Volume 1 — Texas Law Review Reports

<p>Appellant brought this suit June 28, 1872, against appellee,, to recover upon a bond for $50,000 and interest. The substance of the case made by the petition is that the city of Indianola is an incorporated city ; that the Indianola railroad was incorporated try special act of the legislature with its principal office at Indianola, that on the fourth day of August,. 1870, the same was consolidated with the San Antonio and Mexican Gulf railroad company under the name and style of “The Gulf, Western Texas and Pacific railroad company,” by special act'of the legislature passed the fourth day of August, 1870, and contract made in pursuance of the same. That the Indianola railroad company was created by act of the legislature, approved January 23, A. I)., 1858, and the San Antonie and Mexican Gulf railroad company was created by act approved September 5, 1850. That said companies were authorized by their charters to construct a railroad from the mouth of Powderhorn bayou, on Matagorda bay, and from the town of Lavaca to the cities of Austin and San Antonio. And by the act of consolidation, the G.ulf, Western Texas and Pacific railroad company was authorized to construct such railroads. The eleventh day of April, 1870, the Indianola railroad company applied to the city authorities for the right-of-way over certain of the streets and alleys of the city, which was refused on the ground that the construction of the road on the line designated would be detrimental to the interest of the city, etc., unless the road should be speedily extended at least sixty-five miles into the interior. June 20, 1870, the-city council passed a resolution granting to the company the right-of-way on the desired line upon conditions set forth therein, among others that said company should execute a bond in the sum of $50,000, conditioned that the company would construct and complete alone, or in conjunction with other companies, a continuous line of railroad from Indianola to the town 'of Victoria, and to a point twenty-five miles beyond, within twenty-two months from July I, 1870. On June 21, 1870, the board of directors of said company passed a resolution accepting the grant of the right-of-way on the conditions mentioned, and authorized, the president thereof to receive a deed from the city,and to execute aud deliver the required bond*</p> <p>The deed was made, executed and delivered by the city the same day, and the same day the company, through its president, made, executed and delivered the bond.</p> <p>That said company was afterwards consolidated as above stated, and that the company had failed to construct and complete the railroad to the point designated within the time therein named, but that it had failed and refused to comply in this particular with the terms of said bond. That the said company had constructed the road through the city of Indianola along the streets and alleys designated in said deed, and was then continuously occupying the same with its cars to the great disadvantage, inconvenience and damage of the city. The prayer is for a judgment of $¡>0,000 as stipulated damages with interest.</p> <p>The defendants tiled-general and special exceptions, among others upon the following grounds :</p> <p>First. — That, it appears from the petition and exhibits, that the consideration for the, contract sued on, is illegal, for that the, company had the right, to the use of the streets without paying any compensation therefor, and the city had no power over the subject matter of this contract.</p> <p>Second. — That the contract, was ultra vires, both as to the railway company and the city.</p> <p>Third. — That- the amount named in the contract or bond is a penalty and not stipulated damages.</p> <p>The cause came on for trial October 3,1873, when the court s us lain ed appellees'" demurrers to appellant’s petition, andren, dered judgment that appellee go hence without day, and appellants pay costs, etc. From that judgment this appeal was taken, and errors assigned as follows :</p> <p>First. — The court erred in sustaining the defendants general and special demurrer to plaintiff’s petition.</p> <p>Second. — The court erred in dismissing the above entitled suit upon demurrer.</p>

<p>Appeal from Parker county.</p> <p>The facts appear in opinion of court.</p>

<p>Appeal from County Court of Bell County.</p>

<p>Appeal from the County Court of Milam County.</p>

Joseph Bledsoe, district judge. t The appellee having obtained a judgment in the Grayson district court against the Drovers and Planters’ bank, filed a motion against appellants and W. H. Hughes, alleging that they each owned stock in said bank, and had not paid for the same: that the bank was insolvent, and had no property on which to levy an execution, which had been issued on the judgment and returned nulla bona, and prayed for an order authorizing the issuance of an…

<p>[Note.- — Under this head we will give a syllabus of such opinions of the Supreme Court, Court of Appeals and Commission of Appeals, which we will be unable to report in full. — Ed.|</p>

This suit was brought by James L. Leslie against the appellant claiming $20,000 as damages on account of injuries sustained and caused by the negligence of appellant’s employees who were in charge of and conducting the passenger train of cars on defendant’s line of road; which injuries were received at Yan Alstyne, a station on said road.

<p>Attachment — Deed of Assignment — Preferred Creditors. — Under the insolvent act of 1879 a debtor who does not take the benefit of that act, cannot, in good faith, prefer one or more of his creditors to the exclusion of the remainder, and a deed of assignment which seeks to do this, renders the pretended assignment fraudulent and without effect, and cannct be invoked to place the property of the assignor out of the reach of attachment of other creditors.</p>

<p>This suit was brought in the District Court of Uvalde county by appellant against appellee to recover the sum of 8763. The petition which was filed August 6,1875, alleges a verbal contract between the parties by which appellant was the gather and deliver to the appellee at Steel ranch, in said county, on the second day of April, a number of cattle at one dollar, coin, per head; that the contract was made March 10, 1873; that appellant gathered the cattle to the number of 760 and had them ready at the time and place of delivery, but that appellee refused to claim the cattle or pay for the gathering and prayed for judgment for the sum of $760 coin, with legal interest from the second day of April, 1873. January 8, 1875? the case was continued for services. Citation issued January 23, 1875, and was served by the sheriff of Uvalde county January 26,1875. May 17,1875, the cause was continued by consent. September 22,1875, being the first day of the term of the court, the parties filed in the cause an agreement to submit the matter in controversy to arbitration. The agreement commences as follows, to wit:</p> <p>Ko. 112 A. A. Kelso</p> <p>vs.</p> <p>P. T. Adams.</p> <p>Suit for damages pending in the District District Court of Uvalde county.-</p> <p>We, the undersigned, plaintiff and defendant in the above suit, hereby agree, etc. The agreement is signed by A. A. Kelso, plaintiff, and P. T. Adams, defendant. At the same term of the court on the twenty-fifth September the cause was-continued by consent. January 17, 1876, appellee filed, under oath, a plea to the jurisdiction to the effect “that before and at the time of the commencement of this suit he resided in the unorganized county of Zavalla,-which is attaqhed to the county of Frio for judicial purposes, and not in the county of U valde.” On the same day appellant moved the court to strike out the plea upon the ground that appelle had waived his privilege and submitted to the jurisdiction by consenting to the continuances and by filing papers in the case. The court empannelled a jury and instructed them to find in which of the two counties the appellee resided on the sixth day of August, 1874, the day the suit was filed. The jury returned that he resided in Zavalla and the court rendered its judgment dis missing the suit. From a bill of exceptions it appears that appellant offered io prove by the record that the appellee had filed in the cause the agreement to arbitrate, but the court excluded the evidence. The testimony shows that appellee, at the commencement of the suit lived in a mile or two from the IJvalde county line and that he resided there until February 25, 1875. Appellant offered to prove that since the filing of the suit appelle had removed into Uvalde county, and was residing in said county at the date of the trial, but the court refused to admit the evidence, to which appellant excepted. The court, in signing appellant’s bill of exceptions, does so with the explanation “that no pleas had been filed by defendant nor any appearance except by entry of attorney’s names on the docket, and the agreement to continue and written agreements to arbitrate.”</p>

<p>Principal and Agent — Burden of Proof — 'Erroneous Charge.— Where a party is sued as an individual and he sets up the defence that he was acting as an agent, it was not only incumbent upon him to disclose the fact at the time of making the contract, but he should also have informed who was his principal. To have done less would not have enabled the plaintiff to know to whom to look for the performance of the contract.</p>

<p>[Note. — Under this head we will give a syllabus of such opinions of the Supreme Court, Court of Appeals and Commission of Appeals, which we will be unable to report in full. — Ed.]</p>

<p>Corporation — Pleading in Justices’ Courts — Burden of Proof.— In justice’s courts, where pleadings are oral, it was not required that allegation should be made that defendant “was a corporation duly incorporated,” as in similar suits in District and County-Courts.</p> <p>Where stock is killed by a passing train on a railroad track the burden of proving that the road was fenced devolves upon the railroad company «</p>

<p>From county court of Comal county.</p>

<p>Appeal from San Augustine county.</p>

<p>Error from Hays county.</p>

<p>Indictment — Gaming—Public Place. — If the playing at a game ot cards was done at a place or house other than those specially mentioned in the statute, the indictment must state facts sufficient to show that the house or place was public.</p> <p>Under the “Act to prescribe the requisites of indictments in certain cases” it is provided that “when to constitute the offence, an act must be done in a public place, it is sufficiant to allege that the act was done in a public place,” but this statute went into effect after the indictment in this case was returnnd.</p>

<p>Appeal from Lamar county.</p>

<p>Appeal from Cooke county.</p>

<p>Appeal from Cooke county.</p>

<p>Appeal from Collin county.</p>

<p>liape— Continuance — Sufficiency of Indictment — Evidence. — An application, admitted to be technically good under the requirements of the statute, alone will not entitle the party to a continuance. This court wil not revise the action of the court below in overruling the application unless from the materiality and probable truth of the testimony, upon the absence of which the application is based, it be made to appear that the discretion reposed in the trial court has been abused.</p> <p>The “common sense indictment bill” does not intend to limit or exclude the right to use other forms which are in conformity with statutory definitions and well established precedents.</p> <p>In prosecutions for rape it would seem that proof of penetration could be established by circumstantial evidence.</p>

<p>[Note. — Under this head we will give a syllabus of such opinions of the Supreme Court, Court of Appeals and Commission of Appeals, which, we will be unable to rep ore in full. — Ed.]</p>

<p>Appeal from Erath county.</p>

<p>Appeal from Wiiliamson county.</p>

<p>Continuance — Surprise—Mistake—Fraud.—The unauthorized withdrawal of a material witness after the commencement of trial, has always been held ground of surprise sufficient tobase an application for postponement or continuance.</p> <p>Artifice, trickery and fraud of prosecuting officers, whereby a defendent has been induced to go to trial, to his injury, have been held good grounds for reversal and for new trial.</p> <p>Although the facts relied on for reversal should be clearly stated, and not left to inference, still, where the inculpatory evidence is of an unsatisfactory and meagre character, this court will reverse and remand the cause.</p>

<p>Indictment — Sufficiency of Description — Theft —■ Swindling.— Under a recent provision of óur statute it is declared that “in indictments for theft or embezzlement of any coin or paper current as money or of any checks, bills of exchange or other such security, it shall be suificient to describe the property in general terms as “money,” “checks,” “bills of exchange” or other evidence of debt, of, or about a certain amount,” and an indictment possossing these requisites must be held good as to the description of money stolen.</p> <p>If a conviction could be had under a general oharge for theft where the property was acquired by means of false pretences, no reason is seen why a conviction cannot be had for swindling, under the same charrcter of indictment, more particularly when our statute expressly declares that “theft includes swindling, embezzlement and all unlawful acquisitions of personal property punishable by the Penal Code.”</p> <p>In a prosecution for swindling the testimony of other witnesses, similarly defraunded by defendant about the same time of the commission of the alleged offense, is admissible to prove the identity as well as the motive and intent of the defendant.</p>

<p>Appeal from Brown county.</p>

<p>In this opinion the conclusions reached are:</p> <p>1. That the constitutional “right to demand the navdre and came of the* accusation against him ” guarantees to the accused that the indictment or information shall state every fact and circumstance necessary to a certain, specific and complete description of the particular offense, so as to characterize it and make it judicially appear upon the record of the cause.</p> <p>2. That a person tried for a crime not so set forth and described in the indictment in the case, no matter how fully it may describe any other, is not held to answer for that particular offense, “on indictment of a grand jury,” as contemplated by the hill of rights.</p> <p>3. That a conviction for a crime not so made to appear upon the record by the indictment, is not “ by the due course of the law of the land.”</p> <p>4. That these constitutional provisions are addressed to, and control the judiciary, as well as the legislature, and require this court to reverse a judgment based on a violation of either of them, whenever properly brought before it on appeal, in order that the citizen may not be deprived of life, liberty or property without due process of law.”</p> <p>5. That the controlling power of these provisions cannot he removed, contracted nor limited by any legislative enactment, hut must remain complete as part of the supreme law of the land, infavor of any person accused of crime in this State, until the State in convention, by the use of its original sovereign powers — after the United Stares shall'have removed the binding effect of the Fourteenth Amendment of the Constitution of the United States— remove the three provisions from its constitution.</p> <p>6. To allow the indictment for a greater to sustain a conviction for the lesser offense, it must contain the statement of every inculpatory fact and circumstance material to the description of the latter, and the two must be alike as to all the essential constituent elements of the lesser offense, so that the allegation will include it, without contradicting the material averments of the greater. Whenever an indispensihle constituent fact or circumstance of the lesser is not included in the greater, the latter cannot be made to include the former, no matter how many other facts and circumstances may he common to both.</p>

<p>Homestead, Abandonment of. — Where the husband conveys the homestead of himself and wife, without being joined in the deed by the wife, a removal to another place, although it be not another homestead, coupled with the declaration of the wife prior to the time of the sale that shé did not claim the prop erty as her homestead, and the failure t.o assert, the homestead claim for twenty years thereafter, though living in the same county, held to constitute and establish an abandonment of the homestead.</p>

<p>New trial — JSvidence—Diligence.—Where a deed purported to he over thirty-five years old, and was proved up by several respectable witnesses, it could hardly be anticipated that an effort would be made to disprove its genuineness by showing that at different times about the date of its execution tbe grantor was at a point far distant from that shown in the deed, and this was such evidence as a party, in the exercise of ordinary diligence, was not bound to be prepared to meet.</p>

On July 21, 1874, the plaintiffs in error brought this suit against defendants in error to recover the land in controversy, claiming the same as the heirs of Wm. Gatlin, deceased. The defendants answered by general denial, not guilty, three, five and ten years limitation, and suggested improvements made in good faith. By amendments the suit in .effect became one to determine boundary, the plaintiffs claiming the land in controversy as part of the Wm.

Appellee, Henry N. Clark, a minor, by bis next friend, instituted this suit February 15, 1875, against appellant John Brooke, for damages, actual and exemplary, for an alleged act of gross negligence… Held: however, would, perhaps, not be seriously questioned, had the minor plaintiff failed in this action.

<p>Practice, — Mo power in Imsband, to grant right of way over separateproperty of wtfe — Evidence.—Where the question whether the property appropriated was the community property of the husband and wife, or the separate property of the wife, was fairly submitted to the jury, and they find it the separate property of the wife, and there being evidence to sustain the finding, this court will only consider that part of the assignment of errors which refers to the property as separate estate.</p> <p>The right of way attempted to be granted to the railroad in this case was something more than an easement, and as such carried with it an interest and estate in the separate property of the wife, which at no future time could he revoked-The power to make such conveyance exists only in the owner of the soil, and the statutes of this State have vested no such power in a husband in reference to lands the separate property of the wife.</p> <p>The court did not err in permitting proof as to the understanding between Mrs. Durrett and her husband, at the time the land in controversy was deeded to her, that the same should be her separate property. .</p>

<p>Appeal from Caldwell county. — This suit was brought by appellants, Jesse R. Bond and Elizabeth, his wife, against appellees, A. A. Ellison, sheriff, S. A. Bruce, his deputy, and A. Lichtenstein, to recover damages for an alleged wrongful levy and sale by the sheriff under an execution in favor of Lichtenstein, of certain household and kitchen furniture belonging to plaintiffs. The petition was filed August 12, 1875, laying the damages at $1000.</p> <p>Bond was keeping a hotel in the town of Luling. His family . consisted of himself, his wife and one child. On March 13, 1875, Lichtenstein recovered á judgment against him before a justice of the peace for $110.83, and upon affidavit made by Lichtenstein, execution was issued before the expiration of ten days from the date of the judgment. The execution was immediately levied upon the furniture in the hotel, consisting of beds and bedding, tables, and table furniture, a cooking stove and equipments. The property was worth, perhaps, $100; though plaintiff Bond said in his testimony that it was worth to him, $500. It brought at this sheriff sale $67.05. The hotel building was separate from the private dwelling of the family, but connected with it by a platform. No furniture was taken from the private apartments of the family, and the officers left for them all such articles as were pointed out by Bond, for the use of the family.</p> <p>On January 6, 1876, plaintiffs amended, alleging that the household and kitchen furniture levied on and sold ivas not over the value of $500, was exempt from execution, and was necessary for the use of the family. September 5, 1875, defendants answered by demurrer, and set up that the property was liable to seizure and sale under execution, that plaintiff was abont to remove it out of the county, and execution was properly issued before the lapse of ten days after the day on which the judgment was rendered. Defendants filed two amendments, in one of which they announce that no part of the “ family household and kitchen furniture was levied on and sold under the execution.”</p> <p>The trial was had on the sixth of January, 1876.</p> <p>The judge, in his charge, after explaining to the jury that the law reserved from execution to every family “ all household and kitchen furniture,” instructed them that if they believed from the evidence that the defendants, or the defendant Bruce, had levied on and sold property of the plaintiffs which was exempt from forced sale, because it was household and kitchen furniture, and used as such by the plaintiffs and their family at the tithe, they should find a verdict for the plaintiffs for the value of the property so levied on and sold, with eight per cent interest, and for such actual damages as plaintiff had sustained by being deprived of the use of the furniture.</p> <p>The charge concluded as follows: “But if you believe from the evidence that the execution was not levied upon household and kitchen furniture, or that the property at the time it was so seized and levied on was not used by the plaintiffs as household and kitchen furniture, you will in either such event find for the defendants.”</p> <p>Verdict-and judgment for defendants, and motion for new trial being overruled, plaintiffs appealed.</p> <p>Tbe motion for new trial was upon tbe grounds:</p> <p>1. The verdict was contrary to the law and the evidence.</p> <p>2. The court erred in its charge.</p> <p>3. The charge was calculated to mislead the jury.</p> <p>The assignments of errors are as follows:</p> <p>1. Error in the charge of the court.</p> <p>2 and 3. Error in overruling motion for a new trial.</p> <p>4. Other errors apparent in the record.</p>

— This is a case of arbitration and award under the statute. It involves the settlement and adjustment of accounts between. Swisher and Saylor, growing out of a partnership in government contracts. By an agreement, made conformably with the statute, each party selected an arbitrator, and the two so selected heard the evidence, stated the amount between the parties and made an award in favor of Saylor and against Swisher for $1734.40.

<p>Plea to jurisdiction — Necessary averments — Lease eont/ract. — In asserting Ms privilege to be sued in a particular county, defendant must, by proper averments, give the plaintiff a better writ. Where defendant was sued as executor upon what was claimed as a moneyed demand against the estate, it was TreoesggryTirhlsplea to aver in what county the estatewas being administered'; otherwise the plea is defective, as it does not give the plaintiff a better writ. ~~</p> <p>The effect of a lease contract can only be avoided by showing that it was induced by fraud or originated in a mistake of fact.</p>

<p>Appeal from Harris county</p>

<p>Indictment for theft. — An indictment for theft, drawn in accordance with the form prescribed by the act of twenty-sixth of March, 1881 (General Laws Seventeenth Legislature, page 62), is bad.</p>

<p>Appeal from Burleson county.</p>

<p>Impounding estray — City ordinance — Bale by pound master — Title of purchaser — Negligence of owner — His right to redeem — His residence — Case approved. — An ordinance of the city of Austin provided that: “It shall not be lawful for the owner or keeper of any horses * * * to permit the same to run at large at any time, day or night, within the corporate limits.”</p> <p>Other ordinances provided for the appointment of a pound master, the capture and impounding of animals found running at large within the city limits, the redemption of impounded animals by the owner, the sale of such animals, when not so redeemed, and the redemption thereof by the owner after sale.</p> <p>While these ordinances were in force, a resident of Coryell county was within Travis county with a team of horses belonging to him, when one of them strayed away from him, into the limits of the city of Austin, where it was duly impounded and sold by the pound master, under the above ordinances, without the knowledge of the owner, who had made inquiry and search for the horse, but did not learn of or find the horse until he found it in the possession of the purchaser, long after the sale, whereupon, he brought suit against such purchaser to recover the horse, and for the value of the services thereof, claiming such ordinance to be invalid.</p> <p>Held, that this question has been settled adversely to the plaintiff by The City of Waco vs. Powell, 32 Texas, 258, which decision is approved.</p> <p>Held, also, that the city council of Austin had authority to enact such impounding ordinances.</p> <p>Held, also, that said ordinances are operative as to all animals found running at large within the city limits, in violation of such ordinances, regardless of whether owners of such animals are residents or non-residents of the city.</p> <p>Held, also, that the plaintiff was at fault, and that the running at large of his horse within the city limits was permissive, on his part, within the meaning of the ordinance.</p> <p>Held, also, that the purchaser at the pound sale acquired a valid title, subject only to the plaintiff’s right to redeem, which right, in this action, he did not seek to enforce.</p>

<p>Appeal from Travis county.</p>

<p>Bankruptcy — Omission from, schedule — Estoppel.—The title oí a bankrupt, notwithstanding the failure to schedule the land, passes to the assignee as effectually, for the purposes of his trust, as did the title to any other property of the bankrupt. Such land not having been disposed of by the assignee, the title thereto, after the termination of the bankruptcy proceedings, remained in the bankrupt or his heirs, and the mere fact that the land was scheduled constitutes no valid ground for denying to the heirs the benefit of their title as against parties who fail to show any other ground of defense.</p>

<p>Removal of fixtures — Improvements pending suit, made by third pa/rty, with notice, not removable. — A defendant in trespass to try title who makes improvements pending the suit does so at the peril of losing the improvements, should the suit be determined against him, no matter what may have been his intention regarding their removal, although the premises may have been sequestered and replevied by him. Having, himself, no right to remove fixtures wrongfully annexed by him to the land of another after suit brought, he cannot give such right to a third party having notice of the pending suit.</p>

<p>Contract — Consti'uction of — Evidence—Architect's plans and specifications.— A sub-contractor on a building, being erected according to plans and specifications drawn by an architect, agreed with the contractor to furnish all the tin, galvanized iron and slating, “ and all the labor and material necessary to be” used and placed upon such building, “to be constructed according” to the plans and specifications of said architect; i. e., *■ all the tin work, galvanized iron work and slating of roof; or roofs, on said” building, “ and all material for same.”</p> <p>In an action to recover for the contract price, wherein the contractor alleged, as a partial defense, that the plaintiff had failed to put “ cresting ” on a tower, the evidence showed that “cresting” is made of pressed zinc or cast iron, being distinct metals from galvanized iron or tin; that the specifications did not show the “ cresting,” that it was shown on the plans, but that, had the architect made his specifications more minute, the “cresting ” would have been placed under the head of “galvanized iron” work on the roof.</p> <p>Eeld, that under the contract the sub-contractor did not agree to construct such “cresting,” nor to furnish material therefor.</p>

<p>Appeal from Cooke county</p>

This suit was filed in the County Court of Dallas county, October 17, 1881, by appellee to recover of appellant the value of a trunk and its contents alleged to have been lost by appellant.

<p>Appeal from District Court of Williamson county</p>

<p>Appeal from Burleson county.</p>

<p>RaiProad — Negligence—Action for injury — Charge of court — Signals—Signboard. — Action against a railroad company to recover damages for injuries received by the plaintiff in a collision with a train of cars as he, while traveling in his wagon on a public highway, was attempting to cross the defendant’s track, at a point where the defendant had failed to erect any signboard, and at a time when, the petition alleged, the employees operating such train had failed to blow the whistle or ring the bell, as required by law, and the plaintiff having no notice and no means of knowing of the approach of the train until too late to avoid injury.</p> <p>In the charge of the court to the jury trying the cause, one paragraph treated solely of the alleged negligent act of the defendant, but the next paragraph correctly charged the law as to the effect of contributory negligence on the part of the plaintiff.</p> <p>Held, That the silence of the former paragraph as to such contributory negligence was not error.</p> <p>Same — -Contributory negligence, — The refusal of the court to give instructions asked by the defendant, on the rule of law as to contributory negligence, is not error, when that subject is fully and correctly covered by the charge already given by the court.</p> <p>Same. — There being evidence that the required signals had not been given in time, and that the plaintiff had not discovered the approaching train until too late to avoid injury, the jury could properly infer that, had these signals been properly given, the plaintiff would have been put on his guard against danger, and therefore a charge on this point was proper.</p> <p>Same. — There being evidence that the conductor of the train had seen the plaintiff while he was yet a quarter of a mile distant from the crossing, the defendant could not complain of an instruction that the jury might consider whether or not the train should have been stopped in time to have saved the plaintiff.</p> <p>Same. — There being evidence that there was no signboard at the crossing,, and that the plaintiff did not know that he was in the vicinity of a railroad until within sixty feet of the crossing, the court properly refused to instruct that the plaintiff ought to have been on the watch for approaching trains, and. that, had he so done, he would not have been injured.</p> <p>Same. — The defendant would not be relieved of liability for the injury because the plaintiff's team, in their fright at the train, became unmanageable and rushed upon the track, if the proper signals were not given in time.</p>

<p>Public free schools — Control by city — Taxation for support of — Elections—Public school houses — City bonds — luxation to pap interest — Injunction—Parties— Unauthorized revision of assessments. — A city assuming control of its public schools has authority to submit to a vote of the property taxpayers the question whether of not there shall be raise i by taxation such an amount, in addition to the school fund received from the State, as may be necessary to conduct the public free schools of said city for ten months in the year, not to exceed one-half of one per cent.</p> <p>After the result has been declared by the city council, no proceeding having been instituted to contest said election or have the result reviewed, it was not competent to review or inquire into said determination or result in a suit to enjoin the collection of taxes for support of city schools.</p> <p>By virtue of the vote of the taxpayers and of the statutory provisions, the city council had authority to levy a tax not exceeding one-half of one per cent, for the support of public schools for ten months out of the year, and although the amount raised was greater than was required for that purpose, the discretion of the council in fixing the amount will not be revised.</p> <p>Where a city assumes control of its public schools, public school houses within the city become public buildings within the meaning of the law, and a tax of one-fourth of one per cent for the erection of such school houses was valid.</p> <p>Where a city, under its charter, borrows money for general purposes, issuing its bonds therefor, the validity of a tax levied to pay the interest thereon is not affected by the subsequent appropriation of the money borrowed to an alleged unauthorized purpose. Nor is it competent to enjoin the collection of said tax on the ground of the invalidity of the bonds, without making the holders of the bonds parties to the suit.</p> <p>An ordinance creating a board of assessment to examine and revise the lists of property, after the same had been duly rendered to and accepted, and entered as satisfactory by the assessor and collector, was without authority and illegal.</p>

<p>Purchaser — Oommuniiy property — Sheriff’s sale of land conveyed to wife to satisfy judgment against her husband — Gases distinguished. — This cause, presenting apparently the same questions as those presented in Wallace v. Campbell, 54 Texas, 87, was originally, upon the authority of the latter case, decided in (he same way; but, upon rehearing, the opinion in Wallace v. Campbell, supra, is dissented from, and this cause reversed and remanded for a new trial. (See opinion, for review of cases cited, in Wallace v. Campbell, as supporting the same.</p>

<p>Salary — Statute construed — Salary fixed in one statute by reference to another —Judge,—The act creating a certain criminal district court provided that the judge should “ receive the same salary as judges of the district courts,” whose salaries were then fixed by an act concerning the latter courts, but were subsequently reduced by law. The judge of said criminal district court, though appointed subsequently to the said reduction of salaries of the judges of the district courts, brought an action against the State, under the statute authorizing him to so sue, to recover salary at the original and higher rate.</p> <p>Held, That the plaintiff was entitled to salary at the reduced rate only.</p> <p>Same — Process—Service.—In such action, though the statute authorizing it to be brought made no provision for service of process upon any one, yet service upon the Governor or Attorney-General was sufficient to bring the State into court.</p>

<p>Appeal from Travis County.</p>

<p>Control of public schools by cities — Authority to levy tax — Constitutionality of statutes— Validity of election — Not subject to collateral attack — Revisionary power of Supreme Court in election cases. — The statutes authorizing town taxation for the support of public schools, upon a vote of two-thirds of the taxpayers of the town, cannot be said to be clearly unconstitutional and void, and must, therefore, be held valid.</p> <p>The Constitution requires an affirmative vote of two-thirds of all the tax" payers of the town who are qualified voters, but the Legislature have adopted as a test of the number of voters in the city the number of votes cast, and there are numerous cases which seem to support their authority to do so, but the question is still deemed open.</p> <p>Where the city council have judicially determined the result of such an election, and no contest or direct proceeding having been instituted to set aside that judgment, it is not subject to collateral attack. Questions of that nature may be submitted by the political authority to such tribunals as the ■city council, wither without the right of appeal to or contest before some other tribunal.</p> <p>The validity of the various provisions in the Revised Statutes for contesting elections is still an open question, but if elections cannot be contested in the mode prescribed, and if the citizen is left in many cases powerless to institute such a contest, or at least uncertain how and before what tribunal to do so, the rights and interests involved are so vital, and the danger of gross and irremediable wrong so great, that the Supreme Court may with propriety reexamine its decisions supposed to lead to such results.</p> <p>The statute required the vote to be on a tax not exceeding one-half per cent, “as may be necessary to conduct the schools for ten months in the year.” The question actually submitted was “ whether or not the city council of said city should be allowed to levy a tax of one-fourth per cent for the support of public free schools within said city.”</p> <p>HM, That the city had no power to levy a tax for the support of public schools in the city, because the proper question was not submitted. A material departure, both in form and substance of the question submitted, from that authorized, is fatal to the tax.</p>

— November 8, 1870, this suit was instituted by appellees as beirs of W. H. Merrill and wife (both deceased), to recover the 320 acres of land in Lamar county, described in the petition, from appellants.

<p>Appeal from the District Court of Lamar county. — Appellants sued appellees October 24, 1870, in trespass to try title for the recovery of 1476 acres of land patented to the heirs of Sarah Cross, November, 1856, by virtue of a portion of the league and labor headright certificate of said Sarah Cross, deceased. Appellants claim Isaac Reed as the surviving husband, and the others as children of Sarah Cross, deceased.</p> <p>Appellees plead not guilty, also three, five and ten years limitation, and an outstanding title in the estate of W. M. Williams, deceased. Gibbons, as administrator of Williams’ estate, then intervened. (This intervention amounted to nothing, and will not be further noticed.) Appellees claimed title to the land in controversy by and through an administrator’s sale and conveyance of the Sarah Cross headright certificate for one league and labor of land, and the land located by virtue thereof; this sale was made in 1851, by Woodworth, as administrator of the estate of Sarah Cross, to Wm. M. Williams; that Williams purchased the same in. trust for the estate of Bowerman, of which he was administrator, and for Miltown, whom he represented as agent; conveyance by Williams, as such administrator and agent, to George Wright; confirmation of this sale by Miltown by subsequent power of attorney to Williams; also confirmation and approval of Williams’ conveyance, as administrator, by the District Court of Lamar county, in a suit by the heirs (Bowerman v. Williams and others); also by conveyance from three of the children of Sarah Cross to Everts, and by him to George Wright. The other appellees claimed under conveyance from George Wright.</p> <p>Appellants claimed that W oodworth’s administration of the estate of Sarah Cross was void; that she was living when he was appointed administrator; that the pretended sale by him was void for ■other matters (which are fully stated in the opinion); also, that no title passed by reason of Williams’ conveyance to Wright — first, because not authorized by any order of the probate court in the matter of Bowman’s estate, nor by Williams’ power of attorney to him; also estoppel, growing out of certain pleading, in the case of Bowman’s Heirs v. Williams; and that the three heirs who conveyed to Everts were under the age of twenty-one years at the time, received but a small consideration therefor; that Everts and Wright had, by their combined frauds, induced them to execute that conveyance, and asked that it be set aside, etc.</p> <p>The case was tried by the court, without a jury, November 14, ÍS^, and a judgment was rendered in favor of the appellees and against appellants for costs, and quieting appellees in their title and possession to the land. •</p> <p>From that judgment this appeal was taken. The errors assigned which are deemed material are noticed in the opinion.</p>

<p>Appeal from the District Court of Hill county. — This case was dismissed for the want of security for costs. The suit was brought in the District Court of Johnson county, where the clerk filed a motion for a rule of costs against appellants, who were plaintiffs in the case, on April 8, 1873. On April 14, 1873, the plaintiffs presented a bond for costs, which the clerk refused to approve, August 22, 1873, the court entered an order requiring the plaintiffs to give bond for the costs. December 9, 1873, they filed an informal and defective affidavit to the effect that the bond theretofore offered by them was good, and that they could not make any better or more solvent bond. The case was subsequently sent to the District Court of Hill county on change of venue, where, on the twenty-third day of June, 1875, the defendants moved the court to dismiss the case, because the plaintiffs had failed to give the bond, when the attorney for plaintiff objected on the ground that no service was shown to have been made upon plaintiffs of the motion for costs, and agreed then to accept service of motion, to relate back to its original filing and embrace, without objection, the rule that had already been entered in Johnson county District .Court, and agreed that the bond should be given at that term of the court, or the suit should be dismissed. This was all in open court. Next day W. H. Griffin, who was one of the plaintiffs, and was representing, as an attorney, himself and wife, came into open court and consented to the agreement. The court announced to the parties, in open court, that if the bond was not given, that the case would be dismissed. Subsequently, at the same term of court, the plaintiffs and defendants made and filed a written argreement to continue the case, and on the last day of the term the clerk of the District Court of Johnson county, who had filed the motion, asked the court to dismiss the case, for want of the cost bond, which was done by the court.</p> <p>The plaintiffs filed a motion to set aside the judgment of dismissal and reinstate the case. Upon hearing at the next term, the court overruled the motion, and the plaintiffs appealed.</p>

<p>Error from McLennan county. — Stith brought this suit against J ackson, Dc cember 24, 1873, to recover the balance of the proceeds of eighty head of horses, which it was alleged Fleming and J ackson drove to market and sold for one John H. Stith, under a contract with him to the effect that they would drive the horses to market and sell the same for him for a compensation of ten dollars per head, and to account to pay Stith the balance of' the money arising, from such sale; this was in 1866, and the horses were driven and sold the same year for $3123, of which amount there remained upaid about $1500, which had been transferred to plaintiff in error for value, by said John H. Stith. Fleming had become insolvent, and was not sued.</p> <p>Jackson answered by general demurrer, general denial, special denial of partnership between him and Fleming; and further, that he had no connection with the matter of the driving and selling of the Stith horses; that he had employed Fleming to drive cattle to market for him, and that Stith turned over the horses to Fleming on private contract between them, with which he, Jackson, was not connected, and knew nothing of; that he knew nothing about the horse transaction, and never received any of the proceeds arising therefrom.</p> <p>The case was tried December 18, lS^, and a verdict was returned and judgment rendered in favor of Jackson. That judgment is now before the court on writ of error. There is no statement of facts in the record. The only error relied on is the exclusion of evidence by the court, which was shown by bill of exceptions.</p>

<p>Appeal from the County Court of Limestone</p>

<p>Damages — Liability of Bailroad company for damages to parent for injury to ■child. — A father may maintain an action for the loss of the services of his ■child during minority, and for all necessary expenses and losses incurred in its attention while sick from an injury caused by the negligence of another, notwithstanding an action may be maintained in behalf of the child for such injury as gives personal damage to himself.</p>

<p>Distress warrant. — The condition of a distress warrant, as prescribed by our statute, is “ to pay the defendant such damages as he may sustain in case such warrant has been sued out illegally or unjustly.”</p> <p>Held, That the terms “illegally” and “unjustly” are not convertible, and the omission of the one or the other is fatal to the sufficiency of a distress warrant.</p> <p>Same. — Statutory bonds must contain, fully and clearly, all the conditions prescribed by the statute.</p>

<p>Appeal from Washington county</p>

<p>Appeal from the County Court of Robertson county</p>

<p>Jurisdiction of county court. — County courts are devoid of original juris' diction in civil cases where the amount involved is less than two hundred dollars.</p> <p>Seme. — Transcript to this court must show affirmatively how the county court acquired jurisdiction. This court , cannot ascertain the jurisdiction of the county court aliunde the record. Note this case for transcript which fails, to disclose jurisdictional facts.</p> <p>Some — Appeal.—Where the county court has entertained jurisdiction by virtue of an appeal from a justice’s court, and the record fails to disclose the-jurisdictional facts necessary to show that the case was originally tried in the-justice court and appealed, such failure is fatal to the appeal to this court.</p> <p>Same. — When the county court had no jurisdiction, this court acquires none-by virtue of appeal.</p>

<p>Appeal bond need not be embraced in the transcript sent by the justice’s to the county court. The justice, in appealed cases, is only required to make out and certify a copy of his docket entries, and, together with original papers, transmit the same to the county court.</p> <p>Same. — Appeal bond, when filed and approved, becomes an original paper in the case, and must be transmitted by the justice to the county court.</p> <p>Same — Variance.—In the bond the name of the appellee is entered as “Lapori,” and in the judgment as “Lepori.” 2eld, That the names are idems sonans, and that the variance is not material.</p> <p>Same. — It is not essential to the validity of an appeal bond that it be signed by the principal, and it follows that a transposition of the given and the surnames is not fatal to its sufficiency.</p> <p>Same. — “ That the raid S. L. shall prosecute his appeal to effect, and shall pay and satisfy the judgment or decree that may be rendered against the obligors of this bond,” is a condition tantamount to that prescribed by statute to “pay off and satisfy the judgment that may be rendered against the appellant,” and is sufficient to the validity of the bond.</p> <p>Pleading. — See opinion in this case for status of an amended pleading, the striking out of which, upon motion, is held as error.</p>

<p>Practice — Judgmentnisi—Forfeited appearance bond — Construction of statute. —Article 1287, Revised Statutes, providing, “That all suits in which final judgments have not been rendered by default, as herein provided, shall be called for trial in the order in which they stand on the docket to which they belong, unless otherwise ordered by the courts;” held, to apply to criminal cases, and a judgment nisi taken on a forfeited appearance bond, called out of its regular order on the docket, there being no further order in the case, was taken without authority of law, and is void.</p>

<p>In an action against a railroad company by a passenger upon one of its passenger trains for damages received by the plaintiff in an accident alleged to have been occasioned by the company’s wanton disregard of its legal obligations, and by its gross negligence in running its train, and in permitting its bed and track to become grossly defective and unfit for use, wherein the plaintiff recovered $2000 for actual damages and $8000 for exemplary damages, tne court trying the cause permitted the counsel for the plaintiff, in his closing argument, over the objection of the defendant, to read to the jury, as was read by plaintiff’s counsel in the opening argument, the following quotation from Redfield'On Carriers, coupled with the statement that the author was counsel for railway companies where he lived, viz: “ Section 539. The truth is, that common juries, with the highest instinbts of justice, have always, in our country, been accustomed to view the matter of railway responsibility for passenger transportation in the light of higher and fuller responsibility than either the courts or the profession,” etc.</p> <p>Meld, error sufficient to entitle defendant to a new trial.</p>

<p>Appeal from Tarrant County.</p>

— Mullins brought this suit of trespass to try title against Weaver January 9, 1873, to recover the land described in the petition.

LaRue plead in reconvention, damages for wrongfully suing out the attachment, also for damages on account of breach of the contract between them as to the time Bower was to labor for him. That the damages claimed amounted in the aggregate to about $180. He also claimed that the account had been merged into a due bill; also into a note. On the trial in justice court, judgment was rendered in favor of Bower for 856.

— For a full statement of this case reference is made to the statement contained in appellant’s brief, which is full and correct.

— This suit was brought in the county court, July 12, 1881, by appellees, G. W. O’Bannon and William Karsteller, against appellants, W. C. Ever-hart, as sheriff of that county, and E. L. Manson, Nat. Smith, R. P, Dicks, Thomas J. Belcher, M. Schneider, R. G. Hall, E. Everhart, V. H. Montgomery, G. H. Montgomery and John L. Kenedy, sureties on his official bond.

<p>Appeal from Robertson county.</p>

<p>Community estate — Survivor of community may sell for payment of community debts. — The survivor of the community has power to sell the community property for the purpose of paying community debts, and the fact that the property may have been a community homestead does not alter the rule.</p> <p>Certificate of acknowledgment. — In a certificate of acknowledgment the declaration of the officer that the person making the acknowledgment is well known to him, the name of such person being given in the certificate, that name being the same as is signed to the instrument, coupled with the declaration that such named person, well known to the officer, acknowledged that he executed the instrument, identifies the party so executing, and such a certificate is a substantial compliance with the statute.</p>

<p>Appeal fiotn Cook county.</p>

<p>Appeal from Collin county</p>

<p>Appeal from Washington county.</p>

Appeal frorn Grayson county This is an agreed case under article 1414, Revised Statutes. The Tacts as agreed upon are substantially as follows: University league No. 2 was located and surveyed in 1839, and the Edmund Tucker survey in 1841. The north line of the league and the south line of the Tucker was a common boundary line between the two.

<p>Appeal from Bexar county</p>

This was an action of trespass to try title, brought by Polly Brundage and others against C. Freeman, for the recovery of a tract of íand which was described in the petition as follows, viz., “lying and situated in the county of Dallas, State of Texas, known and designated as the northeast quarter of section No. 17, in township No. S, south of the first base line, and range one, east of the first meridian, located by virtue of Peters’ colony certificate No. 275,” issued to…

— This suit was filed May 4,1871,-by appellee, against appellants, Alexander V. Sewell, Thos. Ritter and his wife, Sarah, Vienna Wilson and Rebecca Cleveland, heirs at law of Thos. Sewell and Frances Sewell, his wife. The object of the suit was to remove cloud from the title to certain lands held in Dallas county by plaintiff.

to enjoin Mm from trespassing upon and controlling, managing and. operating certain mill property belonging to the estate of Victor Boehme, deceased. Henriette Boehme, who bad been appointed temporary administratrix of the estate, who, it seems, the clerk had attempted to remove, and who, it also appears, bad ceased to act as such, was also made a party defendant, but no particular recovery was sought or obtained.

<p>Appeal from Fannin county</p>

- — -Appellees instituted this suit against appellants October 21, 1874. The petition is in the ordinary form of trespass to try title, and seeks to recover 519 acres of land situated in Lamar county. The plaintiffs sued as the children and heirs of Charles Logan, deceased, who, it is alleged, was the brother and sole heir of Bennett T. Logan, deceased.

<p>Judgment lien — Requisites of Record,. — To create a judgment lien upon land, under the Revised Statutes, it is necessary to have recorded in the county where the land is situated an abstract of the judgment, showing “the amount for which the same was rendered, and the amount still due upon the sameW Retó, to' be a niaieriai requirement, and unless' compileil with, no lien would exist.</p> <p>Interest in land under verbal agreement not subject to seizure and sale. — A verbal agreement to convey land in consideration of labor to be performed, is not such an agreement that could be enforced, and a claim to land under such agreement is not subject to seizure and sale.</p>

<p>Local option law — Election order — Description and. definition of offense. — Article 378, Penal Code, makes it an oflense to sell, etc., any1 intoxicating liquors whatever, in any county, etc., after the qualified voters of such county, etc., have determined, at an election held in accordance with the laws of this State, that the sale, etc., shall be prohibited. It is made a part of the description and definition of the oflense that the election shall have been held in accordance with law, and in order, therefore, to convict a person of this oflense, it must be alleged and proved that the election was so held.</p> <p>Same — Petition for election — Jurisdiction.—It is the petition that confers upon the commissioners’ court the jurisdiction to order the election, and an order made by it for such an election, without such petition, or upon an insufficient petition, would be a nullity, as would be any election held thereunder.</p> <p>Same — Publication of order. — The recital in the order declaring the result of the election, that the newspaper in which the order was required by the court to be published had the largest circulation of any newspaper published in the .the county, was prima fade evidence of that fact.</p> <p>Same — Evidence.—In a prosecution for violation of the article in question, the defendant certainly had the right to prove that the liquor he sold was not within the inhibition of the statute; that it was a medicine, and not an intoxicating liquor; and he would be entitled to prove any fact or circumstance tending to rebut and disprove the charge made against him; and the refusal to admit such testimony is error.</p>

<p>Appeal from Fannin county. — This was an action of trespass-to try title. Martha B. Hanks and her husband, Nathan D. Hanks,, brought this suit against Charles Doss, W. C. Bruce, James T. Steens, Charles D. Grace, as administrator of the estate of John R. Woolfolk, deceased, and Julia Woolfolk, surviving widow; Mildred Woolfolk, Lee Woolfolk, Julietta Woolfolk, Almira Woolfolk, James Woolfolk, Gilbert Woolfolk, Lizzie Woolfolk, and FlorenceWoolfolk, heirs of John R. Woolfolk, deceased, for an undivided one-half of 320 acres of land, it being the east half of the 640 acre headlight of Rachel Baker, lying in Fannin county, Texas, on Red River, claiming rents, etc. Charles D. Grace, for himself as administrator, and as attorney for the heirs of John R. Woolfolk, deceased, filed his answer demurring to petition, plea "of general denial, and plea of not guilty.</p> <p>W. C. Bruce filed his answer, disclaiming any interest in said land, but merely occupying a part of the land as tenant for Charles Doss.</p> <p>Charles Doss filed his answer, setting forth general demurrer, plea of not guilty, and plea of general denial; and, for special defence, set up that he is the legal and equitable owner of the entire tract of land sued for, charging that William Baker supported his mother, Rachel Baker, and was entitled to the entire 320 acres of land; and further, that the defendants, Grace and heirs of John R. Woolfolk, deceased, claim under a deed given for the purpose of defrauding creditors of James M. Bumpass, and that the said John R. Woolfold, deceased, was; at the time of the making of said deed by said Bumpass to him, well informed as to the insolvent condition of said Bumpass, and was aiding and abetting said Bumpass in defrauding his creditors. That the deed from Bum-pass to Woolfolk was null and void. Plea of innocent purchasers, plea of limitations of one year, with improvements in good faith. ■ Charles D. Grace, as administrator, and for heirs of said Woolfolk, deceased, set up, in answer to said Doss’ answer, plea of not guilty and plea of general denial. Jury had, and verdict for one-half said land in favor of Martha B. Hanks, and for said Doss for the other half.</p> <p>C. D. Grace, for himself as administrator, and as attorney for heirs of Woolfolk, deceased, filed his motion for new trial in due time, which motion was overruled by the court, from which Grace, as administrator, appealed.</p>

<p>Baüroad — Injury to person — Erroneous eharge on measure of damages. — The trial jury instructed the judge that “ You may ascertain the value of plaintiff’s services to himself before the injury and the value of his services since,, and ascertain the difference, and then the jury would be authorized to give such a sum as would, at legal rate of interest, produce a sum equal, per annum, to that difference.”</p> <p>Held, To be not maintainable upon principle, as thereunder plaintiff would not only receive full compensation, but, in addition, would receive a donation.</p>

<p>Homestead — Lien—Judgment—A judgment lien on land will uU lie defeated by a subsequently acquired homestead right.</p>

<p>Error from Navarro county</p> <p>This was an application for injunction by appellee against appellant, filed March 5, 1874, to restrain the city authorities from exercising control over a certain street, and to recover damages for certain alleged wrongs inflicted upon plaintiff by said authorities in the enforcement of their supposed jurisdiction. The following statement from appellant’s brief will explain the case:</p> <p>The controversy in this case is over a small strip of land 70x800 feet, the natural extension of Bois d’Arc street, in the limits of the city of Corsicana. Appellee claims the strip as a part of his homestead; the city claims it as a part of Bois d’Arc street, by virtue of a dedication of the premises by the said R. N. White.</p> <p>In 1871 the H. & T. C. R. R. established a depot at Corsicana near and east of appellee’s homestead, which then consisted of five acres, and worth about $850; the company opened a street running north and south, called Beaton street, which divided White’s land from their own. Bois d’Arc street was the next parallel street, and if extended, would have been the western boundary line- of White’s homestead, as will be seen by reference to map. One Alex. Beaton owned the land lying between Beaton and Bois d’Arc street, that was immediately north of White’s homestead. On the establishment of. the depot and opening of Beaton street, it immediately became the business thoroughfare of the city, and the lots lying on both sides instantly became of great value. Beaton and White, who owned all the land lying on the west side of Beaton street, at once perceived that the eastern half of their land would be in great demand as business lots, and the western or rear part of their land would, of course, be demanded as residence lots. So they jointly employed one D. T. Iglehart to lay out their homesteads in blocks and lots, and to make a map of the same.</p> <p>Some time in July, 1871, Iglehart mapped off the premises, dividing the White and Beaton land lying between Beaton and Bois d’Arc streets into four blocks, numbering them, as shown by the map, as follows: Beaton’s land divided into blocks 1 and 2, and White’s land into blocks 3 and 4. The business lots along the whole line of Beaton street were numbered from 1 to 48, consecutively, on said map. The rear portions were partly laid off in residence lots, and Bois d’Arc was projected along the west of blocks 3 and 4. After this division, both Beaton and White placed all their lands on the market and rapidly sold their lots at immense prices in gold, and in all their deeds (some eight or ten of which are shown in statement of facts), they sold by the numbers on the Iglehart map, acknowledging the map was duly recorded, “ making it a part of the deed for identity,” and “ that the homestead was cut up into lots and blocks for the purpose of sale.” Beaton, in his testimony, and White himself, state, on oath, “ that they both sold by this map of Iglehart’s, and it was the only map that was made.” Consequently it is the map referred to in the deeds.</p> <p>On the twenty-first of October, 1871, after the map was drawn and many lots sold thereby, F. W. Carruthers arrived in Corsicana and applied to R. R. White for a residence lot, who offered to Carruthers “ the entire bunch of lots then unsold,” as he had previously done to others. Carruthers finally purchased lots 6 and 7, twenty-five feet each, in block 3, lying at the intersection of White and Bois d’Arc streets, and paid White two hundred and sixty-six gold dollars for them, as being corner lots, and therefore more valuable, and received a deed from R. FT. White, which speaks for itself. We call special attention to the recitals of this deed, to-wit:</p> <p>“ Lots 6 and 7, block 3, fronting fifty feet on White street, and running back one hundí ed feet on Bois d’Arc street. Said lots, being a part of the homestead which, for the purposes of sale, was cut up into blocks and lots and numbered as hereinbefore mentioned, as shown upon a map dividing said land, as appears of record, which map is made a part hereof for full identity.”</p> <p>This was duly recorded.</p> <p>The .object of Carruther’s purchase was to get a corner lot, and White and himself carefully marked the lots by the line of Bois d’Arc street on the ground, and the deed recites the fact of its being there. After the purchase of the lots Carruthers was absent some two months, aud on his return he found a small house erected by Mrs. Block on the space of ground now in controversy, which partly blocked up the street next to him; that he at once demanded the reason of White why he thus blocked up the street, who admitted that he had rented a small lot to Mrs. Block, but he would always leave a wagon or carriage way open. White also erected a cow pen back of this house, on the same side of the street. This house was moved away in 1872, but there was always was a wagon way at all times open, which was in use in Carruthers and the public. It was further proved that the place purchased by Carruthers was the extreme limit of the town, and it was not until 1873, when the town expanded, that the street came into constant public use. White, in the fall of 1871, demanded pay for the street from the city council, who declined, because (as they then explained to him) the charter of May, 1871, gave them no authority to open or pay for streets, and that the city did not then claim or need this street. About October, 1873, all obstructions were removed from the street until March, 1874, when White ran a fence across the street and forbid the public from using the street. The street had become very important to public travel, and the city council ordered him to remove it, and upon his refusal, the marshal of the town, under order of the mayor, tore down the fence, and White, again-endeavoring to appropriate the premises, he was arrested upon the affidavit of F. W. Carruthers, for obstructing a public street; and after a jury trial before the mayor he was convicted of the offense and fined ten dollars, from which judgment he appealed; and pending the appeal, filed his petition in this cause against the city of Corsicana for an injunction, damages and general relief. The city answering, admitted that they held possession of the premises as a public street, and claimed that they held possession by virtue of a dedication, as evidenced by the various deeds of White himself, and their recitals; by the delineation of the prolongation of Bois d’Arc street on the Iglehart map, declared in the deeds to be duly recorded; by the street having been expressly called for as an open street in the Carruther’s deed; and because, lastly, R. ~N. White had given to Cyrus White, his son, shortly after the sale to Carruthers, the corner lot on block 4, lying on Bois d’Arc street, as shown upon the map, thus showing he recognized it as an open street.</p> <p>At the trial of the cause all of the foregoing facts were duly plead in defendant’s answer and proved. But the plaintiff, without amending his petition or pleading, proved, by his testimony, in confession and avoidance of these facts, over the objections of defendant, that “ true he had sold lots to Carruthers and had employed Iglehart ” as stated, but he said that “ the Xglehart map is not, and never was, of record, though so stated in his deeds; that he never saw it or sold by it;” “that he sold Carruthers corner lots, “but at the time of the sale told him Bois d’Arc street would not be opened through his land unless the city paid him for the land that “he thought the city would soon condemn the street, but in the meantime he would always leave a wagon way open;” that “he did not know the Carruthers deed called for Bois d’Arc street;” “didn’t remember reading the deed;” “that his son wrote it;” “that he had previously, and subsequently tried to sell the street to the city, but the council refused to buy, because the charter gave them noauthority to do so.” He was further allowed to prove, over the objections of defendant, by his son, Cyrus White, that he “heard his father tell Carruthers that Bois d’Arc would be a street when the city paid for it;” “that be had written the Carruthers deed, describing lots ‘ one hundred feet on Bois d’Are,’ under the directions and instructions of his father; that his father gave him a corner lot on Bois d’Arc street, on corner of Bois d’Arc and Collin street, shortly after the sale to Carruthers, but told him not to call for Bois d’Arc street in his deed.”</p> <p>He was then allowed, over defendant’s objections to jirove by J. M. Riggs, James Pigg and others that, in 1872 and subsequently, they heard R. N. White declare to other parties, and to themselves, that Bois d’ Arc would not be opened until 'the city paid him for it; that he intended the land for a street, and would not sell it to any one, but that lie intended to have pay for it.</p> <p>The city then proved by Carruthers that he contracted for and purchased a corner lot from R. H. White; that corner lots are more valuable for inner lots, as residence lots, on account of their being more accessible and convenient; and he paid a high price on that account, although he had the choice of any other in the entire block unsold; that White did not tell him the street was not and would not be an open street unless paid for by the city; that he would not have touched it on such terms; that it was all open when he bought it, and they both sighted through the weeds along Bois d’Arc street, so as to get his lot exactly upon the corner. His whole object was to get a corner lot, and he paid White the money without dreaming of any rights being reserved.</p> <p>At the conclusion of the testimony, defendants filed a demurrer to the testimony, on the ground that the injunction being dissolved, and no damages proven, the court had no jurisdiction, which was overruled by the court and the cause submitted, without argument, to the jury, and they returned the verdict, “we find for plaintiff.” Ho damages were assessed or injunction perpetuated, but, with a vague idea of the omnific power and capacity of a prayer for general relief, plaintiff enters a judgment suitable to an action of forcible entry and detainer, which defendant has assigned as error.</p>

B. Hart against R. Y. Tompkins for damages resulting from the refusal of the defendant to carry out the contract between the parties, under which the plaintiff was employed for the period of one year by the defendant, in the capacity of salesman in the business of the latter.

<p>Appeal from Eastland county.</p> <p>This was a suit brought by the appellee against the appellant, on three promissory notes amounting to over six hundred dollars. Defendant set up as a defense a partial failure of consideration, alleging that the notes were given for a stock of cattle sold to defendant by the plaintiff, at the rate of two dollars per head; that of said stock he has not been able to obtain, by hunting for them in the range, more than one hundred dollars worth of said cattle; that he paid down, at the date of the purchase, six hundred dollars, and has also paid one hundred dollars on the notes sued on since their execution and delivery. Defendant alleged that the notes were procured by fraudulent representations of the plaintiff, which were relied on by the defendant; that the plaintiff represented, “that his stock was gentle and easily handled and controlled, and that he was satisfied that there were six hundred head of cattle, the most of which could be easily gathered, as they were gentle as aforesaid, and plaintiff knew that the larger portion of the same could be easily gathered.” The answer alleged that defendant had diligently searched the range where the cattle were represented to be found, and has been unable to find more than fifty head of the cattle of the marks and brands purchased by him. The defendant prays for cancellation of the notes, and for judgment against the plaintiff in reconvention, for the sum of $598, with interest. The answer was sworn to.</p> <p>The plaintiff excepted to the sufficiency of the answer by general demurrer, and assigned special grounds of exception.</p> <p>The court sustained the demurrer, and the defendant thereupon asked leave to amend his answer, which was refused by the court, on the ground that the answer being a sworn plea, or sworn answer, was not the subject for amendment, and also because the parties had announced themselves ready for trial at the time the ruling was made.</p> <p>Yerdiet and judgment for the plaintiff; motion for new trial overruled; appeal taken by the defendant, assigning as grounds of error, the action of the court in sustaining the demurrer, and also in refusing to permit the defendant to file an amendment to the pleading thus holden to be defective.</p>

<p>Injury to Person — Damages—Pie/,ding.—A general demurrer will not reach a merely informal or defective averment, if a cause of action be shown, but be informally or defectively stated. Tbe objection must be taken by special demurrer.</p> <p>Same — Evidence.—In an action for damages for injuries sustained, in tbe petition the amount of the physician’s bill was left blank. Held, that defendant having gone into the trial without excepting to the petition specially, by pointing out the indefiniteness as to the amount of said bill, the objection to-evidence to eetablish tbe amount should not be heard.</p> <p>Same. — Evidence as to time lost by plaintinff in consequence of his injury,, and the value thereof to plaintiff, was admissible under allegations of the petition which described the plaintiff’s occupation and the loss which ensued to. him in consequence of being disabled from tbe wound.</p> <p>Same. — Damage for loss of crop expected to be raised was too remote, butplaintifi, in connection with tbe allegations made by him of that damage,, showed he had been entirely disabled from working as an agriculturist, his-sole occupation, and that by the loss of his labor and said crop, he was damaged (¡1500. Held, that the defendant, failing to except specially to these allegations, the evidence offered was admissible.</p>

<p>Plaintiff’s amended petition, September term, 1881, states in substance: That tbe defendant’s railroad extends from Texarkana on the east to Fort Worth; that during 1880 defendant was doing a business of carrying passengers in connection with the Mississippi and Tennessee Railroad; that on November 4, 1881, plaintiff took passage on last road, having procured tickets on the same at Grenada, Mississippi, for Dallas, Texas, by way of the Texas and Pacific Railroad, in connection with other roads, and there had three trunks of baggage checked to Fort Worth, checks being given him stamped thus: “Ft. Worth. Grenada, Miss., via T. «fe P., I. M., M. L. R., M. «fe T. R. R;” said trunks containing two featherbeds worth $80; ten quilts, líO; three ditto, $9; two blankets, $6; coverlet, $8; counterpane, $3, and wearing apparel, in all worth $250.25; that defendant did not safely transport and deliver to him at Fort Worth or elsewhere said baggage, and by reason of defendants negligence said baggage was lost, to his great inconvenience, trouble and expense, in being deprived of the use of said baggage, and in his'efforts to find it, to his damage $250.</p> <p>Defendant filed demurrer and general denial.</p> <p>The jury returned a verdict for $274.80, on which judgment was rendered.</p> <p>Defendant filed motion for new trial.</p> <p>Motion for new trial denied. Defendant excepted and gave notice of appeal.</p> <p>The evidence showed that plaintiff bought immigrant tickets at Grenada, Mississippi, for himself and family, from the Memphis and Tennessee Railroad, and came through on said tickets to Dallas, and from Texarkana to Dallas on defendant’s railroad. He had five trunks checked at Grenada, but only two have ever been delivered to him by defendant, though repeated demands have been made. Plaintiff testified: As I passed through Texarkana, I saw all five of my trunks in the depot. I saw the baggage car of the train I was on burn, fourteen miles this side of Texarkana.</p>

<p>Boundary — Excess of Land — Division of. — Where the calls cf two surveys exceed the quantity intended to be granted, and the dividing line between them cannot be ascertained, and both surveys having been made at the same time, the excess of land should be equally divided between them.</p>

<p>Fraudulent Misrepresentations — Rescisión of sale — Restoration of purchase money. — -With the rescisión of the sale of land, if made upon the ground of fraudulent mb representations, by which the sale was induced, the fraudulent vendor could not he permi'ted to hold that part of the purchase money which he had obtained in his own wrong, but should be made to restore it, less such sum as would he a reasonable compensation for the rents.</p>

<p>Trespass to try title — Second suit — Res adjudicata. — In the court below it was held that as the surviving wife did not make herself a party plaintiff in the capacity of executrix of the last will and testament of her husband until more than twelve months had elapsed from the rendition of the first judgment, that, therefore, the second suit of trespass to try title could not be maintained.</p> <p>Held, That, as the suit (prior tne executrix becoming a party plaintiff in her capacity as executrix, by amendment) was so fatally defective as to parties that no cause of action was therefore presented, it would certainly follow that the former judgment rendered against the plaintiffs in the same capacity would in no way affect the right of the executrix to maintain a suit for the land. Such a judgment would not he res adjudicata as to the executrix, nor would she he estopped thereby.</p>

<p>[Published by request.]</p> <p>Injunction — Jurisdiction of county and justices’ courts — Case stated — Defer.n-ants in error instituted injunction suit in County Court of Parker county,, against plaintiffs in error and one ML, and also tlie sheriff of Parker C0UBÍ3'. to try the right to personal property levied upon by said sheriff as the prex>erty of said M., and for damages for said wrongful levy, made by virtue of snx execution issued by a justice of the peace of Galveston county, on a judgment in favor of plaintiffs in error against said M. for §166.52. In their petition plaintiffs in errror set up ownership in the goods, allege partnership with II. „ but deny that he has any interest in the property levied upon, and pray fox writ of injunction to restrain sale, and for damages. Injunction granted and judgment rendered against plaintiffs in error for §100 damages and alterna!© judgment for goods or value, worth §242.</p> <p>held, that the county court had jurisdiction to grant and perpetuate the injunction; that this was the proper remedy, and statutory remedy of trial j>i' the right of property was inapplicable.</p>

— /Statement.— This is the second appeal of this case. The disposition of the former appeal is reported in 39 Texas, 398. A pavtial statement of the case will be found in the opinion of the court.

<p>Assignment of cause of action. — The assignment of the cause of action upon which the judgment was rendered, would carry with it the right to the judgment.</p> <p>Parol trust — Evidence.—The rule that it requires more than the testimony of one witness to engraft a parol trust upon a written title is alone applicable to such cases where either the trust was sought to be established by proving the declarations of a deceased trustee, or where the trustee was testifying to the trust in his own interest.</p> <p>Voidable deed— It is well settled that a deed made to hinder, delay or defraud creditors is not a nullity, but that such deed is voidable at the instance of the creditors of the grantor.</p> <p>Judgment lien — Homestead.—A judgment lien on land will not be defeated by a subsequently acquired homestead right.</p>

<p>Appeal from the District court of Coryell county. — Sneed owned a, tract of 640 acres of land in Coryell county, upon which he was residing with his family. Hammack held a note against him for about $500, part of the purchase money of the land. Townsend recovered a judgment against Sneed and another for over $2200, in the district court of that county, and had 440 acres (being the excess over the homestead) of the tract sold under execution upon that judgment, and Townsend purchased the same. Subsequently Ham-mack sued Sneed on the purchase money note, and obtained judgment against him and foreclosed the lien. An order of sale was issued on this judgment and the whole tract was sold and purchased by Townsend.</p> <p>Sneed brought this suit August 30, 1815, against Townsend and Hammack, to set aside and vacate the Hammack judgment, to enjoin the sheriff and Townsend from ejecting him from the land, and to remove cloud from title, offering to tender the money paid by Townsend on the Hammack sale if required by the court, etc. The ground that he sought to vacate the judgment upon, was, that while the return of the officer upon the citation imported service, that in truth and in fact he had never been served, and knew nothing about the suit. That he was the head of a family, occupying the land as his homstead. That the land was sold for about $500, when it was of the actual value of $2000.</p> <p>Appellees denied the averments of the petition as to the want of service, and asserted acquiescence and ratification upon the part of Sneed, etc.</p> <p>The cause was tried October 14, 1875, and resulted in a verdict and judgment for the defendants, from which this appeal was taken. The main error relied on is that the court erred in the charge given at request of appellees.</p>

Ajipeal from G-audalupe county. This was a petition for an injunction filed by appellees, É. R. Tarver and his wife Julia, on the fourth of March, 1872, against appellant and the sheriff of the county, to restrain the sale of a tract of land which was claimed by the plaintiffs as the separate property of the wife.

<p>Appeal from Washington county</p>

<p>Mechanic's lien — Pleading.—A petition is bad on demurrer and special exceptions where it fails to allege that the plaintiff had caused the bill of particulars to be recorded.</p> <p>Jurisdiction. — District courts, up to April 18,1876, had jurisdiction of all sums over $100. Suit for $398, brought in the district court April 14 and tried June 13, 1876, was improperly dismissed, but should have been continued, pending legislation under Constitution of 1876 for the transfer of such cases to the county court.</p>

<p>Injury to person — BxempUvry damages. — When the party was injured while operating a defective engine while the same was "being taken to the machine shops for repairs, the company should not be held liable for exemplary damages.</p> <p>Same — Verdict — In order that a general verdict under a charge which, though under the evidence properly submitted to the jury the question of actual dam iges, but not properly that of exemplary damages, should he sustained, it must clearly appear that the verdict was for actual damages only.</p>

<p>Survivor of. Community — Insufficient Inventory. — Where an inventory filed by the wife under P. D., arts. 4648, 4652, does not purport to be an inventory and appraisement of allgthe community property of herself and deceased husband, but simply purports to be an inventory of the property belonging to the estate of her husband, it is insufficient, as such an instrument would convey no notice that the wife was seeking to qualify herself to dispose of the property inventoried as community property of herself and deceased husband.</p>

— August 20,1875, Davis & Bro. brought this suit against appellees upon a note made by Abbey Thompson, now Abbey Saladee, to appellants. Appellee» demurred upon the ground of the coverture of the said Abbey at the time the note was made.

<p>Remedy. — Where property in the hands of a constable, by virtue of a distress warrant, is taken possession of by a sheriff under other process, the proper remedy for plaintiff in first proceeding is not injunction, where petition fails to show that damages were incurred.</p> <p>Landlord’s lien. — Though the Commissioners of Appeal entertain a contrary opinion, the doctrine laid down in 51 Texas, 134, is by the Supreme Court approved; and that is to the effect that the act of April 4, 1874 (Paschal’s Digest, article 7418c), gives a lien to landlords in towns and cities upon goods, wares and merchandise in the rented premises, to secure rents that may become due.</p>

Error from Grayson county. — This was action of trespass to try title, filed by defendant in error January 18, 1875, to recover of plaintiff in error a tract of land in Grayson county. The land is described in the petition by metes and bounds as a survey of 640 acres, and the plaintiff claimed the entire survey, except a tract of 160 acres, to be taken in a square from out of the northeast corner of the survey, and laid damages at $1000.

<p>Death from railway accident — Action by mother for death of son — Charge.— It is not error to refuse a charge to the effect tliafc if the son was instantly killed, no action accrued to him which could survive to the mother.</p> <p>Same — Evidence.—Evidence of the poverty orhelplessness of the mother was properly admitted, to show the extent of her reasonable expectation of pecuniary aid from her deceased son, but such testimony would not be admitted for the purpose of measuring the damages.</p> <p>Same — Deposition—Idem Sonans — The commission authorized the taking of the deposition of John McKay, and interrogatories were propounded to John McKay. Held: That where no question is made as to the identity of the person whoso deposition was intended to he taken under the name of John McKay, and it not appearing that the name of the witness, which is signed John Mache, is not idem sonans, it was not error to overrule the motion to suppress the deposition.</p> <p>Defective Appliances — Diligence—Even if it was the duty of the conductor to inspect the cars constituting his tram, it was largely a question of fact whether the short time he had been in charge of the train (thirty-six hours) was sufficient, by" ordinary diligence, to have enabled him to know of the defect through which he lost his life.</p>

<p>Trespass to try title — Insufficient description — Hule of description — The description in a petition is required by the statute to be sufficient to identify the premises, “ so that from such description possession thereof may he delivered,” and the same rule applies to the judgment. See case for two inconsistent descriptions of the land sued for.</p>

<p>Appeal from San Augustine county.</p>

<p>Local option — Revocation of liquor licence — In a prosecution for violation of the local option law, the defense was that the defendant, having purchased an occupation license to sell intoxicating liquors for twelve months, and having paid the tax therefor, the State has no power bylaw to revoke the license; and that if it has such power, it can only be exercised in a direct manner by a ■statutory enactment expressly revoking the license.</p> <p>Held, That the authorities bearing upon the question are conflicting, and it Is still an open question, Willson, J., deciding, however, that the weight of authorities sustains the proposition that the Legislature has full control of the subject, and can revoke occupation licenses at pleasure, and that whenever prohibition is declared in any locality it has the effect to revoke all licenses for the sale of intoxicating liquors within that locality; Hurt, J., dissenting.</p> <p>Same — Penalty—Repealed act. — Held, also, that art. 378 of the Penal Code is the law which prescribes the punishment for this offense. The act adopting the Codes repealed sec. 5 of the act of June 24, 1876, which was amended by ••act of April 17, 1879, making tbe penalty for this offense fine and imprison’ment, and it was error in the court to assess imprisonment as the punishment.</p>

<p>Appeal from Smith county.</p>

<p>Appeal from the county court of Smith. Tried below before the Hon. George W. Smith, county judge.</p>

<p>Practice — Case stated. — The amended answer id this case set up that at the Sme of the execution of the deed it was agreed to by the parties, as an essential element of the contract, that in case C. failed to establish a clear title to tile 'and conveyed in a suit then pending between him and a íhird party, that lie would pay back to Q-. the amount which Q-. paid on the land, with interest, which stipulation, it is averred in the amended answer, was left out of the ■deed, through an oversight of the draftsman in drawing the deed. The action 3£ the court below, in striking out this amended answer upon demurrer, was «error. Courts of equity will grant relief in cases of mistake in written instruments, to prevent manifest injustice and wrong, and will supply any defect •occasioned by mistake.</p> <p>/Sime — Parol evidence. — While, as a general rule, parol evidence will not be admitted to qualify, contradict, vary or extend written instruments, still, in cases of fraud, accident or mistake, equity will admit parol evidence to «qualify and correct the terms of written instruments when the relief is sought between the original parties to the transaction, or those claiming under them fa privity, such as personal representatives, heirs, devisees, legatees, volunta vy grantees, or purchasers with notice of the facts.</p>

<p>Appeal from the County Court of Wood. The opinion sufficiently discloses the case.</p>

<p>Appeal from the County Court of Upshur. The opinion states the case.</p>

<p>Practice. — Ordinarily it is not error in the court to hear demurrers to defendant’s pleadings before taking up and hearing defendant’s motion for a, continuance. Especially is it not error when it is manifest that defendant has used no diligence to procure the testimony upon which he afterward© bases his motion for a continuance.</p> <p>Pleading. — An answer to a suit by an administrator for balance of purchase money of land, setting up failure of title, charging fraud and fraudulent rep-' resentations by the administrator with regard to title and number of acres, is not sufficient to defeat the rule of caveat emptor, as it obtains in administrators’ sales.</p> <p>Same. — An answer alleging fraud and fraudulent representations is defective unless it alleges that the representations were relied upon by, and actually-deceived, defendant.</p> <p>Posts. — In this case, plaintiff below admits that a prior judgment in the justice’s court was wrong, because of want of jurisdiction.</p> <p>Held, Error to tax costs against defendant in such proceeding before the justice’s court.</p>

<p>Parties — Case stated. — This was a suit by the heirs of W. S. to recover the value of certain personal property, the community property of W. S. in his lifetime and his wife, their mother. Subsequent to the death of W. S., their mother married one of the defendants, but she was not. as she should have been, made a party to this suit.</p> <p>Practice — For this alone, however, the case would not be reversed, since it was for the plaintiff seeking to recover to see that the proper parties were joined; but for the additional reason disclosed by the evidence that plaintiffs have rights, and because the court instructed the jury in effect that this was a controversy over one-half the property, which may have misled the jury, and because it is the policy of the law to avoid multiplicity of suits, the judgment must he reversed and the cause remanded.</p>

<p>Appeal from the County Court of Lamar. — This was a suit brought in the County Court of Lamar county, by the appellees, residing in the city of St. Louis, against appellant, as the surviving partner of the firm of McCune & Mason, of Paris, Texas, on a note for $537.25, of date of September 25, 1875, less $250, paid March 5, 1876. The petition alleged partnership during lifetime of McCune ,who died in 1873, the partnership continuing for the period of three years, under a provision of his will. Suit was commenced June 28, 1876. Citation issued June 30, 1876, and was returned, executed, July 5, 1876. Judgment by default was rendered July 19, 1876, for $304, The bond of appellant for writ oferror to this court was filed and approved September 25, 1876.</p> <p>The alleged errors upon which this case is brought up are three in number:</p> <p>1. Because the judgment is excessive.</p> <p>2. Because the petition shows that the debt was created long after the death of the deceased partner, W. O. MéCune.</p> <p>3. Because no judgment could be taken by default on the facts stated in plaintiffs’ petition against the partnership assets generally.</p>

<p>Error from the District Court of Hunt county.</p>

This suit was filed at the March term, 1875, by appellants, Garnett Presley, Mollie Presley, P. Presley, Jenkins Presley and Josephine Presley, by their guardian, G. .T- Chrisman, against Mary E. Eobinson and her husband, W. S. M. Eobinson, and Bandall Eobinson, administrator of the estate of Thomas A. Presley. The defendants answered at the same term, but the original papers having been destroyed by fire, were substituted July 25, 187(5.

<p>Appeal from Bexar comity</p>

<p>Execution — Levy—Liability of Officer. — As to the liability of an officer for the wrongful levy of an execution, the safe rule is, that which protects the officer in obeying a legal writ in his hands, and does not charge him with knowledge of the validity of that writ by reason of any outside facts of which he may be notified.</p>

<p>Right of T\'ag — Ooncls7ttMtion of Land for Same — Damages—JStidence,— In a suit by a railway company for condemnation oí ¡and for right of way, the company had the right to know how far the damages claimed, or any portion of them, were such as ft ere shared by the community generally, and to have all such excluded '-¡together from lie estimate of the damages claimed, and it was error in the court below, to refuse evidence on this point.</p>

<p>Practice, on Appeal, or Certiorari from Justices' to County Courts —BTeithw party to a suit originating in a Justice’s Court, after the ease has been re' moved by appeal or eertii-rari to the County Court, can plead causes of action or defences which were not pleaded in the Justice’s Court.</p>

<p>Appeal from Hill county</p>

<p>dilation — Sufficiency of — Judgment by Default. — Where thecitution states only a portion of the demand it is insufficient.</p> <p>Same. — By clerical error the date of the issuance of the citation is one year before the date of the institution of the suit. While this would not ordinarily vitiate the citation, it cannot be disregarded when the citation is relied upon to sustain a judgment by default.</p>

<p>Jiote. — This case has already bees twice before the Supreme Court and •was reported in 36 Tex., pp. 24 81, ssnd 86 Tex., pp. 500, 84</p> <p>Trespass to Try Title — Colonization Lmos — Illegal Bale. — Upon the two former appeals of this case the court negatives the first proposition in this •appeal “that the sale by Heitor Clay in i130 was prohibited by the laws then in force, was a nullity ; passed no tide to the vender, and is no bar to a recovery by the heirs of the vendor.?</p> <p>Same — Sale—Conditions Precedent— Meidenve. — Proof of a proposal to make ■a conditional gift, when the latter is wholly unconnected with the contract, • does not support the allegation of a conditional contract of sale.</p> <p>Same — Alienage —Meld, that it must ba ruled negatively, “that at the '•time of the sale Tacitus Olay was, and lew years afterwards, continued to 'be an alien, incapable of taking land by purchase, and that for that reason ■he could not hold against the heirs of thy vendor.</p>

<p>Bight of Way — Trespassby Bailway — Parties—Charge—Damage to Crops.— YTliere the suit was origiueliy brought for damages to land, alleged to be the separate property of the wife, she was not improperly joined with her husband as a plaintiff, but where, by amended petition, the original cause of action is abandoned, and plaintiffs claim to juries done to crops, injuries done totbo feeliagí: of thehuebarid, t/nrifm exemplary damages, it was an error to enioitain the suit in this shape, as the husband alone could be permitted to proaucuU. i'.</p> <p>Same. — The measure of damages for damage to crops would be the ac. tual value of that portion of the crop which was injured or destroyed, at .the time of such injury or destruction, with legal interest upon the amount from that date.</p> <p>fiuc charge held erroneous for want of evidence to support it.</p>

Mrs. Boehme, the appellee, (who was the administiator ol her son, Victor Boehme, deceased.) brought this suit against the appellants, July 17, 1876, for the purpose of establishing her right to lot No. 91, in New Braunsfels, which she claims was purchased by her son, Victor, with her money, who had taken the deed in his name. Also claiming the same as her homestead, on the ground that she was a surviving constituent of V ictor’s family at his death.

<p>[Published by Request.!</p> <p>Injunction. — Light of Creditors. — Attachment Lien. — Several creditors may join in filing a biil for injunction when they have similar rights with respect to the property of their debtor, and such a bill, relating as it does, to one subject matter, would not be multifarious. Without an attempt to decido between the conflict, of authoritii s as to whether a creditor with an acquired attachment lien may resort to equity to relieve the piopevty so held from a fraudulent attempl.ot the debtor to dispose of the same JETeld, That the facts oi this ease justiiies such resort.</p> <p>Jurisdiction of County Court. — A judgment of the County. Court in proceedings by attachment, on a claim in excess of one thousand dollars is void.</p>

<p>Appeal from Fayette county</p>

1st Proposition. The charge is upon the weight of evidence. It assumes that there was an attempt to kill and does not leave that matter to be passed upon by the jury, under proper instruction by the 'court. (Jobe v. State, 1 Ct. App., 183; Johnson v. State, 1 Ct. App., 609; Walker v. State, 7 Ct. App., 627; 41 Texas, 501.) 2nd Proposition.

<p>Composition with Creditors — Avoidance of Agreement — Representations of Debtor. — To entitle the creditors to avoid their agreement of compromise with the debtor, for fraudulent representations, it was necessary that their agent should have relied on the truth of the debtor's representations concerning the facts on which the compromise was based, and that said agent’s action in accepting the offer of compromise was induced by such reliance.</p> <p>Same — Credibility of Witness — Judgment.—The credibility of such agent’s testimony on the whole subject, was the proper subject of the jury’s consideration It is not sufficient that the judgment does not clearly appear to be right, but it must clearly appear to be wrong, to authorize this court to set it aside.</p>

<p>Appellees brought this action of trespass to try title against appellants, April 21, 1875, claiming the laud described in the petition by virtue of patents issued to them, one for 180 acres as assignees of W. C. R. Schmidt, dated December 5, 1873 ; the other for 320 acres as assignees of Jacob Kaderli, dated September 3, 1873.</p> <p>Appellants claimed the land in controversy by virtue of patent issued to Wade Horton, assignee of John A. Fox for one league and labor of land, dated April 23, A. D. 1841. The real issue was whether or not, the'land sued for was embraced in the Horton patent. Trial was had November 3, 1875, which resulted in a verdict and judgment for appellees for the land, etc., from which this appeal is taken. The errors assigned and relied on' for a reversal of the judgment are to "the charge of the court, the refusal to give instructions asked and that verdict is not supported by the evidence.</p>

<p>Assignment for Benefit of Creditors. — Act of 1879 construed — The Assignment Act of November 24, 1879 embraces in terms, two classes of debtors; first insolvent, debtors; second, debtors ia contemplation of iusolvenc.v. These represent different phrases of inability.</p> <p>Same — Claim for Damages against Decedent.- Where aa action was based upon an alleged tort and the damages claimed were uncertain in their character, it was unnecessary to present the satne to th& administrator for allowance before suit brought upou it.</p> <p>Assignee.— Appointment by District Judge. — A district judge has power, in open court, after due notice, to appoint an assignee after the. death of the original assignee.</p> <p>Same — Imolvenexj—Meaning @f — The terse insolvency is sometíales used to denote (he insufficiency of the entire assetts of an individual to pay his debts. This is its general and popular meaning. Bus if? is also used to express the inability «f a party to pay bis debts as they become due in the ordinary course of business.</p> <p>Same — Trust Fund. — if the assiguor, for an isa proper purpose, before the assignment, delivered property to the assignee, tinder • the 1. and 9. sections of the act under which the assignment was made, the property then passed to the assignee as a part of the trust fund for the benefit of cieditors, and the same stay be said of any monay or other property, other than that exempt, which the assignee may have retained.</p> <p>Same — Rights of Creditors. — When the assignment is completed, the rights of the creditors attach to it, and no act of the assignor, mor of the assignee, at the time the assignment is made, or preceding it but done in eoatenspSation of it, done with intent to defeat, delay or defraud creditors, will authorise a creditor to' trea-fc the assignment as void, and by process to appropriate the property to the payment of his debt to the prejudice of other creditors.</p>

<p>Appeal from Navarro comity.</p>

<p>Appeal from Austin comity.</p>

<p>Appeal from Travis county.</p>

<p>Appeal from the district court- of McLennan county.</p>

<p>Garnishment — Jurisdiction.—If the court Liad jarisdicÉibn of the person of the defendant and of the subject matter of the suit, the garnishee cannot be heard to question the eoncLusi'veness of the judgment as between plaintiff and defendant-</p> <p>Same — Serviee.—The petition’ showed- cause of action against Rowell Brothers,-alleging their Christian names to be unknown; the citations were not more definite and were served upon. Henry and R>. P. Rowell. Reld — That as they suffered judgment by default, they thereby admitted the cause of action against them, and1 the presumption is they composed the firm.</p> <p>Same — Agent—OorporoMon.—A citation against a corporation which only directs- the officer,, who is to execute it, to summon the agent to appear and answer, is not sufficient.</p> <p>Same. — The Statute prescribes the mode of service of citation upon a corporation, and a return that the same was executed “by serving a true copy thereof upon the within named J. S. garnishee, in person,” is defective.</p>

<p>Trespass to Try Title — Evidence—Judgment—Executory Contract— Landlord and Tenant — Case Stated. — McKilvain conveyed the land In controversy to the Powells by deed of general warranty, the deed reciting sale upon a credit for §1523.50, for which the Powells had executed two obligations in writing (executed simultaneously with the deed) t© secure the payment of the purchase money. These obligations each contained a general description of the land, and each stipulated that a “vendor’s lien” is hereby given on the land described therein for the payment of this note, and iu case of failure or refusal to pay the uote at maturity,. an agreement to pay $4.50 reut for all the land bought that is iu cultivation. The Pow-ells failed to pay the first obligation falling due, and in accordance with their agreement paid rent.</p> <p>Meld — That while the deed from McKilvain was absolute upon its face and might have passed title to the laud m controversy to the Powells, notwithstanding the recital that the purchase money was unpaid, yet the vendoi’s lien would have existed to secure the purchase money, of which notice would have been given by the recitals, and as the agreement contained in the notes given were equally as ■effective to prevent title passing to the Powells as though the lien had been reserved iu the face of the deed, as all the instruments executed at the same time and in regard to the same matter are in legal effect but one instrument, and all taken together evidence but an executory contract by McKilvain to sell the land to the Powells. The relation of the Powells to the land was in subordination to the right of McKilvain. That in a suit instituted for the recovery of the land, to which the Powells were made parties defendants and of which McKilvain had no notice, nor was he made a party, the recovery can be of no greater right or interest than the Powells had, and the judgment does not conclude McKilvain, and is not admissible in evidence against him to show title in the party in whose favor such judgment was rendered. (§ee Read v. Allen, 56 Tex., i77 ■ Read v. Allen, Post.) That the same reasons apply for the exclusion of such evidence as would apply had there been no other relation between McKilvain and the Powells, than that of landlord add tenant.</p>

<p>Eandlord and Tenant — Judgment—Evidence.—A judgment against -a tenant rendered in a suit to which the landlord was not a party and which he had no opportunity to defend, is not admissible as -evidence of the title of a person obtaining such judgment in a suit •between such person and the landlord of the tenant. (Read v. Allen, 56 Tex., -180.) But such judgment and the pleadings upon which it was rendered are admissible to show when the possession of a •landlord held through a tenant ceased to be a peaceable possession, but as against the landlord for no other purpose.</p>

<p>Sailway — Negligence—Injury to land and Crop by Overflow. —In an action for damages resulting from an overflow of land and growing crops, caused by the negligent construction of a railway, the court should have instructed the jury upon the question of the measure of damages, and whilst its failure to do so might not be error, when no proper charge on the poiut was asked by the defendant, its admission of evidence to prove a particular measure of damages must have had a tendency to mislead the jury and make them believe that such was the measure authorized by the facts.</p> <p>Same — Measure of Damages. — When loss of property has happened, the value of that property at the date of the loss, with interest from that time till judgment, is considered a faircompensation. When a partial loss has resulted, the same rule should prevail; but the more accurate manner of arriving at its value would be to deduct its worth immediately after the injury from what it was immediately before.</p> <p>Same. — As to injury to land upon which no crop was growing, the rule of damages would be the cost and expense of restoring the land to its former condition, and the loss occasioned by being deprived of the use of the sam.e, with interest. But no account of loss of profits by consequent delay in getting the crop to market should enter into the calculation.</p>

<p>Charge —Evidence.—Where there is no question iu reference to testimony to be passed upon by the jury, the court can charge the legal effect of such uncontroverted evidence.</p> <p>Tenants in Common. — Where co-tenancy exists between parties, evidence which shows long possession by one co-tenant, of the common estate held in his separate right, does not imply that he held possession in his separate right in exclusion of his co-tenant.</p> <p>Same — Repudiation of Common Title. — Repudiation of the common title must always clearly appear in order to give the co-tenant the benefit of the statute of limitation, and acts and declarations of the party in possession are construed much more strongly against him than when there is no privity of title.</p>

<p>Appeal from Colorado county.</p>

<p>Parol Evidence— Written Contract — ‘ 'Timber" Defined. —The pleadings having laid the proper predicate therefor, to enable the court to know in what sense the parties used certain words having no fixed legal signification, in making a written contract, inquiry can ho made as to the meaning of such words used by persons in a certain business, and if the evidence shows, as in this case, that the woid “timber,” used in the wiitten contract, in the community in which the contract was made arid among persons engaged in the manufacture o^ lumber, meant only such pino timberas was suitable for the manufacture of lumber. Held. That llie court was authorized to confine the meaning of such word to that class of “timber.”</p>

<p>Appeal from Harris county.</p>

<p>Appeal from Fayette county.</p>

James T. Brown, in his own right and as next friend and nntmal guardian of his minor children, James Brown and 'William H. S. Brown, brought this suit against appellees, June 27, 1873, to vacate and set aside a decree theretofore rendered in a certain cause, No. 3056, styled Lucretia R. Brown v. James T. Brown.

<p>Unrecorded Vendor's Lien — Notice of — Attachment and Judgment Lien — Bights of Parties. — The lien and rights acquired by virtue of an attachment, judgment and sheriff’s sale, are not superior hut subordinate to the rights of the holder of an unrecorded vendor’s lien, of which notice was had at and before sale, but of which no notice was had when the attachment was levied, nor when the judgment was obtained.</p>

<p>liailway — Defective Tracto — Injury to Servant. — Abrakeman cannot be charged with presumptive knowledge of misplaced rails or rotten ties.</p> <p>Same — Charge.—A charge was properly refused which assumed the theory “that if the plaintiff by ordinary inspection might ha’-e known of the defects in the road, and failed to notify defendant of the same, and continued in the service without objection or prolest, the law would presume that he assumed the risks incident to the employment and he could not recover.”</p> <p>Same — Damages.—It is only when the damages allowed are palpa-? bly and manifestly excessive that the verdict will be set aside.</p>

<p>Appeal- from Parker county-.</p>