mony, but would not render it inadmissible. The assignment must be sustained.

[9] The ninth assignment complains of the ruling of the court in sustaining objections of plaintiffs to the testimony of the witness Gooch that, after plaintiffs took charge of the shows, "the performers were dissatisfied, the report of the house being closed, and the confusion of the disorganization of the performers had a tendency to hurt business."

follows: "The court erred in refusing to | dence would affect the weight of the testipermit the defendant to read in evidence the tenth direct interrogatory propounded to defendant's witness F. R. Gooch, as follows, to wit: 'If you say that the defendant Loftus made a statement of the number and names of the performers and employés of said theaters, and the salaries paid to them, and the other operating expenses, then please state whether or not you afterwards found the statements so made by the defendant Loftus to be correct; and, if not, please state in what respect you found this statement to have been wrong'-together with the answer thereto, as follows, to wit: "The statement given Sturgis and myself by Loftus was absolutely correct and the guide I work byMr. Loftus misrepresenting nothing.' Which was excluded under the objection of the plaintiff that the same was irrelevant and immaterial, and a statement of the conclusion of the witness, and because there was not sufficient predicate in the deposition for this introduction, and the conclusion therein stated was not binding upon the plaintiff."

One of the representations of the defendant alleged to be false by the plaintiffs was his statement as to the weekly expenses of conducting the shows. Plaintiff testified that these expenses were much greater than represented by defendant, and this was one of the grounds of recovery submitted to the jury by the charge of the court. In these circumstances it is manifest that any evidence tending to show the truth of defendant's statements to plaintiff of the expenses of conducting the shows was material. We think it equally clear that the testimony set out in this assignment tended to establish the truth of defendant's statements as to said expenses. We fail to see how the statement of the witness can be regarded as a mere conclusion, nor do we understand what is meant by the objection "that there was not sufficient predicate in the deposition for its introduction."

[7] In the reply made to this assignment in appellees' brief it is contended that the evidence does not show that the witness was present when defendant made the statements to plaintiffs which induced them to execute the lease, and therefore he could not know what said statements were. From the testimony of E. C. Sturgis, it appears that Gooch was present when the lease was finally consummated, and there is nothing in the record tending to show that the witness did not know what statements were made by the defendant to Sturgis before the lease was executed. It is a fair inference from the testimony of the witness above set out that he was referring to the statements made by defendant before the lease was executed.

[8] If there is evidence in the record tending to show that he did not and could not know what these statements were, such evi

It is clear that the conditions testified to by the witness would have a tendency to injure the business, and the existence of such conditions was a relevant fact which could be properly considered by the jury in rebuttal of plaintiffs' testimony that the shows were wisely and properly conducted while they had charge of them. For the reasons stated in discussing the seventh assignment, this testimony was material, and the court erred in sustaining plaintiff's objection thereto.

For the errors indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.

GIBBONS v. ROSS et al. (No. 6704.) (Court of Civil Appeals of Texas. Galveston. March 18, 1914. On Motion for Rehearing May 4, 1914.)

1. COURTS (§ 207*)-COURT OF CIVIL APPEALS -JURISDICTION-INJUNCTION.

Whenever it is necessary, in order to protect or enforce the jurisdiction of the Court of Civil Appeals, to preserve the status quo of the parties, such courts have jurisdiction to grant an injunction for that purpose. Cent. Dig. § 758; Dec. Dig. § 207.*] [Ed. Note.-For other cases, see Courts,

2. JUDGMENT (§ 405*)-EQUITABLE RELIEFIRREPARABLE INJURY.

Where plaintiff's tenant had dispossessed one of the defendants, who was a tenant of the other, from the premises in controversy, and the latter had secured a judgment in an action of forcible entry and detainer, in which action plaintiff's superior title could not be relied upon, plaintiff is not entitled to a temporary injunction, in a suit in trespass to try title, to restrain the writ of restitution in the forcible entry action, without a showing that the issuance of such writ would work irreparable injury to plaintiff, or at least greater injury than defendants would suffer by being restrained from enforcing the judgment.

[Ed. Note. For other cases, see Judgment,
Cent. Dig. §§ 766, 767; Dec. Dig. § 405.*]
On Motion for Rehearing.
JUDGMENT (§ 408*)-EQUITABLE RELIEF-
INSOLVENCY OF DEFENDANT.

3.

Where it appeared that the defendant tenant, who was plaintiff in the former action, and who alone would be responsible for damages resulting from the enforcement of the judgment, although solvent, was not possessed of sufficient property to respond in damages for the rental value of premises during the pendency of the suit in trespass to try title, while the defendants could be secured against any loss by an injunction bond, the balancing of conve

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexe

did not err in refusing to grant appellant's but the amount was not paid by the comprayer for a temporary injunction.

Appellant cites the cases of Texas Land Co. v. Turman, 53 Tex. 619, Johnson v. Railway Co., 141 U. S. 602, 12 Sup. Ct. 124, 35 L. Ed. 875, Summer v. Crawford, 91 Tex. 129, 41 S. W. 994, and Chancey v. Allison, 48 Tex. Civ. App. 441, 107 S. W. 605, in support of his contention that the facts established on the hearing required the trial judge to grant the injunction.

pany, and Johnson prosecuted his forcible | detainer suit to judgment, and was about to procure the issuance of a writ of restitution thereon. The plaintiff railway company then brought suit for injunction and tendered into court the full amount due Johnson according to the agreement before mentioned, with interest thereon. The trial court adjudged that, upon the payment by plaintiff of an additional sum of $1,000 to cover expenses inThe facts of this case distinguish it from curred by Johnsoh in preparing to take poseach of the cases cited. The Turman Case session of the road and the payment of all goes no further than to hold that one who cost of the forcible detainer proceedings, had purchased at execution sale the title Johnson should be perpetually enjoined from of the owner to real estate pending a suit of executing the judgment in his favor for the forcible entry and detainer brought by the possession of the road. This judgment was owner against his tenant could, the tenant affirmed by the Supreme Court on the ground having attorned to the purchaser, protect that Johnson's right to the possession of the the possession of the tenant by injunction un-road was only for the purpose of securing til the question of title, which could not have the amount due him for constructing it; been adjudicated in the forcible entry and detainer proceedings, could be determined. But the right to injunction recognized in that case was based upon allegations of the insolvency of the defendant. The substance of the holding is thus stated in the opinion: "Under the authority of the principles announced in these decisions, if the Texas Land Company purchased the title of Turman to the rented premises under execution against him pending the lease to Wilson, it is not perceived why the company, particularly if they could not intervene in the suit of forcible detainer, should not, by injunction in the district court, stay the proceedings before the justice of the peace until the question of title could be determined; it having been alleged that Turman was insolvent and could not respond in damages." The trial court in that case dissolved the temporary injunction upon the coming in of the answer denying under oath the allegations of the petition, and this ruling was affirmed by the Supreme Court.

and this amount, as fixed by the agreement of the parties, being tendered by plaintiff and awarded him by the judgment, together with the costs and expenses incurred by him in the proceedings in the forcible detainer, he had no right to the possession of the road, and therefore should not be allowed to enforce the judgment in the forcible detainer suit. The judgment appealed from in that case was a judgment upon final hearing, and finally disposed of all the issues between the parties. We think it clear that this decision is not authority for the issuance of a preliminary injunction in the present case.

The injunction in the Chancey-Allison Case was granted to protect the property in controversy from injury and waste caused by the acts of the defendant. We think the difference between that case and the case presented by this record is clear. While the plaintiff in the Chancey Case obtained his possession by entering upon the premises and breaking the lock to the house situate thereon, the premises were in fact unoccupied In the Johnson Case the suit was brought at the time he entered. If, however, the by the railway company against the defend- manner of his entry be regarded as a forcible ant Johnson to restrain him from attempt-invasion of defendant's prior possession, that ing to take possession of a portion of plain- fact would not deprive the plaintiff, who tiff's railroad under a writ of restitution showed a prima facie title and claimed to be issued in a suit of forcible entry and de- the owner, of the right to protect the proptainer brought by Johnson against the rail-erty from the wrongful acts of the defendway company. The facts in the case were ant in cutting the fences thereon and thereby that Johnson had constructed a portion of injuring and causing waste to said property. the railroad under a contract with the rail- [2] The evidence in this case is sufficient way company, by which He was entitled to to sustain the finding that appellant's tenant hold possession of the railroad so constructed Kresse, with the knowledge and consent of by him until he was paid the contract price appellant, forcibly invaded the possession of for such construction. The company failed defendant Bratton, who was holding under a to pay him for the construction of the road lease from his codefendants, who claimed to according to its contract, and after the road be the owners of the property. To regain was finished took forcible possession thereof the possession thus forcibly wrested from and began to operate its trains thereon. him, Bratton did not pursue the course folThereupon Johnson brought an action of for- lowed by Chancey, in the case above cited, cible detainer to regain possession of the and commit or threaten any act of violence, road. Pending the trial of this case John- but appealed to a court of law and obtained son and the railway company agreed in writ- a judgment restoring to him the possession

On Motion for Rehearing.

[3] Upon a re-examination of the affidavits contained in the record, we have reached the conclusion that we erred in our former opinion herein in holding that the evidence sustained the finding that appellee Ira Bratton, in whose favor the judgment in the suit of forcible entry and detainer was rendered, and who alone can procure the enforcement of said judgment and could be held responsible for the damages plaintiff would suffer thereby, is solvent in the sense that he could be made to respond to the damages plaintiff would likely suffer by the enforcement of said judgment. The affidavits as to his solvency only show that his "net worth" is $300. Giving the fullest effect to these affidavits, they only justify the conclusion that he has property over and above his indebtedness of the value of $300. It is not shown of what the property consists, nor whether it is exempt from forced sale.

validity of this judgment is not questioned. | chancellor, more injury would likely result In these circumstances appellee's right to from refusing than from granting the writ. enforce this judgment of restitution should It follows from these conclusions that the not be prevented by the issuance of a pre-judgment of the court below should be afliminary injunction, in the absence of a firmed; and it has been so ordered. showing that the enforcement of the judg- Affirmed. ment would work irreparable injury to appellant, or at least greater injury to him than defendants would suffer by being restrained from enforcing said judgment. This rule of "balance of convenience" is thus stated by Mr. High in his work on Injunctions (2d Ed.) par. 13: "Where the legal right is not sufficiently clear to enable a court of equity to form an opinion, it will generally be governed in deciding an application for a preliminary injunction by considerations of the relative convenience and inconvenience which may result to the parties from granting or withholding the writ. And where, upon balancing each consideration, it is apparent that the act complained of is likely to result in irreparable injury to complainant, and the balance of inconvenience preponderates in his favor, the injunction will be granted. But where, upon the other hand, it appears that greater danger is likely to result from granting than from withholding the relief, or where the inconvenience seems to be equally divided as between the parties, the injunction will be refused and the parties left as they are until the legal right can be determined at law. Where a clear case of irreparable injury is shown as likely to result to complainant unless the injunction is granted, and it does not appear that the issuing of the writ will work any such injury to defendants, the relief will be granted."

The allegation of insolvency of the defendants was expressly denied by the defendants, and the trial court, upon the showing made, was fully justified in finding against said allegation. This being the fact, it might work as great an injury to defendants to deny them the right to enforce their legal remedy to regain possession of property, which had been forcibly taken from them by the plaintiff, as the withholding of the injunction would cause plaintiff, and in these circumstances, under the rule above stated, the injunction should be denied.

The verified petition shows that the rental value of the premises is $500 per year, and if, as a matter of fact, defendant Bratton has property subject to execution of the value of $300 plaintiff, pending a final trial of his suit, which, in all reasonable probability could not be had within a year, would, if he established his title to the property, lose at least a considerable portion of the rents due therefor. On the other hand, by requiring plaintiff to give a bond in the sum of $1,000, the defendant Bratton can be protected from any loss that he is likely to sustain by an injunction restraining the execution of the judgment in the forcible entry and detainer suit. Such being the facts under the rule of "balance of convenience" followed in our former opinion, plaintiff is entitled to have the enforcement by said defendant of a writ of restitution in the forcible entry and detainer suit enjoined pending an adjudication of the question of title, unless the fact that plaintiff wrongfully entered upon the premises, which at the time of such entry was in the possession of defendant Bratton, will deny him the right to the equitable remedy of injunction.

It may be conceded that our injunction statute has liberalized the rule of equity that forbids the issuance of an injunction in any case in which the applicant therefor has an adequate remedy at law, and as said by our Supreme Court in the case of Summer v. [4] We do not think the equitable rule Crawford, supra: "In courts administering that "he who seeks equity must come with both law and equity, # the rules clean hands" requires that, in every case in denying an injunction, when there is a rem- which a plaintiff has been guilty of wrong, edy at law, should not be applied as rigidly he must be denied any protection by a court as at common law, where the issuance of the of equity. It seems to us that the modern writ in equity was, to a certain extent, an rule of "balance of convenience" stated in our invasion of the jurisdiction of another tri- former opinion, and which has been recogbunal." But the issuance of a preliminary |nized and enforced by the higher courts of injunction is an equitable, as distinguished this state in injunction proceedings, when in from a legal, remedy, and such writ should a particular case it conflicts with the rule