Volume 63 — Texas Civil Appeals Reports

<p>Appeal from the County Court of Robertson County. Tried below before Hon. B. D. Axtell.</p>

<p>Appeal from- the County Court of McLennan County. Tried below before Hon. Tom L. McCullough.</p>

<p>1. —Public School Land—Purchaser—Failure to Occupy—Authority of Land Commissioner.</p> <p>The act of the Commissioner of the Land Office in awarding public school land to a bidder who was not in fact an actual settler on the land, would be contrary to law, and would confer no right to the land on such bidder; and the alleged rights of such bidder or purchaser would be no impediment to the reinstatement of a prior purchaser, whose right had been forfeited for non-payment of interest, under the provisions of article 4218], Rev. Stats.</p> <p>2. —Same—Reinstatement of Purchaser—Statute Construed.</p> <p>Under the provisions of article 4218j, Rev. Stats., a purchaser of public school land whose right thereto had been forfeited for non-payment of interest would have an absolute right at any time thereafter to be reinstated as purchaser of the land upon compliance with the requirements of said statute, provided no lawful right of a third party had intervened. And an erroneous or unwarranted refusal of the Commissioner of the Land Office to recognize such right would not affect it, nor preclude the Commissioner from subsequently reversing Ms ruling.</p> <p>8.—Same—Substitute Purchaser.</p> <p>Where no intervening right exists, a substitute purchaser of public school land is in all respects treated as an original purchaser.</p> <p>2.-—Same—Purchase—Forfeiture—Reinstatement—Limitation.</p> <p>A purchase of school land was canceled on July 1, 1904, for default in payments; the land was sold to another purchaser on December 5, 1904; the first purchaser applied for reinstatement on March 24, 1908; on May 26, 1908, the Commissioner of the Land Office refused the application for reinstatement and confirmed the second sale; on September 19, 1908, the Commissioner reversed his ruling, canceled the second sale and reinstated the first purchaser; on June 6, 1908, the first purchaser filed suit against the second (or his substitute vendee) for possession of the land. Held, plaintiff’s suit was not barred by the one-year period of limitation prescribed by section 1 of the Act of 1905 (Laws 1905, p. 35).</p> <p>5.-—Same—Acts of Commissioner—No Estoppel.</p> <p>A sale of public school land was canceled by the Commissioner of the Land Office for default in payments, and the land sold to another; the second purchaser sold his right to a third party who was duly recognized by the Commissioner as a substitute purchaser; pending said last transaction, the first purchaser made due application for the cancellation of the sale to the second purchaser and a reinstatement of himself as owner of the land; the substitute purchaser had full notice of the pendency of said application for reinstatement, and suspended a consummation of the transaction until notified by the Commissioner that said application had been refused and that she was recognized by the Land Office as the owner of the land, when she consummated the transaction by paying the purchase money; thereafter the Commissioner reversed his ruling and canceled the sale to the second purchaser, and consequently to the substitute purchaser, and reinstated the first purchaser. Held, neither the State nor the Commissioner was estopped from reinstating the first purchaser.</p>

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

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

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

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

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

<p>1. —Statute of Frauds—Default of Another—Secondary Liability.</p> <p>An oral agreement to pay the debt of another, when merely secondary and collateral to the liability of the party primarily bound, is a promise to answer for the default .of another, and is within the second subdivision of our statute of frauds, and therefore not binding.</p> <p>2. -—Same—Evidence.</p> <p>In an action by mechanics to recover of the owner of a building a debt due them by the contractor, by reason of an oral promise by the owner to see the debt paid, evidence considered and held to show merely a secondary or collateral undertaking, and therefore within the statute of frauds.</p> <p>3. —Venue—Non-liability of Resident Defendant.</p> <p>The failure of a plaintiff to establish a cause of action against a resident defendant restores to a non-resident co-defendant the privilege to be sued only in the county of his residence, and a proper and seasonable plea asserting such privilege should be sustained.</p>

<p>1.—Limitation—Squatters—No Privity.</p> <p>Evidence considered, and held insufficient to raise the issue of title by limitation as to squatters upon land in respect to privity of title and adverseness of claim.</p> <p>2. —Same.</p> <p>Privity of claim and occupancy is a material fact in the establishment of title by limitation and can not be left to mere surmise or conjecture, but must he shown by competent and adequate evidence.</p> <p>3. —Same—Judgment of Ouster.</p> <p>The filing of a suit and a judgment therein in favor of the plaintiff against a party in possession of land, awarding to plaintiff the title and possession of the land, and an offer afterwards by the defendant to buy the land from the plaintiff, destroys the adverseness of the defendant’s possession and interrupts the statute of limitation.</p> <p>-I.-—Same—Adverse Claim—Insufficient Evidence.</p> <p>In a suit to recover possession of land, testimony by the defendant that he did not know that he actually claimed any land, but that he had hopes (having been told that the land belonged to no one), that he might get 160 acres, and that he did not know what was his purpose in settling on the land, clearly fails to show such adverse possession and claim as is ’necessary to support a. plea of limitation.</p>

<p>Attorney’s Fees—Act of 1909, Unconstitutional.</p> <p>The Act of 1909 (Gen. Laws, 1909, page 93) providing for the collection of attorney’s fees in suits against certain persons and corporations, is in violation of article III, .section 35, of the Constitution of 1876, in that the title of said Act recites, an Act allowing the recovery of attorney’s fees in certain suits when the amount of the claim asserted does not exceed $200, while in the body of the Act a recovery of attorney’s fees is permitted in all suits upon the same character of claims without regard to the amount thereof, and hence the subject of the Act is not expressed in the title,</p>

<p>Contract—Evidence—Market Value.</p> <p>When the evidence is conflicting as to the price agreed upon for a commodity, testimony as to the market value of such commodity at the same time and place is admissible as a circumstance to aid the jury in determining what the contract price was. And for the same purpose may testimony be admitted as to the price the commodity could have been bought for at the said time and place whether such price was the market price or not.</p>

<p>Evidence—Foreign Will—Statute Construed.</p> <p>Where the original copy of a will and the record of its probate in the State of California had been destroyed, and the same had been restored by a judicial proceeding in accordance with the statutes of said State, a certified copy of the will as restored and of the probate thereof would be competent evidence under the provisions of article 5353 of our Revised Statutes. The restored will and record would be for all legal purposes the originals, and a copy of the same would meet the requirement of our statute making a copy of the original competent evidence.</p>

<p>1.—Principal and Surety—Indemnity Bond—Concealment of Facts by Obligee.</p> <p>Cases may arise in which it would be the duty of the obligee in a bond voluntarily to disclose to one about to become surety thereon facts concerning the principal therein which affect the risk, such as facts showing a moral delinquency and utter unfitness for trust; the rule, however, does not apply to facts which only tend to show that 'the principal is negligent, dilatory or unskilful.</p> <p>3.—-Same.</p> <p>To a- suit upon the bond of subcontractor the surety plead that it was discharged from liability by reason of the fraud of the obligee in failing to disclose material facts which tended to enhance the risk and which were known to the obligee but unknown to the surety; evidence considered and held insufficient to establish said defense.</p> <p>3. —Same—Notice of Default.</p> <p>A surety who, long after the time named for completion of the work, signs, a bond for the faithful performance of the contract, is charged with notice that an extension of time had theretofore been granted the obligor, and can not complain of the same.</p> <p>4. —-Pleading—Amendment—Limitation.</p> <p>An amended petition correcting dates erroneously stated in the original petition, does not constitute a new cause of action.</p>

<p>1.—Fire Insurance—Suit by Executor and Heir—Pleading.</p> <p>In a suit by an executor on a policy of fire insurance, petition considered and held not subject to general demurrer on the ground that there was no allegation that the plaintiff was the owner of said property and in possession of the same both at the time of the issuance of the policy and at the time of the fire, nor that he was in possession and control of the property as executor both at the time of the issuance of the policy and at the time of the fire. The petition alleged that, although the policy was taken out in the name of the plaintiff, it was in fact taken for the benefit of the estate of which he was. executor, which fact was known to the defendant’s agent at the time the policy was issued.</p> <p>3.—Same—Ownership of Property—Waiver.</p> <p>When it is known to the agent of an insurance company at the time a policy of fire insurance is issued that the property insured belongs to an estate, although the policy is issued to the executor individually, the company can not defend, in case of loss, on the ground that the party insured was not the sole owner as stated in the policy.</p> <p>3. —Same—Liability of Agent.</p> <p>Where, in a suit upon a fire insurance policy, the company sought to recover over against its agent on the ground that the agent had violated instructions and exceeded his authority, pleading and evidence considered, and held to justify a verdict in favor of the agent, on the ground that the agent acted in good faith and that the company ratified the acts of the agent in so far as his acts exceeded his authority.</p> <p>4. —Trial—tTncontradieted Testimony—Contrary Verdict.</p> <p>A jury is not bound to believe a witness although his testimony is not directly contradicted by any other witness, especially so when there is testimony tending to show that his testimony was not true.</p> <p>5. —Fire Insurance—Defense—Burden of Proof.</p> <p>The burden of proof is on the insurance company to prove that it would not have issued a policy of insurance on certain property had the facts concerning the ownership and location of the property been known.</p>

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

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

<p>Appeal from the District Court of Galveston County. Tried below before Hon. Clay S. Briggs.</p>

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Action by F. C. M. Greb against the Galveston, Houston & Henderson Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. —Vendor and Purchaser—Shortage in Amount—Abatement of Price— Evidence—Parol Agreement—Ambiguity.</p> <p>The question being as to the right of a purchaser of land to show a contemporaneous parol agreement by the vendor, in tli"e event a shortage in the acreage specified was shown by subsequent survey, that its proportional price should be deducted from one of the purchase money notes,—the contract of sale, which is here considered, is held so far ambiguous as to whether the sale was in bulk for a lump sum or one by the acre as to permit proof of such parol agreement. Mr. Justice Rice dissenting.</p> <p>2. —Vendor and Purchaser—Homestead—Wife’s Separate Property—Gift.</p> <p>The husband having contracted to sell a tract of 490 acres of land, including the homestead, had the purchase money notes made payable to his wife, agreeing that they should be her separate property on consideration of her signing the deed. The notes were for $15,000, in ten equal annual payments. In suit by her thereon the purchaser claimed credit on the last note of the series, by reason of shortage in the land and a parol agreement with the husband entitling him to such credit. Held that the husband could not defeat the purchaser’s right to such credit by taking the notes to the wife as a gift to her; that her homestad rights, extending to only 200 of the 490 acres, were not affected by the credit claimed, it being upon only one of the ten notes; and that the wife, being present and assenting to such parol agreement for allowing such credit, was equally bound with her husband thereby.</p> <p>3. —Abatement of Action—Vendor and Purchaser—Notes Maturing by Default.</p> <p>It was agreed that a default in the payment of interest on any should mature each of a series of purchase money notes for deferred payments for land; a dispute arose as to a credit claimed by the purchaser on the last note of the series by reason of shortage in the land, and on his refusal to pay the first year’s, interest thereon the holder of the notes sued on the entire series; the defendant plead in abatement that the suit was premature, he having tendered payment of interest on all the notes except the one last maturing, and claiming that the shortage entitled' him to credit-for the full amount of that one; it being found that he was entitled to a credit thereon, but not for its full amount, it is held that his tender did not cover the full interest due; that such default authorized the holder to declare all the notes to be due, and that the plea in abatement was improperly sustained.</p>

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

<p>Appeal from the District Court of Travis County. Tried below before Hon. Chas. A. Wilcox.</p>

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

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

<p>Vendor’s Lien—Indorsement of Note—Priority of Payment.</p> <p>The holder of four notes for purchase money of land, secured by vendor’s lien, transferred to another, by indorsement in blank, the note first maturing; he made defendant to his suit to foreclose the lien of the remaining notes the holder of the one so transferred, and the latter, under pleading asserting the priority of his lien and personal liability of the indorser -on the assigned note, had judgment for prior payment out of the proceeds of the foreclosure sale. Held that the judgment was correct, the liability of an indorser, when properly fixed, having the same effect as to the priority of the lien as his guaranty of its payment (Anderson v. Perry, 98 Texas, 493) and the judgment rendered, the maker of the note being insolvent, was a proper method of enforcing such personal liability as indorser without circuity of action.</p>

<p>Appeal from the County Court of Jones County. Tried below before. Hon. Jas. P. Stinson.</p>

<p>1.—Removal of County Seat—Center of County—Certificate of Commissioner.</p> <p>The mere fact that a former certificate by the Commissioner of the General Land Office fixed the center of a county at another and different point from that fixed by a more recent certificate, would not alone render the later certificate void.</p> <p>3.—Same—Discrepancy in Certificates—Presumption.</p> <p>When a certificate by the Commissioner of the Land Office fixes the center of a county at a different point from that fixed many years before, in the absence of a direct attack upon the later certificate on the ground of fraud or mistake, it will be presumed that a difference in the data on file in the Land Office (from which the calculation must be made) was the cause of the difference in the certificates. Neither the Constitution nor the statutes limit the people of a county to the right to demand, or the Commissioner of the Land Office to the issuance of, only a single original certificate as to the center -of a county. This may be done as often as occasion requires.</p> <p>3.—Same—Interest of County Judge.</p> <p>If the act of a county judge in requesting the Commissioner of the Land Office that he designate the center of the county, and if the act of the Commissioner, in complying with such request, he legal, then neither the motive of the county judge in making the request, nor the fact that he was pecuniarily interested in a removal of the county seat, which, depended upon the decision of the Commissioner, would be material.</p>

<p>Beconvention—Appeal—Jurisdiction—No Final Judgment.</p> <p>When, in a sequestration suit, the judgment fails to dispose of a plea in reconvention, it is not final, and a Court of Civil Appeals would have no jurisdiction of an appeal therefrom. Such a plea is separate and distinct from the plaintiff's cause of action, and the judgment should dispose of the entire controversy between all the parties.</p>

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

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

<p>1.—Landlord and Tenant—Bents and Advances—Pleading.</p> <p>In a suit by a landlord for rents and advances, petition considered, and held not subject to exception on the ground that it did not give the different items of the account sued on nor the value thereof. The same particularity in pleading is not required in such case as in a, suit upon an account, strictly speaking.</p> <p>3.—Same.</p> <p>The fact that, some time after a pair of mules were furnished by a landlord to his tenant to enable him to make a crop, that item of the indebtedness of the tenant to the landlord was closed by a promissory note, would not,, in a suit by the landlord against the tenant for advances and supplies, including the item of the mules, render inadmissible testimony as to the value of the mules, it not appearing that the note was negotiable nor that it had been paid.</p> <p>3.—Same—Jurisdiction—Parties.</p> <p>In a suit for rent and to foreclose a landlord’s lien, a party to whom the tenant had sold a part of the crop on which the landlord sought to foreclose his lien, would be a proper party defendant, and the District Court would have jurisdiction to foreclose the lien on said property in the possession of said third party and render judgment for the value thereof, though such value was less than $500.</p>

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

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

<p>On motion to reconsider opinion and to certify to Supreme Court.</p>

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

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

<p>1.—Replevy Bond—Supersedeas Bond—Action Against Sureties.</p> <p>An action may be maintained against the sureties on a replevy bond or on a supersedeas bond without joining the principal in the bond when such principal is actually and notoriously insolvent; and this may be done in an independent suit after the termination of the original suit.</p> <p>S.—Same—Suit for Rents.</p> <p>After the termination of the original suit an independent suit may be brought on a replevy bond or a supersedeas bond for the recovery of rents which accrued pending -the original suit.</p> <p>3.—Same—Wife Not Liable.</p> <p>A wife is not liable, and therefore not a proper party to a suit, upon a replevy bond or a supersedeas bond given in a litigation involving community property.</p>

<p>1.—J urisdiction—Partition—Estate.</p> <p>Of a suit by a devisee and legatee against an independent executrix and others for the recovery of property, both real and personal, alleged to belong to the estate of the testator and withheld from the assets of the estate under a claim by the testatrix that it belonged to her and her co-defendants, the District Court would have jurisdiction to determine the title to said property and to decree a partition thereof, as well as other property of the estate, among the owners; this, against the contention that the County Court in which the will was probated had exclusive jurisdiction.</p> <p>2. —Independent Executrix—Conversion—Liability.</p> <p>As against a contention that an independent executrix who had appropriated the property and funds of the estate would be liable to the devisees and legatees only for the value of the property converted, and not for the specific property into which said property and funds had been converted, held, the liability of the testatrix, and its extent, must be determined, not by the principles of law applicable to a survivor of the community, but by those which govern such an executrix in the discharge of her duty. As to the interest of the devisees in the estate, she was a trustee and charged with the duties of a trustee in its management; the eestuis que trust could follow their funds and recover the specific property in which they had been invested.</p> <p>3. —Same—Profits of Business.</p> <p>An independent executrix cannot by “taking over’’ or appropriating a mercantile business belonging to the estate and offering to account to the legatees for the value of the business at that time, deprive them of their interest in the profits of the business thereafter accruing.</p> <p>4. —Trustee and Cestui que Trust—Limitation.</p> <p>Before the statute of limitation will run in favor of a trustee it is incumbent upon him to show not only that he had repudiated the trust, but that knowledge of such repudiation had been brought home to .the cestui que trust.</p> <p>5. —Independent Testatrix—Donation—Partition.</p> <p>Where a surviving wife as independent executrix of the community estate undertakes to donate to a third party an interest in the community property, such donation, on partition cff the estate, should be charged to the interest of the wife in the estate.</p> <p>6. —Same—Allowance for Support.</p> <p>Where it appeared that a surviving wife as independent executrix of her husband’s community estate had, during the first year after her husband’s death, withdrawn from the estate an amount of money amply sufficient for the support of herself and her minor children; and where it appeared also that both the wife and the children had separate estates sufficient for their support and maintenance, the court, on partition of the estate, properly refused to allow the widow any amount for a year’s support.</p>

<p>Divorce—Cruel Treatment Tby Wife—Pleading.</p> <p>In a suit for divorce by a husband on the ground of. excesses and cruel treatment on the - part of his wife, the plaintiff alleged that the defendant, without provocation, hated and abused plaintiff’s daughter while she was in affliction; that she defamed the memory of plaintiff’s dead wife; wantonly assailed plaintiff’s character; published him as lazy, indolent and good for nothing; demanded his expulsion from a benevolent society as unworthy of its membership; assaulted him, abused him, applied to him opprobrious epithets, in the hearing of others; hated him; excluded him from his own dwelling, and had ceased to perform towards plaintiff the duties of a wife. Held sufficient, as against a general demurrer.</p>

<p>1.—Illegal Contract—Eight of Action.</p> <p>•One may maintain action for his share of property conveyed to another for their joint benefit, irrespective of the means by which the conveyance was procured, his right resting on the contract, and not on the manner of its procurement. But it is otherwise where, in order to show his own interest, he must show that he procured the conveyance to another in pursuance of an agreement with the grantee to share the profits, and in so doing it appears that he procured it by fraudulent means and abuse of confidential relations.</p> <p>3.—Contract—Brand—Public Policy—Confidential Eelations.</p> <p>One who promoted the making of a contract by which property was acquired by another from a third party, by his use of the personal influence arising from his confidential relations with such person, the party benefited, agreeing with him to share the profits, and his interest being concealed from the other, to whom he represented himself as a disinterested and friendly adviser, could not maintain action for his agreed share of the proceeds, the transaction being fraudulent and against public policy.</p> <p>3.—Same—Briendly Eelations.</p> <p>Mere professed love and friendship may be sufficient to establish such confidential relations that public policy will forbid the enforcement of a contract obtained by their abuse,</p>

<p>1. —Lien—Creation by Parol.</p> <p>A lien on personal property may be created by an agreement not in writing; and an equitable lien is created by an agreement to give security.</p> <p>2. —Same—-Homestead—Case Stated.</p> <p>A lien created by agreement, not in writing, to give security for money advanced to purchase machinery, on the property so purchased (an ice manufacturing plant) which was to be placed by the purchaser on lots constituting his homestead, was not defeated, as against the homestead exemption, by such machinery being subsequently placed on and becoming attached to the exempt realty, though the mortgage executed in pursuance of such agreement was given after the machinery was so attached.</p> <p>3. —Homestead—Value—Question of Pact.</p> <p>Evidence considered and held to support a finding that the urban homestead of defendant exceeded $5000 in value at the time he purchased other lots sought to be made subject to his debts, and that these did not become a part of his homestead.</p>

<p>Appeal from the District Court of Galveston County. Tried below before Hon. Clay S. Briggs.</p>

<p>1.—Corporation—Stockholder—Transfer of Stock—Effect.</p> <p>A transferee of the stock of a corporation is entitled to all the privileges, rights and benefits of the original owner, and by a transfer the original owner divests himself of all such rights, privileges and benefits; but the rights, privileges and benefits referred to are those only which are incident to the ownership of such stock in common with all other stockholders, and can not include a cause of action then vested in the assignor against a third party for breach of a previous .contract in the sale of said stock.</p> <p>3.—Same—Purchase and Sale of Stock—Breach of Contract.</p> <p>Plaintiff agreed with defendants to surrender to them all of his interest and rights in a certain corporation and to procure for the defendants a conveyance to them of the legal title to the assets of the corporation; and the defendants in consideration of such surrender and transfer agreed to organize a new company with a certain capital stock, a part of which should be paid in by the defendants and applied to the payment of debts and the discharge of liens on the property of the old company which was to be conveyed to the new corporation; and the balance of the capital stock was to be paid in cash and used in carrying on the business of the new corporation; and to -issue to plaintiff a certain amount of the stock of the new corporation. Held, a mere loan or advance of money by the defendants to the new corporation for the purpose of paying the debts of the old company was not the same as paying the same amount of money. as subscription to the capital stock of the new company, and constituted a breach of their contract by the defendants, for which the plaintiff alone and ^pt a transferee of his stock in the new corporation, could maintain an action.</p> <p>3. —Promoters—Breach of Contract—Cause of Action.</p> <p>Breach of contract for the acquisition of property by the promoters of a corporation, considered, and held to vest in the party alone from whom the property was acquired, and not in the corporation after it was organized nor in the stockholders generally, a cause of action for damages.</p> <p>4. —Contract—Pleading—AUegations in Explanation—Mo Variance.</p> <p>Allegations which do not seek to vary or change the terms of a written agreement, but are only intended to supply the facts necessary to explain its ambiguities, are permissible in a suit upon the contract.</p> <p>5. —Same—Absolute Sale—Mo Lien for Purchase Money.</p> <p>Where one who had a contract to purchase real and personal property transferred his right or option to a third party for an agreed consideration, and the property was subsequently conveyed, absolutely and without the reservation of any lien thereon to the transferee, the fact that the" transferee failed to pay to the transferrer the consideration agreed upon, would not give the _transferrer a lien on the property to secure a judgment which might be ob-tamed by him in a suit for damages for breach of contract. The transferrer never had title to the property, and hence did not himself convey any.</p> <p>6.—Venue—Fraud.</p> <p>Where fraud is the basis of an action, the venue may be laid in the county in which the fraud is alleged to have been perpetrated, although the defendants are non-residents of such county.</p>

<p>Justice Court—Jurisdiction—Appeal.</p> <p>A Court of Civil Appeals has no jurisdiction of an appeal from a County Court when the cause of action was an account for more than $200 and the suit originated in a Justice Court.</p>

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

<p>1. —Trespass to Try Title—Parties—Cross Action—Change of Boundaries.</p> <p>In trespass to try title, tbe issue being one of boundary, all persons in possession of and claiming land which would be within the tract claimed by plaintiff are proper parties to the suit, even though they claimed under different patents; and one defendant may pray for judgment over against a co-defendant if a change in the boundaries proves such co-defendant to be in possession of his land. But it would not be permissible, upon the prayer of one of the original defendants, to make another party, who was not in possession of any part of the land claimed by plaintiff, a defendant simply because a change in the boundaries might necessitate a suit by the original defendant against such third party.</p> <p>2. —Trial—Special Issues.</p> <p>The true function of special issues is to elicit the- material facts established by the evidence, and not the evidence by which they are established; and hence they should be framed with a view to that purpose. Buie illustrated.</p> <p>3. —Same—Practice.</p> <p>Where the only material issue is one of boundary, and a determination of the question involved a construction of an entire block of surveys, the determination of conflicting calls, the relative importance of calls as read in the light of surrounding circumstances,, which construction most harmonized with the greatest number of material calls and with the interest of the locator, etc., the better practice would be to submit the case by a general charge' rather than by special issues.</p> <p>ON REHEARING.</p> <p>4. —Appeal—Waiver of Objection to Testimony.</p> <p>A failure to present and urge by an appropriate proposition under an assignment of error an objection which was urged on the trial to the admission of testimony, will be construed on appeal as a waiver of that particular objection; and this, though the said objection was preserved in a bill of exception and comprehended in the general terms of the assignment of error. Conner, Chief Justice, dissenting.</p> <p>5. —Estoppel—Introduction of Improper Evidence—Practice.</p> <p>When a party introduces improper testimony over the objection of his opponent he will be estopped to complain that the court permitted his opponent to introduce testimony bearing on the same fact and subject to the same objection. Conner, Chief Justice, dissenting.</p>

<p>1. —Injunction—Appeal—Limitation as to Time—Statute Construed.</p> <p>Under the provisions of the Act of 1909 (Gen. Laws, 1909, page 354), the limitation of 15 days within which to file the transcript in a Court of Civil Appeals in an appeal from an order of a trial court granting, refusing or dissolving an injunction, applies only to temporary writs of injunction, and does not embrace or attempt to control appeals from the final judgment entered in the cause, even though such judgment incidentally determines the right to an injunction. Said Act neither grants nor regulates the right of appeal from final judgments in injunction cases. Hence, when the dissolution of an injunction is a part of a final judgment, the transcript for appeal need not be filed in tiie appellate court within 15 days after the entry of the judgment; nor is such cause entitled to be advanced on the docket of the appellate court.</p> <p>2. —Same—Prevention of Multiplicity of Suits.</p> <p>The District Courts in this State may issue injunctions to prevent a multiplicity of suits; but this rule applies only in cases in which the multiplied suits sought to be enjoined had been instituted or were threatened by persons claiming in a single right separate causes of action arising from the same source.</p> <p>3. —Same.</p> <p>The mere fact that numerous parties hold separate instruments upon which there might be separate suits, is not sufficient to justify a court of equity in entertaining an action by the debtor to compel such parties to litigate their claims collectively in a forum which he selects but which would not have jurisdiction of the claims separately; and this, even though the validity of all said instruments is attacked upon a common ground.</p> <p>4. —Same—Pleading—Insufficient Equity.</p> <p>In an action instituted against a number of defendants seeking the construction of certain contracts concerning the sale of land, and the adjustment ■of the pecuniary liability among the several parties growing out of such contracts, and praying a writ of injunction restraining the defendants from the commission of certain acts therein complained of, petition considered, and held subject to general demurrer.</p> <p>5. —Same—Discovery—Statute.</p> <p>Because of the provisions of article 2293, Revised Statutes, giving either party to a suit the right to propound interrogatories to the adverse party, the doctrine of discovery has no application under our system of procedure, and is not sufficient ground for the interposition of a court of equity by injunction.</p>

<p>Appeal from District Court, Mitchell County; Jas. L. Shepherd, Judge.</p> <p>Action by Ed J. Hamner against B. N. Garrett and others. From a judgment dismissing the petition, plaintiff appeals.</p>

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

<p>Appeal from District Court, Dallas County; Kenneth Force, Judge.</p> <p>Action by S. W. King, Jr., against M. L. Leonard. From an interlocutory order appointing a receiver, the defendant appeals.</p>

<p>1. —Continuance.</p> <p>It seems that a first application for continuance which complies with the statutory requirements does not give an absolute right to the continuance, but merely makes a prima facie case that the court abused his discretion in case it is overruled. Hipp v. Bissell, 3 Texas, 18, and subsequent cases following it, distinguished.</p> <p>2. —Same—Discretion Not Abused.</p> <p>Where a first application for continuance was not a literal compliance with the statute in that it did not state the cause of the absence of the witnesses or that the cause was unknown, and 'where it was not shown that the absent witnesses, who were in the employ of the applicant, had been notified of the day set for trial, and where their testimony, as shown by the application, was merely cumulative and not upon matters seriously contested, no abuse of his discretion appeared in the action of the court in refusing continuance.</p> <p>3. —Evidence—Expert—Harmless Error.</p> <p>Admission of the opinion of a witness as to the space within which a train could be stopped under certain circumstances, over the objection that he was not qualified as an expert, was not ground for reversal where proof to the same effect was made by a witness for the complaining party, and was not controverted.</p> <p>4. —Evidence—Buies of Employment.</p> <p>Evidence that the view of the track at a curve in a railway was obscured held sufficient to warrant the introduction of a rule of the company requiring the sounding of the whistle "in rounding curves of that character.</p> <p>5. —Evidence—Opinion—Belevancy.</p> <p>Evidence of an experienced engineer as to the danger to a train from coming in collision with a handcar was not speculative, except in the sense that all expert testimony may be said to be so; nor was such evidence immaterial where an issue was involved as to the negligence of the injured party in endeavoring to remove a handcar to avoid collision with the train, in the interest of saving life.</p> <p>6. —Discovered Peril—Charge—Evidence.</p> <p>Evidence considered and held sufficient to raise the issue as to negligence of an engineer of a train in failing to use due effort to stop after discovering parties on the track and in peril, and to justify the submission of a charge on that subject. The jury were not bound to accept the engineer’s statement as to the distance of such parties when discovered, though no witness swore to the contrary.</p> <p>7. —Charge—Not Prejudicial.</p> <p>Appellant can not complain of a charge which was erroneous, if at all, only because too fayorable to himself in its effect.</p> <p>8. —Same—Refused Charge.</p> <p>No prejudice to appellant was shown by the refusal of his charge eliminating a certain issue from consideration, where such issue was not submitted to the jury.</p> <p>9. —Charge—Contributory Negligence—Effort to Save Life.</p> <p>The issue as to the contributory negligence of the injured party turning on the question as to the propriety of his conduct in the effort to save" the lives of others, charges which held him negligent if he placed himself in a position of danger, ignoring such rights and duties on his part, were properly refused.</p> <p>10. —Negligence—Railway Train—Duty to Keep Lookout.</p> <p>Where a train behind time and running rapidly collided with a handcar in a cut which it had entered without blowing a whistle, a charge that those operating it owed no duty to those on the handcar till they discovered their peril was properly refused. They owed ordinary care to discover them.</p> <p>11. —Contributory Negligence—Effort to Save Life.</p> <p>Exposure of oneself to danger in the effort to save the lives of others is not negligence if the injured party has not by his own negligence produced their dangerous situation and his conduct is not rash or reckless.</p> <p>ON" MOTION FOB BEHEABING.</p> <p>13.—Same.</p> <p>Where the conduct of the injured party did not cause hut merely brought about the condition of peril to others in trying to avert which he was injured, the jury having found that he was not guilty of negligence proximately contributing, his right and duty to expose himself to danger for their protection remained, and a charge treating his act as negligence without reference to such duty was properly refused.</p>

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

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

<p>1.—Telegram—“In Care of”—Delivery.</p> <p>When a telegram is directed in care of anyone, a prompt delivery by the telegraph company to the one in whose care it is addressed, is all the law requires. Therefore in an action for damages for delay in delivering a telegram sent in the care of a third party, the plaintiff must prove that it was not delivered within a reasonable time either to the party in whose care it was sent or to the addressee.</p> <p>3.—Telegram—Negligence in Delivery—Notice of Damages.</p> <p>A telegram sent from one place, reading as follows, “Come at once, your mother died this p. m.,” would.not be notice to the telegraph company that the deceased was to be buried at a. different place, and that delay in delivering the telegram might prevent the addressee from attending the funeral. “</p>

<p>1. —Wills—Construction.</p> <p>The primary and controlling rule to be observed in the construction of a will is to endeavor by a study of each and every part of it to ascertain the intention and desire of the testator, and when that is discovered it should be put into execution.</p> <p>2. —Same—Community Estate—Election.</p> <p>The language, “my estate,” “the rents and revenues of my estate,” “all my property, real, personal and mixed,” used by a husband in his will, would not indicate an intention on the part of the testator to devise the interest of his wife in the community estate. In the absence of clear and explicit language in the will of her husband showing an intention to dispose of the entire community estate, the wife will not be put upon her election, and will not be estopped from claiming her interest in the community estate by accepting under the will.</p> <p>3. —Same—Purpose of Bequest.</p> <p>The will of a husband contained the following provisions: "I will and bequeath to my beloved wife the rents and revenues of my estate during her life for her support and maintenance and for the education and support of my unmarried children.” Held, the rents and revenues from the community estate became the wife’s absolutely during her life, and the bequest was not modified nor lessened in its scope by the advisory language naming the purpose for which it should be used. It was not a trust estate. But, if considered as encumbered with a trust, such condition existed only until the children were educated or married.</p> <p>4. —Same—Creation of Trust Estate.</p> <p>Whenever in a will the objects of the supposed recommendatory trust are not certain nor definite; whenever the power to which it is attached is not certain nor definite; whenever a clear discretion or choice to act or not to act is given; whenever the prior "dispositions of the property import absolute and uncontrollable ownership, courts of equity will not create a trust from merely precatory words.</p>

<p>1.—Promissory Mote—Alteration—Release of Endorser.</p> <p>At the time a promissory note was endorsed by an accommodation endorser it read payable to “myself/’ meaning the maker of the note; subsequently and without the knowledge or consent of the endorser, the maker added after the word “myself” the name of the party to whom he negotiated the note; the maker endorsed the note at the time he negotiated it. In a suit by the party to whom the note was negotiated against the maker and endorser, held that said alteration released the endorser from liability thereon.</p> <p>3.—Same—Public Policy.</p> <p>Any unauthorized alteration in a written instrument will release the parties thereto. It is not necessary that the alteration should be material or injuriously affect the complaining party; it would have the same effect even though.the alteration was beneficial to the complaining party. The rule rests upon public policy. An alteration, however, which works no change, but leaves the terms of the contract the same as before, will not vitiate it.</p>

<p>1. —Judgxnent—Executor—Appeal.</p> <p>A judgment is to be construed in the light of the entire record in determining whether it is against the defendant personally, or in a representative character. The suit being against defendant as executor, a judgment against Mm, not mentioning his capacity, is to be taken as one against him as executor and he may appeal as such.</p> <p>2. —Homestead—Descent and Distribution.</p> <p>On the death of one intestate and insolvent, and leaving a wife but no descendants, the homestead, community property, passed to the wife. The independent executor of her will was not liable for a debt contracted by her husband in his lifetime and not assumed by her; nor was it assumed by a direction in her will that all her just debts should be paid.</p>

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

<p>1. —Fraud—Conveyance—Vendor’s Lien.</p> <p>Land having been conveyed by the owner to a father, his son acquiring in the transaction part of the notes given by the father for the purchase money (in consideration partly of cash and partly of the cancellation of a note due to him by the vendor) the evidence is considered and held to support, if not to require, a finding that the transaction was a bona fide sale to the father, and not a fraudulent device for acquiring the land by the son without subjecting it to execution against, him.</p> <p>2. —Execution—Holder of Vendor’s Lien—Trust.</p> <p>The ownership by an assignee of notes secured by a vendor’s lien is not such an interest in land by him as can be sold under execution. Transaction considered and held to show a mere acquiring "of such notes by the assignee, and not of an interest as beneficiary of a trust in the title to the land held by the purchaser, the maker of the notes.</p> <p>3. —Same—Liability in Equity.</p> <p>An equitable interest in land, not liable to execution, hut which might, by a court of equity, be subjected to the payment of the judgment debt of the holder, can not be so subjected under pleadings which assert only a right to sell it under execution.</p>

<p>Appeal from the County Court of Haskell County. Tried below before Hon. Joe Irby.</p>

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

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

<p>Appeal from the County Court of Haskell County. Tried helow before Hon. Joe Irby.</p>

<p>1. —Pleading—Petition and Exhibit—Variance.</p> <p>In a suit by a corporation upon a verified account the petition alleged a cause of action against an individual, naming him, doing business under the firm name and style of a mercantile company; the verified account attached as an exhibit to the petition and made a part of it, evidenced an account against the mercantile company only. Held, the petition and exhibit were contradictory, and an exception to the petition raising the point should have been sustained.</p> <p>2. —Practice—Trial—Overruling Exception.</p> <p>When the court overrules an exception to the petition and evidence is admitted and the trial proceeds on the pleading as it stands, it is proper for the court to refuse an instruction to find for the excepting party after the evidence is all in; otherwise the court would practically rule on the pleaüing after the trial is concluded and deny the other party an opportunity to amend.</p> <p>3. —Pleading—Uefunct Corporation—Liability of Officers.</p> <p>While the statute of 1907 (Gen. Laws, 1907, First Called Session, page 505), may render the directors and officers of a corporation, whose right to do business has been forfeited for non-payment of its franchise tax, liable personally for debts thereafter incurred in the corporate name, still to have this effect the suit should be based on the statute and the facts should be specifically alleged. Such relief should not be granted in an ordinary suit against the corporation, as an existing entity upon simple proof that the corporation is defunct.</p> <p>4.—Evidence—Records of Public Office.</p> <p>The records of the office of the Secretary of State are the best evidence of the facts shown by such records, and the depositions of the Secretary are not admissible for that purpose. Rule applied as to proof of the forfeiture of the right of a corporation to do business because of non-payment of its franchise- tax.</p>

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

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

<p>1. —Telegraph Company—Negligence—Lex Loci Contractus.</p> <p>The law of the place .where a contract is made with a telegraph company for the transmission of a message, will control in determining the liability of the company for failure to promptly transmit and deliver the same.</p> <p>2. —Same—Law of Alabama.</p> <p>Under the laws of Alabama, damages for mental suffering are recoverable against a telegraph company for negligent failure to transmit or deliver a death message where a right of recovery is shown for some matter of actual damage aside ffom such injuries; as, for instance, a right to recover the toll or charge paid for the transmission of the message.</p> <p>3. —Same—Bight to Becover Charge Paid for Message, Gives Bight to Becover for Mental Suffering.</p> <p>Under the laws of Alabama a right to recover a toll or charge of sixty-five cents for the transmission of a telegram gives a right to recover nine hundred and ninety-five dollars for mental suffering caused by failure to deliver the same.</p> <p>4. —Same—Telegram—Agency of Seftder.</p> <p>One who sends a telegram upon the happening of a certain contingency in accordance with a previous request or directions of the sendee, is the agent of the sendee for that purpose.</p> <p>5. —Appeal—Insufficient Assignment.</p> <p>An assignment of error that the judgment is without pleading and evidence to support it, is too general to require consideration.</p>

<p>1.—School Land—Purchaser—Settlement and Residence—Statute.</p> <p>The Act of May 16, 1907, Laws Thirtieth Legislature, page 490 (First Called Session), requiring that purchasers of school land “in person reside continuously” on the land for three years repealed the permission given by the former law to reside elsewhere for six months in the year for the purpose of educating their children or making money to pay for the land, hut did not otherwise change the character of residence required. It did not mean that the pur1 chaser should never be absent from the land.</p> <p>3.—Same—Other Residence.</p> <p>The fact that no other residence was acquired by the purchaser of school land in his absences therefrom, though not conclusive, is to be considered in determining whether his absences were an abandonment of his residence on the land.</p> <p>3.—Same—Absence from Land.</p> <p>Evidence considered in an action to forfeit the title of a purchaser of school land for failing to maintain his continuous personal residence on the land, he being absent at various times and for various purposes, and held to support a finding that the purchaser’s title was not forfeited thereby. Bustin v. Robison, 102 Texas, 526, followed, and Andrus v. Davis, 99 Texas, 303, distinguished.</p>

<p>1. —Carriers of Passengers—Negligence—Pleading—Res Ipsa Loquitur.</p> <p>Where plaintiff’s petition alleged injuries received in a head end collision between trains on defendant’s road, charged to have been occasioned by certain specific acts and omissions on defendant’s part, none of which was supported by evidence in proof of such specific negligence, he can not rely on the doctrine of res ipsa loquitur as supporting a conclusion of negligence generally, but is held to proof of the particular default alleged. Nor can he introduce evidence of negligence other than that so alleged.</p> <p>2. —Examination of Witness—Misconduct of Counsel.</p> <p>The action of counsel in asking and of his client in answering questions calling for evidence which he must have known to be both inadmissible and prejudicial to his opponent, before objection could be interposed, is held ground for reversal, though withdrawn on objection, with instruction by the court that it be disregarded, where a large verdict for plaintiff may have been influenced by such evidence.</p>

<p>Hallway—Overflow—Negligence—Sufficiency of Evidence.</p> <p>The evidence is held sufficient to support a recovery against a railway company for damages by overflow caused by improper construction of its "bridge, approaches, etc., across the Brazos River!</p>

<p>Appeal from District Court, Waller County; Wells Thompson, Judge. Action by A. F. Buchanan and others against the Houston & Texas Central Railroad Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. —Assignment o£ Error.</p> <p>An assignment should show whether the error alleged consisted in rulings as to admission of evidence, in charges given or refused, in refusing a new trial, or in some other particular. One that does not identify the proceeding complained of is insufficient.</p> <p>2. —Same—Briefs—Statement.</p> <p>An assignment or proposition followed by no statement or by an insufficient one will not be considered. Examples: reference to the transcript for a bill of exceptions to show what evidence was admitted and over what objections; giving or refusing charges which are not copied.</p> <p>3.—Evidence—Household Goods—Value to Insured.</p> <p>The admission of evidence by the insured as to the value of the property (household goods) to her was not ground for reversal where the verdict, as to amount, was sustained by other evidence not controverted, no market value for such second-hand goods was shown, and her estimate appeared to be based, not on any sentimental valuation, but on the cost of replacing them. The latter and not what they could be sold for as second-hand goods, was the measure of damages.</p>

<p>1.—Judgment—Cloud on Title—Collateral Attack—Service of Process.</p> <p>Suit by a purchaser of land to remove the cloud cast on his title by the recorded abstracts of judgments in Justice Court against his vendor was not a direct, but a collateral attack on such judgments, and testimony of his vendor that he was never served with citation in and had no notice of those suits was inadmissible to contradict the recital of service in the judgments and the citation and officer’s return showing same.</p> <p>2. —Same.</p> <p>A purchaser of land from one against whom there are judgment liens of record is not entitled to maintain a direct action to avoid such judgments as being obtained without service on his vendor. Only the parties to a judgment, can bring suit to set it aside.</p> <p>3. —Judgment—-Action to Set Aside—Service of Process—Sufficiency o£ Evidence.</p> <p>As against a recital of service in a judgment and the officer’s return on citation showing same, the testimony of the defendant, an interested party, that he was not in fact served is, it seems, insufficient by itself to establish such fact.</p>

<p>Appeal from the County Court of Nueces County. Tried below before Hon. Walter F. Timon.</p>

<p>1. —Pleading—False Imprisonment—Malicious Prosecution.</p> <p>Pleading in a suit for damages considered, and held to state a cause of action for false imprisonment, but not for malicious prosecution.</p> <p>2. —Reforming Judgment—Practice.</p> <p>When the several items of. damage sued for are found separately by the jury and so stated in the verdict, the judgment may be corrected or. reformed when necessary by striking out any one of the items arid leaving the others.</p> <p>3. —False Imprisonment—Telegram.</p> <p>Any unlawful detention of a person constitutes false imprisonment. A telegram is not a lawful warrant of arrest, and the taking of a person into custody by virtue of the same is illegal.</p> <p>4. —Same.</p> <p>One who prepares a telegram, causes a peace officer to sign it, and causes it to be transmitted by the telegraph company, is responsible for an unlawful arrest made by virtue of the same, although it is signed by the officer. Both the telegram and the answer thereto are competent evidence against the party causing it to be sent.</p> <p>5. —Same—Pleading—Charge."</p> <p>Where damages are claimed for false imprisonment of the wife alone, it is error for the court to refuse a special charge limiting the jury to a consideration of the damages suffered hy her, although the husband was illegally imprisoned at the same time and joins in the suit for said damages.</p> <p>6.—Same—Advice of Counsel.</p> <p>That a party guilty of false imprisonment acted under the advice of counsel in causing the arrest may be shown and considered by the jury in determining the question of malice and in mitigation of exemplary damages.</p>

<p>Appeal from the County Court of Nueces County. Tried below before Hon. Walter F. Timon.</p>

<p>Appeal from District Court, Harris County; Chas. E. Ashe, Judge.</p> <p>Action by W. J. Murray against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Agency—Draft—Purchase of Cattle.</p> <p>A live-stock commission company did not, merely by authorizing a dealer purchasing cattle to draw on them for the purchase price, for which, together with their commissions for resale, they were to be compensated out of the price brought by the cattle when resold through them on the market, constitute such dealer their agent, nor become liable to the original seller or his assignee, as principals, ior the amount of the draft drawn by the dealer on them for the purchase price;</p>

<p>1.—Practice on Appeal—Destruction of Subject Matter of Suit.</p> <p>When the subject matter of the litigation has ceased to exist pending an appeal, an appellate court will not retain jurisdiction of the appeal, but will dismiss the same. The adjudication of the question of costs incident to' the litigation is not of sufficient importance to justify a decision of the questions involved in the appeal.</p> <p>3.—Mandatory Injunction—Mandamus—Distinction.</p> <p>When the relief prayed for and' that granted by the court is to compel the performance by the defendant of acts which the plaintiff claims he is entitled to require the defendant to pferform as a legal duty, and not to give plaintiff protection against some act or threatened act on the part of defendant the commission of which a court of equity would restrain, the order of the judge granting the prayer is in effect a mandamus; and the fact that the prayer of the petition is for, and the order is styled, a temporary mandatory injunction, does not change its character.</p> <p>3. —Mandamus—Practice.</p> <p>While a mandamus may, in a proper case, be granted in vacation, this should not be done without notice to the opposite party.</p> <p>4. —Same—Appeal.</p> <p>No appeal lies from an order of a district judge granting a writ of mandamus in vacation; therefore an appellate court has no jurisdiction of such an appeal.</p>

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

<p>Appeal from the District Court of Jefferson County.</p>

<p>^Foreign Corporation—Permit to do Business—Pleading.</p> <p>The issue that a plaintiff foreign corporation had not taken out a permit to do business in this State and therefore could not maintain the suit, can not be raised by demurrer unless the petition shows affirmatively -that such plaintiff is engaged in doing business in this State and has not taken out a permit to do so.</p>

<p>1. —Trespass to Try Title—Heirship—Evidence.</p> <p>Heirship may be proved by circumstantial evidence. In a suit of trespass to try title, tried in 1908, testimony of a former owner of the land in controversy, that in 1873 and 1878 he obtained deeds from two persons whom he knew to be heirs of the original grantee; that he made inquiry as to any other heirs, and could find none; that since 1870 he had heard of no other person claiming to be an heir of said grantee, and that no one had ever disputed the fact that he had obtained deeds from all the heirs; and that since that time he had lived continuously within three miles of the land—held admissible as tending to prove sole heirship of the grantors of the witness.</p> <p>2. —Same—Part Owner.</p> <p>The owner of an undivided interest in a tract of land may, in trespass to try title, recover the entire tract from a stranger to the title.</p> <p>3. —Appeal—Objection to Evidence—Practice.</p> <p>An appellate court will consider only such objections to evidence as were made on the trial in the court below.</p> <p>4. —Same—Improper Evidence—Harmless Error.</p> <p>An assignment of error complaining of the admission of improper testimony will not be sustained when it appears that other testimony to the same effect was admitted without objection.</p> <p>5. —Trial—Objection to Evidence—Practice.</p> <p>If one or more of eleven deeds offered in evidence was material and admissible upon any issue, a general objection to the deeds collectively that they were immaterial, should be overruled. Rule applied.</p> <p>6. —Trespass to Try Title—Charge—Construction.</p> <p>In a suit of trespass to try title, the court, among other matters, charged the jury that in order for plaintiff to recover it must be proved by a preponderance of the evidence that the land sued for, or some of it, lies on the particular grant alleged, and is owned by him either in its entirety or in part. Held, when read in the light of other portions of the charge, not subject to the construction that plaintiff was entitled to recover the land sued for, whether embraced in his title papers or not, if owned by him in its entirety or in part. A charge should be considered and construed as a whole.</p> <p>7. —Charge—Erroneous Statement of Case—Practice.</p> <p>When an appellant is not satisfied with the statement of the court in its charge as to the issues made by the pleading and evidence, he should save the point by bill of exception, and set forth in his brief sufficient facts to enable the appellate court to determine what the issues were. Otherwise it will be presumed that the charge was correct.</p> <p>8.—Boundaries—Evidence—Actual Survey.</p> <p>When the lines and corners of a tract of land, judged by the calls in the deed, are uncertain, and it is therefore uncertain what particular land is embraced in the deed, the court may charge the jury that they might look to the lines and corners made and established in the original survey of the tract, if one was made, in determining the lines and corners; and this, although there was no evidence of a mistake in the calls in the deed.</p> <p>■ 9.—Same—Adjoining Surveys.</p> <p>Where the position of lines and corners of a survey is uncertain, it is permissible for the jury to consider the field notes of adjoining surveys which were made at or about the same time.</p> <p>10.—Same—Verdict.</p> <p>Verdict in a boundary case considered, and held sufficiently certain.</p>

<p>1.—Character—General Reputation—Admission of Evidence.</p> <p>Testimony to sustain the good character of a witness for truth and veracity its not admissible unless an attempt has been made by the opposite side to impeach such character; and the mere contradiction of the witness by other witnesses testifying differently, is not such an attack as would authorize the introduction of testimony sustaining the general character of the first witness. Rule applied.</p> <p>Í2.—Same—Improper Evidence—Objection—Conflicting Evidence—Practice,</p> <p>In a damage suit, counsel for plaintiff asked a witness if he knew the general reputation of the plaintiff, who had testified in the ease, for truth and veracity in that community; to which question counsel for defendant made an objection which the court overruled; the witness then, without answering yes or no, stated in substance that her reputation was good; defendant took a bill of exception to the ruling of the court in permitting the question, which the court qualified by stating that when the question was objected to, it was abandoned and never answered, and that the answer of the witness was a voluntary statement not responsive to the question, and defendant made no motion to strike it out. Held, the qualification of the bill was not warranted by the facts; there was-in fact no abandonment of the question nor of the objection thereto, and a motion to strike out would have been useless, and the objection to the testimony being good, and the testimony in the case being sharply conflicting, the action of the court was reversible error.</p> <p>3. —Sickness—Cau’se—Hearsay Testimony.</p> <p>The testimony of a witness as to what she learned from other members of the family was the cause of a fainting spell suffered by a plaintiff in a damage suit, would be hearsay.</p> <p>4. —Hypothetical Question.</p> <p>Hypothetical questions should be based on facts proved; otherwise they should not be allowed.</p> <p>5. —Evidence—Rebutting Testimony.</p> <p>A doctor testified that the wife was present at the time her husband made certain statements to him concerning her health; the husband having died, it was competent for the wife to testify that her husband did not make said statements. Such testimony was not hearsay.</p> <p>6. —Carriers of Passengers—Failure to Warm Waiting Room—negligence —Question of Pact.</p> <p>In suit for damages for injury to health alleged to have been caused by the failure of a railroad company to properly warm its passenger waiting room at a station in April, and the testimony raising the issue whether or not the temperature of the weather was such as to make it a duty to have a fire, it was error for the court in its charge to assume that the failure to heat the room was negligence.</p>

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

W. Swayne, Judge. Action, by John Dolan against John R. Darnell. Judgment for plaintiff, and defendant appeals. June 13, 1906, one Males executed and delivered to one Siebold his (said Males’) five-promissory notes, aggregating the sum of $3,000, and, to secure the payment thereof, at the same time executed and delivered a deed of trust on lot 9 of an addition to the city of Ft. Worth.

<p>Husband and Wife—Grift to Wife—Separate Property.</p> <p>Evidence as to gifts by a husband to his wife at a time when the community was solvent, and by a son to her, considered, and held sufficient to support a finding that said property and the proceeds of the same when sold were the separate property of the wife, and hence not subject to the payment of debts of the husband.</p>

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

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

<p>Appeal from the District Court of Travis County. Tried below before Hon. Chas. A. Wilcox.</p>

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

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

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

<p>1.—Public School Land—Purchaser—Boundaries—Mistake in Occupancy.</p> <p>A purchaser of public school land will not forfeit or lose his right to the •same by reason of failure to reside thereon if such failure is caused by an honest and excusable mistake as to the boundaries of the land, and he moves •upon and occupies the land within a reasonable time after discovering his mistake.</p> <p>53.—Same—Evidence.</p> <p>In an action of trespass to try title to public school land, the issue being whether the defendant had forfeited her right to the land by failure to establish her residence within the boundaries of the same, evidence considered, and held sufficient to support a finding that such failure was caused by an honest and excusable mistake, which was corrected within a reasonable time after discovery.</p> <p>3. —Same—Honest Mistake—Evidence—Statements by Others.</p> <p>The issue being one of good faith and honest mistake on the part of a purchaser of school land in locating her residence outside instead of within the boundaries of her land, it was admissible for her to show the information upon which she acted, and any other circumstance tending to show what care she exercised in determining whether her settlement was upon her land. It was not a question of the truth of the information given, but of her good faith and proper care in acting upon the same, which was a question for the jury. Testimony as to what information she received from any one, reasonably calculated to induce her to believe her settlement was on the land, was admissible. Whether she should have relied upon it, was a question for the jury.</p> <p>4. —Contradiction of Witness—Absence of Predicate.</p> <p>Evidence tending to impeach a witness may be admitted for that purpose even though no predicate had been laid, when no such objection is made to the evidence. Otherwise, when that fact is made the ground of objection.</p>

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

<p>Appeal from the District Court of Liberty County.</p>

<p>1. —Agency—Sufficiency of Evidence.</p> <p>On the issue whether the vendor, who sold the property at an advance on what he paid, made the original purchase as agent merely, and was, for that reason, not entitled to profit on conveying to his principal, the fact that the latter refused to take a conveyance direct from the original seller, insisting on the other taking title and conveying to him with warranty, was sufficient to raise an issue of fact as to whether or not such original purchase was made merely as agent.</p> <p>2. —Same—Case Distinguished.</p> <p>This case distinguished, on the evidence, from that presented on a former appeal in Dolinski v. First Natl. Bank of Pittsburg, 122 S. W., 276.</p>

<p>1. —Vendor’s Lien—Foreclosure—Identifying Land.</p> <p>Purchase money lien notes introduced in evidence identified the land for which they were given and on which lien was reserved as that conveyed on the same date by the payee to the maker, referring to the deed for description. Held, that to support foreclosure upon the land described by metes and bounds in plaintiff’s petition, there must be other evidence identifying it with the land described in the motes.</p> <p>2. —Same—Pleading—Admission.</p> <p>The case having been tried on amended petition and answer, allegation in the original answer, which was admitted in evidence, that notes sued on were given for the land described in plaintiff’s petition, was insufficient to identify the land for which the notes were given as the same described by metes and bounds in the amended petition. Such admission referred only to the description in the original petition. That was abandoned by amendment and could not be looked to as an aid to the description unless it was also offered in evidence to show that it was the same as in the amended petition.</p>

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

<p>1. —Vendor and Purchaser—Executory Contract—Deed.</p> <p>Where a written agreement for the purchase and sale of land is followed by an executed conveyance of title, the latter alone is to be considered as fixing the terms of the transaction, in the absence of any issue as to fraud or mistake therein.</p> <p>2. —Deed—Recital—Assumption of Encumbrance.</p> <p>The recital in a deed that the vendee had assumed the payment of an indebtedness against the land as a part of the consideration for conveyance thereof, was a contractual one, and not subject to be varied or contradicted by parol evidence, as would be the recital of a cash consideration.</p> <p>3. —Same—Elote—Interest—Case Stated.</p> <p>A conveyance of land recited the assumption by the purchaser, as part of the consideration, of an outstanding purchase money note and lien, naming the amount of principal for which it was given, the parties, and date, and retaining a vendors’ lien “until the above described note, and all interest thereon, are fully paid according to its face, tenor and effect.” Interest to the amount of $640 had accrued and was unpaid at that time. .Held, that the deed evidenced. unambiguously, an assumption by the vendee of the payment both of the principal and of the accrued interest on such note, and that he could not show that such interest was not assumed, without allegation of fraud or mistake.</p> <p>4. —Deed—Deficiency in Amount.</p> <p>A conveyance by metes and bounds of land described as containing “575.43 acres, more or less,” is construed to mean that the parties intended to risk a gain or loss in the quantity stated, in the absence of plea of fraud or mistake-But allegations that the vendors represented that the land had been frequently surveyed, that they knew it to contain that quantity, and that the purchaser, in reliance thereon, paid them for such quantity at a named price per acre, there being 39.43 acres less, were sufficient to entitle him, on proof, to recover for the shortage.</p> <p>5. —Evidence—Sale by Acre.</p> <p>On the question whether a sale and conveyance of land was by the acre, or in gross, the vendee seeking to recover for deficiency, the executory contract, for sale is admissible to show the intent of the parties, though it was followed by conveyance.</p>

<p>1. —Contract—Unincorporated Church Organization.</p> <p>An unincorporated church organization can not as such be made liable on its contracts; nor can an officer of such organization be made liable in his official capacity; a contract signed by such an officer officially binds him individually, and not the church.</p> <p>2. —Peremptory Charge—Excessive Amount.</p> <p>A peremptory charge to return a verdict for the plaintiff is properly refused when, although authorized in every other respect, it names an amount in excess of that warranted by the evidence, and this, though the excess be trivial.</p>

<p>Appeal from the County Court of Potter County. Tried below before Hon. M. J. R. Jackson, Special Judge.</p>

<p>1.—Trial—Withdrawal of Announcement—Statute.</p> <p>By the language of the statute (art. 1301, Sayles’ Stats.), giving a plaintiff a right to take a non-suit at any time “before the decision is announced,” when the case is tried without a jury, is meant any announcement hy the judge of what his decision in the case will be; hence a plaintiff has no statutory right to a non-suit after he learns from the trend of the judge’s remarks in summing up the case, that the decision or conclusion of the judge will be against him.</p> <p>3.—Evidence—Corroborating Statements—Self-serving Declarations—Admissibility.</p> <p>The issue being whether a certain deed absolute in form was intended as a conveyance or a mortgage, and the testimony of the plaintiff and the defendant being conflicting, the trial court properly excluded testimony of a third party that a week or two after the transaction the plaintiff told the witness that by the terms of the transaction he had the right to redeem the property.</p> <p>3. —Same—Former Declarations.</p> <p>Former declarations of a witness in corroboration of his testimony on the trial may be admitted in evidence only, first, when an attempt has been made to impeach the witness; and, secondly, when a witness is sought to be impeached by showing that he has made declarations inconsistent with the testimony given by him on the trial, and the tendency of such impeaching evidence is to show that the present testimony of the witness is, by reason of some motive or influence existing or operating on him at the time of the trial, fabricated; provided, such declarations were made at a time when no such motive or influence existed. It is doubtful, however, whether former self-serving declarations of a party to the suit ought ever to be admitted in evidence in corroboration of his testimony.</p> <p>4. —Practice—New Trial-—-Newly Discovered Evidence.</p> <p>Unless it clearly appears that the trial court abused its discretion in overruling a motion for new trial on the ground of newly discovered evidence, an appellate court will not revise its action in that respect. Motion considered and held properly overruled.</p>

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

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

<p>Appeal from the County Court of Dallas County at Law. Tried below before Hon. W. M. Holland.</p>

<p>1.—Partition—Parties—Fundamental Error.</p> <p>All persons having an estate in the land must be parties to a suit for its partition. In an action for partition between heirs in which the interest of an heir not made a party was not shown by either the pleading or proof to have been acquired by either litigant, a decree for partition presents fundamental error necessitating reversal.</p> <p>ON MOTION FOB BEHEABINQ.</p> <p>8.—Same.</p> <p>The surviving husband being entitled to control and dispose of the community.estate only where deceased left a child surviving (Rev. Stats., art. 2221), his release, as such survivor, of the wife’s interest in the estate of her father, if evidence of her death, would equally show that she left a surviving child, a necessary party to a suit to partition the land of her father between his heirs.</p>

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

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

<p>1. Courts (§ 363*) — Action Against Receiver — Leave or Court — State Statutes.</p> <p>Sayles’ Ann. Civ. St. 1897, art. 1483, authorizing suit against receivers without leave of court, only affects receiverships pending in the state court, and does not affect the common-law rule to the contrary applying to- receivers appointed by a federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 939-949; Dec. Dig. § 363.*]</p> <p>2. Receivers (§ 174*) — Federal Court Receivers — Actions Against — Authority — Congressional Statutes.</p> <p>Act Cong. Aug. 13, 1888, c. 866, § 3, 25 Stat. 436 (U. S. Comp. St. 1901, p. 5S2), providing that every receiver appointed by a federal court may be sued as to any act or transaction connected with the property in his charge without previous leave of court, only permits suits against federal court receivers without leave of court where the cause of action is based on some act or omission connected with the carrying on the business pertaining to the receivership and does not apply to suits in the state court against a federal court receiver, primarily to recover land, to remove a cloud on title, and incidentally to recover for the removal of timber therefrom by the receiver and his employés.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 333-343; Dec. Dig. § 174.*]</p> <p>3. Joint Tenancy (§ 14*) — Actions—Joinder of Parties.</p> <p>Where plaintiffs sue as joint tenants for the recovery of their undivided interests in the land described, the fact that they allege the amount in acreage of the undivided interest owned by each of them does not affect their joint ownership nor their right to join in a suit to recover the entire undivided interest in the land owned by them as such joint tenants.</p> <p>[Ed. Note. — For other cases, see Joint Tenancy, Cent. Dig. § 19; Dec. Dig. § 14.*]</p> <p>4. Action (§ 38*) — Joinder of Causes.</p> <p>Where plaintiffs as joint tenants sue to recover certain land, and allege facts entitling them to repudiate their sale thereof and to have canceled the several deeds executed by them, there is not a misjoinder of causes, though the main purpose of suit is the recovery of the land.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. § 549; Dec. Dig. § 38.*]</p>

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

<p>Appeal from the District Court of Cherokee County. Tried below before James P. Gibson, Esq., Special Judge.</p>

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

<p>1. Payment ⅛ 85*) — Recovery oe Payments —Gbounds of Obligation — Mistake.</p> <p>Money paid under a mistake of fact which the payor was not legally bound to pay may be recovered back, unless he has derived a substantial benefit from the payment, or the payee has received it in good faith in satisfaction of an equitable claim, or it was due the payee in equity and good conscience, and, where money was paid to a contractor through mistake of fact, the mere fact that the contractor' paid it out to his subcontractors before he knew the money was paid to him by mistake would not prevent the payor from recovering such money.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § 281; Dec. Dig. § 85.*]</p> <p>2. Payment (§ 85*) — Recoveby of Payments —Mistake of Fact — Negligence of Payob.</p> <p>If money was paid through a mistake of facts, the fact that the payor was negligent in making the payment will not prevent its recovery by him unless the payee has been misled or prejudiced by the mistake.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § 272; Dec. Dig. § 85.*]</p>

<p>Mistake—Payment—Case Stated.</p> <p>A railway company, settling with a contractor for construction work, overpaid him, by mutual mistake, for a part of the work done. This overpayment the contractor, in ignorance of the mistake, paid over to subcontractors who had done the work for which it was paid, and who were transient and irresponsible persons. Held that this fact constituted no defense to an action by the company to recover from the contractor the amount of such overpayment.</p>

<p>1. —Vendor’s Lien—Motes—Assignment Without Recourse—Priority.</p> <p>A vendor taking notes secured by lien for the purchase money and assigning one note of the series without recourse did not thereby give to the assignee a prior right to satisfaction of his lien over that of the notes retained by the assignor.</p> <p>2. —Same—Cases Discussed.</p> <p>Douglas v. Blount, 22 Texas Civ. App., 493; Perry v. Dowdell, 38 Texas Civ. App., 96; Salmon v. Downs, 55 Texas, 246; Delespine v. Campbell, 52 Texas, 12; Paris Exch. Bank v. Beard, 49 Texas, 363; Robertson v. Guerin, 50 Texas, 317; McDonough v. Cross, 40 Texas, 251; Wooters v. Hollingsworth, 58 Texas, 374; Lewis v. Ross, 65 S. W., 505; Whitehead v. Fisher, 64 Texas, 638; Douglas v. Blount, 93 Texas, 499; Anderson v. Perry, 98 Texas, 493; Walcott v. Carpenter, 63 Texas Civ. App., 108; reviewed and discussed.</p>

<p>1.—Sale of Cotton—Classification—Arbitration—Evidence.</p> <p>The issue being whether cotton delivered was of the grade and staple contracted for, evidence considered, and held sufficient to show that the usage and custom, of the trade required the submission of the dispute to arbitration by a board composed of members of the Liverpool Cotton Association, the cotton having been bought and sold on the “basis of Liverpool classification,” which custom was known to the sellers, and their contract was made with reference thereto. In such case a decision of a board of arbitrators, constituted and appointed in accordance, with the usage and custom of the trade, would be binding upon the parties. But an instrument of writing purporting to be an award of such a board of arbitrators would not be admissible in evidence in the- absence of evidence that the persons signing the award had been appointed or selected by the party against whom it was offered, or that they were appointed in accordance with said usage or custom.</p> <p>3.—Trial Without Jury—Failure to File Conclusions—Failure to Except.</p> <p>In the absence of a bill of exception to the failure of the trial judge to file his conclusions of fact and law in response to a formal and seasonable request therefor, an appellant can not complain of such failure, especially when an agreed statement of facts, approved by the trial judge, is in the record.</p> <p>3.—Practice—Bill of Exception After Adjournment—Statute.</p> <p>Under the provisions of article 1360, Rev. Stats., a bill of exception to the failure of the trial judge to file conclusions of fact and law, may be taken after the adjournment of the term, but within the time prescribed by the statute for filing said conclusions.</p>

<p>1.—Removal of Disabilities—Special Proceedings—Validity.</p> <p>The rule as to presumptions in favor of judgments rendered by courts of general jurisdiction does not apply in special statutory proceedings, such as a proceeding to remove the disabilities of a minor. In such case, compliance with all the preliminary statutory requirements must be shown, either by recitals in the order, or aliunde.</p> <p>2.—Same.</p> <p>The guardian of a minor compromised with a railroad company a claim against the company for damages for personal injuries to the minor; the County Court in which the guardianship was pending approved the compromise; after the minor attained his majority he filed suit against the railroad company to recover a much larger amount for the same injuries, and sought by certiorari to review the judgment of compromise in the County Court. The defendant company alleged that the plaintiff had his disabilities removed before he was 21 years of age, had received the proceeds of the eompromis.e and so had ratified the settlement made by his guardian. On the trial in the District Court, no record evidence was introduced of the removal of the minor’s disabilities, but the plaintiff testified in a general way that his disabilities had been removed, but also testified to facts which would show that the court which removed his disabilities had no jurisdiction of his person. Held, on the question of ratification, the proof that the plaintiff’s disabilities had been removed was insufficient to warrant the court in assuming that fact as established.</p>

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

<p>Appeal from the County Court of Dallam County. Tried below before Hon. C. S. Harrington.</p>

<p>Bills and. Notes—Acceptance.</p> <p>An acceptance is an engagement to pay a bill or note according to the tenor of the acceptance. An acceptance need not he in writing; any act or word evidencing a promise to pay the bill according to its tenor is sufficient to constitute an acceptance. It is the promise to pay that constitutes the acceptance and consequent liability. A statement by a bank, however, that a cheek of one of its depositors for a certain amount is “good” is not in legal effect the same as a promise to pay it.</p>

Perkins, Judge. Action by Charles Howard, by next friend, etc., against the Waterman Lumber & Supply Company and another. From a judgment on a directed verdict for defendants, plaintiff appeals.

<p>1.—Carriers—Through Shipment-—Liability of Connecting Lines—Pleading.</p> <p>Allegations and proof of verbal contract for shipment of cattle held sufficient to show an undertaking for through shipment over several connecting lines, and to require the giving of a requested charge holding each carrier liable for the default of either, in the absence of proof by either of a special contract limiting its liability to injuries on its own line.</p> <p>8.—Carrier of Live Stock-—-Negligence.</p> <p>A railway is not an insurer against injury to live stock in transportation, and is liable only for such as was due to its want of ordinary care.</p> <p>3. —Same—Delay—Movement by First Train.</p> <p>The fact that a railway forwarded by its first regular train cattle received, from another road is not conclusive against the shipper’s claim of delay in forwarding, but a charge which made it liable only in case such delay was unreasonable and unnecessary was proper.</p> <p>4. —Delay in Furnishing Cars—Causal Connection.</p> <p>Though there was delay in furnishing cars for shipment of cattle as promised, yet if the condition of the railway’s track over which the shipment was to move was such during the time of delay that shipment of the cattle over it was imprudent, owing to flooded tracks from excessive rainfall, without negligence by the railway in failing to anticipate and guard against same, the delay in furnishing the ears did not contribute to the injury to the cattle by delay in their shipment.</p> <p>5.—Carrier—Delay—Failure to Explain.</p> <p>Where there was an unexplained and unexcused delay for five and one-half hours by a railway in forwarding cattle a distance of only eight miles over its road, a verdict relieving it from liability was unsupported by the evidence, and a new trial should have been granted.</p> <p>>6.—Evidence—Hearsay—Harmless Error.</p> <p>Where testimony by the officers of a railway as to the condition of its tracks was from reports made by subordinates, not from personal knowledge, the error in receiving such evidence was harmless when the same facts were proven by other witnesses, and these the same whose reports were the basis of the testimony of such officers.</p>

<p>1.—Boundaries—Descriptive and Locative Calls.</p> <p>A call to cross a creek at a. certain distance in running a line of a survey is a descriptive and not a locative one, and is of no higher dignity than a call for course and distance.</p> <p>3.—Same—Charge.</p> <p>A charge as to the respective dignity of calls for natural and artificial landmarks and those for course and distance may be improper and misleading where the former, so far as identified on the ground, are merely descriptive and not locative calls; and in such case it was error to refuse a requested instruction permitting the jury to locate the line by the calls for course and distance if they believed that the true line as surveyed could be more certainly ascertained by that method.</p> <p>3. —Boundaries—Evidence—Landmarks.</p> <p>Evidence that, at a certain point which one of the parties to a dispute as to boundary claimed to be a corner of the survey, a rock pile was to be found fifteen years after the making of the survey, the same not being called for in 'the field notes and there being no evidence as to when or by whom it was made, was inadmissible to establish the boundary at that point.</p> <p>4. —Boundary—Evidence—Estoppel—Admission.</p> <p>Proof of the fact- that a party to a controversy as to boundaries, when sued by his adversary to establish the latter’s claim, agreed to concede it on the suit being dismissed at plaintiff’s cost, which was done, whether amounting to an ■estoppel or not, was receivable in evidence as an admission by the party so conceding the other’s rights' that the true line was such as his adversary claimed.</p>

<p>Appeal from the County Court of Falls County. Tried belo-w before Hon. W. E. Hunnicutt.</p>

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

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

<p>Error from the .District Court of Upshur County. Tried below before Hon. R. W. Simpson.</p>

<p>1. —Pleading—Damages.</p> <p>A pleading that various articles alleged to have been damaged in transportation were worth the several amounts stated after each could not be taken as asserting that they were damaged in such amount, and, without more, could support only a recovery for nominal damages.</p> <p>2. —Remittitur.</p> <p>The • pleading supporting only nominal damages beyond a certain amount, which the recovery exceeded, appellees may be permitted to have the judgment affirmed for such sum as was recoverable under their allegations, on remitting the remainder of their judgment.</p>

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

<p>local Option Election—Contest—Publication of Judgment. '</p> <p>There is no statute which requires the publication, or which prescribes the manner of the publication, of the judgment of a District Court rendered in a contest of a local option election. The provision of art. 3391, Sayles’ Civ. Stats., which requires the county judge to publish the result of such an election when declared by the Commissioners Court, applies only to such case, and only when the result to be declared is in favor of prohibition. Therefore the publication by the county judge of the judgment of the District Court in a contested case, in a newspaper to be selected by the county judge, is not essential to the validity and binding effect of the same. An election contest is a proceeding in rem and binding on all the world.</p>

<p>1. —Partnership or Agency—Pleading and Evidence—Charge.</p> <p>The issue being whether or not plaintiff and defendant were partners in the purchase of a stock of lumber, the defendant denying the partnership and alleging that it was only an agent or broker for plaintiff in the purchase and sale of said lumber, and that the portion of the profits which it was to receive was intended as its commission or compensation for its services, charge of the court ■considered and approved.</p> <p>2. —Partnership—Share in Profits.</p> <p>The fact that a party to a business transaction was to receive a part of the profits would not of itself and alone constitute him a partner. When a part of the profits is to he received not as profits, hut in lieu of commissions or as a compensation for services rendered, the receiving or agreeing to receive such profits would not. make such party a partner. '</p> <p>■ 3.—Trial—Issues—Charge.</p> <p>It is the duty of the court to submit to the jury only the exact issues presented by the pleading and evidence; and requested charges presenting other Issues or propositions of law, however correct abstractly, should be refused.</p>

<p>1. —Appeal—Defective Brief—Insufficient Statement.</p> <p>An assignment of error was as follows: “The court erred in sustaining appellee’s general demurrer and exceptions to appellant’s special answers, exceptions and demurrers to plaintiff’s petition, and striking the same out. Rec.—3.” The brief contained no statement under this assignment, and the only reference to the record was to the page of the transcript setting forth the petition which contained -the demurrer and exceptions. There was nothing to show that the coui-t did in fact act on and sustain the demurrer and exceptions. Held, the assignment was not entitled to consideration.</p> <p>2. —Same—Exclusion of Evidence.</p> <p>An assignment of error based upon an alleged ruling of the court excluding evidence can not be considered when there is no statement from or reference to the record in the brief informing the appellate court what objections- to the evidence were made or sustained, nor that -bills of exceptions were taken to the rulings of the court.</p> <p>-3.—Same—Irresponsive Verdict.</p> <p>An assignment of error to the action of the court in receiving a verdict because the same was not responsive to the pleadings, can not be considered when«it does not point out in what particular the verdict is not responsive.</p> <p>-4.—Same—Summoning Jury—Failure to Swear Sheriff.</p> <p>An assignment of error to the action of the court in failing to swear the sheriff before he summoned a jury, can not be considered when it is not shown from the record that the court did so fail, and that the appellant took a bill -of exceptions to such failure.</p> <p>5.—Practice on Appeal—Absence of Assignments of Error.</p> <p>In the absence of assignments of error which an appellate court might consider, it will simply look to the record for the purpose of determining whether the court had jurisdiction to render the. judgment it did under the pleadings.</p>

<p>Specific Performance—Parol Sale of Land—Proof.</p> <p>Specific performance of a parol sale or gift of land is based upon equitable principles of estoppel, and in some cases, at least, proof must be made of the relative values of the improvements and of the land on which they are placed in order to enforce such sale or gift. Buie illustrated.-</p>

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

<p>Appeal from District Court, Reeves County ; S. J. Isaaeks, Judge.</p> <p>Action by Arthur L. Holloway against John A. Cress. From a judgment for plaintiff, defendant appeals.</p>

<p>1. —Personal Injury—Contributory Negligence—Submission of Issue.</p> <p>When a defendant, in a suit for damages for personal injuries, pleads contributory negligence tie is entitled on request to an affirmative presentation of the facts well pleaded and relied upon in support of the plea if there is evidence of the facts so alleged which fairly supports an inference of negligence and the alleged consequences thereof, even though the evidence be slight. Pleading and evidence considered, and held to raise the issue of contributory negligence on the part of the plaintiff in failing to take proper care of and in aggravating the original injuries alleged to have been caused by defendant’s negligence.</p> <p>2. —Master and Servant—Duty of Inspection—Inspection of Cord Wood.</p> <p>The duty of the master to inspect machinery or implements furnished the servant arises only when they are of such character that a man of ordinary prudence would inspect them as a precaution against injury, and does not require the inspection of common tools committed to the custody of a servant who has capacity to understand their character and uses. Under this rule a railroad company would not be required to inspect ordinary cord wood, intended for fuel in engines, for splinters, knots or other protuberances, or to smooth' the same in any way before it is handled by a fireman.</p> <p>3. —Negligence—Insufficient Lights—Pleading and Charge.</p> <p>An allegation of negligence in furnishing “insufficient” lights will not warrant a charge concerning “defective” lights, when there was some evidence that the lights were defective rather than insufficient.</p> <p>4. —Special Charge—Ignoring Issue.</p> <p>A special charge which ignores a part of the evidence upon an issue, is properly refused.</p>

<p>Bills and Notes—Endorser and Endorsee—Failure of Consideration—Application of Funds.</p> <p>When the endorsee of a promissory note has in his hands funds belonging to the endorser at the time the endorsee learns of a valid defense to the note by the maker, it is the duty of the endorsee to apply said funds so far as necessary to the payment of the note, and to leave the endorser and the maker to adjust their rights and equities between themselves. The endorsee should not allow the defense of innocent purchaser, available to him, to be used by the endorser to defeat a just defense by the maker. The fact that the endorsee had in his hands funds belonging to the endorser at the time the' note was dishonored and its invalidity ascertained, and that he failed to apply them to the payment of the note, is a good defense by the maker in a suit against him by such endorsee.</p>

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

<p>1.—Vendor and Purchaser—Express Lien—Limitation—Trespass to Try Title.</p> <p>Defendants having pleaded limitation to plaintiffs’ action to foreclose a vendor’s lien expressly reserved in their deed to one under whom defendants held, plaintiffs were entitled to change their form of action to trespass to try title and recover on the superior title so expressly reserved, and against this title limitation did not run in favor of defendants until they repudiated their holding in subordination to it by pleading limitation against the suit to foreclose the lien.</p> <p>2.—Trespass to Try Title—Common Source—Judgment.</p> <p>Action was by the heirs of S. to recover land against his remote vendees, upon the superior title reserved in him to secure purchase money notes given by his immediate vendees. The heirs of the original patentee had sued the vendees of S. for the land, and had recovered 2/5 thereof. This defendant had acquired, and for this he was allowed recovery in the present suit. The same former judgment had awarded 3/5 of the land to the defendants therein, on their plea of limitation by -adverse possession of themselves and those under whom they claimed. Held that, in the absence of evidence that such defendants had held their possession under other claim than that derived through S., the judgment should be taken as one recovered by them on their possession as claiming under S. As to the 3/5 interest so recovered and now held by the defendants, S. was the common source of title for plaintiffs and defendants in this suit, and the former were not required to show title further back than such common source.</p>

<p>1. Bankktjp'icy (§ 303*) — Preference—Evidence.</p> <p>In an action by a trustee in bankruptcy to recover a payment made by the bankrupt wifh-in four months of bankruptcy, evidence held sufficient to support a finding that defendant had no knowledge of the insolvency of the bankrupt at the time the payment was made.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 303.*]</p> <p>2. Appeal and Error (§ 742*) — Assignments of Error — Insufficient Statements.</p> <p>Assignments of error not followed. with such propositions and statements as will enable the Supreme Court to pass on the assignments without referring to the transcript may be ignored.</p> <p>[Ed. Note — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. § 742.*]</p> <p>3. Appeal and Error (§ 692*) — Record — Matters Presented — Rulings on Evidence.</p> <p>Rulings excluding questions to a witness will not be reviewed where the bill of exceptions fails to show what answers would have been given.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2905-2909; Dec. Dig. § 692.*]</p>

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

<p>Error from the District Court of Upshur County. Tried below before Hon. R. W. Simpson.</p>

<p>1. —Interest—U sury.</p> <p>The “usurious interest” mentioned in the statute (Act of April 18, 1907, Laws 30th Leg., p. 277) means the whole amount of interest received, and not . the excess above what might lawfully have been received.</p> <p>2. —Same—Payment of Principal.</p> <p>. Where payments were actually charged and received and intentionally appropriated by the parties at the time of each payment to the discharge of usurious interest, the penalty pronounced by the statute attached and was recoverable, though the principal sum lent had not been paid. Rosetti v. Lozano, 90 Texas, 57, followed. Cotton States Building Co. v. Peightal, 28 Texas Civ. App., 575, disapproved.</p> <p>3. —Judicial Notice—Proceeding's in Another Suit.</p> <p>The court can not take judicial notice of proceedings in another case unless formally introduced in evidence, though such other suit was tried before him and the matter within his personal knowledge.</p> <p>4. —Usury—Action for Penalty—Transfer of Note—Action by Assignee— Judgment.</p> <p>In an action by the assignee of a note on which the payee had previously collected usurious interest, a plea by the maker which set up that fact merely as a defense to the right to recover interest did not authorize the court to enforce a credit on the principal sued for of the interest collected by the assignor, or the penalty, in a like amount, for collecting it.</p> <p>5. —Same—Case Stated.</p> <p>Having collected usurious interest on a note, and also a part of the principal .by trustee’s sale of property securing it, the payee transferred the note, credited with such payments, without recourse, to another. The payee was sued by the makers for double the amount of the usurious interest he had collected (Act of April 18, 1907, Laws 30th Leg., p. 277). The assignee afterwards sued on the note in the same court. Defendants plead the usurious interest collected by the assignor in bar of the rights of the assignee to collect any interest, not asking credit on the principal against the assignee for the illegal interest and penalty. The assignee consented to and took judgment only for the unpaid principal less the amount of usurious interest collected. Held, that the right of action of the makers to recover upon the statute, from the payee, double amount of interest collected by him, was complete before he assigned the note, and was not lost by the fact that the assignee had gratuitously allowed such credit on the principal for the illegal interest in his recovery on the note. Assigning without recourse, and not being a ¿arty to or interested in the result of the suit, his liability in the action against him was not affected by that judgment.</p> <p>ON REHEARING."</p> <p>6. —U sury-—Penalty.</p> <p>Under Revised Statutes, article 3106, prior to the amendment of April 18, 1907, Laws 30th Legislature, p. 277, the right to recover the penalty, as distinguished from a recovery merely of the usurious interest paid, was limited to usury under a written contract. It did not extend to usurious interest taken under an oral agreement upon a note providing for merely legal interest.</p>

Tried below before Hon. R. L. Porter. The fifth assignment of error was upon the refusal of a charge denying plaintiff a recovery if, after being refused by an officer of defendant the lumber he sought to purchase, unless he arranged further security, he visited the premises in such officer’s absence for the purpose of obtaining it from his employee, without such security.

<p>1.—Negligence—Proximate Cause.</p> <p>The act of a section foreman in leaving a hand ear on the track with an insufficient force nearby to remove it could not be taken, under the evidence here presented, as a proximate cause of the injury of one of them who, in endeavoring with others to remove it, stumbled over cinders used in ballasting the track and was caught under the car in his fall.</p> <p>8.—Error—Charge.</p> <p>There being no evidence to raise an issue as to the grounds of negligence submitted, and the judgment being reversed for that reason, the court will not consider alleged errors of law in regard to the manner in which they were submitted.</p>

<p>1.—Appeal—Final Judgment.</p> <p>A judgment; though varying in its terms from the only relief authorized by the nature of the action, is held to be such adjudication of the issues involved as to support an appeal.</p> <p>2. —Contract—Rescission—Following Proceeds.</p> <p>In order to support the right of a vendee to rescind the contract and recover back the purchase price from a bank to which he had paid the seller’s draft therefor, the bank must be chargeable with collusion in the fraud or wrong of the seller; and the vendee must tender back the property bought. His retention of it is an election to affirm the sale and proceed for damages on Ms warranty.</p> <p>3. —Draft—Innocent Purchaser—Bank—Payment.</p> <p>A bank which in good faith gives a customer credit for the amount of a draft drawn in his own favor on a purchaser of goods from him and indorsed to such bank, the proceeds being placed subject to the customer’s draft, is protected as an innocent purchaser. After payment of the draft, it is not liable to the payor for the proceeds in an action based on breach of warranty of the quality of the goods made by the seller.</p> <p>4. —Same—Cases Distinguished.</p> <p>State Bank v. Blakey, 35 Texas Civ. App., 87, and Van Winkle Grin Company v. Citizens Bank, 89 Texas, 147, distinguished from this case.</p>

<p>1. —Judgment—Default—Recitals.</p> <p>A judgment which recites that the defendants, who had answered, the case being called for trial, came not but wholly made default, but. which also recites that the court, after hearing the pleadings and evidence found in favor of plaintiff, is to he taken as showing a judgment, not by default, but on hearing and proof.</p> <p>2. —Judgment—Presumption.</p> <p>In the absence of a statement of facts, every fact alleged in the petition and necessary to support the judgment will be presumed to have been proven. The fact that defendants, in an action for recovery of taxes by the State, had filed a verified denial of the petition will not defeat such presumption.</p> <p>3. —Pleading—Verification—Jurisdiction—Waiver.</p> <p>Though the petition in an action by the State to foreclose a lien for taxes was not verified by affidavit as required (Act of April, 1897, Laws 25th Legislature, p. 132, see. 6, Sayles’ Statutes, art. 5232f), the omission did not deprive the court of power to render judgment. The defect could be waived. Though an exception to the pleading for such defect should have been sustained, if presented, it was waived by failure of defendant to be present and call it to the attention of the court.</p> <p>4. —Statutory Construction—Mandatory and Directory Provisions.</p> <p>The rules of statutory construction as to what directions should be considered mandatory and what directory merely, considered and stated.</p>

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

<p>1. Carriers (§ 180*) — Interstate Commerce— Limitation oe Liability.</p> <p>Under Act Cong. June 29, 1906, c. 3591, § 7, 34 Stat. 595 (U. S. Comp. St. Supp. 1909, p. 1106), providing that common carriers shall be liable for any loss or injury by any connecting carrier, and that nothing shall exempt such carrier from such liability, a stipulation in a bill of lading for exemption of the carrier, or any connecting carrier, from liability for loss or damage to goods by fire is without effect, if the fire was due to the negligence of any carrier handling the goods.</p> <p>[Ed. Note. — For other cases, see . Carriers, Cent. Dig. §§ S15-828; Dec. Dig. § 180.*]</p> <p>2. Carriers (§ 132*) — Loss or Injury to Goods — Presumption.</p> <p>Where goods are damaged by fire occurring upon1 premises in possession or under control of a carrier, the carrier is presumed to be negligent, and the burden is on it to rebut the presumption.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 578-582; Dec. Dig. § 132.*]</p> <p>3. Carriers (§ 132*) — Loss or Damage to Goods — Evidence.</p> <p>In an action against a carrier for damage to goods by fire while in control of the carrier, evidence held insufficient to conclusively overcome the presumption of defendant’s negligence. ,</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 578-5S2; Dec. Dig. § 132.*]</p>

<p>T.—Promissory Note—Attorney’s Fee—Pleading.</p> <p>' Where a promissory note provided that in case of suit to collect the same, the plaintiff would he entitled to recover ten per cent of the amount of principa) and interest due at the date upon which he should place the note in the hands of an attorney for collection, it is necessary, in a suit upon the note and to recover the attorney’s fee, to allege the date when the note was placed in the hands of the attorney for collection. Without such allegation the petition would be subject to special exception.</p> <p>Í3.—Same—Set-off—Computation of Interest. ..</p> <p>When a note is subject to a credit or set-off at the date of its execution— as where the consideration for the same has failed in part—the amount of such credit or set-off should be deducted from the face of the note, and interest and attorney’s fees should be computed only on the remainder.</p>

<p>1.—Trial with Jury—Findings of Fact hy Judge—Practice.</p> <p>Appeal from the County Court of Potter County^ Tried below before Hon. W. M. Jeter.</p>

<p>1. —Demurrer.</p> <p>A demurrer admits the facts alleged and every reasonable intendment arising from the allegations. See petition held to sufficiently charge defendants with a conspiracy in restraint of trade in violation of the statute, Act of March 31, 1903, Laws, 28th Leg., p. 119.</p> <p>2. —Unlawful Contract—Restraint of Trade.</p> <p>An agreement between two firms or corporations engaged in buying or selling certain articles of merchandise that the one would not buy from nor the o.thcr sell to any other person or association any other makes of like goods during the period of the contract, created a conspiracy and combination in restraint of trade prohibited by the law against trusts, monopolies and conspiracies, Act of March 31, 1903, Laws, 28th Leg., p. 119.</p> <p>3. —-Same—Interstate Commerce.</p> <p>A contract made in another State between a foreign corporation and a Texas dealer that, for one year, the one would sell its goods only to and the other huy only from the parties, respectively, if it contemplated future sales, and purchases in Texas through traveling salesmen of the corporation (which the court can judicially recognize as the customary method of business) though the first purchase and sale was concluded outside of Texas and constituted interstate commerce, was not, as to such future sales to be made in Texas, an agreement in regard to interstate commerce nor beyond regulation by the laws, of Texas prohibiting combinations and conspiracies in restraint of trade.</p> <p>4. —Same—Conspiracy.</p> <p>The fact that the only part performed by the non-resident corporation under its contract consisted in selling and shipping from another State the goods made the subject of the agreement between it and the purchaser which was unlawful under the Texas statutes, would not relieve it from liability because the same were acts of interstate commerce. The non-resident was a co-conspirator with the local dealer, and liable for the acts of the latter in conducting a business in pursuance of their mutual agreement which violated the Texas law.</p> <p>5. —Interstate Commerce—Shipment and Sale—Original Packages.</p> <p>Though goods shipped into the State in pursuance of a contract of sale outside it are subjects of interstate commerce' while in the original packages, they lose that character when, the transportation being completed, they are unpacked and mingled with other goods for salé by the purchaser; and a contract by the seller with the purchaser with respect to the conduct of the business after they are so unpacked and mingled which was in unlawful restraint of trade was not protected from the operation of the State law so declaring it on the ground that the transaction was interstate commerce.</p> <p>6. —Contract—¡Restriction of Trade—Blank as to Place.</p> <p>Though a contract restricting trade in certain articles at a place left blank in the instrument, the ambiguity being a patent one, be incapable of being made certain by parol evidence as to the place intended so as to be made the basis of an action on the contract, it seems that it might still be held unlawful as a general restriction of trade in the articles, in an action to recover penalties for such act.</p> <p>7. —Same.</p> <p>An action for penalties for unlawful conspiracy or combination in restraint of trade is not one upon the contract creating such combination or restriction, nor dependent upon the validity of such instrument as a contract. The instrument was only evidence of such combination, and if intended and acted upon by the parties to unlawfully restrict trade at a certain point,- the fact that the point was left blank in the contract itself did not affect their liability.</p>