Volume 57 — Texas Reports

<p>Appeal from Grayson. Tried below before the Hon. Joseph Bledsoe.</p>

<p>Appeal from Lampasas. Tried below before the Hon. E. B. Turner.</p> <p>Mullins brought this suit of trespass to try title against Weaver, January 9, 1873. The petition alleged that W eaver made the unlawful entry on January 1, 1873.</p> <p>By an amended petition he alleged his possession of the land for more than three years under title and color of title, and for more than three years before September 3, 1858; that he had had fifteen yéars’ peaceable possession before Weaver’s entry, and during that time he had in good faith put lasting and valuable improvements upon the land.</p> <p>Weaver answered by plea of “ not guilty.”</p> <p>The cause was tried without a jury, and judgment rendered for Weaver, from which Mullins took this appeal, and assigned several errors, only one of which was relied on by counsel, and that was the ruling of the court in excluding as evidence a deed under which he claimed, on account of alleged defects in the certificate of the officer of the acknowledgment of a married woman.</p> <p>The facts sufficiently appear in the opinion.</p>

Tried below before the Hon. Joseph Bledsoe. This was an agreed case under art. 1414, Revised Statutes. The facts as agreed upon were substantially as follows: University league Ho. 2 was located and surveyed in 1839, and the Edmund Tucker survey in 1841. The north line of the league, and the south line of the Tucker, was a common boundary line between the two.

Error from Williamson. Tried below before the Hon. J. P. Osterhout. On July 21, 1874, the plaintiffs in error brought suit against defendants in error to recover the land in controversy, claiming the same as the heirs of Wm. Gatlin, deceased. The defendants answered by general denial, not guilty, three, five, and ten years’ limitation, and suggested improvements made in good faith.

Tried below before the Hon. R. R. Gaines. The testimony of the witness Dan Hopper, referred to in the opinion, was as follows: “I lived near the land in controversy, and was well acquainted with James M. Bumpass and John E. Wool-folk; knew them ever since I ivas a little boy, and knew Woolfolk until the date of his death. Bumpass was broken up by the war, and at the date of the deed from him to Woolfolk was involved.

<p>1. Contemporaneous parol agreement varying terms of written contract— Variance.— There was a written agreement between two parties that one would buy a specified number of beeves from the other, for an amount to be ■ paid for each beef delivered. The number was delivered, with the exception of a few retained at the request of the purchaser. The latter sued for damages for breach of contract, setting up a contemporaneous parol agreement, that the price paid for the cattle was so much for them, and so much in consideration that the vendor would use his influence to procure business for the vendee, and send him cattle in the future. The terms of the written contract were plain and unambiguous, and there was no allegation of fraud or mistake. Held, (1) Such contemporaneous parol agreement varied the terms of the written instrument, and should have been excluded by the court. (2) Evidence showing damage sustained by plaintiff, because of his failure to make a profit on the cattle, etc., was clearly inadmissible as irrelevant.</p> <p>2. See opinion for oral testimony which, had it been admitted, would have formed a contract different from that set up in the petition, and entitled defendant to a new trial, on the ground of variance.</p>

<p>1. Probate of will — Citation.—In a suit brought in the district court, under the probate law of 1870, to probate the will of one who did not reside in Texas at his death, notice should be given by citation to all parties interested in the administration, in like manner as is directed (Pasch. Dig., 5533) in case of wills of residents, and no particular individual can be properly made defendant.</p> <p>2. Establishment of will as muniment of title.— In a suit brought to establish as a muniment of title a will probated in another state, its regular probate, in this state should be shown; and a certified copy of the same, and its probate in such other state on evidence sufficient to admit it to probate here, are inadmissible.</p> <p>3. Same — Misjoinder of parties.— In such a suit by parties claiming under the will of the son of the original grantee of the land, and brought not for the land or for trial of the title thereto, but merely to perfect and establish their muniment of title, one alleged to claim the land by purchase from certain heirs of the original grantee is not a proper party, and can plead misjoinder in abatement.</p> <p>4. Same—Plea to the jurisdiction.— In such a procedure, where no facts are shown giving the county in which the suit is brought jurisdiction, and the defendant resides in another county and pleads to the jurisdiction, the plea should he sustained.</p>

J. B. La Londe and wife, owners of property in the town of Denison on the 3d day of April, 1878, on that day made a deed absolute on its face to that property to Tobias Porter, intended as a security for the estimated amount of their indebtedness to him for goods, etc., to be received. The deed was recorded on the 27th of September, 1878.

<p>Appeal from Cooke. Tried below before D. E. Barrett, Esq., special judge.</p> <p>The opinion states the case.</p>

Tried below before the Hon. J. A. Carroll. On October 18, 1875, W. T. Thornton sued M. R. Tutt to recover on a note dated April 19, 1871, for §450, payable to the order of Henry Heckler, and signed by Tutt. Thornton wrote his name across the back of the note before its delivery to Heckler; subsequently he paid Heckler the amount of the note, and it was transferred to him.

Tried below before the Hon. R. R. Gaines. The following presents the case as agreed upon by counsel: “ This suit was instituted on the 22d of June, 1880, in the district court of Lamar county, by Mary P. Braden, joined by her husband, S. Braden, against John A. Gose, sheriff of Lamar county., E. D. Scales, who resided in Lamar county, Texas, and one N. Van Beil, who resided in the city of New York, to enjoin the sale of sixty-eight acres of land situate in Lamar county,…

Tried below before the Hon. Joseph Bledsoe. Action of trespass to try title instituted in the district court of Collin county, brought on the 4th day of March, A. D. 1880, by Octavia C. Pyron, Ella Pyron, Charles Pyron, and a number of others, to recover title and possession of seven hundred and thirty-eight acres in the Sylvester Williams survey. Plaintiffs filed amended original petition on the 18th day of March, A. D. 1880.

Tried below before the Hon. George N. Aldridge. September 22, 1877, Mary A. Durrett filed her petition, joined by her husband, John A. Durrett, in the district court of Dallas county, against the Texas & Pacific Railway Company, alleging that on the 1st of December, 1872, she was the owner and in possession of a tract of land in that county, containing one hundred and seventy and four-ninths acres, described by metes and bounds, and that at that date the defendant took…

<p>1. Clerk’s costs.—The issuance without fee of copies of original citations is one of the burdens devolving upon a district clerk as incident to his office under existing statutes.</p>

Error from Guadalupe. Tried below before J. F. Miller, Esq., special judge. Suit filed October 17, 1871, by plaintiffs in error, Mary M. Childress, joined by her husband, James Childress, and Elenora Herndon, joined by her husband, J. C. Herndon, to recover of defendant in error a half interest in a tract of one hundred acres of land in Guadalupe county, and for partition.

Tried below before the Hon. A. S. Broadus. This was a suit filed by appellant against appellees R. W. Porter and M. H. Porter, on the 23d of ¡November, 1874, to cancel a patent held by appellees for one hundred and seventy-seven acres of land, so far as it conflicted with appellant’s claim to one hundred and sixty acres of the land as a pre-emptor.

Tried below before the Hon. John C. Easton. On November 8, 1870, this suit was brought by appellees, as heirs of W. H. Herrill and wife (both dead), to recover three hunclrecl and twenty acres of land in Lamar county from appellants.

Tried below before R. De Armand, Esq., special judge. On August 9, 1872, S. A. Cook instituted this suit in the district court of Grayson county, against Lindsay and others, to try the title to one league and labor of land, the title to which was extended to James Robertson, by George W. Smythe, special commissioner, on the 12th day of October, 1835.

Bexar. Tried below before the Hon. George H. Noonan. Appellee Wenzel Friedrich sued appellants for damages in the sum of $10,000 for injuries received by him on the 15th day of July, 1881, occasioned by a defective grating in the sidewalk contiguous to the property of appellants.

<p>Error from. Bexar. Tried below before the Hon. G. H. Noonan.</p>

<p>1. Negligence.— In a suit for damages resulting from the alleged negligence of 3 railway employees in running over a traveler at a road crossing, it is not error, on a proper state of facts, to submit to the jury the question whether the employees of the company, in the exercise of proper watchfulness and caution in approaching the crossing, should not have discovered the plaintiff on the track, or in danger, in time to have stopped the train.</p> <p>2. Charge op court — Trial by jury.— A person approaching a railway track at a road crossing is bound to use such precautions as a prudent man would resort to under like circumstances; but any attempt by the court to prescribe thé precise thing he should do in exercising such caution, would be an invasion of the province of the jury, by charging on the weight of evidence.</p> <p>3. Negligence.— If horses driven along a public highway become unmanageable from fright, and thus rushing to a road crossing are killed by a passing train, if their fright and unmanageable state were occasioned by the near approach of the train, and that near approach was caused by a failure to give the signals of approach prescribed by statute, the company would be liable in damages, there being no contributory negligence on the part of the driver.</p> <p>4. Damages—Negligence.— A party driving along a public road, whose horses became unmanageable from fright on the near approach of a railway train, was thrown violently by the locomotive from the railway track, whereby injury resulted. In a suit for damages, held,</p> <p>(1) If the plaintiff’s failure to discover the approaching train in time to avoid the danger, and his want of preparedness to avoid the danger when discovered, were not caused or induced by the failure of the railway employees to give the required signals, but were caused by plaintiff’s own want of proper care, then the railway company was not responsible, unless its employees were remiss in not endeavoring to stop the train when they saw or should have seen plaintiff’s danger.</p> <p>5. Charge of court — Fact case.— See opinion for charge of court regarding negligence, reviewed and approved.</p>

Tried below before the Hon. J. M. Lindsay. This suit was brought by James L. Leslie, against the appellant, claiming 020,000 as damages on account of injuries sustained, by him, and caused by the negligence of the appellant’s employees, who were in charge of and conducting the passenger train of cars on the defendant’s line of road, which injuries were received at Tan Alstyne, a station on that road.

<p>Appeal from Bexar. Tried below before the Hon„ George H. Noonan.</p> <p>The opinion states the case.</p>

<p>1. Delivery of chattels pledged.—A warehouseman’s receipt, negotiable in form, was transferred by the holder as security for a debt to one who at once exhibited the same to the warehouseman having charge of the goods pledged as security, and he at once, at the request of the creditor, and -at his expense, and in his name, effected an insurance on the goods, which were thereafter held for the creditor. Held,</p> <p>(1) That this constituted such an immediate delivery and continuous possession of the property pledged as is contemplated by the statute (Acts of 1879, p. 134).</p> <p>(2) The statute does not require an actual delivery, and whatever act is in law an immediate delivery meets its requirements.</p> <p>(3) What constitutes a delivery of chattels must depend on the nature and situation of the property.</p> <p>(4) The property was, under the facts in this case and the statutes (arts. 2292-2296, 166, 167), subject to attachment; but he who holds property in pledge cannot avail himself of the statutory remedy provided for the trial of the right of property, if the levy be made on notice as the statute directs, and the pledgee’s possession be not disturbed. If, however, possession be taken by the officer under the attachment, the statutory remedy to try right to property may be resorted to.</p>

<p>1. Trespass to try title.—A less estate in land than a fee simple may form the basis for the action of trespass to try title.</p> <p>2. Same.— One in whose favor an action of forcible entry and detainer may be properly brought, may, in lieu thereof, maintain trespass to try title.</p> <p>3. Jurisdiction.— One having an interest in land for a term, of years may maintain in the district court his action of trespass to try title against his tenant holding over, though the damages claimed may be less than five hundred dollars. •.</p>

Tried below before the Hon. B. F. Williams. Suit brought by appellant Allen Hines against appellees Susan W. Thorn et al. Although denominated trespass to try title, it partakes of the nature of one to remove clouds from the title of Hines to certain lands in Young, Baylor and Throckmorton counties, patented to Frost Thorn, under whom defendants, Mrs. Thorn and others, claim.

Tried below before the Hon. R. R. Gaines. Fifteen days after the birth of Henry H. Clark, the appellee, this suit was brought by his next friend in his behalf to recover damages of Dr. John Brooke, a practicing physician, who acted as accoucher at the child’s birth. Brooke was charged with gross negligence in tying a ligature around appellee’s penis, instead of the umbilical cord, at his birth, whereby the glands of the penis came entirely off.

<p>1. Construction OB’ wills.— By the terms of a will devising property to an only child, who died before she arrived at the age of twenty-one years, leaving issue, it was provided that the executor named therein should have the possession, management and control of the property until the devisee arrived at the age of twenty-one years. The executor, after the death of the heir, claimed to be entitled to control the estate until the time when the heir would have been twenty-one years old had she lived. Held,</p> <p>(1) It was the intention of the testator to give the executor the control of the heir’s property during minority, and not longer.</p> <p>(2) The minority of the heir ceased upon her marriage, and with it ceased the authority of the executor.</p> <p>(3) The executor, after his adverse claim, was not a proper executor.</p>

<p>1. Homestead.—When a homestead has been once acquired, the subsequent death, marriage or removal of all the individuals who composed the family, except the surviving husband, does not subject the homestead to forced sale under a judgment against him, he still occupying it as a home.</p>

<p>1. Fact case—Negligence.—See opinion for facts stated in the petition which were held sufficient to render a railway company liable in damages for injuries inflicted upon a child while it was playing on a railway turn-table.</p> <p>2. Damages — Negligence,— An action may be maintained by a parent for the loss of his child’s services during minority, and for all necessary expenses and losses incurred in attention to it while sick from an injury caused by the negligence of another, and this notwithstanding an action may be maintained in behalf of the child for such injury as results in personal damage to himself.</p>

<p>Appeal from Washington. Tried below before the Hon. I. B. McFarlane.</p>

<p>1. Judgment—Injunction.— The judgments formerly authorized against the sureties on an injunction bond, where injunction issued to stay collection of a judgment, were on a construction of art. 3936, Paseh. Dig., and were statutory judgments. They were not rendered by the district court under its general equity powers. Under the Revised Statutes no judgment can be rendered against the principal and sureties on an injunction bond, or against the principal alone, on dissolution of the injunction.</p> <p>2. Same.— Ontho dissolution of the injunction the holder of the judgment pursues his ordinary remedy to collect the same, and the bond which restrained its collection gives him an additional security for his debt.</p> <p>3. Same.— The ten per cent, damages allowed by statute on the amount of the debt, when the collection of money is enjoined, is the measure of defendant’s remedy on the dissolution of the injunction, unless by pleading and evidence a necessity for further relief is shown, in which event the court, in the exercise of its general equity powers, will grant the relief. But such further relief cannot be afforded on exceptions which go only to the dissolution of the injunction, dismissal of the bill, and entry of judgment for statutory damages.</p> <p>4. Same — Statute construed.— Art. 2898, K S., providing that the principles, practice and procedure in courts of equity should govern proceedings in injunction when the same are not in conflict with the statute, did not add anything to the powers already possessed by the district courts before.</p>

<p>Appeal from Burleson. Tried below before the Hon. I. B. McFarlane.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Appeal from Dallas. Tried below before A. Lathrop, special judge.</p> <p>The opinion states the case.</p>

<p>. Appeal from Robertson. Tried below before the Hon. W. E. Collard.</p> <p>The opinion states the case.</p>

<p>1. Assignee mat sue in his own name.— The assignee or equitable owner of a chose in action may sue in his own name.</p> <p>2. Right to sue fob tort, when assignable.— Where cattle were run over and killed by the cars of a railroad company, and the owner of the stock assigned the right to sue the company for the damage sustained, held,</p> <p>(1) That the assignment conveyed the right to sue, the tort being not one to the person, but to the estate.</p>

<p>Appeal from Galveston. Tried below before the Hon. A. P. McCormick.</p>

Tried below before the Hon. W. H. Andrews. M. J. P. Haynes (now Sickles), as surviving wife of John W. Haynes, deceased, and as next friend of the minor Sallie Haynes, brought this suit against Largent, September 5, 1874, to try title to the land described in the petition, claiming that she ivas the surviving widow, and that the minor Sallie ivas the only child of John W. Haynes, deceased, who died intestate, etc. On April 16, 1875, an amended petition was filed, alleging…

Tried below before the Hon. A. S. Walker. This suit was brought by Joe H. Stewart, plaintiff, against the International & Great Northern Railroad Company, defendant, to recover $21,500, actual and exemplary damages for personal injuries alleged to have been received by plaintiff in walking and tumbling off defendant’s depot platform in the city of Austin, about half-past twelve o’clock, at night, on the 3d day of July, 1877; the petition charging negligence on the part of…

<p>Appeal from Williamson. Tried below before the Hon. W. A. Blackburn.</p> <p>The opinion and syllabus sufficiently state the facts.</p>

Tried below before the Hon. A. W. Moursand, special district judge, appointed by the governor, instead of Hon. A. W. Cooley, judge of 33d judicial district. Geo. Gilroy sued R. F. Roundtree, in the district court of Llano county, on the following writing, viz.: “ $433.33. Due G. Gilroy, on demand, four hundred and thirty-three dollars and thirty-three cents, for work building stone fence. This July 5, 1879. R. F. Roundtree.” Roundtree answered, 1.

<p>Appeal .from Washington. Tried below before the Hon. I. B. McFarlane.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried below before the Hon. A. S. Walker. December 19, A. D. 1879, the state brought this suit against W. B. Middleton as principal, and D. 0.

<p>I. Necessary parties — Appeal bond.—An appeal bond executed by an appellant, whose petition of intervention was dismissed as insufficient, was made payable only to the party in whose favor a judgment below was rendered on a promissory note and foreclosing a vendor’s lien. Held,</p> <p>(1) The defendant below, against whom the judgment was rendered, was a necessary party to the appeal, and the appeal bond should have been made payable to him as well as to the plaintiff.-</p>

<p>1. Fraud. — A creditor holding a debt discharged by the bankruptcy ofe the debtor, but upon which the debtor afterwards suffers judgment in a state court, cannot attack for fraud a conveyance made by the procurement of the debtor prior to the date of the judgment.</p>

Tried below before the Hon. A. S. Walker. Suit was brought under authority of “ An act to ascertain Avhat, if any, unpaid balance of salary is due Gustave Cook, as judge of the criminal district court of Galveston and Harris counties, and William Steele, late adjutant-general of the state of Texas, and making an appropriation therefor,” approved April 4, A. D. 1881, and taking effect ninety days after adjournment, by William Steele, for an alleged balance of salary due him…

Tried below before the Hon. A. S. Walker. The brief for appellee and the opinion of the court contain a full statement of the case.

Tried below before the Hon. R. R. Gaines. Trespass to try title brought by Edward Eastburn, for one thousand four hundred and ninety-six acres of land, for $2,000 damages, and $500 per annum rents.

<p>Appeal from Williamson. Tried below before the Hon. E. B. Turner.</p> <p>The facts are sufficiently given in the opinion.</p>

<p>1. Citt school tax—Constitutional law.— Towns and cities have no power to levy taxes for school purposes other than as expressly authorized by the constitution.</p> <p>2. Same.— Save under an express grant of power in the constitution, the legislature cannot confer upon city authorities power to levy taxes for school purposes.</p> <p>3. Same.— A city, in its capacity as a school district, has no other power to levy such taxes than can be found expressly authorized in the constitution.</p> <p>4. Same.—Construing art. XI, sec. 10, of the constitution, as follows: “The legislature may constitute any city or town a separate and independent school district. And when the citizens of any city or town have a charter authorizing the city authorities to levy and collect a tax for the support and maintenance of an institution of learning, such tax may hereafter be levied and collected, if, at an election held for that purpose, two-thirds of the tax-payers of such city or town shall vote for such tax,” held,</p> <p>(1) Its first clause clearly authorizes legislation for the purpose of making such city, etc., a school district upon assuming control of its public schools.</p> <p>(2) Following the legislative construction, when a city has taken control of its public schools in the mode prescribed by the statutes, it may thereafter levy a school tax, if two-thirds of its property tax-payers shall so vote.</p> <p>(3) This decision is not satisfactory to the court, but it not being clearly wrong, the legislature and executive are followed and their construction allowed.</p> <p>5. Mode of election.—The constitution gives authority to levy a tax “if . . . two-thirds of the tax-payers of such city or town shall vote for such tax.” These words preclude an implied assent to such tax by not voting therefor at an election held to determine upon such tax.</p> <p>6. Res adjudicata — Election upon school tax.— The action of the city authorities determining the result of such election cannot be collaterally attacked.</p> <p>7. Cases questioned —Contested elections.—Notwithstanding Ex parte Towles, 48 Tex., 413, and Williamson v. Lane, 52 Tex., 336, the question of the validity of the various provisions in the Revised Statutes for contesting elections is still an open question.</p> <p>8. School tax—Mode of submission to vote.—The Revised Statutes, art. 3785, authorized the submission to be voted on of the question, “ Shall such an amount be raised by taxation, not to exceed one-half of one per cent., in addition to the pro rata of the school fund received from the state, as may be necessary to conduct the schools for ten months in the year? ” While in force it did not authorize the submission to vote whether a specific rate per cent, be levied.</p> <p>9. Same.—The submission, on March 2, 1880, by the city authorities of Fort Worth, of the question whether a school tax of one-fourth of one per cent, be levied, being before the amendment of said act, was without authority and void;_ and a perpetual injunction against the collection of the tax so claimed to be authorized, was sustained.</p>

<p>Appeal from Bell. Tried below before the Hon. J. P. Osterhout.</p> <p>The opinion states the case.</p>

Tried below before the Hon. X. B. Saunders. Horm brought this suit against appellees February 1, 1875, and alleged in substance: That about October, 1872, there was lying adjacent to his premises one hundred and sixty acres of land of the public domain, which he was then about to locate by virtue of a valid land certificate, and had taken steps to do so.

Tried below before the Hon. I. B. McFarlane. Injunction suit, instituted on the 28th day of March, 1881, in the district court of Washington county, by Thomas Dwyer, against the appellee, John W. Hackworth, assessor and collector of taxes of the city of Brenham, to enjoin the collection of certain ad valorem taxes levied by the city council of that city, and assessed against the plaintiff.

Tried below before Wm. E. Hughes, special judge. Suit in trespass to try title, brought by Polly Brundage and others against C. Freeman, for the recovery of a tract of land which was described in the petition as follows, viz.; “ Lying and situated in the county of Dallas, state of Texas, known and designated as the northeast quarter of section Ho. 17, in township No. 3, south of the first base line, and range 1, east of the first meridian, located by virtue of Peters’ colony…

Tried below before A. J. Lathrop, special judge. _ _ Suit in trespass to try title and for partition, brought by the appellants, D. B. Grigsby, C. C. Swindle and his wife, Maria Louisa Swindle, against the appellee Mary A. May, and a number of other . persons.

Tried below before A. S. Lathrop, special judge. Suit of trespass to try title, and for partition, brought by D. B. Grigsby and the appellees, Swindle and his wife, Maria Louisa Swindle, against the appellant, William Oaruth, and a number of other persons. On the 22d of October, 1881, plaintiffs filed an amended original petition, and on the same day filed their first supplemental petition.

Tried below before A. S. Lathrop, special judge. The opinion, states sufficiently the case. The brief in support of the motion for rehearing has not reached the reporter.

<p>1. Jurisdiction.— The United States court, sitting in bankruptcy, had no jurisdiction to order the sale of land, the individual property of a deceased member of a mercantile firm, whose death had occurred, and whose estate was being administered by independent executors under the terms of a will which withdrew it from control of the probate court. No title passed to the purchaser at such a sale.</p> <p>2. Purchaser in good faith.— A purchaser at a sale, made under a decree of court which had no jurisdiction, may still under some circumstances be a purchaser in good faith, and as such entitled under the statute to compensation for improvements made on land purchased before eviction. See opinion for such a case.</p> <p>3. Permanent and valuable improvements.— The claim of a defendant in possession under a void judicial sale, for the value of necessary and beneficial repairs. made by him on improved real estate, and which have enhanced the value of the property, is based upon a higher equity than if the improvements were merely ornamental, or new. See statement and opinion for a case in which such a claim was allowed.</p> <p>4. Purchaser—Subrogation.— A purchaser at a void judicial sale, when the money paid by him was applied to the discharge of a valid judgment which constituted a lien on the land, is subrogated to the rights of the judgment creditor, and entitled to be reimbursed the amount paid, before eviction.</p>

Tried below before the Hon. E. B. Turner. Suit brought in the district court of Travis county by appellee, Andrew Neill, against appellant, the Western Union Telegraph Company, for §5,000 damages, alleged to have been caused by the negligence of defendant in the transmission of a telegraphic dispatch.

Error from Robertson. Tried below before the Hon. W. E. Collard. Suit brought July 26, 1880, by the defendants in error, Wm. R. Cowser and wife, against the Houston & Texas Central Railway Company, to recover damages resulting to them as the parents of Wm.

<p>Appeal from Travis. Tried below before the Hon. A. S. Walker.</p>

<p>Appeal from Dallas. Tried in 1876 before Hon. H. Barksdale.</p>

<p>Appeal from Ellis. " Tried below before the Hon. H. Barksdale.</p>

Tried below before the Hon. X. B. Saunders. August 20, 1875, Davis & Bro. brought this suit against appellees, upon a note made by Abby Thompson, now Abby Saladee, to appellants. Appellees defend upon the ground of the coverture of the said Abby at the time the note was made. Appellants met this with the allegations that, at the time the note was made, she was living separate and apart from her husband, and managing her business as a feme sole.

Tried below before the Hon. J. P. Richardson. James T. Brown, in his own right and as next friend and natural guardian of his minor children, James Brown and William H. S. Brown, brought this suit against appellees June 27, 1873, to vacate and set aside a decree theretofore rendered in a certain cause No. 3056, styled Lucretia R. Brown v. James T. Brown.

<p>Error from Ellis. Tried below before the Hon. H. Barksdale.</p> <p>Ransom sued Davis on a sworn account for $510.68, December 25, 1874; Davis answered by general denial, not under oath, January 7, 1875.</p> <p>On January 14, 1875, the cause was tried and resulted in a verdict and judgment against Davis for $512.14; the judgment reciting that “ This day came the parties by their attorneys and announced ready for trial.”</p> <p>Hext day Davis filed his motion for a new trial, based upon the ground that, a few days before the trial, he and Ransom made an agreement to refer the matters between them to a referee, and settle according to his report; that in this way he was prevented from setting up his real defense, and that Ransom violated this agreement by pressing the case to trial without notice and in his absence. On the 19th of January, 1875, he filed his own affidavit in support of the motion, in which he set up more particularly the purported agreement. He also attaches an account against Ransom of several items, among them one for a bill of lumber, $120.01, another for interest on $2,000 gold loaned, $180, and claimed that this account shows the true state of the account between them.</p> <p>Ransom filed his counter affidavit January 22, 1875, denying the agreement as set up by Davis, stating that Davis did come to him arid propose to refer the matter to a referee, and he agreed to do so provided it was done before the case was called for trial; that he told Davis that he would not allow the case to be continued or lose its place on the trial docket, and that Davis told him that he could put off the case that term, and that he intended to do it.</p> <p>The court heard and overruled the motion, and Davis brought the case up on writ of error. He relied upon two assigned errors: 1st. The court erred in considering Ransom’s counter affidavit. 2d. The court erred in overruling the motion for new trial.</p>

Tried below before the Hon. J. P. Richardson. Suit brought by R. D. Cude against W. A. Morris, administrator of the estate of J. H. Mabry, deceased, and S. H. Hudson, on a promissory note for $1,209.80, payable to R. D. Cude, made by S. H. Hudson as principal, and J. H. Mabry security. The defendant Morris only filed an answer.

<p>1. Attachment bond — Seal.—An attachment bond is not required to be under seal. Bernhard & Co. v. De Forrest & Co., 36 Tex., 519, to that effect, and overruling earlier cases, approved.</p> <p>2, Attachment — Quashing of — When revised in supreme court.— The proceeds of attached property being by order of court placed in bank subject to further order, and there being a, bill of exceptions to the ruling of the court quashing the attachment, held, that the plaintiff in error was entitled to have the latter ruling'revised, and this notwithstanding some contradictory recitals in the record.</p>

Tried below before the Hon. John P. White. Suit by Burke, Turner & Co. against W. M. Rust and Joseph Zorn on a note given by Rust to Zorn, and transferred by Zorn to them. Zorn made no defense.

Tried below before the Hon. E. B. Turner. Douglass sued F. M. and J. C. Mundine, July 17, 1876, upon the following note, viz.: “ $1,616.05. Lexington, January 1, 1874. “ One day after date we, or either of us, promise to pay J. D. Douglass or order, fifteen hundred and sixteen and .05-100 dollars gold, bearing twelve per cent, interest from date until value received.

Tried below before the Hon. John P. White. • Suit brought by the appellant against the appellees, on an alleged contract between W. R. Cowan, deceased, plaintiff’s intestate, and who was an attorney at law, and said appellees, entered into in 1869, whereby the defendants engaged said Cowan to procure the name of defendant Mary Ann Montgomery to be placed upon the roll of pensioners as the widow of a captain in the United States army, for which services the defendants agreed…

Error from Guadalupe. Tried below before the Hon. John P. White. Suit on the joint note of Cockrum & Co., S. R. Cockrum and J. C. Sheffield, executed July 28, 1856. The firm of Cockrum & Co. consisted of W. W. Cockrum alone, and he having died before suit was commenced, the action was against the other joint obligors, S. R. Cockrum and J. C. Sheffield. It was admitted that they were only sureties.

<p>1. Sale—Rent — Registration.—A piano was delivered by (J. to N. under a written contract, reciting that N. had hired and received it of 0., N. promising, .in addition to §75 paid on its delivery, to pay §50 for each quarter it was kept, to return it on demand, not to remove it without O.’s written consent, and to keep it insured. It was also stipulated that on further payment of $350 (in addition to the §75), in monthly payments which N. agreed to make, the piano was to become the property of N. In a suit for the piano by C. against K., who had in good faith bought of N., held,</p> <p>(1) That the terms of the-agreement are so inconsistent that it cannot be he'd to be both a renting and a sale.</p> <p>(2) That it is not a renting, as the first part of the agreement recites it to be.</p> <p>(3) If valid at all, it must be held to be a sale, and that the pretended renting was but a device to secure the remainder of the purchase money.</p> <p>(4) That thus regarded, conceding its validity as between the parties, it would be contrary to the policy of the registration laws to hold the contract binding on a purchaser in good faith, for value, without notice.</p>

<p>1. Judgment from another state — How certified.— A transcript of a judgment, which recites that it was rendered on a trial before a named justice at a circuit court in the city of New York, in January, 1873, attested in January, 1874, by a different person, styling himself “justice of the supreme court of the state of New York,’’ does not appear to be attested by the judge of the court in which the judgment was rendered, and is not properly certified under the act of congress.</p> <p>2. Same.— If it appeared that the circuit and supreme courts were the same, the inference from the facts is, that there was more than one justice of that court, and the certificate is defective in that it does not purport to be that of the chief justice or presiding magistrate.</p>

Tried below before the Hon. X. B. Saunders. Appellees brought their action of trespass to try title against W. C. Williams, January 9,1872, to recover eighty acres of land described in the petition, claiming the land under patent issued September 2, 1862. Appellant claimed the land under a patent issued ¡November 5, 1875. The contest was one of boundary.

Tried below before the Hon. E. B. Turner. Suit by M. S. Culver and James F. Scott, on the bond of B. FT. Lane and W. A. Saylor, with J. H. Bobinson as surety, conditioned •that Lane and Saylor comply with the terms of their agreement with Culver and Scott, made the same day.

<p>1. Judgment lien—Homestead.— A judgment lien takes precedence of a subsequently acquired homestead right.</p> <p>■2. Case approved.— Railroad Co. v. Winter, 44 Tex., 597, approved.</p>

Tried below before the Hon. Nat. M. Burford. The appellees brought this suit for the amount due them on a note made and executed by J. M. Carson, the appellant, payable to A. H. Beale, given for the purchase money of a tract of land, which was conveyed by deed, at the same time with the making of the note, by the payee of the note, to the said maker.

Error from Navarro. Tried before the Hon. Frank P. Wood in 1875. Suit by R. N. White against the city of Corsicana to recover damages for certain alleged wrongs done him by the city authorities in the course of a criminal proceeding against him on a charge of obstructing a street, and also to enjoin the city authorities from exercising control over that street, the plaintiff claiming that it was his private property and part of his homestead.

Error from Hood. Tried below before the Hon. A. T. Watts, special judge. Action of trespass to try title to eight hundred and sixty-nine acres of land in Hood county, brought by T. W. Morris et al. against C. J. Meek et al. The pleadings of defendants embraced the statute of limitations of three years, and the defense of innocent purchasers for a valuable consideration without notice of plaintiffs’ title. Both parties deraigned title under W. P. Rogers as a common source.

Tried below before the Hon. Everett Lewis. Suit by E. R. Tarver and wife, Julia, against appellant Zorn and the sheriff of Guadalupe county, to enjoin the sale of a tract of land alleged to be the separate property of the wife, but levied on under a judgment in favor of Zorn against the husband. The pleadings, and also the evidence with the exception of the matters stated below, were the same as on the former trial and appeal, and will be found reported in 45 Tex., 519.

Tried below before John H. James, Esq., ' special judge, selected by the parties. Suit by Andrea Louisa Fretelliere, claiming as sole devisee under the will of F. F. Michaud, deceased, against Geo. F. Hindes and wife, for a lot in the city of San Antonio, joining as defendants John Yance and wife, who had conveyed to Michaud by deed with warranty, and seeking, in the event of the failure of her claim to the lot, to recover back the purchase money and interest.

Tried below before the Hon. Frank Willis. This suit was brought by appellants to recover from appellee, who is the collector of taxes for Wheeler county, the amount named in the petition, claimed to have been paid as taxes under protest, and after a seizure of their property.

Error from McLennan. Tried in 1875 before Hon. D. M. Prendergast. This suit was instituted by George Barnard pn a promissory note secured by a deed of trust, both executed by Max Gervais, one of the defendants.

<p>1. Claim against estate — Effect of pabtial allowance and appboval of.—An action is not maintainable to establish the balance of an account against an estate, after it has been presented duly authenticated to the administrator, and has been by him in part allowed and in part rejected, and the holder has then proceeded to procure its approval by the probate judge. That approval has upon the entire claim the force and effect of a judgment.</p>

Tried below before P. J. Mullin, Esq., special judge. Wm. J. Russell sued John Bacon and Wm.

Tried in 1877 before the Hon. E. B. Turner. Spencer Baker, a freedman, and resident of Georgia, brought this suit against appellant to recover damages, May 10, 1873. Lee Baker, an adult freedman, who claimed to be the son of appellee, was in the employ of appellant as bralceman on a freight train, and on the night of February 13, 1873, while in the discharge of his duty as such, was killed.

Tried below before the Hon. L. D. Bradley. This suit was brought by J. M. Keith against Wm. Hyndman to recover a tract of land containing ten acres, described as a part of the Rachel Leach tract survey, lying .three-fourths of a mile northeast of the town of Corsicana.

Tried below before the Hon. George H. Noonan. On June 6, 1879, Brister instituted this suit against appellant as executrix of the last will and testament of Ernest Altgelt, deceased, to recover the sum of $1,200 and interest, the amount claimed to be an over-charge by Altgelt against Brister, on a certain house and lots on North street, in the city of Ban Antonio, purchased for him by Altgelt from D. Y. Portis; and that the over-charge was concealed from him by Altgelt, etc.…

<p>1. Execution—Levy—Sheriff, when protected.— A sheriff is protected in levying an execution, although he may have been notified of outside facts rendering it invalid.</p> <p>2. Same—Knowledge — Notice.—The law will not charge the officer with knowledge of the invalidity of the writ by reason of his having been so notified. But queere, would the sheriff be protected where the facts rendering the execution void had occurred under his personal observation?</p> <p>3. Same — Payment — Receipt.— Where the defendant in execution produced to the sheriff receipts from the judgment creditor acknowledging full satisfaction of the judgment, but specifying the receipt of a sum several dollars less than the judgment, and specifying also that the party giving the receipt would pay all costs, the officer was justified in declining to pass upon the genuineness and validity of the receipts, and in proceeding to make a levy.</p> <p>4. Same—Malice in officeb.—The act of levying, being legal, would not become actionable though clone with a bad intent, or maliciously and willfully.</p> <p>5. Practice in supreme court — Demurrer to evidence.—An appellant who joined in a demurrer to the evidence without objecting to it as not made at the . right time, cannot make that objection available in the supreme court.</p> <p>6. Demurrer to evidence.— See this case for facts held sufficient to sustain a demurrer to the evidence.</p>

Appeal irom Washington. Tried in 1875 before the Hon. I. B. McFarlane. The plaintiffs, Stowe & Wilmerding, were commission merchants in the city of Galveston. The defendants, M. C. Lee & A. J. Roberson, had carried on a mercantile business in Washington county under the firm name of M. G. Lee & Co., the capital being furnished by Roberson and the business managed by Lee.

This suit was filed at the March term, 1875, by appellants Garrett Pressley, Mollie Pressley, Parlee Pressley, Jenkins Pressley and Josephine Pressley, by their guardian, G. F. Chrisman, against Mary E. Robinson and her husband, W. T. M. Robinson, and Randal Robinson, administrator of the estate of Thomas A. Pressley. The defendants answered at the same term; but the original papers having been destroyed, were substituted July 25, 1876.

Tried below before the Hon. X. B. Saunders. Suit brought July 26, 1874, by J. G. Young, guardian of the minors Elizabeth Ann Miller, Mary M. Miller and John Miller, against Susan E. Putnam and her husband, Willis Putnam, to recover a tract of six hundred and sixteen acres of land.

Tried below before the Hon. John C. Robertson. This was an attachment suit instituted by P. J. Willis & Bro., of Galveston, March 8, 3881, on a promissory note for $385.89, dated January 29, 1881, due at ninety days, executed by the defendant W. L. McNeill.

Tried below before the Hon. R. H. Guinn, special judge. There was a motion to dismiss the appeal. The facts are set out in the opinion.

Tried below before the Hon. Peyton F. Edwards. Earle E. Cravens was a minor, whose guardianship was pending in the county court of Anderson county, and Geo. F. Alford was her regular guardian. In her twentieth year, while the guardianship was still pending, she made a deed conveying to W. G. Veal all her lands except four tracts, and at the same time executed another written instrument directing Veal to convey the lands to certain persons therein named. The wife of Geo.

<p>1. Appeal from probate to district court.— Under the probate acts of the fifteenth legislature (August 9 and 18, 1876), a bond was required as u prerequisite to an appeal from the county to the district court in cases pertaining to estates of deceased persons.</p> <p>2. Same.—An application for the probate of a will was resisted in the- county court by a guardian of the estate of certain minors; being unsuccessful, appeal was taken to the district court July, 1879. Held, a motion to dismiss the appeal for want of jurisdiction, resulting from the absence of an appeal bond, should have been sustained.</p>

<p>1. Damages fob negligently causing death—Railroad.—Under the statutes (R. S., arts. 2899, 2900), an action for actual damages lies in favor of the parent, etc., for damages against a corporation for negligently causing death, whether an action ever accrued in favor of the deceased or not. Such action lies in case of the instantaneous death.</p> <p>2. Same—Action by parent fob death of son.— In an action for damages by the surviving parent (mother) for the death of her adult son, her pecuniary condition may properly be alleged to show the reasonable expectation of pecuniary assistance from the deceased, but not for the purpose of increasing the amount of damages.</p> <p>3. Depositions — Idem sonans.— A commission to take depositions of John McKay was returned with testimony given by John Macke. The testimony was admitted,— it not appearing but that the words McKay and Macke were idem sonans. Held,, that there was no error in admitting the testimony.</p> <p>4. Evidence.— See case where admission of hearsay testimony was held immaterial; the same testimony having been given without objection in answer to other questions.</p> <p>5. Province of jdby—Notice.— It was a question of fact whether a train-master charged with the duty of examining for defects, etc., in machinery, etc., actually knew or could have known the defect causing his own death. His duty as employee does not, as matter of law, relieve the company employing him from responsibility for negligence in the use of defective machinery.</p> <p>6. Fact case.— See case of conflicting testimony where the court refused to set aside a verdict.</p> <p>7. Damages—Annuity.— The jury are not limited in damages to the present value of an annuity for the probable duration of life of the plaintiff, for the amount shown to have been actually furnished the plaintiff per annum during her life by the deceased son.</p>

<p>Appeal from Anderson. Tried below before the Hon. Peyton F. Edwards.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>1. Judgment — Interest on.— In a suit on notes executed January 1, 1876, bearing interest at the rate of two and one-half per cent, a month, it was not error to render judgment for the principal and interest due upon the notes up to judgment, and to make the judgment bear interest from its date upon such aggregate sum at the same rate of two and one-half per cent, per month.</p> <p>2. Same — Constitution.— Art. XVI, sec. 11, of the constitution, does not regulate the entry of judgments upon contracts made previous to its adoption.</p> <p>8. Same—Statute Construed.— Article 2930, R. S., means that a judgment shall bear the same interest as the contract upon which it is founded, if the rate were lawful at the time the contract was made, even though it may exceed the highest rate which may be contracted for since the adoption of the constitution.</p>

<p>1. Landlord’s lien — Waiver of.—'A landlord waives his lien on property seized under a distress warrant, when he proceeds to take a personal judgment without foreclosing his lien on the property.</p>

Writ of Error to Marion. This case was tried before W. A. Walker, Esq., elected special judge, in the absence of the Hon. B. T. Estes, but the motion for new trial seems to have been heard before Judge Estes. The judgment was for the recovery of “ eighty feet square in the H. E. corner of certain lots situated in the city of Jefferson, known as block 00 in the Ally part of said city,” with all the improvements on the same; also for the recovery of $173.33 and costs.

Tried below before the Hon. B. T. Estes. The opinion states the nature of the suit on defense.

Tried before the Hon. Gustave Cook, as special judge, the Hon. Wm. H. Stewart being disqualified. This suit was instituted January 21, 1878, by J. Presley Fleming against Henry Seeligson and Wm. A. Ellis, the petition being in the ordinary form of trespass to try title to lots 1, 2 and 3, in block 84, in the city of Galveston.

Tried below before the Hon. A. S. Walker. [The following statement was prepared by the judge delivering the opinion of the court, and is inserted in full:] This is a case to which precedence is given under the rules.

<p>1. Proceeds of attached property — Garnishment of.— Where property attached has been sold as perishable, and afterwards the writ of attachment is quashed, and the clerk ordered to pay over the proceeds to the defendant in attachment, those proceeds in the hands of the clerk are not subject to garnishment.</p> <p>2. See the opinion in this case for the views of Associate Justice Bonner on this question.</p>

<p>1. Mechanic’s lien — Contracts either verbal or written.—For the purposes of registration the statute divides contracts, out of which a mechanic’s lien arises by law, into two classes — verbal and written.</p> <p>2. Written contract—Signature of.—A contract is written when all of its terms are in writing, and the instrument is orally accepted by both parties, though signed only by one.</p> <p>3. Same — Bond.—A bond embodying all the terms of the contract, and conditioned for its faithful performance on the part of the mechanic, signed only by him and his sureties, but accepted and acted on by both parties, is a written contract, and if duly recorded, fixes the mechanic’s lien.</p> <p>4. Record of contract — Specifications.— The omission, in the record of such a bond, of some of the specifications appended to it, is immaterial.</p> <p>5. Express lien.— If the written contract recites that the mechanic’s lien is reserved on a building, it seems that it would show an express lien by contract, independent of the mechanic’s lien which the law creates, when its terms are complied with.</p>

Error from Hopkins. Tried below before the Hon. Green J. Clark. Suit by Annie Waltee for the recovery of a certain lo.t and improvements in the town of Sulphur Springs, claiming the same as her homéstead and separate property, and that a pretended deed purporting to have been executed by her and her husband, John Waltee, was procured by fraud, and was executed by her, she supposing that she was giving a lien to secure a loan of §200 from defendant Weaver.

Tried below before the Hon. Green J. Clark. In 1871 Hopkins county had two leagues and fourteen and tWihhíso labors, of unlocated land certificates, being the unlocated balance of four leagues granted to said county by the state of Texas, for purposes of education, by virtue ■ of an act approved .......

Tried below before the Hon. W. H. Andrews, special judge. Action of trespass to try title to fifteen and one-half acres of land, instituted in December, 1877, by Carter S. Downing against A. J. Hefner and T. P. Lockhart. The pleadings of the defendants consisted of a general demurrer, plea of not guilty, limitation, and improvements in good faith.

Tried below before the Hon. Green J. Clark. Suit in September, 1880, by Mrs. N. L. Abbey, joined by some of the heirs of her deceased husband) against B. E. Hardin, E. P. Anderson and others, seeking to recover one thousand three hundred and sixty-eight acres of land, or in the alternative, specific performance of an agreement to convey three hundred and sixty-eight acres of the one thousand three hundred and sixty-eight. The petition sets out a power of attorney from Mrs..

Tried below before the Hon. John C. Easton. This was a suit brought by Elizabeth Routh in the year 1871 against the children of Jonathan Routh, deceased, in their capacity as devisees and legatees under his last will and testament, for the recovery of her equal one-half interest in all the property possessed and claimed by the testator at his death, in her right as wife during his life, and the acquisition by him of the said property, by virtue of her community interest…

Tried below before the Hon. Spencer Ford. October 30, 1878, Grant brought this suit against Garrison and William Simpson to recover the land described in the petition, claiming the same through a patent issued to James Walling, assignee of Vincent Mendez, dated July 23, 1879, on a survey claimed to have been made in 1874.

Tried below before the Hon. A. J. Hood. Suit filed May 6, 1881, in the district court of Tarrant county, by appellants, to recover from W. T. Hudson $14,200 damages, alleged to be due from Hudson to appellants, by reason of a breach of contract on the part of Hudson to 'deliver to appellants on the 1st day of May, 1881, sixteen hundred head of yearling steer cattle, at $6.50 per head.

<p>1. Homestead.— One owning and occupying as such an urban homestead, carried on his business, which was that of a druggist, in a house on lots disconnected from his dwelling-house. Another house owned by him, and situated in the same town, but not adjacent to or connected with either the property used as a dwelling or that occupied as a drug store, was used by him as a warehouse for the-storing of drugs. Held —</p> <p>(1) The lot on which the warehouse was situated was not “used to exercise the calling or business of the head of the family ” so as to exempt it from'forced sale under the homestead clause of the constitution of 1876.</p> <p>(2) The fact that the warehouse was used in a way which was incidentally useful or profitable in carrying on the business of a druggist, was not sufficient to shield it from forced sale as the place used by the head of the family to carry on his business, when that business was actually carried on at a place disconnected therefrom.</p> <p>(3) The warehouse was only auxiliary to the business store lot which the constitution exempts, and was not a part thereof.</p>

Tried below before the Hon. Thomas Nugent. The appellee, Kelly, sought by his petition to enjoin a judgment against himself, rendered in a justice’s court, in favor of Halcomb, for $10 and costs.

Error from McLennan. Tried below before the Hon. L. C. Alexander. Plaintiffs in error filed their petition March 15, 1876, against defendants in error in the district court of McLennan county, in tres- ■ pass to try title to two tracts of land therein described, claiming the same as the separate property of Mary E. Freeman, and alleging . damages at $1,000. Defendants in error answered April 1, 1876,1st, general demurrer; 2d, not guilty.

Tried below before the Hon. Spencer Ford. Action of trespass to try title, brought by Edrington against Newland, to recover two certain lots described in the petition, lying in the city of Bryan, with the houses and improvements thereon.

<p>Appeal from McLennan. Tried below before the Hon. B. W. Rimes.</p> <p>Suit by injunction to restrain the collection of taxes. The bill charged:</p> <p>1. Formal allegations.</p> <p>2. That the city of Waco was incorporated on the 26th of April, 1871.</p> <p>' 3. That prior to said last named date, the city had been incorporated, and at the said time had legal existence as a corporation.</p> <p>4. At the time (26th of April, 1871) the city had a population of about five or six thousand inhabitants, and included within its corporate limits about one thousand acres of land, of which less than ten acres were used for business purposes, and less than half the remainder was used for dwelling-houses. A large part of the lands was not laid off into streets, lots and blocks, and a large part thereof, believed to be one-fourth, had not yet been so laid off, nor used for city purposes.</p> <p>5. For some time prior to the passage of the said act of incorporation there was another charter corporation, styled The Waco & Northwestern Railroad Company, then and before engaged in constructing its road from the town of Bremond, in Bobertson county, to Waco city, and in order to facilitate it in the construction of its said road, its officers and agents had insisted that the citizens in and about Waco should subscribe for stock in said corporation, and, among others, James M. Norris; now deceased, then the husband of complainant, was importuned to so subscribe, he then-living outside the corporate limits of said city, and owned about three hundred and sixty acres of land outside said limits, but near thereto. He and others living near said city declined all said solicitations.</p> <p>6. The said railroad company was, about the date of the act reincorporating said city, exhausted of means, and the construction of said road was about to cease for want of funds.</p> <p>7. For the purpose of raising funds, the officers and agents of said railroad company, with the countenance of other citizens of the city, conceived the idea of obtaining for the city a new charter from the legislature, largely extending in area the corporation limits, and introducing into the charter a provision, under which, on certain terms, the corporation so established should have the right to subscribe for stock in said railroad corporation, and pay the same with bonds of the city, to be issued for that purpose, for the redemption of which bonds, and the interest to accrue thereon, all the property within the city limits, as thus extended, was to be taxed.</p> <p>8. The object thus conceived was carried out, so far as to procure the passage of the act mentioned, of date 26th of April, 1871, whereby the land of complainant was embraced in the corporate limits, which she alleged was for the sole purpose of subjecting it to taxation under forms of law to aid in raising money for the benefit of said railroad company, and for raising money to defray the ordinary expenses of the city government.</p> <p>9. The extension of the limits of the city corporation more than .trebled the acreage, including complainant’s three hundred and sixty acres, in city limits, and that, too, when not one-half of the original area was being used for business, residences of the citizens, or city purposes.</p> <p>10. At the date of said act, the Norris land consisted of three hundred and sixty acres, all enclosed, of which two hundred acres were in cultivation, planted in corn and cotton, and the remainder used as a pasture, and densely covered with large forest trees, such as grow in the valley of the Brazos river, which land has ever since remained under fence, and been used solely for the purposes aforesaid. It was the homestead of the said James M. Norris, and is now the homestead of complainant. There was no street or highway running through the land. No demand had ever been made ■ by the city to open up streets through said land, or to lay it off in subdivisions.</p> <p>11. There was between said three hundred and sixty acres and the business portion of said city a tract of about fifty acres, on which there are no business or dwelling houses, streets running through, nor subdivisions.</p> <p>12. There is no use for said three hundred aiyl sixty acres of land for city purposes; it can only be utilized as it now is, viz., for fanning purposes.</p> <p>13. The said J. M. Norris, in his life-time, was, and complainant since has been, willing to open said lands for city purposes whenever the necessities of the city should demand, but that to now lay off said lands into subdivisions, streets, etc., or to have done so heretofore, would have been and would now be only destructive of farming interests, with no benefit to the city. . . .</p> <p>15. Including said three hundred and sixty acres, there are now, inside the corporate limits of Waco, between seven hundred and one thousand acres of land actually cultivated in cotton, corn and other grain, and as much more unoccupied, and used for no purpose whatever. ...</p> <p>19. By virtue of the said charter, 26th of April, 1871, soon after the passage thereof, said city subscribed for $100,000 of stock in said railroad company, and issued its bonds in payment therefor, payable in twenty years, interest at twelve per cent., payable semi-annually, and by ordinance provided for the payment of said interest and the redemption of the bonds by taxing all the property in the city limits as extended.</p> <p>20. Said city has also, since and under said charter, provided for lighting the city by gas, protecting it against fire, and made other provisions for controlling and managing the city, in which complainant has no more interest than if she lived five miles in the country.</p> <p>21. If complainant is forced to pay said taxes required of her by the ordinances of said city, it would be on her most grievous and oppressive, for which she will not receive the slightest advantages in return; on the contrary, the land would be depreciated in market value by the tax burden placed on it, with no corresponding.advantages or benefit.</p> <p>22. That so to enforce the payment of money by her in the shape of taxes, no compensation being returned, would be violative of her rights under the constitution of the state of Texas and of the United States.</p> <p>23. Said charter was procured solely for the purpose of increasing the revenues of the city and aiding in the construction of said railroad, without regard to the" rights of those whose lands were included in the'extended limits, and when there were no city necessities for such inclusion. . . .</p> <p>25. Said property has been assessed by the assessor of said city for city taxes for the years 1874 and 1875, and the enforcement of said assessments is threatened. Said taxes so assessed amount to over $300; the collection of said taxes, as also said judgment, will be enforced unless such collection shall be restrained. . . .</p> <p>27. Since the land was embraced within the city limits, there has never been a city official on it on any business for the city, and no ordinance of the city is enforced on said premises, except that for the collection of taxes.</p> <p>28. Prayer for injunction to restrain the city of Waco from the collection of taxes, both on the value of said land or any personal property owned by complainant, and for relief, general and special.</p> <p>Temporary injunction was granted.</p> <p>General demurrer filed by defendant November, 1876.</p> <p>The demurrer was sustained and bill dismissed at cost of plaintiff, May 6, 1881.</p>

<p>Appeal from Travis. Tried below before the Hon. A. S. Walker.</p> <p>Suit filed in'the district court of Travis county, by the appellees against the appellant, on the 8th of March, 1880, the object being to recover the amount of a promissory note for $675, alleged to have been executed by the appellant, through her agent, E. W. Shands, to the appellees, on the 21st day of June, 1877, the consideration of .which was certain repairs to be placed by appellees on a house, the separate property of appellant, situated in the northwest quarter of block Ho. 38, in the city of Austin, and also to enforce a mechanic’s lien on the property, evidenced by a written contract of the same date with the note.</p> <p>The appellant answered, setting up a variety of defenses, such as the want of power in her to make the note and contract sued on, she being at the time a married woman. She also set up that it was her homestead, and that the contract was void.</p> <p>The cause was submitted to the court without a jury, and the court gave judgment for the appellees for the amount of the note and the interest and costs, and a decree foreclosing the alleged mechanic’s lien, and to this judgment the appeal was prosecuted.</p> <p>There was evidence tending to show that appellant lived for many years in Austin, Texas, with her father’s family, in the house and lot on the northwest quarter of block Ho. 38, being the lot which was the subject of this litigation; that she was born there, and that the same was used by her father as his homestead up to the year 1867 or 1868, when he moved to Washington City, settling there permanently, and taking with him appellant, who was then a minor and unmarried; that appellant married F. H. Gassoway on January 16, 1873, and lived with him in Washington City up to April in the year 1875, having by him one son, still living and a minor; that in the year 1875, appellant’s husband received a government appointment of some kind, which rendered it necessary for him to be and remain in California, and that owing to his inability to support appellant, she did not go to California with him. Some time afterwards, her father taking charge of the case, brought in her name a suit for divorce against her husband, on what ground the record does not show, and some short time after, June, 1877, and in July, 1877, appellant obtained the divorce and the custody of the child.</p> <p>It also appeared that on the 15th day of June, 1877, when appellant executed a power of attorney to one E. W. Shands to contract for the necessary repairs on the said house, to be paid for out of the rent, the appellant did not get her husband to join her in the execution of the power of attorney, though she states she believes he would have joined her in the execution had she desired it. Under this power of attorney, which appellees saw and knew of before the note was signed, Shands signed the note and contract in question, the note being in substance as follows:</p> <p>“ §675. Austin, Texas, June 21, 1877.</p> <p>“ On or before one year after date, I promise to pay to the order of William Blackwood and William Frazier, §675, with interest from date at the rate of twelve per cent, per annum; and if this note be collected by suit, an additional ten per cent, for attorney’s fees and costs of suit. This note is given in payment for repairs, plastering, etc., to be done on the Paschal House on the £ of block 38, Austin, Texas, and is a mechanic's lien on said property.</p> <p>(Signed) “ T. E. P. Gassoway, by</p> <p>“ E. W. Shands, Attorney in Fact.”</p> <p>And the contract in substance is as follows:</p> <p>“ The contract is dated at Austin, 21st June, 1877, is between appellees and appellant, acting through her agent, Shands, and witnesses that the appellees, having agreed to repair in a first class manner the property in question for the sum of §675, payable on or before one year after date, with twelve per cent, interest, the appellant agreed that said amount should be a mechanic’s lien on said property.</p> <p>(Signed) “William Blackwood,</p> <p>“William Frazier,</p> <p>“ T. E. P. Gassoway, by “ E. W. Shands, Attorney in Fact.”</p> <p>The power of attorney under which Shands acted is sufficiently stated in the opinion.</p>

Error from Rusk. Tried below before the Hon. A. J. Booty. This suit was brought in 1878 by L. W. Storey, administrator of the estate of Benjamin Fuller, against James W. Flanagan, in trespass to try title to the Russell Williamson league of land. The original application for the grant was referred to William Brookfield, the surveyor, by the commissioner who issued the title. The reference bore date October 9, 1835.

Washington. Tried below before the Hon. E. B. Turner. The city of Brenham sued Jodon and wife June 22, 1876, to recover $100.90 claimed to be due .as taxes for the years 1874 and 1875, alleging that $100 of that amount was a lien on several lots owned by them, and sought a decree declaring a lien upon the lots for that amount; also alleging that a portion of the amount was levied for school purposes for the year 1875, by virtud of an amendment to the charter of the city…

<p>Appeal from Morris. Tried below before John Penman, special judge.</p> <p>The opinion states all of the case necessary to be stated.</p>

Tried below before the Hon. I. B. McFarland. On October 13,1873, Baily & Pond brought suit against McCarty, De Caussey and Anderson, as composing the firm of J. H. McCarty & Co. An affidavit was attached to the petition for an attachment, which was issued and levied upon the property of the firm of De Caussey & Anderson, of which McCarty was not a member. McCarty made default. De Caussey & Anderson made a motion to quash the attachment, which was overruled.

<p>1. Homestead.—- The surviving widow occupying with her children a homestead in which she had at least a community interest, executed a deed of trust thereon in 1874 to secure her creditor. In trespass to try title brought against her by the purchaser at trust sale, held —</p> <p>(1) If the property was the separate estate of the surviving widow, the deed by the trustee to the purchaser at trust sale passed the title.</p> <p>(2) If the widow owned but a community interest in the homestead, the purchaser at trust sale acquired that interest, and had equal estate and possessory right with the children of the marriage.</p>

<p>L Homestead — Place of business.— Aman owned and occupied with his-family an urban homestead in 1876, and carried on the business of a merchant in the lower story of his dwelling-house. After ceasing to do business as a merchant in 1877, he removed his family to a new home, owned by him in a different portion of the same town, and rented out the old home place for mercantile and other purposes, using the rents to aid in supporting his family, and intending to again use it as a place to carry on his business as a merchant if he should recover from financial embarrassments. In trespass to try title brought by the purchaser at sheriff’s sale, under a judgment against the husband and wife in 1878, lield —</p> <p>(1) While the constitution protects from forced sale the place of business of the head of the family in a city, town or village, though situate in a different locality from the home place, this protection exists only so long as it is used for the purposes contemplated by the constitution.</p> <p>(2) The fact that he contemplated resuming business in the store-house, if able to do so at some future time, was immaterial.</p> <p>(3) The law no more protects a man in a place for business which he is not using, and which he is making no preparation to use, than it does in a place for a home which is in fact not a homo, and in reference to which no steps have been taken to make it a home for the family.</p> <p>2. Same.—• The judgment creditor purchased at execution sale other lots which had been conveyed by the husband to his wife for the consideration recited, of money borrowed from her, and her deed was recorded before any right under the judgment vested in the purchaser at sheriff’s sale. Held, that in the absence of any evidence of fraud, the conveyance passed the title to the wife.</p>