Volume 3 — Texas Civil Appeals Reports

<p>1. Dormant Partner—Parties.—A dormant partner can join in a suit by the firm, but the active members of the firm may maintain the suit alone.</p> <p>2. Bes Adjudicata.—In the former suit neither the pleadings nor charge submitted the note, the subject of the second suit, for consideration. In such case, that the jury may have considered the note in fixing the amount of their verdict, would not conclude the right to recover upon the note in a subsequent suit. See example.</p>

<p>1. Wife’s Liability for Necessaries. — The statute (Revised Statutes? article 2854) allows the wife to contract debts for necessaries furnished herself or children, and for expenses incurred by her for benefit of her separate estate. In order to bind her, she must either contract the debt or authorize it.</p> <p>2. Same — Husband Without Express Authority can not Bind the Wife’s Separate Property.—The husband, by virtue of his right under the law to manage her estate during coverture, can not bind the wife by contracts made for the benefit of her estate. As the husband, he is not such agent. His authority must be express, and will not be presumed because he is the husband.</p> <p>3. Same—Case in Judgment.—The husband contracted for the erection of machinery upon a farm, the separate property of his wife. It was done without her knowledge. Subsequently she, with her husband, signed a note for the cost of the machinery. In action upon the note, held, that neither the wife nor her property was bound.</p>

<p>1. Non est Factum — Denial of Partnership — Agency. — Action against the International & Great Northern Railway Company for damages to horses shipped at San Antonio, Texas, for Hannibal, Missouri. It was alleged that the freight contract with the shipper had been made by the Missouri Pacific Railway Company as agent for the defendant company, and of the Missouri, Kansas & Texas Railway, then operated by the Missouri Pacific Railway Company, and that it stipulated for limitation of liability beyond its own road. The injury was not incurred on the road of the defendant. The defendant denied under oath that a partnership existed between the said railway companies. It did not deny the execution of the contract. Held, that in such condition of the pleading the freight contract was relevant and admissible, although on its face it did not appear to have been executed by or for the defendant company.</p> <p>2. Duty of Carrier—Press of Business.—Where a carrier has received freight for shipment, it can not excuse delay by showing an unusual pressure of business. Such pressure may in some instances justify the refusal by the carrier to receive freight.</p> <p>3. Joint Obligors.—Under the pleading and the contract admitted the several roads were liable as joint obligors, and it was not necessary to the liability of the defendant that it appear that it received the freight charges, or a part of the profits of the freight shipment.</p> <p>4. Limitation of Liability by Railway Company to its own Lines. So far as the Missouri Pacific Railway Company is concerned, every line of road operated by it at the time it made such freight contract is to be regarded as a part of “the line of the Missouri Pacific Railway Company,” to which the liability was restricted. There being no denial of the execution by the defendant, it must be held as a joint obligor, and that the stipulated limitation did not end before the freight passed beyond the lines controlled by the Missouri Pacific Railway Company, which made the contract.</p> <p>5. Value — Damages — Case Adhered to.— Railway v. Greathouse, 82 Texas, 108, adhered to, in holding that the measure of damages for delay in delivering freight, is the difference between its value when delivered and what it would have been if delivered at its designation as it should have been.</p>

<p>1. Destroyed Record of Deed—Reregistration.—A destroyed record •of a deed ceases to be notice unless the deed be rerecorded within four years after such destruction. McGee v. Merriman, 85 Texas, 105; and O'Neal v. Pettus, 79 Texas, 255.</p> <p>2. Partially Destroyed Record of Deed.—If the partially destroyed record of a deed is defective as a conveyance, or if the certificate of acknowledgment remaining is not sufficient, the record is evidence of the vice in the instrument, and.the defaced record will not operate as constructive notice. See example. The defaced record is only notice of what remains, and if imperfect as record of a deed it is not notice.</p>

<p>Appeal from Medina. Tried below before Hon. Thos. M. Paschal.</p>

<p>1. Jurisdiction of District Court.—If a cause of action exists, and jurisdiction thereof is not conferred upon any other court, it is embraced within the jurisdiction of the District Court. Const., art. 5, sec. 8.</p> <p>2. Construction of Trust Deed — At Instance of Trustee.—In all cases of doubt as to what the law controlling the.effect of a trust deed is, and as to the conduct of the trustee under such deed, the trustee is entitled to instruction and direction from the court. In such case the trustee, by bill setting forth the facts and joining the proper parties, may ask the court for instructions touching his rights and duties under the trust.</p> <p>3. Trust —Case in Judgment. — Crosby conveyed $75,000 to Gamel in ¡trust for benefit of creditors holding claims in .amount of $60,000. Controversy .having arisen among the creditors and with the trustee as to the effect of the trust deed, the trustee had the right to invoke the aid of the court in its construction. The District Court had jurisdiction.</p>

<p>1. Recitals—Trust Deed and Sale.—In a trust deed was a clause, that the recitals in the deed by the trustee to a purchaser should be full evidence of the truth of the matters therein stated. In a deed made by the trustee to a purchaser were recitals touching the nonpayment of the debt, notices of sale, etc. Held, such recitals were binding upon the makers of the trust deed in suit against the purchaser.</p> <p>2. Proof of Agency—Circumstances.—In order to prove agency, and through such proof to affect the principal with knowledge of facts which would avoid a sale of the homestead of the grantors, who were husband and wife, it is competent to prove the letters and dealings between the principal and agent in other like transactions before and after, and the letters and declarations of the agent touching other like transactions. See example.</p> <p>3. Practice.—Where there is testimony, although apparently disproved, to support an issue, it is error in the court to withdraw the issue from the jury. See example.</p>

<p>1. Levy of Attachment upon Personal Property—Description.— All that the law requires is, that the property seized and levied upon shall be described with sufficient certainty to distinguish and identify it from other property of like kind.</p> <p>2. Same—Sufficient Description.—A return upon an attachment that the officer “ levied upon and took possession of all of a stock of dry goods, clothing, shoes, hats, caps, trunks, valises, and goods, wares, and merchandise, in a certain store house on lot 6 in block 22, in the town of Temple, Bell County, Texas, in the possession of J. Shapera,” is as certain as if it had given an inventory of the goods and merchandise within the building. Such description is sufficient.</p>

This was a suit by Smith against Meyer, Bannerman & Co., who resided in St. Louis, Missouri, to recover an alleged balance of purchase money for a town lot in McGregor, McLennan County, Texas, and to foreclose the vendor’s lien. The defendants held an account against Smith for goods furnished him in his business. A collecting agent of the defendants, finding Smith unable to pay, insisted upon his conveying his homestead to defendants.

<p>Authority of Agent—Construction — Estoppel.— Counsel were employed by a land owner to institute suit, and to recover the land. The land was held adversely under a tax deed. Counsel had full authority to do any and all things necessary to recover the land. This authority did not confer the power to abandon and release the claim of the owner. A letter from such counsel stating that the client abandoned his claim to the land would not estop the owner in asserting his title, even against one who had purchased upon the unauthorized disclaimer made by his counsel.</p>

<p>2. Findings of Fact —Maps.—In the testimony a witness illustrated his testimony by making a map. The map was not introduced in evidence. The judge in his finding of facts used said map. Meld, not error; he could adopt it, or have made another.</p> <p>Appeal from McLennan. Tried below before Hon. J. R. Dickinson.</p> <p>The map following will aid in understanding the opinion. Its original formed part of the finding of facts filed by the trial judge. It was made by a witness to illustrate his testimony, but it was not offered or admitted in evidence, and does not appear to be accurate.</p> <p> </p>

<p>1. Divorce—Admissions Excluded.—Article 2863, Revised Statutes, as construed by our courts, excludes proof of every statement or declaration made by a defendant to a divorce suit, tending to prove any of the grounds for divorce alleged in the petition by the plaintiff.</p> <p>2. Same—Acts of Defendant as Evidence.—It being alleged as ground for divorce that the defendant had communicated to plaintiff a loathsome disease, it was competent to prove that the defendant had employed a physician to treat himself and wife; to prove his declarations to the physician as to his own symptoms, but not as to those of his wife; to prove that defendant had sent a package of medicine to plaintiff, and to read the instructions accompanying as to the mode of using it, and to prove the nature and uses of the medicine so sent.</p> <p>3. Same—Husband Communicating Disease to Wife.—It was also competent to prove that the defendant was a libertine, and in the habit of contracting such diseases, and had done so at other times than as alleged in the petition. A man by debauchery may become so physically diseased as to render his. living with the wife insupx>ortable.</p> <p>4. Res Gestee—Case Approved.—McGowen v. McGowen, 52 Texas, 660,, adhered to, as to facts constituting res gestae. See example.</p> <p>5. Charge.—A charge must not assume as true a fact controverted by the evidence, nor give undue prominence to nor intimate an opinion upon the weight of the testimony. It was therefore improper to instruct the jury that “ an opprobrious epithet conveying the idea of a lack of chastity would to a wanton cause no pain, while applied to a pure and gentle wife, no tongue could tell the anguish, the shame, the sense of humiliation it would bring.”</p> <p>6. Charge on Weight of Evidence.—The rule is settled in this State, that any charge as to a presumption arising from a given state of facts, unless in those cases in which the law raises a conclusive presumption, in the nature of things, is a charge upon the weight of evidence.</p> <p>7. Condonation.—The question of condonation is a fact which should be simply submitted to the jury, and it was improper to cite in the charge a case or cases illustrating the defense.</p>

<p>1. Injunction will not be Granted where Legal Remedy Exists. Injunction was sought to restrain the prosecution of two suits in a Justice Court, one by each of two partners, for damages; one suit being for $19.25, the other for $19. Held, that the defendant could have had the suits consolidated, and the right of appeal existing in the consolidated suit, the injunction was properly refused.</p> <p>2. Injunction to Prevent Multiplicity of Suits. — The petition assigning no reason for an averment that the justice would refuse to allow a consolidation of the suits, other than his general incapacity or disinclination to decide justly in cases of this nature, this court will not assume, merely because alleged, that the justice would deny any right to the defendant in such suits.</p>

<p>1. Amendment—Same Cause of Action.—Attachment suit on a promissory note executed hy a partnership firm. Affidavit by defendant denyingthat he was a member of the firm as alleged. The plaintiff amended, alleging liability by the defendant to pay the note, for that he had for a valuable consideration assumed and promised to pay the same. Trial resulted in judgment for plaintiff for amount of the note; the trial court, however, refused to foreclose the attachment. This was error. The amendment did not set up a new cause of action, and foreclosure should have been decreed.</p> <p>2. Same.—Thecaus°eof action in both the original and amended petitions was the liability of the defendant to pay the note. The amendment showed liability upon a state of facts different from the allegations in the original petition.</p>

<p>1. Pleading —Equitable Title in Defense. — Action of trespass to try-title. Defendants answered, in substance, that the original grantee of the land, prior to its location, had sold and conveyed one-half interest in the land sued for to C., and that defendants by purchase from the heirs of C. held his interest in the land. Held, that under this answer it was competent to read a conveyance for half the land to be located under the certificate, to be located by C., and to prove that C. had located the land and procured patent. Such facts showed an equitable title.</p> <p>2. Certificate to Proof of Deed for Record.—The caption of a deed read: “Republic of Texas, County and Town of Jasper.” To the deed was annexed a certificate as follows: “ This day personally appeared before me, at my office, Gideon J. Goode, one of the witnesses to the within deed, who being by me duly sworn, upon his oath says, that John M. Taylor and Nancy N. Taylor, his wife, assigned the above deed in his presence, the said Goode. Given under my hand, at Jasper, this 10th day of November, 1838. [Signed] A. G. Parker, Co. Recorder.” The impress of the seal contained the words: “ Jasper County Court.” Held, that the certificate was sufficient. The property was community property.</p> <p>3. McMullen County—Record of Deeds.—It seems that the -registry of a deed was legal in San Patricio County, June 16, 1859, for land in McMullen County, not then organized or attached to an organized county, but which formerly had been included in San Patricio County.</p> <p>4. Equitable Title — Stale Demand. — The purchaser of an interest in land to be by him located, having located the land and paid the consideration, entered into possession in 1883, within less than ten years from the first act of repudiation by the holder of the legal title, held, that the doctrine of stale demand has no application, and can not defeat the superior equity of such purchaser.</p>

<p>1. Garnishment—Negotiable Paper not Due.—The holder of a negotiable note not due is not affected- by garnishment proceedings against the maker of the note. Such holder may sue and enforce payment after maturity regardless of such garnishment.</p> <p>2. Attorney Fee—Tender.—Upon the maturity of a negotiable note its holder by endorsement before maturity brought suit to enforce payment. The note stipulating for attorney fee in event of suit, the right to the attorney fee upon suit became fixed. The subsequent tender of principal and interest without the stipulated attorney fee was not a full tender.</p>

Tried below before Hon. W. A. Blackburn. This is an appeal from a verdict and judgment for $500 against the appellant for damages for wrongfully ejecting the plaintiff from its cars, on which he was a passenger. After having been thrust from the cars, and before reaching another in order to continue his journey, he was set upon and robbed (as alleged). For the loss and indignity suffered in the robbery relief was asked.

<p>1. Title by Limitation — Must Show Common Source, or that Title had. Passed from State.—In an action in form of trespass to try title for land in dispute by reason of an uncertain division line, it devolves upon the plaintiff, in order to recover upon ground of limitation of five years, to show that the title to the land had passed out of the State, or that the defendants claim under a common source of title.</p> <p>2. Adverse Possession Under Deed.—Where the same land is held by different parties under deeds to them respectively, adverse possession by one with the requisites prescribed by the statute of limitations will confer title as against the other.</p>

<p>Appear from McLennan. Tried below before Hon. J. R. Dickinson.</p>

<p>1. Collateral Heirs—Evidence of Title.—In action of trespass to try 'title by collateral heirs, the burden of proof lies upon the plaintiffs to show not only their relationship to the intestate, but also a reasonable probability that at the time of his death no one else was so related to him as would preclude them .from inheriting the property in question according to the laws of this State.</p> <p>2. Same.—It was reversible error to refuse a charge in such action, that it ■devolved upon the plaintiffs to produce some evidence that the deceased left ■neither wife nor child surviving.</p> <p>3. Charge Upon Weight of Evidence.—See charge held erroneous, as upon the weight of the testimony, and assuming that the deceased left neither wife nor child.</p>

<p>1. Pleading—Sufficient Allegations of Negligence.—A train was run along the side track at Gregory at the rate of thirty miles per hour; no bell was rung or whistle blown, and no means adopted to warn persons on the side track of danger. Gregory was a junction, and the side track was between the main track and the depot, and had to be crossed by passengers who arrived, as had appellant, on the other train, which was standing on the main track. It was reasonably to be anticipated that persons would be upon the side track and in danger of being injured, unless properly warned, from trains approaching at such a rate of speed. These facts show negligence on the part of the servants of appellee.</p> <p>2. Pleading—Allegations not Showing Contributory Negligence. Plaintiff had gone to the station from the train on the main track. On leaving the station he passed along the platform to the steps at its north end, and descending them found a pile of shells, placed there by the company, obstructing his further progress, and requiring him to step aside on the ends of the crossties on the side track, and after taking four steps he was struck and injured. Steam was escaping from the engine on the main track, so he could not hear the approaching train, and appellee’s servants saw and could have warned him, but did not, and he did not know that another train was due, but the servants of the company did. These facts do not show that appellant was guilty of contributory negligence.</p>

<p>1. -Will as Evidence. — The will of one who died in Georgia, and which was offered for probate there, is not admissible as evidence in Texas, unless a copy of the order or judgment admitting the will to probate accompanies it. A certified copy of the evidence upon which the will was admitted to probate is not sufficient.</p> <p>2. Right of Recovery by Heirs at Law.—There being allegation and proof that plaintiffs were the widow and children, and hence the heirs at law, of the owner of the land, judgment should have been rendered for the widow, the children having dismissed, because she showed that she was entitled to the possession of the land, and the defendant, so far as the record shows, was a mere trespasser. In the absence of a will, so far as appears from the record, she was entitled to a community interest in the land, and as against the defendant was entitled to recover upon the title by inheritance from her husband.</p>

<p>1. Injunction—Construction of Fiat.—Suit for damages for a wrongful injunction. Both parties were saw mill owners. The fiat of the judge commanded plaintiffs to desist and refrain from using their slab burner or elevator in the manner complained of in the petition for injunction, or in any other manner so as to cause appellees’ mill premises to be endangered by fire, or their business interfered with by reason of the smoke and fire from said burner or elevator. Appellants were not required to entirely stop the use of either their mill or slab burner, but only to so use them as to prevent the injuries complained of. They could have continued to use their mill and burner whenever it would not work the injuries specified. The only damage alleged was that they were caused by the injunction to stop running their mill for twenty-one days, to their damage $50 per day. The stoppage was voluntary, and the demurrer to the petition was rightly sustained.</p> <p>2. Same.—While courts exact strict and implicit obedience to their injunctions, the spirit of the writ is to be observed, and an act which does not violate that is not a violation of the writ, though within its letter. The objects for which the writ is granted are to be regarded, and its operation not extended by construction further than may be necessary to subserve them.</p>

<p>1. Principal and Surety—Surety, when not Discharged.—Beasley was surety on a note signed by Morris as principal, and defended upon the ground that Boothe knew that he was surety, and without his knowledge or consent agreed with Morris that if he would pay another unsecured note he owed Boothe, and the interest on this note sued on, that he would extend the time of payment for twelve months; and that Morris paid the other nóte and the interest on the note sued on, and thereby Beasley was discharged. The surety was held not discharged.</p> <p>2. Consideration—Release of Surety.—The payment of an overdue note and the interest on the second note by the principal, is not such a valuable consideration for an extension of time within which to pay the secured note as will release the surety thereon.</p> <p>3. Same—Notice to Creditor to Sue.—Shortly after the note matured, Morris was urged by Beasley to push the collection, and replied that he had extended the time of payment, in consideration of the payment of the $150 note and the interest on the other, and he would not break his word to Morris; when Beasley claimed that thereby he was released, and Boothe admitted that Beasley was released. Morris was solvent when the note matured, and insolvent when suit was brought. Aeld, the consideration for which the extension was granted was not a valuable one; there was no estoppel on Boothe by reason of his admission that Beasley was released, as it does not appear from the pleading that Beasley was thereby prevented from giving the notice in writing prescribed by the statute, and direction to the jury to return a verdict for the plaintiff was proper.</p>

<p>Brief must Conform to Rules.—The brief contains -five assignments of error, but no statement following any one of the propositions submitted. The court, under the discretion given them under Rule 45, disregards appellant’s brief, considers The case as presented by the brief of appellee, and a majority of the court being of opinion that the judgment should be affirmed, it is so ordered.</p>

<p>1. Citation—Wrong Seal.—The writ by which defendant was cited having the impress of the seal of another court than that from which the writ issued, must be treated as not authenticated as required by law, and placed him under no obligation to obey its command, or make defense to plaintiff’s suit,</p> <p>2. Judgment by Default—Wrong Seal.—Judgment by default having been rendered in the County Court upon a citation authenticated by the seal of the District Court, it was the defendant’s privilege to appeal and have the case reversed, and of this privilege the defendant could not be deprived by any proceedings in the County Court subsequent to the judgment.</p> <p>3. Final Judgment, Court Below has no Power over.—When a final judgment has been rendered in a ease, and the term of court has expired, the jurisdiction of the court over the subject matter of litigation is gone, and it has no power to set aside the judgment and hear the case anew for the purpose of correcting errors committed on the former trial. The power to revise and correct these judgments lies only in the appellate courts.</p> <p>4. Power to Correct Records —Two Final Judgments.—After it has lost jurisdiction by a final judgment, the power of a court to correct its records does not cease, but may be exercised even when the case has been appealed. But it was not the exercise of this power which was invoked by appellee, in his motion filed after the final judgment by default. That motion sought to have the previous judgment set aside, the cause reinstated upon the docket, and a second judgment rendered; all of which was done, and there are here two final judgments by the same court m the same case. All the proceedings herein had after the final judgment by default must be held void.</p>

<p>1. Attachment—Sufficient Affidavit.—The objection to the affidavit is, that it states that ‘"the defendants are justly indebted to said plaintiff,” without indicating which of the plaintiffs was intended. It sufficiently appears from the recitals in the affidavit that affiant appeared as attorney for C., C. & Co., and the closing part thereof, that plaintiffs will probably lose their debt, shows that the use of the word “ plaintiff ” was clerical error.</p> <p>2. Attachment—Sufficient Bond.—The bond was signed by A.V. Chapman and Lee J. Galley, by their attorney, L.; and by Ed. McCarty and W. C. Skinner. The name of the sureties was left blank in the bond. It is objected that the bond is not such an obligation on the part of W. C. Skinner and Ed. McCarty as is required bylaw. It has been repeatedly held, that the names of the sureties need not appear in the body of an appeal bond, and the same principles of construction apply to attachment bonds. There was no error in overruling defendants’ motion to quash the attachment.</p>

<p>1. Motion to Set Aside Judgment Sale of Land.—Appellee having a judgment foreclosing a lien against one Morrison, caused an order of sale to be issued to San Jacinto County for the sale of the land, and Hansbro became the purchaser at $12.80. Motion was made in Galveston to set aside the sale for inadequacy of price and irregularity and fraud in the sale, and for a resale of the property, and notice of the motion was served on Hansbro and Morrison. Held, the District Court of Galveston County had jurisdiction, and the sale was rightly set aside.</p> <p>2. Same—Jurisdiction of Court over a Stranger to the Judgment.—The right of a judgment creditor to apply by motion to the court in which his judgment was obtained to set aside a sale which, through irregularities in making it, has resulted in a sacrifice of the property, has been recognized by our Supreme Court in many cases. Courts of equity have .always entertained such motions. The reason for the exercise of such a power over a purchaser who is a stranger to the original suit is, that by a purchase under its process he submits himself to the jurisdiction of the court over such process, and becomes subject to its power to revoke an improper sale.</p> <p>3. Jurisdiction, How Obtained — Power of the Court. —The jurisdiction is simply that which the court obtained over the subject matter in the original action. By the rendition of the judgment it was not exhausted, but continued in full force in order to secure to the plaintiff the fruits of his recovery. It required the issuance and lawful execution of process, and involved the power to control the sheriff in the performance of his duty, and to prevent not only him but all other persons from abusing the writ. A purchaser under its writ took such title as he thereby obtained, subject to the power in the court to see that the sale was properly and lawfully conducted, and to revoke it if it was not.</p> <p>4. Jurisdiction over Resident of Another County.—The fact that the sale was made and the purchaser resided in another county, can not affect this power. To hold that it doeg, would cripple the power of the court to render complete relief to the party who had secured its judgment, and make its decrees dependent on the action of other tribunals for adequate enforcement. The statutes regulating venue have reference to original actions, and not to such auxiliary proceedings as are involved in the exercise of jurisdiction in cases over which it has already vested.</p> <p>5. Irregularities in Sheriff’s Sale.—It is the duty of the sheriff, in selling property, to make it bring as much as can be obtained, and to allow to persons desiring to purchase all reasonable opportunity to bid. It appears in this case that at least one person was prevented from bidding by unnecessary haste in closing the sale. The jury were warranted in concluding that the price paid was grossly inadequate; that this inadequacy was produced in part, at least, by failure of the sheriff to afford proper opportunities to others to buy, and that in a proper legal sense the sale was not fairly made.</p> <p>6. Remarks of Counsel.—Blum’s counsel, in his closing argument to the jury, said to them: -‘If you do not set aside this sale, old man Morrison will lose his land, and get a credit of only $3.50 on Blum’s judgment against him for over $1700.” These remarks were not probably calculated to have any improper influence. They were based upon evidence in the case, and the strongest complaint that could be urged against them would be, that they stated a reason for setting aside the sale of which appellee could not avail himself.</p>

<p>1. Plea of Coverture, When not Available. — When it appears that the plaintiff, a married woman, did not acquire the title to the land sued for until sometime after it had been in adverse possession of the vendor of defendant, her plea of coverture is unavailing to defeat the statute of limitation relied on by defendant.</p> <p>2. Limitation of Ten Years.—After having made a deed to third parties for a part of the land in litigation, Doss, by himself and tenants, continued in possession undisturbed by his vendee, and afterward again sold the land to Lewis, the defendant in this suit. Notwithstanding his deed to the Massieu heirs, Doss’ possession was adverse as to all others, and his second vendees, Lewis, could use such possession to maintain their plea of ten years adverse possession, although plaintiffs deraigned their title through said heirs; it appearing that the deed from Doss to said heirs was made in a compromise settlement of a disputed'boundary, and was claimed by Doss to have been fraudulently obtained, and his possession never surrendered.</p> <p>3. Suit to Recover Homestead—Wife not a Party.—This is a second suit. In the first the wife was not made a party. There was recovery of the land in the first suit by appellant. The wife was not bound by the first judgment against her husband for such of the land as was their homestead, and occupied as such when the first suit was instituted, nor for that part of it inherited from her father.</p> <p>4. Land Subsequently Purchased. — After the first judgment against the husband, he purchased the interest of two of the heirs in a part of the land now sued for, and which had been recovered by appellant in the first suit. As to that part of the land, the first judgment was conclusive against the wife, because, although used as a homestead at the time the judgment was rendered, it does not appear that title was acquired until after the institution of the suit, hence the homestead rights of Mrs. Lewis to such portion of the land were subject to the suit.</p> <p>5. Homestead Right—Abandonment.—The homestead right was not put in issue in the first suit, and the judgment therein was inoperative against the land occupied as such when the suit was instituted, and it could not be put in operation by a subsequent abandonment of the land as a homestead, and a charge on abandonment was properly refused. Associate Justice Pleasants concurs in the disposition of the case, but does not assent to the conclusion that the first judgment was inoperative on the part of the land used as a homestead.</p> <p>6. Appellate Judge, When not Disqualified.—This case was tried below before Hon. F. A. Williams, Associate Justice, when he was on the district bench; but it is the unanimous opinion of the court that he is not for that reason-disqualified to sit in this case.</p>

<p>1. Nonjoinder of Parties.—Service having been made upon one of two partners, and thereafter the partner served having died, and the plaintiffs having by supplemental petition suggested the death and procured service upon the other partner, with prayer for judgment against the partnership and the partner last served, the heirs of the deceased partner were not necessary parties, since judgment was not sought against them, nor against the estate of the deceased partner</p> <p>2. Surviving Partner—Plaintiffs’ Bights.—The fact that the surviving partner had not been originally served, and that she had not been joined, did not deprive plaintiffs of their right to make her a party after the death of the other partner, and to prosecute their claim against her and the partnership assets, she having the capacity to represent both for such purposes.</p> <p>3. Bes Adjudicata—Judgment in Garnishment.—The indebtedness sued on had been incurred to D. & Co., who assigned it to appellees and notified appellants thereof. Thereafter, appellants were garnished as debtors of D. & Co., and not pleading the assignment, allowed judgment against them in garnishment for the amount of the debt, but afterwards, with appellees, filed a motion to set aside that judgment, setting up the assignment of the debt before service of the writ, which motion was dismissed, by the court because it came too late, the court making no investigation into the merits of the case. This proceeding being pleaded as res adjudicata, was held unavailing.</p> <p>4. Same.—There was no adjudication of the issues presented in the case now at bar. The point decided upon the motion was, that the parties could not go behind the judgment which had been rendered in the garnishment case,because too late. Without going behind that judgment, the court had no occasion to investigate the title of appellees to the debt.</p> <p>5. Bes Adjudicata — When Parol Evidence Admissible upon Trial of that Issue.—Parol evidence, that upon the hearing of the garnishment. case the court, after hearing -the pleadings, announced that it came too late, and refused to hear the case on its merits, and that that was all that took place, was admissible. When the issues adjudicated are not shown by the record, and the effect of the judgment depends upon the ground upon which it is based, evidence is admissible to show such grounds, and as the record itself shows that no such judgment was rendered as would preclude appellees from asserting this claim, the admission of the evidence was harmless.</p> <p>6. Estoppel of Plaintiffs.—The statement of the attorney then representing the appellees, after the dismissal of the motions to set aside the judgment in garnishment, to the effect that he would not further assert appellees’ claim, was accompanied by the statement that he did not undertake thereby to bind his clients, but meant only as an attorney to withdraw from the case, and not prosecute it further, did not estop appellees. Appellants had no right to assume that appellees would not assert their claim, and in paying the money to plaintiff's in garnishment, upon the faith of such statement, they took the risk of such action as the appellees had the right to take.</p>

<p>1. Tenants in Common, Conveyance by.—Two out of five tenants in common, in 1872, conveyed to the two railway companies composing the International & Great Northern Eailway Company, to each, a right of way. The interest of the other tenants in common in the right of way is now sued for. By partition between them, made after the sale of the right of way, the tenants in common equally divided between them the remainder of the 580 acres tract out of which the right of way had been sold. Held, that having by theii subsequent partition put it out of their power to have any other partition with the railway company, they could not recover.</p> <p>2. Deed of Tenants in Common.—While it has been held that the deed of a tenant in common for a portion of the land by metes and bounds is void, the recognized doctrine in this State is, that such a deed will convey an equity which the grantee has the right to assert in a suit for partition, if it can be done without prejudice to the other tenants in common.</p> <p>3. Cotenancy—Effect of Partition.—Plaintiff shaving, by making partition of the remainder of the land to which the railway company was not made a party, put it out of their power to have such partition with defendant as would recognize its right to have the land in controversy set apart to it, such proceedings must be deemed equivalent to a recognition of the right of defendant to have the land set apart to it, because all the rest of the land has been appropriated.</p> <p>4. Bight of a Purchaser of Less than the Whole of the Cotenant’s Interest.—The right of the vendee of a cotenant to have'the land conveyed to him by metes and bounds set apart to him, if it can be done without prejudice to the interests of the other cotenants, being recognized, no reason is perceived why the same principle should not apply to a less interest than the entire estate of the cotenant.</p>

<p>1. Priority of Liens—Case in Judgment.—Appellant became the owner of a note for $269, executed by Jordan, and secured by a vendor’s lien upon the land in controversy. Having sent it to a bank in Houston County, where Jordan resided, for collection, at the request of Jordan, Tunstall paid the note to the bank, and the cashier transferred the note to him, and upon it he afterwards sued, obtained judgment foreclosing the vendor’s lien, and at the sale of the land became the purchaser. Prior to the suit, Jordan executed a trust deed to Kempner on the same land, to secure another debt, in which it was recited that the lien of the $269 note had been paid. Kempner was not made a party to the foreclosure suit of Tunstall. Held, that the endorsement of the vendor’s lien note to the bank by Kempner for collection restrained its negotiability, that Tunstall had notice of the character of the endorsement, and that the lien of Kempner’s deed of trust was superior to the rights of Tunstall to have satisfaction of his note out of the land.</p> <p>2. Pleading—Right of Subrogation Must be Claimed.—It will not be necessary to determine what right Tunstall had to be subrogated to the right of the payee of the note, and maintain a cause of action against the maker thereof. He claimed no right of subrogation, and only set up title to the land, and was not entitled even to the relief awarded him in giving him judgment against Jordan for the amount due on the note, and foreclosing his lien.</p> <p>3. Endorsement for Collection Restrains Negotiability.—The note was endorsed for collection only, and this had the effect to restrain its negotiability. It prevented the further circulation of the paper, and the bank cashier had no right to assign it.</p> <p>4. Ratification of Endorsement—Receiving Proceeds. — The fact that Kempner retained the money received by the bank from Tunstall, can not be regarded as a ratification of the assignment of the vendor’s lien note, because he could not be restored to the position he was in before payment. He had no notice that the note had been assigned until long after he had, in accordance with an agreement made with Jordan to extend the time on his unpaid notes, taken the deed of trust' on the land. He received the money in satisfaction of the note, and was authorized to regard the transaction as payment.</p>

<p>1. Negligence—Cause of Action.—Where a cotton compress company received certain cotton to be compressed and shipped for plaintiffs, and placed the same on a platform in close proximity to railway tracks and passing engines, and the cotton was there destroyed by fire, a petition stating the facts showed actionable negligence, and a general demurrer thereto was improperly sustained.</p> <p>2. Charge of .Court not on Weight of Evidence. —A charge of court as follows, “Did the plaintiffs, in placing their cotton or having it placed on the platform of the compress association, act as an ordinarily prudent man would have acted, taking into consideration its surroundings, its proximity to passing engines, etc., the purpose for which it was placed there, etc.,” is not subject to complaint as being a comment on the weight of evidence, and giving undue prominence to particular facts as constituting contributory negligence.</p> <p>3. Charge of Court—Preponderance of Evidence—" Satisfied.”— Where a charge of court to the effect, that before plaintiffs could recover, the jury must be satisfied from the evidence that defendant’s negligence caused the fire, and that plaintiffs were not guilty of contributory negligence, was qualified as follows, “And the destruction of the cotton by fire under this clause may be shown by circumstantial evidence sufficient in your opinion to justify the belief that the fire was caused by a spark or cinders coming from defendant’s engine,” this latter clause sufficiently indicated to the mind of the jury that by the word “satisfied” nothing more was meant than opinion or belief; and the charge as an entirety does not present reversible error.</p>

<p>Venue—Fraud as Conferring Jurisdiction.—The fraud which, under the seventh exception to article 1198 of the Revised Statutes, will authorize a defendant to be sued out of the county of his residence, means fraud in reality, and an ordinary refusal by the defendant to comply with his contract is not such fraud as comes within the meaning of this statute.</p>

“ The court finds, that during the year 1883, and until succeeded by Mr. C. Estes in November, 1884, plaintiff was the duly elected, acting, qualified treasurer of Callahan County, Texas; that in… Held: the court further finds, that plaintiff, J. G-. McDonel, made no claim whatever for such commissions until sometime during the year 1889, when he, for the first time, went before the Commissioners Court and offered to take $400 as satisfaction in full of his commissions.

<p>Res Adjudicata — Plea not Well Taken, When. — W. and others brought suit against C. and S. as individuals to cancel a deed of land as a cloud on plaintiffs’ title, and the suit having been dismissed as to C., a judgment was rendered therein in favor of S. Held, that such judgment was not a bar to a subsequent action of trespass to try title brought against W. by C. and S. as partners, to recover the same land.</p>

<p>Res Adjudicata—Homestead Right Concluded by Judgment in Partition.—In a suit for partition, the question as to whether the land involved is the homestead of the defendant and his family, and therefore not subject to partition, is fairly within the issue, and a judgment for plaintiff therein is a bar to defendant’s subsequent assertion of homestead rights in the property, as against one who purchased it at a sale made under such judgment for the purpose of effecting the partition.</p>

<p>Injunction Restraining Execution Sale—Cloud on Title—Multiplicity of Suits.—A petition for injunction, alleging that four lots, the property of plaintiff, had been levied on under an execution issued in a suit to which plaintiff was not a party, and that a sale thereunder would cast a cloud on plaintiff’s title, and probably result in a multiplicity of suits, will not support a judgment restraining such sale, since the facts stated do not show that the sale could create a cloud on plaintiff’s title, and in such case apprehension of a multiplicity of suits will not alone afford ground for the injunction.</p>

<p>Community Property—Right of Wife to Sell Land when Abandoned by Husband.—A wife who is abandoned by her husband has the right to sell the community homestead on which she and her children reside, in order to raise the funds necessary to pay off a judgment enforcing a trust lien for purchase money against the land, where she has no means from which to make such payment other than the land itself, and in such case her deed alone conveys the full title.</p>

<p>Master and Servant—Risks of Employment—Negligence.—Plaintiff, a locomotive engineer in the employ of defendants, received injuries from the derailment of his engine at night, caused by its coming in contact with a cow fastened in a bridge on the railway track, with her legs down between the ties. Less than three hours before that time the track over the bridge was clear of obstruction. Held, that the evidence did not show defendants to have been guilty of negligence; and also, that the accident was within the assumed risks of plaintiff’s employment.</p>

<p>Error from Mitchell. Tried below before Hon. William Kennedy.</p>

<p>Telegraph Company—"^"aiver of Printed Conditions.—In an action against a telegraph company for delaying a message not written on one of its printed blanks, but attached thereto without the sender's knowledge or consent, evidence is not admissible to show a regulation by the company and instructions to its agents requiring all messages presented 'to it to be attached to one of its printed blanks containing the conditions on which it received messages for transmission, since the agents -may bind the company without imposing the conditions in the special contracts evidenced by its blanks.</p>

<p>1. Practice—Order of Trial.—The court did not err in requiring defendant to go to trial on the second day of the term, though the case was a jury case, and though no day had been fixed for calling'the jury docket; it nowhere appearing that defendant was in any way injured by such action of the court.</p> <p>2. Evidence—Fact Case.—In an action against a railway for injuries to a fireman resulting from a collision of trains caused through the incompetency of a drunken engineer, it was permissible for a witness to testify as to the daily-amount of whisky drunk by the engineer at and about the time of the collision, though the witness did not know the engineer’s general reputation for temperance or intemperance, and though it did not appear that the facts so testified.to by the witness were communicated or known to the defendant company.</p> <p>3. Charge of Court Assuming Fact.—It is within the province of the court to assume'in its charge the existence of an undisputed fact.</p> <p>4. Charge of Court—Immaterial Error.—That the charge of court, in the terms used, confounded a default growing out of an omission with a default, growing out of an act, is not material, where the jury could not have been misled thereby.</p> <p>5. Charge of Court — Negligence and Incompetency of Fellow Servant.—A charge of court, that if defendant had not been reasonably careful in selecting a competent engineer, and the collision had resulted through his-“negligence,” without plaintiff (a fellow servant) contributing thereto, plaintiff might recover, though erroneous in itself, was not reversible error when taken with other instructions denying recovery unless the injury was shown to have resulted from the “ incompetency” of the engineer, and such incompetency was known to defendant, and unknown to plaintiff.</p> <p>6. Charge of Court—Measure of Damages.—A charge that the jury might assess the amount shown by the evidence to be due plaintiff, and that they were the sole judges as to the amount of damages and the extent of the injuries, taken with an instruction that in estimating damages they were to consider physical and mental pain, character of injury, effect upon health, capacity for labor, etc., was sufficiently specific to indicate that only compensatory damages-were to be awarded.</p> <p>7. Special Judge—Waiver of Disqualification.—The action of the parties in trying a case, without objection, before a special judge, is in itself an agreement by them to submit the case to him as special judge, and objections as-to the propriety and efficacy of his appointment can not thereafter be made;</p>

<p>1. Exemplary Damages may be Recovered Alone, When.—Where actual recoverable injury has been sustained by plaintiff and settled for by defendant, without including in the settlement any claim for punitory damages growing out of the same transaction, a recovery of actual damages, whether nominal or substantial, is not a prerequisite to the recovery of the exemplary damages.</p> <p>2. Practice on Appeal — Assignment of Error.—An assignment of error, that “the court erred in refusing to give in charge to the jury the four special instructions asked by defendant,” is too general to require consideration of the propositions submitted under it.</p> <p>3. Judgment for Exemplary Damages Exceeding the Amount Claimed—Remittitur.—Where plaintiffs in their petition claimed $640.60 as actual damages, and $1050 as exemplary damages, and obtained a verdict and judgment for $1 actual damages, and $1800 exemplary damages, it was held that the error would require a reversal, unless plaintiffs (appellees) filed a remittitur of all damages recovered above the sum of $1050.</p>

<p>Appeal from Ellis. Tried below before Hon. Anson Rainey.</p>

<p>Appeal from the County Court of Erath. Tried below before Hon. H. H. Harding.</p>

<p>1. Parties to Suit Against Surviving Partner.—In an action against a surviving partner for a firm debt, the executors of the deceased partner are not necessary parties, since the dissolution of the firm by the death of such deceased partner did not affect the liability of the surviving partner.</p> <p>2. Same —Executors of Deceased Partner.—Nor in such action are the executors of the deceased partner proper parties, since as to them the creditor can pursue his remedy only in the Probate Court.</p> <p>3. Execution Against Partnership Assets.—In such action execution is properly awarded against the partnership assets, despite the fact that the surviving partner may have delivered them over to the executor of the deceased partner, since he could not lawfully surrender their possession and control to the prejudice of firm creditors.</p> <p>4. Proof of Lost Note Held Sufficient.—See the opinion for evidence held sufficient to establish the execution and loss of a promissory note sued on.</p>

<p>Conveyance in Fraud of Creditors—Instruments Construed Together.—P. was owing B. §5900, and by written transfer conveyed to him his stock of goods, worth §3300, and also, on the same day, all his notes and accounts, by a separate writing reciting that this was to further secure the debt. Other creditors of P. levied on the goods and attacked the transfer thereof as having been made in fraud of their rights. On the issues thus raised, held:</p> <p>1. That the transfer of the notes and accounts should be considered in connection with that of the goods, and that the two instruments should be construed together as parts of the same transaction, in determining whether the value of the property transferred was not greatly in excess of the debt to B.</p> <p>2. Even if the transfer of the notes and accounts be taken as a mortgage, yet if the value thereof, together with that of the goods, greatly exceed the debt to B., it would at least be a badge of fraud in fact where such fraud was alleged in the pleadings.</p>

This was a suit instituted by Sallie J. Riggs, joined by her husband, W. S. Riggs, against J. P. Pope and G-. I. Pope, to remove cloud from title and quiet the possession of Sallie J. Riggs in 10 acres of land in controversy.

<p>1. Exhibits in Pleading—Variance.—In an injunction suit to restrain the defendant from infringing the trade mark of the plaintiff, the petition by exhibits set out the trade mark and the alleged imitation, with appropriate averments to that effect. Objection being urged to the introduction of the plaintiff’s trade mark, on ground of variance between it and the general description given in the petition, held, that as the exhibit fully described the trade mark, the objection was not well taken.</p> <p>2. Resemblance in Trade Marks. — The court properly charged the jury: “In determining whether there is such resemblance between the packages of tobacco packed by the plaintiff and those sold by the defendant, you are charged, that if defendant’s packages, in shape, color, material of packages, size, marks, and devices, should so far resemble those of plaintiff as would be apt to mislead the class of customers generally to whom the same is sold in said market, it is such resemblance as is above referred to.” The jury were also properly told, that the “ similarity need not be so perfect as would be difficult to distinguish between the two if critically examined and compared,” etc.</p> <p>3. Protection—Trade Device.—There can be no doubt about the power of a court of equity, in a proper case, to interpose to prevent the piracy of a device used to distinguish articles manufactured and sold, although the device itself will not constitute a technical trade mark. See example.</p>

<p>1. Execution under Dormant Judgment.—An execution issued under a dormant judgment is not void, but voidable only. A sheriff can not avail himself of such irregularity, in defense, when sued for permitting the escape of live stock levied upon under such execution.</p> <p>2. Same — Case in Judgment.—An original execution issued from the District Court of McLennan County, under a judgment more than one year old, and directed to the sheriff* of Greer County. The sheriff made a levy, and motion was made against him and his sureties for the value, etc., of property levied upon but permitted to escape. Held, it was error to exclude the execution, and error to refuse to reinstate, the plaintiff having taken a nonsuit upon the exclusion of the execution.</p>

<p>1. Forfeit not Equivalent to Penalty.—The word forfeit does not have a fixed legal meaning, nor is it synonymous with the word penalty.</p> <p>2. Intent—Circumstances may Aid.—The true construction of words not having a fixed legal meaning rests upon the intention of the parties to the contract. When the sense in which the parties intended to use such word (e. g., forfeit) is in doubt, the circumstances attending the execution of the contract with reference to the subject maybe looked to in ascertaining such intention; and the question of intent is. for the jury, and should not be decided by the court.</p>

<p>1. Limitation of Liability by Railway to Injuries Upon its Own Line.—That such a contract will be upheld has been often decided in this State. Railway v. Baird, 75 Texas, 256; Railway v. Williams, 77 Texas, 121; Railway v. Mahula, 1 Texas Civil Appeals, 182; Hunter v. Railway, 76 Texas, 195; Railway v. Adams, 78 Texas, 373.</p> <p>2. Same—Case in Judgment.—The Missouri Pacific Railway Company, while operating the International & Great Northern Railway, contracted to carry certain cattle from Pearsall, on the line of the International & Great Northern Railway, to Chicago. Injury to the cattle was alleged to have been caused at Denison, Texas, on the Missouri, Kansas & Texas Railway. Suit against the International & Great Northern Railway Company for damages. Held, that the clause in the shipping contract, that in case the cattle are to be shipped over other roads than the Missouri Pacific Railway, the latter should be released from all liability after they shall have left its road, protected the International & Great Northern Railway Company against loss, regardless of its being the lessor of the line of road upon which the cattle were first shipped. The loss happened after the freight had left the line of the Missouri Pacific Railway Company. It would be inequitable to impose the burdens of the freight contract upon the lessor company and not give the benefit of its restrictions.</p>

<p>1. Case Adhered to.—Jones v. Robbins, 74 Texas, 615, adhered to, touching sale of homestead by an agent under power of attorney not acknowledged by the wife.</p> <p>2. Abandonment of Homestead.—See facts held sufficient to sustain a verdict against the homestead, on ground of abandonment.</p> <p>3. Same—Evidence—Recitals.—In a power of attorney signed by husband and wife, but not acknowledged by privy acknowledgment of the wife, was the recital, “being about to remove from said county and State.” The parties were not then residing upon the land. Held, that such recital was competent hr show intent, as neither made explanation or denial upon the trial.</p>

<p>1. Pleading and Practice in Trespass to Try Title—The defendants in an action of trespass to try title and for partition, having alleged estoppel by partition in the Probate Court, they could not avail themselves, under the plea of not guilty, of facts other and different from those alleged; e. g., of testimony showing that the plaintiffs had already received their share in their father’s estate when they were claiming as heirs.</p> <p>2. Outstanding Equity as Defense in Trespass to Try Title.—An outstanding equity with which the defendant, a mere trespasser, is not connected, can not be set up to defeat the legal title in plaintiff.</p> <p>3. Case in Judgment.—Husband died leaving a widow and four children, also four town lots. The widow and two children conveyed one lot, the least valuable. She then became guardian of the two remaining children, and inventoried one-third interest in the remaining three lots. This interest was sold by order of the Probate Court. Subsequently, the minors reaching majority sued for one-fourth in the lot sold by the widow and the other two children. The defendants pleaded estoppel by judgment in Probate Court. Held, that plaintiffs were entitled to recover.</p>

<p>Charge — Negligence a Fact for Jury.—A charge enumerating certain conditions, with instructions that if found by the jury they should find for the plaintiff, in effect, is to declare that the acts enumerated constituted negligence. It is beyond the province of the court to so instruct the jury. As to whether certain facts are acts of negligence in a given case is to be determined by the jury.</p>

<p>1. Trustees of School Community—Teachers’ Contracts.—In relation to contracts made with teachers by trustees of a school community prior to the amendment of April 15,1891 (General Laws Twenty-second Legislature, page 97), the law was silent as to the approval of the same by the county judge. His approval was only required of the checks of the trustees upon the county treasurer.</p> <p>2. Same—Case Adhered to.—It was not intended by the Legislature to ■confer upon the county judge the power of controlling the contract by the trustees with the teacher under the community school system. Caviel v. Coleman, 72 Texas, 553, adhered to.</p> <p>3. Same—Case in Judgment.—September 4,1889, Bell signed a contract with the trustees of school district number 1, in McMullen County, in which the community system was in force, to teach a school for “five months, more or less,” commencing on third Monday of the month, at $75 per month. The next day, September 5, an order was made apportioning the funds of district number 1 among three schools in the community, according to the number of pupils in attendance the first week. Bell was not present, nor did he assent to the order. He taught the session of five months. The trustees gave him an order for each month’s salary. The salary for the first three months was paid. The county judge refused to approvb the orders for the salary for the fourth and fifth months. The teacher had not been notified to quit at the end of three months, by which time the funds allotted to his school had been exhausted. Mandamus by the teacher to compel the county judge to approve the checks of the trustees for the fourth and fifth months. Held:</p> <p>1. The contract between trustees and teacher became binding when signed by the trustees, and could not be changed without the consent of the teacher.</p> <p>2. When there are funds on hand to the credit of a community, and some contracts with teachers have been satisfied and others have not, the trustees can draw against the fund to discharge legal contracts not satisfied, whether there had been an apportionment of the community funds among the schools or not; and in such cases the judge would be required to approve the checks of the trustees.</p>

<p>1. Pre-emption—Return of Field Notes.—Although the field notes of the survey made under a pre-emption were not returned to the Land Office within twelve months after date of the survey, as required by law (Revised Statutes, article 3948), still when returned before any adverse right attached, the pre-emptian right will not be forfeited, and is superior to any claim arising subsequent to the return of the field notes.</p> <p>2. Same —Cases Adhered to.—Gommage v. Powell, 61 Texas, 629; and McCarthy v. Gomez, 85 Texas, 10, adhered to.</p> <p>3. Pre-emptor may Sell before His Right is Matured.—In Palmer v. Bennett, 81 Texas, 451, it is held, that one who has pre-empted land may sell it prior to the completion of the occupancy for three years, and if the possession be kept up by the vendees, the patent issues in the original right, and the land does not become vacant. This is adhered to.</p> <p>4. Pre-emption Right may be Sold—Vendor’s Lien.—The pre-emptian right may be sold, and the foreclosure of a vendor’s lien thereon passes title to the pre-emption, so far as the rights of the parties extend.</p>

<p>1. Implied Lease Contract—Landlord and Tenant.—A distress warrant was procured and made returnable to the County Court, where the land owners filed their petition, alleging a written contract made by them with one H. S. Stokes, his death, and certain acts by the defendants by which they had adopted said lease contracts, the occupation, etc.,by defendants, and default in payment of rent. Held, the petition was good against demurrer on ground that the Probate Court had jurisdiction in the administration of H. S. Stokes, deceased.</p> <p>2. Landlord’s Lien Prior to Claim of Widow and Children of Tenant for Allowance. — It is expressly provided (Revised Statutes, article 2347), that exemptions of personal property shall not override claims for rent; it follows, that an allowance in lieu of such exempted property is controlled by the same statute.</p> <p>3. Variance—Pleading.—Under a petition alleging an implied lease contract, evidence of an express contract is irrelevant, and should have been excluded.</p> <p>4. Liability of Members of Firm.—Suit against partners for value of cotton bought by one of the firm, the cotton being liable for rent. Held, that if the purchase was not made in the firm business, and that one of the firm had not authorized the purchase nor received any of the proceeds, he would not be liable.</p> <p>5. Subtenancy — Landlord’s Lien Holds Against Subtenants.— Since the enactment (Sayles’ Civil Statutes, article -3122) prohibiting a tenant from subleasing the rented premises without the consent of the landlord, all produce raised on the rented premises, whether raised by tenant or a subtenant, is subject to the statutory lien for rent and advances.</p>

<p>Error from Travis. Tried below before Hon. W. M. Key.</p>

<p>1. Release of Surety by Extension of Time.—A mere treaty between the holder and the principal in a promissory note, not perfected, would not discharge the sureties; nor would a promise without consideration that could not be enforced, nor a promise upon a condition not complied with.</p> <p>2. Same—Pact Case.—See facts held to evidence a contract for an extension of time on a promissory note, between the holder and the principal, by which the sureties were released.</p> <p>3. Same.—It is the duty of the holder of an obligation in which sureties are bound, to see that they consent to an extension requested by the principal, before the extension. If without assent of the sureties, they will be released. See example.</p> <p>4. Case Adhered to.—Mann v. Brown, 71 Texas, 244, adhered to, as to validity of an agreement for the extension of time upon consideration of payment of usurious interest by the principal debtor.</p>

<p>1. Evidence on Issue of Agency. — Issue being as to whether one W. was, at the date of the collection of a certain note belonging to appellants, their agent, with authority to collect, the letters written by the manager of the appellant corporation to W. in regard to other loans than that in which the note collected had been given, were inadmissible. It plainly appears that this correspondence did not influence any of the defendants in their dealings with W. So far as the evidence discloses, this correspondence was not known to either of them, and until such proof is made none of this evidence is admissible for the purpose of estopping plaintiff from denying the agency of W.</p> <p>2. Declarations of Agent no Proof of Agency.—Papers signed by W.. where he signed his name as agent of plaintiff, or otherwise represented himself as agent, are not admissible in evidence. Agency can not be proved by the declarations of one who assumes and represents himself to be the agent of another, when such declarations are made without the knowledge of the latter.</p> <p>3. Evidence — Affidavit of the Agent of Defendant. — Issue being whether the Middlesex Banking Company, a defendant herein, knew or had reason to believe that W. was not the agent of the plaintiff, with authority to collect the note due plaintiff, an affidavit made by D. for said company in a suit against W., wherein W. is charged with embezzlement of the money paid him by the company on the note now sued on, is inadmissible in evidence, being irrelevant and immaterial.</p> <p>4. Charge — Erroneous Assumption of Pact. — The charge given is held erroneous, because it assumes that there is a question whether or not the note sued on was due when paid, when it showed upon its face that it was not due, and because it assumes that defendants, in making payment to W., dealt with him as attorney at law, when the facts tend to show that he was dealt with as land and loan broker, and as the agent of the plaintiff, both in procuring the loan and collecting the note.</p> <p>5. Issues.—Issues of fact to be submitted to the jury upon another trial stated.</p>

<p>Guardianship — Claims Against, Authentication of. — D. and wife had been removed from the guardianship for failure to give a new bond, as required. In their final account, filed thereafter, they reported a claim in favor of Ash as unpaid, and asked that their successor be required to pay it. It was known to them to be just, but not authenticated, and only the ordinary notices of the filing of the account were given, the County Court having entered its order requiring its payment by the last guardian. Held, that the claim had never been established against the estate of the minors in any manner required by law, that it was not such a claim as would come under article 2621, Revised Statutes, which authorizes payment of claims known by the guardian to be just, and that the order directing its payment was in no way binding on the estate.</p>

<p>1. Libel—Necessary Allegations in Petition.—In an action for libel the petition should specify by direct allegations in what particulars the language used was libellous, and the right of recovery should be restricted to the matters thus put in issue. A mere reference to exhibits, to supply the place of substantial allegations, should not be indulged.</p> <p>2. Admissible Evidence in Libel Suit.—The Retail Merchants’ Protective Association published a circular disclosing the plan and purposes of the association, and therein proposed to supply its patrons with a book with the names of many thousand merchant breakers in Texas, to be supplemented every sixty days with as many more as failed to make satisfaction within a reasonable time for claims passing through the agency, and in such a list the association afterwards placed the name of appellee. Held, there was no error in admitting in evidence the list containing the name of appellee, or the circular disclosing the plan and purposes of the association. The list was the foundation of the action, and the circular tended to explain the effect and significance of the list.</p> <p>3. Same — Letter of the Manager of the Association. —There was no error in admitting in evidence the letter from the manager of the association to one Binlcham. Though it was written after the suit was brought, it contained expressions which tended to show the writer’s animus towards the plaintiff, and was admissible for that purpose, its purpose having been properly explained by the charge.</p> <p>4. Inadmissible Evidence in Libel Case — Damages. — When witnesses stated that they did not know plaintiff, but that his credit would have been injured by the publication in question, and that the effect and tendency thereof would be to damage the commercial standing of any man; and that while they would have sold him goods previous to such publication, upon proper recommendation, they would not have done so thereafter, was not admissible, being the opinion of the witnesses.</p> <p>5. Charge.—When an omission is found in one clause of the charge which is supplied by another, there is no reversible error.</p> <p>6. Privileged Communications.—hTo privilege allowed by law to defendants to communicate with each other, and to impart any information which the occasion made necessary and proper, can be made available here. B. and F. had the right to place their claim in the hands of the association for collection, but neither of them was privileged to publish to others false or defamatory statements concerning the plaintiff, or denouncing him to others as a “merchant breaker,” etc.</p> <p>7. Same—Statements, True and False.—If the statements were true, there would be no cause of action; but if the effect of the list issued was to insinuate concerning plaintiff such charges as claimed by him, and if they were false, there is no privilege which would shield defendants from recovery of damages thereby occasioned.</p>

<p>1. Husband and Wife—Transfer of Wife’s Notes by Husband-Holder’s Rights.—Notes, the separate property of the wife, were endorsed by the husband, “ For value received, I transfer the within note to F. M. Huddles-ton,” and her name signed thereto. After their maturity he transferred them to K. as collateral security for a debt due by him to K., without the knowledge of his wife. K. had no actual knowledge of these matters. The husband told his wife that he had transferred the notes to himself when she was sick, so that in the event she did not recover he could collect them for the children. Held, K. took the notes after maturity, subject to all the equities with which they were encumbered, and judgment in his favor upon them was erroneous.</p> <p>2. Estoppel on Wife.—The husband could give K. no better title than he had. The wife is not estopped, by her signature to the transfer of the notes, to show that they were in fact transferred for collection only, and that she had never received anything for them.</p>

<p>Appeal from Gregg. Tried below before Hon. Felix J. McCord.</p>

<p>1. Proof of Partnership. — Issue being whether S. was a partner of the firm of H. & Co., evidence of a witness who stated that he had been introduced! to S. as one of the partners of the firm of H. & Co., was admissible, although he could not state the time, place, and circumstances of the introduction, and only gave the statement as his best recollection. These facts affected the credibility of the witness, and the weight to be given his statements, but not the admissibility of the testimony.</p> <p>2. Cross-Examination by Party of His Own Witness. — Though plaintiffs introduced H., one of the partners, as a witness, who testified that S . was not a partner, he could be shown statements in writing made by him in which he had named S. as a partner, and be asked if they were true or false, and fully examined concerning the conflict between those statements and his testimony on the stand. His statements made before the trial were not evidence against S... but plaintiffs had the right to use them in the examination of the witness.</p> <p>3. Verdict, When Court may Instruct one for Defendant. —The court erred in instructing a verdict for the defendant. There was some evidence to show a partnership. The explanation of such circumstances as plaintiffs relied on came from the alleged partners themselves, and the jury should have been left to weigh them in connection with the other evidence. The court can properly give such instruction only when there is no evidence tending to establish the fact in issue.</p> <p>4. Partnership not Proved by the Statements of Members of.— The record papers in a suit of H. & Co. v. Telegraph Co., and statements of H. and his agent, of which statements S', is not shown to have had any knowledge, to the effect that S. was a member of the firm of H. & Co., were properly excluded. It is well settled that the fact of partnership can not be proved against one, by the statements of the other members, made without his knowledge or concurrence.</p>

<p>Case in Judgment. —A horse of appellee having escaped from his lot at night, entered appellant’s enclosure by breaking through its barbed wire fence, which encroached three or four feet upon the street. A city ordinance made it unlawful for horses to run at large within the corporate limits. Held, that the court erred in submitting to the jury the question whether appellant was guilty of negligence in having its fence on the street. If appellant had no right to have its fence there, appellee had no right to have his horse at large, and if confined it would not have been injured, and there is no evidence that the fence being on the street helped to cause the injury.</p>

<p>1. Two Railways Considered one Line, When—The Shreveport & Houston Railway and the Houston Bast & West Texas Railway form one continuous line from Houston to Shreveport, Louisiana, connecting at Logansport on the boundary between Louisiana and Texas. Through trains run between said terminals. The servants are employed for both roads, and Mr. Howe has charge of the entire line, which has its general offices in Houston. He has the appointment of all persons employed in the running of the two roads. Parties purchasing tickets over the line have "to make continuous passage, without the right to stop over. If there was not a partnership between the two roads, there was an arrangement by which they were to be operated as one line, with authority to its managers to make through contracts for carriage of passengers; and appellee, having been damaged by the negligence of its, officers in Louisiana, the suit was properly brought against both roads, and the case does not come within the case of Harris v. Howe, 74 Texas, 534.</p> <p>2. Excessive Damages.—Plaintiff, a young man, was set down on a summer night in the woods, about three-fourths of a mile past his destination, in company with other passengers, his only inconvenience being some delay in finding the station, getting his feet muddy and wet, and having to carry his grip through a drizzling rain. He is entitled to some amount as damages, but not to $200.</p>

<p>1. Injury to Employe—Case in Judgment.—Appellee was the night yardmaster, and was hurt while filling a car with water at night, which was one of his duties. The tank spout fell upon him after he had filled the car and returned the spout in the usual manner. The day yardmaster had been notified that the spout was out of order, but plaintiff had no knowledge of the defect, and it was not a part of his duty to keep the tank fixtures in repair, or to inspect or report them. His injuries were severe. Under these facts a verdict for $6000 was affirmed.</p> <p>2. Compromise of Claim.—Plaintiff signed a paper which released the defendant company from all liability for the injury sustained, in consideration of the sum of $100. Plaintiff testified that he had no recollection of ever signing the paper, or agreeing to any compromise, and pleaded that he was non compos mentis when he signed it. The evidence was conflicting, and from all the testimony the jury might well have concluded that such was the plaintiff’s condition when he signed the release, and the verdict will not be disturbed.</p> <p>3. Erroneous Charge Asked on Unsafe Appliances. — The court correctly refused to give a charge, “that if the water spout was caused to fall because the appliance that held it up needed the nuts loosened, that this would not be such a defect as would make the defendant liable.’* The law imposes upon the master the duty to furnish his servants with reasonably safe implements, and to use reasonable diligence and care for keeping them in repair, and if they were so out of repair as to make their use dangerous, the character of the defect was immaterial.</p> <p>4. Knowledge of Defect by Employe.—Though plaintiff had been at work in the yard for three years, and the spout had been out of repair three months, and other employes knew it, there is no evidence that he had actual notice of the defect. He performed his duties in the nighttime; the defective implement was several feet above the cars, and plaintiff himself testifies that he did not know it was out of repair; while it is shown that defendant knew that it was. We can not say that under this state of the evidence plaintiff must be charged with notice of the defect in the implement.</p>

<p>1. .Continuance on the Ground of Surprise.—See opinion for a motion for continuance upon the ground of surprise, held properly overruled.</p> <p>2. Allegation and Proof.—Allegation that the wreck in which the plaintiff was injured was caused by a defective roadbed, would not permit proof that the wreck was caused by a broken axle; and a charge that if the wreck was caused by a defective axle, and not by a defective roadbed, as alleged by the plaintiff, that he could not recover, was correct.</p> <p>3. Degree of Care Required of Carriers of Passengers.—There was error in instructing the jury that the defendants “ owe the duty to their passengers to use the highest degree of care to safely land them at their point of destination.” This charge instructs the jury, in effect, that railways are insurers against injuries to their passengers. Thg law imposes a very high degree of care upon those who for compensation transport people by rail in cars propelled by steam, but does not make such carriers insurers of the safety of their passengers.</p> <p>4. Derailment Presumption of Negligence.—When a passenger is injured without fault of his, the law raises no presumption that the injury is the result of the negligence of the carrier, nor does it place the burden of proof upon the carrier to show that the injury was not caused by the negligence of the carrier, and a charge which so instructs is error. While in many instances negligence may be inferred from the fact that a train was derailed, and a passenger injured, the law does not presume that the defendant is guilty of negligence because of such derailment.</p> <p>5. Excessive Verdict.—The verdict is for $7500, and the weight of evidence is against it in this particular, and a new trial should have been awarded the defendant.</p>

<p>1. Pleading — Defective Petition for Damages for Personal Injury.—There is no averment, direct or inferential, that the defects in the railway, or in the appliances furnished for coupling the engine and car, which are set out in the petition, were the proximate cause of the injury received by the plaintiff; and this makes the petition obnoxious to a general demurrer, and when such is the case, a motion in arrest of judgment, it seems, should be sustained.</p> <p>2. Verdict as a Cure of Defects.—In De Witt v. Miller, 9 Texas, 239, it is said: “The verdict cures all defects, imperfections, or omissions in the petition, whether of substance or form, if the issues joined be such as to require proof of the facts improperly stated or omitted, but will not cure or aid a defective title, oPcause of action.” In' applying the rule announced in this case, a majority of the court are of opinion that the case must be reversed. The petition is defective, not in imperfectly stating a cause of action, but in averring facts which of themselves constitute no cause of action.</p>

<p>1. Parties — Second Suit for Foreclosure.—A foreclosure judgment upon a vendor’s lien note having been obtained against the heirs of the deceased vendee, who were only in possession of a part of the land (the vendee having sold apart of it to defendant), and a sale under the judgment not realizing the amount of the judgment, but leaving a part of it unpaid, in a suit by the plaintiff against the owners of the remainder of the land to foreclose his vendor’s lien thereon, and to make it liable for the unpaid remainder of the judgment, the heirs of the original vendee were not necessary parties. They had been concluded by the former judgment, and had no interest to be affected by the present suit.</p> <p>2. Pleading—Sufficient Allegations.—See opinion for statement of the material parts of a petition held sufficient against a general demurrer. The allegations showed that plaintiff had a lien upon the land which he was entitled to have foreclosed, and that his former judgment, though good against defendants therein, was not a valid foreclosure against the claim set up by the present defendants.</p> <p>3. Prayer—Special Relief.—The prayer was for a foreclosure upon the land claimed by defendants for the balance due on the judgment. This was relief to which plaintiff was not entitled. Defendants not being bound by the former judgment, the part of the land they claim can not be separated from the remainder of the tract and sold to pay the balance due on the judgment.</p> <p>4. Proper Relief to be Granted.—The right of the plaintiff is to have the whole tract resold, as against the defendants, to pay the whole amount of the debt, so that the defendants may enforce any right which they have, unaffected by the other foreclosure.</p>

<p>1. Venue.—A railway which has a located line in the county, hut no general office, hut whose treasurer had his office in the county where suit was brought, may be sued in such county. Venue was sufficiently shown in the petition by these allegations, so far as the railway company was concerned.</p> <p>2. Venue in Suit Against Railway.—Hollis, the treasurer, residing in the county where suit was brought, was also one of the trustees for the citizens, and one of the plaintiffs in the suit. Service was not had on him, but on the president of the company, who resided in another county. The venue was sufficiently shown by the allegations of the petition, and the evidence thereunder, which sustained it. The statute confers the right to sue a corporation in any county where it has an agency or representative.</p> <p>3. Territorial Jurisdiction—Plea of Personal Privilege.—The other defendants who were sureties on the bond of the railway company, and did not reside in the county where suit was brought, and who pleaded their privilege to be sued in the county of their residence, can not be sued in another county, unless the railway had its domicile in the county where the suit was instituted, which is not shown in this case. Citing Hilliard Bros. v. Wilson, 76 Texas, 184.</p> <p>4. Parties Plaintiff—Surviving Trustees may Sue.—Plaintiffs were the surviving obligees of a bond executed to them by the railway company, to secure to those who had contributed money to the road the return of it to them, in the event the road was not completed to a certain place in a certain time; and the road not having been completed as agreed, the obligees, acting as trustees for all the subscribers, could sue without making the representatives of one of their number, who had died, parties.</p> <p>5. Mistake in Wording of Bond.—The alleged mistake in the wording of the bond was sufficiently averred so as to entitle the plaintiffs, on general demurrer, to have the correction made on prayer for general relief. The contract and its breach were fully set forth, and no demand for repayment of subscription was necessary before bringing suit.</p> <p>6. Trustees, Extent of their Right of Recovery. —Maintaining this suit as trustees for all the subscribers, plaintiffs were entitled to recover for the entire amount subscribed and paid by the citizens to the railway company, including that subscribed and paid by the deceased trustee.</p> <p>7. Right of Action on the Bond.—The terms of the obligations of the citizens were, that they were to pay to the company $9000, in installments, and the company was to give a bond that if it did not build and equip the road to San Augustine in a given time, it was to refund the money paid by the citizens. The citizens were to secure the right of way; all of it had not been secured, but the subscriptions had been collected and appropriated by the company, and the road had not been built as agreed; wherefore the plaintiffs showed a cause of action, and were entitled to judgment for the sum of their subscriptions.</p>

<p>1. Guaranty of Cotton Weights.—Appellee, who had advanced $20,000' on cotton and received drafts with bill of lading and weight certificates attached, drawn by the borrower, who was the consignor, upon the consignee; was wired to the effect that he must guarantee weights before the draft would be paid; whereupon he wired, “We guarantee weights of Nagle 450 bales of cotton.” Held, a guarantee only of weight, and not of the quality of the cotton.</p> <p>2. Custom to Vary Contract.—One hundred and thirty-nine bales of the cotton when it arrived at Houston had been wet for sometime. After being picked and the damaged cotton separated from the good, the weight of the good cotton was found to be 10,086 pounds short. A custom sworn to by two witnesses, but of which appellee knew nothing, giving to such a guaranty the meaning, that it was a guaranty of that weight of good, merchantable cotton, is not shown and will not be enforced.</p> <p>3. Same.—Whatever might be the effect of a general custom of the kind among cotton dealers, the evidence of its existence in this case is not conclusively shown. The reason why the law presumes that contracts are made in accordance with such a usage is, that it is so general that all are supposed to know of and contract with reference to it.</p>

<p>1. Garnishment — Rights of Assignee of Debt Garnished. — Loss having occurred on a policy of insurance issued by appellant, and the loss having-been adjusted thereafter, the policy was assigned by the insured to appellee, and notice of the assignment given appellant. Thereafter appellant was garnished by a creditor of the insured in Illinois, and when appellee sued on the policy for a recovery, answered setting up the garnishment proceedings, and asking a stay of proceedings and a continuance. Ileld, that both were properly denied.</p> <p>2. Same—Delaying the Suit on the Policy.—Appellee was not a party to the garnishment suit, and the court in which that proceeding was instituted acquired no jurisdiction over appellee. Its right to the money due upon the policy accrued before service of the garnishment, and it is clear that appellee would not be bound by any judgment in the garnishment suit; wherefore, it would have been futile to require appellee to await the rendition thereof.</p> <p>3. Same —Rule when the Defendant in the Garnishment Sues His Debtor.—When the defendant in garnishment sues his debtor for the claim attached by the writ, the authorities hold that pendency of such suit is sufficient either to abate the suit, or suspend judgment, or stay execution in behalf of the creditor of the garnishee; but this is not such case, and those authorities do not apply here.</p>

<p>Appeal from Fayette. Tried below before Hon. H. Teichmueller.</p>

<p>1. Continuance — Insufficient Application. — Defendant knew of the testimony of the absent witness six weeks before the case was tried. The witness had promised to be present, but moved out of the county before trial, and no subpoena had ever been issued. The facts expected to be proved were not stated, nor that the applicant had a reasonable expectation of procuring his testimony by the succeeding term of the court. The motion was addressed to the discretion of the court, and we can not say that the court below abused its discretion in overruling it.</p> <p>2. Contributory Negligence — Charge.—To defeat the plaintiff’s right to recover, where negligence is shown on the* part of defendant, the plaintiff must be guilty of negligence which proximately contributed to his injury; and what is meant by “ proximately contributed to his injury” is, that the plaintiff’s negligence was such that without it he would not have been injured. The requested charge omitted this element of contributory negligence, and was properly refused.</p> <p>3. Charge Commended on Contributory Negligence. —The court below charged: “If plaintiff, by his negligence, contributed to his injury to such an extent that but for it he would not have been hurt, you will find for the defendant.” This was a proper charge, and not on the weight of evidence, nor misleading.</p> <p>4. Evidence Sufficient to Support Verdict for $2500.—It can not . be held that a verdict for $2500 is excessive, in favor of a young man whose right hand was crushed while an employe of a railway company, without fault on his part.</p>

<p>1. Community Property, Interest on Wife’s Note is.—Interest on money which is the separate property of the wife becomes the community property of the husband and the wife; but it is the opinion of the Chief Justice that interest contracted for in vendor's lien notes executed for the separate real estate of the wife (as was the case here), remains the separate property of the wife.</p> <p>2. Interest, when not Recoverable Apart from Note.—When the notes do not stipulate that the interest shall be paid annually or at fixed dates, or when the interest is not evidenced by coupons which may be detached from the notes, and become a separate cause of action, it is incident to the notes, and no separate action can be maintained therefor; and in this case,the notes not being barred, it is clear that the plaintiff could recover all interest accruing within four years of the time of filing the suit, even if interest that accrued more than four years before that time shall be barred. And all the interest accrued prior to. four years having been paid, the judgment is affirmed.</p>

<p>1. Contributory Negligence of Parent. — Appellees sued for damages for the negligent killing of their two and a half years old child by appellant’s cars. The sufficiency of the evidence to prove that the child was killed through the negligence of the driver of the car is not questioned. The issue is whether the parents were guilty of such contributory negligence in allowing the child to be upon the track as precludes them from recovering. See facts reviewed and held not to show such negligence.</p> <p>■ 2. Same—Parental Contributory Negligence Defined.—While it is said that it is negligence for parents to permit their young children, incapable of protecting themselves, to go unattended about the streets of a city, where cars and other vehicles are constantly passing, it is not true that whenever such a child may escape for a time from its parents’ immediate view, that the latter are necessarily to be deemed guilty of negligence, if the child, thus unknown to its parents, exposes itself to danger. Negligence on the part of the parents must consist in the neglect of the duty in matters which parents owe to their child, of exercising over it such protective care as its age, capacity, and the dangers to which it may be exposed render reasonably necessary; and it must always be measured by the circumstances of the case.</p> <p>3. Contributory Negligence a Question for the Jury.—When there is not an entire abnegation of the duty which rests upon the parents, the question of their contributory negligence is one peculiarly fit for the determination of a jury of ordinary men.</p>

<p>1. Service of Citation on Corporation.—The statute provides, that In suits against incorporated companies service of the citation may he made on the president, secretary, or treasurer; therefore, where the sheriff served the secretary by name, stating in his return that such person is the secretary, such return is sufficient evidence of the identity of the person served as secretary to support a judgment by default, although the petition does not designate him as secretary by name.</p> <p>2. Presumptions in Support of Judgment by Default.—It does not appear from the record in this case that the court did not receive evidence that Houston was the secretary, and if necessary it should be presumed that such evidence was furnished. In aid of the judgment, every presumption should be indulged which is consistent with the facts made to appear.</p>

<p>Appeal from Harris. Tried below before Hon. W. C. Anders, County Judge.</p>

<p>1. Telegraph Companies — Liability of Connecting Lines. —The law with respect to the liability of connecting carriers by analogy has been applied in all its fullness to connecting telegraph companies; and where one company, in consideration of the sharing of the charges, receives from another company a message to be forwarded and delivered, it becomes directly liable to the party for whose benefit the message is sent, in case of a failure to duly forward and deliver such message.</p> <p>2. Same—Delivery of Message Outside of Free Delivery Limits. Where the rules of a telegraph company confine its delivery limits to a radius of one-half mile of its office, it is not legally bound, no special delivery charges having been paid or arranged, to deliver a message to the addressee at his residence in the country, three miles from the company’s office.</p>

<p>1. Disqualification of Judge — Receiver. — A county judge who is receiver for the plaintiff in a suit pending before him, is thereby disqualified to try .the cause.</p> <p>2. Same — Interest.—Where a land agent is in partnership with an attorney, sharing equally in the law fees earned, he is disqualified from rendering a judgment, as justice of the peace, in a case wherein his partner is attorney for the plaintiff.</p> <p>3. Same—Suretyship.—A justice of the peace who is a surety on plaintiff’s bond for garnishment, is disqualified from rendering a judgment in the garnishment proceeding.</p> <p>4. Same—Order of Transfer of Cause.—An order of the County Court transferring a cause to the District Court because of disqualification of the judge, is not invalid because it fails to state the ground of disqualification.</p> <p>5. Same—Order Takes Effect, When.—Where such order of transfer is duly made, the jurisdiction of the District Court attaches, and is not ousted by the failure of the clerlt to strike the case from the County Court docket and transmit the papers to the District Court; and an order of the County Court, made at a subsequent term, setting aside the order of transfer, is a nullity, and an execution sale under it void.</p>

<p>Execution Sale of Live Stock on Range—Record of Bill of Sale. Article 4564 of the Revised Statutes, providing that in sales of live stock running on the range no title shall pass until the bill of sale is recorded, is applicable alone to voluntary conveyances by the owner, and does not apply to judicial or execution sales; and where a purchaser at such execution sale has afterwards rounded up and taken possession of the stock, his title does not fail because the sheriff’s bill of sale to him is defectively recorded.</p>

<p>1. Evidence—Certificate of Commissioner of Land Office.—A certificate of the Commissioner of the General Land Office, to the effect that a land certificate issued to Thomas Toby had never been sold by Toby as agent for the Republic, and that it was then and had theretofore been regarded as void, and patent refused upon a location made under it, is not admissible as evidence under article 2253 of the Revised Statutes, as it states conclusions and not facts of record.</p> <p>2. Land Certificate with Blank Endorsement.—Possession of a land certificate with a blank endorsement of the grantee thereon prior to its location, followed by location, is, when unexplained, prima facie evidence of title.</p>

<p>Disclaimer of Title by Admission of Record—Putstanding Title. To a plea of outstanding title in one E., plaintiff replied that E. held the title as a mere naked trustee, and that the entire beneficial interest was in himself; and E. being thereafter joined as a coplaintiff, filed a plea adopting plaintiff’s prayer, and admitting all his allegations with reference to the character in which she held title. Held, that this was in effect a disclaimer by E. of all title and interest in the land, not less effectual than a deed of relinquishment, and the trial court erred in adjudging that the plea of outstanding title must prevail.</p>

<p>1. Mortgage—Oral Evidence.—When an instrument sufficiently appears on its face to be a mortgage, the admission of oral evidence to make this clearer can not be material error. See the opinion for an instrument construed to be a mortgage.</p> <p>2. Homestead, Power of Husband to Mortgage.—The husband, after the death of the wife, has the right to mortgage his interest in the homestead, whether the debt be for improvements or not.</p> <p>3. Practice on Appeal — Assignment of Error. — Where an assignment of error raises more than one distinct proposition, it is not permissible under the rules to treat the assignment itself as a proposition raising all the questians suggested therein, hut these questions must be submitted as distinct propositions in the brief, accompanied with appropriate statements to sustain the same from the record.</p> <p>4. Charge of Court—Special Instruction Required. — Where the evidence is barely sufficient, if at all, to raise the issue of fraud, failure of the court to charge on such issue is error of omission, and can be taken advantage of only where appellant asked correct instruction below covering the omission.</p> <p>5. Charge of Court Held too General. — A requested charge, that it was the duty of the trustee in making sale under the deed of trust “to act in all fairness in the sale of said land, and make it bring a fair price, and if the jury believe that it was not so made, they will find for the defendant,"’ is too general, and leaves too much to the discretion of the jury in deciding as to what would constitute fairness in the sale.</p> <p>6. Mortgage—Power of Sale.—Where a debt secured by a mortgage was due November 1,1886, and the mortgage stipulated that if it was not paid when due, “then the said [mortgagees], at anytime thereafter, may take possession and sell,’’ etc., the power of sale was not functus officio on April 3, 1888.</p> <p>7. Verdict Construed—Harmless Error.—In an action of trespass to try title to a quarter-section of State school land, purchased under the Act of 1883 (§2 per acre), the jury returned a verdict finding “ for the plaintiff one-half the said land, $160.” Held, to be a verdict for one-half the land, and not for $160 in'money, and there was no material error in omitting the $160 from the verdict in copying it. into the record.</p>

<p>1. Change of Venue—Nearest Court House.—The nearest court house, within the meaning of article 1273, Revised Statutes, relating to change of venue, does not necessarily mean the court house most accessible by rail; and the expression of the court in Shaw v. Cade, 54 Texas. 307, was not intended as authority for such latitude of construction. «</p> <p>2. Parol Evidence to Vary Written Instrument.—In an action on a written contract, paroi testimony to show that it was understood and agreed that one of the parties was only to be bound thereby as administrator upon the approval of the contract by the Probate Court, and that the other party undertook to perform certain other obligations than those specified in the instrument, is inadmissible in the absence of allegation and proof of fraud or mistake.</p> <p>3. Proof of Compliance with Contract—Fact Case.—See the opinion for proof of compliance with the terms of a contract held admissible and sufficient to authorize a recovery.</p>

<p>Injunction Restraining' Sale Under Judgment — Petition Held Sufficient.—Plaintiff’s petition for an injunction alleged, that defendant, under a judgment against another and different company from plaintiff, had levied on a portion of plaintiff’s property and line, consisting of poles, wires, and electrical apparatus, worth $1000, and had caused the same to be sold for a nominal sum; that defendant claimed to own the property so sold, and continuously threatened to take forcible possession of the same, and to prevent plaintiff from using and operating it, and also to seize and sell other sections of plaintiff’s line to satisfy the remainder of the judgment, which would result in irreparable injury; that plaintiff was the exclusive owner of the property, and had no connection with the alleged judgment debtor company. Held, that under such circumstances an injunction should be granted, and the trial court erred in sustaining a demurrer to the petition.</p>

<p>1. Homestead Donation — Occupancy and Transfer—Failure of Consideration.—0. occupied vacant public land for two years under the homestead donation law, and then conveyed it to S., who, without ever having occupied it, transferred it by quitclaim to B., taking notes in part consideration. B., after occupying the land a year, procured without consideration a transfer from C. direct to himself, and thereupon obtained patent; and being sued on his notes to S., pleaded failure of consideration. Held, that although S., not having occupied the land, may have acquired no title thereto, yet his transfer to B. was sufficient to have enabled B. to tack his own possession to that of C., and this, with the delivery of possession to B., constituted a valuable consideration for the notes.</p> <p>2. Quitclaim Deed — Chance of Title Taken, when. — Ordinarily, when a vendee accepts a quitclaim deed, the presumption of law is that he acts upon his own judgment of the title; and he will not be heard to complain that he has not acquired a perfect title unless in the negotiation he stipulated for a perfect title, and was afterwards induced by the false or fraudulent representations of the vendor to accept a quitclaim deed in the belief that he was acquiring a perfect title.</p>

<p>Railway Company — Liability of Connecting Lines —Case Followed.—Where, in an action against a railway company for damages to live stock occurring in shipment, the principal part of the damages recovered was caused before the stock reached defendant’s line, and while it was in the hands of connecting carriers, and the proof as to the terms of the contract of shipment, and as to &n alleged partnership and joint contract between the several carriers, being such as would not distinguish the case in principle from that of Railway v. Baird, 75 Texas, 256, the cause will be reversed and remanded in accordance with the decision in that case.</p>

<p>Appeal from Justice to County Court—Affidavit in Lieu of Appeal Bond.—On appeal from the Justice to the County Court, the appellant has ten days from the rendition of the judgment within which to file his affidavit of inability to pay costs in lieu of an appeal bond. The statute does not require that a contest of the truth of such affidavit shall be filed and heard within the ten •days.</p>

<p>Pleading in County Court on Appeal from Justice Court.—Where, on the trial in the County Court of a case appealed from the Justice Court, appellant offered evidence to show that the goods levied on were conveyed hy the defendant in the execution to his son, appellee herein, with intent to hinder, delay, and defraud his creditors, it was error to exclude the evidence on the ground that appellant had only pleaded a general denial in the Justice Court, as such evidence was not the assertion of a new cause of action or defense within the meaning of the statute.</p>

<p>Pleading and Proof — Sold and “ Disposed of.”—Where plaintiff deposited lumber with defendant for sale, and afterwards sued for its value, alleging that defendant had “ disposed of” all the lumber, and had not accounted in full therefor, it was error in the court to restrict the right of recovery to such lumber only as had been sold by the defendant; since the pleading also warranted a recovery for a part thereof which the defendant had disposed of otherwise than by sale.</p>

<p>1. Railway Company — Unlighted Depot — Charge of Court .— Where there was evidence that plaintiff’s wife was injured in stepping from a train upon an unlighted platform, the court properly submitted to the jury as a ground of recovery the negligence of the defendant railway company in failing to provide proper lights for the accommodation of its passengers in leaving the cars at night, although no witness testified directly that the lack of lights contributed to the injury, or that the accident would not have occurred had the platform been properly lighted.</p> <p>2. Practice on Appeal—Assignment of Error.—An assignment, that “the court erred in submitting to the jury, by the sixth and seventh paragraphs of its charge, the question of defendant’s liability upon an hypothesis not presented in the pleadings and evidence in the case,” without disclosing what “ hypothesis” is referred to, is not in compliance with the statute.</p> <p>3. Same.—An assignment, that the charge of the court, “by its generality, permits the jury to find against the defendants upon issues of fact not presented by the petition and answer,” is itself too general; and if appellants desired more specific instructions they should have requested them before the case was given to the jury.</p> <p>4. Charge of Court—Repetition of Amount of Damages Claimed. Where the suit was for $5000 damages, and a verdict, not excessive under the evidence. was returned for $1250, it does not appear from the record that the amount of the verdict was enhanced by the fact that the charge several times instructed the jury not to exceed the amount of $5000 claimed in the petition.</p>

<p>1. Parties to Suit for Foreclosure of Mortgage.—Where the mortgagor’s entire interest in the mortgaged property had passed from him prior to bis death, his administrator is not a necessary party to an action for foreclosure wherein no personal judgment is sought.</p> <p>2. Notice—Possession not Notice of Unrecorded Deed, When.— Where a grantor whose title is of record continues to reside upon the premises together with the grantee, his mother, her possession not being exclusive of the grantor, is not notice of the unrecorded deed to her, and the right of possession will be referred to the recorded title.</p>

Tried below before Hon. F. M. Davidson. Defendants’ admission of plaintiff’s cause of action and motion thereon, referred to in the opinion, was as follows: “Now come the defendants, E. S. Day et al., and move the court for permission to open and conclude this cause; and in support thereof they say, that the plaintiff is authorized to construct its line of railway through Denton County, State of Texas, and that there is a necessity for the taking and appropriation of the…

<p>Fraud—Election of Remedies—Failure of Consideration.—A party defrauded in a contract may either rescind the contract, or stand to the bargain and recover damages for the fraud; and where he claims only a partial failure of consideration because of the fraud, he may pay as much as he admits to be due, without waiving his right to resist payment of the balance.</p>

<p>Ees Adjudicata—Judgment on Demurrer.—In reply to a reconvention in damages for wrongful attachment, plaintiff alleged that the attached property had been purchased by him at the sale subject to two mortgages, one of which he had paid off. To this defendant filed a demurrer which was sustained. Held, not an adjudication of the validity of the mortgage notes executed by defendant, barring a recovery by plaintiff in a subsequent suit thereon.</p>

<p>Error from Jack. Tried below before Hon. J. W. Patterson.</p>

<p>1. Continuance— Diligence not Shown.—A plaintiff is not entitled to a continuance to procure the evidence of his coplaintiff, where diligence is not shown in the issuance of a commission to take his deposition, as well as in the filing of interrogatories.</p> <p>2. Second Continuance — Application must Set Forth the Evidence.—An application for a second continuance on account of the absence of a witness is wholly insufficient if it fails to set forth the evidence of the witness.</p> <p>3. Pleading — Supplemental Answer may be Amended. — A supplemental answer may be amended as other pleading; and where it asks affirmative relief, it may be amended after plaintiff has taken a nonsuit.</p> <p>4. Evidence—Opinion of Witness.—Where defendant, on the witness stand, stated briefly that there was no consideration for the bond sued on, and plaintiff failed to cross-examine him, or to introduce other evidence on the point, the contention that this statement was a mere conclusion of the witness, and insufficient to sustain a finding that the bond was without consideration, is without avail.</p>

<p>1. Penalty for Railway Refusing to Deliver Freight.—The statute imposing a penalty, equal to the amount of freight charges due, for every day goods may he held after payment or tender of payment of freight as shown by bill of lading, has been held and is held constitutional. Railway v. Harry Bros., 63 Texas, 256.</p> <p>2. Freight Charges Shown by Bill of Lading — Tariff Referred to.—Where a bill of lading by a railway company states that it is “subject to the published tariff of said company and its connections,” and said tariff is well known to the shipper, rates in the tariff, when applicable, will form part of the freight contract.</p> <p>3. Freight Contract — Case in Judgment. — Freight was shipped at Chicago for City of Mexico, consigned to owner at El Paso, Texas. When the freight reached El Paso the owners demanded it, tendering under protest the freight charges demanded by the railway company, which were as stated in the tariff of charges referred to in the bill of lading. The railway company refused, on the ground that the tender was made under protest. Held:</p> <p>1. The tender was full, and that it was made under protest was no reason for its rejection.</p> <p>2. The railway company was subject to the statutory penalties for refusing to deliver the freight.</p> <p>3. That the bill of lading was for City of Mexico, and for balance of distance at higher rates, gave no right to the railway company beyond the earned freights according to its published tariff of charges.</p>

<p>The city of El Paso sued the appellee and the sureties on ins bond as assessor and collector of the city of El Paso, for the recovery of $1428.86, and interest thereon from August 21, 1887, at the rate of 8 per cent per annum, as amount of taxes collected and unaccounted for by the appellee, and for which he and his sureties were liable to the city.</p> <p>The appellee, in the meantime, during the pendency of this suit, sued the city for the sum of $1653.56 as the amount due him by the city for assessing the taxes for the fiscal year of 1887, which commenced on the 1st of March of 1887 and ended on the last day of February, 1888, and for the further sum of $200 for services rendered by him upon the request and order of the city in making and giving descriptions to the city engineer of divers parcels of property within the city along which the city had ordered sidewalks to be built, and to prepare and keep a record of said property, and of notifying the property owners to construct sidewalks, and to the making out to each delinquent owner in such case a bill for the amount of money due the city for constructing said sidewalks whenever the owner failed to have the same constructed. These services were separate and independent and in addition to the performance of his duties as assessor and collector of taxes. The appellee’s answer in the suit of the city against him stated, in substance, as a defense, the facts as pleaded in his petition against the city.</p> <p>Upon order of the court, these two cases were consolidated. Upon the trial, it was agreed between the parties that judgment could be entered .against the appellee and the sureties on his bond as assessor and collector for the sum of $1424.86 and interest thereon from October 28, 1887, at the rate of 8 per cent per annum. It was further agreed between the parties, that all of the issues involved in both causes could be determined in one trial, and any judgment recovered by appellee should pro tanto offset the amount recovered by the city.</p> <p>The case was tried by a jury in the court below, and verdict was rendered in favor of the city against Ashford for the sum of $1428.86, and in favor of Ashford against the city for the sum of $1500, with interest, and judgment was rendered upon this verdict in favor of appellee for the difference between the two amounts.</p> <p>Findings of Fact.—1. That the city of El Paso was duly and legally incorporated as a city by special charter of the Legislature in 1873.</p> <p>2. The charter of said city authorized the council to appoint an assessor and collector of taxes for said city.</p> <p>3. That appellee was, on the 21st day of August, 1885, by the city council of El Paso, appointed an assessor and collector of taxes for said city for the term of two years, and that on or about said first mentioned date he entered upon the duties of his office.</p> <p>4. That said tax assessor and collector, as compensation for his services, was by ordinance of said city allowed the sum of 5 per cent on the amount collected for each year.</p> <p>5. The appellee, as assessor and collector for said city, did in 1887 assess the taxes for that fiscal year.</p> <p>6. That said taxes were required to be assessed by said city prior to the meeting of its board of equalization, which met about the 1st of July of 1887, and that said taxes were properly and legally assessed before that time.</p> <p>7. That in August, 1887, appellee’s term of office expired, and J. D. Helzinger was appointed as his successor.</p> <p>8. Helzinger, as his successor, upon the tax rolls made and prepared by the appellee, and which were-accepted by the city, collected the taxes for the fiscal year of 1887. The amount of taxes so collected was $46,-042.61.</p> <p>9. That appellee’s services for assessing the taxes for the fiscal year of 1887 was reasonably worth the sum of 3-J- per cent of the 5 per cent commission allowed by tire city for assessing and collecting the taxes for that year.</p> <p>10. That appellee, prior to the institution of his suit against the city, presented his claim for allowance for assessing the taxes at the rate of 3-J per cent of the 5 per cent commission on the amount of taxes collected for that year, which said city refused and failed to allow or pay.</p> <p>11. Appellee was, at the time of the rendition of the judgment in this ease, justly indebted to said city in the sum recovered by said city in the judgment against him.</p> <p>12. That at the time of the rendition of the judgment, the city was justly indebted to appellee in the sum of $1611.49 as the amount he was entitled to for assessing the taxes, which amount is 3\ per cent of the 5 per cent commission allowed by law to said assessor and collector.</p> <p>We pretermit any finding upon that branch of the case made by the appellee wherein he seeks to recover for services rendered in and about the making and giving descriptions to the city engineer, etc., for parcels of property along which the said sidewalk was to be built, as the disposition we make of the case renders it unnecessary to make any finding upon this branch of the case.</p> <p>[This statement accompanied the opinion.]</p>

<p>Limited Liability of Railway Company—Absence of Statement of Pacts.—A freight contract declared on for nondelivery in effect stated that the carrier would not be liable for damages occurring on connecting lines of road. Judgment for damages against defendant. On error, there being no statement of facts in the record, held, this court will presume that every fact necessary to support the judgment was proven on the trial in the court below. Nor will a charge be considered ground for reversal, in absence of such statement of facts, where facts might exist fixing liability.</p>

<p>1. Homestead—Abandonment.—See facts held to show an abandonment of the homestead by the widow. The property was the homestead of the family at the husband's death.</p> <p>2. Same—Cases Adhered to.—Philleo v. Smalley, 23 Texas, 503; Wool-folk v. Ricketts, 48 Texas, 37; and Slavin v. Wheeler, 61 Texas, 659, adhered to, as to evidence fixing- a homestead.</p> <p>3. Payment of Encumbrance by a Tenant in Common—Subrogation.—The husband died leaving no children, but a sister and his widow. The homestead was encumbered by lien. Out of the community property the widow made improvements and discharged the encumbrance. In suit by the sister for half of the homestead, it having been abandoned by the widow, held, that such improvements and payments should be accounted for as community; the homestead being the separate property of the husband, and the community would be entitled to be reimbursed to that extent. As the widow, in absence of children, inherits the community property, it is immaterial whether such payments were made out of the community, or from her separate estate.</p>

<p>1. Illegal Contract—Practice and Pleading.—Unless otherwise provided by statute, when a plaintiff seeks to enforce an executory contract, or to recover damages for its breach, if in the development of his case it is made to appear that the consideration of the contract involved a violation of a penal law, the courts will declare the contract void, and refuse to aid in its enforcement, whether its illegality be pleaded or not.</p> <p>2. Same—Excessive Fees by Surveyor. —A contract with a county surveyor by which he is to be paid in excess of the fees allowed him by law, is illegal, and upon performance of the work by the surveyor he can not recover such excessive fees stipulated for.</p> <p>3. Same—Fact Case.—See evidence held sufficient to show that the contract declared on was illegal, in that excessive fees were agreed upon for work performed by the plaintiff in the line of his official duty, and for which legal fees are prescribed by statute.</p>

<p>Description in Deed held Insufficient.—Hewett & Newton owned the west one-fourth of survey number ] 98, in section 1, on Palo Alto Creek, of one-third league. After the death of Hewett, Newton sold 150 acres off the north end of the Hewett & Newton tract. An attempt to sell the remainder was made by one Williams, administrator of the Hewett estate, and acting under a power from Newton. Williams' deed as administrator and attorney in fact purports to convey “ all the right, title, and interest of said estate and of said Newton in and to 320 acres, survey 198, section number 1, on Palo Alto Creek, Gillespie County.” The order of sale described the land as “320 acres of land, survey number 198, section number 1, Palo Alto Creek.” The order confirming sale describes it as “320 acres in survey number 198, section 1, on Palo Alto Creek.” In suit for 291 acres of land out of the southwest corner of the survey 198, held:</p> <p>1. That said deed failed to convey the interest of the Hewett estate in the land sued for. Morris v. Hunt, 51 Texas, 609.</p> <p>2. Nor did it convey the interest of Newton. It does not appear with reasonable certainty what particular 320 acres of the survey was intended as that out of which his interest was to be conveyed.</p>

<p>1. Order of Survey—Duty of Surveyor.—The duty of a surveyor acting under an order of survey is to go upon the land he is to survey with a copy of the field notes by which he is to be guided, to search for and survey its lines and corners, and to report to the court the result of his work; that is to say, report such natural and artificial objects as indicate the true positions of the lines and corners, as he may have found. When no objects can be found, then he should so report.</p> <p>2. Estoppel — Equitable. — The culpable conduct of which equity takes cognizance and regards an estoppel may have its origin in a design to deceive and influence the conduct of another, or it may be the result of mere negligence and indifference. Conduct of the latter class, inasmuch as it flows from no evil purpose, and is not designed to influence action, ought not to operate as an estoppel unless it not only influenced the conduct of another person, but might reasonably have been expected to have that effect while such other person was exercising ordinary prudence. See example.</p>

<p>1. Liability of Guarantors. — A contract guaranteeing makers of an agreement for the delivery of articles of trade, will not bind the guarantor for articles delivered before the making of such guaranty.</p> <p>2. Continuing Guaranty — Monthly Settlements. — An insolvent dealer contracted with the ice and refrigerating company for the purchase of ice and beer. The company took a guaranty from other persons. The dealer was notoriously insolvent, and did not make monthly settlements, as his contract required. Held, that if ordinarily a guarantor should be given notice of the failure of the dealer to make monthly settlements, and of the incurring increase of indebtedness, the fact of the insolvency of the dealer or principal would render notice of default unnecessary.</p>

<p>' 1. Master and Servant—Risks—Duty of Master.—The general rule is, that one who accepts employment of another assumes all ordinary risks incident to such employment, and that it is not the duty of the master to instruct him as to the rules of the service, or warn him of the dangers incident thereto, unless information is asked. But the rule is qualified by exceptions. If the master know the danger incident to the employment, or ought to know it, and if the servant is ignorant, and such ignorance is known to the master, it is his duty to warn the servant and put him upon his guard against the danger. See allegations held sufficient to bring the case within the exception.</p> <p>2. Same—Care by Master—Practice.—Action by servant for injury to his hand while attempting to couple cars, he being an employe of only seven hours, from alleged negligence on the part of the employer: Held, the receivers were only required to provide for their servants reasonably safe appliances and to exercise ordinary care in so doing. The petition charged that the receivers “ carelessly and negligently failed to furnish a coupling knife.” Such allegation, in absence of specific exception, was a sufficient allegation of negligence. although not showing the degree of negligence.</p> <p>3. Charge.—A charge in its general propositions of law may be defective, but if in applying the principles to the facts the court supplies the defect, such defect is no ground for reversal.</p> <p>4. Rules by Employers must be Reasonable.—The court properly instructed the jury, in leaving to them the reasonableness of a given rule imposed upon employes, and whether the rule had been made known to the employe before he was injured.</p> <p>5. Master and Servant—Care by Master.—The court having charged upon the facts in evidence, added: “ The law requires a master to furnish his servant with such reasonably safe appliances as are usually provided for the performance of like services by persons of ordinary prudence and care,” and that “ this is the extent of the master’s duty in this regard to his servant.” Meld, that there was no error in the refusal to give a requested charge. “ that the master is not an insurer of his servant while in his employ, but is only bound to use ordinary care in providing for his safety.”</p> <p>6. Charge Properly Ref used. — The plaintiff’s case being upon the exception noted in paragraph 1 above, it was proper to refuse instructions seeking to base the duty of the master and servant upon the general rule. See examples.</p>

<p>1. Suppressing Testimony —Fraudulent Conveyance.—An attaching creditor of an insolvent firm caused property sold by such firm to be seized. The vendees claimed the property. The sale was attacked as made to hinder and delay creditors. There being testimony tending to show that the stock of goods was sold for less than its value, and out of the ordinary course of trade, and that the invoices and bills of the insolvent firm passed to the purchasers of the goods, it thus became material whether the purchasers hai notice of the financial collapse of their vendor. The bills and invoices would tend to show such knowledge. A subpoena duces tecum was issued and served on the claimants of the goods. No attention was given by them to the writ. Reid, it was error to exclude the writ subpoena duces tecum and the return thereon when ■offered, as tending to show a suppression of material testimony.</p> <p>2. Negotiations for Compromise.—Declarations by parties when negotiating for a compromise are incompetent in a suit involving the subject of such negotiations.</p>

<p>1. Evidence to Existence of Lost Deed.—See facts held sufficient to support a finding by the trial judge of the existence and contents of a lost deed, under which possession had been held for many years.</p> <p>2. Declarations of Party in Possession.—Declarations by a party in possession of land, that he claimed the property, and that his deed was lost, are competent in evidence when offered by one claiming under him.</p> <p>3. Knowledge and Belief of Witness.—A witness may testify as to his knowledge and belief that he had seen a deed shown to have been lost.</p> <p>4. Circumstances.—It being in issue whether the town lot in controversy had been sold under a trust deed, there being testimony tending to prove the existence of such deed by the trustee, it was competent to exhibit in evidence three notes secured by the trust deed, found among papers of the trustee after his death, with endorsements; one as paid, another “by balance on house and lot $30,” and the other with no endorsement.</p> <p>5. Evidence of Execution Supporting Sheriff Sale. — See evidence held sufficient to authorize the introduction of a sheriff’s deed, in absence of such execution, which was recited in the sheriff’s deed.</p>

<p>Incorporation for School Purposes.—The Act of April 10,1891 (Acts Twenty-second Legislature, page 79), providing for incorporation of towns and villages for school purposes only of territory not exceeding four miles square, authorizes the incorporation into such town or village that area, regardless of whether it includes agricultural lands; nor does it affect such incorporation, that the town or village may not be in the center, or near it, of such incorporated territory.</p>

<p>1. Practice—Purchaser at Execution Sale.—Sheriff sale under execution. Purchaser sold the land with general warranty. The defendant in execution brought suit for the land. The defendant vouched his warrantor, who in defense set up his judgment against the plaintiff, under which the land had been sold; asking relief in case the sheriff sale should be held invalid. The plaintiff was a nonresident, and appears to have been such at the rendition of the judgment under which the land was sold. Held, that exceptions to this answer were properly sustained.</p> <p>2. Certificate of Clerk—Absence of Seal.—A certificate of a district, clerk to a copy of a record of his office must be authenticated by the seal of the court. Without the seal it can not be considered as the official act of the clerk.</p> <p>3. Judgment on Citation by Publication.—A judgment not reciting service of citation can not be avoided in a collateral proceeding by producing a. certified copy of an application for and the issuance of citation by publication, in absence of the sheriff’s return, and of information as to what else the record may contain.</p> <p>4. Collateral Attack upon Judgment on Citation by Publication.—In a ease where the judgment is silent as to notice, and if it be made to appear from the record that the defendant was a nonresident of the State, and that citation was served by publication, and the record does not show an acceptance or waiver of notice, such judgment will be held void in a collateral proceeding.</p>

<p>Notice of Appeal.—Where the record does not show that notice of appeal was given in open court, the appeal will be dismissed for want of jurisdiction.</p>

<p>This is a suit by appellant, Browne, against appellees. Horace G. French, C. M. Rogers, and Matilda Christian, surviving wife of Edward Christian, upon an indemnity bond in favor of appellant Browne, executed by H. G. and S. W. French, as principals, and C. M. Rogers and E. Christian, wherein they obligated themselves and bound themselves to pay all the accounts, demands, and debts of every character against said firm of French & Browne, and to forever hold said W. E. Browne harmless from any liability or obligation to pay any of said accounts, demands, or debts-against said firm, or any part thereof, to any and all creditors of said firm.</p> <p>It appears that the appellant was a member of the firm of French & Browne, and that he sold out his interest in the firm business (which was that of general undertakers in the city of Austin) to H. G. and S. W". French, and that the execution of the bond, and the assumption of the debts therein mentioned, by the obligors in the bond, was a part of the consideration for said sale.</p> <p>The breach of the bond for which recovery is sought in this case consists of the fact, that after the execution and delivery of the bond to appellant, one Hamilton recovered a judgment against the old firm of French & Browne, and against said firm the Crane-Breed Manufacturing Company also recovered a judgment for the sum of 81795.57, both demands being debts due by said firm of French & Browne, and which were covered by the bond executed by the appellees, which they refused to pay. It appears that the appellant was served with process in the above suits against the firm of French & Browne, and he contends that the judgments so recovered by said parties create a liability against him, for which the obligors in said bond are bound, and that such facts create a breach of the bond.</p> <p>The appellees Rogers and Christian, among other things, pleaded, that the judgment obtained by Crane-Breed Manufacturing Company against French & Browne was based on an account for goods furnished said firm between the dates October 9, 1885, and May 20, 1886, and that the suit was instituted January 29, 1889, and that at the date of said suit said account was barred by the statutes of limitation of two years. That they were not parties to said suit, nor did they know of its pendency; and that as appellant was a party thereto, it was his duty to either notify the appellees of the pendency of the suit, or he should have pleaded to said demand the statutes of limitation, and which he failed to do; therefore he was negligent in his duty to appellees, who were only sureties, and therefore they are discharged; and further, that the judgment so obtained against their principal, French, in said suit, was not binding and conclusive. against them, they not being parties thereto. This is as much of the answer as we think necessary to state.</p> <p>The cause was tried by the court without a jury, and judgment was rendered in favor of appellant against all of the appellees for the amount of the judgment recovered by Hamilton against French & Browne, and in appellant’s favor only against H. G-. French for the amount of judgment recovered by Crane-Breed Manufacturing Company against French & Browne, and in favor of appellees Christian and Rogers as to this amount. From this judgment appellant appeals.</p> <p>We find the following facts:</p> <p>1. May 19, 1886, and prior thereto, the appellant and H. G-. French</p> <p>were engaged as partners in the undertaking business in the city of Austin, Texas, under the firm name of French & Browne; and on May 19, 1886, the appellant sold his entire interest in said firm and business to H. Gr. and S. W. French, they agreeing to pay all the debts of French & Browne. As a part of this transaction, the bond sued on was executed by H. G-. and S. W. French, as principals, and the appellee C. M. Rogers and one Edward Christian, the deceased husband of appellee Matilda Christian, as sureties, by the terms of which they bound themselves to pay all the accounts, demands, and debts of every character against said firm of French & Browne, and to hold plaintiff harmless from any liability or obligation to pay any of said debts and accounts, or any part thereof. The bond states, that if said H. Gr. and 8. W. French shall well and truly pay all accounts, demands, and debts against said firm to any and all creditors of said firm, and to forever hold the appellant harmless from any liability or obligations to pay any and all of the same, then the obligation to pay the 83000, the penalty of the bond, is to be null and void, otherwise to remain in full force and effect.</p> <p>2. October 3, 1888, Frank Hamilton recovered a judgment against French & Browne, and against the appellant individually as a member of said firm, for the sum of 8297, with interest thereon at 12 per cent, and for 812.50 costs of suit, said judgment being upon a promissory note executed by French & Browne, a debt covered by the bond executed by the appellees. This judgment was not paid or discharged by appellees when this-suit was instituted, nor has it been paid by appellant, so far as shown by the evidence.</p> <p>3. January -, 1889, Crane-Breed Manufacturing Company sued French & Browne in the District Court of Travis County upon an open account for undertakers’ goods sold said firm on divers days between October 9, 1885, and April 30, 1886, with one item stated as “ New plain case, plain, lined, 845,” sold May 20, 1886. And that on March 8, 1889, judgment was rendered in favor of. said Crane-Breed Manufacturing Company against the appellant and H. G-. French for the sum of 81795.57, and for costs to the amount of 89.05. That said judgment has not been paid off or satisfied by the obligors in said bond, nor does it appear from the evidence that the appellant has paid any sum upon the judgment. We further find, that the account sued upon and merged into the foregoing judgment was a valid debt against the firm of French & Browne, and was covered by said bond so executed by the appellees French and Rogers and Edward Christian, except the last item in said account mentioned as being in amount 845, for goods sold on May 20,1886; and that the judgment for the amount recovered was a legal and valid demand against said French and the appellant, with the exception of said sum of 845, above mentioned.</p> <p>4. Appellee Matilda Christian is the wife of E. Christian, who died in 1888. The court below found as a fact that Matilda Christian had duly qualified, under chapter 28, title 37, of the Revised Statutes of Texas, as survivor of the community estate of herself and E. Christian, and is acting as such. We find no evidence in the record that fully sustains this finding, nor are any facts shown that tend to prove that appellee Matilda Christian has received or has there come into her possession any separate property of E. Christian, deceased, or that there is any community property of the estate of E. Christian and herself. But there are some allegations in her answer that inferen tially admit that there is a community estate of E. Christian and herself, and that she has control and possession thereof as the survivor of the community; and in view of the fact that no point is made upon this phase of the case, and as the parties both in their respective briefs treat this matter as properly found by the trial court, we adopt the finding of the court as above stated as the finding of fact by this court.</p> <p>5. In the suit of Crane-Breed Manufacturing Company v. French & Browne, the appellant accepted service and filed no answer and presented no defense of limitation, nor was such defense interposed by any one, and that the judgment in said suit was by default against both defendants French and Browne. The appellees Christian and Rogers were not made parties to said suit and were not notified of the pendency of said suit. That the appellant was in Louisiana, without the jurisdiction of this State, at the time the suit was brought.</p> <p>6. Certain written orders and letters were, upon the trial of this cause, introduced in evidence, and the parties to the record have agreed that all of the articles set forth in the account of the Crane-Breed Manufacturing Company sued on in this suit, against French & Browne, were sold to French & Browne upon said written orders and letters, which we find to be a fact; and among the letters so mentioned are the following:</p> <p>“Austin, Texas, January 5, 1885.</p> <p> “The Grane & Breed Manufacturing Company, Cincinnati: </p> <p>“ Gents—Your draft of-instant, calling for $238.12, will be hon-</p> <p>ored by us and payment made in full. Invoice of goods shipped December 14 to hand; but inasmuch as we had ordered so many goods since we gave Mr. Smith the order, and have so many of the same goods on hand, this bill will greatly overstock us at present; we had expected to countermand the order in part, but omitted to do so till too late; we therefore claim your indulgence if at the expiration of 90 days we should be unable to meet the payment, as at that time we will also have other bills of yours falling due. We promise, however, to do our best at all times to satisfy your claims.</p> <p>“ Respectfully, etc.,</p> <p>“ French & Browne, per S.</p> <p>“Austin, Texas, March 3, 1886.</p> <p> “ Crane & Breed Manufacturing Company, Cincinnati, Ohio: </p> <p>“ Gents—Yours of recent date, asking remittance, received. We hope soon to be able to comply with your request. The past two months have been extremely dull with us, on account of the unusual good health of our community; but thanks to your kindness, we are now prepared with a full assortment of undertaker’s goods to fill any order that may come to hand, and you may rest assured that we will do what is right by you, and only claim your indulgence a short time, as business always looks up here in the spring of the year. We ask you not to draw on us, but promise to send a remittance as soon as we possibly can. Enclosed find statement for freight allowance for bill received- in December, which amount please place to our credit.</p> <p>“Respectfully, etc.,</p> <p>“ French & Browne.”</p> <p> “Messrs. Crane & Breed: </p> <p>“Austin, Texas, April 30, 1886.</p> <p>“ Gents—Please find enclosed draft for §50, for which give us credit. Will remit again in a few days.</p> <p>“ Respectfully, etc.,</p> <p>“ French & Browne.”</p> <p>7. We find from all of the evidence in the record that the foregoing letters referred to and related to the account and debt sued on by Crane-Breed Manufacturing Company in their suit against French & Browne, and that said letters, in effect, acknowledged the justness of the account and debt so sued upon, and, in effect, are promises to pay same; and that said letters are a ■ sufficient promise in writing to take the debt so sued upon out of the operation and bar of the statute óf limitation.</p> <p>[This statement accompanied the opinion.]</p>

<p>1. Rights of Railway Company when Granted Right of Way Upon a Street.—A railway company having the right of way along a public street, has the right to cross a public road which crosses such street, with the duty of restoring the street to its former state, or to such state as does not unnecessarily impair its usefulness.</p> <p>2. Limitation —Constructing Railway Along Street. — A railway company having the right to construct its road along a public street, has a reasonable time given it for such construction, and the consequent obstruction of the street. An owner of adjacent property has no right of action for such obstruction until after such reasonable time, and limitation does not run against him until the end of such time.</p> <p>3. Pleading —New Cause of Action. —Original petition for damages charged, that a street had been obstructed, and that the work of construction was not done in a careful and skillful manner; obstructing ingress, etc., to plaintiff’s premises. Held, that amendment giving details of such obstruction was not a new cause of action. See example.</p> <p>4. Obstructing Street — Joint Defendants.—It not appearing by uncontroverted testimony that all three of the defendants had engaged in the act complained of, it was error in the charge, “that if one was guilty all were liable.”</p> <p>5. Judicial Knowledge—Transfer of Railway.—Courts will not judicially assume a transfer of one road to another to have been prior to a date given in the testimony for such transfer.</p>

<p>Proof of Heirship, Collateral. — A single man was killed at the Alamo, March 6,1836. Collateral heirs brought trespass to try title for land granted to the heirs of the deceased. There was no proof introduced of the death of the parents, or either of them. Trial was had October, 1890. Held, that in absence of testimony to the death of one or both of the parents, the plaintiff could not recover. The court will not presume the death of the parents from the facts in evidence.</p>

<p>Jurisdiction in Appeals from Justice Court — Attorney Fees.— Where the amount in controversy and the judgment in a Justice Court is less than $20, the statutory attorney fee allowed (in damage suits against a railway company) can not be added to the judgment and thus confer jurisdiction on appeal.</p>

<p>1. Telegram —Notice Implied. — A dispatch was directed to the father that his child was dying, and calling for an answer. In the nature of things he would be expected to reply .to such message, and also to hasten home to the funeral. The petition by the father alleged that had the telegram been received he would have so replied that the funeral of the child would have been delayed so that he could have been present. These allegations, and mental suffering, etc., give cause of action for nondelivery of the message.</p> <p>2. Duty of Telegraph Company on Receiving Message.—A telegraph company receiving a message from another company, for transmission, takes it with the implied duty that it will exercise reasonable diligence and dispatch in transmitting the message to its place of destination, and in delivering it to the addressee.</p> <p>3. Repeating Message.—That the message was not repeated did not excuse an error chargeable to the employes of the telegraph company in misdirecting a dispatch; e. g., directing to “Normah” instead of “Norman.” Repeating would not have corrected such mistake.</p>

<p>1. Construction of Contract.—Sale of land, part for cash. The vendees -claimed 13 acres of the tract of land under another title, and they were in possession. The price of the 13 acres was deducted from the cash payment, the vendees executing a bond with sureties to pay “for said 13 acres, or so much thereof as the vendors may maintain their title and possession of, and place the said vendees in possession of, as herein stipulated in suit on the bond.” Reid, that said obligation was not payable until the title of the vendors had been adjudicated to be superior to that held by the vendees prior to the sale. This result is not changed from the fact that the vendees remained in possession.</p> <p>2. Jurisdiction of the County Court — Case Involving Title to Land.—This litigation involved the title to the 13 acres of land, and the County Court had no jurisdiction of an action upon the bond for the purchase money.</p>

<p>Ebbob from Llano. Tried below before Hon. A. W. Motjesund.</p>

<p>1. Case in Judgment—Sale by an Attorney in Fact—Recitals in Certificate of Acknowledgment.—In 1844, Hunt, the attorney in fact, who hacl a written power of attorney from one Palmer to convey land, sold and conveyed the land, reciting a paid consideration of $1000; but in the acknowledgment of the deed, which is in proper form, was this recital: “Provided, it is expressly understood and acknowledged by the said Charles S. Hunt, that the foregoing deed is given in consideration of eight land certificates for one league and labor of land each [giving a list of them], which certificates, as aforesaid, Charles S. Hunt sold to John D. Wilkins [thegrantee in the deed], which being passed by the Board of Land Commissioners for the county of Jasper, and on examination by the Board of Examining Commissioners, rejected, which circumstances render the validity of such claims doubtful, therefore this deed is given as indemnity to said John D. Wilkins.” This deed was recorded as early as 1850. Since 1846, Palmer nor his heirs have paid taxes on the land. He resided in Jasper County, where the land lies, until his death in 1850. In 1886, defendant bought the land from the heirs of Wilkins, paying full value for it, placed its deed on record, and paid taxes, and in 1889 took actual possession. Suit was filed by the heirs of Palmer to recover the land, in 1891. A judgment for defendant was affirmed.</p> <p>2. Power of Attorney—Power Granted by.—That the power of attorney did not authorize a conveyance for such a consideration as that recited in the acknowledgment, is plain. The authority to Hunt was to sell, and having sold, to convey. He had no power to convey without selling. The general terms are to be intended as used in aid of the specific power defined, and not as containing in themselves an enlargement of the scope of the authority. A power to sell does not include a power to convey in discharge of a pre-existing obligation or liability, even of the constituent.</p> <p>3. Acknowledgment in 1844.—The statute at that time did not require that the certificate of authentication should contain any statement concerning the consideration of the instrument, and even now such a statement is not necessary; nor was the acknowledgment an essential part of the deed, but that instrument operated from the date of its delivery, which is presumed to have been made at the date of the instrument, rather than that of the acknowledgment.</p> <p>4. Recitals in Certificate, Effect of.—The deed passed the title, irrespective of the recitals in the acknowledgment, by its own force. But the recitals are evidence against defendant that the recited fact existed. The deed comes from the custody of those claiming under it, and is one of the evidences of title; the acknowledgment was made use of as a means of recording the deed, and the recitals are not to be treated as the ex parte statements of Hunt and the officer, but are rather analogous to an assertion made by one person prejudicial to the interest of another, in his presence, and not denied. It is evidence, though not conclusive evidence, that the facts existed as stated.</p> <p>5. Sales by Attorney in Fact—Void and Voidable.—Under a naked ■power to sell, a conveyance by the attorney in fact without consideration, or upon a consideration enuring to himself alone, is void, a*s between the parties, ■and passes no title, either legal or equitable; yet such a conveyance maybe ratified, and may support a title in a subsequent bona fide purchaser from the grantee, and therefore is not, in an absolute and unrestricted sense, void. In the hands of the grantee of the attorney in fact, and of all persons purchasers from him with notice of the fraud, it is void as against the constituent of the power, and may be so treated by him.</p>

<p>1. Jury—Challenge for Cause.—Following decisions of the Court of Appeals, it is held, that previous service by a juror for one week during the same term of the court at which he is again offered as a juror, is not a good ground of challenge for cause. Associate Justice Pleasants, if it were an entirely new question, would be disposed to hold otherwise.</p> <p>2. Argument of Counsel.—Counsel, in his closing speech to the jury, was, unrebuked, allowed to say: “ Counsel for defendant tells you that 1 may try to prejudice you. I have not told you of the great privileges the city has given to it; I have not said anything about its not having an effective hydrant in this whole city; I have not told you that this corporation has aplace up here ■on the street where it retails water by the barrel,” etc. Being excepted to, and considered along with the third assignment, which complains that the verdict was against the weight of the evidence, a new trial should have been granted.</p>

<p>1. Jurisdiction of the Court of Civil Appeals in Cases Appealed from the Justice to the County Court.—The former Court of Appeals has held that it had jurisdiction when the judgment rendered or the amount in controversy in the Justice Court exceeded $20, and there had not been a trial de nova in the County Court. As the question can not arise as to the jurisdiction of this court, since the limitation as to trial de nova does not occur in the law organizing the Court of Civil Appeals, and we have very few cases transferred to us from the Court of Appeals in which the question could arise, we prefer to follow the law as construed at the time that this appeal was perfected, and to hold that we have jurisdiction of the appeal in this case, although the Courts of Civil Appeals for the Second and Third Districts have held otherwise.</p> <p>2. Attorney Fees not Costs—Amount in Controversy.—The purpose of the law (Act of April 5,1889), giving fees in suits for the collection of claims against railways, where the amount of the claim does not exceed $50, is to fix the measure of damages recoverable in such cases, and the measure of damages is the claim sued for and the attorney fees. The act does not provide that the fee shall be taxed as costs, nor does its recovery follow a judgment for the claim sued on as costs. It can only be recovered when the claim does not exceed $50, it can not exceed $10, thirty days must have elapsed from the time the claim was presented before suit, and plaintiff must establish his claim for the tall amount. Hence the right to recover the fee at all. as well as the amount of it, is a matter in controversy, and it must be sued for as a part of the plaintiff’s demand; hence the amount of it is a part of the amount in controversy.</p>

<p>1. Plea of Payment, How Made.—The plea upon its face showed that the alleged payment of the note sued on was made in several amounts, or items, made at different times. Where the payment is made in installments, at different times and under different circumstances, article 1266, Revised Statutes, applies, and the plea should be specific as to dates and amounts paid. The opposite party should be put on notice by the plea of the different installments, the payment of which is sought to be proved, in order that he may prepare to meet the ■defense.</p> <p>2. Supporting Statements to Propositions Must be Made in Brief.—The brief consists only in a statement of the nature and result of the suit, assignments of error, propositions, and citations of authorities. There are no proper statements of the contents of the record under the propositions relating to or affecting the points made. We do not feel that we are required to consider a case thus presented; and when counsel are not more observant of the rules, they must take the risk of having their cases disposed of without any examination of the record.</p>

<p>1. Lessor—Damages to Leased Land.—The lessor can not sue for the destruction of grass on the leased land, caused by the escape of sparks from passing locomotives. The person who is rightfully in the actual and exclusive possession of the land is alone authorized to sue for trespasses upon his possession.</p> <p>2. Value of Destroyed Fencing may be Recovered by the Lessor. If the fires resulted from the negligence of the railway company, it would be liable to the owner of the land for any damage done to the fences by its negligence, although the lessee is under obligation to make repairs. Such obligation does not require the tenant to replace improvements which have been destroyed by the act of a stranger without fault of the tenant.</p>

<p>Error from Galveston. Tried below before Hon. Wm. B. Lockhart, County Judge.</p>

Error from Leon. Tried below before Hon. Norman G-. Kittrell. The opinion states the case, except the language of the charge complained of, which is found in the first assignment of error.

<p>This is a suit instituted in the Justice Court for $194.50 for burning 32-| acres of grass, of the value of $150, 75 posts of the value of $4.50, and injury to the turf by burning of said 32-J- acres, $40. Defendant filed answer in the Justice Court, where the case was tried, and judgment was rendered for the appellee for $194.50. Appeal was perfected to the County Court, where the case was tried before a jury, and verdict was rendered for appellee for the sum of $194.50. Before the entry of judgment in the County Court, plaintiff in open court remitted the sum of $37 from the amount of the verdict, whereupon judgment was rendered for the appellee for the sum of $157.50 and all costs.</p> <p>The court charged the jury as follows: “If you find for the plaintiff, the measure of damages will be the difference between the value of the land alleged to have been injured immediately preceding the time of the burning and immediately after the time of burning, and you will so consider this matter from the evidence before you upon this trial.”</p> <p>Defendant was not permitted to prove the reasonable market value of grass land when used for hay or pasturage purposes.</p>

<p>1. Jurisdiction of County Court — Amendment to Confer. —Appellees sued in the County Court on a note for $2500, upon which had been paid $1561.42, but the ten per cent attorney fee stipulated for in the note made the amount in excess of $1000. Defendants having filed demurrer and plea to the jurisdiction of the court, plaintiffs by amendment remitted all of the amount sued for as principal and attorney fees in excess of $1000. The real cause of action could not be thus reduced without the consent of the defendants, so as to bring the amount in controversy within the jurisdiction of the County Court, and the case is reversed and dismissed.</p> <p>2. Attorney Fees, Abandonment of Claim for.—It may be that the claim for attorney fees was so entirely distinct from the debt that plaintiffs-might have wholly abandoned it, and thus have obtained a standing in court upon a cause of action which the court had power to adjudicate, but this was-not done. It was not permissible to abandon a part of that demand and recover the remainder. What court had the power to hear and adjudicate was determined bylaw, and the right to have the cause passed on in that forum belonged to the defendants as well as the plaintiffs.</p> <p>3. Remittitur of Damages to Confer Jurisdiction. — When liquidated damages are claimed, plaintiff can not, by remitting a part, confer jurisdiction ; when unliquidated damages are claimed, it can be done, provided no fraud upon the jurisdiction is practiced thereby, because in such cases there is no way to determine the amount in controversy, in advance of trial, except by the allegations made by plaintiff.</p> <p>4. Collateral Attack on Judgment because of Jurisdiction thus Obtained.—When the attack upon a judgment for want of jurisdiction is made after the judgment has been rendered, upon the ground that jurisdiction has been obtained by a remittitur of a part of the original cause of action, we hold that the court was not without jurisdiction of the subject matter in such sense as to render its judgment void for the amount sued for and adjudged, not exceeding the limits of its jurisdiction.</p> <p>ON REHEARING.</p> <p>5. Upon a Rehearing.—At request of appellees, the judgment of this court is so modified as to remand the case, in order that they may amend by abandoning the whole claim for attorney fees, and thus bring their claim within the jurisdiction of the County Court, being charged with all costs up to the filing of such amendment.</p>

<p>1. Attachment Lien not Lost by Delay in Service of Citation,,. when.—Under the law in force May 13,1888, the hare fact of a valid levy of an attachment upon land created a lien, of the existence of which all parties were required, pending attachment, to take notice; and such lien was not lost by reason of the delay of a few months in securing service of citation by publication on the defendant in attachment.</p> <p>2. Lis Pendens—Case Distinguished.—The case of Smith v. Cassidy, 73 Texas, 165, announcing the doctrine that lis pendens begins, not with the • filing of the petition, but only from the date of the service of the citation, is distinguished from the present case by the fact that no attachment was issued or / levied in that case.</p>

<p>1. Judicial Cognizance—Laws in Indian Territory.—Congress having adopted certain chapters of Mansfield’s Digest of the Statutes of Arkansas as the law in force in the Indian Territory, the courts of Texas will take judicial cognizance of the laws thus adopted, and they need not be pleaded.</p> <p>2. Contract—Law of Place Governs, when.—An instrument executed in the Indian Territory, where the personal property conveyed thereby was situated, is to be governed, in determining its nature and validity, and whether it is to be held an assignment or a chattel mortgage, by the laws in force where it was executed.</p> <p>3. Chattel Mortgage or Assignment — Instrument Construed.— See the opinion for an instrument which, upon its face, would be held under the 'Texas law to be a mortgage, and under the law of Arkansas an assignment, subject, however, to be declared a mortgage upon paroi evidence that it was so intended.</p>

<p>1. Chattel Mortgage—Instrument Construed.—An instrument duly ¡signed and reading as follows: ‘‘Alvarado, Texas, 10-21,1889. Due James E. Banck, 30 days after date (for 29 mules and 1 mare), $1300, value received—mules to stand for debt,” will, if the parties to it intended. thereby to evidence a lien on the mules, constitute, as between such parties, a valid chattel mortgage, and resort may be had to paroi evidence to more clearly identify the property.</p> <p>2. Same—Registration not Necessary, when.—Registry of a chattel mortgage is not necessary as between the parties thereto, but only as against creditors of the mortgagor, and as against subsequent purchasers and mortgagees or lien holders in good faith.</p> <p>3. Same—Defeasance not Requisite.—If the instrument was intended as a security for debt, it is not necessary, in order for it to be a valid chattel mortgage, that it should contain a defeasance, or show a retention of the property by the mortgagee.</p>

<p>1. Abstract of Judgment held Sufficient. — Where an abstract of a judgment states the date of the judgment, the amount, principal and costs, for which it was rendered, the rate of interest, and that there are no credits, it sufficiently shows the amount due on the judgment at the date of the abstract, since it requires but a calculation of interest to ascertain the exact amount then due.</p> <p>2. Vendor’s Lien Interest in Land not Subject to Execution.— The interest of a vendor in land sold by him, where a portion of the purchase money is paid and a lien is expressly retained in the deed for the balance, is not such an interest as can be sold under execution until there has been a rescission of the sale.</p> <p>3. Same —Deed Reserving Lien as an “Executory Contract.”— If a deed reserving on its face a vendor’s lien can be regarded as an executory contract, it can only be so considered in the sense that the grantee’s title does not become indefeasible until the purchase money is paid.</p>

<p>1. Damages in Shipment of Cattle — Market Value.—The general rule, that the measure of damages for injury occasioned in the shipment of cattle is the difference between their market value on arrival at their destination, and what would have been such market value there but for the injury, is not applicable where the cattle are not destined for market, and are not sold on arrival at their destination, but are kept by the owner until they recover from the injury.</p> <p>2. Same — Measure of Damages Stated. — In such case the correct measure of damages is the actual damage caused by the improper treatment, and any extra expense which the owner may have incurred by reason thereof in attending to the cattle.</p> <p>3. Same — Special Pleading by Defendant not Requisite. — The general denial by the defendant requires the court to give in charge the correct measure for the damages sustained, according to the facts as developed on the trial, and special pleadings alleging plaintiff’s damage not to be so great as it at first appeared are not necessary.</p> <p>4. Same — Liability of Joint Wrongdoers.—It was the duty of the defendant railway company to receive the cattle tendered it for shipment by a connecting line, unless it had a legal excuse for not so doing; and if it wrongfully refused so to do, and this wrongful act on its part contributed in causing the injury, it will be liable to the owner for the entire damages, even though such connecting line may also have been guilty of negligence which aided in increasing the damages.</p>

<p>1. Bill of Exceptions—Depositions.—A bill of exceptions to the refusal of the court to suppress a deposition, on the ground that the officer taking it had failed to write his name across the seal, should show that some part of the deposition was read in evidence on the trial.</p> <p>2. Telegraph Company—Notice of Claim.—Where a telegraphic message as delivered to the company for transmission was not accompanied hy any condition requiring notice of claim for damages to he given within sixty days, the company can not impose such condition by virtue of its being contained in the printed form on which ths message is transcribed for delivery to the addressee.</p> <p>3. Variance—Allegata and Probata.—In order to constitute a variance, a misdescription must tend to mislead and surprise the opposite party, and must -exist in the pleading. If the evidence tends to prove the issue, its errors and Imperfections will not exclude it.</p> <p>4. Same.—Where a telegraphic message is set out in the pleadings, and the -evidence shows but one message was sent, a discrepancy as to the date and verbiage does not constitute a variance, but the jury are to determine whether the message pleaded was proved in substance by the evidence.</p>

<p>1. Deed—Description of Land.—A description of land in a deed, as follows, “1377 acres of land situated in Young County, Texas, surveyed and patented by virtue of my headright certificate,” is not void for uncertainty upon its face, since, so far as the deed discloses, the tract may have contained only 1377 acres. And as a voluntary conveyance of a certain number of acres out of a larger survey, it would entitle the grantee to an undivided interest therein to that extent.</p> <p>2. Acknowledgment of Deed —Grantor Known to Officer.—Tho law in force October 8,1860, did not require that the certificate of the officer before whom a deed was acknowledged should show affirmatively that the grantor-was known to him, but only that the officer should attach to his certificate certain proofs of identity in case the person making the acknowledgment was not known to him.</p> <p>3. Description of Land in Pleadings and Judgment.—Plaintiff’s petition described the land sued for as “200 acres out of the F. L. Green head-right, in Young County, Texas, the lines of said land to be run so as to make a square body adjoining a tract owned by S. M. Smith, so as not to injure or disfigure the balance of the land;’’ and the verdict found in favor of plaintiff for “ the land in controversy.” The judgment thereon decreed to plaintiff an undivided interest of 200 acres in .the whole survey, without reference to its shape or location as to the Smith tract. Held, that the judgment was not supported by the pleadings nor by the verdict, and that plaintiff should have alleged the location of the Smith tract, and then either have designated the part of the-Green survey adjoining it which he claimed as his 200 acres, accompanied with appropriate allegations and proof that when so taken the remainder of the survey would not be disfigured, or else should have prayed the appointment of commissioners to lay off his 200 acres in a square next the Smith.</p>

<p>County Treasurer — Commissions on Bridge Bonds. — A county treasurer is not entitled to commissions on bonds issued by the county and delivered directly to the contractor in payment of a bridge built for it, the bonds never having been sold and the proceeds thereof received by the county.</p>

3. Practice on Appeal — Findings of Fact Influenced by Error of Law.—Where the trial court erroneously held that under the deeds in evidence the burden of showing that the land was the separate property of the wife rested upon those claiming under her, but found that, if mistaken in that conclusion, the evidence was nevertheless sufficient to overcome the prima facie case made by the recitals in the deed, and to establish that the land was community property, and it appeared…

<p>1. Judgment Conclusive of Title—Partition and Writ of Possession not Essential, when.—In a suit of trespass to try title by L., against W. as defendant and M. as intervenor, W. recovered 200 acres of the land, M. the remaining420 acres, and plaintiff nothing; the judgment reciting that should W. and M. fail to designate the boundaries, or have surveyed by agreement the 200 acres adjudged to W. within one month from adjournment of court, “ then -are hereby appointed commissioners of partition to allot said 200 acres to W., and report their action to the next term of this court.” No division was made by agreement, and no commissioners were appointed to make it, nor was any writ of possession issued. Within the two years allowed for suing out writ of error, plaintiff L. compromised with M., each to take one-half (undivided) of the 420 acres adjudged to M., who afterwards conveyed his interest to B. and to other parties. W. having died, L. filed suit for partition more than three years after the judgment, asking that it be carried out and his 210 acres set apart to him, to which B. and W. answered, claiming all the land, and setting up the three, five, and ten years limitations. Held, that the judgment in the former suit was a final adjudication of the title, conclusive as between all parties thereto and those claiming under them.</p> <p>2. Same—Limitations not Available Against Judgment, when.— The judgment in the former suit cancelled all claims by virtue of possession prior thereto, and such possession could not, in the second suit, be tacked to possession since the judgment so as to support any of the defendants’ pleas of limitations therein.</p> <p>3. Change in Form of Action Does not Affect Limitations, when. Plaintiff L. having changed the form of his second action from one of partition to one of trespass to try title and partition, but recognizing the rights of the parties to be the same as alleged in his original petition, there was no such change as would prevent the original petition from having the effect to stop the running of the statute of limitations.</p> <p>4. Parties—Purchaser Pendente Lite.—It was immaterial that plaintiff L., after the institution of the second suit, had conveyed his interest in the land to another person, since a purchaser pendente lite need not be made a party to the record.</p> <p>5. Same.—Nor was it material that L., prior to the judgment in the original suit, had conveyed his interest to one C., since his subsequent compromise with M. reinvested him with sufficient title to maintain this suit.</p> <p>6. Deposition—Data to Refresh Memory of Witness.—The court correctly refused to exclude a deposition because a letter by which the witness refreshed his memory as to a date was not attached thereto, the witness not having been asked to attach the letter, and no effort having been made to quash the deposition before entering into trial.</p> <p>7. Parol Evidence Contradicting Deed Admissible to Show Notice.—M., after his compromise with L., conveyed to S. and J. one-half of his then interest, and by a later deed conveyed to B. “all the undivided right and title that was decreed” to him in the judgment, without allusion to the compromise, or his conveyance to B. Held, thatM. was properly permitted to testify that at the time he conveyed to B., he informed B. of the compromise, and of his deed to S. and J.</p> <p>8. Proof where Title is Specially Pleaded—Common Source—A party in trespass to try title can not introduce another and different title to that, specially pleaded by him, but he is not required to introduce all the links set forth in his plea, if he can show a better title than his adversary by introducing-only a part of them, including a common source.</p> <p>9. Partition — Adjustment of Taxes and Rents Between Cotenants.—Where, in partition, a joint owner who has had possession of the entire-premises, asks contribution from a cotenant for taxes paid, this should be allowed only upon an adjustment of the equities between them as to both rents and taxes,, and such adjustment may be had when the report of the commissioners of partition is filed for confirmation in the trial court.</p>

<p>1. Damages Caused by Grading Street—Liability of City.—The owner of land abutting upon a street is entitled to damages for any permanent injury done the land by a material change of the street grade, whether from the natural or previously established grade, where such damages exceed the benefits derived from the grading.</p> <p>2. Same—Measure of Damages.—The measure of damages in such case is the difference in the market value of the property immediately before and immediately after the change of grade.</p> <p>3. Same—Rule of Avoidable Consequences.—The rule of avoidable consequences does not require of an owner whose property has been damaged that he shall, at considerable expense, so change the property as that it may, by being thus adapted to new uses, be rendered more valuable.</p>

<p>Partnership — Judgment not Warranted by Verdict.—Where the plaintiff sued to dissolve an alleged partnership, claiming a certain sum of money as due him on final settlement, and the only issue submitted to the jury •was the question of partnership vel non, on which they returned a verdict for plaintiff, the court was not authorized to enter a judgment for plaintiff for the amount of money claimed by him, and appointing a receiver to sell the partnership property and apply the proceeds to its satisfaction.</p>

<p>1. Carriers of Passengers — Degree of Care Required. — Railway-companies are held by law to exercise the highest degree of care regarding the safety of their passengers—a degree of care proportionate to the nature and risks of the business, and such as would ordinarily be exercised by persons of great care and prudence under similar circumstances.</p> <p>2. Same—Charge of Court.—It was not error in the court to charge, that the defendant railway company was responsible to the plaintiff for the actual' and direct results of the injury," instead of charging that the defendant was liable for injuries sustained which were the direct and natural results of the negligence complained of by plaintiff, since there is no material distinction between an injury and the results thereof.</p> <p>3. Same—Evidence of Permanent Injury.—See the opinion for evidence held sufficient to warrant a charge of court on the theory that the plaintiff had received permanent injuries caused by the derailment of a train.</p>

<p>1. Appeal Bond must be Payable to Whom.—To confer jurisdiction upon the appellate court, the appeal hand must be made payable to all parties in the judgment interested adversely to appellant; and where the judgment below ■is in favor of plaintiff against all the defendants, and also in favor of some of the defendants against another defendant, who appeals, executing an appeal bond payable alone to plaintiff, as appellee, the appellate court will, of its own motion, dismiss the appeal.</p> <p>ON MOTION FOR REHEARING.</p> <p>2. Practice on Appeal — Amending Appeal Bond. —An appellant lias the right, under section 39, page 32, of the Acts of 1892, to file in the appellate court a new appeal bond, curing defects in the original bond, in cases transferred by the Supreme Court to the Court of Civil Appeals, as well as in eases appealed originally to the latter court; unless, at the time the statute was enacted, the right to have the judgment reviewed in any manner had been lost by lapse of time. Where the original judgment was rendered March 3, 1890, such aright of amendment by giving a new appeal bond does not apply.</p>

<p>1. Transfer of Certificate—Instrument Construed a Conveyance? and not a Power of Attorney.—An instrument dated September 12,1838 (set out in full in the opinion), which recites that it was executed for valuable consideration, and authorizes the grantee, as attorney for the maker, to procure the patent to be issued on a certain headright certificate for land, either in the. attorney’s own name, or name of any other person or persons whatsoever, is on-its face a conveyance, and not merely a power of attorney; and in the absence of evidence to the contrary, the court should have so charged the jury.</p> <p>2. Same — Evidence not Warranting any Other Construction.— See the opinion for evidence held insufficient to warrant the court in submitting: to the jury the question as to whether such instrument was intended as only si power of attorney.</p> <p>3. Evidence—Proof of Heirship by Recitals in Deeds.—Where, in-trespass to try title, the defendants claim under a deed made by virtue of a? power of attorney of recent date, executed by the heirs of T., and there is no-proof of the death of T., nor of his heirship, except recitals in the power of attorney, such recitals are not admissible in evidence to establish these facts.</p> <p>4. Outstanding Title.—In trespass to try title, an outstanding equity with, which defendant is not connected, such as a transfer of the certificate to a third" party before the issuance of patent, can not be interposed as a defense against, the legal title.</p>

<p>1. County School Land—Right of Actual Settler to Purchase.— Actual settlement on county school land at the time the county offers it for sale gives the settler a prior right to purchase 160 acres thereof, and this right is assignable.</p> <p>2. Same—Ownership of other Land does not Defeat the Right. The Constitution does not limit the preference right of purchase to settlers who ■own no other land, but extends it alike to all who can properly be termed settlers at the time the county decides to sell.</p> <p>3. Same—Right not Abandoned by Removal, when.—See the opinion for evidence held insufficient to show that a settler on county school land (who removed therefrom to an unperfected pre-emption claim he had bought, and about ten days after such removal sold his claim on the school land) had abandoned or surrendered his prior right of purchase as a settler on the school land.</p>

<p>Negligence — Cotton Burned on Railway Platform — Cause of Action.—A petition alleging, in substance, that plaintiff, under agreement of through shipment with the local agent of the defendant railway company at B., had delivered certain cotton, the property of plaintiff, to defendant for shipment by placing it on the railway platform at B., which was the usual method there of delivering cotton for shipment, and of receiving it by defendant, and that through the negligence of defendant in permitting small boys to play with lighted pipes on the platform, the cotton was destroyed by Are, shows a cause of action, and negligence, for which defendant was liable, though no bill of lading may have been issued for the cotton.</p>

<p>1. Principal and Agent — Apparent Authority must be Belied on.—In order to bind the principal for an unauthorized act of his agent, the apparent authority of the agent must be relied on in good faith, and in the exercise of reasonable prudence by the other party.</p> <p>2. Same—Estoppel of Principal must be Pleaded.—That a principal has held out an agent as having certain authority, and is therefore liable for his contract, though in fact he was not authorized to make it, involves the principle ■of estoppel, and must be pleaded to be available.</p>

<p>Damages for Wrongfully Attaching Real Estate—To the general rule, that a wrongful levy of an attachment on real estate furnishes no cause of an action for damages, there is an exception where the defendant in attachment, had an opportunity to sell which was .defeated by the levy of the attachment, and the property depreciated in value after that time.</p>

<p>1. Foreclosure on One of Two Vendor Lien Notes does not Conclude the Right of Holder of Other Note not Party to Suit.— K., holding a joint note given in part payment for a tract of land, which note had been fully paid, and also a valid claim for $160 secured by a vendor’s lien on one-half of the same land, executed by L., a subsequent purchaser of such half, wrongfully brought suit on the note against the makers thereof, and under a judgment of foreclosure had therein the entire tract was sold to A., to whom K. then transferred the lien given by L. Held, that as L. was not a party to the foreclosure suit, and the lien given by him was not adjudicated therein, A. was not precluded from asserting such lien against the part of the land covered by it.</p> <p>2. Parties to Judgment—Vendor’s Liens of Equal Dignity, when. At the time L. bought one-half the land and executed the lien that was transferred to !£., and then to A., he executed in addition a separate note for $85, also carrying a vendor’s lien on the one-half purchased. This note was sold to J., who brought suit thereon, but without making K. or A. parties thereto, and himself bought the land under foreclosure of his lien. Held, that the vendor’s liens emanating from L. were of equal dignity, and that J.’s rights under his-judgment and purchase were not superior to those of L. as holder of the lien transferred to him; both J. and A. being entitled to share the proceeds of a sale of the land in proportion to their claims under L.</p>

<p>1. Title Held in Trust.—Where a deed conveys real estate to three persons,. A., F., and M., and the proof shows that the purchase money was all paid by A. for the benefit of himself and F., and not in any part for the benefit of M., or as-a loan or gift to M., the legal title in M. is held in trust for A.</p> <p>2. Notice—Quitclaim with Habendum Clause—Case Followed. While the well recognized rule in this State is that a quitclaim deed charges notice and will not support a title founded alone upon a bona fide purchase, yet under the decision in Garrett v. Christopher, 74 Texas, 453, it must be held that the rule does not apply where the quitclaim contains a habendum clause in the usual form.</p> <p>3. Same—Case Distinguished.—But where the deed sells and quitclaims the title and interest of the grantor as the same appears from a certain sheriff's deed therein referred to, and is endorsed a “ quitclaim deed,” and the habendum clause, in the usual form, concludes and is qualified as follows, “ So that neither F. W. H. (the grantor), nor my heirs, nor any person or persons claiming under me, shall at any time hereafter have, claim, or demand any right or title to the-aforesaid premises, or any part thereof,” the deed must, as a whole, be construed as only a quitclaim, coming under the general rule, and not under the rule announced in the case of Garrett v. Christopher, 74 Texas, 453. (On rehearing.)</p> <p>4. “Color of Title” Requires Written Transfers. — The expression, “ a consecutive chain of transfer,” as used in article 3192 of the Revised Statutes defining “color of title,” means consecutive written transfers; and hence a defendant in possession for three years under a deed made jointly to A. and B.,but adversely claiming the whole property in the right of A. only, can not as against a vendee of B. prescribe under color of title and the three years limitation by making paroi proof that B. held only a naked legal title in trust for A., the real owner of the entire property.</p>

<p>Evidence — Certified Copy of Deed.—A deed conveying “400 sections of land situated in the land districts of Milam and Bexar, in said State, surveyed for the Southern Pacific Bailway Company by H. Wickland, the field notes of which surveys are on file in the Land Office at Austin, Texas,” was made in 1860 and recorded the same year in Bexar County. In a suit for one of the surveys situated in Stephens County a certified copy of the deed from the records of Bexar County was offered in evidence. Held, in the absence of proof that at the time such record was made some of the lands were situated in Bexar County, or in a county attached to it for registration purposes, or afterwards created out of it, that the copy was not admissible.</p>

<p>1. Community Property—Presumption of Law.—In October, 1858, B. married in Missouri, where property acquired during marriage became the ■separate property of the husband. The evidence showed, that in December, 1859, B. and his wife had removed to and were residing in Texas; that in June, 1860, B. purchased land on á credit of twelve months, and (presumably at the expiration of the twelve months) made a payment thereon; but it did not show that he had brought from Missouri the money with which the payment was made, nor yet that he had acquired that money, or any money, after coming to Texas. Held, that a finding, that the land was B.’s separate property because bought with his separate funds, was error; the evidence not being sufficient to overcome the presumption of law that it was community estate.</p> <p>2. Coverture Must be Pleaded. — Where, in avoidance of defendant’s plea of limitation, the plaintiff’s replication alleged infancy only, plaintiff was not entitled to assert on the trial the disability of coverture.</p> <p>3. Superior Title—Void Execution Sale. — B. bought land of the administrator of S., giving in part payment his note, with F. as surety. The administrator’s deed to B. also retained'a vendor’s lien on the land. Upon maturity of the note the administrator brought suit thereon, but dismissed as to B., taking judgment against F. only, and without foreclosing the vendor’s lien. Under an execution issued in that suit, the land was levied on and sold as the property of B. Held, that the sale was void, and title thereunder could not be sustained on the theory that the superior title to the land had remained in the estate of S.. and the estate having received the proceeds and benefit of the sale, it must be held to have passed the superior title, and that the title thus passed was paramount to the title that descended, as community estate, to the children of B.’s wife.</p> <p>4. Subrogation—Pleading Requisite.—A defendant in trespass to try title, claiming under a void execution sale, can not, without specially pleading the matter, invoke the equity of subrogation on the ground that the money paid by him went to extinguish an existing lien on the land, and that his possession can not be disturbed without a tender of the money so paid.</p>

<p>1. Parties to Action for Negligently Causing Death—Release of Damages.—For decision of the Supreme Court in this case, on writ of error, to the effect that a release of damages by parties who should have been joined as plaintiffs can not be first shown in answer to a motion for a new trial, see Railway v. Wilson, 85 Texas. 516.</p> <p>2. Expert Evidence — Condition of Railway Track.—In an action against a railway company, its section foreman and road master were properly permitted, over its objections, to testify that in their opinion its roadbed was not properly constructed at the point where the derailment and injury occurred, they testifying to having eighteen years experience in railroading, and stating the facts on which their opinion was based.</p> <p>3. Notice to Railway Corporation—Section Foreman.—Knowledge on the part of the section foreman of a railway company of the defective condition of its roadbed, charges the company with notice of such condition.</p> <p>4. Contributory Negligence — Concurrent Causes of Injury.— Where two causes, such as a heavy rainfall and an imperfect roadbed, contribute in causing injury to a railway employe, his knowledge of one of the causes only will not preclude him from recovering for the injury.</p> <p>5. Same—Risks Assumed by Employe.—Train men have the right to. assume that an ordinarily safe track has been provided, and are held to assume only the dangers resulting from such defects therein as are actually known to them, and such as are so patent. as to make it negligence on their part not to see them.</p>

<p>1. Measure of Damages for Delaying Freight.—In cases of ordinary shipment of goods to a merchant of the kind in which he deals, whén there is no fact shown that would put the carrier upon notice of the fact that the goods were designed for a special purpose other than is inferred from such character of shipments, the measure of damages for delay in the delivery is the difference in the value of the goods at the time they should have arrived, and at the time they did arrive. It was error to allow rents for delayed machinery, delayed under such circumstances.</p> <p>2. Pleading—General Demurrer.—A petition against a carrier, alleging delay in the delivery of a cotton gin in shipment, and asking compensation for use of such machinery during the alleged delay, is good on general demurrer, as a claim for rents.</p> <p>3. Practice.—The sufficiency of pleadings will not be determined upon the admission of testimony when sufficient to resist an attack by general demurrer. See example.</p>

<p>1. Superseded Pleadings—Practice.—Where a plaintiff has filed a first and a second amended original petition, the original and first amendment usually are supplied by the second amendment, and in such cases action of the court overruling the original and the first amended petition will not be revised on appeal or error.</p> <p>2. Pleading — Breach of Warranty Without Eviction. — Actual eviction is not necessary in an action for a breach of warranty. The petition held sufficient in alleging, that the land had been patented (giving name of grantee and date) long prior to the location under which the warrantor claimed; that he never had any title to the land, and knew it at the time of sale to plaintiff, who-was at the time ignorant of the state of the title she had from her warrantor.</p> <p>3. Limitations—Breach of Warranty.—Filing suit for breach of warranty stops the statute from running as against the owners of an outstanding legal title, the existence of which and assertion under it are alleged as breach of warranty. In such case, limitation maturing after suit can not, it seems, be-pleaded by the defendant warrantor to avoid liability.</p> <p>4. Surveys in Fisher and Miller Colony.—By law (Paschal’s Digest, articles 923, 924) surveys were made and returned to the Land Office, and colony certificates afterwards issued were applied to the surveys.</p> <p>5. Same—Return of Field Notes.—The time for return of field notes in the Fisher and Miller Colony was extended to the first of March, 1855, regardless of dates. Pasch.Dig., art. 950.</p> <p>6. Partial Conflict—Warranty.—Where there is a judgment as upon a total failure of title, and the testimony shows a partial failure, and there is no testimony to the value of that lost as proportional to the entire tract, the judgment below will be reversed and the cause remanded.</p>

<p>1. Bill of Exceptions.—Matters excepted to, to be considered on appeal, if shown by bill of exceptions, it must appear that the bill was presented to the trial judge for allowance within ten days after the trial. If by statement of facts, it must appear that the matter was called to the attention of the court within ten days from end of the trial, and that the statement of facts was filed before the adjournment of the term.</p> <p>2. Administration Sale—Irregularities.—It has been uniformly held by our Supreme Court, that a purchaser at an administration sale who has purchased in good faith will be protected, if he show an order for sale and of confirmation, or acts of the court amounting to a confirmance of the sale, where the grounds that confer jurisdiction upon the court to administer the estate exist. See irregularities in the administration held not to affect a sale.</p> <p>3. Jurisdictional Facts — Presumption. — In this case, administration was opened by a court of general jurisdiction in probate matters, and no proof appeared of the nonexistence of the facts that would confer jurisdiction upon the court (County Court in 1852) unless resort is had to inference and presumption. But the rule is, when a court of general jurisdiction assumes to act within the limits of its ordinary powers, all presumptions will be indulged in support of the legality of its action, and not against it.</p> <p>4. Same.—The attack upon the proceedings of the County Court here is collateral. The rule is familiar, that in such cases the action of the court must be upheld if facts could have existed that would authorize the action taken.</p> <p>5. Same—Case in Judgment.—The fact that twelve years elapsed after the death of Ryan before the administration was opened upon his estate, affords a strong presumption that the debts, if any existed, had been paid; but it is only a presumption, and the jurisdictional fact of debts by the estate could exist in face of the presumption. The administration is held valid. That none Were paid does not negative their existence.</p> <p>6. Case Approved.—Martin v. Robinson, 67 Texas, 368, adhered to, as to jurisdictional presumptions in favor of acts by Probate Courts.</p> <p>7. Jurisdictional Presumptions of Probate Courts.—In administration under the Probate Act of 1848, to determine whether an administration is void or not, the courts should look, not only to the time that elapsed before administration was applied for, but to the entire record of the proceedings, and ascertain therefrom whether or not there was a necessity, or an apparent necessity, for the administration; whether the application was made in good faith to benefit the estate by those interested to take care of it, and who were entitled to administer.</p>

KEY, Associate Justice. Findings of Fact.—1. September 17,1887, Dan T. Munn sold, and by deed conveyed, the 1280 acres of land described in plaintiff’s petition, to defendant J. L. Vaughn. The said deed retained an express lien to secure the payment of the note herein after referred to and herein sued on. 2.

This is a suit brought by appellee, J. C. Walker, against appellant, M. D. Herring, for partition of 1176 acres of land out of the Amos King survey of one-third of a league of land, situated in Haskell County; plaintiff claiming that he is the owner of 1076 acres, undivided interest in the land, and that defendant is the owner of the remaining 100 acres.

<p>1. Liability of Railway for Baggage of Passenger. — The baggage of a passenger, although checked through to the destination, is subject to the contract for carriage made by the passenger with the railway company, and this is so although the baggage master at the beginning point of the journey exacted payment for extra weight of baggage before he would check the baggage.</p> <p>2. Extra Baggage.—All tickets for passage on railways are bought with the knowledge that under the laws of Texas the railway company has the right to exact pay for extra weight of all baggage over 100 pounds. A demand for and the receipt of pay for the extra baggage is neither a violation, change, nor a substitute for the original contract made in the purchase of the ticket.</p>

<p>1. Rules for Conduct of Passengers as to Seats in Railway Car. If a passenger persists in violating any reasonable rule of the railway company, it is the right and duty of the conductor to enforce the rule, and if necessary to eject the passenger from the train, using only such force as may be necessary.</p> <p>2. Same—Charge.—Tn action for damages by a passenger against a railway company for being ejected from the train on which he was a passenger, the defense was urged that the passenger was occupying more than one seat, against the rules of the company, and had resisted the enforcement of the rule on part of the conductors. The court in its general charge had submitted the issue whether the acts of the passenger were justified by a real or apparent invasion of his rights as a passenger by the removal of his baggage from a seat other than the one occupied by him. Seld, error to repeat such charge, thus emphasising the theory of the plaintiff.</p> <p>3. Verdict Excessive. — See facts where a verdict for $5500 damages for ejecting a passenger from a railway train was excessive.</p>

<p>Limitation of Five Tears —Payment of Taxes.—Spence bought lot 13, a corner lot, by deed calling for 52% feet width. Adjoining was lot 17. The maps of the lots called for lots 50 feet wide. He occupied the lots to the extent of 52% feet, and paid taxes for five years on lot 13. In action for lot 17, held, that payment of taxes on lot 13 was not a payment upon the 2% feet occupied of lot 17, and the defense of limitation of five years failed for nonpayment of taxes.</p>

<p>1. Sale by Heir, the Apparent Holder of Legal Title.—A husband acquired lands during coverture purchased with his separate estate. He died leaving no children, his widow and his sister surviving. The widow sold the land to a purchaser, who did not know that it was the separate property of the husband. In suit by the sister for half-interest against the vendee of the widow, held, that the purchaser from the widow took title.</p> <p>2. Same.—There is no distinction as to a sale of land by one apparently authorized to sell, whether made before or after the death of the equitable owner. The purchaser in each case will be protected. The equitable title gains nothing by its descent to an heir.</p> <p>3. Notice of Equity.—As against a purchaser for value from a widow, the-sole heir of the community, it is of no consequence that such purchaser knew of the existence of collateral heirs, nor that a deed to the husband recited the payment of purchase money by him.</p>

<p>1. Riparian Owners—Accretion.—The accretion by alluvion belongs to the owner of the shore where lands front upon the stream, and to which the accretion is made. So also where the accretion is the result of a dereliction occasioned by the gradual recession of the water from the land, and the making of a new channel. Such accretion, etc., must be a process that is gradual and imperceptible.</p> <p>2. Gradual and Imperceptible Changes of Shore.—We believe the correct rule is announced in the cases of County of St. Clair v. Lovingston, 23 Wallace, 46; Jefferis v. East Omaha Land Company, 134 United States, 187; and The State of Nebraska v. The State of Iowa, 12 Supreme Court Reporter, 397, that “though the witnesses may see from time to time that progress has been made, they could not perceive it while the progress was going on.” These conditions appear in the changes in the river current of the Rio Grande near El Paso, Texas.</p> <p>3. Accretions Apply to Navigable Streams and to National Boundaries.—The principles of accretion and alluvion apply to lands bordering navigable streams as well as those not navigable. The doctrine, in absence of treaty stipulations otherwise, applies to streams that are boundaries between States or Nations.</p> <p>4. Calls in Survey —River as Line.—The survey calling for the Rio Grande and its meanders as one of the boundaries of the tract, will not be limited to course and distance of the lines extended to the river shore, as called in the original field notes.</p>

<p>1. Pleading—Partnership.—Suit against a railway company for damages for loss of jewelry from the trunk of plaintiff, which was shipped as baggage. The ticket extended over several lines to the place of destination. The petition alleged that the defendant company, which sold the ticket and received the trunk, was partner with the other lines named in the ticket. It seemed that the allegation of partnership was made only as a basis of the alleged liability of the defendant on the entire route. Meld, that the allegations were sufficient to show separate liability of the defendant company.</p> <p>2. Limited Liability of Carrier — Presumptions. —While a railway can limit its liability to loss or injury upon its own road, yet where the article shipped was never delivered it devolves upon the defendant who received the ireight to show compliance with its contract, and a safe delivery to the connecting carrier. The burden of proof rests upon the carrier receiving the goods, which were never delivered, to clear itself of blame, to avoid liability.</p> <p>3. Stipulated Damages by Negligence Illegal.—An excursion ticket limited liability for loss of passenger's baggage to $100. The road receiving the baggage being liable, the restriction as to liability in the contract as to value was illegal.</p>

<p>1. Probate Sale of Chattels in 1846.—We are of opinion, that while-the statute in force May, 1S46 (Hartley’s Digest, article 1018), was silent as to the necessity of confirmation by the court of an administrator’s sale of chattels, it was evidently intended that the Probate Court should have the power to approve or disapprove such sale; to act upon the price or security taken. In absence of confirmation of such sale, it devolves upon the purchaser, or party asserting titleunder such sale, to show payment or that security was given—compliance with the statute in all material provisions.</p> <p>2. Lapse of Time.—A land certificate was sold May, 1846, at probate sale, by the widow of the owner, who was his administratrix. Return was made of the sale as upon approved security, but no action upon the report of sale was taken by the court. Ho conveyance was made to the purchaser. In 1888 the widow and other heirs brought suit for the land which had been secured under the certificate, against remote vendees. Held, that it devolved upon the defendants to prove compliance with the terms of the sale; no such proof being made, the plaintiffs, having the legal title, were entitled to recover, the defendants not showing any equity; the lapse of time did not affect the rights of the plaintiffs to recover.</p> <p>3. Presumption of Conveyance.—See facts held insufficient to prove a conveyance.</p>

Error from Travis. Tried below before Hon. James H. Robertson. On the Sth day of January, 1892, plaintiff in error, Kaufman County, filed this suit in the District Court of Travis County against W. L. Mc-Gaughey, Commissioner of the General Land Office of the State of Texas; and H. Y. Kinscy, alleged to be the county surveyor of Hunt County, or else employed to act with or under defendant McGaughey.

<p>1. Actual Settler — Land Board.—As to the rights of an actual settler who by the express terms of the law (Act of April 13, 1883, Laws of Eighteenth Legislature, chapter 88, section 5), is accorded a preference right to purchase, the action of the Land Board allotting the land upon which he resided to another is in no sense a final adjudication. The board could not disregard the law, and its act in violation would have no binding effect against one injured by it.</p> <p>2. Case Limited.—The expressions in Luclde v. Watt, 77 Texas, 262, tending to give conclusiveness to the action of the Land Board as against an actual settler, held to be obiter dicta.</p>