Volume 45 — Texas Reports

<p>Appeal from Bastrop. Tried below before the Hon. J. P. Richardson.</p>

<p>Appeal from the Criminal - District Court of Calvert. Tried below before the Hon. D. W. Battle.</p> <p>James Wharton was indicted for theft of cattle. Upon Ms trial, after the witnesses for the State had made out the case as charged, two brothers of the accused testified that William Wharton had bought twenty head of cattle of a son of the alleged owner, being a remnant left in the range on his removal from the neighborhood; that the accused had authority from William Wharton, and had gathered the cattle alleged to have been stolen for William Wharton, and under his authority, and in the range said cattle ran. This was corroborated by several other witnesses.</p> <p>After the jury had retired, they returned into court and asked the question, “ Can we judge a witness just by what he says on the stanch and not hy what we know of him privately? ”</p> <p>To which the court replied: “In answer, the court repeats the former charge, that the jury are the exclusive judges of the facts given in evidence and the weight to be given to those facts; also of the credibility of the witnesses and of the truthfulness or falsity of their statements. In passing on the credibility of a witness or witnesses, you have a right to take into consideration the manner of his or their testimony, the opportunities he or they may have had to be informed as to the facts about which he or they may testify, his or their relationship to the accused, or his or their want of such relationship and disinterestedness. Ton have a right to judge of a witness or witnesses through what you may have heard and observed of him or them while testifying; you being the exclusive judges of the testimony, the court cannot inform you in reference to the question you put any further.”</p> <p>The jury found defendant guilty, and fixed his punishment at five years in the penitentiary, and defendant appealed.</p>

Tried below before the Hon. James Masterson. Angela Bruly and her sister Augustine brought suit for partition of a lot in the city of Houston, against appellant, claiming one eighth' each of said lot as heirs of their mother. It was also alleged that the lot was community of their father and mother, and that their mother died intestate in 1849, leaving two other children still living. Defendant demurred, and pleaded a general denial.

<p>Confession of error. — Where defendant confesses error, the court ■will not at instance of plaintiff in error, decide questions of pleading which maybe amended.</p>

<p>Appeal from Freestone. Tried below before the Hon. J. B. Rector.</p>

Tried below before the Hon. James Masterson. The petition with amendments in this, cause presents a suit by James B. McLean against Paul Bremond for the sum of §1,417.23, and ten per cent, interest thereon from August 1,1861, and, as ground of action, alleges substantially that during the years 1858 and 1859 the defendant, Paul Bremond, was engaged in carrying out a contract of construction with the Houston and Texas Central Railway Company, and gave employment to the…

Tried below before Hon. Livingston Lindsay. W. 0. Riley brought suit, January 9,1872, against O. H. Kendall, administrator of the estate of Robert Flournoy, deceased, alleging that said estate was indebted to plaintiff in the sum of |l,586r9ff8ff, with interest since January 1,1868, setting out an account against “ Lampley and Flournoy.” Sworn to by plaintiff as “ claims against the estates of Lampley and Flournoy.” The account was indorsed by defendant Kendall, 29th…

Tried below before Hon. J. E. Burnett. James Hogue purchased from Taylor and Davis a tract of land in San Jacinto county, (then Polk county,) on Trinity river, known as “the Cedar Landing Tract,” containing four hundred and fifty acres. Hogue sold the land to the appellant, John Ellis, before the title had been made to him, and procured the deed from Taylor and Davis direct to Ellis.

Tried before the Hon. James B. Burnett. Breedlove sued Preston on three promissory notes, executed September 16, 1868, by Preston to W. IT. Smith, and indorsed by Smith, alleged to have been assigned before maturity, and also to enforce the vendor’s lien alleged to have been retained on six lots in the town of Davisota, for which the notes were given.

Tried below before the Hon. 1ST. W. Battle. Gus Parrish, who was indicted for the theft of a mule, the property of H. A. Poster, which was charged in the indictment to have been stolen on the 12th day of October, A. D. 1875, relied on the testimony of nine witnesses, all of whom swore that he was at his father’s home sick in bed on the 12th of October, 1875.

Error from Gonzales. Tried below before the Hon. Henry Maney. A motion was made to dismiss the writ for want of a sufficient error bond, there being but one surely, and because the bond was not conditioned as required by law.

<p>1. Sheriff’s sale. — Section 40, article XII, oí the Constitution of 1869, providing that “all sales of landed property made under decrees of courts in this State shall be offered to bidders in lots of not less than ten nor more than forty acres, except in towns or cities, including sales for taxes,” while in force did not operate to render void or subject to be collaterally attacked by third parties a sale not actually made in lots of forty acres or less, or a decree not directing the sale to be so made in enforcing a vendor’s lien.</p> <p>2. Fisk v. Varnell, 39 Tex., 73, approved.</p>

<p>1. Theft — Want of consent. — The want of consent of the owner in - prosecutions for theft may be established by circumstantial evidence.</p> <p>2. Theft of different articles. — The stealing of different articles of property belonging to different persons, at the same time and place, so that the transaction is the same, is but one offense against the State. The accused cannot be convicted on separate indictments charging different parts of one transaction as in each a distinct offense. A conviction on one of the indictments bars a prosecution on the others. '</p>

Tried below before the Hon. D. M. Prendergast. Quince Henry was indicted for theft of “two certain oxen of the value of §20 each, and both of the value of §40, the property of Mrs. Mary Cobb.” Upon the trial he was convicted, and his punishment fixed at confinement in the penitentiary for five year^.

<p>1. Practice in supreme court. — In the absence of an assignment of errors, the Supreme Court will in its discretion either dismiss or consider and decide such errors as are apparent on the record, going to the foundation of the action. The court will not consider mere technical errors in the form or manner of enforcing a valid cause of action, of which the court below had jurisdiction, nor rulings made in the progress of the trial not going- to the foundation of the action or of the defense.</p> <p>2. Powers of a corporation. — A corporation has only such power as lias been conferred on it by its charter, or with which it has been otherwise empowered by law.</p> <p>3. Public streets.- — It seems that the injury from obstructing streets is to the general public, rather than to the city; but when the control of the streets has been conferred upon the city, it may institute proceeding's to remove obstructions.</p> <p>4. Construction of charter. — A charter authorizing the construction of a railroad “to Brownsville, on the Bio Grande,” is not to be restricted to the right to build the road to the limits of the city, but it imports an authority to extend the road within the corporate limits of the city.</p> <p>5. Construction. — The words “ at” and "from" are correlative with “to,” as showing the points from and to which a road may be constructed; and if the first may be used inclusively, so may the latter.</p> <p>6. Railroads may use public streets. — The right is expressly conferred by law upon all railroad companies chartered by the laws of this State to use any of the public streets, alleys, and highways of any city or town which may be on their lines of road, without making such city or town any compensation. (Paschal’s Dig., art. . 4941.)</p> <p>7. Same — How such right may be enforced. — In case of disagreement between a railroad company and the city authorities as to what street should be occupied by such railroad, it was the duty of each'to invoke the aid of the State engineer, or other person to be appointed by the Governor, to designate the street to be taken by the railroad. (Paschal’s Dig., art. 4937.)</p> <p>8. Same — Repeal of city ordinance. — The city authorities, after having granted consent to a railroad company to use a certain street, cannot, by revoking the city ordinance granting such authority, deprive the railroad of its right to use such street, if, prior to the repeal, the railroad had made expenditures on the strength of the consent.</p>

<p>Error from Harris. Tried below before the Hon. James Masterson.</p> <p>This suit was brought February 4, 1852, in the District Court of Calhoun county, by A. T. Burnley & Levi Jones, against. William M. Cook, James H. and J. W. Baldridge, -Sparks,-Cbipman and Soloman Cunningham. The petition alleged ownership of three quarters by Burnley, and a legal but contingent interest by Jones, of one quarter of the league of land granted to Juan Cano, as a colonist of De Leon’s colony, the laying off a town site thereon more than four years previously, and various acts of ownership, in order to establish and build up the same. That in 1849, said Cook located a 320-acre certificate, and caused a survey of 179 acres to he made on said league, extending north of Powderhorn bayou. In April, 1850, a bill had been filed in the United States Court by Burnley, against John H. Brown, John F. Segiri, Charles Mason, D. II. McDonald, Chambers Etter, C. A. Ogsbuvy, J. D. Cochran, and W. Hawley, to prevent their laying oít" a rival town,.building a wharf, etc., on this 179 acres, which they were proceeding to do, under claim of title under S. A. "White, and an injunction was made perpetual against the parties. After this injunction, supplemental proceedings, for a contempt in violating this injunction, and to make it perpetual as against Cook, took place in the United States Court; but on Cook’s denial of all connection with Brown and others, the motion was refused. This suit was brought, alleging, subsequently, certain proceedings by Cook and the other defendants under him, to lay off and build up a rival town on said 179 acres, to build cattle pens, a wharf, etc., to ship cattle therefrom, and alleging trespasses on said land to be to the damage of plaintiffs $10,000. The prayer in the petition was as follows:</p> <p>“The premises considered, your petitioners pray for a writ of injunction to restrain the said defendants, and each of them, their agents and hirelings, from entering upon the land immediately north of Powderhorn bayou, in said county of Calhoun, for the distance of 1,100 varas north of said bayou, and north of which the said Juan Cano grant extends; and from hauling, or placing any lumber, timber, or materials of any kind upon the said land, and from building any dwelling house, store, or warehouse, or building any other house or structure on said land, and from building any wharf or other structure, extending from any part of said land into Matagorda bay; said injunction to be of such a character and on such terms and conditions as to your honor may seem meet; and that on the final hearing, said injunction be made perpetual; for ten thousand dollars, which petitioners aver to be their damages; and for costs and for general relief, your petitioners pray for citations against said defendants,” etc.</p> <p>The case was moved by. consent to Harris county, in which, after answer filed, on motion of defendants, the court dissolved the injunction which had been granted, and dismissed the petition. On appeal to this court the judgment was reversed. (Burnley v. Cook, 13 Tex., 586.)</p> <p>The case thus sent hack to the Harris District Court in 1855, remained on its docket without proceeding of any kind, or order, except for continuance, until the May Term, 1867, when, on motion of Cook, it was dismissed. On his motion also, at the May Term, 1868, it was reinstated on the docket, and continued, to make parties. June 3,1870, ho tiled a cross-suit, making the heirs of Brnmley parties, alleging that, subsequent to the institution of this suit, a suit in ejectment against him by Brnmley and Porter, the latter representing same interest as Jones, had been brought in the United States Court at Galveston for the same property and on same title, which suit in the United States Court he alleged to be a fraud on the jurisdiction and “a deliberate contempt” of the State Court, and, notwithstanding he had pleaded the pendency of this suit, judgment had been rendered against him in the United States Court for the recovery of said league of land; that he had sued out a writ of error to the Supreme Court of the United States, pending which he had made a compromise with George W. Carter, agent of Burnley’s executors, copy of which he annexed.</p> <p>The heirs of Burnley and Jones, August 1,1871, amended their pleadings. They set up the suit in the United States Court, and judgment therein, and affirmance by the Supreme Court of the United States, January 23, 1867, and a further writ of error to said Supreme Court against a proceeding on its own mandate, awarding writ of possession, dismissed by said Supreme Court, as an adjudication of said controversy of title to said league of land, and an estoppel to further claim thereof by said Cook. As to the compromise, they alleged the same to be null and void on the face thereof; and, further, that the said Cook, after affirmance of said judgment in the Supreme Court of the United States, had tiled his petition in the District Court of Calhoun county against the heirs of said Burnley for an injunction against said judgment, and the specific performance of said compromise, upon the same grounds set forth in this suit; that the cause was removed into the Circuit Court of the United States, answer filed thereto, and motion made to dissolve the injunction; whereupon said Cook had dismissed the bill; that afterwards, on September 14, 1868, he filed in the District Court of Calhoun county another suit for injunction against said judgment, and specific performance of said compromise, to which answer was made, and the injunction dissolved, and suit dismissed for want of any cause of action therein; that Cook sued out a writ of error to this court, but this court affirmed the judgment of the court below on certificate; that said Cook had again filed a bill in the Circuit Court of the United States, asserting the same rights under said compromise, and praying injunction against enforcement of said judgment, but that Ms application had been heard before his Honor Judge Woods, the judge of said Circuit Court, at Hew Orleans, who refused the injunction and ordered the writ of possession to be proceeded with. ExMbits were filed of the records in all the judgments and proceedings, and they were alleged to have finally adjudicated the right and title to the league of land, and all right and claim set up by Mm in this suit, and they prayed that his continued prosecution, or assertion thereof, in defiance of said judgments, to their costs and harrassment, he perpetually enjoined. Cook demurred, and again pleaded his original title and the various statutes of limitation to support his claim to the land. The cause coming on for trial upon the pleadings and the said records and proceedings, the court overruled Cook’s demurrer, sustained the allegations and proofs of res añjiidicata, and decreed a perpetual injunction. That injunction was provided for in the judgment, as follows: “that the said William M. Cook be, and he is hereby, perpetually enjoined and restrained from hereafter asserting, or in any of the courts of this State, or in any writing, or by printed publication, or by spoken words, any right or title to any part of said Juan Cano headlight league of land, by virtue of any claim to the same possessed by him on the 30th day of June, 1859, the date of the judgment of the United States District. Court for the eastern district of Texas, .or by virtue of the instrument signed by said defendant, William M. Cook, and George W. Carter, dated 17th day of November, A. D. 1866, or by virtue of any other claim possessed by the said defendant, on or before the 5th day of August, 1869, the date of the judgment of the District Court of Calhoun county.”</p> <p>Cook filed a petition for rehearing, which was refused, and .then prosecuted his writ of error.</p>

Tried below before the Hon. A. P. McCormick. Dennis Beil sued John Shackelford, 29th March, 1861, for an account of and for one half of profits received by Shackelford for storing railroad iron on certain city lote in Galveston. The defendant answered, May 31, 1861, a general demurrer and general denial.

Tried below before the Hon. Livingston Lindsay. Wright claiming to have been duly elected justice of the peace in precinct No. 1, Waller county, at the general election, December 2, 1873, and having qualified, brought suit against Adams, who had been elected to the office at the election held in August, 1873, at the organization of Waller county. An agreed statement of facts upon which the case was tried shows: “1.

Tried below before the Hon. A. P. McCormick. In September, 1871, suits were instituted by C. Olfsen, district attorney of the 18th judicial district, against A. W. and E. P. Clegg, and many others, for taxes due by them for occupation and frontier bond tax, before John DeBruhl, a justice of the peace.

Tried below before the Hon. D. M. Prendergast. Ho counsel for appellants appeared in this court, but the record shows that motions for a new trial and in arrest of judgment were made and overruled by the District Court, and the action of the court in this respect was assigned for error.

Tried before the Hon. B. W. Battle. Anschicks was convicted of rape, and punishment fixed at twenty years in the penitentiary. A motion for change of venue was made, and being resisted by the District Attorney, was overruled. The testimony on the motion is sufficiently given in the opinion.

Tried below before the Hon. Livingston Lindsay. In 1872 T. R. Beard shipped to market a lot of hogs for one J. G-. Burke. Burke became indebted on account to Beard, and promised him that he would send another drove of hogs to market by Beard, and that he should have a lien on all his (Burke’s) hogs for the debt.

Tried below before the Hon. Livingston Lindsay. Henry Shackelford was killed by a shot fired from Solomon Hampton’s house, at night, where he and HezeMah Hampton were. Shackelford and another -had accompanied the sheriff to Hampton’s house to arrest HezeMah, an escaped penitentiary convict. HezeMah had threatened to Mil any one who should attempt to rearrest him. The testimony did not disclose who fired the shot.

Tried below before the Hon. A. P. McCormick. This suit was brought on a policy of insurance issued by appellant to Lacroix. The loss occurred August 11,1867, and suit was brought November 30,1868.

Error from Harris. Tried below before the Hon. James Masterson. James M. May, a passenger on the Houston & Texas Central Railway, was accidentally killed by the running off of the train, about the 8th of November, 1870. The deceased left a widow, Martha L. May, and two children, Joseph M., aged four years, and Robert B. May, aged eighteen months.

<p>Pleading —Claims against an estate for expenses. — In a suit to establish a rejected claim for services rendered in carrying on a plantation belonging to an estate, under contract with the administrator, the petition is defective, unless it be alleged that the price claimed is reasonable.</p>

<p>Appeal from Harris. Tried below before the Hon. James Masterson.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Galveston. Tried below before the Hon. A. P. McCormick.</p> <p>The facts are given in the opinion.</p>

Tried below before the Hon. James Masterson. This suit was brought by the First National Bank of Houston against the appellant, to recover the sum of $1,980 alleged to have been paid through mistake to the latter on an altered check originally drawn for $20 and altered to $2,000.

Tried below before the Hon. Livingston Lindsay. March. 16, 1872, Ralph Levy & Co. brought suit in the District Court of Colorado county against James McDowell, on an account for $182.75, and sued out an attachment. • On the attachment bond P. Thompson and Shad Cayce were sureties.

Tried below before the Hon. James Masterson. Lockhart sued Ward, Dewey & Co. in trespass to try title, Kleiber, the landlord of Ward, Dewey & Co., made himself party defendant. The facts are sufficiently stated in the opinion.

Tried below before the Hon. A. P. McCormick. E. T. Austin brought this suit in the District Court of Galveston county, on the 19th January, 1876, by petition addressed to A. P. McCormick, judge of the eighteenth judicial district, sworn to, praying an injunction to restrain the sheriff from proceeding to enforce the collection of a tax alleged to be illegally imposed on his property in Galveston county for the year 1875, amounting to $191.23, and to oiie third of one per…

Error from Galveston. Tried below before the Hon. A. P. McCormick. Held: as recited in the minutes of the court of August 5, 1872, and 26th August, 1872; that the County Court received the report of the managers of the election, and decided, upon consideration, (August 26, 1872,) that said proposition had been accepted by more than two thirds of the registered voters, and that the same had carried.

Tried below before the Hon. A. P. McCormick. Under the act entitled “An act to. authorize the Police Courts of the several counties of the State to issue and sell county bonds for the purpose of erecting court-houses' and jails, and to levy a special tax to meet the same,” approved October 27, 1866, (Gen. Laws, 11th Leg., p. 66,) the Police Court of Galveston county, at its January Term, 1867, made an order levying a special tax of one half of the amount levied by the State…

Tried below before the Hon. A. P. McCormick. Raymond & Whitis brought suit in the Galveston District Court, 13th February, 1872, against B. L. Mann and H. F. Hall, of Hew Orleans, Louisiana, and Thomas Caden, of the city of Galveston, alleged to be partners under the firm name B. L. Mann & Co., and alleged that defendants had their principal office in Galveston; that on October 11,1871, B. L. Mann & Co. had duly authorized one J. Hutchinson, as agent, to purchase hides for…

Tried below before the Hon. L. Lindsay. The assignment of errors raised but a single question, viz: “That the court erred in sustaining the plea to the jurisdiction and dismissing the cause from the docket.” The petition alleged that defendants were non-residents of the State, but that one of them had property within the jurisdiction. The defendants interposed a plea in abatement to the jurisdiction.

<p>Appeal from Harris. Tried below before the Hon. James Masterson. The facts are stated in the opinion.</p>

<p>1. City charter — Fire limits. — Without an express grant of power, a city, by its authorities, cannot establish Are limits, declare wooden buildings erected therein to be nuisances, and provide for the removal of such buildings and the punishment of those erecting them.</p> <p>2. Nuisances. — Authority to abate nuisances does not include the power to declare that to be a nuisance which, in its nature or its situation or use, is not such.</p> <p>3. Wooden houses. — Neither in its legal or general meaning does the word “ nuisance ” apply to wooden buildings, even in towns and cities.</p> <p>4. Municipal corporations can exercise those powers only which are expressly or impliedly conferred, subject to such regulations or restrictions as are annexed to the grant of such powers.</p> <p>5. Same. — Their powers discussed.</p>

Error from Harris. Tried below before the Hon. James Masterson. This was an action of debt brought to the October Term, 1871, of the District Court of Harris county, by the “mayor, aldermen, and inhabitants of the city of Houston,” against Robert Lockhart, for the sum of $55.75, alleged to be due from him for taxes imposed upon certain real estate belonging to said Lockhart, and situate within the corporate limits of the city, for the years 1867, 1868, 1869, and 1870.

Tried below before the Hon. Livingston Lindsay.* In June, 1871, V. M. Frost, for herself and John Wharton Frost and Mary Frost, her minor children, by her, as next friend, instituted suit against Ada, Henry H., Franklin Pierce, Harriet Ella, and Miles Frost, children of S. M. Frost, her deceased husband — Franklin Pierce Frost and Harriet Ella Frost being minors — and against J. E. Pettus, J. C. Williams, Sophia and Hathan Mayblum, W. L. Davidson, and others.

<p>Error from Fannin. Tried below before the Hon.. John C. Easton.</p> <p>This was a suit brought hy appellee in the court of the presiding justice of Fannin county, under the act of May 26, 1873, (Sess. Acts, 95,) entitled “An act to confer additional jurisdiction on the presiding justices of the peace of Lamar and Fannin counties, and to prescribe the powers and duties of the officers of said courts.”</p> <p>Judgment was rendered in said court against the appellants for the sum of $742.32, from which they appealed to the District Court; and they not appearing, judgment was rendered in the latter court by default, from which this appeal is prosecuted.</p> <p>The errors assigned, questioned the constitutionality of the act conferring additional jurisdiction on the presiding justices of said courts.</p>

<p>1. Where a bond with security is exacted of a contractor to secure against his failure or inability to comply with the terms of his contract, it cannot be annulled or rescinded for misrepresentations made by him as to his solvency.</p> <p>.2. In a suit to cancel or rescind a contract brought against a contractor from whom a bond with security had been exacted, evidence of the insolvency of the contractor is irrelevant and properly excluded.</p> <p>3. In a suit by a contractor against a railroad company for damages for breach of contract, it is admissible for the railroad company to show the inability of the contractor to perform his obligations, and that he was unable to' respond in damages for the purpose of showing that the loss of the profits which would have been realized by a completion of the contract by the contractor was attributable in part at least to such inability.</p> <p>4. It is not in all cases required that a railroad company wait until it is too late to have work stipulated to be done by a contractor, completed by the desired time, in order that the contractor’s inability to comply with his contract he demonstrated, on peril of paying him all the profits to be realized from a performance of his contract; but before taking action in breaking off the contract the failure of the contractor must be shown to have been imminent, &c.</p> <p>5. Practice — Evidence.—If evidence is not admissible for the purpose for which it is offered, this court will not reverse, if the testimony would have been admissible for another purpose in the trial below.</p> <p>6. Contract. — The failure of the sureties to a contract subsequent to its execution, is not a sufficient ground for the other party breaking it, without allowing an opportunity of furnishing new securities.</p> <p>7. Measure of damages — Future profits. — While it is a general rule that future profits cannot be allowed in estimating damages, whether the action is on contract or tort, yet the c.'ception to it is equally well settled that where labor is to be performed from which profit is to spring as the direct result of work done at a contract price, and one party is prevented from earning such profit by the wrongful act of the other, the law will presume that such loss is the direct and natural result of the breach of the contract, and may be estimated in computing damages.</p> <p>8. Damages. — It is the purpose of the law to compensate the party injured for the loss which he has sustained by the wrong done him.</p> <p>9. Same. — While the difference in what it costs to do the work, and the price to be paid for it, is to be taken into the estimate in an action by a contractor prevented from performing his contract, it is not the sole guide or the only fact to be considered in ascertaining the damages.</p> <p>10. Same — Testimony of experts. — The probable cost of completing a contract for the construction of a railroad may be satisfactorily established by proof of the value of the material, labor, and skill required. To effect such proof, resort can be had to the. opinion and judgment of men who are shown to have information and experience which qualify them to testify as to such matters.</p> <p>11. Same — Measure of damages. — The cause of action accrues immediately upon the breach of the contract. Suit may be brought at once; witnesses have therefore to estimate the cost of labor and materials at that date; the contractor is relieved from all anxiety, trouble, and labor about the completion of the work; it is attendant with no further risk on his part, he has to make no additional outlay, and is entitled to his damages immediately. These things should be taken into consideration, and to that extent it may be held that the rule is limited; that the difference between the cost of doing the work and what was to -be paid for it is the measure of damages.</p> <p>12. Mortgage. — Stipulations in a contract for mortgages for such sums as are specially mentioned in the contract raise the implication that no other or different mortgage or lien was to be given; and an agreement for mortgage “for the advancements made or money so expended by him,” under the contract does not include damages for the breach of the contract, but does have in equity the effect of a mortgage to the extent indicated.</p> <p>13. Mistake — Reforming contract. — To authorize a court of equity to reform a contract, on the ground of an important omission, it devolves on the party asking such relief to establish satisfactorily the mistake and the terms of the contract as sought to be established with that intended by the parties at the time of its execution.</p> <p>14. Same. — See facts insufficient to authorize a court to reform a contract.</p> <p>15. Contract by agent. — Where an agent’s authority to make a contract is subject to ratification by the principal, and in accordance with negotiations between the agent and the other contracting party, a contract is executed with the principal, the fact that such contract omitted a part of the agent’s stipulations would be ground for relief and to cancel the contract as against the principal; but such omission could not be, by order of the court, ingrafted into the contract against the principal.</p> <p>1G. Enforcing sale of railroad franchise. — It is proper that tlie sheriff be named by the decree as authorized to enforce it by making sale of road, road-bed, and franchise of a company against which a decree of foreclosure is rendered.</p>

<p>Appeal from Lamar. Tried below before the Hon. John C. Easton.</p> <p>The facts are given in the opinion.</p>

Tried below before the Hon. Charles Soward. Lanes, Boyce & Co., a mercantile firm in the city of Hew York, on the 9th of August, A. D. 1860, sold to defendants, merchants in Texas, goods to the amount of $1,034.69, and took their note for the same, payable at plaintiffs’ office in Hew York, at six months. Lanes, Boyce & Co. indorsed this note to the Hational Bank of the Republic. In August, 1866, the bank held the note still unpaid.

Tried below before the Hon. E. H. Taylor. ■ W. B. Wright brought suit against A. J. and J. W. Taul and E. W. Mebane to set aside a sheriff’s sale of certain lands sold as Wright’s under an execution in favor of Mebane and against Wright and others, and to vacate the judgment. The petition contained a history of the proceedings in the suit, substantially, that Mebane had instituted suit on a promissory note executed by said W. B. Wright, T. Gr.

Tried below before the Hon. W. H. Andrews. Ferguson, as administrator of William Patterson, sued Eich on a promissory note, and to enforce the vendor’s lien upon a tract, 180 acres, of land. Defendant pleaded that the sale was fraudulent, in that Patterson falsely represented the tract to contain 180 acres, when it only contained 140 acres, which deficit Patterson well knew; that the consideration agreed to he paid for the land was at the rate of six dollars per acre.

Error from Lamar. Tried below before the Hon. John 0. Easton. Garnett brought suit on a promissory note signed “Long, Berry & McBath,” a firm, against Samuel Long, C. B. Berry, Edward Long, and J. 1ST. McBath, alleged to be the members of the firm. Edward Long and McBath pleaded non est factum, and, on trial, a verdict was returned and judgment rendered thereon against all the defendants.

<p>Appeal from Grayson. Tried below before the Hon. Thomas J. Bonner, special judge.</p>

<p>1. Pleading — Insanity—Ratification of contract — Evidence. When insanity is specially pleaded as a defense to avoid a sale and a ratification of a contract after the removal of the disability is relied on, such ratification must be pleaded before the plaintiff will be permitted to introduce evidence to establish it.</p> <p>2. Insane person — Deed.—The deed of an insane, person is not void. but voidable only, but such person, whilst actually under legal and subsisting guardianship, and in support of the guardian’s authority, is conclusively presumed incompetent to contract, and his deed, as against his guardian, is absolutely void.</p> <p>3. Same. — If, however, as an actual fact, the guardianship had been practically abandoned at the time of the sale, and the person who had been insane was, when the deed was executed, of sound mind, the contract, if fair, will be enforced.</p> <p>4. Burden of proof — Insanity—Deed.—The burden of proving the restoration to reason and the termination or practical abandonment of the guardianship of one insane, is upon him who seeks the enforcement of a contract against him who pleads insanity.</p>

<p>Appeal from Lamar. Tried below before the Hon. John C. Easton.</p>

Tried below before the Hon. W. H. Andrews. This was an action of trespass to try title, brought by appellant against Bell, who claimed to be the vendee of the heir of Charles Carson, the original grantee of the land in controversy.

Tried below before the Hon. J. A. Carroll, special judge. E. B. Hunt brought an action of trespass to try title against William Shields et al. for one third of a league of land, patented to Conrad Furinash, and sold by the heirs of the patentee to plaintiff.

Tried below before the Hon. Charles Seward. The facts are substantially given in, the former appeal in this case, 38 Tex., 285, 286, 287.

<p>Appeal from Lamar. Tried below before the Hon. John C. Easton.</p>

Error from Bexar. Tried below before the Hon. George H. Noonan.

Error from Denton county. In this case the defendants in error moved the court to dismiss the writ of error because there was no such bond for costs as is required by law, and because the paper presented in the record as a bond was not approved by the court. .

Error from Denton. Tried below before the Hon. C. C. Burkley. The facts upon the merits of the case appear in the opinion.

Tried below before the Hon. J. M. Onins. January 2, 1870, Wilkinson sued Hudson for the conversion of a wagon and two mules, alleged to be worth $200, and their hire, worth three dollars per day. - Hudson pleaded his purchase of the property from one Stewart in good faith, and that plaintiff’s claim under the same party for the property, was without consideration — was based on a mortgage invalid in law, in that the property was exempt from forced sale.

<p>Lde insurance — When application accepted — Estoppel.—On November 11, 1870, an applicant for life insurance in a Connecticut company paid the amount agreed with the local agent on account of premium, and received from him the following receipt, viz:</p> <p>“Received the sum of one hundred and nineteen dollars and eighty-five cents, on account of premium on an insurance of five thousand dollars on the life of White H. Richards, of Whitesboro, count)' of Grayson, State of Texas, for which an application, dated the 11th day of November, 1870, has been made to the Connecticut Mutual Life Insurance Company of Hartford; said insurance takes effect from the date hereof, provided the application therefor be ac-. cepted by said company. The policy issued to be delivered by me, when received, to the applicant, on the return of this receipt to me. It is expressly understood that if the application for the above insurance be declined by said company, it shall be held that no insurance has ever been created under this receipt, and the amount paid hereon shall be repaid to the applicant on the return of this receipt to me.</p> <p>(Signed) “ J. Q. A. Carter,</p> <p>“ Gen. Agent, Sherman, Tex., for North Texas and</p> <p>“ Indian Territory.”</p> <p>“Whitesboro, Tex., Nov. 11, 1870.”</p> <p>The application was forwarded and received at the principal office November 22,1870, and on the 28tli November it was remailed, with a memoranda stating that the name of the applicant, as written by himself, was spelled in two different ways, and requiring an explanation from the applicant himself. The applicant died November 23, before the application was received on its return. On December 28 the secretary of the company informed the local agent that the policy, though prepared, was rejected. No repayment or tender to repay, by the agent, the amount paid, was shown, but the principal office instructed its local agent, on the 19th January, 1871, to return the premium money. In a suit against the company for $5,000 by the representatives of the applicant: Held, 1. That it devolved on the plaintiff to prove that the contract of insurance had been completed by the acceptance on the part of the company of the application. 2. Though the failure of the company to take definite action on the application might afford ground for the applicant to withdraw his application and demand repayment of his money, there is no rule which would make a postponement of action in accepting, pending further inquiry, tantamount to an acceptance 3. Though the premium be not returned, yet when its return luis been directed by the company in instructions to its agent, the fact that it has not been returned will not estop the company from denying an acceptance of the application.</p>

Tried below before the Hon. J. P. Richardson. Morris, administrator de bonis non of the estate of J. L. Hobley, brought suit against Johnson, his predecessor, and his sureties, for the value of the unadministered assets shown in the inventory. Defendants demurred, and pleaded a general denial. Plaintiff by amendment, alleging the non-residence and insolvency of the principal, dismissed as to him, and one of the sureties not served with process.

Error from Washington. Tried below before the Hon. I. B. McFarland. April 3,1865, Mary A. Howth sued J. A. & M. 0.

<p>1. Trespass to try title — Pleading.—When the petition disclosed that the main object and purpose of the suit was to try title to tiie undivided half of a tract of land as to which there was a controversy and of which plaintiff alleged that he had been wrongfully dispossessed by the defendant: Held, That although there was a prayer for partition, the suit was an action of trespass to try title; and that under a plea of not guilty, defendant conk! set up any matter of defense denying the title of plaintiff, or showing that defendant liad acquired title to the land in controversy.</p> <p>2. Estoppel — Inventory of administrator. — A purchaser of land from the husband, as administrator of his deceased wife’s estate, sold by him under proceedings in the Probate Court, insisted on as insufficient to bind the estate, is not estopped from denying that the property was community property by the inventory of the husband as administrator.</p> <p>3. Same. — Only such parties as have acted on the faith of admissions, or against whom the subsequent assertion of the truth of the case would operate as a fraud, can insist upon ¡lie estoppel.</p>

<p>1. Specific performance — Limitation.—A bond was executed December, 1856, for title, to be made on the payment of the balance of the purchase-money; suit was brought by the holder of the bond September 1, 1870, against the vendor and a purchaser with notice, to enforce specific performance, the plaintiff offering to pay the balance of the purchase-money and interest due: Held, That such demand was not stale nor barred by limitation.</p> <p>2. Same.- — Where time is not of the essence of a contract for the sale of land, mere delay in the payment of the purchase-money will not annul the contract, and the vendor, without demand and notice, cannot repudiate the contract or dispossess the vendee.</p>

Tried below before the Hon. John C. Easton. This suit was instituted on the 11th of December, 1865, by Richard 0. Thomas, as guardian of several minors, upon a note, the property of said minors, and against Wood H. Shearon and Samuel Hancock. Thomas was succeeded as guardian by appellee Henderson.

Error from Dallas. Tried below before the Hon. H.. Barksdale. Clotilda E. Mays filed a petition in the District Court of Dallas county against Mary E. Hammond (formerly Mays) and her husband, E. M. Hammond, Samuel B., William, and Enoch Mays, adults, and D. B., Ida L., and Lula J. Mays, minors, alleging that plaintiff was widow and the defendants children of E. G-.

Tried below before the Hon. J, M. Onins. Suit by J. A. Davis, alleging, in substance, that he sold to James Touchstone three hundred and twenty acres of land, in Milam county, a part of the headlight of Leander Haii, and on which Touchstone resided at the time of his death; that Touchstone failed to pay the purchase-money, and that after his death, William C. Easterwood, as his administrator, accepted the claim against the estate for the purchase-money, which was approved by…

Tried below before the Hon. Daniel D. Claiborne. Duncan McBryde sued H. D. Ford and Gr.

Error from Karnes. Tried below before the Hon. Daniel D. Claiborne.

Tried below before the Hon. Henry Maney. On the 20th day of November, 1857, appellant sold the land in controversy to P. A. and Martha R. Swann, taking three promissory notes, for $875 each, for the purchase-money, due in one, two, and three years. These notes were set out in the deed from appellant to Swann. The notes were not paid.

Tried below before the Hon. J. P. Richardson. Mrs. Julia Tarver and her husband, E. B. Tarver, brought suit against J. Zorn to enjoin the sale of a tract of 1,001 acres of land, claimed as her separate property, and levied on as the property of her husband under an execution in favor of Zorn.

Tried below before the Hon. A. B. Wilkinson, special judge. Thomas L. Wade and Lucy A. Mains, surviving widow of L. F. Mains, sued Charles D. Grace, J. J. Jones, Martha Anderson, and her husband, Aaron Anderson; A. J. Haile)', and Houston Hailey, claiming 640 acres, interest in a survey of a tract of 1,252 acres described in the petition; alleging that on February 20, 1869, the defendant, J. J. Jones, for valuable consideration, executed his title bond, whereby he contracted…

Tried below before the Hon. J. P. Richardson. The litigation involving title to the land sued for began in 1846. (See De Witt v. Miller, 9 Tex., 240.) The lull in the proceedings below in this suit for a period of ten years, referred to in the opinion, will perhaps be accounted for by the pendency of another suit during that period, prosecuted for the entire league by one of the heirs of the empresario, Green He Witt.

Tried below before the Hon. J. P. Richardson. Held: on Landa, amounting to $1,815; in the aggregate $3,000. It was also further agreed and settled that an account of Obert against Landa for $450, for labor, should be offset by articles — meal, brand, &c. — -alleged to have been taken by Obert from the mill.

<p>1. Suits against community property — Parties.—While an estate is in course oí administration in the ordinary way, or by the survivor of the community, when it is not shown that the assets have descended or come to the possession of the heirs, they are not proper parties to an action against the community estate.</p> <p>2. Suits against minors. — It is irregular to proceed in an action against minors without making their guardians parties, if they have any, and if not, without the appointment of a special guardian.</p> <p>3. Administration of community property by the survivor— Marriage. — By the marriage of the surviving widow, her control over the community property ceases, and a judgment against her in a suit brought before, but rendered after, her marriage, gives no authority for execution against the property in her hands subject to administration.</p>

Tried below before the Hon. F. P. Wood. Bell sued Evans on a promissory note, and to enforce the vendor’s lien on lands for which the note was executed, of date December 13, 1871, and due in twelve months.

Tried below before the Hon. H. Barksdale. Caroline W. Sears, widow of John Sears, sued Eobert Sears and others, children of John Sears and a former wife, for the homestead and other exempt, property of the deceased. The defense interposed was that the plaintiff had abandoned the deceased without cause. Plaintiff justified her separation from her husband, replying that she was compelled to leave lfim on account of Ms cruel treatment to her, alleging the acts of cruelty.

<p>1. Sheriff’s sale — Bona fide purchaser. — A land certificate, issued October 5,1847, was located, the survey made December 2, 1851, and the field-notes duly returned to the land office. In Jan-nary, 1853, the grantee of the certificate contracted with C to obtain patent for the land in O’s name, or have the title to the land vested in 0 without expense. The land was in Hood county, and was levied on, August 3,1870, under an execution from Gonzales county, against the grantee, and sale was made of the land April 4,1871, and the sheriff’s deed placed on record. In the interval between the levy and sale 0 placed a tenant in possession of part of the land. June 12, 1871, the contract between the grantee and 0, together with a deed carrying it out, were placed on record : Held, That the levy of the execution fixed the lien upon the land, and the purchaser took a good title against 0, notwithstanding his possession of part of the land at the time of the sale.</p> <p>2. Statute construed — Assignee’s title. — The act of January 29, 1840, allowing assignees of land certificates, six months after the issuance of a patent, in which to prove up and record their deeds to the certificate, applied only to the assignments of certificates made before their location.</p> <p>3. Same — Sale of land certificates. — After a certificate has been located it is merged in the land, and its transfer is governed by the law for transfer of land, as to mode of convej^anee, registration, &c.</p>

Tried below before the Hon. I. B. McFarland. This was an action of trespass to try title, brought by Irwin and wife against Henry Sample. Both parties claimed title to the land in controversy under one E. S. Woodford.

Tried below before the Hon. J. P. Osterhout. On 10th December, 1867, J. E. Ferguson and E. T. Beed entered into a partnership for the purpose of running a mill on the Salado, in Bell county. It was agreed that Beed should pay Ferguson $2,768, part in cash and part at a future day. They were to share equally the mill property and its profits.

Tried below before the Hon. J. J. Thornton. On the trial Eriedlander & Co., plaintiffs below, introduced the letter of credit copied in the opinion, and offered to prove that Poteet, in whose favor it was drawn, had drawn other drafts on Cornell as his agent, which-drafts were paid; that Cornell had stated, subsequent to the date of the letter, that Poteet was authorized to draw drafts on him for such advances as were made to said Poteet by plaintiff; that the accounts of…

<p>Error from Coryelle. Tried below before the Hon. J. P. Osterhout.</p>

<p>Appeal from Travis. Tried below before the Hon. J. P. Richardson.</p> <p>The facts essential to a proper understanding of the opinion are stated in it.</p>

Tried below before the Hon. J. P. Osterhout. Suit by J. E. O’Neil against W. T. Mausker and Cynthia Eoss, as surviving wife of E. M. Eoss, deceased, on a note for $3,000, alleged to have been executed by E. M. Eoss, W. T: Mausker, and J. H. Williamson. Ho recovery was sought against the estate of Williamson, he being dead, and his estate insolvent.

<p>Appeal from Bell. Tried below before the Hon. J. P. Osterhout.</p> <p>The facts discussed are fully given in the opinion.</p>

<p>1. Administrator’s sale — Caveat emptor. — The mere fact, that at the time of making an administrator’s sale of land the records of the clerk’s office in the county where the land is situate, showed that the intestate had conveyed the land in his lifetime, of which fact the purchaser had no actual knowledge, will afford no defense in a suit brought on a note given for the purchase-money.</p> <p>2. Administrator’s sale — Fraud.—At law, the rule governing a purchase at administrator’s sale is caveat emptor. In equity, if there has been such fraud or mistake in the sale as would- entitle a purchaser to relief, the burden rests on him to establish such facts. It has not been decided by this court that a mere want of title in an estate to land, at the time of an administrator’s sale, would constitute an equitable defense.</p> <p>3. Administrator’s sale — Obiter dicta. — The suggestion made in Walton v. Reager, 20 Tex., 103, that a sale by the intestate, though unknown to the administrator and to the purchaser at administrator’s sale, would constitute a fraud upon the purchaser: Held, To be obiter dicta.</p>

<p>1. Practice — Depositions—Evidence.—When the objection is taken in time, that the postmaster who mailed depositions offered in evidence failed to indorse thereon the name of the person from whom he received the package to be forwarded by mail, (snch person being the officer before whom they were taken,) the objection will be fatal.</p> <p>2. Depositions — Evidence.—There must be a strictly substantial compliance with the statute in taking depositions, and in the form and manner of returning the same, and this will be exacted, when exceptions are taken in writing, and notice thereof given before the trial.</p> <p>3. Liability of partners. — When the parties occupy the relation of dealers and customers, a retired partner must show notice of the dissolution to relieve himself from subsequent liability, which may be done by direct or circumstantial evidence, sufficient to establish the fact that the party seeking to enforce the liability, knew of the dissolution.</p> <p>4. Discussed, White v. Tudor, 24 Tex., 639.</p>

<p>1. Practice in Supreme Court — Jurisdiction—Affirmance on certificate. — The right of an appellee to an affirmance without reference to merits, When the appellant fails to bring up and file a transcript of the record in time, is not affected by the filing in the court below, by appellant, of a written abandonment and waiver of his right to appeal; such waiver, being a fact occurring after judgment, forms no part of the transcript, and could not be therefore inquired into by the Supreme Court.</p>

Tried below before the Hon. John G. Scott. This was a suit brought by Delespine and wife to set aside a sale, charging that one Richard' H. Wren, on the 13th January, 1861, made his two promissory notes, each for the sum of $1,347.32, the one due 1st March, 1862, with interest at 10 per cent, from 1st January, 1862, and the other due 1st March, 1863, with interest at 10 per cent, from 1st January, 1863, both payable to the order of George B. and Benjamin Campbell; that the…

<p>1. Probate Sale — Irregularities.—At the April Term, 1857, of the Probate Court of Kaufman county, an order was made allowing the application of an administrator to sell “ the real estate of the decedent, consisting of four hundred and six acres of land,” fixing the time and place of salo, and directing that the sale be “ in accordance with law.” The inventory showed that the only land owned by the estate was a tract of four hundred and six acres. The administrator returned an account of sale of four hundred acres, at $2.35 per acre, amounting to $954.10. At the July Term thereafter the court approved the sale, and ordered that the administrator “make a good and sufficient deed to the purchaser.” The administrator executed a deed, attempting to give field-notes, but misdescribing the land. The purchase-money was paid by the purchaser: Held, (1) That the absence of particular description in the proceedings ordering and approving the sale was at most an irregularity, and not rendering the proceedings void; (2) that the order of sale, sale, confirmation, and payment of purchase-money constituted an equitable title, without deed; and (3) the execution of an imperfect deed did not affect the rights of the vendor.</p> <p>2. Pleadings — Disclaimer.—Where a disclaimer makes an exception which is imperfect in its description, but which, taken in connection with the petition and the evidence adduced by plaintiff, can be understood to apply to a definite tract, the court will so hold and regard the issue of not guilty as applying to such part so designated.</p>

<p>Appeal from Red River. Tried below before the Hon. John D. Easton.</p> <p>Suit instituted by Epperson, appellee, against W. M. and E. M. Stanley, to recover a tract of land described in the petition. The action was trespass to try title, in the usual form. W. M. Stanley answered, but E. M. Stanley, though served, filed no answer. Sarah Stanley, the wife-of W. M. Stanley, filed a petition, praying to be made a parly to. the suit, and set up that she was the wife of W. M. Stanley, and that the land was her homestead, and pleaded (though not under oath) non est factum to a deed filed with the papers as the basis of plaintiff’s title.</p> <p>On the trial the following were the facts adduced in evidence: Plaintiff offered in evidence a deed from William M. Stanley and wife for the land described in plaintiff’s petition. The deed was in the usual form of warrantee, and described the land sued for.</p> <p>Donahue, a witness for plaintiff, was introduced, and testified as follows: That he was acquainted with the land described in plaintiff’s petition and identified the same, and that William M. Stanley and wife were living upon the land at the time of the institution of this suit. Plaintiff then closed.</p> <p>Defendant then introduced John A. Bagby, who testified that he was District Court clerk of Bed Biver county, Texas, and was county clerk of said county in 1867 and up to the time he was elected district clerk under the present Constitution ; that he was county clerk of said county at the time the acknowledgment to the deed was taken; that it was acknowledged before him by William M. Stanley, and that his official signature and seal of office attached to said deed was genuine and was put there by him; that at the time of taking the acknowledgment and making the certificate the name of Mattie P. Henderson was on the deed as grantee; that after taking the acknowledgment the same was left with him. He could not say whether he was instructed to record the deed, but such was his usual custom; that before said deed was recorded John D. Henderson and William M. Stanley came to him and got the deed, and that he went with them to plaintiff, B. H. Epperson,- when the name of Mattie P, Henderson was erased from the deed as grantee, and that of B. H. Epperson inserted in its stead; that this was done in the presence of John D. Henderson, W. M. Stanley, and plaintiff; that he did not recollect whether William M. Stanley assented to the change or not, but knew that no objection was made; that after the change in the deed it was delivered to him in presence of said parties, to wit, J. D. Henderson, William M. Stanley, and B. H. Epperson, to be filed as recorded; that neither Sarah A. Stanley, wife of Williana M. Stanley, nor Mattie P. Henderson, wife of John D. Henderson, were present when the deed was altered and delivered; that witness did not know whether they consented to it or not. Witness also stated that he never took Mrs. Stanley’s acknowledgment to any deed to B. H. Epperson. Here defendant closed.</p> <p>Plaintiff then introduced one Sims, a witness in rebuttal, who testified that he was present at the time of the alteration of the deed; that John D. Henderson, "William M. Stanley, plaintiff, B. H. Epperson, and John A. Bagby were also present, but that neither Mrs. Henderson nor Mrs. Stanley were present; that the alteration was made with the assent of John D. Henderson and the approval of William M. Stanley, and that after the alteration the deed was delivered to John A Bagby, in their presence, to be recorded. This took place at B. H. Epperson’s office, and he (the witness) was present at the request of John D. Henderson, who had consulted him about the transaction; that the transaction took place publicly and openly.</p> <p>Plaintiff B. H. Epperson was then called, and testified in his own behalf as follows: that John D. Henderson was the husband of Mattie P. Henderson, who was, at the time of the alteration of the deed, in the State of Missouri, and had been there for several months previous, and so continued until after the death of her husband, which occurred in September following; that he (plaintiff) purchased the land in controversy from John D. Henderson, the husband of the said Mattie, and paid him $4,200 for it; that when Henderson met him by appointment to make a conveyance of the land, he (Henderson)' showed Mm a deed from Stanley and wife to Mattie P. Henderson, and, when his attention was called to tMs fact, stated that he had brought William M. Stanley with him to make a new deed, as this one had not been recorded, and asserted that he had paid for the land himself, and not with the separate funds of his wife. William M. Stanley was present, assenting to what he said, and admitted that he had received full payment for the land, and stated that he was willing to make a deed to any one Henderson should designate, whereupon, with the assent of John D. Henderson and William M. Stanley, the name of Mattie P. Henderson, wherever it occurred as grantee in the deed, was erased, and the name of plaintiff was substituted, and that the deed was then stamped and delivered, in the presence of said J. D. Henderson and said William M. Stanley, to John A. Bagby, clerk of the County Court, with a request that it be recorded; that William M. Stanley stated that he was occupying the place as a tenant of John D. Henderson for the cmTent year of 1868, and Henderson admitted that he had been paid rent for that year, and that Stanley was to remain in possession as tenant until the en d of that year; that after this transaction, and after the death of John D. Henderson, which occurred in September following, but before the end of the year, William M. Stanley proposed to rent the premises of plaintiff for the next year, which plaintiff declined; that soon after this conversation concerning the rent, plaintiff left the State, and vras gone for about a year; when he returned, William M. Stanley claimed title to the land; that the deed was altered upon the day it was marked filed, and that the consideration paid by plaintiff to John D. Henderson for the land was $4,200. Neither Sarah A. Stanley nor Mattie P. Henderson was present at the time the deed was altered; witness did not know whether either of them 'consented to the alteration or not. Epperson was asked by defendant if he had not seen a deed upon record for this land from Mrs. Mattie P. Henderson, made after the death of her husband, to William M. Stanley ánd wife. He replied he did not recollect positively whether he had or not; he might have heard there was such a deed, but did not recollect to have seen a record of it.</p> <p>The first cause of error assigned by appellant for reversal was the refusal of the court below to grant.his motion for a continuance upon account of the absence of a witness. The case had been pending nearly three years. An application for a continuance was made on account of the absence of L.</p> <p>D. Henderson, who was not a resident of the county. The affidavit stated that L. T>. Henderson was a material witness; that he had been regularly subpoenaed, and that he had been a citizen of Bed Biver county until recently; “that he is now a citizen of Grayson county; that he has important business in this court, and is looked for hourly, and that defendant believes he can procure his testimony by next court.” But the application did not show when he was subpoenaed. It did not state whether he had been subpoenaed whilst residing in Bed Biver county or since he had moved to Grayson. It stated that he had been a citizen of Bed Biver county “until recently,” but did not explain what was meant by “recently.” It also failed to state defendant had used due diligence to procure his testimony.</p>