contributory negligence on the part of the appellee in the manner in which he cut the wires from the pole, the issue of negligence on appellee's part in cutting said wires was not in the case and should not be considered by the jury, and in refusing to give the following special charge requested by the appellant:

"If you believe from the evidence that the plaintiff, in undertaking to take the wires off of the pole, upon which he alleges he received his injuries, did not act prudently in doing so, that is, did not act as a reasonably prudent person under the same or similar circumstances would have done in taking the wires off of said pole, and his injuries were occasioned by want of proper care on his part in taking the wires off said pole, and but for want of such proper care he would not have been injured, you will return your verdict for the defendant."

We are of the opinion that the evidence does not raise the issue of contributory negligence on the part of appellee. The jury could not have found from the evidence that the appellee was guilty of any negligence which directly contributed to his injury. He cut the wires from the pole as directed by the foreman, and if we concede that he misconceived the order of the foreman and did not remove the wires in the proper manner, there is no evidence to support a finding that the manner in which the wires were cut caused the pole to fall or that it was negligence to so cut them. The evidence of appellant's witnesses is to the effect that a rotten or small pole might be broken by suddenly cutting one of the wires on an arc circuit and thus exposing the pole to the catapult effect caused by the strain produced by the tension of the wire on the opposite side of the pole from the one which had been cut. That the pole which fell with plaintiff was not broken by cutting the circuit wire is conclusively shown by the fact that it did not break after the first wire was cut and when the strain was on one side, but only after both circuit wires and one of the guy wires had been cut. If the pole had been broken by the rebound caused by the cutting of the first wire appellee would have known it, and he testifies that it did not break until after he had cut all of the circuit wires and one of the guy wires. As before stated, appellee had the right to presume that the pole was sound, and there is no evidence to sustain the contention that a careful and prudent man would not have cut the wires from a sound pole of the size of this pole just as appellee cut them. The testimony offered by appellant to show that the manner in which appellee cut the wires from the pole was not the proper way in which to remove said wires, taken in connection with the other evidence in the case, was insufficient to raise the issue of contributory negligence on the part of appellee, and the court did not err in refusing to admit such testimony.

The ninth and tenth assignments, which complain of the refusal of the trial court to admit this testimony, can not be sustained. We are also of the opinion that this testimony was properly refused because it was not authorized by the pleadings. The rule which relieves the defendant of the burden of pleading contributory negligence applies only

when the evidence adduced by the plaintiff in the development of his case raises the issue, and does not authorize the defendant to introduce proof of independent substantial facts tending to show contributory negligence on the part of the plaintiff without pleading such facts. If the appellant desired to introduce testimony to the effect that the manner in which appellee cut the wires from the poles was negligent, he ought by proper pleading to have notified the appellee that he intended to make such defense in order that the appellee might be prepared to meet such testimony. Appellees' evidence having failed to raise the issue of contributory negligence, appellant should not be permitted without proper pleading to supplement the evidence of appellee by proof of independent facts.

The evidence offered by appellant which the court refused to admit being, in our opinion, insufficient to raise the issue of contributory negligence on the part of the appellee, it follows that the court did not err, as complained of in the eleventh and twelfth assignments, in refusing to permit the appellant to withdraw his announcement of ready for trial on the ground of surprise at the ruling of the court in excluding said testimony because not authorized by the pleadings, and in refusing to allow the appellant to file a trial amendment charging appellee with contributory negligence in the manner in which he cut the wires from the pole. We think the judgment of the court below should be affirmed, and it is so ordered.

Writ of error refused.

Affirmed.

TEXAS & NEW ORLEANS RAILWAY COMPANY V. ORANGE
& NORTHWESTERN RAILWAY COMPANY.

Decided April 24, 1902.

Eminent Domain-Condemning Railroad Right of Way-Appeal and Supersedeas -Possession-Injunction.

In a proceeding by a railway company to condemn for its use a crossing over the track and right of way of another company, there was an award of $1 damages, but on appeal to the county court judgment of condemnation was rendered without any damages, and defendant appealed, executing a supersedeas bond. Appellee then made a deposit of double the amount of damages originally awarded, and executed a bond as required by the statute (General Laws 1899, page 105) authorizing the petitioner in such a proceeding to take possession pending appeal upon depositing double the amount of damages awarded, paying the costs and giving bond to secure future costs. Appellant then applied to the Court of Civil Appeals for an injunction to restrain appellee from taking possession of the crossing pending the appeal, claiming that the statute did not apply where no damages were awarded. Held that appellee, having complied with the statute, was authorized to take possession, and that the injunction should be denied.

Appeal from the County Court of Orange. Tried below before Hon. George F. Pool.

Watts, Chester & Ellison, for appellant.

Holland & Holland, for appellee.

ORIGINAL APPLICATION FOR INJUNCTION.

GARRETT, CHIEF JUSTICE.-The appellant has applied to this court for an injunction to restrain the appellee, pending appeal, from entering upon and taking possession of a part of the roadbed and right of way of the appellant sought to be condemned by the appellee for a crossing of its railroad over that of appellant. Proceedings were regularly instituted by the appellee to condemn the crossing, and to an award of the commissioners assessing its damages at $1 the appellant objected and carried the case to the County Court, where judgment was rendered condemning the crossing without damages. The appellant gave a supersedeas bond for appeal, and contends that the judgment of the County Court is superseded by the bond pending appeal to this court. The appellee, however, has deposited double the amount awarded by the commissioners and paid the costs and executed a bond for the payment of further costs, and is proceeding to take possession of the property. This the appellee claims was authorized by the Act of April 15, 1899 (General Laws, page 105).

But it is contended by the appellant that the act can not apply where no damages where awarded, and that its property can not be taken without compensation. While the appellant may be entitled to at least nominal damages for the property taken, the failure to award such would be an error to be corrected on appeal, and pending that the appellee would have the right to take possession of the property upon compliance with the terms of the statute, although no damages were awarded. Such being the case the judgment is not superseded by the appeal bond, and this court has no right to interfere with the possession of the appellee pending the appeal. The question of the right to condemn the property can not arise on this application, and if as a condition precedent to condemnation it should be necessary to apply to the Railroad Commission for its determination as to the manner of crossing under the Act of April 15, 1901 (Laws, page 255), that would still not authorize the interference of this court by injunction, as it can only exercise the power to issue the writ in the enforcement of its jurisdiction. Rev. Stats., art. 997. If the judgment of the court below is void the appellant can not enjoin its execution on an original application to this court; but if entitled to it at all, must go to a court having original jurisdiction to grant the injunction. If the judgment is not void this court has no right to interfere, because it has not obtained jurisdiction of a superseded judgment, since the appellee, having complied with the statute, is authorized to take possession of the property. Appellant's application for injunction is refused.

Refused.

HOUSTON ICE AND BREWING COMPANY V. NORTH GALVESTON

IMPROVEMENT COMPANY.

Decided April 3, 1902.

1.-Jurisdiction-Amount-Sequestration.

In an action of sequestration brought by a purchaser of personal property against the seller to recover the possession the jurisdiction is determined by the value of the property, and not by the amount plaintiff had agreed to pay for it. 2. Same-Fraudulent Valuation-Justice Court-Presumption.

The jurisdiction of the justice court in an action of sequestration will be determined by the valuation placed on the property by the plaintiff, unless it is shown that the valuation has been fraudulently understated for the purpose of conferring jurisdiction; and in doubtful cases of this character all intendments will be in favor of the jurisdiction.

Appeal from the County Court of Galveston. Tried below before Hon. John W. Campbell.

P. A. Drouilhet, for appellant.

R. H. & Alice S. Tiernan, for appellee.

GARRETT, CHIEF JUSTICE.-The Houston Ice and Brewing Company brought this suit against the North Galveston Improvement Company in a Justice Court in Galveston County for the possession of a billiard and a pool table and some barroom fixtures. Sequestration of the property was made and it was replevied by the plaintiff, the defendant having failed to do so. No complaint was filed, and neither the transcript of the justices' docket, the citation, nor the affidavit for sequestration state the value of the property, but the sequestration bond and the writ and the replevy bond show that the value was placed at $199. Plaintiff tendered and paid into court the sum of $125 as a sum due by plaintiff to the defendant for the purchase of the property from the defendant. A trial was had in the Justice Court and judgment was rendered in favor of the plaintiff for the property and that the money in court be paid to the defendant. After appeal to the County Court by the defendant, one Max Artusy was brought into the suit as a party defendant, and pleaded to the jurisdiction that the property sued for was worth $500, and that the value was laid by the plaintiff at $199 for the fraudulent purpose of conferring jurisdiction on the Justice Court, and asked that the suit be dismissed for the want of jurisdiction in the court a quo. A jury was waived, and upon hearing evidence the court below sustained the plea and dismissed the suit.

We agree with the appellee that the value of the property and not the amount the plaintiff was to pay for it is the amount in controversy and must determine the question of jurisdiction. But the plaintiff having placed the value at $199, the jurisdiction must be determined by that amount unless it should appear that the amount was fraudulently under

stated for the purpose of conferring jurisdiction on the Justice Court. And if there is a reasonable doubt that the value was fraudulently understated by the plaintiff, the case should not be dismissed for the want of jurisdiction. In doubtful cases of this character all intendments will be in favor of the jurisdiction. Graham v. Roder, 5 Texas, 146. Dwyer v. Bassett, 61 Texas, 276. The jurisdiction will not be deefated in such case even if on the trial it should appear that the property was worth more than $200. The alternative recovery for the value of the property would be limited by the amount claimed. There can be no distinction between cases where the amount may be understated and those where it may be overstated. There is more than a reasonable doubt in this case, for an examination of the evidence heard by the trial judge shows to our minds a clear preponderance in favor of a less value than $200. The judgment of the court below will be reversed and the cause remanded with instructions to the court to overrule the plea.

Reversed and remanded.

ROBERT LOFTIN V. LAWRENCE SLEET.

Decided April 3, 1902.

Husband and Wife-Homestead-Purchase Money-Conveyance by Husband Alone.

In this case, an action to recover a town lot, brought by one to whom the husband had conveyed it in satisfaction of purchase money due thereon, the wife joined as a party defendant, setting up homestead rights in the property and that she had not joined in the conveyance, the judgment in plaintiff's favor is affirmed as being supported by the finding of the jury that the husband, acting in good faith, conveyed the lot in satisfaction of purchase money due on it, and that the conveyance was not intended as a mortgage.

Appeal from Nacogdoches. Tried below before Hon. Tom C. Davis. Ingraham, Ratcliff & Huston and Dial & Chestnutt, for appellant.

Branch, Matthews and Harris & Beason, for appellee.

GARRETT, CHIEF JUSTICE.-This was an action of trespass to try title brought by the appellee against the appellant for the recovery of a lot in the town of Nacogdoches. On November 1, 1892, the appellant entered into a written contract with George Witkorn for the purchase of the lot in controversy, by which he undertook to pay Witkorn the purchase money as therein stipulated and Witkorn obligated himself to convey the land to Loftin when payment was made. The appellant, having failed to meet his payments, procured W. U. Perkins to take up his obligation, and Witkorn at their request on January 22, 1897, conveyed the land to Perkins, who agreed to convey the lot to appellant on repayment of the money with interest. Afterwards on March 1, 1898,