excessive. Under this state of facts, we are not called upon to decide whether, in the absence of statute, the contract, in so far as it was solely for the purpose of securing water, was one that the receiver would be bound to carry out; but as the contract was valid, and by the company, as well as by the receiver, for a long time deemed advantageous, or necessary to the operation of the railroad, it would seem that the receiver had no right to discontinue the use of water without direction from the court so to do. Had application been made for leave to discontinue use of and payment for water, this, in good conscience, could not have been granted, under the facts proved, without making compensation to appellee for expenditures, as well as such loss as he might otherwise sustain through breach of the contract.

Under the statute, however, we think there can be no question. That provides that "all judgments, claims, or causes of action, when determined, existing against any Texas statute. corporation at the time of the appointment of a re

ceiver, shall be paid out of the earnings of such corporation while in the hands of the receiver, to the exclusion of mortgage action, and the same shall be a lien on such earnings.' Gen. Laws 1887, p. 121, § 15. That a claim and cause of action existed against the railroad company, under the contract sued on, we have already stated, and judgment might thereon have been properly rendered in this case against the company made a defendant. That this was not done does not defeat the right, and, the claim being one payable under the statute out of the earnings of the road, the judgment was properly rendered against the receiver. The direction in the judgment as to the manner of payment does not operate to the prejudice of the receiver or other creditors, and will be affirmed.

TEXAS & PACIFIC R. Co.

V.

JOHNSON.

(Texas Supreme Court, March 7, 1890.)

Discharge of Receiver-Lability of Company for Claim-Expenditure of Earnings in Improvements.-Where the receiver has been discharged and the property restored to the control of the railroad company, the company is liable upon a cause of action which arose against the receiver in connec tion with his management of the road-e. g., a claim for damages for in

juries to an employe-if the earnings during the receivership were sufficient to meet such claim but were expended in improvements, of which the company, after the receiver's discharge, has received the benefit.

Same Presentation of Claims by Intervention in Suit-Power of Court.The court appointing the receiver has no authority to stipulate in the order discharging him that persons having claims with which the property in his custody is chargeable, must present them by intervention for adjudication in that court, and a claim may be enforced in another court without the necessity of intervention.

Same-Order Limiting Time Within Which Claims may be Presented.-A court cannot, in discharging a receiver, require that claims be established by intervention in the suit within a specified time, the power to determine within what time the right of action shall expire being legislative, and not judicial in its nature.

Injuries to Employes-Defective Switch-Negligence of Fellow-Servants.— The plaintiff, an engineer, was injured by the derailment of his train. The evidence showed that a switch was defective in that the spring was not strong enough to throw the point of the switch to the main rail and there hold it when the lever was in a proper position to indicate to the engineer that the rails were in proper position for the cars to pass. Held, that the defendant was not entitled to an instruction that if other employes might have placed the rails in proper position by the use of a maul or axe, the injury resulted from the negligence of a fellow-servant and not from a defective switch.

Same-Defective Brake-Derailment of Train. Where the evidence showed that, notwithstanding the derailment, the locomotive and train could have been stopped before the locomotive turned over and injured plaintiff, had the air-brakes been in order, and also that the brakes would not work because they were defective, an instruction that the plaintiff could not recover on account of any defect in the brakes is properly refused.

Same-Damages-Excessive Verdict.-A verdict of $15,000 in favor of an 'engineer, who, at the time when he was injured, was 34 years old, in good health, endowed with a vigorous constitution, and earning from $165 to $195 per month, is not excessive when the effect of the injury has been to incapacitate him for any useful or profitable labor and to deprive him of the sense of hearing.

APPEAL from District Court, Marion County.

F. H. Prendergast, for appellant.

C. A. Culbertson, for appellee.

STAYTON, C. J.-From December 16, 1885, until October 31, 1888, the Texas & Pacific Railway was in the hands of, and operated by, John C. Brown, as receiver apFacts. pointed by the circuit court of the United States sitting in the eastern district of Louisiana. Appellee brought this action against the receiver on September 14, 1888, to recover damages for an injury alleged to have been received by him, through the negligence of the receiver, on January 31, 1888. Being advised that the receiver had been discharged, on December 17, 1888, appellee caused the railway company to be made a defendant. There was a trial which resulted in a judgment in favor of the receiver; but appellee

The

recovered a judgment against appellant for $15,000. Texas & Pacific Railway Company answered that the road was in the exclusive management and control of John C. Brown, as receiver, appointed by the United States circuit court for the eastern district of Louisiana, at the time plaintiff was injured; that when the receiver was discharged the property was turned over to defendant by virtue of a decree of the court that appointed the receiver, and by said decree the property was made liable only (1) for all traffic liabilities due connecting lines; (2) for all contracts made by the receiver; (3) for all judgments which may be rendered in favor of persons interested in the cause where the receiver was appointed before February 1, 1889, and free from all other demands or claims; and that the cause should be dismissed. Defendant further answered that plaintiff assumed the risk of the injury he received.

The record shows that on or before May 16, 1888, the receiver made known to the court that appointed him that the objects and purposes contemplated in the several proceedings under which he was appointed had been practically accomplished; that the parties in interest so agreed, and, after settlement with him, and the payment of costs and other liabilities, or provision therefor made, that he should be discharged, and the causes dismissed. The agreements of the several parties to this effect are stated to have been made exhibits to receiver's petition for discharge, which stated that his accounts to the 1st of May were in condition for settlement, which he asked. He further stated that he had an agreement with the reorganization committee as to his compensation, and prayed that he be permitted to "turn over to the proper officer of the Texas & Pacific Railway Company" the property in his hands, but made known to the court that there were unsettled claims, growing out of his conduct of the business, against which he asked protection. On May 16, 1888, the petition was acted upon by the court, which, after directing a settlement to June 1st, stated that "in the meantime the receiver will continue to hold the property under the orders of the court until the 1st of June, 1888, at which time, if this order is not vacated, the railway and its property may be operated by the corporation under such orders as may be made by the court from time to time, and under the supervision and control of the receiver, to the end that the property shall not pass beyond the control of the orders of the court, nor of the receiver, until the accounting takes place with the receiver, and until he is fully protected by the corporation for causes of action originating against him and against the property pending the receivership." On or be

fore October 26, 1888, the receiver, reciting the former orders, and stating that his accounts had been examined and approved, stated that no formal delivery of the road and property in his hands had been made to said railway company, and petitioner now asks that he be allowed formally to deliver all property and funds in his hands as such receiver to said railway company, and that he be allowed to account to said company according to his account filed up to the 1st of June, and for all receipts and expenditures by him, received and made since the 1st June. He has carried over to the present books of the company the cash balance, and all other balances of property and assets, as found in his hands by his report to the 1st of June aforesaid, and he is now the president of said railway company, and after his discharge will be in possession of all said company's road, property, and funds as such for said company. Wherefore he asks that he be discharged from his said receivership, and that his bond as receiver be vacated and annulled on payment of all costs legally taxable. But he asks the court to make such orders as will charge the property so turned over in the hands of said railway company and its assigns with all liability for which he as receiver is or might be held personally liable." He further stated that his compensation had been agreed upon and settled to the 31st of October, "at which time he asks that his discharge take effect." This petition was acted upon by the court on October 24, 1888, when the following order was entered: "On consideration of the foregoing petition, it is now ordered, adjudged, and decreed that the prayer of the same be granted, and, accordingly, that John C. Brown, receiver of the property of the Texas & Pacific Railway in the above-entitled causes, be, and he is hereby, directed to make delivery unto said Texas & Pacific Railway Company of all property, funds, and assets in his hands as such receiver, and that he be directed to account to said company according to his account filed and approved up to June 1, 1888, and for all receipts and expenditures by him received and made since. the said 1st June, 1888. Such delivery will be made as of October 31, 1888. It is further ordered that said receiver be finally discharged on said 31st October, 1888, from his receivership, on payment of all costs legally taxed, and that thereupon his bond be vacated and canceled. It is further ordered that said property, nevertheless, shall be delivered to and received by the Texas & Pacific Railway Company subject to and charged with all traffic liabilities due to connecting lines, and all contracts for which said receiver is or might be held, made, or in any way was, liable, and subject, also, to any and all judgments which have heretofore been

rendered in favor of intervenors in this case, and which have not been paid, as well as to such judgments as may be hereafter rendered by the court in favor of intervenors, while it retains the cases for these determinations on interventions now pending, or which may be filed prior to February, 1889, and upon the condition that such liabilities and obligations of the receiver, when so recognized and adjudged, may be enforced against said property in the hands of said company, or its assigns, to the same extent that they could have been enforced if said property had not been surrendered into the possession of said company, and was still in the hands of the court, and with the further condition that the court may, if needful for the protection of the receiver's obligation and liabilities recognized by this court, resume possession of said. property. The bills in this cause will be retained for the purpose of investigating such liabilities and obligations, and for such other purposes as may seem needful. It is ordered that all claims against the receiver, as such, up to said 31st October, 1888, be presented and prosecuted by intervention prior to February 1, 1889, and. if not so presented by that date, that the same be barred, and shall not be a charge on the property of said company. It is further ordered that said receiver advertise in a daily newspaper in New Orleans and in Dallas the fact of his discharge, and a notice to said claimants to make claim within the time aforesaid, to wit, before the 1st of February, 1889, and that he post a printed notice of similar purport in the station houses of said railway."

It appears from the testimony of the receiver that in the autumn of 1885 the company became satisfied that it could not longer continue to pay interest on its bonded debt without first expending a large sum of money in renewal of tracks, raising roadway, widening cuts and embankments, putting in new cross-ties, purchasing rolling stock, and motive power, and the renewal of bridges, and other like improvements. To ascertain what should be done, the directors appointed a committee, who, with experts, were directed to examine into the condition of the road, and report that, as well as the sum necessary to place the road in good condition. The result of that report was a determination to cease to pay interest, and to place the road in the hands of a receiver, which was done; it being thought, however, that the road would probably have to be sold to satisfy mortgages, which was obviated, at the end of a receivership lasting nearly three years, by some scheme devised by a board known as the " Committee of Reorganization." While the road was in the hands of receiver, all the earnings and income, after paying recognized operating expenses, were expended in improvements such as