contract, under proper pleading the mistakes will be corrected, and this may be done in the same suit in which the contractor sues upon the contract and seeks a foreclosure of his materialman’s lien.</p> <p>2. —Same—Constitutional Bight.</p> <p>Section 37 of article XVI of the Constitution, giving to mechanics and materialmen a lien on improvements made' by them, is self-executing and in nowise dependent upon statute, nor is it subject to conditions not imposed by the Constitution itself. Hence, in a contract for the erection of a homestead it is immaterial that the contract does riot expressly give or declare a lien in favor of the contractor.</p> <p>3.—Same—Acquisition of Homestead—Personal Liability of Wife.</p> <p>Under the laws of this State, the wife can not ordinarily contract debts of any character save for necessaries furnished herself or children, or for expenses incurred for the benefit of her separate property. Hence, in the absence of conditions which show that the acquisition of a certain homestead was necessary for herself and children, the wife would not be personally bound on a contract executed by herself and her husband for the building of a house intended for a homestead; and in a suit upon such contract the rendition of a personal judgment against her for the contract price of the material and labor would be error.</p>

<p>Appeal from the District Court of Midland County. Tried below before Hon. S. J. Isaacks.</p>

<p>Appeal from the District Court of Gray County. Tried below before Hon. F. P. Greever.</p>

<p>Sheriff—Levy—Satisfaction of Judgment—Commissions.</p> <p>Under the provisions of article 2400, Rev. Stats., a sheriff or constable is not entitled to any commissions on money paid directly by a judgment debtor to the judgment creditor in satisfaction of the judgment, even though a levy had been made and the property advertised for sale at the time of the settlement. He is only entitled to commissions on money actually collected by him.</p>

<p>1.—Personal Injuries—Pleading and Evidence—Charge.</p> <p>The court’s charge should submit only the issues raised by the pleading and evidence. In a suit by a car repairer against a railroad company for damages for personal injuries caused by the moving of the car under which the plaintiff was at work, charge considered and held erroneous in that it submitted issues not made by either the pleading or the evidence as to contributory negligence and discovered peril, and authorized a verdict against the defendant if the jury believed that the conductor or other train operatives were guilty of any negligence which resulted in plaintiff’s injuries, without confining the jury to a consideration of the negligence alleged and proved.</p> <p>Í3.—Same—Omission in Charge—Special Charges.</p> <p>In a suit for personal injuries the trial court failed in its general charge to submit certain defenses relied on by the defendant; for. the purpose of supplying the omission the defendant presented to the court a number of special charges bearing upon the defenses and giving prominence to each circumstance proven tending to support said defenses; the special charges were, all refused; without assigning error upon the failure of the court to submit its defenses, the defendant predicates a separate assignment of érror upon the refusal of each special charge. Held, the appellate court being unable to separate from the number of special charges any one that contains in itself a correct statement of the law, all of the assignments will be overruled.</p>

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

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

<p>Appeal from the Eleventh Judicial District, Harris County. Tried below before Hon. Chas.' E. Ashe.</p>

<p>1.—Carrier—Injury to Freight—Measure of Damage—Pleading.</p> <p>_ Ordinarily the measure of damage to freight by negligence of a carrier during transportation would be the difference between the market value of the article in the damaged condition at destination and what that value would have been had it not been damaged. Any facts which would take a case out of this general rule should be pleaded.</p> <p>3.—Market Value—Testimony.</p> <p>A witness who testified that he was not an expert in automobile values; that he was not engaged in buying or selling said machines; that he could not say how much the market value of the automobile in question was affected by the damage to it during transportation, would not be qualified to testify that the market value of the said machine was not materially affected by certain injuries received during transportation.</p>

<p>Railroads—Collision oí Trains—Personal Injuries—Engineer—Contributory Negligence—Question of Fact.</p> <p>In an action by a locomotive engineer against railroad company for damages for personal injuries caused by a collision of trains through a change in running orders without notice to the engineer, evidence considered and held to raise a question of fact whether the plaintiff, engineer in charge of one of the trains, was guilty of contributory negligence in leaving a siding and starting on his run, and sufficient to support a finding that he was not guilty of negligence in so doing.</p>

<p>Appeal from the County Court of Parker County. Tried below before Hon. F. 0. McICinsey.</p>

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

<p>1. —Judgment—Foreclosure of Tax Lien—Estates of Decedents.</p> <p>Where administration of an estate is pending in the County Court, a judgment against the executor foreclosing a lien for taxes on real property due from the estate can not be enforced by sale thereof under process from the court rendering such judgment, whether a State or a Federal court. Such sale is void. The judgment should be certified to the County Court where administration is pending for classification and enforcement.</p> <p>2. —Same—Agreed Judgment.</p> <p>The agreement of the executor to a judgment foreclosing lien for taxes and cutting off the right of redemption from a sale made by process of the court rendering it could not deprive the County Court in which administration was pending of its exclusive jurisdiction to classify and enforce the judgment as a claim against the estate, where, though having power to sell under the will, he was not an independent executor.</p>

<p>1.—Practice—"Undisputed Pact.</p> <p>When a fact is undisputed, it is not error to refuse to submit it to the jury as an issue.</p> <p>3.—Special Issues—Omission of Issue—Judgment—Presumption.</p> <p>When a case is tried upon special issues, and a material issue is not submitted or requested to be submitted, it will be presumed that the court determined the issue in such a way as to support the judgment rendered.</p> <p>3. —Purchase of School Land—Abandonment of Application—Evidenced</p> <p>When an applicant to purchase school land, after an award has been made by the Land Commissioner to another, accepts from the State Treasurer and retains the money which he had deposited with the Treasurer at the time of filing the bid for the land, an issue of fact is thereby raised as to whether or not said applicant had abandoned his application to purchase.</p> <p>4. —Same—Failure to Make Deposit—Substitute Purchaser.</p> <p>Evidence considered, and held to show a good title in a substitute purchaser of school land even though the sale to the original purchaser was void because of failure on his part to deposit the first payment with the State Treasurer as required by law.</p>

<p>1.—Deposition—Objection—Practice.</p> <p>An objection to a deposition that the answers are not responsive to the interrogatories, goes to the manner and form of taking, and must be made he-fore the trial commences if the depositions have been on file as much as one entire day; therefore, unless a record on appeal shows affirmatively that such, was not the case, an assignment of error based upon the action of the court in overruling such objection can not be sustained.</p> <p>3.—Evidence—-Contradictory Statement.</p> <p>A prior statement in writing by a witness, admittedly made by him, is admissible in evidence to rebut his testimony on the trial to the contrary effect; and this, though the testimony is not directly in conflict with the statement but tends strongly in that direction.</p> <p>3. —Practice—Objection to Answer.</p> <p>An objection to an answer as a whole is properly overruled when a part of the answer is competent testimony. Rule_applied.</p> <p>4. —Public Land—-Occupancy—Evidence.</p> <p>The issue being whether or not a plaintiff in trespass to try title had actually resided upon and occupied during certain years land purchased from the State, as required by law, tax receipts showing the payment by plaintiff of the taxes for said years would be irrelevant and immaterial.</p> <p>5. —Actual Settler—Definition.</p> <p>The definition of an actual settler, as that term is used in the statute concerning the occupancy of school land, as “one who actually occupies and settles upon the land intending to make it his home,” approved.</p> <p>6. —Special Issues—Preponderance of Evidence—Charge.</p> <p>A case having been submitted to a jury upon special issues, the court instructed the jury that the burden was upon the plaintiff to sustain the affirmative of the issues by a preponderance of the evidence, and added, “And you will bear this in mind in answering the foregoing questions.” Held, the charge was proper and not subject to the objection that it was upon the weight of the evidence.</p> <p>7. —School Land—Purchase—Forfeiture—Action of Commissioner—Effect.</p> <p>The action of the Commissioner of the Land Office in forfeiting a purchase of school land for failure of the purchaser to reside on the same as required by law, and making such endorsement on the application, is not conclusive of such fact, and in a suit to set the forfeiture aside the jury may be properly instructed to that effect, and that they must find the fact of non-occupancy without reference to the action of the Commissioner.</p>

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

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

<p>1.—Master and Servant—Safe Place to Work—Duty of Master.</p> <p>In a case where both carpenters and brick masons were engaged in the erection of a building and, in accordance with their duty and instructions, the • carpenters constructed a scaffold for the masons to work upon, and the masons took no part in the construction of the same, the master would he liable for personal injuries to a mason caused by a failure on the part of the carpenters to exercise ordinary care in the construction of the scaffold whereby the scaffold fell. It would be otherwise if the masons themselves constructed the scaffold.</p> <p>2.—Same—Duty of Blaster—Charge—Construction.</p> <p>A charge should be considered and construed as a whole. A charge upon the duty of an employer to furnish his employees a safe place to work, considered, and held subject to the objection that a certain paragraph of it imposed upon the employer the absolute duty of faultless construction of a scaffold, and of furnishing material free from defects, etc., still when the charge was considered as a whole said objection was cured by other portions of the same in which the jury was instructed, in effect, that the employer was not an insurer of a safe place to work, and the measure of the employer’s duty was ordinary care.</p> <p>. 3.—Same—Assumed Bisk.</p> <p>If an employee after going upon a scaffold discovered the immediate danger of its falling, and failed to use proper care to protect himself from injury, but remained thereon waiting for others to repair it, he assumed the • risk of his position. It would be otherwise if the scaffold fell after he discovered its dangerous condition and before, by the use of ordinary care, he could leave it.</p>

<p>Appeal from the District Court of Dallas County. Tried below before Hon. J. C. Boberts, Special Judge.</p>

<p>1.—Trespass to Try Title—Impleading Warrantor—Diligence.</p> <p>A defendant in trespass to try title has the right to implead his warrantor and require him to defend the action, and to recover over against him on his warranty in the same suit if the title fail; this right, however, must be exercised with reasonable diligence and so as not unnecessarily to delay the trial of the case.</p> <p>3.—Same—Application for Continuance.</p> <p>Where a suit of trespass to try title was filed fourteen days before the first day of the return term, and it was evident from the facts alleged that the defendant would not have had time, by any degree of diligence within the four days allowed for service, to cite eleven different warrantors residing in several different counties, it was error for the court to overrule its application for continuance to the end that said warrantors might be impleaded and that defendant might have judgment over against them in the event the title failed, and this, though the filing of the suit was delayed upon the request of the defendant in order that it might investigate whether the matter could be adjusted without litigation, there being no evidence that such request was not made in good faith.</p> <p>3. —Unknown Heirs—Citation by Publication—Void Judgment.</p> <p>In a suit against unknown heirs, the publication of the citation for only four, instead of eight, weeks will not give the court jurisdiction to render judgment in the case, and a judgment so rendered might be collaterally attacked on the ground that it is void.</p> <p>4. —Same—Evidence.</p> <p>In a suit against unknown heirs, evidence considered and held sufficient to overcome the presumption that the judgment was rendered upon proper service.</p> <p>5. —Limitation—Buying Adverse Claim.</p> <p>The mere fact that one in possession of land claiming title thereto, bought in an adverse claim would not of itself prevent his possession from being adverse to such claim; but it would be otherwise if he admitted the superiority of the claim.</p>

<p>1.—Hiparían Bights—Injunction.</p> <p>A riparian owner lias not' an unqualified common law right to have the waters of an adjacent stream flow by and over liis land in its natural state and quantity, without regard to whether he has any immediate use for the water. Hence a bill for injunction by a riparian owner to restrain other riparian owners from diverting the water of such a stream to lands not riparian, is insufficient when it fails to show that the petitioner has immediate use for the water and will suffer damage unless the defendants are restrained.</p> <p>3.—Same.</p> <p>A petition for injunction to restrain the defendants from using the water of a river upon non-riparian land, considered, and held insufficient to warrant the issuance of the writ.</p>