Volume 4 — Texas Civil Appeals Reports

<p>Error from Galveston.</p>

<p>1. Innocent Purchaser — Notice. — Two persons having agreed to purchase a tract of land together, one to furnish the money and the other to buy, each to have a half-interest in the land, notice to the purchasing partner of facts tending to prove the existence of a prior unrecorded deed is notice to the other partner.</p> <p>2. Same.—Although pursuit of inquiry in accordance with the notice of facts in his possession might not have led the purchasing partner to the discovery of the unrecorded deed, because that was not found until after the institution of this suit, yet by such inquiry he could have ascertained the exact chain of title claimed by plaintiffs, and he was not entitled to speculate upon their present inability to produce the deed. There was sufficient knowledge of facts to require him to take notice of the true state of the title.</p> <p>3. Harmless Error in Admission of Evidence.—Notice of the unrecorded deed being otherwise shown, the admission in evidence of a judgment in a suit between the plaintiffs and third parties, wherein their chain of title was recited, was harmless error.</p> <p>4. Partition Deed.—A deed neither acknowledged, recorded, nor witnessed, may be a good partition deed, sufficient to support the plaintiff’s cause of action.</p>

<p>Tried below before Hon. W. H. Stewart.</p>

<p>Error from the District Court of Liberty.</p> <p>Tried below before Hon. L. B. Hightower.</p>

<p>1. Negligence of Fellow Servant—Fact Case.—Cumpston, a car repairer, was killed on the table track in the switch yard of the defendant, by being caught between the car upon which he was working and another car on the same track, propelled against it by a blow from a switch engine, which was being run along the lead track. The cause of the collision was, that the car which was struck by the engine stood too near the junction of the lead track and the table track, which was a side track going out from the lead track. Cumpston and two other employes, on the morning of the accident, in separating the cars upon which Cumpston intended to work, had placed the oars on the table track so that when the engine came by they were too near the lead track. Yerdict for Cumpston was reversed.</p> <p>2. Proper Instructions in Such Case.—Defendant requested a special instruction, that the undisputed evidence showed that deceased and his fellow workmen were guilty of negligence in moving the car to where the engine struck it, and to return a verdict for the defendant. This instruction should have been given; or failing in that, the verdict should have been set aside.</p> <p>3. The Engineer a Fellow Servant. — The engineer of the switch engine was also a fellow servant; and if he was negligent in failing to avoid the collision, the defendant would not be liable for the damage resulting therefrom, any more than it would be for the acts of the servants who helped Cumpston to move the cars.</p> <p>4. Rules for Protection of Employes. — There is nothing in the evidence, that no rule was adopted by the defendant company for the protection of its employes at work upon the storage tracks, because it is not shown that any rule could have protected the" deceased.</p>

<p>Appeal from Shelby.</p> <p>Tried below before Hon. George F. Ingraham.</p>

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

<p>Tried below before Hon. George McCormick.</p>

<p>1. Errors which will Not Reverse. — Errors were committed by the court below in the admission of evidence and.in the instructions to the jury, but no other judgment could have been rendered under the law upon the facts of the case than that which was rendered. In such case the plaintiff suffered no injury, and the judgment must be affirmed.</p> <p>2. Cash Sale by Land Broker.—A land agent authorized to sell only for cash, contracted a sale for half cash and the balance in four and eight months, and testified that he desired the title made to himself, and that he would have made the title to the purchasers, taking their vendor’s lien notes for the unpaid purchase money, which he could have placed in bank and gotten the cash for, with which he would have paid to the vendor the cash price fixed by him upon the land. It being further shown by his testimony that he relied upon the purchasers and upon the notes to be executed by them for the means with which to realize the cash necessary, and that if they had failed to comply with their agreement there would have been no sale, held, that this was not a cash sale, and not having been consummated, that the land agent was not entitled to recover compensation for making it.</p> <p>3. Land Agent, when not Entitled to Commissions. — The terms of sale were explicit, and the proposal to fulfill should have been equally so. Nothing should have been left to speculation or conjecture. The broker must complete the sale; that is, he must find a purchaser in a situation ready and willing to complete the purchase on the terms agreed on, before he is entitled to his commissions.</p>

<p>Appeal from Brazos.</p> <p>Tried below before Hon. W. W. Harman, County Judge.</p>

<p>1. Fact Case—Vendor’s Lien.—See facts where an assignee of a vend- or’s lien note before maturity was held to be entitled to a decree of foreclosure, although the vendor and vendee had by paroi agreement rescinded the sale; and further agreed that the note sued on should be held as an obligation for rent.</p> <p>2. Practice in Appellate Court when Judgment is Affirmed. — When the facts found by the court below and his rulings on the law of the case are not in the record, if from the evidence in the record facts can be found which will sustain the judgment, it must be affirmed; and all conflicts in the evidence' must be determined, so far as necessary, in favor of that view which tends to support the judgment.</p> <p>3. Reinstatement of a Sale of Land. — If the parties had previously agreed upon the rescission of the contract of the purchase and sale of the land, it was still in their power to reinstate it, and to confer upon a purchaser of the note all the rights which accompanied the note as an obligation for purchase money.</p>

<p>Appeal from Walker.</p> <p>Tried below before I-Ion. Norman G. Kittrell.</p>

<p>1. Contract, Violation of.—Appellee contracted to furnish money, feed, and merchandise to appellants, who were to ship to him all lumber manufactured by them at their mill, and appellee was to exert himself to make sales of said lumber, obtain the best possible price, etc. Thereafter, appellee bought one-third interest in another lumber mill, and entered into partnership with the other owner, and agreed to give said partnership business his attention and general control and supervision, and to sell lumber, pay bills, etc. This subsequent contract of partnership was not a violation of his contract with appellants. Neither the contract with appellants nor the contract of partnership called for the entire service of appellee.</p> <p>2. Briefs—Propositions in, not Included in Assignment.—A proposition not included in an assignment of error will not be considered. See example.</p> <p>3. Usage—Evidence of, when Admissible.—Evidence of usage is not admissible to vary the terms of a contract, but may be received in explanation thereof. Parties to a contract are bound as they bind themselves, but they contract with reference to the usages of the particular trade or business about which their agreement is made; and„evidence to show what amount of different classes of lumber should be carried in stock by a saw mill to enable it to fill the usual run of orders, was pertinent to the issue as to whether or not the plaintiff was in default in failing to sell “all’’ of defendant's lumber, and was admissible.</p> <p>4. Incomplete Account Stated, when Evidence.—Plaintiff and defendants had an accounting together, in an attempt to make a settlement, and they checked and agreed to all differences except commissions on sales made by defendants and commissions on lumber on hand, and defendants ordered the statement copied in their letter book. It was not admitted by the court below •as an account stated, but as bearing on the question of general indebtedness, and the jury was so informed. Held, no error.</p> <p>5. Charge — Construction of Contract. — A charge which directs the .jury to read the written contracts, and from their terms to arrive at the intention of the parties, when taken in connection with other portions of the charge, held, not to submit the construction of the contracts to the jury. [The charge ■clearly defined all the issues involved, and gave fully the rules by which the jury were to be governed in their findings, whether in favor of the plaintiff or defendants. Reporter.]</p> <p>6. Charge — Harmless Error. — Though the charge stated the amount claimed in the petition at a greater sum than was admitted to be due, as the verdict of the jury was evidently not affected by it, nor the question properly raised by an assignment of error, it was not reversible error.</p> <p>7. Argument of Counsel.—Counsel for plaintiff, in addressing the jury, stated, that Clayton told Mrs. McDuffie, at the time the contract of partnership was made, “ that he could only give half his time to the McDuffie mill.” This had been excluded by the court as evidence; but there was no notice taken of the statement at the time it was made in argument, and it does not show ground for reversal.</p>

<p>Tried below before Hon. G. A. Brown.</p>

<p>1. Trespass to Try Title — Plaintiff Must Show Title.—In trespass to try title, the plaintiff can recover only on the strength of his own title, and not on the weakness of that of his adversary.</p> <p>2. Same— Proof of Payment of Valuable Consideration.—Plaintiff, in trespass to try title, gave in evidence a deed of the land made to himself by M. alone, in whose wife the title was vested apparently as community property. The evidence showed, however, that the land was in fact her separate property. Held, in the absence of proof that plaintiff had paid a valuable consideration for the land, that he was not entitled to recover it against a third party, as it did not appear that he had acquired the real title (of the wife) thereto.</p>

<p>1. Verdict Sustained — Conflicting Evidence.—Where the evidence, though conflicting, is sufficient to support the finding ol the jury, the verdict and judgment thereon will not he disturbed on appeal.</p> <p>2. Charge of Court — Negligence — Railway Crossing. — It is not error, as being on the weight of evidence, for the court to charge, that the defendant railway company would he liable for the injury done, if plaintiff was struck at a public crossing by a moving train, because of neglect to ring the bell or blow the whistle, as required by the statute. See the opinion for charge approved.</p> <p>3. Same — Cases Qualified. — The language of the court in Railway v. Calhoun. 84 Texas, 226, quoted in Railway v. Roberts, 2 Texas Civil Appeals, 111, to the effect that it is error for the court to charge more than the statutory duty of the train operatives, in approaching a public crossing, to ring the bell or blow the whistle, in so far as it emphasizes the principle that negligence is an issue of fact, is held to he too broad, as applicable to a state of facts such as this case presents.</p>

<p>Error from Tarrant.</p>

<p>1. Assignment of Error.—An assignment of error that “the court erred in its conclusions of law,in refusing to foreclose appellants’ mechanic’s lien,” is too general.</p> <p>2. Mechanic’s Lien — Lot held under Parol Contract. — Where buildings are erected on premises for one in possession under a paroi contract of purchase only, a mechanic’s lien for such improvements does not attach as against the real owner.</p> <p>3. Same—Estoppel.—That the true owner knew that improvements were being made on his land for one in possession under a paroi contract of purchase, does not estop him from denying a mechanic’s lien thereon, where it does not appear that he knew the mechanic was ignorant of the condition of the title.</p>

<p>1. Jurisdiction of Amount Pleaded in Beconvention— Practice on Appeal.—Where defendants in the County Court plead in reconvention an amount beyond the jurisdiction of the court, they can not, on appeal, avail themselves of errors of the trial court in the admission and rejection of evidence, and in charges given, relating to such plea.</p> <p>2. Same—Effect of Judgment Below in Such Case.—As the court below had no jurisdiction of the defendants’ plea in reconvention, the verdict and judgment can not preclude their right to bring an independent action thereon.</p> <p>3. Practice—Harmless Error.—Where those items in plaintiff’s account which are well pleaded, and as to which his proof is undisputed, exceed the amount allowed him by the verdict and judgment, error of the court as to other items of the account is harmless as to the defendant.</p>

<p>1. Deposition—Names of Parties to Suit.—In a suit of “ II. v. Knoxville Fire Ins. Co.,” certain interrogatories and the envelope containing the-deposition taken thereon, was endorsed, H. v. Knoxville Ins. Co. Held, that a motion to quash the deposition because of the omission of the word “Fire” from the name of the defendant was correctly overruled.</p> <p>2. Fire Insurance Policy — Condition not Violated.—A condition in a fire insurance policy stipulated, that the assured would keep his books in a. fire proof safe, and that in case of loss he would produce the books, and on failure to so produce them, the policy would become void. The hooks were in good faith kept in a safe of the kind generally known and reputed as fire proof, but which failed to preserve them from destruction by fire. Held, that the assured had not warranted the safe to preserve the books, and that he had complied with the condition.</p> <p>3. Same — Subsequent Agreement as to Condition. — Where the agent of the insurance company, prior to the fire, examined the safe in which the books were kept, and agreed that it was sufficiently fire proof for the purpose, this would satisfy the stipulation in the policy as to the character of the safe.</p> <p>4. Same—Excepted Causes of Loss.—Where the loss was by fire, the court did not err in failing to submit the excepted causes of loss mentioned in the policy,, such as invasion, insurrection, and the like.</p>

<p>Appeal from the County Court of Denton.</p> <p>Tried below before Hon. F. M. Davidson.</p>

<p>Error from Wilbarger.</p>

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

<p>1. State School Land—Settler in Good Faith.—A purchaser of State school land under the Act of April 1,1887, built a small house thereon, without any chimney or opening for one, and which remained unoccupied except that a few articles were kept in it for a short time, after which the door was nailed up. The purchaser visited the house a few times within a year and a half, and once plowed a fire guard around the land, but lived on other land, where he was employed. Held, that he was not a “ settler in good faith" on the land as required, by section 7 of said act.</p> <p>2. Same—Judicial Forfeiture of Sale not Necessary.—Section 11 of said Act of April 1,1887. providing, that “ if any purchaser shall fail to reside-upon and improve in good faith the land purchased by him, he shall forfeit said land and all payments made thereon to the State, and such land shall again be-for sale, as if no such sale and forfeiture had occurred,” does not require the-State to obtain a judicial forfeiture of the sale in an action against the purchaser,, before the land may be sold to a subsequent purchaser.</p>

<p>Appeal from Wilbarger.</p>

<p>Appeal from Parker.</p> <p>Tried below before Hon. J. W. Patterson.</p>

<p>Appeal from Mitchell.</p>

<p>1. Execution Sale—Grounds for Setting Aside.—Lands were sold at a grossly inadequate price under execution issued from a Justice Court. Ho certified copy of the bill of costs accompanied the execution. The execution defendant had personal property in the county, but no effort was made to discover or levy on it. There were irregularities in the proceedings that eventuated in the judgment of the Justice Court, such as rendered its validity at least questionable. The execution defendant promptly tendered to the purchaser the amount paid by him and all costs, and moved to set aside the sale. Held, that the irregularities must have contributed to the inadequacy of the price, and that the sale should be set aside.</p> <p>2. Same — Equitable Relief. — Where there is gross inadequacy of price at such sale, and the execution defendant against whom the judgment was wrongfully obtained is without fault or negligence in the matter, and moves promptly to set the sale aside, tendering the full amount paid by the purchaser, equity may, it seems, grant the relief, irrespective of irregularities, or the validity of the judgment, on the ground that it would be unconscionable for the purchaser to hold the property under such circumstances. See the opinion.</p> <p>3. Same — Case Criticised. — The opinion in Allen v. Pierson, 60 Texas, 604, on this subject, held, in view of decisions of the Supreme Court both later and prior thereto, not to give a correct statement of the rule applicable here.</p>

<p>Specific Performance—Tender.—Where a purchaser of land under an ex-ecutory contract pleads and proves his willingness to pay the entire balance due, it is not necessary that he should, as a prerequisite to his right to a decree of specific performance, have first made actual payment, or tender of payment, since the court can make such decree dependent on final payment being made within a stated time.</p>

<p>Appeal from Parker.</p> <p>Tried below before Hon. J. W. Patterson.</p>

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

<p>Appeal from McLennan.</p>

<p>Tried below before Hon. W. H. Jenkins.</p>

<p>1. Caveat Emptor.—In a sale of a specific chattel inspected or selected by the purchaser, or subject to his inspection, the maxim of caveat emptor applies; and a sound price does not in and of itself import a sound quality. Applied to a sale of hogs inspected by the purchaser before buying, and which showed disease soon after the sale.</p> <p>2. Implied "Warranty.—The doctrine of implied warranty of fitness does not arise, in the absence of fraud, when the buyer selects his own article on his own judgment, although the vendor (not being the manufacturer or producer) knows it is intended for a particular use. So held in sale of hogs by a dealer to a butcher.</p>

<p>Surety on Appeal Bond — Cases Adhered to. — Trammell v. Trammel], 15 Texas, 291; and Sampson v. Solinsky, 75 Texas, 663, adhered to. A surety upon an injunction bond may become surety on appeal bond,.the principal appealing in same case, although upon dissolution of the injunction judgment was entered against him for damages and costs.</p>

<p>1. Contract for Drover’s Pass.—While provisions in stock freight contracts making it the duty of the shipper to feed, water, and care for his stock, and giving drover’s pass for that purpose, will not relieve the carrier of its duty to the shipper as a passenger on such pass, nor from liability for neglect of duty in carrying the stock so shipped, still such contract does operate as a license to-the shipper to look after his stock. In so doing he is liable for his negligence in the exercise of such work.</p> <p>2. Brakeman—Apparent Authority.—It is not within the apparent authority of the brakeman on a railway train to control the movements of the train. Such control is exercised by the conductor.</p> <p>3. Same—Power of Brakeman.—The plaintiff, travelling on a drover’s pass, was injured while looking after his stock by the sudden backing of the train. He had been told by a brakeman to "‘look after his stock,” and that, the train would stop for awhile. It not appearing that the brakeman had any control of the train, and it not being within the scope of his apparent authority,, the declarations made by the brakeman did not bind the railway company.</p> <p>4. Same.—See facts held not to show authority in a brakeman to bind the-railway company by his statements made to a passenger, upon which the passenger acted, and while so doing received injury.</p> <p>5.. Care by Drover.—If the drover had authority to look after his stock, he-was entitled to care from the railway company for his safety while so emplo3red. See facts showing the want of such care, had the license been binding upon the company.</p> <p>6. Railway—Conductor—Brakeman.—The duties of a brakeman ordinarily do not extend to the control and management of the train; that power is. lodged in the conductor.</p> <p>7. Authority of Agent—Brakeman.—The burden rests upon plaintiff' seeking to charge the principal for the acts of an agent, to prove the authority of the agent. It not being within the apparent authority of the brakeman to make the statements relied upon, it devolved upon plaintiff to establish such authority. See testimony held insufficient to prove such authority.</p> <p>8. Opinion Testimony.—Upon the trial, it was one of the issues of fact, whether plaintiff had been guilty of contributory negligence in getting upon the drawhead, where he was injured. It was error to admit his opinion in evidence, that “ he had to get up there” to give the necessary aid wanting to his stock.</p> <p>9. Care by Railway Company—Disposition of Cars in the Train. A shipper can not complain of the acts of the railwas’' company in placing the car or cars upon which is his stock. It was not negligence that the cars were not next to the caboose.</p> <p>10. Motive or Reason of Act of Party.—It is competent- testimony for a party testifying in his own behalf, when relevant to the issue, to testify to the-motive or reason for his action which is under investigation.</p>

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

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

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

<p>Appeal from Bexar.</p>

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

<p>1. Subscription—Breach of Contract.—Appellee and others subscribed to enable appellant to extend its road, in consideration ol benefits to accrue to-subscribers, and of the issuance to them of first mortgage bonds by appellant, on payment of subscription and the completion of the road, in amounts equal to-their subscriptions. Held, that appellee having paid his subscription of $1000, was entitled to recover a bond for that sum, less three years interest coupons; nor was the delivery of the bond to him conditioned upon what may have after-wards transpired between appellant and the other subscribers.</p> <p>2. Measure of Damages.—The rule for estimating the value of chattels-having a fluctuaaing value, is the highest market value of the chattel between the date of breach and the trial, with interest from date of valuation fixed, unless plaintiff has unreasonably delayed bringing suit.</p> <p>3. Immaterial Error.—The admission of incompetent testimony in a trial before the judge is no ground for reversal where there is sufficient testimony to sustain the judgment. See example.</p> <p>4. Evidence—Parol Evidence.—The court below properly excluded the following answer: “ I understood the contract to be, that the company would build the northwestern extension to Kerrville, and deliver 280 of its first mortgage bonds, with three years coupons deducted, for the sum of $280,000, to be paid by subscribers who wanted the road.” The contract being in writing, its-terms could not be varied by paroi evidence, and under it each subscriber, upon payment, was entitled to bond for the amount of such subscription.</p>

<p>Error from Maverick.</p>

<p>Appeal from Bexar.</p>

<p>Tried below before Hon. George McCormick.</p>

<p>Tried below before Hon. T. A. Falvey.</p>

<p>Appeal from Guadalupe.</p>

<p>1. Petition—Evidence Under General Denial.—D. sued B. on a note for $175, with 8 per cent interest, and 10 per cent on amount as attorney fees, and to foreclose vendor’s lien on certain lots, vendor’s lien expressly reserved in the note. The petition did not expressly allege the execution and delivery of the note, but alleged an indebtedness by reason of the note, setting it out in full. B. answered by general denial, and on the trial objected to the introduction of the note: (1) Because it was not alleged that the note was executed by him. (2) Note was not the best evidence to show lien. (3) It showed that the deed was the best evidence of such lien. Held:</p> <p>1. Petition, in the absence of an exception, sufficiently averred the execution of the note, and there being no sworn plea denying its execution, it was properly admitted in evidence.</p> <p>2. The note, on its face, showed it was executed for the purchase money. It was original evidence, and as good evidence of the lien as the deed.</p> <p>2. Attorney Fees.—The allowance of 10 per cent as attorney fees on principal and interest due on the note was proper.</p>

<p>Mistake—Laches—Partnership Settlement.—A partnership was closed by one partner buying out the other for an agreed sum, part cash and balance by a promissory note. In a suit upon the note, it was held an insufficient answer as a defense to allege an erroneous charge on the partnership books against the plaintiff, made before the settlement, and of which he was informed. See facts.</p>

<p>Appeal from Bowie.</p> <p>Tried below before Hon. John L. Sheppard.</p>

<p>Error from the County Court of Bowie.</p>

<p>1. Damages—Mental Suffering—Evidence.—In a suit for damages by a father for breach of a contract made in his name for shipment of the corpse of his son, the mental suffering of his wife, mother of the deceased, is not a proper element of damages, when she is not a known party to the contract, and is not disclosed as a beneficiary under it. Testimony as to her mental suffering in such case is inadmissible.</p> <p>2. Shipping Contract — Route — Parol Evidence.—It is the right of the shipper to route his shipment; if he fails to do so, that right vests in the carrier, subject to the qualification that the route selected must at its peril be a usual and reasonably safe and direct route. The receipt given by the express company in this case purports to state the terms, and contains all the necessary elements of a shipping contract, and is binding by acceptance on the shipper. It being silent as to route, the carrier is by its legal import invested with the right to properly route the shipment. Parol evidence that the shipper directed a route different from that selected by the carrier is inadmissible.</p> <p>3. Same—Negligence.—The carrier selecting the route must have regard to the character and apparent object of the shipment, and if it fails to use that degree of care that an ordinarily prudent person would use under like conditions, it is responsible for damages proximately resulting from its negligence in the 'selection of the route. The action of the express company hi this case in not selecting the most expeditious route is a question of negligence vel non, and should have been submitted to the jury as such.</p>

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

<p>Appeal from Johnson.</p>

<p>Ko.^.</p> <p>Appeal from Johnson.</p>

<p>1. Right of Creditor to Sue Heirs. —The right of a creditor to bring suit against the heirs of a decedent who have received portions of the estate under an order of distribution, was settled by the Act of 1876. Sayles’ Civil Statutes, article 2035.</p> <p>2. Same.—Where four years have not elapsed, and where there is only one-debt against the estate, and no necessity for administration, and the property has been divided amongst the heirs, the creditor can bring suit directly against, them, and each-heir is liable to the extent of the estate received by him.</p> <p>3. Presentment to Guardian for Allowance — Parties. — In such •case the guardian maybe sued, although the claim has not first been verified and presented for allowance. Any of the heirs who are of age are proper parties defendant ; otherwise, they should be represented by guardian.</p>

<p>1. Power of County Judge to Order and Approve a Sale of Land in April, 1870.—A sale ordered by the probate judge in February, 1870, and made April 5,1870, and confirmed thereafter, was void, because prior thereto the County Courts as courts of probate had been abolished by the Constitution of 1869, and probate jurisdiction vested in the District Courts.</p> <p>2. Effect of the Constitution of 1869 Upon the County Court.— The Constitution of 1869 abolished the County Court, and its judiciary article distributed all of the judicial power of the State among the courts named therein, and left no room for the further existence of such courts as the County Courts had been; and after these provisions went into practical operation, no probate jurisdiction existed in any but the District Court.</p> <p>3. Constitutional Provision Construed.—The last clause of section 7,. article 5, of Constitution of 1869, after defining the jurisdiction of the District Court, concludes, “under such rules and regulations as maybe prescribed by law," which is claimed to have the effect of suspending the article until such time as legislation should be had adopting rules and regulations for the guidance of the District Court in the exercise of probate jurisdiction. The majority of the court is of opinion that the provision of the Constitution defining the jurisdiction of the District Court should be treated simply as a readoption of similar provisions which had run through the previous Constitutions, with the addition of larger powers, which might be exercised in accordance with laws already in force governing other tribunals to which such powers had formerly belonged.</p> <p>4. Effect of the Military Government Existing in Texas.—The fact that the person who made the orders of sale and confirmation in question, held his position with the sanction of the military government existing in Texas, did not prevent the Constitution from taking effect so as to abolish the County Court, until after those orders were passed. The principles of law which uphold the acts of de facto officers have no application, and we know of no respectable authority for holding that there may be a de facto judge of a court which has no legal existence. The reconstruction laws ceased to operate in Texas on March 30,1870, and with them fell such powers as they had conferred upon the district commander.</p>

<p>Appeal from Galveston.</p>

<p>Appeal from Jefferson.</p>

<p>Appeal from Jefferson.</p>

<p>1. Waiver of Forty Days Limitation.—Contract for shipment providing that suit growing out of the transaction should be instituted within forty days from its accrual, plaintiff replied, that both before and after the expiration of the forty days the railway company persuaded and induced plaintiff not to .sue, promising to settle the claim as soon as it could be investigated. When proved, held, sufficient evidence of a waiver.</p> <p>2. Amendment in County Court not a New Cause of ActionAppellee having sued in a Justice Court to recover an overcharge of freight, amended in the County Court by alleging that he and two other persons owned the cattle shipped upon which the overcharge was made, and recovery was .sought for their joint benefit. Held, the appellee being both consignor and consignee, the written contract being made with him, he had the right to sue alone, and the amendment changed neither the cause of action nor the character in which plaintiff sued.</p> <p>3. Parol Evidence to Vary Written Contract.—When a written contract is signed by mistake, paroi evidence is admissible to show it. Appellee having agreed with the agent upon a rate of freight, and being busy until after dark, loading, thereafter went to the depot, and being assured by the agent that the contract was all right, signed it without reading it, put it in his pocket, ran and boarded the train, which left immediately, and did not discover the overcharge until he reached Chicago. Held, admissible evidence of mistake or fraud.</p> <p>4. Charge Held Correct. —Claim being for overcharge in freight, a charge in substance, that if appellant by verbal contract agreed to furnish stable cars an $106.87 per car for shipment of cattle, and did furnish them, and in which the cattle were shipped, and nothing was said by the agent at the time or before the-shipment to change or vary such verbal contract, that plaintiff could recover the difference between the contract price and the amount collected by the railway, was held correct; it being shown that the written contract fixing a higher rate was signed by mistake. °</p> <p>5. Measure of Damages.—If the contract was as plaintiff claimed it to-be, he was entitled to recover the difference between what he paid and the amount agreed on at $106.87 per car. If the rate was as defendant contended, plaintiff was entitled to recover only for overcharge in weights and charges for feeding and watering. But he could not in either event recover for both.</p> <p>6. Verdict Cures Error in Charge, when.—Though the charge on the measure of damages was erroneous, the jury disregarded it, and found upon the correct measure of damages, and the verdict is not disturbed.</p>

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

<p>1. Erroneous Charge — Burden of Proof — Consideration. — The maker of a note having pleaded payment, and set up the circumstances under which the note was given, and its special considerations, it was error to charge,, that the note and trust deed given to secure it were prima facie evidence of an indebtedness by the maker to the payee, and that the burden of proof was upon the maker to prove that there were credits other than those endorsed upon the-note, to which he was entitled, and that the maker could not dispute the consideration stated in the note.</p> <p>2. Failure of Consideration.—The consideration of a note, as between the original parties, maybe inquired into, and it may be shown that it has failed, either in whole or in part. The indemnification of Howard against loss by-reason of his advances and suretyship for B. in a suit for land, is a good consideration, although the indemnitee may not have been damnified at the time, but Howard could only recover what he had paid out, and if such sums have been repaid him, then the note has been discharged.</p>

<p>1. Insurance Money on Exempt Property Protected from Gar- ■ nishment.—The law protects from garnishment at the suit of a creditor money due his debtor for loss of personal property upon policy of insurance against fire, taken out by the debtor, when the property itself was exempt from execution.</p> <p>2. The Insurance Money is Exempt, Though Creditor had a. Lien upon it.—It is admitted that appellees had a valid lien upon the piano ■ insured, but this does not alter the rule. We can see no reason why the law should permit the creditor to reap a benefit from the prudence of his debtor, to ■ the loss and injury of the latter.</p>

<p>1. Sale of Patent Right.—Appellees purchased of appellants the right to sell, in a certain territory in Texas containing fifty-five counties, a patent right known as a “ Grip Wheel Windlass,” for which they were to pay $25 for each county when sold. After making honest effort at heavy loss to vend the windlass. they almost wholly failed. The burden was upon the plaintiff to show that facts had transpired to fix liability upon the defendants. The court below was warranted in finding that the article was unsaleable, and judgment in favor of defendants was not disturbed.</p> <p>2. Time of Performance.—Where no date for the performance of a contract is fixed, it is to be performed within a reasonable time.</p> <p>3. Ability to Make Sales.—When a contract is so framed as to make the plaintiff’s right of recovery depend upon defendant’s ability to make sales, they can not escape liability by refusing, without good reason or upon unfounded charges of misrepresentation and defective title, to go on with the undertaking; but the proof warranted the conclusion that the patent was unsaleable, and there was no proof of failure on part of defendants to make efforts to sell.</p> <p>4. Cause of Action—Pleadings.—The cause of action set up was based upon the refusal of defendants to sell any counties, the petition charging that they had ■■ failed to sell even one county.” Plaintiffs were therefore not entitled to recover $25 for the county sold.</p>

<p>Tried below before Hon. George McCormick.</p>

<p>1. Renewal of Lease—Damages for. Refusal of.—Appellees sued for a, balance due them for running a hotel, and for refusal of appellantto renew the lease. Provision in the lease as to renewal was, that appellees were to have the refusal of a lease on said hotel for a term of three years, at price and upon conditions then to be agreed upon. Appellees did not apply for a renewal, and shortly before the expiration of the year it was leased to another party. Appellees failed to show a cause of action for the recovery of damages for breach of the contract. The stipulation for the further lease for three years depended upon the agreement of the parties, both as to price and conditions. It was not an agreement to renew the existing contract, but an expression of preference for her over others, and she made no effort to obtain a new lease.</p> <p>2. Exemplary Damages.—Construing the stipulation in the contract as we do, there could be no recovery of exemplary damages. If appellees had had an agreement for renewal or extension, or the making of a lease, and had been wrongfully ejected from the premises, then there might be facts and circumstances attending the ejectment which, brought to the knowledge of the defendant company and ratified by it, would have entitled the appellees to the recovery of exemplary damages.</p> <p>3. Auditor’s Report.—The auditor's reportfwas unchallenged by objection from either party. It was not addressed to the court, and does not appear to be a formal report, but it does show a statement of the receipts and disbursements of the hotel, and a balance against receipts, and has the file mark of the clerk of the court, and was identified as the auditor’s report. It is conclusive not only as to matters included therein, but also to such as have been excluded, and it was error to submit the account between the parties to the jury.</p> <p>4. Evidence as to Items Included in Auditor’s Report—The auditor’s report having been admitted in evidence, and plaintiffs’ pleadings not. showing that any mistake had been made in it, and setting up no items independent of the report, it was error to permit a witness to testify that he had examined memoranda furnished by plaintiffs, and that defendant owed them the-several sums stated therein.</p>

<p>Error from Jackson.</p> <p>Tried below before Hon. W. H. Burkhart.</p>

<p>1. Suit Within Forty Days.—When a contract of shipment stipulates that no suit shall be sustainable for recovery of any claim for loss or injury to stock shipped, unless brought within forty days, and such stipulation is not shown to be unreasonable, it is an effectual bar to a suit subsequently brought, unless it be shown by the plaintiff that the defendant company has waived it.</p> <p>2. Agents of Connecting Lines.—The agents of a line of railway connected with the line of defendant company, and over which the stock was shipped, are not the agents of defendant, for the purpose of waiving a provision of the shipping contract whereby the plaintiff was required to bring suit for his damages for loss or injury to the stock within forty days, unless express authority from the company sought to be made liable is shown.</p> <p>3. Liability of Connecting Line.—When the contract of shipment provides that the defendant company shall not be liable for loss or injury occurring to the stock after it had left its road, the connecting line does not become the agent of the contracting company, even for the purpose of forwarding the shipment. Defendant company had the right to limit its liability to its own line, and this case is not distinguishable from McCarn v. Railway, 84 Texas, 352.</p> <p>4. Agency—Inadmissible Evidence.—Evidence that it was the duty of the agents of the Atchison, Topeka & Santa Fe Railway to investigate and settle all claims, was inadmissible, unless such duty resulted from some relation between the companies; and no such relation was shown by the evidence.</p> <p>5. Agent, Scope of Authority.—When promises of an agent of the defendant company are relied on to show a waiver of the provision requiring suit within forty days, it must be shown by evidence that such waiver was within the scope of his authority, or circumstances must be shown from which an inference would arise that his acts and statements were within the scope of his authority.</p> <p>6. Liability Limited to Losses Occurring Upon its Own Line. The evidence shows that a part of the loss sustained occurred after the cattle had left the defendant’s line, and while it was in the hands of the second carrier. For such loss the defendant company is not liable.</p> <p>7. Plaintiff’s Care for His Own Stock. — A part of the contract of shipment provided, that the plaintiff was to load and unload the stock at his own expense and risk, and feed and water them while in defendant's pens and in transit. This part of the contract was not alleged in the pleading of either party. Whether defendant could avail himself of this part of the contract without having pleaded it, we do not decide, but it has been held that such contracts are valid, and the burden rests upon the plaintiff to clear himself of negligence, and trace the damage to the fault of the carrier.</p>

<p>Tried below before Hon. J. W. Blankinship.</p>

Tried below before Hon. J; W. Blankinship. This suit was brought by appellee against appellant, the plaintiff alleging the sale to him of a harvesting machine by the defendant company, and that the agent of defendant misrepresented the machine; that it did inferior and defective work; that the defendant’s agent agreed that if it did not do good work plaintiff would not have to pay for it; that he paid $25 cash on the purchase, and gave two notes for 858.75 each; that…

<p>1. Registration of Chattel Mortgage — Removal of Property "Without Permission of Mortgagee.—Article 4341 of the Revised Statutes, providing that where mortgaged personal property is removed to another county the mortgage must be recorded in such other county within four months after such removal, does not apply where the removal is without the permission of the mortgagor, and in such case record in the other county is not required.</p> <p>2. Same — Filing for Record Forthwith. — Although the statute requires a chattel mortgage to he filed for record “ forthwith,” yet its filing at any time is valid against all persons whose rights attach after the filing.</p> <p>3. Bona Fide Purchase — Pleading.—One who seeks to establish the defense of a bona fide purchase must plead as well as prove such purchase.</p>

<p>1. National Bank as Member of a Partnership.—Where a national bank joins as a partner with certain persons in forming a joint stock company to operate a mill, it can not be denied a recovery of moneys loaned to the company, on the ground that it had no power to become a partner in such milling business.</p> <p>2. Evidence—Auditor’s Report.—An auditor’s report should contain a statement of the several items of debit and credit allowed, and not merely the total sums; but where no objection is made on this ground, and the report is good against the exceptions that are urged, it is conclusive of the matters within its scope, and renders immaterial alleged errors in admitting and rejecting evidence bearing on these matters.</p> <p>3. Agency—Liability where Officer of one Company is Manager of Another.—Where the vice-president and manager of a bank is also manager of a partnership of which the hank is a member, his mismanagement of the partnership business is not chargeable to the bank, since in that business he does not act as agent of the bank.</p> <p>4. Joint Stock Company — Limitation of Power to Borrow Money.—Where the articles of association of an unchartered joint stock company, of which a bank is a member, provide that the board of directors alone shall have power to contract debts against the concern, the other members are not liable to the bank, the business having proved a failure, for moneys advanced by the bank on the order of the company’s manager, without authority of its directors.</p>

<p>Appeal from the County Court of Bosque.</p> <p>Tried below before Hon. W. B. Thompson.</p>

<p>1. Acknowledgment of Deed of a Partnership. — A deed purporting to be made by a firm should be acknowledged by one of the members. See opinion for certificate of acknowledgment held sufficient.</p> <p>2. Deed—Description—Excess in Survey.—Where a deed contains a definite description of the land conveyed, by field notes giving metes and bounds, with marked corners, the description is not vitiated by the fact that the number of acres which would seem (by calculation) to be included in the field notes considerably exceeds the number called for in the body of the deed.</p> <p>3. Practice—Exhibits to Statement of Facts.—The contents of a deed may be shown in the record on appeal by attaching a copy of the deed as an exhibit to the statement of facts; and the bill of exceptions and statement of facts will be considered together in determining whether the deed is sufficiently identified.</p>

<p>Appeal from Bosque.</p>

<p>Assignments of Error must be Copied in Appellant’s Brief.— Rule 29, adopted by the Supreme Court for the Courts of Civil Appeals, requires that the assignments of error not waived by appellant shall be copied in his brief, and this rule will not be disregarded, especially where the appellee insists on its enforcement.</p>

<p>Appeal from Wichita.</p> <p>Tried below before Hon. George E. Miller..</p>

<p>1. Assignment of Error.—An assignment of error, that “ the court erred in sustaining exceptions to the two special answers of defendant,” is too general where there are two special exceptions as well as two special answers.</p> <p>2. Evidence in Suit on Subscription to Capital Stock.—Where a father signed the name of his son as a subscriber to the capital stock of a corporation, and in an action against the son to recover the amount of the subscription there was evidence sufficient to show a ratification of the father’s act by the son, evidence to show that the other subscribers knew that the stock was subscribed by the father as an intended gift to the son was properly excluded.</p> <p>3. Same.—In such action it was not error to admit in evidence the subcription list, and proof that the son’s name was signed by the father, in cohnection with facts showing the son’s ratification thereof.</p> <p>4. Charge of Court — Harmless Error. — The refusal of a charge abstractly correct, which, if it had been given, could not under any aspect of the case have correctly affected the verdict in favor of the party asking it, affords no ground for reversal.</p>

<p>1. Jurisdiction of County Court — Land Certificate. — Where suit was brought in the County Court to establish title to aland certificate, and pending suit the certificate was located, the court was thereby deprived of jurisdiction in the matter, as it is without constitutional power to adjudicate the title to land.</p> <p>2. Administrator of Husband—Right to Attack Sale by Widow. Where a widow sells her interest in a land certificate of her deceased husband, his administrator, for want of privity, has not the right to attack her transfer thereof on the ground of fraud or want of consideration in its procurement.</p> <p>3. Land Certificate—Right of Joint Owner to Separately Locate His Part.—Where the owner of an'undivided interest in a land certificate locates for himself no more than his interest, he is entitled to all the land he so locates, and not simply his proportionate share of it.</p> <p>4. Evidence — Certificate of Clerk of Court. — The fact that certain papers' have not been filed in the office of a clerk of a court, can not be established in a suit by the ex parte certificate of that officer, but such fact must be proved by him as a witness in the usual way.</p> <p>5. Administrator’s Right to Recover Land Sold by Heir.—Where an administrator seeks to recover land of a purchaser from the heir, he must show affirmatively that the land is needed for purposes of the administration, such as the payment of creditors.</p>

<p>1. Charge of Court—Request for Instructions Necessary.—Where no instructions are requested, a mere failure of the court to charge on a given point, if error, is one of omission such as will not ordinarily require a reversal.</p> <p>2. Limitations in Action for Conversion of Property. — In an action against a common carrier for the conversion of goods, limitation commences to run, not from the date of the actual conversion, but from the time plaintiff either had notice or was chargeable with notice thereof. Following Railway v. Adams, 49 Texas, 748.</p> <p>3. Action for Conversion — Ownership of the Property. — If the plaintiff in an action against a carrier for the conversion of goods was the owner-of the claim at the time suit was brought, it is immaterial that he was not the; owner of the goods at the time of their conversion.</p> <p>4. Damages for Conversion — Rate of Interest. — Where, after the-conversion of property, the legal rate of interest is reduced, the owner is entitled to the legal rate from the conversion to the time the rate is changed, and to the-reduced rate from then to the date of the trial.</p> <p>5. Charge of Court must be Warranted by Evidence.—In an action, against a carrier for conversion of goods, plaintiff claimed a demand and refusal, but the only evidence on this point was that an attorney made a request for pay for the goods, but not for the goods themselves. Meld, that it was error for the-court to charge on the theory of a demand and refusal, and consequent liability of the carrier for a willful conversion.</p> <p>6. Charge of Court must Submit the Evidence. — Where there is. evidence merely tending to show a conversion of the goods by the carrier, such as a probable delivery to one who may or may not have been authorized to receive them, and the question of such delivery and authority is not submitted by the charge to the jury, a finding of conversion against the carrier is not warranted.</p>

<p>1. Arbitration—Oral Agreement in Pending Suit.—District Court Rule number 47, providing that no agreement between parties or attorneys touching any suit pending will be enforced unless it is in writing and filed therein, does not forbid an oral agreement to arbitrate the matters in litigation outside of the pending suit.</p> <p>2. Common Law Arbitration Valid.—An oral submission to arbitration, when not in conflict with the statute of frauds, is binding in this State, as well as at common law, and the right extends to pending suits.</p>

<p>1. Power of Attorney—Land Certificate.—A power of attorney to sell a land certificate will not authorize a sale of the land on which the certificate is subsequently located.</p> <p>2. Same —Ratification—Notice by Registration.—Where unauthorized deeds are executed by virtue of a power of attorney, such deeds are not admissible in evidence to show ratification, where there is no evidence that the constituents in the power had any knowledge of their execution, save such as might be inferred from their registration in the counties where the lands lie.</p> <p>3. Practice—Waiver of Filing Deeds and Notice.—Deeds are properly admitted in evidence without previous filing and notice thereof to the opposite party, where such filing and notice has been waived by written agreement. See opinion for an agreement of this character construed and given application.</p>

<p>Limitation — Covenant of Warranty in Deed.—When at the time of the conveyance the grantee finds the premises in possession of one claiming under a paramount title, the covenant of warranty will be held to be broken without any other act of the parties; and a suit for breach of the warranty, instituted more than four years after the date of the conveyance, is barred by limitation.</p>

<p>Appeal from Bosque.</p>

<p>Negligence of Railway Company — Injury to Passenger — Fact Case.—Appellee, in alighting from a railway train in the usual manner and at the usual place, stepped on a railway spike about four inches long and nearly an inch thick, lying loose on the depot platform, and his foot was permanently injured thereby. Meld, that the company was guilty of negligence, and that a verdict of §1500 in appellee’s favor would not be disturbed.</p>

<p>1. Stipulated Attorney Fee — Pleading — Default. — Where a note stipulates for the payment of an attorney fee of 10 per cent " if placed in the hands of an attorney to enforce collection,” and suit is brought thereon without any allegation that this had been done, a judgment by default for the extra 10 per cent can not be sustained-</p> <p>2. Same—Endorser’s Liability.—An endorser of such note will he liable for the stipulated collection fees if the principal would be so liable.</p>

<p>Appeal from Wichita.</p>

<p>1. Master and Servant—Fellow Servants—Ignorance of Danger. While plaintiff, an inexperienced car repairer, was at work with a fellow servant, repairing the drawhead of a baggage car, two passenger coaches which had been placed on a spur track, with air brakes set. moved on him. striking him in the back and crushing him. Held, that plaintiff was not chargeable with the negligence of his fellow servant in failing to set the hand brakes on the passenger coaches, or to block the wheels, as required by the rules of the company, where he was ignorant of the danger of working between coaches held by air brakes, and had not been furnished with the company’s rules, though he had repeatedly applied to the foreman for them.</p> <p>2. Charge of Court—Evidence Warranting.—Evidence that the air brakes were not sufficient to hold the two passenger coaches in place, though they were on ground nearly level, and the air brake holding the baggage car on which the work was being done was sufficient to keep it stationary, warrants the court in submitting to the jury the question whether the air brakes on the passenger coaches were defective.</p> <p>3. Same—Charge Confined to Issues.—A requested charge as to matter not put in issue by either the pleadings or the evidence, is properly refused.</p> <p>4. Same—Requested Instruction.—A special charge is properly refused where it is, in effect, a peremptory order to the jury to find for the defendant upon the conditions therein named, ignoring other material issues in the case.</p> <p>5. Same—Charge Properly Connected and Modified.—A requested charge, that plaintiff is not entitled to recover if the injuries were caused by the negligence of his fellow servant in failing to set the hand brakes, or block the wheels on the passenger coaches, is properly modified by requiring it to be considered in connection with the portion of the charge relating to plaintiff’s inexperience, ignorance of the danger, and the failure of the company to provide him with the rules.</p> <p>ON MOTION FOR REHEARING.</p> <p>6. Practice on Appeal'— Assignments of Error. — The method of grouping together several assignments of error, each one containing in itself distinct propositions, and submitting the assignments as in themselves propositions. is so violative of Rule 29 of the Supreme Court as to warrant the appellate court in overlooking a specific objection so confusedly urged.</p> <p>7. Same—Proposition Without Assignment.—An assignment asserting error in a given paragraph of the charge, and stating four specifications of error, relating exclusively to the character of plaintiff as car inspector, and to liis duties as such, but without reference to any issue of defective air brakes, will not support a proposition in appellant’s brief to the effect that the court erred in submitting the issue whether the air brakes were defective because there was no evidence to warrant such charge.</p>

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

<p>1. Incompetent Testimony. — Boaz sued appellants for malicious prosecution, the prosecution being a charge of embezzlement. Shortly before the charge was made the store house of appellants had been set on fire in the nighttime. Boaz was in charge of the business carried on in the house that was set on fire. On the trial, it was error to admit in evidence on behalf of Boaz his own declarations, that “hecould not blame Hurlbut & Semple for prosecuting him; that they had to do it in order to vindicate themselves, as the people of Brown-wood believed that they instigated him to burn the house.” The same witness who detailed this, also testified, “that he heard John Summers and Charles Turner say that the people of Brownwood thought Hurlbut & Semple instigated Boaz to burn their house.” The testimony was irrelevant, and calculated to injure the defendants.</p> <p>2. Same—Cross Examination.—Such testimony was not competent even if drawn out on cross-examination of a witness who had been called to testify to other conversations had with Boaz.</p> <p>S. Advice of Counsel.—In defense in a suit for malicious prosecution, it is competent for defendants to prove that they made the charge, alleged to have been malicious, upon advice of counsel upon the facts. It was error in the court to limit the effect of such testimony to the issue of probable cause. It was competent upon issue of malice.</p> <p>4. Charge—Singling out Isolated Facts.—This court and the Supreme Court have repeatedly deprecated the practice that prevails in some of the trial courts, in their charges to the jury, in carving out of the mass of evidence in the case certain facts, and instructing the jury that they may consider such facts for certain purposes, or as tending to establish certain issues. The charge should submit the case upon all the facts and circumstances in evidence, leaving to the jury in the exercise of their discretion a determination of the facts and the weight to be given them.</p> <p>5. Malicious Prosecution — Innocence of Plaintiff. —The falsehood of the alleged charge is one of the essential facts to be shown by the plaintiff, in order to his recovery in an action for malicious prosecution. Where there is any testimony tending to show his guilt, it is error to refuse an instruction that plaintiff' must show his innocence of the charge. This even when plaintiff' had been acquitted upon the trial.</p> <p>6. Same—Attorney Fees as Damages.—The plaintiff in an action for malicious prosecution is entitled to recover reasonable attorney fees incurred in his defense against the charge, also reasonable expenses paid out and loss of time in making his defense to the charge.</p>

<p>New Contract—Consideration.—Foley contracted to furnish to Storrie a quantity of cedar wood at §4 a cord at a stipulated place and time. The wood was not furnished, and after the specified time Storrie agreed to pay §3 per cord. Under the new contract wood was delivered, and Storrie refused payment. In suit for the new contract price, it was error in the court to charge that there was no consideration for the new contract. The parties had the right to make a new contract, and having done so, the rights of the parties must be determined according to it.</p>

<p>1. Probate Records.—Copy of will and its probate certified by the clerk of the court in which the order of probate was made, where relevant, is competent when it fairly appears from the certificate of the officer that the paper offered in evidence is a copy from the records required by law to be kept for preserving the proceedings of the Probate Court, whether the certificate designates the books from which the copy was taken as minutes or record booh.</p> <p>2. Probate and Record of Will — Correction of Mistake. — The County Court as court of probate has power to correct a mistake made by the clerk in recording a will. It seems that the correction may be made at any time thereafter. The corrected record will take effect from the original action. See example of correction seven years after the entry of the record in which was the mistake.</p> <p>3. Interest on Money Loaned by Wife to Husband.—If upon the husband’s borrowing money, his wife’s separate property, he promises to pay interest, such interest will be her separate property.</p> <p>4. Evidence of Wife’s Separate Property.—Parol evidence is competent to prove how money received from the sale of land owned hy the wife was invested; tracing it to the fund in controversy.</p> <p>5. Creditors Dealing with Insolvent Debtor—Fraud.—A bona fide creditor may obtain property from his insolvent debtor for the purpose of satisfying the debt, if he receives no more than sufficient for that purpose, although the debtor may intend to defraud his other creditors, and such fact be known to the creditor taking such property.</p> <p>6. Same—Guardian and Ward.—Cabell v. Hamilton-Brown Shoe Company, 81 Texas, 104, adhered to. A guardian having spent his ward’s money, can not discharge his liability by transferring property to his ward without authority of the Probate Court.</p> <p>7. Conveyance Good as to Some Parties.—An insolvent debtor conveyed goods to a number of his creditors to be held by them severally, each in proportion of his debt to the amount of all the debts. The goods were less in value than the amount of indebtedness satisfied. Seld, that the failure of the conveyance as to one or more of the grantees will not affect the rights of the other creditors against whom no complaint is made.</p>

<p>Appeal from McLennan.</p>

<p>1. Agreed Boundary Line. — Long acquiescence is not necessary to give binding effect to a paroi agreement between adjacent land owners fixing the division line between them. Acquiescence for any definite time was not necessary.</p> <p>2. Practice — Issues — Charge. — Two defendants were sued, the controversy involving a boundary line. One of the defendants did not plead limitations. The other pleaded limitation of three and five years, but exhibited no deed as basis for his possession. Held, error to submit limitations as a defense.</p>

<p>1. Measure of Damages in Trover and Conversion. — Verdict for value of wagon and its hire from caption to day of trial affirmed. The trespass was committed January 4. and júdgment was rendered February 26, 1892. The testimony showed that the wagon was worth $70, and its hire about 75 cents a day. Judgment for $100 actual damages sustained.</p> <p>2. Same.—While the value of the property taken, with interest from the day of its seizure, is the generally recognized measure of damages, yet the rule is not inflexible. Where interest is manifestly an inadequate compensation for the loss of the use of the thing taken, then the value of its use or hire up to suit or judgment, if suit be not improperly delayed, may be regarded as a just compensation to the owner for his loss; and he may recover value and hire of the property taken in such case.</p>

Tried, below before Hon. W. H. Jenkins. Flint & Flint sued Van Hall, defendant below, on a conditional acceptance for 8314.75, by petition filed May 20, 1890. The petition alleges, that the money was by force and fraud taken from one H. A. McNally, and put in the hands of Van Hall; that on May 10, 1890, McNally executed and delivered to plaintiffs an order on Van Hall for the money. Hall accepted the order May 10, 1890, on condition the money proved to be McNally’s money.

Erbob from Coleman. Motion to dismiss writ of error because the petition and bond in error were filed more than one year after rendition of the judgment.

<p>1. Abandonment of Homestead.—A widow may abandon her rights in the homestead of her deceased husband. See facts evidencing such abandonment.</p> <p>2. Minor’s Right to Homestead. — To entitle a minor to the exclusive use of the homestead, against partition, it is necessary that the Probate Court by ordér designate such use by the minor or guardian. It is not sufficient that the court receive and approve the guardian’s account for rent of such homestead.</p> <p>3. Descent of Homestead.—The father died insolvent March, 1876, leaving widow and four children, three of them by a former marriage. Under the laws, of descent the homestead was cast upon the widow and children. In this case, each taking one-fifth. Upon death of the widow, her child, being her only heir, took her share, and thus became owner of two-fifths interest in the homestead.</p>

<p>1. Assignment for Creditors—Consideration.—A debtor may in good faith voluntarily prefer some of his creditors; and when he executes a deed of trust looking to that end, transferring his property for such purpose, and the trustees and beneficiaries act upon the instrument and accept its benefits, this between the parties constitutes a contract resting upon mutual promises that may result in a benefit and advantage to one of the contracting parties or a loss to the ■other.</p> <p>2. Surety may be Preferred by Assignment.—That a preferred creditor in an assignment is but a surety for the grantor in the deed of assignment, and that the debt is not due, does not invalidate such assignment. The surety was shown to be solvent, and the grantor was insolvent.</p> <p>3. Same.—As the debtor could have secured by preference the creditors who held other personal security, such power would involve the right to prefer such surety.</p> <p>4. Assignment Providing for Clerks, Attorneys, etc.—Provisions in a deed of assignment for benefit of creditors, empowering the trustee to sell at public or private sale, and to employ clerks and attorneys to advise and assist him in the execution of the trust, may or may not be reasonable in the execution of the trust. But it seems that where the property assigned is insufficient to satisfy the preferred creditors, that an unpreferred creditor would have no ground of complaint about the expenses of executing the trust.</p> <p>5. Attorney. Fees.—A provision in a deed of trust for reasonable attorney fees for writing the deed of assignment, and for advising the trustee in executing the trust, is legal, and no ground for setting aside the assignment; besides, expenses of attorneys in the execution of the trust are proper items of expense and should be allowed.</p>

<p>1. Rules for Briefing, on Appeal. — Attention is called to rules 24, 25, and 31 for Supreme Court and Courts of Civil Appeals. These rules should be enforced.. It will be presumed that counsel intend to waive a point briefed in disregard of these rules.</p> <p>2. Mistake in Date of Judgment. — A judgment rendered recited its date June 14, 1874. The suit was instituted March 29, 1875. The judgment also recited that due service of citation was had upon unknown heirs of David Sloan. The judgment appeared in the proceedings of the court for June 14, 1876. Held, that it was manifestly in error that the date 1874 appeared in the judgment. It was competent to read the entry preceding the judgment to show the clerical mistake in it.</p> <p>3. Removing Cloud from Title — Legal and Equitable Title.—In this State, under our blended system of law and equity, one holding an equitable title to land may maintain an action of trespass to try title, or to remove clouds from his title.</p> <p>4. Same.—An action to remove clouds and to quiet title is not an action in personam, but an action for land, and the judgment affects the title to the land, the subject of the litigation.</p> <p>5. Same—Nonresident Claimants.—A State is allowed to settle titles to lands lying within its territory, even against nonresident defendants or unknown heirs; and the State has the right to prescribe the procedure and methods by which such results are accomplished.</p> <p>6. Affidavit for Service upon Unknown Heirs.—An affidavit by an agent in the form of the statute, that ‘‘the names and residences of the heirs,’" etc., are unknown, is sufficient as basis for citation by publication. It is not necessary for affiant to state what means or efforts he had taken to ascertain the names, etc.</p> <p>7. Collateral Attack upon Judgment.—If the affidavit for the publication should be held insufficient, the judgment could not be attacked collaterally for that reason. The recital, that “ proper service had been made by publication on the defendants,"' is conlcusive of all questions as to service, as to publication of citation for the proper length of time, return, and every other essential to make and complete service by publication. Nor can a judgment be so attacked because rendered upon insufficient testimony.</p> <p>8. Proof of Execution of Deed at Common Law.—See facts explaining absence of subscribing witnesses, and sufficient testimony from other sources to show the execution of a deed.</p> <p>9. Proof of Deed for Record.—Prior to the Revised Statutes the certificate to the proof of a deed for registration was not required to show that the grantor acknowledging the deed was known to the officer.</p> <p>10. Description.—In a chain of title was a call, “¡188 varas south 30 degrees east from the northeast corner of a 320 acres survey in name of-■ Meader." In some of the deeds the name was spelled Meadows. This diversity in spelling could not render the call uncertain.</p> <p>11. Unknown Heirs—Judgment.—In our opinion, all persons claiming by inheritance under the named ancestor are concluded by a judgment against his unknown heirs, whether claiming indirectly from him, or as successors of those so inheriting. The statute authorized the action against the heirs of the deceased person, their heirs or legal representatives, as the heirs of their ancestor, describing them by his name. 2 Pasch. Dig., art. 5460.</p> <p>12. Failure by Court to File Conclusions.—It not being shown by the record, nor by bill of exceptions, that a motion filed requesting the court to file conclusions of fact and of law, was insisted on, or was brought to the attention of the trial court, the matter can not be considered on appeal.</p>

<p>1. Impossible Date — Return on Citation. — Citation was returned, Came to hand the 24th day of September, A. D. 1891, at 12 o'clock a. m., and executed the 24th day of-, 189—, by delivering to,” etc. (regular in other respects). Held, the date of service is impossible. The return is fatally defective, and on appeal can not support the judgment.</p> <p>2. Interest on Stipulated Attorney Fee.—Where a stipulated rate of interest is contained in a note providing for an attorney fee in case if placed in hands of an attorney for collection, it is not error to allow the contract interest upon the entire judgment, including the stipulated attorney fee.</p>

<p>Appeal from McLennan.</p>

<p>1. Fact Case—Jumping from Moving Train.—Brown, a passenger on appellant’s road, desired to stop at McGregor. The train stopped but thirty seconds, and started. Brown, wanting to debark, was told by a brakeman that it was safe to do so, and to get off; the train seemed to be moving slowly; it was dark, and the platform appeared to be the prairie. Brown, jumping off, struck the platform, and was seriously injured. Verdict and judgment for plaintiff for $3362 affirmed as sustained by the facts.</p> <p>2. Failure to Define Negligence — Carrier of Passengers. — The duty to be observed by a railway company carrying passengers is the highest degree of care. The failure to define the degree of care when the highest is imposed by law upon the carrier can not well he complained of by the carrier, although if the judgment had been against the passenger it might be ground for reversal.</p> <p>3. Want of Care by Injured Party.—The use of patent medicine by the plaintiff upon his hurts is no evidence of want of care in treating his injuries. A patent medicine may or may not be a curative agent. The defendant anointed his wounds with Wizard Oil.</p>

<p>1. Administration of Community Property — Irregularities. — If the inventory filed by the widow failed to list any of the community property, the defect may be corrected upon complaint to the court, but such failure would not deprive the survivor of the power conferred by the statute (Paschal’s Digest, articles 4642, 4647, 4648). Nor would such omission affect a sale made by the widow who had filed such imperfect inventory.</p> <p>2. Same.—The statute confers upon the surviving wife the same powers that were conferred upon the surviving husband, so long as she remained unmarried. She had the right to sell the community property, equally as a surviving husband.</p> <p>3. Evidence of Indebtedness of Community Estate. — Records of suits upon money claims incurred by the husband, and of a partition suit between the widow and the children, reciting the sales of property by the wife, and the payment of debts of the estate, are competent evidence to prove the existence of community debts. The existence of such debts confers power upon the survivor to sell for payment of such debts without complying with the statute.</p> <p>4. Survivor may Sell by an Attorney.— As survivor, the wife ma,y make a sale of land by an agent, duly appointed. Debts existing against the es-tote. the deed by her attorney in fact passed title, although she was not described in the deed as surviving wife duly qualified under the statute.</p> <p>5. Power of Attorney—Construction.—Debts existing against the community estate, the widow conveyed an undivided half of a tract of land. Subsequently, she made a power of attorney.constituting an agent, “in my name to sell, alien, and convey all the right, title, interest, and estate which I have in and to” the tract; “ and I hereby authorize my said attorney to execute to the purchaser * * * good, valid titles in fee simple,” to receive purchase money, and to perform every act about the matter which she could do if personally acting. Held, that a sale by such agent of the remaining half conveyed title as against heirs of the husband.</p> <p>6. Construction of Statutes. — The probate Act of 1870, requiring the ■survivor to execute bond to the amount of the community estate, and to that extent altering the Act of 1856 on the administration of community estates, would not affect the validity of a sale made subsequent to the change in the law, where •such sale was made for payment of community debts.</p>

<p>Dedication of Streets.—Abutting lot owners permitted the use of a strip of land as a sidewalk by the public along a street. There was no act of the city setting apart this land for street purposes, nor any dedication to such use by the owners. In such case the owners were entitled to injunction against the city interfering with their possession of said strip of land.</p>

<p>1. Petition—Facts Sufficient to show Homestead on Demurrer— Suit to Remove Cloud from Title.—Gallagher alleged he was a married man, head of a family; that on July 31,1884, he became the owner of a lot in San Antonio, and acquired the same for the purpose of a homestead, and immediately took possession thereof, enclosed the same with a fence, planted shade trees and cleared said lot preparatory to building a house thereon, and caused plans and specifications for such house to be prepared by an architect. That he was unable to continue the improvements until about April, 1890, when he constructed a dwelling thereon, and was at time of filing suit occupying the same with his family as a homestead, as was his original intention, which had never been abandoned. That he had no other homestead at the time of the purchase, and had acquired none since. On August 29, 1889, the lot was sold by the sheriff of Bexar County, on an execution in favor of Keller, who became the purchaser, which deed was recorded in Bexar County, and cast a cloud on Gallagher’s title. Prayer to remove the cloud. A demurrer was sustained, and on Keller’s plea, a judgment was rendered in his favor for the land, with a writ of possession. Held, error; what intention these acts may demonstrate is one of fact to be found by the jury.</p> <p>2. Intent — Homestead. — Intent to occupy and use a lot as a homestead, and preparation for use by erecting a fence‘thereon and planting shade trees, is a dedication of a homestead, even though not occupied at time of sale under execution.</p> <p>3. Value—Homestead.—The value of the lot was not alleged in the petition. Ho exception was taken to the petition on that ground. It was alleged to be the homestead; if other facts constituted it such, it would be to the extent in valuation of $5000, and if its value exceeded that sum, only the excess in value would have been subject to the execution. The petition was good as against the objection, as it was not specially excepted to on that ground.</p>

<p>Contract Against Public Policy Void. — Appellant sued appellee for rent of a house used for the purpose of prostitution. Appellant knew to what purpose it would be put when the contract was made, and was cognizant of the fact that it was being used for that purpose during the time the rent accrued. The case was tried by the court below without a jury, and a judgment was rendered for appellee, for the reason that the contract of lease was against public policy and void. Held, that the judgment was correct.</p>

<p>Appeal from Bee.</p>

<p>Foreclosure of Judgment Lien.—On April 3,1883, Frank and Mary E. Knapp, desiring to borrow money, executed and delivered to J. A. Beddick a general warranty deed to certain lots in San Antonio, their homestead; consideration expressed $2500 cash, and note for $2000, with interest and attorney fees, secured by a vendor’s lien on the lots. Deed was filed for record April 4,1883; note was signed by Beddick and delivered to Frank Knapp, but no part of the $2500 was or intended to be paid by the parties. Frank and Mary E. Knapp endorsed the note to J. A. Martin, and on April 3, 1883, Beddick executed and delivered to H. P. Drought, trustee for Martin, a deed of trust to secure the note. In December, 1883, Frank Knapp died, and Mary E. Knapp paid off the note, and on November 3.1884, Drought executed a release to Beddick, which release was filed for record November 7,1884. On November 3,1884, Beddick by special warranty deed reconveyed unconditionally said lots to Mary E. Knapp; said deed was not filed for record until September 16, 1891; plaintiff had no notice of the execution and delivery of the deed at the time of filing his abstract of judgment, except the possession of Mary E. Knapp. On November 14,1890, L. M. Michael obtained judgment against J. A. Beddick, and on June 29.1891, properly filed an abstract of his judgment in Bexar County, and brought this suit to foreclose his judgment lien on said lots. No consideration passed from Michael to Mrs. Knapp. Held:</p> <p>1. The deed, if not absolutely void as between the parties, at most only con-conveyed the legal title to Beddick; the equitable title remained in the grantors: the grantee was a trustee, holding the legal title in trust for the grantors, who were the real owners.</p> <p>2. The fact that appellant had no notice of the reconveyance to appellee when he acquired his judgment lien, does not give a lien superior to appellee's claim; the “defendant’s interest” never was more, if that, than a mere, legal title; he never did own the equitable title, or any interest in the land; appellant has lost nothing, nor gained anything; his position has been in no way changed.</p> <p>3. Appellant acquired no right by virtue of our registration laws. They do not apply to cases of this character. “A judgment lien on the land of a debtor is subject to every equity against the lands in the hands of the judgment debtor at the time of the rendition of the judgment, and courts will protect the equitable rights of third persons against the legal lien, and will limit that lien to the actual interest which the judgment debtor has in the estate.” Blankenship v. Douglas, 26 Texas, 225.</p>

<p>1. Partnership of Railway Companies.—A contract by which a number of railway companies lease their roads and other property to one company for ninety-nine years, the latter company agreeing to operate and maintain the lines and pay each of the companies a certain percentage of the net profits, is a contract of partnership and not a lease.</p> <p>2. Charge—Master and Servant.—On October 10, 1886, a railway company was liable in damages only for the gross negligence of its servants, but was liable to its servants for injuries inflicted through the negligence of an incompetent fellow servant, where it had retained him in its employ with knowledge of his incompetency, or when by the exercise of ordinary care it could have known of his incompetency; and when a servant seeks to recover under the latter circumstances, a charge on gross negligence was unnecessary.</p> <p>3. Charge — Measure of Damages. — In an action by a father for the death of his minor son, when there is evidence to support it, it is not error to charge that the jury shall assess plaintiff’s damages at such sum as maybe calculated, from plaintiff's expectation of pecuniary aid from his son after arriving at 21 years of age, considering his disposition and ability to contribute to his wants and necessities during the father’s probable duration of life, at the same time taking into consideration the father’s age, occupation, health, and pecuniary condition and probable wants.</p> <p>4. Charge. — An instruction that the jury are the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony, is proper, and not objectionable on the ground that it may lead the jury to believe some of the witnesses unworthy of credit.</p> <p>5. Evidence. — Though the incompetency of an employe can not be proven by specific acts of carelessness, yet where these acts have been brought to the employer’s knowledge, they can be proved to establish such knowledge.</p> <p>6. Evidence—General Reputation.—A question as to what a locomotive engineer’s general reputation as to care and competency while running his engine was, is improper, where it is not confined to his reputation among those persons engaged in the same kind of occupation, as the general public could not be acquainted with his reputation.</p> <p>7. Charge.—An instruction, that a railway company is liable if it failed to furnish a safe and suitable car, with the necessary appliances, for the use of its employes, and an employe was killed by reason thereof, is erroneous, as it makes it the duty of the company to absolutely and infallibly furnish a safe and suitable car, no matter what care and diligence may have been exercised in selecting and inspecting the same. This error is not cured by another part of the charge, in effect, that it is the duty of the railway company to use all reasonable care in furnishing safe and suitable cars.</p>

<p>Rents Community Property. — Rents arising from lease of the wife's separate real estate are community property, and liable for the husband’s debts..</p>

<p>1. Allegations — Exemplary Damages. — The allegation that the act complained of was done unlawfully, wantonly, and maliciously, and with the fraudulent intent to deprive plaintiff of the value of the coal, was sufficient, without alleging the circumstances showing it to have been so done.</p> <p>2. Charge of Court.—The charge of the court directed the jury to separate their findings of actual and exemplary damages, “ in order that the amount of either or both maybe known.” Taken with the remainder of the charge, the jury could not have understood that they were expected to find both actual and exemplary damages.</p> <p>3. Exemplary Damages.—The verdict for exemplary damages is sustained by the evidence, and is not excessive; and the question was properly submitted to the jury. There was evidence going to show that the sale had not been fully consummated when defendant used the coal. If defendant desired to use as a defense against or in mitigation of exemplary damages, the fact that the coal was used because defendant believed in good faith that it had a legal offset against plaintiff for the value of the coal, defendant should have asked a charge submitting that view of the case to the jury.</p>

<p>Error from Bexar.</p>

<p>1. Community Property. — Rents arising from the separate real estate of the wife are community property, and subject to garnishment for the debts of the husband. Rhine v. Blake, 59 Texas, 240, followed.</p> <p>2. Conveyance to Trustee of Separate Property of Wife. — The husband and wife can convey the separate land of the wife to a trustee, authorizing the trustee to use the proceeds thereof in the support and maintenance of the wife and children.</p> <p>3. Garnishment, What Subject to. —The amount due by garnishee at the time of filing answer is subject to garnishment, and what becomes due after he discloses is not held by the writ.</p>

<p>Appeal from Bexar.</p>

<p>Final Judgment.—This case with eight others was by order of the District Court consolidated as one cause. At a subsequent term of the court, four of the causes were tried upon separate petitions, but on one answer so prepared as to constitute an answer to each petition. Separate charges were given applicable to each case, separate verdicts returned, and a judgment was entered on each of said causes. There was no final judgment disposing of the other parties and matters in the cause as consolidated. On motion to dismiss appeal, held, that appeal could not be sustained without a final judgment, and the cause is dismissed for want of a final judgment disposing of all the consolidated cases.</p>

<p>Tried below before Hon. D. P. Marr.</p>

<p>Tried below before Hon. W. W. King.</p>

<p>Error from Guadalupe.</p> <p>Tried below before Hon. Geo. McCormick.</p>

<p>Appeal from Bexar.</p>

<p>1. Commissions—County Treasurer.—It is the duty of the tax collector to turn over to the treasurer county taxes collected, out of which be could take his commissions; and the county was not liable to the treasurer for commissions unless it received the money, or did some act that was the proximate cause of the loss to him of his commissions.</p> <p>2. Tax Collector’s Bond.—Upon failure of collector to turn over money, the treasurer had a right of action to the extent of his injury, in the name of the county, on the bond of the collector, for his commissions, and the recovery to be limited to the penalty in the bond.</p> <p>3. Settlement with Sureties.—The county in the settlement with sureties of tax collector, could not affect the right of the treasurer to recover of the sureties the damage he sustained by a breach of the bond. The sureties could not plead such settlement as a defense against the treasurer's action on the bond.</p>

<p>Drafts— Checks — Agency.—Where a draft is delivered to a bank for collection, and the runner or collector for the hank accepts the drawee’s check on said bank, and delivers to him the draft marked “ paid,"’ and the drawee had no funds in the bank to pay the check, held, that this was not a payment of the draft so as to make the bank liable to the drawer of the draft for money collected. The collector could not accept anything but money in payment of the draft unless authorized.</p>

<p>Appeal from Bexar.</p>

<p>Appeal from the County Court of Guadalupe.</p> <p>Tried below before Hon. James Greenwood.</p>

<p>Appeal from Kaufman.</p>

<p>1. Evidence — Public Policy. — In a suit against a railway company for damages for overflow of land occasioned by the erection of an embankment which diverted the natural flow of surface water, and caused it to overflow and damage plaintiff’s land, where it is alleged that defendant huilt said embankment across a branch, and left an insufficient opening in said embankment at the crossing of said branch, it was held error to admit testimony that the defendant, after the overflow, enlarged its trestle and opening through said embankment. Upon principle, as well as public policy, such evidence ought not to be admitted. See opinion for reasons.</p> <p>2. Evidence — Opinions of Witnesses not Experts.—In such case a witness, not an expert, having testified to facts derived from personal observatian, may testify that in his opinion defendant’s embankment caused the overflow ■of plaintiff’s land. See authorities.</p> <p>3. Overflow — Measure of Damages — Growing Crops. — The only correct criterion for ascertaining the value of a growing crop at any period of its existence, is to prove what that character of crop was worth at or near the place where it was grown, when there is to be made proper estimates and allowances. from ascertained or ascertainable facts, for the contingencies and expenses attending this from care and cultivation.</p> <p>4. Same—Permanent Injury.—When the act complained of takes a part of or affects a change in the realty itself, the measure of damages to the land is the difference between the market value of the land at and just before the time •of building the railway, and the market value of the same after the injury is done; but where the damages consist in rendering the land liable to overflow in the future, it is such as may or may not occur, and the liability is such as may or may not be removed by the construction of additional culverts for the water, then the character of damage is in its nature uncertain, and can not be recovered until the injury actually occurs; and each separate injury renders the party at fault liable for such injury as may then occur.</p> <p>5. Hearsay Evidence. — The testimony of plaintiff, that the engineer in ■charge at the time of the construction of the trestle told him that the opening was insufficient as an outlet for the water, but that he could make it no larger because his superior engineer would not let him put in a wider trestle, was inadmissible, because it was not a part of the res gestas, and does not come within spy exception allowing the admission of hearsay testimony.</p>

<p>Appeal from Kaufman.</p>

<p>Error from Limestone.</p>

<p>Tried below before Hon. P. B. Muse.</p>

<p>1. Fire Insurance.—Flippen obtained from appellant a policy of fire insurance for $2500. which permitted insurance in the additional amount of $2500 to be effected on the property, and provided that the policy should become void if the assured have or shall hereafter obtain any other policy or agreement for insurance, whether valid or not, on the property, or any part thereof.” Other insurance, aggregating $15,500, existed on the property when appellant's policy was issued. No waiver of the provisions of appellant’s policy as to additional insurance being shown, held, the policy never took effect.</p> <p>2. Same — Cancellation of Policy. — Unless a policy of fire insurance contains a provision for a cancellation at the option of the company, it has no power to cancel by notice and tender of the unearned premium. If a policy contains such provision, a cancellation is ineffectual without notice to the beneficiary under the terms of the policy.</p>

<p>Tried below before Hon. P. B. Muse.</p>

<p>1. Several Undertaking — Subscription. — A subscription paper containing an offer to induce the construction, etc., of a railway, provided that the ■subscribers were to pay the railway company the sum set opposite their names, each one to be liable only for the amount opposite his name. Held, the obligation was several, and each subscriber could be severally sued.</p> <p>2. Construction of Power.—A committee appointed to act for subscribers offering money to induce the building of a designated line of railway, can not go beyond their instructions accompanying such appointment. Any contracts made by such committee in excess of their authority are of no effect as against a subscrioer unless ratified by him.</p> <p>3. Entire Contract — Part Performance. — The contract between the railway company and committee being entire, in a suit against a subscriber for his subscription, if it is shown that the railway company has failed to perform any material condition, a recovery can be had only to the extent of performance on its part, if it is shown that such part performance is beneficial to those within the contemplation of the contract; such recovery not to exceed the ratio that such part performance bears to the whole contract.</p>

<p>1. Separate Estate — Case in Judgment. — Gardner, an adult single man, entered upon and improved 160 acres of land, and while in actual possession made application therefor under the homestead laws of this State on March 3,1868. The land was surveyed and the field notes returned to the General Land Office in 1869. With his brother, he lived upon and cultivated the land in 1868, 1869, and 1870, and in the last named year divided the land, giving his brother the west half, retaining the east half, and continuing to live in the house through which the dividing line ran, and to cultivate the east half. On March 15,1871, Gardner married a widow with an infant daughter (appellee). On July 12,1871, as the head of a family, he made another application for the survey of the east-tract of SO acres, together with 55 acres'more adjoining it on the east. This tract, of 135 acres was surveyed for him October 25, 1872. His wife died December 31, 1872. On May 10, 1876, patent was issued to him for the 135 acres, and he has ever since occupied the same as a home. Held, the original 80 acres located and improved by Gardner, being all the land in controversy, was tiis separate estate; the mother of appellee had no community interest therein, and no interest passed to her daughter, appellee.</p> <p>2. Constitution of 1869—Acts of 1866 and 1871.—Under the Constitution of 1869, a single person 21 years of age was given 80 acres; but Gardners settlement and entry having been made March 3,1868, his land surveyed, and field notes returned to the General Land Office, the Constitution did not propose to take away his rights. Acts of Hovember 12,1866. and March 24,1871, cited.</p> <p>3. Abandonment of Survey.— Filing the application as the head of a family for the tract of 55 acres, with his original 80 acres, did not constitute an abandonment of his original claim to the SO acres, so as to destroy his separate-right thereto. Auth orities cited.</p>

<p>Appeal from Red River.</p> <p>Tried below before Hon. E. D. McClellan.</p> <p>The appellants caused to be levied writs of attachment upon the stock of goods in the hands of the trustee, the appellee; the latter thereupon filed a claimant’s oath and bond, and an agreed case was made up and submitted.</p>

<p>Tried below before Hon. John L. Sheppard.</p>

<p>1. Condemnation—Parties—Equitable Rights.—The vendee under an executory contract of sale of land, not a party to condemnation proceedings for a right of way, can maintain a suit for his damages against the railway company which had notice of his interest in the land at the time of the condemnation proceedings, notwithstanding he has made default in the payments to be made under the contract, no advantage having been taken by the vendors of such default.</p> <p>2. Express Trust—Legal Title—Parol Evidence. — Three persons purchase a tract of land, each to own an undivided third-interest in the same, and to pay one-third of its price. The deed is taken in the names of but two of them. Held, they hold in trust for the purchaser not named in the deed the legal title to an undivided one-third interest, subject to his compliance with the terms of the joint purchase, and such trust may be shown by paroi.</p>

<p>Overcharge on Freight — Interstate Shipments — Statute Construed— Jurisdiction. — In a suit against the Texas & Pacific Railway Company, to recover the penalty prescribed in article 4258, Revised Statutes, for a discrimination and overcharge in freight rates, the petition alleged and the proof showed, that the penalty claimed for the discrimination and overcharge was based on a through bill of lading executed by the Missouri. Kansas & Texas Railway-Company, to transport the freight therein mentioned from St. Louis. Missouri, to Wills Point, Texas. By the provisions of the bill of lading, the Missouri, Kansas & Texas Railway Company was to deliver to connecting lines, and to be liable only for damage or loss occurring on its own line, a through rate of freight-having been guaranteed to destination. The Missouri, Kansas & Texas Railway connects with the Texas & Pacific Railway at Mineóla, Texas, and the entire haul of the Texas & Pacific Railway Company was within the State of Texas. Held:</p> <p>1. The transaction constitutes an interstate shipment, and does not come-within the purview of articles 4257 and 4258, Revised Statutes of Texas, prescribing a penalty for unjust discrimination and overcharge in the rates for transportation of freight, which apply only to shipments between points within this State.</p> <p>2. The Constitution of the United States vests in Congress the power to regulate commerce between the States, and this precludes the rights of the States to make any regulations in reference to the same. But it is not held that the States can not make police regulations with proper limitations relative to interstate commerce.</p> <p>3. If the statute of this State be enforced in such shipments as this,- it would be exercising jurisdiction in a matter over which Congress has exclusive jurisdiction.</p>

<p>Tried below before Hon. Rufos Hardy.</p>

<p>Appeal from Hopkins.</p>

<p>1. Garnishment—Release Construed.—Appellants having a judgment-f or §175 against Rummy and five others, garnisheed Robinson Bros., bankers, who answered that Rummy had on deposit with them §175. Rummy intervened, claiming that he was released, because by agreement with appellants each defendant was to be released upon payment of §25, and he had paid appellants that sum. The agreement was with all the defendants that appellants would release them from payment if each would pay §25, but not that they would release each one upon such payment. The judgment discharging the garnishees and releasing Rummy was reversed.</p> <p>2. Evidence of Release.—The evidence relied on to show a release is the-recital in receipts given to some of the defendants who had made payments, to the effect that appellants agreed to give the party making payment a receipt in full .for his pro rata, on the payment of §25, and reciting that said sum was his pro rata liability on the judgment, but these do not show any agreement by appellants to release each of the parties upon payment by him of a part of the judgment. A payment of part of a debt is not a discharge of the whole, although it may he accepted as such.</p> <p>3. The Judgment Rendered.—All necessary facts appearing in the record, judgment is rendered in favor of appellants for the balance due on the judgment and costs against the garnishees, not to exceed the amount of $175, admitted by their answer to be in their hands.</p>

<p>Tried below before Hon. W. H. Ford.</p>

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

<p>1. Injury to Wife of a Fellow Servant.—Appellee was in the employment of appellant as foreman of the fence gang, and with them occupied three-cars furnished by the company, and standing on a side track. His wife, by permission of the company, was on a visit to him, and was injured during the night, by the derailment of the car in which they were sleeping; the derailment being caused by the mistake of the conductor, who was moving the cars, in turning a, wrong switch. A verdict in favor of appellee for damages for his wife's injury was affirmed.</p> <p>2. Same—Husband may Recover—Fellow Servant.—If plaintiff’s wife is entitled to damages, the suit must be brought by the husband, and in his name; and the rule that one can not recover for injury caused by the act of a fellow servant has no application or bearing upon the question of the right of the wife to recover in this case.</p> <p>3. Mental Suffering—Damages.—While as a general rule mental suffering is not an element of damages when the plaintiff sues for injuries inflicted upon another, this is not true when the suit is by the husband for injuries to his wife. In such case, the same rule applies as would if the suit were by the wife-herself.</p> <p>4. Liability of Railway to One Occupying Car by Permission.— One who is on the cars of a railway company, not as a passenger, but simply through the favor or courtesy of the company, may recover damages for injuries to his or her person, caused by the negligence of the servants of the company.</p> <p>5. Assumed Risks. — The plaintiff’s wife, in going upon and remaining upon the cars of defendant with her husband, did not assume the risks of such accidents as the one by which she was injured.</p> <p>ON MOTION EOR REHEARING.</p> <p>6. Wife not Bound by Husband’s Contract to Assume Risks.— Because the law does not permit the husband to recover for injuries received by his wife through his own negligence, it does not follow that the husband can not recover from his employer for injuries to his wife, inflicted through the negligence of the husband’s fellow servant. The wife is not bound by the husband’s contract to assume all risks of injury resulting from the negligence of his fellow servants. The existence of the wife is not merged in that of her husband, nor is the money recovered for injuries to her his exclusive property, and he who has wronged her can not justify under a contract made with the husband.</p>

<p>1. Map as Evidence.—A map of Orange County, sent along with the record, but not made a part of it, can not be referred to as constituting part of the evidence at the trial.</p> <p>2. School Lands—Sales.—Isolated sections may under the law be sold to others than actual settlers; but when, in a suit between one who was not' an actual settler, but to whom the land had been awarded by the Commissioner of the Land Office, and one who was an actual settler and head of a family, and whose settlement was subsequent to the award by the Commissioner, the judgment was rendered for the actual settler, and there is no evidence in the case showing that the section was isolated, it will be presumed, in support of the judgment, that it was not an isolated section.</p> <p>3. Award by Commissioner, Inquiry Into.—A fraud perpetrated upon an officer of the State, by which he is induced to do an act which he has the power to do, though a wrong or injury to the State result, can not be avoided by a third party. But an act which an officer has no power to do is binding on no one, and confers no right on him for whose benefit it was performed.</p> <p>4. Same.—It has been held that a sale by the Commissioner under the Act of 1887, to one not an actual settler in good faith, confers no right, and is no obstacle to the acquisition of the same land by an actual settler; wherefore the contention of appellant, that the award of the land by the Commissioner can not be inquired into, and is binding upon every one except the State, can not prevail.</p> <p>5. Actual Settler, Rights of.—Any person possessing the requisite qualifications, finding a section of school land which is not detached and isolated, has the right under the statute to settle upon and purchase it. and can not be deprived of such right by a previous contract made by the Commissioner with another, not an actual settler.</p> <p>6. Powers of Officers.—When a Constitution or law, defining the power of an officer, authorizes him to perform an act under conditions, the determination of the existence of which is by such law, either expressly or by necessary implication, committed to his sole discretion, his decision is binding on other departments; but the courts must declare the law, and ascertain the facts to which it applies, when it becomes necessary for the enforcement of private rights.</p>

<p>1. Disqualification of Judge— Interest.—Suit was against several persons alleged to be partners in the banking business, under the firm name of the Wharton Bank. A safe belonging to the bank was attached, but prior thereto some of the partners had made an assignment of all of the bank property, including the safe. The attorney who drew the assignment, advised the assignee, and as creditor of the bank had accepted under the assignment, was not thereby disqualified to sit as special judge to try this ease, because the validity of the assignment is not involved in the action as brought, nor will the title of the assignees nor the rights of persons claiming under the deed be affected by it, none of them having been made parties.</p> <p>2. Partners — Practice.—When suit is against partners, all of whom have appeared in the case, and two of them pleaded their privilege to be sued in the county of their residence, and the plea is sustained, it is error to dismiss the whole case. Judgment should be rendered against the defendant who filed no-plea of privilege, binding his estate and the partnership property.</p>

<p>1. Damages for Delay in Delivering Freight. —Plaintiff hacl a carload of lumber on one of defendant’s cars which, by agreement, was to be delivered at a point on its track about a mile distant, where defendant was building a house. The lumber was not delivered there until about a month and a half later, when plaintiff refused to receive it, having in the meantime purchased lumber to supply his needs. He sued for the value of the lumber. It is well settled, that mere delay, however unreasonable, on the part of the carrier in delivery of the goods, does not amount to a conversion; the consignee must receive it when tendered, so long as it retains its identity and is not rendered wholly valueless. He should have accepted it and held defendant liable for the actual damages which he had sustained.</p> <p>2. Storage and Demurrage Charges. — Defendant claimed $200 for storage due, which was more than the value of the lumber. The rules of defendant provided that storage would he charged for ears if not unloaded within twenty-four hours after notice of arrival, for first day $1, second $2.50, third and succeeding days $5 per day: and plaintiff was notified that unless he received the lumber it would be stored for his account. The decisions which hold that a carrier which delivers to the consignee a loaded car, to be unloaded by him, may charge reasonable demurrage, fixed by regulation and brought to the notice of the freighter, relate to ordinary cases, when the carrier discharges its duty and delivers the car within the proper time, and by the consignee’s delay in unloading is deprived of the use of the car; but while the plaintiff refused to receive the car. he did not adopt by agreement a rate of demurrage fixed by a rule of which he is not shown to have had notice, and which seems to apply to a different state of facts; and there being no evidence that the charges were reasonable, the court could well conclude that the amount claimed was unreasonable.</p>

<p>Appeal from Goliad.</p>

<p>Appeal from Jefferson.</p>

<p>Tried below before Hon. W. H. Ford.</p>

Tried below before Hon. James T. Polley. The receipt given by Doughtie for the cotton samples and receipts was as follows: “Nacogdoches, Texas, November 27, 1890. 6‘ Received from Wm.

<p>Appeal from Austin.</p>

2. Findings of Fact by Court. — It has long been the rule of appellate courts of this State, not to reverse a finding upon an issue of fact, whether the finding be that of a jury or of the court, unless it is unsupported by the evidence. Tried below before Hon. Norman G-. Kittrell.

<p>1. Parol Evidence to Explain Latent Ambiguity.—Estate of C. B. Stuart owned two tracts of land, one containing 519 acres, abstract number 195, and another containing 477 acres, abstract number 196, and both patented in the name of the same grantee. In the partition of his estate, the commissioners, whose report was made the judgment of the court, set apart to Laura Stuart the 519 acres, describing it as abstract number 196, and to Mrs. Barclay 477 acres, describing it as abstract 195. Parol evidence was admissible to show which of the two tracts was intended for Laura, and which for Mrs. Barclay.</p> <p>2. Partition Decree—Collateral Attack.—In a suit of trespass to try title, the partition decree can not be collaterally attacked, nor the decree corrected, although prayer is made for it, but it is proper to admit evidence to show what did really pass to each party by the decree, and to explain the latent ambiguity in it, growing out of the misplaced abstract numbers.</p> <p>3. Estoppel—Ignorance of Facts.—When the defendant pleads certain acts and admissions of the plaintiff as an estoppel, she may reply by supplemental •petition averring that when the acts were done and the admissions made she was ignorant of her rights, and of the true facts.</p> <p>4. Parol Evidence to Explain Judgment. — If the judgment, by its own terms, when applied to the land, was free from ambiguity, so that the court could say to which of the parties each tract had been set apart, no evidence would be admissible to explain it: but in this case, while the number of acres adjudged to the plaintiff is the same as that embraced in the tract sued for, the abstract number is wrong, and it can not be said that the decree of partition had the effect to vest title in the defendant to the 519 acres tract, and there was no error in admitting evidence to explain the decree, and guide the court and jury to the real truth.</p>

<p>Affidavit for Attachment—Variance.— Attachment in Justice Court. Motion to quash the attachment on account of a variance between the affidavit to the account and the affidavit for attachment was overruled by the justice, but on appeal sustained by the District Court. Held, error. The affidavit to the account was evidence, and not pleading.</p>

<p>Error from Houston.</p> <p>Tried below before Hon. W. Q. Reeves.</p>