Volume 5 — Texas Civil Appeals Reports

<p>Telegraph Company — Charge of Court Without Issue. —Plaintiff in an action against a telegraph company for delay in delivering a message announcing the serious illness of Ms father, testified, that had it been promptly delivered he would have reached his father in time to have seen him alive, assuming that a certain train was then running on the railway by which he would have gone; but he further testified that he did not know whether such train was then running or not. Defendant’s evidence showed that by the first train plaintiff could have taken, had the message been promptly delivered, he could not have reached his father’s home until after the latter’s death. I-Ield, that the court erred in submitting to the jury the issue as to whether plaintiff would have been able to reach his father in time to see him alive.</p>

<p>1. Disqualification of Judge — Trespass to Try Title. — A judge who is in possession of the land involved in a suit of trespass to try title, claiming adversely to the plaintiffs therein, is disqualified from trying the case, although he is not a party to the suit and his own title is not directly in issue.</p> <p>2. Same — Disqualification not Waived. — Where the interest of the judge in the subject matter of the suit was not discovered by plaintiff until after trial begun, their failure to make him a party to the suit would not change the rule; and such disqualification being made to appear in a motion for new trial, the judgment, although correctly rendered oh the merits of the case, was reversed and the cause remanded.</p>

<p>1. Citation — Service Outside of County — Copy of Petition. — Where service of citation is had outside of the county in which the suit is instituted, the defendant must be furnished with a certified copy of plaintiff’s petition; and where such copy is not certified, judgment by default is unauthorized.</p> <p>2. Judgment not Warranted by the Pleadings. — A pleading asking a partition of lot 5, block 14, does not support a decree awarding a partition of lot 15, block 14.</p>

<p>Cotenants — Partition—Remedy where Title Fails in Part. — B. and others, joint owners of a tract of land, laid it off in town lots and partitioned the lots among themselves in severalty. By mistake in surveying, a strip along the east side of the tract, not belonging to them, was included, and a corresponding strip on the west side was left unpartitioned. Part of the lots set over to B. and lying in such east strip were, as his property, sold under execution to appellants, and title thereto having failed, they brought suit, asking to be recompensed by having set apart to them B.’s interest in the unpartitioned strip. Held:</p> <p>1. The right of a tenant whose title fails to the land allotted to him in partitian, is to call for a repartition, or for a money compensation from his cotenants; but not to demand compensation out of other lands they may own.</p> <p>2. Appellants by their purchase acquired, at most, only the right of B. in the specific lots they bought, and his right of action on the covenants that run with a partition, but not his interest in other lands not partitioned; and they were therefore not entitled to the relief asked.</p>

<p>Warranty — Rights of Vendee on Failure of Title to Land. — The defendants, by mistake in surveying and platting their land for a town site, left out a part, and included other land they did not own. Afterwards, they conveyed to plaintiff by warranty deed a number of the lots, some of which were on the land included by mistake. Held, that on failure of title to such lots plaintiff was not entitled to have other land of defendants set aside to it out of the part omitted by mistake, but must look to the covenant of warranty for money compensation.</p>

<p>Injunction to Restrain Collection of Judgment. — Where plaintiff’s action to restrain the collection of a judgment against him rests primarily on an alleged indebtedness claimed to be due him by the judgment creditor, and plaintiff’s petition does not contain a plain and intelligible statement of his grounds for relief, but the inference from its averments is quite strong that such indebtedness has been settled, and the defendant’s answer specifically denies its existence, and intelligently avers facts excluding the possibility thereof, it is not error to dissolve the injunction and dismiss the action.</p>

<p>1. Notice of Unrecorded Deed by Possession of Tenant. — Where the owner of land whose deed is unrecorded is in actual possession by a tenant, his possession charges a junior purchaser of the land with notice of such unrecorded title.</p> <p>2. Same — Tenancy held to Continue. — The tenant originally took possession as a trespasser, and afterwards attorned to the true owner, and paid rent for three years under a written lease, after the expiration of which he continued in possession, without paying rent, but without repudiating the tenancy. Held, that the tenancy continued, and one who bought the land after the written lease had expired was by such possession charged with notice of the lessor’s title.</p>

Appellee brought this suit for a balance of salary and ticket commissions due him for services as railroad station agent. Defendant reconvened for loss caused by plaintiff’s negligent management, and showed that he was short in his accounts in a large sum. The judgment was in favor of plaintiff for the amount of his claim.

<p>Disqualification of Judge by Interest — Enjoining Taxes. — A judge owning property subject to city taxes is disqualified to render a judgment dissolving the city corporation and enjoining the collection of such taxes.</p>

<p>1. Receiver of Corporation — Insolvency as Ground of Appointment. — Article 1461 of the Revised Statutes, providing that a judge of any court of competent jurisdiction may appoint a receiver for an insolvent corporation, does not empower a stockholder or lien creditor of an insolvent corporation which is still a going concern to have a receiver appointed to take charge of the entire assets and convert them into ¡money for general distribution, on the sole ground of insolvency.</p> <p>2. Same — Equitable Grounds. — The application of a few persons owning comparatively small interests in an insolvent but going corporation is not sufficient to induce a court of equity to appoint a receiver therefor, and subject its property to speedy sale in a time of great financial stringency.</p>

<p>1. Railway Company — Connecting Lines — Through Bill of Lading. — In an action against a railway company for the statutory penalty for a failure to deliver goods to the consignee upon tender of the freight charges due thereon, as shown by the bill of lading, plaintiff showed that such bill was a through bill of lading; that the delivering company’s line did not reach the place of shipment, but that rates were made over its line and connecting lines to and from that point; that defendant company issued an expense bill, when the goods arrived, for the exact amount called for by the bill of lading, and that the car containing the goods came through from the place of shipment. Held, that these facts did not establish, over the sworn denial pleaded by the defendant, a contract of partnership or agency between the companies; nor, in view of the statutory provision requiring railway companies to receive and haul the cars of connecting lines, did such facts, and the further fact that the defendant finally, after the delay, accepted the amount shown by the bill of lading and delivered the goods, prove a binding ratification of the execution of the bill of lading.</p> <p>2. Practice — Evidence Admissible after Argument Begun. — After trial was entered upon, an important witness for the defendant became suddenly ill and was obliged to leave the court room, and the court refused to postpone the case on that account. Two hours later, after plaintiff’s attorney had made his opening argument, the witness having recovered, was offered on the stand, and the court declined to permit him to testify. Held, error, although, as the witness was a nonresident of the county, his evidence might have been taken by deposition prior to the trial.</p>

<p>Appeal from Clay. Tried below before Hon. Geo. E. Miller.</p>

<p>1. Jury Trial — Right not Waived, when. — It was error for the court, on appearance day, and after defendants’ application for a continuance had been overruled, to refuse their demand for a jury, on the ground that they had waived their right thereto by such application for continuance, and by failing to demand a jury at the call of the appearance docket for orders a few hours earlier; it not appearing that any jury was in attendance at such call of the docket, and had been discharged because of failure to then demand a jury.</p> <p>2. Registration — Certificate of Proof by Subscribing Witnesses. The law in force in 1871 did not require the certificate of the officer before whom an instrument was proven for record to state that the subscribing witnesses were known to him.</p>

<p>1. Trespass to Try Title — Possession Sufficient Against Trespasser. — As against a mere trespasser, the prior possession of one occupying a survey of State school land under a purchase from the State, whether valid or not, is sufficient to sustain an action of ejectment.</p> <p>2. Same — State School Land. — So long as the State does not complain, a mere trespasser should not he permitted to litigate the issue of the good or bad faith of the purchaser of school land from the State with one who is an actual settler on the land, claiming under the purchase.</p>

<p>1. Practice — Improper Remarks of Counsel to Jury. — In an action by an employe against a mill company, plaintiff’s counsel in his closing argument to the jury stated that defendant had tried to squeeze the farmers down to the lowest notch on the price of wheat, and had swindled and cheated them by false weights, and was now trying to swindle plaintiff out of his hard earnings, and that E., defendant’s president, was a man whose every thought is how to squeeze the last cent out of the farmers, and should be taught that such practices would not be tolerated by an honest jury. This language was promptly excepted to, and was allowed to go unrebuked by the court. The evidence was conflicting, and E.’s testimony had to be broken down to secure a verdict for plaintiff. There was no evidence to support the language, except that a witness stated he had heard complaint of short weights. Held, that a judgment for plaintiff should be reversed.</p> <p>2. Same. — Nor were such remarks justified by a statement of defendant’s attorney, that “ this whole case is bolstered up by the discharged employes of the defendant;” some of plaintiff’s witnesses being in fact such discharged employes.</p>

<p>1. Special Judge of County Court — Appointment by Consent.— No legislation is needed to put in force that part of the amended judiciary article of the Constitution (General Laws 1891, page 201) providing, that when the judge of the County Court is disqualified in any case, the parties interested may by consent appoint a proper person to try such case. Such appointment is valid, and the amended Constitution makes no provision for the transfer of a case to the District Court because of disqualification of the county judge.</p> <p>2. Damages — Measure of, in Opening or Changing Public Road. Where a third class public road through a person’s land is changed to the second class, the measure of the damages caused thereby is the value of the additional land taken, and the depreciation in value, if any. caused to the remainder of the land by the change.</p> <p>3. Same — Evidence in such Cases. — In arriving at such depreciation in value, evidence is admissible of everything in that connection tending to increase or diminish the value of the land, such as the cost of any increased fencing made necessary by the change, and the like; but such elements of damage are neither the measure of the damages, nor are they allowable as specific items of damage.</p> <p>4. Same —Benefits and Injuries in Common with Public. —The benefits and injuries which the owner of the land taken for a public road receives and sustains in common with the community generally, and not peculiar to that tract, should not be considered in arriving at the damage to the land.</p> <p>5. Assignments of Error' which are not supported by propositions and statements in appellant’s brief, as required by the rules, are not entitled to consideration.</p>

<p>State School Land —Actual Settlement —Title Validated. — The title of a purchaser of school land under the Act of 1883, who had not fully complied with the act, was cured by subsequent legislation if he became a bona fide settler within six months of the sale, as provided in the act; and the sale dates from the award by the Land Board, and not from the registration of the application to purchase in the surveyor’s office.</p>

<p>State School Land — Failure of Title to Part — Rights of Separate Purchasers. — A. purchased from the State the east half of a survey of school land, and B. the west half, no dividing line of the two halves having actually been put on the ground. Afterwards it was discovered that nearly all the east half was in conflict with a prior location already patented, and A. thereupon brought suit against B. for such part of the west half as would make an equal division of the land not in conflict. Meld, that A. was not entitled to recover.</p>

<p>Promissory Note —Blank Endorsement — Proof of Ownership.— Notes payable to plaintiff or order and endorsed by her in blank, when produced by her and offered in evidence, make a prima facie case of ownership, the same as if they were payable to bearer; and a further endorsement “for collection,” made by a bank, does not disprove her ownership.</p> <p>Where there is an endorsement by the payees of a negotiable note, if they afterwards sue in their own names upon same, it devolves upon them to show by competent evidence that they are still the owners of the note, and have not parted with the title to it. The first note here sued on is payable to Marie L. Ennis, and is endorsed “ Marie L. Ennis;” and is further endorsed, “ Pay to the order of Panhandle National Bank for collection, account of First National Bank, Chicago. December 26, 1890. H. R. Symonds, Cashier.” Walsh v. Lindo, 7 Cranch, 159; Southern Bank v. Savings Bank, 2 Ga., 253; Spriggs v. Cuney, 19 Mart., 253; 2 Dan. on Neg. Inst., sec. 1196.</p>

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

<p>1. Deed — Fraud in Procurement — Subsequent Ratification. — E. made a deed to his wife, and after her death, as guardian of her children, inventoried the land under oath as their property, and asked lawyers if the deed was sufficient to give them title, saying that if it was not he wished to make it so. Held, that even if the deed was originally voidable for fraud and undue influence in its procurement, there was a sufficient ratification of it.</p> <p>2. Evidence — Erroneous Admission where Cumulative. — Where the evidence of ratification properly’admitted was such that no other verdict could have been returned, the erroneous admission of other evidence to the same effect is harmless error.</p> <p>3. Same — Parties to Suit — Guardian—Statements by Decedent.— In a suit by heirs of E. against H. as guardian of wards who claimed the land in controversy under deed from E., such guardian was properly permitted to testify to statements made to him by E. as to his purpose in making the deed, as this evidence was not as “to any statement by or transaction with his wards.-’</p> <p>4. Charge of Court — Issue not Raised. — Plaintiffs sued to set aside a deed for fraud, and it appearing that on the same day it was executed the grantee executed to the grantor a lease of the same land for his life, they asked the court to charge that in law this amounted only to a will by the grantor, and the devisee having died before the testator, it would be invalid as such. Held, properly refused, because no such issue was made by the pleadings, and because the deed being absolute in form, and there being evidence that it was intended to pass the title absolutely, the most that plaintiffs could ask was to have this question submitted to the jury.</p> <p>5. Practice — Bills of Exception — Ten- Days. — Where bills of exception are not filed within ten days after the rendition of the judgment, but are presented within ten days after the overruling of a motion for new trial, they are in time.</p>

<p>1. Railway Company — Receiver — Penalty for Nondelivery of Freight. — Under the statute (2 Sayles’ Civil Statutes, article 4258a, section 3) imposing a penalty on railways for the acts of their officers, agents, and employes, for the detention of freight after tender of the freight charges due, as shown by the bill of lading, a company is not liable to the penalty for such detention where it occurred while the road was in the hands of a receiver.</p> <p>2. Same — Connecting Lines — Contract Rate. — The receipt of freight by one common carrier from another to forward to point of destination does not bind the receiving carrier to the terms of the contract made by the initial carrier with the shipper, where such terms are not known to the receiving carrier, and there is no partnership relation between such carriers.</p> <p>3. Same — Interstate Rate Governs, when. — Where interstate freight is shipped over connecting lines which have agreed on a joint tariff of rates in compliance with the interstate commerce act, the delivering line must collect the interstate commerce rate, and not that named in the bill of lading.</p> <p>4. Same — Collection of Charges Advanced. — Where a carrier makes a contract of shipment for a rate less than the interstate rate of the other lines over which the freight is forwarded, the delivering carrier may collect not only the interstate rate, but also the charges of the contracting lines, where such charges have been advanced to it by the connecting lines at the usual rates, and in ignorance of the special contract.</p>

<p>1. Telegraph Company — Special Agreement to Deliver Message. — Where the addressee of a telegram, in anticipation of its receipt, informs the receiving agent that he expects it, and of its importance, and the agent agrees to deliver the message to a person residing near the telegraph office, to be taken to the addressee, such agreement is within the scope of the agent's authority,'and constitutes a part of the contract with the company for the transmission and delivery of the message.</p> <p>2. Same — Diligence—Charge of Court. — In an action by the sender for nondelivery of a telegram, the defendant company was not injured by an instruction making its liability depend on delivery, vel non, to the agreed person, without reference to the extent of diligence exerted to effect such delivery, where the evidence showed no effort whatever by the defendant to comply with the agreement.</p> <p>3. Same — Element of Damage — Beneficiary.—Injury to the feelings of plaintiff’s wife, who was prevented by delay in delivery of the message from reaching her son before his death, was a proper element of damages where she was one of the beneficiaries of the telegram, and plaintiff sent it for her and his sons, and informed the sending agent of the relationship of the parties and the urgency of the message.</p> <p>4. Same — Excessive Verdict. — A verdict for $2500 in a case such as indicated above held not to be excessive.</p> <p>5. Practice on Appeal — Suggestion of Delay. — The line of demarcation is so shadowy between the minimum of excessiveness and the maximum of compensation in verdicts for damages for mental suffering, that the appellate court declines to adopt the suggestion that an appeal is prosecuted solely for delay, where the verdict in such case is for as much as $2500.</p>

The court erred in rendering judgment for the plaintiff and in foreclosing the hen as described in said judgment, because said judgment is contrary to law, and is not supported by the evidence, in this, that the note offered in evidence does not describe the land upon which the court has adjudged a foreclosure of plaintiff’s lien, and there is no evidence that plaintiff has any lien upon the land described in the judgment here appealed from.

<p>1. Telegraph Company —Stipulated Notice of Claim for Damages — Filing Suit. — Filing suit within sixty days against a telegraph company for damages for nondelivery of a message, and service of citation therein, is a sufficient compliance with the stipulation requiring a written claim for damages to be presented within sixty days.</p> <p>2. Charge of Court on Weight of Evidence — Diligence.—A charge giving in detail the efforts of the messenger boy to find the addressee of a telegram, and instructing the jury that if they believe these efforts constituted such diligence as a reasonably prudent man would have exercised, they should find for defendant, is on the weight of evidence. The charge should leave it to the jury to determine, under all the evidence, whether the defendant had exercised ordinary diligence.</p> <p>3. Telegraph Company — Liability for Exemplary Damages.— Mere failure of the agents of a telegraph company to find the addressee of a telegram will not render the company liable for exemplary damages, where it is not shown that incompetency on the part of such agents was known to the company when they were employed, or that they were retained after it was known.</p>

<p>State School Land — Settlement — Eights from Actual Possession.— B., who resided in another State, and owned by intermediate purchase a section of school land bought from the State by one B., under the Act of 1S83, placed the land in possession of C. as his tenant, under a lease that forbade subletting. S. sought to acquire the land from the State, on the theory that the law as to actual settlement had not been originally complied with by B.; and having bought from C. the possession of the land, S. occupied, with some of his own children, the houses thereon, and made under the Act of 1887 an application to the State for the purchase of the land, which does not appear to have ever been acted on. The homestead of S. was in the town of V., where his wife continued to reside. B. brought suit against S. for the land, and recovered a judgment therefor, from which S. appealed. Held:</p> <p>1. That as S. was himself not an actual settler under the terms of the Act of 1887, it was unnecessary to consider whether B. was an actual settler under the provisions of the law of 1883.</p> <p>2. The possession of S. was so intimately connected with that of C., the betrayal of whose tenancy he had bought, that it should be regarded with no greater favor, and as he had acquired no superior title, it should not be held to avail him against the right and title of B., the landlord.</p>

<p>1. Judgment of Dismissal by Request — Right of Appeal. — Plaintiff sued B., a nonresident, and had attachment levied on land of his in the State. Pending the suit, B. died, and his nonresident heirs were made defendants, and upon motion of one of them the attachment was quashed, on the ground that the death of B. annulled and discharged the attachment hand and lien. Plaintiffs excepted to this order, dismissed the case, and gave notice of appeal. Held, that after the attachment was quashed a dismissal of the case was the proper order to be made by the court, and that plaintiffs did not waive their right of appeal by-requesting such dismissal.</p> <p>2. Action Against Nonresident Heirs. — An action against the nonresident heirs of B. would be in personam to recover the value of the property they had received from him, and a new attachment would have been necessary, based upon such value.</p> <p>3. Attachment Lien not Abated by Death of Defendant. — After • the death of B., plaintiffs filed an amended petition asking that his heirs be made parties defendant, alleging that this was the only debt against his estate;, that there was no administration, and no necessity for any; that the parties named! therein were the only heirs; and praying for a foreclosure of the attachment acquired prior to B.’s death. Held, that the attachment lien was not lost by the death of B., and that under the allegations of the amended petition plaintiffs had a right to proceed with its foreclosure.</p> <p>4. Attachment Bond — Attorneys may be Sureties. — The rule prohibiting attorneys from becoming sureties on certain bonds is directory only, and does not render their acts in violation of it either void or voidable. Following ICohn v. Washer, 69 Texas, 67.</p>

This was a suit of trespass to try title, instituted by appellee against appellant, and to rescind a contract previously entered into between them for the sale, or the exchange, of certain lands owned by them respectively.

<p>1. Cause of Action not Accrued When Suit Brought — Amendment. — Where plaintiff sues before his cause of action has accrued, the defect may be cured by an amendment filed after the accrual of his right of action.</p> <p>2. Charge of Court. — A charge of court which is without evidence to warrant it, and calculated to be misunderstood by the jury to the prejudice of the complaining party, constitutes error.</p> <p>3. Tender of Payment — Notes not Matured. — Where notes bear interest from date, the owner has the right to decline a tender of payment made before their maturity, and a tender to the original payee is not valid if made after he has lawfully transferred the notes to a third party.</p> <p>4. Estoppel — Case Stated. — B., holding notes of T. under an agreement that when the notes were paid he would convey to T. certain horses, transferred both the notes and the horses to a third person, claiming afterwards that he had forgotten the agreement with T., and also, that as T. knew of such contemplated transfer before it was consummated, and made no objection thereto, he was es-topped. Held, that T. would not be so estopped unless he knew of such contemplated transfer, and knew also that B. had forgotten it, and was acting under the belief that he consented to the transfer.</p> <p>5. Suretyship —Voluntary Payment by Surety. — W. gave his notes to B., and T. signed them as surety, under an agreement with B. that if he had to pay them B. would transfer to him certain horses. T. afterwards, without the consent of B., voluntarily paid the notes before maturity to a third person to whom B. had transferred them. Held, that this gave T. no right to claim a transfer of the horses from B., or damages in lieu thereof.</p>

<p>1. Setoff and Counter-Claim — Unliquidated Damages. —A claim for commissions at a specified rate agreed upon for the sale of certain machinery at a specified price and value, is not a claim of unliquidated damages, and may be pleaded as a setoff against a debt due by promissory note.</p> <p>2. Limitation — Matter in Avoidance Must be Pleaded. — Where the statute of limitation is well pleaded, and it can be avoided by matter bringing the case within some exception, such matter in avoidance must be alleged; and without such allegation, proof thereof is of no avail.</p>

<p>1. Evidence — Proof of Heirship by Declarations of Heir. — Before declarations of heirship made by an heir can be admitted in evidence, the relationship of the declarant to the family must be established by other evidence than the declarations; but such proof need establish only a prima facie case, and slight proof will suffice where there is identity of names, great lapse of time, and other corroborating circumstances.</p> <p>2. Practice on Appeal where Evidence Below was by Deposition. The fact that the evidence before the trial court was all by deposition, does not change the rule that the appellate court will defer to the lower court in weighing the evidence, and will not disturb the judgment unless it is clearly wrong.</p> <p>3. Registration —Tract of Land Lying in Two Counties. — Where a tract of land lies across the line of two contiguous counties, the record in either county of a conveyance of the tract is notice also as to the part lying in the other county.</p>

<p>1. Railway Company — Brakeman Ejecting Trespasser. — Where a trespasser improperly expelled from a train by a brakeman seeks to hold the company liable therefor, he must show that the acts of the brakeman were within the scope of the authority in fact conferred on him by the company, since the duty of expelling trespassers is, prima facie, the business of the conductor.</p> <p>2. Same — Extent and Execution of Brakeman’s Authority. — Where a brakeman has authority to order trespassers from the train, though not to actually put them off, the company will be liable for the terms and manner in which the order is given, and for the death of a boy thereby frightened into jumping from a moving train.</p> <p>3. Same — Implied Authority — Proof of Custom. — No express authority was shown from the company authorizing brakemen to order trespassers from its trains, but it was in evidence that this was a common practice, and no witness was offered to show that the company was not fully aware of such practice. Held, that the evidence justified a finding by the jury that such authority existed in fact, and the company was liable for its improper exercise.</p> <p>4. Same — Duty to Trespasser — Liability for Injury. — A railway company is liable if it uses unnecessary violence in expelling a trespasser from its cars, or compels him to leave while the train is in motion, by reason of which he is injured.</p> <p>5. Same — Charge of Court — “ Dangerous.” — A charge to the effect that the company would be liable for injury to a trespasser if he was compelled by a brakeman to leave the train “at a time and under circumstances rendering, it dangerous to do so,” held sufficient against an objection that it authorized a finding without reference to the degree of the danger.</p> <p>6. Same — Contributory Negligence — Discretion of Minor. — In a suit for the death of a trespasser, a hoy 17 years of age, caused by his attempt to leave the train while in motion, at the command of a brakeman, it is proper to charge that the question of his contributory negligence depends on whether a person of ordinary prudence similarly circumstanced and of his age and discretion, would have made the attempt.</p>

<p>Error from Bastrop. Tried below before Hon. H. Teichmueller.</p>

<p>1. Sale of Live Stock in the Range. — A sale of horses running on the range, without actual delivery, or a hill of sale, is a nullity and passes no title.</p> <p>2. Mark and Brand. — The owner of a mark and brand did not pass title to his stock horses running at large by causing an entry to be made upon the registry of marks and brands that he had transferred his mark and brand.</p> <p>3. Fraudulent Conveyance. — While courts will not interfere in behalf of a fraudulent vendor who has delivered the property, to recover possession of it, yet when the attempted sale is void and no actual possession was given, such contract presents no obstacle to the recovery of the property by the vendor when seized by the alleged vendee.</p> <p>4. Limitation — Possession.—Father and son were living together. The father made a paroi sale of horses on the range to the son. There was no change in the possession thereafter. Held, that such condition of the property did not show exclusive possession by the son, so as to pass title by limitation against the father.</p>

<p>1. Tax Sale — Statute Construed. —Section 14 of the Act of 1876, page 262, authorized the tax collector to levy upon any property of the tax-payer for the purpose of collecting his taxes due. A tax sale of part of the William Wills survey could be legally made to enforce taxes due from same owner but upon the Reuben Wills survey.</p> <p>2. Tax Receipts. — Where payment of taxes was made upon land other than that described in the receipt given, such fact of payment may be shown by other testimony.</p> <p>3. Possession. —See testimony held insufficient- to prove possession under the statute of limitation of five years. The defendant testified that she had been in possession and had paid the taxes for ten or eleven years. Upon cross-examination she disclosed that she had never been upon the land, and had never seen it; that she had leased it to tenants who had paid her rents therefor. Held, insufficient.</p>

<p>1. Agency to Collect Rents. — Action for rent; defense, payment; evidence, payment to an agent who had made the contract of lease for plaintiff. It was error to refuse an instruction touching such payment, that “ the fact that M. was the agent of plaintiff for the purpose of making the rent contract would not authorize him to collect the rent due unless he had special authority to collect.”</p> <p>2. Practice — Evidence—Evidence was offered by the plaintiff as rebuttal, and objected to because not in rebuttal of anything in the testimony of the defendant. It appearing that the testimony was incompetent and irrelevant, the exclusion was not error, although the objection was not well taken. See facts.</p>

<p>cited, 11 Am. and Eng. Encycl. of Law, 379.</p>

<p>1. Judgment for Costs on Dismissal. — The dismissal by the County Court of an appeal from a Justice Court, for want of jurisdiction, does not deprive that court of the power to render judgment for the costs of the appeal.</p> <p>2. Procedendo. — While on dismissal of an appeal to the County Court the court has no power to order a procedendo, yet that the order of dismissal contained the further clause that the Justice Court proceed with the execution of its judgment, is no ground for reversal. The law would require such action, and the recitation of it in the judgment was harmless.</p>

<p>Appeal from Tom Green. Tried below before Hon. J. W. Timmins.</p>

<p>Action for damages against a railway company for negligently permitting fires from its right of way, burning the grass and injuring the turf of lands of the plaintiff through which the road passed. Suit was filed September 14,'1889. Testimony showed that the fires extended over about 1839 acres of the land. The grass was worth about 50 cents an acre when burned, and it ordinarily takes three years for the turf to become fully restored after a burn. The land was used for grazing purposes, and worth 15 cents an acre a year rental.</p> <p>Evidence for defendant showed that the rental value was reduced about half by the burn. -Suit was by a lessor. Verdict for plaintiff for $1800 “ for damages to grass and land.” Judgment accordingly. Other matters discussed are set out in the opinion.</p>

<p>2. Apparent Inconsistency in Testimony. — Plaintiffs declared on a contract executed by defendants to the plaintiffs. The testimony showed that one of the plaintiffs, jointly interested with the others, had made it. This may be reconciled by assuming that the plaintiff who made the contract was acting for others like interested, and presents no variance.</p> <p>3. Variance. — Plaintiff's declared upon a contract payable upon the probate of a will (described). The testimony showed the money was payable upon the probate, and upon the defendants receiving the property devised them by the will; it further appeared by the testimony, that the will had been probated, and that the defendants had received the property bequeathed them before the institution of suit. Held, no variance, such as to defeat recovery. Under the petition and the testimony the plaintiffs showed right to recover.</p> <p>4. Immaterial Error — Clerical Mistake. — In the pleadings, one of several plaintiffs was named “ Jane Bonner, wife of James Bonner.” In the judgment, “ Jessee Bonner, wife of James Bonner,” appeared as one of the successful plaintiffs. Held, the mistake was not material, as it was evidently a clerical error.</p> <p>5. Contract made on Sunday. — Beham v. Ghio, 75 Texas, 91, adhered to, in holding that contracts made on Sunday, when not in a course of business prohibited upon that day by statute, are valid.</p>

<p>Error from Travis. Tried below before Hon. W. M. Key.</p> <p>The opinion sufficiently discloses the facts passed upon and the questions involved.</p>

<p>1. Waiver of Fraud. — Charge.—Suit to rescind a sale of a piano, brought by vendee on ground of fraud. Facts tending to show acquiescence by vendee. It was error to charge the jury that facts enumerated in the charge constituted a waiver of any right to rescind. The question of waiver was for the jury upon the entire facts. See example.</p> <p>2. Limitation of Four Years applies to Rescission of Contract. An action for rescission of a contract and to recover money paid thereon is barred by the statute of limitations of four years from the accrual of the cause of action. Rev. Stats., art. 3207.</p>

<p>Appeal from Llano. Tried below before Hon. W. M. Allison.</p>

<p>Fixtures — Stairway. — A tenant removed an inside stairway from a two-story building leased by him; he erected an outside stairway without the consent or promise from the landlord to pay therefor. Held, that such stairway was a fixture, and a charge assuming that it was not, was error.</p>

<p>4. Findings of Fact by Trial Court. — Where a fact is found by the trial court, and not excepted to, and the statement of facts does not conflict with such finding, it may be presumed that there was evidence supporting the fact. See example.</p>

<p>1. Witnesses Under the Rule in Civil Cases. — The necessity of placing witnesses under the rule is usually for the exercise of the sound discretion of the trial court, and unless such discretion is apparently abused it will not be revised on appeal. Especially this rule would obtain when application was made to place some of several defendants called to testify under the rule.</p> <p>2. Originals of Justice Court Records. — Original entries in a justice docket are competent evidence in the District Court, when relevant; e. g., a judgment entry under which land was sold, title to which was in litigation.</p> <p>3. Judgment and Foreclosure — Sheriff’s Sale. — A judgment in a Justice Court, and an order foreclosing a lien upon personal property, will susr tain a levy and sale of real estate; it being shown that the personal property could not be found, and that the defendant had pointed out the land as a levy.</p> <p>4. Imperfect Description in Sheriff’s Deed. — A sheriff’s deed was admitted, although the description was imperfect. This was held not to be error; (1) because it was competent as a fact upon the issue of fraud in a deed subsequently made for the land by the defendant in execution to the plaintiff; and (2) because the defendant in execution had pointed out the land, saying he wished the plaintiff to have it. This added the quality of a voluntary sale to that made by the sheriff.</p> <p>. 5. Judgment Lien — Indexing Necessary. — The firm name of plaintiffs in the index of a record of an abstract of a judgment is not a compliance with the statute requiring that the index “ shall show the name of each plaintiff and of each defendant in the judgment.” P.J. Willis & Bro. does not show the names of the members of the firm. Gullett Gin Co. v. Oliver, 78 Texas, 182.</p> <p>6. Pleading and Practice. — Action in trespass to try title. The petition described the land and set out the chain of title, attacking a deed from the common source as made in fraud of creditors, asking its cancellation. Defendants alleged that the land was not owned by said common source at time of the sheriff sale under which the plaintiff's claimed, was not subject to plaintiffs’ execution, and that the sheriff’s levy and sale and the assertion of title by plaintiff's was a cloud upon their (defendants') title; asking that the sale and deed be cancelled, etc. Held, that a decree cancelling the sheriff’s deed, and removing cloud, etc., was warranted under the pleadings.</p>

<p>Deposit. — See facts held sufficient to support a judgment for money deposited by plaintiff with the defendant. The defense was that the money was deposited with the defendant as agent for a co-operative association, as a general deposit, and that the association had authority to use the money, and did use it, and that it alone was liable.</p>

<p>1. Agreement not to Sue. — A note secured by deed of trust stipulated for payment of interest semi-annually, and that a failure to pay interest as it matured would mature the entire obligation. Failure to pay an installment was condoned by transfer of other securities. The next payment of interest was not made. After such failure suit was brought for the entire indebtedness. Held, that the security for the first default would not prevent the stipulated consequence of failure to pay a subsequent installment, and hence that suit was not prematurely brought upon such failure.</p> <p>2. Compound Interest — Usury. — The facts that the interest was to be paid by coupon notes semi-annually at the highest legal rate of interest, and that these coupons bear interest at same per cent after maturity, does not constitute usury.</p> <p>3. Forbearance to Sue. — In absence of a stipulated time in a contract to forbear the institution of suit upon the nonpayment of the interest, it will be construed for a reasonable time. It would not extend beyond the payment of the next installment, nor prevent the consequence of its nonpayment.</p> <p>4. Practice — Pleading. — Suit upon a moneyed obligation alleged to have ' matured upon nonpayment of interest due September, 1890. Defendant pleaded a contract to forbear suit upon the alleged failure. Plaintiff rejoined that the obligation had matured upon failure to pay the March ,1891, installment of interest, which was before suit. Held, the facts so appearing, that the suit was not prematurely brought.</p>

<p>Appeal from Llano. Tried below before Hon. W. M. Allison.</p>

<p>Appeal from Llano. Tried below before Hon. W. M. Allison.</p>

<p>1. Cases Adhered to. — Estell v. Cole, 52 Texas, 170, and Estell v. dole, 62 Texas, 703, adhered to as to sufficiency of facts pleaded excusing the payment of purchase money in an executory contract, so as to prevent its forfeiture at will of vendor.</p> <p>2. Practice. — Where there is conflicting testimony upon a material issue, it is error in the trial court to refuse to submit the issue to the jury. See example.</p> <p>3. Vendee’s Rights Begin at His Purchase. — A vendee of land by his purchase acquires no right of action for cutting timber from the land prior to his purchase.</p> <p>4. Incompetent Declarations. — In an action involving the right of plaintiff to rescind a sale of land to defendant for nonpayment of purchase money, the defendant pending suit sold the land. It was error to admit testimony as to defendant’s declarations made subsequent to his sale, no predicate having been laid to impeach the defendant as a witness.</p> <p>5. Relevant Testimony. — Vendee under bond for title was sued for the land by his vendor. Answer alleging conflicting grant and claim under it. Held, error to exclude such adverse grant and evidence of claim under it, as the testimony tended to support his answer excusing the nonpayment of purchase money.</p> <p>6. Subscribing Witness. — The absence of a subscribing witness must be accounted for before other testimony to the execution of a document is competent.</p>

<p>Mechanic’s Lien on Homestead. — Husbancl and wife contracted with plaintiffs for erection of a dwelling, with mechanic’s lien upon “the improvements so made and the lot or lots on which the same is situated.” The land was more particularly described as “ lot number 9, block 2, of Grooms' addition to city of Austin.” The house was partly on lot number 9 and partly upon lot number 10, also owned by the defendants. The wife did not know that the building extended upon lot number 10. In suit to foreclose the mechanic’s lien, held:</p> <p>1. Judgment of foreclosure should be entered against husband and wife upon lot number 9, and upon the entire improvements.</p> <p>2. Personal judgment against the husband.</p>

<p>1. Common Carriers. — The liability of a railway company as a common carrier attaches when property is delivered to and accepted by it for transportation. Article 283, Revised Statutes, providing that the trip or voyage shall be considered as having commenced from the time of the signing of the bill of lading, and the liability of the common carrier shall attach as at common law from ■and after such signing, does not change the common law rule.</p> <p>2. Same. — Where a railway company promises to provide cars at a certain time, in which to ship property, it would be liable for its failure to have them at the time promised for a breach of contract as an individual, and not as a common carrier.</p> <p>3. Measure of Damages. — Where damage is claimed against a railway company on account of a delay of one day in shipping cattle, after they are delivered to it for shipment, and for failure to properly water and feed them, whereby they were injured. Reid, that the measure of damages would be the difference in the market value if they had arrived at their destination in due time and in good condition, and the price they sold for one day later and in their damaged condition.</p> <p>4. Hearsay Evidence — -Value.—Testimony of a witness as to the market value of cattle at a certain point, based upon daily reports of the market at that point, is not hearsay evidence.</p>

<p>Appeal from Uvalde. Tried below before Hon. X- M. Paschal.</p>

<p>1. Evidence. — In an action by parents against railway companies for actual damages for killing their child, it is not error to admit evidence of the worldly condition of such parents, their wealth or poverty. Their circumstances became necessary as evidence, not as a basis for increasing or diminishing the amount of damages, but to show usefulness of child.</p> <p>2. Same. — Also, where company relies on contributory negligence of parents in allowing child to go upon its track, relevant to show their ability to employ a nurse, etc.</p> <p>3. Same. —Testimony of mother, that when she heard trains of defendant coming, she always looked to see where child was, and a short time before he was killed placed him in charge of her son, 13 years old, who was careful with him, is relevant to show that plaintiff was not guilty of contributory negligence.</p> <p>4. Diligence — Contributory Negligence. — It is the duty of servants of railway companies to use reasonable care and caution to discover persons on its track; and a failure to use such care is negligence for which the company is liable in damages for an injury resulting therefrom, unless such liability is defeated by contributory negligence of person injured or who seek to recover such damages.</p> <p>5. Same — Charge of Court. — A charge which states, if the jury believe certain facts to be true, then that such facts constitute negligence, is on' weight of the evidence, hence erroneous; but a charge that leaves it to the jury to determine from the evidence whether negligence has been established, is not on the weight of evidence, hence proper.</p> <p>6. Same — A charge which defines negligence and leaves the facts of the case to be found by the jury, and leaves them to say whether the facts fofind constitute negligence as defined, is not on weight of evidence.</p>

<p>1. Sufficiency of Description in Probate Proceedings. — An application by an administrator to sell a land certificate of his intestate, which describes the certificate as “ the certificate for one league and labor issued to his intestate;” the order of sale as, “ a land certificate for one league and labor of land which was granted to his intestate as a headright claim;” the report of sale as “ a certificate for one league and labor, the headright of said intestate;” the confirmation, “ a certificate for one league of land which was granted by the government of-to said M. C. Patton as a colonist.” Sis id, sufficient to identify the certificate when construed together and in connection with the patent made by virtue of the certificate.</p> <p>2. Presumption. — The patent to land issued on April 24,1855. The certificate by virtue of which it was issued was sold under order of court on the first Tuesday in March, 1855, but was not confirmed until May 6,1855. It will be presumed in absence of evidence that the certificate was unlocated at the date of order of sale, therefore personal property.</p> <p>3. Administrator’s Sale — Order of Court Confirming, Passes Title from. — A confirmation by the court of a sale made by an administrator under its order, relates back to and conveys title from date of sale, as if sale and confirmation were contemporaneous.</p> <p>4. Stale Demand in Trespass to Try Title. — When the1 owners of an equitable title seek recovery against trespassers without color of title, and who show no connection with the legal title, nor the time they had been in possession, if at all, the defense of stale demand is unavailable to defeat the right of recovery.</p>

<p>1. Description in Deed. — A certificate was issued for one league and labor of land. The grantee of the certificate conveyed an undivided one-third interest, describing certificate as for “ one-half league.” Held, the misdescriptive word one-half did not vitiate the deed. Reference was made in the deed to the certificate. Under the laws of Texas at the time the certificate was issued, a certificate for one-half league could not issue as a headlight. In a deed where several particulars are descriptive of the premises conveyed, if some are false or inconsistent and the true be sufficient of themselves, they will be retained and the others rejected. Therefore an undivided one-third interest in the league and labor located by virtue of the certificate was conveyed by the deed.</p> <p>2. Adverse Possession — Trust. — When the patent was issued to the grantee of the certificate he had the legal title of one-third, which he had conveyed in subordination to the equitable title as to which he was a trustee; and having never repudiated the trust in his lifetime, his heirs after his death could not repudiate it and recover the land from his vendees in possession of an equitable title superior to the legal title in the heirs. Gibbons v. Bell, 45 Texas, 423; Robertson v. Du Bose, 76 Texas, 10.</p>

<p>1. Charge of Court as to Facts Proved. — When a patent to land is in evidence in a case, the court should so state to the jury, and not leave it to them to find the fact that the patent was issued; because it would be submitting to them a question of law. It is not error for the court when facts are proved without contradiction to assume such facts, or to instruct the jury that they have been established.</p> <p>2. Joint Executors. — The principle that it requires the joint action of executors to convey property, applies to executors who are trustees, such as independent executors, and not to administrators and executors who obtain then-power from the court, under whose direction they act. A sale by them is in reality a sale by the court. Where there are two such administrators, an order to one to sell, sale made and reported by him and confirmed, will pass title against a collateral attack as effectually as if both had acted.</p> <p>3. Confirmation of Sale. — An entry made on the minutes of the court relative to a sale made under its order, not in terms confirming it, but merely noting that the return had been made: Held, that it was not error for the District Court to hold, in view of other facts, that it was a confirmation of the sale; and if it was error, such error was rendered immaterial by the court submitting to the jury the fact of the payment of purchase money by the purchaser, and the verdict of the jury from which it is necessarily implied.</p> <p>4. Sale of Located Certificate. — A sale of a land certificate is not subject to the objection that when sold it was personal property and not in possession of executor and present at the sale, when it appears that the certificate had been to some extent located, and the order of court under which it was sold authorized a sale of the realty as well as personalty.</p> <p>5. Limitation. — It is incumbent on plaintiffs, who plead disability to avoid the effect of the statute of limitations, to prove that at the date the adverse possession began, the disability existed, and that it continued to exist for a sufficient time to prevent the statute from having its effect. Thus, in case of coverture, to show when the marital relation began and when it ceased.</p> <p>6. County Courts — Judgments. — In matters pertaining to estates, County Courts are of general jurisdiction, and their orders and judgments are, on collateral attack, supported by presumptions, as other courts of general jurisdiction.</p>

<p>1. Contributory Negligence. — In actions for injuries caused by failure of duty of defendant, when the failure of duty and the injury are shown by the plaintiff, and there is nothing that implies that he brought on the injury by his negligence, the burden is on the defendant to prove that the plaintiff was guilty of such negligence, but when plaintiff’s own case exposes him to suspicion of negligence he must clear off such suspicion.</p> <p>2. Negligence a Question of Fact to be Found by Jury. — Error for court to group together certain facts, and instruct the jury if they find these facts to be true they will constitute negligence. The court should submit to the jury whether certain facts constitute negligence.</p> <p>3. Streets and Sidewalks. — There is no rule of law requiring a person walking the streets of a city to take a different course to his destination than the one on which a defect in the sidewalk exists. Cities and towns are responsible for the condition of their streets and sidewalks, and can not shield themselves from the charge of negligence in this respect by showing that a person injured might have gone to his destination by some other route.</p> <p>4. Same — Contributory Negligence. — If a highway or street is out of repair, or is obstructed, and this is known to the person injured, he is guilty of contributory negligence if he places himself in the way of it, provided as safe and as near a way is open to him.</p>

<p>1. Charge of Court — Elements of Damage. — In an action for personal Injuries, when there is no evidence as to the value of the medicines used by the injured party after and in consequence of his injuries, it was error for the court to instruct the jury to consider all expenses for medicines in estimating damages.</p> <p>2. Charge — Exceptions Thereto. — Article 1318, Revised Statutes, does not require a bill of exception to be taken to the charge, but it is filed and constitutes a part of the record, and is regarded as excepted to, and subject to revision for errors therein. Defendant had a right to present special instructions on the subject, but his failure to present them would not deprive him of the right to have none but the proper issue submitted to the jury.</p> <p>3. Charge Erroneous. — A failure by the trial court to give all the law applicable to the facts will not be ground for reversal, unless special charges are asked supplying the omission; but giving a charge upon a question about which there is an utter lack of proof is reversible error.</p>

<p>1. Ancient Instrument — Forgery.—Where a deed impeached has the recognized qualities of an ancient instrument, it prevails over the affidavit of forgery, and is admissible notwithstanding.</p> <p>2. What are Admissible as Ancient Instruments. — The rule which now obtains to determine what are admissible as ancient instruments is, that the instrument should purport to be more than thirty years old, come from a proper custody, and be free from suspicion; acts of ownership over instrument are not necessary.</p> <p>3. Same — Proper Custody. — In 1854, James Chamberlain transferred to Newton J. Chamberlain, Jr., his land certificate. Original transfer was by an order withdrawn from the General Land Office, and was before the court on trial of this case. There being no evidence as to when and how it came into the Land Office, that not being the proper place for it until certificate was located in 1874, held, did not come from proper custody.</p> <p>4. Same. — Had the certificate come from hands of Newton J. Chamberlain. Jr., or been found among his effects, or been filed in Land Office by his heirs or representatives, it would come from the proper custody to give it the verity ascribed to an ancient instrument.</p> <p>5. Estoppel. — To constitute an estate by estoppel, something more must be shown than mere knowledge by the owner of the existence of a forged title and delay in asserting his rights. Some affirmative act must be shown; as that he, by word or act, created the impression that the adverse title was valid, and thereby-induced another to act; or knowing that another was about to acquire the op-parent title in good faith, stood by and willfully suffered it to be consummated.</p> <p>6. Same. — Where the law allows one a certain time in which to assert his right, although informed of adverse claim, his delay does not of itself bar his title.</p> <p>7. Limitation. — A deed impeached as being a forgery, and its execution not proved, is admissible to support plea of five years limitation; not necessary for this plea that the deed should have conferred any title; simply required to have appearance of a valid deed.</p>

<p>1. Practice. — General and special demurrers to an amended original petition, which were filed at the term of the court at which they were disposed of, although not filed until two terms after the filing of the amended petition itself: Held, that rule 25 for District Courts had no application.</p> <p>2. Final Judgment — Demurrer.—The action of the court in overruling a demurrer is not a final adjudication, and it is proper for the trial court at a later term, on renewal of the demurrer during the pendency of the cause, to revise the former ruling if erroneous. Thus, general and special demurrers to an original petition were overruled, and at the third term of the court afterwards were sustained to first amended petition, which plaintiff claimed contained substantially the same cause of action as the original petition.</p> <p>3. Right of County Commissioners Court to Operate Ferries.— Revised Statutes, article 1514, which vest in the Commissioners Court the power to establish public ferries whenever the public interest may require, necessarily carries with it the power to construct and operate them; and Revised Statutes, title 87, chapter 6, does not restrict them to the only means of providing ferries for the public by granting license to individuals or corporations to operate them.</p> <p>4. License to Operate Ferries — Franchise.—Chapter 6, article 87, Revised Statutes, authorizing the County Commissioners Court to grant license to individuals to operate ferries, does not vest in the licensee rights superior to the power of the court itself to establish ferries.</p> <p>5. License. — An individual licensed to run a ferry would not be entitled to damages if the Commissioners Court granted license to a rival; therefore, would have no greater right, if, instead of granting license to another, the court provided directly for constructing another ferry.</p>

<p>Illegal Fences — Negligence—Nuisance.—A barbed wire fence along a public highway, even in an incorporated city, unless prohibited by ordinance, is not a nuisance per se, and the owner of such a fence will not be liable in damages for stock injured on same, when guilty of no other negligence in regard to same.</p>

<p>1. Mandamus. — When a claim against the county has been allowed by the Commissioners Court and a warrant for its payment ordered to be drawn, a petition for mandamus to compel the issuance of the warrant can not be defeated on the ground that there is an adequate remedy at law by suit against the county. A condition precedent to such suit is the presentation of such claim to the Commissioners Court for allowance, and its rejection of the same.</p> <p>2. Judgments — Order of Commissioners Court. — An order of the County Commissioners Court in auditing and allowing a claim against a county is a judgment, and is as conclusive of the county’s liability as though the adjudication had been made by a court of general jurisdiction; and to avoid or set aside such order the jurisdiction of the District Court must be invoiced; and it can not be collaterally attacked by the county judge in mandamus proceedings to compel him to sign warrant.</p> <p>3. Mandamus will only lie against an officer to compel him to perform a duty which is clearly defined and enjoined by law, and purely ministerial; and where the county clerk is authorized to issue the warrant, mandamus will not lie against county judge to sign warrant.</p> <p>4. Construction of Statute. — Article 998, Revised Statutes, provides that the county treasurer shall pay no money out of treasury unless upon a certificate or warrant from some officer authorized by law to issue same. Held, that by this statute the county judge is not the only officer vested with authority to issue a warrant on a claim allowed by Commissioners Court against the county. Article 986 does not impose upon the county judge alone the duty of signing warrants or claims allowed against the county. Appellee’s claim was allowed by the Commissioners Court under a statute which provided they should direct its payment. It was not necessary to validity of warrant that the county judge should sign it. A warrant for the amount issued by the county clerk was sufficient to authorize the county treasurer to pay same.</p>

<p>Injunction —Sales Under Execution, when Restrained. — Where a judgment was rendered foreclosing a vendor's lien on land, which the plaintiff therein assigned, and afterwards released the lien of record, and the assignee (though paid the amount he paid for the judgment) had execution issued, and the land advertised for sale: Held, the judgment and execution being valid on their face, such as would require paroi evidence to show their invalidity, the sale thereunder would cast such a cloud upon the title of the true owner of the land as a court of equity should interfere to prevent. Injunction perpetuated, and judgment cancelled. Following Carlin v. Hudson, 12 Texas, 202.</p>

<p>Appeal from Uvalde. Tried below before Hon. T. M. Paschal.</p>

<p>1. Judgments in Trespass to Try Title Against Receivers. — In a judgment in which land is recovered against the receivers of a railway company, it is proper for the court to withhold writ of possession for the land, at least so far as the receivership is concerned.</p> <p>2. Same. — If plaintiff in such judgment desired possession, the court in which receivership was pending, on his application, would have ordered its delivery to him, or ordered the property condemned, in which case he would have been compensated.</p> <p>3. Same. — Still not entitled to possession after property is restored to the company by the receivers, because the judgment is against the receivers and not the railway company.</p> <p>4. Same. — If plaintiff had joined the company as defendant with the receivers, on obtaining judgment for the land he would have been entitled to possession on restoration of the property to the company.</p> <p>5. Receiverships and Assignments by Insolvent Debtors. — The court, by means of the receivership, obtains control and management of the property; and unlike an assignment made by an insolvent person or corporation by which the title is expressly conveyed, there exists no such relation between the owner and the receiver which admits of a judgment in respect to the title to property against the latter being res adjudieata as to the former.</p>

<p>1. Contested Municipal Elections — Jurisdiction of the District Court. — Where a person is elected and qualified as mayor of a city, the office at the time having no salary or compensation, but the city council afterwards, under a provision of the charter, fixed the salary at f1200: Held, that this invested the office with a value which entitled the person to his action in the District Court for the trial of the right to the office.</p> <p>2. Contest — Power of City to Determine, Final. — Where the charter of a city vested in the city council the power to judge as to the election and qualification of its members, including the office of mayor, their action in deciding a person elected ineligible to the office of mayor, no salary being attached to the office at the time, was a final determination of the matter, and was not rendered void by their action afterwards, fixing a salary to the office and ordering another election.</p>

<p>1. Plea — Affidavit—Amendment.—Upon exception to the affidavit of a plea of failure of consideration being sustained, the exception only applying to the form of the affidavit, it was proper to permit the affidavit to he amended; it merely went to the affidavit, the facts having been sufficiently pleaded.</p> <p>2. Guaranty. — After the execution óf the notes to appellant he induced appellee to endorse the notes in order that he might raise money. Appellee received nothing for signing the notes, nor did any one else. Held, that when the consideration between the principal and creditor has passed and become executed before the contract of the guarantor, and such guaranty was no part of the inducement to the original debt, such consideration is not sufficient to sustain such contract of guaranty.</p> <p>3. Surety — Subrogation.—When one surety pays the debts of a firm he is subrogated to the rights of the creditors as to the debts thus paid, and may sue on them; and when sued by the firm or any member of it for debt, may offset it with the debts paid by him.</p>

<p>1. Pleading — Exception. — In an action of trespass to try title against a county, an answer of the defendant simply alleged that the premises sued for existed in the limits of the county as duly established roads, without allegation of any proceedings in the Commissioners Court relative to them; a special exception to the answer for not setting out fully the proceedings, was assuming something that did not appear, and was properly overruled. The exception should have been to the answer, for not setting out how the roads became public.</p> <p>2. Same — Evidence.—The defendants were not restricted to showing by their answer that the roads were established by proceedings in the Commissioners Court, but could show that they were established by grant, prescription, dedication, limitation, or in any other lawful way.</p> <p>3. Due Process of Law. — The talcing by the Commissioners Court of a citizen’s land for road purposes, without notice to him, and granting him compensation therefor, is not due process of law as guaranteed by the Constitution to every citizen before his property is appropriated to public use.</p> <p>4. Jurisdiction —Commissioners Court — Order Laying out and Opening Public Roads. — The Commissioners Court in its orders laying out and opening public roads must comply strictly with the statutes relative thereto. Thus the service of notice on the person over whose land the proposed road is to run, as required by article 4370, Revised Statutes, is indispensable, in order for the court to obtain jurisdiction, and the fact of service must appear affirmatively of record, or the orders laying out and opening the road are void.</p>

<p>1. Hearsay Evidence — Declarations as to Pedigree. — A son may testify as to declarations made to him by his mother, as to who was her father, and who were his children, when the declarant is shown to be dead, and the declarations made before the particular controversy arose, and the evidence shows relationship of declarant, independent of the declarations.</p> <p>2. Adverse Possession — Cotenancy. — Where grantees take possession pf land under deeds wherein the grantors designate themselves as the only heirs of the original owner of the land, their possession is adverse to the other heirs of the original owner from the date of recording their deeds. The recitals in the deeds amounting to a repudiation of cotenancy.</p>

<p>Appeal from Frio. Tried below before Hon. R. W. Hudson.</p>

<p>1. Rescission of Contracts for Fraud. — In an action in equity by a defrauded party for a rescission of a sale of land and cancellation of a deed obtained by fraud, it is not necessary for him to tender back the consideration received by him before he brings his suit, but simply offer to do so in his petition. At law he must restore, or offer to restore in good faith, before he can maintain his action.</p> <p>2. Same— Pleading. — It was not error to sustain demurrer of defendant Piggott, when the petition did not allege he had any notice of the fraud of his vendor in acquiring the property.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Record of Abstract of Judgment. — Revised Statutes, article 3158, which provides how abstracts of judgment shall be recorded and indexed, was substantially complied with by placing the name of defendant in the judgment in alphabetical order on the index, with the name of the plaintiff after it, and the number of page where recorded, though there be. nothing to indicate which was plaintiff and which was defendant, and no abbreviation for “ against” or “versus.”</p> <p>2. Judgment Lien, Priority of over Unrecorded Deed. —A judgment lien takes precedence over a prior unrecorded deed of the judgment debtor of which the plaintiff in the judgment had no notice, either actual or constructive.</p> <p>3. Assignment for Benefit of Creditors — Judgment Lien. — Where a debtor makes an assignment for the benefit of his creditors, a creditor, especially one who takes under the assignment, can not by obtaining judgment against the debtor fix a lien upon land and subject it to sale under execution thereon, which the debtor had conveyed by an unrecorded deed before the assignment, retaining a vendor’s lien to secure purchase money, which was subsequently paid to the assignee — he releasing the land; the debtor’s deed to the assignee being recorded before the filing and recording of the abstract of judgment.</p>

<p>1. Claim Bond — Liability of Sureties — Redelivery to Sheriff.— When property is levied on by execution, and claim made thereto, and oath and bond returned into the proper court, for the trial of the right to the property, the claimant can not relieve his sureties from liability on the bond by returning the property to the sheriff before the case is tried.</p> <p>2. Second Oath and Bond Illegal. — When the property was claimed, and by the sheriff delivered to the claimant, and afterwards the claimant, before the trial of the case, returned the property to the sheriff, and then presented to him another affidavit and bond for the property, which were by the sheriff returned into court, and the case docketed, and the claimant declined to prosecute the first case, and it was dismissed at his costs, and he procured an order in the last case that plaintiff take nothing and defendant recover costs: Held, the sheriff not being authorized to receive the property when tendered to him, the oath and bond tendered to him were unauthorized, and their return to the County Court of Webb County conferred no jurisdiction on the court, and the proceedings thereunder were null and void.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Instructions to Jury — Burden of Proof. — In a suit to recover land which the plaintiffs claimed was paid for with the proceeds of their property, error for the court to instruct the jury, that plaintiffs must show this fact affirmatively to their satisfaction, as it placed upon them a greater burden in making their proof than the law requires. Fordyce v. Beecher, 2 Texas Civ. App., 29.</p> <p>2. Adverse Possession — Coverture. — A married woman will not lose title to land through a possession first asserted to he adverse during her coverture, by the widow of the original occupant, who, during his lifetime and at the time of the owner’s marriage, held in subordination to her title.</p>

<p>1. Liquor Dealer’s Bond. — To recover a penalty prescribed by statute, in whatever form, the party seeking it must bring himself strictly within the terms of the act. In this case the bond declared upon was not made payable to the State of Texas, as required by the Act of 1887, but to the county judge, as required by the repealed Act of 1881, and it is held that the petition is bad on exception.</p> <p>2. Same — Penalty—Construction.—The character of bond required of liquor dealers by law, in so far as it affects a recovery by the State for the use of the county, is penal in its nature, and in a suit for the penalty by the State it should be more strictly construed than a voluntary bond which would be good at common law.</p> <p>3. Same. — The very object of the statute in making the bond payable to the State was that suit might be brought in the name of the State, for the use of the county, for a recovery of the penalty; and without its being so payable the State has no interest in the suit, either as beneficiary, trustee, or otherwise.</p>

<p>1. Suit to Set Aside Judgment. — In an action to review a judgment rendered at a former term, and to enjoin proceedings thereunder, it is not enough for the party seeking relief to show irregularities, that injustice has been done him, and that he has a meritorious cause of action or defense; he must also show that he was prevented from prosecuting his cause of action, or interposing his defense, by fraud, accident, or the acts of the opposing party, wholly unmixed with any fault or negligence of his own.</p> <p>2. Change of Venue — Jurisdiction.—When the venue of a case pending-in the County Court is changed to a county whose County Court is abolished, it is proper for the District Court of the county to which the cause is removed to entertain jurisdiction.</p> <p>3. Same — Reconvention.—When the case reaches such county to which it is removed, the jurisdiction of the District Court attaches, and is the same as to the matters involved as though the action had originally been brought in that court, and no notice of a plea in reconvention filed in the District Court after change of venue is required.</p>

<p>1. Land Certificate — Parol Transfer — Minor.—An unlocated land certificate is personal property, and under certain circumstances is the subject of a paroi sale or gift. The fact that the transferrer is a minor does not render the transfer void, but only voidable, and subject to be set aside by him after he becomes of age. Testimony of the stepmother that her minor stepson 11 relinquished to me all his right to the Edward Patterson certificate, saying that he wanted me to have all his father had in Texas," is insufficient to establish either a sale or paroi gift.</p> <p>2. Divorce — Evidence.—It was sufficient to authorize the submission to the jury of the question as to whether the parties had been divorced, when it was shown that the husband and wife had separated in 1835 or 1836, the husband coming to Texas, and living separately until 1840, when he again married in Texas, and the wife married in Alabama, and in addition to which there was in evidence an act of the General Assembly of Alabama which recited the divorce and dissolved the marriage.</p> <p>3. Limitation — Suspension — Tacking Disabilities. — Mrs. Harvey, one of appellants, was a minor up to November 26,1867, when she married. Reid, at the time of the marriage the statute of limitation was not suspended, and it began to run against her from that date. It was not till the adoption of the Constitution of 1869 that the statute of limitation was suspended from the 28th day of January, 1861, to the 30th day of March, 1870. The object of the Constitution of 1869 was merely to prevent the suspended period from being taken into account in the computation of the time required by the statute to bar an action, and was not to restore a disability that had already been removed, or to allow the tacking of disabilities so as to furnish protection for an indefinite time to a party against whom the statute had once begun to run.</p>

<p>1. Administrator — Application to Sell Land — Presumption.—The probate records showed no application for an order to sell the land, but the orders of sale recited that application had been made, and facts enough appeared to justify the court in assuming that the jurisdiction of the court over the estate was properly exercised, and that the administrator was duly appointed and authorized to act in the capacity in which he was recognized by the court. Under such circumstances, independent of the recitals in the orders of sale, the presumption must be indulged that the court acted regularly, and therefore that application for the order to sell was made and presented to the court.</p> <p>2. Same — Confirmation of Sale. — In this case, no return or report of the sale by the administrator appears among the proceedings: but see recitals in the orders of the Probate Court, and facts which raise in a collateral attack the presumptions, first, that the inventory filed by the administrator, though not now among the probate records, was before the court at the time the sale was ordered, and that the lands ordered to be sold were fully identified to the court by the application and inventory; and second, that the court confirmed the sale of the land, as embraced in the administrator’s deed, to the grantee therein. In such case, the administrator's deed, which formed a link in appellant's chain of title, should have been admitted in evidence.</p> <p>3. Probate Judgments — Presumptions.—It is the policy of the law to uphold the proceedings of our Probate Courts, and their judgments in the administration of estates entrusted to their control by law are to be regarded, in collateral attacks upon their validity, as entitled to the same presumptions as the judgments of any court of record of general jurisdiction.</p> <p>4. Administrator’s Sale — Consideration.—The fact that the administrator’s deed shows that the consideration which passed was the payment of a debt due by the estate to the grantee, does not render the sale void.</p>

<p>1. Tenants in Common, Rights of. — One tenant in common has the right to sell marketable timber growing on the common estate, and pass a clear title thereto to the purchaser, and no right of action accrues to the other cotenants against the vendee who carries off and uses the same.</p> <p>2. Case Distinguished. — This case distinguished from Gillum v. Railway, 4 Texas Civil Appeals. In the latter case a trespass was committed, and all the cotenants were entitled to recover jointly, and one could not sue and recover to the exclusion of another; in this case no trespass was committed, but a legal license exercised.</p>

<p>Conversion — Bailees—Ratification—Landlord and Tenant Act.— Horseley, the owner of the land, who under the contract between him and Turner, the maker of the crop, was entitled to one-half thereof, notified the public ginners at the beginning of the cotton season that the cotton raised on his farm was his, and that they must not allow it to be removed from the gin by Turner, or any one else, without his written order. Afterward the ginners, without permission of Horseley, delivered ten bales of cotton, which had been entered on Their gin books in the names of Horseley and Turner, to Turner, who sold the same and applied the money to his own use. In a suit, after demand, by Horseley against Turner and the ginners for conversion of the ten bales, held:</p> <p>1. Under the farm contract, Horseley had a specific interest in the cotton itself, and not a mere lien thereon.</p> <p>2. In so far as Turner is concerned, he would be liable for conversion, whether he went on the place as a tenant or as an employe or servant of Horseley.</p> <p>3. The ginners were bailees for hire of both Horseley and Turner, and if against the protest of Horseley they turned over the ten bales of cotton to Turner, who converted the same, the ginners are liable to Horseley for the value of his half of the cotton.</p> <p>4. The landlord and tenant act was not intended to take away the right of the parties to make any contract they may deem proper in regard to their ownership in the crops raised. The law will protect in the very property itself the specific interest of the landlord reserved in the crops grown upon his land.</p> <p>5. That Horseley had accepted from the attorney of Turner, prior to the conversion of the ten bales, a part of the proceeds of three bales previously taken off by Turner, would not take away his right to hold the ginners responsible jointly with Turner for his interest in the ten bales.</p>

<p>1. Administrator’s Deed — Evidence. — In an action of trespass to try-title, it is error to admit in evidence a deed purporting to be made by an administrator under an order of the court, conveying a land certificate, when the order of the court was not produced, or its absence accounted for and its existence proved.</p> <p>2. Same —Proof of Instrument by Witness. — The certificate of the officer was: “ G. W. Scott, one of the subscribing witnesses, who being sworn, saith that he either saw John Lytle subscribe his name to the within instrument and acknowledged the same to be his act and deed, or that the said John Lytle requested him to witness the same after he had executed it and acknowledged that he signed, sealed, and delivered the same,” etc. Held: Being in the alternative, the acknowledgment fails to comply with the statute, and is of no effect. It was error to admit the deed in evidence.</p> <p>3. Trespass to Try Title — Evidence.—The patent to a league and labor survey, and also a deed to 160 acres out of the league and labor, were introduced in evidence; the other muniments of title introduced after that described the land in litigation as lot number 12 in block number 1 in the town of Canton. To connect appellee’s chain of title to said surveys the lot should have been identified as a part thereof; and the evidence failing in this, it was error to render judgment for appellee.</p> <p>4. Agent to Sell County Lands —Power.—A deed made in 1859 by a commissioner appointed by the Commissioners Court to sell lots belonging to the county, was silent as to the manner of making the sale, but the order appointing the commissioner restricted his power to such only as the court itself had to convey real estate belonging to the county. In a collateral attack, and after such long lapse of time, it will be presumed that the power granted was properly exercised, and the lot sold at public auction.</p> <p>5. Lost Deed — Contents — Evidence.—The testimony of a witness who has no recollection of ever having seen the lost deed is incompetent as to its contents.</p>

<p>1. Telegram — Agent. — A telegraph operator who is requested by the sender to write, and at his dictation writes the message, is acting for the sender and not for the company in preparing the message, and the appellee, to whom the message was addressed, can not complain of his act in writing it upon a form usually used for the purpose, or in making a mistake in writing it down.</p> <p>2. Contract, Breach of — Jurisdiction.—The form upon which the message was written contained this printed stipulation: “ This company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company when necessary to reach its destination.” The message was received by appellant at Ladonia. in Fannin County, and was to be transmitted to appellee at Detroit, in Red River County. Appellant had no line extending into Red River County,, and must necessarily have delivered the message to the Western Union Telegraph Company, at Paris, to be by it transmitted to its destination in Red River County. Held, the stipulation above quoted would deprive the courts of Red River County of jurisdiction over appellant in a suit for the breach of the contract.</p> <p>3. Same. — If this proposition were not true, still if the operator made a mistake in writing down the message, and addressed it to Detroit, Michigan, instead of Detroit, Texas, the mistake not being chargeable to the company, the contract as thus written would not authorize the court in Red River County to take jurisdiction of appellant in a suit based thereon.</p>

<p>1. Judgment Without Service — Minor — Guardian ad Litem.— Upon appeal or writ of error from a judgment against minor defendants, divesting title out of them, upon whom no service of citation was effected, the judgment will be reversed, although it appear that a guardian ad litem was appointed, and that he filed an answer for the minor defendants and represented them upon the trial.</p> <p>2. Same — Collateral and Direct Attack. — The want of service under such circumstances would not be fatal to the judgment on collateral attack. An appeal or writ of error is not a collateral, but a direct attack upon the judgment.</p>

<p>1. Appeal — Final Judgment. — After execution has been issued and levied upon property,' and a lien thereby secured to the plaintiff in execution, an order quashing the execution is a final disposition of the rights of the plaintiff acquired under the levy, and a final order from which an appeal can be taken.</p> <p>2. Jurisdiction — Void Order after Adjournment. — See statement of the case for an order made by the court of its own motion which, if construed as merely an order setting aside an order overruling a motion for a new trial made at the previous term, even, if effective, would not have vacated the judgment in the case. But the order is held utterly void. The judgment was unaffected by it, and it was error to quash the execution.</p>

<p>Negligence — Risk Assumed — Burden of Proof. — Appellee sued appellant for damages for personal injuries received by him while engaged as appellant’s foreman of a surfacing gang employed to keep in repair a portion of its track, and resulting from his falling from a hand car passing over a portion of the track which it was his duty to keep in repair. He alleged negligence on appellant’s part; first, in keeping its roadbed in bad condition, which caused the injury; and second, in furnishing a defective hand car, with broken brakes, so that the same could not be controlled, and which, after appellee fell, ran into the car on which he had been riding, pushed it upon him, and caused his injuries. Meld:</p> <p>1. If appellee was employed by appellant, and had under him a number of hands, and it was his duty to keep the roadbed in proper condition and repair, and he did not do so, and knew of the bad condition of the road at the place where he was injured, before he attempted to pass over the same, and was injured by reason thereof, he took upon himself the risk, and can not recover from the company for injuries received by him caused by such condition of the track.</p> <p>2. The servant seeking to recover for an injury takes the burden upon himself of establishing negligence upon the part of the master, and due care upon his own part. Appellee having failed to show that his injury was caused by either of the alleged grounds of negligence on the part of appellant, the judgment is not sustained by the evidence.</p>

<p>1. Evidence. — Testimony without pertinency to any issue, and calculated to prejudice the minds of the jury, should not be admitted. See example.</p> <p>2. Deed — Construction. — A deed purporting to convey “ all our right, title, and interest in and to all the property, real and personal, consisting of lands and stock, farming implements, and all other property, of any and all descriptions, owned or possessed by the said Andrew B, Terry at the time of his death, and for a more particular reference in regard to the lands we refer to the records of the county clerk’s office of Hunt County,’’ was made to J. W. Terry by the other heirs and the surviving wife of Andrew B. Terry. The property alluded to was the community property of Andrew B. and Margaret Terry. I-Ield, it is evident from the language of the deed, as well as from the contemporaneous circumstances, that the widow intended thereby to convey all her interest in the property, and not merely the half-interest of Andrew B. Terry.</p> <p>3. Deed Absolute — Trust —Paroi Evidence — Charge of Court.— In order to engraft by paroi a trust upon 'a deed absolute on its face, the proof must be clear and certain, and it is not error to so charge the jury. •</p> <p>4. Charge of Court. — As the right to recover one tract of land did not necessarily depend upon the right to recover one-half of the other property involved in the suit, the charge which, in effect, instructed the jury that in order for appellants to recover the one tract they must find also for them the half of the other property, was, when a special charge embodying proper instructions on the point was refused, an error requiring a reversal.</p>

<p>1. .Limitation — Pleading—Trespass to Try Title. — The defendants in their answer pleaded the value of the services of the attorneys, under whom they held, and to whom the land had been deeded by some of the heirs for legal services in the recovery of the league in the litigation which ended about 1800, and prayed that if the land were recovered by the plaintiffs, that they have judgment for a reasonable sum for such services, and that the same be adjudged an equitable lien on the land. To which a demurrer setting up limitation was interposed. Held, the demurrer should have been sustained.</p> <p>2. Same — Parties.—As defendants claimed the specific land sued for, it was error to overrule the special demurrer to that part of the answer which set up that all the parties were tenants in common with all the different owners of the entire league, and asking that the suit abate until all such part owners of the whole league, embracing the land sued for, be made parties.</p> <p>3. Evidence. — The testimony of the husband respecting deeds executed jointly by him and his wife, “ that he requested his wife to join with him in the deeds, in order to convey the interest inherited by her from her father’s and mother’s estate,” is inadmissible. The deeds were the best evidence, and could not be explained by paroi testimony.</p> <p>4. Wife’s Separate Estate — Evidence. — See facts under which it is held, that the husband had no authority to ratify a contract never entered into by his wife, or to bind her separate estate fourteen years after the contract was made, without being joined by her with privy acknowledgment. Testimony as to the wife's repudiation of such unauthorized acts of her husband was admissible. The deed executed by the husband for himself and as agent for his wife was binding upon the husband, and was properly admitted in evidence against him, but the court should have instructed the jury that it was not binding upon the wife, either as a conveyance of her separate estate or in estoppel.</p> <p>5. Evidence — Abstract of Title — Power of Attorney. — Upon proper notice defendants filed an abstract of their title. At the trial, a power of attorney not included in the abstract was admitted in evidence over objection. Held, error. Moreover, a power of attorney giving authority to bargain, sell, and convey land for money or such other consideration as to the grantee therein may seem to the grantor’s advantage, and to receive the pay or consideration therefor, confers no authority upon the agent to convey the land without considera- ' tian. or in settlement of a pre-existing claim, either legal or equitable.</p> <p>6. Void Contract — Partition.—See opinion for a contract to give attorneys an interest in land for their services in recovering it, held void as to the heirs, and a deed subsequently made to the attorneys held not a partition.</p> <p>7. Married Women — Estoppel in Pais. — A married woman can not be estopped in pais unless her acts were intentional and fraudulent.</p> <p>8. Limitation — Tacking Disabilities. — The period of limitation can not be extended by the connection of the disability of minority with that of coverture.</p>

<p>Error from Dallas. Tried below before Hon. R. E. Burke.</p>

<p>1. Conversion — Measure of Damages. — Where property is wrongfully seized and taken from the owner by the sheriff by virtue of an execution, the owner can recover for the value of same at the time of the seizure, with interest; and it is immaterial, as between the judgment creditor and the owner of the property, that the owner bought the property at the sheriff’s sale.</p> <p>2. Appeal for Delay. — See facts held to justify assessing 10 per cent damages for delay. Lightfoot, Chief Justice, dissents as to awarding damages for delay.</p>

<p>1. Evidence — Interrogatories to Opposing Party. — In a suit by Nelson against the railway company for damages for injuries resulting from being ejected from its train, the railway company propounded interrogatories to Nelson and sought to have his ex parte depositions taken. The mode prescribed by the statute for taking such depositions was strictly pursued, and certain of the interrogatories were pertinent to the issues pleaded, and were so framed as to be susceptible of being taken as confessed. Held:</p> <p>1. No excuse being offered for Nelson’s failure to answer said interrogatories, they should have been taken as confessed, and it was error to allow Nelson, over objection of the railway company, to testify in contradiction thereto.</p> <p>2. That Nelson was cross-examined oy the railway company upon the trial does not cure the error. A right guaranteed by the statute was denied, and the ruling was calculated to injuriously affect the rights of the railway company.</p> <p>3. Although the law makes no provision by which the depositions of a corporation can be taken, and the depositions of its managing officer can not be taken in an ex parte manner so as to bind the corporation, this does not exempt others who are litigating with a corporation from the operation of the statute.</p> <p>2. Charge of Court — Weight of Evidence. — See charge of court held a reversible error, because it assumed that Nelson had been ejected from the train, that being the main controverted issue raised by the pleadings and evidence.</p> <p>3. Appointing Physician to Examine Injured Plaintiff. — It would not be error to refuse to require an injured plaintiff, in such case, to submit to a physical examination respecting the extent, character, and permanency of his injuries, by a physician named by the railway company; it is left undecided whether the court should in any case require a plaintiff to submit to such examination.</p>

<p>1. Deed of Trust — Partnership — Dissolution. — A partner has the power to mortgage the firm property to secure the payment of partnership debts. That a deed of trust, in such ease, provided for attorney fees, and was executed by one partner to secure certain preferred creditors after dissolution, resulting from the sale by another partner of his interest, does not render it void.</p> <p>2. Same — Power of Partner After Dissolution. — The sale by one partner of his interest in the firm business dissolved the partnership and conveyed to the vendee the interest of the retiring partner in the firm assets which should remain after the satisfaction of all partnership obligations. It did not diminish the power of the other partners in the administration of the assets for the purpose of paying the partnership debts.</p>

<p>Appeal from Bowie. Tried below before Hon. John L. Sheppard.</p> <p>By agreement the briefs of the case of Otto Heinze & Co. v. M. Marx et al., supra, were filed in this cause. For briefs and facts additional to those stated below, see that case.</p>

<p>1. Rights of Partners — Firm Assets. — Each member of a partnership, so long as it exists, has a quasi lien upon the assets of the firm for the payment of the firm debts before the payment of any individual debts of any member of such firm.</p> <p>2. Rights of Firm Creditors. — This quasi lien enures to firm creditors, and when the firm becomes insolvent, the creditors of the firm, through the partners, may enforce the quasi lien in their favor, unless the same has been lost or waived by the individual members of the firm.</p> <p>3. Mortgage to Secure Individual Debts. — An individual member of ■ an insolvent partnership can not execute a valid mortgage upon the partnership assets to secure his individual debts, without the consent of the other members of the firm. The legal effect of the chattel mortgage in this case is held to hinder, delay, and defraud the creditors of the firm.</p>

<p>Partition — Ratification — Sale of Distinct Portion of Survey by a Tenant in Common. — A league and labor land certificate was the community property of Thomas F. Edwards and his wife. Edwards died in 1834, and his undivided half-interest in the certificate descended to Marcus, Leonidas, and Virginia, the children of him and his surviving wife, Esther. Marcus died in 1854, intestate and without wife or issue. Leonidas died in 1852, leaving his widow, now Mary A. Sanders, and his daughter, now Cora E. Williams. In 1851, Esther, the surviving wife of Thomas F. Edwards, and Virginia, for the services of John L. Farquhar in locating the certificate and procuring patent upon the league and labor of land, conveyed to him by warranty deed an undivided interest of 2300 acres in the land. In July, 1856, a partition was made by Farquhar and said Esther and Virginia, whereby the north half of said tract of land was set apart to Farquhar, and the south half, in subdivisions, to Esther and the heirs. In a suit by the heirs of Thomas F. Edwards for a portion of the tract partitioned to Farquhar and held through mesne conveyances under him by appellees, held:</p> <p>1. As the interest of Esther, the surviving wife of Thomas F. Edwards, and Virginia was in excess of the amount deeded to Farquhar, the conveyance was valid and binding and fixed title in Farquhar.</p> <p>2. Appellants Cora Williams and her mother, Mrs. Sanders, not having joined in thepartition, even though their portion was set apart to them of equal quantity and value, would not be bound by it unless they subsequently accepted it and ratified the partition. See facts held to show ratification and estoppel.</p> <p>3. A sale by one tenant in common of a distinct part of a larger tract of land will be protected and the part so sold set apart to the vendor, where it does not exceed the share to which the cotenant vendor was entitled, and the equities among the tenants in common should be adjusted out of the remainder of the tract, if it can be done.</p>

<p>1. Conversion of Mortgaged Property — Nonresident.—When a nonresident debtor has property in this State, a resident creditor can proceed directly against the property to collect his debt; and where a third party converts to his own Use property on which there is a lien, the creditor can proceed against him for the value of the property, not to exceed a sufficient amount to pay such debt.</p> <p>2. Same — Pleading.—The plaintiff alleged the insolvency and nonresidence of the debtor, and conversion by the defendant of the mortgaged property. These allegations show a good cause of action, and the exceptions should have been overruled.</p>

<p>1. Judgments Voidable and Void. — It is difficult to draw the line of demarkation between judgments void and voidable. If voidable only, it is conclusive against all whose rights it may affect until reversed or vacated by a court of competent jurisdiction on proceedings instituted directly for that purpose. But if the record shows that the court which rendered the judgment which is attacked was without power to render it, then it is void, and may be so treated by any court in any suit. A judgment upon citation for “ the unknown heirs” of the supposed decedent, declaring the escheat of the estate of a living man, is void.</p> <p>2. Escheat — Insufficient Citation. — The method provided by statute for escheating estates prescribes that a citation shall be issued for all persons interested in the estate. A citation for “ the unknown heirs” of the owner of the estate is fatally defective. If the owner was dead and left surviving him either heirs or devisees there could have been no escheat, and his unknown heirs were therefore not the only persons who might be interested in the estate.</p> <p>3. Evidence that the Owner was Alive. — There was no error in permitting appellees to show by evidence that the owner was alive when the judgment declaring the escheat was rendered, and that they had bought the property from him.</p> <p>4. Escheat of the Estate of a Living Man. — Mr. Justice Pleasants holds: Escheat means, that when one seized in fee of land dies without heir or devisee, the title reverts to and vests in the State. The .effect of the decree of the court is to judicially declare and determine that the estate has escheated, and direct its disposition. If the person whose property is the subject of judicial inquiry be not in fact dead, the judgment of the court which vests his property in the State upon the assumption of his death is á nullity.</p>

<p>1. Measure of Damages —Breach of Contract of Sale. — When appellants agreed to sell and deliver one hundred barrels of sugar to appellee at Brenham, at a stipulated price, and appellee, without right, countermanded the contract on the day it was made, the measure of damages for the breach was the difference between the contract price and the market value at the time and place of delivery.</p> <p>2. Same — Seller’s Rights. — No right having been reserved by either party to countermand or recede from the contract, plaintiffs under it were allowed until the appointed time to perform their agreement, and were entitled to such benefit as could he derived from a decline in the market, and they had the right to buy the sugar with which to comply with the agreement, at any time before delivery.</p>

<p>1. Landlord’s Lien — Subsequent Purchaser of Crop. — The Taylors received of Morgan, the tenant of plaintiff, a lot of cotton raised on the rented premises, and appellants raise the question whether the cotton in their hands is liable for the rent. We deem it well settled that a lien holder may maintain an action for damages against one who wrongfully converts the security. That the landlord may do so is well settled in this State. Following Templeton v. Gresham, 61 Texas, 50.</p> <p>2. Removal of Crop from Rented Premises — Distress Warrant the Commencement of Suit. — Appellants contend that plaintiff has lost his lien upon that part of the crop they received from Morgan, because it had been removed from the rented premises for more than a month before they were sued. Distress warrant was issued, as provided by law, before the suit was instituted, and before the expiration of one month, and although the petition was not filed making the Taylors parties until more than one month after the cotton had been removed from the rented premises, the issuance of the distress warrant was sufficient to prevent the running of the period limited by statute.</p> <p>3. Subsequent Purchaser Proper Party. — When the landlord obtains his distress warrant, and is prevented from reaching the property upon which he has a lien by one who has converted it to his own use, he may properly join such party in his suit against the tenant.</p> <p>4. Levy of Distress Warrant not a Satisfaction of the Debt.— The rule that a levy upon personal property operates as a satisfaction of the judgment is said not to apply to levies under attachments; but only to those made under executions. A seizure of personal property under attachment issued during the pendency of the suit is not necessarily a satisfaction of the judgment, when afterwards obtained. Such seizure is made for the purpose of security; and if the property is retained in the possession of the sheriff he will be held responsible for the exercise of ordinary care for its preservation; and the same rule applies when the levy is by distress warrant.</p> <p>5. Waste or Destruction of Property. — If while the property is in the hands of the sheriff it is wasted, lost, or destroyed by his negligence, he must account; and the amount for which he is liable on such account will, when ascertained, be applied to the satisfaction of any judgment obtained by plaintiff, and to that extent the plaintiff is made responsible for the sheriff; and the refusal of a charge which in a proper manner submitted this issue to the jury, was error.</p> <p>6. Subsequent Agreement with Tenant. — Plaintiff agreed with Morgan that the property on the rented premises, upon which the distress warrant had been levied, should be left in his care, and gathered by him and shipped by plaintiff, and the proceeds applied to the payment of the rent; and while in his hands it is claimed there was waste. The Taylors were not parties to this agreement, and no right of theirs can be taken away by it. They acquired by their purchase all the rights of the tenant, and when sued by the landlord could make any defense which the tenant could have made, unembarrassed by the agreement, and were entitled to credit for the amount of the loss by waste while in the sheriff’s hands, if there was any.</p> <p>7. Liability of Subsequent Purchaser. — The Taylors held the cotton bought by them subject to the landlord's lien, and had he proceeded directly against them for its value, to satisfy his claim for rent, without pursuing other property, they could not have required him to exhaust the property remaining in the hands of the tenant subject to the lien, before reaching the fund held by them.</p> <p>ON REHEARING.</p> <p>8. Pleading Necessary to Raise Issue of Waste. — Attention is called to the fact that no pleading of either party raised the issue of waste. Under the rule laid down, the burden was on the defendants to allege and prove the waste or mismanagement of the property; and as they failed to do so, the case should be affirmed, unless there are other errors committed upon issues not considered in the former opinion, requiring a reversal.</p> <p>9. When Admission of Evidence Harmless Error. — The court erroneously admitted paroi evidence to prove a written contract between Felder and Morgan, his tenant, offered to show that Felder had a lien upon the crops of Morgan’s subtenants; but as in his charge he required the jury expressly to exclude from their finding of the value of the property received by the Taylors such as had been received by them from subtenants, the error was harmless.</p> <p>10. Erroneous Judgment. — The jury found the value of the cotton received from the Taylors $690, and proceeds of property levied on $276.23, and added a general finding for the plaintiff of $296.23. The general finding was ignored by the court, and judgment rendered on the verdict upon the special issues. The evidence reviewed, and the judgment reversed for error in the judgment.</p>

<p>1. Limitation of Five Years, Facts not Supporting. — Defendant cut ties on the land for part of a year, and had tents on it for the hands; he then erected a small house and two stock pens on it, put a stock of cattle on the land, and used it as a ranch, but the stock of others ranged upon it; occasionally occupied the house in branding and selling seasons, from one night to two weeks at a time; never occupied for more than four months during any one year; caused it to be occupied for about three months by a man who cut 1500 ties from the land; kept some furniture in the house, and corn in a crib adjoining; kept it locked and the key in his possession during its vacancy; openly and notoriously claimed the land, which was known as his ranch in the county; did not fence it, nor did his home place adjoin it, but it was in another part of the county. Held, not to show five years exclusive continuous possession.</p> <p>2. Charge on Limitation Held Erroneous. — “ If the jury believe that defendant, under a claim of ownership to the land in controversy, built a house on the land, and had actual possession of said house to the exclusion of all others for a period of five consecutive years next before the filing of this suit, and paid all tales upon said land for said time, then you are instructed that such possession would entitle the defendant to hold the land by the statute of limitations.” Held, erroneous, because inapplicable to the facts, continuous possession not being shown.</p> <p>3. Limitation — Continuous Possession. — Occasional use of the house, locking it, and keeping the key when vacant, and use of the land for grazing purposes, is possession of too casual and transitory a character to constitute a continuous possession of the land. The character of the evidences of possession vary with the use to which the land is put, but must be continuous and unbroken, when, as in this case, the intervals occur not between outgoing and incoming occupants.</p>

<p>1. Negligence of Conductor. — W. sued to recover damages resulting from injuries received in a collision between the forward and hinder end of a train, caused, as he alleged, by the negligence of the conductor in allowing the rear end of the train to come upon the forward end while it was taking water at a tank, which neglect was the result of the conductor's intemperance. Held, that before a recovery could be allowed, plaintiff should have shown not only that the habits of the conductor were such as rendered him unfit for his position, and that this was known, or should have been known to the receiver, and was unknown to plaintiff, but in addition, that by reason of his habits of intemperance, the conductor was guilty of the negligence complained of, and that such negligence was the proximate cause of the accident.</p> <p>2. Proper Charge. — The following charge should have been given: “ If the conductor knew nothing of the detachment of the train, and by reasonable diligence could not have known it, and it was done without his direction and without his knowledge or consent, then defendants would not be liable, and plaintiff can not recover, no matter what the habits of the conductor were, or what his condition at the time of the accident.”</p> <p>3. Evidence of Time Lost. — Evidence of damage sustained by loss of time, by reason of injuries sustained, is admissible when supported by averment that plaintiff has been unable to follow his occupation or perform other labor since the time of his injuries.</p>

<p>1. Fraudulent Conveyance — Fact Case. — D., in order to defraud a creditor, conveyed the lot in controversy to H., who had knowledge of his intent. Thereafter D. borrowed $100 of F., and procured II. to convey the lot to F., with the verbal understanding that F. was to pay the taxes on it and hold it as security for the loan and the taxes so paid, and to reconvey to D. when they were repaid. F. knew the purpose for which the deed was made to H., and when the deed to him was made, the claim, intended to be evaded was still unpaid. Thereafter D. tendered to F. the amount of the debt and taxes paid, and took possession. In a suit of trespass to try title for the lot, F. was held entitled to recover.</p> <p>2. Same. — The agreement with F. to restore the property to D. was fraudulent. D. could not reap the benefit of his device to put the property out of the reach of his creditors, and enjoy it himself. Courts pronounce such agreements against public policy and void, and enforce the conveyances which are absolute upon their face.</p>

<p>1. Administration de Bonis Non. — In 1859, A. sold land to B., receiving therefor $645 in cash, and three notes for $645 each. B. died. In 18G9, the notes were presented to his administrator, and were allowed by him and approved by the court as a vendor’s lien on the land, and subsequently the land was ordered to be sold, and all but one lot was sold, and bought by A. for a less amount than his debt. The sale was confirmed, and the administrator ordered to make conveyance to the purchaser, but the administrator died in 1874, before making it, and from November, 1873, until 1892, no proceedings were had in court pertaining to the estate of B. The records do not show that the estate of B. had ever been closed, and an application for letters of administration, de bonis non made in 1892 was properly granted, and the administrator de bonis non could, under order of the court, properly make to the heirs of A. the deed which his predecessor had been ordered to make to A.</p> <p>2. Sale by Administrator when Deed not Made. — The land being sold by order of the court for payment of an established claim against the estate, and the claim being secured by a vendor’s lien on the land which had been previously established by the judgment of the court, the purchaser, being the owner of the claim, did not occupy the position of a purchaser without interest in the sale. When the sale was made for less than his claim, and approved by the court, his claim was, pro tanto, paid, and he acquired an equitable title to the land.</p> <p>3. Administration — Statutes Construed. — Article 1827, Revised Statutes, prescribing the time within which administration shall be granted upon the estate of a decedent, does not apply to an application for grant of administration de bonis non. Article 1871, providing for further administration, does not say that such administration shall be granted under the same limitations, but under the same regulations, as provided for the appointment of original administrators; by article 1959 he succeeds to all the rights, powers, and duties of the former administrator; by article 1961, must administer the estate as if it was a continuance of the former administration; and article 1829 authorizes grant of letters de bonis non after any lapse of time, if the estate be not closed.</p>

<p>1. Jurisdiction — Judgment, when not Void. — A judgment against a nonresident defendant, in a suit wherein citation was by publication, but there was levy of a writ of attachment upon land within the county in which suit was brought, is not void, although the affidavit for attachment was defective, in that it did not state that the attachment was not sued out for the purpose of injuring the defendant.</p> <p>2. Jurisdictional Facts in Attachment Case. — The attachment of the property, and bringing it into the custody of the law, is the fact which gives the court jurisdiction of the property of the nonresident, and defect in the affidavit for attachment will not defeat it. Following Cooper v. Reynolds, 10 Wallace, 319; Mathews v. Dinsmore. 109 United States. 216.</p> <p>3. Judgment Valid in Part and Void in Part. — Because the court rendered a personal judgment against defendant which was void, does not affect the validity of so much of the judgment as directed the sale of the attached property to satisfy the same.</p>

<p>1. Trustees can not Speculate in Trust Property. — A trustee in charge of a railway, and managing it for the bondholders, occupies toward it such‘fiduciary relation as will prevent him from buying up its obligations at a discount, and making a profit on them.</p> <p>2. Bondholders may Buy Second Mortgage Bonds. — A bondholder and stockholder in the railway company is not thereby prevented from buying second mortgage bonds of the company by reason of fiduciary relations to the company.</p> <p>S. Railway Bonds, Stockholder’s Right of Purchase. — C. was managing trustee of the railway. A. was a stockholder and holder of first mortgage bonds. They discussed the matter of a purchase of an outstanding second mortgage upon the road for $50,000, and A. afterwards bought it for $15,872, and a few months afterwards transferred a half-interest to O. These facts disclose no such action on A.\s part as would render him liable to account to the railway company for the profits of such purchase; and even if the purchase was originally made for the benefit of C. and A., A.’s half-interest would not enure to the benefit of the railway.</p> <p>4. Recitals, Contradiction of by Oral Evidence. — Recital in the transfer by A. to C. of the half-interest in the mortgage stated that half the purchase money was furnished by C., and that half the debt secured thereby was the property of C. A. was not thereby estopped from denying said recital, and proving the contrary by oral testimony, and no special pleading was necessary to enable A. to do so.</p>

The second section of the deed of trust given to secure the bonds of the railway company was, at the request of counsel for appellant, added to the findings of fact by the court, and, in so far as its substance is not given in the opinion in the statement of the case, it provided, that if the trustees took charge of the road, they should have the right to make betterments, and that after paying for necessaiy betterments, and the running expenses, they should apply the…

<p>1. Mechanic’s Lien, How Fixed by Material Men. — The lien given to material men who furnish material to contractors exists only where the owner owes the original contractor, or where he has wrongfully paid such contractor after having received the statutory notice of the claim due for material; and that a payment was made hy the owner to the contractor before it was due, or without a certificate of the architect that such sum was due, does not affect the question.</p> <p>2. Joint Contracts — Parties. —One of several joint contractors can not sue alone upon a cause of action accruing to himself and the others jointly.</p> <p>3. Same. — A breach of an agreement by S. and others with R. to complete his unfinished house does not give a cause of action to S. alone.</p> <p>4. Building Contract — Unused Material. —When a building contract provides, that if the contractor fails to carry out his contract all material delivered on the premises was to be considered the property of the owner, the fact that the unused material on the premises had been purchased by the contractor on a credit, gives the material man who sold it no claim against the owner for its value, and no lien on the building into which it was subsequently worked.</p> <p>5. Mechanic’s Lien on Homestead. — No mechanic’s lien can be fixed upon a homestead unless the contract for material was signed by the wife.</p>

<p>1. Quitclaim. — An instrument conveying the entire interest of the grantor in land, inherited jointly by herself and another, and closing with a covenant of general warranty, is not a quitclaim deed.</p> <p>2. A Deed and not a Will. — See this case for an instrument, taking effect at the death of the maker, which was held to be a deed and not a will.</p> <p>3. Construction of Instrument. — The instrument, in consideration of $50, bargains, sells, and conveys to the grantee the entire interest of the grantor in certain lands bequeathed to the grantor and grantee by their mother, to be held and occupied by the grantor until her death, and at her death is by these presents conveyed to the grantee. Held, to convey to the grantee an estate in remainder, after the determination of the life-estate reserved to the grantor, although the instrument upon its face shows that at its date the mother, who had made the bequest, was still living, and her will had not at that time taken effect by her death.</p>

John Vignal instituted this suit against W. B. Worsham for the conversion of 105 head of cattle, owned jointly by and in the possession of plaintiff and Joe Johnson; plaintiff claiming to be the owner of four-fifths of said cattle and that Johnson was the owner of one-fifth.

<p>Deed — Shortage in Land — Misrepresentation of Amount. — Appellee's husband, in negotiating a sale to appellant of four tracts of her lands, of 320 acres each, represented that he had had them carefully surveyed, and that they contained a total excess of nearly 50 acres. Appellant, relying on this, had no survey made, but closed the trade on a basis that excluded both excess and deficiency, and the general warranty deed, which was sent for execution to the wife in another State, contained no covenant as to quantity, and was executed by her without any knowledge of such representations by her husband. Afterwards it was discovered that, by reason of conflict with older surveys, there was a deficiency of 55 to 125 acres. Held, no mistake being alleged, and no actual fraud proven (the husband having, in fact, had a survey made which showed an excess), that appellant could not require appellee to make good such deficiency.</p>

<p>1. Parol Evidence — False Representations — Bill of Sale. — Where the buyer sues to cancel a sale of cattle on account of fraudulent representations made by the seller’s agent, evidence of such representations is not inadmissible on the ground that it varies or contradicts the bill of sgle.</p> <p>2. Sale — Fraudulent Representations Held Material. — Where the seller’s agent induces the buyer to make the purchase by falsely representing that an adverse claim to the property had been released, such representations are material, and entitle the buyer to have a cancellation of the contract.</p> <p>3. Principal and Agent — Fraud of Agent. — Where the principal has received the benefit of a sale, he is liable for false representations made by his agent in effecting it, though such representations were unauthorized by and unknown to the principal.</p> <p>4. Interest — Reforming Judgment —Costs on Appeal. — The court below, in rendering judgment for plaintiff, erroneously allowed interest at S instead of 6 per cent. Held, that a motion by defendant for new trial, though very general on this point, could not be treated as a total failure to call the court’s attention to the error, and on appeal by defendant the judgment would be reformed at plaintiff’s cost.</p>

<p>1. Appeal to County Court — Pleading New Matter. — On appeal to the County Court the defendant ma3r interpose a general denial, although the judgment against him in the Justice Court was by default, and without his appearance therein.</p> <p>2. Same — Cross-Action. — But the defendant can not, for the first time, plead in the County Court on appeal a cross-action seeking affirmative relief, whether it he technically a counter-claim or not.</p> <p>3. Same — Quashing Citation. — A motion to quash the citation issued by the justice of the peace comes too late if made for the first time in the County Court on appeal.</p> <p>4. Justice Court — Citation to “Next” Term. — A citation issued by a justice of the peace must he returnable to some term of his court, hut not necessarily to the next term thereof.</p>

<p>1. Attachment Against Nonresident — Proof of Title. — Where plaintiff sues a nonresident and attaches land of hers situated in Texas, it is not necessary, in order to maintain jurisdiction of the court to foreclose the attachment lien, that he should prove the title of the property to be in fact in her.</p> <p>2. Pleading — Supplemental Petition —Proper Matter. — Plaintiff’s original petition against E. A. M. and A.F.M. as defendants charged them with liability as makers of the note sued on. E. A. M. pleaded that she was the wife of A. F. M., and as such was not liable on the note. Plaintiff, by supplemental, petition, replied, that under the laws of Iowa, where the note was executed, and the parties all resided, and under the facts in the case, stating them, she. was liable on the note. Held, that this matter was properly pleaded in avoidance, and the court thereupon properly submitted to the jury the question of the wife’s liability under the facts alleged in the replication and shown in evidence.</p> <p>3. Parties — Husband of Nonresident Wife as Defendant. — Notice of suit was served on the nonresident husband as a defendant; but he was insolvent and without property in Texas, and at the trial plaintiff dismissed as to him and took judgment foreclosing his attachment against the wife’s land. Held. that an assignment to the effect that the lower court erred in trying the case without jurisdiction over the husband was not well taken.</p> <p>4. Contracts — Lex Loci. — In an action brought in Texas upon a note executed by a married woman in another State, where all the parties reside, her liability thereon will be determined under the laws of such other State, and enforced accordingly against her separate property in Texas.</p> <p>5. Verdict — Certainty.—A verdict reading, “We, the jury, find for the plaintiff, and give him judgment for the sum of §2154.23, said amount being secured by an attachment lien on land described in plaintiff's petition,” is sufficiently definite to authorize a judgment against the defendant, with foreclosure of such lien.</p> <p>6. Attachment — Motion to Quash in Appellate Court. — Where the word “ sworn” is omitted in an affidavit for attachment, but the defect is not urged in the lower court, a motion to quash on this ground is not tenable on appeal.</p>

<p>Deed — Condition Subsequent Running with Land. — Where a deed, as part of its consideration, contains the condition that the property shall not be used for the sale of intoxicating liquors, the grantor may enforce a forfeiture for breach of the condition against a subsequent purchaser of the land, although the condition does not in terms include “heirs and assigns” of the grantee; since, in such case, the condition applies to the property itself.</p>

<p>Boundary Lines — Beginning Corner — Charge of Court. — In trespass to try title, the question at issue was as to the true locality of defendant's older survey, whose beginning corner was at a wild china tree, with its other lines and corners unmarked. The evidence showed such a tree on the land in controversy, but was conflicting as to its identity with the one called for in the older field notes. He Id, that the beginning corner was controlling, and the issue simply as to where it was in fact located; and that the court erred in submitting in its charge the general rules respecting calls.</p>

<p>1. Boundary Line — Evidence—Field Notes. — Where the issue involved the location of a boundary line, it was permissible for a witness to testify that he had the junior location made, and that no survey was made on the ground, but the field notes were made out in the surveyor’s office, he being present, and that the intention was to include all the land between two older surveys; as this evidence did not tend to contradict, but merely to explain the field notes as returned.</p> <p>2. Trespass to Try Title — Warrantor Made Party. — In trespass to try title, the plaintiff, as well as the defendant, may vouch in his own warrantor as a party defendant, and have a recovery on the covenants of warranty if he loses the land; and a plea by such warrantor that he resides in another county is not tenable.</p> <p>3. Warranty — Shortage in Land — Pleadings Necessary. — Where a warranty deed purports to convey land in a certain survey, the grantee can not recover for a shortage in the land caused by conflict with an older adverse location, in the absence of an allegation of fraud or mistake as to the number of acres conveyed.</p>

<p>1. Notice — Purchaser Protected by His Vendor’s Good Faith.— The title of a second purchaser with notice of outstanding claims is protected if his vendor, the first purchaser, bought without notice.</p> <p>2. Same — Grading of Railway Track. — The grading of a railway track is not notice of a claim of title by the railway company to land 132 feet distant from the track.</p> <p>3. Notice Rebuttable, when— Registration— Description. — Where a deed duly recorded describes the land conveyed as a certain block in a certain addition, without specifying the dimensions of the block, a subsequent purchaser of part of the land will be charged thereby with notice of the grantee’s title, unless he can rebut the legal inference of notice by proof of due and diligent inquiry, and the existence of good faith on his part after such inquiry is exhausted.</p>

<p>1. Common Source — Defendant Having Different Titles. — In trespass to try title, the evidence introduced by plaintiffs developed that defendants, who were in possession, claimed under two chains of title. Plaintiffs claiming under one of these titles only, showed a superior right from a common source in that chain; but neither party undertook to deraign title from the State, and the record does not show under which title defendants entered into possession, but they disclaimed holding under the title asserted by plaintiffs. Held, that plaintiffs were not entitled to judgment for the land.</p> <p>2. Same — Estoppel.—The rule as to common source does not possess the dignity of an estoppel, and preclude the defendant from asserting any other title.</p> <p>3. Same — Rule Applies, when.— It seems, however, that the rule as to common source would apply where the evidence showed under which title the defendant was really asserting claim and had acquired possession, although he might pretend to have other rights for the purpose of avoiding the common source.</p>

<p>1. Land Certificate — Duplicate — Ratification of Unauthorized Survey. — S., a nonresident, owned as assignee a duplicate land certificate, which, without his knowledge or authority, was located in It. county in 1877, the field notes of the survey reciting that it was “ made for D. N. T., assignee.” In 1873, some one falsely pretending to be agent for another person as owner of the duplicate, filed in the General Land Office a showing to the effect that such duplicate had been lost, and thereupon procured the issuance of another duplicate, which, without the knowledge or authority of S., was located in W. county in 1874. Upon both surveys coming to the knowledge of S., he ratified the one made in W. county, and filed in the Land Office a protest against the issuance of any patent upon the other. Held, that the right of S. to the land in W. county could not be prejudiced by the location in K. county, and was superior to a subsequent adverse location made thereon under other certificates.</p> <p>2. Same — Survey Within Twelve Months from Date of Application. — The survey in W. county having been made prior to the statute of 1879, it was prima facie sufficient for S. — the land being still unpatented — to-show, as plaintiff in this suit, a return of the field notes to the General Land Office within twelve months from the date of the survey, without proof that the survey had been made within twelvemonths from the date of the application for such survey.</p> <p>3. Same — Irregularity in Issuing Duplicate. — A mere irregularity in the issuance of a duplicate, such as the want of an affidavit to the proof of publication of notice of the intended application therefor filed in the Land Office, can not avail a subsequent locator claiming the land under a different title.</p> <p>4. Same — Certificate not Invalid Because of Forfeiture of Prior Location. — Where a prior location of the certificate had been made in 1SG9, and the survey forfeited for nonreturn of the certificate to the General Land Office, as then required by law, this did not invalidate the certificate itself, which could be subsequently used (in 1874) to appropriate other land.</p>

<p>Appeal from Potter. Tried below before Hon. H. H. Wallace.</p>

<p>1. Bona Fide Purchaser —Notice —Burden of Proof. — In a contest between one who has purchased the legal title and one holding an equitable title, the burden rests upon the latter to show that the former had notice of the superior equitable title when he purchased.</p> <p>2. Legal Title. — Purchase by husband, and deed to him conveyed to him the legal title. The wife dying subsequent to the purchase, her heirs took an equitable title. The sale by administrator of the husband passed the legal title, and concluded the claim of the heirs of the wife in absence of notice to the purchaser of their rights through their mother.</p> <p>3. Case Adhered to. — Taylor v. Harrison, 47 Texas, 454, adhered to. One buying at an administrator’s sale may be a bona fide purchaser.</p>

<p>1. Conditions Precedent — Construction. — Suit on money obligation. Defense sought a credit under a clause in the contract by which rent for certain lands for the years 1886 and 1887 should be credited thereon. The contract pro-</p> <p>• vided that the obligees were to look to a lessee of the maker for the rents when the amount should be ascertained between the lessor and lessee, and such amount credited upon the contract. The answer failed to show that the amount of the rents had been ascertained, etc., as prescribed. Held, that exceptions to the answer setting up the rents as credits should have been sustained.</p> <p>2. Practice on Appeal — Reversal and Rendering. — Under article 1048, Revised Statutes, upon reversal, if the losing party had ample opportunity on the trial below to present the facts relied upon by him, and if it is unnecessary for the disposition of the case that any further fact be ascertained, this court will render such judgment or decree as the court below should have rendered.</p> <p>ON REHEARING.</p> <p>3. Credit Allowed on Appeal. — An undisputed credit not allowed by the trial court is allowed on appeal, although the brief of appellant did not complain of the error.</p>

<p>Appeal from the County Court of McLennan. Tried below before Hon. W. H. Jenkins, County Judge.</p>

<p>Pees of County Attorney — Liability of County. — A county is not liable to the county attorney for fees in criminal cases prosecuted to conviction by him, where the convicts, being unable to pay, serve out the fine and costs by confinement in the county jail. So, also, although the county commissioners are chargeable with negligence in the matter; as counties are not liable for injuries resulting from the negligence of their officers or agents.</p>

<p>1. Cause of Action — Failure to Deliver Telegram. — Suit for damages for failure to deliver the following message to the plaintiff: “Water is getting low; come out;” signed by agent of the plaintiff at Marfa, and directed to him at San Marcos, Texas. It was alleged that plaintiff had a large stock of cattle on his ranch near Marfa, in charge of the agent who sent the dispatch; that water was giving out, and the presence of plaintiff was necessary at the ranch to make arrangements for obtaining stock water; that from the delay in the delivery plaintiff was delayed three days in reaching the ranch; that the urgency of the dispatch and the facts causing it were made known to the telegraph operator when the dispatch was sent. Damages for want of water alleged. Held, that the petition showed a cause of action.</p> <p>2. Pleading. — The simple allegation of the facts giving right of action is sufficient, without detailing the circumstances, which merely conduce to prove the truth of the allegations.</p> <p>3. Notice — Purpose of Telegram. — A sufficient notice of the main purpose of a telegram will put the telegraph company upon inquiry as to other facts.</p> <p>4. Contributory Negligence. — It was not necessary for plaintiff to show facts in excuse of want of water at his ranch, no negligence appearing in the statement of his case. In such case, contributory negligence would be matter of defense.</p> <p>5. Issue of Fact. — The petition alleged injury to the stock upon plaintiff's ranch from want of water, caused by three days delay of plaintiff reaching the ranch caused by the nondelivery of the dispatch. Whether the injury was caused b)r the delay is matter of proof; the court can not hold such loss to be impossible.</p>

<p>Appeal from the County Court of Coleman. Tried below before Hon. H. A. Orr, County Judge.</p>

<p>Mechanic’s Lien on Homestead — Record. — While a contract for mechanic’s lien upon the homestead, signed by the husband and wife and by her acknowledged, is valid between the parties, still without the proof or acknowledgment of the signature of the husband also, the contract can not be admitted to record; or if recorded, such record is not notice to a subsequent purchaser of the land.</p>

<p>Freight Contracts Stipulating for Notice of Claims for Damages. — Whether stipulations in a freight contract for shipment of stock are reasonable, when requiring the shipper to give notice in writing of his claim for damages to some general officer of the railway company, etc., within one day after the delivery of such stock at its destination, as a condition precedent to his right to any damages, is a question of fact for the jury, upon considering all the circumstances of the transaction. This obtains as well in interstate as in local transportation.</p>

<p>1. Pleading — Fraud—Dealings with Lunatic. — Suit by plaintiffs upon a sworn account for merchandise sold and delivered. Defense by guardian of the defendant, who had been adjudged a lunatic subsequent to the purchase. The guardian by cross-action alleged, that the purchaser was insane when he bought the goods, and this the plaintiffs knew at the time; that he was induced to purchase by false representations made by the plaintiffs that they would deliver to him goods in sound, merchantable condition and at reasonable market value; that the goods were old, shelf-worn, unmarketable, and of inferior quality, and worth only one-fourth the amount charged therefor; that in his insane condition he was unable to realize the facts, and while insane had paid to plaintiffs an amount largely in excess of the value of the goods; asking recovery for the sum paid in excess of the payment over the reasonable value. Meld, that this showed meritorious ground of cross-action. From such facts an obligation would arise for repayment of such excess.</p> <p>2. Sworn Account — Controverting Affidavit. — In an action upon a sworn account against an insane defendant, the guardian answering is not required to file counter-affidavit as basis for attacking the items in the account, or their alleged value.</p> <p>3. Measure of Damages. — The measure of damages in such case is the excess of the money paid over the value of the goods delivered.</p>

<p>1. Limited Liability of Carrier by Contract. — It is now conclusively settled in this State that a carrier may by contract limit its liability to its own line of road.</p> <p>2. Station Agent. — On a through contract of shipment an agent of connecting lines over which the shipment passes may for some purposes be the agent of the other carrier; but a station agent of a connecting carrier, by virtue of his position, has no authority to waive a provision of the contract between the initial carrier and the shipper.</p> <p>3. Limited Time for Suit. — A limit stipulated within which suit for damages for loss or injury to freight may be brought, if reasonable, may be enforced. The reasonableness is a fact for the jury.</p>

<p>1. Nonsuit — Setting Aside Nonsuit. — Where complaint is made on appeal against an order of the trial court setting aside a voluntary nonsuit at same term, it must be shown that the trial court abused its discretion in acting in the matter complained of. It is not sufficient that the record discloses no grounds for such action by the trial court.</p> <p>2. Cause of Action on Breach of Warranty. — See allegations held good, as showing cause of action upon breach of-warranty in sale of land upon the title failing.</p> <p>3. Identity of Cases on Change of Venue. — See record of a case filed in the United States Circuit Court at Austin, transferred to the court at San Antonio, in same district, the suit taking different file number on the change. In the record the identity of the suit at San Antonio with that changed from Austin is apparent.</p> <p>4. Vouching Warrantors — Practice.—Vendee holding under warranty deed, when sued for the land gave his vendor formal notice of the pendency of such suit. Held, that such notice affected the warrantor with notice of th e change of venue, and of the subsequent proceedings up to the final judgment.</p> <p>5. Identity of Land. — In action on warranty deed alleging failure of title, a judgment in which was recovered the entire survey, part of which was conveyed by the deed, is sufficient evidence of the failure of title to the part described in the deed.</p> <p>6. Measure of Damages — Purchase Money. — Pending suit resulting in judgment of eviction (or rather, condemning the title), the warrantee bought the outstanding superior title for less than the purchase money in the deed of warranty. Held, that the recovery upon the warranty was not affected by the purchase at such less sum, and judgment for the purchase money and interest is affirmed.</p>

<p>1. Dedication of Street. — When it is sought to establish a dedication to a public use otherwise than by formal grant, there must be clear proof of au intention by the owner of the property to donate it to such use. See example where the owner retained a strip through land sold as town lots at a place where a street seemed necessary, and the evidence negatived a dedication.</p> <p>2. Husband and Wife — Estoppel.—The declarations of the husband unauthorized by the wife, and without her knowledge, will not affect her separate property, nor operate as an estoppel against her in favor of parties acting upon such declarations.</p>

<p>1. Obstruction of Surface Water — Limitation.—Railway v. Anderson, 79 Texas, 428, and Clark v. Dyer, 81 Texas, 341, adhered to. Limitation runs from each overflow causing damage, and not from the construction of the railway causing such overflow.</p> <p>2. Same — Subsequent Purchaser. — A purchaser of land subject to overflow from obstruction of surface water from the construction of a railway is entitled to damages from such overflow subsequent to his purchase. His right to damages is in no way affected by the small consideration he may have paid for the land.</p> <p>3. Duty of Railway to Maintain Track. — The owner of land through which a railroad is constructed has the right to exact of the railway company the performance of its statutory duty as to necessary drainage.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Pleadings and Rulings Thereon in Justice Court — Appeal — Bills of Exception. — Where it is sought to revise the ruling of the Justice Court as to the sufficiency of plaintiff’s complaint, the pleadings in that court being oral, the bill of exceptions must show fully the complaint, exceptions thereto, and ruling of the court thereon.</p> <p>2. Practice — Bills of Exception. — Where the admission of certain testimony is complained of, bills of exception should set out such testimony objected to, in order for the court to pass upon its admissibility and relevancy.</p> <p>3. Contracts — Evidence—Conversion.—Where the contention was that defendant, through mistake or otherwise, got a greater number of plaintiff's cattle than he actually bought under a contract, the excess over the number actually purchased could not be proved without first showing how many were actually sold and delivered under the contract, for which excess, upon failure to pay for or return, defendant would be liable for conversion as a tort, and not on the breach of an express contract.</p> <p>4. Hearsay Evidence — Matters of Inducement, — Where a witness testifies to a fact from what others told him, the testimony is hearsay, can not be used as an inducement to other testimony relied upon to prove the same fact, nor relieved of illegality by a promise to make the proof of the fact by competent testimony.</p> <p>5. Damages, Measure of. — Where plaintiff sues to recover the value of cattle delivered in excess of number sold, the evidence showing a contract by which they were sold at a price per head for different classes of cattle: Held, plaintiff was not entitled to prove the reasonable value of the cattle. In absence of testimony showing which cattle were delivered by mistake, the contract price when delivered should be the measure of damages. If the excess of each class received over number actually purchased can be ascertained, the value should be according to their classification under the contract.</p> <p>6. Same — Delay. — Delay caused the plaintiff • in making a contemplated trip, and his making several trips to see the defendant as a result of the miscount of the cattle, are not elements of damages.</p> <p>7. Practice — Evidence.—It was proper, after defendant had closed his testimony, to allow the plaintiff to swear in rebuttal to an instrument in writing introduced against him, that he never signed it, when it was not set out in pleadings of defendant so that a plea of non est factum could be interposed, and which he could not anticipate would he offered if he never executed it.</p> <p>8. Proof of Handwriting.— The handwriting of a party may be proved by one who is acquainted with thehandwriting, from having seen him write; and he need not he an expert.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>Contract to Purchase Land — Cestui Que Trust —Alienation.— <3. entered into a contract with D. and others to purchase land, etc., he to furnish money for purchases, expenses, and development, and D. and others to attend to purchasing, C. to receive two-thirds of the profits and D. and others one-third, and the title to the land purchased to be taken in the name of C. as trustee. A tract of land was purchased, and D. sold his undivided interest, one-ninth, and appellants became the owners thereof. Appellants brought suit for the interest of D. in the land, and the profits on said purchase, to which demurrers were sustained. Held, that under the contract I), acquired a vested interest in the property that he could alienate. Any interest C. obtained under tax sale could not deprive D. of his equitable interest in the land. Seymour v. Freer, 8 Wall., 202.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Carriers — Liability of Connecting Lines. — AYhere a horse passes over several lines of railway in transit, the connecting line completing the transportation and delivering the animal in a damaged condition, will be liable therefor, in the absence of evidence that it received the animal in that condition. Hutch. on Carr., sec. 761.</p> <p>2. Statutory Penalties — Receivers. — A railway company is not liable for a penalty imposed by statutes for failure to feed animals shipped over its road, when the failure occurred while the road was in the hands of a receiver.</p> <p>on rehearing.</p> <p>3. Carriers — Liability in Hands of Receiver. — In an action against a railway company for injuries to a horse, shipped over defendant's line while in the hands of a receiver, the defense was set up, that the improvements made on the road during the receivership were not paid for out of the receiver’s net earnings. The burden is on defendant to show that earnings applied by the receiver to such improvements were not net earnings.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Negligence — Fellow Servants — Pleading. —The negligence of a division superintendent and train dispatcher of a railway company in sending conflicting telegrams to two trains, which resulted in a collision, in which a laborer in the employ of the company was killed, in an action by the parents of the deceased for damages, Held, that his death was not caused by the negligence of a fellow servant, but by that of the superintendent, who was the representative of the company, whose negligence was that of the company, and an allegation that the death was caused by the negligence of the company, acting through its superintendent, is sufficiently specific.</p> <p>2. " Secondary Evidence. — When a document is shown to have been in the possession of a person living, and accessible by process of the court, the affidavit of that person must be obtained that it is lost, before secondary evidence of its contents can be admitted.</p> <p>3. Negligence, when a Question of Fact. — When the question of neg-' ligence depended upon the construction to be placed upon certain orders given by the superintendent to the train men of colliding trains, Held, that whether these orders constituted negligence or not was a question of fact to be submitted by the court to the jury.</p> <p>4. Partnership — Lease. — Where several railway companies enter into a combination, and place the government of their roads in one company, each company getting the net earnings of its respective line, Held, that this was a partnership, and not a lease. Railway v. Davis, 4 Texas Civil Appeals, 468.</p> <p>5. Verdict not Excessive. — See opinion for facts upon which it is held, that the verdict of the jury was not excessive.</p> <p>ON REHEARING.</p> <p>6. Sufficiency of Evidence. — The telegrams of the superintendent gave two trains going in opposite directions the right of the track at the same time, whereby a collision occurred. When the case was before the Supreme Court (see Railway v. Arispe, 81 Texas, 517), that court did not pass upon the testimony in this record, and this court must be the judge of the sufficiency of the facts to support the judgment, even if the case had been presented to this court before, and reversed because they were insufficient.</p> <p>ON MOTION TO AMEND CONCLUSIONS OF FACT.</p> <p>7. Statement of Facts — The statute requires Courts of Civil Appeals in certain cases to file conclusions of fact. These are the conclusions drawn by the court from the statement of facts; and if the precedent is laid that a party can have a part of the testimony inserted in full in the record, there could be no valid reason why the whole statement of facts should not be incorporated in the conclusions of fact.</p>

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

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Charge of the Court not Applicable to the Facts. — A charge to the jury, “ that if you believe from the evidence that there was sufficient room upon the street where plaintiff was injured, that pedestrians could use without walking upon defendant’s track, then persons walking upon defendant’s track would be trespassers, and plaintiff can not recover,” Held, not applicable, when the facts show plaintiff was not a trespasser. Railway v. Crosnoe, 72 Texas, 84.</p> <p>2. Negligence. — The act of a defendant railway company in allowing its detached cars to run along a public street in a city is negligence (73 Texas, 504); and the question of whether a plaintiff was guilty of negligence in being upon the track, whereby he was struck and injured by them, is one for the jury to determine; and if the jury find he was not negligent, the negligence of the defendant was the proximate cause, as it would have been the sole cause of the injury.</p> <p>3. Same — Charge of the Court, that if they believed from the evidence “that the injury to plaintiff was brought about by an omission on his part to take the necessary precaution to look for moving cars before he walked upon the track, and that the defendant is guilty of no negligence in operating said cars, and that the proximate and direct cause of the injury to plaintiff was the result of his own negligence,” etc., Held, presented two contingencies upon which the jury could have found a verdict. That the act of the company in allowing detached cars to move down the street being negligence, it was improper to submit the question of defendant's negligence at all, if there was not sufficient evidence to justify it being taken as the proximate cause of the injury. Railway v. Platzer, 73 Texas, 117.</p> <p>4. Same — Contributory Negligence. — The court should not have allowed the jury to consider the ordinary or gross negligence of the defendant. Where contributory negligence exists, it is a defense in all cases, except willful negligence of defendant’s servants in reference to plaintiff, or a more flagrant form of negligence than ordinary or gross negligence. Railway v. Hare, 23 S, W. Rep., 42.</p>

<p>1. Taxation — Railway Bridges. — Railway bridges over which the road is constructed are not subjects of separate assessment (Cooley on Taxation, 385), but all roadbed, whether built on the ground or on bridges, is taxable as railway.</p> <p>2. Assessment of Taxes — Changes by Board of Equalization-Injunction. — Where a railway company renders for taxes the number of miles of road owned by it in a county, as required by Revised Statutes, article 4678, the action of the board of equalization in deducting therefrom three-tenths of a mile (being the length of one-half of a bridge), and ordering the tax assessor to place upon the unrendered roll against the company an item of “bridge,” with the amount of taxes due thereon as fixed by them, was null and void; and the invalidity of such proceedings not appearing upon the face of the assessment roll, a sale of the company’s property to make the taxes was properly enjoined.</p>

<p>1. Ancient Instrument — Presumption — Heirship. — A cancelled endorsement of a surveyor on the back of a certified copy of a land certificate from the General Land Office, when the certificate and endorsement are over thirty years old, is admissible in evidence as a circumstance to show plaintiffs’ ancestor was the person to whom the certificate was issued. The admission of instruments as ancient applies not only to deeds, wills, and bonds, but also to receipts, letters, entries, and all other ancient writings.</p> <p>2. Same —When Attacked. — When an ancient instrument is attacked, and there is a conflict of evidence about any of its essentials, the issue should be submitted to the jury.</p> <p>3. Secondary Evidence — Sheriff’s Deed — Judgment.—The life of a sheriff's deed is a valid judgment and valid execution, and secondary evidence of the existence of the judgment and its contents may be offered; but when a docket of a justice of the peace is found, and a certified copy of its contents is offered in evidence, the evidence of the justice rendering the judgment as to its contents is inadmissible.</p> <p>4. Entry — Judgment.—The failure of the justice to enter judgment does not destroy it; yet the record entry of the judgment is indispensable to furnish the evidence of it, when it is made the basis of a claim or defense in another court.</p>

<p>1. Common Source — Boundary Lines. — In every case where there is a question as to the position of a common line, there is necessarily a contest concerning the land between the positions of the line as claimed. Where defendant seeks to hold it as within the boundaries of his deed, it is such a claim as enables plaintiff to deraign his title from the source from which defendant’s title has come.</p> <p>2. Same. — The fact that the court, in ascertaining the defendant’s boundary line from his deeds and evidence in connection, determined that his deeds did not embrace any of the land contended for, would not occasion a failure in plaintiff’s proof of title. It is the endeavor or claim on the part of defendant to hold the land by means of his deeds which justifies the admission of the evidence.</p>

<p>Contributory Negligence. — Mrs. Fuller, while attempting to cross the track of the railway company at a crossing used by the public, was struck by an engine of appellant and injured. Held, even if the railway company was guilty of negligence in failing to give the proper signals, and in running at a greater rate of speed than was allowed by law, yet if Mrs. Fuller attempted to. step upon the track at a place where she could have seen the engine in time to have avoided the danger by looking, and failed to do so, she was guilty of contributory negligence, and can not recover. She not only failed to “ look to the right or left” upon approaching the track, but had her head covered with a nubia, which practically deprived her of the power to hear the approaching engine. The refusal of the court below to grant a new trial was error.</p>

<p>1. Action for Injuries Resulting in Death — Parties. — In an action by widow and children for actual damages against a railway company, under the statute, for injuries resulting in the death of James G. Taylor, a verdict and judgment apportioning the damages among the plaintiffs were recovered by his surviving wife and children, who were dependent upon him for support. It appeared that the -father of J. G. Taylor lived in another State, beyond the jurisdiction of the court, and it did not appear that he was in any way dependent upon deceased. Held:</p> <p>1. The action being for actual damages, a recovery could only be had by some one who was actually damaged by reason of the death.</p> <p>2. The father of deceased was not a necessary party.</p> <p>3. The railway company is protected by the verdict and judgment against a suit by the father.</p> <p>2. Negligence — Charge of Court. — In cases where the negligence and carelessness of a railway company in conducting, managing, and propelling its cars are charged by gen eral allegations, and specific acts of negligence are proved, the jury should be properly instructed as to the duties of the company at the time and place mentioned, and it should be left to the jury to determine whether those duties have been performed. A charge which calls the attention of the jury to the specific acts of negligence about which evidence has been introduced, but which were not set out in the pleading, lays too much stress upon such particular acts, and is erroneous. See example.</p> <p>3. Pleading and Proof. — The allegations that the railway company “ so carelessly and negligently conducted, managed, and propelled said car, that by such carelessness and negligence said car ran against, knocked down, and ran over the said James G. Taylor, without any fault on his part,’1 etc., though general, were sufficient to admit proof of any acts of carelessness and negligence in conducting, managing, and propelling the cars at the time and place mentioned.</p>

<p>Open Account — Limitation—Custom—Evidence.—The force of the statute of limitation which runs against each item of an account from the date of the delivery of such item, unless otherwise specially contracted, can not be affected by proof of a local custom of merchants to consider accounts made with their customers for merchandise through the year not to be due until the first of January of the following year. Testimony as to such custom is inadmissible, and unless otherwise specially contracted, limitation runs against each item from the date of its delivery.</p>

<p>Registration — Acknowledgment — Failure to Disclose Official Character — The acknowledgment of a deed was in proper form, except that the only attempt at a disclosure by the officer of his official capacity was the signature, which was “fi.H. Maxey, clerk,by G. M. Walker, deputy.” As it is improper to record a deed when the acknowledgment fails to show on its face the official character of the officer taking the same, it follows that the certificate of the officer in relation to its being filed and recorded can not be used in aid of the acknowledgment which fails to disclose the official character of the person taking it.</p>

<p>1. Community Estate — Receiver — Verified Account. — A receiver was appointed for the community estate of a deceased husband and his surviving wife, at the instance of creditors of the deceased. A master in chancery was appointed, with power to hear proofs of claims against the community estate, and to report to the court. A claim growing out of a contract for services and cash deposited, verified under the statute, article 2018, which provides for the presentation of claims to administrators or executors, was presented to the master. Held: s</p> <p>1. This is not an administration under the statute. There being no children, upon the husband’s death the community estate passed to the wife, subject to the payment of the debts, and administration was not necessary.</p> <p>2. The claim presented to the master for allowance was not such an account as could be proved by affidavit, under article 2266 of the statutes, and the exception to the affidavit was properly sustained.</p> <p>2. Master in Chancery — Practice—Assignment of Error. — Assignments of error presenting for review rulings of the master in admitting certain testimony can not be considered by this court in the absence of both statement of facts and bills of exception signed and approved by the trial court. A bill of exceptions or statement of facts approved by the master and not approved by the court can not be considered.</p> <p>3. Trial by Jury— Refusal — Review—Practice.—In order to present-for review the action of the court in refusing a trial by a jury, it is necessary for the record to show by bill of exceptions that the demand was properly made, and that it was refused.</p> <p>4. Master in Chancery — Jurisdiction—Parties.—See opinion for an order appointing the master and authorizing him to hear proofs of claims against the community estate, and to report the proofs and his findings thereon to the court, which is held not to have authorized him to make new parties to a claim filed with him on the cross-bill of the receiver, or to make any investigation or report concerning the title to real estate claimed by the receiver as a part of the community estate.</p> <p>5. Receiver of Community Estate. — In this case no question is presented as to the legality of the appointment of a receiver for the community estate of a surviving wife and her deceased husband, and it is not passed upon by the court.</p>

<p>1. Attachment — Damages—Charge of Court. — When the main charge covers all that is correct in a special charge asked, it is not error to refuse the special charge.</p> <p>2. Evidence — Setoff.—In a suit for damages for seizure of property under attachment, it was error to exclude evidence of payment of the judgment rendered in the attachment suit which had been pleaded osa setoff against any judgment that might be obtained in the suit for damages. But another judgment against the plaintiff in the suit for damages, not growing out of the same transaction, could not properly be set up as setoff in the suit for damages.</p>

<p>1. Wagering Contract — Ives Pool Bill — Laws of New York.— That part of the Ives pool bill which suspends for thirty days during each year a part of the penal code upon the grounds of certain associations organized for the purpose of improving the breeds of thoroughbred or trotting horses, and confines pool selling upon races to the grounds of such associations and to the times of such races, does not affect the civil statute of New York which prohibits pool selling upon horse races, and provides that contracts growing out of the same in which the parties are both participants can not be enforced. Moreover, neither the pleadings nor proof bring the transaction complained of in this suit within the provisions of the Ives Pool Bill, or show that it is not controlled by the general law proved.</p> <p>2. Lex Loci. — If the contract was void by the laws where it was made, no validity can be imparted to it by bringing suit upon it in a different forum.</p>

<p>1. Sheriff’s Bond — Liability of Sureties. — To charge the sureties on a sheriff’s bond, the act complained of must not only be one which he might rightfully do as sheriff, but which must be actually done by him as sheriff under a claim of right to do the act as such officer. It must be a violation of the conditions of his bond.</p> <p>2. Exclusion of Testimony — Review on Appeal. — In the absence of a statement of facts, before this court can revise the ruling of the court below upon the exclusion of testimony, it must be made apparent from the record not only that the court erred in excluding such testimony, but that the testimony was material, and such error must with reasonable certainty have produced a substantial injury to the party in the cause.</p>

<p>1. Fire Insurance — Premium Note — Default in Payment —Estoppel — Waiver.—A policy of fire insurance provided that if any note taken for the premium was not paid at maturity, the policy was to cease and be of no effect from date of maturity of such note, and the assured was to be liable on the note for the time the policy was in force at monthly short rates, and also that either party could at any time cancel the policy upon certain notice and adjustment of the premium. The written application contained a similar provision, and also provided that the company should not be liable during such default in payment, nor until the policy should be revived by written consent. The premium note provided: “ This company shall not be liable for any loss that may occur during the time this note remains overdue and unpaid.” While the premium note was overdue and unpaid a fire occurred. Held:</p> <p>1. Testimony of the assured that he relied upon the local agent, from whom he had requested an extension of the premium note, to inform him if payment should be insisted on, is not obnoxious to the objections that it was intended to elicit his motive, and that such reliance was not communicated to the agent or to the company.</p> <p>2. The provisions above referred to in the contract of insurance were intended for the benefit of the insurer, and compliance therewith could be insisted on or not at the option of the company.</p> <p>3. That considering all these provisions together, it was the intention that the nonpayment of the premium note at maturity should have the effect to suspend and not to extinguish the obligation of the policy.</p> <p>4. The failure to pay the premium note at maturity relieved the company of liability under the policy while default in payment continued, unless the company waived that provision or estopped itself from insisting on it.</p> <p>5. The provision requiring “written consent” to revive the policy may, like the other provisions, be waived by the company.</p> <p>2. Same — Charge of Court. — See opinion for charge held to be confusing, misleading, and upon the weight of the evidence.</p> <p>3. Evidence. — See last part of opinion for a statement of facts under which silence on the part of the company for three months after maturity of the premium note and the request of the assured for an extension, would be strong if not conclusive evidence of its consent to the extension requested.</p>

<p>Police Powers of Cities — City Officers. — Action for damages for injuries alleged to have been sustained by plaintiff from being gored by a cow, and to have occurred through the negligence of a policeman who had been specially appointed by the city council to enforce an ordinance prohibiting stock from running at large, in the attempted enforcement of the ordinance. Held, following Whitfield v. The City of Paris, 84 Texas, 431, that the enactment of the ordinance was an exercise by the city of its police power. The officer whose act is complained of was not a mere servant of the city, but was a policeman engaged in the enforcement of an ordinance of the city. In such case the maxim respondeat superior does not apply, and the city was not liable. The demurrer to the petition was therefore properly sustained.</p>

<p>1. Deed — Wife’s Separate Estate — Acknowledgment—Ratification. — Though the deed of a married woman, in which she is joined by her husband, attempting to convey her separate estate, is defective when the certificate of acknowledgment fails to show that the contents of the deed were fully explained to her by the officer talcing the same, yet it is the subject of ratification by the husband and wife.</p> <p>2. Same — Estoppel by Record —Deed as Evidence. — In such case the deed recited a consideration of $800 paid in cash and $800 secured by a note and a vendor’s lien expressly retained in the deed. The, husband and wife sued the purchaser, and recovered judgment upon the note foreclosing the vendor’s lien and awarding an order of sale. The judgment was paid off by the original purchaser, the husband and wife receiving the money. In a suit by the wife for the land, Held:</p> <p>1. She is estopped by the record from setting up any claim to the land.</p> <p>2. The admission of her deed in evidence was immaterial, and could have no effect, as she was fully estopped by the judgment of foreclosure and the litigation growing out of the same, and no other judgment could have been properly rendered.</p>

<p>Breach of Warranty in Deed — Erroneous Charge. — The bank sued Dugan for damages for breach of covenant of warranty in a deed. Judgment had been rendered against the bank in a former suit brought by it for recovery of the land. The bank alleged that it gave Dugan notice of the pendency of the former suit, and of the defense set up therein, requested him to appear and defend the title to the land, and that he failed to do so. The issues made by the pleadings and evidence in this suit were as to whether the bank gave Dugan notice to appear and defend the former suit in a reasonable time, and as to whether the bank in that suit had been ousted by a superior title. Iield, the charge which, in effect, made the bank's right to recover upon the warranty depend solely upon whether it gave Dugan reasonable notice to appear and defend the former suit, and cut off the jury from considering the other issue if they found that such notice was not given, was error.</p>

<p>1. Charge of Court — Agency. — In a suit by Lyon against Bernheim for the value of a bill of lumber furnished by Lyon to London, who used the same in the construction of a house for Bernheim, the issue was as to whether London was Bernheim’s agent, with authority to buy the lumber. A charge to the jury, that Bernheim would be liable if Lyon sold the goods to London, and if they believed that London was the agent of Bernheim “ to erect the building,” is held to be erroneous, and calculated to mislead the jury.</p> <p>2. Written Contract — Evidence.—It was error to exclude from the jury the written contract between London and Bernheim for the construction of the house, which was offered in contradiction of the testimony of London, who stated a different contract. It was admissible in connection with Bernheim’s testimony, that he never made any other or different contract with London.</p>