the exceptions were directed consisted of the averment that no attorney had been appointed to represent the absent defendant at the trial; the averment that no statement of the evidence had been prepared and filed by the judge; the averment that no notice was sent to plaintiff or his attorney of the advertisement of sale; and the averment of estoppel. All these were stricken out, and the order was in effect that the petition otherwise should stand and the case be tried as in trespass to try title. The matter of estoppel amounts to nothing. Bonnowsky is not denying his landlord's title. Nor was there any duty resting upon him to protect plaintiff from the sale of this land under judgments, even if we construe the petition as alleging that he was plaintiff's tenant at the time of the sale. It was open for him to bid at the sale, as well as anyone else.

The fact that no statement of the evidence was filed by the judge in the cause in which the judgment was rendered did not affect its validity. In our opinion it gave cause for reversal upon appeal or writ of error or bill of review only. Buse v. Bartlett, 1 Texas Civ. App., 335; Byrnes v. Sampson, 74 Texas 84; Davis v. Davis, 24 Texas, 190; Thomas v. Jones, 41 Texas, 265.

The fact that no attorney was appointed is error of a similar nature. This requirement of the statute was not a part of the service,-that had already been obtained. Jurisdiction over the defendant in so far as the right to foreclose the lien was concerned was already had. The appointment of an attorney was no more indispensable than the filing of a statement of the evidence; both these requirements are prescribed by the same article (article 1346, Sayles' Revised Statutes), and relate to the mode of trial and affect the procedure only. A failure to comply with either of these requirements would be available on appeal, but not in any other proceeding. Thomas v. Mahone, 72 Ky., 111.

This we understand is the settled rule in this State where minors are defendants, the statute in such cases being the same. Alston v. Emmerson, 83 Texas, 237.

The failure of the sheriff to notify the defendant in the judgment or his attorney can have no effect in this case. There was no attorney of record and the defendant's residence appears to have been unknown.

We think we have upon the averments of the amended petition no fact alleged showing a single circumstance which, taken with the gross inadequacy of the consideration, would require in equity that the sale be set aside. Inadequacy alone is not sufficient.

The court did not err in disregarding the several special matters pleaded by plaintiff to set aside the sale. Plaintiff showed title. Defendant put in evidence the foreclosure decree and the sheriff's deed, but not the order of sale. It is now insisted by appellant that we should reverse and render judgment for him upon this condition of the statement of facts. The allegation in plaintiff's petition of the order of sale was not one of the parts actually stricken out by the court. It was not mentioned in the exceptions, and the order is that it strike out only

those parts to which the exceptions were made. There was no amendment of the pleading, and the allegations of the decree, the order of sale, and the sheriff's deed, were all allowed to remain in the pleading. Under these circumstances there was no necessity for defendant to prove the order of sale. It was not necessary that an allegation in plaintiff's pleading should be offered in evidence to be considered against him.

Since writing the above opinion, the court certified to the Supreme Court one of the questions involved, which has been answered consistently with the opinion. See 95 Texas, 449.

Writ of error refused.

Affirmed.

AMZIE MOSS ET AL. G. W. Smith et al.

Decided April 30, 1902.

1.-Homestead-Abandonment-Separate Property.

Where defendant, having his homestead on land the separate property of his deceased wife, rented it out and bought another tract and removed with his family to it with the intention of making that his home in the future, there was an abandonment of the former homestead, and although he removed back to it a year later, he could no longer assert as against the heirs of the wife the right given him by the constitution to use the property so long as he should elect to occupy it as a homestead. Const., art. 16, sec. 52.

2.-Same-Surviving Spouse.

The same rules govern in the case of an abandonment of the homestead by a surviving husband or wife as control in other cases of abandonment of homestead rights.

Error from Gillespie. Tried below before Hon. M. D. Slator.

Walter Anderson, for plaintiffs in error.

Moursund & Moursund, for defendants in error.

FLY, ASSOCIATE JUSTICE.-This is an action of trespass to try title to 100 acres of land in Gillespie County, instituted by Mrs. Amzie Moss, joined by her husband, David Moss, against appellee. The cause was tried by the court and judgment rendered in favor of appellee.

There is no statement of facts, and this court is necessarily confined to the findings of facts for its conclusions of facts.

The land in controversy was the separate property of Lucy R. Smith, the first wife of appellee and the mother of Mrs. Moss. It was paid for with money realized by her from the sale of a tract of land owned by her in her separate right. She died in 1884, leaving surviving her appellee and her daughter Amzie, then a child. In 1886 appellee married his present wife and occupied the land as his homestead until 1887, when he bought a tract of land in Wilson County and moved with his wife and children to

it and made it his homestead. He rented the land in controversy to a brother. The court found that he occupied the Wilson County land as his home "with the avowed purpose of making the same his home in the future." He returned with his family to the land in Gillespie County, after living a year in Wilson County. Mrs. Moss being a minor at the time, married in 1899. The rents appropriated by appellee fully equaled in value improvements made by him.

It is provided in the Constitution, section 52, article 16, that on the death of the husband or wife the homestead shall descend and vest as other property, and shall be governed by the same laws of descent and distribution, but that it shall not be partitioned among the heirs so long as the survivor may elect to use or occupy it as a homestead. Under this constitutional provision, upon the death of Lucy R. Smith her land descended and vested in her daughter subject to the right of the surviving husband to use or occupy the same as a homestead.

The only question, therefore, presented by the record is as to what effect the acquisition of the homestead in Wilson County had upon the homestead right appellee had in the land of his deceased wife. That a new homestead was obtained, and it was secured with the intent and purpose of making it the permanent home of the family, is found by the trial judge, and while he does not in terms find an abandonment of the homestead of his first wife, it was evidently so intended by him, as in his conclusions of law he holds that "the fact that the defendant in 1887 abandoned the said land as his home and acquired a homestead in Wilson County," did not deprive him of his homestead right in the property in controversy.

It is conclusive to us that the same rules as to abandonment would prevail in case of a homestead held by a surviving husband or wife as would prevail in any other case of abandonment of homestead rights. That in other cases the acts of appellee would constitute an abandonment does not admit of a doubt. "It has often been said that the most satisfactory evidence of the abandonment of a place once a homestead is the acquisition of another." Slavin v. Wheeler, 61 Texas, 654; Weaver v. Nugent, 72 Texas, 278.

Appellee's right under the Constitution to a homestead in the land was conditioned on his use or occupancy of it, and the moment he abandoned it he lost his homestead right, and it was no longer protected from the rights of the children. It became the absolute property of Mrs. Moss, subject only to a life estate of appellee in one-third of the same.

There is no basis for the claim that so long as the rights of others had not intervened appellee could resume the homestead rights he had abandoned and defeat thereby the rights of the daughter. He could not abandon the rights given him by law and resume them at his pleasure. Upon the abandonment the rights of the daughter accrued, and no subsequent act of her father could interfere with or prejudice her rights.

There was no prayer for partition, and this court, therefore, has no authority to decree one, but it is the order of this court that the judgment

of the trial court be reversed, and that appellant, Amzie Moss, do have and recover of appellee the land in controversy, subject to his life estate in one-third of the same.

Writ of error refused.

Reversed and rendered.

DENISON & SHERMAN RAILWAY COMPANY V. WILLIAM L. RANDELL. Decided May 17, 1902.

1.—Damages—Double Recovery-Mental Suffering.

In an action of damages for an assault a charge authorizing a recovery for the physical and mental suffering and also the humiliation suffered by plaintiff was not reversible error as allowing double damages, in that humiliation is one of the forms of mental suffering, where it fairly appeared from the whole case that the jury did not allow double damages, the verdict being, in view of the evidence, not a large one.

2. Same-Exemplary Damages-Assault.

Evidence that defendant's car conductor, upon demanding fare from plaintiff and receiving a reply that the fare had been already paid, struck plaintiff in the face repeatedly and kicked him although plaintiff did not attempt to strike the conductor, warranted a charge on exemplary damages and a recovery therefor.

3.-Same-Corporation-Ratification of Agent's Act.

A corporation is liable in exemplary damages for the act of an agent which it authorizes, participates in, or ratifies, and where a railway company's manager was present at the trial and conviction of one of its conductors for an assault on plaintiff while collecting fares, and paid the conductor's fine, and retained him in the company's service thereafter, there was a sufficient ratification of the conductor's act in making the assault.

Appeal from the County Court of Grayson. Tried below before Hon. J. D. Woods.

Moseley & Smith, for appellant.

Wolfe, Hare & Semple, for appellee.

BOOKHOUT, ASSOCIATE JUSTICE.-This was a suit instituted by appellee as plaintiff, against appellant as defendant, to recover damages for personal injuries. Plaintiff alleged that on August 11, 1901, while he was a lawful passenger on defendant's street car, his fare having been paid in cash, he received injuries from a malicious and intentional assault made upon him without provocation; that defendant ratified said assault, which plaintiff alleges was made with the deliberate intention on the part of defendant and its employes to harass, injure, and humiliate plaintiff; that thereby defendant is liable to the plaintiff in the sum of $800 for actual damages and in the further sum of $200 for exemplary damages. Defendant replied by general denial, and specially plead that its employe, the conductor on said car, truly believing that plaintiff had not

paid his fare for passage on said car, and that on the other hand plaintiff was trying to beat his way, demanded that plaintiff pay his fare or produce an identification check or receipt, which receipt or check was given to plaintiff if he was a lawful passenger and paid his fare, in accordance with the rules of the company, and in accordance with the agreement entered into between defendant and every passenger who pays cash fare for passage from Denison to Sherman on defendant's cars; that plaintiff did receive, and was bound to produce on demand of the defendant's conductor, such receipt or check, if in truth he had paid his fare as is alleged; that plaintiff knew of said agreement, and having failed or refused to produce such check or receipt, was grossly negligent and was guilty of an infraction of said agreement; that defendant's conductor, truly believing that plaintiff was not a lawful passenger on said car, and acting in accordance with his duty, stopped said car and ordered and warned plaintiff to leave the same or be forcibly put off of it; that plaintiff refused to leave the car and resisted the force necessary to put plaintiff off of said car; that plaintiff not only resisted but provoked the necessary force applied by defendant's conductor, and that by plaintiff's infraction of said agreement and by plaintiff's resisting and provoking the necessary force, he invited, contributed and became responsible for the injuries, if any, received by him.

Plaintiff, on October 30, 1901, in the County Court of Grayson County, Texas, recovered judgment for $250, $100 of said judgment being for actual damages and $150 being for exemplary damages. From this judgment defendant has appealed.

Opinion.-1. It is contended that the court erred in the following charge: "If you find for the plaintiff you will assess his actual damages by allowing him such a sum, not to exceed $800, which will, as a present payment in cash, fairly and reasonably compensate him for the physical and mental suffering, if any, and the humiliation, if any, he suffered by reason and on account of the assault, if any, committed upon him by said conductor." It is insisted that humiliation being one of the forms of mental suffering, the charge authorized a double recovery therefor. The petition alleged that on account of the injuries he had received, the mental anguish and physical suffering, and the humiliation and impaired standing in the community, he has been damaged $800. We are of the opinion that, from the whole case as made out, it fairly appears that the jury did not allow double damages. The verdict was for $100 actual damages, and is not large in view of the evidence. Railway v. Corley, 87 Texas, 432; Railway v. Gordon, 70 Texas, 89.

2. It is contended that the evidence did not authorize a charge on exemplary damages. We were of the opinion upon our first consideration of this case that this contention was well taken. However, upon a closer examination of all the facts we are of the opinion that we were in error in our former holding, and have, on our own motion, set aside that judgment. The evidence shows that on the 11th of August, 1901, plain