Volume 54 — Texas Reports

<p>1. Constitutional law—Taxation.—That portion of the act of August 21, 1876, entitled “ An act to define the duties, powers, qualifications and liabilities of assessors of taxes, and to regulate their compensation,” which refers to boards of equalization, is not violative of the constitution; it is not disconnected with, or inappropriate to, the general object of the act as expressed in the title. The duties of the assessor and of the board of equalization are closely connected, mutually dependent, and conveniently and appropriately defined in the same statute.</p> <p>2. Cases approved.—Houston & T. Central R. R. Co. v. Presidio County, 53 Tex., 518, approved.</p> <p>3. Taxation—Board oe equalization.—The board of equalization was created by the constitution itself, and its duties were sufficiently defined in the act of August 21, 1876, to make it competent to determine the valuation of property listed, when that question was properly referred to it, either under section 5 or section 17 of that act.</p> <p>4. Taxation.—"When a tax-payer renders his tax list to the assessor in person, and after answering all questions by him, subscribes the oath prescribed by the statute, if the assessor, for cause deemed sufficient, proceeds then and there to change the valuation, and the tax-payer then makes oath that the valuation is excessive, the case is one coming within the provisions of section 17 of the act of 1876. If, however, the valuation be forwarded by mail, oath being made to the list, out of the county in which it is rendered, before some other officer, the case is then under the provisions of section 5, and the-assessor, if dissatisfied, is neither required or empowered to affix a valuation, but should refer the same to the board of equalization. If forwarded, not by mail, but conveyed by another party, it would’ still be under section 5.</p> <p>5. Injunction.—A party seeking by injunction equitable relief against an alleged unauthorized action by the board of equalization, must establish clearly facts showing that the board had acted illegally and without authority.</p> <p>0. Taxation.—If the board of equalization, in determining the proper valuation of property listed for taxes, errs, and affixes a valuation deemed by the tax-payer excessive, that fact gives him no right to resort to the courts for relief.</p> <p>7. Query.—Whether, if the tax-payer should show that in the proper time and way he demanded, and was refused by a board of equalization, permission to be heard, and to adduce evidence that their valuation was excessive, the courts would grant relief, qiuzre ?</p>

Tried below before the Hon. Peyton F. Edwards. The opinion states most of the material facts. There was much evidence introduced to establish facts not deemed important in view of the opinion. In addition to facts stated in the opinion, it should be stated that defendant offered in evidence an execution and judgment in the cause of E. J. Horton v. B. Miller, and the returns thereon by the sheriff, for the purpose of showing title in Mrs. Miller to the property in dispute.

Tried below before the Hon. D. M. Prendergast. Appellants brought trespass to try title to recover 1,920 acres of land located and surveyed in 1849 by virtue of a bounty land warrant issued after the death of Eliel Melton, in 1861. The land was patented to the heirs of Eliel Melton in 1861. The plaintiffs in their petition set up title through an instrument executed by Tabitha Melton to her then widowed daughter, Polly Echols.

<p>1. Damages—Evidence.—In an action for damages for atrespass vi et armis, brought in the district court, evidence of the payment of a fine imposed in the county court for the same trespass in a criminal prosecution, is admissible as evidence in mitigation of damages.1</p> <p>1 See opinion for reasons why Judge Bonner would not, as an original proposition, concur in this view of the law.</p> <p>8. Exemplary damages—Evidence.—Exemplary damages being allowed in certain cases as a punishment, and not strictly as a compensation for the wrong done, all the facts and circumstances which would enable the jury to act advisedly in inflicting the appropriate punishment, are proper for the consideration of the jury.</p> <p>4. Exemplary damages.—No recovery can be had for exemplary damages in the absence of evidence of actual or compensatory damages.</p> <p>5. Trespass—Damages.—For every trespass the injured party is entitled to at least nominal damages. This nominal damage would be the measure of the actual damage, if no other were shown.</p> <p>6. Fact cases.— See case for facts improperly excluded on the trial, but of such a character as not to authorize a reversal of the judgment.</p> <p>7. Evidence — Practice.—The court may in its discretion refuse to entertain an objection to a question propounded to a witness unless the ground of objection be stated; but should a general objection be entertained, and correctly sustained, it would be no ground for reversal, no substantial error having been committed.</p> <p>8. Practice—Assignment of errors.—An assignment of errors, which alleges error “ in overruling plaintiff’s motion for anew trial for the eleven reasons therein contained,” is too general to require the court to pass upon it.</p>

•Appeal from Jack. Tried below before the Hon. A. J. Hood. Suit by W. J. Peveler for himself and as special guardian of minors, joined with others, September, 1878, against L. J. Peveler, a former administrator, and H. J. Thompson and another, as sureties on his bond as administrator. L. J. Peveler and Thompson filed separate answers.

<p>Appeal from Kaufman. Tried below before the Hon. Green J. Clark.</p>

<p>1. Fact case—Judgment.—See opinion for an agreement for one suit to determine the result of another pending, and for facts under which it was held—</p> <p>1. That a trial of the test case on the merits, and not a judgment by consent or a plea in abatement, was intended.</p> <p>2. That the right to have judgment rendered in the dependent suit resulted from the fact of a recovery in the first suit, and not the grounds of recovery.</p> <p>3. The right to have judgment rendered in the dependent suit could be enforced, though the judgment in the case tried may have been rendered on an issue not common to both suits.</p> <p>2. Construction of written agreements.— Surrounding circumstances may be looked to in order to arrive at the true meaning and intention of parties expressed in the words used in a written agreement; but as the writing is the only outward and visible expression of their meaning, no other words can be added or substituted; the inquiry must be confined to the meaning of the words used.</p> <p>3. Construction.—The construction of a written agreement cannot depend on the motives, purposes or expectations of one of the parties to it, as contradistinguished from the plain import of the words used.</p>

Tried below before the Hon. Spencer Ford. Action of trespass to try title and for partition of the southwest half of the northeast half of the Abner Lee, Jr., league, situated in Brazos county; the plaintiff claiming one-half of the same.

<p>Error from Anderson. Tried below before the Hon. Peyton E. Edwards.</p> <p>. Suit brought July 31, 1815, and on the 3d of June, 1818, an amended original petition was filed by leave of the court, by the heirs of T. B. White, deceased, and other heirs, against the heirs and executor of John Murchison, deceased, their assignees and others, in the form of an action in the nature of a bill of review to remove cloud from title, caused by alleged fraudulent administration, and to annul and set aside certain judgments and orders and proceedings of the county court of Anderson county, Texas, viz.:</p> <p>Order of that court passed in November, 1869, granting letters of administration to J. A. Sensney, upon the estate of Stephen White, deceased; allowance of certain claims, and mortgage in favor of said John Murchison, deceased, against the estate.</p> <p>Orders directing the administrator to sell 2,303 acres of the Stephen White league of land in Kaufman county, Texas, and approving the sale, and directing a deed to be made to John Murchison by the administrator, in 1869 and 1810. A deed by said Sensney, administrator of the estate of Stephen White, to John Murchison, to 2,303 acres of the S. White league in Kaufman county, dated January 21, A. D. 1810, on the grounds:</p> <p>1st. That the county court of Anderson county had no jurisdiction, because Stephen White had a fixed domicile at the date of his death in Walker county, Texas, and not in Anderson county, Texas.</p> <p>2d. That John Murchison and J. A. Sensney fraudulently colluded and combined to administer White’s estate in Anderson county, for the interest and benefit of John Murchison, and with full knowledge that he had a domicile in Walker county.</p> <p>The defendants below presented the foHowing issues of law and fact by their answers:</p> <p>1st. General exceptions.</p> <p>2d. That it appeared more than two years had elapsed between the dates of the orders sought to be reviewed and set aside, and the filing of the suit, and that the plaintiffs were barred.</p> <p>3d. That no tender was made of the amount due on the notes and mortgage discharged by administration and sale of land.</p> <p>4th. That no sufficient allegations were made to constitute fraud.</p> <p>And issues of fact as follows:</p> <p>1st. General denial.</p> <p>2d. Plea of limitation of two years.</p> <p>3d. Plea of stale demand.</p> <p>4th. Other special defenses not necessary to mention in view of the opinion.</p>

Lamar. Tried below before the Hon. E. E. Haines. The land in controversy in this case was paid for with the community funds of appellees, being paid for out of a mercantile business carried on at the time by J. K. P. Campbell. The deeds were made by Wooldridge & Couch to Ella. A., wife of J. E' P. Campbell, and duly registered.

Tried below before the Hon. L. 0. Alexander. Suit by appellant in trespass to try try title. The defendant pleaded, 1. Hot guilty. 2. The presumption of a grant in his favor. 3. That the title and possession of defendant were protected by the constitution of 1876, art. 14, sec. 2. The plaintiff relied for title on proving himself the owner of a valid land certificate, and the location of the same in March 26, 1878, on land covered by the Martinez survey.

Tried below before the Hon. M. Lindsay. Suit by E. P. Erhart, appellant, in trespass to try title. The plaintiff claimed the land under a sale made by the administrator of the estate of Nicholas Boyles, deceased. The petition of the administrator was for an order to sell at private sale. The order was granted to sell at private of public sale. The report of sale was silent as to whether it was made privately or publicly.

Error from Comanche. Tried below before the Hon. J. P. Osterhout. Suit was brought by F. M. Brown, the defendant in error, in the district court of Comanche county. The petition alleged that “the plaintiff is a resident of Comanche county, and the defendant, Thos.

<p>1. Alienage — Statutes construed.—The act “to define the civil rights of aliens,” of February 13, 1854, did not in express terms repeal section 9 of the act of March 18, 1848, entitled “ An act to regulate descent and distribution of estates,” nor is the former act so directly and irreconcilably opposed to section' 9 of the act of 1848, as to repeal that section by implication.</p> <p>3. Alienage—Statutes construed.—The act of February 13,1854, was an affirmative and enlarging statute, which intended to give to aliens such rights and privileges, in addition to those granted by section 9 of the act of 1848, as had been or should be given by the government to which the alien belonged, to citizens of the United States.</p> <p>3. Alienage—Statutes construed.—When the government of the United Kingdom of Great Britain and Ireland passed the act of 1870, to the extent that it conferred benefits on citizens of the United States, it was, by virtue of the provisions of our statute of 1854, immediately engrafted upon it, and became the law defining the rights of alien citizens of Great Britain and Ireland to real estate in Texas; section 9 of the act of 1848 was, as to such aliens, so far modified as to change their previous defeasible estate thereby given, into an indefeasible estate.</p> <p>4. Alienage—Statutes construed.—The effect of the constitution of the republic, of the act of January 38, 1840, and the act of March 18,1848, upon the subject of alienage, was to vest a defeasible title to real estate in Texas, in the alien children and heirs of a citizen of the United States who may have died intestate, leaving such property; such title was valid against individuals as well as against the state, not only for the period of nine years, but for such further time as might elapse until the state should, by proper proceedings, declare a forfeiture.</p> <p>5. Cases approved.— Cryer v. Andrews, 11 Tex., 170; Wardrup v. Jones, 23 Tex., 489; Lee v. King, 21 Tex., 582; Osterman v. Baldwin, 6 Wall., 116, approved.</p>

Tried below before the Hon. John C. Robertson. Suit by Pepper & Bath for certain town lots, which they purchased at trust sale under a deed of trust made by Smith and wife, M. L. Fleishel and others. The legal title to the lots was in Fleishel, and at the time of the execution of the trust deed, which was made to secure the payment of notes made by the firm of Fleishel & Co., of which firm there was- testimony showing that Mrs. Smith was a member.

<p>1. Assessment for taxes.—The acts of de facto deputy assessors, in. raising the valuation of property listed for taxes, are not rendered invalid because they may have been legally disqualified from acting as deputies by reason of their holding other offices.</p> <p>2. Board of equalization—Taxation.—When a question of valuation for taxation has been once regularly referred to the proper board of equalization, the valuation of that tribunal is final.</p> <p>3. Board of equalization.—A deputy assessor, who was also a county commissioner, sat as a member of a board of equalization to revise the assessment of property for taxes, to which board the question of valuation was referred on the protest of a tax-payer. Held,-—</p> <p>1. The action of the board of equalization was not void; the taxpayer not objecting at the time to the deputy assessor constituting a portion of the board, and it not being shown that there was not a quorum of the board without the deputy assessor.</p> <p>4. Injunction — Taxation.—A charge in a petition for injunction to restrain the collection of taxes, that the board of equalization added to the assessment property not owned by the tax-payer, will be disregarded when it is at the same time shown that the amount of taxes first assessed against the tax-payer for the same species of property is not thereby increased by the board of equalization.</p> <p>5. Constitutional law—Taxation.—The limitation imposed by the constitution of 1876, on the power of counties to levy taxes, applies only to the erection of public buildings. For the purpose of paying the interest and providing a sinking fund to satisfy any indebtedness existing at the adoption of the constitution of 1876, counties are authorized to levy, assess and collect taxes to the necessary amount. Const., art. XI, sec. 6; art. XIII, sec. 9.</p> <p>6. Taxation—School districts.—Though the tax authorized by act of the 15th legislature (ch. 80, pp. 89, 90) to pay indebtedness to teachers, was one on school districts separately, and not on counties, yet where a tax of one-sixth of one per cent, was levied on the entire county, and that was the amount due from each school district after comparing the indebtedness of the district with the amount of its taxable property, the tax, though irregular, was sustained.</p>

Tried below before the Hon. 0. 0. Alexander. On the 19th day of July, A. D. 1869, the Waco Tap Eailroad Company, afterwards called the Waco & Northwestern Eailroad Company, entered into a written contract with the appellee, Thomas M. Shirley, whereby Shirley undertook to construct the railway for the company from Bremond to Waco. It was to be completed in two years.

<p>Motion by appellant to amend judgment formerly rendered. The character of the motion is stated in the opinion.</p>

Eerob from Harrison.' Tried below before the Hon. A. J. Booty. This suit was originally filed in the district court of Harrison county, Texas, on the 7th day of April, 1852, by Erances 0. Vanzandt, executrix of the estate of Isaac Vanzandt, deceased, and against Samuel L. Young, to recover land upon which defendant then resided. There were various pleadings afterwards filed on each side.

<p>1. Jurisdiction.—The record in a suit in debt on a promissory note disclosed the beginning of the action in the county court, and its termination by a judgment in the district court, but revealed no cause for the transfer of jurisdiction. The debt claimed to be due was on a promissory note for §328.95, less credits indorsed: Meld, that if the suit was properly cognizable in the district court, it was only in the exercise of some special jurisdiction, in favor of which no presumption must be indulged.</p>

Tried below before the Hon. T. L. Nugent. Suit by Milam county, in trespass to try title, against J. M. Bateman and twenty-five others, for rents and profits for one league of land situated in Hood county Texas, claiming the same as a part of the land granted to her for school purposes, under two acts of the congress of the republic of Texas, the first approved January 26, A. D. 1839, the second approved February 5, A. D. 1840; located and surveyed on the 23d day of…

Tried below before the Hon. J. R. Fleming. A full report of the preceding case obviates the necessity of an extensive notice of this. The opinion states all essential facts embodied in a record of over two hundred pages.

Error from Bexar. Tried below before the Hon. Geo. H. Noonan. In addition to the history of the case stated in the opinion, and as explanatory of the facts on which the several conclusions in the latter portion of the opinion are based, it may be stated: 1.

Tried below before the Hon. W. D. Wood. Suit by appellee against the appellants, for a tract of 493-acres of land situated in Angelina county, which had been sold by the sheriff of that county on the 1th day of September, 1869, to H. L. Stegall, O. H. Ballard and E. L. Bobb, by virtue of an execution and venditioni exponas, issued on a judgment rendered by Arnold Branton, an acting justice of the peace, in favor of J. B. Stark, and against Huff, the appellee, on the 29th day…

Tried below before the Hon. John 0. Russell. Suit by Oliviade Leon Rodrigues, her husband, Felipe Rodrigues, and Antonio Leon de Leon, a minor, against Manuel Trevino and three others.

Tried below before the Hon. L. W. Moore. Appellant, Mary Kocourek, filed her original petition on the 9th day of April, 1880, in which she alleged the following facts, viz.: That on the 15th day of February, 1880, appellant and her husband, Joseph Kocourek, one of the appellees, were seized and possessed of five tracts of land, containing in the aggregate 221 acres, particularly described in her petition; that appellant and her husband lived on the land, and it was their…

Tried below before the Hon. L. W. Moore. Suit by Henry F. Clayton, the appellant, for an undivided interest in 988 acres of land deeded to his deceased mother, Charlotte Clayton, by Keziah Taylor, on July 26, 1877. N. M. McKinnon, and quite a number of others, who were alleged to be in possession, were made defendants.

Error from Harris. Tried below before the Hon. James Masterson.

Tried below before the Hon. W. H. Burkhart. Suit by E. Blanc, the appellee, brought on the 26th day of March, A. D. 1874, against the unknown heirs of Thomas A. Brown, on a promissory note executed by Brown on the 9th day of April, 1858, to B. B. Peebles, for a part of the.purchase money for lots 6, 7 and one-half of 8, in block 301, in the town of Hempstead, payable twenty-four months after date to Peebles or bearer, and secured by vendor’s lien on the lots expressed in the…

Tried below before the Hon. James Masterson. William House brought suit March 19, 1818, against Andrew Sens, and by amendment made Ernest Hernze, William Hernze and John W. Trentune parties defendant.

Tried below before the Hon. Joseph Bledsoe. Suit in trespass to try title, brought by appellants for the recovery of 230 acres of land, part of the headright of J. B. McAnear, the father of appellants. The defendants set up title under a deed from Alex. McAnear to defendant B. H. Epperson; and that Alex. McAnear held the land by virtue of a decree of the Bed Biver district court, rendered at its spring term, 1852, in the suit of Alex.

<p>Appeal from Brazoria. Tried below before the Hon. Wm. H. Burkhart.</p>

<p>Appeal from Houston. Tried below before the Hon. W. D. Wood.</p>

<p>[The interest was remitted.— Beporter.]</p>

<p>Appeal from. Cherokee. Tried below before the Hon. R. S. Walker.</p>

Tried below before the Hon. James Masterson. Suit by injunction, by Mary O. Arto, the appellant, against EL A. Maydole, the appellee, praying the judge to enjoin H. A. Maydole from selling as substitute trustee, as he had advertised to do, block forty-four of the S. M. Williams survey, in the city of Houston, under a deed of trust, executed 'by Susan Arto, on the 12th day of September, 1876, to W. W. Downing, for the use of Beulah Downing, to secure one thousand dollars and…

<p>1. Pleading—New parties.— A defendant in trespass to try title answered, denying that he was in possession, and after averring that he had sold and conveyed the land after the filing of the petition, but before service of citation on him, and without knowledge that he was sued, asked that his vendee be made a party defendant. Held—•</p> <p>1. The answer was properly disregarded by the court.</p> <p>2. The refusal to make the defendant’s vendee a party, even if he might properly have been made a party, was not an error of which the defendant could complain.</p> <p>2. Tax title—Evidence.—-A defendant in trespass to try title offered in evidence the condemnation of. the land to be sold for taxes by the county court on November 1, 1867, at a special term thereof, his certificate of purchase, and tax deed. Held—</p> <p>1. No authority existed for the holding of a special term of the county court under the constitution of 1866.</p> <p>2. The evidence was properly excluded; the judgment of condemnation and all proceedings thereunder were alike invalid.</p> <p>3. Quaere—Purchaser at tax sale.—Whether a purchaser of land at tax sale, whose title is invalid, but who neither knew, nor by proper diligence could have known, when he purchased, the invalidity of his deed, is entitled to have refunded to him taxes which were a charge upon the land before the entering of a decree cancelling the tax deed, quaere.</p>

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

Error from Oameron. Contest made by A. H. Watson as trustee, and Ida Baker Mallory as residuary legatee, joined by her husband, Robert Mallory, of New York, defendants in error, claiming to act by virtue of the will of Robert J. Lawlor, deceased, to the granting of letters of administration de bonis non, with the will annexed, of Lawlor, to F. San Roman, plaintiff in error.

Tried below before the Hon. John 0. Bussell. Suit by Yndelecio Trevino against the appellant for a divorce. Service was made under the act of March 15, 1875. (R. S., art. 1230.) The service was made by notice and copy of petition as required by that act, in the city of Matamoras, Mexico. The original return of service was defective, and was by leave of the court amended. The marriage was proved.

<p>1. Taxation.—The limitation of taxation to fifty cents on the one hundred dollars valuation contained in sec. 9, art. VIII of the constitution of 1876, as applied to cities, counties and towns, has reference to taxation for the erection of public buildings, not to taxation to pay debts incurred prior to the adoption of the constitution.</p> <p>3. Taxation.—Under the constitution of 1876, the question as to how-much tax should be levied to pay the former indebtedness of a county, was left without limit to the discretion of the legislature and the county commissioners’ court.</p> <p>8. Taxation—Statutes construed.—Section 5 of the act to organize commissioners’ courts (Laws of 15th Leg., p. 53) does not embrace or refer to taxes to pay the interest and provide a sinking fund for bonded indebtedness, incurred in aiding internal improvements, which were in truth levied at the time the bonds were issued. That act refers to and limits to twenty-five cents on the hundred dollars those taxes for the payment of debts incurred prior to April 18, 1876, the levying of which is discretionary with the commissioners’ court.</p> <p>4. Taxation.—The commissioners’ court of Galveston county, in February, 1879, levied a county tax of seven cents to create a sinking fund to pay registered county warrants isssued for indebtedness subsequent to April 18,1876, and for an indebtedness incurred before that date, and also to create a sinking fund to pay warrants issued since April 18, 1876; on application to enjoin the collection of the tax, held —</p> <p>1. The county court having already exhausted the limit allowed to pay ordinary debts, the levy of seven cents, so far as it was made to pay ordinary debts, was unauthorized, and it being illegal for that purpose, the entire levy was thereby infected and was illegal.</p> <p>3. An order of the commissioners’ court made one year after-wards, declaring that so much of the levy was void as applied to warrants issued after the 18th day of April, 1879, did not cure the illegality of the levy, nor was it affected by the fact that the entire tax levied was needed to pay debts contracted before the adoption of the constitution.</p> <p>8. The constitution requires the purpose for which such taxes are levied to be specified, and gives the tax-payer the privilege of paying the tax “in the coupons, bonds and other indebtedness for the payment of which such tax may have been levied.”</p> <p>4. The specification of the purpose of the tax was essential, for without such specification the tax was invalid, and to allow the subsequent order explaining the levy to cure its illegality, would be to disregard the constitutional requirement, that the purpose of the tax be specified.</p>

Tried below before the Hon. B. S. Walker. The plea of bankruptcy filed in the supreme court on the 31st of January, 1881, was as follows: a And the appellant, John H. Burnett, comes and says, that since the rendition of judgment against him in the district court of Houston county, on the-day of -, 1875, and this the last term of this honorable court, at, to wit, on the 27th day of November, 1880, by the judgment of the honorable the district court of the United States for…

<p>1. Assessor and collector—Statutes construed.—As a result of the change of a city charter, the assessor and collector of taxes for the city retained his office for three months beyond the period of one year, for which he was elected. During the three months he collected §58,678.63, and the by-laws allowed him four per cent, on the amount collected during the term'of his office; “provided, the aggregate amount of his commissions shall not exceed §4,000 per annum, and in no case shall he withhold for any one month an amount exceeding the average per month of his aggregate commissions.” Held—</p> <p>1. The amount of compensation to which the officer was entitled for each of the three months during which his term was protracted by the change of the charter, could not exceed the maximum monthly payment which he could have received under the by-laws, and this could not exceed one-twelfth of the §4,000 per annum, to which his compensation was limited.</p>

<p>1. Appeal bond.—The appeal bond required by art. 1639, Revised Civil Statutes, to be executed to appeal a cause from the judgment of a justice of the peace, is required to be executed in double the amount of the judgment for the debt only, exclusive of so much of the judgment as may relate to thp cost.</p>

Tried below before the Hon. Livingston Lindsay. Suit by appellees against appellant.

<p>1. Taxation—Cloud on title—Payment under protest.—After the entire property of a private corporation had been listed by it for taxation, the county assessor, without authority of law, made a further assessment on the corporation for property that it did not own, and the land of the corporation was advertised by the collector for sale, to satisfy said illegal assessment; thereupon the corporation paid tiie illegal tax under protest. Five months after payment, a claim for the return of the money was presented to the commissioners’ court, and in nine months more suit was brought against the county. Held—</p> <p>1. That under sec. 13, art. VIII, of the constitution of 1876, and sec. 18 of the' act of August, 1876, regulating the duties of tax collectors, a tax sale of the property of the corporation would have constituted a cloud on its title.</p> <p>2. The taxes having been paid under protest to prevent the sale and consequent cloud on the title, the payment was so far compulsory as to allow of a recovery back, if sought with reasonable promptness.</p> <p>3. Expressions of opinion in Red v. Johnson, 52 Tex., noticed and explained.</p> <p>4 The necessity for action was sufficiently immediate and urgent to remove the payment made to the collector from the class of voluntary payments.,</p> <p>5. That an application for relief had been made to the county commissioners’ court and refused, would not bar a recovery back of the taxes illegally paid under protest. The question was not one of valuation, but of an illegal collection of money, to relieve against which the county court or board of equalization had no jurisdiction.</p>

Tried below before the Hon. W. D. Wood. Appellee brought suit in the district court of Houston county August 24, 1875, against appellant for $1,000, on an alleged voluntary subscription agreement of appellant to pay the H. & G-. N. B. B. Co. (afterwards consolidated with thelnt. B. B. Co.) that amount of money, on condition that the company would run its road through Houston county and erect a depot as near the court house at Crocket as practicable, and within one mile.

Tried below before the Hon. Everett Lewisl Suit by Elizabeth Mitchell et al. against John Ireland and others, appellees. Held: and which execution the sheriff immediately returned into court indorsed satisfied in full.

<p>Appeal from Galveston. Tried below before the Hon. Wm, H. Stewart.</p>

<p>1. Tax collector—Statute construed.—A tax collector, who, under the law, has bid in land sold for taxes to the state, is not entitled under the act of 1876 (p. 259, sec. 30) to retain in his settlement with the comptroller the same commissions, penalties and costs to which he would have been entitled had the land been bid off by an individual. , (See secs. 21, 22.)</p> <p>2. Same.—When lands bid in at tax sale, for the state, shall have been redeemed by the owner, the previously unpaid fees and costs, and which are included in the price of the redemption, would be held by the state for the benefit of the collector.</p> <p>3. Interest — Tax collector.—The state is entitled to interest on such sum of money as a tax collector should pay into the treasury, frpm date when such payment should have been made.</p>

<p>1. Citation in error—Affirmance without reference to the merits.— No affirmance on certificate without reference to the merits can be had, unless the citation in error showing the date of the filing of the petition in error, the names of the parties according to such petition, the description of the judgment as therein given, and that the writ of error and supersedeas, if any, have been granted, has been served.</p> <p>3. Citation in error.—A citation in error which undertakes to describe the judgment by mentioning nine hundred acres of land as the subject of it, and which refers to a copy of petition accompanying it for specific description, is not sufficient.</p> <p>3. Citation in error—Waiver.—A compliance with the statute in the essential requisites of a citation in error, may be waived by the defendant in error; but to entitle the defendant in error to an affirmance on certificate without reference to the merits, such waiver must be made in time to enable the plaintiff in error to file the transcript in the supreme court in the period required by law.</p>

Tried below before the Hon, Wm. H. Stewart. On the 24th of September, 1878, the Mechanics’ Fire Oo. brought suit in the district court of Galveston county against the Texas Cotton Press & Manufacturing Oo. for $616 for work and labor performed by .the company, and services rendered by its engine.

<p>Appeal from Brazoria. Tried below before the Hon. Wm. H. Burkhart.</p> <p>April 6, 1872, the estate of T. A. Smith, deceased, for use of appellant, Thomas G. Masterson, recovered in justice’s court, precinct Ho. 2, Brazoria county, judgment for §112.52, principal and interest, besides costs, against appellee, John G. Ashcom.</p> <p>The transcript from the justice’s court shows that citation issued for Ashcom March 13, 1872, and due return of service on him March 16, 1872, by the sheriff.</p> <p>The judgment in that court recites that the “cause came on to be heard; Shapard, attorney for plaintiff; Duff for defendant. Defendant pleaded to the jurisdiction of the court, which was overruled, and after hearing the testimony and there being no offsets,” etc.; then follows formal entry of judgment.</p> <p>The transcript further shows that notice of appeal was given; that execution issued June 28, 1873, and was returned January 27, 1875, not satisfied.</p> <p>Further execution issued January 16, 1880, and was levied upon property of Ashcom.</p> <p>The present suit was brought by Ashcom, February 26,1880, in the district court of. Brazoria county, against Masterson, for whose use suit was brought in the justice’s court, and against Sharp as sheriff, to whom said last execution issued, to enjoin and restrain the collection of the same, and to set aside the judgment of the justice’s court, on the grounds, substantially, that Ashcom had never been served with process; that he was not at the date of said judgment a citizen of Brazoria county, but had removed to G-alveston county; and that upon a just settlement he would not have been indebted any amount to the estate of Smith.</p> <p>There was no allegation which negatived the appearance by attorney of Ashcom in the justice’s court, as recited in the judgment.</p> <p>The testimony shows that within a short time previous to the rendition of that judgment, Ashcom had resided in precinct No. 1, in Brazoria county, and that judgment had been rendered against him in that precinct, and tends to prove that there was a vacancy in the office of justice of the peace in that precinct when the account against Ashcom was filed for suit with the justice in precinct Wo. 2.</p> <p>The only testimony offered to disprove the. return of the officer and the recitals in the judgment was that of Ashcom himself, and there was no evidence as to any defense to the original cause of action.</p> <p>An injunction was granted in this suit, and on final hearing in the district court, judgment on verdict of a jury was rendered for Ashcom, the justice judgment declared null and void, and the injunction made perpetual, from which this appeal is prosecuted.</p>

Tried below before the Hon. Wm. H. Stewart. Suit by Thomas M. Stone against appellee, J. M. Brown, the president of the First National Bank of Galveston, tó recover twenty-one land certificates of 640 acres each, issued by the state of Texas to T. M. Stone, W. H. Kyle and O. 0. Kyle, on a contract for improving the navigation of the Sabine river. Appellant claimed to be the owner of these land certificates.

Tried below before the Hon. L. W. Cooper. Proceeding under the statutes regulating the substitution of lost papers and records. John Scarborough filed his motion to substitute a judgment which he had obtained at the February term, 1872, of the district court of Trinity county against H. F. & E. D. Craddock, which he alleged had since been destroyed by fire.

Error from Gonzales. Tried below before the Hon. John P. White. Suit by injunction by plaintiff in error to restrain the collection of a monied judgment.

Error from Colorado. Tried below before the Hon. Livingston Lindsay. Suit brought January 13, 1813, by Malsch against Ferdinand Siese, and his wife, Juliane Siese, formerly Juliane Stollé, on a promissory note of $151.13, dated September 10, 1868, payable to the plaintiff, and made by Mrs. Siese, one of the defendants, before her marriage with her co-defendant, and signed by her under her name, as it was before marriage.

<p>Appeal from Brazoria. Tried below before the Hon. W. H. Burkhart.</p> <p>Suit in trespass to try title, brought by appellant on October 13, 1879, against appellees, for the recovery of 150 acres of land. The land was described by metes and bounds in the petition. Donnebaum claimed title under a deed from a constable of Brazoria county, by .whom the land was levied on and sold as the property of Tinsley, on the 2d of July, 1878, to satisfy an execution issued by a justice o£ the peace, on the 8th of June, 1878, in favor of Wm. F. Wilson against I. H. Tinsley, at which sale he became the purchaser. He averred that Mary Tinsley, wife of I. H. Tinsley, claimed the land by virtue of a deed of gift of all his 'property made to her by I. H. Tinsley, but that this debt was in existence when that deed was made, and that it was fraudulently made to delay creditors.</p> <p>The defendants answered “not guilty,” and set up several irregularities alleged to'have been committed by the constable in making the sale. They aver that when the constable made the sale the judgment upon which the execution issued had been fully paid.</p> <p>The cause was tried by the judge, who rendered judgment for defendants, and from that judgment, a motion for a new trial being overruled, this appeal is prosecuted.</p> <p>The errors assigned embrace, in effect, but one proposition, viz., that the judgment is unsupported by the testimony and should have been for the plaintiff.</p> <p>Upon the trial, in support of his title the plaintiff introduced —</p> <p>1. A copy of a judgment of a justice, of the peace in favor of Wm F. Wilson against the defendant, I. H. Tinsley, for $20.14, March 2, 1878, and costs, with an entry by the justice: “Execution issued June 8, 1878.”</p> <p>2. An affidavit of the loss of that execution.</p> <p>3. The constable proved that he sold the land under the execution of June 8, 1878, and that the sale was regular.</p> <p>4. An execution on the same judgment was issued April 10, 1878, upon which is indorsed a levy on 150 acres of land out of a tract known as the Tinsley plantation, part of the I. E. Austin survey, describing it further by metes and bounds. The levy purports to have been made on the 11th of April, 1878. The return of the constable, indorsed upon the writ, proceeds to say that he advertised the land to be sold upon the first Tuesday of July, and that on that day he sold it according to law to Joseph Donnebaum for $35, and that he brought the money into court to be paid over as the law directs.</p> <p>5. The constable testified that by mistake he made his return of the sale on the execution issued, on the 10th of April. That in fact the execution of April 10 was held up, no levy being made under it. That his return was made out on a separate piece of paper, and attached to it by mistake.</p> <p>6. The deed executed by the constable to Donnebaum was read. That deed recites that by virtue of the execution of the 8th of June he “did, on the 9th day of June, 1878, levy on all the right, title and interest which the defendant on that day had in and to the premises hereafter described, etc., and that on the 2d day of July he sold said premises to Joseph Donnebaum,” etc.; and then proceeds to convey the land to him, describing it as follows: One hundred and fifty acres of land out of the I. E. Austin grant, on the west side of the Brazos river, seven or eight miles above the town of Columbia.</p> <p>7. It was shown that the debt of Tinsley to Wilson was contracted before the conveyance by Tinsley to his wife, under which the defendants claimed, and that that deed conveyed all Tinsley’s property, lands and stock. The defendants introduced a deed of gift from Tinsley to his wife, which he swore embraced all his property.</p> <p>They also produced a receipt, signed by the constable, for the amount of the judgment of Wilson v. Tinsley. And Tinsley testified that he had never been called upon to point out property upon the execution.</p> <p>Plaintiff proved that the receipt was made out, but never delivered by the constable, the money not having been paid. That it was left in the hands of the justice ' to be delivered to Tinsley when he paid the money, but that he never had paid it, and it had never been delivered to him. And Tinsley, though testifying, said nothing about how it came into his possession.</p>

Tried below before the Hon. James Masterson. '• Suit by Phelps against Ward & Dewey, to foreclose a deed of trust that' they had executed on the “Lake Jackson Plantation ” in Brazoria county. • Appellants, 0.

<p>Appeal from Colorado. Tried below before the Hon. Everett Lewis.</p>

<p>Error from Houston. Tried below before the Hon. E. S. Walker.</p>

Appear from Fayette. Tried below before the Hon. J. B. McFarland. • Suit in trespass to try title, brought by the appellant, Ledbetter, under statute authorizing the plaintiff to bring a second suit within twelve months against the appellees, Burns and wife, to recover, or quiet the title to, certain town lots in the town of La Grange; and at the same time, by an injunction, to restrain them from using and causing to be executed, a writ of restitution, awarded them by a…

<p>Appeal from Parker. Tried below before the Hon. A. J. Hood.</p>

<p>1. Certainty of description—Deed.—Land was described in a levy and sheriff’s deed as “a parcel of land containing one hundred acres, known as the Neill McLean homestead, situate about sixteen miles northwest from the town of Lockhart, and including the dwelling and outhouses and other improvements,” reciting that it was the balance of the homestead tract left unconveyed. The Neill McLean place embraced in fact four hundred acres, none of which had been conveyed. Held—</p> <p>1. The deed from the sheriff was void, no specific land being sufficiently described.</p> <p>2. Distinguished from Wilson v. Smith, 50 Tex., 366.</p> <p>3. There were seventy-five acres of improved land on the tract, 1 and if the transaction had been between individuals, the deed would have conveyed title to that improved land.</p> <p>4. In execution sales the authority of the officer is limited by the law from which it is derived, and land sold by him must be sufficiently designated.</p> <p>5. The sale being of an undesignated part of a larger tract, there being no means of distinguishing the portion sold, the sale was void.</p>

Tried below before the Hon. W. D. Wood. Suit by appellee, filed in the district court of Houston county June 17, 1880, against the widow and children of A. D. Allbright, deceased, on two promissory notes executed January 29, 1877, by A. D. Allbright to Wm.

<p>1. Continuance.—Parties are chargeable with notice of the materiality of each link in their chain of title, and the trial of a cause will not be postponed to procure absent testimony of that character, unless due diligence has been used to procure it.</p> <p>3. Trial by jury.—If a party to a civil suit fails to demand a jury on the first day during the term on which the docket is called for the purpose of granting applications for juries, he cannot, as a matter of right, afterwards demand that his case shall be tried by a jury, i</p> <p>3. Disqualification of judge.—A mere interest in the question involved in a suit pending, there being no actual interest in the subject matter of litigation, does not disqualify a judge from sitting on the trial of a cause under art, "V, sec. 11 of the constitution.</p> <p>4. Evidence—Deed—Statutes construed.—Under article 3257 of the Revised Civil Statutes, the necessity of proving a deed offered in evidence as at common law, can only be obviated by first having it recorded in the office of the clerk of the proper county after being proven or acknowledged in the manner provided by law, and then filed among the papers of the cause and three days’ notice given to the opposing party, etc. The notice of an intention to use the deed in evidence, given before its registration, is not sufficient.</p>

Victoria. Tried below before the Hon. H. Olay Pleasants. Suit in trespass to try title by Thomas O’Connor against 1ST. 0. Gullett and his wife and John T. Allan. Allan disclaimed all interest in the land, and Gullett and wife pleaded “not guilty.” O’Connor claimed under a patent issued to F. L. Wren, assignee of Francisco Oassanova, which issued on the 7th of April, 1877. The location and survey of the certificate were made during the same year in which the patent issued.

<p>1. Judgment.—A judgment rendered in the district court after the death of the original party plaintiff or defendant, can only be regarded on appeal as unauthorized and void, when the transcript fails to show that the legal representative of the deceased party was made a party in the court below.</p>

<p>1. Construction on sidewalks in a city — Notice.—When neither the charter nor any legislative act requires notice to the abutter or lot owner, in order to make him liable to pay the cost of sidewalk improvements, then it is not essential that he receive notice, either actual or constructive.</p> <p>3. Power on Galveston to construct sidewalks.— The city of Galveston had power to undertake the construction of sidewalks on its general credit, but the lot owners would only be liable for the actual cost, which would only be the cash value of the bonds paid by the city for the work.</p> <p>8. Statute construed—Same.—The city of Galveston adopted, for the construction of sidewalks, a plan which involved the issuing of bonds to an amount in excess of the amount to which the city was limited by its charter in borrowing money for general purposes. Held, the limitation of the power to borrow money for general purposes could not affect the right of the city to borrow money for sidewalk improvements.</p> <p>4. Liability of lot owner nor sidewalk construction.— It is no answer to' the claim of the city of Galveston against a lot owner for costs of constructing his sidewalk, that the city had not paid the principal, or provided for the interest on its bonds issued to effect the construction, so long as it proposes to receive the bonds and coupons in payment for sidewalk assessments at par.</p> <p>5. Same.—The ordinance of the city of Galveston in regard to the construction, etc., of sidewalks, provided that the owner should have the right and privilege of fining, etc., his sidewalk, provided it was done in accordance with the ordinance and specifications, and completed in sixty days after the passage of the ordinance. Held, that one whose sidewalk was not constructed by the contractor until long after the expiration of the sixty days, and who had made no effort to construct it himself, could not complain that the city had advertised for bids and let the contract to do the work before the expiration of the sixty days, within which the owner was authorized to do it himself.</p> <p>6. Same.—The right of the city of Galveston to contract for the filling, curbing, grading and.paving sidewalks, under its ordinance approved May 7, 1874, was not affected by the failure of the city to give personal notice to lot owners of their right to do the work themselves within sixty days. Their right to do the work themselves was declared in a published city ordinance, of which they were required to take notice.</p> <p>7. City ordinance—Publication.—An advertisement required by city ordinance to be made for a period of fifteen days in all the daily newspapers of the city, was published from the 8th to the 23d, inclusive, except on Sunday, on which day no papers were published in that city, and this was held a compliance with the ordinance, which could not have meant fifteen publications on fifteen consecutive days, when it was known by those who passed the ordinance that there was no paper in which it could be done.</p> <p>8. Same.—Though the city of Galveston, by its ordinance of May 7, 1874, required the city engineer to file, in the mayor’s office, immediately thereafter, full specifications, showing how the paving of sidewalks, etc., should be done, the spirit and object of the ordinance were satisfied, if the specifications were prepared with due care and filed by the engineer as soon as practicable.</p> <p>9. Same.—See opinion for facts under which the owner of a lot, the sidewalk in front of which had been constructed at the expense of the city of Galveston, could not evade liability by showing that the contractors had failed to obtain the written consent of the owner, specifying what character of pavement he preferred.</p> <p>10. Same contract.—The fact that the contractors with the city of Galveston, under its ordinance of May 7, 1874, were to receive a uniform price per square yard for brick pavement, without regard to the street or locality to be improved, did not render their contract invalid.</p> <p>11. The assessment made by the city of Galveston for sidewalk improvements did not create a personal liability, authorizing a personal judgment against the lot owner; the intention of the city charter and ordinance on the subject, was to make the cost a charge against the lot, and collectible only by the sale thereof.</p> <p>12. Limitation.—The limitation of four years did not apply to actions on assessments made under city ordinances for sidewalk improvements, prior to enactment of the Revised Statutes.</p> <p>13. Interest.—The assessments made by the city of Galveston to reimburse the city for sidewalk improvements, made by it under ordinance of May 7, 1874, bore interest. ’ It was competent for the city to regulate the interest on the installments, so as to secure full reimbursement.</p> <p>14. Construction of sidewalks by a city.— If the credit of a city is’ such as to cause it a loss in constructing sidewalks within its • ' limits on a credit, the loss does not constitute a part of the legitimate cost of the work.</p>

<p>1. Action — Parties,— The husband may maintain in his own name an action to recover the separate property of the wife, or for the -wrongful conversion thereof.</p> <p>2. Witness — Husband and wife.— The doctrine that the husband or wife could not be a witness for or against each other, prior to the adoption of the Revised Statutes, had no application to a case in which the husband was offered as a witness in a suit brought by himself to recover the separate property of the wife, or for the conversion thereof; in such case he might testify,</p> <p>8. Distinguished.— This case distinguished from Gee v. Scott, 48 Tex., 510.</p>

Ebbob from Nueces. Tried below before the Hon. T. 0. Barden. Suit by the appellant against the appellee, instituted January 15, 1866, for his partnership interest in the proceeds of their copartnership business as manufacturers of tinware, and also for the value of a buggy and harness sold by the plaintiff to the defendant, of the value of $50, on separate individual accomit.

Error from Galveston. Tried below before the Hon. Wm. H. Stewart. Suit instituted by Max Maas, as the holder and owner of the note of John De Bruhl and wife, the appellants, praying for a judgment for the balance due thereon, and for the foreclosure of the hen upon the city lots described in the petition.

Tried below before the Hon. A. P. McCormick. Suit by Wormley, for himself and numerous other parties, alleged to have formed themselves into an association for religious and charitable purposes under the name of the “ Missionary Baptist Church,” for the recovery of a lot of ground and improvements in Brazoria, against the appellant Tunstall and others.

<p>1. Public office — Quo waubanto.— At a general election in 1880, an assessor of taxes was elected, who failed to qualify within the time prescribed by law, and who then presented to the commissioners’ ■ court his resignation, which was accepted. Another assessor was then appointed by that tribunal, who accepted and qualified. In a contest between the appointee and the old incumbent under a former election, involving the right to the office, held —</p> <p>1. The election, failure to qualify, resignation of the newly elected officer, and the appointment of one as his successor who qualified, ended the term of the old incumbent under a former election.</p> <p>3. The giving of the official bond was not a condition precedent to the title to the office divested by the election, but the failure to give it operated as a defeasance, which was a sufficient ground for a judicial declaration of forfeiture.</p>

Error from Aransas. Tried below before the Hon. T. 0. Barden.

<p>1. Injunction— Jurisdiction.—Injunction issued in 1878 from the district court, to restrain the sheriff from collecting $876.47 due for taxes. There was no allegation of damages sustained, or that the sale of the land levied on for taxes would cloud the title or work irreparable mischief. Held —</p> <p>1. The district court had no jurisdiction.</p> <p>2. The remedy should have been sought in the county court, where the power to grant relief in a proper case was full, adequate and complete.</p> <p>2. Statutes construed.—• The exemption from the payment of taxes, extended to certain persons in Brazoria county by the act of 1876, was limited to those who were on the shore of the mainland not more than five miles from the usual water-line of ordinary tide during the storm of 1875, and did not embrace persons living elsewhere.</p>

Tried below before the Hon. A. P. McCormick. The appellant Caplen instituted this suit against appellees in the district court of Galveston county, on the 5th day of June, 1874, to try title to lot No. 4, in block No. 88, in the city of Galveston.

Tried below before the Hon. James Masterson. Isadore Kottwitz, as guardian of the Ooleman minors, brought trespass to try title against J. H. Peregoy and W. 0. Waters, the tenant of Peregoy, in possession of the premises sued for. J. H. Peregoy pleaded a general denial. Jane Peregoy, the wife of J. H. Peregoy, intervened in the case, and claimed the premises sued for as a part of the homestead of herself and J. H. Peregoy.

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

Tried below before the Hon. James Masterson. On the 17th day of October, 1874, Josephine and Sophia Pauska, children of Joseph Pauska, deceased, and Fanny Oulmore, surviving widow of Joseph Pauska, joined by her .present husband, Charles Oulmore, filed their petition in district court of Harris county, in form of trespass to try title, to recover of appellant, Gr. W. Lemmel, lots Nos. 7, 8, 9 and 10, in block No. 279, with improvements, situated in the city of Houston.

Tried below before the Hon. John B. Rector. Robinson sued Loper and McElroy upon a note for $1,203, upon which were indorsed two credits, amounting to $700. Defendants answered, alleging that the note was given for a tract of land which plaintiff represented to contain 1,231 acres, when in fact it only contained 1,091 acres; that they purchased at the price of $3 per acre, and they claimed a proportional abatement for the number of acres short.

Tried below before the Hon. Wm. H. Stewart. Suit by P. J. Loonie against the city of Galveston, appellant, on one hundred and thirty-five “ coupons.” He alleged that in consideration of materials furnished and work and labor performed by him and his assignors under contract with appellant, in and about the erection of its sidewalks, and the filling up of certain of its lots and blocks, the city made, executed and delivered to him and his assignors its sixteen bonds, signed…

Error from Galveston. Tried below before the Hon. Wm. H. Stewart. Suit by John Highland against the city of Galveston for damages on account of the erection of a brick wall four feet high along the outer edge of the sidewalk of his premises, situated on the southwest corner of Strand and Bath avenue in that city, whereby the approaches thereto were in great measure obstructed, and his business, theretofore prosperous, injured.

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

Tried below before the Hon. John P. White, Suit by appellant against appellees to try the title and for possession of the league of land described in plaintiff’s petition, claiming the same as son and sole surviving heir of James Tennell, deceased.

<p>Appeal from Bee. Tried below before the Hon. D. D. Claiborne.</p> <p>O’Neal and wife, the plaintiffs below, in their petition filed October 10, 1874, alleged that on the 30th of July, 1873, O’Neal was the head of a family, and owned no land and had no homestead; that at that date they entered upon the 160 acres of land sued for, then vacant, and claimed it as a homestead pre-emption, intending in good faith to occupy and improve the land, for three years from the 30th of July, 1873, in order to obtain the patent therefor; that they built a dwelling house upon it, fenced in a field, and made improvements to the value of $500; that on September .1, 1873, business of an important nature called them to eastern Texas; that putting special trust in the defendant, Wesley Young, they left him in charge of the premises, their furniture, stock and farming utensils, upon his express promise to take care of them until their return, and redeliver the same to them; that they were unavoidably absent five months, and on their return Young set up a claim to the premises and refused to deliver the same to them; that Young, in December, 1873, pre-empted the land for himself, making affidavit in accordance with the statute, and Atkins, the county surveyor, surveyed the same for him; that plaintiffs in July, 1874, made the affidavit to pre-empt the land, etc., and presented it to Atkins, and demanded that he survey it for them, which he refused to do.</p> <p>They averred the value of the use and occupation to be $300, for which they prayed judgment and for damages; that the location and survey for Young be cancelled, and for a mandamus against Atkins to survey the land for them as a pre-emption, etc.</p> <p>The defendants filed general and special exceptions for misjoinder of causes of action and parties, and that it did not appear the land was vacant land. They also answered by general denial, and that Young, the land beiilg vacant, had selected and appropriated it as a homestead under the pre-emption laws.</p> <p>The defendants’ general and special exceptions were overruled. The case was submitted to a jury, who found for the plaintiffs’ right of pre-emption on the land, and $45 for use, rent and profits. Judgment cancelling the survey made for Young, and ordering the surveyor to survey the same land for plaintiffs, and for the $45 rents.</p> <p>The defendants moved for a new trial, which motion was overruled.</p> <p>The facts proven were substantially as follows:</p> <p>In June, 1873, the plaintiffs were living upon the land and had been for several years previous. It was not then ascertained definitely whether it was vacant land. They had built a house upon, cleared a small field, and had some cattle and hogs upon the premises.</p> <p>In June, 1873, they left the premises and their furniture and stock in possession of Young, to take care of and redeliver to them upon their return from eastern Texas, which Young promised to do.</p> <p>Hunt, a witness for plaintiff, says: In June, 1873, the plaintiff on leaving, instructed Young “that if the county surveyor of Bee county made any survey in the neighborhood of the premises, to have said surveyor definitely ascertain whether the land was vacant,” and if so, “the plaintiff would file upon the same and claim the same as a homestead pre-emption.”</p> <p>Mrs. O’Neal Says, “they instructed defendant that if there were any surveys made in the neighborhood, to ascertain whether said premises were on vacant public domain, and if so, they intended and wished to file upon the same as a homestead pre-emption.” They returned in January, 1874, demanded possession of the premises of Young, who stated he had filed upon the same as a homestead pre-emption for himself and had it surveyed. Atkins, the surveyor, proved that in December, 1873, he ascertained the land to be vacant, and he then surveyed it for Young. On July 18, 1874, O’Neal made affidavit of his settlement on the land, and presented it with a designation of the land to the surveyor, Atkins, demanding a survey, which Atkins refused, as he had already surveyed the land for Young in December, 1873, upon his file and location, which with the field notes have been forwarded to the general land office.</p> <p>The court instructed the jury, among other charges, that if, while Young was holding the land for plaintiffs as their agent, he ascertained that it was vacant, and had the same located and surveyed for himself before the 26th of May, 1874, that would be a fraud upon the rights of the plaintiff, and the jury should find for the plaintiff.</p> <p>A charge asked by defendants, that if O’Neal and wife lived upon the land on the 26th of May, 1873, or prior to that time, and failed to have it surveyed within twelve months after that date, he acquired no title to the land, and could not recover it against a party who has under the law appropriated it as a homestead, was refused.</p> <p>The motion for a new trial was based upon, 1. The overruling the general and special exceptions to the petition. 2. Error in charges given and refusal to give charges. 3. That the verdict and judgment is against the evidence and the law.</p>

Tried below before the Hon. W. D. Wood. M. A. R. Allen, as surviving widow and sole heir of Wm. S. Allen, brought trespass to try title in Houston county, March 29, 1879, against J. J. Woodson and others, for the recovery of the west half of the J. J. Thomas league. All the defendants who answered filed disclaimers, except Woodson, who pleaded not guilty, and limitation as to 750 acres of the west half described by metes and bounds.

Tried below before the Hon. A. P. McCormick. Suit by Ann Hamilton against appellee for running its cars over Nathaniel Brown, aged fifteen, years, only son of plaintiff, and killing him; alleging that Nathaniel Brown was employed by the company without the consent and against the will of plaintiff; that he was a minor of tender years, and employed at extra hazardous business by defendant — coupling and uncoupling cars; that his death was caused by the gross negligence of…

Tried below before the Hon. Wm. H. Stewart. Suit by Beasley, the appellee, against the appellant, Kauffman, and Dublé & Wooters, cotton and wool factors and general commission merchants, to recover forty bales of cotton, or their value, shipped to his factors, Dublé & Wooters, to sell in the city of Galveston, and to recover and account for the proceeds to him.

<p>Appeal from Galveston, Tried below before the Hon. Wm. H. Stewart.</p> <p>The following statement of the pleadings given by appellant is adopted as correct; the evidence is sufficiently stated in the opinion for an understanding of the case:</p> <p>■ Suit was brought January 19, 1878, by Isabella Hagadon, widow, against Thomas H. Edgar, to recover the amount of a promissory note made by Thomas H. Edgar, dated 1st September, 1873, due twelve months after date, for the sum of two thousand dollars, with twelve per cent, interest (less a credit of $340), and against the heirs of Alexander Edgar and E. E. Edgar, to foreclose a mortgage or deed of trust, made by Thomas H. Edgar, under a power of attorney made by Alexander Edgar and his wife, dated August 11, 1873, authorizing Thomas H. Edgar to mortgage lot 5, in block 378, the property of Alexander Edgar and wife, in the city of Galveston, to effect a loan, and borrow money for himself, and thereupon to assure and secure the payment thereof, to grant and deed by mortgage or deed of trust, or other instrument in writing, on lot 5, in block 378, in the city of Galveston.</p> <p>Thomas H. Edgar made no defense, and judgment was rendered against him by default, for the amount of the note and interest.</p> <p>The other defendant answered, and pleaded that the debt was the personal debt of Thomas H. Edgar, and not the debt of Alexander Edgar and wife; that Edgar and wife were but sureties, and that the sureties were dis- ' charged by neglect of plaintiff to enforce her debt against Thomas H. Edgar during the lives of said Edgar and wife; that Edgar and wife were dead, leaving constituents of their family; that the lot on which the foreclosure was prayed was, at the time of the death of Edgar and wife, a part of the homestead of the family of Edgar and wife, and that all the lots comprising the homestead did not cost five thousand dollars at the time of their designation as homestead, and denied all allegations of plaintiff.</p> <p>January 22, 1879, plaintiff on leave filed first supplemental petition, and demurred to answers of defendants, again setting up execution of mortgage under the power of attorney and denying the homestead claim, and alleged that Edgar and wife had abandoned the homestead, and acquired a homestead in Chambers county'and died there, leaving no debts, and there had been no administration on their estate; that the children of Edgar and wife, long . before the decease of then parents, had become of full age or married; that the mortgaged lot had not, since the execution of the trust deed, been occupied by Edgar and wife, and had long since ceased to be homestead.</p> <p>January 24, 1879, defendants set up that the homestead of Alexander Edgar and wife for twenty-five years last past before then decease consisted of lots 5, 6 and 7, in Mock 378, in the city of Galveston, and did not cost $5,000 when designated as homestead, with the buildings and other improvements thereon, under one enclosure; that they were occupied during said years by Alexander Edgar and wife and family, until in 1861, on account of the war, Edgar and wife rented out the property temporarily, and went into Chambers county as visitors, and resided with their son-in-law, W. S. Andrews, in Andrews’ house as guests, where they died, but did not abandon their homestead rights in Galveston property; that at the death of Edgar and wife the constituents of the family were residing together as a family—Fanny Andrews, daughter; Phoebe Wescott, grand-daughter; minor Alice Patrick, daughter; Sydney V. Patrick, grandson; and that the homestead property vested by law in the heirs of said Alexander Edgar and wife, subject only to distribution among the heirs, and free from the claims of creditors of Alexander Edgar and wife; pleading'that the said Edgar and wife were only sureties for the payment of the debt of Thomas H. Edgar; and a year or more after it became due, the plaintiff, in consideration of one hundred dollars paid to her by said Thomas' H. Edgar, granted him additional time on the debt without the consent of defendant parents’ sureties thereon, and pleaded that the sureties were thereby discharged in person and property.</p> <p>January 28, 1879, the guardian for minor defendants adopted supplemental answer of the adults. There was judgment by default against Thos. H. Edgar; and Thos. M. Joseph, trustee, came in and made himself party. January 31, 1879, judgment final against Thos. H. Edgar for $2,720, with interest. The other defendants having submitted the matters affecting them to the court without a jury, the court adjudged the lien claimed by plaintiff under the trust deed on lot 5, block 378, and the improvements thereon established, and ordered it to be foreclosed and sold by the sheriff of Galveston county; the proceeds to be applied to the satisfaction of the judgment against Thos. H. Edgar, and interest and cost, and the balance to defendants.</p>

<p>Appeal from Walker. Tried below before the Hon. J. R. Burnett.</p> <p>William Goodwin and Sarah Goodwin, his wife, appellees, brought suit jointly against H. F. & E. D. Craddock, on the following alleged causes of action:</p> <p>1. The wrongful and malicious suing out of an attachment by the appellants against William Goodwin, in one of the justices’ courts of Trinity county, on a note for $118.51, executed by William Goodwin in favor of H. F. & E. D. Craddock.</p> <p>2. The wrongful and malicious suing out of an attachment in the district court of Trinity county, by the same parties, on the same note, against William Goodwin.</p> <p>3. For damages for the wrongful seizure and detention under those attachments of a mare of the value of $100, claimed to be the property of William Goodwin.</p> <p>4. For damages for the willful seizure and detention under the attachments of a colt of the value of $50, alleged to be the separate property of the appellee Sarah Goodwin.</p> <p>The appellants pleaded in reconvention the note on which the attachments were sued out, to which appellees excepted, and the exception was sustained, on the ground that a claim against William Goodwin could not be pleaded in reconvention against a joint demand of William and Sarah Goodwin. Judgment was rendered against the appellants in favor of the appellees jointly for 8200.</p> <p>Sarah Goodwin was not a party to the attachment suits of appellants against William Goodwin. Appellees did not sue for the possession of the mare and colt alleged to be exempt from attachment. Appellees declared on the attachment bond in the attachment sued out in the district court, but dismissed as to the sureties, they not being served with process. In the other attachment they did not declare on the attachment bond.</p> <p>Appellants contended that there was an improper joinder of parties plaintiff; also an improper joinder of causes of action; that appellants’ plea in reconvention was good at least against William Goodwin’s claim for damages, for the wrongful suing out of the attachment.</p> <p>The evidence established the issuance of the attachment as alleged from the justice’s court, the suit there being for an amomit beyond its jurisdiction; the levy upon the mare, the property of William Goodwin, and upon the colt, the property of his wife; that the mare was the only animal of the horse kind belonging to him; that the mare was worth $100; the colt worth $50; that the actual damage sustained by plaintiff, by reason of the seizure, was proven to be some $39.50, money paid out in attending court, and $31 loss of time,— the value of the use of the mare from the time of seizure to the trial was proved to be fifty cents a day over two years, and that both animals were exempt.</p> <p>The charge of the judge restricted the inquiry of the jury to two.issues:</p> <p>1. Whether the attachment was issued in a suit for an amount over $100, and if .so, that it was void, “and they should find for the plaintiff the actual damage sustained by them, the direct and immediate result of the levy, loss of time in defending the attachment suit and expenses paid, and the reasonable value of the use of the property attached.”</p> <p>2. Whether the colt was the separate property of Mrs. Goodwin and the mare the only animal of the horse Mnd owned by Goodwin. If so, the property was exempt from execution, and that if the Craddocks levied on them, and had them, they should find for the plaintiff their value, and the actual damage sustained by the plaintiff by reason of the levy, etc.</p> <p>The jury were instructed that they could not find vindictive or exemplary damages.</p> <p>The verdict was for the plaintiff, and $200 damages assessed.</p> <p>The errors assigned were:</p> <p>1. Overruling defendants’ exceptions to the petition.</p> <p>2. Sustaining exceptions to the plea in reconvention.</p> <p>3. Overruling exceptions to citation, and permitting plaintiff to prove expenses incurred in attending court.</p> <p>4. Overruling motion for a new trial.</p>

<p>Appeal from He Witt. Tried below before the Hon. D. D. Claiborne.</p> <p>Suit by Boehl against Wadgymar and wife, for the recovery of a debt and to enforce a lien upon certain lands for the payment of it.</p> <p>The plaintiff in his petition averred that the defendant, Wadgymar, came to him on or about the 28th of December, 1873, and represented that he desired to purchase two certain tracts of land; and that if plaintiff would lend him money to make the purchase, he, defendant, would hold the lands in trust for the repayment of the money; that he would immediately execute to petitioner a mortgage upon the lands, upon his receiving a deed from the vendor; that upon this condition, that the land should be held in trust by the defendant for the payment of the money loaned him, that he would execute a mortgage upon the lands so soon as he obtained the title thereto, and would pay petitioner ten per cent, per annum interest upon the loan, plaintiff loaned the money to the defendant. That with this identical money the defendant purchased the two tracts of land described in plaintiff’s petition, and after the purchase was made, defendant again promised to execute the mortgage, but subsequently refused to do so, and denying that any lien existed upon the land in favor of plaintiff, claimed that the lands constituted the homestead of himself and wife; that they were in the occupancy of defendant and his family; that defendant fraudulently repudiated the contract made with plaintiff; that he was without property except such as was exempt from forced sale, at the time of the loan of said money to him, and was still without property liable to execution; and that it was only upon the security of the land that plaintiff loaned the money to the defendant. The petitioner further averred, that upon the receipt of the money loaned him by plaintiff, the defendant executed a receipt for the same. That receipt is in these words: “I hereby certify that I, the undersigned, have received of Matines Boehl, two hundred and ninety dollars specie, upon condition that I will execute to him a mortgage upon my property, to continue for one year, provided I shall have three months’ notice before payment can be demanded of the said money, and I am not at liberty to pay the same unless the like notice shall have been given to the lender of my intention to pay.</p> <p>£ c Arthur Wadgymar.</p> <p>“Witness: Fr. Freude.</p> <p>“ De Witt County, Texas, December 28, 1873.”</p> <p>The prayer of the petition is that he have judgment for his debt, that a lien upon the land may be established in his favor, and for sale of it to satisfy his debt.</p> <p>To this petition defendants demurred and answered. Their demurrer was sustained so far as the petition set up a lien upon the land, and asked for its enforcement.</p> <p>The case was submitted to a jury, who found for the plaintiff a verdict for his monied demand. Judgment accordingly.</p> <p>By bills of exceptions, it appeared that the plaintiff offered to prove by witnesses the allegations of his petition as to the understanding with defendant in reference to the loan of money, the mortgage to be executed, and the lands upon which it was to be made, and this proof, upon objection, was not admitted.</p> <p>The assignments of error present the question whether the court erred in sustaining exceptions to the plaintiff’s petition and in rejecting the testimony offered,</p>

<p>1. Attachment — Constructive delivery — Commercial usage.—A cotton factor in Galveston procured an advance of money from a banker on “cotton in press,” for which he gave his order on the press to deliver the cotton to a vessel then in port loading for Liverpool. The order was notified to the press, and the master of the vessel made and delivered to the cotton factor, as the shipper, a bill of lading for the cotton, which the factor indorsed and delivered to the banker, with his exchange on Liverpool, in favor of the banker, attached. Afterwards a third party, who was a creditor of the cotton factor, sued out an attachment against him and levied it on the cotton, which was still in press. In a contest between the banker, as claimant of the cotton, and the attaching creditor, held—</p> <p>1. The execution of the bill of lading for the cotton by the master of the vessel in favor of the cotton factor, and the transfer and delivery thereof by the factor to the banker, constituted constructive delivery of the cotton.</p> <p>. 2. An actual manual delivery of the cotton was not necessary to pass its possession, nor was it necessary that the delivery should have been made to the pledgee in person.</p> <p>3. The special requisite of delivery is, no matter in whose hands the property was a deposit, that it he no longer subject, in fact or in law, to the dominion, possession or control of the pledgor, but to that of the pledgee.</p> <p>4. The execution of the delivery order by the factor to the vessel for the cotton in press, and the recognition and acceptance thereof by the press, before the levy of attachment, constituted a delivery of the cotton, so as to except it from attachment by the creditor.</p> <p>5. The transfer of the bill of lading to the banker was as effectual a transfer of the cotton as its manual delivery could have been.</p> <p>6. The attaching creditor acquired no greater right in the attached property than the factor had at the time of attachment.</p> <p>2. Commercial custom.— See opinion for commercial usage at the port of Galveston, regarding the compressing, transfer and shipment of cotton.</p>

<p>1. Waoer on a horse race—Construction of contract.—A written contract for a horse race provided that a stake-holder selected by the parties should give the word for starting, and that the horses should “ come up to the mark and start at the word 1 Go” It was contended in a contest involving the stakes, that the word for starting was given in so loud a tone that one of the horses became frightened, and not entering the polls was not turned loose, while the other horse started and ran the distance required by the contract. Held—</p> <p>1. The contract being silent as to the consequences of a failure to start when the word is given for the start in a horse race, parol evidence of custom is admissible to explain its consequences.</p> <p>2. It will be presumed where the contract was silent, the parties had in view the rules of the turf. Evidence of these rules does not vary the contract, but explains the meaning of the parties to it.</p> <p>3. A horse race is not unlawful, and a wager on one is recoverable.</p> <p>4. If the practice of horse racing leads to vibious courses, it will not tend to mend the morals of the turf, to facilitate parties in escaping from the binding force of contracts, deliberately made and not violative of law.</p>

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

<p>1. Venue — Construction oe statute — Jurisdiction.—The plaintiff sued for damages caused to his land and the improvements thereon, situate on the south bank of the Rio Grande river in Mexico, by obstructions placed in the bed of said river by defendant, on the Texas side thereof, in the county of Cameron, in which county the defendant resided, and the suit was brought. On the question of jurisdiction, held—</p> <p>1. The technical rules of the common law have no more to do in determining the venue of a cause in Texas, than the rules of the common law governing the form and names of actions.</p> <p>3. if the state failed to give to one of its citizens a remedy against others for such an injury as the one complained of, it would fail to observe the constitutional pledge promising a remedy by due course of law for injury done, in lands, person or reputation, as plainly as if it refused a remedy for an injury inflicted in a foreign jurisdiction to one’s goods or person.</p> <p>3. Article 1198 of the Revised Civil Statutes subjects every citizen to be sued in the county of his domicile, subject to certain exceptions, of which this is not one. That article annuls the technical rule of the common law regarding transitory and local actions.</p> <p>4. The 13th exception to art. 1198 has no application in this case, and the action was maintainable in Cameron county, as the county of defendant’s residence, not only under the general provisions of that article, but under the eighth subdivision of it.</p>

<p>Appeal from. Parker. Tried below before the Hon. J. A. Carroll.</p>

<p>1. Homestead.—The homestead, though situate on laud in which the claimant of homestead rights owns but an undivided interest, is ' protected by the constitution from forced sale.</p> <p>3. Pleading—Homestead.—In a suit to foreclose a mortgage on land, an undivided interest in which is claimed by the defendant, who asserts homestead rights, Ms plea setting up such interest, and stating facts showing Ms inability to designate before partition his homestead boundaries, presents a valid defensé.</p> <p>8. Homestead.— The failure of one asserting homestead rights to designate the homestead boundaries cannot authorize the forced sale of the homestead under judicial process.</p> <p>4 Homestead.— The constitutional protection against forced Sale of two hundred acres as a rural homestead, not only protects the home, when established on land owned jointly with another, but if parti- ' tion with other joint owners should be impracticable, the homestead right would attach to and protect the proceeds of sale made for partition, to the extent of the homestead value.</p> <p>5. Case discussed and distinguished.—Clements v. Lacey, 51 Tex., 150, discussed and distinguished from the present case.</p> <p>6. Practice.— When the holder of a mortgage desires to subject to the payment of Ms debt the interest of the debtor in land, in excess of the homestead right, and there are other joint owners of the land, the better practice is to make the other joint owners parties, for purposes of partition before sale.</p>

Tried below before the Hon. Spencer Ford. Suit brought by Shafer to recover damages for personal injuries received on the defendant’s railway in December, 1874, while a passenger from Bremond to Hearne, in Eobertson county. The defendant filed general and special demurrers, general denial, plea of contributory negligence and plea of not guilty.