cember, 1893, the date of the injury. Defendant has appealed. Reversed.

Fisher & Townes, for appellant. Hutchison & Franklin and Yale Hicks, for appellee.

COLLARD, J. The statute (Rev. St. art. 4245) makes every railroad company liable to the owner for the value of all live stock killed or injured by locomotives and cars of such railroad; but it is provided that, if the company fence the road, it shall only be liable in cases of injury resulting from the want of ordinary care. There was testimony tending to show that the company had fenced the road, but that it had got out of repair, was down in several places, and that the animal killed may have come on to the right of way and the track through an open place in the fence. If such was the case, it did not devolve on plaintiff to establish negligence of defendant's employés in killing the jack, in order to entitle him to recover; but, if the road was fenced and in repair at the time, he could only recover in the event of proof of negligence, or the want of ordinary care of the employés of defendant, resulting in the injury.

The writer is of opinion that the testimony did not authorize the submission of the case upon the ground of negligence, and that there was error in submitting that question to the jury, as was done by the court, and that, for this error, the judgment of the lower court should be reversed. The members of the court are not agreed upon this point, though we do agree that the judgment should be reversed, but upon different grounds. The testimony was amply sufficient to support the verdict upon the issue that the fence was down in places, or a place, when the jack entered, and therefore that the road was not fenced in the sense of the statute. But it is the opinion of the writer that the testimony did not warrant the submission of the question of negligence on the part of the company's servants, and that, for this error, the judgment must be reversed.

The only testimony as to the negligence of the defendant's servants, besides the fact that the jack was struck and carried from 100 to 150 yards on the pilot of the engine, is that of the defendant's engineer operating the locomotive. This witness testified as follows: "I was, in December, 1893, locomotive engineer in the employ of defendant, and had been for a number of years. I was engineer on the south-bound passenger train running from Taylor to San Antonio on the afternoon and evening of December 15, 1893. I remember my engine striking and killing a jack about 11⁄2 miles north of Kyle, on the evening or night of December 15, 1893, on what is known as the "Lock Place." It occurred 8:40 p. m., or that late. I was in my cab, at my place, looking ahead, when I saw, about 50 yards ahead, an object on the track. The train was running 30 miles an

hour. I immediately applied the air brakes, and, before the train stopped, the engine struck the object. I did not reverse the engine, I did not have time. I did not attempt to do so. It was dark. The headlight was beaming. The jack was 7 or 8 feet from the end of the bridge, and seemed to have his feet down between the ties at the south end of the bridge. A bridge at night, under the headlight, looks dark, and an object lying on it is not easily seen on that account. The earth between the ties shows up white under the headlight, but the space near the bridge and between the ties shows up dark. I was attending strictly to my business, and turned on, immediately, the air brakes, when I saw the object. Did all in my power to stop. The pilot struck the jack almost in the center, and carried him over 100 yards, when the train was stopped, and the train crew got off and threw the body to one side. The brakes on the train were the Washington air brakes, and had worked well during the trip, and continued to work well to San Antonio, the end of the run." Cross-examined: "I did not reverse the engine when I saw the object, nor did I attempt to do so. The brakes worked well in slowing up upon reaching the station. This was the only time I had occasion, during the trip, to use them." This testimony fails to show the negligence necessary to authorize the submission of the question. It shows that the engineer was strictly performing his duty. "A scintilla of evidence, or a mere surmise that there may have been negligence on the part of defendant, clearly would not justify the judge in leaving the case to the jury. There must be evidence upon which they might reasonably and properly conclude that there was negligence." The above-quoted expression is adopted as the true rule by our supreme court in the case of Railway Co. v. Faber, 77 Tex. 155, 8 S. W. 64, and the court adds: "This rule is expressly followed in several cases, and is sustained by the weight of authority." If plaintiff relied upon this branch of his case,-the negligence of defendant's servants in running the locomotive upon ard killing the animal,-it devolves upon him to prove it, so that it could appear beyond a mere surmise or supposition, and so that the jury could reasonably conclude that there was such negligence. Telegraph Co. v. Housewright, 5 Tex. Civ. App. 1, 23 S. W. 824; Railway Co. v. Arsipe, 81 Tex. 517, 17 S. W. 47.

We are agreed that we would set the verdict aside, upon the ground that the testimony is not sufficient to show negligence. This is a strong, and, it seems to me, an invincible, reason why we should also hold that the question of negligence should not have been submitted to the jury. Both in submitting the issue and in acting upon the motion for a new trial, the trial judge has the same question to determine. The legal effect of the testimony is the matter to be

determined in both cases, and the writer believes the rule should be that, if the court is of opinion that a new trial should and would be granted because of the insufficiency of the testimony, or its inherent weakness to support a verdict, he should not submit the issue, though it may be well pleaded. It seems to me absurd to require the trial judge to submit an issue which is not sufficiently proved to support a verdict, or that demands a new trial at the hands of the court. The court has the same question to decide at both stages of the proceeding. It is true the jury might refuse an affirmative verdict; but, when the court submits the issue, they are permitted by the court to find affirmatively on the issue. I do not see what good result can be secured by submitting an issue merely to see how the jury will decide it, if a new trial is to be granted, unless they decide against the proposition. I am aware of the fact that the supreme court adopted the opinion of a majority of the commission of appeals, Judge Fisher dissenting, where a different view was expressed to that held above (Fitzgerald v. Hart, 17 S. W. 369); but, notwithstanding that decision, it seems to me that the judge should not submit an issue to the jury unless the testimony is sufficient to justify a verdict that would be upheld by the court on a motion for a new trial. It may be said that a party has the right to have a jury, when one is called, pass upon his case; but it seems to me to be idle, if not trifling, for the court to submit an issue which has such meager testimony to support it that the judge would necessarily set aside a verdict found upon it, because without sufficient evidence to support it, and which verdict the court had, at the time of submission, correctly determined to set aside. It would be more consistent to refuse a charge upon the issue. It would be as much an invasion of the province of the jury to grant a new trial after the verdict as it would to refuse to submit the issue upon the ground of insufficient testimony.

Outside of these considerations, my opinion is that there was no evidence of negligence on the part of defendant's servants authorizing the submission of the issue. I believe that, if we should hold that the testimony warranted the submission of the issue of negligence, and that the court did not err in submitting it, inasmuch as the verdict was general for plaintiff, and the testimony sustained it,-as it does on the other branch of the case, that the railroad was not fenced as required by statute,-the verdict should stand. In my opinion, the verdict should stand if it is supported on either branch of the case, if there was no error in submitting the issues. Where there is error in admitting testimony, and there is another issue upon which there is no error, and there is a general verdict in favor of the party for whom the improper testimony was admitted, the rule is v.33s.w.no.1-9

to set the verdict aside on appeal, because the verdict may have been reached by the illegal testimony. This rule must rest upon the fact that there was error in admitting the testimony; but, if there were no error in admitting the testimony, the verdict would be allowed to stand, if sufficiently supported by testimony on the other branch of the case. So, if there were no error in submitting the issue of negligence, though not sufficient evidence to support the verdict upon that issue, and the testimony amply supported the general verdict on the other issue, as failing to fence the road, it should not be set aside. It is the error that requires the verdict to be set aside. If there is no error in admitting testimony or in submitting the case, and one theory of the action is sustained by proof, the verdict, though general, should not be set aside because there is an issue correctly submitted upon another theory not supported by the testimony. I think, however, that there was error in submitting the issue of negligence, because the testimony did not warrant it, and, therefore, that the verdict should be set aside; and I also think that, because of the error in submitting the issue, it is our duty to set it aside, upon the ground that the testimony does not support the verdict on that issue. It should not have been submitted. We concur in finding that assignments of error relating to other matters are not well taken. The judgment of the court below is reversed, and the cause remanded. Reversed and remanded.

KEY, J. I concur in the reasoning of Jus tice COLLARD, and in the holding that it was error to submit the issue of negligence, in the manner that it was submitted. If the doctrine announced by the majority opinion in Fitzgerald v. Hart (Tex. Sup.) 17 S. W. 369, is to be adhered to, then, when a case involves more than one theory, it ought to be submitted on special issues, if, as in this case, the evidence on one issue is insufficient to support the verdict. It was error, in this case, to submit the issue of negligence otherwise than as a special issue.

FISHER, C. J. I concur in the views expressed by both of my associates, and also as to the disposition of the case.

ODUM v. MENAFEE.1 (Court of Civil Appeals of Texas. Sept. 12, 1895.)

HUSBAND AND WIFE-HOMESTEAD - MORTGAGE ABANDONMENT-EXECUTION SALE.

1. A mortgage by a husband and wife of their homestead to secure a debt of the husband is void.

2. Title acquired by an execution plaintiff as purchaser at an execution sale on a dormant, though valid, judgment, is good on collateral attack.

1 Rehearing denied.

3. Evidence of absence of a husband and wife from a homestead for seven years, and residence in another state during that time, without any evidence of intention to return, warrants a finding of abandonment, though they originally left because their house was burned, and they were shot by unknown parties.

Error from district court, Shelby county; James T. Polley, Judge.

Action of trespass to try title by G. W. Menafee against T. G. Odum and wife. From a judgment for plaintiff, defendants bring error. Affirmed.

Hugh B. Short, for plaintiffs in error. Tom C. Davis, for defendant in error.

WILLIAMS, J. This suit was brought by defendant in error to recover of plaintiffs in error a tract of land. The petition was in the usual form in trespass to try title, and the answer was a general denial and plea of not guilty. Judgment was rendered for plaintiff, from which this writ of error is brought. Odum, in 1887, owned the land in controversy, and, with his wife, occupied it as a homestead. In February, 1887, the two joined in a deed, absolute in form, purporting to convey the land to Menafee, but in fact the instrument was intended merely as a security for money then borrowed by Odum from Menafee. In October, 1887, Menafee instituted suit against Odum, not joining his wife, to recover the land. Odum, in his answer, alleged the execution of the deed, averred that it was given merely to secure the debt, that the land was a homestead, and the instrument was therefore void. Menafee replied, asking that, if the deed be held to be a mortgage, he have judgment for his debt, and a foreclosure of the lien to secure it. In that suit judgment was rendered April 25, 1888, adjudicating that the deed was a mortgage only, and did not pass the title, but that it constituted a lien upon the property to secure the money loaned by Menafee to Odum; that Menafee recover of Odum the sum so loaned; and that the lien be foreclosed, and the property sold to pay it. On May 18, 1888, an order of sale was issued upon this judgment for the sale of the land, which was in all respects regular, except that it described the lien foreclosed by the judgment as a vendor's lien. Under this writ the land was sold by the sheriff, and bought by Menafee for $50, which was credited on the judgment. No other process was issued on the judgment until May 5, 1890, when an execution for the balance due was issued against Odum, under which the land was levied upon, sold, and again bought by Menafee for $50, which sum was also credited upon the judgment. Menafee brought this suit July 2, 1891, against Odum and his tenant, to recover the land, relying on the title obtained through the proceedings just stated. The defendant claims that the judgment foreclosing the mortgage on the land, and the order of sale and sale thereunder, were void; that, no execution having issued upon the judgment, except the

void order of sale, within a year after its rendition, such judgment was dormant when execution issued in 1890, and that such execution and sale thereunder were void, and passed no title to plaintiff; and that the property was all of this time the homestead of himself and family, and was not subject to the sale under execution. The court below held that the judgment of foreclosure, the order of sale and sheriff's deed thereunder, were all void, and that plaintiff acquired no right through them; that the judgment for money against Odum was valid, but was dormant when execution issued upon it; that such execution and the sale thereunder were erroneous, but not void, and passed a title to the purchaser, which could not be collaterally attacked; and, finally, that when the execution was levied upon the land it was not homestead, but had been abandoned as such. In regard to the abandonment it was shown that at the date of the deed to Menafee, Odum owned no other land but that in controversy constituting the homestead; that in September, 1887, some unknown person set fire to his house, and that in a few days thereafter Odum was shot and wounded, and his wife was shot at from ambush; and that, as soon as his wounds permitted, he was carried across the Sabine river into Louisiana, to a point some 20 miles from his place, where he has since remained, and now resides with his family. The land has been held for him by tenant. This, with the facts about the litigation above stated, constitutes all that is shown by the record to enable us to determine whether or not there has been an abandonment of the property as a homestead. In order to constitute an abandonment, the act of leaving the property must have been accompanied by an intention not to return to and occupy it as a home, or such intention, if not existing at the time, must have been since formed. The burden of showing an abandonment rests upon the party asserting it. No facts attending the original departure are shown from which such an intention could be inferred. But it is shown that for about seven years the family have remained away from their former home, and have resided in another state. As these facts are stated, without explanation or qualification, in the record, they seem to imply that Odum and his family have taken up a permanent abode in Louisiana, and there is no evidence of an intention to return, nor any circumstances impairing the force of the fact of residence in Louisiana. The homestead of a person is ordinarily where he resides; and the statement that a party resides at a particular place naturally gives rise to the inference that his home is there. If such residence is temporary merely, and not inconsistent with the existence of a home elsewhere, that fact should be shown; otherwise the natural inference is to be indulged. Here there is not only residence in Louisiana, but seven years' absence from the property in question, dur

ing which it was being sued for and levied upon and sold. These facts, unexplained, were sufficient to justify the court in concluding that, prior to the levy of the execution, the parties had taken up their permanent residence elsewhere, and had no intention of reoccupying this property as their home.

As to the law of the case, we conclude: 1. That the mortgage from Odum and wife to Menafee was absolutely void. Inge v. Cain, 65 Tex. 79.

2. That the decree, in so far as it foreclosed that mortgage, did not have the effect to conclusively establish a lien upon the property; and a sale under it was ineffectual to pass title to the homestead, because the wife was not a party to those proceedings. Campbell v. Elliott, 52 Tex. 151; Thompson v. Jones, 60 Tex. 94; Id., 77 Tex. 627, 14 S. W. 222; Jergens v. Schiele, 61 Tex. 255; Freeman v. Hamblin, 1 Tex. Civ. App. 157, 21 S. W. 1019; Mexia v. Lewise, 3 Tex. Civ. App. 118, 21 S. W. 1016.

3. Whether or not the issuance of the order of sale within 12 months from rendition of judgment was sufficient to prevent the judgment from becoming dormant is a question which we need not decide. The judgment for money against Odum was valid, and, conceding that it was dormant when the execution issued, the writ was not, on that account, void, but was sufficient, until set aside, to empower the sheriff to sell property and pass title to the purchaser. The sale, when made, conveyed a title which was good against collateral attack, notwithstanding the fact that plaintiff in execution was purchaser. Boggess v. Howard, 40 Tex. 153; Ayres v. Duprey, 27 Tex. 593. It follows that the judgment should be affirmed.

FAVER v. BOWERS et al.1 (Court of Civil Appeals of Texas. Oct. 23, 1895.)

PARTNERSHIP-CONTRACT-RESCISSION FOR FRAUD -Books OF ACCOUNT-ORIGINAL ENTRIES

-REFRESHING MEMORY.

1. A witness may refresh his memory from memoranda taken from old partnership books, on testifying that he made the entries, and knew them to be correct, though he has, on being duly notified, failed to produce such books on the trial.

2. Where, in an action for an accounting, the partnership books, when offered by defendant, have been excluded, because the accounts were not properly entered therein, the defendant, on testifying that he remembered the entries, and that they were made by him, may refresh his memory by referring to memoranda taken from the book.

3. Where monthly reports made by an agent of a partnership to a member of the partnership are correctly entered by him in the partnership books, and it appears that this is the customary method, the entries are, as between the partners, original entries.

4. In an action for the rescission of a contract of partnership, on the ground that defend

1 Rehearing denied.

ant took advantage of plaintiff's weakness of intellect, an instruction requiring the utmost good faith on the part of defendant if plaintiff was weak-minded, and he sought defendant's advice, and relied on his statements, and defendant knew these facts prior to and at the time of contract, is proper.

5. In an action for rescission of a contract of partnership, on the ground that defendant fraudulently misrepresented the value of the business, to entitle plaintiff to relief it must appear that the defendant made the representations, knowing them to be false.

6. It is reversible error to allow the jury to take with them to the jury room memoranda, used by a witness to refresh his memory, which are not in evidence.

Appeal from district court, Presidio county; C. N. Buckler, Judge.

Action by John Faver against Benton Bowers and others. From a judgment for defendants, plaintiff appeals. Reversed.

The following were the sixth, seventh, and eighth assignments of error: "(6) The court erred in charging the jury in that part of its charge as follows: 'If you believe from the evidence that at the time said contract was made the plaintiff was a man of weak mind and limited business capacity, and was in the habit of seeking the advice of others regarding his business affairs, and defendant Bowers knew that fact at the time said contract was made, and that plaintiff sought the advice of the defendant as to advisability of making said contract, and that defendant undertook to advise him in said matter, and that the plaintiff relied upon defendant, and that the plaintiff confided and trusted in the statements of defendant, and defendant Bowers knew that fact, at the time said contract was made, then that it was the duty of defendant to use the utmost good faith towards the plaintiff,' etc. The grounds of said error being that said charge, but not the law, requires a finding of immaterial facts, such as that plaintiff habitually sought the advice of others, and that defendant Bowers knew that fact prior to, and at the time of, the contract in question, and that, not only did plaintiff confide in the statements of said defendant, but they must find also that the latter knew this at the time of contracting, before the jury could at all consider the mental weakness of plaintiff, or the fact that he did repose confidence in the statement of defendant, which error is calculated to have misled the jury, to the injury of plaintiff, from consideration of the mental condition of the plaintiff. (7) The court erred in its charge, in its paragraph 2, in this: that to the probable injury of plaintiff, the said charge required an affirmative finding by the jury that the misrepresentations of defendant as to the value of the property involved in this suit, if any, made to the plaintiff, were knowingly made by defendant Bowers before such misrepresentations, even if material, relied on, inducing the contract, and causing material injury to the plaintiff, could be considered by the jury as a ground for the rescission asked by plaintiff, which

is not the law; and that the court in said, paragraph repeats, and thus emphasizes, said unlawful requirement of said charge, by continuing thus in said paragraph 2: 'And you believe from the evidence that said representations were false and untrue, and that they were made by said defendant for the purpose of inducing the plaintiff to enter into said contract,' etc., 'then you are instructed that the plaintiff would be entitled to recover.' Thus the court's charge unlawfully requires, to enable plaintiff to recover judgment of rescission, that the jury find that defendant's misrepresentations were knowingly made by him, and with a design to overreach plaintiff, while said misrepresentations might constitute a ground for relief, even if made without evil purpose, or knowledge that they were false, in the maker. (8) The court erred in submitting in said charge, in its paragraph No. 3, as a question to the jury, the construction of the instrument in writing executed by defendant Bowers to plaintiff, of date August 8, 1893, conveying a half interest in the partnership property, among other property, the ranch and pasture known as the 'Stage-Stand,' and in leaving with the jury the question as to what title Bowers meant to convey, or did convey, by said instrument, in and to said land, ranch, etc.; said construction, under the pleadings, being for the court, and said conveyance being in fact that of an interest in the fee, by proper construction, which the court ought to have given said instrument."

P. H. Clarke, for appellant. H. H. Kilpatrick and Falvey & Davis, for appellees.

FLY, J. This appeal is the result of a suit filed by appellant against Benton Bowers, D. L. Aiken, and Friend Sproull, to obtain the rescission of a partnership contract with the former, to recover certain sums of money from him, and to foreclose an equitable lien on the partnership property, some of which was alleged to be held and claimed by Aiken and Sproull. As a basis for a cancellation of the partnership agreement, it was alleged that appellant was weak-minded, and had been overreached and deceived by Bowers, and induced to part with his money for a grossly inadequate consideration. Appellee answered by a cross action for a sum of money advanced by him to the partnership. The case was tried by a jury, and resulted in a verdict for appellee Bowers for one-half of the advances, and for the other appellees for their costs. It was charged that appellee had grossly exaggerated the value of the property, a share in which was sold by him to appellant, and appellee appeared as a witness to show, among other things, the amount he had expended on the improve ments. He stated that he did not remember the items of the amounts expended in improvements before the contract of partnership with Faver; that he had with him an

extract made by him from a book of accounts of himself and former partner; that he had made the entries in the book, and knew them to be correct; and that, after refreshing his memory from the extract from the account book, he would swear that the well on the place cost $1,400, and all the improvements $2,300. This was objected to by appellant, because the extract was made after the institution of the suit, from a book, because appellee had been ordered to produce all the books and papers referring to the stage line between Shafter and Marfa, and papers relating to the title to the partnership lands, and because it appeared that the witness had no recollection of the amount of the expenses. The testimony of appellee shows that he had the improvements made, and that he remembered that he had paid for them, but did not remember the amounts, and we are of the opinion that it was proper to permit him to refresh his memory as to the amounts from an extract taken from a book, in which the entries were made by him at the time of payment. The writing being used merely to refresh the memory of the witness, it was not necessary that it should be produced in court. 1 Greenl. Ev. § 437; Hamilton v. Rice, 15 Tex. 382. The book of accounts had nothing to do with the matters about which the subpoena duces tecum concerned itself. It was permissible for the witness to refresh his memory from a bill of particulars, known by him to be a copy of a correct memorandum of amounts paid out, Railroad Co. v. Burke, 55 Tex. 324. The made by him. 1 Greenl. Ev. §§ 436-438; basis upon which the admission of the testimony rested was the failure of the witness to remember the amounts paid out, and, without this failure to remember the testimony, he would not have been allowed to testify from the memorandum. The failure to produce the book of accounts for the inspection of the opposing party may, as argued, be a ground for suspicion, but it goes to the weight, rather than the competency, of the evidence. Had the testimony been improperly admitted, appellant cannot complain, as the value of the property was proved by other evidence.

Appellee attempted to introduce a book of accounts of the partnership involved in this suit, in which were kept the expenditures and receipts of the partnership from its inception, in 1893, up to and including February, 1895. The admission of the book was objected to, because the entries of the transactions were not made at the time they transpired, because it was not a book in which the items of accounts were entered, and because the receipts therein debited to the partnership were not dated or itemized. The book was excluded, and afterwards appellee testified that he remembered the entries in the book, and that they were made by him, and were correct, and that he had made a correct memorandum of the entries