Volume 1 — Texas Civil Appeals Reports

The opinion states the case, except the charge referred to and the second assignment of error.

<p>The opinion sufficiently states the case.</p>

<p>Suit on Drafts — Insufficient Answer. — An answer to a suit on two protested drafts, drawn by the defendant, which sets up under oath that they were given for tie timber purchased by defendant from plaintiff, and that at the time they were given it was understood between plaintiff and defendant that defendant was not to be held liable upon them, but that plaintiff was to look to the railway company for payment, and that the drafts were intended only as memoranda or vouchers to show the amount due the plaintiff from the company for timber, presents no defense to the action; being an effort to vary the written instrument sued on by proof of parol contemporaneous agreement.</p>

<p>The opinion states the case.</p>

<p>1. Practice — Exceptions to Pleading. — Article 1289. Revised Statutes, makes it the duty of the court to dispose of all questions of law in jury cases as far as practicable before the day set for trial of such cases. When April 20, 1891, was the day for hearing and deciding questions of law, by the custom and usage of the court, in jury cases, and on that day the docket was called and all parties given opportunity to present their exceptions, and none were presented to the answer of the defendant, which had been on file since November 21,1890, but on the day of trial, April 23,1891, exceptions were filed by the plaintiff, and after announcement of ready for trial action by the court upon them was sought, the refusal of the court to entertain them was not an abuse of its judicial discretion.</p> <p>2. Nonsuit — Reinstatement.—After argument begun the plaintiff discovered that some of his evidence was not before the court, and took a nonsuit, and the case proceeded to judgment as between the defendants. The ground for the motion to reinstate being that plaintiff resided in New York, and was not present at the trial, and that his attorney when he announced ready for trial supposed certain overdue coupons were attached to the bond sued on, or were in the hands of one of the defendants, and did not discover his mistake until after announcement; held (no injury being shown to result to the plaintiff), that refusal of the motion was not an abuse of judicial discretion.</p> <p>3. Verdict. — If the jury gave credit to defendant's witnesses rather than to the plaintiff's, the verdict should not be disturbed, in the absence of any evidence tending to show that it was the result of prejudice or other improper influence.</p> <p>4. Correction of Deed — Case in Judgment. — R. and H. agreed to an exchange of lands. R. conveyed to H. his homestead, in consideration of the conveyance to him by H. and wife of their 200 acres homestead, and two other tracts of land of 40 and 160 acres, and the execution of eight notes for $350 each. There were two mortgages upon the two tracts of 40 and 160 acres when R. traded for them, of which he had notice and upon which he afterward paid $140, but subsequently concluded that said lands were worth less than the debts for which they were mortgaged and determined not to redeem them, and so notified H. and his creditors. The deed from H. to R. reserved a vendor’s lien upon all the land sold, and by its terms bound R. to pay the mortgage debts. These recitals were alleged by R. to have been inserted fraudulently, through the procurement of H., and without the knowledge or consent of R , who averred ignorance of law and inability to read manuscript, and reliance upon H. to have the deed properly drawn. There was no evidence that the deed was read to R., or that he read it himself before delivery of his deeds to H. R. subsequently made valuable improvements on the 200 acres homestead tract of land he had purchased. Under these facts, a verdict and judgment reforming the deed and releasing the homestead from the lien of the debts was affirmed.</p> <p>5. New Trial for Newly Discovered Evidence. — When the deed attacked for fraud was dated January 5, 1887, the answer alleging fraud filed November 20, 1890, and the trial April 23, 1891, the evidence of the notary who took the acknowledgment to the deed, detailing what took place at that time, was not newly discovered evidence authorizing grant of a new trial.</p>

<p>1. Affidavit for Attachment. — An affidavit for attachment which states that defendant is justly indebted to plaintiff in the sum of $2500 with interest thereon at the rate of 12 per cent per annum from October 15,1889, and the further amount of 10 per cent as attorney fees, and that defendant is also indebted to plaintiff in the further sum of $2500 on promissory note not yet due, being otherwise sufficient, is good. It is not necessary that the affidavit should state when the amount that is not showü to be due will become due.</p> <p>2. Intervention by Heirs. — Attachment being levied upon community property in which the heirs of the deceased mother had an interest, to protect which interest they intervened, held, that intervenors have no such equitable right as entitles them to intervene, and that there was no error in sustaining exceptions to the plea.</p> <p>3. Practice — Appeal by Intervenors. — No exceptions being taken to the action of the court dismissing the intervention, and the bond for appeal being executed by defendant alone, and made payable to plaintiff alone, the intervenors are not parties to the appeal, and assignment of errors by them will not be considered.</p> <p>4. Business Homestead. — Defendant had a two-story brick store house on lot 10, block 163, where he exposed his goods for sale and kept his books and office; but several years after he began business he purchased lot 20 in block 162, across the street, upon which was a frame warehouse in which he kept his goods in unbroken packages and his stoves and bulky and heavy goods. The building was generally kept closed and the key in the other house, but he sometimes sold goods from it, and a tinner slept there, and upon the lot there was a water closet used by himself and his employes. Held, that the action of the court below in refusing to submit the question of homestead to the jury, as to lot 20, and in instructing them that lot 20 was not exempt, was not error.</p> <p>5. Business Homestead Defined. — Under the Constitution, the lots must be used as a place where the head of the family exercises his calling or business. It is his workshop, office, or other place where he habitually is, in the following of his calling, and not any other lot or building which he may incidentally use in connection therewith.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. Sidewalk Assessments — Liability of Homestead. — The city of Beaumont, under the authority of articles 375 and 376, Bevised Statutes, passed an ordinance providing that the cost of constructing any sidewalk in the city should be defrayed by the owner of the abutting lot, and gave him the right to make it; but if he failed to do so, the city should construct it and assess the cost thereof against such abutting owner, and such assessment should become a lien for the amount thereof against the property of such owner, and might be enforced in any court having jurisdiction, by suit and foreclosure. Such a suit (in all respects regular) having been brought and judgment of foreclosure had, and sale of appellees’ homestead made thereunder for the sum of $27.50, held: It is no longer an open question in this State that local assessments for pavements or sidewalks, when imposed by a city according to law upon the abutting property, are special taxes, for which the homestead may be subject to forced sale.</p> <p>2. Conclusiveness of Judgment —Collateral Attack. —The judgment of the District Court foreclosing the lien in the original suit between the city and the property holder, though by default, precludes any inquiry into the validity of the assessment lien in a collateral proceeding.</p> <p>3. Same. — The ordinance provided that the sidewalk might be constructed of brick, stone, wood, or such other material as might be designated by the street committee, who were composed of three aldermen to be appointed by the mayor. This is claimed to be a delegation by the common council of a part of its legislative power, and there are authorities to support this position, but the judgment of the District Court is conclusive of this question, and of all others of like character which might have been invoked against the original judgment.</p> <p>4. Res Adjudicata. — We are aware of no well considered opinion where the court has acquired jurisdiction of the subject matter of the suit and of the person of the defendant, in which it has been held that the judgment rendered was subject to collateral attack for errors of law apparent upon the face of the record. Such erroneous decision is just as final and binding as would be its erroneous decision on a question of fact.</p> <p>5. Jurisdiction. — The rule which provides, that error in the exercise of jurisdiction, after it has been properly obtained over the person of the litigant and the subject matter of the suit, can not make the judgment rendered void, applies to actions to recover delinquent taxes, as in other cases, in respect to collateral attacks. It can not be shown, to avoid the effect of such judgments, that the taxes were previously paid or the assessment illegal and void.</p> <p>6. Jurisdiction of the District Court, — Where a special tribunal is created or a special jurisdiction conferred upon a court to enforce the collection of taxes, a judgment by default for taxes is not conclusive on the landowner; but the District Court does not exercise a special or limited jurisdiction in enforcing a lien upon land for taxes, but its power to do so is derived directly from the Constitution.</p> <p>7. Foreclosure Sale — Inadequacy of Price. — The lot was worth $1000 and sold for $27.50. There is no doubt that the price paid was grossly inadequate, but that alone will not vitiate the sale, even with an excessive levy (had there been one) added.</p> <p>8. Levy not Excessive. — The lot was 80 feet wide, the improvements occupied only 1G feet front, and on each side thereof there was a strip of land 32 feet wide. Although a levy on one of these strips would have been sufficient to satisfy the money judgment rendered, both the judgment and the venditioni exponas directed the sale of the entire lot, and the sheriff had no discretion in the matter of the levy.</p> <p>9. Homestead Law — Suggested Amendment. — The power given cities to levy on a homestead for local improvements should be withdrawn, and improvement of streets provided for by ad valorem taxation.</p> <p>ON 3IOTION BY APPELLANT TO REFOR3I AND RENDER.</p> <p>10. Sidewalk Improvements. — Article 475, Revised Statutes, provides how the estimate of the cost of such improvements shall be made, and declares that the amount imposed shall be levied and assessed as taxes, and shall be a lien upon the property until the payment of the same. These grants of power must, be strictly construed, and the statute closely followed.</p> <p>11. Collection of Tax, How Enforced. — Article 474 of the Revised Statutes requires that the tax shall be collected in not less than five annual payments. Article 476, Revised Statutes, provides that the levy shall be on so much property as will be sufficient to pay the same, and like notice of sale as in sales for other taxes shall be given, and sale shall be subject to the same conditions provided by ordinance for other tax sales. One of the important rights here secured to the owner is a sale of the smallest portion of ground that any person will take, and pay the taxes,</p> <p>12. Authority to Sue. — Article 477 authorizes suit as an additional remedy, and requires the city council to provide by ordinance for carrying out and executing the powers conferred, but does not give the council power to pass an ordinance in conflict with or enlarging or limiting the provisions of the statute, but only in harmony with and strict subordination to them.</p> <p>13. Same — Construction of Statutes. — Article 477, Revised Statutes, only authorizes a personal suit and moneyed judgment against the owner for the amount due. It does not authorize a suit against the property, nor one against the owner and the property together. A lien is given by statute, but the manner of its enforcement is provided. Suit may only be brought against the owner for the “ amount due.”</p> <p>14. Same. — The Legislature having provided two modes of procedure, each complete within itself, one exclusively against the property and the other exclusively against the person, the law should be interpreted and enforced as written.</p> <p>15. Jurisdiction of the District Court. — The suit which is the basis of the sale of appellees’ homestead was a suit to enforce the lien, and not for a personal judgment. The tax of $20 was a lien by statute; but the Legislature not having given a suit for its enforcement, but having provided another remedy, the District Court was without jurisdiction.</p> <p>16. Want of Jurisdiction Apparent of Record. —When the record fails to disclose a want of jurisdiction, jurisdiction is presumed as against a collateral attack, but such presumption is not indulged against proof; and the record (in the judgment foreclosing the tax lien) upon its face disclosing the want of jurisdiction, the judgment was void and must be pronounced a nullity whenever brought in question, whether in a direct or collateral proceeding.</p> <p>17. Legislative Intent. — Distinctions between proceedings to enforce the lien and suit for the debt are so apparent, and their different effect upon property owners so important, that it can not be presumed that the Legislature intended the remedies to be intermingled.</p> <p>18. Invalid Tax Ordinance. — The ordinance of the city of Beaumont giving power to any court of competent jurisdiction to entertain a suit to foreclose the tax lien, was enacted without authority and is inconsistent with the statute.</p> <p>ON MOTION FOR REHEARING.</p> <p>19. Construction of Statutes — Article 376,Revised Statutes,defines the powers of the city council with reference to sidewalks, and makes the assessment a lien upon the abutting property, and authorizes collection by a sale of the lot in such manner as the city council by ordinance may provide. The passage of the ordinance by the city of Beaumont, under which the suit to foreclose the tax lien was instituted, was authorized by this section. Articles 474, 475, 476, 477, Revised Statutes, relate to avenues, streets, and alleys exclusively, and examination of articles 375 and 376 in connection with those relating to avenues, streets, and alleys, will show that they are treated as separate and distinct. Article 376 is a special and independent provision relating to sidewalks, and is not in any manner controlled by articles 474, 475, 476, and 477, nor is the manner of sale controlled by article 446.</p> <p>20. Homestead Subject to Sale. — The fact that the lot was the homestead of Higgins and wife would not defeat the lien of the assessment, nor prevent its being sold in satisfaction thereof.</p> <p>21. Practice. — In view of the gross inadequacy of price, and because the case went off on another ground, the first judgment of the Supreme Court is adhered to, and the case reversed and remanded.</p>

<p>1. Amendment not a New Cause of Action. — When a receiver sues all the stockholders of an insolvent corporation to recover of them the par value of stock purchased by them below par, for the benefit of creditors of the corporation, and alleges that he sues as receiver by virtue of the order of the court, sets up the total amount of the debts established against the corporation and the insolvency of the corporation, and the total amount to be realized in order to liquidate the debts, an amendment enlarging these allegations and setting up the date and amount of each debt which has been established against the corporation, with the name of each creditor, is not a new cause of action.</p> <p>2. Venue in Suit by Receiver Against Stockholders. — Suit being instituted in Victoria County against the stockholders living there and those living elsewhere, if the others not living in that county were necessary parties to the suit they were properly sued there. In its general structure and purpose, this is an equitable proceeding in behalf of all the creditors of an insolvent corporation (after the appropriation of all of its tangible assets to the debts) against subscribers to its capital stock, to have an accounting and a contribution from the defendants of such proportion of their unpaid subscriptions as may be found necessary to satisfy the debts. It is essential to the completeness of the remedy that the amount of the indebtedness of the corporation, the amount due by each stockholder, and the proportion thereof necessary to discharge the debts, should be ascertained. Therefore, the other stockholders were necessary parties, and the venue was properly laid in Victoria County.</p> <p>3. Solvency of Stockholders a Necessary Issue. — It is also necessary to ascertain who among the subscribers are solvent and who are insolvent, that the solvent ones may be required, as far as their subscriptions suffice, to contribute enough to make up the deficiencies arising from the insolvency of the others.</p> <p>4. All Stockholders Necessary Parties. — In order to render certain and uniform justice to each creditor and each stockholder, they should all, as far as practicable, be brought into court. The suit should be for the benefit of all the creditors, and against all solvent delinquent subscribers who are within the jurisdiction of the court.</p> <p>5. Same — One Sait Against all, Proper. — It should be within the power of creditors of an insolvent corporation, or their representatives pursuing the trust fund, to bring all parties necessary to a full adjustment of their rights before the same court in one suit. The principles and practice of equity afford such a remedy, which in nowise conflicts with our statutes, but is embraced within the scope of the fourth exception of article 1198, Revised Statutes.</p> <p>6. Joinder of Parties. — The right of a creditor to sue an individual stockholder to recover an unpaid subscription and apply it upon his debt does not involve an accounting and marshalling of assets and distribution of all the proceeds. The authorities are in conflict as to his right to do so, but none of them deny the right of all the creditors to join all solvent delinquent stockholders within the jurisdiction of the court in one proceeding.</p> <p>7. Misjoinder of Parties and Causes of Action — A suit by a receiver in behalf of all the creditors of an insolvent corporation, against all delinquent stockholders upon their contracts of subscription, setting up the amount of unpaid indebtedness and the amount due on each stock subscription, and praying for judgment against each defendant for such an amount as may be necessary to pay off the indebtedness of the insolvent corporation, is not a misjoinder of parties or causes of action, although the subscriptions to stock were made at different times and places, and the conditions attached to the subscriptions were not the same, and although the defenses urged by the various stockholders were different.</p> <p>8. Receiver May Sue in His Own Name. — The corporation was es-topped by the agreement sued on from bringing this suit, and the order of the court and the law (Revised Statutes, article 1468) both authorizing suits by the receiver, he might sue in his own name, although neither the statute nor the order of court in express terms so directed. The law now in force expressly authorizes the receiver to sue in his own name. Sayles’ Civil Statutes, article 1464.</p> <p>9. Stock Issued in "Excess of Price Paid not Void. — Some of the defendants by their contracts were to receive $2 in stock for $1 paid, and others were to receive $85 of stock for every $60 paid. Article 12, section 6, of the Constitution, did not render the stock issued in excess of the price to be paid void. The first clause of this provision prohibits the issuance of stock unless it has been paid for; the second renders void all fictitious increase of stock or indebtedness. No fictitious increase of stock is alleged, but that the original stock was sold for less than parto defendants in violation of the rights of creditors. Stock issued and sold for a valid consideration is not fictitious within the provision quoted, nor void because sold for less than its par value.</p> <p>10. Stockholders Liable to Creditors for Par Value. — Article 12. section 6, of the Constitution, does not change the rule long established by courts of equity, that stockholders of a corporation are liable to creditors for the par value of the capital stock subscribed for and held by them.</p> <p>11. Creditors’Claims — Sufficient Consideration. — It was not necessary for the plaintiff to set out the cause of action of the creditors against the corporation with the same particularity as would be required in an original suit by the creditor against the corporation to establish it. The claims had all been established by the court in the receivership proceedings, and allegation of that fact conclusively showed the liability of the corporation for them.</p> <p>12. Performance of Conditions. — Fort Worth stockholders subscribed to the stock upon the condition that the company should erect and operate as soon as possible, in or in the immediate vicinity of Fort Worth, a slaughter house of certain stated capacity. The petition alleged that the slaughter house was erected, equipped, and operated, and this was sufficient allegation of performance of this condition. The fact that the company was compelled hy financial embarrassments to suspend business did not release stockholders from their obligation to creditors.</p> <p>13. Same — Increase of Directors. — A further section provided, that immediately after the acceptance of the subscription by thé company the charter should be so amended as to provide for thirteen directors, of whom six should be elected from the Fort Worth stockholders. It was not necessary to amend the charter in order to increase the number of the directors. Revised Statutes, article 575. That was done, and the object of that provision of the contract attained.</p> <p>14. Construction of Contract. — Section 3 of the contract of stock subscription made with the Fort Worth stockholders provides, that they should not be entitled to any issue of stock until they had responded to each call to the amount of their respective subscriptions, and that if they should fail to pay any installment all previous payments should be forfeited; provided, however, that when their certificates of stock were issued their rights, duties, obligations, and privileges should relate back to the time of the acceptance of the offer. This contract gave the subscribers no right of election to forfeit their payments and recede from the agreement, or to refuse to pay for the whole stock which they bound themselves to take; and they were bound for the stock they subscribed for, whether all of the remainder was ever taken or not.</p> <p>15. Same — Necessary Allegation and Proof. — The Fort Worth stockholders did not unconditionally agree to pay the amounts subscribed for stock at the prices specified, but that they would pay those amounts in case half the cost of building, etc., should be equal to the amount subscribed. If one-half of such cost should be less than the amount subscribed, then they agreed to pay only such part of the latter amount as would be equal to half the cost. Therefore, there should have been allegation and proof of the cost of building and equipping the slaughter house at Fort Worth.</p> <p>16. Exceptions to Petition and Answer. — When the same points are presented in the exceptions to the petition as are raised by the exceptions to the answer, if defendant’s exceptions to the petition are overruled the exceptions to the answer are properly sustained.</p> <p>17. Setoff to Suits for Stock Subscriptions. — Several of the defendants having pleaded in setoff debts which they alleged the corporation owed them for money advanced to it by them while operating its business, held, that plaintiff’s exceptions to this plea were properly sustained. This is not a suit by one creditor against an individual stockholder, but a suit in equity against all. There is a recognized distinction between the two classes of cases.</p> <p>18. Procurement of Subscription by Fraudulent Representations. — Fort Worth stockholders allege that they were induced to subscribe to the capital stock by representations of the company that it would furnish half the money necessary to purchase, locate, and equip the Fort Worth slaughter house, which statements were untrue, and made to deceive, and did deceive. Held, of no avail in this proceeding as a defense against creditors.</p> <p>19. Purchasers of Stock Below Par, Liability of. —Although the Fort Worth stockholders bought from the residue of the stock and paid all they agreed to pay, they purchased below par value, and thus appropriated a part of the capital stock which was the trust fund for the payment of creditors,' and it bound them to make good to the creditors the face value of the stock when it became necessary to pay debts.</p> <p>20. Disposition of Unpaid Stock. — Article 505, Revised Statutes, authorizing directors to dispose of the residue of capital stock as the by-laws may direct, does not authorize the directors to release subscribers to stock from their obligation to creditors for par value thereof; nor does the statute put creditors upon such inquiry as would affect them with notice of subscriptions to or sales of stock at a discount.</p> <p>21. Limitation. — Plea of the statute of limitations was properly stricken out. No cause of action against the subscribers ever accrued to the creditors until they had exhausted their remedy against the corporation and had all of its property applied to their claims.</p> <p>22. Hearsay Evidence. — The secretary of the Victoria house received from the secretary of the Fort Worth house a statement showing names of Fort Worth subscribers, amount subscribed, amount paid, number of certificates, number of shares, and value. This paper held to be hearsay, and erroneously admitted in evidence.</p> <p>23. When Shareholders Become Liable. — It is not necessary that shares of stock should have been actually issued and delivered to any of the subscribers to create a liability. Their subscription fixes their liability. Therefore it was error for the court below to hold that the Fort Worth defendants could be treated as shareholders only from the time they made payment, and that they could be charged with the par value of their stock only when they had made payment on their subscriptions.</p> <p>24. Notice to Creditors of Sales Below Par.. —When creditors had notice when their debts were created of the arrangement between the corporation and the subscribers to its capital stock, by which they received it for less than par, they can not hold the subscribers for a greater sum than they agreed to pay.</p> <p>25. What is Notice. — Notice to individuals who are presidents of banks which subsequently became creditors of the insolvent corporation is not sufficient to charge the banks with notice, in the absence of evidence that they acted for the banks in extending the credit to the corporation at such time and under such circumstances as to authorize the inference that the knowledge formerly acquired was still present before their minds.</p> <p>26. Same. — Parties can not be required to store away in their minds all facts which they learn, so as to be able to call them up at any time in the future to affect other transactions than that in which the knowledge was acquired. Such information has not the characteristics of notice in law, unless the transaction affected thereby took place under such circumstances as would lead to the reasonable conclusion that the fact reported was still remembered.</p> <p>27. Distribution of Proceeds — Where subscribers have not paid all they agreed to pay for their stock, that, when recovered, should constitute a fund for all the creditors, whether with or without notice, for as to that fund creditors without notice have no priority over others.</p>

<p>1. Foreign. Corporations — Interstate Commerce — The Act of April 3,1889 (Acts Twenty-first Legislature, 87), providing that foreign corporations desiring to transact or solicit business in this State, or establish a general or special office in this State, shall file with the Secretary of State a duly certified copy of the articles of incorporation, and pay afee for a permit issued thereon, and that no such corporation failing to so do can maintain any suit or action, either legal or equitable, in any of the courts of this State, imposes conditions and restraints upon interstate commerce, and is in conflict with the fourth clause of section 8, article 1, of the Federal Constitution, giving to Congress the power to regulate commerce with foreign nations and among the several States.</p> <p>2. Same. — The sale of goods in one State by a corporation domiciled in another State, acting through drummers and shipping the goods so sold, constitutes interstate commerce.</p>

<p>Eebob from Collin. Tried below before Hon. H. 0. Head.</p> <p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. Limitation. — As against title under a certificate, limitation does not begin to run until the date of the location of the certificate.</p> <p>2. Same — Five and Ten Years Statute— Break in Possession.— Where the unimproved part of a tract of land is severed by sale from the improvements, ordinarily the statute ceases to run as to the part that is unimproved. Where land is in the actual possession of the owner, a reasonable time under all the circumstances will be allowed upon its sale for the purchaser to take possession, before a break in the running of the statute will be declared.</p> <p>3. Five Years Statute — Payment of Taxes. — Where one pleading the five years statute seeks to account for his failure to pay taxes for two years by showing that another under whom he claims did pay the taxes for those years, he must show that such other person was then in actual possession, claiming under deed duly registered, else he can not tack his own possession to the title acquired from such other person.</p> <p>4. Limitation — Possession.—Enclosure and cultivation of a small part of a tract of land under a lease of the whole tract, held, under the facts, to constitute actual possession of the entire tract.</p> <p>5. Deed — Description of Land. — The description in the deed was as follows: “ Two hundred acres of land in Hill County, Texas, lying about six miles northeast from Hillsboro, and located by virtue of part of M. E. Atkinson 320 acres certificate.” Held, a sufficient description under the five years statute; the 200 acres being the whole of the survey at that place.</p> <p>6. Trespass to Try Title — Outstanding Equity. — An outstanding equity with which the defendant does not connect himself will not avail as a defense against the legal title asserted by plaintiff.</p> <p>7. Patent, Not Void when. — If the second set of field notes constituted a relocation, then the certificate was barred; otherwise, not. The Commissioner in issuing the patent decided the second field notes to be merely a correction of the original survey which was made in time. Even if this was error, it would not make the patent void and subject to collateral attack.</p>

<p>1. Practice — Special Exceptions to Pleadings.— Special exceptions to the form of the adversary pleadings come too late after there has been a trial and a continuance of the case at a former term without objection on this account.</p> <p>2. Practice — Immaterial Error. — Beading to the jury a portion of the pleadings to which exceptions have been sustained is a practice not to be commended ; but held, in this case not to constitute reversible error.</p> <p>3. Evidence — Written Instruments — Objection as to Effect of.— An objection to written instruments, going rather to their effect than to their admissibility, held, not a tenable ground for excluding them when offered in evidence. See the facts.</p> <p>4. Evidence — Privileged Communication. — A confidential communication between attorney and client is the privilege of the client; and where he does not object to evidence on this ground, his antagonist in the litigation can not urge such client’s privilege against the evidence.</p> <p>5. Evidence — Verbal Act — Res Gestae. — Where the proof shows the deposit of notes with an attorney, statements as to the purpose for which they are so deposited, made at the time and by the person depositing them, are not hearsay, but are verbal acts coming clearly within the rule on that subject.</p> <p>6. Notice to Attorney Binding on Client, when. — Notice to either member of a firm of attorneys is binding on their client where it relates to a matter contemplated in the scope of their employment; and knowledge of the attorney as to such matter is imputed to the client.</p> <p>7. Charge of the Court — Different Theories of the Case. — Where the evidence is conflicting, the defendant is entitled to a charge pertinently submitting his theory of the case to the jury.</p> <p>8. Agent of Corporation — Officer Acting in Dual Capacity. — Where one who is an officer of an incorporated bank acts in a given matter in behalf of the bank, his acts are binding on the corporation, although at that time and in the same matter he may have been acting also in his individual inerest.</p> <p>9. Principal and Agent — Acts Binding, when — Ratification.—The tendency of modern decisions is rather toward a restriction than an extension of the doctrine of implied or constructive notice in respect to agency; and in this case the knowledge of a subagent, whose appointment the principal had not authorized, is not imputed to the principal because of an act of the principal having some of the features of a ratification.</p> <p>10. Scire Facias to Revive Judgment — Offsets and Defenses — Fact Case. — See this case for an action to revive by scire facias certain judgments that had been transferred, and involving in its defense questions as to offset, collateral security, and insolvency.</p>

<p>The opinion states the case.</p>

<p>1. Judgment Lien — Suit to Enforce. — Where a judgment rendered in the County Court has, by abstract duly filed, become a lien on the real estate of the debtor, the judgment creditor may, without first resorting to execution and levy, maintain an action in the District Court to cancel a claim of homestead set up by the debtor, and. to enforce the judgment lien against the real estate so claimed as exempt.</p> <p>2. Homestead Exemption — Place of Business — Abandonment.— One who has sold his stock of merchandise, rented out his store house, and engaged in a different business, is not entitled to claim exemption of such store house as his place of business because of a mere intention to again resume business as a merchant in such house at an indefinite time in the future, and dependent on a contingency that might not happen.</p>

<p>1. State School Land — Invalid Purchase. — K. purchased a section of State school land under the Act of 1887. Ilis application and affidavit therefor represented him to he an actual settler. He was not in fact an actual settler, nor had he purchased the land in good faith. Held, such purchase conferred no title on him, nor on his assignee, against one who afterward settled on the land and duly applied to purchase it.</p> <p>2. Same — Forfeiture not Requisite. —Such purchase and sale did not interpose a legal obstacle to another purchaser who came within the provisions of the law. The first purchaser should be held to a compliance with the terms of his purchase in order to hold the land from other purchasers; and whether he has done this or not can be contested in the courts at any time before the final proof is made. A subsequent purchaser is not bound to wait for the State to obtain a judicial forfeiture of the prior fraudulent purchase.</p> <p>3. Same — Possession and Tender — Trespass to Try Title. — J. actually settled on the State school land fraudulently purchased by IC. as above stated, and duly made application to purchase the same from the State, tendering the first payment therefor, which was refused because of the prior sale to IC. Held, that such possession and tender entitled J. to sue IC., and M., his assignee, in trespass to try title, and to recover judgment for the land.</p>

<p>The opinion gives a statement of the case.</p>

<p>1. Liability of Telegraph Company for Failure to Forward Dispatch. — A telegraph company receiving a dispatch from a connecting line is under the implied obligation to forward it with the same diligence and care as if it had expressly agreed to transmit it. So, whether the company delivering the message is agent of the sender or of the company receiving it.</p> <p>2. Same. — The telegraph company receiving a dispatch from a connecting line is liable for damages caused by its want of diligence and expedition in transmitting and delivering the message.</p> <p>3. Same — Liability of Connecting Telegraph Lines. — Where a message is sent over connecting telegraph lines, any one of such lines causing injury by its default is liable, and is the proper party to be sued.</p> <p>4. Message Sent by Agent — Principal may Sue. — Attorneys in interest of their client sent a message by telegraph. The client, being damaged by the negligent failure of the telegraph company to deliver the message with proper dispatch, has cause of action against the telegraph company guilty of the failure.</p> <p>5. Notice by Contents of Telegraph Message. — The dispatch following: “Belton, Texas, Feb. 16,1884. James P. Maginn, St. Louis, Mo.: — Martin & Co. hold note of Sam. Woodworth; will be attached to-night; your bank telegraph Miller Bros., bankers, to make bond. [Signed] Monteitb & Furman,’’ on its face indicated to the telegraph company that Martin & Co. held a money obligation against Woodworth in danger of being lost through his insolvency: and of the necessity of the prompt delivery of the message to prevent the loss of the debt.</p> <p>6. Assignee of Claim for Damages may Sue. —Claim for damages to a firm was assigned to a member; in such case the assignee could maintain suit for such damages.</p> <p>7. Cause of Action. — See petition held sufficient if sustained by testimony to support a claim against the telegraph company for failure to deliver a dispatch with due promptness, whereby a debt was lost ,by the plaintiff in whose behalf the message was sent.</p>

<p>1. Liability of Retiring Partner — Secret Partner.— Ordinarily the creditors will not be affected by a dissolution or change in a debtor firm until notice be given or knowledge of such fact has been brought home to them, and the burden of proving such notice or knowledge rests upon the retiring partner claiming exemption from liability for the debts of the firm incurred subsequent to his retirement. This rule does not apply to dormant or secret partners.</p> <p>2. Dormant or Secret Partner. — While a firm was in existence a creditor was notified by the active member of the name of his secret partner. The creditor, upon the solvency of the secret partner, opened an account with the firm, which account was kept up after the dissolution. In such case the secret partner can not claim to have been a dormant partner against such creditor, and he is liable to such creditor for debts subsequently incurred in name of the firm before the creditor had notice of its dissolution, or of the retirement of such member.</p>

<p>1. Boundary Suit — Description—Practice.—In a boundary suit the judgment should definitely fix and establish the location of the line in dispute with reference to some known object then in existence, concerning the identity and locality of which there is no dispute.</p> <p>2. Same — Case Adhered to. — Jones v. Andrews, 72 Texas, 5, adhered to.</p>

<p>1. Homestead — Husband Can Not Sell, etc, — The husband can not convey the homestead, nor a part thereof, without the consent of the wife and without her joint conveyance executed and acknowledged by her in the manner prescribed by the statute.</p> <p>2. Designation of Rural Homestead. — When there is an excess of land in a rural homestead the homestead may be designated by the husband, but in such designation he can not renounce the actual homestead — that is, the place of residence.</p> <p>3. Same. — The husband alone can not by declaration or acts of sale renounce the homestead, and so subject it to execution. So held, where the husband in a deed in fraud of his creditors conveyed a part of his rural homestead including his residence, etc.</p> <p>4. Mistake — Effect of Judgment. — The husband being indebted, conveyed a part of his rural homestead in fraud of his creditors, by mistake including in the deed his actual residence. The land so conveyed was sold under execution. The purchasers brought suit to recover the land against the husband and his vendee. The deed was annulled for fraud and the land recovered. The wife was no party to the action for the land. The mistake was not discovered until after the judgment for the land had been rendered. Meld, that the proceedings did not affect the homestead rights of either the wife or the husband. The wife could not be concluded, not being party; nor the husband, by reason of the mistake in his deed.</p> <p>5. Designation of Homestead. — The fraudulent deed by the husband having been set aside, could be considered only as an attempted designation of his homestead out of the larger tract.</p> <p>6. Homestead Upon Separate Property of the Husband. — The wife's homestead rights attach to separate property of the husband when occupied, equally as if it were community.</p> <p>7. Injunction Protecting the Homestead — Injunction was properly issued to protect the homestead rights of the wife against the enforcement of a judgment for the homestead, rendered in a suit against the husband in which the wife was not a party, and in which the homestead was not in issue, by reason of the ignorance of all parties to the suit that the lines of the land sued for encroached upon the actual homestead.</p> <p>8. Designation of Homestead. — Courts can not control the designation of a rural homestead out of a larger tract, so as to include land never used or claimed as homestead by the family.</p> <p>9. Injunction — Statute Construed. — Article 2875, Revised Statutes, does not apply to an injunction to protect the homestead against invasion under' a judgment for the recovery of the land, in which the wife was not a party.</p>

<p>1. Approval of Recorded Judgment by Probate Court. — In approving a recorded judgment presented as a claim against an estate, and ordering it paid as a third class claim, the legal effect of such action is that if there was any property of the estate to which the lien would attach, then as to such property the order would apply; it would not apply to property (the homestead) to which a lien could not attach.</p> <p>2. Homestead of Unmarried Head of Family. — It is settled that an unmarried surviving spouse can mortgage the homestead, and that the courts can enforce such mortgage.</p> <p>3. Statute Construed — Classification of Claims. — Article 2037, section 3, construed, relating to classification of claims against estates.</p> <p>4. Cases Adhered to. — Lacy v. Rollins, 74 Texas, 566; Smith v. Yon Hutton, 75 Texas, 620; and Harle v. Richards, 78 Texas, 80, adhered to.</p>

<p>1. Parol Agreement as to Conditions of Purchase of Land. — McCarty and Brackenridge agreed in parol that Brackenridge would furnish McCarty money to buy a house and lot to be used as a homestead, but the deed was to be taken in name of Brackenridge, to hold the land as security and until the money advanced should be paid. The agreement being upon valuable consideration, affected the land; although the deed first taken was executed to McCarty, and by him surrendered and a second obtained from the vendors to Brackenridge, who knew nothing of the first deed.</p> <p>2. Consideration. — McCarty was in business and in straightened circumstances. He wished to buy a homestead, but could not withdraw money wherewith to buy from his business. He agreed with B. that the deed for property paid for with money taken from his business should be executed to B. upon his furnishing money to replace the money so used. Such agreement being executed was upon sufficient consideration.</p> <p>3. Parol Agreement to Mortgage. — A parol agreement may be made to execute a mortgage in the future where the agreement is supported by a valuable consideration. The agreement itself will be treated as a mortgage in equity. See example.</p> <p>4. Homestead. — The husband can encumber the homestead in the acquisition of it, and homestead rights will not obtain as long as the encumbrance lasts. The husband can renew the encumbrance or change it, at discretion, so he does not defraud his wife.</p> <p>5. Same — Lien.—In the case at bar there was an agreement for lien which must be discharged before a homestead can be acquired against it. See facts.</p> <p>6. Action on Promissory Note. —Either the legal or equitable owner may maintain an action upon a promissory note. See example.</p>

<p>Limited Liability of Railway Company— Contract by Lessee — The Missouri Pacific Railway Company, holding a lease upon the International & Great Northern Railway Company, contracted to carry two carloads of horses from New Braunfels, Texas, and to safely deliver the freight at St. Joseph, in the State of Missouri. The freight contract limited the liability for damages to losses upon its own line. ' The horses were carried to St. Joseph, but not delivered to the shipper. In an action against the International & Great Northern Railway Company for the value of the horses, held, that the exemption in the contract would inure to the benefit of each carrier over whose line the horses were carried, and the defendant would not be liable for the refusal to deliver at St. Joseph. Missouri.</p>

<p>1. Joint Trespasser — Corporation and its Officers. — An incorporated irrigation company, its president acting for it, by its ditches injured the land along which they were dug. In suit against the president by an adjacent landowner, held, that the corporation and its president were both guilty and liable, and an action could be maintained against both or either.</p> <p>2. Chartered Irrigation Company Liable for Injury. — A chartered company is liable for its torts, and has no more license to commit them than a natural person. An irrigation company is bound to so construct its works as not to trespass upon the rights of adjacent land-owners. Its officers and servants committing such wrong would also be liable.</p> <p>3. Suit to Abate Irrigation Ditch — Parties.—While for the tort in so placing irrigation ditches as to injure adjacent land the officer superintending the work would be personally liable, yet in a suit to abate the ditch the irrigation company would be a necessary party. In such action, joined with one for damages against the president alone, it was error to order the removal of the ditch.</p> <p>4. Jurisdiction — Amount in Controversy. — In the absence of 'a plea and evidence sustaining it that the amount alleged in the petition was fraudulently alleged to obtain jurisdiction, the court below had the right to hear and render judgment for any amount found to be due, however small such damages maybe.</p>

<p>1. Assignment — Construction of Deed. — A deed of assignment by a firm owning no real estate, executed by one of its members, conveying to a trustee for the benefit of the firm creditors “ all their (the partners) real and personal estate other than that which is by law exempted from execution,” conveys all the property belonging to either member of the firm, as well as the partnership property not exempt from forced sale.</p> <p>2. Assignment Executed by one Member of Firm. — An assignment executed by one member of a firm, purporting to convey the firm property, and made under parol authority from the other member or members of the firm, is valid if the assets were personal property, but not if real estate was owned subject to execution.</p> <p>3. Assignment Construed. — An assignment executed by one member of a firm having parol authority from the other member, and purporting to convey both real and personal property, maybe sustained by proving that no real estate was owned by the firm or by the other member of the firm. In absence of such proof the assignment would be held invalid.</p>

<p>1. Cause of Action — Tort.—An action for damages, actual and exemplary, by a passenger against a railway company for carrying him beyond his point of destination and wrongfully putting him off the train, is in tort, although the petition alleged the purchase by plaintiff of a ticket from the railway company.</p> <p>2. Tort — Limitation.— An action for damages by a passenger against a railway company for carrying him beyond his destination and putting him off the train at a distance from the station at which he should have been allowed to leave, is barred by limitation of one year.</p> <p>3. Damages to Clothing of Passenger — Pleading.—Where the petition contained no express allegation as to damages caused to clothing of the plaintiff, but the claim for damages was based upon mental and bodily injuries received by the plaintiff, and the action appears to have been brought eighteen months after the injury, exceptions that the cause of action is barred by limitation of one year should have been sustained. General allegations as to injury to the clothing would not save the action from the effect of the statute of limitations of one year.</p>

<p>1. Trust. — See instrument not of that indefinite character that courts will not give it effect.</p> <p>2. Construction of Instrument. — See document held to partake of the nature of a purchase of the remainder after a life-estate has terminated; having some of the elements of a conveyance of bargain and sale and some of the features suggesting that its purpose was testamentary.</p> <p>3. Same — Intent to be followed.— In construing such instrument we are to look to the intent of its makers, and when possible such intent is to be gathered from its face. When the meaning is uncertain, as in this case, resort should be had to the circumstances of the transaction. Evidence for this purpose is admissible.</p> <p>4. Same — Evidence should have been heard of the circumstances of its execution, not to contradict the terms of the instrument, but to explain its purpose and meaning, in order to arrive at the intent of the makers.</p> <p>5. Practice on Demurrer. — In such ease the court should not on demurrer determine the intent of the makers. , Testimony should be heard.</p>

<p>1. Garnishment — Insufficient Answer. —The garnishee being served with the writ December 17, 1890, on April 24,1891, answered, that he was not on the 17th of December nor at this time indebted to Theo. Ash. the judgment debtor, and that he knew of no other person who was indebted to him, or had in his possession effects of Theo. Ash. That on the 17th day of December, 1890, he was in possession of two lots of merchandise and some money, and held the same by virtue of a certain deed of trust executed by Theo. Ash on the 15th day of December, 1890, and that by said deed he was authorized to sell said goods in. due course of trade until sufficient money was realized to pay off certain debts in said deed specified, and if such sum was not realized by the first of May, 1891, he was to sell the remainder of the goods at auction. That a sufficient sum had not been realized to pay the debts, and he was unable to say what amount would be realized until after he had disposed of the balance of the goods, and praying for time until after said sale to make further answer. Held, not as full and specific as it should have been, and exception to it rightfully sustained.</p> <p>2. Same — Amendment of. — When exceptions to the answer of the garnishee are sustained it does not follow that the pleading should be treated as nd answer, and there was no error in granting leave to amend at a later day of the term, and after the sale of the remainder of the goods;</p> <p>3. Enforcement of Subpoena Duces Tecum. — Subpoena having been issued and served on the 27th April, on May 18 motion was made to compel the witness Theo. Ash, the judgment debtor, to bring his account and invoice books into court. The books and papers were in San Antonio, of which city Ash was a resident. Held, not error to refuse the motion, there not being sufficient data to authorize an opinion otherwise. Had a continuance been asked for want of this evidence a different question would have been presented.</p> <p>4. Same — Defenses to, Insufficient. — It was not a good answer in this case to a motion to compel obedience to the subpoena duces tecum, that the books and papers asked for are the private property of the witness, and that he is not a party to the suit. Though not joined as a party he is a party in interest, the trust deed made by him being attacked for fraud, and the garnishment being auxiliary to the plaintiffs' suit against him.</p> <p>5. Subpoena Duces Tecum. — Even third parties who have in their possession books or papers which are material evidence for the party demanding them may be compelled to produce them by subpoena duces tecum or bill of discovery, and when a proper showing of their relevancy and materiality is made, it will be the right and privilege of appellants to inspect the books and invoices of Theo. Ash, and to put them in evidence, and it would be the duty of the court to compel him to produce them.</p> <p>6. Fraudulent Conveyance — Notice of Intent. — When property is purchased for a valuable consideration from an insolvent debtor and the conveyance is attacked as fraudulent by a creditor, it devolves upon him to prove, first, that the conveyance was made by the vendor with the fraudulent intent to hinder or delay Ms creditors in the collection of their debts; and second, that this intent was known to the purchaser. But when the conveyance is made in trust to a third party for the benefit of certain preferred creditors, it is then immaterial whether this intent was known to either the trustee or the beneficiaries, and if the deed was executed with the intent to delay, hinder, or defraud creditors it is void. Approving Baldwin v. Beet, 22 Texas, 710.</p> <p>7. Statute of Frauds. — The language of the statute, article 2465, would seem to rebut the idea that the party attacking the deed made upon good consideration only must, in addition to proving a fraudulent intent on the part of the vendor, show that that intent was known to the trustee. It declares: “ This article shall not affect the title of a.purchaser for valuable consideration unless he has notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor."</p> <p>8. Intention of the Grantor the Controlling Issue. —If the intention to hinder and delay the creditors influenced the grantor, in whole or in part, as an object in making the deed, it would be void; but if to hinder and delay his creditors was only contemplated as an incident, and his real purpose and object was to pay the debts due the parties named in the conveyance, the deed would be valid.</p> <p>9. Fraud per se. — A conveyance is not fraudulent per se, unless it contains a provision or clause by which some benefit or advantage is reserved to the debtor at the expense of the creditors, or unless the instrument by reason of inherent defects is inoperative as a conveyance. Tested by this rule the trust deed in this case is not void. The authority given the trustee to employ attorneys. and to carry on the business for four and a half months, and to turn over the residue of the money arising from the sale to the debtor, are all badges of fraud, but do not render the deed void.</p> <p>10. Liability of Garnishee. — A writ of garnishment served upon a trustee in oharge'of goods for the benefit of creditors, under a valid trust deed, will reach only the surplus remaining after executing the trust; but if the deed is void for fraud, and the trustee had notice that the same would be contested by nonpreferred creditors, and he afterward, without an order of court, disposes of the goods, he acts in his own wrong, and is liable for their value at the date of notice.</p> <p>11. Fictitious Debts Secured. — If any of the debts recited in a deed of trust made for preferred creditors be false or fictitious in whole or in part, and it be so charged in the pleading of the attacking creditor and proved, the deed is void for fraud, whether the other creditors whose debts are just knew of the fact or not. Misstatements made through mistake or inadvertence, however, if satisfactorily explained, should not avoid the instrument.</p>

<p>1. Contract Not Usurious. — K. loaned H. money on notes bearing 10per cent interest to maturity and 12 per cent thereafter, with contract for 10 per cent attorney fees in the event that the note was placed with an attorney for collection ; and at the same time and as a part of the same transaction, H. contracted to ship to K. during the cotton season, for sale on a commission of 2% per cent to K.. one bale of cotton for every $10 loaned, or in default thereof to pay to If. at the end of the season $1.25 for each bale he failed to ship, as liquidated damages. The claim made being only for the amount of the note, and the loan being-made for the purpose of promoting consignments of cotton, held, not usurious.</p> <p>2. Attorney Fees! — The attorney fees stipulated for in the notes were properly allowed by the court, although the maker of the notes was dead, because they were placed with an attorney for collection.</p> <p>3. Interest. — It was proper to allow interest at the rate of 12 per cent after maturity as provided for. The delay caused by the death of H. would not have the effect to change the tenor of the notes.</p> <p>4. Exceptions Waived. — The record showing no ruling in the court below upon the exceptions of the appellant, they will beheld to have been waived.</p>

<p>1. Injunction — Case in Judgment. — The petition alleged this case: Judgment by default April 23, 1889, against appellant on a note and foreclosing a mortgage upon three tracts of land, upon one of which was his homestead. The note had been given by him to W., who was his attorney and confidential •adviser and so remained until his death, to secure fees due W. The mortgage was not intended to include the homestead. Shortly after it was given he called IV."s attention to the mistake and asked him to correct it, which he promptly did by releasing the homestead, and the release was recorded. Appellant thought the release was written on the back of the mortgage and had remained in the hands of W.. who assured him that his homestead could never be subjected to the lien of said mortgage under any circumstances. Appellant never saw the release; it was not called to the attention of the court when the judgment foreclosing the mortgage was taken. Suit was by the executor of W. Believing the mortgage not in any way to affect his homestead, appellant did not answer, and he would have defended had he known or suspected an intention to foreclose upon his homestead. That he did not know that it had been done until three months before the institution of this suit. Injunction was prayed for to restrain foreclosure sale. Held, that a cause of action is shown, and dismissal of the case upon demurrer was erroneous.</p> <p>2. Fraud. — According to these averments the judgment of foreclosure was manifestly obtained by the fraud of the parties in concealing from the court the fact that a portion of the lands covered by the mortgage was occupied by defendant as his homestead and had been released by the mortgagee.</p> <p>3. A Known Defense as Ground for Injunction. — The rule that he who seeks relief in equity from the effects of a judgment rendered against him on personal service, must show thatjie was not guilty of culpable neglect in not making his defense to the suit, is simple and easily understood, but its application is often attended with difficulty. The facts in this case reviewed, and held to show a case entitling appellant to equitable relief.</p> <p>4. Injunction After one Year. — Revised Statutes, article 2875, forbids injunction to stay execution after one year from the rendition of the judgment, unless the application was delayed in consequence of the fraud or false promises of the plaintiff, etc. The petition (which it is alleged was filed within three months after the discovery of the foreclosure on the homestead) avers that the plaintiff in the foreclosure suit had actual notice that the homestead had been released from the operation of the mortgage, and knew that the petitioner was ignorant of his intention to foreclose upon it, and knew that petitioner would have defended the suit had such purpose been known to him. These and the other averments in the petition excuse the delay in asking for the injunction.</p>

<p>1. Case Approved. — The International & Great Northern Railway Company v. J. B. Hall, 78 Texas, C57, approved.</p> <p>2. Knowledge of Rules a Question for Jury. — Whether the plaintiff (a workman in the employ of the company) knew of the rules established for the protection of the workmen, or by the exercise of ordinary care might have known them, was a question for the determination of the jury; and for us to set aside the verdict in this respect we should be able to say that plaintiff, from his service of three months in the repair yard of defendant, was bound to know what means, if any, were provided for the protection of the workmen.</p> <p>3. Inadequate Precautions — Liability of Company. — Defendant would not be liable for the negligence of a fellow servant of plaintiff if it furnished adequate means and rules for the protection of plaintiff while at work, nor would it be liable, although the means furnished and the rules established were inadequate, if the plaintiff had knowledge thereof, or by the exercise of ordinary diligence might have had, and voluntarily continued in its service. But if the precautions taken by defendant were inadequate, and plaintiff did not know what precautions were being taken, and was not chargeable with want of ordinary care in failing to ascertain them, then defendant would be liable.</p> <p>4. Evidence of Changes made After Accident. — Evidence of improved methods adopted by the company after the accident, and in consequence thereof, is not primarily admissible; but when admitted in rebuttal of the evidence of the opposite party, and the jury in the charge are specially instructed as to the purpose for which it has been admitted, such action is not ground for reversal.</p> <p>5. Verdict Approved for $3500 for a broken arm.</p>

<p>1. Practice in Appellate Court. — When there is no statement of facts, but the conclusions of fact and law of the district judge are found in the record, in order to reverse the judgment it must affirmatively appear to be wrong, from the facts found by the judge.</p> <p>2. Res Adjudicaba. — In 1875 a suit was pending in Rusk County, styled Berry et al. v. Harnage et al., which involved the west quarter of the Reel league, in which league appellant, a minor, at that time had an undivided interest. Two separate pleas of intervention were filed in that suit; one by the Flanagans and the other by the Iveys; the latter being the appellant (represented by a guardian ad litem) and his brothers, adults. By these interventions the north quarter of the league, in which appellant had an interest, was introduced into the litigation, and the trial (at which all the parties were represented) resulted in a judgment settling the title of the west quarter, and a further judgment upon an agreement between the interveners settling their rights in the north quarter and partitioning it between them. Held, the court had jurisdiction of the person of appellant and the subject matter, and the judgment therein was binding on him and a bar to this action, which was for a part of the land partitioned.</p> <p>3. Special Guardian — Next Friend. — The law in force in 1875 provided for the appointment of a special guardian to take care of the interests of a minor in a suit pending or about to be commenced. Pasch. Dig., arts. 6969, 6970. Before that statute was passed, and since its repeal, minors could sue by next friend, and there is nothing in those provisions which would prevent a suit or an intervention being brought before the court in that manner. The brothers of the appellant brought him in by their plea of intervention, and if necessary, in the absence of record evidence to the contrary, it would be presumed that in doing so they acted in the capacity of next friend.</p> <p>4. Agreement of Guardian. — The fact that the judgment was rendered upon the agreement of the guardian does not render it void. The guardian acted under the supervision of the court, and in a collateral proceeding it must be presumed that the court ascertained the facts upon which the agreement was based, and allowed no wrong done to the minor.</p> <p>5. Intervenors may occupy the positions of either plaintiffs or defendants, and all the elements of a cause of action or ground of defense may be contained in their pleading, and parties may come into court as effectually by that method as by original suit.</p> <p>6. Collateral Attack. — If by the intervention other land was improperly made a subject of controversy, the action of the court in allowing it might be irregular, but its jurisdiction would not be affected. Whether such a state of facts was shown as to make it proper to bring all the land in or not, the parties were before the court, seeking to litigate over a subject of which it had jurisdiction, and its judgment entertaining and determining their suit can not be collaterally attacked</p> <p>7. Final Judgment. — The court below has found that the judgment rendered in Berry v. Harnage, as between the intervenors, was a part of the final judgment, and there is no merit in appellant's contention that it was a separate decree.</p> <p>8. Direct Proceeding to Set Aside Judgment. — After the partition judgment was rendered an execution for costs was issued against the Iveys, under which the interest of appellant in the league was sold and one Bagley became the purchaser. He is not a party to this suit, nor do any of the defendants claim under him. None of the parties to the suit of Berry v. Harnage are parties to this, wherefore this case can not be considered a direct proceeding to set aside that judgment, but was correctly treated by the court below as an ordinary action of trespass to try title.</p>

<p>The opinion states the case.</p>

<p>1. Conditional Delivery of Mortgage. — Appellee having sued appellant upon afire insurance policy upon property in Florida, was met by the defense that it was void, because of a violation of its conditions by reason of the execution of a mortgage upon the property insured; to which it was replied, that the mortgage was never delivered; that it was handed to the grantee with the understanding that the wife of the grantor should waive her dower interest in the property, and was not intended to become operative until that was done. The mortgage contained no reference to the wife or her right of dower, and the court erred in admitting parol evidence of the understanding alleged. But all the evidence, including that erroneously admitted, shows that it was executed and delivered, and that it was a valid mortgage upon appellee's interest in the property, although when delivered there was an' understanding that the dower interest was to be released. There was no condition to be performed by the grantee, and as to appellee the delivery was absolute.</p> <p>2. Escrow — Delivery.—A deed can never be delivered to the grantee himself as an escrow, but if intended to operate as such must be delivered to a third person for him. If a deed he delivered to him, the law, for wise purposes and on just principles, vests the interest conveyed instantly in him.</p>

<p>1. Possession, when Adverse. — In 1871 E, purchased from appellant 1 acre of land out of an 8 acres tract owned by him, out of the southwest corner, 157 by 281 feet in size, and B. purchased of appellant 1 acre in the northwest corner of said 8 acres tract, 157 by 281 feet. In 1875, by virtue of these titles, the then owners had enclosed their respective lots; in one of them there was an area of 170% by 308 feet, and in the other 1G9)£ by 308 feet. They sold to the vendor of one of the appellees, and the ancestor of the other. These sales were made with reference to the enclosures, but by the same description as in the original deeds. These vendors and the appellees believed that they were buying all the land within the enclosures; they recognized no adverse right, and supposed that they owned all the land enclosed. Suit was brought by appellant in January, 1890, for the unsold strip of land thus appropriated. Held, appellees’ possession must be deemed adverse, and their titles good by limitation, although after the excess was first discovered, by a survey made in 1888, appellees made a proposition to appellant to purchase it.</p> <p>2. Possession, when not Adverse. — The case differs from those where one extends his fence upon the land of an adjoining owner, intending only to assert title to the true line when ascertained. In such cases the possession recognizes the title of his neighbor to the land defined by the true boundary, when it is ascertained, and hence his enclosure of a part of the land that does not belong to him is not hostile.</p> <p>3. Same. — If the claim of ownership is not up to the partition fence, but only to the true line, there would heno adverse holding except to the true dividing line. But where the fence is believed to be the true line, and claim of ownership is up to it as located on the ground, even though the line as established by the fence is erroneous, the possession does not originate in admitted possibility of mistake, and the possession is adverse.</p> <p>4. Negotiations for Purchase. — Title had vested in appellees before the negotiations concerning a purchase, which were engaged in for the purpose of compromising differences and clearing title, and under well recognized principles of law should not be allowed to prejudice the claim of either party..</p>

<p>1. Conditional Deed — Case in Judgment. — Appellee, joined by all his children save L. P. Alford, conveyed to appellants the land sued for, by a deed, the consideration for which, as therein expressed, was the agreement of appellants to care for and support appellee during his natural life, and furnish him with the necessaries and comforts suitable to his age and physical condition, and with clothes to wear; to have and to hold the land forever, upon condition that appellants should faithfully comply with all the stipulations in said agreement, and if said agreement was not complied with the conveyance to be void. A vendor's lien was reserved by appellee on the land to secure the faithful performance of the agreement, and right to live on and use the land during his natural life was also reserved, and at the death of the appellee, if all the provisions of said agreement had been complied with, the land was to become the absolute property of the appellants in fee simple There was evidence showing, breach of the agreement, which was controverted by the appellants. The suit was in the ordinary form of trespass to try title. Held, as to the form of action, there is some difficulty in determining the exact legal effect of the instrument. Its provisions show that an estate upon condition was intended to be created. Some of them indicate that title was not to pass until performance, and others that the estate was to take effect at once. But whether the conditions were precedent or subsequent, if appellants broke their contract before suit was brought the title determined, and right of appellee to recover the property became perfect.</p> <p>2. Construction of Deed. — Looking to the purpose of the conveyance, present possession and enjoyment of the land was vested in the grantees, subject to the reserved right of the grantor to live on it also, and to have such use of it as was consistent with the rights conferred on the grantees; but the title was never to pass unless at the death of the grantor the agreement had been fully performed.</p> <p>3. Parties to Suit. — All the makers of the deed were not necessary parties. Appellee had only to show title as against appellants. When the deed was made he had title to half the land and the right to occupy all of it during his life as his homestead. If appellants" rights under the deed were at an end. appellee's title was complete, and it was not necessary for him to demand possession or give notice to appellants before he brought suit.</p> <p>4. Improvements. — There being no pleading setting up improvements made in good faith, evidence thereof was properly excluded.</p> <p>5. Breach of Conditions. — The evidence of the appellee is in several respects indefinite, but if taken as true showed that he was subject to indignities by his son which may have rendered life with him unbearable. The contract contemplated that they should all live together at his own home, and that he should there receive the care and support for which he provided, and mistreatment of him by appellants of such a character as to render life there intolerable would be as much a breach of the agreement as failure to furnish him the necessaries of life.</p>

<p>1. Probate Judgments — Collateral Attack. —The orders of a court having jurisdiction of an estate, made in 1871, directing a sale of certain property of the estate, and after sale confirming the same as reported, can not be attacked collaterally on the ground that there was no necessity for the sale, and no debts of the estate unpaid, nor because the order of confirmation was made at the same term of court at which the report was made, without a continuance thereof for one term, as required by law. The law then in force did not prescribe what the application for sale should contain, as it now does.</p> <p>2. Probate Sale — Purchaser’s Title. — Although by a previous report of the administrator there appeared to be a balance due the estate of $488.36, after the payment of all debts and expenses of administration, yet the application made for the sale of the land purported to be for the payment of expenses of administration, and a purchaser need not look beyond the application and decrees of court to ascertain whether or not the court had jurisdiction to order the sale, and such sale can not be collaterally attacked in a suit of trespass to try title.</p> <p>3. Allegations of Fraud. — When facts are alleged which would constitute fraud, it is unnecessary to charge fraud as a conclusion.</p> <p>4. Same — Direct Proceeding to Vacate Deed. — Plaintiff alleged, that Lane was the attorney for the administrator; that an account filed in 1860 showed the estate to be fully administered and a balance of money on hand; that in 1867 an application was made to sell the land certificate to-pay expenses of administration, which on its face discouraged bidders by showing a want of knowledge of its actual ownership; that Lane, in whose handwriting were all the papers, in fact knew that the certificate was on file in the Land Office, and was cognizant of all the facts with respect to the administration; and that no occasion existed for the sale of the certificate. He became the purchaser at a grossly inadequate price, hut did not record his deed until 1882. Unexplained, these allegations show fraud on the part of Lane and the administrator. The proceeding was a direct one to vacate the deed to Lane; and suit being against his heirs, general demurrer to the petition was erroneously sustained, although the orders in probate stand.</p> <p>5. Trustee of the Legal Title. — We are clearly of the opinion that the facts alleged are sufficient to charge defendants as trustees of the legal title for the benefit of Martha Storer; and this does not violate the principle that proceedings of a court of competent jurisdiction may not he collateral!)' attacked; for the proceedings leading to the sale and investing the purchaser with the legal title may stand, and yet the holder of the legal title may be constituted a trustee for the benefit of the equitable owner.</p> <p>6. Stale Demand. — Prior to the adoption of the Revised Statutes, when the defense of stale demand was invoked it was usual to apply the longest period of limitation by analogy to the statute to determine when the demand would have become stale; but by the Revised Statutes the indefinite equitable defense of stale demand was eliminated from our law. and instead of meeting such a plea now with excuses it should be met with legal exceptions, as for example coverture, or infancy. Stale demand had not run against Mrs. Storer when the Revised Statutes took effect, and the plea is met by the fact that she has been a married woman since 1862.</p> <p>7. Tender of Purchase Money. — Defendants demurred specially because plaintiff's did not tender back the purchase money paid for the certificate by their ancestor; but in this case it was unnecessary, because by the allegations of the petition the purchase appeared fraudulent, and Lane had already disposed of and conveyed more of the land in value than the amount of his bid.</p>

<p>Appeals, when Perfected — Affirmance on Certificate. — Appeals heretofore perfected to the Supreme Court became perfected to this court on September 1,1892, the day the law establishing this court took effect, and appellants have ninety days from that date within which to file the transcript of the record in this court, and before the expiration of the ninety days judgments in such cases will not be affirmed on certificate.</p>

The plaintiff was a brakeman, and was injured while making a coupling-between the engine (which was backing at the rate of from two to four-miles per hour) and a box car, which was standing on a side track. The drawhead of the car gave way and went back under the car, and the plaintiff was caught between the car and the rear end of the tender of the engine, and injured. The car was differently constructed from the-cars generally in use.

<p>1. Insufficient Demand for Freight. — An order by the consignee of fruit trees which had been shipped by express, as follows, “ E. B. agent, Orange— Please deliver to the bearer any freight 1 may have in your possession.” the railroad agent being also express agent, is not a sufficient demand for the trees held by him as express agent to make it his duty to deliver them, or to charge the express company with the damage resulting from a failure to do so.</p> <p>2. W ritten Order. — The fact that the agent was agent for both companies did not diminish his duties to each. From the order given he could not know that its bearer was authorized to receive express freight. A written authority from a consignee to a third person should not be so uncertain as to give just grounds for doubting the scope of the authorization; as great care must be taken by express agents to deliver goods to the proper person, and heavy liabilities' may result from a wrong delivery.</p> <p>3. Practice in Court of Civil Appeals. — The arrival of the trees was advertised on December 20. and it was seen by the consignee, who on January 3 following sent the order described in paragraph 1; to which the agent replied that there was nothing for Windham. The order not being such as to direct the agent’s attention to the trees, the failure to deliver them resulted from the fault of the appellee, and the judgment in his favor for damages is here reversed, and rendered for the appellant.</p>

<p>1. Fellow Servant. — 'Appellee was in the employ of one Burkitt, who had a contract with appellants to furnish them wood. While engaged in loading appellants' cars with wood, appellee was requested by a brakeman to assist him in pushing two loaded cars to the caboose, and was directed by the brakeman to get between the two cars, which were coupled together, in order to move them easily. He did so, and while pushing the cars, which were slowly moving, the hrakeman mounted one of them, upon which was a set brake, and, without warning or notice to appellee, unfixed the brake, whereby the cars were caused to move suddenly forward, and caught appellee’s foot and crushed his leg. Under the facts, appellee was not a fellow servant of the brakeman and thereby precluded from recovery.</p> <p>2. Volunteer — Proper Charge. — The trial court in substance charged that plaintiff was in Burkitt's employment, and that it was not his duty to push the car, or to assist in doing so. unless such aid was reasonably necessary in expediting Burkitt's business and in furtherance thereof; and that if he pushed the car only in response to the brakeman's request, and as an accommodation to him, and not because it was necessary to the furtherance of Burkitt's business as an act reasonably incident to appellee’s duties, then he would be a volunteer, and could not recover. But if the brakeman requested or directed Bryant to assist in removing the cars, in order to make up the train, and if Bryant did so as an act reasonably necessary in loading the train, and moving the wood for Burkitt, appellee could recover, if he was hurt through the negligence of the brakeman. This charge fairly submitted the issue to the jury.</p> <p>3. Charge — Plaintiff’s Belief. — “You must determine from the evidence for what purpose Bryant went to push the cars, and whether his act in pushing the cars down to the caboose was or was not reasonably necessary under the terms of his employment, and considering the nature of his duties in the furtherance of and expediting Burkitt’s business, or whether he acted as a volunteer and as an accommodation to the brakeman, under the belief that to push the cars was a part of his duties, and not for the purpose of expediting Burkitt's business.” The charge improperly alluded to appellee's belief, for his right to recover could not depend upon his belief,but upon the facts found by the jury; but the charge given, fairly construed, did not authorize a recovery on the basis of appellee’s belief, and judgment is affirmed.</p>

<p>1. Warrantor — Plaintiffs Right to Call in. — Appellant had the right to have his warrantor cited to come in and maintain the title and make good his warranty. The provisions of our statutes (Revised Statutes, article 4788) allowing warrantors to be brought in by defendants in trespass to try title, does not change any rule of practice which may allow to the plaintiff the same remedy. Whether the plaintiff in this suit could recover judgment upon his warranty is not necessary (in the disposition we shall make of the case) to determine; but he had the right to bring him in to maintain the title, and to be concluded by the judgment, and it was error to sustain the general demurrer.</p> <p>2. Adverse Possession. — About sixteen years before suit C. entered upon the north half of the 300 acres tract of land in controversy, supposing it was vacant and desiring to pre-empt it. In 1859 the then owners of the north and south half agreed to a partition; one of them was to take the north half and the other the south. The tract was a rectangle, and could be divided by a right line through the center from east to west. No actual partition line was run, but subsequent deeds in the chain of title which were recorded recognized such partition. By a transaction with G., the owner of the south half, C. claims to have bought all of G.:s interest in the 300 acres, but no deed was made. In 1883, the then owners of the north half conveyed it to C., describing the north half, but the deed further stated that they conveyed all the interest that D. (a former owner) had in the whole tract, but they only warranted 150 acres. C. had paid taxes on the whole tract. Suit being instituted May 11,1889, under the above facts, (Vs possession was held not to he adverse to the owner of the south half.</p> <p>3. Same. — ('. entered on the north half with intent to pre-empt it. If he had thus possessed himself of the south half, it would not have been possession adverse to the true owner.</p> <p>4. Same. — Under the peculiar language of the deed from Townsend and Chesnut to appellee, and its correspondence with and apparent recognition of the true condition of the title, it can not be held that appellee’s possession of the north half should he extended by construction to the boundaries of the whole tract. That possession was consistent with the claim of appellant to the south half, and if there had been no partition appellee’s possession would have been that of a tenant in common, and would not have been adverse to the owner of the other undivided half-interest.</p>

<p>Estoppel — Forged Note. — II. executed a vendor's lien note to B., who afterward, desiring to negotiate it to a loan company, had H. to join with him in making a lengthy affidavit, in printed form, stating that B. was the owner and holder of the note, describing it; that the title of the land which secured it was good; that it constituted a prior lien on the land; that II., the maker, was solvent, etc. The note was not produced at the time the affidavit was made, and in truth B. had then already sold it, which fact IT. did not know. B. took the affidavit, together with a forged note which was a literal copy of the genuine one described therein, to the loan company, and sold it such forged note. H. afterward paid the genuine note, and when sued on the forged note pleaded non est factum. Held, that the affidavit aforesaid did not estop him to make such plea.</p>

<p>1. Disqualification of Judge. — Where a case was appealed to the County Court, the county judge was not disqualified to try it because, as justice of the peace, he had tried it once already.</p> <p>2. Jurisdiction — Dismissal of Appeal. — The county judge having improperly transferred the ease to the District Court because of his supposed disqualification. an appeal from a trial had in the District Court is dismissed, with instructions to transfer the case to the County Court.</p>

<p>1. Practice — Continuance.—The defendant, late in the evening, presented a first application for continuance in statutory form, and the court, instead of then acting on it, gave the plaintiff until next morning to procure the attendance of the witnesses named therein, which it seems he did. No injury being shown to have resulted from this course, it is to be commended rather than condemned.</p> <p>2. Same — Postponement — Diligence. — An application for postponement on account of the absence of witnesses, to obtain whose attendance no diligence is shown, is addressed to the discretion of the court; and no abuse of this discretion is apparent where the applicant does not state what he expects to prove by the witnesses, nor show in a motion for new trial that he has suffered injury from their nonattendance.</p> <p>3. Practice — Order of Cases. — The action of the court in calling a jury case for trial ahead of prior nonjury cases on the docket, held, to have been proper.</p> <p>4. Parol Evidence — Allegata and Probata. — Where a written contract given in evidence upon its face purports to set forth the terms of settlement between the parties, it can not be contradicted, added to, or varied by parol evidence, without an allegation of fraud, accident, or mistake. In the absence of such allegation it is not error in the court to refuse to charge on parol evidence which would add to or vary the terms of the writing, although such parol evidence was admitted without objection.</p>

<p>1. Parol Evidence — Written Contract. — Where a writing purports to be the whole of the agreement between the parties, it can neither be added to nor varied by parol evidence, unless on its face it should in some way rebut the presumption that it is complete.</p> <p>2. Same — Deed—Consideration Part of Contract, when. — Where a deed to a city recited that the land was to be used only for widening a street, and that the city was to adjust the grantor's fencing to the new street line, this was held to evidence the contract between the parties, and parol evidence of a further consideration or agreement that the city was also to fill up a certain ditch was properly excluded.</p>

<p>1. Agency — Knowledge of Agent not Imputed to Principal, when. — On a defaulting city collector’s official bond, two of the city aldermen, with other persons, were sureties. The board of aldermen proposed to accept, in full settlement of the bond, a deed of the collector’s homestead, worth but little more than half the amount of the default. Such deed was made, and was accepted by the board of aldermen at a meeting at which said two aldermen, members thereof, were present. The collector, joined by his wife, sued to recover the property, alleging that the deed was procured by means of threats, intimidation of the wife, etc., on the part of the two surety aldermen, and a demurrer to the petition was sustained. Meld:</p> <p>1. The agreement by the city with the sureties to accept such deed if they would procure it, and to thereupon release them on the bond, did not constitute the relation of principal and agent between the city and the sureties, and therefore the presence of the said two aldermen at the meeting of the board when the deed was accepted did not charge the city with notice of the threats, etc., in its procurement.</p> <p>2. When an agent has a personal interest in a matter adverse to his principal, and which it is to his interest to conceal from his principal, the general rule is that his knowledge in such case will not be imputed to the principal.</p> <p>2. Notice — Pre-existing Debt — Case Followed. — Under the authority of Webb v. Burney, 70 Texas, 322, it is held that the fact that the sole consideration for the deed to the city was a pre-existing debt, did not charge the city with notice of any irregularity in its procurement.</p>

<p>1. Municipal Taxation — Limit.—A city of more than 10,000 inhabitants, acting under the general law of incorporation for cities and towns, is authorized by law to levy taxes for as much in the aggregate for one year as 2J¿ per cent of the taxable property of the city.</p> <p>2. Same — Authority to Tax. — When a municipal corporation is charged by law with a duty, it has, within the constitutional and charter limits, authority to raise by taxation the money necessary to the discharge of the duty, unless such authority is expressly prohibited.</p> <p>3. Same — Act of March 23,1887, not a Repeal. — The Act of March 23, 1887, relating to taxation by cities and towns, was enacted with reference to the constitutional amendment of 1883, and did not operate as a repeal of article 426 of the Revised Statutes on the same general subject.</p>

<p>1. Telegraph Company — Office Hours — Cases Approved. — The cases of Telegraph Company v. Broesche, 72 Texas, 657, and Telegraph Company v. Bruner, 19 Southwestern Reporter, 149, approved and followed, in relation to the liability of telegraph companies for negligent delay of messages received after office hours.</p> <p>2. Damages — Pleading—Matter of Aggravation. — Where a mother sued for damages for mental anguish resulting from negligence in the delivery Of a telegram that should have brought her in due time to the bedside of her dying son, she was entitled to allege and prove that the son, just before dying, frequently called for her and desired to see her, as a knowledge of this fact increased her own suffering.</p> <p>3. Damages for Mental Anguish — Excessive Verdict. — By reason of the negligence of a telegraph company in the delivery of a message, a mother did not reach the bedside of her son until a few minutes after his death, instead of twenty-four hours earlier. Meld, that a verdict for $5000 damages for mental suffering occasioned thereby was excessive.</p>

<p>Damages for Mental Anguish — Excessive Verdict. — By reason of the negligence of a telegraph company in the delivery of a message, a son failed to reach the bedside of his dying father until after the father became unconscious. Held, that a verdict of $4750 in favor of the son for the mental anguish caused was excessive.</p>

<p>Damages in Shipment of Live Stock — Stipulation for Notice of Claim Reasonable, when. — Plaintiffs shipped cattle over defendant’s railway, under a written contract, stipulating that as a condition precedent to his right to any damages he would, within one day after delivery of the cattle at the delivering station, and before their removal therefrom, etc., give written notice of his claim for damages to the station agent of the company at such point of delivery, or to one of its general officers, etc. Being sued for damages occasioned in the shipment of the stock, the railway company pleaded such contract and stipulation, alleging that it had a station agent at the point of delivery, and that plaintiffs knew and saw such agent at the time of delivery, and yet failed to give the notice stipulated for. Plaintiffs’ demurrer to this part of the answer, on the ground that such stipulation was unreasonable, contrary to public policy, and void, was sustained by the trial court. Held, the court erred in sustaining the demurrer. It should have been left to the jury to determine, under such pleadings and the evidence adduced, whether such stipulation as to notice was unreasonable or not. The validity of such stipulation depends on the circumstances of each particular case.</p>

<p>1. Stale Demand — Coverture — Tacking Disabilities. — A married woman asserted by suit an equitable claim to land, and in reply to defendant's plea of laches and stale demand, pleaded her coverture. The cause of action accrued first to her ancestor in his lifetime, and by analogy to the statute of limitation which prohibits the tacking of disabilities, laches did not at his death then cease to be imputed to her because of her coverture.</p> <p>2. Parties to Suit Annulling Judgment — Guardian.—There was a. judgment against II. in his representative capacity as guardian of W., foreclosing a vendor's lien on land deeded to H. as such guardian, and under this judgment the land was sold. W., after coming of age, sued the purchasers for the-land, alleging such judgment find sale to be void. Held, thatl-I. was not a necessary party to this latter suit.</p> <p>3. Evidence — Deed — Common Source of Title. — A defendant is not entitled to exclude from evidence, for want of due proof of its execution, a deed offered by plaintiff, where it is shown by abstract of title filed under the statute in that suit by the defendant, and offered in evidence by the plaintiff, that such deed is also a link in defendant’s chain of title, and a common source of title of both parties.</p> <p>4. Guardian’s Sale of Ward’s Land Voidable, when. — Where under a judgment in a suit against one wrongfully acting as guardian there was a sale of the minor's land for about one-fourteenth of its value, such minor was held entitled by suit within a reasonable time after attaining his majority to set aside such proceedings and recover the land from the purchaser at such sale and his vendees</p>

<p>Homestead Exemption — Place of Business — Double Calling. — The Constitution exempts not only “a lot,” but “lots,” as a place to exercise the calling or business, of the head of a family, and does not restrict this calling or business to any single branch or department. Adjacent lots may be exempt as a place to carry on the hotel and livery business, if such be the business of the head of the family.</p>

<p>1. Divorce in Another State — Jurisdiction.—It is well settled that a judgment of divorce granted in another State or Territory can be collaterally attacked by showing that the court which granted it was without jurisdiction. Such .divorce, where neither of the parties reside in the State granting it, is an absolute nullity.</p> <p>2. Void Divorce — Community Property — Rights of Second Wife. A woman who marries a man holding a divorce, without knowing that such divorce is void, is entitled to a partnership or community interest in property jointly acquired during the time she lives with him as his wife, and she can assert her right thereto against the lawful wife and her children after the husband’s death.</p> <p>3. Same. — It would seem that the right of such second wife to a partnership interest in joint acquisitions might exist even though she knew her marriage was not legal.</p>

<p>1. Evidence — Party to Suit — Transaction with Decedent. — Plaintiffs sued for land in their right as heirs, making M. and others parties defendant. His codefendants also impleaded M. on his warranties to them. M. filed a disclaimer in the suit, but this did not render him competent to testify for the other defendants as to transactions by him with deceased ancestors of plaintiffs constituting a defense to the action.</p> <p>2. Same — Warrantor not Competent Witness, when. — Where a warrantor has been made a party to the suit in such way as to render the judgment binding upon him in favor of his vendees, he is a party thereto within the meaning of our statute which prohibits parties from testifying against the heirs or legal representatives of decedents.</p> <p>3. Married Woman — Verbal Contract for Location of Land Certificate. — A married woman can make contracts to acquire land by the location of a land certificate which is her separate property, without acknowledging the same in the manner required for the conveyance of her real estate.</p> <p>4. Cotenants — Recovery Limited, when. —While one tenant in common can recover from a stranger the whole property, he can recover from his co-tenant in possession only the interest he really owns; and the rule, it seems, applies even as to the interest of another cotenant defendant who had disclaimed.</p> <p>5. Deed by Agent in his own Name. — Where a deed purports to convey in the name of the one who makes it, and does not recite any agency, it may nevertheless be held to pass whatever right the person making it had to convey, whether as agent or principal.</p> <p>6. Cotenant — Rents.—Before one tenant can make his cotenant liable to him for the use of the common property, he must show that he has been refused joint occupancy.</p>

<p>1. Pleading Note — Variance. — The note sued on was described in the pleading as payable to “the bearer or E. IT. & W. D. Wheeler.” As offered in evidence it was payable “to bearer E. EL or W. D. Wheeler.” Held, there was no material variance.</p> <p>2. Same — Exhibit—Surprise.—Where the note sued on was attached to the original petition, and in an amended petition, on which the case was tried, was referred to as “ attached thereto,” though not in fact attached, the mistake in describing the note as above stated could not be a ground of surprise to the defendant.</p> <p>3. Assignment of Error. —That “the court erred in holding that the notes sued on are secured by a vendor’s lien upon the land in controversy,” is an assignment of error too general to be entitled to consideration.</p>

<p>1. Evidence — Auditor’s Report. — An auditor’s report is conclusive only as to the items not excepted to. It eliminates from the contest the undisputed items on either side, and narrows the issue to the point actually in dispute.</p> <p>2. Evidence — Books of Account. — Before books of account are admissible in evidence, it must be shown that they contain the daily record of the business of the person for whom they are kept, as it transpires from day to day between himself and customers, and that the entries therein are original entries, made contemporaneously with the transaction of the business which they are intended to evidence.</p> <p>3. Practice on Appeal — Statement of Facts. — Where error is assigned as to the admission or exclusion of evidence, the appellate court should be furnished with a full statement of the facts proven on the trial, or at least the bill of exceptions should show with certainty the materiality of the evidence when considered in connection with all that has been proved upon the trial.</p> <p>4. Parol Evidence to Vary Writing. — Where there is a written contract. parol evidence of a contemporaneous matter appearing to be part of the same agreement is not admissible in the absence of an allegation of fraud, accident, or mistake.</p>

<p>Error from Eastland. Tried below before L. W. Campbell, Esq., Special Judge.</p>

<p>1. Judgment Against Nonresident — Presumptions Indulged. — In this State the same presumptions as to jurisdiction and regularity of proceedings are indulged in favor of the judgment rendered against a nonresident on attachment and service by publication, as in favor of such judgment when there has been personal service.</p> <p>2. Same — Failure to File Statement of Facts. — The failure to ñle a statement of facts after the court had obtained jurisdiction by attachment and rendered judgment on service by publication, could not render the judgment void, this provision of the statute being intended to secure to the nonresident defendant the benefit of a review of the judgment in a direct proceeding.</p> <p>3. Unorganized Counties —Act of 1866 Attaching Wichita for Judicial Purposes not Repealed. — The Act of November ti. IS ti. attached Wichita to Montague for judicial purposes, and provided also that it should become attached to Clay when the latter organized; and this latter provision was not repealed by the Act of August 10,1870, attaching Wichita to Montague, and the act amendatory thereof of February 13,1884, which failed to attach Wichita to any organized county.</p> <p>4. Case not Followed— Implied Repeals. — The case of Holden v. The State, 1 Texas Court of Appeals, 239, holding that said Act of 1866 was impliedly repealed by the subsequent legislation, is not followed. When a general revising act expressly repeals all inconsistent acts and parts of acts, this implies that if there are parts of former acts (as in this case) not embraced in the new act, and not inconsistent therewith, they are not repealed.</p> <p>5. Proceedings In Rem — Foreclosure Sale by Commissioner.— When the District Court has obtained jurisdiction of the property in controversy by a proceeding substantially in rem, it has the power, in order to execute the decree of foreclosure, to designate some officer to make the sale at the time, place, and in the manner usual in foreclosure sales in this State; and a sale made accordingly is not void, as would be an ordinary execution sale made in violation of a mandatory statute.</p>

<p>Error from Wichita. Tried below before -Hon. P. M. Stine.</p>

<p>Appeal from Tarrant. Tried below before Hon. R. E. Beckham.</p>

This appeal was first decided by the Commission of Appeals, and their report adopted by the Supreme Court on the 24th day of May, 1892. Afterward a motion for rehearing was granted and the case transferred to the Court of Civil Appeals, Second District, where the opinion on rehearing was rendered.

<p>Appeal from Eastland. Tried below before J. E. Cockrell, Esq., Special Judge.</p>

<p>1. Possession as Notice. — Actual possession of land operates as notice of the existence of an unrecorded deed under which the possessor claims title.</p> <p>2. Married Woman’s Deed — Defective Acknowledgment. — When the certificate of acknowledgment of a deed made by a married woman to convey land which is her separate property fails to state that the officer explained the deed to her, such deed can not unaided serve as a basis of title, either legal or equitable.</p> <p>3. Foreclosure of Vendor’s Lien — Necessary Parties. — Where there is a suit to foreclose an implied vendor's lien on land (neither the notes given for the purchase money nor the deed executed to the maker of the notes expressly retaining the lien), a third person then in actual possession of the land under deed from the maker of the notes holds the legal title, which remains unaffected by such foreclosure proceedings unless such third person is made a party thereto.</p> <p>. 4. Estoppel by Judgment, Effect of. — A deed by a married woman was defectively executed, and she was afterward sued on the notes given to her for the purchase money and endorsed by her, and in that suit a vendor’s lien was foreclosed against the land, with sale thereunder. Held, that if the effect of such judgment was to validate the defective deed, as against her, by estoppel, then such estoppel would inure in favor of a subsequent purchaser of the land from her vendee in such deed, as well as in favor of the purchaser at such foreclosure sale.</p>

<p>1. Pleading — Allegation and Proof — Special Exception. — Attempts to take advantage of a defective pleading by objections to the admissibility of evidence are not regarded with favor; and where no special exception has been urged against such defect, the pleading will, in this respect, be liberally interpreted.</p> <p>2. Damages — Measure of, for Grass Consumed. — Where plaintiff sues for damages occasioned by permitting stock to enter his pasture and depredate thereon, the measure of his damages, as to the grass consumed, is its value at the time of its consumption, with legal interest thereon, to be computed to the time of trial.</p> <p>3. Charge of Court — Harmless Error. — An error of omission in the charge of the court, where no special instruction was asked covering such omission, and where it does not appear from the record that the jury were misled by such error, will not be ground for a reversal of the judgment.</p>

<p>Error from Haskell. Tried below before Hon. J. V. Cockrell.</p>

<p>1. Survey — Presumption.—In the absence of proof to the contrary, the presumption is that the survey by virtue of which land is patented or appropriated was actually made on the ground, as required by law.</p> <p>2. Boundary Lines — Construction of Calls. — The rule that a call for a line or corner of an older survey will prevail over a call for course and distance is not applicable to an unmarked line or corner which can only be found by running course and distance from some other marked line or corner or well known object.</p> <p>3. Patent not Void, when. — A patent issued on a pre-emption is not void because the affidavit therefor was made before a notary public, instead of a clerk of the District or County Court, as required by the Act of 1873 and the amended Act of 1881.</p>

<p>1. Limitation — Five Years Statute — How Pleaded by Warrantor. — A warrantor impleaded by the defendants may present the defense of limitations so as to protect his vendees, but when he relies upon their possession and not his own he should plead the statute in that form. A plea that he had been in possession five years is not sustained by proof that his vendees had such possession.</p> <p>' 2. Same — Plea Must Allege, what. — It may be doubted whether a plea of the five years statute which nowhere contains an allegation that defendants claimed under a deed registered, or that they paid the taxes for the requisite time, would be sufficient to sustain a judgment based upon this statute, although no exception was made to it.</p> <p>3. Proof of Heirship — Fact Case. — See proof of the heirship of one who fell at Goliad held sufficient, despite a discrepancy in spelling the family name; also other proof of heirship by affidavit and by recital in a deed, held insufficient.</p>

<p>Rents — Enclosure of Small Tract within Large Pastúre. — Where the owner of several tracts of land, in enclosing them within one large enclosure,, necessarily encloses a tract belonging to another, this is an appropriation of such other, person's land, and the pasture owner is liable in trespass to try title for rental value of the tract thus enclosed, although the pasture fence contains gates every three miles, and the pasture owner disclaims title and possession of such tract. ■ ...</p>

<p>1. Deed as Escrow. — A deed can not be delivered to the grantee as an escrow to take effect on a condition not appearing on its face.</p> <p>2. Deed — Surrender of as Revesting Title by Estoppel. — A voluntary surrender or cancellation of a deed will not operate as a retransfer of the title; but the cases are conflicting as to whether such surrender or cancellation of an unregistered deed will estop the grantee and those subsequently claiming under him.</p> <p>3. Trespass to Try Title — Pleading in Avoidance by Plaintiff.— In an action of trespass to try title, where the defendant pleads specially his title and asks affirmative relief, and plaintiff has matter in avoidance, the proof of it will not be admitted, and if admitted will not authorize a recovery by virtue thereof, in the absence of its being alleged in the plaintiff’s pleadings.</p>

<p>1. Claimant’s Bond — To whom Payable. — That a claimant’s bond was made payable to plaintiff in the attachment jointly with the plaintiffs in other writs of attachment then levied by the sheriff on the same property, instead of being made payable to them jointly and severally, held not objectionable, though the bond was taken prior to the present statute which prescribes such form.</p> <p>2. Same — Partnership as Surety. — The signature of a partnership or firm name as surety on a claimant's bond is valid, though the names of the individual members be not signed.</p> <p>3. Bond — Filling Blanks After Signing. — If the sureties on the claimant's bond authorized or understood at the time they signed and delivered it that the blanks in the bond were thereafter to be properly filled up with the names of the plaintiffs in the attachment, etc., there can be no serious question of its legality.</p> <p>4. Claimant’s Bond with one Surety — Common Law Obligation. A claimant’s bond with but one surety is not valid as a statutory bond, but will be sustained as a common law obligation.</p> <p>5. Same — Right of Attaching Creditor. — As such bond will not authorize a summary judgment under the statute against the one surety, the plaintiff in the attachment may proceed against the sheriff for taking an imperfect statutory bond, without having first sued the parties to the claimant's bond on the common law liability created thereby.</p> <p>6. Same — Right of Sheriff to have Other Property Exhausted.— Though a sheriff may have taken an insufficient claimant's bond, whereby property attached by plaintiff's is lost to them, yet he is not liable for such loss if plaintiffs then had an attachment lien on other property of their debtor, and through their own negligence failed to realize their debt therefrom.</p> <p>7. Same — Measure of Damages. — The measure of damages against the officer in such cases is that which prevails in actions generally against officers for neglect or failure of duty; that is, the actual injury sustained by the plaintiff by reason of the neglect or failure.</p> <p>8. Limitation — Suit Against Sheriff. — A sheriff can not be called on by the plaintiff in attachment to deliver attached property until such plaintiff has obtained judgment against the debtor in attachment, and therefore until such time limitation will not run in the sheriff's favor as against a suit by such plaintiff for damages caused by the sheriff's taking an insufficient claimant's bond, whereby the attached property is lost.</p>

<p>1. Evidence — Opinion of Witness as to Damage. — 41 How much, in your opinion, were these beef cattle damaged per head by reason of the fact that they remained in the muddy pens of the railway company thirteen hours, on a cold, damp day and night, without food from early Friday morning until about 9 o’clock Saturday night?” held, to be an improper question, as calling for the opinion of the witness.</p> <p>2. Same — Jury to Estimate the Damage. — As to what is the effect of a given kind of treatment upon an animal, either in reducing or increasing its weight, or in injuring or benefiting its appearance, is a proper matter of opinion to be stated by witness to the jury; but as to whether these several items constitute the legal damage in a given case, and the amount of such damage, the jury must decide under proper instructions from the court.</p> <p>3. Railway Company — Authority of Station Master. — Where a station master of a railway company verbally agrees with a shipper to furnish an engine and cars at a given time, it is not necessary for the shipper, in a suit against the company for damages resulting from a failure to so furnish the cars, to allege and prove that such station master has authority to make such verbal agreement.</p> <p>4. Pleading — Failure of Consideration — Cattle Shipping Contract. — Where plaintiff sues a railway company for damages occurring in the shipment of live stock, and desires to avoid a stipulation in the written contract of shipment releasing all damages that may have occurred from delay in receiving the stock, furnishing cars promptly, etc., on the ground that such release is without consideration, he should plead such want of consideration under affidavit, as required by article 1265 of the Revised Statutes.</p> <p>5. Same — Written Notice of Claim of Damage — When Reasonably Required. — Where such shipping contract contains a stipulation that the shipper will give written notice of his claim of damages to the station agent at point of delivery before the stock are removed, etc., and the railway company pleads such stipulation, alleging that its station agent there was known to the plaintiff (shipper), and was easily accessible, it then becomes a question to be submitted to the jury, and to be decided by them under all the facts of the case, as to whether such requirement of written notice was reasonable or not.</p>

<p>Practice in Appellate Court — Pleadings Necessary in Cases Appealed from Justice Court, when. — This case was appealed from the Justice to the County Court; but as there is nothing in the transcript showing what were the pleadings, oral or written, or the issues tried, in either court below, it is impossible to pass upon errors assigned to charges given or refused, or to the admission or rejection of evidence at the trial had in the County Court.</p>

<p>Injunction Bond— Pleadings Necessary to' Recovery' Thereon.— Where property is levied on to satisfy a judgment, and one who is not a party to the judgment obtains an injunction restraining the sale of the property, the plaintiffs in the judgment are not entitled, upon a dissolution of the injunction, to recover against the principal and sureties in the injunction bond the amount of their judgment then remaining unpaid, without alleging damage or injury resulting from the grant of the injunction.</p>

<p>1. Plea Denying Incorporation must be by Affidavit. —Where an incorporated city sues as such, it is not error to overrule an unsworn plea denying that it is duly incorporated. ' "</p> <p>2. Occupation Taxes — Interest. — Taxes are distinguishable: from ordinary debts as to hearing interest; and where an action is given'for taxes, interest is not recoverable unless the statute gives it. Telegraph Co., v. The .State, 55 Texas, 314.</p> <p>3. Municipal Corporation — Power to Sell for Taxes — Cases Followed. — The cases of Cave v. City of Houston, 65 Texas, 622, and Howard v. Mayor, 59 Texas, 77. support the power of a city to maintain suit for the recovery of taxes.</p> <p>4. Occupation Taxes — Criminal Prosecution no Bar to Civil Suit. — A plea to a civil suit for recovery of occupation taxes, alleging that a criminal prosecution has been instituted against defendant on account of the nonpayment of these same taxes,and afine adjudged therein against defendant, from which an appeal has been taken which is still pending, presents no bar to the civil action, which is cumulative; it not being shown that the criminal prosecution has resulted in the collection of the taxes.</p>

<p>1. Parties to Suit — Trustees and Beneficiaries. — A trustee to whom goods have been conveyed for the benefit of certain creditors, and who is in actual possession of them at the time they are taken under attachment by other creditors, may sue for the taking and conversion of the goods without joining with himself the beneficiary creditors under the trust deed.</p> <p>2. Measure of Damages — Attaching Creditors. — The measure of damages which the trustee may in such case recover for the taking and sale of the goods under attachment is their full value, without reference to the amount of the debts secured by the deed of trust.</p> <p>3. Charge of Court Without Evidence. —It is error in the court to charge the jury as to the joint liability in tort of two defendants, upon the theory that they acted in concert and under agreement in committing the tort, when there is no evidence to sustain such theory. See opinion for proof not tending to show concert of action between attaching creditors.</p> <p>4. Practice — Withdrawal After Trial Entered Upon. — It is not an abuse of discretion for the court to permit plaintiff, after the trial is entered upon and part of his evidence given to the jury, to withdraw his announcement of ready, because of a variance between the description of a trust deed in his pleadings and the instrument itself as offered in proof.</p> <p>ON MOTION FOR REHEARING.</p> <p>5. Practice on Appeal — Remittitur. —An offer by appellee (plaintiff below) to remit part of the damages recovered, and to dismiss as to one of two appellants, comes too late in a motion for rehearing on appeal.</p>

<p>1. Practice on Appeal —Want of Final Judgment. — However the attention of the court be called to the fact, if the record discloses that no final judgment has been rendered in a cause, the appeal must be dismissed for want of jurisdiction.</p> <p>2. Final Judgment. — Several causes are shown to have been consolidated in the trial court. A judgment in such consolidated case, to be final, must dispose of the litigation as to all the parties in such suit. See example.</p> <p>3. Certificate of Clerk to Transcript. — In an appeal taken from a judgment in a case in which several cases had been consolidated, the clerk in his certificate to the transcript omitted several of the cases, while purporting to give all the cases. Such defect appearing, was ground for striking the transcript from the files of the court.</p> <p>4. Waiver. — That the Supreme Court permitted the transcript to be filed, and the parties had agreed thereto, after the time required by law, did not preclude action upon defects in the transcript requiring its dismissal.</p>

<p>1. Authority of Officers Presumed. — It is well settled in this State that the acts of an officer assuming to discharge an attribute of his office are presumed to be within the scope of his authority unless the contrary be shown.</p> <p>2. Construction of Instrument. — In 1842 Seguin, styling himself President of the Corporation of San Antonio, executed an instrument to Dolores Hernandez touching certain city property described therein, allowing her to make proof of the loss of her original grant, by persons who had seen it, and after such proof was made continuing: “I extend the present that it may serve helas á protection in the meantime. I extend it to her in the same manner as to all other persons who find themselves in the same condition as the present case, according to the disposition made by the corporation of this city on the 2d day of the current month.” What such disposition was is not shown. There were no granting words. Held, such instrument conveyed no title, and no recovery could be had under it in trespass to try title.</p>

<p>1. Quitclaim — Bona Fide Purchaser. — A quitclaim vendee can not be an innocent purchaser, because his deed serves him with notice that he is only purchasing the chance of title — such title as the vendor had, and no more. Such notice, or any notice of the fact that there is a better title, excludes good faith from the transaction.</p> <p>2. Same — Circumstances of Execution of Deed. — The vendee, in correspondence with his vendor, agreed to take a quitclaim. He prepared a deed with special warranty, thinking it to be a quitclaim. It was signed. In subsequent litigation, the vendee asserting title as a bona fide purchaser against equitable owners of the greater part of the land, upon the issue whether the deed was a quitclaim, held, that it should be construed by the facts attending the transaction — his letters to his vendor, his actual information, his agreement for a quitclaim, the inadequacy in price, etc.</p> <p>3. Mistake. — The vendee knowing the facts, and agreeing to take a quitclaim, but by mistake taking a deed with special warranty “by, through, or under” the vendor, can not claim the benefit of his own mistake, and be exempt from notice imparted by the quitclaim.</p> <p>4. Unpaid Purchase Money — Warranty.—In an action of trespass to try title against parties in possession under warranty deeds executed to them by one affected with notice of a superior equity, the warrantor was made party by the defendants. It appeared that the defendants had paid but a part of the purchase money, and had executed their negotiable notes for the remainder. It appeared that their warrantor still held these notes. The defendants being innocent purchasers recovered the land, and the plaintiffs showing title against their vendor were entitled to recover of the defendants the unpaid purchase money. They would be liable also upon their payment of the notes after notice of the superior title in the plaintiffs.</p>

<p>1. Injunction Against Judgment Enforcing Landlord’s Lien — Pleading. — See allegations held sufficient on general demurrer, in a petition seeking to enjoin a decree foreclosing a landlord’s lien, on alleged satisfaction of the judgment or waiver of the lien on part of plaintiffs in the judgment of foreclosure.</p> <p>2. Waiver of Landlord’s Lien after Decree of Foreclosure. — The acceptance by a landlord of another tenant as lessee, or as the party to whom the landlord should look for payment, such party being bound so to do in law or by contract, amounts to a waiver of the landlord’s lien for future rents, although after decree enforcing such lien. Circumstantial evidence tending to show such waiver is competent.</p> <p>3. Immaterial Error in Charge. — Where a charge contains an erroneous clause, hut which could not have influenced the verdict under the testimony, such error is immaterial. See example.</p> <p>4. Charge Properly Ref used. — On issue of waiver of the lien, a charge was properly refused, that the mere consent of the landlord to the assignment of the term would not establish a waiver of the landlord’s lien, as objectionable because upon weight of evidence. Besides, there was other testimony to such waiver.</p> <p>5. Satisfaction of Claim for Rent. — A landlord having leased premises for a term of years, and after the failure in business of the lessee, accepting rents that became due thereafter from another, and the obligation of another tenant for the rents to become due for the balance of the term, can not pursue his original lessee upon the lease contract and enforce payment of rents to become due out of the assets of such original lessee upon the premises by distress proceedings.</p>

<p>1. Burden of Proof — Limitation—Charge.—In an action of trespass to try title, when the defendants pleaded limitation and there was testimony tending to support it, the court having charged the jury that the burden of proof was upon the plaintiff's, it was error to refuse a charge asked by the plaintiffs that as to the defense of limitation the burden was upon the defendants pleading it.</p> <p>2. Possession Under Junior Title. — Possession under a junior or inferior title, to defeat the superior title, must be actual, and only such part of the premises as may be in actual possession can be claimed by it. Mere enjoyment is not sufficient. The superior title draws to it the constructive possession when there is actual possession under it.</p> <p>3. Adverse Possession Under Statute of Ten Years. — To set the statute of ten years limitation in operation, the possession must be an actual, visible appropriation of the land for the full period of ten consecutive years, under claim of right adverse to the true owner.</p> <p>4. Possession as Against Tenant in Common. — Possession by one joint tenant as against another, to be adverse, must not only be an ouster of such other, but of such a nature as to give notice of the intention to claim the whole.</p>

<p>1. Immaterial Issue. — Sureties made defense that they were induced to sign the note sued upon by the false representation by the principal and the payees that it was secured by a chattel mortgage upon a flock of sheep. The jury sustained the plea. Held, upon a judgment for the defendants’ sureties, such judgment could have been rendered upon such plea, and that it could not be assumed that the court necessarily had found upon another hypothesis, viz., that the sheep had been mortgaged, and the security lost by negligence of the plaintiffs.</p> <p>2. Same — Parol Testimony. — It was immaterial that parol testimony may have been excluded to show upon what debts the sheep were security, the jury having found that the sureties were induced to sign upon the fraudulent and false representations that the note had been secured by the chattel mortgage.</p> <p>3. Practice — Failure to Move for New Trial. — In absence of a motion for new trial, the Andings of fact by the jury will not be revised on appeal, for want of testimony to sustain them.</p> <p>4. Care and Diligence by Creditor Holding Security. — When property is pledged to the creditor by mortgage or otherwise to secure a debt, and he has the right to control the property, he becomes a trustee for the surety as well as the principal, and he rests under the same obligations that other trustees do under like circumstances — reasonable care and diligence for the preservation of the property, to the end that the debt be paid. Grounds of loss were that the creditor had failed to register the mortgage, whereby the property became subject to other liens, and had permitted part of the property to be shipped off and sold. These would release the surety.</p> <p>5. Assignments oí Error. — Both the statute ancl the rules require that assignments of error shall specifically point out the alleged error. The fact that an assignment recites the nature of the several defenses interposed, and avers that the defendants (appellees) had assumed the burden of proof, does not relieve an assignment from the conditions of the statute when the assignment in effect merely urges that the judgment is not sustained by the testimony. See example.</p>

<p>Statement is given in opinion.</p>

<p>1. Contract by Railway Company to Furnish Cattle Cars. — We know of no law prohibiting a railway company from contracting with cattle owners to furnish cars at an agreed time and place on the line of the road to be used by the owners of the cattle in theirtshipment. The refusal to permit shippers to use cars so furnished, and resulting in damage, gives cause of action.</p> <p>2. Same — Excuse.—In absence of.such contract to furnish cars, the defense would be allowed that the delay was caused by an unusual and unprecedented accumulation of live stock for shipment at the time and place.</p> <p>3. Case in Judgment. — Contract by railway company to furnish stock cars at a given time and place. The cars wero at the place, and on the day specified the shippers tendered the cattle for shipment on the cars. The use of the cars was refused, on alleged ground that other cattle had priority in time. Held, the refusal was a breach of the contract, and for delay resulting, action would lie.</p>

The facts are given in the opinion, except as to the assignment of error concerning the admission of the testimony of witness Semlieges. Said witness for the defendants testified: “I was present at the last trial of this case, when Frank Paschal was examined as a witness. He is now dead. I recollect something of what Paschal testified to on that trial.

<p>1. Immaterial Error — Trespass to Try Title by Tenants in Common. — Action in trespass to try title by two tenants in common. Title of one was clear, that of the other disputed; defendant exhibited no title. Meld, on appeal by defendant from a judgment for the land in favor of both the plaintiffs, that inasmuch as one tenant in common could recover against a trespasser, it was immaterial whether both plaintiffs showed title or but one.</p> <p>2. Classification of Public School Lands. — The order of the Commissioners Court of Tom Green County approving the appraisement of the public school lands by the county surveyor under the law of 1881, if adopted by the Land Board as a basis for its action, was perhaps a sufficient compliance with the third section of the Act of April 12,1883.</p> <p>3. Validating Act of March 12, 1889. — The validating Act of March 12, 1889, is not unconstitutional, or forbidden by section 4, article 7, of the State Constitution, in granting relief to purchasers of public school lands.</p> <p>4. Case Adhered to. — Barker v. Torrey, 69 Texas, 7, adhered to.</p> <p>5. Evidence Competent — Irregular Purchase of Public School Land. — To exclude the application to purchase and the award of the Land Board because there was no sufficient classification of the land (if such was the fact), or because the sale was not made at the place required by law, would be to deny to the holder of such land the right to show that the purchase, though irregular, was validated by said Act of March 12, 1889.</p> <p>6. Same. — Whether a description of the land given in the application to purchase was in conformity with the rules and regulations of the Land Board, is a question of fact, and not of law to be decided by the court upon the admissibility of evidence.</p> <p>7. Purchaser of School Land in Good Faith. — The trial court correctly interpreted the statute in question in instructing the jury that if the purchaser had reasonable ground to believe and did believe that the description of the land contained in his application to purchase was true, then he acted in good faith.</p> <p>8. Good Faith as Used in the Validating Act. — The words good faith, as used in said law, signify that the State will shield and protect the honest purchaser of its lands, though he may have made a mistake in the description given thereof.</p> <p>9. Agricultural Lands — Pasture Lands. — Upon charge of fraud in a purchase of public school lands, represented to be pasture lands instead of agricultural, evidence of the quality of soil adjoining, and cultivated, is competent; also 'the kind of seasons prior to and at the time of the application to purchase.</p> <p>10. Charge. — It is ordinarily sufficient for the charge of the court to inform the jury what the issues for their determination are, without attempting to explain what are not issues. Such attempts may impress upon the jury the belief that the court entertains certain views as to the weight of evidence, and so be upon the weight of testimony. See example.</p> <p>11. Burden of Proof. — The burden of proof lies upon the purchaser to show the facts placing his claim under the relief law, and to show that the purchaser acted in good faith in his transactions constituting his purchase.</p>

<p>1. Highway by Prescription. — Before a highway can he established by prescription, it must appear that the general public, under a claim of right and not by mere permission of the owner, used some defined way, without interruption or substantial change, for the longest period of limitation prescribed by the statute.</p> <p>2. Permissive Use of Way. — Where the use is merely permissive, there is no basis on which the right of way by prescription can vest. The use of vacant unenclosed land for twenty years by the public in passing and repassing will give no prescriptive rights.</p> <p>3. Limitation Against Ofvner. — The claim against a county for damages to land from its unlawful use as a highway is barred in two years from the time of its actual use by the road overseer or hands in opening up or working same.</p> <p>4. Condemnation for Public Road. — Condemnation proceedings, when notice is not given the owner of the land, will not affect the rights of such owner.</p> <p>5. Remedy of Owner — Cause of Action. — The owner of the land taken without legal proceedings fora public highway may be either in an action to recover the land or by an action for the value of the land taken.</p> <p>6. Limitation. — The exceptions of coverture and infancy in the statute of limitations apply to damages against the county for opening and using public highway over the lands of such parties.</p>

In addition to facts stated in the opinion, the record shows the warranty which Aultman & Co. authorized their agents to make to purchasers of machinery. This warranty, while not signed by the parties, was exhibited by the agents to the purchasers, and a printed copy thereof delivered to them at their purchase.

<p>1. Proximate Cause — Case in Judgment. — Action by widow for damages for negligently causing the death of her husband. She had sent her two sons to the railway depot to bring their father home, expecting him to arrive as a passenger, intoxicated. The sons were ordered from the depot by the agent in charge. The husband arrived on the train after the boys had left, intoxicated, but knowing what he was doing. He left the train, deposited his baggage, and left the depot. Subsequently he returned, went to sleep upon the track, and was run over by another, a freight train, and killed. In such case it can not be held that the driving of plaintiff’s sons from the depot, preventing them from meeting their father and conducting him home, was the immediate and proximate cause of his death, and that therefore the railway company was liable in damages for his death.</p> <p>2. Remote Cause. — The wrong in driving the boys from the depot was too remote from the injury to create liability.</p> <p>3. Duty to Passenger. — When a passenger has safely alighted from a train and left the depot at his destination, the railway company does not owe him any further or peculiar duty from the fact that he may be intoxicated. See facts.</p> <p>4. Care by Railway Company to Avoid Injury Upon the Track. If a person lying asleep upon a railway track is seen by those managing an approaching train in time, and they are aware of his danger, and by ordinary care they can avoid injury, they are bound to do so.</p> <p>5. Duty of Railway Company to Keep Lights, etc. — It is the duty of a railway company to keep lights at proper times at its depots, approaches, and other places connected therewith, which are likely to be visited by passengers and persons lawfully on the premises; and a negligent omission of such duty causing injury would entitle the injured party, without fault on his part, to damages. But see facts where such duty was not shown.</p> <p>6. Charge to Find for Defendant. — Where the evidence shows that the death for which damages are claimed was attributable to his negligence, without fault on the part of the defendant or its employes, it was the duty of the court to instruct the jury to find for the defendant.</p>

<p>1. Jurisdiction of District Court. — The clause in the Constitution of the State (article 5, section 8) prescribing that “said courts (District Courts) and the judges thereof shall have power to issue writs of habeas corpus in felony cases, mandamus, injunction, certiorari, and all writs necessary to enforce their jurisdiction,” and the legislation on the subject, do not confer upon said courts a supervisory control over Justice Courts, as was given by the Constitution of 1845 and that of 1869.</p> <p>2. Writ of Prohibition. — The District Courts of the State, under the present Constitution of the State, do not have jurisdiction to grant and perpetuate a writ of prohibition against proceedings about to be had in a Justice Court.</p>

<p>1. Second Suit in Trespass to Try Title. — The right to bring a second suit in an action of trespass to try title, pending at the adoption of the Revised Statutes, is assignable, and passes to the vendee of the plaintiff in the first suit.</p> <p>2. Alien Could Take Land Under a Deed in the Republic of Texas. — A deed for land in Texas executed in Mexico, May 25,1836, to an alien, conveyed to such alien title to the land, that could only be defeated by some proceeding in the nature of office found. No such proceedings having been taken, such title is a defense in an action by the heirs of the original grantee of the land against a tenant in possession.</p>

<p>1. Plea Denying Agency Must be Under Oath. — The allegation in the petition that the contract (for drover's return passage) declared on was executed by or on behalf of the defendant, not having been denied by the defendant under oath, such contract will be considered its own. In the contract discussed the defendant was not named, and it was made by an agent of another.</p> <p>2. Limited Liability of Connecting Railway. — A railway company can stipulate for its nonliability for the wrongful act or omission of any other connecting road on the route of through shipment.</p> <p>3. Measure of Damages — Breach of Contract to Carry. — The breach of a drover’s return passage occurring on a line on the route not bound by a limited liability contract, entitles the holder of such ticket to actual damages. compensating fdr money necessarily paid out for fare and hotel expenses, and loss of time as consequence of such breach.</p> <p>4. Tort upon Connecting Line. — The defendant company, in the contract declared upon, had restricted its liability for tort to such as might be done upon its own line. It was not liable for a tort upon a connecting line not bound by such contract.</p>

<p>The facts will be found in the report of the former appeal, in 63 Texas, 274-286.</p>

<p>1. Notice that Land is Community Property — The survey granted to Mumford House, being one league and one labor of land, was sufficient to put vendees of House on notice of the equitable rights of the plaintiff in the land. Such a grant could only be made to the head of a family, and that implies marriage and a wife.</p> <p>2. Evidence to Show Settlement with Heir of Deceased Parent. This suit was by the daughter of House by a deceased wife. House had sold the community land in controversy, after the death of his wife, and without administration upon her estate. To prove a settlement by the father with the daughter, defendants were properly allowed to show the chain of title to a tract of land in Ellis County to the father, and deed from the father to the daughter, after the death of his wife, to 200 acres of that land, and sale of the 200 acres of land by the daughter and her husband to a third party. The deed from the father to the daughter recited, “ it being her distributive share of my estate.”</p> <p>3. Sale of Community by Survivor. — The daughter owned an equitable interest in the land, of which the father held the legal title for himself and the heirs of his deceased wife, subject to community obligations. In such case, the survivor may sell the property for the purpose of discharging community debts; but if he sells without authority, the heirs of the deceased parent would be entitled to recover one-half, less the value of such property as they had received from the surviving parent. The conveyance to the daughter in this case must be held to be prima facie in discharge of such obligation.</p> <p>4. Heirs of Deceased Parent, how Concluded. — Though defendants bought with notice of the daughter’s equitable interest as heir of her mother, she will not be permitted to retain the proceeds of the settlement for that interest, and recover the same of defendants, without restoring such proceeds. Although her interest in the De Witt County lands may not have been conveyed in the manner prescribed by statute for the conveyance by married women, our decisions are to the effect, that when heirs receive property amounting to their share of the community, their equitable title to the remainder is discharged.</p> <p>5. Deed without Warranty Passes After-acquired Title. — A deed with restrictive warranty against all persons claiming under the grantor, will convey after-acquired title.</p>

<p>1. Damages for Mental Anguish. — The suit was for damages for injury to a museum, delivered to the defendant for shipment to Dallas for exhibition at the fair, and loss of profits by reason of failure to transport and deliver. The petition alleged that plaintiff “ lost all opportunity to make money at said point by exhibiting his collection of birds, animals, etc., and lost his own time, besides the expense of keeping and paying his employes, and his trouble, vexation, and worry.’’ Plaintiff testified, without objection, that he experienced great mental anxiety on account of the delay of the museum. Under this state of facts, the jury should have been told that the plaintiff could not recover for his mental anguish.</p> <p>2. Connecting Lines. — The evidence failing to show that the museum was ever out of defendant’s possession, it was not necessary for the plaintiff to show upon what line of railway the damage was done.</p> <p>3. Measure of Damages. — The measure of damages for the injury to the museum would be the market value of the specimens destroyed, and the difference in value of those injured just before and just after the injury; and if there was no market value at the place where the railway received them, then their market value at the nearest point where they had a market value should be shown. The damage can not be estimated by the time it took the owner to collect them, and the value of his time.</p> <p>4. Charge on the Weight of Evidence. — It was a charge on the weight of evidence to tell the jury that the articles had no general market value. The evidence as to the nature of the articles, and the manner of their collection and preparation, tended to show that they were all such specimens as might have a market value.</p> <p>5. Speculative and Uncertain Damages. — The following charge was given: “If you find that by reason of the total or partial loss of some of the articles belonging to the collection or museum, the whole collection is depreciated in value, and rendered unfit for profitable exhibition, you will consider such incidents and results, for the purpose of determining the actual damage you find the plaintiff has sustained.’’ Under the evidence in the case, this charge was error. Such depreciation could only result from a general lessening of interest in the museum, by reason of the loss of certain specimens, and as an element of damage it is too uncertain and speculative.</p> <p>6. Damages — Lost Profits — The plaintiff notified defendants, when he shipped the museum, of the purpose for which it was being shipped; defendant is therefore liable for such damages as plaintiff might probably sustain by reason of the failure to have the museum there for exhibition, in the way of lost profits; not eo nomine as net profits, but as damages, to be determined by ascertaining the probable net profits. And in this case, the court having authorized the jury to allow plaintiff for expenses incurred by himself and his employes, he should have defined net profits. The expense of the trip to Dallas, and board there, should have been deducted from the gross profits, if recovery of net profits eo nomine was allowed.</p> <p>7. Suit Against Receivers. — This suit grows out of a contract made by the receivers to safely transport plaintiff’s property to Dallas, and under Revised Statutes, sections 2 and 6 of Act of 1889, plaintiff had the right to sue the receivers.</p>

<p>1. Homestead. — Plaintiff owned the house from which she was ejected, and was living in it at the time, but had sold the ground upon which it stood, reserving the house and the right to remove it at any time within two years. This evidence did not warrant the court in concluding, as a matter of law, that plaintiff was not entitled to it as her homestead. That she could acquire homestead right in such property, has been decided.</p> <p>2. Liability of Sheriff for Acts of His Deputy. — The deputy sheriff, acting in his official capacity, and by virtue of an execution from a Justice Court, ejected plaintiff from her house, removed her goods therefrom, and nailed it up. The sheriff was told that it was her homestead, and appealed to to release the levy, and refused. The act done by the deputy was wrongful, and the sheriff' and his sureties are liable therefor.</p> <p>3. Same. — In seeking to fix upon the sheriff liability for the acts of his deputy, appellant was only required to show that the wrongful act complained of was one which the deputy might, under proper circumstances, do as an officer, and that in fact it was done under color of or by virtue of his official station.</p> <p>4. Deputy the Agent of Sheriff. — The deputy was the general agent of the sheriff, and it was his duty to determine, as a guide to conduct in the execution of the writ which he held, the scope of the authority which it conferred, and the nature of the action which it enjoined or authorized. His determination of those questions, and his acts done in pursuance of it, were the exercise of official authority conferred upon him by his principal, and the latter was responsible for them.</p> <p>5. Parol Evidence. — The court below did not err in excluding parol evidence of the contents of the writ, but it was legitimate for plaintiff to show by parol that the deputy was assuming to act under an execution.</p>

Error from Jefferson. Tried below before Hon. W. H. Ford. The third charge given and third charge requested were as follows: “3.

<p>1. Intervention — Fraudulent Attachments. — Intervenors were junior attaching creditors of N. E. Albright, and sought to have prior attachments set aside, and to obtain priority of payment of their claim, upon the ground that the debtor had colluded with the prior attaching creditors, and consented to the issuance and levy of their attachments with intent to hinder, delay, and defraud his other creditors. There was further allegation that the grounds alleged for the prior attachments were not true, that one of the prior debts was amply secured by mortgage on realty, and that upon the sale of the goods attached, as perishable, the attorney for the prior attaching creditors had bought them in, and thereafter returned them to the possession of the debtor; all of which was alleged to be part of a plan by which the goods were to be placed beyond the reach of creditors. The petition was held good against a general demurrer.</p> <p>2. Same. — A fraudulent diversion of a debtor’s property is as frequently accomplished by a collusive suit as by a direct transfer, and both means are denounced by the statute in the same terms. It is true that in this case the claims of the prior attaching creditors are not alleged to be fictitious, but if the attachments were suffered or procured to be made for the use and benefit of the debtor, or if they were contrived between the parties with the intent to hinder, delay, or defraud other creditors, they would be invalid. •</p>

<p>1. Suits Against Receivers. — This was a suit for damages for personal injuries. Since the passage of the act of Congress authorizing suits against receivers without leave of the court in which the receivership may be pending, it has not been necessary to obtain such leave. The cause of action in this case is an act or transaction of the receivers which comes within the act of Congress.</p> <p>2. Power of Court Under Act of Congress. — The rule of law, that a receiver of property appointed by one court can not be sued in another with respect to that property without the consent of the court appointing him, has been changed both by the act of Congress and the State law; but both of these acts protect the courts having jurisdiction of the original cause in which the receivership is being conducted, in the due administration thereof, and enable them, in the exercise of their general equity powers, to prevent, by injunction against parties, any interference with or diversion of the property in the hands of the receiver.</p> <p>3. Evidence of Repair of Track. — Evidence tending to prove repair of the track at the place where the wreck and injury occurred, after its occurrence, was admissible when offered to rebut evidence of defendants" witnesses, that the track had been used after the wreck without having been repaired.</p> <p>4. Derailment of Passenger Car. — In this State, the happening of an accident to a passenger does not make a prima facie case of negligence, but the derailment of a passenger car is evidence of negligence in the company, in the absence of explanation showing that the accident happened without the fault of the railway company'; and instructions asking a finding for the defendant upon a state of facts which ignore the accident would have been on the weight of evidence, and were properly refused.</p> <p>5. Carrier of Passengers — Erroneous Charge. — The following charge held to impose too great care upon the carrier of passengers: “Defendants, as carriers of passengers, operating a railroad, are held under the law to the greatest possible care and diligence for the safety of the passengers they undertake to transport. They are not insurers of the absolute safety of their passengers, but are required to provide for their safety as far as human care and foresight will go.”</p> <p>6. Elements of Damage. — A diminished capacity to earn money is a proper element of damage, although the amount the injured person could earn before the injury, and the amount she did earn after it, was not shown. Her diminished capacity to do the work she was accustomed to do about the hotel was shown, and the charge should have submitted that question to the jury, rather than her diminished capacity to earn money.</p> <p>7. Improper Argument of Counsel. — It was improper for counsel to state to the jury, “that he had drawn the petition under facts, in cases not so bad as this, and had put the amount claimed as low as he thought he could.” He was in effect testifying before the jury, and the language called for more from the court than a mere direction to the jury not to regard it.</p>

<p>1. Suit for Penalty for Refusal to Deliver Freight. — A St. Louis milling company shipped to appellee, at Brenham, a car load of flour, the bill of lading for which (issued by the St. Louis, Arkansas & Texas Railway) showed that the rate of freight was 40 cents per 100 pounds, and that it was to be sent via the Gulf, Colorado & Santa Fe Railway. The schedule rate on flour to Brenham via the Gulf, Colorado & Santa Fe Railway was 40 cents per 100 pounds, and via Houston & Texas Central Railway was 53 cents per 100 pounds. The flour came by the Houston & Texas Central Railway, which refused to deliver it unless the 53 cents rate was paid. Held, the penalty provided by statute for a failure to deliver merchandise upon tender or payment of freight charges shown by the bill of lading, can not, in this case, be enforced against the Houston & Texas Central Railway.</p> <p>2. Offer by Shipper to Pay Difference in Freight Charge. — Evidence offered by the appellant, that the milling company offered to hold appellee harmless, and to pay the difference between the 40 and 53 cents rate, was inadmissible. If the appellant was liable for the penalty, appellee could not be deprived of his right to recover it by the willingness of a third party to pay the difference. Had this difference been paid by the shipper, and then the goods tendered to the consignee upon payment of the remainder, it may be that from the time of such tender he would have been relieved from liability, but appellee was under no obligation to assist him in relieving himself from liability that he had or might thereafter incur.</p> <p>3. Conflict of Law — Act of Congress and State Statute. — The act of Congress requires that the schedule of rates be agreed upon and published, and denounces penalties upon any carrier who receives more or less than schedule rates. The State statute provides that any carrier who shall refuse to deliver freight upon tender or payment of the freight charges shown by the bill of lading, shall be liable for an amount equal to the freight charges for each day’s delay. This State law demands that the carrier should do a thing that is forbidden by a constitutional law of Congress, and that law is paramount to any State law when the provisions of the latter are antagonistic to those of the former.</p> <p>4. Notice of Contract to Ship at a Particular Rate. — It is immaterial whether the defendant company knew or did not know that the receiving carrier had contracted to transport the freight at 40 cents per 100 pounds. It was- required by statute to receive the cars of connecting roads, and under its contract with the connecting road was under obligation to carry its freight at an agreed rate, which rate could not be changed except by violating the Federal statute. Therefore it could not be said to have adopted and ratified the 40 cents bill of lading, even if it knew that that was the rate agreed on.</p> <p>5. What Companies Liable for Penalty. — Unless the evidence shows that the company refusing to deliver the freight to the consignee upon payment or tender of the specified rate of freight either executed the bill of lading or ratified it, no recovery can be had under the statute.</p> <p>6. Non Est Factum. — Plaintiff’s petition does not charge that the defendant executed the bill of lading, or authorized any one to execute the same, nor that there was a partnership between the defendant and the company that executed the bill of lading, and therefore a plea of non est factum was not necessary before defendant could challenge its binding force upon him.</p>

The letter of appellee to the shippers making the order required six cars to be put in one carload, and dirécted- that the machine company should “ contract for the freight before shipment.”

<p>1. Copies of Messages — Admissible Evidence. — In a suit against a telegraph company for damages for failure to deliver messages sent, copies of the messages delivered by the company were admissible evidence.</p> <p>2. Evidence of Sending and Delay. — Evidence as to the sending, and the delay in delivery, of one of two messages, for delay in the delivery of which damages were asked, was admissible, although in the opinion of the trial court no right of recovery growing out of the nondelivery of that message was shown.</p> <p>3. Burden of Proof. — When the principal object of the suit is to recover special damages, the burden of proof ought to be on the plaintiff to show such negligence in the delivery of the message as caused the damage; and therefore the following charge was error: ” The fact that the message was promptly received at Navasota, and that Bennett lived there, being shown, the burden of proof to show that the message was not delivered to Bennett promptly resulted from some excusable cause, is on the defendant, and it must establish such excusable cause by a preponderance of evidence.”</p> <p>4. Same. — The evidence on the question whether the appellee was in fact in Navasota on the day the message was received, or not. being conflicting, the practical effect of this charge was to lead the jury to believe that it was incumbent on the appellant to show that appellee was elsewhere.</p> <p>5. Same. — When both parties introduce evidence sufficient, if true, to discharge any burden of proof cast on them by law, it is improper to give any charge on that subject. The issue is then wholly as to the weight of evidence and the credibility of the witnesses.</p>

Steinle and Thulemeyer are both land agents. Thulemeyer first tried to sell to Berry as agent of Cremer, afterward as owner, and later still Steinle wrote to Berry that the land had reverted to him. Cremer was 20 years old when he purchased the land, and lived in Austin.

<p>1. Sale Under a Paid Judgment Void. — A judgment which has been paid will not support an order of sale or execution, and a sale under it would he a nullity, and a purchaser thereunder would acquire no title to the land by virtue of the sale.</p> <p>2. Prom What Date Adverse Possession Runs. — Possession taken of land under decree in a partition suit against the administrator of the estate to which it belonged, would not be adverse to the right of the estate to have the land sold under a judgment foreclosing a vendor’s lien thereon, prior in date to the partition decree under which the party in possession held: and though limitation might not commence to run in such case until the date of the vendor’s lien judgment sale, yet if such sale was invalid and the land was the property of the estate when partitioned and set aside to the possessor, limitation would run from the date of such possession under partition.</p> <p>3. Vendor’s Lien Not Expressly Retained. — It did not appear that the notes upon which the judgment was rendered and the land sold were executed for the purchase money of the land, nor were they ever established by allowance and approval as a lien thereon; hence the party in possession under the partition decree did not hold in subordination to a lien for purchase money, and there was nothing to prevent the running of the statute in her favor.</p> <p>4. Disabilities, when Unavailing — Mrs. Clark went into possession in 1879. The cause of action of the N. G. Campbell heirs accrued at the date of their acquisition of title at administrator’s sale, which was confirmed January 19, 1885. They were married women prior to 1879, and parted with their title to one-half the land in 1886, and the other half in 1889. and the plaintiff held under them by regular chain of title. Their cause of action having accrued subsequent to the commencement of the. running of the statute in Mrs. Clark's favor, the coverture of the heirs of Campbell is no answer to the plea of limitation.</p>

<p>1. Assumed Risk — Fellow Servants. — Plaintiff, an engine wiper, was injured while making a coupling at night, in a switch yard, between a road engine and a coal car, made in obedience to the order of H., who was foreman of the yard, with power to employ and discharge wipers, and who was operating the engine at the time. He backed the engine so hard that plaintiff’s left hand, which held the link, was shoved into the drawhead with the link, and mashed. A switch engine with sloping tender is generally used for yard switching, and plaintiff knew that a road engine was more dangerous, and knew that H. was a machinist and not a regular engineer. Held:</p> <p>1. Plaintiff assumed the risk of making the coupling with a road engine and an incompetent engineer.</p> <p>2. He was a fellow servant with H.</p> <p>2. Care Required of Railway Companies. — A railway company, in the selection of its employes, and furnishing appliances to work with, is only required to use such care and caution as an ordinarily prudent man would use under like circumstances; therefore a charge which required the company “to furnish competent and qualified men to handle its trains at the yard, and to furnish means and appliances for switching trains which experienced railroad men had found were safest for that purpose,” was error.</p> <p>3. Assumed Risks. — The charge that plaintiff was not entitled to recover on the ground that a road engine and not a switch engine was used, should have been given, because plaintiff knew that a road engine was being used, and the increased danger was patent, and he assumed the risk.</p> <p>4. Knowledge of Incompetent Employe. — Plaintiff knew that an incompetent man was performing the work to be done. No amount of prudence on his part would relieve him of the risk; and the test is, not whether a reasonably prudent man might have undertaken the work, but whether the danger was obvious and apparent.</p> <p>5. Careful Work by an Incompetent Employe. — If H. handled the engine carefully and prudently, as an engineer of ordinary care and prudence would have done under the circumstances, then plaintiff could not recover, though the jury might believe that H. was not well qualified for the work to be done.</p> <p>6. Vice Principal — Fellow Servant. — A majority of the court is of opinion that under the facts H. was a fellow servant of plaintiff, and not a vice principal. In handling the engine, H. was not in the performance of any duty which the company owed the plaintiff, and the only reason for the position that II. was vice principal was that he, as foreman, had authority to discharge plaintiff. The difficulty lies in failure to separate the individual who handled the engine from himself as foreman.</p>

<p>1. Municipal Bonds — Signature of Former Mayor. — While H. was mayor thereof, a city contracted to issue certain bonds, and the bonds were engraved and printed, but before their signature and delivery H. had ceased to be mayor. The city council, however, by resolution authorized him to sign the bonds as mayor, which he thereupon did. It seems that the bonds thus signed are worthless, and an action can not be maintained thereon.</p> <p>2. Pleading — Averment of Authority of a City to Issue Bonds. Where a city is sued on a contract such as could have been lawfully made only by a city of over 10,000 inhabitants, the plaintiff’s petition is bad on special exception if it fails to allege that the defendant is incorporated as a city of over 10,000 inhabitants.</p> <p>3. Municipal Taxation — Water Works — City of 10,000 or Less. Prior to the constitutional amendment of 1883 a city of 10,000 or less had not the power to levy an annual tax exceeding one-fourth of 1 per cent, except for the payment of debts already incurred, and for the erection of public buildings. A system of water works does not come within either of these two matters.</p> <p>4. Amendment to Constitution Takes Effect, when. — An amendment to the Constitution does not become operative until after the lapse of forty days from the date of the election at which such amendment is adopted.</p> <p>5. Municipal Power — Ratification by City of Unauthorized Contract — Pleading.—It is essential that the mode prescribed by law in regard to municipal contracts be followed in the ratification as well as in the making of the contract; and therefore where a city attempted to make a contract which it then has not legal power to make, if it be sought to hold the city liable thereon by virtue of a ratification made after the grant of enlarged power to the city, the pleadings must specifically show that at the time of the ratification the city then had authority to have made the contract, and that the ratification includes all conditions made by statute or organic law necessary to the existence of the contract, such as the condition that a city shall not create a debt without making at the same time provision for its payment., principal and interest.</p> <p>6. Limitation of Two Years on Implied Contract by City. — The implied liability to pay for the water works would exist, if at all, from the time that they were first accepted and appropriated by the city, and the cause of action on such liability would he barred in two years.</p> <p>7. Two Years Possession a Bar, when. — If a system of waterworks is to be regarded as personal property, and the city has taken exclusive charge of them and owned and operated them as its own property for more than two years prior to the filing of a suit to recover them, the statute of two years applies, and the bar is complete against such demand.</p> <p>8. Municipal Authority — Water Works as Realty. — If water works of a city are to be considered as part of the realty because attached as fixtures to the freehold, then as such realty is necessarily held and owned by the city for public use, it can not by contract lawfully surrender its control over such property to any individual or corporation; and a court will not, therefore, render a judgment against a city for the recovery of water works and control thereof.</p>

<p>1. Bill of Exceptions. — A bill of exceptions to the exclusion of evidence should show that the evidence was excluded, and upon what objection, and that exception was taken to its exclusion.</p> <p>2. Common Source of Title — Married Woman’s Deed. — The fact that both parties claim through the same deed to a married woman as a common source of title, will not preclude the defendant from, showing that the land thereby conveyed was community and not her separate property.</p> <p>3. Wife’s Deed of Community Property Without Joinder of Husband. — It seems that where the title to community property is in the wife, she may by the consent of the husband dispose of it without his formally joining her in the conveyance.</p> <p>4. Presumption of Community Property. — Where a deed is made to the wife, and there is no language in the deed tending to show that it is the separate property of the wife, the presumption is that it is community property.</p> <p>5. Charge of Court — Special Instruction to be Given, when.— Although the court may have charged in a general way upon a given issue, yet if this be the determinative issue of the case, it is the duty of the court to give a requested charge pertinently applying the law to the facts in evidence relating to such issue.</p> <p>6. Limitations — Married Woman. — Where a married woman conveys land which is her separate property, by deed in which her husband does not join, limitation will not run against her and in favor of the purchaser while she remains married.</p> <p>7. Practice on Appeal — Issue Waived. — Where appellees in their brief seek to sustain the judgment on the ground that they are innocent purchasers, and it appears that this defense was alleged by them in the trial court, and proof offered in support of the plea, but the issue was not submitted to the jury, and there is nothing in the record to show that the court refused to so submit the issue, the appellate court is not properly called upon to announce any conclusion upon it.</p>

<p>1. Deed of Trust Sale — Power of Trustee as Agent. — Where a deed of trust, in which the trustee is also the agent of the beneficiaries, provides that upon default in any interest payment the beneficiaries may, at their option, elect to treat the principal debt secured as due, and sell the property, such election may be made by such trustee and agent on behalf of his principal, and need not be formally declared by them or by him; the election being sufficiently made by the trustee advertising the property for sale.</p> <p>2. Same — Extending Credit on Sale for Cash. — Where a trust deed authorizes a sale for cash, and the trustee, who is also the mortgagee or the agent of the mortgagee, purporting to sell for cash, gives credit or has an understanding with the bidder that credit will be given him on part of his bid, in order to induce him to make the property bring the full amount of the debt secured, this is not to the injury of the mortgagor or those claiming under him, and will not avoid the sale.</p> <p>3. Same — Parties to Suit Setting Sale Aside. — In order to set aside a sale, in a direct proceeding for that purpose, the purchaser at such sale must be placed in statu quo. See the opinion for case in which the beneficiaries in a trust deed would be necessary parties in a suit to set aside a sale made thereunder.</p>

<p>1. Deed — Rule where there is a Shortage in Land. — Where land is sold by the acre, and the parties are under a mutual mistake as to the quantity conveyed, or where the vendee is moved to the purchase by the false representations of the vendor as to the amount, even though innocently made, and the deficiency is afterward discovered, equity will grant to the vendee a proportionate abatement of the purchase price.</p> <p>2. Same — Sale in Gross — “More or Less.” — The above rule does not obtain in the absence of actual fraud when the sale is in gross; and it would seem that the deed unexplained, and for a designated number or acres " more or less,” would, if its execution or delivery be unaccompanied by an understanding to the contrary, indicate a sale in gross, and not by the acre.</p> <p>3. Same. — But where the vendee is the victim of misrepresentation; where the sale is by the acre and the quantity of the land is of the essence of the contract, and the deficiency is so great as to have been material, equity will grant relief, although the land is described in the deed as so many acres “ more or less.”</p> <p>4. Parol Evidence to Explain Deed. — Under proper allegations of fraud or mistake, a sale by deed reciting the land as so many acres more or less may be shown by parol evidence to have been in fact a sale by the acre, and not in gross.</p>

<p>1. Evidence — Intent to Defraud Creditors. — On a trial of the right of property levied on by attaching creditors of A., and claimed by P., his vendee, the claimant can not, for the purpose of disproving fraud and collusion in the transfer of the property to himself, and of showing a consideration therefor, give in evidence his petition (and the allegations therein) filed in a suit instituted by himself against A. after the levy of the attachment, and to which latter suit the-attaching creditors were not parties.</p> <p>2. Joinder of Actions and Parties — Trial of the Bight of Property. — Where a lien is reserved in notes given for the purchase of personal property, on which notes a judgment not foreclosing the lien is recovered, and in that suit an attachment is issued and levied on the property covered by the lien, such contract lien may in the statutory action for the trial of the right of property be foreclosed and enforced against a claimant holding the property under transfer from the judgment debtor, and this without making the judgment debtor a party thereto. Justice Head dissenting.</p> <p>3. Lien — Waiver.—A contract lien is not waived by suing out an attachment on the debt secured by such lien.</p>

<p>Land Certificate — Validating Act of March 31, 1883 —Heirs of Deceased Patentee. — Where a land certificate was granted to R. by special act of the Legislature, passed February 19,1873, it is held, under the authority of Ralston v. Skerrett, 82 Texas, 486, that the validating Act of March 31,1883, enured to the benefit of the heirs of R., although patent had issued to him thereon, and he had died prior to the date of such validating statute.</p>

<p>1. Parol Evidence — Res Adjudicata — Oral Proof Varying Written Pleadings. — Where under a plea of res adjudicata the pleadings and judgment in a former suit are averred and shown, parol evidence is not admissible which tends to vary and contradict the record, and to substitute the opinion and understanding of witnesses as to the meaning and effect of such former pleadings and judgment in the place and stead of a legal construction thereof by the court.</p> <p>2. Res Adjudicata — Former Judgment Covering Essential Point. Where an issue determined in the original suit is involved in the subsequent suit, and is essential to any recovery therein, a party is not entitled to have this same issue tried again, merely because in the subsequent suit he has a different purpose in view and seeks a different relief.</p> <p>3. Practice — Error not Subject to Collateral Attack. — Error of the court in trying an issue on the original answer, instead of on an amended original answer then on file, is not subject to collateral attack in a different suit.</p>

<p>1. Promissory Note — Failure of Consideration — Surrender of Another Note. — A plea charging failure of consideration, in this, that the note sued on was executed in consideration of a promise by plaintiff to deliver up another note previously executed to plaintiff, and which he had failed to so surrender, is bad on special exception in failing to show that plaintiff undertook to surrender such other note at any particular time, or that time was of the essence of the agreement to surrender it.</p> <p>2. Same — Pleadings —Illegal Consideration. —A plea alleging that the note sued on was executed in consideration of a promise of the plaintiff (payee) to refrain from prosecuting one P. for forging and passing a certain note alleged by plaintiff to have been forged by P., and to conceal from the officers of the law all the information plaintiff had of the fact that P. had forged said note, is a good plea; and a special exception on the ground that it does not allege by any positive averment that P. forged said note, was erroneously sustained.</p>

<p>1. Land Certificate — Void Duplicate — Case Followed. — As a duplicate certificate professes to confer no rights other than such as the original gave, if there be no original it confers no right whatever; following Gunter v. Meade, 78 Texas, 634. It seems also held in that case that the fact of an original certificate having been issued for one labor would not give such jurisdiction to the Commissioner of the GeneralLand Office as would render a duplicate for a league and labor issued thereon voidable only, and not void.</p> <p>2. Patent Void — Three Years Statute of Limitations. — Although the three years statute of limitations is applicable where the patent purports to pass the legal title, and does pass all the title the State has or can convey, though in fact no title passes to the grantee, yet where the patent is utterly void for want of authority in the officer issuing it, and does not in any manner bind the State, the three years adverse possessor can not prescribe under it.</p> <p>3. Same — “ Land Titled” — Case Distinguished. — The case of Winsor v. O'Connor, 69 Texas, 571, construing section 4, article 14, of our Constitution, and interpreting the phrase “ land titled,” held not in conflict with this case. A patent may be entirely without efficacy to pass any character of title as against the State, or to give protection as title against any person, and still be held effective by force of that provision of our Constitution enacted in furtherance of public policy, and not to confer any private right, to withdraw the land from location.</p>

<p>1. Carriers of Live Stock — Contract for Notice of Damage Unreasonable. — A contract with a railway company for the shipment of cattle contained a stipulation that as a condition precedent to the shipper’s right to any damages occasioned in the transportation, he should give notice in writing of his claim therefor to the station agent, or a general officer of the road carrying the cattle to their destination, within one day after they arrived there; and that a failure to give such notice should bar any recovery for such damage. Held, that on its face the stipulation was unreasonable and invalid, and that it devolved on the railway company to show that it was reasonable in fact.</p> <p>2. Same — Evidence not Showing Contract for Notice Reasonable. — Proof that the shipper, while at the point of destination (Chicago), saw and talked with the station agent there of the delivering road, does not conclusively establish that the contract for notice was reasonable; such proof failing to show that the shipper saw such agent within twenty-four hours after arrival of the cattle there.</p> <p>3. Negligence not Cause of Damage, when. — Where the proof shows that if the cattle had arrived at their destination on time, it would have been after market hours for that day, so that they would necessarily have been held over until the time when they were actually sold on the next day, the negligence of the carrier in failing to get the cattle there on time could not have affected the price received for them.</p>

<p>1. Practice — Special Exceptions. — Where a petition is good on general demurrer, specific objections set forth in a bill of exceptions can not, on appeal, be made to answer the purpose of special exceptions not urged to the petition below.</p> <p>2. Pleading and Proof — Variance in Name. —A petition against “The St. Louis, Arkansas & Texas Railway Company in Texas” alleged the transfer to plaintiff of certain claims for damages against the defendant, and the proof offered was of certain written transfers of such claims against “The St. Louis, Arkansas & Texas Railway Company.” Held, that the variance could not have misled; and also, that as the transfers were not declared on in the petition, the variance could be supplied by parol evidence.</p> <p>3. Practice — Erroneous Evidence not Cause for Reversal, when. In a trial before the court, the admission of improper evidence will not require a reversal where it clearly appears from the findings that it did not influence the judgment; or, being immaterial or irrelevant, could not reasonably have done so.</p> <p>4. Pleadings — Allegations and Proof. — In a suit for damages resulting from delay in the shipment of cattle, the petition alleged that the delay was caused by the negligence of the defendant railway company; and this was held sufficient to admit evidence that the defendant’s track was in bad condition at the place where the delay occurred.</p> <p>5. Same — Notice of Claim for Damages. — Where a written contract of shipment required notice of a claim for damages to be given at the place of destination, defendant was properly allowed to show by verbal testimony that defendant’s line of railway ended at an intermediate point, and that from there to the point of destination the cattle were carried by a connecting line.</p> <p>6. Evidence — Written Admission not Conclusive. — Written statements of the good condition of the cattle, given to the railway company by the shipper’s agents in charge of them during the transit, while adding to his burden of proving their bad condition, may yet be contradicted by him by showing that they are not true.</p> <p>7. Same — Admission as Estoppel. — A claim that such written statements estop the shipper by reason of their causing the railway company to forego making an examination into the condition of the cattle at the point of destination, is not good where there is nothing in the evidence to sustain the assumption that the statements had such effect.</p> <p>8. Notice of Claim for Damages— Burden of Proving Reasonableness. — Where a cattle shipping contract requires notice to be given of a claim for damages within a very limited time, the burden of showing by pleading and evidence that such stipulation is reasonable under the fact of the particular case, is upon the railway company.</p> <p>9. Judgment for Damages not Excessive, when. — Where the amount of damages allowed by the court does not reach the full limit justified by the opinions of some of the expert witnesses, the appellate court will not disturb the finding of the lower court on the ground that the judgment is excessive.</p> <p>10. Remitter of Damages. — See the opinion for case in which a remitter of part of the damages allowed on a shipment of cattle was entered in the appellate court and the judgment reformed and affirmed accordingly.</p>

<p>1. Deed of Trust. — A provision in a deed of trust given to secure a creditor, stipulating that after satisfying the debt secured the surplus of the proceeds should be returned to the mortgagor, does not of itself render the instrument void as to other creditors.</p> <p>2. Same — Hindering and Delaying Creditors. — But if the maker of the trust deed was insolvent when he made it, and it conveyed property largely in excess of the debt secured, and authorized the trustee to hold possession for as long as six months, selling at the usual market price, other creditors would be unreasonably delayed, and the instrument would be void as to them.</p> <p>3. Burden of Proving Insolvency of Debtor. —Where other creditors attack such a deed of trust (which is silent as to the maker's insolvency), the burden of proving such insolvency is upon them.</p> <p>4. Evidence — Tax Rolls as Proof of Insolvency. — To prove that the debtor was insolvent, the tax rolls were given in evidence to show that he did not render certain property claimed by him. The original assessment lists, signed by him, were not offered. Held, that the tax rolls could not thus be used as a statement by him of his financial condition.</p> <p>5-. Deed — Predicate for Secondary Evidence. — Where a deed which a party desires to use in evidence is made t.o and in possession of a third person, the party must either have it produced under a subpoena duces tecum, or show that it is beyond his power to produce it in some other way, before he will be allowed to introduce secondary evidence of its contents.</p> <p>6. Pleading — Amendment Validating Attachment. — A petition, through mistake and informality, failed to clearly state an amount within the jurisdiction of the court; but the affidavit, bond, and writ of attachment issued thereon were regular and sufficient in amount. Held, that the petition could be so amended in the amount sued for as to validate the prior attachment by curing the matter of jurisdiction.</p> <p>7. Cases Approved and Followed. — As to mortgage or assignment, Johnson v. Robinson & Co., 68 Texas, 399. As to trust deed hindering and delaying creditors, Gallagher v. Goldfrank, 75 Texas, 562; Gregg & Son v. Cleveland & Co., 82 Texas, 187. As to secondary evidence of deed, Hall v. York, 16 Texas, 18. As to amendment validating an attachment, Tarkinton v. Broussard, 51 Texas, 550; Marx & Kempner v. Abramson, 53 Texas, 264; McDannell v. Cherry, 64 Texas, 177; Ward v. Lathrop, 11 Texas, 287.</p>

<p>1. Pleadings — Legal Holiday.— Objection that the suit was filed on a legal holiday can be taken only by special exception, promptly made and urged. A general demurrer is not sufficient.</p> <p>2. Evidence — Fraudulent Transfer. — When a failing debtor sells out to his own employe, and fraud is alleged, the fullest latitude of proof should be allowed other creditors in showing the fraud. Every relevant circumstance should go to the jury for what it is worth. °</p> <p>3. Transfer of Occupation Tax License. — It would seem that where an occupation tax license has been sold by the party to whom it was issued, a right therein may pass to the vendee, although the transfer may not have been entered, as provided by statute, on the books of the officer who issued it.</p> <p>4. Same. — See opinion for case where special pleadings would be necessary to enable the vendee of such license to recover damages for being deprived of it by an attachment.</p>

<p>Error from Eastland. Tried below before Hon. J. M. Moore, Special Judge.</p>

<p>1. Deed — Description of Land. — A transfer describing the land conveyed as “ one-half, or 13 labors of land, of the headright certificate of the grantor, George W. King, to one league and labor of land, No. 661, first class, issued by the Board of Land Commissioners for Bed River County, Republic of Texas; the survey lying between Bois d’Arc and Caney, Fannin County, Texas,” is not void for want of description, since it is evident that any uncertainty as to the identity of this land can be explained by extrinsic evidence.</p> <p>2. Same — Interlineations.—Where the original transfer shows interlineations on its face, the date when they were made, and whether they were fraudulently made or not, are questions for the consideration of the jury; the transfer and record thereof being more than thirty years old.</p> <p>3. Patent Issued to Wrong Person Invalid. — Where land is appropriated by a valid location and survey, and the patent therefor, by mistake, is issued to one having no right to the land, the patentee does not thereby acquire any title, and the patent is invalid.</p> <p>4. Charge of Court — Special Instructions. — Where a requested instruction which might properly have been given is connected with propositions distinct in character, and which it would have been improper for the court to have submitted to the jury, the rejection of the entire instruction does not afford cause of complaint.</p>

<p>1. Municipal Corporation — Liability for Nuisance. —A city ordinance provided that. “ It shall be the duty of the marshal to cause the removal and burial, at the expense of the city, of all carcasses of dead animals the owner or person in charge of which can not be ascertained.” JECeH, that this confided the manner of the performance of this duty to the marshal, and the city would be responsible in damages for his negligent performance thereof in depositing such carcasses so near a private residence as to create a nuisance thereby.</p> <p>2. Same — Charge of Court. — See the opinion for a charge of court held to correctly submit to the jury the liability of a municipal corporation in damages for a nuisance caused by its city marshal depositing dead animals near a residence.</p> <p>3. Special Charge Correctly Befused, when. — Where the court had not charged at all as to the liability of the defendant city on the ground that it had ratified the acts of its agent, it was not error to refuse an instruction asked by defendant limiting the doctrine of ratification.</p>

<p>1. Fraud, as to Creditors — Evidence of Motive. — Where a creditor purchases the goods of his insolvent debtor, and the transaction is attacked as in fraud of other creditors, he may testify that his motive in making the purchase was only to collect the debt due to himself.</p> <p>2. Sale to Creditor Fraudulent as to Other Creditors, when.— Where an insolvent debtor pays one of his creditors in property, and more property is conveyed than would be reasonably required to pay the debt, and such creditor has knowledge of the insolvency, the existence of other creditors, and the excess in the value of the goods received, the transaction is such as the law condemns, whether this excess is appropriated by the creditor to his own use, or is paid to the debtor in money or negotiable paper.</p> <p>3. Same —Sale not Fraudulent, when. — Where a preferred creditor pays money or executes a negotiable note to his insolvent debtor as part consideration for his purchase of the debtor’s goods, the transaction will not be declared fraudulent in law where it is not shown that more goods have been knowingly received than are reasonably required to pay the debt; following Oppenheimer v. Halff, 68 Texas, 409.</p> <p>4. Same — Fraudulent Intent Requisite, when. — Where property received by a preferred creditor is no more than is reasonably required to satisfy his debt, taking into consideration the expense incident to a conversion of the property into money, the invalidity of the transfer, if it be invalid, must result from proof of a fraudulent intent in fact on the part of the debtor and preferred creditor.</p>

<p>1. Negotiable Instrument —Warehouseman’s Receipt. — A receipt from one engaged in keeping a cotton yard for a specified bale of cotton which, by the terms of the receipt, is “ deliverable to bearer on return of this certificate and payment of charges,” though in form negotiable, represents goods and not money; and in case it should be lost or stolen a bona fide holder who derives his title from a finder or a thief could not recover, as in case of negotiable paper under the law merchant.</p> <p>2. Same — Indemnity Bond Against Lost Receipt. — Where the owner of such receipt proved its loss, and that he had not parted with his title to the property, it was error in the court to require, as a condition precedent to his recovering possession of the cotton from the warehouseman, that he execute to the latter a bond of indemnity to secure him harmless against loss.</p> <p>3. Bailment — Right of Owner Against Bailee. — The owner of property held by a bailee may sue to recover it from the bailee, though not a party to the contract of bailment.</p>

<p>1. Trustee — Concurrent Remedies. — August 23,1858, F. W. Robertson, guardian of F. F. Robertson, executed a mortgage upon certain lands to his sureties on his bond as guardian, to secure them and to save harmless the ward. September, 1859, another guardian having been appointed, F. W. Robertson executed a power of attorney to such other guardian, empowering him to sell the lands mortgaged. October 24,1860, Love, the second guardian, obtained judgment against F. W. Robertson and his sureties upon his bond, and a decree foreclosing the mortgage. In 1862 Love, under his power of attorney, sold the land in controversy, which was included in the mortgage and decree of foreclosure. Subsequently the land was sold under the decree. In litigation between plaintiff, holding under the foreclosure, and defendants, holding under the deed by Love under the power of attorney, it was held that Love “ held united in himself as guardian all the right to sell which the power of attorney could give him, and also the privilege of having the land sold under the deed of foreclosure. Between these methods of converting the land into money he could choose, and by either he could convey a good title.” ' it follows that the purchaser under the foreclosure took nothing, the land having been sold under the power.</p> <p>2. Power to Sell as Affected by Death of Constituent. — A contract to sell land made by an agent in the lifetime of his principal, and perfected after his death, is a valid execution of the power, and conveys the land.</p> <p>3. Same Issue. — The main question raised in this case was adjudicated upon a former appeal (65 Texas, 37), upon a statement of facts showing substantially the same issues. See opinion.</p> <p>4. Stare Decisis. — Cases are exceptional and of rare occurrence where a decision of an appellate court will be disregarded by a court of inferior rank.</p> <p>5. Secondary Evidence of Lost Instrument — Search. —Where no objection is made to the testimony tending to show the execution, loss, and contents of a material document, because sufficient search had not been shown to find the original, the question of the competency of such testimony can not be raised by asking an instruction that the search was not sufficient.</p> <p>6. Assignments of Error — Charge of Court. — An assignment of error attacking a charge should point out such error, and show wherein it is erroneous.</p> <p>7. Practice in Supreme Court — Assignments of Error. — Ordinarily an assignment of error ought to be complete in itself; and if it is not, and there is something else in the record essential to an intelligent ruling upon it, the latter at least should be embraced in the statement in the brief under the assignment.</p> <p>8. Conduct of Counsel in Trial Court. — See matters complained of in conduct of counsel on the trial held no ground for reversal on appeal.</p>

<p>Appeal from Karnes. Tried below before Hon. H. Clay Pleasants.</p>

<p>1. Pleadings — Specifications.—In an action for the contract value of machinery constructed by the plaintiff, but not completed within the time specified in the contract, in excuse for the delay the petition charged the defendant with obstructing the completion of the work, without stating facts constituting such obstruction. Exceptions urged to this general allegation should have been sustained. It was error to overrule the exceptions and admit testimony under the allegation excepted to.</p> <p>2. Profits as Basis for Damages. — The law does not condemn profits as such as a measure of damages. The question is, would the loss of profits be the direct result of the breach of the contract declared on, and would such loss reasonably be supposed to have entered into the contemplation of the parties at the time of making the contract? See example.</p> <p>3. Measure of Damages — Profits.—In a contract for construction of an ice machine by a day certain, it appeared that the machine was relied upon to furnish a given quantity of ice upon an existing contract. Held, that losses suffered upon such contract from the delay in the completion of the work were chargeable to the contractor, and formed a basis for recovery of damages. But under a general allegation of expected profits from the ice business during the season, and which were lost by the failure, etc., no recovery could be had.</p> <p>4. Extra Compensation. — A contractor having fully completed his work upon a machine he had undertaken to construct, has the right to recover for any extra material or labor furnished upon request of the owner, or necessitated by his misuse of the machine after its completion, or its acceptance by the owner. See example.</p> <p>5. Evidence Incompetent. — An itemized account of material and labor used in the negotiation of a contract is merged in a subsequent written contract, and the plaintiff suing for the contract price could not introduce such bill of items unless the defendant resisting payment had offered some part of its contents ; there being no ambiguity or uncertainty in the written contract, nor fraud or mistake alleged as basis for such testimony.</p> <p>6. Charge — Partial Performance. — Action by contractor against owner for contract price of machinery. The defendant pleaded that the machine had not been delivered by the time stipulated for, nor of the earning capacity called for in the contract. Held, error to refuse a charge that the owner retaining the imperfect machine was chargeable only with the reasonable value of the machine; that is, the contract price less the damages for deficiency.</p> <p>7. Testimony to Waiver — Admissions.—Declarations by the president of the defendant company made after the delivery of machinery for the defendant, were admissible against it; the president having stated that the machine was satisfactory, was competent to prove a waiver of a test contained in the contract, and to which the machine had not been subjected.</p> <p>8. Opinion Testimony. — An expert was properly allowed to testify, that from records kept of the daily products of an ice machine that the machine had been abused and injured by its use.</p> <p>9. Measure of Damages — Double Recovery. — A defective ice machine was the subject of litigation between the contractor furnishing it and the purchaser. The machine was not furnished at the time specified in the contract. Damages for loss of profits upon a contract for delivery of ice contemplated by the contractor when undertaking the work, are recoverable; but rents for the machinery during the delay can not be recovered save for the machinery over that necessary to fill the contract.</p>

<p>Appeal from Bexar. Tried below before Hon. G-. H. Noonan.</p>

<p>Survey Calling for Another — Excess. — Where two surveys are made near the same time, and the junior calls for the older, the junior survey will extend to the older survey called for, wherever established, even if such call be an open line, when there is no unreasonable discrepancy in the distance called for.</p>

<p>This was a proceeding under the statute to try the right of property to certain goods, wares, and merchandise, levied on under an attachment sued out by the Bank of California, as plaintiff, against Eaton, Guinan & Co., from the District Court of McLennan County. Property was regularly levied on under the attachment, and John F. Marshall filed affidavit claiming the property, and gave bond to try the right to the same under the statute.</p> <p>The case was tried by the court upon an agreed statement of facts, on the 11th day of November, 1891, and there was judgment for the defendant, claimant Marshall, from which judgment the plaintiff appealed.</p> <p>The following is a written agreement, signed by the attorneys of the respective parties to this suit, stating the facts of this case, and the facts of seven others, which we adopt as the findings of fact in this cause:</p> <p>The following written agreement, signed by the attorneys of the respective parties, was offered in evidence:</p> <p>“Suits in the District Court of McLennan County.—No. 5002, Sweet Springs Milling Company v. John F. Marshall; No. 5003, Steinwender, Stoffregen & Co. v. John F. Marshall; No. 5004, The Bank of California v. John F. Marshall; No. 5005, The Fairbanks Canning Company v. John F. Marshall; No. 5006, Wm. Numsen & Sons v. John F. Marshall; No. 5007, Wm. Numsen & Sons v. John F. Marshall; No. 5008, Price & Lucas v. John F. Marshall; No. 5009, Church & Co. v. John F. Marshall.</p> <p>“ In order to facilitate a trial, we, plaintiffs and defendants in the above suits, agree to the following facts, upon which each of the above, causes shall be submitted to the court:</p> <p>“1. It is agreed that each of the plaintiffs was a creditor of the firm of Eaton, Guinan & Co. at and before the execution and delivery of the deed of trust to John F. Marshall, herein after named, in the several sums herein after set forth, for which judgments were rendered.</p> <p>“2. That by attachments duly and regularly sued out and issued from the District Court of McLennan in suits by said several plaintiffs on their several debts against Eaton, Guinan & Co., the goods and property described in the several claimants’ bonds were seized, and were, on the affidavits and bonds in the record, delivered by the sheriff to John F. Marshall, claimant; that said goods were a part of and included in the same conveyance to said Marshall by said deed of trust, and were of the values recited as the assessed values in said several bonds of claimants.</p> <p>“ 3. That the property conveyed by the said Eaton, Guinan & Co. to said John F. Marshall, trustee, and levied on by plaintiffs, was up to the time of execution and delivery of said deed of trust a stock of merchandise held and being disposed of by them as wholesale and jobbing merchants in Waco, Texas.</p> <p>“ 4. That said Eaton, Quinan & Co., and each and all the members of said firm, were at the time of the execution and delivery of said deed of trust wholly insolvent, and had no other property out of which plaintiffs could make their debts.</p> <p>“ 5. That said Eaton, Quinan & Co. were still and are so indebted to the several plaintiffs in the amounts of the judgments rendered in said several attachment suits against them, wherein said property was claimed by said Marshall, as follows:</p> <p>“ (1) Steinwender, Stoffregen & Co., judgment June 14, 1889, $4564.80 and 8 per cent per annum thereon from date.</p> <p>“ (2) Bank of California, judgment for $6784.56, June 10, 1889, with interest at 8 per cent per annum from date.</p> <p>“ (3) Fairbanks Canning Company, judgment for $1092.54, June 3, 1889, interest at 8 per cent per annum from this date.</p> <p>“ (4) Wm. Numsen & Sons, judgment in No. 4859 for $1747.60 and 8 per cent per annum from date, dated June 10, 1889.</p> <p>“ (5) Wm. Numsen & Sons, judgment in No. 4868 for $807.74 and 8 per cent per annum from date, June 3, 1889.</p> <p>“ (6) Price & Lucas, judgment for $875.16 on June 3, 1889, with 8 per cent per annum from date.</p> <p>“ (7) Church & Co., judgment for $974.03, October 11, 1889, interest at 8 per cent per annum from date.</p> <p>“ (8) Sweet Springs Milling Company, judgment for $1558 on June 3, 1889, interest at 10 per cent per annum from date, which is entitled to a credit of $437.85 on date of judgment.</p> <p>“In all which cases there was judgment for costs, which it is agreed shall be shown by the fee books, except in last case, in which costs were paid.</p> <p>“ It is admitted that in each of these cases judgment was rendered foreclosing plaintiff’s attachment lien on the property levied on, subject to the claim of said John F. Marshall.</p> <p>“6. It is agreed that the deed of trust, a copy of which is hereto attached, was executed and delivered to said John F. Marshall, and that possession of the property was delivered to him at the time of said delivery of the deed, which was immediately registered properly as a chattel mortgage, and that he was so in possession when the bonds of the several plaintiffs were made, and that he claims the title and possession of said property only by virtue of said conveyance.</p> <p>“ It is further agreed that the writs of attachment of several plaintiffs were sued out at the time and for the amounts and levied as alleged in plaintiff’s tender of issues.</p> <p>“8. It is admitted and agreed that said Eaton, Quinan, & Co. were, at and before the execution of the deed of trust by them to John F. Marshall, indebted to the several creditors therein named in the amounts therein recited, but this is without prejudice to the right of plaintiffs to assail the validity of said debts in any other suit.’ ’</p> <p>“ The State of Texas, McLennan County. — Know all men by these presents, that we, John C. Eaton, Michael Guinan, and Walter A. Malin, of the city of Waco, McLennan County, State of Texas, are merchants and partners, engaged in the wholesale grocery and provision trade in said city, under the firm name Eaton, Guinan & Co.; and said Walter A. Malin has always used in connection with said business the name of his wife, N. Malin, by reason of the first money put in as share in the capital stock of said firm being her separate means; but by sales and investments of the proceeds of the commodities first purchased said interest or right of property in said firm has become and now is the community property of said Walter A. Malin and N. Malin, said share being the share of said Malin.</p> <p>“And we, John C. Eaton, Michael Guinan, and Walter A. Malin, composing said partnership or firm of Eaton, Guinan & Co., for and in consideration of one dollar to us in hand paid, and for the further considerations herein after stated, have bargained, sold, transferred, and conveyed and delivered, and do by these presents sell, transfer, convey, and deliver to John F. Marshall, of the city of Waco, McLennan County,. Texas, all our goods, wares, merchandise, and commodities which usually constitute a stock of wholesale groceries, and everything now constituting our stock in trade of every kind which are -in the store house or place of business now occupied by us, situated on South Fourth Street in said city of Waco, and all our office furniture, safe, show-cases, scales for weighing, and everything or implement used by us in connection with said business, which are in said store house; also one candy works or plant, and all tools, apparatus, and implements connected therewith which are now in said store house; and all fireworks and commodities in store in a barn situated on the lots occupied by John C. Eaton as a homestead in said city.</p> <p>“ But this conveyance in sale is made to said John F. Marshall in trust and for the purposes following, viz.: We are indebted as partners aforesaid to the corporations, firms, and persons in the manner and by the means shown herein after, and are desirous of securing payment to them of all we so owe them. The corporations, firms, and persons, and the amounts we so owe, and the evidence of said indebtedness, and the residences of our said creditors, is here stated:</p> <p>“ To Waco State Bank of said Waco, Texas, by our notes, as follows, made payable to said bank: One note dated August 25, 1888, due on demand, for 86500; one note dated December 20, 1887, due at ninety days, for 84250; one note dated November 2, 1888, due at sixty days, for 8855; one note for 82024.71, dated October 22, 1888, at thirty days; one note dated October 20, 1888, and due at one month, for $7500; and each bearing interest at 12 per cent per annum after date.</p> <p>“ To J. K. Armsby Company, of San Francisco, California, by our acceptances in their favor, as follows: One acceptance dated third day of November, 1888, at sixty days, for $1672; one acceptance dated first of October, 1888, at sixty days, for $575; one acceptance dated October 25, 1888, at sixty days, for $1650.</p> <p>“ To Niggerman & Sayres, of St. Louis, Missouri, the following acceptances by us in their favor: One dated November 8, 1888, at sixty days, for $1164.15; one dated October 10, 1888, at sixty days, for $1313.</p> <p>“To N. K. Fairbanks & Co., of St. Louis, Missouri, by our note to them dated November 10,1888, due at thirty days after date, for $1883.36; one open account dated August 7, 1888, due at four months, for $1443.75.</p> <p>“To Kehler Bros., of St. Louis, Missouri, by our acceptances in their favor, one dated November 10, 1888, due at thirty days, for $1545; one dated November 15, 1888, at thirty days, for $940; one dated November 27, 1888, at seven days, for $2450.60.</p> <p>“To Iíéllum & Rotan, of Waco, Texas, by our note dated November 6,1888, due on 6th day of December, 1888, for $622; another note dated 6tli day of November, 1888, for $1000, due December 15, 1888; by open account for $90.</p> <p>“ To Waco Lumber Company, of Waco, Texas, one note dated October 5, 1888, due at sixty days, $82; one note dated November 8, 1888, due at thirty days, for $71.60; open account for $150.</p> <p>“ To Sanger Bros., of Waco, Texas, by our note of date November 26, 1888, due at thirty days from date, for $1260.</p> <p>“To John W. Mann, of Waco, Texas, by our note dated November 15, 1888, due at three months from date, for $1222.50, with 12 per cent interest from date.</p> <p>“To Parker, Hart & Co., by account, for $297.</p> <p>“To T. D. Clark, of San Francisco, California, by note made by us, date November 1, 1888, for $1000, due at ninety days from date.</p> <p>“All above notes and acceptances are signed by our said firm, Eaton, G-uinan & Co., and all of said accounts and all indebtedness above named are owing by said firm or partnership. And said Mrs. Malin, wife of Walter A. Malin, for the purposes and considerations, uses, and trusts stated above, joins in this conveyance, and does hereby convey to John F. Marshall all her right, title, and interest in all of said property stated above, in the same manner and to the same extent as the said Eaton, Guinan, and Walter A. Malin have done hereby.</p> <p>“ Said John F. Marshall is to take immediate possession of the property and effects hereby conveyed, and sell a sufficiency thereof in the usual course of trade for cash to pay off all said debts herein before stated, after reserving to said John F. Marshall 2-[ per cent commission on the amount realized by such sales, and also a sufficiency to pay all expenses of sale and executing this trust, and the rent of store house; and after having sold a sufficiency to pay off said debts, commissions, expenses, and rent, not exceeding $150 per month, of store house during the time occupied by him and in which said property is kept, and while making said sale, then the remainder of said property and effects are to be returned to us, and this conveyance or instrument is to be of no further effect. And if upon the expiration of three months from this date a sufficiency be not sold for the purposes aforesaid, said John F. Marshall shall, after being so requested to do by writing, signed by a majority in interest of said creditors, advertise said property and effects for sale at auction for cash at such place as he may select in the city of Waco. Said advertisement shall be printed, and shall state the time, place, and terms of sale, and one shall be posted at the court house door of said county of McLennan, and at two other and different public places in said county, for ten days previous to said sale; and shall sell only a sufficiency to realize such deficit as there may be for the payments, commissions, and expenses aforesaid, and rent. And then the remainder of said property and effects is to be returned to us, and this instrument is to be of no further effect and null and void when all before stated is paid. And in case said trustee, John F. Marshall, may become unable or unwilling to execute this trust, a majority of our said creditors in interest "may, by a proper writing by them signed, appoint some other competent and suitable person to execute the same, with the same powers and limitations herein given to said John F. Marshall.”</p> <p>This deed of trust was properly signed and acknowledged by the members of the firm of Eaton, Guinan & Co., December 1, 1888, and was properly and duly recorded.</p> <p>We also find that the total value of the goods levied upon in the several suits mentioned in the agreement of the parties to be the sum of $22,136.29, as shown by the estimate of the officer levying the writs of attachment.</p> <p>That $44,911.67 is- the total amount of the debts secured by the deed of trust.</p> <p>[This statement accompanied the opinion.]</p>

<p>1. Pleading — Exhibits. — A petition must contain a full and clear statement of the cause of action, and such other allegations pertinent to the cause as plaintiff may deem necessary to sustain his suit. The legal import of the transactions must he stated, and the undertakings" imposed, as well as the failure by defendant to perform them. An exhibit showing the terms of a contract can not supply the absence of allegations in the petition of the legal effect of such contract.</p> <p>2. Specific Performance. — See allegations held insufficient to support a decree for specific performance in favor of the plaintiff.</p>

<p>1. Cross-Examination of Witness. — A plaintiff testified for himself upon a second trial in an action for personal injuries inflicted by a train running upon him when driving a wagon and crossing the track. He made a materially different statement from that made on the former trial as to the distance the train was from the crossing when he noticed its approach. On cross-examination it was reversible error to refuse the following question: “ Have you not made a different statement in your testimony on this trial as to the distance the train was from you when you first saw it, from the statements you made in your testimony on the former trials of this case, by reason of the Supreme Court having reversed the case and you having seen the grounds upon which the case was reversed ?” The witness had admitted having read the opinion of the Supreme Court holding him guilty of contributory negligence upon his own testimony as to the distance the train was from him when he saw it.</p> <p>2. Verdict — Personal Injuries. — In a railway collision plaintiff had his leg broken, thigh and ankle injured, was confined from injuries eleven months in hospital, crutches were necessary for a year longer, and permanent lameness remained. Held, a verdict for $7250 is not excessive.</p>