Volume 3 — Texas Law Review Reports

STATEMENT. Appellee, by next friend, brought this suit against appellant, March 2nd, 1880, to recover $20,000 damages for injuries received by him while crossing appellant’s railroad track at the city of Denison, November 7th, 1879, by which he lost a leg, and received other injuries. Appellee answered September 16th, 1880, by general denial, and also that the injuries were directly caused by the negligence of the appellee.

STATEMENT. Suit was filed in Atascosa county, by W. C. Daugherty against John H. Slaughter, upon a debt due by Slaughter to Daugherty; service on Slaughter was made by publication, he being a non-resident of the state.

STATEMENT. This suit was brought by appellant against appellee, March 1st, 1881. He alleged that he and defendant, Amanda C. Roberson, were married in Keutucky in 1844; that they lived together in that state until the year 1868, when she “wilfully, voluntarily, and without any cause or provocation abandoned his bed and board,” and had never returned. He also avers that she left him with the intention of perpetual abandonment.

STATEMENT. This was a suit to try the right of property to a certain gin house, instituted by R. K. Chatham against S. D. May.

<p>Appeal from Guadalupe county.</p> <p>The content in the court below was as to whether the lands in controversy was the separate property of Mrs. Emily 0. Brown or of her husband, Joseph D. Brown. Upon the face of the deed from Swift to her it appeared that the consideration was paid by Mrs. Brown, and that the laud was vested in her as her .separate estate, but the defendant attempted to show that it was conveyed to her, charged with a trust for the benefit of her husband, and that it thereby became his property. It was admitted that the consideration paid for the land alleged to be $500, was really a negro slave, and it was as to the ownership of this slave at the time, that the only-conflict in the evidence occurs.</p> <p>If it was the property of the wife, there was clearly an end of the case, as the land for which the slave was exchanged became, of course, her property also. But the proof on the part of the defendants was that the negro was given to Mrs. Brown by the father of her husband, to be held by her for bis use and benefit, the object being to protect him from the debts which the husband had contracted. As to whether the beneficial interest of Brown was an absolute title, or one for life with remainder to his children, does not appear vei'y clearly from the evidence of defendant’s witnesses, but his counsel claim that it invested him with full title. If so, and he paid the consideration for the land by giving the negro in exchange for it, without proof of any other intention, the law presumes that his design was to make to his wife a gift of this land. This is so well settled to require more than a citation of some of the cases in which it is decided. (Smith v. Boquet, 27 Texas, 507; Higgins v. Johnson, 20 Texas, 393; Smith v. Strahan, 10 Texas, 314.</p> <p>Of course, it matters not whether the interest of the husband was for life, or in fee simple to the property exchanged, he gives to the wife all the interest in the property received in return. He had nothing then left to convey to a purchaser, and the remainder, if any, vested in his children, a part of whom are now claiming it in this suit.</p> <p>The principle contended for by appellant is, that when property charged with a trust is exchanged for other property, the latter is held subject to the same trust, is not applicable to where the wife is the trustee and the husband is the beneficiary, at least without showing that it was the intention of the parties to preserve the trust relation. It is controlled by the other principle already stated, viz : that which presumes a gift to the wife when the consideration is advanced by the husband. He could give her property of which he was the cestui qui trust as well as any other, and with her consent, could exchange it for other property and by having the deed made to her directly, vest in her the absolute title.</p> <p>The proper construction of the present ‘deed, whether the testimony of the plaintiff, or of the defendant, was to be believed by the jury, was that the title to the land vested, under the deed, in Mrs. Brown, and this construction was for the court alone to make, and there was no necessity for the jury to pass upon any fact in the case.</p> <p>"When the only facts upon which the verdict of the jury could possibly be found, are uncontroverted, or admitted, or proved, by the party against whom the verdict, under the law, must necessarily be rendered, it is proper for the judge, as the legal result of these facts, to charge the juty to find in favor of the opposite party. (Eason v. Eason, Galveston term, 1884; Hedgepeth v. Robertson, 19 Texas, 371; Teal v. Terrell, 50 Texas, 361.) This was what the judge did in the present case, and that action was not erroneous.</p>

STATEMENT, January 2nd, 1871, Wilkinson brought this suit against Hudson in the District court of Burleson county, to recover the value of two mules and a wagon, as well as the hire of the same. Hudson answered by general denial and other special defenses not necessary to notice. This is the third time the case has been before the Supreme Court.

<p>Knidence. — In a suit against a railway company for damages for the negligent killing of the appellee’s husband, the appellee, in order to show the unsound condition of the engine before the explosion, was permitted to prove by a witness that just after the explosion he heard the engineer say that he had “stopped twice since he left Houston to come to Dallas on that trip to plug the engine to prevent expíosion; that he was d — cl glad it liad exploded, and that he got off the engine as soon as it stopped, expecting it to explode ” Held, under the rule laid down in 2 Whar. on Ey. 1174, inadmissible, because relating to an event that had passed, and as not serving to explain any act or thing done to cause the explosion. See the opinion for an elaboration oí the doctrine, and for a collection of authorities upon this subject.</p>

STATEMENT. Appellee, plaintiff below, brought ths suit in the county court of Tarrant county, against the defendant company, as a common carrier of live stock, to recover damages on account of the alleged failing to transport 177 head of beef cattle, by defendant, from Denton, Texas, to Chicago,- Illinois, within a reasonable time ; and, also, failure to furnish proper cars, whereby three head of' cattle died in trausit, and the balance lost in flesh and deteriorated in…

<p>Common Carriers — Contracts Limiting Liability of, — By the statute of this state it is provided that railway companies and other common carriers within this state shall not limit or restrict their liability as it exists at common law, in any answer whatever, and no special agreement in contravention of this provision is valid. This statute does not apply to or affect interstate carriers doing business in this state.</p> <p>Same. — In the absence of prohibitory statute, a common carrier may, by express contract limit and restrict its common law liability to a reasonable extent, but not to the extent to exempt its liability for loss or damage occasioned by its own negligence. Hence, the condition which, in this case seeks to exempt the company from liability for damage arising from other cause than its own fraud or gross negligence, is invalid, as against public policy, because the carrier cannot be permitted to stipulate for immunity against its own negligence of any decree.</p> <p>Same — Evidence.—The contract in other respects, if made in Arkansas, must be held valid in this state, and will afford defense, unless such defense is defeated by the company’s own acts or omission. See the opinion for facts shown, held to work a forfeiture for defense set np under the contract.</p> <p>Measure of Damages in action for value of sheep shipped from H. in A. to B. in this state, was their value at the place of destination.</p>

<p>Jurisdiction. — The decision of a court of competent jurisdiction is conclusive, not only as to the subject matter determined, but as to every other matter which the parties might have litigated in the case, and which they might have had decided.</p> <p>Same. — Otherwise stated, the plea of res adjudicata opplies to points not only upon which the court was actually required to pronounce judgment, but to every point which properly belonged to the subject of litigation, and which, by exercise of proper diiligence, might have been brought forward. Such doctrine has been applied to cases in which the wife was a party to the previous suit, and held her bound as any other litigant in the suit — the only exception being where the subject matters involved in the two suits, though of same character, were diflerent. Such exception does not apply to this case, though invoked.</p> <p>Same — Homestead.—It is apparent from the pleadings and facts in this ease, that if in fact the land was the separate property of the wife and the homestead at the time of D.’s purchase, the defense of homestead might have been pleaded and adjudicated in the former case, and hence, that question being omitted, it cannot be set up in a subsequent action.</p>

<p>Appeal from Lamar county.</p> <p>STATEMENT.</p> <p>Appellee brought'this suit to recover balance of purchase money alleged to be due appellants upon a contract of purchase of a lot of hay, and also to recover damages for the non-performance by appellants of said contract. Appellee, in his petition, itemizes his claim as follows : • ■</p> <p>Value of 57 tons .of hay, at $9 per ton, as per contract.....$513 00</p> <p>Attorneys fee and personal expenses.................... 100 00</p> <p>Loss of rent of barn, as hereinafter shown............... 150 00</p> <p>Exemplary damages................................___ 50 00</p> <p>Making a total...................... $813 00</p> <p>The items for attorneys fees and for examplary damages were excepted to by appellants and were stricken out.</p> <p>A further statement of the nature and result of the suit will be found in the conclusions of fact and law as arrived at by the judge, before whom the trial was had which we here insert :</p> <p>CONCLUSIONS OP PACTS.</p> <p>1. That on or about March 23, 1883, plaintiff owned about 131 tons of hay in bales, stored in hit barn at South Mayed, in Grayson county, about 300 yards from the depot of the T. & P. R’y Co., and that at said date defendants applied to the plaintiff to buy the same, and the following verbal contract was made between them, to-wit:</p> <p>Plaintiff offered to sell defendant all the hay in the barn at South Mayed at $9 per ton, to be delivered to defendant free on board the cars at the depot, tobe paid for as the same was boarded on the cars, all the expenses of hauling and weighing to be paid by plaintiff, and defendants should have the right or privilege of rejecting one car load if they desired to do so, the hay to be taken by defendants at an early day. The offer was accepted and the transaction closed with the above agreement.</p> <p>2. That defendants received of said hay on board the cars at South Mayed and took away about sixty-three tons £ that, the hay had to be hauled on wagons from the barn to the scales of John Boerr, about 150 yards, where it was weighed, and from there it was hauled, about 100 or 150 yards, to the cars, where it was loaded on the cars. Plaintiff paid for the hauling and weighing and loading on the cars, and defendants paid for all the hay they received (63 tons) at $9 per ton.</p> <p>3. That about June 1, 1883, defendants claimed that the day did not come up to the quality of hay that they expected to get, and declined to take any more of it, and plaintiff demanded pay for the balance of the hay at $9 per ton, and requested defendants to remove it from the barn ; that the defendants refused, and 68 tons of the hay is now in dlaintifPs barn at South Mayed.-'</p> <p>4. That storage for hay at South Mayed is worth 50 cents per season, that is, from July till February.</p> <p>5. That a car load of hay is about ten or eleven tons and the lot of hay weighed out about 22 bales to the ton.</p> <p>6. That plaintiff refused, in making the trade, to warrant, the hay as to quality, but on shipments made by defendants (who are dealers in hay) of a part of the hay received by them, it proved to be inferior in quality, and defendant’s customers refused to take it and threw it back on defendants’ hands, whereupon they refused to take any more of it.</p> <p>7. Defendants inspected the hay before the purchase and went in person and received the hay that was shipped ; told parties at the barn they had bought all the hay in the barn belonging to plaintiff, with the qualification named in 1st, and offered to sell the same a few moments after to the trade to one Mr. Harrison, with the same privilege of rejecting one car load.</p> <p>C03XCI.tTSI0KrS OE LAW.</p> <p>1. That the transaction shows an absolute sale by plaintiff to defendants of all the hay in the barn, and that the right or privilege given by plaintiff to defendants, to reject one car load of the hay, not having been exercised by defendants, could not render the contract executory.</p> <p>2. That it was the intention of both plaintiff and defendants that the title to all the hay in the barn owned by plaintiff should pass to defendant and that it did pass.</p> <p>3. That plaintiff is entitled to recover the value of the 57 tons of hay sued for at $9.00 per ton and storage at 50 cents per ton with 8 per cent, interest from January 1st, 1884.</p> <p>The first question necessary to be decided is, did the judge correctly conclude as a matter of law from the facts found by him, that the title or property in the hay passed from appellee to appellants-under the contract ? Was the contract a sale ? Or was it only a promise to sell ? We think the facts found fully support the conclusion of law that the contract was a sale and divested the title to the hay from appellee, and vested it in appellant’s. The interest of the parties to a contract is to govern in its construction. Delivery of the hay was not essential to the completeness of sale as between the parties. (Cleveland vs. Williams, 29 Texas, 204; W. & W. Con. Rep., sec. 927.</p> <p>A sale of a specific chattel passes property without delivery. (Bigler vs. Hall, 54 N. Y. 167; Buffington vs. Alen, 7 Bush. 231.) Property in the chattel does not pass absolutely unless the saléis completed and it is not completed so long as anything remains to be done to the thing sold, to put it in a condition for sale or to identify it, or discriminate it from other things. But the property in a a specific chattel passes before delivery and the sale thereof is complete, if such be the interest of the parties expressed or implied, although the seller has to do something more to the property. (1 Pars, on Con., 527 and note.) In this case the property was a specific chattel, that is, all the hay in plaintiff’s barn. There was nothing to be done to identify it. It was bargained for in bulk, and although not actually delivered, and although the seller had to deliver it, and have it weighed, still it was the intention of the parties, as found by the court, that the property in the hay should pass to the buyer at the time of the contract. Such being the intention of the parties the sale was complete and the hay became the property of the appellants with the privilege on their part to reject a car load of it. This privilege did not affect the completeness of the sale save to the extent of one car load, and nothing is claimed in this suit for the car load which appellants reserved the right to reject and did reject when they refused to receive any more of the hay.</p> <p>We think the conclusion of law and the judgment of the court in accordance therewith are correct to the extent of awarding appellee the contract price for the 57 tons of hay, with interest on the amount, The hay of course remains the property of appellants, but as they refused to receive it within a reasonable time, appellee is relieved of his obligation to have it weighed and placed free on board the cars. They must take th§ hay as they now find it.</p> <p>We are of the opinion that the court erred in giving judgment for storage of hay. In his petition appellee claimed for rent and made no claim for storage. Rent and storage are not the same thing. “Rent” is a return or compensation for the possession of some corporeal inheritance, and if a certain profit, either in money, provisions or labor, issuing out of lands and tenements in return for thejr use. (2 Boviers Law Dio., “Rent,”) “Storage” is the price or charge for keeping goods. (Webster’s Die., “Storage.”) A judgment must conform to the pleadings in the case, and when it grants relief which is not warranted by the pleadings it will be set aside as to such relief. The plaintiff must recover, if at all, upon the cause of action declared upon. (W. & W. Con. Rep., sec’s. 131, 299, 495, 514,581,871,874,815,904.) But even if the court had awarded appellee a certain sum as rent for his barn, we do not think the judgment therefore could be affirmed.</p> <p>There was no contraot between the parties for rent either expressed or implied and rent, could therefore be recovered, if recovered at all, only as damages, and we are of the opinion that'such recovery is not permissible in a case like this. We think the measure of appellees damage, is the interest upon the purchase price of the hay. (Calvin vs. McFadden, 113 Texas, 324; W. & W. Con. Rep., sec’s. 848.1002, 1125, 1134.)</p>

STATEMENT. On August 12, 1881, appellee brought this suit against appellant, alleging in substance that she is a feme sole and reside in the State of Ohio, that appellant owned and operated a railroad from Fort Worth to Baird, and employed a large number of operatives.

Error from Dallas county. STATEMENT, Defendant in error caused an execution to be levied upon certain property as the property of George Buck. Plaintiff in error claimed the property, and made affidavit and executed bond under the provisions of the law for the trial of the right to the property. The affidavit and bond are dated October 26, 1882. They were not filed in the county court uniil April 17, 1883.

<p>Practice. — On a question of practica in trial court, see this case.</p> <p>Damages. — See the opinion for rule governing the question of measure of damages.</p>

The assignments of error relied on in the brief of appellant's oouucomplain or the aciion of the court In giving and refusing changes, and of the want of evidence to support the verdict of the jury. The first complaint against the charge Is that it holds tlie railroad company liable as a common carrier of cattle upon a paro! agreement to furnish cars, when its liability did not attach until the signing of the bill of lading.

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

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

<p>In every exchange of lands there is implied both a condition of re-entry and a____ warranty; and if one party is evicted from~the*Iand conveyed to him, he may either_____ re-enter upon his own land or recover on his warranty.</p> <p>A grantor in a contract for exchange of land may disregard the deed ofconyeyancehe may have made.,.wliere he lias neyer obtained thecóñiemplated equivolent, by acquiring,title or possession for thelandjo which he wusjmtitled, or where the _other party has abandoned thácontraet. . ''</p>

<p>A bill of exception should show whether an application for a continuance was a first or subsequent application.</p> <p>Where a term of the court has intervened between the issuance of the subpcena and the application for a continuance, it should be made to appear that the witness did not disobey the subpcena at the intervening term.</p> <p>See this case fdr ruling as to liability of person receiving draft issued by mistake.</p> <p>A request that the judge give his conclusions of law and fact should be made promptly, and if made after an unreasonable delay his refusal will not be revised.</p>

<p>Appeal from Erath county.</p> <p>Our statute provides that “the confession of a defendant may be used in evidence against him if it appear that the same was freely made without compulsion or persuasion under the rules hereafter prescribed.” O. C. P. Art. 749. None of the rules prescribed by statute are applicable to the question raised by the bill of exceptions in this record, because the appellant at the time of making the confession was neither in confinement or under arrest.</p> <p>If it be admitted that our code makes provision only for such confessions as are made when the defendant is in jail or other place of confinement, or whilst in custody of an officer, (C. C. P. Art. 750,) .then, in the absence of a statutory rule, we would be relegated to the common law for a rule which would govern. (C. C. P. Art. 725.)</p> <p>At common law the rule was that “the confession must be voluntary and not obtained by improper influence nor drawn from the prisoner by means of a threat or promise, for however slight the threat or promise may have been, a confession so obtained cannot be receiued in evidence on account of the uncertainty and doubts whether it was not made rather from a motive of fear or of interest than from a sense of guilt.” Phil. Erid 86; Manor v. The State, 29 Texas, 369. “The material inquiry, therefore,” says Mr. Greenleaf, “in whether the confession has been obtained by the influence of hope or fear applied by a third person to the mind of the prisoner.”</p> <p>* * * The rule of law applicable to all cases only demands that the confession shall have been involuntarily made without the appliances of hope and fear by any other person.” 1 Greenleaf Erid, 13 Ed., sec. 29; Wharton Criminal Evid., 8 Ed., secs. 650-551. See also Roscoe’s Criminal Evid., 17 Ed., p. 40 et seq, and note.</p> <p>As shown by the bill of exceptions in this case the purported confession of defendant wos made' under the following circumstances: The prosecutor, Henderson, told defendant that he (Henderson) had consulted with the district attorney, aud that officer had authorized him to say to defenpant that if he would turn states evidence against his co-defendant Fuller, he (defendant) would not be prosecuted for the theft of the hogs. Henderson also promised defendant that he (Henderson) would not file any complaint against him if defen dent would appear and testify against Fuller. Under these promises the purported confession which the court admitted over objection of defendant to be given in evidence were made to the prosecutor Henderson. As a reason for admitting this evidence the learned judge in his explanations to the bill of exceptions states in substance: that after the agreement with the district attorney and Henderson, the defendant repudiated the agreement, and not only refused to testify against Fuller, but also denied having told Henderson anything. That defendant subsequently repudiated the agreement does not and cannot affect the question as to the circumstances under which the confession was made. At the time it was made was he or not induced to make it through the promise of hope held out to him by Henderson ? If so, then no subsequent act of bad faith on his part could or would render valid and legal that which per se was illegal and inadmissible as a voluntary confession.</p> <p>We are clearly of Opinion that the court erred in admitting the confession over the objections of defendant as shown by the bill of exceptions. There is no similiarity or rather identity between judicial and extra judicial confessions with regard to the rule invoked by the learned judge in his explanation. Had the confession been a judicial one or one made under such circumstances as those provided for in article 750 of the code of procedure, and the defendant had subsequently repudiated his agreement to testify against his co-defendant, the fact that he had been previously cautioned that his evidence would be used against him if he failed so to testify, would doubtless have rendered the confession admissible as evidence against him when tried for the offense. But when not under arrest or in custody, or in any of the conditions pointed out in article 750, to make the confession of a party admissible, it must have been voluntary, that is, one not induced by any promise creating hopes of benefit or any threats creating fear of punishment. Warren v. State, 29 Texas 369.</p>

Parker county. STATEMENT, November 21,1882, Lasater brought this suit of trespass to try title against Jones, to recover the land described in the petition, deriving title as follows : bond for title from himself to Jones, dated January 18,1881, judgment in his favor and against Jones on purchase money, notes and foreclosure of vendor’s lien, sale by virtue thereof, and purchase by Lasater, etc. Jones claimed that the judgment on the note was void because there was no…

<p>Practice — Evidence—Minority.—It is not erx-or to i-efuse to admit evidence of tlxe minority of a party, to defeat the defense of limitation, when not asserted by the pleadings.</p> <p>Evidence — Records.—A judgment may he proved by the original minute book as well as by certified copy.</p> <p>Votary PuUic. — The abbreviation of N. P., when appended to the signature of one who appeai-s to he acting in an official capacity is understood to mean Notary Public.</p> <p>Evidence — Official Beal. — When copies are used as evidence, the want of an official seal upon the original instrument must be shown by the party objecting to the evidence.</p>

STATEMENT. Appellant brought this suit against the company to recover damages for injuries received while in the employment of the company as car repairer at Baird. It is in effect alleged that Baird is the end of a division on the company’s line, and that it has there a department for the repair of cars. That in October, 1881, James Monahan was foreman of that department with full power and authority to employ and discharge such servants as was engaged therein.

<p>Negligence. — Whether the employees of a railroad company are guilty of negligence in passing over public crossings, notwithstanding they comply with the Statute by ringing the bell etc., is a question of fact to be determined in each case.</p> <p>Damages. — In an action for damages in his own name a father cannot recover compensation for the mental and physical suffering of his infant child.</p>

<p>Separate Property — Eoidence.—To repel the presumption that property acquired during the marriage is community property, the evidence ought to he clear and satisfactory.</p> <p>Gommtmity Property. — If the wife during marriage borrows money for the purpose of engaging in business, it becomes community property, and is liable to execution for the husband’s debts.</p>

In this case appellant was twice placed upon his trial under the indictment at the same term of the District court.

Ob account of the difference in opinion betweent he Supreme Court and this court, upon the question as to the authority of county and justices court to enforce attachment liens upon land, this case was referred by us for decision, at the last Galveston Term, to the Honorable Commissioners of Appeals. The case comes back to us with their conclusions, and the reasons therefor embodied in the able and learned opinion oí Presiding Judge Walker.

STATEMENT. January 2, 1882, appellees brought this suit against appellant to establish their right to an easement, or private way, over certain lands to compel him to remove obstructions therefrom, and recover damages for obstructing the same, claiming that Joseph Haby, deceased, had on the 21st day of November, 1854, divided among his six children his third of a league of land, that the uplands were divided into six house lots, and the valley lands into six farm lots, and…

It is urged that the court erred in giving the first and fourth instructions. Held: that no action lies against a subdivision of a state created solely for a public purpose, by a general law applicable to all such subdivision, for an injury received by a person through the neglect of the officers of such subdivision, even though, by the general law, such subdivision may be given a quasi corporate existence, the…

STATEMENT. This suit was brought January 28th, 1880, (the pleading having been amended Nov. 1st, 1881,) by appellant against appellees to recover damages for the seizure of a stock of goods by the latter, which were claimed by the former. It appears that in November, 1879, one J. H. Loeb (a brother of plaintiff) transferred to plaintiff his entire stock of goods in the town of Mexia. The transfer was made to pay an old debt.

STATEMENT. November 24th, 1883, Moses instituted this suit against the company on a fire insurance policy alleging the execution of the policy in the sum of $750, and the total destruction of the property while the policy was in force. Also, that Thos.

<p>Supreme Court — Jurisdiction.—So soon as the jurisdiction attaches, under an appeal or writ of error, this court has full control of the cause, and can make such orders concerning it, as may be necessary to preserve the rights of the parties and, enforce its mandates.</p> <p>Same — Mandamus.—For the purpose of enforcing such orders as come within the jurisdiction of the court, it may resort to the writ of mandamus, or any other writ known to our system of jurisprudence.</p>

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

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

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

STATEMENT. This suit was upon a- mercantile account. Plaintiffs, Carter Bros., by their agent, made affidavit reciting that the defendants “have disposed of their property, in whole or in part, with the intent to defraud their creditors, and that they are about to convert their property into money for the purpose of placing it beyond the reach oí their creditors.” They gave bond and an attachment issued and was levied on property of defendants.

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

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

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

<p>Pleading — Evidence.— Wlioro a defendant in his answer admits the cause of action, such cause of action is not an issue in the caso, and the plaintiff is entitled to judgment, unless the defendant sustains by evidence some matter of defence.</p> <p>jBurden of Proof. — where a defendant is sued upon a contract, and pleads in avoidance, failure of consideration, and in reeonvention for damages, the burden of proof is upon him to establish these defences.</p> <p>Contract — Rescission of. — A court of equity will not rescind a contract unless fraud appear, or there has been a plain and palpable mistake affecting the very substance of the subject matter of the contract.</p> <p>Fraud. — Every misrepresentation in regard to anything which is a material inducement to a sale, which is made to deceive, and which does deceive the vendee is fraud, and vitiates the contract.</p>

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

This action was brought by Chapman against Thomas, a sheriff, and the sureties on his official bond, to recover damages for the seizure of a stock of goods which Chapman held as assignee of We. Fife.

It seems that this case involving originally the sum of ninety five dollars, ($95.00) has been pending-'before the courts in this State since the year 1876. It was first tried in the Justice’s court of Anderson county in July 1876. It was then carried at once, being prosecuted with vigor, to the county court of that county, and theré tried at the September Term 1877.

There was no error committed by the court in its rulings on the testimony referred to in the appellant’s bill of exceptions. The evidence was clearly admissible. As to the main question in the case present weight of authority is to the effect, that a railroad corporation can, by contract, bind itself to perpetually maintain a permanent depot at a particular place.

That the district court had jurisdiction to grant the injunction is-( sued in this ease is now settled in this court. County of Anderson v. Kennedy, unreported. Having thus obtained jurisdiction of the cause it was authorized to take cognizance of it for all the purposes of the suit. It is a well recognized principle in courts of equity, that having acquired jurisdiction of the cause, the full merits of the controversy, as presented by either party, will be adjudicated.

This cause was submitted to the judge below upon the law and the facts, and he has placed upon record his reasons for the judgment rendered by him. Held: perhaps by the weight of authority, that this summary remedy is exclusive of all others where damages alone are sought by the owner, yet if he seeks to regain possession and oust the intruding compauy from his property, he may resort to any character of action he might use for that purpose against any other trespasser.

<p>Appeal from Palo Pinto county.</p>

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

<p>Appeal from Smith County.</p> <p>STATEMENT. .</p> <p>Suit by appellee against appellant and Coventry, Price & Co,, for certain sums of money alleged to be due to plaintiff by defendants for labor performed in constructing the railroad.</p> <p>It was alleged that Coventry, Price & Co., were contractors, and they employed plaintiff to take charge of a boarding house, and the amount due hin#was for wages due laborers for work done on the railroad, and deducted from the wages of such laborers by defendants to pay board due plaintiff ; that plaintiff furnished the board at the instance of defendants, and they were personally liable to him; that plaintiff was entitled to a lien on the railroad by reason of assignment to him by the laborers of so much of the wages due them for labor as was necessary to pay their board, etc.</p> <p>The following waiver of service was made : “T, H. M. Shoff, a member of the former firm of Coventry, Price & Shoff, waive the issuance and service of citation in the avobe entitled case and accept service of the same, and waive the time.”</p> <p>Coventry, Price & Co. -made no answer, and a'judgnteut was obtained against them and the railroad by a decree establishing a lien on the railroad.</p>

<p>Appeal from Camp county.</p> <p>This is an action to set aside a judgment rendered in the district court for Camp county on May 11, 1883, whereby a divorce was granted to the appellee.</p> <p>The petition in this cause was filed June 10, 1882, aud the ground upon which the relief is sought is, that there was no service made on the appellant in the former suit in any methods known to the law. She also alleged that the judgment was based on a false return of service fraudulently made by her husband, or his agent or attorney acting for him in this suit. The petition also alleges that the grounds set out in the petition for divorce did not exist, and also alleges the intention of the appellee to marry again, and asked an injunction to restrain him from so doing. The injunction was granted and the writ issued June 10,1882, and was served on the fifteenth, and on the twelfth of the same month the appellant married another woman.</p> <p>It appears that Mrs. Stephens was in Florida at the time service in the divorce suit was desired on her, and citation issued under the provisions of Articles 1230,1234, Revised Statutes,</p> <p>We find in the record a paper which appears to be a citation issued in accordance with the statute referred to, on which is a return and affidavit as required by the statute, showing that service had been duly made on Mrs. Stephens on April 13, 1882, by one James .1. Clark. It does not appear that this citation, return and affidavit were marked and filed by the clerk of the court.</p> <p>The judgment rendered on May ll, 1882, declared that it appeared to the court “the defendant had been duly served with personal notice as in such cases is made and provided.”</p> <p>The petition in this cause, in addition to the relief before stated, also sought a divorce on grounds therein stated.</p> <p>The defendant filed general and special demurrers, which were overruled. One of the demurrers questioned the right of the appellant there to maintain an action for divorce against her husband, she not being a resident of Camp county.</p> <p>This cause was tried without a jury, and it was proved by two persons, one of them being the person whose name was signed to the return on the citation, that no personal service whatever was made on the appellant.</p> <p>James J. Clark testified as follows : “I am not related to either of the parties. I know such citation or petition of T. W. Stephens against Lou E. Stephens. I know of two. I delivered one to Mrs-A. P. Roberts, who promised to give it to her daughter, Mrs. L. E. Stevens ; the other I returned to Allen J. Cassaday, from whom I received them. Mrs. Lou E. Stephens was not served with any such paper or papers by me. I intended the return made by me on the paper returned-to Allen J. Cassaday to be that I had made service upon Mrs. A. P. Roberts at her place of abode, and so stated to Mr. Cassaday, who replied that was sufficient. Mr. Wm. Fox, a notary public, filled out the return, as I supposed, according to my directions, as I had no spectacles with me, I cOuld not read it. I signed it supposing it to be just as I stated. Subsequently to the above, a lawyer called from Texas, who .offered me ten dollars to go and serve another notice upon Mrs. LouE. Stephens in person. He told me he was one of the attorneys of Mr. T. W. Stephens. I refused to serve them in the manner he proposed. I did take a note to Mr. A. P. Roberts, but did not deliver paper or papers to Mrs. Lou E. Stephens.”</p> <p>Mrs. A. P. Roberts, mother of Mrs. Stephens, fully corroborated the testimony of Clark, aud fixed the date at which the transaction referred to by him occurred. '</p> <p>An issue of fact in relation to service on Mrs. Stephens having been made, and no other citation or return shown than the one to which. Clark testified, it must be held that the recital in the judgment that personal service was made on Mrs. Stephens was based on the return and affidavit of James J. Clark, which, by his evidence and the evidence of others, is shown not to have been correct.</p> <p>While it is probably true that in actions for divorce prosecuted by one whose status the state in which the cause is pending has the right through its courts to determine, service on a non-resident defendant may be made otherwise than by actual service of process on such person within the limits of the state, and that thereby the court can acquire jurisdiction which will empower it to declare the status of its own citizen, and that such a decree when rendered will be binding elsewhere; yet, it is essential in such cases to the jurisdiction of a court that the mode of procedure, through which jurisdiction is obtained, be pursued, as that there be personal service within the state, or an appearance in some way in the cause by a defendant, in order to give the court, before which the matter is pending, jurisdiction to render a judgment in personam, (Bishop on Marriage and Divorce, 157,164, and authorities cited and discussed; Freeman on Judgments, 584, and authorities cited; Cooley’s Const. Limitations, 401, 406.)</p> <p>It is provided by the laws of this state that service on non-resident defendants may be made by publication, or by actual service of a citation and a copy of the petition, on the defendant without the state. (Rev. Stats., arts. 1230, 1234.)</p> <p>In suits of this character, if there be no actual service on the defendant made within the state, or acceptance of service, and no appearance by the defendant, then, in the absence of a substantial compliance with the laws which permit service on a defendant to be otherwise made, a court acquires no jurisdiction to enter a decree granting a divorce. (Edrington v. Allbrooks, 21 Texas, 439; Atkins v. Atkins, 9 Nebraska, 194; Halfern v. Davis, 10 Wis., 445; Fontaine v. Houston, 58 Indiana, 316; Bradley v. Jamison, 46 Iowa, 69.)</p> <p>The evidence in this case shows, with all reasonable certainty, that the citation or notice and copy of the petition in the cause in which the judgment sought to be set aside in this proceeding was rendered, were never delivered to Mrs. Stephens, and it tends to show that a false return was made, and that with the knowledge of that fact it was imposed upon the court by appellee.</p> <p>The statute requires personal service on Mrs. Stephens- — service by publication not having been made (Rev. Stats., art. 1232) — and as such service was not made, the court acquired no jurisdiction to render the decree. (Witt v. Kauffman, 25 Tex., Sup., 385; Edrington v. Allsbrook, 21 Tex., 188.) It may be that even in a collateral proceeding a judgment rendered under such circumstances ought not to be held conclusive. This, however, is not a collateral proceeding.</p> <p>The evidence tends to show that the person to whom the citation and copy of petition were sent, and who delivered them to another to serve, was informed by that other that no one of the papers had been delivered to Mrs. Stephens. If that person was the agent of T. W. Stephens — and such is the inference from the facts proved— then he stands, in law, charged with the khowledge that the return made was false, 'end his use of it, as if and for a true return, was a fraud upon the court as well as upon his wife, which of itself would ■ be sufficient to require the decree thus obtained to be set aside. (2 Bishop on Marriage & Divorce, 753 et seq,, and authorities cited; Freeman on Judgments, 99; Webster v. Reid, 11 Howard, 460.)</p> <p>The power of court to vacate judgments rendered by them, on grounds such as are set up in this case, has been recognized and enforced in many cases, even when by the judgment of a former term divorce had been granted. (Edson v. Edson, 103 Mass., 590; Will-man v. Willman, 57 Ind. 501.; Dunn v. Dunn, 4 Paige’s Chancery. 425 ; Young v. Young, 15 Min., 181; Cobin v. Cobin, 2 Paige, 385 ; Smith v. Smith, 20 Miss. 167 ; Bishop on Marriage and Divorce,751, 753; Freeman on Judgments, 100, 98.)</p>

<p>Appeal from Marion county.</p> <p>STATEMENT</p> <p>February 12,1884, appellees instituted suit by attachment in the district court of Marion county, against John French & Son, upon a debt evidenced by a note, not then due, for $994.38 and an account for §73.78. A writ of attachment was issued and on the same day levied on property of French & Son.</p> <p>February 15, 1884, suits were instituted in the same court by appellants against John French & Son as follows : By Nenny & White for §1,553 ; by Moore & Murchison for §1,662, and by J. M. Wilcox for $215.74. In each of which suits a writ of attachment was sued out and levied upon the same property (among other things) upon which Schluter & Go’s, writ had been levied.</p> <p>May 16,1884, the same being the appearance day of the term to which the said several suits were brought, French & Son filed their answer to the suit of appellees. A. H. Schluter & Go., moving to quash the attachment, demurring to the petition and pleadings in reconvention for damages for the wrongful and malicious suing out of the attachment in the case.</p> <p>On the same day leave was granted appellants, Nenny & White, Moore & Murchison and J. M. Wilcox, to intervene in said suit, and they then and there filed a joint plea in intervention.</p> <p>June 17, French & Son filed their first .amended answer to said suit, setting up, in addition to the defenses of their original answer, the payment to plaintiffs, Schluter & Oo., of the sum of five hundred dollars, and pleading the same as a set off.</p> <p>On the same day a paper with the signature of the defendants subscribed was filed with the papers of the ease by plaintiffs, Schluter & Co., which paper confessed the justness of plaintiffs’ debt, declared the answer filed on the sixteenth of May to have been so filed by mistake, and that they did not wish to interpose any defense to the suit.</p> <p>On the same day leave was granted the intervenors — appellants herein to file an amended plea of intervention, which amended plea was filed on June 18,1884. To this amended plea of intervention plaintiffs, Schluter & Co., filed a general demurrer and motion to strike out, as well as special exceptions.</p> <p>June 18 the court sustained the general demurrer of plaintiffs to the intervention of appellants, and rendered judgment against them for the costs of the intervention, at the same time rendering judgment in favor of Schluter & Co. against John French & Son for the full amount of the debt claimed with a foreclosure of plaintiffs’ attachment lien, and ordering the payment of proceeds of property levied upon to plaintiffs, Schluter & Co., in satisfaction of said judgment. From this judgment, and the order overruling a motion for new trial, intervenors appealed.</p>

STATEMENT. On the second day of January, 1888, appellee, Wimmer, brought this suit against Nichols and Alex Coke, sheriff of Live Oak county, to correct the description of the land conveyed by the… Held: that the judgment of the county court was not subject to attack. ' The real question involved in the appeal is as to whether the county court judgment is shown to be void by the record.

The object of this suit was to subject property in the possession of the heirs of Mrs. Mary A, Mayes, deceased, and derived by descend from her, to the payment of a debt due the appellee from the estate of the deceased. Of the eight heirs who were sued only two, viz., R. E. L. Mayes and Ida Devereaux, insisted upon any defence to the action, and they pleaded a general demurrer and the statute of limitation.

<p>Railroad Grossing — Where a railroad crosses a public highway, the statute imposes upon the eompany the obligation to restore the highway either to its former state, or to such a condition as not to unnecessarily impair its usefulness, and also to keep the crossing in good-repair.</p> <p>Same — Highway.—No obligation rests upon a railroad eompany to repair public highways, except when they haue been interfered -with by the construction of the railroad, and the obligation is limited by the aboye rule.</p> <p>Measure of -Damages. — Compensation for tire injury is the legal rule for the measure of damages — the amouut to be estimated by the jury, upon the evidence, by the exercise of a reasonable and just judgment.</p> <p>Gnarge— See opinion for charges held erroneous under above rules.</p>

Appeal (row Tí it vis county. The nature of thin action and the several steps taken therein are thus correctly stated in brief for appellant : “ This suit was begun August 28, 1880, in the district court of Travis county, by the State of Texas, for the purpose of recovering' from the Yfestern Union telegraphic company the taxes (one cent for each full rate, and one-half cent for each less than full rate message sent over appellant’s lines in Texas) fixed by articles 4605 of…

<p>Appeal from Robertson county.</p> <p>STATEMENT</p> <p>This was an action of trespass to try title brought by J. D. Grant against W. T. Simpson for a tract of one hundred and sixty acres of land. The plaintiff relied on a patent which embraced the land sued for, issued on the 23d day of July, 1879, by virtue of a survey made December 5,1876, under and by virtue of a land certificate issued to Jesse Walling, assignee of Y. Mendez. The defendant answered by general denial, plea of “not guilty,” and special answer that he had acquired title to the land as a pre-emptor by settlement and claim thereof as such, and by compliance with the laws entitling him thereto, beginning on the 20th day of April, 1876 ; also that plaintiff’s patent is null and void, because the survey made by plaintiff upon which the patent was issued, was made without any land certificate or other legal authority to make the same, then in the possession of the plaintiff, or of the surveyor.</p> <p>The survey referred to was the first survey made for plaintiff of this land in 1874. On November 8,1876, the plaintiff obtained from the general land office a certificate for the interest owned by him in the Mendez certificate under which his survey of 1874 was made, and by virtue of’said certificate of unlocated balance his survey was made in December, 1876, on which his patent issued.</p> <p>Defendant answered further, that the plaintiff’s survey in 1876 was subsequent to defendant’s settlement in good faith on said land, and of his taking the necessary steps to appropriate the land as a pre-emptor. Defendants answer in that behalf asserts that plaintiff’s survey in 1876 and the patent issued under it are fraudulent and void as against the rights acquired by the defendant by virtue of his said settlement and claim.</p> <p>Trial by jury, verdict and judgment for the defendant, from which the plaintiff appeals and assigns errors.</p>

The first proposition of appellant under its second assignment of error, viz : when the fare is paid on the train, a railroad has the right to charge four cents per mile, is not questioned on the part of appellee's counsel. The second proposition, which brings in question the refusal of the court to give a special charge asked by counsel for appellant, presents the only point of importance in the case.

The important question in this case arises upon the action of the court below overruling the demurrer to appellee’s petition. Whether this ruling was correct or not depends upon whether the bond, which was the foundation of this suit, was a void or a valid instrument.

The court below held that the account sued on in this case was barred by the statute of limitations of two years. Held: that a person dealing in live stock, buying and selling them on commission, was a merchant within the meaning of the statute of limitations.

.ppeal from '[’arrant county. STATEMENT [Bv the Editor.] Is is the second app.-.-il in this case — the dc.-i.ioj upon the formor appeal will be found fully reported in o8 Texas, 172.

Error from Dallas. STATEMENT. Plaintiff in error brought this suit against defendant in error to recover damages for alleged injuries to his lot and store-house thereon, situated in the city of Dallas, by reason of the action of the city council having caused the grade of the street in front of his property to be raised, and also by reason of having caused to be filled up a natural outlet or channal for the flow of water, which channel was adjacent to plaintiff’s lot, and…

<p>Appeal from Van Zandt county.</p> <p>The opinion sufficiently describes the case.</p>

<p>Occupation Tux — Indictment—The Aet of May 4, 1883, special session, 17tli legislature denounced a tax upon all persons following the occupation or business of selling, or offering t,o sell the Illustrated Police News, Police Gazette and other illustrated publications of like character. Indictment alleging in proper form the following of such occupation is sufdcient to charge, the offense- punishable under said aet.</p> <p>Constitutional Law — “liqnalanil Uniform Taxation.”— It is only when individuals of a class are singled out for exemption, that the constitutional objection, that the tax levied is not‘'equal and uniform on the seme class of subjects” can obtain. The publications named in the act of May 1,1883, embrace a particular class, to ivliicli there is no exemption, and objection taken is not tenable, (See the opinion oil the question.</p> <p>Same — Ta.xhqi Power resides exclusively in the legislature, and it is only when statutes are passed which impose taxes on false and unjust, principles or operate to produce gross inequality, so that they cannot be deemed in any just sense proportional in tlieir effect on those who are to bear the public charges, that courts can interpose and arrest the course of legislation by declaring such enactments void. It is not the provin eeof the court to declare whether a tax is oppressive, and in this case the legislature had full power to levy the tax complained of.</p> <p>Same — Construction of Statutes. — In construing a statute, courts must look to the intent of the legislature in enacting it, and not clone to its language. The object, of the legislature in enacting the statute upon which i-liis prosecution was based is obvious and legitimate. (See the opinion.)</p> <p>Same — The tax imposed by the law under consideration, is not a tax upon prop, erty, but upon a privilege, and is a police regulation as well as a tax for revenue. The power of the legislature to levy such a tax, though incapable of exact definition or limitation, is absolute so far as concerns national persons</p> <p>Same. — It was witliin the discretion and power of tlio legislature to enact as many statutes upon the subject under considci atum as they thought it proper to effectuate the object in view ; and it is no sufficient objection to tlie law levying the tax, that there exists another statute for the prevention of the circulation of indecent and immoral publications.</p>

<p>Appeal from Jefferson county.</p> <p>The opinion discloses the case.</p>

<p>Autrefois Acquit and Convict. — For an illustration and elaboration of the distinction between the defenses of autrefois acquit and autrefois convict, see the opinion in extenso.</p> <p>Same — Theft.—When the evidence shows that the theft of cattle of two different owners was perpetrated in a single transaction, the conviction of the accused of the theft of the cattle of one of the said owners, will upon the doctrine of autrefois convict, and the doctrine' of carving, operate to bar a prosecution for the theft of other owner. But being charged in separate indictments with the theft of the cattle of the separate owners, an acquittal under one will not bar the prosecution under the other. Notwithstanding the transactions be the same, and the evidence be in both identical. (See the opinion on the question.)</p> <p>Same — Tim/ Lato — Trial.—See the opinion in extenso, for circumstances under which,'flagrant, misconduct of the trial jury being manifest, the court should have granted a new trial.</p>

STATEMENT That the appellant fired the fatal shot and killed the deceased, is not disputed. Self-defense was relied upon by the appellant and to sustain this, his purpose was to prove that, when he fired the fatal shot, the deceased was manifesting, by his actions, a present intention to draw a pistol, with which to shoot the appellant, to prevent which, and in order to save his own life, the appellant drew his pistol fired upon, and killed, the deceased.

<p>Appeal from Gregg county.</p> <p>STATEMENT.</p> <p>The charging part of the indictment in this case alleged “* * '* that one Ed. Bean, late of said county, on the twenty-first day of May, A. D. 1883, and in said county and state of Texas, did then and there, with malice aforethought, kill and murder one Charles Stevens, by then and there shooting him with a shot gun, contrary,” ote. Under this indictment the appellant was convicted of murder in the first degree and was awarded the death penalty.</p> <p>The state’s evidence, and none other was introduced, tends to show that the fatal shot was fired from ambush by one Amon Stevens, with whom the appellant, though not present at the killing, was acting in concert, and that he, Amon Stevens, fired the shot from a gun provided him by the appellant for the purpose. The strongest testimony connecting the appellant with the offence in any capacity is that of the Hon. F. J. McCord, which is the subject matter of the second head-note of this report. In so far as it bears upon the confession of the appellant, it is here copied in full. Judge McCord testified as follows : “ * * * When I reached Gladewater on my return from the field (the defendant then being under arrest) I asked defendant what he had done with the gun used in the killing. The defendant first said that he knew nothing about it. I then told him that he had better tell — -that it would be the best for him to toll. He, the defendant, then said, that the gun was behind the cross fence in his father’s field j that he carried it there the previous night alter his release from his first arrest ; that he took it out of the old barn where he put it the Sunday evening before for Amon Stevens ; that he got the gun at Charley Ford’s below Longview, and carried it to the Wilkins mill on the train, where he got off the train on Sunday evening, and thence took it to the barn and left it for Amon Stevens ; that Amon Stevens asked him to'get the gun and leave it in the barn for him ; that Atnon Stevens told him that Charley Stevens run over him long enough, and that he, Amon, wanted the gun to kill Charley Stevens ; that on putting the gun in the barn, he, defendant, notified Amon where he would find both the gun and the ammunition ; that the said gun was loaded with five bullets in each barrel, and that Amon Stevens shot Charley Stevens with one of the barrels so loaded ; that one barrel of the gun was still loaded and the other was empty; that Amon Stevens asked him to borrow a pistol for him, which he tried to do, but failed.</p> <p>“According to the directions of the defendant, I went to the cotton field of his father, and behind the cross-fence, found the gun and a bottle each of powder and shot, which the defendant told me were with the gun. Those bottles resembled the bottles in evidence. I took the tracks from where the gun was found and followed them to within thirty or forty steps of the defendant’s father’s door. This space had been recently cleared, and I could follow them no further. They went, however, toward the house and barn. On onloading the loaded barrel of the gun I found yellow paper wadding, powder and five buck-shot. The other barrel had been recently discharged. The defendant told me that after the gun fired, Amon Stevens came up to where he was, from the direction of Charley Stevens’ field, raid said to him : “I have laid Charley out; keep mum.” The defendant was under arrest when he made these statements to me, and I did not warn him.”</p>