Volume 9 — Texas Civil Appeals Reports

<p>1. Railway Crossing — Negligent Construction. — Article 4170, Revised Statutes, requires a railway company, where its road crosses a street, to restore the street to its former state, or to such state as not to unnecessarily impair its usefulness to the public; and where it so restores the street for only part of its width, and in the other part leaves á spike projecting above its cross ties, by which one traveling across the street is injured, the company is liable for such injury.</p> <p>2. Same — Contributory Negligence. — A person riding over a railroad street crossing, and who is injured by reason of a projecting spike between the cross ties, outside of the part that is planked between the rails of the railroad track, is not guilty of contributory negligence, where it was not obviously unsafe to cross at that point, and that part of the street was also commonly used by the public for crossing.</p> <p>3. Charge of Court — Modifying Requested Charge. — A requested instruction should be given as requested, or refused; but it is not error to properly qualify a requested charge.</p> <p>4. Assignment of Error — Verdict “Excessive.” — An assignment of error, that the verdict is excessive, and contrary to the evidence relating to contributory negligence, does not touch the question of the excessiveness of the verdict in amount.</p>

<p>Res Judicata — Indivisible Cause of Action. — A cause of action for the killing of two horses by a railway train at one time and place, and belonging to one person, is entire and indivisible, and a recovery in an action brought for the death of one of the horses is a bar to a subsequent action for the killing of the other.</p>

<p>1. Fire Insurance — Waiver of Proofs. — It was proper for plaintiff to plead, that after the fire the insurance company examined into the circumstances of the loss and offered a certain sum in settlement, since this amounted to a waiver of the preliminary proofs of loss required by the policy, and insisted on by the defendant company in its answer.</p> <p>2. Same — Total Loss. — Although a burned building could have been repaired for 50 per cent of its original cost, and so made as good as before the fire, yet the loss may have been total, since a building totally destroyed might he replaced for 50 per cent of its original cost.</p> <p>3. Same — Identity of Building. — Where a building is almost completely destroyed by fire, and so injured as to lose its identity and specific character as a building, the loss is to be regarded as total.</p> <p>4. Same. — Charge of Court. — The jury having found, upon sufficient evidence, that the building was so injured as to constitute a total loss, it was not material error in the court to refuse to charge on the question of fixing a partial loss.</p> <p>5. Same — Proofs of Loss. — Where proofs of loss were defective only in omitting the name of the occupant of the house, and such defect does not appear to have been material or to have injured the insurance company, such defect will not be considered material.</p> <p>6. Same — Liquidated Demand. — Under article 2971, of the Revised Statutes, an insurance policy, where the loss is total, becomes a liquidated demand, though the company may be a foreign corporation; and therefore an offer by the company, in a case where the loss is total, to repair or replace the property, may be disregarded, although the policy provided that this may be done by the company</p>

<p>1. Evidence — City Engineer — Street Grading. — Where the proof clearly showed that the city engineer acted under the authority of the city council, his verbal testimony as to fixing a street grade, and that the street was cut down to such a grade, is admissible, and is not secondary evidence.</p> <p>2. Limitations — Special Statute — Charge of Court. — The charter of the city provided, that no suit for damages should lie against the city unless brought within three months next after the cause of action accrued. In a suit for damages from the grading of a street which had been cut down several times, the court’s charge limited the recovery to damages from the last grading, which was completed within three months from the filing of the suit. Meld, that it was not error to refuse to charge as to the special statute of limitation prescribed by the charter.</p> <p>3. Street Grade — Evidence of Damage. — It is improper for a witness, in an action against a city by a lot owner for damages caused by the grading of a street, to .testify, that in the absence of certain buildings which surrounded the lot when the grading was done, such grading would have damaged the lot; but the admission of such evidence is not necessarily prejudicial error.</p> <p>4. Damages from Street Grading — Benefits and Injuries in Common. — In assessing the damages to a lot resulting from the grading of a street, injuries and benefits to the particular property should be considered, although every other lot on that street is benefited or injured in the same manner, as such benefits and injuries are different from'those which are in common with the community generally.</p> <p>5. Same — Value of Homestead Lot for Business Purposes. — Where property injured by the grading of a street is the residence homestead of the owner, benefits arising from its increased value for business purposes should not be considered in offset of the damage.</p>

<p>1. Contract — Damages for Breach — Fact Case. — Where defendant’s contract provides, that he shall furnish a stated amount of feed for certain cattle, for a stipulated period of time and at a fixed price, he is not liable for refusing to furnish it where the other party does not provide cattle to be fed, but wishes the feed in order that he may resell it at an advanced market price.</p> <p>2. Same — Construction of Contracts. — The proper construction of a contract must always depend on the intention of the parties, to be collected in each particular case from-the agreement itself, and from the subject matter to which it relates.</p>

<p>1. Negligence — Collection by Bank — Charge of Court. — Plaintiff’s petition, in an action against a bank for the amount of an accepted draft sent it for collection, alleged that the bank negligently held the draft for over a month and then returned it; that by the use of reasonable diligence it could have made the collection; and that the acceptors having failed not long after the draft was returned, plaintiff had thereby lost his- debt. There was evidence supporting these allegations. Held, that it was error in the court to refuse to submit the issue of negligence on the part of the bank with reference to the draft.</p> <p>2. Same. — Evidence—Diligence.—-Defendant having pleaded that plaintiff, between the time the draft was returned and the failure of the acceptors, could have collected the draft had he made any effort to do so, it was error to exclude letters written by plaintiff to the acceptors during such time, tending to show diligence by him in an effort to collect the draft.</p>

<p>1. Chattel Mortgage — Authority to Execute. — Authority to an attorney m loot to execute a trust deed upon chattels may be verbal, and is sufficiently proved by the testimony of the principal that he had given such authority.. A previous written authority to the same person to sell the chattels (goods) in the usual course of mercantile business does not affect the matter.</p> <p>' 2. Same — Ratification.—Where such verbal authority to sell or mortgage personal property is proven, it is not necessary to show a ratification of the sale.</p> <p>3. Assignments of Error. — Assignments of error based upon objections to evidence should be specific and clear, and should be confined to objections made to the testimony in the court below, and should be based upon a proper bill of exceptions contained in the record.</p> <p>4. Practice — Objections to Deposition. — Where objection is made to only part of a deposition, and the same testimony is contained in another part of the deposition, to which no objection is made, error in the court’s ruling on the point is immaterial.</p> <p>5. Same — Failure to Answer. — Where an interrogatory is not pertinent to any issue in the case, failure of the witness to answer it is not ground for suppressing the deposition.</p>

<p>1. Evidence — Opinion as to Value. — The testimony of a tenant for life as to what he considers the value of his interest in the property is not rendered inadmissible because he further states, that he would take such estimated value for it.</p> <p>2. Will — Demonstrative Devise — Contribution.—Where one of two equal devises is dispossessed by a paramount title of a part of his devise, he is entitled only to a money contribution from the other of one-half the actual value of the part of which he is so dispossessed, and not to a recovery of such an undivided interest in the other’s part as that amount of money would represent.</p> <p>3. Life Estate — Value of, How Determined. — See the opinion for special issues and evidence improperly submitted in determining the value of a life estate in real property.</p>

<p>1. Citation by Publication. — Article 1336 of the Revised Statutes, providing for citation by publication in suits against unknown heirs where it is sought to divest property, requires publication for eight weeks; and article 3467a authorizes such publication for four weeks against unknown owners in a suit for partition. Held, that these articles are not in conflict, and that publication for four weeks is sufficient in an action for partition.</p> <p>2. Same — Recital of Service in Judgment. — A recital in a judgment that unknown owners who were made parties to the suit were duly cited by publication, is held to import absolute verity as against a collateral attack.</p> <p>S. Same — Judgment for Costs Against Unknown Owners. — A personal judgment for costs against unknown defendants cited by publication has no greater validity than any other merely personal judgment against a nonresident on service by publication alone.</p> <p>4. Same — Invalid Execution. — A judgment for costs against “unknown defendants ” was rendered in a suit for partition of land patented to A. V. The execution for costs issued thereon was against “the unknown heirs of A. V.” Held, that the execution and the sale thereunder were invalid.</p>

<p>1. Telegraph Company — Careless Mistake. — The defendant telegraph company, as an excuse for delay in delivering a message, sought to show, that in taking a copy of the telegram the same was so blurred and indistinct that in addressing the envelope for the messenger boy the name of the addressee was wrongly given as Jackson, instead of Johnson. Held, that such evidence was properly excluded. ■</p> <p>2. Charge of Court — Requested Charge Cumulative. — A. requested charge upon the burden of proof is properly refused, where the point covered by it has already been fully and thoroughly covered by the court’s main charge.</p> <p>3. Mental Anguish — Proof of. — Proof of mental anguish is not necessary where the record shows such facts as indicate mental anguish, and in such a case the charge of the court may assume it as established.</p> <p>4. Charge of Court — Clerical Omission. — The omission of “find” from the clause, “then you will find for the defendant,” is not material error, where the meaning is made clear by the other instructions.</p>

<p>1. Practice — Reformation of Judgment and Remittitur. — In an action against several defendants the court instructed the jury, in the event they found for plaintiff, to return a verdict for rents against all the defendants, one of whom had disclaimed, and another being a married woman. Held, that the error was cured by a reformation of the judgment below as to the one who had disclaimed, and a remittitur in the appellate court as to the married woman.</p> <p>2. Homestead — Abandonment.—0. having quarreled with his second wife’s children, was taken to the residence of his son, and sold off his personal property and made some declarations as to his intentions. Afterwards he made an appointment with his wife to meet her at the homestead for the purpose of living with her, but died a few days later without having done so. Held, that the evidence failed to show an abandonment of the homestead.</p> <p>3. Same — From the Wife’s Side. — Mrs. C. left her husband, taking her children by a former marriage to prevent his turning them away, but some weeks later sent a letter to her husband offering to live with him again, and the offer having been accepted, went back to the homestead to meet him. Held, that the evidence failed to show that she had abandoned either her homestead or her husband.</p> <p>4. Practice — Estoppel to Claim Error. — The judgment having been reformed by the trial court on motion of appellants, they can not be heard to complain of such action.</p> <p>5. Partition — Necessary Parties. — A decree of partition is invalid, unless all persons owning an interest in the land involved are parties to the action.</p>

<p>1. Venue — Jurisdiction—Trespass.—An employe, while working under the personal supervision of R, the superintendent of C. and 0., received injuries resulting from negligence on B.’s part, for which injuries he brought suit against the three jointly, in the county where the injuries were received, but in which none of the defendants resided. Held, that the court had jurisdiction as against all defendants under the eighth exception to article 1198 of the Revised Statutes, the action being for a trespass committed.</p> <p>2. Plea in Abatement — Lis Pendens. — Defendants pleaded in abatement, that another suit for the same cause of action was then pending in another county, and plaintiff by supplemental petition having alleged that such suit was filed subsequent to the filing of the one at bar, and was abandoned, the plea was correctly overruled.</p> <p>3. Knowledge of Vice-Principal Imputed to Principal. — Where a superintendent, with authority to employ and control workmen, possesses knowledge necessary to the safety of such employes, the principal is chargeable with his failure to impart it to them.</p> <p>4. Trespass — Joint Liability of Employer and Vice-Principal. — As B. was vice-principal of C. and O., they are responsible with him for the consequences of acts done by him within the scope of his employment, whether or not they were present and participated therein.</p> <p>6. Practice on Appeal — Assignments of Error. — Assignments of error complaining of the action of the trial court in overruling a motion for new trial, on the ground that the verdict is contrary to the law and evidence as to defendants’ plea to the jurisdiction; that the verdict is excessive, and is contrary to the evidence as to acts of negligence, are too general, under Rules 67 and 68 for the District Courts, to be considered, where the matters sought to be covered by them are set out in the motion for new trial in substantially the same general terms.</p>

<p>1. Assignment of Error. — An assignment of error complaining of the refusal of certain special charges, which are referred to by number only, and one alleging error in overruling a motion for new trial, “for each, all, and every one of the grounds therein fully set out,” there being thirty different grounds embraced in the motion, is too general to be considered.</p> <p>2. Will — Joint Executors. — By the terms of a will the testator appointed his wife and W. as his executors, and further provided, that if W. declined to act the wife need give no bond. Held, that this latter provision did not indicate an intention that W. should not execute the power of executor alone, in the case of the wife’s death.</p> <p>3. Same — Survival of Power. — Where the power is given to executors to be executed in their official capacity, and there are no words in the will warranting the conclusion that the testator intended a joint execution of the power, as the office survives to one alone, so also will the power survive.</p> <p>4. Same — Death, of Beneficiary. — The death of the sole beneficiary under a will, before the executor has sold property of the estate to pay its debts, does not deprive him of that power.</p> <p>5. Executor’s Deed — Five and Ten Years’ Limitation. — In trespass to try title, defendants claiming under an executor’s deed, pleaded the statute of five and ten years’ limitation, and improvements in good faith. Held, that the deed was admissible under these pleas, without proof of the existence of debts of the estate authorizing the sale.</p> <p>6. Same — Executor Acting Through Attorney. — So, although the discretionary power of an executor can not be delegated, yet his deed executed through an attorney may be admissible under the pleas of five and ten years’ limitation, and improvements in good faith.</p> <p>7. Executor’s Deed — Estoppel.—Where plaintiffs seek to exclude an executor’s deed through which defendants claim, proof that plaintiffs had previously brought suit to foreclose the vendor’s lien retained in the deed, and to collect purchase money thereby due on the land, is admissible against them by way of estoppel.</p> <p>8. Same — Ratification.—So, also, proof that the plaintiffs, who were the testator’s heirs, in consideration of the balance of the price of the land, ratified the executor’s deed in writing, and released all claim to the land, is admissible to show ratification of such deed.</p> <p>9. Will — Power to Sell for Debts — Proof of Debts Requisite. — When a will gives the executor power to sell for the purpose of paying debts only, the purchaser under the executor’s sale must show that debts then existed against the estate.</p> <p>10. Administrator’s Deed — Confirmation.—Where the court charged, that if the proof showed that defendants held under a certain administrator’s sale and deed, the jury should return a verdict for the defendants, the instruction should have been qualified with the condition, that such administrator’s sale and deed, to be valid and binding, must have been ordered and confirmed by the proper Probate Court.</p>

<p>Superior Title —Vendor’s Lien — Sale Without Foreclosure. — C. &H., a partnership, conveyed land to S., reserving vendor’s lien for part of the price, and subsequently recovered judgment against S. on the note, but without foreclosing the lien. At execution sale had on that judgment C. bought in the land, accounted to his partner for half the unpaid purchase money, and afterwards sold the land to R. without ever having completed payment for the land, S. conveyed it to M., plaintiff’s intestate. Held:</p> <p>1. Taking the personal judgment against S. did not waive the vendor’s lien, and the superior title remained in C. & H.</p> <p>2. The execution sale did not vest any title in C. more than he already had; hut the lien note, the judgment, execution, and sheriffs deed were admissible in evidence to show that such lien was retained, and to show the transaction by which C. paid, and accounted to his firm for, the remaining purchase money due by S.</p> <p>3. Plaintiff was not entitled to recover from vendees of C. and E. without offering to pay the balance of the purchase money, if he could recover at all.</p>

<p>1. Sufficient Citation. — Though a citation is not in terms returable to the first day of the next term of court, if it is made returnable on the 19th of February, 1894, and that is the first day of the next term, the citation is good. Citing 65 Texas, 621; 68 Texas, 136.</p> <p>2. Same — Names of Plaintiffs. — A citation is good which only gives the firm name of the plaintiffs.</p> <p>3. Same — Signature of Clerk pro tern. — Suit being against the clerk of the court, a citation signed by “ Clerk pro tern of the County Court of Fort Bend County” is good.</p> <p>4. Default Judgment Against an Assignee for Creditors. — A petition which states that one L. was indebted to plaintiff, and that he had made a general assignment for the benefit of creditors, and that the assignee, who was the defendant, had accepted the trust and taken possession of the trust fund, worth §10,000, and converted it to his own use, and that L. was insolvent, does not state a cause of action which will support a judgment by default.</p> <p>5. Jurisdiction of the County Court. — The County Court is without jurisdiction to entertain such a suit as plaintiff should have brought, because the value of the assigned property is over §1000.</p> <p>6. Failure to Qualify as Assignee. — The failure of the assignee to qualify did not give the plaintiff the right to maintain this suit, but he might have the right by a proper proceeding, after the administration of the assignment, without garnishment, to reach the surplus.</p>

<p>1. Briefs of Appellants. — The rules require a statement from the transcript, and reference to the proper page, in support of each proposition. A reference to the transcript merely is not sufficient, and propositions thus submitted will not be considered. The court can not undertake to search the records for the purpose of supplying defects in the briefs.</p> <p>2. Bills of Exception. — Bills of exception were presented to the trial judge, who returned two of them without his approval, stating in writing upon them, as his reasons for not approving them, that the objections made to the admission of the evidence on the trial were not those embodied in the bill. This was a substantial compliance with the requirements of article 1366, Revised Statutes.</p> <p>3. Affidavit of Lost Deed. — When the execution and delivery of a lost deed is sought to be proved by a chain of circumstances, it is not necessary that the affidavit of the loss of the deed (if an affidavit he required at all) should state that the affiant had seen the deed or had actual knowledge of its existence, or that he had made search for it in every place where the deed might have been.</p> <p>4. Clerk’s Certificate as Evidence. — In 1871 the clerk of the District Court was ex-officio custodian of the county records, and his certificate of that date to the effect that there was on record in his office a certain deed from W. to M. of the lands in controversy, was admissible in evidence, the records of the county having been burned in 1874.</p> <p>• 5. Objection to Evidence Must be Made in the Court Below. — A witness in his testimony recited entries from Morgan’s land book, a book in which Morgan kept an inventory of all lands owned by him; and objection being made that the book itself was the best evidence, it was produced, and its entries read in evidence, without objection, to show that during his life-time Morgan claimed to be the owner of the land in controversy. Objection being now made that the book was not admissible evidence for that purpose, it is Held, that it is too late to make the objection, it not having been made below.</p> <p>6. Secondary Evidence of Title by Lost Deed. — See this case for evidence of facts and circumstances held to authorize a finding of title in a remote grantor in plaintiff’s chain of title, under a lost deed, although no witness proved the contents of the deed or testified to having seen or read it, or proved its execution.</p> <p>7. Innocent Purchaser. — Defendants knew before they purchased the land that plaintiff’s chain of title, except the lost deed, was all on record in Liberty County, and the price paid by them was greatly less than the market value of the land. They can not be held to be innocent purchasers.</p> <p>8. Outstanding Title. — Although the plaintiff’s evidence showed outstanding title in a Masonic lodge for twelve acres of the league sued for, and in P. for ten acres, if the maxim, “de minibus non curat lex,” does not answer this objection, it was not made in the lower court, nor were the outstanding titles put in evidence by the defendants under their plea of not guilty, and the judgment, if erroneous, does not injure them.</p>

<p>Appeal from Hardin. Tried below before Hon. L. B. Hightower.</p>

<p>1. Mutual Accounts — Agreement for Settlement — Case in Judgment. — H. and B., after having had dealings with each other for several years, and having passed tri-monthly statements of account, entered into a written agreement for settlement of all outstanding accounts between them, by which B. was to pay H. 50 per cent of the amount charged for the seasons of 1888 and 1889, and H. was to pay B. for 36,725 pounds of cake at §15.50 per ton, and 24^ cents per gallon for twelve cars of crude oil shipped to be refined, and B. was to pay half the loss on actual returns of sale of the refined oil, and costs and attorney fees in a certain law suit pending; and upon the correct balance due H. being determined, B. was to give H. his notes at four months for the amount. Held, The agreement for settlement is conclusive of all matters of account between the parties at its date, and all items of plaintiff’s account not mentioned therein must be taken as not objected to, and the items mentioned must be corrected in the manner provided.</p> <p>2. Court Must Construe the Contract. — The court below should not have left the construction of this instrument to the jury, but should have construed it for them, and directed them how the account should be stated. The failure of the plaintiff to present to the defendant a correct statement of the balance due under the agreement did not authorize defendant to repudiate it.</p> <p>3. Erroneous Charge. — It was error to charge, that if the correct amount due the plaintiff by the defendant remained undetermined, and his account rendered was incorrect, that the terms of the agreement for settlement were defeated and ceased to be binding, and the accounts between the parties were to be determined by the jury, without reference to the terms of the agreement.</p> <p>4. Estoppel of Defendant by His Account Rendered. — After the agreement was made, the plaintiff submitted a statement of account to the defendant, showing an indebtedness by the latter to him of §4933.70. Defendant returned a statement of the account to the plaintiff, in which he showed his indebtedness to be only §4444.99. He was not estopped by this statement of account from denying his liability for the balance shown to be due by his own statement, but was entitled to have the correct balance ascertained in accordance with the agreement, and it was not error to refuse to charge that defendant was so estopped.</p> <p>5. Judgment Hon Obstante Veredicto. — The verdict having been for the defendant, the answers of the jury to the several issues submitted to them' are not sufficient to authorize a judgment in favor of the plaintiff; because the balance due him on a statement made in accordance with the contract is nowhere ascertained, and neither the pleadings nor the evidence justify a judgment in his favor for the amount admitted to be due by the defendant in his statement of account.</p>

<p>Master and Servant — Injuries from Defective Machinery. — The master is bound" only to exercise reasonable care in reference to all the appliances of the business, and is under obligation to protect his servants from injury therefrom by reason of latent or unseen defects, so far as reasonable care and foresight can accomplish that re- • suit; but the servant is bound to see for himself such risks and hazards as are plainly obvious; and where he has equal knowledge with the master of the danger incident to the work, he takes the risk upon himself if he goes on with it. See the opinion for case where the master is held not liable for injury caused by the explosion of a lubricator used on a railway engine.</p>

<p>1. • Railway Company — Ejection of Passenger — Excessive Force. — Where a passenger, who had been requested by the conductor to assist him in removing another passenger from the car, uses unnecessary force and violence, the company is responsible for the injuries proximately resulting therefrom.</p> <p>S. Same — Ratification.—Ratification by the railway company of the willful acts of violence of the conductor and a passenger in removing another passenger from the car, will render it liable for exemplary as well as actual damages.</p> <p>3. New Trial — Absence of Counsel. — The discretion of the court in refusing a new trial on account of the absence of defendant’s counsel, then attending another court, will not be revised if there was negligence on defendant’s part in- failing to have other counsel present at the trial.</p> <p>4. Practice Below — Order of Cases — Setting the Docket. — That a case was heard in the order fixed by the bar, instead of the order in which it stood on the docket, is not material error where the setting of the cases by the bar was adopted by the court-, and it is not shown that the case, which was tried in the absence of appellant’s counsel, was heard at an earlier date than it otherwise would have been.</p>

<p>1. Railway Company — Negligence—Moving Cars Within City Limits.— The moving of a car, detached from the engine by railway company, without the customary signals, within the limits of a city and at a speed greater than the ordinances of the city permit, constitutes negligence on the part of the company such as will render it liable for injury,proximately resulting therefrom.</p> <p>2. Same — Presumption as to Contributory Negligence. — In an action for damages against a railway company for causing the death of a person, negligence on the part of the deceased is not to be presumed, but, if consistent with the circumstances shown in evidence, the presumption is rather that he acted prudently.</p> <p>3. Damages for Injuries Resulting in Death — Adult Children — Practice on Appeal. — In an action of damages for injuries causing the death of a parent, his adult children are not entitled to any part of the recovery in the absence of proof of actual damage to them; and where the judgment below is for damages to be divided pro rata between minor children, and adult children not entitled to recover, the appellate court will not award the entire damages to the minors, but only their pro rata part. ■ ,</p>

<p>Error from Tarrant. Tried below before Hon. S. P. Greene.</p>

<p>1. Chattel Mortgage — Conversion—Parties.—A mortgagor of chattels which have not yet gone into the possession of the trustee in the mortgage may sue in re-convention for their conversion under an attachment wrongfully levied thereon.</p> <p>2. Attachment — Partnership—Fraudulent Disposition by One Partner Only.— A fraudulent disposition of his interest by a member of a firm will not constitute a fraudulent transfer of its property by the firm justifying an attachment against the firm.</p> <p>3. Same — Damages.—In an action against a firm by attachment, with seizure and conversion of its property thereunder, on the ground that it had fraudulently disposed of its property, and in which it appeared that only a part of the members of the firm had disposed of their interests, defendants (the firm) are entitled to judgment on a plea in reconvention for damages, for the excess in the value of the property converted by attachment over and above the amount of plaintiff’s debt, because of the wrongful manner of suing out the attachment, even though it would have been justified against some of the members of the firm.</p> <p>4. Same — Description of Goods Seized — Exhibit.—In a plea of reconvention, the goods seized under the attachment were described by reference to the inventory made by the sheriff when he levied the attachment, and which inventory was prayed to be taken as a part of such plea. Held, that in the absence of specific exceptions to that manner of making the inventory an exhibit, it would be treated as part of such plea. Following Schneider v. Ferguson, 77 Texas, 572.</p> <p>5. Practice on Appeal — Betaxing Costs. — In order for the appellate court to review the action of the court below on a motion to retax costs, the evidence relating thereto upon which the trial court acted must be shown in the record by bill of exceptions or otherwise.</p> <p>6. Same — Assignment of Error. — An assignment calling in question the admission of certain evidence, not accompanied with either proposition or statement thereunder from the record, will not be considered.</p> <p>7. Same. — Error in the amount of the verdict, because the value of certain items may have been improperly included, will not afford ground for a rehearing where this matter was not called to the attention of the trial court in the motion for a new trial, and there is no assignment of error presenting it, and it is not claimed that the verdict exceeds the amount of damage alleged in the petition.</p>

<p>1. Dedication — Bight of Way — Estoppel.—A land owner verbally agreed to convey to a railroad company a right of way across his land without charge therefor, and the company, relying on such promise, and without objection on his part, constructed its road across the land. Held, that this was in the nature of a dedication of the land to a public use; that a written conveyance was not necessary; that specific performance need not be decreed, and that the owner was estopped to claim damages because of the right of way.</p> <p>2. Same — Agreement Through Joint Agent. — Where an agreement by a land owner to convey a right of way to a railroad company is made with one who is acting both for the company and for citizens who are interested in having the road built, there is a contractual relation between the parties, and such owner is bound by the agreement.</p>

<p>Limitations — Absence from State. — Where, after the accrual of the cause of action against him, defendant removes from the State, but afterwards and at different times openly and publicly visits the State on business and under circumstances which afford plaintiff reasonable and fair opportunity, by the exercise of ordinary diligence, to obtain personal service upon him, the time he so remains should he counted in his favor on a plea of limitations, whether plaintiff had actual knowledge of such visits or not.</p>

<p>1. Parties to Suit — Trustee—Conversion.—A trustee to "whom goods have been conveyed for the benefit of preferred creditors, and who is in actual possession thereof at the time they are attached by other creditors, may sue alone for their taking and conversion. Adhering to Sanger Bros. v. Henderson, 1 Texas Civil Appeals, 412.</p> <p>2. Trust Deed — Acceptance by One Creditor. — Upon the acceptance by any one of the creditors secured by a preferential deed of trust, the instrument takes effect as to him.</p> <p>3. Same — Measure of Damages for Conversion. — The measure of damages which a trustee may recover for a wrongful taking and conversion of the trust property by attachment is the full value of the property.</p> <p>4. Same — Proof of Secured Debts. — In an action by the trustee for preferred creditors against other attaching creditors for conversion of the property, the trust deed itself, where there is no effort to show that any of the debts secured by it are fictitious, affords sufficient prima facie proof of such debts.</p> <p>5. Same — Prior Levies Mo Defense. — In an action for the conversion of property by attachment, the fact that at the time defendant’s writ was levied writs of other creditors had already been levied thereon, affords no defense.</p>

<p>Liquor Dealer’s Bond — Sale to Minor. — C. sent a minor in his employ to the saloon of L. & Co. for a bucket of beer, furnishing him the money with which to pay therefor. He had before that sent there by the same party for other purchases, including beer. Held, that the transaction in this case was a sale of the beer to C., and not to the minor, and was not a violation of the clause in the liquor dealers’ bond inhibiting a sale to minors.</p>

<p>1. Justice Court — Power to Correct Record After Appeal. — Where an appeal has been taken from the Justice Court to the County Court, the justice of the peace, or his successor, while having no power to then amend the judgment, may nevertheless correct an error in the date of the entry of the judgment; and upon proper proceedings in the County Court, an amended transcript showing such correction may be filed there.</p> <p>2. Same — Appeal Bond May be Filed, when. — A motion for new trial may be filed in the Justice Court within five days from the date of the judgment, and if no action is taken on it by the court, the law overrules it on the fifth day after the judgment, and the appellant has ten days thereafter within which to file his appeal bond.</p>

<p>1 Fraudulent Intent — Preferring Creditors. — An intent on the part of an insolvent maker of a trust deed given to secure preferred creditors, to thereby hinder and defraud other creditors, may vitiate the instrument, whether it be the debtor's primary intent or a secondary one.</p> <p>2. Same — Mere Preference Not Fraudulent. — An insolvent debtor has the right to prefer a creditor in the payment of a just debt, and although this has the effect of hindering and delaying other just creditors, it will not of itself vitiate the transaction.</p> <p>3. Same — Fraud Vitiating Only in Part. — That some of the.claims secured by a trust deed are fictitious will not vitiate the instrument as to other claims of bona fide creditors therein accepting without notice of the fraud.</p> <p>4. Same — Notice of Fraud to Creditor. — A creditor accepting the benefits of a trust deed with knowledge of the debtor’s intent to thereby defraud other creditors, becomes a party to the fraud, and the deed is void as to him.</p>

<p>1. Damages — Personal Liability of Agent to Third Persons. — Where an agent in charge of certain work has actually entered upon its performance for his employer, and by reason of his negligence in refusing to adopt proper precautions for the protection of those under him, they are injured, he is personally liable therefor.</p> <p>2. Contributory Negligence. — Where plaintiff’s petition discloses, that at the time of the injury to himself he was working in close proximity to the defect which caused it, and leaves the inference that the defect was open to common observation, his evidence must go further, and relieve him from the presumption that he had assumed the risks therefrom.</p>

<p>1 Telegraph Company — Notice of Claim — Time.—It seems that a stipulation in the printed forms for telegrams to be sent, that the company will not be liable for damages if claim therefor is not presented within a specific time, should be treated as a condition subsequent, which may afford matter to be pleaded in defense, but compliance with which need not be averred in plaintiff’s petition.</p> <p>2. Same — Day or Night Message — Parol Evidence. — Where the word “Day” is written across the printed conditions on a blank form used for night messages, parol evidence was admissible to show that it was intended thereby to cancel the conditions so far as they were applicable to night messages, and the court properly submitted to the jury whether it was a day or a night message.</p> <p>3. Same — Verdict Not Excessive. — For negligent delay in delivering a telegram, whereby a son was prevented from reaching the bedside of his dying father until after the latter had become unconscious, a verdict of $2150 damages is large, but not so excessive as to require in this ease a reversal of the judgment.</p>

<p>1. Joinder of Actions — Res Judicata — Same Act Injuring Husband and "Wife. — The husband may bring separate actions for personal injuries to himself and to his wife, sustained at the same time and resulting from the same act, and a recovery in the one case will not bar the other.</p> <p>2. Railway Company — Negligence—Public Crossing. — The court correctly charged that it was negligence on the part of the railway company for those in charge of one of its trains to fail to blow the whistle or ring the engine bell at least eighty rods before reaching a public crossing, and to run its train at a higher speed than six miles per hour within the limits of a city whose ordinances forbid such higher rate of speed.</p> <p>3. Same — Charge of Court. — Where the court’s general charge correctly defines negligence as applied to the facts of the case, it is proper to refuse to charge that a given act or omission constitutes negligence or diligence.</p>

<p>1. Jurisdiction — Amount in Controversy — Fraudulent Averment. — The test hy which to determine the sufficiency of a plea to the jurisdiction, averring that plaintiff has alleged his damages at the amount claimed hy him for the purpose of giving jurisdiction to the court, is whether such allegation was fraudulently made, in bad faith, and for the purpose of deceiving.</p> <p>2. Railway Company — Damage to Cattle — Charge of Court. — In an action against a railway company for damage to cattle caused by delay and bad treatment, resulting in a shrinkage of weight, defendant produced testimony under the general issue (which was admissible), that the shrinkage was due to plaintiffs having watered the cattle shortly before they were shipped. Held, that it was error to refuse a special instruction, to the effect, that defendant would not be liable for any shrinkage resulting from this cause.</p> <p>S. Same — Measure of Damages. — The measure of damages in this case would be the difference in the value of the cattle as delivered at the place of their destination, and their value in the condition in which they would have been delivered but for the negligence of the defendant.</p>

<p>1. Probate of Will — Jurisdiction of District Clerk — Presumption.—Under the Constitution of 1869 and the legislative acts of 1870 and 1873, the clerk of the District Court had authority to probate wills in vacation where there was no contest; and as against a collateral attack upon such probate by him, the presumption in favor of jurisdiction obtains as in ordinary cases of the exercise of jurisdiction by Probate Courts.</p> <p>2. Registration — Notice—Burned Records. — Where the record of deeds duly recorded has been destroyed, and there is a failure to again record them within the time prescribed by law, the former record ceases to have the effect of notice.</p> <p>3. Same — Validity of the Law. — An Act of the Legislature requiring deeds executed before its passage to be again recorded within a limited period after the destruction of the first registry is valid, and does not, within the constitutional inhibitions, impair rights previously vested by their execution.</p>

The nature of the petition appears in the opinion. The defendant pleaded general demurrer and special demurrer: 1. The action is not sufficient as a suit of trespass to try title, because (1) it is not indorsed as required by statute; (2) it does not allege unlawful ouster by defendant; (3) it does not fix a day on which plaintiffs were ousted. 2.

<p>1. Eire Insurance — Pleading—Exceptions.—A policy of insurance against loss by fire provided, that the “ company shall not be liable for loss by theft at or after a fire, nor for the loss caused by invasion, insurrection, riot, civil commotion, military or usurped power.” Upon a loss by fire the petition alleged the loss, but did not deny that the fire was caused by “invasion,” etc. This omission did not render the petition insufficient. Such are matters of defense, and for the benefit of the insurer.</p> <p>2. Cases Limited. — Insurance Company v. Boren, 83 Texas, 97, and Insurance Company v. Troy Co-operative Association, 77 Texas, 225, are limited, so far as expressing other views than herein.</p> <p>3. Warranties, etc., in Insurance Policy. — Warranties in a contract become a part of it, limiting and restricting its scope and effect; and yet it has often been held, that a plaintiff who sues on an insurance policy in which he had bound himself by numerous warranties, is not required to show by his pleadings or proof compliance with his warranties.</p> <p>4. Waiver. — Proof of a waiver of notice and proof of loss by the assured were made, showing such waiver by an agent. The effect of such proof was not neutralized by a stipulation in the policy, “that no person but the'president or the secretary could waive any part of the contract.” Such stipulations are not of controlling force upon the future actions of the parties with each other.</p>

<p>1. Vendor’s Lien — Homestead—Subrogation.—In many instances in this State persons who have furnished money to he used, and which was so used, to discharge vendor’s liens have been subrogated to the rights of the original lienholders, even as against homestead rights. In all such cases the money loaned was applied to the satisfaction of the original lien. The doctrine of subrogation in such cases rests upon the fact that the money furnished by the lender had been used to pay for the land; and unless it has been so used, there can be no subrogation. See example.</p> <p>2. Estoppel — Express Lien. — Husband borrowed money on express promise that it should be used to pay off a vendor’s lien upon the homestead. The note executed for the loan recited that it was secured by vendor’s lien. The money was not so applied, but the husband subsequently paid the original note given for the land. After the death of the husband, in suit to enforce the lien recited in the notes executed for the loan, Held, that the husband could not incumber the homestead without concurrence of the wife, and that together they could not incumber it for a loan; and that the wife and her children were not estopped to resist the foreclosure of the notes so made by her husband.</p>

<p>1. Corporations — Public and Private. — The statute (Revised Statutes, article 562) divides corporations into public and private, and defines a public corporation as “one that has for its object the government of a portion of the State,” and private corporations as “religious; * * * and corporations for profit. ” In enumerating the purposes for which private corporations may be formed, among many, the statute names “the supply of gas or the supply of light or heat to the public by any means.”</p> <p>2. Same — Light and Power Companies. — “The Taylor Electric Light, Gas, and Power Company” is classed by the statute as a private corporation. It is immaterial whether it is or is not strictly a private corporation — it is so designated by the statute.</p> <p>3. Power of Private Corporation to Borrow Money, etc. — Revised Statutes, articles 575 and 577, empower private corporations to borrow money and to pledge their property to secure payment. The statute is plain, and interprets itself. The statute giving the rule, the common law as to the powers of a quasi-public corporation, does not apply.</p> <p>4. Deed of Trust — Sale by Trustee. — The corporation to secure a debt executed a deed of trust, with power to sell, upon all its property. Such power of sale may be executed by the trustee. The purchaser will become the owner of all the property which will include the right to operate it under direction of corporate organization. The purchaser under such sale would have just such power to use the property as the company had under its franchise.</p> <p>5. Light and Power Corporations. — A corporation of the kind before us is not under the same obligations and duties to the State and the public that are imposed upon railroads, and hence there is not the same reason for legislative consent to its acts.</p>

<p>1. Land Board — Act of 1883. — Under the Act of 1883 the Land Board had no power to sell in any other manner than as directed by the statute. It has been decided that a sale made by the board at Austin, without the classification, etc., prescribed would be void.</p> <p>2. Validating' Act of 1889 — Good Faith. — The sale under which plaintiff claimed being void, because not made in the county, and probably for other reasons, it devolved upon him to prove that in good faith he had complied with the requirements of the Act of 1883, the regulations of the State Land Board, and the terms and conditions of the contract of purchase. Such proof was necessary to the validation of his title under the healing act of 1889.</p> <p>3. Misdescription. — In plaintiff’s application for purchase, the land was described as “dry grazing land” and “soil not suitable for agricultural purposes.” The soil was good. Held, a misdescription inconsistent with good faith in the purchase — a correct description being required by rules of the Land Board.</p> <p>4. Validating Act of 1891. — The healing act of 1891 (General Laws, p. 130) also extended only to parties acting in good faith in making purchases.</p> <p>5. Possessory Right Does Rot Obtain in Public Land. — The rule that possession is sufficient evidence of title to recover against one trespassing upon such possession does not apply to an occupant of land a part of the public domain.</p> <p>6. Good Faith — Reasonable Ground. — In submitting the issue of good faith by the agent of the plaintiff in making the purchase, the court properly instructed the jury, that the agent should have had “reasonable ground ” for believing his description to have been correct, to constitute plaintiff a good faith purchaser.</p>

<p>1. General Demurrer. — When a petition contains several counts, and one or more of them is well pleaded, a general demurrer to the petition should be overruled. A defect in other counts can not thus be reached.</p> <p>2. Commissions of County Treasurer. — Article 2403, Revised Statutes, prescribes a maximum of 2| per cent commissions to county treasurers, and does not forbid a reduction by the county commissioners. This authority is not in conflict with section 44, article 16, of the Constitution, prescribing that certain officers (including county treasurers) shall have such compensation as may be prescribed by law. ’ ’ The Legislature could confer such power upon the county commissioners.</p> <p>3. Fact Case. — It appeared that the County Court reduced the rate of commissions to be retained by the county treasurer. Two months after the date of this order the county judge paid over money of the named fund to the treasurer. It being the duty of the county judge to immediately pay over funds by him collected to the county treasurer, it will he presumed that the county judge did his duty, and the reduced rate for commissions will apply to the funds so paid over.</p>

<p>The conclusions of fact from the trial judge follow:</p> <p>“I find, that in January, 1890, Frances Cruger owned the land between Speight street and James, from ¡Ninth street west nearly to Eleventh street; that Tenth street had not been opened through this property, but had been opened' north of it, at the time of the sale by defendant to plaintiff. The county surveyor, at request of defendant, projected the west line of Tenth street across her property so as to be able to locate plaintiff’s lots on corner of Tenth and Speight streets, when Tenth should be opened.</p> <p>“I find, that in January, 1890, defendant made a deed to plaintiff for 100x165 feet on Speight street, and running back on Tenth street 165 feet. Tenth street had not been opened then, nor is it opened now. Tenth street is 60 feet wide. Plaintiff paid an advance for the privilege of getting corner property when Tenth street should be opened. * * * Plaintiff has improved the property for a home, and has been living there for two years or more. The deed made to plaintiff is a warranty deed, with the usual covenants. * * * In January, 1893, defendant began moving an old residence into the space on which Tenth street would be if opened on Speight street. A temporary injunction was granted plaintiff restraining defendant from blockading the space for Tenth street, and the only issue on the trial was the perpetuation of that injunction and the protection of the easement claimed by plaintiff in Tenth street, defendant claiming, that she has the right to move on the land in any way she saw proper, until the city had paid or offered to pay for the same.</p> <p>. “I find, that at the time the deed was made the field notes were furnished the draftsman from the survey made by the county surveyor, and furnished him by the surveyor; and from these notes he drew the deed without further instructions. All parties were present at the time, and it was stated at the time that the property was to be on Speight and Tenth streets, when Tenth street was opened. Prior to the making of the deed, it was understood and agreed between the parties that Tenth street should not be opened to the public. At this time the street was fenced, and after building, with consent of defendant, a gap was put in giving entrance to rear of his (plaintiff’s) lot until the city should pay defendant for it; but nothing was said between the parties about any private rights until long after the deed was made, nor was there any difference between the parties until the attempt to remove the house into that space.”</p> <p>The trial court dissolved the injunction, and the plaintiff has appealed. The other matters are sufficiently stated in the opinion.</p>

<p>1. Damages — Prospective Profits. — Plaintiff purchased machinery of defendant to be used in erecting a smelter, and because of a delay of two months in the delivery, sued defendant for loss of the profits that might have been realized from the operation of the smelter during that time. Smelting works at that point were then an untried experiment, plaintiff’s mines there being undeveloped, the quality and value of the ores therein unknown, and the expense of working the mines and operating the smelter undetermined. No profits had been realized from the smelting works after the delivery of the machinery. Add, that the profits claimed were too uncertain, remote, and speculative to be recovered as damages.</p> <p>2. Same. — Prospective profits claimed must be free from speculation, and sufficiently certain to be capable of adequate proof; and they must not depend on the chances of trade, but upon market value and other facts capable of definite ascertainment.</p>

<p>1. Railway Company — Negligence—Street Car Crossing. — It is not necessary, to constitute a cause of action, that the acts relied on as negligence should he per se negligent; and it can not be held, as matter of law, that the failure of a railway engineer to ring the hell or sound the whistle in approaching a street car crossing is not negligence, even though the statute should he held not applicable to such crossings.</p> <p>2. Same — Rules of Street Car Company. — Plaintiff, a motorman operating a street car, was injured by a rapidly moving railway engine, while crossing the railway track. A rule of the street car company required its motormen to stop before crossing a railway track, etc. Held, that such rule did not change the standard of diligence as between the railway company and third parties; and the issue was, whether the motorman used such reasonable care as a prudent person, situated as he was, would have used under the circumstances.</p>

<p>1. Municipal Corporation — Defective Drain Pipe — Contributory Negligence. — Plaintiff was damaged by reason of an overflow resulting from a city drain pipe being so stopped up that it failed to carry off the surplus water. He knew of the obstruction beforehand, but failed to remove it or to notify the city, which had no actual knowledge of it. Held, that plaintiff’s contributory negligence would preclude a recovery.</p> <p>2. Same — Constructive Notice.- — Whether the city would he charged with constructive notice of the defect in the drain pipe by reason of the length of time it may have existed, was a question of fact for the jury, dependent on the circumstances of the case, such as the remote or exposed locality of the defect, and the like.</p> <p>3. Same — Negligence as to Highways and Drain Pipes — Same Rule.— There is no difference in principle between the right of a plaintiff, irrespective of knowledge or omission on his part, to recover for negligence on the part of a municipality in reference to sewers and drains, and in reference to defective highways.</p>

<p>1. Jurisdiction — Absence of Justice of Peace — Transfer of Case. — Under article 1537, Sayles’ Statutes, the justice of the peace of a precinct being absent, a suit is properly instituted before the nearest justice of the peace; and when jurisdiction has once been obtained, there is no provision of law authorizing the transfer of the case.</p> <p>2. Same — Power of Commissioners Court to Fill Vacancy — Absence.— The Commissioners Court is clothed with the power to appoint a justice of the peace only where a vacancy exists in the office; absence does not constitute a vacancy.</p> <p>3. Same — De Jure and De Facto Officers. — There being a de jure justice of the peace in a precinct, there could be no de facto justice for the same precinct.</p> <p>4. Jurisdiction — Consent of Parties. — Consent of parties can not give jurisdiction.</p>

<p>1. Land. Certificate — Administrator’s Contract for Location. — An administrator had power to make a contract for the location of a land certificate belonging to the estate, by which the locator was to receive a part of the land as compensation for his services and expenses.</p> <p>2. Partition in Probate Court — Necessary Parties — Irregularities.—The Probate Court, under the law in force in 1851, had power to decree a partition of land between the estate and a cotenant, and in a suit by the cotenant against the administrator, the heirs were not necessary parties to it; and the court having had jurisdiction . to render the decree, it is not susceptible of impeachment, in a collateral proceeding, for mere irregularities.</p> <p>3. Same — Jurisdiction—Failure to Appoint Commissioners. — That a partition was effected directly by decree of the court, without observing the provisions of the statute relative to commissioners, discloses no more than an irregular exercise of the court’s power to effect partition.</p> <p>4. Evidence — Agreement of Counsel — Presumption from Lapse of Time.— Where there was an agreement in the case made by counsel containing a direct admission that there was a deed from the administrator, dated June 2, 1851, and there was a decree ordering the administrator to execute the deed, after this lapse of time, and in the absence of contrary testimony, a presumption is afforded of its execution.</p> <p>5. Trespass to Try Title — Superior Outstanding Title. — Where the evidence shows that the title had passed out of the estate under which the plaintiffs claim as heirs, they can not recover.</p>

<p>1. Railway Company — Liability for Tort of Conductor — Ejecting Trespasser. — Where a conductor, having ordered a trespasser from his train, shoots him while he is in the act of alighting, the company will be liable in damages therefor, unless the shooting was done from personal resentment, and not for the purpose of compelling the trespasser to get off.</p> <p>■ 2. Same. — But if the trespasser had reached the ground before being shot, the company would not he liable, since the ejectment would have been then completed.</p> <p>3. Practice on Appeal — Construction Below. — Where the court below, without objection by defendant, places a certain construction on the wording of an allegation of fact in plaintiff's petition such as the pleading fairly admits of, this construction will prevail on appeal.</p> <p>4. Same — Conflict of Evidence. — The plaintiff, soon after being shot, and while suffering greatly from the wound, gave one account of the shooting, and on the trial gave a different one. Held, that the determination of the jury as to which was correct would not be disturbed.</p> <p>5. Railway Company — Unnecessary Violence in Ejecting Trespasser. — The law as to unnecessary violence in the expulsion of persons from trains is the same, whether the person was rightfully or wrongfully on hoard.</p>

<p>Superior Title — Transfer of Vendor’s Lien Note — Deed After Note is Barred. — Where a vendor of land who receives in part payment, a note with vendor’s lien reserved in the deed transfers the note, guarantying its payment, and afterwards, in consideration of his release from such guaranty, conveys the land to the owner of the note, the latter acquires the title to the land, and in default of payment of the note may recover the land from the first vendee, the maker of the note, although such later deed be made after the note is barred by limitations.</p>

<p>1. Agreement of Counsel — Infringement of Rules — Briefs.—Agreement of counsel affecting the rights alone of parties will usually be enforced, but where such agreements infringe upon the rules of the Supreme Court, and entail an unnecessary and additional burden upon the appellate court, as in searching the records of other cases for briefs adopted by agreement, they will not be upheld or allowed</p> <p>2. Special Judge — Completion of Trial by Regular Judge. — A trial commenced by a special judge, elected during the sickness of the regular judge, may be completed by the regular judge when he returns.</p> <p>3. Pleadings — Allegations of Defects in Railroad Track. — A general allegation of the defects is sufficient, without entering into any great particularity as to the exact condition of the track, roadbed crossing, or bridge of a railway company.</p> <p>4. Same — Injured Employe. — More specific pleading is not required from an injured employe than from any other person.</p> <p>5 Waiver of Assignment of Error. — An assignment of error in the record not copied in the brief is considered waived.</p> <p>6. Charge of Court — Safe Appliances —Duty of Railway Company. — It is the duty of a railroad company to use ordinary care to provide such cars, roadbed, tanks, etc., as are reasonably safe for its employes, and a charge which required “ordinary care in the construction of the road crossing and its ditches along the track and under the crossing, so as to make them reasonably safe for use, and ordinary care to keep them in such condition,” is not open to criticism.</p> <p>7. Same — Submitting Issue — Sufficient Testimony. — See the opinion for evidence held sufficient to justify the submission of the question of defects in the roadbed, etc., to the jury.</p> <p>8. Fellow-Servants. — Where the plaintiff, a conductor, was riding in a caboose in obedience to an order from the company to report for duty at a certain place, he and the engineer of the train were not fellow-servants, as defined by the statute.</p> <p>9. Master and Servant — Assumed Risks — Charge of Court. — A charge that the plaintiff (a conductor), as a servant of the defendant company, had assumed “all ordinary risks and hazards to travel over defendant’s road, and all other risks known to him,” is one of which the company can not complain.</p>

<p>1. Charge of Court — Issues Made by Pleadings. — Where the statement of the issues made by the trial judge in the charge is as fall as that made in appellant’s pleading below, this is as much as he is entitled to demand.</p> <p>2. Railway Company — Leased Road — Liability of Lessor. — A railroad company can not in this State evade its responsibilities to the public by leasing its road to another, and it is liable for injuries to an employe of the lessee caused by a defect in the roadbed and bridges.</p> <p>3. Evidence — Opinion of Nonexpert. — The opinion of a nonexpert witness who examined a railroad bridge soon after it had fallen, as to the cause of the fall, is admissible where he states fully the facts upon which the opinion is based.</p> <p>4. Same — Opinion as to Rainfall. — A witness who has lived several years in the vicinity of a railroad bridge, and who has a special knowledge of the canyon over which it is built, may state his opinion as to whether the freshet which caused the bridge to fall was a remarkable one, and such as was not to be expected in that section.</p> <p>5. Charge of Court on Weight of Evidence — Grouping Pacts. — A charge is erroneous in which certain facts are grouped, and the effect of their finding declared to be negligence. See the opinion for illustration.</p> <p>6. Railway Company — Care as to Roadbed and Bridges. — A railway company is not held to absolutely insure the safety of its bridges, but its liability depends upon the use of ordinary care in their construction and maintenance.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Superior Title — Reservation of Vendor’s Lien. — Where there is a sale of land, and a lien is reserved in the deed for the purchase money, the sale is executory, and the superior title remains in the vendor.</p> <p>2. Same — Rescission—Equities of Vendee. — If the vendee has paid a part of the purchase price, or made valuable improvements, or is entitled to other equities growing out of the contract, his mere inability to pay will not deprive him of such equities in a suit for rescission of the contract.</p> <p>3. Same — Note Barred — Rights of Vendor. — If the note for the purchase money becomes barred by limitation, and in a suit for such purchase money the vendee refuses to pay, and pleads the statute of limitations, thereby forcing the vendor to abandon his suit for the purchase money, and proceed by an action of trespass to try title to recover the land, such vendee relying alone upon his legal defenses to such action, the superior title is in the vendor, and must be so decreed.</p> <p>4. Same — Transfer of Note and Title. — Where such vendor sells the purchase money note, and also deeds to the purchaser of the note the title to the land, such transferee stands in the exact attitude of the original vendor, and holds the superior title to the land until the purchase money is paid.</p> <p>5. Same — Equitable Title of Vendee'. — In this State the vendee in such executory contract, holding under deed, procures only an equitable title to the land, which he can ripen into a legal title by payment of the purchase money.</p>

<p>1. Sale by Sample — Evidence.—In an action for the price of goods ordered and sold by sample, to which the defense was, that they did not conform to the sample, evidence is admissible to show the purpose for which defendant intended to use them, and that they would not serve that purpose, and were therefore useless to him.</p> <p>2. Evidence — Scientific Works. — Extracts from the United States Medical Dispensatory are not admissible in evidence to show the medicinal properties and affinities of certain drugs for the price of which the action is brought.</p> <p>3 Evidence — Self-Serving Declaration. — A letter written by plaintiff to defendant after the controversy arose, offering a compromise, and setting forth an argument of his side of the case, when offered in evidence by the plaintiff is properly rejected as self-serving and irrelevant.</p> <p>4. Sale by Sample — Right of Buyer. — When goods are ordered by sample and do not conform therewith, the buyer is entitled to his damages in the premises whether he receives or rejects the goods; but if he elects to reject them, he must notify the seller within a reasonable time, and it is for the jury to determine what is a reasonable time under the facts and circumstances of the given case.</p> <p>5. Same — Charge of Court. — A requested charge that the buyer must, if he rejects the goods, give the seller prompt and explicit notice, and delay in so doing is only excusable when he is prevented by overpowering obstacles, is properly refused.</p> <p>6. Same — Weight of Evidence. — A requested charge to the effect that the jury, in determining whether the goods were accepted by the buyer, may take into consideration the length of time that elapsed before notification of rejection, and also the payment by the buyer for two previous shipments under the same order, is properly refused as being on the weight of evidence.</p> <p>7. Same — Warranty.—In a sale by sample there is an implied warranty that the goods sold shall conform to the sample.</p> <p>8. Fact Case — Judgment Warranted. — For facts held to warrant a judgment in favor of the seller for the goods themselves, and in favor of the buyer for so much of the price thereof as he had paid before discovering that they did not conform to the sample, see the opinion.</p> <p>9. Jurisdiction — Nonresident.—Where nonresidents bring suit for the value of a shipment of goods, and defendants plead in reconvention to recover damages growing out of two other shipments to them made by plaintiffs under the same order, the court has jurisdiction over plaintiffs as to the entire suit, and a, personal judgment against them for the damages relating to the two other shipments is authorized.</p>

<p>Original Application for writ of mandamus.</p>

<p>Error from Hill. Tried below before Hon. J. M. Hall.</p>

<p>1. Public Road — Report of Jury — Parol Evidence. — The report of a jury to assess damages on the opening of a public road gave a general designation of the lands taken as “pasture.” Held, that this did not show that the allowance made therein to plaintiff did not cover the cultivated part of his land which was also taken, and that evidence was admissible to show that it did.</p> <p>2. Same — Power of Court Without Application — Notice.—Under the Act of February 5, 1884, the Commissioners Court may open up roads on its own motion and without application, and in such case it is not required that notice be given before the appointment of a jury of view to lay out and report the practicability of the proposed route.</p>

<p>1. Limitation of Ten Years — Character of Possession — Intent.—That a person in adverse possession of land belonging to another believes that it is public land is a matter that should go to the jury as any other fact showing intent, in order to determine the character of the possession.</p> <p>2. Same — Belief that the Land is Public. — One who has actual possession of land for ten consecutive years, asserting an exclusive and adverse claim thereto hostile to the true owner, acquires the title thereto, even though he mistakenly believes it to be vacant public land.</p> <p>2. An exclusive and adverse claim to land can not exist in the mind of him who thinks it vacant public land.</p>

<p>1. Vacant Public Land Within City Limits — Nacogdoches.—Under the Spanish and Mexican laws in force prior to the independence of Texas, the lands within the limits of the town of Nacogdoches were granted to the inhabitants and the corporation for private and municipal purposes, and subsequent acts of the Legislature of Texas incorporating the city of Nacogdoches recognized its right to the vacant lands within its limits. By the latter of these acts the area of the city was reduced, but an act supplementary thereto empowered the corporation to sell and convey title to any vacant lands within its former limits, and not within the latter ones. Subsequently the city abandoned its special incorporation, and incorporated under the general law. Held, that it did not thereby lose its property rights to the land within its ancient limits, and that such lands were not subject to sale by the State under the Acts of March 29, 1887, and April 5, 1889.</p> <p>2. Judicial Notice — Special Act. — The court may take judicial notice of a special act relating to the rights of a city corporation, though it be not pleaded.</p>

<p>Error from the County Court of Grimes. Tried below before Hon. J. G. McDouall», Jr.</p>

<p>1. Subscribing Witness — Failure to Produce. — Where there were two subscribing witnesses to a paper, and the witnesses were not shown to be beyond the reach of the court, other proof of its execution is inadmissible.</p> <p>2. Vendor’s Declaration After Sale. — The declaration of a vendor made after a sale, and without the presence or knowledge of the vendee, can not be received in evidence to defeat the vendee’s title to the property conveyed.</p> <p>3. Evidence — Unsigned Deed. — An unsigned deed, found among the papers of the alleged grantor after his death, is not admissible in evidence to show that no deed had ever been made, although it is shown to have been written about the time it is claimed the deed was executed, and to be in the handwriting of a person who drew another deed, a part of same transaction.</p> <p>4. Practice — Remarks of Court. — It is improper for the trial judge in ruling upon the admissibility of evidence to comment upon its weight.</p> <p>5. Recital in Deed — Effect of. — Where it is claimed parties have made mutual deeds in exchange of lands, and one deed is introduced in evidence, the recital in it of the execution of the other deed is not contractual, and carries with it no estoppel, or presumption that such other deed had been executed, but is evidential of a fact open to explanation.</p>

<p>1. Master and Servant — Defective Machinery — Promise to Repair. — An employe who without protest continues in service after he has learned, or by proper diligence should have learned, of a defect in machinery furnished him, assumes the risk from such defect; but where he complains to the master of the defect and receives a promise that it will he removed, there is no assumption of the risk by a mere continuance by him of the use of the defective appliance.</p> <p>3. Assumption of Risk and Contributory Negligence Distinct Defenses.— In this State the assumption of risk and contributory negligence are treated as distinct defenses.</p> <p>3. Same — Exceptions and Limitations Upon General Rule. — If the danger to the servant is so great that the policy of the law will forbid persons even under a promise to take the risk and then seek compensation in the courts, or if, having taken it, the servant by his own carelessness in performing his work has increased the risk and contributed to his own injury, the promise can not avail him; and the servant can rely upon the promise only a reasonable time for the master to comply with it. Railway v. Brentford, 79 Texas, 619, distinguished.</p> <p>4. Same — Charge of Court — Duties of Master and Servant. — A charge defining the duty of the master to be, “to do everything that can reasonably be done for the safety of its employes, and to furnish reasonably safe machinery and appliances for the use of said employes,” requires a higher duty than the law places upon the master; the duty of the master being to use such care as a person of ordinary prudence would employ in such matters to see that the machinery and appliances were reasonably safe.' The duty of the servant is to use the care which a person of ordinary prudence would use in the same situation, considering all its risks, and the additional care, if any, which knowledge of existing conditions would make incumbent on him.</p> <p>5. Pleading — Allegations of Damages. — It is not necessary that the petition should specially allege mental and physical suffering, as such damages necessarily result from personal injuries sustained, but lessened earning capacity should be specially alleged, as it is not always a necessary consequence of such injuries.</p>

<p>■ 1. Homestead Designation — Intention Alone Hot Sufficient. — The intention to occupy property as a homestead is not alone sufficient to clothe it with the attributes of a home; there must be some preparation to put such intention into effect, and where the act is of a very trivial and ephemeral nature, the intention may be changed. '</p> <p>2. Vendor’s Lien — Reconveyance—Rights of Subsequent Incumbrancers— Practice on Foreclosure. — K. conveyed ten acres of land to L. for $10,000, reserving a vendor’s lien for $7000 of the purchase money. L. mortgaged the property to ,G., and afterwards having made default in the payment of the purchase money note, conveyed back to K., in consideration of a,credit on the note of $5000, five acres of the land. Seld, that the reconveyance of the five acres was not a rescission of the contract pro tanto, but was a conveyance for a credit on the purchase money, and that such re-conveyance was made subject to the equitable right of G. to discharge the lien of K. by a resale of the property; and in a suit in which all were made parties, the court decreed a sale of the property in satisfaction of all the liens, though K. did not seek to foreclose his vendor’s lien.</p>

<p>1. Jurisdiction of County Court — Title to Land. — In actions for a debt or damages in amount within the jurisdiction of the County Court, if the right of recovery depends on the title to land, the court may adjudicate the question of title thus incidentally involved; not as settling the title, but as determining the right of plaintiff to recover the thing sued for.</p> <p>2. Riparian Proprietors — Recession of River — Accretion.—Where an island is formed in a river, and the stream for many years after its formation ran on each side of it, and afterwards receded from that division of the bed which lay between it and the plaintiff’s land, such recession did not change the title to the soil in the island, as it was not a gradual and imperceptible accretion.</p> <p>3. Same. — In a navigable stream, all islands formed upon it belong to the sovereign; in streams not navigable, the riparian proprietors own to the middle thread of it, unless by necessary construction of the grants therein boundaries are restricted. If the island lies wholly upon one side of the middle line of the stream, it belongs to the owner of the land on that side; but if the middle thread of the stream intersects the island, each owner is entitled to the part on his side of the line, and the line is determined by ascertaining the middle thread of the river as it was just before the formation of the land.</p>

The trial court’s conclusions of fact and law, adopted by the opinion in this case, are as follows: “1.

<p>Evidence — Declarations of Agent — Garnishment.—Declarations of an agent that his principal would be indebted to W., a contractor, upon the completion of certain buildings, are not competent evidence of such indebtedness in a garnishment proceeding, where it appears that such declarations were not made in the discharge of the agent’s duties, nor while acting within the scope of his agency, and where the terms of the written contract between the principal and W. attach conditions to the accrual of the indebtedness.</p>

<p>1. Practice on Appeal — Harmless Error. — Error of the trial court in overruling special exceptions to certain allegations in the petition is harmless where little or no evidence is offered in support of the matters excepted to, and the court expressly directs the jury to disregard all such evidence.</p> <p>2. Railway Company — Elements of Damage for Causing Death. — The reasonable prospect of promotion of a deceased engineer, and the consequent enhancement of his wages, are proper elements of damage in an action against the railway company for negligently causing his death.</p> <p>3. Evidence — Opinion—Nonexpert.—A nonexpert who was on the train at the time of its derailment, and who testifies as to the condition of the. track and ties there, may also testify, in connection with such facts, that the inferior condition of the ties and spreading of the track caused the derailment.</p> <p>4. Evidence — Harmless Error in Admitting. — The admission, over objection, of incompetent evidence as to a given fact which accords with other evidence establishing the fact, and admitted without objection, is harmless error.</p> <p>5. Charge of Court — Negligence—Speed of Train. — It was not error for the court to refuse to charge, that the act of the deceased engineer in running his train at a rate of speed forbidden by the rules of the company was of itself contributory negligence, and irrespective of whether that caused the accident. Following Railway v. Thompson, 2 Texas Civil Appeals, 170.</p>

<p>Trial of Bight of Property — Claimant’s Bond for Property which Proves to be Realty — Liability of Sureties.- — B. filed a claimant’s bond in trial of right of property, and took into possession, as personal property, an engine and, certain gin fixtures, his claim of title to which depended upon a sale thereof to him under an attachment levied upon them as personal property. It was adjudged that they were in fact realty, and that B. therefore had no title or valid claim thereto; and as the property was not forthcoming, summary judgment under the statute for its value and damages was rendered against B. and the sureties on his claim bond. Held-.</p> <p>1. That the statute which authorizes the giving of a bond for the trial of the right to personal property does not authorize the summary judgment provided for therein where the property claimed is in fact real estate.</p> <p>2. The adverse party having obtained his judgment against B., the claimant, on the ground that the property was realty, can not treat it as personalty for the purpose of entering up judgment against the parties to the bond.</p>

<p>1. Evidence — Checks.—Where the issue was as to the ownership of a stock of goods, checks executed by plaintiff to former owners in payment therefor are admissible in evidence to establish bis title.</p> <p>■ 2. Practice on Appeal — Assignments of Error. — Where several assignments not germane to each other are grouped and presented together without any proper statement, as required by the rules, they will not be considered.</p> <p>3. Same — Objections to Evidence Below. — An assigment of error to the admission of evidence is not well taken where the bill of exceptions fails to show that the ground of objection stated in the assignment was urged in the court below,</p> <p>4. Bill of Sale — Record.—In order to pass title as between the original parties, it is not necessary that a bill of sale of merchandise should be acknowledged or recorded.</p> <p>5. Practice — Objections to Depositions. — Where certain interrogatories in a deposition were leading, and objections to the answers on that account were made before trial, and notice given the opposite party, the action of the court in excluding such answers was proper, and it was not necessary to ask a ruling on the objections before the trial.</p> <p>6. Conversion — Verdict—Value of Separate Items. — Failure to instruct the jury to find the value of each article, in an action for the conversion of goods, and where the verdict establishes that defendant was a tenant in common with plaintiff of an undivided interest in the goods, is not prejudicial to defendant, since plaintiff had not the right to demand a surrender of the property by his cotenant.</p> <p>7. Sale — Charge of Court. — On the issue of whether there was a sale of certain goods, a charge of the court, that “ whenever parties have agreed upon the terms of a sale, and the property sold is identified, and nothing remains to be done but deliver it, then the sale is complete,” is held sufficient.</p>

<p>1 Notice — Bona Fide Purchaser — Community Property. — After the death of the«wife the husband conveyed community real estate to G., who had knowledge of the wife’s community interest, and G. subsequently conveyed it to H., who had no actual notice of such interest. Held, that H. was a bona fide purchaser, and was not chargeable with notice of such community interest of the wife by virtue of an inventory and appraisement of the community estate filed by the husband in the Probate Court of the county where the land was situated after his deed to G., but prior to the conveyance to H.</p> <p>2. Community Property — Right of Survivor Who Pays Debts. — The survivor in community has the right not only to dispose of community property to pay community debts, but also the right to retain it or to sell it to compensate himself for such obligations discharged by the use of his own separate means.</p>

<p>1. Negotiable Note — Indorsed Memorandum — Alteration.—After the execution of a note given for land, a question as to the title of the land having arisen, a memorandum was, by agreement between the maker and payee, indorsed on the hack of the note restraining its negotiability, which indorsement the payee fraudulently erased and sold the note before maturity. Held, that such erasure was an alteration of the note, and the maker could plead the failure of consideration against any purchaser thereof.</p> <p>2. Same — Failure of Consideration — Notice—Inquiry.—Notice to an intending purchaser of a note given for land, that there is a partial failure of the title to the land, puts him upon inquiry as to whether the failure of consideration for the note is not entire.</p> <p>ON REHEARING.</p> <p>3. Same — Pleas of Alteration and Failure of Consideration. — Under the plea of non est factum, proof of the alteration by erasure of the memorandum would defeat a recovery, without reference to the failure of consideration; and as the indorsement destroyed the negotiability of the note, failure of consideration could be pleaded, irrespective of the alteration, or whether the purchaser of the note had notice of such failure or not.</p>

<p>1. Evidence to Rebut Argument. — Letters of plaintiff’s attorney and ex parte affidavits are not admissible to rebut insinuations of fraud and bad faith made against defendant by opposing counsel in his opening statement to the jury.</p> <p>2. Same — Rejection of Cumulative. — Where rejected testimony is substantially embraced in other portions of the witness’ evidence admitted without objection, its exclusion is not material error.</p> <p>3. Same — Hearsay—Pedigree.—To prove pedigree, hearsay is admissible when based upon information derived from deceased relatives of the party in question, or from his family history, etc.; but unless it is shown to come from one or the other of these sources, it should be rejected.</p>

<p>Appeal from Llano. Tried below before Hon. W. M. Allison.</p>

The opinion gives a full statement. Chief Justice Fisher and Associate Justice Key being disqualified, the Governor appointed Hon. Beauregard Bryan and Hon. L. J. Brown, special judges.

<p>1. Separate Property — Evidence.—Deed to city lots was made to wife. After her death the husband married again. The lots were occupied as his homestead. In suit by children of first marriage against his widow, it was competent to prove his declarations, while negotiating the purchase, that he was buying for his wife, to be her separate property.</p> <p>2. Transactions with. Deceased. — Widow was claiming, against children of her deceased husband’s first marriage, for advances made by her to her husband. It was error to allow the widow to testify in her own behalf to such transaction with the deceased against his heirs. Rev. Stats., art. 2248.</p> <p>3. Money Advanced by Wife to Husband for Support of Family. — Widow claimed as against heirs of her deceased husband for advances by her made to her husband for support of the family, and also asked, that the money advanced be declared a lien upon the entire property owned by his children and occupied as homestead. Held, such claim is without authority of law, and to grant it was error.</p> <p>4. Advances for Taxes and Necessary Improvements. — Widow in possession of homestead of her deceased husband is entitled to money paid by her for taxes in suit for the property by heirs of the husband; also to be paid the additional value at time of trial put upon the property by improvements placed thereon by her, less value of use and occupation.</p> <p>5. Advances by Tenant in Common for Taxes and Improvements — Limitations. — Heirs by a former marriage sued the widow for the homestead. The widow had no interest therein under the law, but had resided thereon, paying taxes and making improvements. Held, that she was entitled to taxes paid and value of improvements, less use. In adjusting equities connected with the subject matter of partition suits, statutory limitation does not apply.</p>

<p>Error to Court of Civil Appeals for Third District on an appeal from McLennan County.</p>

<p>1. Limitation — Pleading Coverture. — Suit by a number of plaintiffs claiming as the heirs at law of Mary J. Midkiff for 200 acres of land, her separate property. The defendants pleaded limitation. The plaintiffs rejoined, that “most of plaintiffs are married women and minors, and have been since the ouster” alleged. Held, that the allegation as to coverture and minority was insufficient, and it was not error to exclude testimony to the coverture of one of the plaintiffs and the minority of another.</p> <p>2. Pleading — Certainty.—A plea which does not show on its face and with certainty in whose behalf it is made, presents no issue, and should be treated as a nullity.</p> <p>3. Practice — Dismissal by Plaintiff After Reconvention. — After the defendants have reconvened, asking affirmative-relief, the plaintiff can not by dismissing his suit withdraw from consideration by the court the case set up in reconvention. And when the decision upon the intervention concludes the plaintiff's case, he suffers no injury .from a refusal by the court of leave to dismiss.</p> <p>4. Limitation of Five Years. — Where possession and the conditions prescribed in the statute of five years’ limitations are shown, it is of no consequence what title, or whether the grantor in the deed under which was the possession, had any title, at the time of executing the deed.</p>

<p>Homestead — Estoppel—Mortgage.—City lots were community property, and the homestead of Moerlein and wife in the city of Houston. They moved to and resided four years in the city of New York. The husband returning to Houston on business needing money, represented to a loan agency that the property was not homestead, and that his residence was in New York. Upon strength of these representations he effected a loan. The deed of trust to secure it was duly executed by Moerlein and his wife. In the deed of trust it was recited, that “the property was not their homestead, nor claimed to be such, their residence and homestead being in New York.” The wife in signing did not read it, but understood the purpose was to raise money. In suit to foreclose the deed of trust, Held:</p> <p>1. The representations as to their residence and disclaiming homestead rights in the property, they not occupying it, but in fact residing in another State, were competent against their claim of homestead rights.</p> <p>2. The wife’s signature was not necessary, it being community property, and incapable of being mortgaged if homestead.</p> <p>3. The declarations by the wife as to residence and nonclaim were competent against her, although made in the mortgage.</p> <p>4. It appearing that the representations that the property was not their homestead and as to their residence were believed and acted upon, and the money loaned on faith of them, the estoppel is complete against both husband and wife.</p> <p>5. The wife could not avail herself, as against one acting upon them, of her ignorance of the recitals contained in the deed of trust. Her declarations acted upon, bind her, whether the deed was acknowledged or merely signed by her.</p>

<p>1. Injunction Against Intrusion Upon Office. — Complainants properly sought by an injunction relief against defendant for intruding upon the office claimed by the plaintiff.</p> <p>2. Residence of Officers — Vacation of Office. — Article 16, section 14, of the Constitution, is, “All civil officers shall reside within the State, and all district or county officers within their district or counties, and shall keep their^offices at such places as may be required by law; and failing to comply with this condition, shall vacate the office so held.” This provision, in so far as it relates to the place of residence of the several State, district, and county officers, is self-acting and requires no legislative action to put it into force.</p> <p>3. Removal of Officer from District. — If a county officer removes from the county and establishes a residence elsewhere, he thereby vacates the office held by him.</p> <p>4; Same — Appointment to Vacancy. — If as a fact a vacancy occurs, and the Commissioners Court has the exclusive power to fill the vacancy, the jurisdiction to make the appointment arises from the fact that a vacancy exists.</p> <p>5. Case in Judgment. — Rankin, holding the office of county clerk of Fayette County, moved to Travis County. The Commissioners Court of Fayette County appointed Ehlinger to the office, and Ehlinger took possession. Rankin, by injunction suit, sought to regain possession of the office. Ehlinger pleaded that Rankin had abandoned the county and vacated the office, and that defendant had been appointed to the vacancy by the County Commissioners.- Held, that the plea was good.</p>

<p>Appeal from County Court of Coleman County. Tried below before Hon. T. J. White, Special Judge.</p>

<p>1. Mental Suffering — Telegraph Company. — That mental suffering is an element of actual damages for negligently failing to deliver a telegraphic message is settled by too many cases in this State to be disturbed by us.</p> <p>2. Addressee May Recover. — -A dispatch for benefit of the plaintiff, and addressed to him, was never delivered. Held, that if injured by negligent failure to deliver it, he can recover damages.</p> <p>3. Message Delivered to Telegraph Company Through Telephone. — It being alleged that the message, with name of sender and of the addressee and his residence, were communicated through a telephone to the telegraph office, and that it was the custom of the telegraph company to receive messages in that way for transmission. Held, that under such circumstances it was not necessary that the message be reduced to writing and signed.</p> <p>4. Notice — Plea Not Sworn to. — A defense alleging want of legal notice of loss within ninety days, not sworn to, was properly stricken out upon objection of the plaintiff. Laws 1891, p. 20.</p> <p>5. Impeaching Witness. — See predicate and impeaching testimony properly admitted, as well to impeach the witness as to show his imperfect memory.</p> <p>6. Agency. — It was proper to submit to the jury the question as to agency of the operator who received the message by telephone; and to instruct upon the effect of the operator receiving the message and undertaking its delivery by the telegraph company.</p> <p>7. Argument of Counsel — Jury.—The jury is presumed to have intelligence to understand and to pass upon the facts, and to determine what facts are established as well as what the facts prove. This is the province of the jury as a necessary part of the court, and the judge should not undertake to protect them by giving his own view of the weight or effect of the evidence by restricting argument of counsel to such view. If counsel assert facts that are not in proof, or argue issues not raised by pleading or proof, the court may interfere.</p>

<p>1. Landlord and Tenant — Repairs.—The landlord is under no obligation to make repairs unless it is so stipulated as part of the lease contract, and his promise to do so, founded merely on the relation of the parties, would be without consideration.</p> <p>2. Same — Lessor’s Agreement to Repair. — Where the lease contract contains a clause providing, that “all repairs shall be at the expense of the lessee, unless by special agreement the lessor undertakes to pay for the same,” this enters into the consideration of the original contract, so that a subsequent agreement of the lessor to pay for repairs would be binding.</p> <p>3. Same — Prior Verbal Promise to Repair. — But even with such clause, evidence of a verbal promise of the lessor to pay for repairs, made prior to the written lease, would, in the absence of fraud, concealment, or mistake, be inadmissible as varying the contract.</p> <p>4. Same — Lessee to Make Repairs — Surrender.—Even under such clause and a subsequent agreement of the lessor to pay for repairs, it would devolve on the lessee to have them made and look to the lessor for repayment, and a failure to so repay would not authorize the lessee to surrender the lease and rescind the contract.</p> <p>5. Same — Waiver of Conditions by Lessee. — If a lease for three years be conditioned on the lessor paying for repairs, and the lessee occupies the building for thirty-one months of the time, the premises being then in no worse condition than when he entered, he waives any right to rescind the lease contract because of the lessor’s failure to make repairs.</p> <p>6. Same — -Surrender of Lease. — That the key was left with the lessor’s agent and notice of surrender given him, and that the agent merely accepted the key and afterwards attempted to rent the premises, do not alone suffice to establish a valid surrender of an unexpired lease.</p> <p>7. Charge of Court Excluding Evidence. — The practice of admitting illegal evidence and then attempting to correct the error by instructing the jury to disregard it, is not to be commended, and under certain circumstances will result in a reversal.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Pleading New Matter — Continuance.—Where new matter material to the cause of action is pleaded on the eve of a trial, the adverse party should, upon a proper application, be given a continuance to enable him to procure his testimony for such allegation.</p> <p>2. Same — Amendment—New Cause of Action. — Where plaintiff sued a railroad company for its failure to return a trunk delivered to it by plaintiff as a passenger, and a trial amendment was filed containing allegations which would change the liability of the railroad company from that of a warehouseman to that of a common carrier, but showing only defendant’s liability for its failure to return the property not fully alleged in the petition, the trial amendment, did not set up a different cause of action.</p> <p>3. Measure of Damages — Failure to Deliver Property. — In a suit for the value of a trunk on account of the failure of a railroad company to redeliver to plaintiff, who was a passenger, the liability of the company arose from a contract, and the measure of damages for its breach was the value of the property at the time and place it should have been delivered, with interest thereon at 8 per cent per annum from said date up to time of trial.</p>

<p>Executor’s Unauthorized Sale of Realty — Estoppel by Receipt of Price.-—</p> <p>An executor, without an order of court and in a manner not authorized by the will, sold land of the testator, and paid over the proceeds to the devisees named in the will. Held, that his sureties were not liable in an action brought for the value of the land by a subsequent administrator de bonis non, in reality for the benefit of the devisees, the estate not owing any debts.</p>

<p>1. Lease of Railroad — Liability of Lessor — Personal Injuries. — In the absence of a statute permitting it, a railroad company can not by a lease evade any responsibility it may owe to the general public, or escape liability for damages caused by the lessee in the operation of the road.</p> <p>2. Master and Servant — Independent Contractor — Licensee.—Where plaintiff was working for an independent contractor who was building a fence for the railroad company, the relation of master and servant did not exist between plaintiff and the company; and the plaintiff, being rightfully on a hand-car on the track, occupied the same relation to the railroad company that any person would who was licensed or permitted to be on the track, and was subject to the same rules of contributory negligence.</p> <p>3. Railway Company — Statutory Signals at Crossings — Negligence.—The failure to give the statutory signals at road crossings may be taken into consideration, together with other facts, to show want of reasonable care on the part of the company as to any parties lawfully on the right of way.</p> <p>4. Same — Liability of Lessor — Rules Made by Lessee. — Evidence of the nonobservance of rulés for the guidance of its locomotive engineers made by the lessee company is admissible in an action for negligence against the lessor.</p> <p>5. Same — Signals at Road Crossings. — Evidence is admissible to show that trains passing near the place of collision where plaintiff was working had given the statutory signals, and that plaintiff had heard them, as showing that plaintiff had a right to conclude that the company would continue to do so.</p> <p>6. Opinion of Witness — Evidence.—Where it is a matter of impossibility to so detail the facts as to produce the impression upon the minds of the jury that was legitimately produced on the mind of the witness by the facts, the opinion of a witness is admissible, in connection with the facts.</p> <p>7. Same. — Where a witness testifies positively that he was near a road-crossing, and that no hell was rung or whistle sounded, such testimony is not an opinion, but is testimony of an absolute fact.</p> <p>8. Evidence Cumulative. — The admission of improper evidence will not be considered where another witness has been permitted, unchallenged, to swear to the same fact.</p> <p>9. Railroad Company Rules — Customary Violation. — The customary violation of the rules of a railroad company may he shown to fix or defeat the liability of the company.</p> <p>10. Charge of Court — Negligence.—Where the different circumstances relied on as evidence of negligence are mentioned in the charge, and the jury are instructed that if they find the circumstances were proved and that it evidences negligence as defined in another part of the charge, they should find for the plaintiff, the charge is not subject to criticism.</p> <p>11. Same — Degree of Care Defined. — The care required of a person riding on a hand-car, in the rightful prosecution of his work, under an independent contractor, is such as an ordinarily prudent man would exercise under like circumstances, and there is no rule of law that would require of him the exercise of the highest degree of care that he could under the circumstances.</p> <p>12. Master and Servant — Negligence of Superior Officer. — The negligence of the “boss” of a gang on a hand-car is not attributable to the inferior working under his control, although the inferior participate in the act, if he does so by the order of such superior.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Insolvent Estate — Homestead—Surviving Wife and Miner Child. — A owned a tract of land jointly with his children by a former marriage, which he occupied at time of his death as a homestead, and died insolvent, leaving appellant as surviving wife, and a daughter born after his death, who were together entitled to a homestead in his interest in the land. Appellee procured a deed from her to the land upon a fraudulent representation, among other things, that upon her death, under the law, the premises would go to creditors, and that in the event of her marriage she would lose all right to the homestead. Reid, that these representations were, in point of law, untrue, and were material representations.</p> <p>2. Equity — Mistake of Law — Cancellation of Deed. — Equitable relief, affirmative or defensive, will be granted when the ignorance or misapprehension of a party concerning the legal effect of a transaction in which he engages, or concerning his own legal rights which are to be affected, is induced, procured, aided, or accompanied by the inequitable conduct of other parties.</p> <p>3. Same — Undue Influence. — Where parties have acted under a mistake of law, though there be no actual fraud, if one is unduly influenced and misled by the other to do that which he would not have done but for such influence, and he has in consequence conveyed property to another without consideration, equity will, if possible, restore both parties to the condition they were before.</p> <p>4. Same — Mistake of Doubtful Law. — Equity will relieve against a fraudulent and misleading representation made as to the state of the law in respect to the consideration on which alone the party could have been induced to sign the instrument, where the law is doubtful.</p>

<p>1. Jurisdiction — Action to Construe Will. — The District Court has jurisdiction of a suit brought to obtain a construction of a will, irrespective of the "existence of a trust, and wherein there is no prayer for any other relief.</p> <p>2. Same — Venue.—Such action not being a money demand against the estate, may be brought where the defendants reside, although administration under the will may be in another county.</p> <p>3. Will — Construction—“Our Children.” — A testator who had adult children by a former marriage and minor children by a second marriage, devised his property to his second wife in trust for “our minor children ” during minority, after which it was to be divided among “our children/’ Held, that the children by the first marriage took equally with.the others in the division.</p> <p>. 4. Same — Community Property. — A testator who devises community property will be presumed, in the absence of a clear intention to the contrary, to refer only to his own interest in the property, and not to the entire property.</p> <p>5. Same — Charge of Court. — A charge, that if the jury find that the will “admits of two equally probable constructions,” etc., does not assume that there are or may be two equally probable constructions, and does not shift the burden of proof.</p> <p>6. Evidence — Impressions of Witness. — Impressions of a witness formed from what he heard the testator say, and from a general acquaintance with him, are not admissible to explain the intention of testator’s will.</p> <p>7. Same — Deposition—Answer Hot Responsive. — For interrogatory and an answer of the witness thereto held in part to be not responsive and properly excluded, see the opinion.</p> <p>■ 8. Suit to Construe Will — Judgment.—In an action brought to obtain a construction of a will, it was adjudged, inter alia, that the property of the .testator was community property; but the evidence failing to clearly show that a certain material item of the property was not his separate property, and the judgment on this point being adverse to the interest of minors who were parties, it is affirmed in all respects save as to that item of property, and the cause remanded, with instructions to the District Court to try that question alone.</p>

<p>1. Statute of Frauds — Conveyance of Land. — A receipt given by certain heirs “in full payment and satisfaction of the amount due us from our mother’s estate, the late F. W.,” is insufficient under the statute of frauds to convey land.</p> <p>2. Same — Sale of Land — Specific Performance of Verbal Contract. — A verbal contract for the sale of land, where the purchase money has been paid, without additional proof of possession and valuable improvements made, permanent in character, or other facts making the transaction a fraud on the purchaser, will not be enforced.</p> <p>3. Same — Tenants in Common. — The possession of a tenant in common will not operate as a part performance, unless there has been some prior act of open disseizin, or some joint act of partition among all the co-owners.</p> <p>4. Same — Coverture and Infancy. — In order to enforce specific performance of such an agreement, there must be such mutuality in the equitable remedy at the time the agreement is concluded between the parties as will enable both to avail themselves of the remedy, which can not exist when one of the parties is, on account of coverture or infancy, incapable of contracting, or can only contract in the form and manner prescribed by statute.</p> <p>5. Same — Estoppel in Pais — Married "Women and Infants. — To estop a married woman from asserting her right to land, she must have been guilty of some positive fraud or act of concealment. Infants are not estopped in pais unless their conduct has been intentional and fraudulent.</p> <p>6. Depositions — Interpreter.—If the officer taking depositions understands the language of the witness and can correctly translate it into English, it is unnecessary for him to use an interpreter in the performance of his official duty, as is prescribed for in article 2230, Revised Statutes.</p>

Tried below before Hon. T. H. Spooner. From the order of the County Court setting aside the guardian’s sale, only the defendants E. Morris and Hoffman appealed to the District Court, and they alone prosecute this appeal from the judgment of the District Court, which also vacated and annulled the sale.

<p>1. Special Judge — Objections—Estoppel.—Where a party suffers his case to go to trial before a special judge, without any objections made then or on a subsequent appeal of the case, he is estopped to question, in a collateral proceeding, the regularity of the appointment of such special judge.</p> <p>2. Same — Disqualification.—Where the regular judge was disqualified by reason of relationship to one of the parties defendant, the selection or appointment of a special judge was not involved when at the time it was made the defendant related to the regular judge had died before service of citation on him, and subsequently a discontinuance was entered as to him before the trial of the case.</p> <p>3. Same — Order of Discontinuance. — Where the judge is disqualified by reason of relationship to one of the defendants, he can not make a legal order discontinuing the case as to such defendant, and thus qualify himself to try the cause.</p>

<p>1. Railway Company — Ordinary Care — Negligence—Charge of Court. — In an action for injuries received by plaintiff while riding with others on a cupola of a caboose, it was misleading for the charge of court to define “ordinary care,” without further definition of that term, or of negligence, as “that degree of care which may be reasonably expected of a person in the situation of the plaintiff at the time the injury was received; and negligence is the absence of ordinary care.”</p> <p>2. Same — Riding on Top of Car. — If the top of the caboose was not constructed for the accommodation of passengers, and it was against the rules of the company to allow passengers to ride there, it was not the duty of the railway company to use ordinary care to so construct and maintain its water tanks as to avoid injuries to a passenger occupying such position on the caboose.</p> <p>3. Same — Passenger Voluntarily Exposing Himself to Obvious Danger.— The consent of the conductor will not justify a passenger in occupying a place of obvious danger not designed for the use of passengers, and which a man of ordinary prudence would not have occupied, even though, owing to an extraordinary influx of passengers, it be impossible for him to find room inside the car.</p>

<p>1. Jurisdiction — Probate Court — Existence of Community Debts. — An administrator’s sale of a land certificate was made and was confirmed by the Probate Court in 1851. Forty years thereafter, and after the death of the administrator and destruction of the probate records, the validity of the judgment of confirmation was attacked in a collateral proceeding upon the ground that no community debts existed which would have authorized the administration. Held, that testimony in a general way that there were no debts due by the community estate, given by a witness who was only ten years of age at the death of his father, the intestate, and by another not shown to have any actual knowledge of the facts, would not authorize a finding that no such debts existed.</p> <p>2. Same — Presumption—Contradicting the Record. — Where it affirmatively appears in the record of the Probate Court in the administration of an estate that such court properly had jurisdiction by virtue of the existence of community debts, parol evidence will not be considered to impeach the conclusiveness of its judgment in such case.</p> <p>3. Judgment of Probate Court Conclusive, When. — Where the record of the ■ County Court in the administration of an estate shows that the steps necessary to clothe it with power to act in a given case were taken, or if the record be silent on this subject, its judgment must be held conclusive in any other court when collaterally called in question.</p> <p>4. Same — Presumption as to Community Debts. — The lapse of nine years from the death of the deceased to the confirmation of a sale by his administrator will not authorize the presumption that no debts existed-or were barred, and hence that no administration was necessary.</p>

<p>1. Practice — Harmless Error. — The admission of testimony in regard to a fact already proven by other testimony not objected to and not controverted, if error at all, is harmless.</p> <p>2. Same. — In a case tried before the court without a jury, where the bill of exceptions recites that evidence erroneously admitted was not considered, its admission is not reversible error.</p> <p>3. Same — Objections to be Promptly Urged. — An objection to conclusions of fact by the court below, such as that the allegata and probata do not correspond on a minor point, if made for the first time in the appellate court, in a case where such conclusions are fully supported by the evidence upon the main issue, can not be sustained.</p> <p>4. Homestead Bought Subject to a Lease — Designation—Occupancy.—H. purchased land with the purpose of making it his homestead, and took possession of a few acres of it, the remainder having been leased by his vendor for the succeeding two years. H. lived on his mother's place during the two years, built a barn on the leased part of his land during that time, and moved his family to the premises as soon as the lease expired. Held, that there was a sufficient designation of the homestead and evidence of intention as against a purchaser at execution sale having actual notice, there given, of the homestead claim.</p>

<p>1. Resulting Trust — Sale of Land. — T., with money belonging to his wife and her sister, bought land for them, paying part cash, taking deed in the name of the wife alone, and giving a note for balance of purchase money signed by himself and wife, and which was intended to be paid out of moneys belonging to the sisters. Thereafter, while holding money of theirs in his hands, he allowed the vendor’s lien to be foreclosed on the land and procured a deed thereof to himself from the purchaser under the foreclosure sale, but was acting in the matter for and as the agent of his wife and her sister. Held, that whether he had recognized their rights or not, there would have been a resulting trust in their favor; and that a purchaser at execution sale under a judgment against T., with actual notice of such rights, acquired no title.</p> <p>2. Bona Fide Purchaser — Valuable Consideration — Credit on Judgment.— A creditor who purchases land at execution sale under his judgment, and merely credits the amount of his bid on the judgment, is not a bona fide purchaser for value as against the rights of third persons.</p> <p>3. Wife’s Separate Property — Community Estate. — Where the husband settles an adverse claim to land which is the separate property of his wife by giving his own notes therefor, with the intention that the interest so acquired shall be the wife’s separate estate, and holding in his hands at the time moneys of the wife in excess of the amount of the notes, such interest does not become community property.</p> <p>4. Execution Sale of Land Subject to Purchase Money — Superior Title. — • T. purchased land entirely on a credit, taking deed therefor -which was not recorded. The funds to pay his purchase money notes were advanced by one B., under an agreement that when the payment was completed T. would return his deed to the vendor, who would then execute a deed to B., and the latter would hold the title until T. repaid the money so advanced. Held, that the superior title remained in the vendor, and that a purchaser under an execution sale against T. acquired only his equity, but could not acquire the title without payment to B. of the purchase money advanced by him.</p>

<p>Garnishment — Waiver of Jurisdiction Over Person — Commission to Take Answer. — Where a garnishee who resides in another county than the one where the garnishment proceeding is pending voluntarily submits to the jurisdiction of the court by filing answer to the writ, it is not necessary; if the answer be adjudged defective and insufficient, to then issue a commission to the county of his residence to take his answer, under article 195 of the Revised Statutes, before rendering judgment against him.</p>

<p>1. Attorney Fees. — The fact that a provision in a note for the payment of 10 per cent attorney fees was inserted for the sole benefit of the payee, and not with any purpose of paying the amount to an attorney, does not affect the legality of the demand for such fees, and their amount may be properly included in a subsequent note given in lieu of the former one.</p> <p>2. Usurious Note — Deduction of Interest. — "Where an usurious note is given for another usurious note, the payee can recover only that part of the principal sum which would be left after cutting out all the interest embraced in the note, and any payments which may have been made should not be applied to extinguishing usurious interest, but to the lessening of the legal demand.</p> <p>3. Same — Application of Payments. — Payments made and directed to be applied to other notes should not be treated as payments upon the note sued on, unless they constituted a part of the same usurious contract, and were executed for the amount of the usurious interest.</p> <p>4. Usury — Estoppel.—That the makers of an usurious note agreed not to plead usury will not estop them from doing so.</p> <p>5. Practice on Appeal — Conclusions of Fact. — The Courts of Civil Appeals, under Acts of 1892, page 31, section 31, are not required to file conclusions of fact in cases which are reversed and remanded.</p>

<p>1. Evidence — Transaction with Decedent. — In a contest over the right to administer upon an estate between parties not claiming as heirs, and where a person claiming to be the surviving wife of the decedent has renounced her right to administer in favor of one of the parties to the - contest, such wife is not incompetent, under article 2248 of the Revised Statutes, to testify, to transactions with and statements by the decedent tending to establish that she was in fact his wife; nor is her competency affected by the fact that there is another suit pending to establish that she is such surviving wife.</p> <p>2. Witness — Impeachment—Chastity.—Where, in a contest over the right of administration, a witness has testified to confidential declarations of the decedent militating strongly against one of the contestants, she may be asked on cross-examination, to show the proper weight to be given her testimony, if she had not sustained improper sexual relations with the decedent; and objections to her affirmative answer, not urging her privilege to decline answering, but that the answer is immaterial aud irrelevant, are not well taken.</p> <p>3. Common Law Marriage Valid. — There can be a valid marriage in this State without compliance with the statutory provisions in regard to the issuance of license and solemnization.</p> <p>4. Same — Cohabitation and Agreement. — A widower, with the consent of a girl’s mother, sent the girl to school for the purpose of educating her as his wife, and afterwards, upon an agreement to be then and thereafter husband and wife, they cohabitated together, and he introduced her to some of his friends as his wife, she bearing him a child, and he providing for her support. Held, that the marriage should be sustained in favor of the claim of the wife and child in the settlement of his estate.</p>

<p>1. Trespass to Try Title with Cross Plea for Condemnation — Withdrawal of Plea. — Plaintiff sued in trespass to • try title for a strip of land occupied by the defendant railway company, and defendant pleaded the general issue of not guilty, also that it had acquired the right of way by user of ten years, and in the alternative, a plea asking the condemnation of the land. After the evidence was in and the argument begun, defendant asked leave to withdraw" the plea, which the court refused, and proceeded to render judgment for title for plaintiff, and to condemn the land for defendant, assessing the damages therefor. Held, that since, under the statute (Acts of 1889, p. 18), the plea for condemnation was an admission of plaintiff’s title, disposing of the issues relating thereto, it would have materially and prejudicially changed plaintiff’s attitude to have permitted a withdrawal of the plea at that stage, with full benefit of the withdrawal.</p> <p>2. Same — Abandonment of Plea — Judgment Reformed.- — The defendant had a right, however, to wholly abandon such plea, and should not he compelled to accept the condemnation over its wish and protest; and the judgment is therefore reformed by omitting that part of it.</p>

<p>1. Void Execution Sale — Death of Defendant. — A sale under execution, issued after the death of a sole defendant, when the judgment is for money, is void.</p> <p>2. Same — Independent Executor. — Where a judgment has been obtained against an independent executor, the statute authorizes the issuance of an execution against him to be levied on the property in his hands belonging to the estate of his testator; but where the judgment is against the testator, no such statutory provision exists.</p> <p>3. Same — Refunding Purchase Money. — But while the execution is void, a party can not have the sale annulled and recover the land hack without refunding the purchase money, paid by the purchaser at the execution sale, with legal interest from date of purchase.</p>

<p>1. Appeal from Justice Court — Pleading New Matter. — On appeal from the Justice Court to the County Court the defendant may plead any new matter in bar, except set off or counter-claim, though not pleaded in the Justice Court.</p> <p>2. Waiver of Statute of Limitations- — Public Policy. — An agreement to waive the right to plead the statute of limitation, made before the debt was barred, is against public policy, and will not be upheld.</p>

<p>1. Practice — Impleaded Parties — Judgment by Default. — A judgment by default will not be rendered against parties who have been impleaded by the defendants and who have not answered, after that part of the answer of the defendant seeking to make them parties has been stricken out on plaintiff’s exceptions; nor will the propriety of making such parties be considered where the demurrer of the plaintiff to the defendant’s answer has been properly sustained, and judgment has been rendered against the defendants.</p> <p>2. Judicial Sales in Partition — Warranty of Title. — Where land is sold for the purpose of partition, there is no provision in our statute imposing a warranty of title upon the parties to the proceeding, and none is implied where the partition is actually effected.</p> <p>3. Warranty — “Grant and Convey” — Title by Limitation. — The use of the words “grant and convey” in a deed imports only that the parties had not previously conveyed the land, and that it was free from incumbrance, and does not include an adverse title by limitation.</p> <p>4. Partition Sales — Caveat Emptor — Laches.—Courts of equity will not compel a purchaser at a partition sale ordered by the court to accept a worthless or unmarketable title, the rule of caveat emptor not being as rigidly enforced in these sales as in sales under execution and other sales in invitum; but equity will not aid a person who is negligent in the assertion of his rights, nor one who has affirmed a contract after he has knowledge of the cause for setting it aside.</p>

<p>1. Pleading — Personal Injury — General Allegation Limited by Specific Averments. — Where the petition alleged that plaintiff “sustained great and permanent harm, injury, and hurt, breaking his leg and thigh and injuring his spine, besides crushing his arms, head, and body,” evidence of injury to plaintiffs foot, though admitted without objection, should, upon request, be excluded by the charge; the rule being, that the general statement as to permanent injury must he construed to refer to injury to those parts specially mentioned.</p> <p>2. Charge of Court — Constructive Notice. — A charge is incomplete which instructs the jury, that if plaintiff “ might have known ” the fact in question he could not recover, without informing them as to the degree of care required of him in ascertaining such fact.</p> <p>3. Master and Servant — Assumed Risk. — Where the servant habitually performs work of an unsafe character, and knows it, or by the use of ordinary care ought to know it, he assumes the risk.</p>

<p>1. Deposition — Disqualification of Office — Attorney.—Where the officer at the time of taking deposition was an attorney at law and represented the defendant in the Justice Court, and in the County and District Courts of adjoining counties, but did not represent it in any case in the court where the suit was pending, nor in the case in which the deposition was taken, and knew nothing of the case or its facts, but was subsequently employed to represent defendant in the case, he was not disqualified from taking the deposition.</p> <p>2. Railway Company- — Duty to Stop Trains at Stations — Charge.—It is the duty of railway companies to stop their passenger trains at each station for a time reasonably long enough for passengers to get off; but the company had a right to run a special train through without stopping at intermediate stations, unless by its conduct it has entitled plaintiff to demand that it should stop at his destination, and a charge which assumed that he was entitled to have the train stopped in any event, was erroneous.</p> <p>3. Same — Mistake of Passenger. — If plaintiff did not know of the difference between the two trains, and was justified by the manner in which the defendant company managed its train in believing that the train he entered was the proper one; or if the officers of the train recognized him as a passenger by taking up his ticket and promising to put him off at his destination; or whether he was misled by the defendant’s conduct or not, if he entered the train believing in good faith that it was the regular train, or that it was to stop at his destination, and if defendant’s servants learned of his presence on the train and his destination and mistake, and if his destination was the first station passed after such knowledge, defendant was required to put him off there.</p> <p>4. Pleading — Excessive Recovery. — It is error to allow a recovery for actual damages not claimed in the pleadings.</p>

<p>1. Will, Construction of — Life Estate — Limitation of Estate — Condition Subsequent. — A testator devised to Mrs. F. and her children 300 acres of land on which they were then residing, using the following language: “I give and bequeath,” etc., “to hold jointly during their lives, if they shall continue to reside on said land, but if either of them shall remove from said land, or absent themselves for the space of two years, he or she shall forfeit all interest in this bequest. It is also my wish, that none of the aforementioned legatees shall have power to alienate any part or all of their parcel of land until the youngest of them have become of lawful age.” Held:</p> <p>1. That the terms of the will can not be construed to vest in the devisees a greater estate than an estate for life.</p> <p>2. That the'language employed created a limitation of the estate and not a condition subsequent, and that the removal of all the devisees from the premises terminated their life estate.</p> <p>8. Same — Forfeiture of Estate — Entry—Suit by Residuary Devisees. — A suit by the residuary devisees is equivalent to an assertion of the forfeiture, and an actual entry is not necessary.</p> <p>3. Same — Minority of Devisees. — The fact that some of the devisees were minors when the mother removed from the premises would not prevent the forfeiture of their estate as against them.</p>

<p>1. Jurisdiction. — Foreclosure of Lien — Cases Limited. — The rule established in the case of Marshall v. Taylor, 7 Texas, 255, and subsequent cases, that in a suit to foreclose a mortgage on personal property, “the matter in controversy is not only the debt, but the security given for its payment,” is recognized, but is limited to cases in which the lien was created by contract or act of the parties upon specific chattels.</p> <p>2. Same — Landlord’s Lien. — The lien of the landlord is by law given generally upon the crops of the tenant and upon the property furnished him by the landlord; but it is a charge upon no more of such property than is necessary to pay the debt, and if jurisdiction exists over the cause of action asserted, it can not be defeated by the accident that the sheriff, after the institution of the suit, levies upon property of greater value than the debt.</p>

<p>Error from Harris. Tried below before Hon. S. H. Brashear.</p>

<p>1. Pleading — Fraud—Proof Without Allegation. — Fraud must be pleaded, and proof of fraud in procuring a conveyance will not avail as a defense where there is no allegation of such fraud.</p> <p>2. Evidence — Attorney.—That the witness was attorney for the defendant in relation to matters concerning which he testifies, is not of itself a ground upon which the defendant can exclude his testimony.</p> <p>3. Practice on Appeal — Conflicting Evidence. — Where the evidence is conflicting, and such as would sustain a verdict for either party, the judgment will not be disturbed by the appellate court.</p>

<p>Appeal from Trinity. Tried below before Hon. J. M. Smith.</p>

<p>1. Railway Company — Negligence—Avoidable Consequences — Ordinary Care. — Plaintiff was driving near the tracks of the defendant railway company, and his horses becoming unmanageable, were struck by a moving car. The employes in charge of the cars saw his danger, but made no effort to stop the cars. Held, the railway company was liable for the injuries resulting from the collision.</p> <p>2. Same — Contributory Negligence — Proximate Cause. — The fact that plaintiff may have been guilty of contributory negligence in taking the more dangerous road (next to the tracks) will not relieve the company of liability, as it failed to exercise ordinary care after discovering plaintiff’s danger to avoid the consequences, and such failure on its part was the proximate cause of the injury.</p> <p>3. Same — Liability in Such. Cases. — That the accident occurred on the company’s track, to the exclusive use of which it was entitled, and at a point not a public crossing, and that the employes had a right to assume that plaintiff knew his own business, and would not drive along the track unless able to control his team, will not excuse their failure to use ordinary care to avert the disaster, after discovering the actual peril of plaintiffs.</p> <p>4. Evidence — Admission Mistakenly Made. — Where plaintiff, immediately after the accident, and before he had learned that the train employes knew of his danger in time to have prevented injury, signed a written statement at the request of the employes exonerating them from blame, the jury were not required to give such statement a controlling effect over the other testimony in the case.</p> <p>5. Charge of Court — Negligence—Weight of Evidence. — The court instructed, that under certain conditions the failure of the employes to stop the cars or to divert them from the track upon which they were running to a side track, would be negligence. The evidence showed that the negligence of the defendant company could consist only in the omission to perform one of those two acts. Held, that the rule forbidding the trial court to specify the acts or omissions which would constitute negligence, as being on the weight of evidence and giving undue prominence to the facts so mentioned, was not violated in this instance.</p> <p>6. Same — Special Instruction. — Special charges are properly refused which ignore testimony showing the injury to be the result of negligence on the part of the defendant’s employes.</p>

<p>1, Railway Company — Defective Approaches to Depot. — In an action against two railway companies for injuries sustained because of a defective sidewalk leading from a union depot used by both companies, but situated on premises belonging to one of them alone, it is no defense that a street railway company had trespassed upon the premises and built its track thereon, where the trespass was not accompanied by such exclusive possession as to prevent all approach by defendants and render it unlawful for them to properly maintain the sidewalk.</p> <p>2. Same — Charge of Court — Damages.—A charge of court directing the jury to assess plaintiff’s damages at such sum as would be a fair and reasonable compensation for the injuries and physical and mental suffering sustained by his wife, and for such sum as would compensate him for any physician’s hills necessarily incurred on account of the injuries, held to he correct, and all that was required on this point.</p> <p>3. Same — Defective Sidewalk. — Where a sidewalk leading to a depot is on the ground of the railway company, and is in common use by the public in passing to and from the depot, and the railway company permits it to become and remain in a defective condition, it will be liable therefor, although it never authorized the original construction and maintenance of such sidewalk.</p> <p>4. Same — Joint Liability — Union Depot. — The fact that the person injured is not a passenger of the railway company owning the depot grounds and premises, but of another company, jointly using such depot, will not absolve the former company from liability for the defective sidewalk; nor will such ownership of the depot and premises absolve the latter company from its liability.</p> <p>5. Same — Relation of Carrier and Passenger. — A railway company is chargeable with knowledge of the existence and condition of a sidewalk constituting an approach to its depot and situated on its grounds, and the relation of carrier and passenger continues until the passenger has gone beyond such approach.</p> <p>6. Same — Charge of Court — Lights—"Weight of Evidence. — The expression in the charge of the court, “or in not having the same lighted better than it was, if you find that it was not lighted sufficiently well,” held not to be an intimation that the court was of the opinion that there was negligence on account of defective or insufficient lights, the charge fairly leaving that as a fact to the jury.</p>

<p>1. Telegraph Company — Mental Anguish of Wife. — In an action against a telegraph company for negligence in the delivery of a message by which plaintiff inquired after his son, whom he supposed to be lost, it was error in the court to assume that the company would be liable for the mental distress of plaintiffs wife, and to refuse to charge, that unless the evidence showed that the company had notice of the ■fact that she had a beneficial interest in the message no damage could be awarded on account of her mental distress.</p> <p>3. Same — Unfounded Alarm. — Since the distress which plaintiff suffered because he supposed the absent boy to he lost would have been relieved had the company discharged its duty of delivering the message, the fact that the boy was not lost, hut at his uncle’s, affords no defense.</p> <p>3. Same — Delivery Outside of Limits. — A message was sent to an address outside the free delivery limits, but the agent there was in the habit of delivering such messages through hackmen and others without extra charge. Held, that the company having received the message without demanding any extra charge for delivery from the sender when he paid the toll, undertook to deliver it to the addressee, and would he liable for delay in so doing, despite the clause in its printed forms exempting it in the case of messages outside its free delivery limits.</p>

<p>1. Charge of Court — Damages for Personal Injuries. — A charge instructing the jury to assess the damages “at such sum as would he a fair and reasonable compensation for such physical injuries and suffering as plaintiff’s wife sustained from the collision, and for such mental sufferings as they might believe from the evidence plaintiff’s wife sustained by reason of the collision,” Held, correct as a general statement of the measure of recovery; and that if defendant desired a more definite statement, it should have so requested by special charge.</p> <p>2. Street Railway Company — Lease—Liability of Lessor. — The rule of law that a chartered railway company can not, by lease to another company, without express permission of law, absolve itself from its charter obligations, and from liability for the negligent operation of its road by the lessee, is applicable also to street railway companies.</p> <p>3. Same — City Ordinance — Quære,—Whether an ordinance by a city council authorizing a street car company to lease its line can also, by express provision, authorize such company to exempt itself in the lease from liability for the negligent operation of the line by the lessee, and from its own charter obligations, seems doubtful, but is left undecided.</p> <p>4. Same — Liability—Construction of Franchise Grant. — Where a street car company is granted the franchise of a certain street on condition that it construct and operate a line thereon between the public square and a certain railway depot, and thereafter, through negligence, a passenger on such line is injured by a collision, the street car company is not exempted from liability therefor because of the fact that the collision occurs at a point that is not on the street, but on land belonging to the railway company that owns the depot.</p> <p>5. Same — Single and Double Track. — Where the lessee of a street railway line, under authority of the lease, changes the line from a single to a double track, this will not absolve the lessor company from liability for the lessee’s negligent operation of the double track line.0</p>

<p>Railway Company — Bill of Lading — Penalty for Refusing to Deliver Freight. — An action against a common carrier, under Sayles’ Civil Statutes, article 4258a (Act of May 6,1882), to recover the penalty therein prescribed for refusal to deliver freight upon the payment or tender of the freight charges due “as shown by the bill of lading,” can not he maintained where the bill of lading, while specifying the rate per 100 pounds, and the weight of the car, provides,. that the weights therein stated are “subject to correction,” and does not give any data or reference by which the weight can be determined, other than the number of the car.</p>

<p>1. Judgment Against Partnership — Names of Firm Members. — In a suit in Justice Court against J. H. D. & Bros., the judgment was rendered against “ J. H. D. & Bros.,” omitting to give the individual names of the parties, but reciting, that it was rendered against the “defendants and each of them.” Held, that such omission was an irregularity that did not invalidate the judgment, which was sufficient to support an execution, with sale thereunder of the individual property of J. H. D.</p> <p>2. Sheriff’s Deed — Description of Property. — A constable’s deed, purporting to be executed in M. County, Texas, described the property conveyed as “lot 13, in block 5, of original plot of city of B.” — a place situated in M. County. A writ of attachment had been levied on the lot, pending the suit, and the execution and sale under which the deed was made enforced the attachment lien; and in the return on the writ of attachment, and the execution, the property was fully and correctly described. Held, that while the description in the deed is believed to be sufficient, yet the purchaser, grantee therein, acquired title by virtue of a valid judgment, execution, sale, and payment of the purchase money due thereunder, without reference to the deed.</p> <p>3. Judgment — Presumption in Favor of. — Where the original citation with its return has been destroyed, and the return of service as set out in the docket shows that it was served before its issuance, the date shown in the record being an impossible one, it will be presumed on collateral attack that the court had jurisdiction to render the judgment it did render.</p>

<p>1. Mandamus Against Commissioners Court — Ministerial Functions.— Where the Commissioners Court, after the election of the county judge, fixed the amount of his salary, and afterwards, by a second order, reduced the amount first allowed, mandamus will not lie against the members of the court and the county clerk to compel the issuance of warrants for salary at the rate fixed by the first order, since the fixing of such salary is not an act ministerial in its nature.</p> <p>2. County Judge — Salary of Office — Change During Term. — Article 4481 of the Revised Statutes, providing that the salaries of officers shall not be increased nor diminished during their term, is believed to apply only to officers whose salaries are fixed by law, and not to county judges, who, under article 2386, “shall receive such salary from the county treasury as maybe allowed by the Commissioners Court.”</p>

<p>1. Execution of Writing — Signing Without Beading. — The fact that one who has executed a written instrument could not read and did not know its contents, will not of itself and in the absence of fraud invalidate the instrument; it must further appear that he was himself free from negligence in the matter.</p> <p>2. Adverse Possession — Admission—Evidence.—Where the bar of the statute of limitations is completed, and the title thereby vested in defendant, his subsequent admission that his prior possession was not adverse to plaintiff will not convey or destroy the title so acquired, the property being the homestead of himself and wife; but such admission may be considered by the jury in determining whether his possession during the ten years occupancy was in fact adverse.</p> <p>3. Same — Break in Inclosure. — Mere temporary breaks in the inclosure around the premises, if enough of the fence remain to give notice of the extent of the adverse claim to the owner, will not stop the running of the statute of limitations.</p> <p>4. Possession as Notice. — Where one has acquired title to a tract of land by adverse possession and limitations, his subsequent possession by residence on the tract, it seems, will operate as notice of his title and its actual extent on the tract to parties who purchase from the (former) record title owner a part of the tract not actually inclosed.</p> <p>5. Subsequent Purchaser — Conflicting Titles- — Buie of Equity. — In order for a subsequent purchaser to prevail over a prior owner, he must show the latter to have done or omitted something that makes it inequitable for him to interpose his otherwise superior title.</p>

<p>1. Attachment for Attorney Fees — Unliquidated Damages. — Where the draft sued on stipulates for payment of reasonable attorney fees in case of collection by an attorney, a claim for such fees, in a stated amount, is a sufficiently liquidated demand to support an attachment therefor.</p> <p>2. Attachment — Debt Not Due — Motion to Quash. — That the debt sued on by attachment is not due, such fact not being apparent from the record, is a defense that can not be made available by motion to quash the attachment.</p> <p>3. Same — Plea.—It seems that such defense could not be presented by plea in abatement, the remedy being by plea in reconvention for damages, or by suit tor damages against plaintiff in attachment and the sureties on his bond.</p>

<p>1. Will — Spendthrift Trust — Exempting Property Devised. — A testator may by his will create a trust and stipulate that the trust fund shall be exempt from liability for the debts of the cestui qui trust; and it is not material that the exemption be not declared in express terms in the will, if, construing it in the light of the circumstances under which it was executed, the intention to so exempt is manifest or reasonably certain.</p> <p>3. Will — Passing Title — Creation of Trust. — "Where a will expressly or by necessary implication creates certain trusts and imposes upon the executor duties which are usually performed by a trustee, he will take such interest or title in the property as is requisite, although the will does not specifically designate him as trustee, nor expressly devise the property to him in trust. See the opinion for a will and attending facts under which it is Reid, that the title to the property passed to the executor in trust, and not to the beneficiaries.</p> <p>3. Probate of Will — Collateral Attack. — Where the County Court has jurisdiction to probate a will and declare the executor, and does so, questions as to whether or not its "rulings were correct, and whether the executor has complied with the requirements of the will, can not be raised in a collateral proceeding,</p> <p>4. Practice on Appeal — Exceptions.—Where there is a statement of facts, and appellant excepts to the judgment of the trial court, it is not necessary to the appeal that he should except also to' the court’s conclusions of fact and law.</p>

<p>Error to County Court of Tom Green County. Tried below before Hon. Milton Green, County Judge.</p>

<p>1. Care by Railway Company for Its Passengers — Charge.—A passenger upon a railway was burned by a fire started in the car from a broken jug of alcohol brought into the car by another passenger. In a suit against the railway company for damages, the court charged: “A railroad company in the conduct of its passenger trains is required to have competent and careful agents, and it is the duty of such agents and employes in discharging their duties to exercise the highest degree of care and diligence that human judgment and foresight are capable of to prevent injury of any of its passengers.” This was error, being at variance with the rule announced . in Railway v. O’Halloran, 53 Texas, 53, and approved in Railway v. Welch, 86 Texas, 203. .</p> <p>2. Rule of Care of Passengers. — The rule adopted by this court as to the duty by railroads carrying passengers requires “the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstances.” This rule should govern in this case.</p> <p>3. Negligence — Charge.—It was error to charge that the railway company would be liable for the failure of employes to render prompt aid to the passengers upon the breaking out of the fire. It should have been left to the jury to determine whether due care had been taken.</p> <p>4. Case in Judgment. — In this case a passenger, without the knowledge of the railway company, carried a jug of alcohol into a passenger car, and without fault on the part of the company or its employes let it drop and the alcohol spilt, and before the alcohol could be removed from the floor of the car another passenger, without the company’s fault, set fire to the alcohol, and thereby the plaintiff was injured. From these facts the plaintiff had no cause of action against the railway company. See details of the accident.</p>

<p>1. Case in Judgment — Latent Ambiguity. — Plaintiff in trespass to try title, as a link in his chain of title read a deed from Arick to B. F. Tankersley, to the effect, that it conveyed the same tract of land conveyed “on the 25th of December, 1852, by Charles L. McGehee to B. F. Tankersley, by bond for my use.” The testimony showed, that on December 25,1851, McGehee executed such a bond to B. F. Tankersley for use of Arick and Tankersley’s wife. McGehee died before December, 1852. Held, that in explanation of the ambiguity as to its meaning or the land intended to be conveyed, it was competent to introduce Arick’s petition and proceedings had in the Probate. Court against estate of McGehee, asking specific performance (bond was for 400 acres in a named survey) of the bond dated December 25, 1851, for use of Arick and Mrs. Tankersley.</p> <p>2. Same — Same.—This ambiguity consisted in the fact that a misdescription is made of a bond for title which is referred to as a matter of description of the land sought to be conveyed. It could be explained.</p> <p>3. Samé — Pleading—Trespass to Try Title. — An ambiguity such as this may be explained or removed in actions of trespass to try title without being pleaded, or without the aid of a court of equity based upon pleading raising the issue.</p> <p>' 4. Innocent Purchaser. — The holder under the junior title from the same source not having proved payment of purchase nor proving or negativing notice, there was no question raised as to innocent purchaser.</p>

<p>Appeal from Williamson. Tried below before Hon. F. G. Morris.</p>

<p>1. Statute of Frauds — Assumption of Debt. — An agreement by the terms of which one party becomes unconditionally liable for the debt of another, who is thereupon discharged, is not within the statute of frauds.</p> <p>2. Consideration of Contract — Forbearance to Sue. — An agreement upon the part of a creditor not to bring a garnishment suit on his debt is. a sufficient consideration to support a contract whereby the intended garnishee binds himself to pay it.</p> <p>3. Fraud Against Creditors — Fact Case. — See the opinion for facts upon which it is held, that the action of a creditor in securing the payment of his own debt was not in fraud of the rights of other creditors of an insolvent debtor.</p>

<p>1. Conditions in Shipping Contract. — A stipulation in a freight contract for carrying cattle, providing that the shipper should sign and furnish a statement to each conductor on the route, showing condition of the cattle, and that a failure to so report should be conclusive evidence that the cattle were in good condition, is unreasonable and of no effect.</p> <p>• 2. Stipulated Time for Notice of Claim for Damages. — A stipulation in a freight contract, that notice of claim for damages should be presented within thirty-days after the injury, must yield to the law of March 4, 1891 (Laws Twenty-second Legislature, page 20), then existing, and forbidding such limit. The stipulation was unlawful and void.</p> <p>• 3. Contract to Give Notice of Place and Nature of Injuries. — So also is a provision in a freight contract unreasonable that required the shipper to give notice to the conductor or station agents of the nature and the place of the injuries received by the cattle.</p> <p>4. Parol Freight Contract — Written Contract. — The shipper agreed with an agent of the railroad company upon terms for carrying his cattle from Maxwell, Texas, to East St. Louis, 111. The cattle were delivered for carriage, and were loaded upon the train under and in accordance with the paroi contract. When the train was about starting, a written contract was presented to the shipper for his signature. He examined so far as to know that the rate was as agreed upon, and then signed it, not knowing that it contained onerous conditions against him. There was no consideration for his signing the written contract. Held, that such writing did not supply the place of the paroi contract, and was not binding upon the shipper.</p> <p>5. Same. — A written instrument signed by the shipper may be explained by evidence showing the true situation of the parties and the true contract under which the shipment was made. When it is shown that the shipper relied upon a paroi agreement of shipment and upon the common law liability of the carrier, a written contract changing the liability of the carrier should not prevail, when the shipper did not know its contents or assent to its terms. In such cases, the presumption arising from the fact that he signed it may be rebutted, and want of assent and mutuality shown.</p> <p>6. Want of Consideration. — The liability of the carrier had become fixed under the paroi contract for shipment; its duty was to ship the cattle and safely deliver them. A written contract subsequently signed materially advantageous to the carrier without consideration would not revoke the paroi contract. These facts may be shown" in avoidance of such written contract when invoked as defense against liability under the paroi contract. Want of consideration may be pleaded and proved.</p> <p>7. Duties of Bailroads. — The duty of railroads to the public and the shipper requires that obligations and engagements which they enter into for transportation shall be based upon contracts that are essentially fair, just, and reasonable, not only to the carrier but to the shipper. The unequal positions of the parties in their contractual relations to each other commends the wisdom of the rule that requires the carrier to deal fairly with the shipper, and prevents it from imposing unfair contracts upon him.</p> <p>8. Contract Made Under Duress. — The shipper, under circumstances shown in this case, was in some respects under duress as affecting his property when he was forced to the alternative of signing such a contract, or being denied transportation to the desired market, by the carrier. It was the duty of the carrier to give the opportunity to ship under terms such as would hold the carrier to its common law duties in the premises, or of the verbal contract under which the cattle were delivered. Duress may apply to property as well as to the person.' See illustration.</p>