Volume 59 — Texas Reports

Tried below before the Hon. W. H. Ford. This was a suit originating in the county court of Newton county, brought by appellant John T. Stark, formerly administrator of the estate of Nathaniel Perry, deceased, by writ of certiorari to the district court of Newton county, in 1869.

<p>Error from Galveston. Tried below before the Hon. Wm¡ H. Stewart.</p>

Tried below before the Hon. W. H. Burkhart. Suit by J. C. Simonton and his wife to recover one hundred and forty acres of land, part of one thousand one hundred and seven acres, out of the Wes tall league.

<p>1. Master and servant — Damages.— The master is not liable in damages for an injury to his employee which results from the use of defective machinery, if the employee has full notice of the defect and of danger which will attend continuing the employment. The simple protest by the employee against the use of the machinery, when directed to use it, will not vary the rule, if, when having knowledge of the risk, he obeys the order.</p> <p>2. Practice.— When, from the testimony of appellee, who was plaintiff, it was manifest that he could not recover, the judgment was reversed, and judgment rendered by the supreme court against him.</p>

<p>1. Practice — Transcript.— When the transcript in a case appealed to the supreme court comes up without containing the pleadings of either party, and this by agreement of counsel and without the approval of the district .judge of such omission (the case not being an agreed case under article 1414), the supreme court cannot know that there is any subject matter of litigation, and the appeal will be dismissed.</p>

Tried below before the Hon. Wm. H. Burkhart. The case was disposed of below as an agreed case. Plaintiffs Parker et al. claimed the land in controversy under deeds from Isaac FT. Charles, to whom a grant issued March 25, 1831, while defendants claimed under deeds from FT. Brookshire, to whom a grant issued November 25, 1835. The suit involved the question of title to a strip of land covered by both grants.

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

Trial below before the Hon. Wm. II. Burkhart. Frost brought this suit against Mrs. F. E. Hill to charge her with the debt of her son, Tobe Hill. Suit was brought in the justice court, appealed to the county court, and certified to the district court by reason of the disqualification of the county judge. Frost obtained judgment for the amount of his account, and Mrs. Hill appealed. The sole question was whether or not the evidence takes the case out of the statute of frauds.

Tried below before the Hon. James Masterson. This cause, on a former appeal, is reported in 56 Tex., 319. Plaintiffs R. A'. Upton and wife alleged their residence to be temporarily in Lee county, and sued the widow of W. B. Cline, deceased, as administratrix of his estate, and also their minor children. Henry Cline, Esq., was appointed guardian ad litem for the minors, and qualified.

Tried below before the Hon. James Masterson. In 1859 or 1860 the T. & H. O. R. B. Co. built its railroad into Houston. The city of Houston granted the company permission to build its road through the city, and agreed to obtain the consent of the owners of the land. Hew Orleans avenue was indicated as the line for the railroad, and it was built on it. That avenue runs across Sutor’s land.

Ebeob from Harris. Tried below before the Hon. James Masterson. Suit by appellees against the appellants for part of block Ho. 109, on the south side of Buffalo bayou, in the city of Houston, measuring one hundred feet on Jackson street and two hundred and fifty feet on Magnolia street, excepting a piece fifty by one hundred feet out of the same.

Tried below before the Hon. Win. H. Stewart. Suit brought Hovember 23, 18Y4, by the heirs at law of Churchill Jones against the heirs at law and devisees of James Paul, deceased.

Tried below before the Hon. James Masterson. The character of the suit will be indicated by reference to G., H. & S. A. R’y Co. v. McDonald, 53 Tex., 510, with the additional grounds for seeking equitable relief mentioned in the opinion in this case.

<p>Appeal from Grimes. Tried below before Borman Gr. Kittrell, Esq., special judge.</p>

Tried below before the Hon. Wm. D. Wood. Suit by Jane Rice against H. W. Moore, to subject one thousand and twenty acres of land, part of the.

Error from Harris. Tried below before the Hon. James Masterson. Grant Moore, who brought this suit, he being but six years old when injured by plaintiff in .error, alleged that on the 20th of December, 1880, while crossing appellant’s road at a point where it crosses Maple street, in the city of Houston, he was run over by its cars, and bis left leg thereby cut off between the knee and the ankle.

<p>1. Assignments of error.— The statutes and rules regulating assignments of error were made to facilitate the court in despatching its business; and where, as in this case, every assignment is, by reason of its generality, violative of the statute and rule of court, they will not be considered. See opinion for the character of the assignments.</p>

Tried below before the Hon. James Masterson. Suit by Laura Bracken, for herself and in behalf of her children, against appellant, for damages claimed for the alleged negligent killing of her husband, Jacob Bracken, by the appellant’s railway cars run by appellant’s agents. The defendant answered by a general denial. There was a jury, verdict and judgment for plaintiffs for $750; motion for new trial overruled.

Tried below before the Hon. James Masterson. This was a suit by appellees against the appellants to recover the amount of taxes claimed to be due the city of Houston on block Ho. 116, on the south side of Buffalo bayou in said city, for the years 1869 to 1881, inclusive, and to foreclose a lien claimed to exist on said block for the taxes.

<p>1. Guaranty.— A guarantor, writing to a wholesale merchant, used in his letter the following language regarding his friend Winn, who wished to purchase goods: . . . “ Should you sell and ship him this amount ($3,000), 1 hereby agree, bind and promise to pay you for the same, if Mr. Winn does not. Mr. Wmn is " to purchase his merchandise on open account and on regular terms, interest to be charged after maturity of bills; and so long as he continues to buy and purchase from your house I am responsible for and promise to pay you any debit you rnijy have against him to the extent or amount of $'3,000. And should Mr. Winn not pay the same, I agree and promise to pay said amount at your offic^ in Galveston. (Signed) Julius Tobleb.” Held,</p> <p>(1) That the guaranty did not bind the wholesale merchant to give the purchaser a “rolling credit ” to the amount of $3,000 for three years.</p> <p>(2) The party receiving the guaranty had the right to cease extending credit, in his discretion, at any time.</p> <p>(3) The fact that the guarantor informed the wholesale merchant that he construed the guaranty to obligate an extension of a “rolling credit ” for three years, did not alter or release his liability on sales afterwards made, there being nothing done to alter the terms or change the effect of the original guaranty.</p> <p>2. Same.— The judge trying the cause below found as follows: “I further find from the evidence that the meaning of the term ‘rolling credit for three years,’ within a given amount, according to mercantile usage of trade in Galveston, is that where purchases are made on sixty days’ time, from time to time, under a ‘rolling credit ’ for three years tor $3,000, that the purchaser would not have the right to continue to purchase up to the given amount, unless upon paying the overdue accounts; but that the vendor would have the right to refuse further sales upon default of purchaser to pay overdue accounts promptly, notwithstanding the stipulation for rolling credit for three years up to a given amount.” Held,</p> <p>(1) The presumption must prevail, in the absence of a statement of facts, that the evidence justified the finding.</p> <p>(2) The parties must, it will be presumed, have contracted with reference to the usage; the contract being made in Galveston, where the purchases were to be made, and were bound by it.</p>

Error from Harris. Tried below before the Hon. James Masterson. The opinion presents all the facts contained in the voluminous transcript neoessary to a proper understanding of the principle involved.

Tried below before the Hon. Wm. H. Burk-hart. Suit by appellant, alleging that J. A. Meyer, tax collector of the city of Hempstead, had levied on and exposed for sale certain lots and blocks of ground, about twenty in number, in said city, property of appellant, of the value of $2,000, to enforce the payment of taxes due the city for the year 1881, $24 of which was school tax, $9.72 ad valorem, and $2.50 occupation tax.

Tried below before the Hon. James Masterson. Suit by appellants to set aside a deed executed by them, which purported to convey lots in Houston.

Tried below before the Hon. Wm. H. Burkhart. Bye brought suit, alleging a grant to Thomas M. Duke, in 1830, of a league- of land.

Tried below before the Hon. Edward Hobby. Action of trespass to try title brought by appellant to recover two tracts of land in Liberty county, Texas. On the 10th day of August, 1874, Lanier Bros. & Co. recovered a judgment in the district court of Liberty county against R. M. Perryman, one of the appellees, for the sum of $3,411.58. On the 2d day of October, 1874, execution was issued upon that judgment to the sheriff of Liberty county.

Tried below before the Hon. W. D. Wood. Suit brought by Houston county against appellees, on the official bond of defendant Dwyer, as sheriff during the years 1870,1871 and 1872, to recover the amount of school-house taxes which had been levied by the county court and by the board of school directors of the county on the assessed values of taxable property for those years, and which it was alleged Dwyer, as sheriff, had collected and failed to pay over or account for.

<p>1. Mistake.— Though a stated account will ordinarily be held conclusive between the parties, yet when their condition has not been so altered by the settlement made,' or attempted, as to render it inequitable, the account may be reopened and corrected, on account of mistake, omission, accident, fraud Or undue advantage.</p> <p>2. Contract.— When in the performance of a contract for work its stipulations are deviated from by mutual agreement of the contracting parties, the contract prices govern, if applicable; but if the deviation relates to extra work not provided for in the contract,.-the party performing the work may recover on a quantum meruit.</p> <p>3. Practice in submitting special issues. — The statute (R. S., 1330-1333) does not contemplate that in a case where many issues are involved, one single issue may be submitted; but on the-contrary, when a special verdict is taken, it should be on all the issues necessary to a proper judgment on the whole case.</p> <p>4. Assignment ok errors.— An assignment of errors as follows: “ the court erred in not granting a new trial; the evidence did not warrant a finding in excess of $7,500,” is too general to entitle the appellant to an examination in the supreme court of complicated and contested accounts.</p> <p>5. Auditor. — The appointment of an auditor is so entirely within the discretion of the district court, that a refusal to make such an appointment would only be revised on appeal, if at all, when a gross abuse of discretion is shown.</p>

Milam. Tried below before the Hon. W. E. Collard. Leon & H. Blum brought suit against W. E. Easterwood, and sued out. an attachment which was levied on a stock of merchandise amounting to $1,617.66. Le Gierse & Co. and Greenleve, Block & Co., by L. C. Michael, made claimant’s oath and gave bond under the statute to try the right of property.

Error from Johnson. Tried below before the Hon. Jo. Abbott. Suit by Jerusha Donahoo, joined by Henry Donahoo, her husband, against plaintiffs in error to recover damages; first, for the appropriation by plaintiff of the right of way for its road, about one hundred by eighteen hundred feet of ground, over her lands, against her consent; and second, for flooding about thirty acres of land adjacent to its road-bed by reason of the unskilful construction of its road-bed and the…

Tried below before the Hon. Wm. II. Burkhart. Suit instituted January 12, 1874, by Mary L. Lunn, now Mary L. Watkins, and her sister, M. E. Lunn, now M. E. Hertz, the appellees.

Tried below before the Hon. James Mastevson. A report of this case np to the former appeal will be found in 53 Tex., 151. The suit was against Baker, Shirley, and the H. & T. C. R’y Co. The transcript filed on the present appeal begins with the first amended petition of the plaintiff W. T. Wasson.

Tried below before the Hon. James Masterson. This cause was before the - supreme court before on the appeal of the defendant W. R. Baker, when the judgment was reversed and the cause remanded. The case will be found reported in 53 Tex., 200, to which reference is made for a statement up to that time.

Tried below before the Hon. Wm. H. Burkhart. Suit brought on the 19th of April, 1879, by appellee against Ammon Underwood and the firm of Mitchell, Calder & Davidson, composed of John C. Mitchell, Robert J. Calder and Wm.

Tried below before the Hon. James Masterson. This case is stated in the opinion delivered on a former appeal by Chief Justice Roberts. 46 Tex., 500. The facts offered in evidence on the first trial and' excluded by the court were again offered on the second trial and admitted in accordance with the former opinion, and were as follows: 1. Last will of Gen. John M. Lewis. 2.

Tried below before the Hon. Wm. H.. Burkhart. The agreed statement of facts is too lengthy for insertion. The suit was' brought by Jonathan Seela to recover land in trespass to> try title. The defendant set up title under a sheriff’s sale and deed. The plaintiff claimed as heir of Jonathan Yess, and his title xvas admitted to be good unless defendants acquired title under a .judgment in a proceeding in partition, execution and sheriff’s deed.

Tried below before the Hon. J. B. Kennard. Appellants sued B. B. Bead and others for damages for trespasses and waste, alleged to have been committed by them upon a league of land granted originally to J. A. Aughinbaugb, claimed by appellants, alleging their damages at $1,400. The defendants answered, demurring generally and specially to the petition. The court sustained the exceptions to the petition, and, plaintiffs declining to amend, dismissed the suit.

Tried below before the Hon. Wm. H. Stewart. Appellee shipped by appellant’s road five cars of melons, from the city of Galveston, in Texas, to Chicago, Illinois. Somewhere on the route to Chicago, the cars were broken open, appellee’s locks were taken off, the melons transferred into common box cars, and many were wasted and destroyed. They reached Chicago in a damaged condition.

Error from Goliad. Tried below before the Hon. II. Clay Pleasants. F. M. Coleman, Youngs Coleman, J. M. Mathis, T. II. Mathis and George W. Fulton, representing themselves as “doing business .under the firm name and style of Coleman, Mathis & Fulton,” instituted two suits against A. M. Dunman, for the recovery of eighty head of cattle or their value in the first suit, and damages, and one hundred head of cattle or their value and damages in the second.

Tried below before the Hon. W. D. Wood. Suit by appellee filed in the district court of Walker county, August 24, 1877, to enjoin the sale of cotton and corn and fodder levied on by a special constable by virtue of an execution issued out of a justice court in that county on a judgment rendered January 6, 1877, in favor of appellant and against appellee, for $35.27, besides interest. A-writ of injunction was granted by the district judge.

Tried below before the Hon. Joseph Bledsoe. Suit against appellants, Sacra as principal, and the other defendants as his securities on guardianes bond, for a sum alleged to be due them from said Sacra as their guardian. Judgment was rendered May 12, 1882, for the sum of $817.44, in favor of appellees against all the appellants, holding the bond good as a statutory bond.

<p>Error from Ellis. Tried below before the Hon, Eat. H. Burford.</p>

Tried below before the Hon. B. B. Gaines. Appellee brought suit in trespass to try and remove cloud from his title to a lot in Paris. The defendant pleaded the general issue, title in himself and statutes of limitation of three, five and ten years. The court heard the evidence and gave judgment for plaintiff.

Tried below before the Hon. George N. Aldredge. Suit was brought by Anderson to recover an undivided tenth interest in land and for partition. It was alleged that Susan Powers employed him to recover the land in a suit then pending, and had agreed to give him one-tenth of it. The court found the facts to exist as alleged, but rendered judgment for the defendant.

Tried below before the Hon. Joseph Bledsoe. Simon C. O’Roork and others brought this suit against G-. A. Foote on March 25, 1874, to recover the amount claimed to be due on a promissory note, dated June 25,1860, for $135, due the 5th day of June, 1861, signed by appellant and Vm. H. Perkins and another, and payable to James F. Fisher as administrator of the estate of John J. Miller, deceased.

<p>Error from Dallas. Tried below before the Hon. George N. Aldredge.</p>

Tried below before the Hon. Wm. H. Burkhart. Action of trespass to try title brought August 21, 1876, by J. M. Brownson, administrator of Robt. R. Barrow, deceased, against Lloyd Scanlan, Mrs. E. Spurlock and W. J. Rainwater, to recover the undivided two-thirds of a league of land, being the upper league of two leagues granted to Juan A. Padilla, on Brazos river, formerly in Austin county, now in Waller county.

Tried below before the Hon. B. B. Gaines. Suit by J. B. Garnett against Sam Long, O. B. Berry, Edward Long and James N. McBath, comprising (as the petition alleged) the firm of Long, Berry & McBath. It was brought upon the following note: “ $875. Paris, Texas, August 13, 1868. ■ “ One day after date we promise to pay Joseph B. Garnett eight hundred and seventy-five dollars, for value received.

Tried below before the Hon. It. It. Gaines. Appellant brought suit against appellee, as executor of the last will of Catharine Speairs, deceased, August 9, 1877, to have declared and enforced a precatory trust against the estate of Catharine Speairs, mother of appellant, claimed to be created by the last will of his deceased father, Edward Speairs.

<p>Error from Grayson. Tried below before the Hon. JosephBledsoe.</p>

Error from Collin. Tried below before the Hon. Joseph Bledsoe. The character of the suit is unimportant in view of the opinion, which relates alone to matters of practice.

Tried,below before the Hon. George II. Aldvedge. Suit by' appellants against S. D. Blake and E. M. Jenkins, then partners and merchants, to recover the sum of $2,030, alleged to be due for the rent of a storehouse, the separate property of Mrs. T. 0. Rhine.

<p>1. Homestead. — The constitution protects the surviving husband or wife in his or her right to the occupancy and enjoyment of the homestead, whether as against the heirs of the deceased seeking partition, or the creditors of the survivor, so long as such survivor occupies it as such.' It is immaterial whether the title to the homestead property was vested in the deceased or the survivor, or was community property; in either case it is protected against forced sale or partition while occupied as a home, whether with or without others to constitute a family.</p>

<p>Appeal from Wise. Tried below before the Hon. 0. 0. Potter.</p>

Tried below before the Hon. Joseph Bledsoe. Appellant, as guardian of Thos.

<p>1. Statement of facts.- — The decision in McGuire v. Newbill, 58 Tex., again referred to and followed, which announces that no statement of facts filed in vacation will be regarded, unless it was filed within ten days after the adjournment of the term, and was authorized by an order of the district court entered of record during the preceding term. Neither the approval of the judge in vacation, or the filing of written consent of counsel, made by them during term time, wdl answer, if the order be not made during the term.</p>

Tried below before the Hon. J. R. Cowles. Suit by the plaintiff, John McNamara, to recover damages for personal injuries received while in the employ of defendant as-brakeman on its road. The 'damages were laid at $20,000. The defense was contributory negligence on the part of plaintiff. Verdict and judgment for plaintiff for $5,500.

<p>1. Vendor’s lien —Registration.—A vendor’s lien which attaches to realty by virtue of the sale itself, and exists independent of any contract, verbal or written, between the parties stipulating for its existence, cannot in its very nature be recorded, and is that character of equitable claim not contemplated by the statutes of registration. " '• "</p> <p>2. Same — Purchaser — Notice.— As against a purchaser with notice of a vendor’s lien before sale under a judgment, which judgment constituted a legal lien on land, a court of equity will confine the operation of the legal lien of the judgment creditor to the actual interest which the judgment debtor had in the estate at the time such legal lien was fixed. The vendor’s lien will be protected, though the purchasér, who had notice before his purchase at execution sale, had no actual notice when the judgment lien attached.</p> <p>3. Vendor’s lien. — There is a natural equity that land should stand charged with so much of the purchase money as is not paid, and that, too, without any agreement to that effect; this lien is founded on an implied trust between the vendor and vendee.</p> <p>4. Statutes construed.— Art. 2318, Revised Statutes, construed, and Grace v. Wade, 45 Tex., 528; Borden v. McRae, 46 Tex., 396; Ayres v. Duprey, 27 Tex., 593; Wallace v. Campbell, 54 Tex., 90, cited.</p> <p>5. Cases reviewed and followed.— Wallace v. Campbell, 54 Tex., 90; Grimes v. Hobson, 46 Tex., 418; Blankenship v. Douglass, 26 Tex., 229, and Grace v. Wade, 45 Tex., 528, reviewed and followed.</p>

Tried below before the Hon. Joseph Bledsoe. • Appellant brought this suit against J. S. Heard and Emerson, to recover damages on account of personal injuries received from a fall caused by a defective passage way leading from the second story of one building to the second story of another. Heard owned a two-story business house, and the Emersons owned a like house near to but not adjoining it.

Tried below before the Hon. A. J. Hood. Suit brought by appellant against the firm of' J. M. Cupp & Co., on two promissory notes executed by the said firm to appellant, and amounting in the aggregate to about the sum of $2,700.

Tried below before the Hon. B. F. Williams. An ex parte proceeding begun by A. G-. Whitlow in the district court on the 30th of December, 1882, under section 10, chapter 76, acts 1879, regulating the removal and location of county seats; protesting against the result of an election, held in Wichita county on' 7th ¡November, 1882, as declared by the county judge in his official count on the 22d of December, 1882.

Tried below before the Hon. A. J. Hood. Trespass to try title, and for rents and profits, brought by appellee’s intestate, July 25, 1877, for the W. L. Mann six hundred and forty acre headright survey.

Tried below before the Hon. Everett Lewis. Suit against appellants on notes and a bill of exchange alleged to have been executed by them. Appellees had an attachment issued upon an affidavit which appellants claimed was insufficient. The court having overruled a motion to quash the attachment, this appeal was taken to obtain a review of the ruling.

Error from Bexar. Tried below before the Hon. George H. Noonan. Mrs. Margaretta Brotze, the defendant in error, had brought suit in the district court of Bexar county against Louis Yoigtlander and his wife Augusta on a promissory note given for purchase money of a lot in the city of San Antonio, secured by a deed of trust upon the land sold. Louis Yoigtlander died, and his children and heirs .were made parties.

Tried below before the Hon. E. R. Gaines. Suit by Eichard Wooldridge in trespass to try title and to remove cloud, etc., against the appellees, claiming title to the land by virtue of a judgment (described in the opinion) and execution, sheriff’s sale and deed thereunder. Appellees answered by general denial and not guilty. Judgment for appellees. The question involved was as to the validity of the judgment of the county court of Lamar county, upon which appellant relied.

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

Error from Dallas. Tried below before the Eton. George FT. Aldredge. The instrument on which this suit for specific performance was based was a bond executed by Abraham Carver, February 23,1856, for $300, payable to James FT.

Tried below before the Hon. George NT. Aldrpdge. Suit in trespass to try title by appellees to recover the land described in the petition. Appellants answered by plea of not guilty, and specially that on the 13th day of November, 1877, they were then, and had been for a long time prior thereto, occupying the land as their homestead, and that appellee, Jas.

Tried below before the Hon. I. B. McFarland. Suit brought in district court of Lee county by appellant, as administrator of the estate of William Joiner, deceased, to recover $257.40 due that estate on two notes, executed by appellee on the 8th day of December, 1878, and to foreclose the vendor’s lien upon a tract of land situated in that county, for a part of the purchase money of which appellant averred that the notes were given.

Tried below before the Hon. A.. J. Wood. The appellant brought this suit against W. J. Carson, T. D. Lewis, J. M. Richards, W. W. Davis, J. A. Gardiner and J. W. Stevens; trustees of the Methodist church, but the fraudulent representations and deceit charged in the petition were alleged to have been made by W. J. Carson, J. M. Bichards and W. W. Davis only, who, it was alleged, claimed that they represented all of the trustees of the church.

Tried below' before the Hon. George W. Moonan. Suit by Sanborn & Warner on a sworn account for about $1,586.58. The defendants pleaded that they had on December 9, 1879, made a general assignment for the benefit of creditors to J. F. Minter, assignee ; that plaintiffs, on April 12, 1880, filed with the assignee the claim sued on, and that by the act of thus filing they were estopped from suing. The case was tried by the judge without a jury. Judgment for defendants.

. Appeal from Grayson. Tried below before the Hon. Joseph Bledsoe. Streeper sued W. E. and Thos.

Tried below before the Hon. Joseph Bledsoe. Taylor brought this suit for specific performance of a written contract between appellee’s testate, Jacob Buth, ancl Howell & Bagsdale, dated June 8, 1857, alleging that in éonsideration of Howell & Bagdale having located and paid the expenses of the survey and location of a specified six hundred and forty acres of land by virtue of certificate issued to Wm.

Tried below before the Hon. C. O. Potter. Suit by appellants for six hundred and forty acres of school land purchased by them. Answer of not guilty, and suggestion of improvements made in good faith. The answer as to improvements and possession in good faith was as stated in second subdivision of syllabus. Verdict and judgment for appellants, and for defendant the value of his improvements.

Tried below before the Hon. George FT. Aldredge. F. P. Powell sued appellant in' trespass to try title October 26, 1878, to recover the land described in the petition, which is a house and lot in the town of Waxahachie, claiming the same by and through a judgment against appellant in favor of Dur & Co., and an execution issued by virtue' thereof, sheriff’s sale and deed to appellee.

Error from. Bexar. ■ Tried below before the Hon. G. II. Hoonan. Suit was begun in the county court of Bexar county, Texas, sitting in probate, upon the petition of Juan Perez, defendant in error, against Antonio Perez, Maria de Jesusa Perez de la Zerda, Concepcion Perez, minor, whose guardian was Jose Maria Perez, Francisca Perez, wife of.

Bexar. Tried below before the Hon. George H. Hoonan. In this case there was no claim for other than actual damages. The evidence of injury to crops consisted of estimates of their probable value at maturity, they having been destroyed while growing.

Bexar. Tried below before the Hon. George H. Noonan. Appellant brought suit claiming that he had been damaged by the negligence of defendant’s employees in failing to ring the bell or blow the whistle, and by running defendant’s engine suddenly in front of plaintiff’s team while attempting to pass over defendant’s railway, at a public crossing in the city of San Antonio; and by the sudden appearance of the engine and ringing the bell and blowing the whistle, plaintiff’s team…

Error from Grayson. Tried below before the Hon. Joseph Bledsoe. Charles Maroelles brought this action against the Houston & Texas Central Bailway Company for alleged injuries received by him on the 1st day of October, 1877, Avhile in the employ of said company and in the discharge of his duties as switchman, laying his damages at $10,000.

Tried below, before the Hon. A. J. Hood. The decision was upon an agreed case, as follows: “ The appellant -was duly incorporated, under the general law of this state, on the 26th day of July, 1876; the articles of associa-; tion naming the directors for the first year, who served the company as such for that period of time. “ The purposes for which the incorporation was formed are, in the language of the charter, as follows: “ ‘ 1st. The acquisition, by purchase or…

Tried below before the Hon. Everett Lewis. Suit against appellant to recover $134.80 for work and labor performed and to foreclose a mechanic’s lien upon certain premises set out in the petition. The contract, as alleged in appellee’s petition, was a parol contract. Appellee made out a claim of the indebtedness, certified and sworn to, which was attached to the petition.

. Appeal from Harrison. Tried below before the Hon. A. J. Booty. ■ The following statement by appellee is adopted: A. F. McAllister instituted suit in the district court of Harrison county, Texas, on the 16th day of April, A. D. 1879, against the appellant, the Texas & Pacific Bailway Company, alleging that appellant was a corporation duly, created under the laws of Texas, with its main office in said city of Marshall, Texas; that on the 10th day of February, 1879, the said…

Tried below before the Hon. A. J. Hood. Suit instituted on the 25th day of June, 1881, against John D. McCamant, one of the appellants, to recover $525.95, paid by appellee as surety to Tom Randolph, on a note held by him against McCamant and appellee as surety; also the sum of $547.74, paid by appellee as surety of' J. D. McCamant to Kirkpatrick & Co., and asking for a writ of attachment.

Tried below before the Hon. A. J. Hood. F. A. Piercy, a lady who brought this suit in order to get in the 'testimony of the contents of deeds alleged to be lost, made an affidavit that they were in existence and had been recorded, but they and the records were destroyed by fire in the court-house when it was burned; that she had tried diligently to find them, and could not, “ therefore she says they are destroyed or lost.” She stated no diligence in search for the lost…

Error from Collin. Tried below before the Hon. Joseph Bledsoe. Suit by defendant in error to recover damages for injuries received from the alleged carelessness and gross negligence of the defendant’s servants in running its locomotive and cars against him,, whereby he was thrown from the track, his arm and leg broken, and lie was permanently disabled.

<p>1. Practice.— The rule of practice again announced, that when it bpconws necessary that a statement of facts shall be made out, signed and filed after the adjournment of t .e term, an order to that effect must be applied for by a written motion entered of record.</p> <p>2. Same.— If such motion is made, and the order granted, and from, any cause it is not found in the 'minutes of the court, no entry of it at a subsequent term will be allowed, unless the fact of its having been granted shal be established by memoranda upon the judge’s docket, or found among the files of the cause.</p>

Tried below before the Hon. Geo. H. Hoonan. Suit by appellant against appellee to cancel a conveyance of land.

Tried below before the Hon. Everett Lewis. Appellant, who resided in Wilson county, sued in Wilson county the appellee, who resided in De Witt county, for a malicious prosecution, claiming $10,000 damages, and alleging in substance that the defendant made three complaints in writing before the county at-' torney of De Witt county, charging plaintiff and others with theft of cattle in Gonzales county, and causing a warrant to be issued by a .justice of the peace of De Witt,…

Tried below before the Hon. Everett Lewis. October 28,1878, appellee sued for §280.50, and to foreclose a mechanic’s lien upon fifty acres of land, claiming that he had built a house upon it for appellant, under a verbal agreement, and for which appellant had promised to pay him the amount sued for; that he had fixed and secured his lien under the statute, and praying for judgment and foreclosure of the lien.

Tried below before the Hon. A. S. Walker, sitting as special judge. Appellees recovered a judgment against appellant, April 5, 1879, in justice court precinct Ho. 4, Williamson county, for $16 principal, and $2.35 interest. May 3,1879, appellant brought this injunction suit in the county court, and prayed for and obtained a writ of injunction, restraining and enjoining that judgment upon several grounds.

Tried below before the Hon. Geo. H, Noonan. Suit by Peters against Shook to recover damages for personal injuries inflicted on plaintiff by defendant. lie charged that the assault which produced the injury was made by defendant without provocation, maliciously, and with in; ent to injure.

Tried below before the Hon. George 1ST, Aldredge. The cause of action as presented in plaintiff’s petition as against W. M. Moon and the sureties on his bond as sheriff of Dallas county, was that one Petrie, on the 8th day of July, 1878, by his letter of attorney, authorized and empowered appellant to collect ■ a judgment recovered by him against.

Error from Atascosa. Tried below before the Hon. George H. Hoonan. The suit was brought by appellants to recover on a note for $2,000, made by appellee, and payable in cattle at their market value at time of delivery. The note was executed to Mrs. M. I. Harris, who-was joined as plaintiff by her husband, L. B. Harris. On it was indorsed a credit for $600, by L. B. Harris, as agent for his wife.

Error from Guadalupe. Tried below before the Hon. Everett Lewis. Baker and others brought this suit for the partition of certain lots in the town of Seguin, and against Fry to remove cloud from the title to one of the lots. Fry answered, claiming title by regular chain of transfers from the state. To this the other parties replied by claiming the lot by reason of five years’ possession under a deed recorded. The judgment, was in favor of the defendants in error.

Tried below before the Hon. Everett .Lewis. Appellee sued to recover for personal injuries received while alight! mg from the cars of appellant at Kingsbury depot, claiming that the injuries were caused by the negligence of the servants of appellant in not stopping the train for the time required by law.

.Wilson. Tried below before the Hon. Everett Lewis. Suit against appellees, brought Hovember 28,1878, for a new trial in a case wherein a judgment had been rendered against the appellants at the December term, 1876, of the district court of Wilson county. The basis of the suit was newly discovered evidence.

Tried below before the Hon. A. O. Cooley. Trespass to try title to four hundred and eight acres of land, patented to Francis Heermann, assignee of Johannes Zipp. Appellee filed an amended original answer, setting up a plea of “ not guilty,” and various special defenses. • During the trial appellant offered in evidence, as a link in his chain of title, an instrument in writing, purporting to have been signed and executed by appellee, and acknowledged before one Gr.

Tried below before the Hon. J. A. -Carroll. Trespass to try title brought by J. M. Brownson, appellee, as administrator of Robert R. Barrow, deceased, against I. H. Boggess and D. C. Blevins. At the June term, 1877, J. P. Smith, Esq., one of the attorneys for plaintiff, filed his affidavit that the deeds comprising the chain of title of defendant I. H. Boggess were forged.

<p>1. Mortgage — Equity.— In determining whether a deed, absolute on its face, shall be construed as a mortgage, equity will look to all the circumstances preceding and attending its execution, and sometimes to those which occur afterwards. If there was a debt due from the grantor, and a loan made which the deed was intended to secure, the deed will be deemed but a mortgage, no matter how the transaction is disguised, and this though no written evidence of the debt be made or preserved.</p> <p>2. Fact case.— See statement and opinion for facts held sufficient to establish a mortgage, though the deed was absolute on its face.</p> <p>3. Tender. — In trespass to try title and for possession, when the defendant, claiming. under a deed which, though absolute on its face, was really a mortgage, wrongfully obtained and withheld possession of the mortgaged premises, it is not necessary to a recovery by plaintiff that he should tender the amount due defendant. The defendant may, under proper averments, in such a case, have a judgment for his debt, and foreclosure and sale to satisfy it.</p>

Tried below before the Hon. A. O. Cooley. A statement of the lengthy pleading in this case, or of the evidence, which was voluminous, would not make more plain the legal principles announced. Enough is stated in the opinion of the facts to make the conclusions announced understood. Appellants were-plaintiffs below.

<p>1. Damages — Statute construed.— The statute permits an action for damages, on account of injuries causing deathof a person, to be brought for the use of the surviving husband, wife, children and parents of the deceased, and provides that the amount of damages recovered shall be apportioned to those entitled in such manner as the jury may direct. R. S., 2903-2909. Held,</p> <p>(1) Such an action, brought for the benefit of the wife, when the petition shows that the mother survives, cannot be maintained, if the exception based on account of the absence of necessary parties be made in time, when the mother’s interest in the damages has not been adjusted; nor is it any answer to the exception to say that the mother’s claim is barred by limitation.</p> <p>(2) If in any manner the mother of the deceased had settled her claim for damages, that should have been shown, and the judgment could then stand.</p> <p>(3) Railway Co. v. Moore, 49 Tex., 46, and Railway Co. v. Le Gierse, 51 Tex., 198, followed, and this case distinguished from March v. Walker, 48 Tex., 373.</p>

<p>1. Contract — Subscription.— A subscript ion made by the inhabitants of a county to assist in the erection of buildings fora high school, on a proposition made by the district conference of the Methodist church, to establish such a school on a designated sum being contributed by such inhabitants, creates an obligation to pay, binding on each subscriber to the eitent of his subscription, when the subscription is accepted. The obligation was then binding on each party — on one to pay, on the other to build.</p> <p>2. Same.— Until the acceptance by the church of the subscription, or the beginning of work on the building, the subscriber may withdraw his promise to pay the amount subscribed by him, but he cannot afterwards. Hopkins v. Upshur, 20 Tex., 93; Doyle v. Glasscock, 24 Tex., 200, and "lióse v. R. R. Co., 31 Tex., 58, approved.</p> <p>3. Same.— He who fails to pay his subscription under such circumstances cannot avoid his obligation by showing the laches of the church to erect the building, if by his failure to meet his obligation he contri! uted to that delay.</p>

Tried below before the Hon. A. O. Cooley. Suit by appellee, filed the 26th August, 1881, to recover four and three-eighths acres of land in the town of San Saba.

Tried below before the Hon. L. D. Bradley. Bridget Prendergass died in Navarro county in the spring of 1882, leaving a will in which she named R. 0. Beale as executor. The will .was executed on April 21, 1880, and was drawn by R. C. Beale, who was then, and still is, county judge of Navarro county.

<p>Appeal from Williamson. Tried below before T. P. Hughes, Esq., special judge.</p> <p>Suit brought in the district court of Williamson county, on the 11th day of June, 1880, by appellees Wiley & Porter, against appellants D. II. Snyder and others, as trustees of the Methodist Episcopal church, at the town of Bound Bock in said Williamson county, for the sum of 0163.20 and interest, and for the foreclosure of a mechanic’s lien alleged to have existed upon the Methodist church, building, situated upon lots designated. It was alleged that the lien was fixed by filing and having recorded a bill of particulars and an itemized account, which was attached as an exhibit to the petition.</p> <p>Appellants denied the existence of the lien and alleged that the .same had never been fixed according to law; they admitted that as trustees of the church they owed 093.80 upon the construction of the building as a mere open, unsecured account; they also alleged that the contract under which the house was erected was in writing, and that no lien could be fixed by the bill of particulars. First supplemental petition denying all allegations made by appellants in their answer, but alleged that the contract under which the work was done upon the house was in writing and that the original written contract was lost.</p> <p>The court, without the intervention of a jury, rendered a personal judgment against the defendants for the sum of 0158.20, the court deciding that appellees had fixed no lien upon the property.</p>

<p>1. Jurisdiction of attachment liens.— Article Y, section 8, of the constitution! of 1876, vesting in the district courts jurisdiction of all suits for the recovery of land and the enforcement of liens thereon, confers on them exclusive jurisdiction over all liens created by act of the- parties, and which existed before the suit was-begun; such as mortgages, vendors’ liens, and the like, the adjudication of which often requires a degree of legal learning which justices of the peace were not supposed to possess. But that section does not confer exclusive jurisdiction on the district courts over attachment liens, which are fixed by operation of the law, about which no finding in the verdict is required, and the foreclosure of which follows as a matter of right on a return of verdict for the moneyed demand, to secure which the writ of attachment was issued.</p> <p>2. Same. — Since the constitution of 1876 (article Y, section 8) contains the same language used in the former constitutions, in conferring jurisdiction on the district courts for the enforcement of liens, except that it restricts instead of enlarging that jurisdiction, it cannot be construed to deprive justices of the peace of the power to enforce attachment liens on lands for amounts within their jurisdiction, which, under former constitutions, they have exercised without question for thirty years. It must be construed to limit the exclusive jurisdiction of the district courts to that class of liens on land of which they had taken special and sole cognizance under previous constitutions, with power still existing in justices of the peace to foreclose such liens on land as, under previous constitutions, and without reference to the act of August 13, 1870, they had enforced against property of all kinds.</p>

Tried below before John H. Bice, Esq. On the 18th of October, 1882, the appellee, as the administrator of David M. Brown, deceased, filed his petition in the district court of Navarro county, as an action of trespass to try title to recover a block of two and a half acres of land in the city of Corsicana.

El Paso. Tried below before John. Bailey, Esq., special judge. Suit brought by J. P. Miller, guardian, etc., in trespass to try title to an undivided half of an urban homestead in the town of San Elezario, in El Paso county. The suit was for the minor heirs of Theodore J. Miller, deceased, and the petition was filed August 12,1879.

Tried below, before the Hon. H. Clay Pleasants. Calvert brought this action against appellees some time prior to April 13, 1877, in trespass to try title, and to remove cloud from the title of certain lands, claiming through a judgment rendered in the district court of Wilson county against P. R. Trial, November 23, 1875, a copy of which was filed for record in Karnes county, where the land is situated, December 8,1875, and execution, levy and sale, the latter March 7, 1876.

<p>1. Certainty in statement of account. — An itemized account of materials finished in the erection of a building, consisting of brick and sand, and which was filed in the county clerk’s office to fix a lien under the act of 1876, is sufficiently certain if it gives the number of brick and the dates between which they were delivered, and the number of loads of sand with like dates, with the price of the brick per thousand, and of the sand per load, without giving specific dates at which each part of the whole was delivered.</p> <p>2. Evidence.— Such an account, with an accompanying affidavit of its correctness, as required by statute, with the certificate of the proper officer that it was sworn to, and of its .filing and registration, is admissible in evidence; the certificate-of the officer being prima facie evidence of the facts it recites.</p> <p>3. Evidence.— The certificate of the clerk who recorded such an account, with accompanying affidavit, is prima facie evidence of the date of its filing and registration, as recited in his certificate.</p> <p>4. Description.— See opinion for a description of property, on which it was sought to fix a lien for material used in building, held sufficiently certain.</p> <p>5. Mechanic’s lien.— The lien of a mechanic or material man once fixed on land, and the structure erected thereon, is not affected by the subsequent destruction of the house, under the statute conferring the lien.</p>

• Tried below before the Hon. T. B. Wheeler. Suit for the trial of the right of property in seven hundred and sixty-eight head of sheep. Appellants recovered a judgment in the district court of Galveston county against B. M. Moore, the husband of the claimant, for the sum of $1,258. Execution issued, and on the 17th of July, 1882, was levied on the property in controversy in the possession of B. M. Moore, the defendant in execution and the husband of the claimant.

Tried below before the Hon. It. 'H. Allen. Action of debt by J. W. Skip worth under article 3210, ¡Revised Statutes, on a dormant judgment of the district court of Tarrant county, rendered in 1874,'the record of which, it was alleged, had been destroyed by fire. It was brought in the district court of Mitchell county on the 24th day of January, 1883. Judgment was rendered in favor of the appellee for $1,350.64. Appellant assigned as error: . . . “ 6.

<p>1. Practice.— The discretion exercised in permitting special exceptions to be filed to a petition, after allowing the defendant to withdraw his announcement of ready for trial, would not afford cause for reversal if the exceptions were well taken.</p> <p>2. Fact case.— See statement of case and opinion for facts pleaded, which showed such gross fraud, imposition, undue advantage and oppression as to constitute sufficient grounds for setting aside a settlement coerced by thoir influence.</p>

Tried below before J. W. Stephens, Esq., special judge. The suit was brought by J. T. Anderson in trespass to try title. . The suit involved the validity of conflicting locations and surveys; ■■ the pleadings and evidence were lengthy, and a statement of them would not make more plain the principles involved and decided than the opinion states them.

Tried below before the Hon. B. B. G-aines. Suit by Y. W. Hale against A. W. McComas and others, to enjoin the enforcement of a judgment rendered against him in favor of A. W. McComas '& Co., on the ground that he had not been served with any process which required him to appear before the justice of the peace who rendered the judgment, and that he had a valid and just defense against the account on which the suit was brought.

Tried below before the Hon. B. W. Bimes. On the 16th day of August, 1882, appellee filed his petition in the district court of Falls county against appellant, as administrator of the estate of W. F. Bledsoe, deceased, and Jesse Scruggs, clerk of the said district court, alleging that, on the 11th day of ¡November, 1875, a judgment was rendered by said district court in favor of the intestate and against petitioner for the sum of $2,916.82; that no execution had. been issued…

Tried below before the Hon. A. J. Hood. Calvert sued defendants in error, February 6,1880, claiming that he pre-empted one hundred and sixty acres of land in Jack county in 1878, by settling upon it as the head of a family; that the land was then vacant unappropriated public domain; and that he had twice made formal demand of the surveyor to survey the same for him, once in 1878, and once in 1879, but that the surveyor refused to survey the same; that he had. since his…

Error from Bosque. Tried below before the Hon. Jo Abbott. The original petition in trespass to try title was filed April 10, 1882, by A. H. Bean.

Error from Milam. Tried below before the Hon. W. E. Collard.

<p>From Navarro county. Tried below before the Hon. L. D. Bradley.</p> <p>On motion to affirm without reference to the merits.</p>

Palo Pinto. Tried below before the Hon. J. B. Fleming. Appelleé, administratrix of the estate of M. L. Dalton, brought this suit against appellants, as partners under the firm name of Carson & Lewis, upon a promissory note as follows: “§>2,860, gold.

<p>1. Promissory note. — A suit was brought on the following instrument, and to enforce a vendor’s lien on land for the payment of money, which it was claimed that the instrument was evidence of a promise to pay, viz::</p> <p>“ $400. On or before the first day of January next, 1877, I promise to pay to J. 0. Grady or order, for value received, with twelve per cent, interest per annum from' daft till paid. This note is given for part of the purchase money on a tract of land purchased by me of J. 0. Grady and wife. October, 11th day, 1876.</p> <p>(Signed) “ Will Hubert."</p> <p>Held, (1) The instrument, though not drawn as promissory notes usually are, evidences a clear and explicit promise to pay J. C. Grady or order §100, at a named date.</p> <p>(2) This instrument distinguished from those in which the marginal statement in figures is not inserted in a blank left therefor in the body of the note.</p> <p>2. Outstanding title.— In a suit for purchase money of land and to enforce a vendor’s lien, if the contract of purchase be not executory, but executed by delivery of a deed, the purchaser going into possession, if he seeks to avoid payment on the ground of a superior outstanding title, he can only do so by clearly establishing its existence. Especially is this true when the vendor shows a title prima, facie good, resulting from possession under a recorded deed for five years.</p> <p>3, Title — Limitation.— It seems that title acquired by limitation, if clearly shown, will be sufficient evidence of right m a vendor to conevy, in a suit by him against the vendee for the purchase money, even under an executory contract, at • least when the vendee has gone into possession and has not been disturbed by adverse suit; citing 55 Ala., 622.</p>

<p>1. Insurance.— A policy of insurance which in terms provides that the insurance may be terminated at any time at the option of the company, is avoided from the time when the insured has notice that the proper local agent has received the company’s instructions that it would no longer be liable.</p> <p>■2. Same.— In such case direction to the agent to cancel the policy is, when communicated to the insured, as effectual to terminate the risk as would be the most express notice that the policy had been terminated; following Bergson v. Builders’ Insurance Co., 88 Cal., 541, and other cases.</p> <p>-3. Same — Agreement of agent.— After a knowledge of the company’s instructions to terminate the risk, an agreement with the agent to continue it would not bind the company.</p>

<p>1. Insurance.— A policy of insurance contained the following clause: “If the assured shall have or shall hereafter make, any other insurance con the property hereby insured, or any part thereof, without the consent of the company written hereon, . . . then and in every such case this policy shall be void.” Another insurance was effected on the same property without procuring the indorsement of consent on the first policy, but notice was given thereof to the agent of the com--’ pany, who had full discretion in the premises, and who made no objection to the additional insurance, said nothing about canceling the first policy, and did nothing to indicate a wish to do so. On the contrary, after knowing of the second insurance, the agent of the company in which the first insurance was effected took two risks on the same property in other companies represented by him. Held,</p> <p>(1) It was the right and duty of the first insurers to elect whether they would enforce the policy or abandon it, and to do this in a reasonable time and an unmistakable way.</p> <p>(2) Having by their silence induced the insured to believe the policy still in force, they were estopped from alleging the contrary when the attempt,was made' to enforce it against them; following Hayward v. National Ins. Co., 52 Mo., 181; Van Bories v. United Life, Fire and Marine Ins. Co., 8 Bush (Ky.), 133, and other cases cited.</p> <p>(3) To permit the company in which the insurance was first effected to take advantage of the breach communicated to it by the insured after a long acquiescence in it without objection, would be to permit the perpetration of a fraud. /</p>

Tried below before the Hon. Geo. H. Hoonan. The opinion will be understood, when taken in connection with' statements of syllabus.

Coryell. Tried below before the Hon. J. B>„ Fleming. Haughty brought this suit against appellees May 9, 1877.

<p>1. Patent — Certificate.— While a patent should always contain recitals showing the number, date and class of the certificate on which it is based, yet this is not the only evidence by which the identity of the certificate on which the patent issued may be shown. The name of the grantee, quantity of acres patented, and the location, as shown by the general land office, of the land covered by the certificate, and that conveyed by patent, may be looked to in order to identify the certificate as the one on which patent issued.</p> <p>2. Ancient instrument.— See statement of case for facts held sufficient to permit the introduction of a deed as an ancient instrument and prima facie genuine. The making of an affidavit attacking a deed as a forgery imposes on the party offering it the burden of proving its execution in accordance with the rules of common law.</p> <p>3. Same.— If one whose deed is attacked under the statute as a forgery establishes prima facie its genuineness, the one who impeaches it may introduce evidence to sustain h¡s plea of non est factum. If he introduces no proof (the affidavit not being evidence), and the making of the deed has been shown by any of the modes known at common law, its genuineness is established.</p> <p>4. "Charge of court.— See statement of case and opinion for a charge in regard to a deed attacked as a forgery, held not to be error; following Younge v. Gruilbeau, 3 Wall., 636.</p> <p>5. Costs. — The court has no authority to tax the attorney’s fees of one defendant against another defendant.</p>

<p>Error from McLennan. Tried below before the Hon. L. 0. Alexander.</p> <p>The case came up on an agreed statement as follows:</p> <p>Suit brought by the defendants in error to recover four hundred and eighty acres of land, patented to Abraham Blunt. Defendant, pleaded not guilty.</p> <p>Plaintiff in the court below offered in evidence:</p> <p>1st. Patent from the state to A. Blunt for the land in controversy, dated November 8, 1875.</p> <p>2d. A certified copy from the land office of the original certificate-to A. Blunt, on which the patent issued, dated November 21, 1837.</p> <p>3d. A land office copy of a transfer from A. Blunt to B. A. Foreman, dated December 29, 1837, indorsed on the back of the certificate. Witnessed by two witnesses, J. W. Moody and Francis-Stephens.</p> <p>4th. Land office copy of a transfer of the certificate from B. A.. Foreman to James W. Patton and Terrell Gorman, dated January 10,1838, indorsed on the certificate; also witnessed by two witnesses,. J. W. Moody and M. G. Smith.</p> <p>To the reading of these transfers defendant objected on the ground that there was no proof of delivery or of acts of ownership under them. Objection overruled.</p> <p>5th. An agreement of counsel that the signatures of the parties- and Avitnesses to the transfers were all genuine.</p> <p>6th. That plaintiffs were the heirs of Terrell Gorman, except Taylor and Leland, who claim under the heirs by a valid transfer.</p> <p>7th. They proved that Terrell Gorman died in August, 1840, in Mississippi; that he came to Texas in company with Jas. W. Patton in 1838 to purchase land and land claims; that he returned from Texas in February, 1840, and that he told his wife that he had secured some four thousand acres of land in Texas, and had located some more lands, but had not secured them, and deposited his deeds and certificates somewhere in Texas. He told her the place, but she could not remember the name of it, and that he never spoke of' having a partner.</p> <p>8th. Agreement of counsel that defendant was in possession of the land.</p> <p>Defendant called O. H. Xeland, plaintiff, who testified:</p> <p>“Do not know that plaintiffs have paid any taxes; he has paid-none; plaintiffs did not know of tfie Blunt tract until witness wrote-to them. They knew they had land in Texas, but knew nothing of this particular tract. They then sent witness power of attorney, coupled with a one-half interest, and he filed the suit. There are-two A. Blunt tracts; both were located by G-. J. Carter; the one, bethinks, in 1853 or 1854, and the other in 1858 or 1859, one of which is the one in controversy.”</p> <p>The plaintiff called S. H. Benick, who testified:</p> <p>“ That witness placed one Binger in possession as tenant for Mrs. Jane Stamps, who claimed as surviving widow of Oliver Gorman, deceased, who was a brother of Terrell.Gorman, because G. J. Carter claimed to own the land, was paying taxes on, and trying to sell, it. Carter died some two years since.”</p> <p>The attorneys for plaintiffs and defendants in error agreed that, the above are all the material facts in this cause, and that' the only-issue presented by the record for the decision of this court is:</p> <p>“ Was there sufficient evidence of the delivery of the certificate- and transfers offered in evidence to the ancestor of plaintiffs to entitle them to recover?”</p> <p>" S. H. Benick,</p> <p>Attorney for Plaintiffs in Error.</p> <p>E. H. Graham,</p> <p>Attorney for all Defendants in Error..</p>

Tried below before the Hon. D. M. Prendergast. A. J. Dixon recovered a judgment against Joseph Peyton as principal, and Adolph Zadek and Isaac Baum as sureties, for $142.42 and $92 costs. Execution issued and levied upon property of A. Zadek, who, together with Baum, sued out a writ of injunction restraining sale of goods under execution.

Tried below before John Q. Bice, Esq., special judge. On the 3d of February, 1874, this suit was instituted against J. H. Brent, former sheriff of Navarro county, and against appellees, sureties on his official bond. The object of this suit was to recover of Brent and his sureties judgment for $650.

Bosque. Tried below before the Hon. Jo Abbott. Held: in part payment, and the remainder Middlebrook was to pay in good notes for land, secured by vendor’s lien and by him.indorsed; that the sale was openly and fairly made, and appellees, Kellum & Botan, were informed of it by appellants so soon as it occurred, and before they sued out their attachment ; that the goods had been placed,…

Tried below before the Hon. Spencer Ford. Suit by T. P. Tindall and wife to recover against E. W. Pierce $1,500, balance of the purchase money due them on a sale of a tract of land, and for the foreclosure of the vendor’s lien on two hundred acres of the same. The petition alleged that the sale was made the 3d of December, 1872.

<p>1. Contract on Sunday. — A contract made on Sunday to secure decent burial for.. the dead and to procure the presence of parents of the deceased is, in contemplation Of law, a contract to do a work of necessity and charity, and therefore valid;' following Doyle v. Lynn, 118 Mass., 197.</p> <p>2. Damages.— The tendency of decisions by courts in states where technical forms of Í) action have been discarded, is to apply the same rule for the measure of damages in cases based upon contract, which are attended with circumstances of aggravation, that is apphed in actions founded in tort solely.</p> <p>3. Same. — A railway company which owned and operated for hire a telegraph line received a message on Sunday to be transmitted to one living at a place where it maintained a telegraph office on its line. The message announced the death of the sender’s wife and child, and was directed to his father, requesting his presence. Held, that the sender was entitled to recover against the compa ly, over and above such sum as he paid for the transmission of the message, if there was wilful or gross negligence in failing to deliver the message, such an amount of ex >mplary damages as a jury might award under proper instructions. When nominal damage is shown in such a case, it is for the jury to measure the exemplary damage, whose verdict, if excessive, would be set aside.</p> <p>4. Distinguished. — This case distinguished from So Relle v. W. U. Tel. Co., 55 Tex., 309. There the action was by him who received the message, and who showed no nominal or special damage; here the plaintiff was the sender, with whom the contract for its delivery existed, and whose right to recover nominal damage was shown.</p> <p>5. Damages. — A telegraph company which is guilty of gross negligence or total failure in delivering a message of a strictly private nature,, announcing th“ death of a relative of the sender, and desiring aid and the like, cannot escape with m >re nominal damages on account of the want of strict commercial value in the message.</p> <p>6. Pbactice — Evidence.—Though evidence improperly admitted, which was calculated to arouse the feelings of the jury against Ihe party opposing him who offered it, may afterwards he withdrawn and the jury told not to regard it, its impression is not easily effaced or its influence calculated, and it is ground for reversal.</p> <p>7. Pbactice. — The practice of admitting improper testimony with the promise or expectation of afterwards directing the jury not to consider it, or of controlling its effect by a charge, is one not to be encouraged. Impressions once made are not easily effaced; and when such testimony r‘suits in rousing the sympathies or prejudice, it is apt to influence the finding, notwithstanding a charge to disregard it.</p>

Tried below before the Hon. W- A. Blackburn. This was an application originally made in the county court of Williamson county, by W. 0. Cain, to have probated what purported to be the last will and testament of William Clark, deceased, Cain being named in the will as executor.

Eeeob from McLennan. Tried below before the. Hon. X. B. San-ders. Mrs. Sarah L. Wheeler brought suit against the Southern Life Insurance Company in the district court of McLennan county to recover $5,000, the amount of a policy on the life of her deceased husband. At the same time affidavit was made and a writ of garnishment issued against plaintiff in error and served upon S. W. Mabry, S. A. Killough and B. F. Bichey as trustees.

Tried below before the Hon. W. A. Blackburn. Suit by the appellee, Geo. W. Littlefield, against Marshall Wells for the recovery of one thousand and eighteen head of cattle, of which plaintiff claimed to be the owner, and which were alleged to have, been taken possession of and unlawfully withheld by defendant. Plaintiff obtained a writ of sequestration. The petition alleged the average value of the cattle to be §9.80 per head, and the aggregate value to be §10,000.

Tried below before the Hon. W. E. Collard. Judgment was rendered for appellee for §1,000. The opinion states the facts sufficiently.

Tried below before the Hon. L. 0. Alexander. On February 23, 1877, Hanrick brought this suit against Wm.

Error from McLennan. Tried below before the Hon. L. O. Alexander.

.Appeal from Bexar. Tried below before the Hon. Geo. H. Hoonan. Suit by Talliaferro Burnett against William Redus, filed the 12th day of Septemb )r, 1879, on a decree of the chancery court for Monroe county, Mississippi, rendered on the 14th day of February, 1873, against William Redus and one T. W. Baker, who, it was alleged, were the executors of the estate of Aaron Redus, deceased, for the sum of §10,456. Judgment against William Redus for the sum of $8,990.

<p>Suit in trespass to try title against appellee. Mrs. McNally claimed as the surviving wife, and the other appellants as children of W. A. Langbam, deceased. Appellee claimed the land as purchaser at a sale made by McNair as administrator of the estate of W. A. Langbam, deceased, made by virtue of an order of the probate court of Navarro county. The sale duly reported and confirmed, and deed executed by the administrator.</p> <p>Appellants alleged that the administrator’s sale under which appellee claimed was void, on two grounds: 1st. On account of fraud and combination between the administrator and appellee in procuring the order and having the sale made. 2d. Because there were no debts against the estate at the time the order was made, and that appellee knew the fact at the time and before the sale.</p> <p>Judgment for appellee.</p>

Tried below before the Hon. A. S. Walker. Suit by Bucker & Montgomery in their own'right and for the use of Marshall, Yaughn and Vicars, based upon about forty certified due bills which had been executed by G. G. Anderson to certain persons named for labor in constructing defendants’ line of railroad from Austin to Burnet.

Tried below before the Hon. L. 0. Alexander. Scott brought this suit against Lyons, Solomon & Oo. in trespass to try title to a lot in the town of Marlin, By amendment, he claimed through a judgment recovered by Wm.

Tried below before Hon. A. S. Walker. Suit in the district court of Travis county, begun the 26th day of December, 1881, by R. Y. Cross, William Mullins, Charles Mullins and Julia Barron (the latter being joined by her husband, - Barron), the last-named two as the heirs of Isaac Mullins, deceased, against J. L. Driskill, as administrator of the estate of William H. Day, deceased, to establish a claim against said estate for the sum of $18,079.50, and interest from the 1st…

Tried below before the Hon. A. J. Hood. Suit by appellant upon two promissory notes alleged to have been for a tract of land in Jack county.

Tried below before the Hon. Jo Abbott. This suit was brought by Day to recover a small lot of ground in Cleburne, Texas.

Error from Washington. Tried below before the Hon. E. B. Turner. A report of this case will be found in 43 Tex., 205, to which reference is here made. After the case was remanded, the plaintiff in error renewed the exceptions to the petition and amendments which had been passed upon by the supreme court. These were overruled by the court.

Error from Coryell. Tried below before the Hon. Thos. L. Nugent. Suit brought by William Suggett, as the next friend of George Suggett and Mary Suggett, minors, against S. Woodward and Eleanor L. Woodward, alleging that plaintiffs were minor children of Wm.

Tried below before the Hon. B. F. Williams. Suit against appellees in the nature of a suit in trespass to try title to six hundred and forty, acres of land, and for damages. Plaintiff and appellant also sued out a writ of sequestration for the premises, by virtue of which appellees were ejected from the premises. Appellees answered by general denial, plea of not guilty, suggested improvements by Wm.

<p>1. Mortgage — Growing crops.— The purchaser at foreclosure sale of mortgaged land is not entitled by virtue of his purchase to crops ungathered and remaining on the land at the time of his purchase, as against a purchaser of said crops from the mortgagor before sale.</p> <p>2. Mortgage. — In Texas a mortgage is but a security for debt, the mortgagor remaining in possession, and the title remaining in him; hence, the foundation for many rights of the mortgagee in England, and ¡several American states (which are enumerated in the opinion), does not exist in Texas.</p> <p>3. Same.— A mortgage being simply a lien to secure the payment of a debt, it cannot be held to give a mortgagee, or person purchasing under it, any greater right to ungathered crops standing upon the mortgaged land, than one would have who purchased under a lien acquired in any other manner prior to the time the crop was planted, or the right to plant it accrued.</p> <p>4. Same — G-howing chops.— Crops, whether growing or standing in the field ready to be harvested, are, when produced by annual cultivation, no part of the realty; they are liable to voluntary transfer as chattels, and may be seized and sold under execution.</p> <p>5. Same. — The mortgagor is entitled to sever, in law or fact, the crops which stand on the land at any time prior to the divestiture of his title by sale, under the mortgage, and whenever such severance occurs, title thereto will not pass by the purchase of title to the land under the mortgage.</p>

<p>1. Statute of frauds. — In consideration of plaintiff’s promise not to foreclose a deed of trust (which he held upon a stock of goods), executed by the deceased husband of defendant, and of his promise to continue to furnish her goods, to be covered, as in the case of her husband, by the deed of trust, she, the defendant, promised verbally to pay off the amount due from her husband out of the proceeds of an insurance policy on her husband’s life. Held, that the defendant’s promise to pay the debt of her husband was not within the statute of frauds. '</p> <p>2. Same.— The consideration of the new promise of the defendant springing, as it did, out of a new transaction, and moving to her upon a fresh and substantial ground of personal benefit to herself, the statute of frauds did not apply to that promise to pay the debt once due from her husband; but she made the debt her own by an original promise supported by a sufficient consideration.</p>

Tried below before the Hon. L. W. Moore. Suit by appellees against Sarah J. Armstrong and her five minor children. The action was trespass to try title, to recover from the defendants a tract of land in Bastrop county. On the 17th of March, 1873, the defendant Sarah J. joined her husband, J. L. Armstrong (since deceased), in a mortgage to the plaintiffs of the tract of land claimed by them in this suit, to secure the payment of a note for $1,500.

Tried below before the Hon. It. It. Gaines. Suit brought April 23, 1874, by J. H. L. Bray, for the use of the-Paris Exchange Bank, against Jasper Crain, in the court of a justice of the peace for Lamar county, under its increased jurisdiction, on a promissory note (not negotiable) for $950. On August 5, 1874, judgment was rendered in that court in favor of plaintiff for the debt, interest and costs, from which he appealed to the district court.

<p>1. Statute construed. — The act of March 10, 1875, creating an exemption from taxation, known as the compromise act, was for the relief of the International Railroad, and both the language and intent of that law were to exempt that road from taxation for the period mentioned in the act, except a4to county taxes in such counties as had donated their bonds to aid in its construction.</p> <p>2. Same.— The International & Great Northern Railroad Company was a necessary party to any settlement to be made of the claims of the International Company against the state, resulting from the fact that the consolidated company then held all the rights, franchises and property of the two corporations, whose existence was merged in its own, and by and through which alone the rights and claims resulting to the International Railroad Company under its original charter could be asserted or settled.</p> <p>8. Same.— The compromise act of March 10, 1875, was intended to restrict the exemption from taxation of property belonging to the consolidated company to such property as it held under charter originally granted to the International Railroad Company, and that the benefits otherwise extended to the consolidated company should be for and on account of acts which the International Company had already performed, under its charter, or such as the consolidated company might perform after the date of the compromise act under that charter or act.</p> <p>4. Same — Railway companies — Consolidation.— The existence of the International and of the Great Northern Railroads as separate railroads did not depend on whether there was one common ownership or not, and the consolidation of the two railroad companies did not render that which was, before consolidation, two-railroads, one, either in fact or law.</p> <p>5. Statute construed.— The compromise act of March 10, 1875, limits the exemption in favor of counties and towns, to such as had donated lands to aid in the-construction of the International Railroad.</p> <p>6. Same.— The grant of land to the consolidated company made by said act and its-exemption from taxation were not on account of any road constructed by the H. & G. N. R’y Co., or by the consolidated company under the charter powers of the H. & G. N. R’y Co., but were on account of railroad construction by the International Company or by the consolidated company acting under the charter powers: of the International Railroad Company.</p> <p>7. Taxation — Anderson county, having donated no bonds to aid in the construction-of the International Railroad, has no right to "collect a tax on that road, which is constructed through it.</p> <p>8. Constitutional law.— The acts of August 5, 1870, and of March 10, 1875,. were not by reason of their exemptions of property from taxation violative of the constitution then in force.</p> <p>9. Compromise act oe 1875. — Without passing on the validity of the act of August 5, 1870, held, that since the political department of the government recognized the existence of rights under that act which it settled by the compromise-act of March 10, 1875, the propriety of that settlement will not be reviewed by the courts when called in question by a county, as in this suit.</p> <p>10. Taxation. — The act of March 10, 1875, known as the compromise act, created a valid and binding contract sustained by a valuable consideration for the exemption of property from taxation, and was irrepealable. Cooley on Taxation, 52-56; Humphrey v. Pegues, 16 Wall., 249; Tomlinson v. Branch, 15 Wall., 460, cited and followed.</p> <p>On Motion for Rehearing.</p> <p>11. Practice in supreme court — Newly discovered evidence.— A rehearing will not be granted in the supreme court on the ground of newly discovered evidence; to grant it for such a cause, would be to exercise an original jurisdiction, not contemplated by the constitution.</p>

<p>Appeal from Lamar. Tried below before the Hon. R. R. Gaines.</p> <p>Edwin Bray and his wife, R. P. Bray, the appellee, owned as community property, and for many years occupied, a rural homestead of two hundred acres in Lamar county. Edwin, the husband, died, leaving appellee residing on that homestead. He left no other property, his estate was insolvent, and appellee - owned no other property in her own right or as community. J. H. L. Bray, their only child and son, was married, had a family, and lived elsewhere. Shortly after Edwin Bray’s death, appellee conveyed one-half of the old homestead to another party, still retaining the other half, upon which was the residence and other homestead buildings and improvements. ' She continued to reside there until September, 1877, when she exchanged it for the house and lot in controversy, situated in the town of Blossom Prairie, in Lamar county, and immediately moved onto the latter place, where she afterwards resided. She invested the difference between the two places (some $500) in merchandise, and lost it. Afterwards appellant brought suit against her in the county court of Lamar county, and attached the lot in controversy, obtained a judgment and order of sale, had it sold by the sheriff, bought it in and took sheriff’s deed, and then brought this action of trespass to try title against her.</p>

Tried below before the Hon. Geo. N. Aid redye. Suit by appellees to recover damages for the burning of their cotton in Dallas in 1879. Appellees alleged that their cotton was stored in their cotton yard, and was set on fire by defendant’s train through defendant’s carelessness.

Collin. Tried below before the Hon. Joseph Bledsoe. Suit in trespass to try title and for partition, brought by appellees for the community interest of the mother of Mary C. Helms, Elizabeth Eoberts and W. B. Wilson.

<p>1. Judgment collaterally attacked.— When judgment is rendered in a cause by a court whose juiisdiction over the subject matter properly attached, and whose jurisdiction over the defendant, who was personally served with process, was not questioned, it cannot be collaterally attacked by showing that it was rendered upon illegal evidence. In such a case, no inquiry can be made into the motive of a plaintiff who credited a note on which the judgment was rendered, so as to reduce it to sum within the jurisdiction of the justice’s court which rendered the judgment.</p> <p>2. Jurisdiction. — Where jurisdiction in a cause in which judgment has been rendered appears from an inspection of the papers to have attached, it can only be attacked for improper means used to obtain jurisdiction by a direct proceeding having that object in view, or by appeal. Fleming v. Seeligson, 57 Tex., 524, followed.</p> <p>3. Levy — Directory statute. — The provisions of the statute requiring a sheriff to demand a levy of the judgment debtor against whom a moneyed judgment has been rendered, are directory, and a failure to comply with its requirements, in the absence of any fraudulent combination between the sheriff and the judgment ereditor, would not necessarily render a sale void.</p>