escape liability, that it was not responsible for the damage. Railway v. Cushney, 4 Texas Ct. Rep., 406.

Evidence was introduced tending to show that the grapes were in the possession of the Lake Shore Company five or six days; that the car in which the grapes were loaded was not iced; that the weather was hot; that grapes so packed and held in such weather and for such time would begin to mold and rot; that when such decay had set in it could not be arrested. The car was sealed when the grapes were loaded in Pennsylvania and was not opened until it reached Denison. The condition of the fruit at any intermediate point could not be shown by direct and positive evidence. The trial court declined to submit to the jury the issue whether the damage or any part thereof occurred on the line of the Lake Shore Company. This was error. The evidence was sufficient to raise the issue, and the same should have been submitted to the jury. Proof of the facts necessary to establish this defense could be made by circumstantial evidence, no direct or more certain evidence than that adduced being available.

The trial court also erred in refusing to charge the jury that if the grapes began to mold and rot while in the possession of the Lake Shore Company, and if, owing to the inherent nature of the fruit, the decay could not be stopped, then the defendants would not be liable for the resulting damage. In such case the defendants would be answerable only for such damage as they could and should have prevented.

No directions were given to ice the car until after it had reached Chicago. The evidence tends to show that the car should have been iced sooner than it was. It is not clear from the record before us whether it was the duty of the Lake Shore Company to ice the car without instructions to that effect, or only after being directed to do so. If it appears on another trial that the company was under no duty to ice the car until it was so instructed, then the issue of contributory negligence on the part of the shipper in failing to give such direction would be raised and should be submitted to the jury.

The plaintiffs were permitted to prove by parol the contents of the order given by Frye & Co. to the Lake Shore Company diverting the shipment to Denison, and directing the car to be iced. As a predicate to the introduction of such evidence the plaintiffs should have accounted for their failure to produce the order itself. Railway v. Dilworth, 4 Texas Ct. Rep., 406.

The petition of the plaintiff is loosely drawn and the facts attempted to be alleged are vaguely stated. Before another trial, the petition should be amended and the facts relied on to show a cause of action alleged with more certainty and definiteness.

The judgment is reversed and the cause remanded.

Reversed and remanded.

U. A. POPE V. HARRY ANTHONY ET AL.

Decided April 12, 1902.

1.-Land Certificate-Unrecommended Headright.

A headright land certificate not recommended by the traveling board of land commissioners nor established as genuine and valid by decree of the district court, was void, and a survey under it conferred no rights.

2.-Same-Evidence of Recommendation.

Evidence held to show that a headright certificate was duly examined and recommended by the board, although the number and date as given in the board's report did not correspond with its true number and date.

3.-Same-Evidence-Defacement.

A headright certificate was not inadmissible in evidence because some of the words in it had become obliterated, where it was offered in connection with the testimony of witnesses who had examined it before it was defaced, nor could the opposite party object to its admission because of such defacement where he afterwards offered it in evidence himself.

4.-Public Domain-Pre-emption Rights-Repeal.

A filing and settlement on public land under the pre-emption law of February 1, 1861, with occupancy of the land for more than five years thereafter, conferred no vested right in the land where the proof of occupancy was not filed in the General Land Office until long after the pre-emption law had been repealed by the Act of 1889, and the 50 cents per acre due the State was never paid.

5.-Evidence-Deposition-Exhibits Attached.

A witness testifying by deposition was asked to attach certain instruments as exhibits to his answers, and he replied that they had been already attached to his answers to a deposition in another case, "and are hereto again referred to, affirmed, and made part of my foregoing answer in this case." Held, that the exhibits were properly received in evidence, although the first deposition was taken in a suit between other parties pending in the same court.

6. Same Conclusion.

Where a witness was asked whether there were any files missing from the General Land Office in regard to a certain certificate, and he answered that "it appeared" that the original file with its contents was abstracted from the office many years ago, objection that the witness was not stating a fact, but the appearance of a fact, was not tenable where his other answers stated all the facts, so far as the record of the Land Office showed, about the loss of the certificate and its subsequent return.

7. Same-Expert Evidence-Handwriting-Letters.

A witness who qualified as an expert in handwriting and showed himself familiar with the records of the Land Office, and especially with a certain land certificate, were properly permitted to testify that a transfer of the certificate to an assignee, written on its back, was in the same handwriting as letters received at the Land Office purporting to come from such assignee. 8. Same.

It was permissible for a witness to testify that the report of the traveling board of land commissioners on file in the General Land Office showed that land certificates had been issued to certain persons, and that the numbers of the certificates as stated in the report were not their real numbers, where the report was read in evidence, as this did not contradict the report, but was explanatory of it.

9.-Land Certificate-Recommendation.

Where the evidence showed that the headright certificate in controversy had been duly recommended by the traveling board, but that its number was wrongly stated in the board's report, the court correctly refused to charge upon the theory that the certificate had not been recommended.

Appeal from Franklin. Tried below before Hon. J. M. Talbot.

Crosby & Dinsmore, King & King, and R. E. Davenport, for appellants.

Walton & Walton and Hiram Glass, for appellees.

BOOKHOUT, ASSOCIATE JUSTICE.-Appellees brought this suit in the District Court of Franklin County on October 21, 1893, in the ordinary form of tress pass to try title for the recovery of about 600 acres of land lying in Franklin County. The defendant's answer on which the case was tried consisted only of a plea of not guilty and a plea of improvements in good faith. There were at one time certain interveners in the suit, but their pleas were dismissed, and there is now no issue as to said interveners. The cause was tried in the District Court of Franklin county before Hon. James M. Talbot, district judge, with a jury, at the May term, 1901, of the court.

Plaintiffs sue as the heirs of one Willis Roberts, and claim the land by reason of its location under a headright land certificate of the second class issued to Thomas Casey on the 8th day of June, 1838, and numbered 501, and transferred by indorsement on the back thereof to Willis Roberts. The land certificate above referred to was located on said land by J. M. Taliaferro, appellant's vendor, who claimed said certificate by a chain of transfers as follows: From Thomas Casey to John O. Buquor; from John O. Buquor to D. W. Heard; from D. W. Heard to J. M. Taliaferro. Appellees attack the said transfer from Thomas Casey to John O. Buquor as a forgery.

Defendant relied, first, on possession; second, under the chain of title from Thomas Casey through John O. Buquor to appellant, above mentioned; third, on a judgment of the District Court of Hopkins County for said land in favor of J. M. Taliaferro and a general warranty deed from J. M. Talliaferro to appellant; fourth, as to 480 acres of said land, upon three pre-emptions in favor of E. L. Ward, M. E. Pope and John Chapman, and a chain of transfers from said pre-emptors to appellant. There was verdict of the jury for appellees for the recovery of the land and for appellant for his improvements. Appellant in due time filed his motion and amended motion for new trial, which were overruled by the court. Appellant excepted at the time, gave notice of appeal, filed his appeal bond, and has brought the case here for review by this court.

1. Appellant contends that a headright land certificate which has not been examined, passed on, and recommended by the traveling board of land commissioners, or which has not been established as genuine and valid by a judgment or decree of the district court of the State, is null and void and will not authorize a survey thereunder, and the owner of such certificate acquires no right in land surveyed by virtue thereof. This contention is sound and supported by authority. 6 Texas, 289;

3 Texas, 87; 3 Texas, 135; 66 Texas, 341; 23 Texas, 43; 5 Texas, 441. It would seem that a headright land certificate admitted to be genuine will not give right to land unless it has been recommended by the traveling board of land commissioners or established by a judgment or decree of the district court. Miller v. Brownson, 50 Texas, 591. It is insisted by appellees that the certificate in question was passed upon by the traveling board of land commissioners and recommended as genuine. The appellees introduced in evidence a report from the General Land Office made by the traveling board of land commissioners, dated June 23, 1841, showing a list of certificates passed upon by said board and recommended as genuine, in which appears a certificate for one-third league issued to Thomas Casey by Harris county, June 6, 1838, and numbered 587. This report recites that: "We also find that the numbers of the original records did not correspond with the numbers on the certificates, and in order to facilitate the investigation we have numbered the foregoing claims according to the applications, there being no numbers attached to the applications found on the record, or to any portion of the claims." The number of the certificate in question is 501. There was evidence that the numbers given in said report to other certificates therein passed upon did not correspond with the true number of said certificates; for instance, certificate for one-third league issued to Geo. W. Lindsey, March 24, 1838, is numbered in said report 499, while the correct number of the original certificate is 235. The same discrepancy is shown between the numbers given in said report to other certificates and the correct number of such certificates. The records of the General Land Office show that there was issued by the board of land commissioners of Harrisburg County to Thomas Casey one-third league headright second class certificate, dated June 8, 1838, number 501. The evidence further shows that he only received one headright certificate, and that this certificate is located in Franklin county in four surveys, three of which have been patented to Thomas Casey. The evidence shows that the territory now composing Franklin County was, in 1860, part of Titus County, and that Franklin County was taken from Titus County in 1875. We are of the opinion that the evidence clearly shows that the number given in the report of the traveling board of land commissioners was the number of the application made to the State board for its consideration as to the genuineness of the Thomas Casey certificate, and does not purport to be the number of the original certificate, and that the date June 6, 1838, given in said report of said certificate, is a mistake, it being shown that but one headright certificate did issue to Thomas Casey and that the same issued on June 8, 1838. We conclude the evidence shows that said certificate was passed upon and approved as genuine and valid by the traveling board of land commissioners June 23, 1841.

2. It is contended that the land certificate offered in evidence was so mutilated and defaced that it could not be read, and was therefore inad missible as a link in a chain of title. The certificate was offered by

the plaintiff in connection with the testimony of witnesses who had seen and examined the certificate before it was defaced and mutilated. The face of the certificate was not so mutilated or defaced as to make it unintelligible, but some of the words and parts of words were obliterated. These were supplied by the testimony of the witnesses who had examined the certificate before its mutilation. We are of the opinion that the certificate in connection with the testimony of the witnesses was properly admitted. If this, however, were not so, the appellant is not in a position to complain, for the reason that the record shows that after the appellee closed his evidence the appellant offered to put in evidence the face of the certificate. Having introduced the face of the certificate himself, appellant will not be heard to say it was improperly admitted when offered by his adversary.

3. Appellant's third, fourth and fifth assignments of error present substantially the same questions and will be considered together. Elijah L. Ward, Francis M. Pope, and John Chapman, each the head of a family, each occupied as a homestead 160 acres of the land in controversy for more than five years. Elijah L. Ward, in May, 1860, made an affidavit for pre-empting public land under Act of February 1, 1860, and on the same day he made proof of said facts by two witnesses, and on the same day filed upon 160 acres of the land in controversy, and had the same surveyed and caused the field notes and proof to be recorded in the county clerk's office of Titus County, in which county the land lay at that time, and caused the same to be returned to and filed in the General Land Office on August 8, 1861. The said survey for said Ward was platted and delineated on the official map of Titus County; an application for a patent with the patent fees was deposited in the General Land Office in 1898; the proof of occupancy by the said Ward was filed in the General Land Office on May 9, 1898. Ward and his family moved on the land in 1860, and placed improvements thereon and occupied the same as a homestead until 1866. Ward's wife and children continuously claimed to own said land up to the time they conveyed the same to the defendant in this suit. Francis U. Pope and John Chapman, each the head of a family in the year 1860, each filed and settled upon and had surveyed 160 acres of the land involved in this suit and actually occupied the same and caused the field notes to be returned to the General Land Office, and in 1898 caused to be filed proof of such occupancy in the General Land Office and made a deposit of patent fees. The field notes of the E. L. Ward survey were returned to the General Land Office about fourteen months after the survey was made; the field notes of the Pope and Chapman surveys were returned to the General Land Office within twelve months. The proofs of occupancy in each case and the deposit of patent fees were made in 1898. Neither of the tracts of land filed upon by said Ward, Pope, and Chapman were entirely surrounded by other surveys. All of said tracts were covered by the survey and location under the Thomas Casey certificate located in 1872. By section 8 of an Act of February 1, 1861, it is provided: "All heads of families.