Volume 2 — Texas Law Review Reports

<p>County Scrip — Want of Seal does not hwalidate. — It. is not necessary to tlie validity of county scrip that the county clerk issuing the same should affix the county seal thereto.</p> <p>Same — Registration no bar to Defense of Tumlidiiy. — The registration of the indebtedness of a county, and the approval of the claims thus registered by the county court, does not estop the county from the defense that a claim thus registered is void.</p>

— Tried in the District Court before the Hon. H. Clay Pleasants.

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

<p>Construction of Instrument — Equity looks to all the circumstances preceding and attending the execution, and sometimes those which have subsequently occurred, in determining whether an instrument is to he construed as a mortgage or an absolute conveyance, where there is no defeasance expressly agreed upon. See this case for the circumstances from which equity usually deduces the conclusion that a deed in form, is in reality a mortgage.</p> <p>Possession of Mortgaged. Premises. — ~Where possession of the mortgaged premises is obtained by the mortgagee, in a manner unwarranted by law and not contemplated by the parties, lie can not demand payment of the money secured by the mortgage before restoring the possession that he liad obtained by unlawful trespass.</p>

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

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

<p>Trial of Right of Property — Separate Property. — Personal property purchased after marriage with the wife’s money is her separate property.</p> <p>Title — Notice.—A married woman is not required to give notice of her title to personal property by record, or otherwise, to defeat a levy upon it for the debt of her husband.</p> <p>Same — Registration.—Nor does a failure to register her separate property under the statute in any way affect her title to it.</p> <p>Same — Mark and Brand. —The record of a mark or brand in the county where the stock is found to be is constructive notice of title to the stock in the person whose name the mark and brand is recorded.</p>

<p>Three years limitation — Patent.—To dcraign title under the three years statute of limitation, it is not necessary that tlie patent should carry with it the paramount title. It is sufficient that it be title as against the government, valid in itself when tested by itself, and not by the title of others.</p> <p>Color of Title — Patent—Forged Assignment. — A patent issued in the name of au assignee, who holds the certifícate upon which it issued, from one who held the same under a forged transfer, the patentee having no notice of such forgery, conveys to the patentee such title or color of title as will sustain the piea, of three years limitation. Though the action of the commissioner upon the validity of the transfer of such certifícate and in issuing the patent to a wrong person does not conclude prior rights of others, nor is the State thereby precluded from setting aside such patent; yet as to the patentee it is conclusive os to ins rights. Citing' Fisher v. Miller, 26 Tex. 242; Mitchell v. Bass, 26 Tex. 376.</p> <p>Patent — Forgery of assignment to certificate. — When a patent is regular in form, issued by an officer empowered to issue patents upon a valid claim against the State for land, neither the forgery of a remote transfer of the certificate upon which it. issued, nor the failure, of the commissioner to detect that forgery can render it void.</p> <p>Sixf faction. — This ease distinguished from those of Wright V. Daily, 20 Tex. 780; Harris v. Hardeman, 27 Tex. 21Í); Kliiott v. Whitaker, 80 Tex. 241, and Brown v. Flynn, Tyler term, INKS.</p> <p>Oases discussed and ejtjilaiard.-Tlw eases of Vcremcndi v. Hutchins, 48 Tex. 841, and Burleson v. Burleson,28 Tex. 417, discussed; Pearson v. Burdeit, referred to and. explained.</p> <p>Hostile. Indians- Idmito.tinn. — An occasional invasion of the country in which land is situated,hy hands of hostile Indians, which made, it unsafe to live, in the country, will not prevent (lie running of the statute of limitation.</p> <p>See this e.ase for facts held to constitute a stale demand.</p>

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

This suit was instituted in the district court of Lampasas county, by the appellee, Geo. W. Littlefield, against the appellant, Marshall Wells, for the recovery of 1018 head of cattle, branded with a bar or rail, thus: 1 on the left shoulder, of which plaintiff claimed to be the owner, and which were alleged to have been taken possession of and unlawfully withheld by defendant. Plaintiff prayed for and obtained a writ of sequestration.

<p>Contract — Construction of — Sale—Conditional Sale — Lease—Mortgage—Fact Case.</p>

Appellees, who were plaintiffs below, brought suit against appel. lants, defendants below, by petition, for a debt alleged to be due, for three hundred and eighty-eight… Held: in part payment, and the remainder Middle-brook was to pay in good notes for land, secured by vendor’s lien and by him endorsed. That the sale was openly and fairly made, and appellees, Kellum & Rotan, were informed of it by appellants as soon as it occurred, and before they sued out their attachment.

<p>J.1atnit — /ii(/ui.sMcs of. — A proper construction of the laws directing the issuance of patents to lands surveyed hy virtue of a land certilicate, is that the authority, (that is, the certificate) hy virtue of which the patent exists, should be recited in it, and the patent should state the consideration on which it is based and fully idea tify the authority on which it rests and hy virtue of which it is made.</p> <p>1forged Deed — Feidence- -When a proper affidavit is tiled, attacking as a forgery a deed otleivd in evidence, sue.li deed cannot be received in evidence without the usual proof of its execution, but. when such proof is made, it is not error to allow the deed to go to the jury as pelma facie a genuine instrument.</p> <p>Mtorucys Fees. — Under the statute the court, lias no authority to tax the attorney’s fees of one defendant against, another.</p> <p>Ancient Tnetemnent. — See facts sufficient to establish u deed as an ancient instrument.</p>

<p>Sú'terial Jfen — Lien.—See opinion for an account held as full and accurate as the statute requires. (</p> <p>Same — Clerk’s Certificate. — The certificate of the clerk who recorded the account and accompanying affidavit and certificate of authentication is prima fade evidence that the facts stated in it are true.</p> <p>Same — Description.—A description in part insufficient can be rendered certain by other descriptive references.</p> <p>Same — Lien exists on l>nth house and. lot. — The statute gives the lien upon a house constructed with material furnished and also upon the lot which it is constructed! and when the house is destroyed by fire or otherwise the lien still exists upon the lot.</p>

<p>TMitdlord’s TAenon Crops. — A landlord’s lien on crops raised on the premises holds for one month after the same have been removed from the rented premises, and no longer.</p> <p>Same — jVotlee of I/len. — One ivlio purchases cotton from the sub-tenant without the knowledge of where it was raised, or notice of the landlord’s lien, is not liable for the same.</p>

On the 2nd day of November, 1875, appellants brought this action of trespass to try title against appellee. The land sought to be recovered is situated in Navarro county, and is described in the petition. Mrs. McNally claims as the surviving wife, and the other appellants as children of W. A. Langham, deceased.

<p>Judgment — Correction of. — It is clerical and not judicial errors that the supreme court may correct, and to obtain such corrections it must be shown that the court intended to pronounce a difficult judgment from the one entered up.</p> <p>Same. — The simple filing of an appeal bond, cannot change the nature of the judgment from which the appeal is taken.</p>

<p>Appeal from Tom Green County.</p>

<p>Homestead — Exchange of. — A surviving wife, holding n homestead by au undoubted right, may exchange it for another, and hold the latter exempt from execution for her debts.</p> <p>Same— Voluntary Exchange. — Where a debtor voluntarily exchanges property specifically exempt from execution for property not exempt, he cannot claim exemption for tlie property received in exchange, but if the property received in exchange is of the species exempted by law, it will not be subject to execution for the debts of the owner.</p> <p>Same — Involuntary Exchange. — In cases of involuntary exchange the newly acquired article becomes exempt, whether it was of a class originally protected from execution or not, as where exempt property is destroyed by fire the insurance money is exempt.</p> <p>Same — Application.—It might not be considered an altogether voluntary act where the surviving wife was compelled to make the exchange in order to secure a support, which she could not make at the homestead she then occupied.</p>

<p>Community Property — Declarations—Wotice.—Declarations of tlie husband that 1 and was community property, not being communicated to tbe purchaser, does not operate as notice to the latter.</p> <p>Same — Tax Dolls. — No purchaser is bound to examine tlie tax rolls of tbe county in quest of tlie true state of tbe title of land which lie is about to purchase. The record books of the county clerk are the ones lie must examine, and the party in whom they show the title to exist Is the one from whom lie rnusi purchase, unless lie lias notice from other sources to the contrary.</p> <p>Alteration of Instrument. — When nothing appears to the contrary the alteration of an instrument will be presumed to be temporaneous with tlie execution of tlie instrument.</p>

<p>Community Debt — Judgment—Community Property — Parties.—There is 710 difference betweerr a suit upon a community debt, commenced during the lifeti7no of the wife, wberi jndgmerit is not obtained till after her decease, and one when the suit and judgment both occur subseque7itly to her death. In the former case it 00717701 be claimed that at her death the,heirs or her administrator should he made parties or the suit would abate, nor Í77 a77 original suit, commenced after her death, are they necessary parties defendant.</p> <p>Same. — A judgme77l rendered 077 a community debt against a surviving husband is binding upon the comrnunity property and to be enforced against it, and a levy, sale arid sheriff’s deed made under such a judgment divests the liusband and heirs of all interest in the property.</p>

<p>Conti-act — Construction of. — When the contract is to furnish or sell certain goods identified by reference to independent circumstances, such as an entire lot deposited in a warehouse, &c., the naming of the quantity is regarded only as an estimate of the probable amount, in reference to which good faith is all that is required of the party making it. So a contract for sale and delivery of cattle in which there is merely an estimate that the number in the marks and brands mentioned is about 10,000, the seller will not be liable if it is less, provided lie has acted in good faith in making the estimate.</p> <p>Same — Diligence.—See opinion for charge in diligence, held to he correct.</p>

<p>School Land — Purchasers--Actual Settlers have Pilority. — The provisions of the constitution and laws secures to actual settlors on school lands the prior right to purchase, nor can any one not having some light as an actual settler, interpose anv obstacle to the settler acquiring the land which the law entitles him to purchase.</p>

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

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

<p>Railway — Mechanics' or Laborers' IAen — Parties.—In a suit to enforce the lien given to mechanics, laborers and operasives upon railroads, the contractor and sub-contractor, under contract with whom the labor was performed, are necessary parties to the suit.</p>

<p>Railway Corporations — Successors—Rights of. — When a railroad corporation is sold out the purchaser succeeds to all the rights, powers, &c., of the sold out corporation. E. S. 4260. No change of name, no notice or publication of the purchase or merger is necessary, nor is the successor, or new organization compelled on every occasion to show by what special action or authority it has succeeded to the rights of the old company.</p> <p>Judicial Cognizance. — Courts take judicial cognizance of the legal effect of such sale and purchase.</p> <p>Title to Land — Evidence.—It would be sufficient in order to enable a purchaser from such corporations to maintain an action of trespass to try title, to show title to the locus in quo in the original corporation, and to prove that he held by deed from that corporation or its lawful successors or assigns, and produce a grant to them from the government and a deed to himself vesting in him the fee.</p> <p>Same — Burden of Proof. — If it is sought to resist a recovery by one in possession against such a title, it is the duty of the person so resisting, by way of defense to show the secret vice or defect in the title which is not apparent on its face.</p> <p>Change of Name____When the name of the corporation has been changed by special act of the Legislature, it is necessary to produce such act for the purpose of identifying the corporation.</p>

<p>Deed — Authentication in Foreign Language — Evidence.—When an instrument, written in any other language than our own, is sought to he introduced in evidence, it must be translated into English by a competent person having knowledge of both languages, and this translation or intei pretation is a burden cast upon the party offering the paper in evidence.</p> <p>Same. — Our statutes prescribe the persons authorized to take foreign acknowledgements, and an authentication is void when taken by an officer not expressly so authorized.</p> <p>Same — Common Law acquirements. — See opinion for proof of instrument held insufficient under the common law requirements.</p>

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

<p>Contract — Subscription to Charity. — ¡¡urns subscribed were payable tu trustees appointed by district conference for erection of Oliureli building- for school purposes, and “school was to begin as soon as possible, <&e.” Held, that it was only question of fact whether the delay of the work was reasonable. Tide opinion for discussion of authorities.</p>

Appellants, E. B. Smyth, J. W. Townsend, Joe. H. McCain and Elizabeth Wood (plaintiffs below) brought this suit, (No. 1016) in the district court of Limestone county on the 5th day of October, 1875, and on the 7th day of March, 1878, filed their “amended original petition,” which under rule 14 of the dictrict court, supercedes the original petition, against W. G. Veal, appellee, for the possession of the headright certificate No. 155 of of a league of land issued to William…

' Plaintiff, F. M. Goode, is a resident of Grayson county, Texas; defendant, the Life Association of America, was a corporation, organized under the laws of the State of Missouri, for the purpose of carrying on a Life Insurance business, aud having its domicil in the city of St. Louis in said State. Plaintiff’s amended original petition, filed February 35th, 1881, alleges in substance that his original petition was filed on the 1st day of March, 1879.

<p>A Shei-tir’i: sale is not complete until tlie purchase money is paid; and tlie inadequacy of price alone cannot annul. See illustrations and cases cited.</p>

<p>Homestead — Designation before levy. — That the homestead ^vas not designated before the levy of attachment, is not ground for setting the levy aside; and a purchaser in good faith may rely upon the real title being where by the deed it appears to be.</p> <p>Land purchased during coverture, whether the deed be to the husband or wife, is presumed community property, if the deed does not indicate to the contrary. If there be a difference it should be in favor of the wife, for it is by construction only that property conveyed to the wife is held to be community property.</p> <p>Resulting trusts, are not subject to registration in this State; and a bona fide purchaser, for value and without notice, is as much protected in equity as under registration laws.</p>

Pedro Sais brought this suit against the State of Texas, under the Act of August 15th, 1870, for a confirmation of three leagues of land situated in Starr County. He claims as part owner and one of the heirs of Juan Jose Sais, deceased.

Writ of Error to the District Court of Johuson County. STATEMENT. On Tanuary 14th, 1873, Ennis and wife brought this suit against Norris, on a note for $180.00 and sought a foreclosure of a vendor’s lien upon the land described. By supplemental petition, they also set up another note and claim that it was also given for the land and pray foreclosure of the new secured by that note also.

<p>Vendor's Lien — Title Bond. — Plaintiff in seeking to enforce vendor’s lien need not allege validity of title lie gave bond for upon tlie payment of the notes; it would be sufficient to aver willingness and readiness to convey title to defendant in accordance with tlie terms of the bond. See facts for imperfect title.</p>

<p>Appeal from Grayson Comity.</p>

STATEMENT. This suit was brought (Deo. 29th, 1873) by appellant as administrator of Adelaid Krightley, deceased, against appellees, J. C. Seydell, N. R. Winniford, Wm. Fleming, S. C. Atterbory and Wm. H. Freedman upon a promisoiy note. The note is alleged to have been executed and delivered to plaintiffs intestate by the defendants and one Wm. Krightley (since deceased) and is set out in the petition as follows to wit : $1000 00. Lancaster, Texas, Jan. 1st, 1871.

<p>Appeal from the District Court of Ellis County.</p>

STATEMENT. On November 9th, 3872 Cook, filed his petition in trespass to try title, against the, appelles, in the District Court of Cook County, claiming under grant made toMarceline Ltzarine, dated March 20th, 1834. The defendant claimed under the Republic and State of Texas, by patents issued at different times. The case was removed by. change of venue to Collin County.

<p>Administration— Community property.--A judgment rendered against the surviving husband’s administrator does not bar a suit by the heirs of the deceased wife seeking to recover her community interest.</p>

<p>1. Practice — .Hoideuce.—Error in admission in evidence of certified copies of written documents is rendered immaterial by the introduction of the original documents themselves.</p> <p>2. Same — Case Slated. — The original documents oflaredin evidence were over thirty years old at that time; they came from the proper custody, unclouded by suspicious circumstances, and it was shown that possession of the land had been taken and held under the location mode, by virtue of these instruments. Held, that no additional evidence of their executors was necessary, and they were admissible as ancient documents.</p> <p>:•!. Same. — See. the opinion in eiUtnm, for exceptions, held, not supported by the record, and wherefore.</p> <p>4. Same — Decree.—Ai tide 1481, Pase., Dig., provides that, “in all cases when the. district or supreme courts shall decree ft conveyance of real estate or the delivery of movable property or effects, they may, by decree, pass the title to such property’ without any act to be done on the part ol'the defendant, when it shall be proper.” See the opinion for a case in which such a decree was entered under such circumstances as to come within the provisions of the statute.</p>

STATEMENT. This is an action of trespass to try title, instituted by appellants May 28th, 1872, as the sole heirs of Isaac C. and Emily G. Williamson, deceased, against George W. Wright and Jesse L. Garrett for the recovery of 757 42-100 acres of land, patented to Williamson and Bowevman, assignees of Thomas Tolbott,January 27th,1852, described by metes and bounds.

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

<p>Contract — Commissions—Fact Case. See opinion for foots involving these subjects.</p> <p>Agency. — When the constitutive act creating the agency is in writing the nature and extent of the powers conferred must be ascertained by the writing.</p> <p>Bat<Jication of Acts of Sub-Agents — JSvidence.—TAia question of the ratification by the principal of the acts of sub-agent is a matter of fact for the jury, as was also the question as to whether letters written to the sub-agent in the principal’s name, by a clerk were authorized by the principal.</p>

STATEMENT. Appellee brought his suit against appellants in the district court of Milam county, averring that he was seized and possessed on 21st, June, 1881, of 300 acres of land, a part of the one-third'league patented to the heirs of Mariana Moro, Jr., in Milam county, Texas.

STATEMENT. This suit was brought by appellant January 16th, 1879.

<p>Practice — Affirmance an Certificate. Hereafter the same caption as is prescribed in district court rule 87, for a transcript of a record on appeal or writ of error, will be required in eases for ailirmaneo without reference to the merits.</p>

<p>Probate of Will — Disqualification of County Judge — Jurisdiction—Where the county judge is interested in proceedings contesting the probate of a will he is clearly disqualified and in such case the district court has jurisdiction.</p> <p>Same___Failure to slate Value cured by Amendment____Failure to state the value of the property, in an application for probate of a will, can be cured by amendment, the object of the requirement only being for the purpose of estimating the amount of bond to be required of the executor.</p>

<p>Judgment — Record of — Evidence.—Where a judgment was offered solely to show the authority to issue the execution under which the property was sold, to render it admissible it was not necessary that it should have been recorded.</p> <p>Sheriff’s Deed — Presumption of Verity. — The law presumes that sheriffs and their deputies have the character which their acts import, and the burden of allowing to the contrary rests upon the person who denies it.</p> <p>Continuance. — When a person has full means of knowing what testimony will be used against him and fails to avail himself of such means, and goes into trial without it, in the absence of acts or declarations of the adverse party, calculated to mislead, he cannot be heard to complain.</p>

<p>District Judge — Disqualification of — Special Judge. — A district judge being disqualified to try a cause a special judge was appointed and qualified. The district judge exchanged districts with another judge, but when the cause was reached appellants objected to its trial upon the ground that a special judge had been appointed to try the cause. The cause was tried before the special judge, without objection, andit is now urged by appellant that it was error. Held, not to be error.</p> <p>Homestead Jjien, — Extension of time — New Notes and Deed of Trust. — ’Whore a deed of trust was executed on the homestead, when such transactions were lawful, it is sufficient upon which to base new notes and new deed of trust, executed even after the present constitutional inhibition against liens on the homestead.</p>

STATEMENT. Appellee, as plaintiff below, instituted this suit May 29, 1879, against appellant J. R. Johnson and Melvin Herring to remove a cloud from the title to 640 acres of land situated in Donley county, Texas; to quiet appellee in his title to said land; to cancel and annul certain conveyances thereto; to enjoin defendants below from using said conveyances as muniments of title to the land and from attempting to dispose of or sell or otherwise encumber the land under or…

Writ of error to the District Court of Jack County. STATEMENT. Calvert sued defendants in error February 6th, 1880, claiming that he preempted 160 acres of land in Jack County in 1878 by settling upon it as the head of a family. That the land was then vacant unappropriated public domain, and that he had twice made formal demand of the surveyor to survey the same for him, once in 1878 and once in 1879, but that the surveyor refused and still refuses to survey the same.

<p>Appeal from El Paso County.</p>

STATEMENT. This suit was brought, November 15th, 1875, by appellees against appellants, Sarah J. Armstrong and her five minor children. The action was trespass to try title, to recover from the defendants a tract of land in Bastrop county.

<p>Lien on Land — Subrogation.—A person holding-a junior lien, for liis own protection may satisfy a debt secured by a prior lien,and he will be subrogated to the rights of the holder of the prior lien, without becoming the owner of the land upon which the prior lien exists.</p> <p>Receivers — Appointment of — District Courts have the right to appoint receivers only when no other adequate remedy is given by law for the protection and preservation of property, or the rights of parlies therein, pending litigation in respect thereto.</p>

STATEMENT. Appellants claiming to act as the administratrix of the estate of M. L. Dalton, deceased, as plaintiff below, on the 11th day of January, 1877, brought this suit against appellants, defendants below, as partners under the firm name of Carson & Lewis, upon a certain promissory note as follows : “$2860.00, Gold. Palo Pinto, Texas, March 20,1876.

<p>Land Certificate — Evidence of Transfer. — Parol evidence of the conveyance of a land certificate is not admissible, where it appears that the transfer was made by an instrument in writing.</p> <p>Same — Land Office Copies. — Certified copy of a land certificate, made by the commissioner of the General Land Office, the original being on file in his office as a link in the chain of title to the survey of land which has been properly returned to that office, is admissible, and is subject to such objections as could be made.to the original were it produced.</p> <p>Same — Location—Junior Survey. — If the surveyor’s certificate does not show that the survey was actually made in the field, in a contest between a holder under such survey and a junior locator that it was so made, might he shown by other evidence than the surveyor’s certificate.</p> <p>Legislative Power — Headright Certificates. — See opinion for discussion on power of the Legislature to issue headright certificates.</p>

<p>Corporation Trustees — Ifo individual judgment against — Judgment cannot be rendered against trustees of a corporation in their individual capacity, unless they undertake to beeomo personally liable for the debt of the corporation.</p>

<p>Venue. — Where a suit was an action of debt upon a judgment the proper venue was the county of defendant’s residence.</p> <p>Lost Record — Averment need not be sworn to. — The averment in a petition of destruc - tion of a judgment need not be sworn to.</p> <p>Same — Statute construed. — Art. 4289 R. S. does not prohibit a party from setting up a lost or destroyed record and proving its contents as-at common law.</p>

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

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

<p>Community lístate — Sale by Surmor.--nCYie law imposes a charge upon the community property for the payment of the community debts, and the survivor is empowered to sell it for that purpose.</p> <p>Purchasers — Sow far Protected. — A purchaser under such sales is not hound to see to the application of the purchase money, but it is, however, essential to the protection of such purchaser that he pay a consideration such as does not give rise to the conviction that the sale was not fairly made, and it must be made without any eolluson between him and the seller to defraud other persons who are interested; and it must be made without the knowledge of any intention of the seller to misapply the proceeds.</p>

<p>Assignment — Verdict—Attachment— Where a jury finds that an assignment for the benefit of creditors is not fraudulent this court will hold that it was a valid assignment and passed title to the property for the purposes of the trust.</p> <p>Title having so passed, the property would not be subject to attachment.</p> <p>See facts of this case; and such defective record, as warrant a reversal of the cause.</p>

<p>Trial of right of property — When claim not available. — While a mere lien upon property taken in execution furnishes no ground for the interposition of a claim to the trial of the right of property, yet the facts here show an agreement in the nature of a complete sale and delivery superseding the prior mortgage, and as title had passed, the claim of third party could not attach. Vide said facts for such sale.</p> <p>Practice — Trial de novo. — Though no now counter claim or sot-off can he pleaded in county or district court on appeal from Justices of the Peace, still the issues may be changed on a de novo trial. 1 Tex. Law Rep. p. 618.</p>

<p>Appeal front Dallas County.</p> <p>STATEMENT.</p> <p>This suit was brought, Oct., 4th, 1877, by appellant Hughes, against W. M. Moon, sheriff of Dallas County and S.'W. S. Duncan to restrain the sheriff making a deed to Duncan for a piece of land which Duncan had bid off at a foreclosure sale made by the sheriff, and from receiving from him the amount of his bid.</p> <p>The petition set fourth, inter alia, that in June 1877, plaintiff had recovered against E. E. Gurdey and his wife, Y. Gurdey, a judgment for $666.89 and for foreclosure of vendor’s lien upon the land in question; that he had agreed with Gurdey that if hewould not appeal from the judgment, and would pay a part of said judgment in cash, no execution should issue upon this judgment without notice to him, and that Gurdey had paid, &c.</p> <p>But that without the knowledge of plaintiff the clerk had, on Aug., 22nd, 1877, issued an order of sale, under which the sheriff had offered the property for sale on Sept., 2nd, 1877, and defendant Duncan had bid off the same for $25. That neither plaintiff nor his attorney were present or knew anything of the sale. That plaintiff upon ¡earning these facts,did on the same day inform the sheriff and Duncan that the sale had been made by mistake and without the order of the plaintiff, and instructed the sheriff not to make the deed or to receive the amount bid. Whereupon the defendant Duncan tendered the amount to the sheriff and demanded a deed; and further that the sheriff, unless restrained by injunction, would receive the moneyjand make the deed to the irreparable damage of plaintiff. That the property is worth $1200, that G-urdy and wife are insolvent, and that this property is the only source from which he can collect his judgment against Gurdey and wife; that the money has not yet been paid or the deed delivered, that the order of sale is still in the hands of the sheriff. Prayer that Gurdey and wife be served with process and made parties, for the suit of injunction for judgment declaring the sale void,cancelling the same and for general relief.</p> <p>Petition sworn to and injunction issued same day.</p> <p>On the same day, Oct., 4th, 1877, the defendant answered by a general demurrer and a specific denial under oath of each and all the allegations in the petition, upon which plaintiff rested his claim for relief.</p> <p>October 5th, 1877 the defendant moved to dissolve the injunction because :</p> <p>1st. There are no equities on the face of the petition.</p> <p>2nd. All the equities set up are denied in the answer under oath.</p> <p>October 16th, 1877 plaintiff amended, setting out more specifically his grounds of his claim for relief, which will be stated hereafter.</p> <p>The amendment was sworn to.</p> <p>October 18th, 1877, the defendant Moon answered by a general demurrer and a general denial.</p> <p>On the same day the defendant Duncan filed a lengthy amendment under oath in which he denies the allegations of the amended petition.</p> <p>January 23rd, 1879, Gurdey and wife appear, and adopting the allegations of the original petition, pray that the pretended sale be set aside and for general relief.</p> <p>December 11th, 1879, the cause was submitted to the court without a jury. Judgment was rendered in favor of the defendants Duncan and Moon against plaintiff and the defendants Gurdy and wife.</p> <p>Their motion for a new trial was overruled and they appealed.</p> <p>Appellants assign the judgment as error, because :</p> <p>1st. The evidence shows that the sale was made through mistake, without the knowledge of appellants, for a grossly inadequate price, (to wit) for only one-fortieth part of its value.</p> <p>2nd. Appellants were not guilty of negligence in not attending the sale, because none of them knew that the order of sale had issued, and they had entered into an agreement that no such order should issue at that time.</p> <p>3rd. In holding that to set aside the sale for irregularity or mistake, there must have been irregularities or mistakes of the .sheriff or the purchaser, and that such irregularities and mistakes coupled with the gross inadequate of price, were not sufficient to set aside the sale.</p>

STATEMENT. This suit was instituted in the district court of Anderson county, on the 10th day of April, 1883, by Mrs. B. J. Blackshear vs. A. B. Hardin, for the purpose of procuring a decree to rescind a deed of conveyance made by said B. J. Blackshear to said A. B. Hardin, on the 25th day of January, 1882, conveying to said Hardin a house and land in the city of Palestine known as the B. Graham place.

<p>Appeal from Bell County.</p> <p>STATEMENT.</p> <p>This suit was brought by appellant against appellee to recover a half interest in a tract of land, of 133 acres, in Bell county, and for partition. The petition was filed Aug. 29, 1877.' Oct. 5, 1877, defendant answered by a general denial and plea of not guilty.</p> <p>March 26, 1878, W. J. McDowell intervened, claiming a half interest in the land.</p> <p>April 14, 1878, the defendant amended, setting out his title, and pleading limitation of three and five years, and valuable improvements made in good faith. He set up also that those under whom he claimed had many years ago purchased the certificate by virtue of which the land was located, and had held it adversely more than two years before its location, that they had procured the inssuance of the certificate and patent.</p> <p>There was no replication by plaintiff.</p> <p>April 6, 1878, there was a trial by the court, and a judgment for the defendant.</p> <p>Same day motion for a new trial by the plaintiff on the ground that “the judgment is contrary to the law and the evidence.” It was overruled and plaintiff above appealed.</p> <p>The assignments of error are as follows:</p> <p>1st. The overruling of the motion for a new-trial.</p> <p>2nd. The judgment is contrary to the law and the evidence, and is without evidence.</p> <p>3rd. The judgment is illegal, unwarranted and not responsive to the issues.</p> <p>The plaintiff’s chain of title was as follows :</p> <p>1st. Patent for the 133 acres, issued to the heirs of James Hannum, May 4th, 1861.</p> <p>2nd. Deed of trust by Elizabeth Daniel to Fred Sterzine for 66) acres of the tract, dated Oct. 10th, 1876. (Mrs. Daniel was one of surviving sisters of James Hannum, the other sister being Mrs. Elowry.)</p> <p>3rd. Deed from Mrs, Daniel, by Sterzine, trustee to plaintiff, dated January 26th, 1877. (Mrs. I), was at this time a widow.)</p> <p>The defendant’s chain of title was as follows :</p> <p>1st. Deed from J. B. Daniel and wife, Elizabeth Daniel to Anthony B. Flowry, for all the right title and interest in and to the bounty claim of James Hannum, deceased, for 320 acres of land, and to the donation claim for 640 acres to which Hannum’s heirs were entitled by reason of his having died in the service of the republic.</p> <p>This deed was dated. Feb. 12th 1853, and duly recorded in Bell county July 15th 1857.</p> <p>2nd. Deed from Anthony B. Flowry and his wife, Maria Louisa Flowry, to H. J. Wilson for certificate No.|1426 issued Dec. 5th 1853, to the heirs of James Hannum for 960 acres “bounty and augmentation, land,” the deed reciting that it was the same certificate or claim, one half of which James B. Daniels and his wife, Elizabeth, had conveyed to Anthony B. Flowry.</p> <p>3rd. Regular chain of title, from H. J. Wilson down to himself, all the deeds having been properly recorded more than five years before the beginning of this suit.</p> <p>Defendant bought the land in 1871. while it was unimproved, took possession in March 1872, and has resided upon it ever since, cultivating, using and paying taxes upon it.</p> <p>Mrs. Daniels testified by deposition she could not remember having ever signed the deed from Daniels aud his wife to Flowry; was satisfied that she had not signed it, because she had never received anything for her interest. In fact she had never signed the deed. She had seen it on file in the Land Office, but it was late in the evening, andjshe had not time to examine it; she could not say who signed either of the names to the deed. When asked (some time before this trial) if she would pronounce the deed a forgery she said no, she would not do that, but she had not signed it.</p>

<p>1. Judgment — Ver&ict.—A judgment unsupported by the verdict and the admissions of the pleadings, cannot stand.</p> <p>2. Practice. — In order to sustain a decree of the foreclosure of alien, it is essential that the existence of the lien should be admitted by the pleadings, or else affirmed by the verdict. See a state of case wherein it is held that the judgment decreeing a lien has no legal support.</p> <p>3. Jurisdiction of flic District Court. — The assertion of a lien upon land, whatever the value of the same be, is a cause of action committed by the constitution to the district court.</p> <p>i. Practice. — Where a lien was fixed by a statute in existence and a suit was then pending for its enforcement, before its repeal, a subsequent repeal of such statute did not effect the status of the case.</p>

<p>Appeal from Collin County.</p> <p>STATEMENT.</p> <p>Wilson instituted this suit against the railroad company, August 27th 1875, to recover damages for personal injuries, the killing of a horse and the destruction of the wagon. The case as made was in effect, about the 20th day of August 1875.</p> <p>He was driving his wagon along a public highway which crossed the railroad track in the city of McKinney, that on the side from which he approached the track that it was obstructed by freight cars standing on the siding, that he looked and listened for an approaching train before he undertook to cross, but neither saw nor heard any. About the time he was on the main track the engine struck his wagon, utterly destroying it, and killing one horse, also injuring himself severely.</p> <p>That there was no bell rung, or whistle sounded by those operating the train until just about the time of the collision.</p> <p>Claimed damages for injury to his person $25,000. For destruction of wagon $125. For killing the horse $50.</p> <p>On January 18th 1878, the case was tried, resulting in a verdict and judgment for Wilson for one thousand dollars. The ease is now before t,he court on writ of error.</p> <p>The errors assigned and relied upon are that the court erred in refusing instrutions asked. The verdict is not supported by the evidence and is excessive.</p>

STATEMENT. In Older to impart a clear understanding of the rulings of the court, so much of the inculpatory evidence as is not summarized in the opinion is here outlined. It was testified that, according to his own statement, the defendant went to the town of Weatherford on, April 29, the morning after the disappearance of Mathis.

STATEMENT. Appellee, Baker, brought this suit against Baines and wife, in the district court of Denton county, to recover the land described in the petition, on June 19th 1873; the case was subsequently removed by change of venue to the district court of Collin county. Baker claimed the land by virtue of a judgment against W. 0. Baines, in favor of John D. Scott & Co., for $416.50 rendered April 5th 1871, and alias execution, sale, and sheriff’s deed dated March 10th 1873.

<p>Action— Misjoinder. — It is no misjoinder of actions to seek a recovery upon a moneyed demand in a suit for the recovery of real estate, where the several causes of action grew out of the same transaction and were so intimately blended with each other that it was almost impossible to have a complete settlement of one without involving a consideration of the others.</p> <p>Challenge. — See this case for facts which do not show such antagonism between co-defendants as to entitle each to Bix peremptory challenges.</p> <p>Verdict. — When a finding of a jury, under the the issues submitted to them, could not possibly have been arrived at without also finding another fact not expressed but necessarily implied in the verdict, judgment can be rendered as if that fact had’ been positively found.</p> <p>Taxing Costs — Practice.—The matter of taxing costs is left largely in the discretion of the District Court. If, in the opinion of a party, this discretion has been Improperly exercised, it is his duty to call it to the attention of the judge below by motion, or otherwise, and not until such application has been refused can he complain in this court of the manner in which the costs have been adjudged or apportioned.</p>

STATEMENT, On May 6th, 1879 appellee brought this action of trespass to try title against appellant. The property sought to be recovered was described as lot No. 4 in block No. 241 situated in Corsicana. Appellee claimed the same by and through a conveyance from Mooney and wife.

STATEMENT. December 15th 1870, appellants brought this injunction suit in the district court against appellee as road overseer to retain and enjoin him from opening up a public road through their enclosed land in obedience to an order of the county commissioners’ court.

<p>Appeal from Hays County.</p> <p>STATEMENT.</p> <p>This was a suit brought by Hutchins against English to recover possession of a tract of land in form of an action of trespass to try title. The plaintiff’s title was derived under a sale made to one Herndon, trustee in a deed of trust made to secure the payment to said Hutchins of two promissory notes giving by said English, Isaac Marchant, and Austin A. Carvin, as joint purchasers and co-partners to said Hutchins for the purchase money of the land in controversy. One of the notes was given for $400 00 due at thirty days, and the other for $1200 00 due at two years. The notes, deed of conveyance of the laud from Hutchins to the makers of the notes, and the deed of trust, were all of even date, viz, the 31st, of August 1876.</p> <p>On the 23rd, of Eebruary 1877, the plaintiff became the purchaser at the sale of the propertymiade by the trustee named in the deed of trust, to satisfy the alleged unpaid portion of the $400 00 note; the trustee conveyed to him by deed, the said property, and he claims title through the same.</p> <p>The defendant defends against the plaintiff’s title on two grounds, viz : that the note of $400 00 was all paid except the sum of $25 00 which balance was tendered by defendant to plaintiff on the day and before the sale of the property, which tender was refused; and that the sale was made without the required notice of thirty days stipulated to be given in the deed of trust in case a sale of the property should be made by virtue of it.</p> <p>The cause was submitted to the jury; verdict for plaintiff; motion for new trial by defendant overruled, and defendant appealed, and assigned errors.</p>

<p>Community Property — Evidence.—When tlie only witness testifying on the point unqualifiedly states that property was paid for with separate funds of the wife, it establishes nprima facie ease for her upon which, if not destroyed by other evidence, she was entitled to n finding in her favor.</p> <p>¿Schedule — Failure to liccord does not invalidate wife's rights. — The wife’s failure, to file and record a schedule of her separate property will not have the effect of making her separate property liable to seizure and sale for the debt of her husband.</p>

<p>Disorderly Mouses — Jurisdiction of ¡Recorder's Court of the City of Dallas. — The new city charter of the city of Dallas, Texas, among other provisions, confers upon the recorder’s court jurisdiction of all cases for keeping disorderly houses within the city limits, concurrent with that of the county court. See special laws 18 Legislature pp. 25 and 20.</p> <p>Same. — Section 62 of the same Art. confers upon the city council the right to enact all necessary ordinances, etc., necessary to the exercise of such jurisdiction; to locate, restrain, punish, and control all disorderly houses of prostitution or assignation, and the keeper or inmates thereof * * * * with as great a penalty as the same are punished by the statutes of the State. Concurrent jurisdiction over such cases arising within the city limits is conferred upon the mayor’s court.</p> <p>Same. — Section 82 of the same Art. among other provisions empowers the city council * * * * to enforce such ordinances, rules, and police regulations, and to punish violations by fine or imprisonment or both, or by work on public streets, etc., * * * provided that no fine shall exceed §200, and no period of imprisonment shall exceed thirty days. Under these amendments, the city charter, on June 13,1883, enacted an ordinance punishing keepers of disorderly houses, which was a substantial re-enactment of Arts. 339, 310, and 341, of the penal code including the punishment assessed by Art. 341, to-wit: “By fine not less that §100, nor more than §500.</p> <p>Same — Constitutional Law. — Section 56 of Art. Ill of the constitution which expressly prohibits the Legislature from enacting a special law incorporating cities, towns, villages, or changing their charters, etc, is qualified by the first paragraph which Is as follows : “The legislature shall not, except as otherwise provided in this constitution, pass any local or special laws,” on the subjects prohibited. Section 5 of Art. XI of the constitution provides that, “cities having more than ten thousand inhabitants may have their charters granted or amended by special act of the Legislature,” etc. Meld, that the two sections of the constitution are harmonious; that the Legislature had the power, by special law, to amend the charter of a city of more than ten thousand inhabitants, and that in this case it will be presumed that the Legislature was satisfied that the city of Dallas contained the requisite number of inhabitants.</p> <p>Same. — It was objected that the ordinance of the city council was inconsistent with Art. 418 of the revised statutes which limits the power of the city council in assessing fines and penalties to $100 and imprisonment for fifteen days. Held, that the constitutional exception with regard to cities of more than ten thousand inhabitants,tafces such cities out of the purview of the general law whenever their amended charters provides a different rule, or confers a greater power than that given by the general law. See the opinion in extenso on the question.</p> <p>Same. — Further objection was made that the ordinance authorizing a fine of $500 was inconsistent with sections 21 and 82 of the amended charter, in so far as it authorized a penalty greater than provided by said sections. Held, untenable in as much as section 21 confers upon the mayor’s or recorder’s courts jurisdiction over disorderly houses, concurrent with the county court; because section 62 of the charter provides that such offenses maybe punished with as great a penalty as that authorized by the state law, and the ordinance is a re-enactment of that law.</p>

<p>Railway — Negligence—Evidence.—The immediate cause of the injury to a passenger was alleged to be a broken rail, which had been in that condition for some time prior to the injury.</p> <p>That the proof must correspond to the allegations, is well settled, but it is not perceived that the rule was violated in this case, for the immediate cause of the injury was proven as alleged by the witnesses for both parties, and the proof as to the bad condition of the road, prior and subsequent to the injury, all of which was alleged, was introduced for the solo purpose of showing a gross degree of negligence, and a wilful disregard for the safety of passengers by appellant, for the purpose of receiving exemplary damages.</p>

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

<p>Practice — Appeal Bond. — Where the appeal bond fails to describe the judgment appealed from, so as to clearly identify it, a motion to dismiss the appeal will prevail. See the opinion in illustration.</p>

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

<p>Practice - ■lioiO.rm s. — In nn acíioii of trespass to ivy title ill evidence of lawful defense is available under tin; idea of not guilty, except the statute of limitations, which nine.-, be specially pleaded. This provision of the revised statutes is but a re-enactment of the old law</p> <p>Same — 2'iaulia!/.—it has been he'd that in in addition : > the plea of not guilty a defendant jet up special defenses, ike eli'e-t of the plea of not guilty was merely to impose upon tlie piaintiff the burden of proving 1 ¡tie, at die same time confining-the defendant to his special defenses.</p> <p>Same. — It was also held that, when not guilty w.is alone jileaded, and defendant introduced evidence unde,r it, of conic.,.-ion and avoidance, the plaintiff would be permitted io introduce in confession and avoid.ove ol inch defense without assigning the same in pleadings.</p> <p>Same. — But it wav also lichi that the defendant pleaded noi guilty, and a special plea setting up title,and introduced evidence nude'- it. the plaintiff to rebut, must make necessary allegations in hi., pleading 11 ¡-..- imply a ipieotion of notice. The simple plea of not guilty give.- no notice, nor is 1 he plaintiff entitled to any, nor lias tlie defense any right to notice, ol v, hat will ho attempted in avoidance.</p> <p>¿'«me. — The rulo is} thereto re, ¡hat if -d ■! n Ufl" wishes to avoid a pica of which he has full notice, he must, in the proper vvy, inform tne opposite party of the man-manner in which ho proposes to meet it.</p> <p>Same. — When “not guilty” anda special plea other than limitation is interposed, the plaintiff cannot rebut evidence put in under the special plea unless ho makes proper allegations in his own pleadings, yet in avoidance of evidence admissible under the general issue, he can submit testimony without such allegation.</p> <p>Same. — See a ease wherein the defensive pleadings, amounting to notice, demanded counter allegations in order to .\.'b»it evidence in avoidance.</p>

<p>Murder — Evidence of Character of P.trig Assaallcd, is not as a general rule admissible; but an exception is that, in trials for homicide, where the evidence presents the issue of self-defense, the general character of the deceased may be proved by the defendant to show that he, the defendant, vas instilled iu believing; himself in danger of losing his life, or of ,.u t.iini'i • -. ‘riñas bodily injury from Hie deceased. Such proof is admis-'iblo when it will . m v to explain the actions of the deceased at the time of the killing, which m tUn mu-i lir.-l havcbc.cn established. Bee the opinion in extenso on the. question.</p> <p>Same — Practice—Evidence. -Iia : .1, ¡1,....' fa,v minute ■ before the killing', the deceased and the. defendant cvlii'u",. d ¡me., '.«rib, and that, tile deceased left; that one L. who was pre-nun with Un-, d. temían! shipped tile defendant's shoulder and told him to go ahead, saying that, he, L., \\..s with tile defendant, ¡md had the money to back him in whatever nc might do. itetd admissible, wiilinu reference to the cuestión whether or not L. was a co-cuin pinito'- Seethe opinion for a formulation of lliein'e. Note also, inference iu the opinion to oilier testimony, held properly admitted under the same rule.</p> <p>Hume — Tividena — Undo- article lot of the code of criminal ¡.roceduie the stale was properly per -.lifted t,, introduce in evidenc", in oi-cei- to sin tain objections,to the competency of a prollered wiineso, ¡m indictment ch irg-ing him as a principal in tile murder ot the deceased. Such imlictiiM-ie. hi .he absence of a contrary showing, is prfiiH facie evidence of the identity oí I lie two trensacUoi-s, and the trial court had judicial k-.iowiedve that lie pi «posed witness luid not as yet been tried upon that i- Uetment. It v as com.i-icnt .<>1-the ¡fate to Paov', aliunde the indictment, the witness’s participation iu lie act, and thus his incompetency to testify for the defence.</p> <p>Same — Charge 0 the Cour! E.jr'css Al o'ice. Bee tile opinion in extenso for charges of the trial court, upon tli ubjee.tof express malice held correct as abstract propositions of law, bu: llab!.-10 allow the jury to conclude that they were authorized to infer express malice without proof of such facts as would authorize the. inference..</p> <p>Same — Practice.—Seethe opinion in txienso for a charge of the trial court upon murder in tlic second degree, held deficient in not. complying with the rule that “inhrm-turns shor.hl not he presented in the form of abstract propositions, hut should he constructed upon the evidence in the particular case at bar.” Nevertheless, as tile objectionable charge was not excepted to when given, and no special initruction upon 1hc. subject u as asked, this court holds the objection not available in the present case.</p> <p>So,i,i — Si-if-])cfni>¡,:.~-Homicide is justiiiable when the party slain is in the act of committing an unlawful and violent attack upon the party killing, such as is calculated tn produce a reasonable expectation or fear of death or some serious bodily injury: and this is true though it should afterwards adpear that there was in fact no danger. A requested charge to this effect was refused. Held, error, inasmuch as tin-general charge did not present the principle fully, though it was invoked by the proof</p> <p>->!. /■- -I’/mri/e of !hr Court. — An essential rule of practice is,that when the. etidenee presents an issue favorable to the defendant, the trial court should not disregard it, hut. should accord to the accused, fully and fairly, the submission of the isMieto flic consideration of the jury. Omissions of this character cannot he treated as lmniai“rial. Upon evidence in this case the law of manslaughter should liare been explained to the jury.</p>

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

<p>Appeal from Erath County.</p> <p>STATEMENT.</p> <p>The charges of the court referred to in the fifth head note read as follows :</p> <p>“5th. The law is, gentlemen, that all persons are principal offenders who are guilty of acting together in the commission of an offense; and principals, whether jointly indicted or not, may be legally prosecuted and convicted as such, provided the evidence adduced against each clearly and satisfactorily establishes the guilt of each When an offense has been committed, to determine whether the persons charged with its commission are principals or not, the criterion is : Did the parties act together in the commission of the offense ?</p> <p>Was the act constituting such offense done in pursuance of a common intent, and a previously formed design, in which the minds of all of such parties united and concurred ? If so, then in law all are alike guilty, provided the offense was actually committed during the existence and in execution of the common design and intent of all, whether in point of fact all were bodily present or not on the ground when the offense actually took place.</p> <p>“If, therefore, the cattle alleged in the indictment to have been stolen were actually taked by some person other than the defendant under circumstances constituting such taking theft, yet, if the defendant acted together with such person in such taking, as to constitute him a principal therein, within the meaning of the preceding instruction, he would be guilty, and if you so find from the evidence, and should further find from the evidence that said cattle were at the time of such takiug the property of the alleged White, and that the same were so taken in the county and at or about the time laid in indictment, you will find the defendant guilty, and assess his punishment as before directed.”</p> <p>The motion for new trial raised the questions discussed in the opinion. The opinion of this court discloses the exceptions taken to parts of the evidence.</p>

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

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

<p>Appeal from Grayson County.</p> <p>STATEMENT.</p> <p>Campbell sued appellees upon a note for $500 dated June 9th, 1877, due on or before the the first day of December ©ext thereafter, and payable to Campbell and Boswell or bearer.</p> <p>Appellees answered admitting the execution of the note. And that they had employed Campbell and Boswell attorneys to prosecute for them an appeal in suit wherein--was plaintiff and appellees were defendants, and in which a judgment had been rendered against them in the district court of Grayson county, and in which a motion for new trial had been overruled and notice of appeal given.</p> <p>That the agreement between the parties was that if Campbell and Boswell prosecuted the appeal, then appellees were to pay them the $500 (for which the note was given), but if the appeal was not prosecuted, then the appellees were to pay so much as Campbell and Boswell’s services were reasonably worth. That on the day of the date of the note they compromised the case and no services were rendered and no appeal prosecuted by Campbell and Boswell, who had advised the compromise, and therefore appellees owed them nothing. Also that if the noté evidenced any other than the agreement asserted above then it was procured by the fraud of Campbell and Boswell, &c.</p> <p>Also that Campbell had abandoned the prosecution of the appeal as shown by his letter to appellee, McDonald, dated March 13 th, 1878, and refused to prosecute it further. That appellee G. W. and W. W. Aldrige and Harrison Dennis say that on the day the note was executed they compromised the case with the consent of Campbell and Boswell, and released them from further prosecuting the appeal. Appellant replied denying these averments, &c.</p> <p>On September 37th, 1879, the case was tried and a verdict returned and judgment was rendered for appellees.</p> <p>The errors assigned is as to the admissiom of evidence, and in the charge of the court.</p>

<p>Evidence — Fact Case — Tenant in Common. See opinion for unretratted evidence which demanded a verdict contrary to the one reached.</p> <p>Held in this case that the right of one tenant in common to recover the entire tract of land from a person having no title is not aflected by the revised statutes and that the rule laid down in Sowers vs. Peters, Austin Term, 1883, Croft vs. Rains, 10 Tex. 523; Watrous vs. McGuire, 16 Tex. 510; and that line of decisions is the true rule.</p>

STATEMENT. This action of trespass to try title was brought by appellant against John P. Whatley, W. C. McQlung and P. M. Beal, to recover about 900 acres of land in the Elijah Powers league, situated in Navarro county. Pending the suit Beal died, and his administratrix, Mrs. W. Beal, was made a party defendant.

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

<p>Charge of the court. A defendant in a felony trial is entitled to a distinct, and affirmative presentation of the issues which arise upon his evidence", in order to prevent the jury from ignoring his defenses, and to conduct them to proper verdict if they find his evidence to be true. However improbable his evidence may appear, it is his right to have the jury determine its truth or falsity in the first instance, without being forestalled by the court. Self-defense being an issue clearly presented by the evidence in this ease, the charge of the court should have embraced the law of the subject.</p> <p>Same — Practice. In a murder trial, wherein the evidence raised the issue of self-defense, the trial judge failed to charge the jury with respect to that issue. The defendant neither excepted to the charge as given when given, nor requested special charges appropriate to the question, but assigned as error in motion for new trial, the omission in the charge. Held, that under such circumstances, this court must determine first, did the court err in omitting to instruct the jury upon the principles of law governing self-defense ? Second, if such omission was error, was it calculated to injure the rights of the defendant ? See a state of case wherein it is hold that such omission was error, and such error was calculated to injure the rights of the defendant.</p>

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

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

<p>Murder — Proof of Character of Deceased. The rule laid down in Hoi-bach's case, 43 Tex. 242, defining the circumstances under which proof of the general character of the deceased maybe put in evidence by a defendant upon trial for murder, cannot he restricted to the one act of seeemingly attempting to draw a pistol or other weapon. The reason of the rule applies with equal force to any act reasonably indicating a present purpose on the part of the person slain to kill or do serious bodily injury to the slayer. See the opinion in this case for evidence held, admissible under this rule.</p> <p>Self-Defense — Charge of the Court. Note injthe opinion a chargeof tho courtupon the subject of self defense, held error; and also a requested charge upon the same subject presenting the converse of the principle as it was charged by the court, which requested charge was erroneously refused. Note also error in the refusal of a special charge upon the subject of the right of one to interfere and prevent, by killing him, the deceased from killing another.</p>

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

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

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

STATEMENT. The charging part of the indictment which is involved in one of the rulings of the court, reads as follows : “ * * * that William Donohoe, on the 6th day of March, A. D. 1882, in the county of San Patricio and State of Texas, did then and there commit deliberate and wilful perjury, in this, as follows to-wit: that while the grand jury of the county aforesaid were in session and were making inquiry of offenses against the penal laws, it became and was then and…

<p>Scire Pacías. — Practice. The sufficiency of an information to charge an offense cannot be assailed in a proceeding upon a forfeited, bail-bond.</p> <p>Same — Bail-Bond. It is sufficient to the validity of a bail-bond that it names an offense denounced by the code, and it need not contain the constituent elements of the offense named.</p> <p>Same. Scire facias is sufficient if its sets out that the defendant was charged with slander.</p> <p>Same — Citation—Judgment Pisi. “To show cause why said judgment 3hall not be made final,” is the proper citation in a judgment nisi.</p> <p>Same. It is an hypercritical objection, in an action upon a bail-bond,.that the citation issued during the term of the court at which judgment nisi was rendered.</p> <p>Same. Judgment final on a forfeited bail-bond cannot be rendered at a-criminal term of the county court,</p>

<p>Evidence — Practice. Where, in an action of trespass to try title, the plaintiff has based his right to recover upon possession, and there is a sufficiency of evidence to authorize a recovery, the action of the trial „court in admitting certain deeds and parol proof of title, will not be revised by this court where it does not appear that the rights of the defendant were prejudiced. In this case such proof was admissible to show that the plaintiff’s possession was under claim of title, and this, without referenee to whether the deeds actually passed or not.</p> <p>Same — Damages. An award of damages for the use and occupation of land, can. not.stand in the absence of evidence as to the value of such use and occupation. Note also, that in this case there is a total want of evidence upon which to estimate actual damages.</p> <p>Same. Note a state of case wherein the plaintiff was entitled, without further proof, to nominal damages, i. e., such as could be named, but not estimated by the proof. Note also that, the facts failing to show a taking of possession under such circumstances as to show wilful, vexatious and malicious proceeding, and authorize exemplary damages, a judgment for exemplary damages was ei’ror.</p>

<p>Trespass to try title--Evidence — Innocent Purchaser, etc. To entitle a subsequent vendee to bave a prior unregistered conveyance postponed to his subsequent conveyance it must appear : 1. That he was a bona fide purchaser. 2. That be purchased without notice, actual or constructive m the title of the prior vendee. It must appear that the purchase money was bona fide purchase money, and was truly paid : — a recital of that fact in the deed is not sufficient. It must be proved by evidence independent of the recitals in the deed.</p> <p>Same. Paymentof purchase money for land involved will not he presumed merely from the lapse of lime, especially in a case wherein the party setting up such fact is chargeable with knowledge of such evidence. Note a total absence of evidence to show want of notice of a prior unrecorded deed, and the payment of purchase money'.</p> <p>Same — Stale demand. Note a state of ease to which the doctrine of stale demand can have no application.</p>

<p>Custodia Legis — Conecrxion of goods that are in. Where gooás had. been seized under attachments, and a party claimed the same under the statute for the trial of the right of property and gave bond therefor, — held, that the goods were in the custody of the law even after they had been released to the claimant upon his claim-bond, and were not subject to be levied upon under an execution against the attachment debtor; — held, further, that the claimant was entitled to sue for and recover the value of the goads, thus seized andeonverted, although he had claimed the same under an invalid assignment made by the debtor.</p> <p>Exemplary Damagex. When the evidence fails to show that a conversion of property was attended with any of tlie elements which authorize the recovery of such damages, a judgment awarding them will be reversed.</p>

<p>Garryini] Weapons — Indictment. Under tlia provisions of the Revised Code upon this subject, itis unnecessary that an indictment should allege more than that the defendant did unlawfully carry upon his person, etc , the forbidden weapon. Under former laws the exceptions were, contained in the enacting clause, and it was requisite that each should he substantially negatived. It ivas never necessary to prove these negative averments, they being-exclusively matters of defense.</p> <p>¡Same. The defense set up the exception named in Art. 31Í) of the penal code, i. e. that the weapon was carried “upon his own premises.” The proof was that the property was occupied by a tenant under an unexpired lease, and the lease recited no reservation authorizing-the proprietor (the defendant) to enter upon it at will. Held, that the defense was untenable. See the opinion in extenso on the question.</p>

<p>Continuance — Diligence. Where a witness had been served with a subpoena duces tecum, one day only before the trial, commanding- her to produce on the trial a certain diamand earring in her possession, and she appeared as a witness in the ease and while oil the stand was asked if she had brought the earring,’and stated that she had not, because it had been sent out of the county before the subpoena was served on her, and therefore the defendant moved to continue the caseto give time to get the ring, Held, that the motion was properly overruled, the diligence used to obtain the testimony being insufficient.</p> <p>Same. The decision of a question like the one stated above, is in a large degree entrusted to the judge before whom the case was tried, and unless his ruling is clearly erroneous, it will not be disturbed.</p> <p>Common Carriers — Liability of. A common carrier is' liable for all losses of, or injuries to goods received by him for carriage, not occasioned by the act of God or public enemies, and this liability cannot he limited by contract.</p> <p>Fraud by shipper of goods — Legal effect of. Where a shipper of goods practices a a frand upon a carrier, either by his acts or omissions, as to the value of the goods fraudulently by concealing their value from the carrier, sucli fraud will operate to discharge the carries from liability.</p> <p>Fraudulent Concealment. The mere failure on the part of a shipper to inform carrier as to the value of goods shipped, would not per sebe such fraudulent concealment as to value, as would discharge the carrier from liability.</p>

<p>Penalty for Overcharge of Passenger Fare — Repealed. Article 4258 of the Revised Statutes was repealed hy the Act of April 10,1883. General Laws, 18 Leg. p. 70.</p> <p>Statutes giving new remedy. If a statute gives a new remedy not repugnant to, or. inconsistent with the old one, the latter is not taken away, but parties have their election between the two.</p> <p>Repeal hy Implication. Repeals hy implication are not favored, but a statute may he repealed by implication as held in this ease.</p> <p>Same. See this ease for rules by which to determine the repeal of a statute hy implication.</p> <p>Vested Rights — Retroactive law. The bringing of a suit vests in a party no right to any particular decision, and his ease must he determined on the law as it stands, not when the suit was brought, hut when the the judgment was rendered. And a cause must be tried under the rules of evidence existing at the lime of the trial, although different from those in force when the suit is commenced. The constitutional prohibition against retroactive laws does not effect these rules.</p> <p>Change of Law after Appeal — Ilffect of. When a case is appealed, and pending appeal, the law is changed, the appellate court must dispose of the case under the law in force when the decision is rendered.</p> <p>Retroactive Law — Vested Rights, with rule Defined. The rule with regard to the inhibition of the legislature to interfere with vested rights means only such as spring from contracts, or from the principles of the common law. Rights growing out of torts are not embraced within the rule; nor any claims to penalties imposed by law. No person can have a vested right in a penalty.</p> <p>Same. Whatever may be done by a retroactive statute regulating procedure, abolishing the jurisdiction of the court, or ehanginghr abrogating remedies, may, when practicable, he accomplished by a repeal, without contravening the constitutional prohibition.</p> <p>“Forfeit” construed. The word‘‘forfeit,” when used in a statute, is construed io mean a penalty, a punishment 1'or violation of law. When used in a contract it is not to he construed as a penalty.</p> <p>Penally — Repeal of Statute Denouncing. Article 4258 of the Revised Statute denounced a penalty, and when it was repealed, the right to recover the penalty no longer existed.</p>

STATEMENT. This was an action of t respass to try title brought by Sarah R. and O. R. Adams against Basil Hayden, James W. Hayden, C. B. Palmer and G. P. Palmer in the district court of Wilson county for the recovery of 640 acres of land, the same lying in said Wilson county. Toe defendants pleaded “not guilty,” and the statutes of limitations of three, five and ten years, with a suggestion of good faith and valuable improvements.

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

<p>Unrecorded Tille Bond — Stale Demand — Fact Case. Note st^te of f»ct« whisre title bond was executed twenty-eight years before suit under same, the consideration being the location and patenting of aland certificate, though it does not appear by whom it was located or by whom the patent was procured, and where it is held that the title bond only conferred an equity which the grantee therein in the proper time might have enforced if he had complied with the terms thereof, but whicn, under the circumstances, is a stale demand.</p>

Error from Lamar County. STATEMENT. This was a suit brought by D. H. Scott to recover, from J. L. and M. A. Dyer, in an action of trespass to try title, a lot of land in the town of Paris, claiming it under his purchase at sheriff’s sale under a judgment and execution, more particularly described hereafter, in favor of the plaintiff against the defendants as husband and wife. The defense was that the lot was the homestead of defendants.

<p>Bond for hire of a County Convict — Limitation. Tile maxim of nullum tcmpus occurrit regi cannot be invoked by a county in a suit on a bond for the hire of a county convict. The statute of limitations of four years will bar an action brought upon such bond, if tliat period has elapsed from the maturity of the bond to the time o instituting- the suit.</p>

<p>Service. — The objects of Articles 1230 to 1233 of tlie Revised Statutes was to provide for an easier and less expensive method of effecting service on non-residents than by publication, and at tbe same time to make certain that the defendant has full notice of suit, to carry out which, the statute must be given a liberal construction in disregard of technicalities.</p> <p>D'vorce — Jurisdiction.—The statutes of this State make the jurisdiction of the court in divorce suits depend upon tho bona fide residence of the plaintiff for six months next preceding the filing of such suit, in the county where the suit is filed.</p> <p>Same — Practice.—When the plaintiff in a divorce suit is shown to he a bona fide resident of the county, in Texas, in which the suit is brought, the State of Texas lias the right to pass upon the question affecting the material relation of the parties, no matter where were committed the offenses for which divorce is sought.</p> <p>Same — Pleading.—It is not improper to include in a petition for divorce general charges of cruelty, and follow them by allegations of one or more specified acts, which may or may not lie included in the general charge.</p> <p>t.Same.. — It is sufficient in a divorce suit to allege that certain acts of cruelty occurred between remote months like November 1877 and May 1878, especially when subsequent acts of cruelty are averred with great particularity. Wherefore the court did not err in overruling demurrer upon such ground, and in admitting relevant testimony upon such allegations.</p> <p>Same — Practice- An exhibit made part of the petition in this case showed that the New York bill of divorce was sworn to before a notary public of that State. Tbe presumption of law is, that the notary liad authority to take„the ^affidavit; and the same presumption exists in favor of the jurisdiction of the court in which the hill was filed. If tne officer had no authority to. administer the oath, and the court no jurisdiction, the defendant should have so alleged and proved.</p> <p>Same. — It was not improper to attach a copy of the bill to the petition, in as much as it constituted in part, the cause of action, and was in aid and explanation of the allegations of tbe plaintiff,</p> <p>Same — Pleadings, whether good or bad on demurrer may be read to the jury as such, if they have not been stricken out'on proper exception.</p> <p>Same — Condonation.—Eeeoneiliation does not bar a divorce suit based upon precedent outrages when the ill treatment has been renewed whilst the parties were subsequently living together, and again by acts of cruelty occurring since tjhe plaintiff became a citizen of Texas.</p> <p>Same. — The statutes of our State, with respect to cruel treatment, does not coniine such treatment to bodily harm, or threats of the same, but properly includes within the meaning of excesses, cruel treatment and outrages, insults or injuries to the mind or heart. Accusation of adultery preferred by the husband against the wife is good ground for divorce in this State.</p> <p>■ Same — lhideuce.—See the opinion for a review of'evidence held sufficient to sustain a decree of divorce.</p>

<p>1. Appellate jiorisdiction of this court, extends to a civil cause from the county eourt in. which the amount in controversy was $102.20.</p> <p>• 2. Jurisdiction of State Courts — Case stated. — The original judgment, which was the basis of the collateral judgment in this ease was a personal one against nonresidents of the State, obtained without personal service of citation upon the defendants within the State, and without hringing within the control and jurisdiction of the court any property belonging to the defendants. Held, that,such judgment was void for want of jurisdiction over the persons of the defendants.</p> <p>S. Judgment — Garnishment____To warrant a valid judgment In a garnishment proceeding there must be a valid judgment against the defendant in the original suit. In default of Such, the garnishment proceedings are void.</p> <p>4. lióte the opinion for judgment reversed and suggestion of such as should be rendered in a garnishment proceeding upon an invalid judgment.</p>

<p>1. Practice — Variance. In an action for damages arising out of a. wrongful levy of extraordinary process, the amount of actual damages claimed was $001), and the amount awarded was $400, upon evidente showing, by items, the amount to be $473. Because the proof by items showed the value of some of the items to be in excess of the amount claimed, and in otliers'less than the amount claimed, and yet not aggregating the amount claimed, though in excess of the amount awarded, it was objected that the proof failed because of' failure of the allégala and the probata to. correspond. Held, that the objection is futile.</p> <p>3. Pleading. That “by reason of the premises, plaintiff represents that said property has been wholly lost to him,” is an allegation in a petition sufficient to admit evidence of the deterioration in the quality and value of the property since the levy of the process. Plaintiff inlying alleged that his property was injured and claimed damages to the extent of liis injuries was entitled to show that extent, and how it was occasioned; and if such manner evidenced that the injury was malicious and without probable cause, it was legitimate to he shown in support of exemplary damages.</p> <p>3- Practice. Objection that the plaintiff was permitted to enter a remittitur on his judgment.of $100, attorneys fees, is hypercritical.</p> <p>4. Charge of the court was objected to because on the subject of damages the iudge instructed the jury that they could not find in excess of the sums claimed, meutioning the sums, instead of telling the jury that they should not exceed the amounts claimed in the petition.</p>

<p>Parties — Case Stated. The original suit was brought by R. & ). against Heard, Tuttle & Holloway on open account. Heard and Tuttle made 10 defense. Hollaway answered, admitting the indebtedness and pleaded specially that L. & H. Blum, through their agent, contracted in writting to protect him against any judgment then or thereafter against H. T.& H.fora certain consideration, and prayed that Blum be made a party defendant. Tire suit was instituted in Fayette county. Blum pleaded to the jurisdiction over his person of the Fay. tte county court, alleging that he was a resident of Galveston county. This plea, . hough fully sustained by proof, was overruled, and judgment rendered against H T. & H. in favor of B. <& D., and over against Blum in favor of Holloway. Held, ei ror, that the plea to the jurisdiction should have sustained, under the provisions o' article 1198, of the Bevised Statute. The rule is that “no person who is an inhabi ant of this State shall be sued out ef the county of his domicil®, except in certain en imerated eases,” in which exception the present is not included.</p> <p>Same — Memedy. Whether under the case as stated, Blum was or /as not a proper party to the suit he was in no way a necessary party, nor could H dloway’s rights be prejudiced by not making him so, but he could have mainta ned an independent action for breach of, or for specific performance of the contr ct.</p>

<p>Practice — Certiorari. In oriler to constitute a sufficient cause for certiorari the facts stated must show that either the justice of the peace had no jurisdiction to try the ease, or that injustice was done to the appelicant by the final determination of the suit or prooceeding, and that such injustice was not caused by his own inexcusable negligence. Unless these facts be shown the county court should dismiss the certiorari.</p> <p>Same — Jioidenee—Pmden of Proof. In au action against a railroad for the value of goods shipped and lost, the railway pleaded delivery at the place of destination. Held, that to be available such plea should be supported by proof, and the burden of producing such proof was upon the company.</p>

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

STATEHEHT. A term of three years in the penitentiary was the penalty adjudged against the appellant, who was found guilty upon an indictment which attempted to charge him with intent to commit rape on Ellen Braukmann. The opinion of the court sets out the charging clause of the indictment, which is adjudged insufficient.

<p>Argument-Right to open and conclude. A verbal admission of plaintiff’s right of action made by defendant’s counsel, after the close of the evidence in the case, does not entitle the defendant to open and conclude the argument. An admission of plaintiff’s cause of action which will entitle the defendant to open and conclude the argument must he made before the trial commences — must be specific, and must be entered of record.</p> <p>Admission of illegal evidence is not reaersable error when the admission of illegal testimony is not ground for reversal of a judgment when it is apparrent that no injury has resulted to the party objecting to it.</p> <p>Judgment for plaintiff in an attachment suit, where the verdict found that the attachment was wrongf Illy issued— Case stated. The suit was by attachment. There was a replevy of the property attached, by defendant. A plea in reconvention for damages by defendant, setting up wrongful issuance of attachment. The judgment was for the piaintifi to the amount of his debt, and for the defendant five dollars damages, and a finding that the attachment was wrongfully sued out. The judgment was also against the defendant and his sureties on the replevy bond, for the amount of the debt less five dollars damages, and all costs. Reid, that the judgment was correct. Ammon vs. Thompson, 34 Tex. 337, approved.</p> <p>Verdict. Where 'the evidence is conflicting as to the amount of damage sustained by the defendent by reason of the wrongful suing out of an attachment against his property, the verdict of the jury upon that issue will not be disturbed.</p>

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

<p>E.rdh.o,nge of lands — Election—Warranty. See this case for stipulations in mutual deeds in exchange of lands that controls the superadded warranty clause, as wonid give the party ousted the right of election to re-enter cupón the land, or to rely upon the warranty.</p> <p>A re-entry upon the land, under such election, would not constitute a breach of the warranty contained in such party’s deed.</p>

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

<p>Murder — Malice--Evidence. See tlie opinion for evidence admitted upon a trial for murder which was objected to upon the ground that, tending to disclose another and a pr.ior offense than that'for which the accused was on trial, was inadmissable but which is held competent as tending to establish malice.</p> <p>Same — Case stated. Before and at the time of the homicide, (on Monday) the defendant was shown to have worn clothes very much soiled. Over objections the State was permitted to prove that the defendant knowing he was being seal eked for by the officers, went to Henry Penn's house on the next night, broke open his trunk, and took therefrom a pair of pants, drawers and shirt. Held, under the circumstances of this case, the evidence was properly admitted. Seethe opinion in extenso on the question.</p>

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

<p>Homicide in seif defense. Articles 570 and 572 of tlie Penal Code define the circumstances under which homicide is permissible in the necessary defense of the person; and article 573 declares that in either case, the party whose person is attacked, is not bound to retreat in order to avoid the necessity of killing his assailant.</p> <p>Same. To prevent murder, rape, robbery, maiming, disfiuriug or castration, the slayer may kill at once without resorting to other means to prevent the injury. The rule applies likewise, in preventing serious bodily injury.</p> <p>Same. And when the attack is such us to produce a reasonable expectation and fear of death or some serious bodiby injury, the person assailed may act promptly without resorting to other means. The party assailed, however, is bound to resort to all other means save retreat, when tlio attack however unlawful and violent, is not such as to produce a reasonable expectation or fear of death or serious bodily injury, and the. killing must take place while the -person killed is in the very act of Tnnkinn- t,hp.*u5lSwfnl aitaclr. Note the opinion for distinction between Articles 570 and 572 of 1be Penal Code.</p> <p>Same — Practice. Unless an objectionable charge is excepted to, or additional charges asked, this court will not revise an erroneous charge, unless the error be of a character to prejudice the rights of the defendant.</p> <p>Same. Where the evidence indicates only murder of the first degree the court is not required to charge upon lower grades of homicide.</p>

<p>Contract — Failure of consideroMon — Case slated.--This was a suit brought by the appellant in the county court of Webb county, to recover from the appellee the value of a draft delivered to appellant by appellee for .certain cattle, payment of which draft was stopped by appellee after he had received the cattle on the warranty of appellant, and they had been seized by an officer of the United State» government as having been .smuggled from Mexico. The answer of the appellee admitted the appellant’s cause of action, but pleaded a total failure of consideration, averring in effect that he purchased the cattle and delivered the draft; that the appellant warranted the title thereto; that he thereupon drove the cattle to "Webb county where they were seized as smuggled property, of which appellant received notice; that appellant had notice, and that the said cattle had since been withheld from him. Appellee further pleaded in reconvention for damages. These pleas were excepted to by appellant, and the exceptions, except as to actual*-damages were overruled. The appellant insists that the appellee should not only have alleged a seizure,|but as well the judgment of a court of competent jurisdiction declaring the character of the cattle, and that appellant had notice, and an opportunity to come intojeourt andjjdefend his title, as provided by Art. 3076 of the U. S. Rev. Stats. Held,</p> <p>1st. That while the appellee .had the right to proceed under the statute named, he was not bo-und to ¡make such claim and have the same adjudicated before he. could set up a Sfailure,'of consideration in the contract as against the cause of action.</p> <p>2d. That the buyer may use a breach of. warranty as a defence in an action for the price, or he may maintain a direct action for damages for the breach without in cither ease giving notice to the seller.</p> <p>3d. That where propertyps taken from the buyer by a right superior to that conveyed by the seller, there is at once a breach of warranty and the right of the buyer to recover attaches at once.</p> <p>4th. That the seizure of the cattle by an authorized officer of the United State* was prima facie legal, and devolved the burden of proving it illegal upon the claimant, which burden the buyer was not bound to assume,|but he was competent to rely on his warranty.</p> <p>5th. That while the plea of failure of consideration is not so full as it might be it is sufficient to state a go»d and valid defense, and that the plea in reeonvention is sufficient to allege?resulting damages of the breach of the warranty.</p> <p>0th. That the charge of the court taken as a whole, and that the evidence is ¡sufficient to sustain the judgment. See the opinion in extenso, on the questions involved.</p>

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

<p>Prut lid — Gaxe Staled. TJie defendant toa prosecution for .theft under an indictment filed in V. County, pleaded thependencyof.au indictment for the same offense. The court overruled the plea, and the trial proceeded. Held, that the court did not err in its action in overruling the plea; that only two special pleas can be made to an indictment, viz : former conviction or acquittal.</p> <p>Sarnf. However, when constitutional rights are involved, the defendant could raise the issue by special plea.</p> <p>Charge of the Court. The case being one of purely circumstatial evidence, wherein the. defendant was found in possession of an animal without a hill of sale, the court charged the jury as follows : “Upon Ihe trial of any person charged with the theft of any cattle, the possession of such stolen animal by the accused without a written hill of sale or transfer containing- a specific description of such animal shall he prona facie evidence against the accused that such possession was illegal. Held, error. See f:S Texas Ct. App., (i(>3.</p> <p>Hnitlence. See evidence held insufficient to support a conviction for theft of an animal.</p>

<p>Adultery. The indictment in this case jointly charged the appellant and one Lydia Hubericlc with adultery. The parties severed, the female was first placed on trial and was acquitted. Upon being arraigned for trial, the appellant pleaded in bar of the indictment, that the acquittal of his co-defendant amounted to an acquittal of himself, in as much as adultery was a crime which could be committed only by two persons — a male and a female. Eeld, that the court properly overruled the plea. See the opinion in extenso on the question.</p> <p>Evidence. It was not error to permit the husband of the said Lydia to testify on the trial of the defendant, This was not a prosecution against the wife, and no circumstances could place her paramour in exception to the rule Whereunder the husband is disqualified from testifying against the Wife.</p> <p>Charge of the Court Failing to charge upon the presumption of innocence, the trial judge was requested to present such a charge, and declined. Seld, error.</p> <p>Same. The court erroneously charged that “circumstantial evidence is often as strong and conclusive upon the understanding as direct and positive evidence.”</p>

<p>Practice. Note in the opinion allegations of a petition held sufficient to state a good cause of action. Wherefore the eourterred in.overruling the general demurrer thereto. It set forth the conditions of the contract upon which the suit was based; a performance of the conditions thereof by the plaintiff; a breach of the same by the defendant, and the damages occasioned by the breach, and such was sufficient upon general demurrer.</p> <p>Contract of subletting a mail-route, bound the employee, (appellant’s principal) to carry the mail on said route for the full term of the contract. In the event of default appellee had the right, and it was his duty to employ some other person to perform the service upon as reasonable terms as possible, and if such terms were in excess of the contract with the defaulting employee, he would be entitled to recover such excess.</p> <p>Note the opinion for evidence held sufficient to support a judgment for damages for failure to perform a contract to transport mails.</p>

<p>Landlord and Tenant — This was a suit for reut brought by the appellants upon a contract in writing which amounted to a contract of tenancy, whereunder the appellee agreed to become the tenant of the appellants, attorning to them aa his landlords, and expressly acknowledging that he received-possession from them. Among other things defendant pleaded substantially, that when he executed the contract, sued upon he was in possession of the land as the separate property of his wife in part, and partly as that of H. That prior to Ihe contract appellants recovered a judgment against himself and others for the entire league of land with writ of possession. That his wife was not a party to the fauit. That when he executed the contract, he did so upon the information of appellants’ attorney, that the decree determined his wife’s interest, and in order to save his growing crop. Appellants excepted to the answer generally and specially in substance as follows : That the matter of the former suit constituted no defense to this; that the conversations with the attorney afforded no defense; that no relation to the attorney existed to make it proper for defendant to seek advice from him or act upon it: that his answer sought to change the action into a suit for land; that it sought to make a defense against his own written contract, by alleging title in other parties than himself. Exceptions were overruled and judgment for §128.91 was entered for plaintiff, that being the amount due on deducting the land claimed as the wife’s part. Meld, that the court erred in overruling the exceptions; that even if all matter» alleged in the answer be true, it is a well settled doctrine of law that the tenant cannot dispute the title of iftslandlord. T,—</p> <p>Same. — Exceptions to this general rule v'ould be, if the contract had been indued by the fraud or misrepresentation of the plaintiff or his agent, or if the contract had been made under a mistake as to a material fact. But this case is not brought within either exception.</p>

<p>'Payment of tares as presented under the statute of five years limitation is a fact necessary to be proved in order to sustain the plea, but it may be proved like any other fact, either by direct or legitimate circumstantial evidence.</p> <p>Jt, has been heretofore held to be sufficient proof of payment of taxes if the party pleading limitation relied solely upon a contract, obligating and binding him to pay the same, if with other facts it was sufficient for the purpose, and the jury from it believed that he in fact had paid the taxes.</p> <p>Whether oruol land had been rendered and assessed for any given year, and whether or'uot the taxes thereon had been actually paid are issues of fact to be submitted to the jury. > ■ .</p> <p>Oh questions of fart, where they have beeu fairly submitted t,o the jury who have rendered a verdict thereon and the judge who tried the ease has heard and refused a. motion for a new trial, this court will not interfere unless the verdict is manifestly wrong- and is clearly against the evidence. See this ease in illustration.</p> <p>This eou-rt will not act upon a question of relaxation of costs, until action has beeu taken, and a'decision had on a proceeding to retax costs in the court below. But sec the opinion of the court for suggestions as to the proper mode of procedure in the matter.</p>

<p>Practice —One of the plaintiffs, toan retío» of trespass to try title, being an alien, amUleraigning such title as she liad from a Mexican citizen who (lied in lSlti, the court did not err in overruling the exceptions of the defendant which presented the question . Aliens so claiming ean maintain actions for land in this State.</p> <p>•Pieuüiny — Practice..—It should appear in a replication or other pleading- seeking to avoid the statute of limitations set up in the answer that the plaintiffs were married prior to the hostile possession relied upon by the defendants, for if they were minors then the statute of limitations would run from the dates of their respective subsequen t marriages.</p> <p>Same. — If the plaintiffs were all covert when the action was brought, and married before ihey attained their majority, but after the hostile possession attached, they could not tack disabilities and thus avoid the bar.</p> <p>Same. — A pleading- seeking- to avoid a plea setting up the statute ofliinitations should state such facts as show that the statute could not have run. No such facts were stated in the cause.</p> <p>Note in the opinion the rule regulating the operation of the statute of limitations in the case of married minor females.</p> <p>y.okh nce.. — Note in the opinion a collocation of evidence of title mid adoption which, under the other facts in this case should have been permitted to go to the jury.</p>

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

<p>See the opinion for a statement of the ease.</p> <p>Practice —It is ordinarily true that the legal representative of a decedent’s estate is the proper person to maintain a suit to recover property of, or a debt, due to, an estate, but there are exceptions 1o this rule, even in cases in which heirs, or persons claiming rights derived from and through the deceased, are the persons suing. Sec the opinion for authorities.</p> <p>Same. — Snell rule, however, is not immutable, hut lias its foundation in the necessity for aft'oi ding protection to creditors of a decedent, which, in most eases, renders it necessary to place the estate and its control in the hands of a legal representative, freed from interference by heirs, legatees or devisees, while such representative is in the lawful discharge of Ills trust. This rule, does not however, exist for the benefit of wilfully defaulting debt ora to the estate.</p> <p>Estates of Decedents. — "it is a recognized rule of law that property vests in the legal representatives of an estate only in a qualified manner, and to a limited extent and only for a given purpose; and for all other purposes it is in the heir from the instant, of the death of the intestate.</p> <p>Same. — If it he true, as appears with reasonable certainty, that there were debts against the estate of Abercrombie, and it were true, as claimed, that there was no property subject to the payment of suc.li debts; that all the property if realized, would be consumed in the payment to the widow and minor child, allowances in lieu of exemptions, it would bring the ease within the exceptions covered by the authorities cited in the opinion, hut the district court has no jurisdiction to determine in an original proceedings whether such an allowance should be made, nor how much should be allowed; and in the absence of such power, it would he unable to tell whether or not a part, or even all of the money resulting from the judgment against Walker, (see the statement of the ease in the opinion) might not be required to be paid to the creditors. But the court below did not attempt the exercise of this jurisdiction.</p> <p>Same — Practice.—Three years had elapsed since the death of A. and no creditor demanded administration; over nine years since the return of the one execution against AValker. Under such circumstances the widow of A. and. lieiFs, could maintain a suit against a trespasser for damages, though there was no administrator, or any action to preserve the property.</p> <p>Same. —While it might be true that the judgment might, he technically revived by another than a legal representative, still the widow, under tile facts of this case, could maintain an action of debt for the preservation of her right, and the court would liave full power to protect the debtor from injury, if lie took the proper steps to invoke it. But see tile opinion oil the question, for the defendant’s status iu this ease.</p> <p>Same. — When there is no creditor and no administration, a court in the exercise of its equity jurisdiction, will sustain the suit of an heir for property, if it is shown tliat, there is no outstanding debts and no other heirs.</p> <p>Same. — The rule reduced, is that laid down in 2 Texas, 400, to the effect, that the interest of a legatee in the property bequeathed him, can in general, only lie asserted through tile legal representative of his testator, according to the laws regulating tlie estates of deceased persons. But that case recognises the exception to the rule in the following language : “Yet there are cases in which the rights of the devisee or legal distributee, ifce. &e. * * (Bee opinion, and Moore v. Morse, 2 Texas, 402.)</p> <p>Same.- — Without administration, tile survivor of a community estate may sell the property of tlie estate for the payment of debts, and thus destroy tlie title of heirs, and tlie right of creditors longer to look to it. (15 Texas, 148; 18 Id, 222, and other cases cited in opinion.) Being thus empowered, tlie surviving widow in this ease could preserve the title to tlie estate by ati action in her own name.</p> <p>Same. — Sunileonkip.—Tlie powers of a survivor in reference tó the. common estate, are, in many respects, similar to those of tlie survivor of an ordinary partnership, and that such a survivor could maintain an action of debt .on a judgment obtained in tlie name of the Arm during tlie lifetime of the deceased members, is beyond question. But see the opinion on tlie questions involved.</p>

<p>Appeal from Galveston County.</p> <p>'STATEMENT.</p> <p>The original suit was instituted August 9, 1877, by the appellants against one H. to recover upon a note for $1734. In addition to an attachment upon certain lots, they obtained a writ of garnishment against the Galveston city railroad company. The garnishee answered that certain certificates of shares of the said company, stood, at the time of service of said garnishment, in the name of the defendant H. upon the books of said company, but that James M. Brown claimed the same by previous transfer fr.om sáid H., and asked that Brown be made a party. October 5, 1877, Brown intervened by petition, claiming the shares as delivered to him in pledge and as collateral security, before said gurnishment, for money loaned to H., which was still owing, to pay which the stock was insufficient.</p> <p>Plaintiffs replied by denial, and by alleging that said railway had* under its charter, ¡authority to pass by-laws to regulate the mode of transfer of stock, and that when the transfer was made to Brown there was in force a by-law, of which Brown had notice, providing that stock could only be transferred upon the surrender of the certificate to the president or secretary at the office of the company, either of whom should see that the same was cancelled by writing “cancelled” prominently over the face of the certificate and erasing the name of the president before issuing a new certificate to be filed away.</p> <p>They further alleged that all shares of stock in said company contained upon the face thereof the stipulation that the same are transferable only on the books of, the company in person or by attorney, only upon the surrender of the certificate; that the said shares issued to said H. were liable to the plaintiff’s garnishment, who were creditors of H., because they were never transferred on the company’s books, or in any other manner so as to be binding against the plaintiffs; that the pretended transfer, set up by Brown, was fraudulent and void as against plaintiffs, who had no notice thereof, and that the said pretended transfer was secretly made, and contrived fraudulently to deceive, defraud, hinder and delay the just creditors of the said Hobby, wherefore the said shares were liable to the garnishment.</p> <p>The evidence showed substantially that the Galveston city railway was a body corporate; that it issued to said H. the stock described in the answer of the said company (garnishee); that at the time of issuance and at the present time was in force such a regulation as that embraced in this statement concerning the transfer of stock; that on the face of the shares there was such a stipulation as that alleged; that H. delivered to Brown, prior to the service of the garnishment on the company, the said certificates, with a transfer signed in blank, in which the name of Brown did not appear, as collateral security for the several notes; that on September 20 Brown presented the stock certificates to the secretary of the company and demanded that they be regularly transferred to him on the books of the company, which the secretary refused, because of the garnishment served on the 'Jth of August previously, at which time the stock stood on the books in the name of II.5 that the first notice,had by the company of Brown’s claim, was 011 September 20, 1877, when the secretary inadvertently, and not remembering the garnishment proceedings, made out.and delivered to Brown a receipt certifying, “that J. M. Brown is entitled to 5.28 shares of stock in the Galveston city railroad to be delivered upon surrender of receipt;” that plaintiffs had no notice of the transfer or attempted transfer.</p> <p>Under this state of the case the court gave judgment against H. by default, ordering the said certain lots to be sold, and on hearing of the intervention ordered that the said shares of said H. be sold as under execution, and the proceeds be first paid to Brown to the extent of his debt, and the remainder, if any, to plaintiff, to the extent of their debt after applping the proceeds of lots to be sold under attachment. The opinion discloses the assignments of error decided important or necessary in the determination of the case.</p>

<p>Chart/* of the mart. — It lias been heretofore held by this court that fraud, like any oilier fact, may be proved by circumstantial evidence. Hence, a chargé to that effect was not error.</p> <p>Saute. — Nor did the court- err in charging in substance that the sale, made by Farmer A Co. to Traylor, was void if made with intent on the part of the seller to hinder, delay or defraud creditors, if tlie intent lie known to tlie purchaser, or could have been known by the use of ordinary diligence, although the sale was made for a good and valuable consideration.</p> <p>Same— Erltlenre. — While it is true that the revised statutes provide that the title of a purchaser for valuable consideration shall not lie affected, unless it appear that lie liad notice of the fraudulent intent of his grantor, (Art. 24ti.lj but they do not say what shall he the character of the notice, whether actual or constructive,, or what shall he deemed sufficient proof to establish it.</p> <p>in its usual signification means tlie knowledge of all that is communicated to tlie purchaser, or that a proper use. of that information would enable him to ascertain.</p> <p>Same. — Under the old statutes tlie rule was that a knowledge of the, fraud on tlie part of tlie vendee must tic proved in order to avoid tlie consequences. Yet under that law it was held that it was the duty of tlie court to charge the jury in a proper case, that actual knowledge need not be proved, if tlie purchaser liad the means of knowing tlie fraud by using ordinary diligence.</p> <p>Charge, of the mart. — Tlie refusal of a special charge is not error when it is hut a repetition of a principle already given under a different form of expression. And especially is this so when to give, the charge, asked would give undue prominence to the question involved. Note a case in which the giving of the charges asked was not error. And note also charges given, which under the conditions of this case, are held correct.</p> <p>Practice.. — Tlie real question in tlie case was tlie right of W., L. At Co. to have the goods levied on for their claim against Farmer <fe Co. If they had such right, both they and the sheriff were justifiable in making- the seizure, and Traylor would have no cause of action against them. The verdict decided, in effect, that W., L- it Co were entitled to have the goo Is seized, whieli was equivalent to finding in favor of the defendant. A proper judgment entered thereon was not objectionable.</p> <p>Same — Ne.m trial — Diligence.—A motion for new trial was properly overruled, in as much as touching the desired testimony, tlie affidavit accompanying the motion failed to disclose the diligence used to procure it before, but merely alleged that due diligence had been used. Such is not a proper showing of diligence.</p>

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

<p>Error from Harris County.</p>

<p>Appeal from Fort Bend County.</p>

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

<p>While it man be rapanle-d ns settled ibid. tin; doi-lrino of camal ciirptoe applies to Miles by administrators, it can only lie belli to apply so fur ns lo effect a purchaser at an admin Istratov’s sale with notice of everythin'!: that be could have ascertained by the u»e of ordinary diligence. Bee this case in illustration.</p> <p>.1 chaiye of the court, in itself erroneous, will not, in a civil ease, be sufficient ground for reversal when no exception is taken, or additional instructions, or counter e.hnrjre asked, unless it clearly appears that 1 lie jury was misled.</p>

<p>Whether or not a citation is legal, tlie appearance of defendant, and answer, even' though the answer be subsequently withdrawn, will support a judgment by default. Such appearance and answer to the citation must he taken as a waiver of all defects.</p> <p>The payee of a note will not he permitted, tinder the laws of tills State, to sue for the use of the assignees, when the petition alleges the legal title and ownership of the note to be in the parties for whom lie sues. Suit however by a party having a legal title to the note for the use of the equitable owner can be maintained. See the opinion on the question.</p> <p>The. rule is, that when a defendant withdraws his answer, and suffers judgment to go against him for want of an answer, it is equivalent Jto a confesión of judgment.</p> <p>The rule governing judgments nil ¡licit is that the judgment must conform to the legal effect of the facts stated in the petition. The effect of the appearance-of defendant, and subsequent withdrawal of his answer, was to confess judgment in the amount made certain by*the petition. To this extent the judgment- in this ease is affirmed. But beiug in excess of the claim made certain, it is not reformed lmt remanded.</p>

<p>Attach,meat ÍAcns — Jurisdiction of (Jaunty Courts to enforce ondands — The doctrine laid down by this court in Shandy and Conrales v. Logeman, (1 Texas Law Reporter, (80) to the effect Unit a proceeding by attachment, where land is levied upon by virtue of the writ, is a suit to foreclose a lien upon land, and that the enforcement of such alien is beyond the jurisdiction of the county court, re-asserted.</p> <p>Same. — County courts as organized under the constitution of 1866, with respect to jurisdiction so far as lands were concerned, were inhibited only from trying actions of trespass to try title, or to enfoicc vendor’s liens. Though swept away by the reconstruction measures of the general government, the same provision was re-created by the constitution of 1876.</p> <p>Same. — Section 8 of Art. 5 of the constitution declares that the district ¿ourt shall have original jurisdiction of all suits for the trial of title to land and for the enforcement, of lions thereon. Section-16, while it says nothing about the jurisdiction of the. county court to enforce liens upon lands, expressly denies its power to adjudicate actions for the recovery of lands. Neither subject is mentioned in section 19, regulating jurisdiction of justice’s of the peace.</p> <p>Same. — hit. 1117, Rev. Stats., gives jurisdiction to the district court of all suits for the. trial of title to land, and for the enforcement of liens thereon. Art. 1164 specifically withholds such jurisdiction from county courts, and art. 1539, confers upon justice’s of the peace jurisdiction to foreclose mortgages and liens upon personal property when the amount in controversy comes within their jurisdiction. 1</p> <p>Same. — In Hillebrand v. McMahon (2 Texas Law Reporter, 65) the Supreme Court in substance construes these provisions to refer to such liens as were created by act of the parties; such as would, perforce, have to be set up in the pleadings of the cause wherein the foreclosure is sought, and not to such as were created by levy of attachment or other unwilling lien fastened upon the property without consent of parties by virtue of certain legal proceedings. From this doctrine this court dissents, and holds that a suit by attachment levied upon land, is a suit to enforce a lien upon land, jurisdiction to do which, is exclusively committed to the district court. This position is believed to be sustained by Art. 180, Rév. Stats., which provides that, ‘‘should the plaintiff recover in the suit, suck attachment lien shall he foreclosed as in ease of other liens,” But see the opinion for an elaboration ef the-question.</p> <p>Sequent — County courts have no jurisdiction to enforce attachment liens on lands.</p>

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