Volume 51 — Texas Reports

Error from Madison. Tried below before the Hon. James-E. Burnet. Alston & Hutchings brought suit in the District Court of Madison county in 1873, to recover of Eichardson §813 and. interest, paid by them to defendant in May, 1870, through mistake, occasioned, as was alleged, by false and fraudulent representations of defendant.

Tried below before the Hon. E. 5. Walker. H. J. Mullins & Co. instituted proceedings Hovember 10, 1874, by motion, against S. M. Thompson, administrator of the estate of W. P. Thompson, in the District Court of Houston county, on probate side, to compel the administrator to inventory as part of the estate the proceeds of a policy of insurance for $2,500, issued by the Phcenix Life Insurance Company.

Tried below before the Hon. I. B. McFarland. David Wade died at his domicil in Fayette county, Texas, on the 15th day of March, 1861, leaving as heirs at the time of his death four children, named W. W. Wade, J. R. Wade, Delilah Dunlevy, (born Wade,) and Haney Ann Wade, and two grandchildren, named Samuel H. Clifft, the appellant, and his sister, Martha Bickers, (born Clifft, and then wife of Antone Bickers,) said grandchildren being the only children of a deceased daughter.

<p>Appeal from Fort Bend. Tried below before the Hon. L. Lindsay.</p> <p>The facts are fully stated in the opinion.</p>

<p>Appeal from Polk. Tried below before the Hon. Henry C. Pedigo.</p> <p>The opinion sets out the facts.</p>

<p>Appeal from Polk. Tried below before the Hon. Henry O. Pedigo.</p> <p>The opinion contains the facts.</p>

<p>Appeal from Jefferson. Tried below before the Hon. William Chambers.</p> <p>The facts are given in the opinion.</p>

Tried below before the Hon. D. M. Prendergast. June 24, 1875, D. 0. Hockney & Brother brought suit on three promissory notes against William Arnold & Co. in the District Court of Freestone county. An attachment was obtained, and was levied on a large amount of property of the defendants. The defendants pleaded general demurrer and general denial, and, in reconvention, that the attachment was wrongfully and maliciously sued out, and for damages.

Tried below before the Hon. H. C. Pedigo. November, 1877, Angus McLeod brought suit in the District Court of Tyler county for $3,150 alleged to have been deposited by him with F. M. Runnels and wife, and not returned. Defendants demurred, pleaded general denial, claimed the amount received was less than alleged; that it was a gift by plaintiff to the wife of Runnels, who was daughter of plaintiff’..

Tried below before the Hon. John B. Rector. The Texas Land Company, an incorporated company under the laws of Texas, with power to buy, hold, and sell lands, brought this suit October 6, 1874, in the District Court of Leon county, against Fletcher Williams, to recover possession of the Grande eleven leagues of land situated in Robertson and Leon counties, setting out the boundaries of the eleven leagues and claiming title to and possession of the same.

Tried below before the Hon. John B. Hector. John W. Warren died about the last of September, 1874. He was a bachelor, over sixty-one years old. For nearly twenty years he had lived with a kinsman, D. 0. Warren, and in his family. Ho witness had' ever heard him speak of his father, mother, sisters, or brothers. In the summer of 1874 he moved to his own farm and lived with Mrs. Martha Samuels.

Tried below before the Hon. R.. S. Walker. This was a proceeding by motion, signed by D. A. Uunn, George W. Wynne, and Earle Adams, practicing attorneys-of the court where instituted, filed on the 12th day of May, A. 13. 1877, in the District Court of Houston county, against William Y. Tunstall, a licensed attorney of the said court, having for its object to strike the said Tunstall from the roll of attorneys for fraudulent and dishonorable conduct.

Tried below before the Hon. Everett Lewis. This was an action of trespass, brought by T. J. Pouton, to try title for the land described in the petition. The defendants pleaded not guilty. The cause was submitted to the court without a jury, and a judgment was rendered for the plaintiff for the land claimed, and defendants appealed.

Tried below before the Hon. William H. Stewart. John J. Long, a resident of Dallas county, brought suit in the District Court of Galveston county, on May 30, 1876, against the Galveston Insurance Company, an incorporated company having its principal office in the city of Galveston, to recover the amount of a policy of insurance issued to him by defendant April 20,1872, and renewed from year to year to April 19, 1876, to the amount of $2,000, on a dwelling-house (described)…

<p>Error from Hardin. Tried below before the Hon. H. C. Pedigo.</p> <p>The facts are given in the opinion.</p>

Tried below before the Hon. William H. Stewart. July 17,1878, Adolph Flake and George F. Schneider, Jr., brought suit in the District Court of Galveston against Henry Fuse, residing in Germany, and L. Fuse, of Galveston, to enjoin proceedings under a trust deed, and to have it declared satisfied. A history of the facts litigated is here given, taken from appellants’ brief.

<p>Appeal from Gonzales. Tried below before the Hon. Everett Lewis.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Appeal from Gonzales. Tried below before the Hon. Everett Lewis.</p> <p>The facts sufficiently appear in the opinion.</p>

Tried below before the Hon. L. W. Moore. April 27, 1877, C. W. Gray brought suit in the District Court of Fayette county against W. S. Chunn, on a judgment alleged to have been rendered in the Circuit Court of St. Louis county, Missouri, on June 10, 1867, in a suit between the pa'rties. A duly certified copy of the judgment and of the proceedings in the suit was filed with the petition as an exhibit.

Tried below before the Hon. William H. Stewart. ¡November 27, 1877, McLouth and Erhard brought suit in the District Court of Galveston county to enforce the collection of six promissory notes, of date July 23, 1874, each for $750, made by C. F. White, in payment for the southeast quarter of the northeast quarter of out-lot number 67 of the city of Galveston.

Tried below before the Hon. William H. Stewart. James M. Brandon sued appellee for damage by rain-water to a lot of three hundred and twenty bales of cotton, charging that the same was stored with the defendant at Galveston as warehouseman, and damage occasioned by its negligence.

Tried below before the Hon. William H. Stewart. This is an action by appellees against Rinker & Jockusch for the recovery of $2,850 and interest, being part of a sum of money received by appellants upon Hew York drafts placed with them for collection.

Tried below before the Hon. William H. Stewart. Henry Rosenberg leased a brick store in the city of Galveston, in the early part of 1876, to Shaper, by oral lease. Shaper occupied the premises under the lease, with a general stock of dry goods, doing business therein, as a dry-goods merchant, from the 1st of April to the 30th of October, 1876, during the whole of which time he paid no rent. One thousand dollars was then due.

Error from Wharton. Tried below before the Hon. William H. Burkhart.

Galveston. Tried below before the Hon. William H. Stewart. August 9,1877, Seligson & Co. brought suit by attachment, in the District Court of Galveston county, against the parties composing the firm of Hobby & Post, on a promissory note bearing date July 9,1877, and due forty-five days thereafter. The petition was in the usual form, judgment for debt and costs being asked.

Tried below before the Hon. H. 0. Pedigo. This was an action of trespass to try title, brought by Mrs. Eliza Lacy, the surviving wife of William 0. Lacy, for the recovery .of two hundred acres, to be partitioned and set apart out of a tract of one thousand acres, so as to include “ Sour Lake,” the hotel, and other improvements contiguous thereto. She alleged that the land was purchased by her husband, William 0.

Tried below before the Hon. William H. Stewart. This suit was brought in the court below, Rovember 4, 1875, on the acceptance of a draft, as follows: “$2,323.92, specie. Houston, June 1, 1873. “ Two years from this date, please pay to the order of H. G. Pannell, guardian for the Roland children, twenty-three hundred and twenty-three t9q3t dollars, in specie, being for amount due on cattle purchase. F. R. Lubbock. “To Messrs.

Tried below before the Hon. William H. Stewart. This was an action in the ordinary form of trespass to try title, brought by appellants against appellee, to recover land in Galveston county, setting out the boundaries and claiming possession since September 1,1873; suit filed April 24,1875, being the second suit, the first suit having been filed May 24, 1874.

Tried below before the Hon. William H. Stewart. This suit was commenced May 12, 1866, in the District Court of Chambers county, for Miss Fannie Westrope, minor, by E. Keough, then her guardian, and was afterwards transfciTed to Galveston.

Tried below before the Hon. Everett Lewis. June 11, 1877, in the District Court of Colorado county, Cecile Le Gierse, surviving wife of Louis Le Gierse, deceased, having qualified as survivor, and the mother of two minor children, the issue of' her marriage with the deceased, sued the Galveston, Harrisburg and San Antonio Bailroad Company for damages, for causing the death of said Louis Le Gierse while, as a passenger, he was attempting to get aboard the train of defendant…

<p>Appeal from Grimes. Tried below before the Hon. James B. Burnett.</p>

Tried below before the Hon. James B. Burnett. This case was before the Supreme Court in 1873. (38 Tex., 384.) In the report of the case, on pages 384-386, a statement of the matters in controversy is given.

<p>Appeal from Grimes. Tried below before the Hon. James B. Burnett.</p> <p>The facts are fully stated in the opinion.</p>

Tried below before the Hon. James Masterson. November 18,1878, in the District Court of Harris county, Lavinia Danish, joined by her husband, F. K. Danish; Jennie Hitchcock, joined by her husband, L. M. Hitchcock; Emma Russell, joined by her husband, W. S. Russell; William Thomas, in his own right and as next friend of Henry and Gussie Thomas, as heirs of William E. Thomas, sued Annie Disbrow, (late Thomas, and the widow,) Benjamin F. Disbrow, and Milby & Porter.

<p>1. Trial by jury—Bight to demand jury.—A party lias a right to trial by jury by paying the jury fee, or by making the statutory oath in lieu of payment, at any term of the court before final trial, if demand be made by 9 o’clock a. m. of the day set for the trial of jury cases for the term.</p> <p>2. Same.—Such right is not affected by failure to claim or waiver of a jury at a preceding term.</p>

Tried below before the Hon. L. Lindsay. September 4,1874, Martha E. Davidge brought suit in the District Court of Colorado county, alleging “ that on the 9th day of March, A. D. 1874, she obtained a policy of insurance in the Texas Mutual Life Insurance Company, .whose principal office is in the city of Galveston, in Galveston county, Texas, upon the life of her husband, William E. Davidge, for the sum of $2,000—gold dollars; that by the said policy of insurance the…

Error from. Harris. Tried below before the H011. James Mastersou.

<p>Appeal from Harris. Tried below before the Hon. James Masterson.</p> <p>Brewster, plaintiff" below, sued the Agricultural, Mechanical, and Blood-stock Association of Texas, a private corporation, for the title and possession of the tract of land in the city of Houston known as “ the Fair Grounds,” alleging his purchase of it at three judicial sales,—one under a judgment rendered in the District Court of Harris county and an execution issued thereon, and the other two sales had under executions issued upon judgments rendered by a justice of the peace of said county; that he was the owner of the property by said purchases and deeds made to him thereunder, and entitled to the possession, but that.the defendant refused to deliver the possession thereof to him, and he prayed “ for title and possession.”</p> <p>The defendant answered, substantially, that the property had been purchased for the purposes of the association; that proper buildings and substantial fences had been erected by it, the whole at a cost of about §100,000; that plaintiff' had bought at execution sale, and at an outlay, in all, of less than §1,200; that plaintiff bought in trust for the association ; but for that fact defendant 'would have protected the property from sale; that it offers to reimburse the plaintiff for all outlay and interest at such time as the court may fix; pleaded the gross inadequacy of price, &c.</p> <p>Judgment was rendered for plaintiff. Defendant appealed.</p> <p>The testimony upon the material points, by agreement, was as follows:</p> <p>Brady testified that he was president of the association and was elected in July, 1877; that after his election and before he accepted the office, having heard that Brewster had bought in the property at the sales under the judgments, he went to him to know under what circumstances he had purchased it, and Brewster told him that he had purchased to protect the association; that he told Brewster he wras hesitating about accepting the office of president on account of the situation of the property, and Brewster said, «Go ahead, and, upon the honor of a gentleman, you shall have no trouble,”—and that Brewster added that he held the property in trust for the association; that he only wanted his money and interest back, and that then the property would belong to the association ; that this conversation was in July or August, 1877; that upon these assurances he (Brady) accepted the presidency, and that he would not otherwise have- done so,—at least not until he could have made provision to pay Brewster what he had expended and the interest thereon, if he had demanded it, which he never did.</p> <p>Franklin testified that he was a director of the association when Brewster bought the property, and upon his return from blew York he heard that Mitchell had the property advertised for sale; that he went to see if an arrangement could be made about it, but learned that Mitchell had postponed the sale; that he learned subsequently that Brewster had purchased it, and went to him to know what he would do about it; that Brewster said if the appellant would pay him back the money and interest upon it he would release it to the association; and this he said several times before this suit, and repeated it after the suit was brought.</p> <p>Oliver testified that he recovered a judgment against the appellant, wished to collect the money, and was referred to Brewster; that about four months before the trial he went to Brewster to know if he would pay it, and he answered that he would not,—that he had already paid out more money than he could get back from the appellant, and would not pay out any more for it.</p> <p>Brewster, plaintiff below, testified that he never agreed with the president, directors, or officers of the appellant, or any of them, or with any one else, to buy in the property for the appellant; that he bought it for himself and no one else; that he did not remember any such conversation with Brady as he stated; that after Brady was elected president of the association they casualty met on the street, and he told witness that he wanted to get the creditors together, and that he would call a meeting to make some arrangements, but witness never told Brady or any one else that he had bought in the property for the appellant; that he had such a conversation with Franklin as he stated, and would have reconveyed the property to the appellant if it had then paid his money and interest; but that this conversation was voluntary, and not based upon any previous agreement with any one connected with the association.</p> <p>Cleveland testified that he was a director at the time of the purchase of the property by Brewster, and before that time, but ceased to be such in July, 1877; that he heard that Mitchell had the property advertised for sale, and as witness held some of the bonds of the appellant for himself and two of his friends, he went to Brewster and asked him if he would buy in the property, and he refused; that witness was acting for himself and friends, and not for the appellant; that the property was not then sold, but the sale postponed, and the witness subsequently heard that the property had been sold and that Brewster had bought it; that after this there was a meeting of the directors, and the witness Franklin attended and told the directors that Brewster proposed that if they would pay him his money and interest he would convey the property to the appellant; that witness then offered to subscribe and pay $300 towards it, and urged the others to subscribe, but no one else offered to do so; and that while a director he never heard that Brewster had bought the property for the association, and nothing of the kind was ever intimated at any meeting of the directors that he attended.</p> <p>Brewster, at the execution sales of the property, bought it at three sales, in the aggregate amounting to $1,200.</p> <p>Brady testified that he hardly knew the value of the property; that the appellant paid between $9,000 and $10,000 for it, and with this and what it has expended in improving it, the property has cost between $80,000 and $100,000; that the property was more valuable when bought that now; that he would as soon give $30,000 for it, if he had the money, as for any other Houston property for public purposes; that he considered it worth as much as it cost, but it would not sell for as much; that the value of property depends upon the use made of it; that if one desired the property for a public park or fair grounds, it is worth what the land and improvements cost, but for any other purpose it is not worth more than $30,000; that if he had the money and wished to invest it in that kind of property for public purposes, he would give $30,000 for it, but that if he had $30,000 he would not give it for the property for private use.</p> <p>Franklin testified that he sold the property to the appellant for $9,750; that with the improvements now upon it he would judge it to be worth $30,000, but it is worth less now than when appellant bought, and if forced to sale it would not bring one-third of that.</p> <p>Cleveland testified that he had some of the bonds of the appellant and would take fifty cents on the dollar for them, but did not think they could be sold for that, or for more than twenty cents on the dollar; that he thought the property worth $15,000 or $20,000, and did think it would sell for more, and that the bonds are a lien on the property.</p> <p>For Brewster, it was proved that the appellant had provided for the issuance of bonds to the amount of $30,000, drawing ten per cent, interest, and had executed a deed of trust upon the property to secure them; that they had sold of said bonds to the amount of $6,000, and had hypothecated the balance, at fifty cents on the dollar to secure $14,500; that the deed of trust to secure said bonds provides that the bonds should become due upon failure to pay the interest as it became due, and that the appellant had failed to pay the interest.</p>

Tried below before the Hon. William H. Stewart. Miller brought this suit on the 21st of February, 1878, in the District Court of Galveston county, against Malvina Banney, in the ordinary form of an action of trespass to try title, to recover possession of the north half of the northeast quarter of the northeast block of out-lot 93, and improvements thereon, claiming title to and possession of the same on the 5th day of December, 1877, when defendant entered.

<p>1. Liability of master for damages to employe.—The master is not liable for injuries sustained by his servant through the negligence of a fellow-servant.</p> <p>2. Contracts by minor.—The contract of a minor, made without the consent of his parent, for employment in a legitimate business, by means of which necessaries conic! be obtained, is not void.-</p> <p>3. Minority op employe.—We do not believe that, upon sound principles of public policy or authority, the mere fact that an employs is under the age of twenty-one years should shield him from the usual responsibility incident to an honest employment voluntarily’ assumed by himself. This rule should not be enforced against a child of tender years.</p> <p>4. Same.—A minor aged nineteen years could not recover of a railroad company’ for damages sustained in its employ and occasioned by the negligence of an employ’d of the railroad.</p> <p>5. Damages.—The father had obtained judgment for injuries sustained by his minor son; in a suit by the son for damages: Held, That the jury should have been instructed not to include in their computation the time for which the father had recovered, in finding damages for his lessened capacity to make a living.</p> <p>G. STegligenoe.—In the absence of law declaring an act to be negligence, it is a fact to be found by the jury. It was error to instruct the jury as to an act, that it is negligence.</p>

Tried below before the Hon. T. H. Waul, special judge. J. 0.

<p>Appeal from Houston. Tried below before the Hon. E. S. Walker.</p> <p>The facts are stated in the opinion.</p>

Tried below before the Hon. William H. Stewart. Miltenberger & Co. brought suit on the 11th of May, 1876, against English, upon an account duly sworn to, under act of the Legislature of April 2, 1874, for advances, commissions, &c., claimed by them as agents of defendant in purchasing, shipping, &c., certain coal at Hew Orleans.

Tried below before the Hon. William H. Stewart. In view of the opinion, when read in connection with the briefs of counsel, it is deemed unnecessary to incorporate in the statement of the case the ordinances which receive construction. They would fill several pages, and their import will be sufficiently understood from the opinion. Title IX, “streets and alleys,” of the charter of 1871, is as follows: “Article I.—Section 1.

Error from Galveston. Tried below before the Hon.William H. Stewart. Suit was brought by B. G. Shields upon a bond given by Stone to him as collector of customs and disbursing agent for the Galveston district, and upon which Dignan was surety.

Tried below before the Hon. J. A. Carroll. A survey was made October 1, 1849, for John Schweitzer, and afterwards abandoned. Its location is shown upon the accompanying plat bv the lines indicated by the letters abed. On December 6, 1859, the fielcl-notes of the Rodriguez survey, which had formerly been made, were corrected by the surveyor without going on the ground.

Tried below before the Hon. J. A.. Carroll. Action of trespass to try title brought in the District Court of Clay county August 4, 1874, by M. Boyer against appellant Fitch, to recover the northwest half of a survey of one league and labor of land, in said county, patented to Benjamin Hubert, assignee of Peter C. Harness. On the 22d of May, 1877, appellant Henderson intervened in the suit.

Tried below before the Hon. Hath aniel M. Burford. On the 21st day of August, 1874, Meyberg & Wangelin instituted suit in the District Court of Dallas county against Steagall & Co., upon a note of §622.20, set out in their petition, alleging that said firm was composed of A. IT.

Tried below before the Hon. George 27. Aldridge. The City Bank of Dallas, claiming to be a bank incorporated by an act of the Legislature of Texas of the 31st of May, 1873, brought this suit on December 21, 1878, to recover of appellees, defendants below, $2,251.94, paid to them under protest as taxes upon the capital of said bank for the years 1874 and 1875.

<p>Error from Cooke. Tried below before the Hon. C. C. Binkley.</p> <p>March 3, 1873, John L. Riddle, for himself and as agent for other parties, brought suit in the District Court of Cooke county against the county of Fannin and G-. H. Ragsdale, surveyor of said county, to compel the survey of certain entries made by plaintiff upon lands in Cooke county.</p> <p>The petition charged, in substance, that on April 21,1872, plaintiff made out, “in the names of the holders” of certain certificates, “locations and files thereof on vacant and unappropriated public land subject to location;” (which he described, and incorporated in the petition a copy of his files;) that he tendered to the surveyor said files and certificates, with reasonable fees, and requested that a correct entry of the samp should be made in the surveyor’s books; that the surveyor refused to accept the files or certificates or to make an entry of the same in his books; that afterwards, on the 30th of November, 1872, they were received in the office of the surveyor, Ragsdale, who accepted the same and agreed to make an entry thereof in his books; that Ragsdale has refused to make survey of the locations, alleging “ that said lands are not subject to location under and by virtue of said certificates, but says the same have already been appropriated by the county of Fannin, in said State, for school purposes, by a survey thereof.”</p> <p>Riddle, in his petition, further alleged, “ that if said land was ever surveyed for school purposes for the county of Fannin, said survey has long since been forfeited and annulled by the subsequent withdrawal of the field-notes of said survey from the general land office,” if the same ever were returned, “ as petitioner is informed and charges the truth to be ”; that if the land was ever surveyed as school land, the surveyor did not thereupon return the same, with the field-notes of said survey, to the clerk of the County .Court, nor did the clerk of the County Court record the same and forward a transcript thereof to the commissioner of the general laud office, nor were said survey and field-notes returned to the clerk of the County Court of Fannin county for record; “ that said field-notes, if any there ever were, were not sent up to the County Court, aucl were not recorded either in the county of Cooke or county of Fannin; that for years, and up to plaintiff’s files, there were not in the general land office any field-notes or evidences of former survey, such as are required by the laws of the State, but, before his location, that the field-notes of the surveys for school land were withdrawn from the general land office, and if ever thereafter returned, the same had been declared forfeited by the Constitution and laws.”</p> <p>The petition closes with a prayer to compel the surveyor to make the survey, for a decree forfeiting any former survey of the lands for school purposes, and for general relief.</p> <p>At the April Term, 1873, Kagsdale, by Linds'ey & Davis, attorneys, filed a general demurrer to petition, and special exceptions.</p> <p>April 25, 1873, an answer was filed by all the defendants, through F. E. Finer, district attorney, and Lindsey & Davis, denying the allegations of the petition.</p> <p>April 30,1873, plaintiff amended his petition, and charged that on December 4, 1872, Jacob Keochler, commissioner of the general land office, in ignorance of petitioner’s files and for the information of one Charles I. Evans, who was trying to locate the laud for himself, wrote an official letter to said Evans, (which was set forth in full,) in which he states that it appeared from a file in the general land office that the field-notes of the Fannin county school-land survey in Cooke county had not been returned by the 29th day of November, 1872, and gave it as his opinion that the land was forfeited and subject to location; that afterwards, on the 6th of January, 1873, the commissioner, still ignorant of plaintiff’s files, wrote to the defendant as follows, viz.: “ Making the survey by virtue of the certificate filed by Charles I. Evans on the survey of three leagues in the name of Fannin county school lands, you are not compelled to go on the ground and make a survey, but may adopt the original field-notes; they will bo respected at this office, &e.;”—and that notwithstanding all this information and these instructions, the surveyor still refused to survey the land.</p> <p>On August 26, 1873, an agreement between the attorneys of plaintiff and Bagsdale was filed, stipulating that “"in no event shall defendant George H. Bagsdale be taxed with any of the costs in this suit, and that the costs that would otherwise be taxed against said Bagsdale be taxed against the plaintiff herein, and that judgment be rendered in accordance herewith at the determination of this suit.”</p> <p>On August 25, 1873, a judgment was rendered reciting that the county of Fannin had wholly made default, “and plaintiff and defendant Bagsdale announcing themselves ready for trial, because it appears, by agreement between the parties, that plaintiff pay all costs herein incurred, whereupon said George H. Bagsdale, by his attorney, withdrew his answer herein filed and says nothing in bar of plaintiff’s action.” The judgment proceeds to declare the surveys for Fannin county null and void and subject to location. Fannin county, in prosecuting a writ of error filed August 30,1874, assigns error as follows:</p> <p>* * * “2. The court erred in rendering judgment in favor of said Biddle upon the petition in this cause, the facts therein being insufficient in law.</p> <p>“3. The court erred in rendering judgment by default against the county of Fannin, there being no answer for said county on file and among the papers of the cause.”</p> <p>The case was dismissed for want of proper service, and again brought up on supplemental petition in error, on which service was had and again a motion to dismiss was made.</p> <p>In view of the opinion, it is unnecessary to notice motions to dismiss, which were elaborately argued.</p>

Error from Jack. Tried below before the Hon. J. JÜT. Roach, special judge. Action of trespass to try title, instituted by the defendant in error in the District Court of Jack county against the plaintiff in error, for one hundred and sixty acres of land. The defendant in error claimed said land as a preemptor and actual settler. He claimed to have settled on said land in good faith on July 20, 1873.

Tried below before the lion. J. M. Lindsey. This suit was brought by Carroll McKinney to annul a location made on land by J. W. Grassmeyer. The case was submitted below on the following agreed facts: 1. That defendant made a valid file on the land mentioned in the petiton, by virtue of a valid land certificate, on the 24th of November, 1871. 2.

Tried below before the Hon. Joseph Bledsoe. This suit involved three hundred and twenty acres of land located in Grayson county by virtue of the headright certificate of James E. Glasscock. Ben. Smithers administered on Glasscock’s estate in Busk county, and while administrator brought a suit in the District Court of Busk county against S. P. Hollingsworth and James B. Armstrong for the land in controversy.

Tried below before the Hon. Joseph Bledsoe. Action of trespass to try title to parts of lots numbers 21 and 22, in block number 3, in the town of McKinney.

<p>1. Mechanic’s lien.—Under the act of November 17,1871, (Paschal’s Dig., art. 7112,) a snb-contractor who supplied work and materials upon a building- under contract with the master builder and not with tiie owner, was not entitled, under the provisions of that act, to a mechanic’s lien upon the building and ground on which it was erected for the payment of his debt.</p> <p>2. Statutes construed.—Former acts conferring liens in favor of mechanics, reviewed and discussed.</p> <p>3. Mechanic’s lien.—The. act of November 17, 1871, (Paschal’s Dig., art. 9112,) was intended chiefly to give a mechanic’s lien to original contractors on verbal as well as upon written contracts, since the former statutes liad confined the lien to the latter class of contracts.</p> <p>4. Causes discussed.—This case distinguished from Waldroff v. Scott, 46 Tex., 1.</p> <p>5. Registration—Statutes construed.—Registration in the office of the county clerk of an instrument required to be recorded by the clerk of the District Court, under an act passed at a time when both offices were merged in that of district clerk, will be sufficient when the registration is made after the office of county clerk has been reestablished.</p>

<p>Appeal from Bexar. Tried below before the Hon. G. H. Noonan.</p> <p>In the spring of 1877, A. B. Frank and M. Goldfrank, members of the commercial firm of Goldfrank, Frank & Co., purchased from Joseph Lauda a lot of ground in the city of San Antonio. On the 11th of July, Goldfrank, Frank & Co., of which firm A. B. Frank and M. Goldfrank were the active and resident partners, made a written contract with Benjamin Hyatt and John F. Hinman, a building firm in business under the style of Hyatt & Hinman, to erect for them a block of three stores, extending from street to street and entirely covering a plat of ground described in the petition. Hyatt & Hinman proceeded to carry out their contract, and employed the plaintiff, Michael Horan, to haul materials for the construction of the building. He, working under this contract, performed labor in the construction of the buildings proposed, amounting in value to $297, and received in cash, corn, and hay, $77.65; leaving still due him for labor $219.35.</p> <p>Hyatt & Hinman having given up their job and not paying plaintiff, he attempted to fix his lien, under the statute, by “ causing a bill of particulars to be made out in triplicate, together with a description of the lot and the buildings thereon, all duly sworn to, and by having one of the said bills of particulars and descriptions recorded in the office of the county clerk of Bexar county, furnishing one to A. B. Frank and one to J. F. Hinman, and by doing all other things requisite to be done under the statute to fix and secure a lien, if one could exist.”</p> <p>This suit was brought to enforce a lien on the lot and buildings and to obtain a personal judgment against Hyatt & Hinman, and also to obtain a personal judgment against Frank & Goldfrank, in case there remained anything due from them to Hyatt & Hinman.</p> <p>The defendants Hyatt & Hinman filed an appearance only.</p> <p>The defendants Frank & Goldfrank pleaded to the jurisdiction of the District Court, on the ground that the amount in controversy was less than $500, and that the plaintiff had no lien on the real estate described in the petition, by reason of his being only a sub-contractor, and not an original contractor.</p> <p>The court sustained the plea to the jurisdiction and dismissed the case.</p> <p>The plaintiff moved for a new trial, which was overruled.</p> <p>The plaintiff appealed and assigned for error—</p> <p>First. The court erred in sustaining the defendants’ plea to the jurisdiction and dismissing the case.</p> <p>Second. The court erred in overruling plaintiff’s motion for a new trial.</p>

Tried below before the Hon. George H. Hoonan. The opinion states all the facts necessary for it to be properly understood. The record is voluminous, and able briefs were filed by counsel. Eighteen assignments of error were made by appellant, notice and argument on which are omitted, in view of the decision.

<p>1. Lien—Mortgage—Judgment.—As between a mortgage on laud and a judgment rendered in a county different from that in which the land is, priority of lien will be determined by priority of registration in the county where the land is situate.</p> <p>2. Evidence. — The existence of a deed cannot be established by producing what purports to be a certified copy from the records of the county in which the land lies, until the non-production of the original deed is accounted for.</p> <p>3. Limitation—Claims against estates.—The acceptance of a claim against an estate by the administrator which is apparently barred by limitation, and its approval by the Probate Court, merge it into such a gMasi-judgmeut that it cannot be impeached by other creditors, under a plea of limitation, in a collateral proceeding.</p> <p>4. Bill of exceptions—Practice in District Court.—The office of a bill of exceptions is to enable a party who considers himself aggrieved by any ruling, opinion, or action of the court below upon a given point, to put the same upon the record, with his objections thereto, at the time the same is made or announced.</p> <p>5. Practice in District Court—Bill of exceptions.—The presiding judge who signs a bill of exceptions may, if be desires, incorporate in it the reasons for his ruling, opinion, or action.</p> <p>6. Practice in District Court—Bill of exceptions.—When a. bill of exceptions tendered by a party does not, in the opinion of the presiding judge, fairly state the ruling, or the reasons therefor, when attempted to be given, and the party tendering it declines to adopt the corrections required by the judge, the presiding judge should indorse thereon his refusal to sign the same, and make out, sign, and file such a bill of exceptions as will, in his opinion, correctly present the ruling, opinion, or other action of the court as it actually occurred. If the party who tendered the bill for signature is not satisfied with this action of the judge, he may then make out a bill, and have the same signed by three respectable by-standers, citizens of the State.</p>

<p>1. Non est factum—Evidence.—The effect of a plea of non est factum sworn to, is to require the plaintiff to prove the instrument declared on as at common law.</p> <p>2. Non est factum. — On an issue of non est factum made by a defendant, it is competent to show that he acted in a way that amounted to an acknowledgment that the instrument was his act, and that it was plainly inferable that it was executed by his authority.</p> <p>3. Pleading.—See statement of case for averments in a petition to admit secondary evidence of acknowledgment or ratification, express or implied, on a plea of non est factum.</p> <p>4. Non est factum—Evidence.—A subsequent acknowledgment or ratification is sufficient to establish the plea of non est factum in favor of plaintiff, although the instrument was originally signed without authority.</p> <p>5. Non est factum—Evidence.—The particular facts relied on in evidence to defeat a plea of non est factum by establishing a ratification of the act, need not be averred in the pleading.</p> <p>0. Non est factum—Practice—Evidence. —A defendant interposed a plea of non est factum in a suit against him on a subscription list. The evidence showed that the signature was not in defendant’s handwriting, but tended to show that he was one of a committee to procure subscribers; that he attended a meeting of subscribers and expressed a willingness to close his subscription by note: Held, That the evidence was sufficient to require the admission of the instrument in evidence, after whicli it is for the jury to determine upon the facts.</p>

<p>1. Parties.—As a general rule, courts of law require only those who are directly or immediately interested in the subject-matter of the suit, and whose interests are of a strictly legal nature, to be made parties thereto. All persons who have merely an equitable or remote interest are not required to be parties, but are excluded from being made so. In equity, to avoid multiplicity of suits, all who have an interest in the subject-matter should be made parties.</p> <p>2. Intervention.—Disadvantages of intervention and its abuses, referred to.</p> <p>3. Intervention.—When the right to personal property levied upon is involved in a suit, it is, as a general rule, the proper practice to require a claimant to resort to the statutory remedy for trial of the right of property.</p> <p>4. Intervention—Practice.—When the title to real estate is directly involved in a suit pending, any one who has an interest in the property at the time of the commencement of the action has a right, on application made at the proper time and manner, to intervene. But when the title is not directly involved, (as where the land has been levied on under attachment to satisfy a debt,) then a third party in possession, in order to intervene, should allege such facts as would authorize a court of equity to grant him a writ of injunction.</p> <p>6. Cases approved.—Carlin v. Hudson, 12 Tex., 202; Ferguson v. Herring, 49 Tex., 130.</p> <p>6. Fact oases.—See facts which did not authorize an intervention.</p>

Tried below before the Hon. E. B. Turner Suit began April 25, 1876, by the appellant, W. 0. Whitman, against the appellees, P. J. Willis & Bro. and Lyd Smith, sheriff, to enjoin and restrain the sale under venditioni exponas of a tract of two hundred and eighty-two acres of land in Washington county, alleged to be the homestead of the plaintiff.

Tried below before the Hon. E. B. Turner. The opinion contains all facts necessary to a proper understanding of the case.

Tried below before the Hon. L. W. Moore. On the 25th of February, 1878, Hardeman, appellee, sued Merriwether, appellant, on a parol statement of accounts for a balance of §928.25, and for foreclosure of a mechanic’s lien claimed upon a mill site, mill, gin, and machinery. On the 29th of March, 1878, appellant answered hy general demurrer, alleging a partnership; impeached the statement of accounts for fraud and mistake; prayed for a restatement of accounts, and for damages.

<p>1. Garnishment—Practice.—When a garnishee, without any excuse given therefor shown on the record, fails to make any answer to one or more of the statutory questions, the court is authorized to proceed as though no answer had been made, and render judgment accordingly. If, from any cause, injustice has been done the garnishee, he can only be relieved by initiating himself a proper proceeding to set aside the judgment.</p> <p>2. Garnishment.—The fact that the officer’s return fails to show that legal process issued to compel the garnishee to appear and answer, cannot affect the jurisdiction of the officer before whom the garnishee appeared and made such partial answers.</p> <p>3. Garnishment.—The rule that, as between two contesting parties, a garnishee has no right to accept or waive service of the proceedings, thereby favoring one party at the expense and injury of another, does not apply in the suit of a creditor against the garnishee himself, when he lias voluntarily appeared before the officer, no rights of opposing creditors being involved.</p> <p>4. Distinguished.—This case distinguished from Adams v. HcCown, 15 Tex., 349.</p> <p>5. Statute construed.—Paschal’s Dig., art. 157, construed.</p>

Error from Comanche. Tried below before the Hon. J. B. Fleming. Suit brought by Talbot & Cropper against Bigham, as defendant, in Comanche county, the petition alleging that the defendant was a resident of Coryell county, Texas.

<p>Trial of right of property—Jurisdiction. — September 10, 1877, property was levied on by execution issuing from the District Court, which was claimed and valued by the sheriff at $400. A trial of the right of property was had in the District Court, which resulted in a judgment against claimant, who brought the case to this court on error. The record failed to disclose how the District Court obtained jurisdiction: Held—</p> <p>1. This court cannot ascertain the jurisdiction of the District Court by evidence aliunde the record.</p> <p>2. An affidavit tiled in this court, to the effect that the defendant in execution was judge of the County Court of the comity, and that appellant was his son-in-law, cannot be considered in determining the jurisdiction of the District Court.</p> <p>3. The Supreme Court lias no power to supply defects in the record of an inferior court, whether occasioned by loss or otherwise.</p> <p>4. Since the record shows the facts touching jurisdiction, it will be understood to speak the truth in that regard, and it will not be presumed that there was other or different evidence adduced, or that it was otherwise than as stated.</p> <p>5. When a county judge is disqualified, from relationship or otherwise, to try a cause, the District Court may have of the cause original jurisdiction ; but the record of its proceedings must show affirmatively how it acquired jurisdiction.</p>

Tried below before the Hon. W. A. Blackburn. A. Biberstein, plaintiff below, who was a creditor of and obtained a judgment against the defendant Carl Lehmberg, and had, upon levy and sale under execution of certain lands as the property of defendant, become the purchaser of the same, brought this suit in Llano county, where the defendants lived, to cancel and set aside certain deeds of conveyance of the lands, wdiich were situated in San Saba county.

<p>Error from Williamson. Tried below before the Hon. A. S. Walker, special judge.</p> <p>The opinion states the material facts.</p>

Tried below before the Hon. E. B. Turner. Florence Chenoworth, joined by her husband, John Chenoworth, brought suit to the April Term, 1877, of the District Court of Travis county, against J. 8.' Able, B. Brown, and E. A. Brown, on a promissory note of $11,000.

<p>1. Jurisdiction—Injunction.—In a suit by injunction and for general relief by the half owner of a partition wall between building lots in a city against the other half owner, each party owning one of the contiguous lots, to enjoin the placing of windows in a third story about to be built on said wall by defendant, alleging that the windows would result in irreparable damage, exposing plaintiff’s building to fire, giving access to unauthorized persons on his roof, and resulting in consequent depreciation of the value of plaintiff’s property: Held—</p> <p>1. That it was not necessary to charge a measure of the damage anticipated to give the court jurisdiction.</p> <p>2. The title and possession of land were so far involved by the character of the action as to give the court jurisdiction.</p> <p>2. Dividing walls.—When a dividing wall is constructed by parties owning adjoining lots, by agreement “to rest equally on the land of each, to be equally used by each for all the purposes of an exterior wall,” each party has (1) an easement in the half of the wall on his neighbor’s lot which entitles each to the use of the whole as a party-wall ; (2) the right to afterwards raise the wall, if it be of sufficient strength andean be raised without interfering with or injuriously affecting the rights of the other part owner. It follows, that after the construction of a two-story wall under such an agreement, a new agreement providing for the right of one of the parties to erect a third story on the party-wall, it being of sufficient strength to support it, was without consideration.</p> <p>3. Party-walls.—If, however, the original agreement under which a party-wall is built, resting equally on the ground of each adjacent proprietor, provides for a wall without windows, no right exists in either party to erect another story with window openings on that part of the wall belonging to his neighbor.</p> <p>4. Decree—Injunction.—After an injunction prohibiting the part owner of a dividing wall from using openings or windows in the wall of a third story he was constructing, and providing that the same should he a dead wall if built, the fiat was violated by the insertion of windows. On final trial, judgment being for plaintiff, it was decreed that “the wall shall he and remain a dead wall, without windows or openings of any kind; that the said [defendant] shall wall up with masonry the windows placed in the third story of his said [wall] during the pendency of this suit; and in default of his so doing in thirty days, the sheriff of • [the county] shall cause said windows to be walled up and collect the cost of' said [defendant] as under execution Held, That the above portion of the decree was proper.</p>

Error from Bexar. Tried below before the Hon. George H. Hoonan. The statement of the case of Giddings v. San Antonio, 47 Tex., 549, and which will be found in the opinion in that case delivered by Chief Justice Roberts, will apply to the present case.

Tried below before the Hon. X. B. Saunders. Suit was brought on two promissory notes for land, executed by J. E. Burt to E. G. Hanrick, dated October 22, 1870, one due on or before January 1,1871, and the other on or before January 1,1872, both indorsed by the payee in blank, and both were made on the same day and delivered to Jesse Blocker, the then husband of the plaintiff, Mary W. Alexander.

Tried below before the Hon. D. M. Prendergast. Suit was instituted by the appellant, James Cunningham, against the international Railroad Company, to recover damages for personal injury alleged to have been received in November, 1872, while a passenger on the defendant’s line of railway, between Reynolds and Troupe.

Tried below before the Hon. John B. Rector. J. E. Magale, one of the defendants in the court below, recovered a judgment in the District Court of Brazos county against W. H. Bowman for the sum of $991.41. Writs of execution had been regularly issued on that judgment and the same kept alive.

Tried below before the Hon. J. A. Carroll. Action was brought in the District Court of Cooke county, May 1, 1877, by R. F. Scott, against J. E. Murrell, J. M. Hobbs, and William H. Hobbs, executor of John R. Hobbs, to recover a balance alleged to have been due upon a promissory note for the sum of $910, dated January 17, 1876, due six months after date, bearing interest at the rate of four per cent, per month from maturity, signed by said J. M. Hobbs, John R. Hobbs, and…

Error from Falls. Tried below before the Hon. D. M. Prendergast. This suit was submitted as an agreed case. The agreement is too lengthy for insertion, and only so much of its contents will be stated as we believe necessary to understand the opinion.

<p>Appeal from Brazos. Tried below before the Hon. Spencer Ford.</p> <p>The opinion states the case.</p>

<p>1. Finad judgment—Appead.—A judgment perpetuating an injunction without a hearing on the facts alleged in the petition on which the injunction issued, is interlocutory, and not a final judgment which can be appealed from.</p> <p>2. Injunction—Practice.—When an injunction issues to enjoin proceedings under a judgment, the proper practice on final hearing, under our blended system of law and equity, is to dispose of the whole case, both upon the injunction and the merits, in the same proceeding, and not perpetuate the injunction and reinstate the original case (proceedings under which were enjoined) for subsequent final trial on the merits.</p>

Tried below before the Hon. X. B. Saunders. Giles H. Burdett, as administrator of his father, Jesse Burdett, deceased, sued defendant C. Q. Haley and others to try title and recover the league of land granted J. W. Carpenter, situated in Falls county. Defendants pleaded a general demurrer, which was sustained by the court. Plaintiff appealed. The petition was filed August, 1868.

<p>Promissory rotes for lard.—A suit was brought on two of three promissory notes given for land; the third, though not due, was sot out in the petition for the purpose of enabling the court to apportion the proceeds of sale under a foreclosure of the vendor’s lieu, which was sought, and to have retained a sufficient amount for tito third note, “ when the same shall become due and your petitioner can obtain a judgment thereon.” Before trial the third note became due, and judgment was rendered for the amount due in all three of the notes, though the petition asked for judgment only on the two notes first sued on : Held, Error, it being a judgment on a case not made by the pleading.</p>

<p>1. Administrator’s bond.—A bond intended as an administrator’s bond, executed in 1871, is valid and binding as such, notwithstanding the absence of a formal conclusion declaring in terms the circumstances under which it shall become void or shall remain in force- and effect, if the condition of the bond intended by the parties executing it is manifest.</p> <p>2. Fact case—Administrator’s bond.—See opinion for a bond. executed by an administrator with securities held good, and which-omitted to state in terms the conditions on which the obligation-might be enforced, or which would render the bond void.</p> <p>3. Bonds—Mistake.—Generally, the omitted formal conclusion of a bond will be supplied by construction, if, from an inspection of the entire instrument, it is manifest that the omission was accidental.</p>

Tried below before the Hon. F. P. Wood. C. E. Broussard & Co., appellees, sued T. B. and J. P. Tarkinton, as partners, on a note made payable to plaintiffs, signed “ T. B. Tarkinton,” alleging that to be their partnership name. They also sued out an attachment, which was levied on a stock of goods claimed by J. P. Tarkinton and replevied by him.

Tried below before the Hon. X. B. Saunders. September 27,1873, Trice brought suit against Baird, alleging that Baircl was indebted to him by reason of several judgments, described in the petition, recovered by appellee against appellant before a justice of the peace in the State of Tennessee, and that appellant owned a certain tract of land situate in McLennan county, State of Texas, which was fully set forth by metes and bounds, and that he was a non-resident of this State.

Tried below before the Hon. W. D. Wood. W. T. Smith brought this suit on the 16th of September, 1873, to recover of appellants §1,529.24 and interest, claimed on a verbal contract alleged to have been made bv Smith on ° v the one part and Grant & Easter on the other, the terms of which contract appellee alleged to be substantially as follows: That he agreed to get up necessary hands, furnish necessary wagons and teams, “ get out ” railroad ties and haul them to the right of…

Tried below before the Hon. A. 5. Broadus. April 28, 1873, Andrew Knapp and others brought suit against the Houston and Texas Central Railroad Company, alleging themselves to he owners of two tracts of land in Robertson county, one on Mud Creek, containing two hundred and eighty and one-half acres, and the other on Sandy Creek, containing sixty acres.

Error from Fannin. Tried below before the Hon. R. R. Gaines. The history of the proceedings in this case will be found in 34 Tex., 608, 609, 691, 692, and in the opinion of Chief Justice Roberts in 47 Tex., 482.

Tried below before the Hon. J. B. Rector. Louisa Knapp sued the Houston and Texas Central Railroad Company, April 23,1873, to recover damages for destruction of crops and injury to land caused by the negligent construction of appellant’s railroad across Mud Creek, in Robertson county, whereby the waters of said creek were thrown back upon appellee’s land.

Tried below before the Hon. T. M. Paschal. This was a proceeding asking an injunction to retax costs, begun in 1872 by Lockhart against Samuel Lytle and one Stuckler, the clerk of the court. The object of the suit was to have the costs in the case of Sam Lytle against W. A. Lockhart and William Lytle retaxed, and to restrain their collection during the pendency of the suit. Sam Lytle and William Lytle were made parties defendant by an amended petition.

Error from McLennan. Tried below before the Hon. L. C. Alexander. Suit by the Waco National Bank against F. 0. Rogers, tax collector of McLennan comity, filed May 7, 1877, praying for an injunction to restrain Rogers from the collection of the sum of §1,383.30, which had been assessed against said bank on ten thousand shares of the stock of the bank, valued at §100,000, for State and county taxes for the year 1876.

Tried below before the Hon. Spencer Ford. Suit brought in trespass to try title by S. E. Norris against Thomas M. Hunt, E. G. Broadus, T. D. Sullivan, and others, to recover two tracts of land, which were fully described in the petition.

Tried below before the Hon. D. M. Prendergast. Suit was brought by Fannie W. England and other appellees on the 15th of April, 1873, for partition of certain lands in which they and the estate of John A. Winn, deceased, were jointly interested.

Tried below before the Hon. A. S. Walker, special judge. Held: &c. A further history of the matters involved in this appeal is given in the appeals in the cases of Bishop Clark v. Honey, 37 Tex., 686, and The Treasurer of the State v. Wygall, 46 Tex., 447.

<p>1. Void and voidable—Trust sale.—A sale made by a trustee who becomes indirectly the purchaser of the trust property at such sale, is not absolutely void, butprima-facie voidable.</p> <p>2. Cases approved.—E.rskine v. De la Baum, 3 Tex., 400, and Howard v. Davis, 6 Tex., 174, approved.</p> <p>3. Laches.—When a trustee becomes indirectly the purchaser at a sale made by himself, the cestui que trust who desires to set it aside must assert his rights within a reasonable time. Long acquiescence in the sale, after the facts connected with the purchase were known, or by the exercise of reasonable diligence might have been known, will amount to a confirmation of the trustee’s action.</p> <p>4. Laches—Fraud.—In Texas the rule is well established, that a party seeking equitable relief against fraud or mistake, is chargeable with laches from the time it was or ought to have been discovered.</p> <p>5. Cases approved.—Bremond v. McLean, 45 Tex., 18, and Carlisle v. Hart, 27 Tex., 350, approved.</p> <p>6. Trespass to try title.—As a general rule, in trespass to try title, the plaintiff who acquired a different title from that relied on in bis first suit, before the second is instituted, has the same right to assert it in his second suit which would have accompanied it into the hands of a stranger.</p> <p>6. Trespass to try title—Evidence—Practice.—In trespass to try title, the plaintiff, in opening his case, should produce in evidence whatever title he relies on for a recovery. If he neglect to do this, whether the District Court should permit him, in its discretion, after introducing one title and opening his case, to introduce another and additional title in rebuttal, is not in this case determined,</p> <p>8. Evidence—Trespass to try title.—When in trespass to try title a deed has been introduced by defendant divesting of all title an original grantee under whom both claim, and he offers another deed subsequent in date, purporting to convey all the interest of the heirs of such grantee, whether they were really his heirs or not, was a matter no longer material to be passed on by a jury.</p>