Volume 2 — Texas Civil Appeals Reports

<p>1. Taxation of Money of the International <& Great Northern Railway Company.—Money earned by the International & Great Northern Railway, after the consolidation of the International witli the Houston & Great Northern Railway Company, was deposited in hank, and assessed for taxes, and levy made to enforce the collection of the taxes thus assessed. The receiver having enjoined, and in his petition alleged that all the money (for the taxes assessed against which the levy was made) was earned by the International & Great Northern Railway Company, and not by virtue of the charter of the Great Northern Railway, or the Houston & Great Northern Railway Company, it is held, that such money is not exempted from taxation under the compromise Act of the Legislature of March 10, 1875, which by its terms specified the exemptions from taxation granted to, the consolidated -company.</p> <p>2. Construction of the Compromise Act of March 10, 1875.— This act recognizes the consolidation of the International Railway Company with the Houston & Great Northern, and does not in any manner interfere with the charter of the latter road, hut a clear distinction is made and observed between the two roads, and the ownership by the consolidated road of its property is recognized by the Legislature to be derived from the two sources.</p> <p>3. Same—The Tax Exemption.—The exemption of the consolidated road and its successors, and “ its capital stock, rights, franchises, etc.,” does not give any greater scope to the exemption than as to the property enumerated as exempt, for if such were the purpose, it would he useless to enumerate the property that was exempted. In order to leave no doubt as to what property should he exempted. the law, after expressing as plainly as it could that it was to he only such property as the new company was entitled to by reason of its acquisition of the charter, rights, and privileges of the International Company, expressly provides that the exemption should not apply to the lands of the Houston & Great Northern Railway, or to the franchise, road bed, rolling stock, or any property acquired or to be acquired by virtue of the charter of that company.</p> <p>4. Money as Property under said Act.—Money is property subject to taxation, hut whether the word “ property” as used in the Act of March 10.1875. includes the money of the road or not, need not he decided, as appellant alleges that all the money on which this tax was levied was earned by the consolidated road, and it is not shown that the money, or a part of it, was not earned by the operations of the roads consolidated witli the International.</p> <p>5. Injunction — Holding over Case for Trial on Merits. — If -the petition.failed to disclose a good cause of action, defendant’s exceptions were rightfully sustained; and the plaintiff having declined to amend, the proper practice was to render judgment for the defendant, dismissing plaintiff’s case. The fact that the plaintiff's petition was sworn to gives no aid to the legal sufficiency of its allegations.</p> <p>6. Deposit not Liable to setoff by Liabilities of Tax Payer.— The receiver claimed that the amount of the - assessment was not in the hands of their bankers in actual cash when the assessment was made, and that they were entitled to offset their liabilities against it. Although a deposit subject to sight check is usually held to be nothing more than a debt against the bank, it is regarded by the tax law of this State as cash, and as such is not subject to be offset by the liabilities of the tax payer.</p> <p>7. Same—Bankers’ Cash in Vault.—Proof that the bankers with whom the receiver had his deposit account did not have as much money on hand in their vaults as the amount of the deposit which was taxed, does not disprove that the tax payer has money on hand subject to taxation. The statute (Revised Statutes, article 4672) defines money as including “ every deposit which any person owning the same, or holding in trust, and residing in this State, is entitled to withdraw in money oil demand.”</p>

<p>1. When Charge May Direct Verdict for Plaintiff.—When suit was on a note given for the purchase money of machinery, and the defense was that the machinery was fraudulently represented by plaintiff to be in good condition, when in fact it was worn and worthless, but the evidence failed to show any fraudulent representations by plaintiff as to the condition of the machinery, or any warranty with respect to it, the jury were correctly instructed virtually to And for plaintiff.</p> <p>2. Notice of Wife’s Equity in Land Mortgaged by Husband.— The land mortgaged by the husband to secure the note was deeded to him, but paid for with the separate means of the wife. It had not been designated or used as a homestead when the mortgage was executed; it was not error to permit plaintiff to testify that he had no notice of the equity of the wife, without pleading want of notice. Having taken the security without notice of the wife’s equity, it could not be asserted against him.</p> <p>3. Evidence—Declarations of Husband.—The rights of the wife not being in position to be prejudiced thereby, no injury could result from permitting a witness to testify that the husband said, at the time he bought the land, that he had bought it for the purpose of mortgaging it.</p>

<p>The order adjudging Berryman of unsound mind is as follows:</p> <p>“ Grimes County v. William Berryman.—No. 2725.—April 9, A. D. 1888.—On this day this cause was called for trial. Then came the parties by their attorneys, and both parties announced ready for trial. Thereupon the defendant withdrew his answer heretofore filed. Then came a jury, to-wit, J. L. Gillespie and eleven others, who were duly sworn, and said jury, under charge of the court and by consent of counsel for the defendant, returned the following verdict: ‘ We, the jury, find the defendant to be of unsound mind. J. L. Gillespie, Foreman.’</p> <p>“ It is therefore considered, adjudged, and decreed by the court, that the defendant, William Berryman, is of unsound mind.”</p> <p>The ground upon which it was claimed that Anderson was not the county seat was, that pending this suit an election had been held to fix the county seat, and Navasota had received more than two-thirds of the votes cast, but the county judge had illegally canvassed the votes and issued certificate of election to Anderson, and subsequently the county commissioners had legally canvassed the returns and issued certificate of election to Navasota.</p>

The charge complained of in the fifth assignment of error was as follows: “They [receivers of railways] are required by law, and it is their duty, to provide good and sufficient material and keep their roads in good order and repair, and to provide good and suitable engines and cars, and also to provide skilled and competent engineers and servants to operate and manage their trains, and run their trains at such rates of speed as to have due regard for the safety of their…

<p>1. Discharge of Federal Court Receiver Abates Suit.—The act of the State Legislature of March 19,18S9, providing that the discharge of a receiver shall not have the effect of abating any pending suit upon a cause of action against him as such receiver, but that such suit may be prosecuted to judgment notwithstanding the discharge, does not apply to judgments of courts of the United States discharging receivers appointed by them.</p> <p>2. Same.—A judgment or decree is the end for which the jurisdiction of a court is exercised; it is only through its judgments and the execution of them that the power of the court is made efficacious. A law which restricts their power to render a judgment is therefore a limitation upon the exercise of their jurisdiction.</p> <p>3. Federal Court Receivers.—Receivers appointed by the Federal court -derive their authority from National laws, under which the court proceeds. It is only through the operation of such appointment that the receiver is placed in the attitude of a representative of the owner of the property, and how long his authority as such may continue, is a question committed to the judgment of that court.</p> <p>4. Scope and Intent of State Statute of 1889.—It is by no means ■clear that the Legislature intended the act to apply to Federal court receivers. Nearly all its provisions plainly apply only to proceedings in our own courts. In a few of its provisions, as in that we have considered, the language is broad enough to embrace all receivers, but no mention is made of any others than those whose appointment is provided for by our own courts, and it ought not to be presumed that it was intended by any general terms used to regulate that over which the Legislature had no authority.</p> <p>5. Damages — Value of Time, and Expenses. — The jury should not have been instructed to allow damages for lost time or expenses incurred by plaintiff for treatment of his injuries, because there was no evidence of the value of either.</p> <p>6. Assault of Passenger by Conductor.—Plaintiff got on the platform of the baggage car, and rode there without the knowledge of the conductor until the train reached Baker’s Mill. There he was discovered by the conductor, and went into the smoker, and was sitting quietly there when, he was assaulted by the conductor, without any demand having been made for his fare, or any opportunity afforded him, after entering the car, to pay it. Fare was then demanded, and plaintiff paid, or was in the act of paying it, when the assault was continued, and he was beaten, cut with a knife, thrown from the train, and left, dangerously wounded and senseless. The conductor was acting as the servant of appellants in the discharge of his functions as such, and charges predicated upon the theory that plaintiff got on the car, not intending to pay fare, but with the intention of defrauding the company, and getting a free ride, and upon the theory that the assault was not made by the conductor in the course of his employment, have no application and were properly refused.</p> <p>7. Erroneous Charge.—A charge in this case upon the hypothesis that plaintiff was a trespasser upon the train, and engaged in a personal difficulty with the conductor, in a dispute about the payment of fare, presents a view of the case not raised by the evidence.</p>

<p>1. Jurisdiction of Suits to Enjoin a Trespass.—Appellee John Evans was the assignee of a vendor's lien note, dated November 23, 1886, and signed by Van Evans and wife. He obtained foreclosure judgment; the land was sold thereunder, and he became the purchaser and was placed in possession. Appellants Borchard, Ehrlick & Co. were the holders of two deeds of trust made by Van Evans and wife, dated January 24 and February S, 1890, to secure a debt due B., E. & Co., which was foreclosed in Galveston, with order that the purchaser be placed in possession. At sale made thereunder B., E. & Co. became the purchasers. This suit was to enjoin the sheriff of Cherokee County, Reagan, from executing the writ of possession from Galveston County. Held, that the District Court of Cherokee County had jurisdiction.</p> <p>2. Same.—Plaintiffs’ petition averred that the writ of possession was made returnable within ninety days, which time had elapsed. Appellants did not verify their plea to the jurisdiction, but relied upon the allegations of the petition for verification, which must be taken as true; and from which it is evident that the writ had ceased to have any force or effect. If the writ was void, the threatened ejectment, if executed, would have been a trespass committed by the sheriff, and an injunction to restrain it is not an injunction restraining the execution of the judgment upon which the writ issued, and need not be returned to the court where judgment was obtained.</p> <p>3. "V"oid Writ.—A writ returnable in ninety days is void after the ninety days has elapsed.</p> <p>4. Amendment Setting up a New Cause of Action. —When the court has jurisdiction of the parties and of the subject matter of the suit, and the petition presented a good cause of action, it was competent for the court to permit an amendment which set up another and different cause of action, subject to the right of the defendant to ask a continuance on the ground of surprise.</p> <p>5. Subsequent Encumbrancers, When not Necessary Parties.— Though B., E. & Co. were encumbrancers prior to the institution of John Evans’ foreclosure suit, and though he was only the assignee of the note, with the superior title to the land held by his assignor in trust for him, unless he knew of the subsequent lien of B., E. & Co., he was not required to make them parties.</p> <p>6. Notice of Subsequent Lien.—Mortgagees were not in possession of the land, and the registration of their mortgages was not notice of the lien, either to the vendor of the land or his vendee John Evans. He was not asserting or claiming any rights under the mortgagors, Van Evans and wife.</p> <p>7. Rights of Subsequent Lien Holders.—It is the opinion of a majority of the court, that appellants are not precluded by the judgment of the court below from yet asserting any equities against the land secured to them by their mortgages, if the land be of greater value than the vendor’s lien debt.</p>

<p>1. Damages — Impaired Capacity for Pursuing Occupation.— Plaintiff alleged that prior to his injuries he earned $1500 per year, and by his injury was made a cripple for life, and incapacitated from ever pursuing his occupation of stockman, which' was the only business for which he was qualified; that he was forty-six years old, in good health, and would probably live twenty-five years longer. Demurrer to these allegations was properly overruled. It was proper to show that he was engaged in a particular business, and the loss from incapacity to pursue it.</p> <p>2. Same—Measure of Damages.—The loss is the difference between what the annual earnings were before the injury, and what they would be, if any, with the diminished capacity; and when it has been shown that the injury is permanent, as was done in this case, it is proper to show what the expectation of life is, to enable the jury to form an estimate as nearly as possible of what the damage or loss may be.</p> <p>3. Evidence of Duration of Life.—The testimony of the actuary, that a healthy man forty-six years old would probably live twenty-three and four oneliundredths years, was admissible. It was held in Railway v. Douglass, 69 Texas, •094, that the rule seemed to be that when death resulted from an injury, or when the evidence tends to show that the earning capacity is entirely destroyed, the testimony is admissible, otherwise not; but we are constrained to hold that under the •circumstances of this case the evidence was admissible.</p> <p>4. Case not Adhered to.—Railway v. Douglass, 69 Texas, 694, on the question of the admissibility of evidence of probable duration of life, in a case of permanent injury, not followed.</p> <p>5. Limiting Effect of Such Evidence.—The following charge properly limits the effect of evidence touching plaintiff’s age and expectancy of life: “ The evidence adduced touching the age, probable expectancy of life, and earnings of the plaintiff, may be considered by the jury, if they find for the plaintiff, along with all the other evidence, in arriving at what loss, if any, plaintiff has sustained from diminished earnings since the injury, and loss of earning power; but the jury will not understand from this that they can from such facts fix a basis of computation without regard to plaintiff's capacity, if any, to earn money since the injuries and in the future; nor are such facts,-if proved, to be considered otherwise than as circumstances to be weighed by the jury with all the other evidence, in arriving at a fair and just pecuniary compensation for the loss to plaintiff, if any, resulting directly from the injuries sustained.”</p> <p>6. Alighting at a Flag Station.—Though the train stopped at Bandon only for water, and it was onlya flag station, but there was a depot and platform there, and the undisclosed purpose of the train men to get water there, could not change the character of the station, and the evidence does not present a ease coming within the decisions holding that when a train stops at a water tank or elsewhere than at a station, and the passenger leaves the train, he acts at his own peril, and his own negligence will prevent a recovery. If plaintiff exercised care in attempting to get aboard the train, after he had alighted, he was guilty of no act of negligence which would prevent a recovery for injuries caused by defendant's servants in starting the train without notice.</p> <p>7. Ordinary Care.—See charge held not to impose any greater degree of duty upon the defendant than the exercise of ordinary care.</p> <p>8. Degree of Care at Station.—Bandon being a passenger station although a flag station, it was not error to refuse a charge “ that a higher degree of care is required of train men at a passenger depot than at a stopping place for water only.” So far as this case is concerned, it is immaterial whether the train stopped for water or to put off or take on passengers.</p> <p>9. Negligence, How Determined. — It was not error for the court to qualify a charge asked, wherein specific acts named were declared not to be negligence in themselves, by the following addition: “ The law does not undertake to declare what act or omission amounts to negligence, but it is for the jury to say from all the evidence whether a given act or omission amounts to negligence.”</p> <p>10. Verdict not Excessive.—Verdict for $15,000 for a left foot and ankle broken and crushed, and amputated below the knee, of a man forty-six years old and in good health, and earning §1500 per year, not excessive.</p>

<p>1. Bank Reorganization—Action of Stockholders and Directors. In 1885, under proposition for reorganization made by some of the directors and stockholders of an insolvent bank, it was proposed that if all stockholders would surrender their shares of stock, and the creditors would accept seventy-four per cent of their debts' in full payment, the proposers would provide $1,000,000 for the purpose of resuming business under a new organization. At a meeting of the stockholders of the insolvent bank, at which more than three-fourths were present, the proposition was accepted, and the directors were authorized to do all that was necessary to carry into effect the proposed arrangement, which they subsequently did by transferring to the new organization all of the property of the bank. One thousand shares of new stock were issued and taken, and these new stockholders assumed control of the bank. All the old stock, except thirty-two shares held by Corbin and Van Sickle, and now by appellant, were surrendered. Corbin and Van Sickle were not present at any of the meetings, and never in any way consented to or ratified the action of the other stockholders. They had paid in full for their stock, and advanced no additional sum, and took none of the new shares. Thereafter, by resolution, the directors undertook to make an assessment of $100 on each share of the old stock, and declared that unless payment thereof was made in thirty days by the owner of the old stock, it should be forfeited. Notice of this resolution was given to Corbin and Van Sickle. Held:</p> <p>1. It is clear that the action taken by the stockholders and directors of the bank did not have the effect to cancel the thirty-two shares of stock held by Cor-bin and Van Sickle. Without their consent, their shares could not be thus forfeited.</p> <p>2. As to paid up stock assessments, Corbin and Van Sickle having paid par value for their stock, it was not subject to further assessment for any purpose. The corporate existence of the old organization continued, notwithstanding its insolvency and suspension of business, and the legal rights of shareholders could not be taken from them by a majority, however large.</p> <p>3. As to the rights of the new organization, it acquired all the rights represented by the surrendered stock, and the new shares when issued represented both the rights of the old stockholders who had surrendered their shares, and those acquired through the new subscriptions.</p> <p>2. Measure of Damages.—There were 1141 old shares, and 1000 new, and the rights of Corbin and Van Sickle (now owned by appellant), were therefore as 32 to 2141, and the measure of damages should be the value of the stock, treating it as 32 shares in 2141, at the time of its conversion, with legal interest thereon from that day to the day of trial.</p> <p>3. Old Stockholder not Stockholder in New Bank. — Because of his delay in demanding recognition as a stockholder, and suing for the value of his stock, the aid of equ.ty to reinstate appellant in the enjoyment of the privileges of a stockholder in the new organization should be withheld. The managers of the bank have been allowed to go on and establish it in accordance with the arrangements made in 1885, and the business of the bank is doubtless readjusted to its changed conditions, and appellant can be compensated in money for any damage he has sustained, •and that should be his remedy.</p> <p>4. Date of Conversion. — The conversion of the stock of appellant took place at the date of the demand by appellant for recognition as a stockholder.</p> <p>5. Proper Parties. — The stockholders are not ordinarily proper parties to such a suit as this, and exceptions to the petition in intervention of the stockholders should have been sustained, in the absence of allegation that the defense would not be properly conducted by the defendant.</p> <p>6. Assignee’s Bight to Sue. — Appellant was not an innocent holder of the thirty-two shares of stock owned by Corbin and Van Sickle, and acquired only their rights by his purchase, but he had the right to maintain this suit upon their written transfer of their stock.</p>

<p>1. Judgment Lien .—Judgment was rendered February 24,1891, abstract of judgment was recorded February 26, execution issued March 14, and sale made April 7,1891, of the land in controversy, which was held by the wife of appellant under deed dated February 9,1891, and recorded March 9,1891. Held, it is too Well settled to require citation of authority, that a judgment creditor having acquired a lien on land through registration of an abstract, or levy of an execution, acquires right superior to that of the grantee of a prior unrecorded deed from the debtor of which such creditor has no notice.</p> <p>2. Immaterial Assignments of Error.—Assignments of error relating to alleged mistakes of the trial judge in the statement of facts approved by him will not be noticed.</p> <p>3. Objections to Evidence.—No objection to the evidence being made in the court below, no motion for a new trial, and no exceptions to the findings of the judge, it is too late to present it for the first time here.</p> <p>4. Evidence Admissible upon Issue of Fraud. — It was competent for plaintiff to inquire into the consideration of a deed from defendant to his wife for another tract of land, for the purpose of showing that thereby the alleged debt forming the consideration of the deed to the land in controversy had been wholly or partially paid, as well as to develop facts pertinent to the question of fraud.</p> <p>5. Homestead Subject to Execution.—An abandoned rural homestead1 is subject to execution when another has been acquired.</p> <p>ON MOTION FOR REHEARING.</p> <p>6. Execution Purchaser, When an Innocent Purchaser. — When judgment had been recorded before the adverse title of a purchaser from the debtor, an execution purchaser thereunder acquires a better title than one holding under the elder adverse deed, not recorded until after the record of the judgment, and of which the execution purchaser had no notice prior to the registry of the judgment, although he did have notice of it before the sale under execution.</p> <p>7. Registration of Deed from Husband to Wife. —The property in controversy was owned by the defendant before his marriage. By his deed to his-wife she acquired the legal title, which is within the operation of the registration laws, and is not affected by the doctrine of resulting trusts, as announced in Boss v. Kornrumpf, 64 Texas, 390; McICamey v. Thorp, 61 Texas, 648; Parker v. Coop, 60 Texas, 111; Senter v. Lambeth, 59 Texas, 260; Blankenship v. Douglas, 26 Texas, 229.</p> <p>8. Improper Brief — Presumption in Favor of Action of Trial Judge.—See report of brief and motion for language rebuked by the court. The judge of every court, until otherwise determined in manner prescribed by law, must be presumed to be incapable of intentional wrong or injustice, and must be-treated with courtesy and deference by litigants and counsel.</p>

<p>. 1. Mandamus to Restore to Membership in Association.—Under the former decision in this case, the exceptions to the petition, in so far as it sought a mandamus, were properly sustained. Allegation of the nullity of proceedings-under and by virtue of which the appellant was expelled from the defendant association, does not meet the objection, that he could have appealed to the society from the decision of its board.</p> <p>2. Right of Action for Damages.—If the allegations in the petition are true, there can be no doubt that the attempted expulsion of plaintiff was void, and could furnish no defense to the association in depriving plaintiff of his rights as a member. If the proceedings were null, and his petition alleges facts sufficient to entitle him to relief, he could maintain an action for damages sustained.</p>

<p>1. Known Risk—Contributory Negligence a Question for Jury. A fireman of a piledriver engine, while shovelling coal into the engine from a connected box car in which the coal was kept, was injured by being jolted off the flat car upon which was the piledriver engine, by the striking of a moving train against it. The piledriver engine was near one end of the fiat car, and was usually enclosed by a house with a sliding door at the end next to the coal car, in which the fireman might stand while shovelling coal, and protect himself from falling when jolted by grasping that end of the house. When the accident occurred that end of the house was entirely open. Plaintiff had been in the employ of the defendant company as pile engine fireman for a year or more. He alleged that defendant had promised to replace the end of the house within a very short time, as had always been the custom before when it had been removed, and that relying upon said promise and custom, he continued to remain in plaintiff’s employ, discharging his said duties, being induced to do so by said conduct, words, and action of defendant. The theory of the plaintiff was, that the master having so promised, and the injury having occurred within a reasonable time for the performance of the promise, and the defect not being of such a dangerous character as that a prudent man would not have continued in the service, in view of the promise, that defendant was liable. The effect of the allegation with respect to promise would be to relieve plaintiff from the negligence contributing to the injury. by remaining in the service when the danger was apparent, and the question of his negligence was one for the jury.</p> <p>2. Negligence of B'ellow Servant.—It can not be said that the jolt was an intervening or independent cause contributing to the injury, and that the defendant would not be liable because it was the negligence of a fellow servant, for it was against such contingencies that the end of the house would reasonably be inferred to be a protection.</p> <p>3. Promise to Repair.—Plaintiff knew of the defect, and the additional risk, and unless he is protected by a promise, express or implied, to remedy the defect by replacing the end of the house, he can not recover. Prior to June 3 the end of the house was taken out. The plaintiff went to work as fireman on June 5; the injury occurred Friday, the 7th. The evidence showed no promise to replace the end of the house on any named day; the inference from it being that the foreman would fix it as soon as he got through the work he was then at. The custom of the defendant’s employes was to replace the end of the house on Sunday. The plaintiff testified that he thought they would put it up on Sunday. It is therefore clear that he was not induced to remain in the service by any promise, either express or implied, to replace the end of the house, and therefore he can not recover.</p>

<p>1. Boycott — Interference with Plaintiff’s Business.—A petition of a hotel and saloon keeper which in substance avers, that defendant employs many thousand men, who occasionally visit Houston; that defendant had instituted a boycott against plaintiff, and used its immense power and influence to drive away his customers; that its division road master, who employs more than a thousand men, by authority of defendant, vigorously prosecuted the boycott, and publicly declared that he would discharge and refuse employment to men who patronized plaintiff, and did discharge a number of men on that account, and instructed his foremen to refuse employment to plaintiff's patrons; that defendant was fully informed of the conduct of its servants, and ratified it, whereby plaintiff has been damaged in his business $100 per month from June, 1888, to day of trial, states a cause of action good against a general demurrer.</p> <p>2. The word “Boycott.” — Whether it has acquired in modern usage a meaning sufficiently definite for a court to take notice of in pleading, without explanation, is not material in this case. So far as its import is developed, the term boycott does not seem very applicable.</p> <p>3. Injury to Trade.—The acts alleged, and not the name given them, determine the legal characteristics of the-cause of action; and though no conspiracy be charged, injury to one’s trade, inflicted without a conspiracy, will subject the guilty party to damages.</p> <p>4. Right of Master over Servants’ Bating and Drinking.—A master has the right to discharge his servants for reasonable causes only, and it would have been no just ground for discharging its servants because they ate at plaintiff’s house or drank at his bar. They presumably had the right to eat and drink where they chose, so long as they violated no contract with their employer, and performed their service well; and the malicious use of such moral coercion as the petition alleges, for the purpose of injuring plaintiff, was wrongful, and made the-defendant liable for the damages thereby inflicted.</p> <p>5. Terms of Employment. — The master has the right to determine for himself whom he will employ, and therefore defendant had the right to give notice that for the future it would not employ any one who patronized plaintiff. The reasons upon which it might act concerned no one but itself.</p> <p>6. Lawful Business.—It was not necessary that the petition should allege that plaintiff’s business was lawful. Keeping a hotel is per se a lawful business, and selling liquor may become so by compliance with the law regulating it.</p> <p>7. Charge Properly Refused.—“If you believe from the evidence that defendant company, or its agents, did instruct its employes not to patronize the plaintiff’s hotel and saloon, but did so to prevent troublesome litigation with, plaintiff, or interference with their customs or regulations with their employes,, but not for the purpose of injury to plaintiff or his business, you will find for the-defendant,” properly refused. How such order would prevent litigation is not made to appear.</p> <p>8. Exemplary Damages.—Adjudged, that the act of defendant was not done wantonly or maliciously, and plaintiff was not entitled to exemplary damages, and he is given ten days within which to remit the exemplary damages found by the jury, or case reversed.</p>

<p>1. Effect of Garnishment. — When the trustee in a deed of trust made by the debtor for the benefit of certain preferred creditors, is garnished by the non-preferred creditors, who attack the validity of the trust deed upon the ground of fraud, the sendee of the writ places the effects held by him under the trust deed in the custody of the law, and fixes a lien upon them, in case they are subject to the nonpreferred debts of the debtor, in favor of such creditors.</p> <p>2. Bight of Garnishee to Hold Effects. — The garnishment suits in which the trustee had been cited as garnishee not having been decided, and the trustee being directed by the trust deed to pay over proceeds of sales of goods to the preferred creditors, and the question of the validity of the trust deed being undecided, it was the duty of the garnishee to hold the goods or their proceeds, in order to apply them in accordance with the judgment of the court, when it should determine the rights of the parties. A subsequent garnishment creditor had no better right to the proceeds of sales in the hands of the trustee than did G. Ash, to whom, by the terms of the trust deed, it ivas payable; and neither had right of recovery so long as there were garnishments in force against the trustee.</p> <p>3. Bond of Indemnity.—We know of no authority by Avhich a garnishee may be required to surrender property which he is entitled to hold for his protection, and to accept in its stead the personal undertaking of the creditor and his sureties.</p> <p>4. Garnishee Entitled to Protection, When.—Though the trustee had money in his hands, proceeds of sales of the goods, which by the terms of the trust deed may have been payable to G. Ash, the debtor of appellee, and though G. Ash was not a party to any of the other garnishment suits, the trustee is a party to them, and judgment may be rendered against him as garnishee in favor of those creditors, and G. Ash is not a necessary party to a valid judgment in those suits; and as the garnishee seeks the protection of the court against a double liability, he is entitled to it.</p> <p>5. Delay.—The case should not be indefinitely continued until the other cases are disposed of, nor unreasonably delayed, but such proceedings should be had as to reach a definite determination of the rights respecting the fund.</p>

<p>1. Delay Caused by Connecting Lines. — Appellant can not be held liable for delay which was caused by its connecting lines, in the absence of proof of negligence on its own part. But if appellant wrongfully refused to receive and forward appellee’s goods to their destination when they were tendered to it at St. Louis, thus causing the delay, it would be liable.</p> <p>2. Regulation as to Receiving Freight—Appellant had adopted a regulation that it would not receive goods that had been damaged while in the hands of other roads, unless it was indemnified against liability for such damages. Appellee’s freight was damaged when tendered to appellant by the Wabash road. That road could n'ot force appellant to receive the goods and take the risk of suit by the consignee. The regulation was reasonable, and appellee’s loss by delay arose through the fault of the other lines, for whose acts and omissions appellant is not responsible, and appellee can not recover.</p> <p>3. Refusal to Pay Charges.—When the goods arrived at Marshall, appellee refused to pay the charges. Appellant had the right to hold them until the charges were paid, and appellee can not recover for the detention resulting from his refusal to pay charges.</p>

<p>1. Beceiver of Bailway Company.—The receiver of a railway company is ordinarily to be regarded not as the agent of the company but as the representative of the court appointing him, for the preservation and management of the property; and a recovery can not be had against the company for the negligence of the receiver.</p> <p>2. Same—Company not Liable, When—Statute Construed.—Under subdivision 2, article 2899, of the Revised Statutes, a railway company can not be held liable for negligence resulting in the death of a person from injuries received while the road was in the hands of a receiver, where it does not appear that the receiver was personally and immediately guilty of the negligence complained-of.</p>

<p>1. Sale by Solvent Debtor Tending to Defraud Creditors.—A charge of court to the effect “ that if at the time of the saie of the goods in controversy Wood, the vendor, 'was solvent and had sufficient property within reach of his creditors, independently of the goods in controversy, to meet his liabilities, said sale did not have the effect to hinder, delay, and defraud the creditors of said Wood in the collection of their debts, then such creditors would not be permitted to question the terms or purpose of said sale by Wood," held to be radically wrong, and in the case at bar necessarily tending to mislead the jury.</p> <p>2. Practice on Appeal.—Where a case is submitted to the appellate court alone upon the insufficiency of the evidence, that issue will be passed upon, but where there are other issues the decision of which requires a reversal of the case, this court will not pass on the sufficiency of the evidence to support the verdict, as it can not presume that the evidence will be the same on another trial.</p>

<p>1. Interstate Commerce — Foreign Corporation. — The act of the Legislature of Texas, approved April 3,1889, requiring foreign corporations to file their articles in Texas and obtain a permit to do business in the State, in so far as it applies to goods sold in one State to be carried into another, is in violation of the “ commerce clause” of the Constitution of the United States, and can furnish no defense to a suit brought for the purchase price.</p> <p>2. Same —Statute not Applicable to Case as Stated.—But where a corporation domiciled in another State sells goods there, and it is not shown that they were intended to be shipped into Texas, or that such corporation transacted or solicited business in Texas, or had a general or special office here, the case is one to which the áct does not apply, as the matter is not shown to be an interstate transaction.</p>

<p>1. Practice in County Court on Appeal from Justice CourtSetoff.—Article 316 of the Revised Statutes, which prohibits any setoff or counterclaim from being set up by the defendant in the County Court which was not pleaded in the court below, in cases brought by certiorari, applies as well to a case taken to the County Court by appeal.</p> <p>2. Practice —Objections Necessary, When. — That the County Court permitted plaintiff to amend his claim by setting up new items, no objection thereto being made by defendant, furnishes no sufficient reason for allowing defendant, over objections of plaintiff then made, to also set up new items not pleaded in the Justice Court.</p> <p>3. Hearsay Evidence.—For an illustration of the rule that hearsay evidence is not admissible, see the opinion.</p>

<p>Appeal from Red River. Tried beldw before Hon. E. D. McClelland.</p>

<p>Wife’s Separate Property — Proceeds of Homestead Sale. — Personal property received in payment for the homestead of an insolvent debtor, when transferred by him to the wife to he her separate property, upon the sole consideration of her consent to the sale, is not subject to execution in favor of the husband’s creditors. Following Blum v. Light, 81 Texas, 414.</p>

<p>1. Telegraph Company—Notice of Importance of Message.—See the opinion for facts and circumstances held sufficient to charge a telegraph company with notice of the importance of a message delivered for transmission, and of the probable consequences of a failure to deliver it.</p> <p>2. Damages for Negligence in Delivery of Message.—Through the failure of a telegraph company to deliver a message, plaintiffs missed an early sale of a lot of wool, with consequent loss. Held, that the damages thus sustained were within the contemplation of the parties at the time of the contract to deliver the message, and that defendant can not complain of a verdict for a less amount than the actual loss suffered by plaintiffs.</p> <p>3. Evidence—Deposition Suppressed, When.—Where interrogatories were propounded to a party to the suit and his answers thereto taken without the issuance of a commission, such deposition was, on motion, properly suppressed.</p> <p>4. New Trial — Newly Discovered Evidence. — An application for a new trial on the ground of newly discovered evidence of a witness, is properly overruled where it is not accompanied by the affidavit of the witness to the effect that he will testify to the facts stated in the application.</p>

<p>1. Fellow Servant — Railway Company. — An employe charged with' the duty of keeping in repair a railway track, is not a fellow servant with the employes operating the trains who sustain injuries through the negligence of such track repairer in the performance of his duty.</p> <p>2. Evidence— Presumptions from Failure to Produce.—Two railway companies jointly used the same yards, and one of the companies was sued in damages for a death resulting from negligence in the care of the yards. The defendant company, on the trial, did not offer any evidence of its contract with the other company relative to the use, management, and control of the yards. Held, that as to its control of the yards, every presumption should be indulged against the defendant on account of its failure to produce such evidence; and that proof by employes working in the yards that they were sometimes paid by the one company and sometimes by the other, was sufficient to show that defendant did have a joint control of the yards.</p> <p>3. Evidence—Action for Death of Husband.—In an action against a railway company for the pecuniary damages caused to plaintiff by the negligent killing of her husband, a witness of plaintiff was properly allowed to state that the husband was kind and affectionate to his family, and was an indulgent father and husband.</p> <p>4. Same — Res Gestee — Declarations of Deceased. —: The deceased husband, at the time he was run over by the engine, and while he was still under the wheels, made a statement as to the defect in the yards that caused him to fall under the wheels, and that he did not know of such defect. Held, that evidence' of this statement was properly admitted as part of the res gestee.</p>

<p>1. Libel—Privileged Communication.—Where a railway company, for the purpose of preventing men found to be unsuitable from being re-employed in its service, publishes and circulates for its own use a list of discharged employes, showing the causes of discharge, such publication is privileged; and although it contains a false statement, damages therefor can not be recovered unless express malice be shown.</p> <p>2. Libel by Corporation.—Corporations can be "made liable in damages for publishing a libel, and can also entertain the express malice necessary to render them liable for such publication.</p> <p>3. Libel — Proof of Express Malice.—Express malice, or malice in fact in publishing a libel, may be proved by circumstances; as by showing the falsity of the publication and a repetition thereof after notice.</p> <p>4. Verdict not Excessive.—A verdict for §2000 against a railway company for blacklisting a bralceman by falsely publishing that he was discharged for incompetency, held not excessive.</p>

<p>1. Negligence—Charge of Court on Weight of Evidence.—Negligence is a question of fact for the jury. The court has the right to charge that it is the duty of those operating a train to ring the hell or blow the whistle as soon as they see a man on the track ahead; but it is error, as upon the weight of evidence, to charge that a failure on their part so to do would constitute negligence.</p> <p>2. Contributory Negligence—Going upon Railway Track.—Where a person goes upon a railway track and is, at the time of the collision, by his own negligence, placed in a dangerous position, he is not entitled to recover damages resulting from the injuries received on account of the failure of the train operatives to discover his position of peril in time to. avoid the accident. In such ease his contributory negligence precludes a recovery, unless it also appears that after his position of danger is discovered, the operatives are guilty of negligence that contributes to the injury.</p> <p>3. Same—Discovered Negligence .—Where at the time of the collision the person on the track is not guilty of negligence, though originally negligent in going thereon, an intervening cause absolutely or morally beyond his control having put him in a position of peril, the railway company will be guilty of negligence if, through want of proper care, its train men fail to discover the dangerous position of such person in time to avert the injury.</p> <p>4. Charge of Court—Presumption of Fact.—Whether railway operatives, after blowing the whistle or ringing the bell, may presume that a person upon the track will leave it in time, depends upon the facts of each particular case, and the court should not charge absolutely that they may so presume.</p>

<p>1. Pleading not Duplicitous, When .—Plaintiff’s petition in a suit against a railway company for personal injuries is not duplicitous because it alleges in one count that plaintiff was thrown from the car without fault on his part, and in another that he was injured by voluntarily attempting to leave the train.</p> <p>2. Contributory Negilgence—Charge of Court.—A charge of court that “ if plaintiff was injured, and the proximate cause of the injury was plaintiff’s contributory negligence, defendant would be entitled to a verdict, even though defendant may have been negligent also; and if plaintiff and defendant were equally negligent, plaintiff could not recover,” is calculated to mislead the jury as to the doctrine of comparative negligence; but this is sufficiently corrected where, in another part of the charge, the jury are further instructed, that if they believe the defendant guilty of negligence, then in order to find for plaintiff they must believe such negligence to have been the proximate cause of the injury without any contributory negligence on the part of plaintiff.</p>

<p>Error from Lamar. Tried below before Hon. E. D, McClelland.</p>

<p>1. Notice to Agent — Railway Company Charged with Notice, "When.—In an action of damages against a railway company for the death of a minor who was employed as brakeman by the company, and was killed while coupling cars in its yards, proof of knowledge on the part of the acting yard master and of the yard foreman who put him to work therein of his minority and inexperience, is sufficient to charge the company with notice thereof.</p> <p>2. Master and Servant—Employe Assuming Hazard of the Business.—An instruction, that if the defendant company (employer) did not inform the deceased (employe) of the hazard and danger of the employment and work at which he was killed, plaintiffs could recover for the death, is not error where it is qualified with the statement that if the jury found that the deceased was inexperienced in such work, and did not know the danger or peril attendant upon it, and that defendant knew of his want of experience and ignorance, and that the injury was not caused by the fault or contributory negligence of the deceased, then they might find for plaintiff; provided, they found the facts constituting negligence on the part of defendant to exist.</p> <p>on rehearing.</p> <p>3. Practice—Charge of Court—Special Instructions Properly Refused, When.—Where a number of requested charges, which in so far as they contained correct propositions were embodied in the main charge, were written on the same sheets, and were refused by the judge, who endorsed thereon as the reasons for refusal that they were so written, and that the substance of those cor-root was given in his main charge; held, that this amounted to a requirement by the court that such of the charges as were correct should he submitted separately from the others; that such action was within judicial discretion; and that there was no error in refusing to give the charges for the reasons stated in the endorsement of refusal.</p>

<p>1. Practice on Appeal—Suggestion of Delay.—Where a case is submitted on a suggestion of delay by appellee under rule 43 of this court, but the appellee fails to file such a brief as complies with the rules, the statements in appellant’s brief as to the contents of the record will be considered as acquiesced in, and will alone be looked to by the court.</p> <p>2. Same—Damages for Delay.—The action of the court below in taking from the jury a question of fact involved was of doubtful propriety. Held, that the appellant should not be visited with the penalty of 10 per cent damages for taking an appeal from the judgment rendered in such case.</p> <p>3. Charge of Court Assuming a Fact.—Plaintiff sued a railway company for damages for personal injuries; and the court charged, that “if the jury believe from the evidence that the plaintiff was engaged at the time of the alleged injury in loading a car on the track of the defendant company; and if they further believe from the evidence that while so engaged, agents or servants of the defendant company propelled another car against the one the plaintiff was so engaged in loading, and in so doing were guilty of negligence, etc., they should find for plaintiff.” Held, that this charge assumed a material fact, viz., that plaintiff was rightfully on the railway track at the time of the injury; but as the evidence was undisputed on this point, the court might so assume, although the practice is of doubtful propriety.</p>

<p>1. Damages for Mental Anguish—Telegraph Company.—In an action against a telegraph company for failing to forward a message summoning a physician to attend plaintiff’s sick child—the physician being the grandfather of the child, and his arrival being thus delayed four days, and until the child was beyond help—plaintiff is entitled to compensation in damages, not for the mental suffering which resulted from the sickness and death of the child, but for the superadded pain and anguish which resulted from the physcian’s absence until too late to afford any relief.</p> <p>2. Contributory Negligence—Charge of Court.—The court submitted the issue of contributory negligence on the part of plaintiff, and the jury found in his favor on this point. The record contains no evidence of contributory negligence on the part of plaintiff’s wife which would not show equal or greater negligence on his part. Held, that no injury resulted to defendant from the failure of the court to give a requested instruction as to contributory negligence on the part of the wife.</p> <p>3. Verdict not Excessive.—A verdict for $1000.25 in this case in favor of plaintiff for the mental suffering resulting from failure to forward the message held not excessive.</p>

<p>Evidence — Contradicting Witness. — In an action involving the title to certain jewelry, R. M., a witness for plaintiff, testified that the jewelry was and always had been the property of his mother, the plaintiff. Being asked on cross-examination if he did not write a letter to defendant claiming, in effect, to own the property, and stating that he would put it into their partnership business as a portion of his capital, he denied having so written, but on being shown the letter admitted that he wrote it. Defendants offered the letter in evidence. Seld, that it was admissible for the purpose of contradicting and discrediting the witness.</p>

<p>Evidence — Parol Testimony Varying Written Instrument. — A written agreement, comprehensive in character, specifying different transactions involved, and appearing on its face to be complete, can not, in the absence of proof of fraud, accident, or mistake, be varied by paroi evidence showing that at the time, and as a part of the settlement evidenced by the writing, there' was an additional verbal agreement forming part of the settlement, but not embraced in the written instrument.</p>

<p>State School Land —Failure to Settle — Limitation to Suit for Forfeiture.—Section 6 of the Act of 1883, relating to the sale of State school lands, which limits the amount and class of such lands any one person may purchase, and empowers the State to cancel purchases made in evasion of the act within one year from the date of sale, has no application to the time within which the State may sue to cancel a sale because the purchaser has failed to settle on the land, as further required by section 8 of said act.</p>

<p>1. Negligence—Charge on Weight of Evidence.—J., who was blind •and riding in a wagon driven by his father, was leading a horse behind it. As the wagon crossed over a railway track, the horse, becoming frightened, pulled back, throwing J. on the track in front of an advancing hand car, which struck and killed him. In a suit against the railway company for causing the death, the court charged, that " if the employes in charge of the hand car saw the wagon of G-. W. J., in which deceased was riding, stop before reaching the railway, and were thereby led to believe no effort would be made to cross said railway until it passed the crossing, then it was not negligence in said employes not to stop said hand car.” The evidence was conflicting as to whether the wagon stopped before crossing the track; and in this state of the proof the charge above was objectionable as being on the weight of evidence, and also as intimating that in the opinion of the court the wagon did stop.</p> <p>2. Railway Company’s Duty to use Improved Inventions.—It is the duty of a railway company to adopt well tested inventions and improvements for the protection of persons lawfully on its track. Permitting the use of a hand car not supplied with the most efficient brakes will, where an injury proximately results therefrom, constitute ordinary negligence.</p> <p>3. Negligence—Proximate Cause.—In order that negligence constitute ■the proximate cause of an injury, it must appear'that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the circumstances.</p> <p>4. Contributory Negligence of Another Imputed, When.—Where two persons are engaged in a joint undertaking, the negligence of each will be imputed to the other; and where one of them, of his own volition, confides himself to the care of the other, the negligence of such custodian should be imputed to him.</p> <p>5. Contributory Negligence — Intervening Cause.—Where one has time to cross a railway track in safety under ordinary circumstances, he is not chargeable with contributory negligence for failing to anticipate an unusual occurrence, such as falling upon the track, unless there was reason to anticipate-such falling, from the circumstances.</p>

<p>1. Damages—Measure of, for Negligently Destroying Trees.—In an action against a railway company for negligently causing a fire which destroyed plaintiff’s fruit trees and vines, the defendant will not be heard to complain that the measure of damages applied by the court was their cash value, instead of the lessened value of the land, since plaintiff may waive the incidental and additional damage to his land caused by the destruction of the trees.</p> <p>2. Negligence—Definitions.—The court charged that “ negligence is the lack of that care which an ordinarily prudent man would exercise in the management of his own affairs.’’ Appellant contends that the definition should have been as follows: “Negligence implies generally the want of that care and diligence which ordinarily prudent men would use to prevent injury under the circumstances of the particular case.” Held, that the difference in these definitions is so slight that under the facts in this case no injury could have resulted to appellant in this respect.</p>

<p>1. Attachment — Measure of Damages for Wrongful Levy on Realty.—An instruction that the measure of damages for the wrongful levy of an attachment upon certain property is such an amount as the property was reasonably worth on the market at the time it was attached, is erroneous, where part of such property is realty. The value of real estate is not the measure of damage for levying an attachment thereon.</p> <p>2. Parties to Suit for Partnership Property.—As a general rule, all partners must join to recover for the conversion of partnership property; but one partner can not defeat the rights of his copartner by refusing to join in such suit, and where he so refuses the copartner can in some cases use his name even against his consent.</p> <p>3. Attachment—Damages—Consent of one Partner.—See opinion for rules of law as to pleading and measure of damages applicable to various phases of a case where one partner may have consented to or instigated an attachment of the partnership property upon grounds that did not exist.</p> <p>4. Same.—Where one partner gives his consent to an attachment, believing that the legal grounds therefor exist, and with no intention to unlawfully injure the other partner, but desiring thus to prefer the attaching creditor over other creditors of the firm, this would be a protection to such creditor for levying upon the firm property. But if the consent is by collusion, the attaching creditor understanding that the grounds for the attachment do not exist in fact, it will be no protection to him against the damage caused to the nonconsenting partner by the levy.</p>

<p>1. Charge of Court.—The purpose of the charge of the court is to afford the jury the means of applying the law pertinent to the facts about which they are to deliberate, and which it is their exclusive province to weigh. A charge which is confusing and leaves the jury without guidance in their deliberations with reference to a material and disputed issue in the case constitutes reversible error.</p> <p>2. Usury—Insufficient Plea.—To constitute usury within the prohibition of the law there must be an intention knowingly to contract for or to take usurious interest. A plea of usury is not good which alleges that the payee of the note sued on requested a third person to calculate the indebtedness due him by the maker, and draw up anote therefor, and that such third person included usurious interest therein without the knowledge or assent of the payee, who, when informed of it after the note was signed, declared it was wrong, and that he desired the note settled for the true amount due him, with lawful interest only.</p> <p>3. Usury—Judgment Conclusive Against Subsequent Plea of.— Usurious interest voluntarily paid may be recovered, or may be offset against another debt between the parties. But when it has been collected by virtue of a legal proceeding in which the defense of usury might have been but was not urged, the judgment in such case is conclusive against a subsequent plea setting ■up such usury in offset against another debt due the judgment creditor.</p>

<p>Statute of Frauds—Express Trust—Parol Evidence.—An express trust in relation to land is not within the Texas statute oí frauds, and may therefore be established by paroi evidence and engrafted upon a deed absolute in terms; and the agreement creating the trust is valid, although it contemplates the occupation of the land by the trustee during his life.</p>

<p>1. Becord on Appeal—Entry on Motion Docket below no Part of.—The judge’s notes are for his own convenience and that of the clerk, and an entry on the motion docket in the court below forms no part of the record on appeal, although a purported copy thereof appears in the transcript. Where the record does not show otherwise than by copy of such entry that a motion was called to the attention of the court below, an alleged order overruling such motion will not he reviewed on appeal.</p> <p>2. Garnishment—Controverting Affidavit.—An affidavit by plaintiff controverting the answer of the garnishee is not necessary, where the issue is not as to the truth or falsity of the facts set forth in the answer, but only as to the legal liability of the garnishee on the facts as therein stated.</p> <p>3. Garnishment Trial Without Issues Formed—Presumption.— Where it does not appear from the record that any issues, either written or verbal, were made up in a garnishment trial, but the judgment recites that both plaintiff and garnishee appeared by their attorneys, and that all matters of fact as well as of law were submitted to the court, it will be presumed that the parties did, by consent, form the necessary verbal issues, and the garnishee can not complain for the first time on appeal that the record does not show that such issues were made.</p> <p>4. Garnishment—Objection as to Venue Waived.—Objection that the trial in a garnishment proceeding was bad in a county other than that of the garnishee’s residence, comes too late on appeal.</p>

The conclusions of fact found by the trial court, and adopted in the opinion rendered on this appeal, are as follows: “ 1.

<p>1. Evidence—Expert Witness.—In order to testify as an expert, a witness must have special knowledge and skill in the particular calling to which the inquiry relates. One who is a lawyer by profession is not qualified as an expert to testify as to the rate of speed at which a particular train could be run with safety, by reason of the fact that while employed as a claim agent by a railway company he had casually acquired some knowledge of engines, and of their operation on the road.</p> <p>2. Evidence Not Material—General Condition of Railway Track. Where the action is against a railway company for an injury caused by defect in its track, evidence that the company ordinarily keeps its track in good condition is not material.</p> <p>3. Evidence—Opinion of Witness as to Care.—The question whether or not the defendant was ordinarily careful in building up low joints and keeping its track in good condition, is objectionable, as calling only for the opinion of the witness as to the exercise of ordinary care.</p> <p>4. Evidence—Safe Speed of Train.—Where the suit is by an employe against the railway company for personal injuries sustained, and defendant pleads contributory negligence by plaintiff in running his train at too high a rate of speed, it is proper to acquaint the jury with the different conditions under which trains can be operated with greater or less rapidity by proof showing that fast mail trains on well ballasted roads can be run at sixty miles per hour.</p> <p>5. Evidence — Allegata and Probata.—Under an allegation in plaintiff's petition, that on account of the injuries sustained he was confined to his bed for about three months, and that by reason thereof he has been disabled and prevented from pursuing his occupation, evidence is admissible showing the length of time he had been out of employment.</p> <p>6. Charge of Court Without Evidence.—Where the injury complained ■of resulted from a low joint in the railway track, an instruction that plaintiff, an employe of the railway company, assumed such risk if he knew or might have known by the exercise of ordinary care that low joints were commonto railways generally, is properly refused in the absence of proof that such low joints are common.</p> <p>7. Charge of Court—Special Instruction Not Necessary.—Where the court’s charge has properly guarded the rights of the defendant on its plea of contributory negligence, an instruction requested by defendant repeating the law on that subject is properly refused.</p> <p>8. Charge of Court — Negligence. — It is error to instruct that the fact of running a train at a greater speed than is permitted by the rules of the railway company, is of itself negligence; as this contravenes the rule forbidding the trial court to say, in the absence of statutory declaration, that any particular act or omission constitutes negligence.</p>

<p>1. Trespass to Try Title to State School Land — Judgment in Forcible Entry and Detainer is Res Adjudicata, When—In a suit of trespass to try title to a tract of State school land, wherein the question at issue was whether the plaintiff or the defendant was actually and bona fide settled thereon at the time of application to purchase from the State, the defendant offered in bar as res adjudicata a judgment rendered in his favor and against defendant herein in a former suit of forcible entry and detainer for the same land. .Held, error to exclude the judgment on the ground that such former suit in which it was rendered was yet pending in the Court of Appeals.</p> <p>2. Practice on Appeal — Exclusion of Evidence not Material Error, When.—Where the record contains no copy of such prior judgment, and it is not shown that the same issue (as to the fact and right of possession) triable in the present suit was tried in such former suit of forcible entry and detainer, it does not appear that the exclusion of such former judgment was material error warranting a reversal.</p>

<p>Ferry—Public Road—Right of Riparian Owner.—The operator of a private ferry, without license from the proper Commissioners Court, can not land his boat on property condemned under the statute for a public road without the consent of the riparian proprietor of the land so condemned.</p>

<p>1. Pre-emption Homestead—Affidavit Necessary to Application for.—An application for the survey of a pre-emption homestead claim on vacant public domain is fatally defective if not accompanied by the affidavit required by law.</p> <p>2. Same — Abandonment of Residence upon.—See opinion for evidence that would sustain a finding that a pre-emption homestead settler had abandoned the land without an intention to again make his home thereon.</p> <p>3. Practice on Appeal — Presumptions where no Special Findings by Trial Court.—Where the trial below is by the court alone, without any special findings of fact or law in the record, it will be presumed on appeal that the court did find the facts to be such as authorized the judgment, if there was evidence warranting such finding, even though there was other evidence that might have sustained a different finding.</p>

<p>Costs Wrongly Adjudged Against Successful Party.—Where the plaintiff recovers judgment for an amount that would not have been within the-jurisdiction of the court, his demand having been reduced on the trial by counterclaim, and not by payment, it is error in the court, without cause therefor stated on the record, to adjudge against-him the costs of the suit.</p>

<p>1. Covenants of Warranty—Measure of Damages for Breach of-Where land is conveyed by deed of general warranty, and the title thereto fails by reason of the original sale thereof by the State proving void, and the vendee in such warranty deed, who is in possession, and who had assumed the payment of purchase money due the State thereon by his grantor, himself purchases the land from the State, the measure of his damages on the warranty, in the absence of fraud or misrepresentation on the part of the grantor, is not the purchase price paid the grantor, but the loss, if any, sustained in thus perfecting the title.</p> <p>2. Cases Distinguished.—The cases of Wheeler v. Styles, 28 Texas, 240, and Rodgers v. Daily, 46 Texas, 578, distinguished from the present one as being cases of executory contracts without covenants of warranty for the sale of vacant public domain.</p>

<p>1. Construction of Contract—Exercise of Option—Want of Privity.—Plaintiff company sued B. for the pasturage of cattle, and B. impleaded' W., M., and A., as being joint owners with him of the cattle by virtue of a written agreement, which provided, “ that in ease B. buys” certain steer cattle, to be kept in plaintiff’s pasture until ready for market and sold for account of said parties, “ and after said steers are bought said B. shall execute to said W., M., and A. a contract for a three-quarter interest therein, * * * then the said W., M., and A. will execute a written agreement to said B..to jointly assume all liabilities of and to pay for a three-fourths interest in said steers,” and after paying B. interest at 10 per cent per annum on three-fourths of the money invested in said cattle, to receive their proportionate share of profits, or pay their share of losses, if any thereon. B. after this agreement bought steer cattle and placed them for pasturage on plaintiff’s ranch, but never offered to convey to W., M.,. and A. any interest therein. Held:</p> <p>1. The agreement left it optional with B. whether he would convey any interest in the cattle to W., M., and A.; and having exercised the option by failing to make any such transfer, no interest in the cattle vested in the other three parties.</p> <p>2. As B. alone made the contract with plaintiff for the pasturage of the cattle, he was alone liable therefor, there being no privity of contract between plaintiff •and the other three parties.</p> <p>2. Agistment of Cattle — Liability only for Ordinary Care.— Plaintiff, as agistor, was liable for ordinary care in looking after the cattle entrusted to it, and responsible for ordinary negligence in relation to them; and having bestowed upon them such care as would a reasonably prudent man upon his own property under similar circumstances, it was not liable for the loss of such as died from stress of weather.</p> <p>3. Conversion of Cattle Being Pastured.—As plaintiff has set up no claim to 150 head of the cattle estimated to be still running in its pastures, it is held not liable to B. in this suit for the conversion of them.</p>

<p>1. Land. Certificate —Title by Estoppel.—H. purchased from certain heirs a land certificate which had issued to M., and a contract made by H. with A. for the location of certain certificates described in a schedule thereto attached, which schedule included the M, certificate, recited that the certificates so described were the property of A., and that H. was to locate them and receive therefor one-tliird of the land when he procured issuance of the patents. Held, that the recital that A. owned the certificates was binding on the heirs of £L, who were estopped thereby from claiming the contrary.</p> <p>2. Land Certificate—Sufficient Description.—The certificate was described in the schedule to the locative contract as follows: “ Estevan Mora, two claims, 640, 320, P. 960,” and the description reasonably identified it as the property intended to be transferred.</p> <p>3. Stale Demand—Locative Interest.—Patent on the certificate issued {to the heirs of M.) in 1859, during the lifetime of H., and the suit in which the claim of the heirs of H. was asserted was filed in 1890. Held, that the claim, as to the locative one-third, was in the nature of an action for specific performance, and was barred by stale demand, which having begun to run against H. in bis lifetime, continued to run unaffected by coverture or other disability on the part of his heirs.</p> <p>4. Stale Demand—Fraudulent Concealment.—An answer to the plea of stale demand, alleging that A. and his representatives had fraudulently concealed from the heirs of H. their locative interest in the land, is not good, since stale demand having begun to run against H. himself, who was necessarily apprised of the condition of the property, must be deemed to have continued to run against his heirs, notwithstanding such fraudulent concealment.</p>

<p>1. Inspection oí Cattle Before Shipment. — It is not required of a shipper of cattle to have his entire herd inspected under the inspection laws before the delivery of such cattle to the railway agent for shipment; nor would the agent be an offender from receiving a herd of cattle for shipment before the full compliance with the inspection laws. This ruling is made where a part of the herd had been inspected, and the remainder could have been inspected without causing any delay in loading them into the cars for shipment.</p> <p>9. Shipment of Cattle.—Owners of cattle contracted for cars for the shipment of their cattle. The cars were furnished and pointed out. Before any cattle were placed upon the cars, and when a part only of the cattle had been inspected, another herd of which inspection was completed was tendered. The inspection of the first herd could have proceeded to completion so as to cause no delay in the shipment. Held, that the railway company was liable to the owners of the first herd for damages for the delay caused by the preferred acceptance of the second herd for shipment. The tender of the second herd could not excuse the violation of the contract with the owners of the first herd.</p>

This suit was instituted by Priscilla Calvert et al. against Victor Beze •et al. as an ordinary suit of trespass to try title to 2000 acres of land, situated in Wilson County, Texas. This suit was filed May 14, 1885. On April 24, 1888, the heirs of John Cortez, appellants, intervened in the suit, claiming the land in controversy by right of inheritance from their said ancestor. There was a trial by jury and verdict and judgment for the land in favor of plaintiffs.

<p>1. Negligence — Pleading — Crossing Railway Track. — It is not always negligence to cross a railway track at a regular crossing in front of a moving train. All the facts and necessities of the occasion, the knowledge or means of knowledge of the person charged with negligence, are to be considered in deciding the question of negligence. See testimony held sufficient to support the allegation of negligence on part of the employes in charge of the railway train in a collision.</p> <p>2. Depositions—Exceptions.—Objections to answers in depositions because not responsive to the interrogatories can not be made except by motion filed before announcement for trial.</p> <p>3. Res Gestee—Expressions of Pain.—Complaints of existing suffering and exclamations of present pain are admissible as res gestee. Such complaints, however, are not competent when made after suit for such injuries.</p> <p>4. Obstructions to View.—That there were trees along the track obstructing the view of one approaching a public crossing, and who was injured in a collision at the crossing, is competent, whether alleged or not.</p> <p>5. Opinion — Nonexpert. — A witness not shown to he an expert can not give his opinion in evidence that persons operating the.train “ could have stopped and not have hit the wagon had they driven slower.”</p> <p>6. Measure of Damages. — In an action for damages by the widow and children of a man killed in a railway collision, it is competent to prove how much cotton and corn the deceased could raise in a year, and how much he could earn.</p> <p>7. Opinion as to Ordinary Facts.— It was error to admit testimony that the approach to the railway crossing (where the train collided with a wagon, causing injury) was too narrow to allow a wagon to turn around on it in safety. The facts only could be stated to the jury, and the jury should be left to their own conclusions.</p> <p>8. Mortuary Tables.—It seems that a witness testifying to the probable duration of the life from mortuary tables, should produce them, or they should be offered in evidence.</p> <p>9. Measure of Damages for Death, of Parent.—The measure of damages which a minor child is entitled to recover against one negligently causing the death of his father, is “ what he could reasonably expect to have received from the father during the probable duration of his life.” It was error to admit testimony to the cost of raising a child in the county of the residence of the child. This was not a proper basis for damages.</p> <p>10. Customary Speed—Neglect to Ring Bell.—The customary rate of speed of the trains at the place at which the collision causing the injury occurred, is competent, as was the habit not to ring the bell at such crossing. It appeared that the injured party was well acquainted with the crossing, and the testimony was in conflict whether the bell was rung on the occasion of the collision and injury.</p>

<p>1. Disclaimer—Limitation of Five Years.—Plaintiff sued in trespass to try title for a survey of land. The defendant owning 160 acres out of a junior survey on the north, disclaimed as to the land included in the survey sued for; also pleaded limitation of five years as to 160 acres of the junior survey. The title-deeds introduced by the defendant included land off the south end of said junior survey. Held:</p> <p>1. That defendant could not, uhder his disclaimer, recover any part of the land to which it extended.</p> <p>2. That the deed for the south end of the junior survey would not form a basis for title by limitation for any land not on said survey.</p> <p>2. Mistake in Deed — Limitation. —A deed may by mistake refer to a wrong survey, and yet be sufficient to support the plea .of limitation if it otherwise by external objects found on the ground definitely designates the land in possession.</p> <p>3. Verdict.—See verdict held insufficient to support a judgment, it not appearing where lines called for therein are located.</p>

<p>Appeal from Bosque. Tried below before Hon. J. M. Hall.</p>

<p>1. Assignment by Firm made by One Member—An assignment for the benefit of accepting creditors, executed in name of a firm by one of its members, was attacked by creditors. Held, that paroi testimony was competent and relevant, tending to show that the member of the firm other than the one signing the conveyance intended to make an assignment, that he authorized the execution, and that he had no property other than his interest in the firm assets.</p> <p>2 Same.—See facts held sufficient to show the authority of one member of a firm to execute an assignment of the firm assets.</p> <p>3. Same—Sufficiency of Firm Deed to Convey Individual Property.—A deed of assignment executed by a firm was sufficient to convey the individual property of its members when the deed conveyed “ all their real and personal estate other than that which is by law exempted from execution.”</p> <p>4. Cases Adhered to.—Coffin v. Douglas, 61 Texas, 406, and Shoe Company v. Ferrell, 68 Texas, 638, adhered to, as to assignments.</p>

<p>1. Degree of Care—Using Hand Car.—A contractor to fence the right of way was authorized to use a hand car in transporting his employes to and from their labor. In going to labor the hand car collided with an occasional train, and in the collision the plaintiff, one of the fence gang, was injured. In a suit for damages by him against the railway company it was not proper to instruct the jury that the plaintiff was required to exercise “ the highest degree of care.” The plaintiff was not a trespasser, nor was he on the track by mere courtesy or permission. Ordinary care was all that was imposed upon him under the.circumstances.</p> <p>2. Charge — Negligence. — The rule obtains in this State, that in the absence of a statute or other express provision of law declaring a particular act or omission unlawful, the court can not properly instruct the jury that such act or omission constitutes negligence.</p> <p>3. Rules by Railway Company for Use of Hand Cars.—In an action for damages for personal injuries suffered by plaintiff, who in his employment was rightfully upon a hand car which collided with a train, in which collision plaintiff was injured, the trial court should only instruct the jury that they should consider such rules, etc., if known to plaintiff, upon the issue of contributory negligence.</p> <p>4. Signals at Crossings, etc. — The failure to give such signals may be considered in determining the question of due care on part of the railway company, in behalf of a plaintiff injured in a collision with an approaching train while lawfully upon a hand car belonging to the defendant.</p> <p>5. Notice to Master not Notice to Servant.—A contractor to fence the right of way had work hands in liis employ. Held, that notice to the master was not chargeable upon his servants, of the rules and regulations touching the use of hand cars by such employes.</p> <p>6. Co-operative Negligence.—The negligence of another person not participated in by the plaintiff will not be attributed to him, unless he has some right of control over such person, or they are on terms of equality, engaged in a joint enterprise.</p>

<p>1. Mechanic’s Lien —Equity of Redemption.—In suit to enforce mechanic’s lien against alleged owner and an encumbrancer by mortgage upon the property, the alleged owner made default, and it did not appear that the mortgage had been foreclosed. Held, that plaintiff was entitled to decree of foreclosure of the equity of redemption in the property. .</p> <p>2. Same—Construction of Statute.—Construing the Constitution and legislation under it relating to mechanics’ liens, it is held, that as between the parties the lien exists in favor of a mechanic working on a contract made with one not owning the land upon which the work was being performed, but who obtained title while the work was pending. The rule that statutes in derogation of the common law must he strictly construed does not obtain in this State.</p> <p>3. Same— Parol Contract.— In absence of fraud, a mechanic’s lien fixed in the manner prescribed by the statute (article 3166, Revised Statutes), by filing for record his verified account within the time prescribed by the statute, takes priority over a mortgage made and recorded subsequent to the beginning of the work.</p> <p>4. Same.—Within the period of time allowed by statute for the lien to be fixed by being recorded, every person dealing with the property is charged with .notice of the existence of the lien.</p>

<p>1. Administration of Community Property — Suit on Bond.—A creditor may sue upon a claim allowed by the survivor, administering the community, in any court having jurisdiction of the amount. Such suit may be maintained upon the bond executed by such survivor.</p> <p>2. Same—Pleading—Effect of Approval of Claim.—In a suit on the bond of a widow administering the community of herself and deceased husband, for the amount of a promissory note and an open account, both alleged to have been allowed and approved, it is not necessary to allege that the deceased became liable by the execution of the note, or to give the items, etc., of the account. The allowal of the claims by the widow relieves the plaintiff from the necessity of proving the items of the account.</p> <p>3. Same.—The law does not require the survivor of the community estate to allow claims, nor contemplate their approval by the county judge. Such allowance and approval do not merge such claim into a judgment.</p> <p>4. Same—Pleading.—In suit upon such allowed claim by a creditor it is not necessary to allege the class of the claim, when the petition alleges assets largely above liabilities, and that they had been squandered by the defendant.</p> <p>5. Same — Statutes Construed. — There is nothing in article 2176. Revised Statutes, that expressly confines the creditor to the remedy there given. A creditor may sue upon the bond, whenever its terms are broken, to recover his claim, in any court having jurisdiction of the amount.</p>

<p>1. The La Vega Eleven League Grant Valid. —The testimonio of May 5, 1832, which was extended by La Vega before Juan Gonzales, regidor and second alcalde of the city of Leona Vicario, conferring upon Samuel M. Williams-power to procure title and sell the eleven league concession to La Vega, is in due form of law, and properly authenticated, and the same was admissible in evidence as an ancient instrument.</p> <p>2. Authentication for Record.—See statement of the case by the court for evidence of authentication of a testimonio, dated in 1882, of a concession of" eleven leagues of land made in 1830, by the government of Coahuila and Texas,, held sufficient to authorize its registration and admission in evidence.</p> <p>3. Title of the La Vega Heirs and their Vendees.—La Vega having sold his concession to Stephen F. Austin, and at the request of Austin having by the testimonio of 1832 constituted Samuel M. Williams his attorney in fact to procure title for his eleven leagues, take possession, and sell them for such prices and upon such terms as he might see fit; and Williams having procured title, been placed in possession, and sold, his vendees have better title than the heirs of La Vega or their vendees; title not having been claimed by La Vega until 1868, in which year he instituted suits in the United States Circuit Court, seeking to have the testimonio cancelled, but failed in all of them.</p> <p>4. Evidence of Character.—It being claimed by La Vega that the testimonio was fraudulently obtained, and was forged, it was not error to admit evidence of the character of Stephen F. Austin and Samuel May Williams.</p> <p>5. Title under the La Vega Testimonio better than the Flemming Grant.—The Peter Flemming league was located upon the La Vega grant, and in this suit the McPhauls claimed under it. This grant was void as against all persons holding under the La Vega grant and sale by Williams.</p> <p>6. Evidence Admissible as Res Gestae. — In two suits filed in the United States Circuit Court by La Vega, against Lapsley, League, and others, the object of which suits was to have the testimonio of 1832 to Williams cancelled, upon the ground of fraud and forgery, and to recover damages for the use and occupation of the land by the defendants, the judgments rendered were adverse to La Vega. Another suit in said court, between the mother and father of the McPhauls (interveners in this suit) and Lapsley, League, et al., involved the title •of the Peter Flemming league. Therein La Vega intervened, and again brought in issue the validity of the testimonio of 1832, and said suit was decided in favor of Lapsley, League, et al. The records in these three cases were admissible as evidence in this case.</p> <p>7. Answer of La Vega held Inadmissible in Evidence.—In one of the Circuit Court cases (No. 37 in chancery) in response to a cross-bill of discovery filed by Lapsley, League, et al., La Vega filed a sworn answer. The court below did not err in refusing to allow this answer to be read in evidence.</p> <p>8. Immaterial Errors by Trial Court.—If error was committed by the court below in the admission or exclusion of evidence, such errors were immaterial. as no other judgment could have been rendered under the evidence in this case than that which was rendered.</p> <p>9. Form of Judgment.—Suit by the League heirs against Lapsley et al., to recover on a note claimed to be part of the purchase money of the La Vega grant, and other moneys expended in perfecting that title; prayer for foreclosure of a lien upon the land for said debt, and for partition of the La Vega grant between the part owners. See opinion for form of judgment in such case which was affirmed.</p> <p>10. Errors not Considered.—There is no brief filed for any of the plaintiffs in error, nor any appearance for any of them. Defendants in error suggest delay. We have not felt called upon to consider any of the plaintiffs’ assignments save such as question the correctness of the judgment in sustaining the title of the defendants in error as purchasers from La Vega through the Williams testimonio.</p> <p>11. Errors Assigned by Defendants Against each Other.—We do not understand that a defendant in error is privileged to assign errors against his codefendants, unless he appeals. Without appeal, he can not require a revision of any alleged error committed in adjudicating upon the rights of himself and his codefendants, as between each other.</p>

<p>1. Option to Purchase Land. — The appellant paid $50 for an option to buy within six days thereafter a lot in Galveston for $12,000 cash, upon payment of which appellee was to make deed. Within the six days he notified the agent of appellee that he would take it, and offered to deposit such amount as might be required of him to bind the purchase pending examination of title; which was declined, and payment of the whole $12,000 required. Held, the word “buy” in the writing means not simply an acceptance of the offer, but a purchase completed by payment.</p> <p>2. Construction of Contract. — The contract required not simply that appellant should assent to the terms proposed within the six days, and pay the price at some subsequent time, but that he should buy within that time, paying the price in cash.</p>

<p>1. Void Note—Illegal Consideration.—A note given to a liquor dealer in payment for liquors sold by him to an habitual drunkard, or to an;7 person after having received notice from the wife, mother, sister, or daughter not to sell such person intoxicating liquors, is void for want of good consideration, in the hands of the original payee.</p> <p>2. Habitual Drunkard — Definition. — It was error to define the term habitual drunkard, in a suit on such a note, as “ one whose mind had become so impaired by the use of intoxicating liquors or drugs, that he is incapable of taking care of himself or property.” This is the definition in the statute relating to guardianship, and is for the purpose of determining when a guardian of the person and estate shall be appointed, and does not apply to the meaning of the term when used in the statute providing for the execution of a bond by a liquor dealer. It is here used in its common acceptation, and the capacity of the person to take care of himself or property is not in issue.</p> <p>3. Innocent Holder of Note.—If the plaintiff is holder of the note in good faith for value, and received in the usual course of business, he is unaffected by the fact that it was executed for an illegal consideration, unless the transaction is expressly denounced under penalty.</p> <p>4. Illegal Consideration Against Bona Fide Holder. — When the act out of which the consideration arose has been expressly prohibited by statute under a penalty, the defense has been held to apply to an innocent holder of the note, as in case of usury; but in this case there is no distinct prohibition of the sale of intoxicating liquors to an habitual drunkard, nor is there any declaration that a note given for such consideration shall be void, and it is therefore void only between the parties.</p> <p>5. Liquor Dealer’s Bond—Penalties for Violation.—The purpose of' the statute in requiring a bond from a liquor dealer, with the conditions prescribed, was to prevent the sale of liquors to the prohibited classes of purchasers named. A sale, then, in violation of the conditions of the bond, is a sale in violation of law, and the consideration for such sales would be illegal because growing out of a transaction sought to be prohibited by law; and not only may recovery be had of the statutory penalty, but the recovery of the consideration money by the seller may be defeated.</p>

<p>1. Land Agent’s Commissions when Himself a Purchaser.—Appellee sued for commissions for sale of land for appellants, who answered that plaintiff was himself interested in the purchase. The facts showed that the land was sold at the minimum price, that the plaintiff was let into the purchase as an equal partner at his own request, and that the other purchasers advanced him the money to pay his proportion of the first payment; that he represented to Smith that the purchasers would not take the land unless he was admitted as an equal partner in the purchase: held, that when he became interested in the purchase, he put himself in hostility to the interests of his principal, and the finding of the court below, that be acted in good faith, is not sustained by the evidence.</p> <p>2. Verbal Motion to Strike out Plea in Intervention.—The court should not have entertained an oral demurrer to Mrs. Smith’s plea in reconvention.</p> <p>3. Sale of Land of Wife by Agent under Contract with Husband.—The wife by plea in reconvention sought recovery of $1000 paid by her husband out of the purchase money of her land, to the appellee, in part payment of commissions claimed by him for making sale of it. She alleged want of authority on the part of her husband to make contract with Tripis, and nonliability on her part; that the land was her separate estate; want of knowledge of the contract, or the payment of the money by her husband; no recognition of Tripis as her agent, nor ratification of sale, and that the payment was made through the false and fraudulent representations of plaintiff and the ignorance and mistake of her husband. The plea showed a good cause of action in Mrs. Smith for the recovery of the $1000 paid by the husband to plaintiff.</p>

<p>1. Unfenced Track at Flag Station.—There was a flag station, siding, and public road crossing at the place where the animal was killed. The general terms used in the statute imposing liability on railway companies for Injuries-done to animals, unless their railways are fenced, do not apply to such places as public necessity or convenience require should be left unfenced. Railways are by statute required to receive and discharge freight and passengers at sidings, and to furnish cars for transportation of freight therefrom when requested, and full effect can not be given to them if the carrier is required to fence sidings at flag stations. It was therefore error for the court below to hold that appellant was liable, without proof of negligence.</p> <p>2. Conflicting Evidence—Judgment Affirmed.—The testimony tending to establish negligence was weak, and was contradicted by positive evidence, but the court held that the killing of the mare was caused by the negligence of appellant's employes, and in such cases the rule is to affirm the judgment, whether the finding on the facts meets the approval of this court or not.</p>

<p>1. Agreement of Counsel.—Counsel having agreed that either party might offer any paper in evidence pertaining to the land in controversy, without filing same, and without giving notice that the paper would be offered, such paper to be subject to any legal objections from the opposite party; and plaintiffs claiming the land as heirs of Charles Gates, defendants were properly allowed to read, without filing or notice, an article of agreement, proven for record by one of the subscribing witnesses, and signed by Charles Gates, by which he agreed to convey to his brother Amos (under whom defendants claim) the land in controversy.</p> <p>2. Affidavit of Forgery—Burden of Proof.—A paper offered in evidence under above agreement being met by a plea of non est factum, was nevertheless admissible; the burden of proof was upon the party asserting the forgery to prove it, and it was not shifted to the opposite party by the plea.</p> <p>3. Case in Judgment—Evidence Showing Good Title.—Plaintiffs claimed as heirs of their father, Charles Gates, his undivided interest in lands granted to his father, William, and proved their heirship and coverture. Defendants deraigned their title under Amos Gates, a brother of Charles. They showed an article of agreement signed by Charles, and proven by a subscribing witness, by which he agreed to convey to Amos his interest in the estate of his father and the land in controversy, in consideration of $200 received. They also showed a decree of the alcalde of San Felipe de Austin, of February 17,1834, divesting the title of the other heirs of William Gates, and vesting it in Amos. They proved that Amos was in possession of the land several years before the death of his father; that Charles lived on the land until he left the county in 1832; that he died in 1840, and his widow and children returned in 1840 and lived on the land in a house belonging to Amos until 1850 or 1853. when they left; that Amos bought the interests of his other brothers and sisters, and claimed and exercised acts of ownership over the land until he sold, in 1857; and that Charles had been heard repeatedly to say that he had sold his interest in his father’s estate to Amos. Under these facts, and as during the lifetime of Charles a paroi sale of land was valid, the judgment in favor of defendants is affirmed.</p>

<p>Error from Liberty. Tried below before Hon. L. B. Hightower.</p>

<p>1. Contributory Negligence.—Deceased was lying asleep on appellee’s railway track, and was run over and killed by one of its trains. Appellee's servants discovered him as soon as they could do so with reasonable care, and used all proper diligence to stop the train, but could not do so until the cars had passed over his body. The conclusion of law, that appellee was not liable, resulted necessarily from these facts.</p> <p>2. Practice when Witness Misleads the Party Calling Him.—A witness for plaintiff made statements to plaintiff before the trial tending to show a different state of facts than that testified to by him. When this was discovered, plaintiff should have applied for leave to withdraw her announcement of ready for trial, and to continue the case. Having proceeded with the trial and taken the chances of a judgment, she can not complain.</p>

<p>1. Contributory Negligence—Standing on the Track.—Just before the accident the engine had passed over the crossing, going east, and was returning, going west. Deceased stepped on the track just in front of the engine when there was nothing to obstruct the view. Just after he was struck, he said: “ I was on the railway, and did not know it was coming back, until it struck and killed me.” Held, contributory negligence, preventing a recovery, although there was evidence tending to show that the engine was running at fifteen miles per hour, when by city ordinance they were prohibited from running faster than six miles per hour.</p> <p>2. Erroneous Charge on Contributory Negligence. —The latter clause of the following charge held erroneous: “ It was the duty of Dr. Brown when he entered upon or onto defendant’s switch, to have used his senses of hearing and sight; and if he failed to do so, even though defendant should be found by you to be guilty of gross negligence, still his heirs can not recover, as such failure to use his senses would be in law contributory negligence, unless you should find the motion of defendant's engine was so rapid as to render the exercise of his senses by him useless and of no avail to avert the injury.”</p>

<p>1. Current Wages.—Appellant employed appellee to nurse him through a spell of sickness, and promised to pay him well for his services, but there was no agreement fixing the compensation to be paid, either for the entire service, or by the hour, day, week, or month. The mere circumstance that the rate of compensation is not agreed on in advance, ought not to take the case out of the exemption. In nursing, appellee was actually occupied by the day, and his right to compensation accrued as he served, being measured by customary or reasonable rates, and was certainly “ compensation to a hired person for services,” and current because accruing during the continuance of service, and the amount measured by the time of his employment.</p> <p>2. Offset Against Current Wages. — Appellant, before suit but after-controversy had arisen, procured an assignment from one Mrs. Harrison of a debt appellee owed her for board, and pleaded it as setoff when sued by appellee. The setoff pleaded accrued to another person, and had no connection with the contract of service. Had Mrs. Harrison garnished appellant, she could not have reached by that process the debt he owed appellee, and she can not accomplish the same result virtually by assigning the claim and having it pleaded as a setoff.</p>

<p>Liability of Sureties on Insufficient Appeal Bond.—A bond for appeal from the Justice Court to the County Court was given by one Allison, which was not conditioned as required by law, and in the County Court the appeal was dismissed, on motion of appellant, for want of a sufficient bond, and procedendo to enforce the justice judgment awarded. Upon appeal to the Court of Appeals upon a cost bond the judgment of dismissal was affirmed, and execution was promptly issued by appellant against Allison, when he was found insolvent. Thereupon, this suit upon the appeal bond from the Justice Court was filed against the sureties thereon to recover the amount of the appellant's judgment against Allison. Held, the bond was not good as a statutory bond, not being conditioned as required by law. and not good as á voluntary common law bond, because it was never agreed to or ratified by appellant, and recovery is denied.</p>

<p>1. Action Against a Tenant Holding Over—An action of trespass to try title can be maintained to recover possession and rents of real property from a tenant holding over after the expiration of his term; and a sequestration may issue in any case where a party sues for title or possession of real property.</p> <p>2. Tenant Holding Over can not Dispute his Landlord’s Title. There was no error in sustaining exceptions to defendants’ plea setting up false representations by plaintiff as to title. It is not alleged that defendants had been deprived of the enjoyment of the property by any adverse claimant, and the question of title was wholly immaterial.</p> <p>3. Tenant Estopped to Question Regularity of Incorporation of Landlord.—By entering into the rental contract and contracting an indebtedness with appellee” as such, appellants estopped themselves to deny that appelleewas a corporation in this suit for recovery of possession and rents.</p> <p>4. Continuance on Ground of Surprise.—Continuance was asked to procure the testimony of a witness living in another county, on the ground of surprise. The supplemental petition filed, which was the alleged ground of surprise, stated no new fact except alleged acknowledgment of the debt, which was set up in reply to the statute of limitations. If all barred rents are rejected, the-evidence shows an indebtedness quite as large as was found by the judgment. The motion was correctly overruled.</p>

<p>1. Certificate of Acknowledgment of a married woman being objected to, upon the ground that it did not appear therefrom that the wife was known to the officer who took the acknowledgment to be the person who executed the instrument, no opinion is expressed, the certificate being held invalid on another ground.</p> <p>2. Same—Fully Explained.—The officer having failed to certify that the instrument was fully explained to the wife, the acknowledgment is held defective for that reason. Following McKie v. Anderson, 78 Texas, 210.</p> <p>3. Same—Wished not to Retract.—The language of the closing part of the certificate being “and that she wished not to retract,” the absence of the word “ it” does not invalidate the certificate.</p> <p>4. Return of Purchase Money.—Suit being by Mrs. Moores, as heir of the former owner, for her interest in the lands in controversy, and the power of attorney given by her and her husband to Peterson being invalid, the fact that Peterson received the purchase money of the land in controversy, and that A. D. Moores received for his wife from Peterson §350 on account of all lands sold by him in Refugio and Goliad counties, does not make it necessary that the wife should be compelled to return her proportion of the purchase money, with interest, before she could recover her interest in the land.</p> <p>5. Reversed and Rendered.—The interest of Mrs. Moores fixed, and case reversed and rendered in her favor.</p>

<p>1. Sufficient Petition to Recover Penalty of a Liquor Dealer’s Bond.—When the petition sets out the bond, and the purpose for which it was executed, states that license was issued, and its date, and charges the violation of its conditions by the selling or giving malt liquor to a minor by an employe of the defendant, whereby the defendant became liable to the State, for the use of the county, in the statutory penalty of $500, it is good against a motion in arrest of judgment.</p> <p>2. Liability of the Licensee. — The fact that the beer was given to the' minor in the absence of the defendant by one of his employes, and against his-express commands, is not a defense. It is not necessary that it should be shown that the sale was knowingly made, and the language of the bond, “ will not sell or permit to be sold,” involves the idea of agency, and the law looks to the responsible party, the licensee, who has been permitted to carry on the business.</p> <p>3. Selling or Giving Beer.—It seems well settled that the word “ beer,” in its ordinary sense, denotes a beverage which is intoxicating, and is within the. fair meaning of the words “ strong or spirituous liquors,” used in statutes regulating sales. If it is to be understood to denote root beer, molasses beer, or persimmon beer, etc., the defendant must show that such was the case.</p>

<p>1. Pleading — Petition on Liquor Dealer’s Bond. — See petition set out in this case for a pleading held good against a motion in arrest of judgment in a suit to recover the penalty of a liquor dealer’s bond, for failing to keep an ■orderly house.</p> <p>2. Breach of Bond, Charge on.—Defendant sold groceries in the front room of his house, and in the back part of it had a bar for the sale of beer, and In the rear of the store house an arbor furnished with chairs, where beer was drank and music played. The jury were told that the place of business would include any arbor or structure kept by defendant for the purpose of the business ■of selling liquors, but it would not include any other house or structure not kept by defendant and used for such business; and that if music, loud and boisterous talking, yelling, or indecent or vulgar language was allowed, used, or practiced, to find for the plaintiff. This charge was a correct enunciation of the law, and not on the weight of evidence.</p> <p>3. Evidence Sufficient.—Having obtained a license to sell liquors in quantities less than a quart, proof that it was sold in the back part of his house, and that he did not keep a quiet house, was sufficient. It is presumed that the beer was lawfully sold, and the court judicially knows that beer is a malt liquor.</p>

<p>1. Indexing Abstract of Judgment.—The abstract was correctly indexed, except that when the clerk undertook to place it alphabetically upon the index in the column of plaintiffs, the name was stated thus, “Mott, J. L., Iron Works,’’ when the plaintiff which recovered the judgment was a corporation called the “ J. L. Mott Iron Works.” This indexing was sufficient. While indexing is made a necessary step in the creation of the lien, and while a substantial compliance with statutory direction can not be dispensed with, there is no reason why the object of the index, which is to afford a ready means of information as to the names of persons in favor of or against whom judgment liens exist, should be ignored. This indexing furnishes that information.</p> <p>2. Judgment Purchaser—Notice.—The judgment having been correctly recorded so as to create a lien, the purchaser at a sale under the judgment acquired the rights of the plaintiff in the judgment, and his title was superior to that of one who claimed title under an unrecorded deed which antedated the record of the judgment, although at the date of the sale such purchaser had notice of the unrecorded title, and advanced no new consideration.</p>

<p>Appeal from Tyler. Tried below before Hon. W. H. Ford.</p> <p>The case is stated in opinion on former appeal, 73 Texas, 324.</p>

<p>1. Good Petition, where Injury Caused by Incompetent Servant. In a suit for damages resulting from the employment by the master of an incompetent servant, it is unnecessary for the petition to allege that the company knew, or by the use of ordinary care could have known, of the incompetency of the servant.</p> <p>2. Same—Averment as to Want of Knowledge of Unfitness by Plaintiff.—In such case it is unnecessary for the plaintiff to aver that she had no knowledge of the unfitness of the fellow servant by reason of whose want of -skill she was injured. The plaintiff is not required to anticipate and negative a charge of contributory negligence on her part, when the facts stated in the petition do not suggest that she may have been guilty of it.</p> <p>3. Charge Erroneous in Assuming Unfitness.—While the uncontradicted evidence showed that the fellow servant when first employed was inexperienced and unskilled in the work to which she was put, and would have justified the jury in concluding that she remained so up to the time when plaintiff was hurt, they should have been left to determine whether she was incompetent at the time of the accident, and a charge that assumed that she was then incompetent was error.</p> <p>4. Knowledge of Fellow Servant’s Incompetency—Charge.—The jury should have been charged, that if plaintiff, with ordinary care, would have known of the incompetency of the coemploye, she could not recover.</p> <p>5. Opinion Evidence on Proper Handling of Machine — Opinion—Expert.—The plaintiff showed that she was qualified to speak as an expert,, and explained the manner in which the work should have been done; therefore, it was not error to permit her to testify that the machine was not properly handled by her coemploye.</p>

<p>1. Revocation of Order for Machinery— Measure of Damages.— Appellant ordered machinery in February, to be delivered on April 1. March' 15 the order was revoked by wire, but meantime orders for the greater part of the machinery ordered in February had been placed by appellee with manufacturers. About April 1 the machinery was shipped by appellee, and appellant refusing to receive it upon its arrival, appellee caused it to be sold, and sued for the difference between the contract price and the sum received for the machinery when sold. Held:</p> <p>1. The rules of law defining the rights of a seller against the purchaser, when the latter first breaks the contract by refusing to take the goods when tendered,, do not apply.</p> <p>2. Appellee should not have shipped the goods to Seguin, and thereby subjected appellant to increased damages, but should have stopped performance as far as they reasonably could do so, and then have held him liable for resulting ■damage to them.</p> <p>3. Appellees will be entitled to have the contract price taken as the standard by which to determine their loss, from which should be deducted the market value of such goods as they had in stock, and the cost of shipping them to Seguin ;• such further sums as the machinery purchased by appellees cost them, unless they could not dispose of it for as much as they paid for it, in which event the amount they could have reasonably realized from it had they not shipped it to Seguin, and also the cost of shipping to Seguin; and the balance will be the measure of their recovery.</p> <p>2. Repudiation of Contract — Effect.—The effect of the repudiation of his contract by appellant was to impose upon appellees the duty to reasonably conduct their affairs so as to lessen the damages, and appellant will be relieved from liability only to the extent that damages could thus have been avoided.</p>

<p>1. Construction of Deed—Word “ Locations.”—The language of the deed was: “Do bargain, sell, and convey * * * all legal and equitable rights, privileges, and titles to any and all locations made by me on Galveston Island.” A charge, “ If you believe from the evidence that Hall, by himself or with others or another, had made locations on Galveston Island not embracing the land in controversy, which land in controversy was then patented, you must determine from the evidence whether the word 1 locations’ embraced the patented land in controversy, or only other locations,” was erroneous.</p> <p>2. Construction of Deed for the Court and not for the Jury.—When the word “ locations” in a deed was directly applicable to files shown to have been made,but not on the land in controversy (which had been patented), and no evidence was offered to show that the property in controversy was intended to be conveyed by that word, or that the grantees ever claimed title under that deed-the jury might properly have been told that the patented lands did not pass by it-</p> <p>3. Practice—Dismissal of Suit as to a Claimant of Land—Effect of.—Holder of purchase money notes sued the makers and Hall, who claimed title to the land. He dismissed as to Hall, and took foreclosure j udgment against the makers of the notes, sold the land, and bought it in himself. The title to the land, so far as it concerned Hall, stood just as it was before the foreclosure, and those holding title under the foreclosure sale were tenants in common with Hall.</p> <p>4. Subdivision into Lots—Effect of, on Possession.—The fact that the land had been cut up into ten-acre lots would not confine the constructs e possession to the particular lot occupied, because the land was conveyed as a whole; unless the owner had leased a part of the land, including his actual possession, in which event he would have put himself out of the constructive possession of the balance.</p>

<p>1. Sleeping Car Tickets — Measure of Damages.—Appellee’s ticket from San Antonio to Galveston was via Southern Pacific Railway to Houston, and via International & Great Northern from thence to Galveston. After its inspection, appellant's agent in San Antonio sold appellee a ticket for a berth on the sleeper San Pedro, from San Antonio to Galveston. At Houston the sleeper was attached to a Gulf, Colorado & Santa Fe train, and appellee, about six miles-from Houston, was put off the train because his railway ticket did not entitle him to ride on that train, and because he refused to pay fare, having no money. It was reasonably within the contemplation of the parties when the sleeping car ticket was sold, that appellee would be subject to ejection from the sleeper for nonpayment of railway fare, if the sleeper was not transported to Galveston over the route called for, and the measure of damages would be such expense, loss of time, and mental suffering as directly resulted therefrom.</p> <p>2. Mental Suffering not within the Contemplation of the Parties.—Plaintiff was permitted to testify to his mental distress, after his return to Houston, by reason of his not arriving at Galveston on the morning of the same day, and his apprehension of discharge from his employer’s service by reason thereof, and his inability to make remittance to his principal according to his usual custom. (He was a sewing machine agent.) These causes of damage were not reasonably within the contemplation of the parties when the contract was entered into, and if cause for damage at all, should have been alleged, and defendant's knowledge of them proved.</p> <p>3. Evidence that Plaintiff had no Money was admissible, although it was not alleged that the state of plaintiff's resources was known to defendant. It was the duty of plaintiff to pay the railroad fare if he had the money, because he must use reasonable care not to aggravate the damages, and for this reason the evidence was admissible.</p> <p>4. Damages — General Discomfort and Inconvenience. — Though plaintiff would not be entitled to recover for mental anxiety occasioned by his-failure to reach Galveston, on account of special business considerations, still his general discomfort and inconvenience growing out of such failure would be proper elements of damage.</p>

<p>1. Lessor and Lessee—Liability of Lessee for Rent.—Appellee leased to appellant a lot on the gulf shore for $400 per annum, payable quarterly in advance. The defense was, that since the execution of the lease, and before the accrual of the rents sued for, the leased property had been submerged and encroached upon by the waters of the gulf, so that it was in great part below ordinary high tide, and because of the cutting away of the beach and the consequent depletion of the land it had ceased to be owned by plaintiff, was not subject to lease, nor under private dominion. Recovery by plaintiff was affirmed.</p> <p>2. Same—Destroyed Property.—In a proper case, rent for property totally destroyed should be abated, and when there is a partial destruction of the property, apportioned; but in this case the purpose of the lease was to prevent a rival street railway company from using it. The lessor knew when the lease was made that the lot was about two-thirds under water, and was a daily witness of the erosion of the beach and the encroachment of the water. It got all it contracted for, and the judgment of the lower court was right.</p>

<p>1. Collection of Tax not Enjoined, When. — Equity will not enjoin the collection of a tax on the ground of over valuation of the property by the hoard of equalization, and irregularities in the manner of giving notice of their action, where the complainant fails to allege that he had applied to the Commissioners Court to correct such over valuation and irregularity.</p> <p>2. Time Within Which Official Act may be Done.—Under article 34.31, Sayles’ Civil Statutes, providing for the subdivision of counties into school districts, “ at least one month before the first Monday in October, 1884,” such subdivision is not invalid because made after the date thus stated, as the statute is in this respect merely directory.</p> <p>3. Special School Tax—Notice of Election for.—Where the notices that an election would be held to determine the levy of a district school tax were signed by the county judge, and there was nothing upon the face of the notices from which an elector could infer that either the sheriff or the Commissioners Court had anything to do with summoning him to vote, such election is invalid and the tax levied thereunder is illegal.</p> <p>4. Evidence—Assessment Rolls.—If it be desired to show that a certain name does not appear upon the assessment rolls, the proper practice is to have the custodian of these records make a careful examination, and then to prove such fact by him as a witness, instead of introducing the rolls themselves in evidence.</p>

<p>Appeal Bond from Justice Court — Description of Judgment.— Where on appeal from the Justice to the County Court the bond given correctly describes the judgment appealed from by the number of the case, names of the parties, the court in which it was rendered, and the amount thereof, a misdescription in stating the date when the judgment was rendered as September 28, instead of September 30, is immaterial.</p>

<p>1. County School Land —Actual Settler’s Right of Purchase.— An actual settler upon county school land can not he denied his preference right as such to purchase 160 acres thereof, because he is the owner of an interest in other land, and entitled to a homestead right thereon.</p> <p>2. Same—Right not Limited to Actual Enclosure.—The prior right to purchase county school land guaranteed to an actual settler " to the extent of his settlement, not to exceed 1G0 acres,'" is not thereby limited to the amount he has enclosed, if such amount be less than 160 acres.</p> <p>3. Same — Tender of Purchase Price.—Where four leagues of county school lands are sold by the county in gross at so much per acre, without reference to any difference in value, and the purchaser brings suit for 160 acres'thereof against an actual settler who has tendered therefor the same price per acre, payable on the same terms, as in the sale made by the county, if the plaintiff in such action fails to object that the settler has not shown the relative value of the ICO acres, and himself offers no proof of any difference in value, the tender will be deemed sufficient.</p> <p>4. Same —Proceeding in Rem. — The sale of a county’s school lands by the Commissioners Court thereof is not such a proceeding in rem as will bar the prior right of purchase given by the Constitution to an actual settler thereon.</p>

<p>1. County School Lands—Actual Settler’s Right of Purchase.— The sale in bulk by a county of its school lands will be held subject to the prior rights of an actual settler thereon, who within a reasonable time after such sale tenders to the county and to its vendees, for the 160 acres he claims to purchase, the same price per acre, payable on the same terms, as in the sale made by the county; and the settler's right of purchase thus secured may be lawfully transferred to another. That the settler, prior to such sale by the county, had verbally agreed to make such transfer, no money having been paid thereon, does not prevent him from being an “ actual settler” within the meaning of the law,</p> <p>2. Same—Occupancy not Required of the Actual Settler’s Vendee.—Where the prior right of purchase guaranteed to an actual settler on county school land has been duly fixed by tender, the settler’s subsequent vendee may assert such right without himself actually occupying the land.</p> <p>3. Same — Future Settlers — Case Followed. — The provision of the Constitution (article 7. section 6) giving a prior right of purchase to actual settlers on county school lands, applies to future settlers as well as to those residing on the lands at the time the Constitution was adopted. Following Baker v. Dunning, 77 Texas, 2S.</p> <p>4. Same — Judgment in Rem. — The order of the Commissioners Court approving a sale o.f county school lands is rather an act of agency in the sale of the land than the exercise of a judicial function, and is not binding as a judgment in rem against the prior right of an actual settler on the land.</p>

<p>1. Attachment—Debt and Unliquidated Damages.—The difference between the contract price of property and its market value at the time and place it should have been delivered constitutes, not a claim for unliquidated damages, but a debt such as will"support an attachment, since the demand arises out of a contract, and the measure of damages is such as plaintiff can aver by affidavit to be due; and it is not material whether the promise to pay such damages be express or implied.</p> <p>2. Substituted Contract — Right of Action upon the Original Contract Remains, When. — Where a substituted contract made slight changes as to details in executing the original contract, in relation to matters not of the essence of the original contract, the court did not err in charging that such substituted contract, set up by defendant, would not prevent the plaintiff from maintaining his action upon the original contract, unless it appeared that the new-contract had in fact been performed bjr the defendant, or that he was ready, willing, and able to perform the same according to its terms.</p> <p>3. Evidence of Another Contract Admissible, When.—Where, in an action for failure to deliver certain cattle, the defendant attempted to prove that he had more cattle ready to deliver than was required to lili the contract, it was competent for the plaintiff to prove in rebuttal that defendant had also obligated himself to deliver cattle at the same time and place in fulfillment of another contract with another person.</p> <p>4. Market Value—Place of Delivery.—Where a contract called for the delivery of cattle at or near V., a town in C. county, it was competent to prove the market value of such cattle in C. county generally, it being shown that there was no market at V. different from the market in the county generally.</p> <p>5. Attachment—Fraudulent Disposition of Property.—In an action where an attachment had issued on the ground that the defendant had disposed of his property with intent to defraud his creditors, and there was proof that the defendant had mortgaged the property, the court correctly refused an instruction containing the proposition, that if the debt secured "by the mortgage was real and not fictitious, the giving of the mortgage was not a fraudulent disposition of the property, since such a charge would have withdrawn from the jury the consideration whether or not the mortgage was, in fact, executed with a fraudulent intent.</p> <p>6. Agency — Declarations of Agent Admissible, When. —It is not required that the proof of agency be full and satisfactory before evidence of the agent's acts and declarations are admissible. If competent evidence has first been introduced tending to prove the agency, the acts and declarations of the agent, if otherwise competent, may be admitted, as it is the province of the jury to pass upon the sufficiency of the proof upon this as well as other issues of fact.</p> <p>7. Attachment—Affidavit for, True only in Part.—An affidavit for attachment which alleges that the debt sued for is due for property obtained under false pretenses, where in fact only a small part of the debt is due for property obtained in that way, is both literally and substantially false, and a seizure of the debtor’s property to secure the larger sum is wrongful.</p>

<p>1. Trespass to Try Title—Common Source—Disclaimer of, Unavailing.—Where in trespass to try title both parties in fact deraign title from a common source, the defendant thereby admits the validity of that title, and will not be permitted, upon filing a disclaimer of holding under it, to defeat it by showing an outstanding title with which he is not in anyway connected.</p> <p>2. Title by Estoppel — Surrender of Unrecorded Deed Revests Title, When. — Where the grantee in an unrecorded deed returns it to the grantor, if it was the intention of the two that the grantor should thereby be reinvested with title to the land, such grantee will be estopped to claim the property; but this estoppel depends on such intention, without which the surrender of the deed does not operate to divest and revest the title.</p> <p>3. Registration—Innocent Purchaser Protected.—One who pays the , purchase money for land without notice of a prior unrecorded deed thereof, or of any claim under it, will be protected as an innocent purchaser against such unregistered conveyance.</p>

<p>Error from Dallas. Tried below before Hon. R. E. Burke.</p> <p>This suit was brought by plaintiffs in error in trespass to try title. There was a verdict and judgment thereon in favor of plaintiffs against twelve of the defendants, and against plaintiffs in favor of the other defendants, twenty-one in number. Plaintiffs’ motion for a new trial as to the twenty-one defendants was sustained as to all of them except three; and against the three in whose favor it was overruled plaintiffs sued out a writ of error herein, which was dismissed without written opinion.</p>

<p>1. Deed by Sheriff — Description of Land — Parol Evidence of Identity.—A sheriff's deed described the land conveyed as “ a certain tract or parcel of land consisting of G40 acres, more or less, as the property of Robert Hill, situated as follows: On the waters of Pecan Bayou, about eight miles northwest from Clarksville, surveyed on the headright certificate of Robert Hill.'' Parol evidence admitted to aid this description showed only that there were two surveys in the same county, located by virtue of the'same certificate; one of 800 acres, situated ten miles northwest from Clarksville, and the other of 640 acres, thirteen miles nearly northwest from Clarksville. There was no proof of the surveyor's records identifying the tract of 640 acres in controversy, or showing that the survey had. in fact, been made prior to the date of the sheriff’s levy, nor was any attempt made to account for the nonproduction of these records; nor did it appear that the tract in suit had ever been in the actual possession of any one, or that claim of title had been made thereto under the sheriff’s deed from about the time of its date. Held, that the evidence was insufficient to show that the land in controversy passed by the sheriff’s deed.</p> <p>2. Trespass to Try Title — Proof of Date of Survey Requisite, When.—Where, in trespass to try title, one party claims the land under a sheriff’s deed made prior to the date of the patent, it is incumbent on him to show that at the time of the levy of the execution the land had been located, so as to show that the defendant in execution had at that time such title as was subject to levy and sale.</p>

<p>1. Lease Contract—Measure of Damages for Dispossessing Tenant.—Where the landlord dispossesses the tenant before the expiration of the lease, the measure of damages is not confined to the difference between the contract price and the rental value of the premises for the unexpired term; but, in addition, the tenant may also recover as special damages such extra expense and loss as may have naturally and proximately resulted from his being deprived of the use of the premises.</p> <p>2. Same—Special Damages.—The lessee of a pasture who is deprived of its use by the lessor before expiration of the lease, may recover as'special damages the expenses and losses sustained in holding his cattle on the commons pending a diligent effort to secure another pasture, if there has been no want of care on his part.</p> <p>3. Same —Damages Must Result Proximately.—A stipulation in a lease contract, that if the landlord should sell the premises before the expiration, of the term he would pay the tenant for “ any and all losses occasioned by the-sale,” will authorize the recovery of only such damages as naturally and proximately proceed from the cause referred to in such stipulation of indemnity.</p>

<p>1. Trespass to Try Title—Common Source as Estoppel.—Where, in trespass to try title, hath parties deraign title through a common source, the defendant is held to admit the validity of the title, and can not impugn it by the assertion of outstanding title back of the common source.</p> <p>2. Deed of Husband to Wife — Recitals — Separate Property.— Where the husband conveys land to the wife, it is not necessary, in order to vest, the title in her as her separate property, that the deed should contain a recital that the conveyance is intended for her separate use.</p> <p>3. Practice on Appeal — Assignment of Error. —Complaint against a finding of fact by the trial court will not be considered on appeal without a specific assignment of error having been made thereto.</p> <p>4. Separate Property of Wife— Contract as to Future Acquisitions.—One who is not a creditor of the husband can not complain of a transaction by which the husband secures to the separate use of the wife future acquisitions which would, in the absence of such contract, he community property.</p> <p>5. Deed—Description of Land —Notice.—A deed describing the land conveyed as “the south half of section No. 576, block H, W. & N. W. By. Co. survey, certificate No. ^h-,” was made in C. county, where the land was situated, and duly recorded there; but the State and county in which the land was situated' was not recited in the deed. The true certificate number of survey 576 was sf-j, instead of Held, that the description and the record of the deed were sufficient to put a prudent man upon inquiry with reference to the scope and character of the instrument, and of the property thereby conveyed.</p>

<p>1. Title of Act —County Boundaries. — Section 10 of the Act of April '22, 1879, providing, that before any county not already organized as a land district under existing law shall be recognized as such, the County Court shall cause its boundary lines to be surveyed and marked, and the field notes and maps of such survey duly recorded, returned to the General Land Office, as provided in that act, can not be held unconstitutional on the ground that its subject matter is not embraced in the title of the act, viz., “An act establishing and prescribing the manner of ascertaining the boundaries of counties.’’</p> <p>2. Organization of County as Separate Land District. — Section 10 of the Act of April 22, 1879, was intended to require that the boundary lines of all unorganized counties should in future be well defined under its provisions before being recognized as a separate land district; while section 1 of the act was intended to apply to counties that may have been previously organized as separate land districts.</p> <p>3. Survey in Organized County not a Separate Land District, Invalid.—W. county, which formed part of the C. land district, was organized in 1881, but it did not appear that the boundary lines of the county were ever surveyed and field notes thereof returned to the General Land Office under the Act of 1879. Held, that the location of a certificate on land therein, made upon application to and survey by the county surveyor of W. county in 1882, was void, and an adverse location made in 1883 through the district surveyor of the C. land district conferred the superior right to the land.</p>

<p>1. Venue of Suit Against Foreign Corporation for Breach of Contract.—A foreign corporation, having its principal office in D. county, made a contract with persons residing in C. county to loan money exclusively through them on lands situated in their county. The contract was made in C. county, and provided that the corporation should send an agent there to examine the lands to be offered for loans. Being sued in C. county for a breach of such contract, in making loans on lands there through other persons, the corporation pleaded its privilege to be sued in D. county. Held, that the cause of action must be deemed to have arisen, at least in part, in 0. county, and that the suit was maintainable there.</p> <p>2. Pleading — Plea of Privilege not Waived, When.—Where pleas are filed in due order, an answer to the merits does not waive a plea of privilege. Following Railway v. Whitley, 77 Texas, 126, and distinguishing York v. The State, 73 Texas, 651.</p> <p>3. Damages — Measure of, for Breach of Contract — Unearned Profits.—Where one party to a contract is prevented by the other from earning profits thereunder, and the amount of such profits that would have been earned can be reasonably ascertained from the evidence, this will furnish the measure of damages; and reasonable compensation, not measured by the terms of the contract, for services of like character to those that might have been performed, is not a correct measure of damage in such case.</p>

<p>1. Fellow Servants — Railway Companies Using Joint Track.— In a suit against a railway company for personal injuries, it appeared that the plaintiff was an engineer in the service of another railway company which jointly used a certain track of the defendant company; that all trains when on such joint track were under orders of the defendant's train dispatcher; that plaintiff was operating his employer’s train on such joint track under directions of such dispatcher to meet one of defendant’s trains at a designated point; that the engineer of defendant’s train, in violation of his orders, ran by the meeting point, and plaintiff was injured in a collision that ensued. SeZcZ. that plaintiff and the engineer of defendant’s train were not fellow servants.</p> <p>2. Same—Cases Distinguished.—Railway v. Dorsey, 66 Texas, 148, and Railway v. Jones, 75 Texas, 151, distinguished from the present case on the point ■of fellow servants.</p> <p>3. Pleading—Fact Specially Known to Opposite Party.—Ah averment that the injury complained of was caused by the negligence of “ the defendant, its agents and employes,” is sufficient, without specifying the particular agent or employe guilty of the negligence, that being a fact in this case peculiarly within the knowledge of the defendant.</p> <p>4. Charge of Court—Harmless Error.—An instruction, that if by the use of ordinary care by any of defendant's servants then in charge of defendant’s train the collision could have been avoided, they should find for plaintiff, was not to the injury of defendant where there was no conflict in the evidence that the collision resulted from the negligence of the engineer of defendant’s train.</p>

<p>1. Judgment Obtained by Fraud — Equitable Relief by Direct Suit for the Property Involved. —H. having brought suit against C. to foreclose a vendor’s lien, obtained possession of the premises by virtue of an agreement that he would not prosecute the suit to judgment, but would apply the rents he should receive thereon to his debt until it was satisfied, and then redeliver the possession to C. Afterward, M. took judgment by default, foreclosing his lien, and himself bought the property at sale thereunder. Held, in an action by C.’s heirs to recover the property itself, that such action was not a collateral attack upon the judgment in the foreclosure suit, but that on account of the fraud in taking such judgment, equity would decree M. to hold the property in trust for plaintiffs; and the value of the rents for the time M. so held it being equal to the amount of his debt, plaintiffs were entitled to judgment of recovery.</p> <p>2. Limitation.—A requested instruction on the five years statute of limitation which does not limit the period of adverse possession to five years before the institution of the suit, but extends it to the time of trial, is properly refused.</p>

<p>1. Taxation—County Just Organized—Taxes Assessed and Paid, "Where.—Where lands of a nonresident situated in an unorganized county are, in January, rendered to the Comptroller for taxation, and in March following the county is organized, and prior to June 1, through its county officers, duly assesses State and county taxes on the lands, the taxes for that year are payable to the tax collector of the county, not to the Comptroller, and in the amount shown on the collector’s rolls, instead of the amount shown by the Comptroller’s rolls on the rendition made to him.</p> <p>2. Same — Comptroller’s Acceptance of Rendition not Conclusive, When.—The Comptroller’s acceptance of the rendition in such case did not exhaust the taxing power for that year, and was not conclusive against the right of the county, when subsequently organized, to levy and collect the taxes, especially as he declined to receive payment of the taxes due on the rendition so. made to him.</p>

<p>1. Jurisdiction of County Court—Fixtures to Realty.—Where, before a chattel mortgage is given thereon, machinery such as a corn mill, steam engine, and press, with belting, etc., is so attached to realty as to become a fixture, and part thereof, the County Court is without jurisdiction to foreclose such mortgage.</p> <p>2. Same—Pleading—Power to Determine Jurisdiction.—A writ of sequestration, issued in an action in the County Court to foreclose a chattel mortgage, having been levied on certain machinery, the defendant pleaded that such machinery was a fixture to realty, and attached as such to his homestead place when the mortgage was given. Held, that a demurrer to such answer and plea, urged on the ground that the court had no jurisdiction to determine the ownership of the land, was improperly sustained, and that the court had power to determine its jurisdiction over the subject matter of the suit, whether the allegations disclosing a want of such jurisdiction appeared in the petition or in the answer.</p> <p>3. Same — Jurisdiction of Claim of Damages for Rental Value of Realty.—Where, under a writ of sequestration issued from the County Court, machinery constituting a fixture to realty is levied on and taken into possession, together with the premises on which it is situated, the defendant may in that suit properly plead against the plaintiff a claim of damages for the rental value and use of such property while he was so deprived of its possession, his plea therefor not alleging the acts of the plaintiff as a conversion of the property.</p> <p>4. Homestead — Fixtures Thereto not Subject to Mortgage. — Where the owner of a country homestead places machinery thereon in such manner that it becomes a fixture to the realty, such machinery is not subject to mortgage after being so attached.</p> <p>5. Pleadings—Special Exceptions not Well Taken.—See the opinion for pleadings by way of answer held sufficient as against special exceptions urged for failure to itemize a claim of damages caused by a levy on certain fixtures, and for failure to give a more specific description of defendant’s homestead and family.</p>

<p>1. Unorganized County as a School District. — The unorganized county of S. was never any part of the territory of J. county; and the fact that it was attached to J. for judicial purposes, under section 1, article 9, of the Constitution. did not authorize the Commissioners Court of such latter county to declare such unorganized county a school district, and to order an election to determine the question of levying a special school tax therein.</p> <p>2. School Tax—Petition for, by Tax Paying Voters of the District.—Article 3733 of the Revised Statutes, which provides that an election to determine the levy of a district school tax may be ordered upon the petition of twenty or more qualified property holding tax paying voters, does not require that their names should appear upon the assessment rolls, and does not make such rolls the exclusive evidence of the qualification of the petitioners.</p> <p>3. School District Tax— Separate Assessment Rolls for.—Where the assessor, instead of providing a separate assessment roll therefor, extended a special school tax in a separate column upon the general State and county tax rolls, on the margin of which it was shown to what school district the tax belonged, held, that though defective, yet equity would not on this ground alone enjoin the collection of the tax.</p>

<p>1. Common Source—Judgment of Partition not Subject to Attack.—Where, in trespass to try title, both parties claim under a judgment in partition, the defendant is precluded by the rule of common source from attacking the validity of such judgment.</p> <p>2. Community Debt—Right of Surviving Wife to Convey Land. Where a husband and wife verbally contract with their son to convey land and property to him in consideration of his agreement to take care of them during the remainder of their lives, the wife, after the husband's death, would have the right to convey land of the community estate in satisfaction of such obligation.</p> <p>3. New Trial —Newly Discovered Evidence.—Where a party, in his application for new trial, brings himself within the established rules of law and the principles of adjudged cases, he is entitled to a new trial as a matter of right. See opinion for newly discovered evidence held material, and for diligence held ■sufficient to require the granting of a new trial.</p> <p>4. Law of Another State—Presumption.—Where the record does not show that the law of another State in reference to community property is different from that of this State, it will be presumed to be the same.</p> <p>on rehearing.</p> <p>5. Practice on Appeal — Rehearing — Certiorari.—A motion for rehearing will not be granted to enable a party to bring up a more perfect record by certiorari. Following Boss v. McG-owen, 58 Texas, 603.</p>

<p>1. Express Trust—Recitals.—Mrs. ST. and husband executed a deed for certain lands to R., the deed reciting that the consideration for the transfer was the transfer of a judgment in favor of G. and against If. & Bro. by R. as agent. R. conveyed the land to appellee. Held, that the recitals in the deed to R. had the effect to impress the legal title held by R. with an express trust in favor of the plaintiffs in the judgment transferred in exchange for the land. A subsequent purchaser under R. is charged with notice of the trust.</p> <p>2. Same — Repudiation of Trust. — The holder of the legal title to land hound by an express trust can not destroy the estate of the beneficiary by denying such trust. See example.</p> <p>3. Antecedent Indebtedness. — A purchaser of the legal title without notice of a trust can not defend as an innocent purchaser when the consideration is the credit of an antecedent indebtedness. To the extent of such indebtedness, the purchase is subject to the trust, although the purchaser had no notice.</p> <p>4. Attorney and Client.—An attorney authorized by his client to dispose of a judgment, and under such authority takes land for it, by taking title in his own name, can not acquire title against his client.</p> <p>5. Stale Demand.—Stale demand will not run in favor of one holding land charged with an express trust, or of a tenant in common, until an unequivocal act of repudiation or of ouster is shown. Payment of taxes will not have the effect of a repudiation of the trust, nor will a claim of the entire estate, unless brought home to the beneficiary.</p>

<p>1. Parol Evidence—Minutes of County Commissioners Court.—</p> <p>The minutes of the County Commissioners Court not showing that the county judge was present, it was competent to prove his presence by paroi testimony. The minutes recited that three commissioners were present, and were silent as to the county judge.</p> <p>2. County Commissioners Court—Setting Aside Former Order.</p> <p>It is within the jurisdiction of the County Commissioners Court to set aside a former order made at the same term.</p> <p>3. County Commissioners Court—Quorum.—The minutes recited the presence of three commissioners. It was further shown that the county judge was also present. Held, such parties constituted a full court for the transaction of business.</p> <p>4. Action of Commissioners Constitutes Act of Court.—The vote of two of the three commissioners present for an order rescinding a former order made during the term constituted an act of the court, without the vote of the county judge. So held on a vote reconsidering an order redistricting the county into school districts.</p>

<p>. 1. Laying out Public Road—Damages—Waiver.—In taking land for a public road established by the County Commissioners Court, notice to the land owner is the initial step, conferring jurisdiction upon the jury of view to assess damages. Where no notice is given, as prescribed, a failure to make claim before the jury of view is not a waiver of damages.</p> <p>2. Same.—That a land owner was a member of a jury of view a majority of which laid out a road over his land against his protest, does not prevent his asserting a claim for damages for his land so taken.</p> <p>3. Same — Jurisdiction. — The District Court, where the amount claimed is within its jurisdiction, has jurisdiction over a suit for damages by a land owner against a county for land taken without compensation, upon the Commissioners Court refusing such claim for damages.</p> <p>4. Changing Class of Public Road.— Changing a road from a second class to a first class road necessarily requires more land from the owner, and it can only be done upon compensation. Kor can long use as a second class apply as prescription in favor of a first class road upon same line.</p>

<p>1. Assignment of Error—Charge Given.—An assignment of error upon a charge given should in some manner indicate the reason why the complaining party urge that error was committed in giving the charge.</p> <p>2. Same — Charge Refused.—Where the refusing of a charge is assigned as error, the assignment should state that the charge refused was applicable to a stated phase of the case, unless it be such as applies to all cases, and not embraced in the general charge.</p> <p>3. Mechanic’s Lien.—The mechanic’s and material man’s liens do not attach to other premises separate and distinct from those upon which the improvements or repairs are made. See example.</p> <p>4. Necessity for Motion for New Trial.—In absence of a motion for new trial in the lower court, an error apparent in the record against the party so failing can not be urged by another party. Manifest injustice, however, should be corrected in the new trial allowed noon the reversal of the case on appeal upon other grounds.</p>

<p>1. Sheriff’s Sale of Wife’s Separate Property—A sale of the wife’s •separate property under a personal judgment against her, as against a collateral attack is valid, and passes title to land so sold.</p> <p>2. Territory of New Counties—Jurisdiction of the Old.—Territory embraced in a new county remains a part of the old, for all governmental purposes, until the new county is organized or is attached for such purposes to some other organized county. O’Shea v. Twohig, 9 Texas, 336.</p> <p>3. Construction of Statute—Jurisdiction.—Frio County was created out of the territory of Bexar County by Act of the Legislature, February 1,1858. Medina County was organized in 1849, and therein District Courts were regularly held up to and including 1858 and 1859. In the act creating Frio County it was prescribed, “that until attached by law to some judicial district or districts each •of said counties [Fric and others] shall be attached for judicial purposes in matters appertaining to the jurisdiction of the District Court, to the nearest county in which the District Court may be held.” Medina was the nearest county to Frio in which was held a District Court. Held, that by this law Bexar County was not divested of any other jurisdiction than that pertaining to suits in the District Court.</p> <p>4. Sheriff’s Sale—Case in Judgment.—In 1859, under a judgment rendered in the District Court of Bexar County in 1858, an execution was issued to the sheriff of said county. The sheriff levied upon and sold a tract of land in Frio County. Frio had been created out of Bexar, but had not been organized. Jurisdiction was given to the nearest county, as above stated. Held, that such .sale in Bexar County was valid.</p>

<p>1. Trust Deed—Construction—Trustee may Sue to Remove Cloud Upon Title.—A debtor conveyed lands to one of his creditors with power to the trustee and another beneficiary in the trust to take possession of the land, remove clouds upon title, and sell part or all at such prices as to them seemed best. Held, that the beneficiaries had power to sell, and to institute proceedings in their own names to remove clouds from the title to the lands.</p> <p>2. Void Sale—Return of Purchase Money.—Under an older deed of trust for the same land sale was made, but without advertising the sale for the time prescribed in the deed of trust. The junior trustee and beneficiary, in suing to remove the cloud upon the land by reason of the void sale, were not required to tender the amount of the purchase money paid at such sale.</p> <p>3. Void Sale—Time Computed.—A trustee required to advertise ten days before sale, made publication first on October 8. He sold on the 18th of same month. Held, his sale was void, and passed no title to the land.</p>

<p>1. Value — Opinion Testimony.—A lady passenger on a railway was deprived of the use of her wearing apparel, etc., in her trunk, which was delayed in delivery from January 18 until February 15. On the trial of an action for damages she was properly allowed to testify, that “ the use of the clothes, etc., was worth $250 during the time.” The opinion was competent, to aid the jury.</p> <p>2. Verdict not Excessive.—A verdict for $125 was not excessive, where a lady visiting at a distance from home was deprived of the use of wearing apparel, save what she had on, for nearly a month, by the negligence of the railway company to deliver her trunk carried with her as baggage.</p> <p>3. Measure of Damages.—The measure of damages for the nondelivery of baggage of a passenger is the value of the use of the property to the owner during the delay in delivery.</p>

<p>1. Telegram—Damages too Remote.—S., at Gatesville,Texas, delivered for transmission to Oceanside, California, the following message: “Close the trade. I will come soon.” To the officer in charge at Gatesville it was explained that the message related to the lease and purchase of land near Oceanville. The message was not delivered, and the trade failed. S. sold his personal effects at a sacrifice at Gatesville and went to Oceanville. The journey was useless, and he returned. In suit against the telegraph company for damages for nondelivery of the message, held:</p> <p>1. That the loss from the sale of personal effects could not he considered as contempleted by the parties.</p> <p>2. The journey to California and its expenses, however, could be regarded as in contemplation, and the expenses of the journey were properly chargeable as damages.</p> <p>2. Liability of Telegraph Company Beyond its Lines.—A telegraph company receiving a dispatch to a point beyond its own lines, and taking pay for sending the full distance and without any limitation of liability, is bound to .send the message to its destination and deliver it.</p>

<p>1. Defective Assignments of Error.—Assignments of error which do not point out some specific error under the rules, should not be considered on appeal. See example.</p> <p>2. Parol Collateral Agreements. — A paroi agreement collateral to the main agreement in writing, made after it and not inconsistent therewith, is admissible in connection with the written contract. It is not obnoxious to the rule that prior and contemporaneous paroi agreements are inadmissible to vary the terms of a written contract. See example.</p> <p>3. Construction of Contract of Hiring.—The employment of plaintiff as a travelling salesman at a salary of $200 per month from March 1,1889, in consideration or conditioned that he make sales aggregating $35,000 to $40,000 per annum, would indicate an intention of the parties that the term of service should be for one year. This construction is strengthened by testimony to a subsequent paroi agreement that the hirer might retain $50 per month until the end of the year as a guaranty for the sale of the stipulated amount of goods during the year. From such testimony the finding of the court that the hiring was for one year is sustained.</p>

<p>1. Surveys—Case Adhered to. — Cox v. Railway Company, 68 Texas, 226, adhered to, that surveys made by the district surveyor of Jack Land District, of land in Hardeman County while it was part of Clay Land District, are invalid and did not appropriate the land.</p> <p>2. Land Office Maps as Evidence — Archives. — Certified copies of maps in use in the Land Office, and archives of the office, are competent as evidence showing conflict of surveys placed upon such maps in the Land Office. Such map not being contradicted or shown to be inaccurate, is sufficient evidence of such conflict.</p> <p>3. Disclaimer—Costs, Recovery of Part.—In trespass to try title and to cancel patents conflicting with the patent under which plaintiffs hold, the defendants disclaimed as to part of the land sued for, and pleaded not guilty. Recovery was had of part of the land sued for to which was pleaded not guilty. Meld, that judgment for plaintiffs for all the costs was not error.</p>

<p>1. Void Administration.—Intestate died in 1836 at the Alamo, a resident of Brazoria County. At the February term, 1837, of the Probate Court of said county, Henry Austin was appointed administrator. At the February term, 1838, Austin rendered an exhibit and account and was permitted to resign, and he surrendered the assets. At the same term Ferris was appointed and accepted. At the June term, 1840, one Davis was appointed administrator, and at the May term, 1841, hé reported that he was unable to find any property of the estate, and at his own request his letters of administration were revoked. At the December term, 1856, Masterson was appointed administrator de bonis non of the estate, and qualified. In August, 1861, Masterson as administrator sold a bounty land warrant issued in the name of the deceased. This sale was regular in form, and was apapproved, and deed made to the purchaser. In a suit by heirs against parties holding under said sale, held:</p> <p>1. Under the laws in force from 1836 to 1846 the term of administration was limited to one year only, but could be extended from year to year not exceeding five years.</p> <p>2. If the act of the court, May, 1841, revoking the letters to Davis, did not close the administration, the failure to make an order to continue it after June, 1841, did close it.</p> <p>. 3. There being no administration pending in 1856, the action of the court appointing Masterson was null and void, and his sale passed no title.</p> <p>2. Estoppel, Facts Held not to be—In the close of an administration held void for want of jurisdiction, that an heir was represented in partition by counsel appointed by the court does not estop the heir from attacking the administration, it not appearing that the heir received any of the assets from the administrator.</p> <p>3. Idem Sonans.—Nuckols and Nichols are not idem sonans.</p> <p>4. Tenant Repudiating Lease.—A tenant holding under a superior title may repudiate his tenancy under another, and dispute the title of his landlord.</p>

<p>Possession as Notice of Title by Tenant—Inclosure of a smaller tract of land within a larger pasture, and the use of such pasture by the holder of an unrecorded deed for the smaller tract, constitute such possession as will charge a subsequent purchaser with notice of the unrecorded deed.</p>

<p>1. Venue — Jurisdiction of County Court - - Transfer of Claim.— The petition showed that Brooks and Penn had a cause of action against Turner in amount sufficient to give jurisdiction to the County Court. Penn had sold his half of the claim to Brooks, and guaranteed payment of $125. In suit by Brooks, Penn was a proper party. The statute allowing suit in the county of the residence of one of several defendants makes no distinction as to the character of his liability, whether primary or as security.</p> <p>2. Jurisdiction.—The fact that Penn’s liability was only $125, and not in itself within the jurisdiction of the County Court, would not deprive the County Court of jurisdiction of his liability, the amount of the entire liability being sufficient to give the court jurisdiction. Suit could be brought in the county of Penn’s residence. The court having jurisdiction of the entire claim, had it as to the part guaranteed by him.</p> <p>3. Collusion to Give Jurisdiction. — The transfer and guaranty being genuine, and for a valuable consideration, the effect of giving jurisdiction in the court of Penn's residence would not be affected, although the object in part was to confer such jurisdiction. The transaction was not a fraud upon the jurisdiction.</p> <p>4. Damages for Breach of Contract.—Agreement for purchase of land was made and signed. The purchasers made an advance payment. The vendor refused to carry out the sale by adding onerous terms. Held, that the sale failing, the vendor was liable for the difference in the value as agreed upon and the actual value of the land the subject of the contract, at least for the advance payment.</p>

<p>Ebbob from Coleman. Tried below before Hon. J. W. Timmins.</p>

<p>1. Limited Excursion Railway Tickets — Reasonable Restrictions.—The rule is well settled, that the liability of a carrier by contract can be limited and confined to its own line of road. But when a railway company undertakes to sell an excursion ticket to be used within a certain time, it must see that the time agreed upon is reasonable, from the standpoint of the then existing circumstances and conditions, and that the passenger, by the exercise of reasonable diligence, may complete his journey within the time agreed upon. If such time be reasonable, the railway company selling such ticket with liability limited to its own line would not be liable for delay by other lines on the route, and could insist upon the terms of the ticket when presented after the time specified therein.</p> <p>2. Statements of Ticket Agent.—The statements made by the ticket agent selling a limited excursion ticket are competent in evidence against the railway company on subject of the movement of the trains, etc., and to show whether the limit of time of the ticket was reasonable under the circumstances.</p> <p>3. Declarations of Ticket Holder.—The declarations of a holder of an excursion ticket, made to the conductor when he demanded payment of fare notwithstanding the ticket, are competent when tending to explain the delay of the holder in not presenting the ticket before the limit had expired, and when they tended to show that the limit of time in the ticket was not reasonable.</p>

<p>1. Limitation of Ten Years.—The evidence showed conclusively that appellees had held continuous possession of the land in controversy for more than twelve years prior to the institution of the suit, with an enclosure around it, using and enjoying it openly and notoriously. Appellant testified, that she and her husband consented for Mr. Klein (a former owner under whom appellees' claimed) to use the strip of land as an alley. SeM, consent of the owner of the land to its occupancy by another does not of itself prevent such occupancy from being adverse. It is the absence of claim, or the recognition of the true owner by the possessor, which prevents an occupancy otherwise adverse from assuming that character.</p> <p>2. Deed Attacked for Forgery, When Admissible.—The acknowledgment did not show that Mrs. Massie, who purported to have signed it, declared “ that she wished not to retract it.” It was in form an absolute conveyance by husband and wife, but recited unpaid purchase money, and was attacked in plaintiff’s petition as a forgery. There was evidence tending to prove its execution by the husband, and it was sufficiently shown to render it admissible as his deed, for what it was worth.</p> <p>3. Acknowledgment of Married Woman.—The omission of the officer to state in his certificate that the wife declared that she “ wished not to retract” the conveyance, was fatal to the deed.</p> <p>4. Pleading—Special Allegations as to Defendant’s Title.—Plaintiff in her petition attacked one of the deeds in defendant's chain of title as a forgery, and declared that she had not signed nor in any manner executed it. The court below confined her right to recover to that ground alone. This was error. The pleader was not setting out specially her own title, but attacking her adversary’s. The rule which confines plaintiff to the special title pleaded had no application .</p> <p>5. Executory and Executed Contract—That the deed retained a vend- or’s lien did not bring it within the ruling in Jones v. Goff, 63 Texas, 253. That case depended upon a contract to convey at a future time; here nothing was wanting to complete title but the payment of the notes, and there was no evidence that they had not been paid.</p>

<p>1. Petition for Injunction to Restrain Sale of Land, Held Good.</p> <p>See opinion in this case for a petition by an encumbrancer whose deed of trust antedated the attachment lien and judgment of the defendant, seeking-to restrain a sale of the property described in his deed of trust, upon the ground that such sale would be a cloud upon his title, which is held good.</p> <p>2. Intervention, When Allowed. — Intervenor Grafton was defendant in the suit of ICempner v. Wilson and himself as surety, and the judgment directs the property of Wilson to be first sold. Grafton was therefore directly interested in this suit, and was properly allowed to intervene.</p> <p>3. Injunction, When Granted to Prevent Cloud on Title.—Appellant’s claim of right to the property attached and ordered sold under the judgment in favor of appellee, is twofold: first, by subrogation to the right of the Texas Land and Loan Company under their deed of trust executed in 1866, by virtue of the assignment of the notes secured by said deed of trust to one Smith, for the use and benefit of appellant; and second, by a deed of trust upon the same property executed to appellant in June, 1888, by the debtors E. N. Wilson and wife, to secure a loan of $25,000 and interest. But all the evidence upon which the right of appellant depends is not of record, nor shown by the papers through which the right depends, and in such case an injunction will be granted to restrain an execution sale, upon the ground that such a sale would be a cloud upon the title of the plaintiff.</p>

<p>1. Jurisdiction—Motion to Quash Service Confers. —Defendant, a foreign corporation, filed a plea to the jurisdiction of the court, and denied that the person upon whom the service was made was the agent of the corporation. Be Id, to be such an appearance as gave jurisdiction over the person, as fully as would the issuance of proper citation and its proper service. Although the service was quashed, it operated as an appearance to the next term. Following York v. The State, 73 Texas, 652; 137 U. S., 15.</p> <p>2. Venue May be Waived.—If the law fixed the venue of this suit in Val Verde County, the defendant had the privilege of being sued there; but it is a privilege which, to be made effectual, must have been claimed either by demurrer or plea; and not having filed either, appellant waived its right and can not now be heard to complain.</p>

<p>1. Liability of Carrier for Money of Passenger. — Plaintiff, a passenger on a railway, entered the passenger coach, and the weather being warm, took off his coat and laid it across the back of his seat. In one of the pockets, in a pocket-book, was the sum of $240, the property of plaintiff. Near the end of the bridge crossing Galveston Bay the car was overturned, as alleged, through the gross carelessness of the company and its servants; plaintiff was thrown from his seat, and his coat thrown out of the coach. It was afterward found and returned to plaintiff, but the money was gone, and it is alleged that the money was lost to plaintiff without his fault or neglect. Held, the petition was good against a general demurrer.</p> <p>2. Same.—While a carrier of passengers is not liable as an insurer of money or other baggage in the control of the passenger and lost during the trip, if such money or property be lost as the proximate consequence of the negligence of the carrier, he is responsible. The fact that the plaintiff took off his coat and placed it on his seat can not be considered as such negligence as would preclude him from recovering.</p> <p>3. When Negligence may be Inferred from the Happening of the Accident.—While the mere happening of the accident to a passenger train does not necessarily make out a prima facie case of negligence in the carrier, it is nevertheless evidence to be considered by the court or jury in determining whether or not negligence existed. In many instances the mishap is of such a nature as in itself, when unexplained, affords satisfactory proof of the fact. We think this is such a case.</p> <p>4. Gross Negligence.—Plaintiff in this case was not required to show gross negligence.</p> <p>5. Duty of the Plaintiff — Efforts to Protect Himself Against Loss.—When his coat was brought to him after the accident, he examined for his money, and found it and the pocket-book gone. He does not show that he made any effort to find it, nor that he notified the servants of the appellees that he had lost it, or in any way called on them to recover it for him. So far as the record shows, they knew nothing of the fact that he had lost or ever had the money. When the facts expose the plaintiff to the suspicion that he has negligently contributed to his loss, he must clear away such suspicion before he will be permitted to recover. He must at least give notice of his loss to the carrier in order that they may protect both him and themselves, if possible, by the recovery of the money.</p>

<p>1. Proof of Execution of an Instrument over Thirty Years Old. An original transfer of an unlocated land certificate, dated July 26,1836, bearing every appearance of antiquity and genuineness, though it does not come from the proper custody to be admissible as an ancient instrument, may be read in evidence by proving the handwriting of one of the subscribing witnesses, and that they are dead; and after the lapse of thirty years their death will be presumed.</p> <p>2. Ancient Instrument—Proper Custody.—An instrument over thirty years old, which comes from the custody of the county clerk, but when it was filed with him there was no occasion for its deposit there, as the certificate it purported to transfer had not yet been located, does not come from the proper custody to admit it in evidence as an ancient instrument.</p>

<p>Appeal from Galveston. Tried below before Hon. Wm. H. Stewart.</p>

<p>1. Defense of Usury made by Junior Encumbrancer.—A bank held' notes secured by lien upon realty. Appellant Martin held a junior lien, dated June 25, 1885. In December, 1885, the debtor, Johnston, executed to the bank one note for his total indebtedness to it, due at ninety days., which included a discount of eighteen per cent, and at the end of every ninety days a new note was executed and discounted at the same rate, the lien notes being held by it as collateral security. Desiring further extension, on January 1,1887, Johnston executed a new note to plaintiff, bearing 12 per cent interest, payable eighteen months after date, and reciting that the other notes were held by and hypothecated to plaintiff as collateral security for its payment. Plaintiff paid Johnston’s indebtedness to the bank, and the lien notes were by the bank transferred to plaintiff. By agreement annexed, Johnston recognized the validity of the lien notes, and waived the statute of limitation. Mrs. Martin pleaded as a defense against the elder lien notes, usury. As a junior encumbrancer she could avail herself of whatever defense Johnston had, although he was a party to the suit and suffered judgment by default.</p> <p>2. Limitation Waived, Effect of.—The agreement of December 30,1886, made by Johnston with plaintiff, acknowledged the validity of the three lien notes, and promised to pay them, waiving the statute of limitations; and though it was-a promise made by him subsequent to the execution of the junior encumbrance, the weight of authority is, that he had the right to waive limitation, though it would deprive the junior encumbrancer of the defense of limitation.</p> <p>3. Extension of Senior Mortgage Debt.—It was also competent for the mortgagor to arrange for an extension of the time of payment of the senior mortgage debt, and such an agreement to extend the time will not discharge the lien of the mortgage as to subsequent encumbrancers.</p> <p>4. Amount Forfeited for Usury.—Two of the elder lien notes were not tainted with usury when made; it was only after they were transferred to the bank that the question of usury arises. As to the amounts represented by these notes, the entire interest should not be forfeited, but only the excess of interest over the amount of interest called for by their face.</p> <p>5. Same.—The $3500 note was discounted to the bank for $2865, being at the rate of 18 per cent per annum, and the contract was usurious, and all payments of interest on this note, whether by way of discount or otherwise, should be applied to the principal thereof, including the first discount; and as a new note was executed every ninety days for the aggregate indebtedness and discounted afresh,.there should be quarterly rests in the computation of the interest to ascertain the amounts to be credited.</p> <p>6. Renta Under Lien, How Applied.—The rents of Johnston’s building were also mortgaged to secure the senior debts; but he remained in possession of the property, and applied the rents to the payment of his unsecured indebtedness. This he might do, as he was in possession and had the right of disposition thereof until possession was taken under the deed of trust; but after a receiver was appointed the rents should have been applied to the extinguishment of the lien on the property and rents.</p> <p>ON MOTION EOR REHEARING.</p> <p>7. Liabilities of Parties Fixed.—Upon re-examination found, that there is sufficient data by which to arrive at the amount that should be credited on the several notes for payments thereon of usurious interest. These amounts are stated, the liabilities of each of the parties fixed, and judgment here rendered, without prejudice to the right of Mrs. Martin, by proper proceeding, to have rents accumulated in the hands of the receiver applied to the satisfaction of that portion of this judgment adjudged to be a superior lien to hers.</p>

The conclusions of fact by the court and the assignments of error submitted as propositions from the brief of appellants sufficiently state the case.

<p>Error from Galveston. Tried below before Hon. Wm. H. Stewart.</p>

<p>1. Continuance—Insufficient Application.—An application based upon the want of the evidence of a former employe who had left the company’s service, and whose whereabouts is unknown, which does not inform the court when the witness left the employment of defendant, when the inquiries as to his evidence were made, nor to whom nor to what place or places letters and telegrams were directed, and which does not aver a probability that the testimony can be had at some future time, and which is made nearly six months after the suit was filed, is insufficient.</p> <p>2. Contributory Negligence in Suit for Damages for Mental Anguish.—Suit being for damages for mental anguish, caused by failure to deliver a message calling a physician to the bedside of a sick child, who afterward died; a charge directing the jury not to find any damages for mental anguish suffered by plaintiff after the time when he could have obtained another doctor, as his omission to obtain such doctor would have been contributory negligence, was properly refused. It would have been a charge on the weight of evidence.</p> <p>3. Mental Anguish as a Basis for Damages.—That mental suffering which is the proximate result of a breach of contract, may form the basis for compensatory damages, is not now a debatable question in this State.</p> <p>4. Excessive Damages. — Suit was by ,a parent for damages for mental anguish, and the exact sum claimed in the petition and found by the jury was $1999.99; the services of another physician eight miles distant might have been secured; the child had been sick four days before the physician was telegraphed for. It is probable that sympathy for the parent influenced the jury, and the verdict is set aside as excessive.</p>

<p>1. Parol Gift of Realty.—W. R. Baker, a man of wealth, in 1882, by paroi, gave to the sister of his wife realty in Houston worth $5000, and placed her in possession, and she lived there until Baker’s death, he contributing during said time $75 per month to her support. Baker made frequent declarations up to his death that he regarded the property as defendant’s, was often at her house, and treated her with great kindness and liberality. Defendant gave up her home in Grimes County and came to Houston to live at the request of Baker, and during her residence on the property made improvements of the value of $2500 upon it. Baker paid the taxes in his own name, rendered it as occupied by a tenant, insured the property himself, and the rental value of the property was a little less than the value of the improvements. The paroi donation was sustained.</p> <p>2. Parol Sale or Gift—Part Performance. — What constitutes such part performance of a paroi sale or gift of land as will relieve the donee from the operation of that section of the statute of frauds which requires such sale or gift to be evidenced by writing, has long been a vexed question! We hold that when a paroi sale or donation is made, and the vendee or donee goes in possession of the land, with the consent of the vendor or donor, and in reliance upon'the contract or promise of the vendor or donor, and with his knowledge, and without objection from him, makes permanent and valuable improvements upon the land, and of value in reasonable proportion to that of the premises so improved, and occupies the same as his home, in a suit for specific performance by his donee or vendee the vendor or donor can not set off the rental value of the premises against the improvements; and the vendee or donee, under such circumstances, must be held and treated as the equitable owner of the land, and can not be considered as the tenant of the holder of the legal title.</p>

<p>Appeal from Harris. Tried below before Hon. James E. Masterson.</p> <p>For report of briefs, see Baker’s Executors v. Isa R. De Freese, ante,, page 524.</p>

The conclusions of fact of the court below were as follows: “ 1. I find that plaintiff now is, and has been ever since June 13,1884, the owner of the lands, the rent of which is in controversy. “ 2. I find that plaintiff leased the lands to defendant under a written contract of lease for the term of three years, beginning June 14, 1884, and terminating June 13, 1887, at the rate of 896 per annum, in advance. “3.

<p>1. Basement Acquired by Limitation.—In 1859 the railway company constructed its road over the lots sued for. The line has not been changed since, and daily trains have been running over it since February, 1860, except when the bridge was out. In 1868, Allen, Poole & Co. went on the lots and found the road there, and acquiesced in it, and verbally promised to give the company the right of way. Held, the company had acquired title by limitation, this suit to recover the lots having been brought in 1882.</p> <p>2. Adverse Possession of an Basement. — The entry upon the land was a trespass, and its use and occupation from its exclusive nature was plainly adverse to the owner. Allen, Poole & Co. found the road on the land, and verbally promised to give the right of way to the company. We do not think that the exercise of acts upon the land of another that would amount to an easement if done under authority of a deed or grant, should necessarily be held to be exercised by the mere license of the owner when the authority is conferred only by paroi. The possession and occupation under the verbal gift was such adverse possession and use thereof as would put in operation the statute of limitations.</p> <p>3. Parol Gift and Valuable Improvements. — It was shown that Allen, Poole & Co. gave the right of way to the defendant, and that at their request, and we may infer from the evidence for their benefit, the defendant put in side tracks upon the land. The company has been in possession more than ten years, and have acquired the right of way by possession and improvement under the donation.</p>

<p>Known Dangers to Animals.—Plaintiff hired teams to defendant, with drivers selected and paid by himself. After they reached the works, both drivers- and teams were under the charge and direction of defendant’s foreman. The driver in charge on the day the mule received the injury from which he died, took charge of the team with the consent of plaintiff, who was present and had been working on the track with his teams for several months. He knew of the increased danger that attended the employment, and the method adopted in making the fill on which his mule was injured, and will be deemed to have assumed whatever risk there was.</p>

<p>1. Injunction Against Void Judgment of Supreme Court—Jurisdiction.—S. sued to set aside a judgment of the Supreme Court, affirming a judment of the lower court against himself and another as sureties on the appeal bond, and to enjoin the execution issued thereunder, upon the ground that the appeal bond purporting to have been executed by him had never been signed by him, and that his signature to it was forged. He Id, that if the facts alleged are shown to be true, the execution might be perpetually enjoined, and that the District Court had jurisdiction of the suit to enjoin.</p> <p>2. Supreme Court Jurisdiction. — The Supreme Court could obtain jurisdiction over the person of the plaintiff in error as surety on the appeal bond by his voluntary act in signing it; but if in fact he never signed it, he never became a party to the proceeding, and no power to render a judgment against him was ever obtained by the Supreme Court.</p> <p>3. Same.—The reasons upon which are based the decisions which hold that a party to a judgment will not be allowed to attack it collaterally by evidence aliunde the record, that he never was served with process, have no application here. The Supreme Court in passing on appeal bonds makes no inquiry into the genuineness of its signatures, nor the actual execution of the instrument. To hold that a bond not in fact signed by the surety is conclusive against him, would be a violation of fundamental principles, which bind no persons by judgments except parties and privies, and entitle every one to a hearing before condemnation.</p> <p>4. Jurisdiction of the Injunction Suit in the District Court. — The original jurisdiction properly belonging to courts of equity is vested in the District Court. The Supreme Court possesses no such powers. Its jurisdiction is appellate; and hence, when the aid of equity is sought to afford relief to which a party is entitled against its judgments, the District Court and not the Supreme Court is the proper forum in which to institute the proceedings.</p>

<p>1. Damages — New Cause of Action. — The suit was filed January 31, 1890, and was to recover for injury to the growing crops of the plaintiff resulting from the alleged negligent construction of the roadbed of defendant near the lands leased and cultivated by the plaintiff. By amendment the plaintiff set up further claim for damages to his crop on June 5, 1890. There was no error committed by the court in overruling a demurrer to this amendment; demurrer being based upon the ground that it was a new cause of action.</p> <p>2. Contributory Negligence—Duty of Plaintiff to Protect Himself.—Plaintiff’s crops could have been protected by the construction of a ditch which would have cost §300. The plaintiff was not required to make such an expenditure to protect his property from injury resulting from the alleged negligence of appellant. Besides, he was a lessee, and it is doubtful whether under any circumstances a lessee would be required to cut such a ditch for his protection against the wrongful act of another, and under an ordinary lease he would have no authority to do so.</p> <p>3. Measure of Damages —How Arrived at. —There was errpr in allowing evidence of the cost of planting and cultivating the cropa up to the time of their destruction. The most satisfactory means of determining the value of the growing crop, at any stage of its existence, is to prove its prohable yield-under proper cultivation, the value of such yield matured and ready for market, and the expense of producing the crop and transporting it to market.</p> <p>4. Expert Testimony.—Had the opinion of witnesses objected to by appellant been given without showing upon what their opinions were formed, they having qualified themselves as experts, their opinions would have been admissible.</p>

<p>Excuse for not Making Defense in Justice Court Unavailing.—</p> <p>A judgment in the Justice Court was appealed and dismissed. Then a certiorari was sued out. The question is, was it rightly quashed by the County Court? It is settled law, that the writ of certiorari will only be granted when the petition shows a meritorious action or defense, which the petition in this case does. But the reason given for not urging the defense below is, that appellant had no information of the nature of appellee's claim save such as could be obtained from an inspection of plaintiff's account filed in the Justice Court, and from that appellant was justified in believing that the claim was based upon the refusal of appellant to allow plaintiff to ride on its road by virtue of a ticket purchased in San Antonio; and knowing that appellant had no agent in San Antonio for sale of tickets, appellant had no reason to suspect that appellee upon the trial would swear, as he did, that he purchased the ticket described in his account from an agent of the appellant, and said testimony was a surprise to appellant. Held, not a good excuse, and that the certiorari was properly dismissed.</p>

<p>1. Intervenor—His Right to Resist a Dismissal of the Suit.—If appellant's petition as intervenor showed by its averments that he had an interest in the subject matter of litigation, and a cause of action against either the plaintiff or defendant, it was his privilege to prosecute his suit to final judgment, and it was error in the court to dismiss his suit.</p> <p>2. Land Locator—His Interest in the Land.—The law gives the surveyor who locates certificates for another no interest in the land located upon. The petition discloses no contract between the intervenor and the defendant, by which the former was to have a portion of the land in controversy for his ser? vices; therefore the intervenor had no interest in the subject matter of the suit, and it was not error to allow the plaintiff to take a nonsuit, and the defendants to withdraw their answers, and to dismiss the suit.</p>

<p>1. City Drainage—Liability for Overflow. — The city was not originally bound to furnish ditches or sewers for the purpose of draining plaintiff’s property; but when it collected water from other territory and concentrated it in the ditch which it had dug along the street in front of plaintiff’s property, it was bound to provide sufficient outlet for it. so that it would not be forced upon plaintiff’s land in larger quantities than would have flowed over it without such act.</p> <p>2. Charge Approved.—If the jury believe from the evidence that by means of the ditch in question, surface water that would naturally have overflowed elsewhere was diverted in large quantities from its natural outlet and carried into the ditch, then if the evidence further shows that the defendant permitted the ditch to become and remain insufficient to carry off the water so collected in it, and that by reason thereof large quantities of water, diverted from its natural outlet, were thrown from said ditch upon the plaintiff's premises, the plaintiff is entitled to recover such damages, if any, as resulted to her therefrom.</p> <p>3. Defective Charge.—See opinion for charge asked by defendant held to be defective.</p> <p>4. Verdict not Excessive.—The testimony of the plaintiff and the doctor taken together established, as well as can be required, the fact that plaintiff was made sick, and that her health was gradually undermined, and that she was exposed to bad odors and discomforts, and to much inconvenience resulting from the flooding of her house, and that her bills incurred to one doctor alone amounted in one year to $200 or $300; and as we understand his evidence he attributes these bills to sickness resulting from the causes assigned; therefore a verdict for $075 was not excessive.</p>

<p>1. Contributory Negligence — Sufficient Allegations of.—Plaintiff sued appellant company for damages for depredations on his crops by stock, which entered his premises over the depot platform, which was partly within and partly outside his enclosure, and was not protected by cattle guard or otherwise. Defendant's plea of contributory negligence was, that the plaintiff, by building a few yards of fence around defendant’s passenger depot, could have prevented all the damages. This plea was good against a general demurrer, and the court below erred in striking it out on plaintiff’s exception.</p> <p>2. Cattle Guards.—The platform extends about four feet inside the pasture, and the track is outside. The statute with reference to cattle guards would not be applicable in such a case, and it was not shown by the evidence to be applicable.</p> <p>3. Allegation and Proof — Damages. — The amount of damages found by the court is clearly excessive. Plaintiff could not recover more for any particular item of damages than he alleges in his petition he sustained; and when the allegation was that his pasture had been damaged $50, he could not recover more than that sum by proof of $200 or $300 damage to it.</p> <p>4. Duty of Plaintiff to Protect Himself Against Damage.—There was a partition fence between plaintiff’s pasture and field, which was a poor fence and did not turn hogs. He could have repaired it, but did not. If it could have been repaired at a moderate cost, and the crops thereby protected, it was the plaintiff’s duty to have done so; and failing to do it, his measure of damages would be a sufficient amount of money to have made such repairs.</p> <p>5. Crops of Tenants Destroyed.—Plaintiff should not be allowed to recover for crops that belonged to his tenant, nor for damages thereto caused by stock getting in at other places than over the platform.</p> <p>6. Value of Crops.—If the witness should qualify himself asan expert,his opinion as to the value of a crop at a particular stage of development should he received.</p>

<p>1. Wills—Execution of Powers.—R. was named as executor of the will of S., who died in 1817. The will gave R. power to sell certain realty, but did not exempt the executor from'the control of the Probate Court. Both the act of 184G and 1848 authorized the exercise by executors of powers of sale conferred by wills; confirmation was only necessary of such sales as had to be authorized by the court. Valid powers of sale given to executors by will are not revoked by the probate of the will, but may be exercised though the administration of the estate is not by other provisions of the will taken out of the Probate Court. R. therefore had power to sell and convey the land without the sanction of the court.</p> <p>2. Powers that Can Not be Delegated.—The land was sold in 1855 by T., who assumed to act as attorney in fact of R., though no power of attorney was shown. A discretionary power of sale such as was given R. by this will can not be delegated by the donee or trustee to another. Negotiations and arrangements for a sale in all its details having been made by the trustee himself, he may commit the execution of acts which are merely mechanical to another, and this includes the mere act of executing and delivering a deed of conveyance when everything else is done by the trustee.</p> <p>3. Same—Supporting Evidence.—A conveyance by one claiming to act as attorney in fact of the donee or trustee of such a power as this, where the sale was neither made nor ratified by the trustee, would be void; and in the ease above supposed the production of the deed executed by the attorney in fact would not be sufficient evidence of title, but evidence would be required of the circumstances under which it was made, to authorize and sustain it.</p> <p>4. Presumptions—Lapse of Time—Acquiescence.—In this case there was no direct proof of such circumstances, and T.’s deed was insufficient to convey title unless supplied by presumption. For a third of a century the land has been openly possessed, used, and enjoyed by claimants under T.’s deed, and appellants have not in any way asserted a claim to the property, which was theirs but for this conveyance. They must be held to have known of such claim, and to have acquiesced in it. The court below correctly presumed the existence of a valid power in T.</p>

<p>1. Injury to Brakeman — Case in Judgment.—Plaintiff, a bralceman of eight or ten years service, attempted tó go to the top of a box car upon which he was braking; the hand-hold on top of the car pulled out, and he was thrown to the ground and seriously injured. The cause of the hand-hold pulling out was because the top of the car to which it had been screwed was rotten. The condition of the hold was not known to the plaintiff, was not patent, and could not have been known by the exercise of ordinary diligence, and no rule of the company required him to inspect the hand-hold before using it. He had noticed a good many roofs rotten on the road, and had worked on cars with rotten roofs, but never noticed any hand-holds loose. A verdict for §3000 was affirmed.</p> <p>2. Case Approved. — Fordyce v. Withers, 1 Texas Civil Appeals, 540, approved.</p> <p>3. Charge in Such Case.—See opinion for the charge in the ease held to be a correct statement of the law applicable to the facts.</p> <p>4. Erroneous Charge Asked.—A charge asked, that if at the time he received the injury plaintiff knew that there were a number of cars on the road with rotten tops, and that in attempting to climb upon the same in the way in which he was climbing when he was hurt he was liable to receive an injury by reason of the pulling out of the hand-hold on top of the car, then he assumed all risk incident to this condition of affairs, and if he was thereby injured he could not recover, was inapplicable.</p> <p>5. Excessive Verdict.—Facts upon which a verdict for §5000 was held not excessive.</p>

<p>1. Notice of Importance of Message.—To authorize recovery of other than nominal damages for failure to deliver a message promptly, when the sender gives no explanation of its importance, it must upon its face advise the operator that it is in reference to a matter out of which loss or injury will probably result. “How many beeves and bulls have you? Don’t go away. Will get them off,” is a message that gives such notice. The operator need not be made acquainted both with the terms of the contract and the parties to it.</p> <p>2. Measure of Damages.—If there was failure to make sale of a herd of cattle caused by the nondelivery of a message, the measure of damages is the difference between the market value of the cattle in the condition they were in while in the herd, and the price the owner would have obtained for them had he been able to deliver them under the contract, deducting the cost of transportation if the contract required them to be delivered. The plaintiff should not have been permitted to prove the cost of collecting and holding them, nor the probable loss on bulls from dehorning them.</p>

<p>1. Public Lands—Right to Acquire for Homestead by Purchase. The State having sued a purchaser for land for nonpayment of interest, S. intervened and claimed it as a bona fide settler, intending to purchase it for a homestead. His petition did not show that the land had ever been restored to the school fund by the filing of the copy of the judgment of forfeiture, nor that the lands were ever classified or appraised, nor that he had made application for the purchase of it. He only states that he was an actual settler thereon in good faith, with intent and purpose to make the land a homestead by purchase, and that he had tendered to the Treasurer one-fortieth of its value. The petition is fatally defective, and demurrer to it was rightly sustained.</p> <p>2. Right to Pay for School Land Purchased After Suit to Forfeit.—September 9,1892, the State sued Page, the purchaser, for the title and possession of a section of land he had purchased, upon the ground of nonpayment of purchase money. October 12,1892, the El Campo Land Company intervened, claiming to be the owners of the land by purchase from Page, and to have paid the balance of the purchase money and interest to the State. November 10, under instruction from the State Treasurer, notifying him of the payment of the full amount of the purchase money and interest, the case was discontinued by the district attorney, and judgment rendered in favor of the El Campo Company for title and possession. Held, failure to pay interest when due does not ipso facto work a forfeiture. We do not think that the statute does more than to require the payment of the money in the manner prescribed, before the ease has been called for trial.</p> <p>3. Same —Object of Ascertaining Forfeiture in the Courts. — It was no doubt the intention of the Legislature in requiring the forfeiture to be ascertained in the District Court, to afford the purchaser the opportunity of obtaining such equitable relief as he might show himself entitled to; and a familiar principle of equity is, that the vendee be allowed to complete his purchase by payment of the balance of the purchase money and interest.</p>

<p>1. County Court May Foreclose Attachment Liens on Land.— A citizen of Georgia sued another citizen of that State in the County Court of Montgomery County, Texas, to recover upon promissory notes, and foreclose an attachment upon land in said county. The County Court had jurisdiction to cause the levy of the writ upon the land, and to enforce the levy by foreclosure.</p> <p>2. Right of Nonresident to Sue Nonresident.—One nonresident may, by attachment proceeding, subject the property of another nonresident, who is his debtor, to the payment of his debt, in any court of competent jurisdiction in this State. By the levy of its writ the court acquires jurisdiction over the property, and could subject it to the payment of such debt as the plaintiff might establish.</p> <p>3. Appearance by Nonresident.—Defendant appeared and excepted to the jurisdiction of the court, and moved to quash the attachment, stating that he appeared for the purposes expressed therein alone; and in his other answer he stated that it was filed without any intention of waving his other pleas, and that he thus answered to the merits only in the event they should be overruled. This pleading of the defendant entered an appearance, and gave the court jurisdiction over his person.</p>

<p>Error from Harris. Tried below before Hon. James Masterson.</p>

<p>1. Mechanic’s Lien.—Under the mechanic’s lien law of April 5, 1889, it is not necessary that a contractor who furnishes material to a defendant for the erection of improvements, should have a contract in writing to file and record, to secure and fix the lien. It is sufficient if he file for record a sworn account such as is provided for by the fourth section of said act.</p> <p>2. Same.—The Constitution makes no distinction between those who contract in writing and those who contract by paroi; and the statute provides for fixing and enforcing liens claimed under either a written or verbal contract; but it does not require that the contract be in writing, when made between an original contractor and the owner of the property, for furnishing materials or labor.</p>

<p>1. Award—Pleadings Necessary to Avoid.—Where it is sought to set aside an award hy arbitrators on the grounds of fraud, partiality, or mistake, general allegations are not sufficient, but the facts constituting the objection must be specifically averred, and they must be such as would be sufficient to vacate it when impeached in a court of equity.</p> <p>2. Same—Evidence Requisite to Vacate Award.—Charges of fraud, partiality, and mistake in making an award are not sustained by evidence relating to the merits of the controversy between the parties as though no award had been made, and which fails to show fraud or partiality by the arbitrators, or any mistake of fact by them of a material character.</p> <p>3. Same—Practice—Issues.—In a proceeding to set aside an award the entire controversy should be submitted to the jury, under proper instructions— the grounds for vacating the award, and also the merits of the case. If the jury find that the award should not he set aside, they proceed no further; otherwise, they pass upon the merits of the case.</p> <p>4. Charge of Court — Instructions Must be Requested, When.— Complaint of the general way in which the court submitted the issues to the jury is not available on appeal where the complaining party failed to request appropriate instructions.</p>

<p>1. Charge of Court—Evidence Held to Raise Issue.—Where plaintiff gave in evidence a transfer purporting to have been executed and signed by W.. and defendant offered testimony to the effect that W. could neither read nor write, an issue was thereby raised as to whether the instrument was executed by authority of W., and this question was therefore properly submitted by the court to the jury.</p> <p>2. Practice on Appeal — Assignment of Error. — Where an assignment complains that the court erred in allowing a certain conveyance to be read to the jury S.*****11 over the several objections made thereto by the defendants, as shown by their bill of exceptions number 1,” and no propositions or statements are submitted under the assignment, and the briefs do not state what the objections were, such assignment is bad.</p> <p>3. Same.—An assignment which complains that the court erred “ in refusing to give special instructions numbers 1,2,3,4, and 5, asked by defendants,” is too general, and propositions submitted thereunder will not be considered.</p>

<p>Evidence — Opinion of Witness — Damages. — In a suit for damages caused by overcrowding cattle in cars during shipment, a witness who accompanied the cattle testified as to the injuries they had received, and that he was acquainted with their market value when delivered, and knew their condition at the time they were shipped, and at the time they arrived at market, and had been engaged in handling and shipping cattle for several years. Held, that it was error to permit the witness to further testify that in his opinion said cattle were damaged $5 per head. Following Railway v. Wright, 1 Texas Civil Appeals, 402.</p>

<p>1. Judgment for Costs against Nonresident Cited by Publication—Presumption from Record.—A judgment for costs against nonresident defendants cited by publication can not be sustained; but unless it affirmatively appears from the record that the defendants were nonresidents, it will be presumed that they were citizens of this State, and the judgment valid.</p> <p>2. Practice on Appeal—Cause Remanded for New Trial, When. Appellant's title, which was by virtue of a sale under an execution issued for costs against defendants cited by publication, was held void by the trial court; but the record on this appeal fails to show whether such defendants in the former suit were residents or nonresidents when so cited therein. Appellees confess error, and ask that the appellate court, instead of rendering such judgment as could be required by the record before it, remand the cause in order that on another trial they may show hy the record in the former suit that the defendants therein were then nonresidents. Held, that the cause would be remanded to enable the parties to show the real facts.</p>

<p>1. Execution Sale —Alias Execution Irregularly Issued, When. The issuance of an alias execution to another county, to be levied on land there, while the judgment debtor owns personal property in the county where the judgment was rendered, which has not been levied on, and which he has not been called on to point out, constitutes an irregularity.</p> <p>2. Same—Alias Execution Should Recite Previous Executions. An endorsement of “ al. execution” on the back of a writ of execution, and a mention in the bill of costs attached to such writ of the items of costs for the issuance of previous executions, is not a compliance with the requirement of the statute, that11 when an alias or pluries execution is issued, it shall show upon its face the number of previous executions which have been issued on the judgment.”</p> <p>3. Same—Irregularities Affect Validity of Sale, When.—The court did not err in charging that if the jury found that at the sale under the alias execution the land was struck off to the execution plaintiff at a grossly inadequate price, and that the irregularities above mentioned conduced to such inadequacy of price, they should find in favor of the party seeking to have such sale cancelled and annulled; but if the irregularities did not conduce to such inadequacy, they' should not find in favor of such party.</p> <p>4. Same—Judgment Lien—Right of one Purchasing Subject to. That a purchaser of land bought it subject to a prior judgment lien thereon, does not preclude him from the right to attack a sale made under the judgment, on the ground of irregularities in such sale, and gross inadequacy of price realized thereat.</p> <p>5. Acknowledgment of Deed—Certifying Identity of Grantor.— The law in force in 1874 did not require that the officer taking the acknowledgment of a deed should certify that the grantor was known to him. Following Watkins v. Hall, 57 Texas, 4.</p> <p>6. Practice on Appeal — Assignment of Error. — Where plaintiff’s motion for new trial in the lower court embraced a number of distinct grounds, an assignment of error specifying only that “ the court erred in not giving plaintiff a new trial,” is too general, and will not be considered.</p>

<p>1. Telegraph Company—Stipulated Notice of Claim.—A message which was forwarded to plaintiff, but through negligence of the telegraph company never delivered, was written on a form containing a printed stipulation, that the.company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message.” Plaintiff did not learn of the message until about three weeks after it was sent. Held, that the court erred .in charging that plaintiff, for the purpose of giving the notice, was entitled to sixty days after he learned, or reasonably could have learned, that the message was sent. It should have been submitted to the jury to determine, under the facts of the case, whether the remaining time after plaintiff learned of the message was reasonably sufficient for him to have given the notice within the stipulated sixty days.</p> <p>2. Jurisdiction of Federal Courts in the Indian Territory.—The Act of Congress of July 4,1884, which provides that certain Federal courts shall have concurrent jurisdiction over all controversies, irrespective of amount, between the Gulf, Colorado & Santa Fe Railway Company and the Indian tribes and nations, and the inhabitants thereof, through whose territory said railway shall be constructed, does not deprive any other court of any jurisdiction it would have against such railway company, since the act'does not confer exclusive jurisdiction on the courts therein named.</p> <p>3. Jurisdiction—Comity of States.—Where a Texas railway corporation, doing business also in the Indian Territory, is guilty of negligence there, the rules of sound policy do not require that the courts of Texas should decline to entertain jurisdiction of a suit brought for damages of a personal character resulting from such negligence, especially where it is not clear that plaintiff is not also a citizen of Texas.</p> <p>4. Lex Loci—Rule not Applicable—Tort and Violation of Contract.—The laws of the Indian Territory, wherein the defendant corporation received for transmission the telegraph message which it negligently failed there to deliver, do not give jurisdiction to any of its courts over suits for damages in such cases; but they do not declare such contracts illegal, or render such act of negligence lawful. Held, that the failure to provide a remedy there will not deprive the injured party of all right and remedy elsewhere for the violation of the contract, or for damages for personal injuries, recognized as such by universal law, resulting from such negligence; and the defendant being a Texas corporation, and the contract with which it identified itself by receiving the message having been entered into by its connecting line in Texas, the courts of this State will not withhold redress for its violation.</p> <p>5. Practice on Appeal—Separate Judgments Against Joint Defendants.—In an action for damages against two defendants jointly sued, there was a separate verdict against each defendant. There being reversible error in the record as to one of the defendants, but none as to the other, the appellee is permitted, on filing a release and dismissing suit as to the one defendant, to have an affirmance of the judgment as to the other; otherwise, the entire case must be reversed and remanded because of the error.</p>

<p>State School Land —Actual Settlement —Void Sale.—The Act of April 1, 1887, did not empower the Commissioner of the General Land Office to sell State school lands classed as agricultural to others than actual settlers thereon; and a sale to one whose application and affidavit duly stated that he was an actual settler, when in fact he was not. conveyed no title, and would not bar another person, who afterward settled on the land, of his right to purchase the same from the State. Following Metzler v. Johnson, 1 Texas Civil Appeals, 137.</p>

<p>1. Guardian Ad Litem — Writ of Error Prosecuted by Next Friend.—Minor defendants against whom a judgment has been rendered may prosecute a writ of error by next friend to reverse the judgment, although a guardian ad litem was appointed to represent them in the suit in which the-judgment was rendered, where such guardian has neglected for eight years to carry up the case for review, and it does not appear from the record that he objects to the writ being so prosecuted.</p> <p>2. Final Judgment—Foreclosure of Vendor’s Lien.—Where suit is brought on a purchase money note against the heirs of the maker to foreclose the vendor's lien, no personal judgment being asked against the defendants, a judgment foreclosing the lien is a final judgment as to the defendants, although they are not specifically named in the clause granting such foreclosure.</p> <p>3. Judgment by Default—Citation not Showing Christian Name of Defendant.—A judgment by default against minor defendants is error where their given names were not stated in the original petition, nor in the citation served on them, and no citation was issued on an amended petition in which their names were properly set out; the original petition alleging that they resided in the county, and giving no reason why their names could not be ascertained.</p> <p>4. Same — No Presumption from Recitals in Judgment.—To sustain a judgment by default on appeal, the record must show good service of citation, outside of the recital of service in the judgment.</p> <p>5. Practice on Appeal — Error as to Party not Appealing. — Plaintiffs in error can not complain that a personal judgment was wrongly renderect against a married woman, codefendant with them below, without service on her husband, where such married woman is not a party to the writ of error.</p> <p>6. Practice—Reinstatement of Case Without Notice.—Where the court, of its own motion, dismisses a case for want of prosecution, it has the power to reinstate it at the same term without notice to the defendant.</p>

<p>1. Telegraph Company — Damages for Mental Anguish.—Where plaintiff sent by telegram an order for a coffin for the body of his minor son, and owing to negligence of the telegraph company in delivering the message the interment was delayed for twenty-four hours, during which the body began to decompose and became very offensive, plaintiff’s grief and mental anguish in consequence was a direct and natural result of the company’s negligence, and a proper element of damages.</p> <p>2. Same —Message Sent by one Person for Another. — The court did not err in refusing to charge that plaintiff had no beneficial interest in the telegram, where the evidence showed that it was sent at his request and for his benefit by one A., although plaintiff’s name was not signed thereto, and did not appear therein.</p> <p>3. Same — Notice to Telegraph Company of Sender’s Agency not Necessary—Case Followed.—Where a telegram is signed and sent by one person, but at the request and for the benefit of another, it is not material to the rights of such other person that his interest or the sender’s agency in the matter should be known to the telegraph company or its agent receiving the message for transmission. Following Telegraph Company v. Broesche, 72 Texas, 057.</p> <p>4. Practice — Harmless Error in Overruling Exceptions. —The overruling of special exceptions to certain averments in plaintiff’s petition could not have been detrimental to defendant where plaintiff at the trial introduced no evidence whatever in support of such allegations.</p>

<p>Appeal from Wise. Tried below before Hon. T. J. Brown, S ecial Judge.</p>

<p>Conveyance in Fraud of Creditors — Knowledge of Fraudulent Intent.—A conveyance of property by an insolvent debtor to secure one of his creditors, made also with intent to delay and defraud his other creditors, is not valid if the secured creditor participates in the debtor’s fraudulent intent, although the claim secured is a bona fide debt.</p>

<p>1. Evidence—Ancient Instrument — Maps.—Where a paroi partition of land in controversy had been made nearly thirty years before, and the issue was as to the manner and extent of the partition, defendants introduced a deed for part of the land, executed in 1861 by one of the parties to the partition, having on its back a plat showing the land divided in a certain way, with amounts and names of the parties written thereon. From a comparison of the handwritings it appeared that the deed and plat were made by the same person and were of the same age. Held, that in view of the age and evident genuineness of the deed, the death of the parties, and the fact that a contemporaneous partition of some kind was made, the plat had been properly admitted in evidence, especially as it was explanatory of the deed.</p> <p>2. Parol Partition —Evidence Held Sufficient. — Where, from long lapse of time and death of the parties, clear proof could not be made as to the exact manner of a paroi partition, and the action of plaintiffs’ ancestors in disposing of a part of the land, and asserting no claim of further interest therein for many years, was consistent with defendants’ theory of the partition upon which defendants and their ancestors appeared to have acted for nearly thirty years, and which was corroborated by a deed and plat shown in evidence, a verdict in favor of defendants should not be disturbed.</p>

This cause was first decided by the Commission of Appeals, Section B, February 22, 1892, and their report adopted by the Supreme Court; but a motion for rehearing having been granted, the case was transferred to the Court of Civil Appeals for final determination.

<p>1. Trespass to Try Title — Common Source. — Where plaintiffs in trespass to try title prove a deed from G. to 0., and that they are the heirs of 0., and the defendants, in a plea of improvements in good faith, allege that they claim under one S., to whom 0. had willed the property, it is thus apparent that both parties claim under 0., and under the deed from G., and plaintiffs need not deraign title from the sovereignty of the soil.</p> <p>2. Evidence of Transaction with Decedent — Statute does not Include Actions Against Legatees.—Article 2248 of the Revised Statutes, which inhibits a party to a suit by or against the heirs or legal representatives of a decedent from testifying therein against the other party as to transactions with or statements by such decedent, does not extend to actions by or against legatees.</p> <p>3. Practice—Parties Made Defendants on Motion, When.—Where plaintiffs dismissed as to certain defendants who claimed an interest in the property in controversy, it was within the discretion of the court to permit the parties so dismissed to be made defendants upon application of the remaining defendants.</p> <p>4. Evidence—Res Gestae—Declarations as to Character of Possession.—Where defendants in trespass to try title pleaded title by limitation in one S., then deceased, it was competent for them to prove the declarations of S. made while in possession and explanatory thereof, as showing that such possession was under adverse claim.</p> <p>ON REHEARING.</p> <p>5. Common Source of Title Shown, How.—Where plaintiffs claimed as the heirs of C., and it appeared from the record on appeal that a witness testified on the trial that one S. claimed the property as surviving wife of C., and it further appeared that at the instance of the defendants an objection was sustained to certain evidence offered by plaintiffs, on the ground that defendants claimed the property as legatees of S., held, that it was thus apparent that both parties claimed under 0.</p>

<p>1. Railway Corporation — Forfeiture of Charter for Nonconstruction of Road.—Article 4728 of the Revised Statutes, providing, that if any railway corporation shall not, within two years after its incorporation, construct and put in operation at least ten miles of its proposed road, “ such corporation shall forfeit its corporate existence, and its powers shall cease as far as it relates to that portion of said road then unfinished, and shall he incapable of resumption by any subsequent act of incorporation,” is self-executing, and failure to comply therewith forfeits the charter without any judicial declaration; but the forfeiture relates only to the unfinished portion of the road, not to the completed part thereof, nor to property previously acquired, and the right of the corporation to retain and dispose of its property is not in any manner affected by the terms of this article.</p> <p>2. Same—Property Rights Upon Dissolution.—Upon the dissolution of a corporation created by or under the laws of this State, its officers become trustees for its creditors and stockholders, and its property rights and assets become a trust fund for their benefit.</p> <p>3. Same—Ownership of Forfeited Right of Way.—Where a railway corporation has acquired a right of way, and has forfeited its charter under the statute by its noneonstriietion of its road thereon, such right of way does not revert to the grantors of the corporation, nor vest in the State, but constitutes an asset of the corporation, to be administered for the benefit of its creditors and shareholders upon its dissolution; and another corporation not connected with the old one has not the right to take possession of such unfinished road and hold it as its own property.</p> <p>4. Trespass to Try Title — Costs Adjudged Against Plaintiff in Favor of Warrantors.—Where, in trespass to try title, the defendant properly vouches in his several warrantors, the costs of so doing are correctly adjudged against the plaintiff, in the event that judgment goes in favor of the defendants for plaintiff’s failure to maintain the suit. Error in a matter of this kind, to be available on appeal, must be first called to the attention of the court below.</p> <p>on rehearing.</p> <p>5. Railway Corporation — Common Law Rule as to Effect of Dissolution Changed by Statute .—Under our statutes, the forfeiture of the charter of a railway corporation does not have the effect to divest, without compensation, the stockholders of their property rights in the roadbed acquired by their means; and to remove any apprehension from the minds of investors that the strict common law rule vesting in the State the right to the roadbed of the forfeited railway corporation might be the rule of decision here, was probably the principal reason for the enactment of our statutes touching this subject.</p> <p>6. Same—Right of Another Corporation to Appropriate a Forfeited Roadbed.—If. upon the forfeiture of the charter of a railway corporation, its roadbed becomes the property of the State, another corporation, by simply taking out a charter calling for the terminal points of the forfeited charter, can not thereby acquire from the State the title to such roadbed.</p> <p>7. Same — Pleading Possession of Roadbed to Sustain Ejectment.—Where one seeks to recover in trespass to try title a railway which extends over many miles, upon the ground of possession alone, he should go further with his allegations and proof than mere general statements which only show a possession that might not in fact extend beyond a very small part of the line.</p>

<p>Agency—Authority of General Agent to Apply Payments.—The plaintiff sued for balance due on lumber, and defendant answered that he purchased his lumber from a number of firms, including plaintiff, through one W., who was interested in and general agent of them all, and bad paid for it to W., or under liis direction. The court charged that a payment to W., ‘‘ or to a firm of which he was a member,” would be a payment to plaintiff. Held, error, in the absence of evidence of authority in W. to direct payment of money due-plaintiff to a firm in which it was not interested, since the fact of his general agency for all the firms would not of itself authorize it.</p>

<p>1. Pleading — Contributory Negligence. —In an action for damages against a city for personal injury, it is not necessary for plaintiff to aver that he had no notice of the defect in the sidewalk causing the injury; and knowledge by him of such defect is not conclusive evidence of contributory negligence on his part.</p> <p>2. Parties — Contribution — One Wrongdoer can not Make Another Party Defendant, When.—The defendant in a suit for damages resulting from its negligence has not the right to have a third party joined as defendant, and to have judgment over against such third party, where its own negligence has contributed to cause the injury complained of, although the negligence of such third party in failing to carry out a contract with defendant may also have contributed to the injury.</p>

<p>1. Public Highway — Dedication — Acceptance by the Public.— Where the issue is as to whether a highway hacl been dedicated to the public and accepted by it so as to prohibit the revocation of such dedication, an instruction that in order to constitute a public highway outside of a city or town, it is necessary that it should have been recognized as such by the public officials or tribunals of the county through which it runs having charge of the public roads, by some official act, such as designating it upon the official records as such, assigning hands to work it, etc., is too restricted, since there may be an acceptance on behalf of the public in other ways than by affirmative action on the part of the public authorities.</p> <p>2. Same.—So, an instruction requiring such affirmative acts of acceptance on the part of the municipal authorities in order to constitute a public street by dedication in a city or town, is also erroneous for the same reason.</p> <p>3. Same—Estoppel by Deed.—Where the owner of land having thereon a highway by dedication conveys the entire tract, without allusion to the highway, to one who is ignorant of the dedication, knowing that the grantee intends to build on the part so dedicated, he will be estopped to claim damages of the grantee for obstructing the highway by such building; but the deed will not so estop him unless he had knowledge of the grantee’s intention to build on the dedicated part.</p> <p>4. Evidence—General Reputation as to Character of Highway. Evidence of general reputation is admissible on the question as to whether a highway is public or private.</p> <p>5. Evidence of County Judge.—A county judge may testify as to whether a highway by dedication has been recognized as a public road by the Commissioners Court over which he presides.</p>

<p>Homestead Exemption—Family of Single Man.—Where an unmarried man has a sister, and also a widowed mother whom he supports and who has no homestead of her own, residing with him upon his own place, this constitutes a family within the meaning of the Constitution and exemption statutes, and the1 property so occupied is not subject to forced sale.</p>

<p>Error from Nolan. Tried below before Hon. Wm. Kennedy.</p>

<p>1. Garnishment — Prior Agreement that Garnishee may Pay Other Creditors.—M., having funds in the hands of S., agreed with G., a creditor, that S. might pay G.’s debt out of the funds, and apply the balance ratably to the debts due certain other creditors. S. was not a party to the agreement, and as it seems had not made the actual payment and application of the funds as therein designated prior to service on him of a writ of garnishment by plaintiffs, who were also creditors of M. Held:</p> <p>1. In order for the agreement to operate as an assignment to G. of So much of the funds as would pay his debt, it was not necessary for S. to be present thereat or privy thereto.</p> <p>2. But if the agreement was in the nature purely of a negotiation not intended as a final contract by the parties, it could not operate as such assignment; and this question of intent should have been submitted to the jury.</p> <p>3. As G. did not represent the other creditors referred to in the agreement, they were not parties to it, and its effect could not extend to them so as to place the remaining funds beyond his control.</p> <p>2. Same — Burden of Proof not on Garnishee. — In a garnishment proceeding the creditor is the actor, and the burden of proof is on him. It is not incumbent on the garnishee to establish the truth of his answer.</p>

<p>1. Practice on Appeal—Assignment of Error.—Where there are several exceptions of a diverse character to the petition, an assignment of error that “ the court erred in overruling defendants’ exceptions to plaintiff's petition, on the grounds in said exceptions stated,” is too general to entitle the several propositions thereunder to be considered.</p> <p>2. Same.—The following assignments of error are too general to require consideration, viz., that “the court erred in its several rulings adverse to defendants in the admission and exclusion of evidence, as shown by their bills of exceptions thereto reserved on the trial, whereby the jury were misled and the defendants prejudiced;” and that “the court erred in refusing defendants’ requested charges correcting alleged errors in the charge in chief.”</p> <p>3. Same—Charge of Court.—Where an assignment of error makes a specific objection to the charge as a whole which is not tenable, the appellate court will not, under such assignment, select portions of the charge not technically correct as grounds for reversal.</p> <p>4. Innocent Purchaser—Valuable Consideration.—Where a surety on a note assumes one-half of that debt as his own in consideration of a conveyance to him by the principal therein of certain property the apparent title to which is in the principal, this does not constitute the surety an innocent purchaser for value, as against another who is the equitable owner of the property.</p>

<p>School District—Power of Trustees to Contract Debt for School Furniture.—Under the school law of 1884, the trustees of a public school district were not authorized to bind the district by a note given for school furniture; nor would the district be liable therefor on a quantum meruit because the furniture had been received and used.</p>

<p>1. Tax Deed—Description of Land.—A description of land in a tax deed is sufficient to support the defense of five years limitation thereunder if, unaided by extrinsic facts, it satisfies the mind that the land adversely occupied is embraced within the description contained in the deed.</p> <p>2. Same — Deed of Tract “ Less Sixty Acres out of Southwest Corner.”—Where a patented section of land lies with its main body in a rectangular form, and with a projecting arm at its southwest corner, also in rectangular form, a tax deed which describes the entire survey by the calls in the patent, “ less 60 acres out of the southwest corner of same,” is sufficiently certain as a predicate for the five years adverse possession under the statute: since the excepted 60 acres, which can not on the face of the deed be taken in a square, may properly be taken out of the projecting arm in the form of an oblong rectangle, and any uncertainty as to the proper form therefor will not affect the main body of the survey.</p>

<p>1. Judgment as Collateral Security — Payment — Principal and Collateral Security Debts Mutually Extinguished, When. —B. obtained a judgment against D. and others, and afterwards held, by transfer and as collateral security for its payment, two judgments against one S., which were the property of some of the defendants in the principal judgment against D., and which in their aggregate exceeded the amount then remaining due on such principal judgment. S. paid to B. such remaining amount, and took a transfer of the principal judgment to himself. Held:</p> <p>1. Such transfer operated as a transfer of the two judgments held as collateral security, which were thereby, as against S.. the judgment debtor therein, extinguished to the extent of the amount he had so paid for the principal judgment; and conversely, the transaction operated as an extinguishment of the principal judgment, so that a subsequent execution sale of lands of the defendant made thereunder by S. was void.</p> <p>2. The fact that at the time S. took the transfer of the principal judgment he held notes against one of the judgment debtors therein—the one whose lands he afterwards had sold thereunder—could not be used to defeat the specific purpose for which the two collateral judgments were pledged, viz., the protection of all the judgment debtors in the principal judgment.</p> <p>2. Parol Evidence of Written Instrument—Where the character of certain notes as pledges was the issuable fact, and this matter rested in paroi, it was not error to allow a witness to state, without producing the notes themselves, the date and amount thereof, and the names of the signers, and to trace them to the judgments into which they had been merged, and which judgments were themselves in evidence.</p>

The question referred to in the opinion as having been certified to the Supreme Court was as follows: “ Where the petition alleges an amount within the jurisdiction of the court, and the defendant pleads that the real amount in controversy is less than such jurisdiction, and has been fraudulently alleged at such greater sum for the purpose of conferring jurisdiction of the case upon such court, is it necessary that such plea be filed before an answer to the merits, or is it…

The trial court’s findings of fact, adopted in the opinion, and also its conclusions of law, several of which are referred to therein, are as follows: “ 1.