Volume 6 — Texas Civil Appeals Reports

<p>1. Conditional Sale — Mortgage.—K. owning a homestead worth #1200, and owing B. $600, made a deed absolute to B. for the property, in consideration of $600, and received back from B. an instrument which provided that if K. should repay the $600 with interest thereon by a certain date, that B. would re-convey the property to him. See evidence of circumstances upon which it was held that the instruments constituted a mortgage, and not a conditional sale.</p> <p>2. Homestead — Material Man’s Lien. — Materials furnished for the improvement of a homestead, and used before any contract for them was signed and acknowledged by the wife, as required by Jaw, can not be held to operate as alien upon the homestead.</p>

<p>1. Continuance on the Ground of Surprise. — In a suit for settlement of partnership accounts between O. and F., to which H. was made a party as a banker holding partnership funds, there was an auditor’s report finding $1709.49, in favor of F., several items of which were excepted to by C., but upon trial of the case there was an agreed judgment between C. and F., and no evidence was offered by F. in support of the auditor’s report. A motion for continuance being made by H. after the evidence and argument was concluded, upon the ground of surprise, because he had relied on F. to furnish evidence to sustain the report, and she had collusively settled with 0., was addressed to the discretion of the court and rightly overruled.</p> <p>2. Adjusting Equities Between Banker and Depositor — Fact Case. — II. had on deposit to the credit of C. and F. $1260.28. F. individually owed H. more than that sum. When suit was instituted by F. against C. to settle partnership accounts, F. was solvent. Pending suit F. conveyed all his property and his interest in the suit to his wife in settlement of an indebtedness by him to her. By the compromise judgment in this suit between F. and C., Mrs. F. became entitled to $853 from C. This sum was by the court applied to the payment of the debt due by F. to H.</p> <p>3. Equitable Setoff. — By F.’s conveyance to his wife his estate became insolvent. When insolvency occurred the right of setoff became fixed against his estate in the hands of his administratrix and against his assignee.</p> <p>4. Agreements Between Some of the Parties to Suit. — Auditor’s report was $1709.49 in favor of F. By agreement between F. and 0., O. was to have judgment for the $1260.28 in the hands of H., and was to pay F. $853 out of it. This agreement was an admission that the firm of F. and C. owed F. that, sum, but the agreement as to the form of judgment will not defeat the right of the remaining party to the suit, who is adversely interested, to have this sum applied to the payment of the debt due him by F. individually.</p>

<p>Conspiracy — Combinations Against Trade. — Wholesale butchers, to protect themselves against dishonest and insolvent customers, and to compel such customers to pay their debts to them, and for the purpose of otherwise assisting each other in the conduct of their business, may agree amongst themselves, that each at the request of the other would refuse to deal with any retail butcher, and such retail butcher will have no cause of action against them for resulting injury.</p>

<p>1. Deed — Ancient Instrument. — A deed purporting to be more than thirty years old was offered in evidence as an ancient instrument by plaintiff, with proof that he obtained it from the grantee therein, who had had it in possession nearly twenty-five years, when he returned it for acknowledgment to the grantor, who promised to acknowledge and return it, and that it was returned, though without acknowledgment, by the grantor’s widow, after his death, and that the deed was the same in 1868 as at time of trial in 1892 as to certain differences in ink apparent on its face. Held, that the deed was admissible as an ancient instrument.</p> <p>2. Same — Proof of Signature — Subscribing Witnesses. — Plaintiff was entitled to prove by the grantor’s son the signature of the grantor to the deed, without first accounting for the absence of the subscribing witnesses, as these, after the lapse of thirty years, are presumed to be dead.</p> <p>3. Same — Possession Under, not Necessary. — The want of possession of the land under the deed did not render it inadmissible.</p> <p>4. Same — Description of Land. — Where the deed describes the land as “the western half of 1000 acres deeded to L. N. by J. ST., dated November 28, 1853, the same to be surveyed so as to contain 500 acres in the upper end of said 1000 acres of land,” such description presents, at most, only a latent ambiguity, which may be removed by evidence.</p> <p>5. Same — “ Upper” Part of Survey. — Where a survey lies on a river, the description of a part thereof as the “ upper” part is to be read in the light of such fact, and does not necessarily refer to the north part of the survey.</p>

<p>County School Land — Homestead Right. — W. settled upon 160 acres of county school land, part of a league, but before purchasing sold 64 acres of it, without the joinder of his wife in the conveyance, and afterwards purchased 67 acres remaining of the 160 from B., a vendee of the county, who had bought the entire league from the county at $2.45 an acre. The 54 acres tract, at the time of trial, was worth $10 per acre, estimating the entire league as worth $2.45 per acre. After the death of W. his widow claimed the 54 acres as part of her homestead, but took no steps to acquire title thereto except to offer $2.45 per acre for it. Seld, that she had no legal title thereto, and no such equity as would warrant a judgment in her favor.</p>

<p>This suit was brought by appellant against W. J. S. Chipman, W. L. Anderson, and V. Gayle, on a note executed by said Anderson, and to foreclose a vendor’s lien on land. The petition alleged, that Chipman sold and conveyed the land to W. L. Anderson; that Anderson conveyed by deed to V. Gayle; that both deeds retained the vendor’s lien; that defendants were notified to produce same on trial, or secondary evidence would be used to prove the same; that Chipman had sold and endorsed the note before its maturity to Perryman; and that Gayle had bought the land from Anderson with full notice of the vendor’s lien so retained. On the trial, Anderson and Chipman failed to appear, and judgment was rendered against them by default; and judgment of foreclosure was rendered against Gayle, from which he alone appeals.</p>

<p>1. County School Land —Price to Actual Settler. — A county subdivided, classified, and priced its county school land, and then sold the entire body to a purchaser for the prices so fixed — that is, in one sale, for a gross sum equal to the aggregate of the different prices set upon the several blocks or subdivisions — and without giving to an actual settler on one of the blocks an opportunity to purchase it. Held, that the settler had a right to have title to such block (of 160 acres), upon tendering to such purchaser the price fixed by the county on that block, and was not required to tender such a price as would be an average price of all the land.</p> <p>2. Costs — Printing Briefs — The court properly refused to tax as an item of costs incurred on the previous appeal of this case the amount paid by the appellant for the printing of his brief.</p>

<p>The language,as it appears in the affidavit makes no charge whatever against the defendant in attachment. That 1 ‘ the defendant his disposed of his property in part, with intent to defraud his creditors,” is a meaningless collection of words, and to give it meaning one word must be suppressed and others supplied. Bank v. Flippen, 66 Texas, 610.</p>

<p>This suit was instituted by appellees against appellants, to recover •damages, actual and exemplary, for the consumption and destruction of .grass and water, alleged to have been done by livestock driven into a pasture of plaintiffs by defendants.</p> <p>Defendants’ amended answer consisted of plea of not guilty, and a .special answer justifying their actions by virtue of possession and the exclusive right of possession to said pasture in the defendant, James Baker, on January 1, 1891, and ever since that time; and setting forth .specifically and in detail the time and manner of his acquisition of such right from J. B. Simpson, the owner of the land, and making the written ■contracts between said defendant and said owner exhibits to and parts of .said answer, and averring that if plaintiffs ever had possession or the right of possession to any part of said land, they acquired the same from .and under said defendant, James Baker, or at least with full notice of his prior and superior right, and in subordination thereto.</p> <p>Appellees in their supplemental petition specially denied the facts set up in defendant’s answer as to rental contracts, etc., between Baker and the owner of said lands, and alleged that by a judgment of the District Court of Taylor County, Texas, the title to section 55 had been adjudged "to the- Franco-Texan Land Company as against J. B. Simpson; that the Rranco-Texan Land Company subsequently conveyed the land to the Interstate Railway Construction Company, and that plaintiffs held under ■a rental contract from said construction company to the plaintiff, A. L. Cornelius. Also that on January 1, 1891, plaintiffs held said land under a rental contract with M. C. Lambeth, agent for the owners, and that they acquired the same for value and without notice of the previous rental contract between the owner and defendant James Baker.</p> <p>The trial court found, that “independent of the question of title to the property, the plaintiffs ought to recover from the defendants jointly and severally the sum of $100 actual damages sustained by them, and the further sum of $125 as exemplary damages, as a punishment for said willful and malicious wrong;”</p>

<p>1. Parties — Indemnitors made Defendants. — In trespass to try title ¡against a railway company the defendant answered, asking that the land he condemned under the statute for right of way, etc., and also impleaded certain third parties who had executed to it a bond conditioned to secure to it land for right of way, depot grounds, etc., praying for judgment over against the obligors in the bond for such amount as it should be adjudged to pay for the land sued for. Held, that such obligors were properly made defendants over their objection of misjoinder.</p> <p>2. Pleading —General Demurrer — Misjoinder.—An objection on the ground of misjoinder of parties and causes of action can not be raised by general demurrer.</p> <p>3. Same — Special Exceptions. — See the opinion for pleadings on a right of way bond held good on general demurrer as against objections that should have been taken by special exception.</p> <p>4. Bight of Way Bond to “ Secure” Land. — A stipulation in a bond to “secure” land for a railway company for depot grounds, right of way, etc., ¡requires that a good title be secured and the land paid for by the obligors.</p> <p>5. Same — Building Depot — Condition Precedent. — The building of •a depot is not a condition precedent to the railway company’s right to recover on the bond for the failure of the obligors to secure the land on which the depot is to be built.</p> <p>6. Same — Bailway Company — Depot “ at” a Town. — An agreement by a railway company to establish its depot “ at” a given town is complied with by locating it at a convenient distance from the town, whether within or without its corporate limits.</p>

<p>Setoff — Usurious Interest Paid National Bank. — Usurious interest paid on a note to a national bank can not be pleaded as a setoff or counter-claim against the principal of the note.</p>

<p>1. Common Carrier — Penalty for Nondelivery of Freight — True Weights — In an action against a common carrier for the statutory penalty for withholding goods after tender of the freight charges due thereon, as shown by the bill of lading, it appearing that such bill stipulates that the weights therein named (on which the charges are estimated) are subject to correction, and the defendant denies the correctness of the stated weights, it is incumbent on plaintiff to plead and prove that the weights so named are the true weights.</p> <p>2. Same — Pleading Liability of Connecting Lines. — Where goods have been shipped over connecting lines on a through bill of lading, plaintiff’s petition against the delivering carrier must, by some allegation of partnership or other equivalent averment, show that the defendant is bound by the act of the initial carrier in executing the bill of lading; that defendant received and transported the freight and collected the charges will not suffice for that purpose.</p>

<p>1. Reconvention — Disclaimer—Harmless Error. — Plaintiff’s suit was for block 12, and part of the defendants in their answer asked to have their title to block 6 quieted as against plaintiff and certain other defendants. Plaintiff and said other defendants then filed a disclaimer as to block 6, and judgment. therefor was rendered accordingly. Held, that this proceeding was not reversi-ble error as to the parties disclaiming, since they were not injured thereby.</p> <p>2. Limitation — Ten Years Possession — Agreement to Vacate-. — . An agreement to vacate land for a valuable consideration paid will stop the running of the ten years statute of. limitation, and possession retained thereafter will not be regarded as adverse.</p> <p>3. Same — Homestead—Joinder of Wife in Agreement. — The effect of such agreement to vacate, made by the husband, is not defeated by the failure of the wife to join therein, although they are occupying the land as a home, the period of limitation being not yet complete in their favor.</p>

<p>Appeal from Wichita. Tried below before Hon. J. A. Templeton.</p> <p>In this case the judgment of the District Court was affirmed on oral opinion, October 25, 1893. Appellant thereupon applied to the Supreme Court for a writ of error, and on January 11, 1894, obtained an order of that court allowing him thirty days within which to amend his application by obtaining and attaching thereto conclusions of fact and law by the Court of Civil Appeals. Burnett v. Powell, 24 S. W. Rep., 788. Appellant then filed in the Court of Civil Appeals a motion for written ■conclusions of fact and law; and the opinion here published was rendred on the hearing of that motion, which was denied. Subsequently appellant amended his application for writ of error by attaching thereto copy of this opinion, with prayer for mandamus to compel the filing of written ■conclusions of fact and law, which application was denied and dismissed by the Supreme Court, February 1, 1894. Burnett v. Powell, 86 Texas, 382.</p>

<p>1. Specific Performance — Contract by One Part Owner. — A contract signed by only one of the joint owners of land will not support an action for specific performance of a contract for sale of the entire property by all the owners.</p> <p>2. Statute of Frauds — Purchaser Signing Written Contract.— A contract for the purchase and sale of land signed by the vendor only, can not, under the statute of frauds, be enforced against the vendees, since in such action they are the parties sought “to be charged therewith;” and that the vendees accepted the memorandum of sale signed alone by the vendor will not supply the want of their signature.</p> <p>3. Same — Signing Check for Part Payment. — Nor, in such case, is the giving of a check by the vendees for part of the price a sufficient acceptance in writing under the statute.</p> <p>4. Same — Recovery of Purchase Money Paid. — In a suit by the contract vendors to enforce an agreement for the sale of land which is void under the statute of frauds, a cross-action by defendants to recover the earnest money paid is not an attempt to enforce the void contract, nor to recover damages for its breach.</p> <p>5. Parol Evidence Varying Written Contract — Fraud. —Where the suit is on an alleged written contract, and defendant’s answer charges that such instrument was in fact only a receipt, and that while it contained some of the terms and features of a contract, these were fraudulently inserted therein by plaintiffs, proof in support of the answer can not be excluded under'the rule rejecting paroi evidence which attempts to vary a written contract.</p>

<p>1. Limitation of Five Years —Payment of Taxes. — Under the statute of limitation of five years the payment of taxes must be continuous for the term prescribed; a break in the payment for any one or more years is fatal to the defense.</p> <p>2. Ten Years Limitation — Possession.—Possession under limitation of ten years is not required to be adverse to the world, but only against the true owner of the land. Possession with intent to secure pre-emption and under mistaken belief that the land is vacant, may be adverse against the prior grantee of the land.</p> <p>3. Tax Title. — One in possession without title may strengthen the title by buying in a tax title without abandoning his advantage from prior possession under the statute of limitations. See example.</p> <p>4. Improvements in Good Faith. — A tax deed for land to pay assessment against the unknown owner thereof will support a claim for valuable improvements made by a possessor in good faith.</p>

<p>Error from Travis. Tried below before Hon. W. M. Key.</p>

This is a fact case, and the annexed map will aid in understanding the .facts, which are sufficiently set out in the opinion.

<p>1. Assignment of Error. — An assignment of error that “the court erred in sustaining plaintiff’s special exceptions to defendant’s first amended answer,” held sufficient to point out the error complained of.</p> <p>2. Purchase of Public School Land — Pleading.—A purchaser of public school land from the Land Board in 1884, who had entered into actual possession, and had subsequently leased it, sued his tenant in trespass to try title. The tenant, July 11,1888, applied to the Commissioner of the Land Office as an actual settler to purchase. The tenant’s answer attacking the plaintiff's purchase as fraudulent, without alleging in what the fraud consisted, nor that the rights of the plaintiff secured by his purchase had been forfeited by him, was insufficient, and demurrer to it properly sustained.</p> <p>3. Landlord and Tenant — Trespass to Try Title. — In action of trespass to try title by a landlord against his tenant, the lease contract is competent evidénce, and to prevent recovery by the landlord upon such evidence it devolves-upon the defendant tenant to prove a superior title with which he is connected.</p> <p>4. Competent Evidence. — It was competent for the landlord plaintiff to introduce in evidence the facts relied upon by him to prove a valid purchase; and if insufficient to prove title, still the testimony was competent to show good faith on his part. See opinion.</p> <p>5. Common Source of Title. — Selman v. Hardin, 58 Texas, 86, adhered to. Where evidence showed that both parties claimed under a common source, the facts that plaintiff had filed an abstract of title back to the State and failed to prove it, did not alter the rule as to common source.</p> <p>6. Validating Act — Land Board. — See facts showing a purchase of public school lands which was validated by chapter 93, Acts Twenty-second Legislature, validating the acts of the Land Board.</p>

<p>1. Insurance — Waiver of Conditions — Estoppel.—An insurance company is estopped from claiming a forfeiture of its policy when it accepts and retains the premium with notice of the facts constituting the grounds of forfeiture. The company is charged with notice if its agent, with power to issue the policy and receive the premium, had notice at the time he exercised such power.</p> <p>2. Duty of Agent — Waiver—Insurance Policy. — It is the duty of the agent to inform his principal of acts known to him inconsistent with the terms of the policy; and if he fails to do so, it is the fault of the agent toward his principal, and will not exonerate the latter from liability from nonaction upon the facts affecting the policy known to the agent.</p> <p>3. Waiver — Acts of Agent. — An insurance agent having the power to issue a policy, the power to continue it upon goods removed from one store house to another, and to stipulate the amount of other concurrent insurance, his acts would be the acts of the company, and it would be bound by the issuance by such agent of a policy at the time there was over insurance in excess of that allowed by the face of the policy so issued.</p> <p>4. Same. — The restriction on the face of an insurance policy, that its terms shall not be altered by any agent, does not inhibit such alteration or waiver by the company, through its agent.</p> <p>5. Charge. — When a charge is given by the court applicable to a contested issue in the case, the repetition of the substance of such charge when asked by a party is properly refused. See example.</p> <p>6. Act of Agent. — It being shown that the agent writing the policy had knowledge of over-insurance upon the property Insured, it was not necessary in order to fix liability upon the company to show any affirmative action by such agent upon such facts.</p>

<p>Contributory Negligence. — Plaintiff erected a store house adjacent to the •warehouse of the defendant. Both houses were on the right of way of a railway, leased from the railway company, and were exposed to fire from sparks, etc., from passing trains. The defendant negligently kept his warehouse, in which were stored gasoline and kerosene, in an unsafe condition. It took fire, and from explosion fire was communicated to the store house of the plaintiff. Held, that the plaintiff was not guilty of contributory negligence in building near the warehouse. He had a right to expect that the defendant would exercise :proper care all the time, such as the circumstances required.</p>

<p>1. Parties — Transfer of Interest in Recovery. — Suit filed January 9, 1890. On same day the plaintiff executed to his attorney a transfer of two-thirds of the amount to be recovered. The transfer followed the petition in the transcript. The attorney named in the transfer prosecuted the suit in the District Court to judgment, and represented plaintiff on appeal by the defendant. Plea in abatement was urged for the nonjoinder of the attorney as a party plaintiff. Held, that the plea was properly overruled, as it will be presumed that the transfer was subsequent to the filing of the petition.</p> <p>2. Same. — But a reversal would not result from the fact that the transfer antedated the filing of the petition, as the attorney so identified himself with the suit as to become bound by its result. See facts.</p> <p>3. Harmless Charge. — Where the testimony to a fact is uncontradicted, it is harmless error for the court to assume the fact in the charge. It is not proper for the court to submit as an issue to the jury a matter about which there is no controversy.</p> <p>4. Verdict. — Suit for damages for personal injuries. The petition gave several items as basis for his claim. Held, that the defendant did not have the right to require the jury to itemize the damages in the verdict, the damages being actual. See example.</p>

<p>1. Interest on Value of Livestock Killed by Railway. — The jury was authorized in fixing the damages for negligently killing a bull to find for the owner and against the railway company whose train ran over and killed the bull, its value at time killed and legal interest up to date of the judgment.</p> <p>2. Case Held to have been Overruled. — Railway v. Muldrow, 54 Texas, 233, held to be inconsistent with and overruled by the later case, Railway v. Cook, 64 Texas, 153.</p>

<p>1. Parties — Receivers.—Action for damages for personal injuries caused by negligence by operatives of defendant railway, against the railway and the receivers appointed subsequent to the injury. Held, there was no misjoinder of parties. The judgment was against the railway, and was certified to the court controlling the receivership.</p> <p>2. Briefs — Assignments of Error. — Several assignments of error were not set out in the brief of the appellants, but a proposition was made summarizing them, with a statement that the court erred in overruling defendants' special exceptions to the petition. There were several exceptions involving several questions, and they were not set out in the brief. Held, the assignments should not be considered.</p> <p>3. Pleading — Injuries—Specifications.—The actual facts of injuries and their consequences should be alleged, to admit their proof. They should be stated with as much certainty as their character and nature permit. See insufficient allegations to admit testimony.</p> <p>4. Negligence — Particular Acts. — Particular facts of negligence implied from a negligent act need not be alleged when it is not in the power of the pleader to do so. Such facts are peculiarly within the knowledge of the defendant. But the facts of injury known to the pleader should be set out.</p> <p>5. Charge — Express Agent. — Plaintiff was an express agent on duty in the baggage car. The cars fell through a defective bridge, causing injury. On trial the court charged the jury that “ plaintiff was entitled to the same care as passengers are when travelling on railways, so far as consistent with his position in the ear occupied by him by reason of his employment.” This was proper, and it was not error to refuse an instruction asked by the defendant, “ that if plaintiff’s injuries were caused by his being in the baggage car, * * * he could not recover.” The passenger car did not fall through the bridge.</p> <p>6. Fellow Servant — Defective Bridge. — A railway wreck, was caused by a defective bridge on the track. In such case the doctrine of fellow servant could not apply. It was the duty of the railway to keep its road and bridges in reasonably safe condition.</p> <p>7. Judgment — Receivers. — In judgment for damages against a railway company whose road before trial had been placed in hands of a receiver, and who was a party to the action, it was proper that the judgment against the railway be certified to the receiver for classification.</p> <p>8. Contract Assuming Risks.— An express company contracted with the railway, assuming "‘all risk of loss or damage arising out of or resulting from its operations, under this agreement.” This did not bind the express company to indemnify the railway company against injuries to a messenger resulting from its negligence. The railway company could not by contract make a third party responsible for negligence or wrong to passengers or employes so as to bind the latter, even with their consent.</p>

<p>1. Retiring Partners — Firm Debts — Release.—Members of a firm sold their interest in the goods of the firm, the grantees assuming its debts. This sale and assignment was known to a creditor. Held, that the creditor could not by agreement with the vendees extend the time of payment of his debt without, discharging the retiring partners from responsibility for the debt. They occupied the relation of sureties.</p> <p>2. Consideration — Extension of Time. — It is well settled that in order to release a surety an agreement to extend the time of payment must be based upon a sufficient consideration. And a plea setting up an oral agreement for such extension as a discharge is not good unless a consideration be alleged.</p> <p>3. Practice. — Defense pleaded only one agreement to extend time; proof was made, and charge submitted two agreements, either if found was a defense-Held, error; the charge should have submitted but the one alleged.</p> <p>4. Application of Payments. — The general rule is, that when a debtor owes two debts to the same creditor, one secured and the other unsecured, and makes a payment without directing its application, the creditor may apply it to. the unsecured debt. See illustration.</p>

<p>1. Construction of Will. — It was provided in a will that the “executor shall collect all moneys due me by note or otherwise and divide the same equally between my heirs, as he may deem right and equitable.” There was nothing in the will conflicting with this provision. All the debts of the testator had been paid. The executor in collecting a debt bought the land in controversy, taking the deed as executor. Held, that the land took the place of the debt, and each heir had same interest therein as in the debt.</p> <p>2. Sale to Defraud Creditor. — See facts held to show a fraudulent sale on part of vendor, and that the purchaser knew the facts constituting the fraud at time of his purchase.</p> <p>3. Levy as Against Unrecorded Deed. — An attachment was levied upon the land in controversy. The land had been sold by the defendant in attachment before the levy, but the deed was not of record in the county, nor did the plaintiffs have notice. Held, that sale under the attachment lien passed title as against the purchaser holding under the unrecorded deed.</p> <p>4. Common Source. — Both parties claiming under the estate and will of James E. Bouldin, Sr., it was unnecessary for plaintiff to deraign title from the sovereignty of the soil.</p> <p>5. Jurisdiction — Nonresident—Attachment.—Where suit by attachment is brought against a nonresident defendant, the attachment levied upon land in this State, and the defendant is duly served with citation, under the statutes of the State, the court has jurisdiction, and it does not affect a sale under the judgment of the land seized by the attachment, that final judgment was rendered by default.</p> <p>6. Parties Concluded by Judgment. — An executor was sued by one of several heirs. Held, that any adjustment or settlement litigated in the suit would be without effect as to the rights of the other heirs. See example. The suit would affect only parties.</p> <p>7. Fraudulent Sale. — Sale with intent to defraud one of several parties equitably interested in the property. Such sale may be valid as to the others. They may not complain, or it may not be in fraud of their rights.</p> <p>8. Power of Independent Executor to Sell. — An independent executor was empowered to sell any of the estate, real or personal, for the purpose of paying legacies named. This power is as full as the power to sell for payment of debts. While legacies were unpaid the power to sell was complete.</p>

<p>1. Conditional Certificate in Fisher <& Miller’s Colony. — A certificate-granted by the commissioner oí Fisher & Miller’s Colony, April 16, 1849, which contained the one condition upon its face, that the grantee should settle within the colony in two years from its date, was subject to sale and transfer in 1850. Graham v. Henry, 17 Texas, 167. For nonperformance of the condition all rights under it may have been lost.</p> <p>2. Same. — The Act of February 1,1854, for the relief of the colonists of Fisher & Miller’s Colony, removed the condition and its effects.</p> <p>3. Land Certificates — Duplicate for Relocation. — The certificate was returned to the Land Office in 1860, no field notes having been returned. On December 14, 1876, a duplicate copy was issued for relocation under Act of June 2,1873, certificate to copy declaring former locations forfeited, and as required by said act, recited that it was given for relocation, without prejudice to the rights of any person by virtue of said certificate. Held:</p> <p>1. That purchasers of such certificate, it being personal property, from the fact that they purchased it without notice of a previous assignment, could not become entitled to the land located under it against the owners under the previous assignments.</p> <p>2. They could hold it against the older title on the ground of estoppel, if such existed. Dodge v. Litter, 73 Texas, 322. The plaintiffs and those under whom they hold had nothing to do with obtaining the duplicate from the Land Office;, such grounds did not exist.</p> <p>3. The required clause in the duplicate, that the issuance was without prejudice to the rights of other persons by virtue of the certificate, had the effect to cause a purchaser of it to take it subject to any better title. The doctrine of innocent purchaser did not apply. It was error to submit it.</p> <p>4. Under these circumstances defendants were not precluded from showing good faith that would entitle them to improvements.</p> <p>4. Charge of Court on Burden of Proof — Ancient Instruments. Where a deed is admissible as an ancient instrument, the burden of proving it a forgery is upon the party attacking it, notwithstanding his affidavit. A charge to the jury, that unless they were satisfied that the instrument was signed by the person it purports to he signed by, to find for the defendants, required of plaintiffs a higher standard of proof than a charge that the burden of proof was on them. Emerson v. Mills, 83 Texas, 385.</p> <p>5. Sufficiency of Deed to Support Limitations. — An instrument, conveying one-half of 640 acres certificate, and containing a clause authorizing the grantee to have the land surveyed, is not sufficient to meet the requirements of the five years statute. Nothing in the instrument itself, or in anything referred to therein, would identify any land.</p> <p>6. Duly Recorded — Absence of Notarial Seal to Acknowledgment. — A deed can not be held to be duly recorded when the certificate of acknowledgment is not attested by the seal of the officer.</p>

<p>1. Homestead, Abandonment of. — Before the levy of execution on three lots used so as to make them a homestead, a brick building was erected on the south half of one and temporarily leased, there being no evidence that the south half was fenced from the north half at time of levy. After sale thereunder defendants moved into the brick house from a house on north half of the lot. Held, there was no such abandonment of the south half as a homestead as to subject it to execution.</p> <p>2. Same. — The subdivision of the lots by fence was not an abandonment of any part of them.</p> <p>3. Urban Homestead. — The only limit upon an urban homestead is, that it shall not exceed the constitutional bounds as to value. Pryor v. Stone, 19 Texas, 320.</p>

<p>1. Community Property. — All property acquired during the marital relation is prima facie community property, and it devolves upon the wife to prove that property conveyed to her husband, or to herself, without designating it as her separate property, has been purchased -with her separate means. Edwards v. Brown, 68 Texas, 320.</p> <p>2. Same — Purchaser for Value. — A purchaser of the wife’s separate property for value from the husband, or through execution against him, will be permitted to hold it against the wife, unless there be recitals in the conveyance to her of it to put him upon notice as to her separate interest. Cook v. Bremond, 27 Texas, 459.</p> <p>3. Same. — Lots bought by a wife, deed taken to them in her name, part of the purchase money paid cash out of her separate estate, and notes executed by her for the balance, are not subject to attachment for husband’s debts. Ullman v. Jasper, 70 Texas, 452.</p> <p>4. Same — Trial Amendments — New Causes of Action. — A trial amendment which alleges, that since the filing of the suit the wife’s mother had paid off the notes, and made a gift of them with a release of the vendor’s lien to her, SeM, did not set up a different title to the lots than existed at the time of levy of the attachment. It was the wife’s equitable title in the lots that the suit was instituted to protect, and it was merged into a legal title by the payment of the notes.</p> <p>ON REHEARING.</p> <p>5. Wife’s Separate Property. — When the wife buys a tract of land, it is not necessary that she pay all of the purchase money cash, or must have a reserve fund with which to pay it. The fact that she paid a part cash out of her separate means, and executed her notes, signed by her and her husband, for the balance, is sufficient to make the property her separate property.</p>

<p>1. Charge not Erroneous. — An instruction to the jury, that if the deceased was killed by the negligence of defendant, in the manner and form as alleged, to find the actual damages sustained, is not erroneous.</p> <p>2. Negligence Presumed. — The fact of the uncoupling of a car and a collision having been shown, negligence is presumed, and it devolves upon the railway to show that it was the result of an unavoidable accident, to he relieved from liability. Railway v. Hennessey, 75 Texas, 155.</p> <p>3. Pacts Showing Negligence. — See opinion for facts sufficient to show negligence on the part of appellant.</p> <p>4. Evidence — Limiting Liability as Passenger Carrier. —The refusal of the court to allow appellant to prove that the train on which deceased was killed was not a passenger train, but was a special train of United States soldiers that had been transferred to appellant’s road, at San Antonio, from another railway, and that appellant was transporting said train under a special contract to furnish the government the motive power and crew to operate the train, and was in nowise responsible for the condition of said cars or their appliances, it having been shown that Richard .Parsley was a soldier, and being transported by the defendant under contract with the United States Government, was not error. Railway v. McGown, 65 Texas, 640.</p> <p>5. Passenger. — See facts in opinion held sufficient to show deceased was a passenger, and if not a passenger appellant would be responsible for negligently causing his death. Railway v. Hampton, 64 Texas, 427.</p> <p>6. Bill of Exceptions — Statement of Facts. — When there is a conflict between the bill of exceptions and the statement of facts, the latter must prevail.</p>

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

<p>1. Evidence — Cross-Examination.—A party was not injured by allowing a witness to testify on cross-examination to matters brought out in direct examination, and the question asked elicited no new facts.</p> <p>2. Evidence. — Where it is shown that a brakeman in the cupola of the caboose of a train could not possibly see a break in the train, which occasioned an accident, a question bringing out the imperative necessity of a brakeman being there was not material error, upon the ground that it was argumentative, speculative, and irrelevant.</p> <p>3. Same — Expert Testimony. — Error to permit a witness who saw the coupling detached after the accident, to testify that the break in the coupling could have been seen from the outside of the train, because it was a conclusion of the witness in regard to a matter about which he could not have been better informed than the jury.</p> <p>4. Same. — Where the facts can be placed before the jury, and are such that jurors are generally as competent to form opinions and draw inferences from as witnesses, the opinions even of experts can not be received as evidence of such facts.</p> <p>5. Charge of Court must be Confined to Allegations and Evidence. — Where damages are claimed against a railway company on the grounds of defective machinery furnished by it, without any allegations in the petition of the unskillfulness or unfitness of its servants, it was error in the charge to attempt to define the duties of the company in the employment of its servants.</p> <p>6. Same. — Where the company introduces evidence tending to show that the accident occurred by reason of a violation of its rules by plaintiff and his fellow servants, this should be submitted by instructions. Railway v. Ryan, 69 Texas, 666.</p> <p>7. Charge on Negligence. — Where the court charged that the company would be responsible for the negligence of its servants, there being no allegation of negligence, if proved it would not sustain a verdict.</p> <p>8. Same. — Where there is no allegation that the injury was caused by a failure on part of the company to adopt rulés and regulations for the protection of its employes, and nothing in the law or evidence calling for a charge on that subject, it should not be given.</p> <p>9. Railway Company Liable for its Defective Machinery — Proximate Cause. — It is the duty of a railway company to furnish safe and proper machinery for the use of its employes, and when there is a defect in such machinery which was known, or could have been known by proper care, and such defect is the direct and proximate cause of injury to an employe, the railway would be liable.</p> <p>10. Proximate and Concurring Cause. — While the acts of a plaintiff and his fellow servants in failing to obey the rules of the company may have been a concurring cause in producing the wreck, yet if the defective appliances were the proximate cause the company would be liable in damages.</p> <p>11. Same. — In determining proximate cause the intervention of the independent act of a third person between the wrong complained of and the injury sustained, and which act was the immediate cause of the injury, is made a test of that remoteness of cause of damages which preclude recovery. Brandon v. Manufacturing Co., 51 Texas, 122.</p>

<p>1. Injunction — Multifarious Petition. — In a suit brought against the members of a partnership, an individual in said firm, and a sheriff, for an injunction to restrain the sale of household furniture under two separate writs issued from the same court. Held, that the petition is not multifarious when it shows that the same property was levied on by the same officer, and was in his possession at the same time, by virtue of two writs from the same court, one of which was issued on a judgment in favor of the partnership firm, as such, and the other in favor of an individual, who was also a member of the firm. Both judgments were against plaintiff (appellee), and the grounds for enjoining the-levies were the same, according to the allegations in the petition.</p> <p>2. Res Adjudicaba. — A judgment by a court of competent jurisdiction in a cause between the parties involving the same subject matter, i. e., foreclosing the landlord’s lien on the property involved in the suit, was conclusive of the lien on the property, and the matters alleged could not be shown in avoidance of it.</p>

<p>1. Suit on Supersedeas Appeal Bond — Validity of Notice. — An appeal, with reference to which a bond sued on is given, is not perfected unless notice of appeal is entered of record.</p> <p>2. Same — Breach of Conditions of. — When a person is entitled to redress by reason of the breach of the condition of a bond, he may assert his right in an ordinary suit: but there can be no breach of conditions of an appeal bond when no appeal has ever existed, and when the appellate court referred to in the bond has had no jurisdiction; and nothing short of the disclosure of the notice of appeal upon the record will save the appeal from being dismissed in the appellate court for want of jurisdiction.</p> <p>3. Same — Appeal Must be Perfected. — A bond for appeal given when the appeal is not perfected is without foundation or consideration, and the court will not assume that because the notice of appeal was entered on the judge’s docket, that it would absolutely require its entry in the minutes on proceedings to enter the same nunc pro tune.</p> <p>4. Same — Remedy when Appeal is not Perfected. — It is the right of the defendant, his appeal not being perfected, to resort to a writ of error.</p>

<p>Appeal from the County Court of El Paso. Tried below before Hon-Allen Blacker.</p>

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

<p>1. Constitution oí 1876 —Probate Jurisdiction. — Under article 5, sections 8 and 16, of the Constitution of 1876, the County Court has general probate jurisdiction, and in such matters the District Court has only appellate jurisdiction.</p> <p>2. Same. — Article 5, section 27, Constitution of 1876, provides: “ The Legislature shall at its first session provide for the transfer of all business, civil and criminal, pending in the District Courts, over which jurisdiction is given by the Constitution to the County Courts or other inferior courts, and for the trial and disposition of all such causes by such County or other inferior courts.” Held, to include probate matters, and that this view is supported by legislative construction.</p> <p>3. Same — Case in Judgment. — In 1873 a will was probated by the District Court, which under the Constitution of 1869 had general probate jurisdiction. In 1875 suit was instituted in the same court to set aside the decree and annul the will, and in 1881 judgment was rendered declaring the will of no force. Held, the decree of 1881 rendered by the District Court is void. Nothing but the disqualification of the judge of the County Court could have conferred jurisdiction upon the District Court to adjudicate the matters involved by the decree of 1881. The record fails affirmatively to show the disqualification, if any, of the county judge, and no presumption can be indulged that such disqualification existed.</p> <p>4. Estoppel — Recitals in Deeds. — The recitals in deeds made by the devisees under the will after the suit to annul the same had been instituted only evidence a precaution against becoming involved, and should not estop them from claiming under the will.</p>

<p>1. Tort — Actual and Exemplary Damages. — Mendere owned and with his family occupied a house built upon his lot adjoining a lot owned by Nolan. Nolan constructed a shed or livery stable for stock upon his own lot, and without Mendere’s consent and against his protest cut holes in the walls of Mendere’s house, which was built near the dividing line, and made it a part of the shed. In •addition to causing actual damages, Nolan acted wantonly and without regard to Mendere’s rights, and greatly disturbed him and his family. Held, a verdict and judgment in favor of Mendere for $100 actual and $135 exemplary damages •are sustained by the evidence.</p> <p>2. Charge of Court — Exemplary Damages. — The charge of the court directing the jury that if they found a certain state of facts proved by the evidence, they “should” give exemplary damages, instead of “may” give such damages, is justified by the facts of this case, and there was no error in using the word “should” instead of “may.”</p>

<p>1. Suit Against Railway Company — Personal Injuries — Receiver-Jurisdiction. — The case of Railway v. Johnson, 76 Texas, 421, followed, to the effect that in an action against a railway company for personal injuries received while the railway was in the hands of a receiver, and where the earnings of the road pending such receivership were more than the alleged claim, and had all been applied to betterments of the road, the road in its improved condition, without sale, returned to the company and the receiver discharged, the injury complained of being such as would entitle the plaintiff to recover if the road were still in the hands of such receiver, the plaintiff could recover. And further, that an order of the Federal court discharging the receiver and requiring all claimants to intervene in such case within a certain time, did not affect the liability of the railway company, because that court had no power to make such an order.</p> <p>2. Charge of Court — Contributory Negligence. —See opinion for charge of court on contributory negligence held erroneous and misleading, and for special charges refused which were sufficient to call the attention of the court clearly to that subject.</p> <p>3. Contributory Negligence — Assumed Risk. — If appellee was a passenger, and upon the engine was a more hazardous place to ride than in the coaches provided by the receiver for passengers, and the appellee knew that fact, or by the use of ordinary care and diligence might have known it, and he voluntarily left the coaches and took the more dangerous place in order to subserve his own purposes, and with the view of gaining information to secure his own promotion, he thereby assumed the risk of the increased danger by reason of such position, and if this was the cause of his injury he can not recover. The fact that he was on the engine by invitation of the engineer, and with the knowledge of the conductor, would not change the rule.</p> <p>4. Same — Rules of Company. — While it would make a stronger case of contributory negligence if appellee rode upon the engine in violation of known rules of the company, yet the real question in the case rests upon the stronger ground indicated above.</p> <p>5. Best Evidence. — If the rules were in writing, the written rules were the best evidence, and should have been offered or their absence accounted for before resorting to secondary evidence. As appellant did not bring itself within this rule, the court did not err in excluding the testimony offered.</p> <p>ON MOTION POR REHEARING.</p> <p>6. Statement of Case Corrected. — The controversy raised upon the motion for rehearing, as to whether any one was actually injured m the passenger coaches, is considered immaterial, but the statement of the case is corrected as follows: The record does not show whether any person was or was not injured in the passenger coaches.</p>

<p>1. Attachment — Actual Damages. — If the grounds upon which an attachment is sued out do not in fact exist, actual damages resulting from the wrongful suing out of the writ are recoverable.</p> <p>2. Same — Probable Cause — Exemplary Damages — Charge.—To show that plaintiff in the writ acted in good faith, and that there was probable cause for his action, would be a sufficient answer to a claim for exemplary damages, but would not constitute a good defense to the suit for actual damages for the wrongful suing out of the attachment. It was not improper, therefore, to refuse a charge to the effect that if probable cause existed for the attachment, neither actual nor exemplary damages could be recovered.</p> <p>3. Special Charges — Practice.—Where several special charges are presented together, constituting different paragraphs on the same paper, and one of the paragraphs does not correctly present the law of the case, it is not error for the court to reject the entire paper offered.</p> <p>4. Measure of Damages — Charge—Immaterial Error. — A charge of the court upon the measure of damages, otherwise correct, which directed the jury to find the value of the cattle “just prior to the levy of the writ,” is objectionable ; but as there is nothing in the evidence to indicate that the condition or value of the cattle at any time before and reasonably proximate to the levy was different from their condition and value at the time of the levy, the error was immaterial.</p> <p>5. Damages — Attorney Fees not an Element — Evidence.—Attorney fees to prosecute the claim of defendant in attachment for damages can not be considered as a natural and proximate consequence of the suing out and levy of the attachment, and is not an element of damage which the defendant in attachment is entitled to have considered by the jury, and evidence relating thereto is inadmissible.</p> <p>6. Interrogatory Calculated to Prejudice Jury. —Where each of a number of different witnesses deposed positively “no” in answer to the interrogatory, “Didn’t Yarbrough tell you that Weaver was a damned old rascal, and that he had it in for Weaver; didn’t he tell you that he intended to put James L. Weaver in the penitentiary for stealing?” and the court’s attention was called to the fact that each of the witnesses so answered, and over objection of appellant the court permitted the interrogatory to be reread in the hearing of the jury as many times as there were witnesses to whom it was propounded, the tendency was to prejudice the minds of the jury against appellant, the plaintiff in attachment, and the objection should have been sustained.</p> <p>7. Evidence — Malice.—Evidence that appellant had not spoken to appellee at a time subsequent to the suing out and levy of the attachment, and that he had not spoken to appellee since they had met in the sheriff’s office, where appellant had sent for appellee to come and try to compromise this case, was inadmissible, because the condition of appellant’s mind toward appellee at such time was immaterial, and for the further reason that it brought before the jury the fact that appellant had sought to compromise the case; the tendency of such evidence being to prejudice appellant’s case.</p> <p>8. Cost Bond not Required of Defendant — Reconvention. —The statute regulating cost bonds does not require a defendant to give one in case he should reconvene for damages in a suit against him. In the absence of a statute giving the right to require such a bond, the court would not have authority so to do.</p>

<p>1. Petition to Incorporate a Town or Village for School Purposes only must Designate Boundaries. — Under our statute for the incorporation of towns and villages with adjacent territory for school purposes only, it is essential that the boundaries of the proposed corporation be designated in the petition of the voters upon which the election is ordered. The process by which the law shall be put into effect incorporating such locality for school purposes is in the nature of an act of legislation, and every requisite of the law must be strictly followed. The county judge has not authority to change the boundary in any respect, or to set out in his order any boundary not contained in the petition; and if the petition of the voters gives no boundary, the order based upon it and the election under it are void.</p> <p>2. Pleading — Information in Nature of Quo Warranto. — In a proceeding by information in the nature of quo warranta against the trustees of such school corporation, where the pleadings of the respondents fully showed the failure of the petitioners for incorporation to set out properly the boundary to be incorporated, a demurrer thereto was properly sustained.</p>

<p>Assignment for Benefit of Creditors — Mortgage. — Appellants who-were, among others, creditors of Adams Brothers, instituted suit in the nature of a creditor’s bill, wherein they sought to have a certain instrument executed by Adams Brothers declared to be a general statutory assignment, and to have the assignee removed for failure to execute bond. The trustee and all the preferred creditors were made parties defendant. The instrument was made an exhibit to the petition, and there were allegations that it was executed by Adams Brothers in contemplation of insolvency, and that by it they disposed of all the property subject to execution which they owned, and also that the grantors and trustee therein were insolvent. They prayed for the appointment of an assignee with instructions to administer the property as a general assignment, and that they have judgment for the use of the new assignee against the preferred creditors for the amounts wrongfully paid them by the trustee, and to be allowed their reasonable attorney fees for recovering moneys improperly diverted from the assigned estate. The demurrer to the petition was sustained, and the cause dismissed. Held:</p> <p>1. As the instrument executed by Adams Brothers purports to convey the property therein described to the trustee, without any defeasance, the condition being that he would convert the property into cash and pay certain preferred creditors, and distribute the residue pro rata among their other creditors, it is an assignment and not a mortgage.</p> <p>2. The clause, “this instrument is not intended to operate as an assignment, but a chattel mortgage,” contained in the instrument, is of no force and does not change its legal effect.</p> <p>3. The allegations in the petition, that the grantors were insolvent and had conveyed all their property subject to execution, stated a good cause of action, and if true entitled appellants to the relief asked as to having the instrument treated as an assignment, and having the property distributed under the law regulating assignments. It was error to sustain the demurrer and dismiss the cause.</p>

<p>Damages for Personal Injuries — Pleading — Requisites of Petition.— Gorman sued the railway company for damages for personal injuries alleged to have heen sustained by him through its gross carelessness and negligence while he was on the top of one of its cars which was attached to its engine and being backed over its track. The petition failed to show what relation Gorman bore to the railway company, whether as passenger, employe, or trespasser, or that he had any right to be on top of the car, or that the railway company’s servants knew or ought to have known that he was there, or owed him any duty whatever. The defective allegations of the petition are not aided by the answer. Held, it was error to overrule the general demurrer to the petition.</p>

<p>1. Mortgage to Secure Preferred Creditors. — See instrument held to-be a mortgage to secure debts preferred in the order named in the instrument, and not to contravene our statutory assignment law.</p> <p>2. Common Law Assignment. — If the instrument should be conceded to be a common law assignment, it could not be held to be a general assignment,, because it does not appear that it was intended to convey all the property of the debtors subject to execution: neither was it made for the benefit of all the creditors. Such a partial common law assignment is not embraced within the prohibitions of our assignment law.</p> <p>3. Right of Insolvent Debtors to Prefer Creditors. — Though insolvent, Siebe & March had the legal right to prefer particular creditors by the character of instrument employed.</p> <p>4. Same — Order of Preference. — The fact that the original intention of Siebe & March to place appellant’s debt third in order of payment was changed through the advice of counsel and placed fourth, did not render the conveyance void; and the facts shown did not authorize the order of preference as fixed by the conveyance to be disturbed by the court.</p> <p>5. Attorney Fees as Part of Preferred Debt. — The attorney fees by lawful stipulation were made a part and parcel of the debts secured, and the contingencies upon which they became a part of the demands having occurred, it. was proper to award them.</p>

<p>1. Fraud — Degree and Nature of Proof — Charge.—A charge of the-court upon fraud which leaves the impression that it can be proved only by direct and positive evidence, and which requires that the proof thereof must be by “clear and satisfactory evidence,” is erroneous in each of those particulars.. Fraud is proved like any other fact, by either direct or circumstantial evidence, and by a preponderance of the testimony, even though it may not reach that-high degree of proof which would be clear and satisfactory.</p> <p>2. Mortgage to Secure Preferred Creditors — Fictitious Debt.— A mortgage given to secure separate and distinct debts, some of which are fictitious and fraudulent and some honest and just, to different creditors, each acting for himself and knowing nothing of the claim or intentions of the other, or the relation between the mortgagor and such other creditors, is not void as to the. honest debts, but only as to the fraudulent ones. The case of Simon v. Ash, 1 Texas Civil Appeals, 210 (First Supreme District), on this point is not followed.</p> <p>3. Knowledge of Intent to Hinder and Delay Creditors. — If the beneficiaries under the mortgage held honest debts against the mortgagor, even though they may have known that his purpose was to hinder and delay his creditors, yet if they accepted the security on their part not for the purpose of aiding him to hinder and delay his creditors, but to secure their debts, the mortgage would be good.</p> <p>4. Costs on Appeal — Transcript.—Where an appellant accepts and files a transcript containing matter which uselessly encumbers the record, he will be taxed with the additional costs thus incurred.</p>

<p>1. Insolvent Corporation —Unpaid Stock — Rights of Creditors. The representations of a corporation, as shown by the certificates of stock, that the stock is fully paid up, is a guaranty to creditors that such fact exists, and one upon which they have a right to rely.</p> <p>2. Same — Relation of Director and Creditors. — The relation of a director to the creditors of a corporation partakes of the nature of a trust, and the acceptance of stock by him issued as paid up when in fact it is not paid up, makes him liable to the creditors for the par value of the part actually unpaid.</p> <p>3. Same — Accepting paid up Stock — Liability of Stockholders. Kenny & Pardue, partners, accepted the paid up stock of a corporation to the amount of twice their subscription. The corporation accepted one-half the face value of ail the shares as full payment for the stock. While the corporation was insolvent and Kenny a director therein, Kenny & Pardue transferred their stock to Bakin, who was also a director and insolvent. Held, as it will require all the unpaid balance upon the stock to pay the debts of the corporation incurred before the transfer of the stock, Kenny & Pardue are liable to the creditors for the unpaid part of their stock, and this liability was not avoided by such transfer. As Kenny was a director, Kenny & Pardue were chargeable with notice of the condition of the company, and whether they had actual notice or not can not avail them as against the company’s creditors.</p> <p>4. Constitution — Fictitious Stock. — The Constitution of Texas, article 12, section 6, forbidding the issue of stock except for money paid, labor done, or property actually received, and declaring all fictitious increase of stock or indebtedness void, does not apply as against creditors in such case as this. While the company could not collect the unpaid balance, the creditors may.</p>

<p>1. Evidence — Parol, Admissible to Prove Absolute Deed a Mortgage. — Parol evidence is admissible to prove that a deed absolute upon its face was intended as a security for a debt, and is therefore a mortgage.</p> <p>2. Acknowledgment — Impeaching Certificate. — A certificate of acknowledgment is conclusive of the facts therein stated, unless fraud or imposition is alleged, and in which the grantee participated or had knowledge. In this case the testimony of the interpreter for the notary at the time Mrs. White, a Portuguese, one of the appellees, signed and acknowledged the deed, to the effect that he explained the instrument of conveyance to her as a mortgage on the land to secure money to pay lawyer fees to appellants, though offered for the purpose only of showing that the deed absolute on its face was in fact executed as a mortgage, and not for the purpose of attacking the notarial certificate, is held inadmissible in the absence of satisfactory proof that the grantees knew that the instrument was explained to her as a mortgage.</p> <p>3. Improper Charge — Submitting Issues not Made by Pleadings and Evidence. — As the action is simply trespass to try title, with no alternative prayer for foreclosure, and the only issue made by the pleadings and evidence was whether the deed was intended as a sale of the land to appellants, or as a mortgage, the charge of the court upon the matters of homestead and separate property of the wife was improper, and calculated to confuse and mislead the jury.</p> <p>4. Wife’s Separate Property. — If the property was the separate property of the wife she could encumber it by mortgage for the debts of the community, or the separate debts of the husband; and she could also convey the title, absolutely or conditionally, upon such consideration, by joining her husband in a deed.</p>

<p>1. Attachment — Damages —Parties.—In a suit to recover the value of goods wrongfully taken under attachment, it is not a misjoinder to make the-plaintiff in the attachment, the sheriff, and his sureties defendants.</p> <p>2. Transfer of Cause of Action After Suit — Parties. — Where one buys a cause of action after suit is brought, he buys subject to the final adjudication between the original litigants, and is not a necessary party to-the suit.</p> <p>3. Partnership — Parties.—The fact that McGlasson sold all his interest in the partnership property to his partner, Beeves, after the institution of the suit, would not render a change of parties necessary.</p> <p>4. Measure of Damages — Interest—Charge of Court. — In a charge-upon the measure of damages the use of the term “ legal interest*’ instead of the rate of interest allowable, is not error when the verdict is responsive to the charge, and sufficiently certain to form the basis of a decree.</p> <p>5. Fraudulent Sale. — See opinion for charge of court upon fraudulent, sales held to be correct, and the finding of the jury thereon supported by the evidence.</p> <p>6. Confusion of Goods. — Beeves & McGlasson having bought a stock of' goods from Hancock, the defendant in the writ of attachment, and mixed them with their own stock, even if they had done so fraudulently, would not thereby forfeit their entire stock to the creditors of Hancock; but if they refused to-point out the Hancock goods, the creditors could levy upon a sufficient amount of goods so mixed to equal the amount of Hancock’s goods put in by them.' In. this case, however, it is held that the sale from Hancock to Beeves & McGlasson was valid, and conferred upon them the title, and the levy upon any part of the-goods was wrongful; and the verdict was not excessive.</p> <p>7. Verdict — Sufficiently Certain. — Where the verdict specifies a certain-amount with interest thereon from one given date to another, it is sufficiently certain to form the basis for a decree. The rate of interest is fixed by law, and, the amount is simply a question of calculation.</p>

<p>1. Statute Construed —Navigable Stream.— Words in the statute, “ stream made navigable by the laws of the State or of the United States,” do not refer to legislative enactments with reference to particular waters, but to the body of the law as declared both by statute and the decisions of the courts.</p> <p>2. Navigable Waters —Question of Fact for Jury.— Evidence of navigability should not be confined to present or past use of water as a highway for commerce, but capacity for such use must be considered, and also future development of country along the shores, and whether or not the water is navigable is a question of fact for the jury. See this case for water from two to two and a half feet deep held to be navigable water.</p> <p>3. Oysters — Private Property. — One claiming oysters as his property because planted by him, must have complied with all the regulations of the statute of this State regulating the acquisition of private right to oysters in navigable waters.</p> <p>4. Prescriptive Right to Oysters. — Exclusive right to take oysters from a bay can not be acquired by prescription, although the State may grant such right.</p>

<p>1. Forfeiture by Nonpayment of Assessments. — The constitution of the order providing that a member failing to pay any assessment required by law shall stand suspended, and shall not thereafter be entitled to the benefits of the widow and orphan benefit fund, until reinstated, is mandatory and self-exeouting, and if he has failed to pay such assessments from April 5 to July 7, and dies July 12, his widow can not recover upon his benefit certificate, although he had made application for reinstatement in his subordinate lodge and tendered all over-due assessments, dues, and fines. Knights of Honor v. Wiclcser, 72 Texas, 257, distinguished.</p> <p>2. Irregularities in Action of Subordinate Lodge. — A subordinate lodge must vote on the question of suspension, and there must be a definite time fixed for the duration of the suspension, but failure in either particular is immaterial, and will not relieve a member from the consequences of his failure to pay his assessments, which in itself worked his suspension.</p> <p>3. Estoppel. — The failure of the subordinate lodge to hold its monthly meetings in accordance with the laws and regulations of the order, whereby Keener was prevented from making an earlier application for reinstatement, does not ■estop the Supreme Lodge from denying the claim of his widow for the sum secured to her by his benefit certificate. A subordinate lodge can not by its acts ■or omissions render nugatory the express provisions of the supreme law of the ■order.</p> <p>4. Inadmissible Evidence. — All evidence of what was done by the subordinate lodge of which Keener was a member, after his death, in reference to his suspension or application for reinstatement, was irrelevant and immaterial and should have been excluded.</p> <p>5. Hearsay Evidence. — The point of inquiry being whether Keener had ■ever made any effort to get his lodge to meet at an earlier date than July 7, in order to act upon his application for reinstatement, evidence of what was said ■about it in the lodge after his death was hearsay and inadmissible.</p> <p>6. Proper Charge. — The following charge should have been given: “The tacts in this case show that L. J. Keener failed to pay the assessments required of him on April 1,1888, and that he failed to take steps to reinstate himself till July 7, 1888, and that he died before he became reinstated in Kilgore Lodge-Knights of Honor, and you will return a verdict for defendant.”</p>

<p>1. Taxation of Stock of National Banks. — The value of bonds and legal tender notes held by a national bank on the first day of January of the year for which assessment of taxes is made, can not be deducted from the amount of capital stock of the bank, in arriving at the value of the bank shares for the purpose of assessment of them for taxes in the hands of the shareholders, but the shares may be assessed at par value. Citing Van Allen v. The Assessors, 3 Wallace, 573.</p> <p>2. Taxation Equal and Uniform. — Section 1, article 8, of the Constitution, declaring that all taxation shall be equal and uniform, is not violated when no person or class of persons in the taxing district is taxed at a different rate than are other persons in the same district upon the same value or the same thing. A tax levied upon shares of bank stock is a tax on one thing, and the tax levied upon the money of a private banker is a tax upon another and a different thing, and the above article of the Constitution is not infringed by allowing a private banker in rendering his money for assessment to except legal tender notes and United States bonds, and denying the owners of national bank stock the right to deduct from its actual value a pro rata of the amount of money invested by the bank in such notes or bonds.</p> <p>3. National Banks Discussed. — National banks are fiscal agents of the-Federal government, and are not subject to taxation by the State governments. Its money, unlike that of a private person, is exempt from taxation, but to permit the stockholders to use its money to reduce the assessments upon their shares, would be an abuse of the franchise granted to the bank.</p> <p>4. Bank as Owner of Realty. — The bank owned no realty, and the-question whether the assessment would have been correct in that event is not before us.</p>

<p>1. Transcript in Case Appealed from Justice Court. — When a case tried in a Justice Court is appealed from thence to the County Court, and from that court to the Court of Civil Appeals, by a bond conditioned as required by law, and the conclusions of fact by the County Court shows that there was a transcript from the Justice Court filed in that court, it is unnecessary that said transcript from the Justice Court should be embodied in the transcript to this court.</p> <p>2. Jurisdiction of Amount — Counter-Claim.—When the amount sued for in the Justice Court is less than $100, and a counter-claim for more than $100 is filed and relied on by defendant, that will confer jurisdiction on this court; but when it appears that the counter-claim, if ever relied on, had been abandoned, and no evidence was offered in support of it, it is not a matter in controversy, and will not support the appeal.</p>

<p>1. Garnishment of Proceeds of Exempt Property. — The proceeds of an insurance policy upon a gin house, gin stand, grist mill, etc,, situated upon a homestead and destroyed by fire, are not subject to garnishment for a reasonable time to enable the owner to invest in another home.</p> <p>2. Homestead, of what it Consists. — The homestead is an entirety, •consisting of the lands, houses, and fixtures upon it. Those things which are so attached as to become a part of the realty, or acquire the character of permanent fixtures, are as much a part of the homestead as are the houses or the soil.</p> <p>3. Case Distinguished. — In the case of Cullers & Henry v. James, 66 Texas, 498, the machinery was held not to be attached to the land because the land did not belong to the owner of the machinery.</p>

<p>1. Jurisdiction of County Court. — A judgment of the County Court for $1007.10 being shown, in the absence of other evidence there is no merit in the contention that that court had no jurisdiction to render it.</p> <p>2. Deed, Proof of Execution of . — The grantee in a deed which has never been acknowledged and has no subscribing witnesses, may prove its execution.</p> <p>3. Void Execution and Sale. — The clerk of the District Court had no authority to issue an execution upon the County Court judgment, when a copy of the judgment had not been certified to the district clerk and recorded in his minutes, and a sale under it is void.</p> <p>4. Refunding Purchase Money to Execution Purchaser. — The judgment under which the land was sold being valid, the execution purchaser is entitled to have the purchase money paid by him refunded by the heirs of the defendant in execution, who sue, before they can recover the land from the defendants.</p>

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

<p>1. Waiver of Proof of Loss. — Though the policy provides that the insurance company may have sixty days after proof of loss within which to pay the loss, if it denies the justness of the claim and refuses to pay it, that is a waiver of proof of loss, and suit may be brought at once. The object and purpose of this provision in.policies of insurance is to lay the basis for an amicable adjustment of the loss; but when the company declares it will not pay, though the proof be furnished, the insurer is relieved of the necessity of furnishing it.</p> <p>2. Subagent, Company’s Liability for Acts of. — An agent of the company authorized by it to contract for risks and countersign and deliver policies, etc., may exercise his power through a subordinate, and thereby such subordinate becomes the agent of his employer’s principal. The services rendered generally by insurance agents is not of that character as to come under the maxim, 1,1 delegatus non potest delegare.”</p> <p>3. Forfeiture of Policy — Estoppel. —Though the company claimed a fraudulent concealment of the fact of the existence of a vendor’s lien on the property, if the insured fully advised the agent of the company of all the facts-connected with his title to the property, in good faith, the company is estopped from claiming a forfeiture of the policy on account of the vendor's lien upon it. The tendency of the courts is to hold that insurance companies may waive any of the conditions of the policy.</p> <p>4. Erroneous Charge. — “ If the jury shall find from the evidence that the-policy of insurance in this case was not issued on the written application for insurance mentioned in the pleadings, and was issued without such application, but upon a verbal application, without any misrepresentation or concealment of the facts, you will find for plaintiff,” was an erroneous charge, because not authorized by the pleading or the evidence, and because it ignored one ground of defense.</p>

<p>1. Contract Illegal as Against Public Policy — Influencing Voters. — A contract providing that individual voters shall he offered a pecuniary inducement, such as a gift of town lots, to influence their votes in an election for the location of a county seat, is illegal and void both at common law and under our statute.</p> <p>2. Same — Donations to Public. — But a donation of aid in the way of land or money to a State, county, or public body for the purpose of inducing the location of public buildings or of a county seat at a particular place, is not considered as a bribe to voters, or void as against public policy.</p> <p>3. Proof of Title in Suit on Contract — Common Source. — Where the owners of land make a contract in relation thereto, and are sued for the enforcement of the contract, it is not necessary for plaintiff to introduce other evidence of title than the contract itself, as the defendant owners are the common source.</p>

Late in the evening of September 28, 1890, appellee’s daughter, Annie Procter, who was then 15 years of age, and residing with her parents near the town of Sunset, eloped from their home with Lum Rymer, the couple going towards Decatur, the county seat of Wise County, for the purpose of procuring license there and being married.

<p>1. Estoppel — Accepting Former Judgment. — Suit by publication was begun against P. H. after her death, and under judgment against her therein her land was sold to the judgment creditor. A. H., her only heir, brought suit or bill of review to set aside that judgment and sale, but the court therein decreed her the proceeds of said sale, which she accepted without appealing the case. Afterwards she brought this action of trespass to try title for the land against one to whom the judgment creditor had conveyed it prior to her former suit. Held, that plaintiff was estopped from recovering the land.</p> <p>2. Judgment Affecting Title Enures to the Purchaser of the Land. — A judgment in favor of defendant in an action involving the title to land enures to the benefit of one to whom the defendant conveyed the land by warranty deed before the institution of the suit, but who was not a party thereto.</p>

<p>1. Community Property — Deed to Wife — Presumption. — Where during coverture a deed is executed to either of the spouses, it is presumed to vest the title in the community, and this presumption obtains unless the deed expressly or by necessary implication limits the title conveyed to the separate use of the one named as grantee therein.</p> <p>2. Same — Recitals not Importing Gift to Wife. — Recitals in a deed showing only that B. paid for the land, and that at his request the grantors executed the conveyance to C. S. (wife of E. S.), do not import a gift to the wife so as to change the legal presumption that the title is vested in the community.</p>

<p>1. Locative Contract — Execution.—A locative contract signed by one party only is sufficiently executed as to both parties where it appears to have been accepted and acted on by the other party.</p> <p>2. Ancient Instrument — Filing Before Trial. — An instrument more than thirty years old need not be filed among the papers of the cause before trial, as required by the statute (article 2257) regulating the introduction in evidence-of registered instruments.</p> <p>3. Trespass to Try Title — Undivided Interest. — Proof of an undivided interest in the land will authorize a recovery of the entire tract sued for as against a stranger to the title.</p> <p>4. Certificate of Acknowledgment — Grantor Known. — The certificate of an acknowledgment taken in 1862 need not show that the grantor was known to the officer.</p> <p>5. Depositions — Presence of Party at Taking. — The mere fact that the plaintiff was present at the taking of certain depositions is not ground for suppressing them.</p> <p>6. Same — Motion to Suppress. —A motion to suppress depositions because the plaintiff was present when they were taken must be made before announcement of ready for trial.</p> <p>7. Hearsay Evidence — Location of Certificate. — Statements made to the witness by a surveyor, since deceased, as to where he had located a certificate, are hearsay; as also are statements so made by the widow of the original grantee as to her information of where it was located.</p> <p>8. Practice — Cumulative Evidence. — Where the case is tried by the court without a jury, the admission of incompetent evidence which is merely cumulative is not .ground for reversal.</p> <p>9. Land Certificate — Variance in Evidence — Identity.—A copy of the land certificate was competent evidence, though its date varied by several days from that as recited in the patent, and it appeared to have been issued to the administrator of the original grantor instead of to his heirs. It was to be determined under all the evidence whether this was the certificate by virtue of which the land was located.</p> <p>10. Practice — Issues as to Different Defendants. — Where the plaintiff claims against some defendants on the whole title, but against others only on a question of boundary, and the trial is before the court without a jury, there-is not necessarily any error in announcing the decision as to the former controversy before proceeding to try the latter.</p> <p>11. Costs where Defendants Claim Adversely to Each Other.— Where plaintiff recovers against claimants of the whole title, and also against contestants of his boundary, he may properly have judgment for costs against all the defendants; and if it does not appear that any items were peculiar to his boundary contest which would not have been incurred in a suit between the two classes of defendants, the boundary contestants are entitled to judgment for costs against the defeated claimants of the title.</p> <p>12. Same — Practice on Appeal. — An objection that the judgment is against only some of the defendants for costs, and not also against a codefendant, should be primarily made in the trial court, and presented on appeal by proper assignments.</p> <p>13. Survey — Construction of Calls. — Where all the calls of the locating surveyor can not be strictly observed, as few should be disregarded as can be consistently done; and in this case lines should be run in both directions from the established beginning corner, following the calls as long as it can be done, and then the gap closed in the manner that seems most consistent with all the calls.</p>

<p>Arrest of Judgment — Grounds for Special Demurrer not Available. — Where in trespass to try title the issue is really one of boundary, after a verdict for plaintiff a motion in arrest of judgment, upon objections to the sufficiency of the description of the land in plaintiff's petition, such as should have been taken by general demurrer, is not tenable.</p>

<p>1. Venue — Waiver of Written Contract. — Parties residing in one county gave a bond to secure a contract for the construction of a building in another county, stipulating therein that a suit for breach of the bond might be instituted in such other county. Held, in such suit on the bond by the obligee, that defendants’ plea of privilege to be sued in the county of their residence was not tenable.</p> <p>2. Same — Statute not Applicable. — Such waiver and agreement does not come within the inhibition contained in article 1347a, Sayles’ Civil Statutes, invalidating agreements for acceptance of service, waiver of process, entry of appearance, or confession of judgment.</p>

<p>1. Evidence Admitted for Limited Purpose. — Testimony admissible for any purpose or against any party to the suit should not be excluded, but admitted with the proper limitation; but the application of this rule should not be used as a pretext for getting before the jury evidence of a damaging character to a party objecting and having a right to object to its admission, while such evidence can serve no useful purpose with reference to any issue with another party against whom it is ostensibly offered, and who is precluded from making the objection thereto. See the opinion for illustration where the evidence was by deposition.</p> <p>2. Same — Improper Argument on Evidence Limited in its Application. — Where such evidence by deposition has been admitted ostensibly for one purpose only, and by the charge of the court limited to such purpose, it is error to permit counsel for the party offering it, in his argument to the jury, over objection of the other party (plaintiff), to read parts of it and comment at length thereon as against evidence offered by plaintiff to support another and different issue.</p> <p>3. Res Adjudicata — Trial on the Merits. — Where the former trial was on the merits and the judgment was for plaintiffs, it is no sufficient answer to a plea of res adjudicata in a subsequent suit, that the defendants in the former suit were forced to trial therein without their evidence, and did not have a fair and full trial of the issue.</p>

<p>1. Evidence — Abstract of Title. — Where a deed is not relied on as a muniment in defendant's chain of title, it is not necessary in order for it to be admissible in evidence in his behalf that it should be included in the abstract of title filed by him in the case.</p> <p>2. Same — Copies of Petitions, etc. — Where the abstract of title included a decree of partition, and orders of sale and confirmation of sale by an adminisistrator, it is not necessary that it should mention the petition for partition, or the order appointing the administrator.</p> <p>3. Evidence — Administrator’s Sale. — In order to rely upon an administrator’s sale, it is not necessary, in a collateral proceeding, to prove the appointment of the administrator. Following Eindge v. Oliphant, 62 Texas, 682.</p> <p>4. Same —Void Decree of Partition. — A decree of partition void for want of jurisdiction in the court rendering it may nevertheless be looked to, in connection with the subsequent acts and conduct of the parties interested, as indicating that which would be equivalent to a paroi partition.</p> <p>5. Same— Parol Evidence of Written Instruments. — Where mortgages, leases, decrees of partition and the like are proved by the proper written evidence, it is not error to permit witnesses to testify of them by paroi in connection with such written evidence.</p> <p>6. Notice — Recitals in Chain of Title. — The recital of a mortgage or a partition of the land in a deed-thereof under which a party claims, affects such party with notice of those facts.</p>

<p>1. Mortgage, Instrument held such, and not an Assignment.— An instrument conveying to a trustee a stock of goods “for the better securing the payment of the following notes, accounts, claims, and demands in the manner as hereinafter set out, and owing by me,” the grantor, contains an implied condition of defeasance, and is therefore a mortgage and not an assignment. Following Laird v. Weiss, 85 Texas, 93.</p> <p>2. Conveyance by Partner in Fraud of Firm Creditors. — A conveyance of the entire firm assets by one of the partners for the benefit of the other, equally liable, can not avail against firm creditors.</p> <p>3. Same — Pretended Dissolution — Charge of Court. — See the opinion for facts held to warrant a charge on the theory that a pretended dissolution of the firm, and a subsequent conveyance of its assets for the benefit of the retiring partner, were in fraud of its creditors.</p> <p>4. Fraudulent Conveyance — Fictitious Claims. — In a conveyance ostensibly to secure firm creditors, the first preferred creditor, who was a lately retired partner of the firm, was in fact the sole beneficiary. Held, that if any of the claims listed therein as due to such beneficiary were fictitious and simulated, and intended to cheat and delay creditors, the conveyance was thereby vitiated as to the other bona fide creditors attacking it, and the court properly so charged.</p>

<p>Transfer in Fraud of Creditors — Void Sale. — An insolvent merchant who was under indictment sold to one of his creditors his entire stock of goods, worth about $800, for $200 in cash and the satisfaction of his debt to such creditor, amounting to about $600. The cash payment was demanded to enable the debtor to flee the country, which purpose and the existence of other debts was known to the vendee. Held, that the sale was void as to other creditors of the vendor.</p>

<p>Attorney — Disbarment on Conviction of Felony — Pardon.—After the unconditional pardon of an attorney for a conviction of felony, such conviction can not serve as a basis for a proceeding under article 226 of the Revised Statutes to disbar him from the practice of law.</p>

<p>1. Death of Defendant After Citation. — When defendants are duly-served with citation, the death of one or more of them before judgment does not render such judgment void; it is only voidable.</p> <p>2. Bill of Review — Tacking Disabilities. — The rule forbidding the tacking of disabilities applies to an attack upon a voidable judgment by bill of review, equally as under the statutes of limitations.</p> <p>3. Bill of Review Barred in Two Years. — Following Me Anear v. Epperson, 54 Texas, 220, a minor inheriting the right to attack a voidable judgment, and marrying while a minor, was barred from prosecuting a bill of review in two years from her marriage.</p> <p>4. Direct and Indirect Attack by Appeal. —Direct proceeding by writ of error to avoid a judgment will not suspend limitation against proceedings by bill of review setting up matters not appearing in the record as ground for setting the judgment aside.</p> <p>5. Same. — An action in trespass to try title will not of itself — that is, in absence of allegations specifically attacking the voidable judgment — stop limitation to an action to set aside a judgment by bill of review.</p> <p>6. Demurrer to Amendment Referring to Former Pleading.— Generally a demurrer admits the truth of all the pleading excepted to. But when it is alleged that a former pleading in the same cause contained certain averments and had a certain legal effect, we think in ruling upon an exception to the last pleading, if its sufficiency depends upon the purport and effect of the former, the court may construe the former pleading. In other words, the demurrer does not admit the correctness of the construction which the pleading excepted to places upon the former pleading.</p> <p>7. Res Adjudioata. — When a judgment is reversed on appeal, the judgment so set aside can be given no effect as fixing the rights of the parties, although in the opinion the correctness of much of the judgment of the court below may have been approved. The action of the appellate court is its judgment, and not the reasoning, determining rights of the parties.</p>

<p>1. Outstanding Legal Title — Common Source — When plaintiff has shown that the defendants claim under a common source with him, the defendants under plea of not guilty may prove an outstanding legal title without showing their connection with it, and thus defeat a recovery by the plaintiff.</p> <p>2. Same — Estoppel.—We think the whole question of common source is one of evidence, and not of estoppel. The plaintiff in order to prevail must recover upon the strength of his title, and this may be shown by evidence of common source, and the superiority of his title from that source; but it does not follow when this is done that the defendant is not permitted to overcome and destroy the effect of the prima facie title established by plaintiff, by evidence tending to show that plaintiff has not the superior title.</p> <p>3. Pleading Title by Defendant in Trespass to Try Title. — A defendant having pleaded specially his title, can not show title in himself from any other source than that pleaded. Pleading his own title will not prevent the defendant, under plea of not guilty, from proving any independent fact which will show the plaintiff’s title to be worthless; e. g., by proving an outstanding legal title.</p>

<p>1. Jurisdiction of District Court. — The Constitutions of 1866 and of 1869, after conferring jurisdiction on the District Courts to try certain enumerated cases, adds, “And of all suits, complaints, and pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at or amount to one hundred dollars, exclusive of interest.” Under this clause there can be no jurisdiction until there is a suit, complaint, or plea, and a matter in controversy. The phrase, matter in controversy, implies that the pleading which invokes jurisdiction must disclose an adversary and assert a right against him.</p> <p>2. Same — Judicial Powers. —The essential functions of District Courts in this State have always been judicial, not administrative; they adjudicate differences between litigants; they do not register and administer agreements between individuals.</p> <p>3. Same. — A petition by a number of part owners of land addressed to the District Court, and disclosing an agreement as to the rights of the parties in the land, and asking an order of sale thereof, does not confer jurisdiction; it is not a suit; there is no controversy. Nor does the fact that one of the parties is a minor alter the rule.</p> <p>4. Estoppel Against Married Woman. — A married woman joined her husband with others in an application to the District Court asking an order of sale for land in which she had an interest. Sale was ordered and made. The purchaser accounted to her husband for her proportion of the proceeds of the sale. She neither concealed nor misrepresented anything; no part of the proceeds was used to discharge a lien upon or to otherwise benefit her separate property. The sale was void. Held, she was not estopped to claim the land so sold.</p> <p>5. Notice. — A purchaser is charged with notice of the nullity of a sale forming a link in the line of his title disclosing the facts from which the invalidity results. See example.</p> <p>6. Same. — Jurisdiction of a subject matter can not be conferred by consent; and if the proceedings forming a link in the title are void, all persons holding under them are charged with a knowledge of their invalidity.</p>

<p>1. Vendor’s Lien, Assignment of. — A remote assignee of a vendor’s lien note having presented his claim as a moneyed demand against the estate of the maker of the note, afterwards had a transfer for the land from the original vendors made to him. Such assignee was not in an attitude to sue for the land. The original vendors, upon assigning the note for purchase money, had no title thereafter in the land, and their deed for the land subsequently made conveyed no title.</p> <p>2. Probate Court — Administration.—The Probate Court in a pending administration has exclusive original jurisdiction over claims and liens against the estate. The remedy upon rejection of the lien by the administrator is in the Probate Court.</p> <p>3. Same. — The District Courts have no jurisdiction over the management of an estate in administration except on appeal.</p>

<p>1. Waiver — Demurrers not Acted Upon. — The record not showing that demurrers insisted upon on appeal were called to the attention of the trial court, it will he held that-appellant waived the demurrers.</p> <p>2. Widow may Sue to Recover Community Property. — Where it does not appear that there is any necessity for an administration, and there is none, the widow alone may maintain an action to recover the community property or its value, without joining children of the deceased husband.</p> <p>3. Arbitration — Agreement by Minors. — An agreement to arbitrate by minors, followed by an arbitration, is not void; it at most is only voidable.</p> <p>4. Attack Upon Arbitration. — Action by minors Upon an arbitration and award in their favor against the de'endant. Held, that while the minor elects to treat the contract as valid, the adult defendant, the other contracting party, will be held bound by it, and he can not urge the minority of the other in order to defeat it.</p> <p>5. Case Adhered to — Suit by Next Friend. — Hays v. Hays, 66 Texas, 607, adhered to. Under Revised Statutes a minor may sue by next friend.</p> <p>6. Surprise — Prompt Action. — A party surprised by the unexpected testimony of a witness on the trial must call attention to the matter at once, by motion to postpone or continue the ease.</p> <p>7. Suit on an Award — Defense.—When suit is brought upon an award, and the defendant seeks to attack it on ground of fraud or mistake, or other reasons, he must plead such defenses; otherwise, the facts or items acted upon in the arbitration can not be considered.</p>

<p>1. Trial of Right of Property— Levy. — Although levy upon personal property be made by giving notice without taking actual possession, a claimant is entitled to resort to the statutory mode of trial of the rights of property.</p> <p>2. Declarations. — It not appearing that claimants were asserting title under the defendant in execution, nor that any of his funds or property was used in acquiring the property, nor that he was at the time indebted to the plaintiffs in execution, the declarations of the defendant in execution as to his indebtedness did not affect claimants, and the testimony was rightly rejected.</p> <p>3. Competent Evidence. — It was claimed and in issue that the defendant in execution was a partner of claimants, and there was testimony to prove such partnership. It was competent for the claimants to prove dealings with the plaintiffs and claimants, and that goods so bought were charged to claimants alone.</p> <p>4. Right to Open and Conclude Argument. — On trial of the right, of property which had not been taken into actual possession, it was not error to-permit claimants to open and conclude the argument, although the plaintiffs had voluntarily assumed the burden of proof in the introduction of testimony.</p>

Tried below before Hon. W. H. Jenkins, County Judge. This was an action for damages, actual and exemplary, brought by J. E. White (and revived after his death in the name of his widow and child), against Koyer, plaintiff in attachment, and Yates, a constable, and his sureties on his official bond, for the unlawful seizure under a writ of attachment of certain implements of husbandry exempted from execution. The plaintiff owned a farm, and the implements were in use upon it.

<p>1. Charge— Contributory Negligence — Conflicting Testimony.— Judgment for damages for injury to a passenger. The testimony was conflicting as to the position occupied by plaintiff when injured. He testified that he was sitting with his elbow resting upon a window. A witness for the- railway testified that plaintiff had his head and shoulders thrust out of the window at the time. The injury occurred in passing a coal car standing near the track. Defense was contributory negligence. Held:</p> <p>1. The court properly refused to instruct the jury, “that if plaintiff had his arm outside the window, and would not have been injured but for that fact, they should return a verdict for defendant.’’</p> <p>2. It was not error to instruct the jury on contributory negligence preventing a recovery, that “it is not the least degree of fault or negligence on his part, but it must be of such a degree as to amount to the want of ordinary or reasonable care on his part under the circumstances at the time of the injury.” Under the conflict of testimony the charge was indicated.</p> <p>3. Under the facts, it was not error to instruct the jury, that “ the defendant is responsible to plaintiff for any injury he may have received, if the negligence of its agents and servants was the primary and proximate cause of his injury, although there may have been also negligence on the part of plaintiff, unless it appears that by the use of ordinary diligence and care under the circumstances, as a reasonable and prudent man, plaintiff could have avoided the consequences of the negligence of the defendant or its agents.”</p> <p>2. Contributory Negligence. — To constitute contributory negligence-there must be the want of ordinary care on the part of the plaintiff, and it must be a proximate cause of the injury; that is, a concurring cause; or in other words, plaintiff must be guilty of want of ordinary care, and this want of ordinary care must proximately contribute to the injury. See instruction approved.</p>

<p>Insurance Contract — Case in Judgment. — Suit upon insurance policy for furniture destroyed by fire. The policy contained a condition that it should' be void if the insured has or shall procure any other contract of insurance on the property, in whole or in part, unless with consent of the company endorsed upon the policy. A policy for furniture in the same house, with very similar description, had been procured and was existing. The plaintiff sought to avoid the condition by showing -that since the date of the first policy he had placed other furniture in the dwelling, and that the policy declared upon was upon this furniture. It appeared-that the valuation, etc., made was upon the furniture'in bulk in the house. Eeld:</p> <p>1. The condition was just and reasonable.</p> <p>2. It was sufficient to avoid the policy if part of the furniture was covered by the two policies.</p> <p>3. Parol evidence was admissible to show, if possible, the absence of identity of the goods covered by the two policies.</p> <p>4. The facts showing the policies covered the same, or part of it, the policy is void under its conditions.</p>

<p>1. Case Adhered to — Reasonable Rules. — The case of Western Union Telegraph Company v. Neel, 86 Texas, 368, adhered to. Telegraph companies may adopt reasonable rules for their business as to office hours, of which parties dealing with the company must take notice and be governed in contracts with the company.</p> <p>2. Verbal Contract. — If a verbal contract was made by the operator with the party sending a message, that the company should not be liable for failure to deliver during the hours in which the office at delivery end was closed, such contract would be valid, and a defense for nondelivery within said hours.</p> <p>3. Impeaching Testimony. — An impeaching witness testified to declarations of an employe of defendant damaging to the cause of defendant. Held, that if was proper for the court to give a requested instruction that such testimony should be considered "only as affecting the testimony of the witness attacked.</p> <p>4. Distress of Mind. — The injury suffered was distress of mind caused by delay in receiving a dispatch that his mother was dead. It would have been proper to charge the jury to find damages only for the augmenting, of the suffering caused by the delay.</p> <p>5. Reading Authorities in Argument. — Reading authorities to the court in the hearing of -the jury is a matter of practice largely confided to the discretion of the trial court, and unless an abuse of such discretion is shown it will not be revised. '</p> <p>6. Remarks of Counsel Before Jury. — It is the right of every litigant, while acting in good faith, to object to any argument made to a jury on behalf of his adversary which he regards as improper, and it is not proper for opposing counsel to ask the jury, either directly or by implication, to consider such an objection as evidence against the party making it, on the merits of the case. See illustration.</p>

<p>1. Nominal Parties. — It appearing that the plaintiff was the endorsee without consideration, and only for convenience, of a number of bonds or promissory notes, the defendants, the makers of such obligations, can make any defense they could if sued by the original payee or payees.</p> <p>2. Bona Fide Holder. — A payee of a negotiable note became its owner after it had been passed into the hands of a bona fide holder in course of trade. In regaining possession of such note the payee is not a bona fide holder, and the maker can urge all defenses that could have been made had the note never ■changed possession or owners.</p> <p>3. Fact Case. — See facts held sufficient to prove that a loan of money made by trustees was made upon the credit of property mortgaged by the trustees to-secure the loan. W'</p> <p>4. Trustees of Unincorporated Organization. — While it is the general rule that persons contracting in name of an unincorporated organization are personally liable, yet to the rule are exceptions. Where, as in this case, upon full knowledge of the facts, it was shown that the loan was made upon the property, and the property was mortgaged to secure the loan, the trustees are not liable, although acting for a church not incorporated.</p> <p>5. Pleading — Non est Factum. — The statutory rule requiring pleas of non est factum to be sworn to does not apply to a defense to a suit upon promissory notes wherein the execution of the notes is admitted, and circumstances are shown from which nonliability of the makers resulted as conclusion of law.</p>

<p>1. Damages — Special Exceptions. — In a suit against a telegraph company. plaintiff alleged that by reason of the delay in the transmission of the message, another message costing 40 cents was sent, inquiring about the delay, which plaintiff was compelled to pay, and by reason of said delay a hack was sent by L. A. L. Lampkin, a relation of plaintiff, to take plaintiff’s family to Harwood, and defendant is responsible for the same in the sum of $5. Held, that the sending of the hack would not be such damages as might reasonably have been contemplated would result from the failure to deliver the message with dispatch. and as was the natural and proximate result of such neglect of duty, and' the exception should have been sustained thereto. This error can be cured by remittitur. It might have been anticipated by the company that if it failed to-deliver the message promptly inquiry would be made by telegram in regard to-it, and this would cost something, and would be a proper element of damages.</p> <p>Texas Civil Appeals Reports. \_4tli District,</p> <p>2. Delay by Surrendering Wire to Railway Company no Excuse. — Defendant can not excuse delay in delivering a telegram by alleging that its wire was surrendered to a railway to transact its business.</p> <p>3. Stipulation Requiring Notice of Damages less than Ninety Days Invalid. — A stipulation on a telegram requiring notice to be given of claim for damages within a less period than ninety days is invalid, and no notice was necessary as a condition precedent to the institution of the suit.' The act of Legislature is constitutional.</p> <p>4. Evidence Admissible to show Notice of Relationship. — Evidence that in February and March, 1891, messages were sent to Mrs. Ray and Mrs. Jobe about their father’s condition, is competent to show relationship between them, and it was not necessary to produce the original messages for that purpose.</p> <p>5. Evidence of Mental Anguish. — Evidence of how appellee’s wife seemed to be affected by reason of her failure to see her father before his death is not objectionable, as the jury could assess the damages produced from that cause without any evidence. Tel. Co. v. Adams, 75 Texas, 535.</p> <p>6. Remarks of Attorney.— The remarks of an attorney, although improper, are not ground for reversal unless it is shown that the jury was influenced thereby.</p> <p>ON MOTION FOR REHEARING.</p> <p>7. Mental Anguish. — Mental anguish is an element of damages deemed to be within the contemplation of the telegraph company as a natural and probable result of its neglect to deliver with reasonable dispatch a message such as appellant undertook to transmit in this case, which principle is maintained by an unbroken line of decisions of our Supreme Court.</p> <p>8. Charges. — See opinion for charges of the court that were applicable and correct, and charges asked and correctly refused.</p>

<p>1. Actual Notice — Registration.—When appellant has assumed the payment of a promissory note, secured by a trust deed, and has actual notice of the mortgage or trust deed held on the property, the question of whether the registration thereof was regular, so as to be constructive notice to her, is immaterial.</p> <p>2. Equity of Redemption. — The property owned by appellant was encumbered by a mortgage with power of sale, at time of purchase, and the land was sold under the mortgage. The appellant claims the right to redeem, even though the sale was regular and she had knowledge of the trust deed when she purchased. Held, the equity of redemption does not apply to sales under a mortgage with power of sale, when the purchaser’s title is subject to the terms of the contract made by his vendors, and if the contract provides that the equity of redemption may be extinguished by the exercise of a power of sale, the purchaser’s title does not exist after such a sale properly made. The right of the mortgagee to become the purchaser is not now an open question in this State.</p>

<p>1. Suit on Promissory Note —When Payable. — Where a note was given as part consideration for an undivided interest in a grant of land, payable upon the rendition of a final judgment by any court of competent jurisdiction in any one case, decreeing said grant to be genuine and valid, Meld, that a recovery on said note can not be had merely by showing that in an action involving the validity of this grant there was a judgment for the plaintiff.</p> <p>2. Same — Recovery may be had When. — A recovery can not be had when defendant’s liability is to accrue only in a certain event, unless it is both alleged and proved that the event has taken place.</p> <p>3. Same — Parol Evidence, what may be Shown by. — It may be shown by paroi testimony, in an action upon a note payable upon the rendering of a final judgment declaring a certain land grant genuine and valid, that at the time the note sued on was given, only one suit was pending involving the validity of said grant; that said suit was the one contemplated and discussed by the parties to the note, as being the one that would settle the validity and genuineness of said grant. But if the paroi testimony in any manner tends to vary the meaning of the parties as expressed in the writings, by showing an understanding contemporaneous with or prior to the giving of said note different from what is stipulated in the note, it is not admissible.</p> <p>4. Practice on Appeal. — When the Supreme Court strikes out a portion of the statement of facts on appeal, and thereafter transfers the cause to the Court of Civil Appeals for adjudication, and it appears from the facts not expunged from the record that the trial court was not justified in rendering judgment for appellee, the judgment below will be reversed and the cause remanded.</p> <p>5. Purpose of Appeal. — The purpose of an appeal is the passing upon the case as it stood in the court where judgment was rendered.</p>

<p>1. Execution Sale — Satisfaction of Judgment. — When land is sold under execution and bid in by .plaintiff’s attorney for himself, the bid is not complied with, and the land again sold, and by the sheriff deeded to another person, Held, these facts do not show a satisfaction of the judgment, but entitle the execution to a credit of the amount paid by the last purchaser.</p> <p>2. Separate Property. — See opinion for facts sufficient to show the land in controversy was the separate property of the wife, and not liable to execution. Fisk v. Flores, 43 Texas, 340; Ames v. Hubby, 49 Texas, 710.</p> <p>3. Parol Gift of Land. — A paroi gift of land followed by ap entry thereon by the donee, who makes valuable improvements thereon on the faith of it, is valid.</p> <p>4. Outstanding Title — Evidence.—Appellants offered certain deeds for the sole purpose of discrediting certain witnesses. After the court has passed on the credibility of the witnesses, the deeds can not be used to show title in another, or for any purpose other than for what they were introduced.</p>

<p>1. Misjoinder — Causes and Parties. — There is no misjoinder of parties or causes of action in a case where S. sued J. and H., alleging that by reason of the representations of H. that he was solvent and doing a good business, and owed very little on a stock of goods worth §15,000 or §20,000, when in fact he was insolvent, S. had been induced to part with his goods on credit, and in furtherance of the fraudulent design of H., he had afterwards executed a deed of trust on all his property, including that of S., to J.; that a portion of the property specifically described was still in possession of J.; that demand had been made for possession of it, and refused by J.; with prayer against J. for the property held by him or its value, and judgment for the balance due for the goods against II.</p> <p>2. Evidence Immaterial. — The admission of immaterial or irrelevant testimony when there is sufficient legal testimony to support the judgment, is not ground for reversal.</p> <p>3. Leading Question. — Permitting a leading question to be answered is not reversible error, when the fact elicited is shown by other evidence, and no injury is shown to the party complaining.</p> <p>4. Rescission of Sale for Fraud. — When the buyer of goods makes a false representation as to his solvency, knowing such representations to be false, and thereby induces the seller to part with his goods on credit, the transaction is fraudulent, and the seller may rescind the sale and recover the goods from any one holding the same, except a bona fide purchaser for a valuable consideration.</p> <p>5. Bona Fide Purchaser. — A trustee holding property under a chattel mortgage is not a bona fide purchaser for value.</p>

<p>1. Description — Limitation. — u The entire survey, number 118, of 738 acres, Robert Wheally, in Kinney County, Texas,” is a sufficient description to allow the introduction of a deed; there is no uncertainty in it, and it puts the owner on notice that the party in possession was claiming under the deed.</p> <p>2. Possession of Part Extends to Entire Tract. — One in possession of land under a deed, cultivating, using, or enjoying the same, holds all the land comprehended within the boundaries of his deed, though not in actual possession of the entire tract, and it is not necessary that he should reside on any of it.</p> <p>3. Payment of Taxes. — See facts held sufficient to show payment of taxes.</p> <p>4. Cotenants — Limitations.—When parties have such an interest in the land as entitles either to maintain trespass to try title against any person entering upon it during the time of their respective ownership, limitations will run against them if they fail to protect such interest.</p> <p>5. New Trial — Newly Discovered Evidence. — A motion for new trial on the ground of newly discovered evidence should state from whom the information as to such evidence was obtained, and be supported by the affidavit of the informant.</p>

<p>1. Principal — Agent—Sale of Land by Agent to Principal. — When an agent has the funds of the principal for investment, and in satisfaction of the balance due conveyed to the principal land of less value than the balance due, without informing her of the value of the land, and she being ignorant of its value when she accepted the deed, such sale is voidable, and can be set aside at the option of the principal.</p> <p>2. Same. — Nothing will defeat the principal’s right to set aside the sale, except his own confirmation after full knowledge of every material fact.</p> <p>3. Same — Fraud. — There is no necessity that a fraudulent intent should exist in such cases; the relation of the parties alone, if the transaction was not participated in by the principal, will make it voidable at the suit of the latter. Fraud is imputed in such cases from the mere relationship, and it is incumbent upon the agent, in a suit brought to question the transaction, to show a ratification of his acts made with full knowledge. Pridgen v. Atkins, 25 Texas, 394.</p> <p>4. Equitable Lien. — See facts in opinion that entitle plaintiff to an equitable lien on the land, and the enforcement thereof.</p>

<p>Appeal from El Paso. Tried below before Hon. T. A. Falvey.</p>

<p>1. Attachment — Variance—Attorney Fees. — When a notéis executed for a certain amount, with interest thereon, and 10 per cent additional as attorney fees, if collected by law, attorney fee is recoverable on principal and interest due; and there is no variance between writ of attachment and petition when writ sets out gross amount due, including attorney fees on principal and interest. Morrill v. Hoyt, S3 Texas, 59.</p> <p>2. Promissory Note — Several Payees. — When a note is payable to two. persons “or either of them,” upon a valuable consideration from one of the payees, it makes the payor liable to him for its payment according to its tenor and effect.</p> <p>3. Defense to Note — Action Over. — When a party is sued on a note and sets up a complete defense against the note, and the plaintiff recovers, defendant can not recover over against another party on a cause of action inconsistent with the defense set up against the plaintiff.</p>

<p>1. Physician — Contract for Services Void without Certificate from Board of Examiners. — A physician can not recover for services rendered as such without procuring a cetrificate permitting him to practice medicine from the board of medical examiners, and having the same recorded. The petition should allege these facts or show the exception.</p> <p>2. Statutes Constitutional. — Articles 3625 to 3638, Revised Statutes, prescribing the qualifications of practitioners of medicine, are constitutional.</p> <p>3. Judicial Notice. — The court can not take judicial cognizance of whether the “American Medical Association” is composed entirely of adherents to the allopathie school of medicine.</p>

<p>Power of Marshal to Levy Outside Corporate Limits — Statute: Construed. — Under article 418, Revised Statutes, providing for the issue by the mayor or recorder and levy by the marshal of executions to satisfy any fine, penalty, and costs imposed by the mayor or recorder, the authority of the marshal is not restricted to the limits of the town, but is coextensive with that of the sheriff, and he can levy on property anywhere in the county.</p>

<p>1. Overruling Exceptions — Harmless Error. — Overruling special exceptions to so much of an answer as by way of cross-petition seeks alternative relief in case plaintiff should recover, if error, is harmless where plaintiff does not recover and the alternative relief asked in the cross-petition is not granted.</p> <p>2. Special Charge Properly Refused. — Where the charge given by the court respecting the rights of a wife in the community property and a partition settlement made between her and her husband after separation, was correct, a special charge upon that point was properly refused.</p> <p>3. Contracts — Illegal Consideration — Equity.—Appellants sought to have a deed made by them set aside upon the ground that the consideration therefor, in part, was the dismissal of a criminal prosecution against them. See opinion for charge upon this point held correct. Appellants can not be heard in a court of equity to allege their own unlawful acts as a ground for setting aside a settlement and conveyance, especially when they do not offer to do equity by tendering the purchase money received by them for the property.</p>

<p>1. Master and Servant — Negligence — Defective Implements.— Action by Harden for damages for personal injuries sustained while in appellant’s employment, and while assisting in the lowering of a stone into a pit by means of skids, one of which was defective. Appellant had ample opportunity to examine and test the skids before using them, and Harden had no opportunity for so doing, and did not know of the defect, or unsafe condition of the skid before using it. Held, it was the duty of the employer to exercise ordinary care in furnishing appliances for handling the stone which were reasonably safe and sufficient for the purpose, and a failure to do so was negligence.</p> <p>2. Same. — The liability of the master to the servant for injuries received from the use of defective implements arises from the fact that it is the duty of the master to furnish implements not defective, and the servant, unless the defect is patent, may assume that the master in this respect has performed his duty.</p> <p>3. Same — Assumed Risk. — See opinion for special charge upon the risks •assumed by the servant held to have been properly refused, because inapplicable to the facts and incorrect as a rule of law.</p> <p>4. Same — Contributory Negligence . — In such case the servant would be chargeable with negligence himself in using the appliance only in case that he knew it was unsafe or insufficient, or in the event it was so obviously insufficient and unsafe to use for the purpose and in the manner in which it was being used, that a man of ordinary prudence would have known it.</p>

<p>Appeal Bond. — An appeal bond given on appeal from a judgment of a justice of the peace which identifies the cause in which it is given by number, style-of the cause, court in which it is pending, and the date of the rendition of the-judgment, and is conditioned as required by the statute, is sufficient. The statute does not require a description of the judgment, or the amount for which it. was. rendered, to be contained in the bond.</p>

<p>1. Chattel Mortgage — Notice Dates From Filing. —Under article 3190b, Sayles’ Civil Statutes, which provides that chattel mortgages, where the possession of the property mortgaged is not changed, “ shall be absolutely void as against the creditors of the mortgagor or person making same, and as against subsequent purchasers and mortgagees or lien holders in good faith, unless such instrument or a true copy thereof shall be forthwith deposited with and filed in the office of the county clerk.” the failure of the clerk to enter the mortgage in the proper book, after it had been filed or deposited with him. does not affect the rights of the mortgagee. Notice dates from the time the mortgage is filed, and not from the time the. index and entries are made.</p> <p>2. Right of Trustee to Sell at Retail — Charge.—Where there was no evidence that the trustee in a deed of trust to secure preferred creditors went into possession of the mortgaged stock for the purpose of selling same out in the ordinary course of a retail dealer, it is error to instruct the jury that such purpose would render the conveyance void. Besides, if such understanding had been made, since the evidence shows that the goods conveyed were of less value than the amount of the preferred claims, the preferred creditors only are interested in the management of the property by the trustee.</p> <p>3. Possession — Issues of Fact must be Submitted to Jury.— When a debtor executes a deed of trust to secure preferred creditors and does not deliver possession to the trustee, but retains possession and control of the property, the conveyance is prima facie void. It was error for the court to assume that the mortgagor remained in possession when the evidence on that point was conflicting.</p> <p>4. Special Charge Properly Refused, but Sufficient to Suggest Proper Charge. — It was not error to refuse a special charge which would have indicated the opinion of the court as to the weight of the evidence when there was an issue made thereby; yet the charge being sufficient to call the attention of the court to the issues therein mentioned which were made by the pleadings and proof; the court should have submitted such issues to the jury under appropriate instructions.</p> <p>5. Deed of Trust to Secure Preferred Creditors — Fraud. — Under our law, where the grantor fails to deliver the property to the trustee, and continues to dispose of it in the usual course of trade, the transaction would be prima facie evidence of fraud, and if not explained away makes the transaction void as to creditors. But it may be explained, being a mere badge of fraud and not fraud per se, and the facts in reference thereto should be submitted to the jury.</p> <p>6. Misconduct of Trustee and Mortgagor. — If such conveyance was executed in good faith and possession delivered to the trustee, the subsequent mismanagement of the estate by the trustee would not affect the validity of the conveyance, nor would the conduct of the grantor when not consented to or acquiesced in by the beneficiaries; yet such conduct on their part should be permitted in evidence in order for the jury to judge of the good faith of the transaction.</p>

<p>1. Deed of Trust to Secure Preferred Creditors — Powers of Trustee. — An insolvent retail merchant executed a chattel mortgage upon his stock of goods to secure preferred creditors. The property conveyed was of greater value than the amount of the debts of creditors preferred to plaintiffs in error, and plaintiffs in error were entitled to share in the surplus. The mortgage empowered the trustee to conduct a cash retail business in the usual, customary manner. Reid, the interest of plaintiffs in error in the proceeds of the property gave them a direct interest in the power sought to be conferred upon the trustee as to the sale of the property. The power to conduct a retail business was inconsistent with the right of the mortgagor’s creditors to have their debts paid when due, or to subject his property to such payment, and will not be upheld against a creditor having an interest in the property or its proceeds.</p> <p>2. Same — Discretion of Trustee to Sell in Bulk. — The provision in the mortgage that the trustee is also given power, if it should appear to be the interest of the beneficiaries, to sell in lots or bulk at his discretion, places the irresponsible discretion of a third party between the property of an insolvent debtor and his creditors, and places the action of the trustee as to the manner of sale beyond the control of the courts.</p> <p>3. Same — Acceptance by Beneficiaries. — If the instrument were not objectionable in its grant of power to the trustee, it was necessary to its operative effect against attaching creditors that it should have been accepted by the beneficiaries in it. It has no legal force until it becomes a contract between such parties, and it can not become a contract between them until there is mutual assent to its terms.</p> <p>4. Same — Acceptance by Trustee. — The trustee can not represent the beneficiaries in accepting the mortgage unless he be authorized by them so to do.</p>

<p>1. Mortgage — Acceptance — Waiver of Lien. — Where mortgage is executed upon property to secure the payment of a debt, the lien therein provided for does not become fixed so as to be a subject of waiver until the mortgagee has accepted the mortgage, and thereby made it a subsisting contract between the debtor and creditor.</p> <p>2. Mortgage to Secure Preferred Creditors — Acceptance by Trustee. — Acceptance by the trustee in a mortgage will not meet the necessity of and answer for the assent of the beneficiaries.</p> <p>3. Election of Beneficiaries to Accept or Reject. —Where one has the election to accept or reject the terms of a contract, if he once makes an election it is binding upon him, and irrevocable except by the consent of the parties interested.</p> <p>4. Same — Attachment as an Election. — A beneficiary in a mortgage to secure preferred creditors, without accepting thereunder, sued out a writ of attachment and caused it to be levied upon the mortgaged property. Held, the beneficiary elected to reject the mortgage when it sued out and levied the attachment, and it could not relieve itself of the legal effect of such election by its subsequent abandonment of the attachment proceeding and offer to accept under the mortgage.</p>

<p>1. Foreign Laws — Wife’s Separate Estate. —If the law or usage of another State be different from that of Texas in regard to the separate rights of wife to property inherited by her. the burden is upon the party relying upon the foreign law or usage to allege and prove it.</p> <p>2. Husband and Wife — Limitation.—The husband can not invoice the statute of limitation against the wife during coverture; but even if he could, this is strictly a legal plea, and he would not be compelled to take advantage of it.</p> <p>3. Contract — Consideration — Moral Obligation. — It is well established that a moral obligation or a debt barred by limitation may form the consideration for a new promise or even a conveyance.</p> <p>4. Homestead — Separate Estate of Wife. —The consent of the wife to sign the deed to her homestead forms sufficient consideration for setting apart to her separate use a portion of the purchase money. In this case the wife took her husband’s note for her portion of the proceeds of the sale of the homestead, and it thereby became her separate property; and when the husband afterward became insolvent the wife was as much entitled to protection as any other of his creditors.</p> <p>5. Wife’s Separate Property — Purchaser at Sale Under Execution Against the Husband. — Where the apparent onerous title to real estate is in the community, but the property is really the separate property of the wife, and the same is bought in by a creditor of the husband, at execution sale against him, and the amount of such bid is credited on the execution, such creditor is not an innocent, bona fide purchaser, as against the separate rights of the wife, and her title is not divested by such sale.</p>

<p>1. Assignment of Error. — An assignment of error to the effect “ that the court erred in his general charge to the jury, which failed to state the law applicable to the case as made by issues joined in the pleadings and evidence adduced in support thereof,” is too general, and can not be considered.</p> <p>2. Mortgage to Secure Preferred Creditors — Implied Defeasance. — In this case the instrument claimed as a chattel mortgage contains no condition of defeasance, nor does it provide for the return of the surplus, if any, to the grantor; but upon its face it declares that it is a mortgage made to secure the debts named, and it so appears from the testimony. Held, in the absence of any provision applying the balance, if any, of assets, after satisfying the secured debts, to the payment of other claims, the law will imply a defeasance, and the instrument should be treated as a mortgage.</p> <p>3. Same — Acceptance—Attachment—Priority of Liens. — The assent or acceptance of the creditors secured by the mortgage is necessary before the same becomes a contract between the parties; and if before such assent or acceptance an attaching creditor of the mortgagor causes an attachment lien to be fixed on the property, his rights as a lien holder are entitled to priority over any such creditor who has failed to accept under the mortgage, but otherwise as to such bona fide creditors as accept under the mortgage prior to the attachment.</p> <p>4. Fictitious Debt —Innocent Creditor. —Ordinarily, a fictitious debt in a mortgage which was made to secure a number of creditors, such fictitious debt not being known to the trustee or the other creditors secured, would not invalidate the mortgage as to the innocent creditors who accepted it in good faith to secure their own just debts. In this case, if no other creditor or creditors had assented thereto prior to the attachment except W. B. Wade and Benbrook & Wade, both of which creditors were represented by W. B. Wade, and such debts, or either of them, were fraudulent and fictitious, in whole or in part, and W. B. Wade knew the same to be fraudulent and fictitious at the time of the execution of the mortgage, then such mortgage would be void as against appellants who repudiated the mortgage and attached the property.</p> <p>5. Special Charge. — See opinion for special charge refused, held to have been sufficient to call the court’s attention to the issue of fraud and to require a charge thereon.</p>

<p>1. Fraud .on Jurisdiction — Plea of Privilege. — An account in favor of the Rockwall Farmers Alliance, domiciled in Rockwall County, against H. Jones- and T. J. Wood, Jr., neither of whom resided in said county, was transferred to appellee, who instituted suit thereon in Rockwall County against Jones and Wood and the Rockwall County Alliance, alleging that the former were partners and that the latter had guaranteed the account. Held, the transfer of the account being simulated, and intended solely for jurisdictional purposes, it was a fraud upon the jurisdiction of the court, and the plea of Jones and Wood claiming their privilege to be sued in the county of their residence should have been sustained and the cause dismissed as to them.</p> <p>2, Same — Verification of Plea to Jurisdiction. — The plea to the jurisdiction was made on behalf of both Jones and Wood, and was duly verified by the affidavit of Wood, who stated that he was cognizant of the facts. This was-all that was necessary to make the plea available to both defendants.</p>

<p>1. Damages for Attachment of Realty — Pact Case. — Levy of attachment May 13,1891, on realty in which defendant had a half-interest, and against which there was outstanding a vendor’s lien for about $7000, due March 30,1892. ■September 19,1891, an offer of $10 per acre was made defendant for a clear title to the whole land, $2000 cash, and half the balance in one and half in two years. Defendant replied to the offer, that he only owned a half-interest. The purchaser responded: “ Would prefer to buy all, but if parties interested with you will accept same offer made you, I will make the same proposition to them. If you wish to sell your undivided half, my proposition holds good if you will accept terms stated.” Defendant afterwards contracted to sell to another at $5.65 per acre within one year from November 25,1891, and claimed as damages the difference between the first and last offer, and that the first had been broken up by the attachment. Held, not recoverable. The first offer was conditional, and defendant was not in condition to make clear title.</p> <p>2. Damages for Attachment of Real Estate. — No case has been cited or found in which damages have been allowed for the levy of an attachment on real estate, but a loss might result therefrom which would be so direct and proximate as to entitle the party to compensation; as for instance when a pending trade is broken up by the levy itself, unaided by the act or delinquency of defendant, and depreciation and loss follows.</p> <p>3. Depreciation in Value as Damage. — Depreciation in value occurring during the levy is not such a direct effect of the levy as in itself would ■entitle the defendant to damages.</p>

<p>1. Business Homestead — Fact Case. — P. conducted a mercantile business in a store house .on one of the lots in controversy, had a warehouse used in connection with the business on the other, and kept a hotel elsewhere. Novem19, 1889, he conveyed these lots and his stock of merchandise to B. This conveyance was without consideration. November 21 Willis &Bro. attached. There was an agreed judgment in the suit for a less sum than was sued for. with foreclosure of the attachment lien upon the lots in controversy, which were thereafter sold under the foreclosure, purchased by Willis & Bro.. and by them leased to P. In a suit between Willis & Bro. and P., these facts held evidence of abandonment by P. of homestead rights.</p> <p>2. Effect of a Fraudulent Conveyance of the Business and Business Homestead. — When a debtor by a fraudulent conveyance divests himself of all his goods and his business homestead, and his subsequent conduct shows intent to discontinue business, his avocation as merchant is at an end, and the deed, though not signed by the wife, is evidence of abandonment of the homestead right.</p> <p>3. Residence and Business Homestead — Fraudulent Conveyance of. — A fraudulent conveyance of a residence homestead, when there was no actual abandonment, will not divest the homestead right; but in order to secure the exemption of a business homestead the business must be kept up, or intent to continue it shown, and when the business is abandoned the homestead exemption protecting the place of business is at an end.</p> <p>4. Judgment as an Estoppel. — An agreement of parties under which a judgment was rendered does not enlarge the scope of the estoppel of the judgment, when it was such as plaintiff would have been entitled to without the agreement.</p> <p>5. Effect of an Order of Sale Under a Foreclosure of an Attachment Lien. — It is the opinion of Mr. Justice Williams that the execution of an order of sale under a foreclosure passes such interest in the property levied on as was subject to the lien, and also has the force of an execution against the particular property, and passes such interest therein as the defendant had acquired between the date of the levy and the sale.</p>

<p>1. Slave Marriages. — Alice Cumby was born in slavery, and was the ■daughter of a man and a woman who were married during slavery. Her parents lived together as man and wife from the date of emancipation until 1865, when they separated, and each married again. The father and second wife accumulated property, and he died intestate, and without issue by his second wife. Held, that Alice was a legitimate child, and entitled to recover one-half of the community property accumulated by her father and second wife.</p> <p>2. Same. — Although at the time of her birth illegitimate, if her parents, having been married while slaves, lived together as husband and wife'after emancipation, this subsequent mutual acknowledgment of the married relation should be held to complete the act of matrimony so as to make them lawfully married from the time at which such subsequent living together commenced.</p> <p>3. Marriage — Constitutional Law. — The Constitution of 1869, providing that those married in slavery who continued to live together as husband and wife until the death of one of them, or who were so living together at the date of the adoption of that Constitution, should be considered as having been legally married, did not annul all marriages between parties who had been slaves except such as were expressly validated, but left the others to be regulated by the general principles of the laws of marriage.</p> <p>on rehearing.</p> <p>4. Marriage Defined. — Marriage is constituted by the agreement of two parties, competent to marry, to become husband and wife in prsesenti. or an agreement to assume that relation at a future date, followed by the actual assumption of the status, and the concurrence of such facts constitutes a valid marriage, .unless the law of the place requires the observance of some additional form or ceremony, and makes void all attempted marriages not celebrated in accordance therewith.</p> <p>5. Common Law Marriage. — A marriage good at common law is good,, notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity.</p> <p>6. Slave Marriages Discussed. —The relations existing between slave-men and women when they took each other for husband and wife with the consent of their masters, was natural and moral, and not concubinage, and lacked' only the legal capacity of the parties to make it lawful wedlock. That capacity came with their freedom, and then no reason existed why, if they chose, they could not invest their union with all the lawful incidents of marriage.</p>

<p>1. Proof of Execution of Contested Will. — The statute requires proof of the execution of a will to be made by one of the subscribing witnesses, but where such evidence is produced it does not forbid the taking of other testimony-in cases of contested application, to corroborate the testimony of the subscribing witness. We know of no rule of law which would require the introduction of all the subscribing witnesses before other evidence to sustain the will could be received.</p> <p>2. Evidence of Interested Witnesses. — The testimony of the father of one of the beneficiaries under the will, and of the wife of another, was admissible as to transactions with deceased. They took nothing under the will, and even if they were interested parties it seems that would not disqualify them. Citing Beazley v. Denson, 40 Texas, 436, 437.</p> <p>3. Practice — Exclusion of Evidence. — When the bill of exceptions to the exclusion of evidence fails to state what the answer of the witness to the questions would have been, the ruling will not be reviewed.</p> <p>4. Hearsay Evidence. — When it was proposed to show by one W. that something like twelve hours after the alleged execution of the will, and several hours after decedent’s death, one of the subscribing witnesses, who has since died, declared that deceased had not executed the will, but that all of the parties were by agreement to meet some days after and sign it up, the testimony was properly excluded as hearsay.</p> <p>ON MOTION POR REHEARING.</p> <p>5. Execution of Will. — Our statute provides that a will may be probated upon the evidence of one of the subscribing witnesses. This is the primary evidence, but when it has been introduced and the witness has testified to facts sufficient to probate the will, the rule is satisfied, and the question of the due execution of the will is the one fact, to be tried like any other. Heist v. Universalist General Convention, 76 Texas, 521, distinguished.</p>

<p>Damages not'too Remote — Regathering Cattle. — Suit being for damages for failure to deliver a telegram to one who was holding a herd of cattle which were to be turned loose unless a message was received within a certain time, defendant having notice of these facts and of the necessity for its prompt delivery, it was liable for the cost of regathering the cattle to fill the contract of which the message advised the holder of the cattle, and also for the depreciation in value of the cattle caused by the regathering, and for the value of such animals as came to their death without negligence on the part of the plaintiff, in consequence of having to be regathered.</p>

<p>1. Injury Caused by Obstruction of Streets — Liability over, of Obstructionist. — One injured by a fall of lumber piled in the street having sued the city for damages, the city impleaded the firm that piled the lumber, and the evidence showing that the lumber bad been piled there for years, and that the attention of the city officers had been called to it, an instruction which assumed the liability of the city and authorized recovery by the city from the firm that piled the lumber, was properly refused.</p> <p>2. Negligence per se. — In view of the fact that the placing of obstructions in the street was a positive violation of the ordinances of the city, the jury might have been instructed (had the facts in the case made it otherwise proper to do so) that the parties placing it there were guilty of negligence which would make them responsible for its consequences.</p> <p>3. Obstructing Street with Knowledge of Corporation. — The lumber having been piled in the street for years before the plaintiff was hurt, and the attention of the city officers called to it, the inference is not a violent one that there was tacit consent and connivance by the city, and it can not be said that the city was a mere victim and guilty of no conscious wrong, and entitled to recover from one who was a joint wrongdoer.</p>

<p>1. Venue — Plea of Privilege.— Defendants, residing in Fayette County,, had an account current with plaintiffs, who resided and did business in Galveston. . The items of the account consisted of drafts payable in Galveston, and notes due by the defendants to third parties and payable in Galveston, which had been paid for defendants by plaintiffs. In the drafts the plaintiffs were instructed to charge to the account of the drawers, and in fifty-nine of them, including the first and last drafts drawn, the defendants, the drawers, instruct the plaintiffs to charge the amount “to current account with you, which is payable at Galveston, Texas."’ and it was proved that no other account existed between the plaintiffs', and defendants except the one sued on. Be Id, that the suit was properly brought, in Galveston, Texas.</p> <p>2. Dissolution of Partnership — Assumption of its Debts by New Firm. — The facts that a firm which was indebted to the plaintiffs dissolved, and two of its members sold out to a third person, who with the remaining member of the old firm formed a hew partnership, and assumed the debts of the old firm, and that plaintiffs were notified of these facts, and afterwards did business with the new firm, and during the time they did business with the new firm received remittances and shipments sufficient, if they had been applied to the payment of the debt of the old firm, to have extinguished it, will not release the members of the old firm from their primary liability to plaintiffs for the debt, nor make that liability only secondary.</p> <p>on rehearing.</p> <p>3. Plea of Privilege. — Upon a rehearing, one item of the account is found not to be payable in Galveston, and the plea of privilege is sustained as to that item.</p>

<p>1. Innocent Purchaser. — Mrs. Beard, a widow administering the community property of herself and her deceased husband, as survivor, traded lots and a debt due the community estate for the tract of land in controversy, and after-wards (she having continued the banking business of her deceased husband), made an assignment for the benefit of creditors and placed the land in controversy upon her schedule, and it passed by her deed of assignment to her assignee, who sold it to P., who sold it to appellee, who paid full value for it in cash and had no actual notice that Mrs. Beard had traded community property for it, but was acquainted with Beard and his family and lived in the same town, and was present at the assignee’s sale. Held, that appellee was an innocent purchaser, and took good title to the whole land.</p> <p>2. Same — Outstanding Equity. — The assignee took no better title than Mrs. Beard had, and so long as no additional equities supervened, such title only would pass to a purchaser from the assignee; but when a purchaser paid value without notice of any secret trust with which the property was affected, an equity equal to that of the secret beneficiary arose, which coupled with the legal title would give priority to such purchaser.</p> <p>3. Quitclaim Title. — A deed from an assignee is not necessarily a quitclaim deed in the sense meant when it is said that one holding under a quitclaim deed can not be a bona fide purchaser, because the deed conveys the land for a full •consideration, and not the mere chance of the land.</p>

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

<p>1. Judgment in Suit by Publication. — A judgment in a suit by publication to foreclose an equitable lien on realty for taxes and insurance paid, against the unknown heirs of the deceased owner, wherein the judgment recited that the defendants had been duly cited by publication, in so far as it is a proceeding in rem against the land, is valid, and could only be set aside by a bill of review filed for that purpose within two years.</p> <p>2. Surviving Wife. — The Texas statute declaring that all property acquired by either husband or wife during marriage shall be deemed the common property of both, will control as to real estate in Texas, although the parties may both reside in another State where a different rule of law prevails.</p> <p>3. Wife’s Title to Community Property. — The wife’s right to her half of community property is not acquired as heir of her husband, but after his death is the legal right, and publication of citation to the unknown heirs of her husband did not make her a party to the suit, and affirmative evidence of the purchase of the property during marriage is unnecessary to show it to be community, in the absence of evidence to the contrary; it being by law under such circumstances regarded as common effects or gains.</p> <p>4. Community Interest of Wife not an Equity, when. — The rule which treats the community interest not disclosed by the pg,per title as an equity does not apply after the death of the husband. All persons who deal with the property after his death must take notice of whatever community rights there may be in a surviving wife, as well as of the rights of his heirs.</p> <p>5. Direct Attack upon Judgment for Fraud. — A direct attack upon a judgment for fraud upon the jurisdiction of the court, and in the cause of action, may be made within the time fixed by the law of limitations, in the proper court and with proper parties, although the statute only allows a bill of review where there has been citation by publication within two years.</p> <p>6. Trust. — See this case for allegations in a suit to set aside a foreclosure judgment and sale of land upon the ground of fraud, and setting up that defendant who purchased the land had prior to his death been the agent of their father to rent and manage the property, sufficient to charge defendant with a trust in favor of the children.</p> <p>7. Improvements in Good Faith. — If S. H., the first purchaser, put improvements upon the property in bad faith, and A. H., the purchaser from him, put no improvements upon it, then plaintiffs are entitled to recover of him for the improvements put thereon in bad faith. If S. H. improved in good faith, A. H., claiming under him, would be entitled to recover for improvements so made.</p> <p>8. Proper Parties. — In a suit for the recovery of land, and a direct attack upon the judgment under which it was sold, any person claiming the land under the judgment is a proper party.</p> <p>9. Evidence Admissible upon Issue of Good Faith and Fraud. A witness warned H. that the judgment was invalid, and advised him not to improve the property, and offered to rent it from him as the agent of the heirs. This evidence was admissible under the issues of good faith in making improvements, and upon the question of fraud in procuring the judgment.</p> <p>10. Limitation of Five Years. — See facts under which it was held, that defendant could not prescribe under the five years limitation.</p> <p>11. Judgment Void in Part, Valid in Part. — As the proceeding was in rem against the property, and the averments were sufficient on general demurrer to show a lien upon the property, because a void judgment in personam against the heirs was also rendered, would not make void the judgment subjecting the property to the debt.</p> <p>12. Suit Against Heirs. — There being certain exceptions under which suit may he maintained against the heirs for the debt of the ancestor, and this case not being shown to be without them, objection that the Probate Court had exclusive jurisdiction was properly overruled.</p>

<p>1. Assignments and Propositions Thereunder. — The first assignment of error being that the court erred in refusing to transfer the case to Cherokee County, as prayed for by the defendants in their motion for a change of venue, or to some other county out of this judicial district, because the judge of this district is disqualified to try the case, he having been a member of the city council of Palestine when the same questions involved in this case, and between the same parties, were passed upon and decided against these defendants by said council; and the first proposition being. " upon change of venue the case should be removed to some adjoining county the court house of which is nearest to the court house of the county in which suit is pending,” the proposition was not considered, because not germane to the assignment.</p> <p>2. Disqualification of Judge. — The district judge was not disqualified to try the case by reason of the facts stated in the first assignment of error. The qualifications of a judge are not to be tested by the rules which determine the qualifications of a juror. It is presumed that he can and will divest himself of all previous conceptions he may have formed as to the law or the facts, and base his judgment upon the case as developed upon the trial.</p> <p>3. Evidence Admitted, but Withdrawn from the Jury. — The declarations of one of the defendants, that there was danger of explosion and fire from the company’s plant, having been withdrawn from the jury by the plaintiff, and they having been admonished by the court that these declarations were not to be considered, and that they were not in evidence, their admission was not cause for reversal.</p> <p>4. Charge must be Warranted by Pleading and Proof. — Until the defendant, by appropriate pleadings and proof, had averred and proven that there was no danger to plaintiff and his household from noxious gases and vapors from oils kept in his warehouse and tanks, and that gasoline kept in five gallon cans was harmless, and that neither injury nor inconvenience would result to plaintiff and his family from storing and selling oils in such quantities by defendant, he was not entitled to a charge submitting as a special issue the questions, do the drippings and leakage of the gasoline oil kept by the defendant on its premises in drums and five gallon sealed cans cause noxious vapors and gases to pervade plaintiff's residence, to the essential inconvenience and discomfort of himself and family; when the court had in his charge submitted the issue whether vapors and gases which arose from the plant of defendant company extended to and pervaded the air of plaintiff's residence.</p> <p>5. Assignment of Error — Assumption of Facts — When the assignment assumes that issues were submitted by the court not warranted by the pleading and the evidence, and this assumption is not borne out by the record, the assignment is not considered.</p> <p>6. Proper Issues and Charge. — See this case for proper issues and charge in a case wherein an injunction was asked to restrain and enjoin defendants from storing kerosene and gasoline and other inflammable oils near the residence of the plaintiff, whereby his family and residence was in danger of destruction by fire and gas explosion, and the drippings and leakage engendered noxious vapors, which pervaded his residence, to the inconvenience and discomfort of himself and family.</p>

<p>1. Oral Trust — Statute of Frauds. — Appellees having made a deed absolute to appellant, for the express consideration of $3000, which was really a loan, could show an oral agreement with him whereby it was agreed that he should not sell the land within two years from the date of the deed, and should reconvey the same to appellees at any time before making sale, upon the repayment of the $3000 and interest, and if sold by appellant after the expiration of the two years, he should account to appellees for the difference between the selling price and the $3000 and interest. This paroi contract was not within the statute of frauds.</p> <p>2. Mortgage on Homestead. — Such contract was not in contravention of law and void because the property had been the homestead of the appellees. The purpose of the law exempting a homestead from seizure or sale for debt would be defeated if the appellees were denied the right of showing the nature of the conveyance, and recovery of damages for the breach of the agreement. The maxim, ex turpi causa, non oritier actio, does not apply.</p>

<p>Right of Minor to His Earnings. — A mule was bought and paid for by a minor with his own earnings after'his father had relinquished all control over him and all right to his services and earnings. Being levied on to satisfy a debt of the father, Held, that the mule belonged to to the minor, and was not liable for his father’s debts.</p>

<p>1. Telegram — Mistake of Sender — Damages for Delay. — A telegram notifying the addressee that his brother was sick at S. was negligently delayed. The brother was in fact sick at C., but the addressee was not misled by the mistake, and would have gone at once to O. had he promptly received the message. Held, that such mistake did not relieve the telegraph company of its liability for damages.</p> <p>2. Same — Notice from Face of Message. — A telegram saying that “Jerry is dangerously sick,” is sufficient to notify the telegraph company that he is a relation of the addressee, that it is sent to enable the addressee to go to him, and that such would be the probable action taken on its receipt.</p> <p>3. Same — Verdict not Excessive. — A verdict for $1950 for delay in delivering a telegram, whereby the addressee reached his brother seventeen hours after his death instead of seven hours before, is not excessive.</p>

<p>1. Limitation — Stolen Property. — An instruction, that if the animal sued for was in the first instance stolen from the plaintiff1 the defendant’s plea of limitations was not tenable, although he and his vendors had held the animal by purchase in good faith for more than two years prior to suit brought therefor, is-erroneous.</p> <p>2. Measure of Damages — Market Value —Hire and Use. — Ordinarily the measure of damages for the conversion of an animal is its market value at the date of conversion, with interest from that date; and where it is proper to. assess the value of its use and hire, this should not be computed by the day fora long period of time.</p>

This suit was brought by appellant on a note for $600, with interest and attorney fees, executed by appellee to Corry & Stricklin, September 27, 1890, and endorsed to appellant before maturity.

<p>1. Ancient Instrument — Certified Copy. — In order for a certified copy of a conveyance to be admissible in evidence as an ancient instrument, the registration must be ancient. Following Brown v. Simpson, 69 Texas, 225.</p> <p>2. Same —Power of Attorney Presumed. — Where a deed admissible as an ancient instrument purports to have been executed by virtue of a power of attorney, the existence of the power will be presumed; and the presumption is not defeated because a copy of the power of attorney may have been offered in evidence and rejected as a copy.</p> <p>3. Deed — Subscribing Witnesses. — Attestation by subscribing witnesses was not necessary to the validity of a deed executed November 21,1861.</p>

<p>Common Carrier — Interstate Shipment. — Where the proof shows merely that a common carrier engaged only in carrying between points in the same State received goods shipped from outside the State, and carried them to their destination within the State, and it does not appear that the carrier was engaged in such transportation under a common control, or arrangement for their continuous carriage from the initial point of shipment to their destination, an act of interstate commerce is not shown.</p>

<p>1. Pleading — Replication Unnecessary, when. — Where defendant’s answer specially pleaded that plaintiff’s injury was caused by his disobedience of a certain rule of the service in force at the time the accident occurred, evidence that such rule was not then in force is admissible without any pleading in reply by plaintiff, and under the general denial interposed for him by the statute.</p> <p>2. Master and Servant — Employe’s Knowledge of Buies. — As to the duty of an employe to inform himself of the rules prescribed by the employer, and that he is chargeable with knowledge thereof if by ordinary care and diligence he could have obtained such knowledge, see the opinion.</p> <p>3. Charge of Court — Harmless Error. — Error of the court in charging upon a distinct matter of defense is not cause for reversing a judgment in plaintiff’s favor, where the evidence as to such matter would not sustain a verdict for defendant based thereon.</p> <p>4. Practice — Remarks of Counsel. — Where the verdict is not excessive, improper remarks by counsel are not ground for reversal when they are withdrawn by counsel and are corrected by the court before the jury.</p>

<p>Fees — Commissions of County Judge. — Article 2384 of the Revised' ’ Statutes, allowing the county judge a commission “ on the actual cash receipts of each executor, administrator, or guardian,” does not entitle such judge to a commission on the cash receipts of a survivor in community who has duly qualified, from sales made in the management of the estate outside of the Probate. Court.</p>

<p>Pleading —Allegata and Probata — Nonnegotiable Collaterals.— In an action upon the principal debt by a pledgee holding collateral securities that are nonnegotiable, he is not required to account for such securities in the absence of allegation and proof that he has lost or misappropriated them.</p>

This suit was brought by Capps & Canty against J. W. Putnam, E. Putnam, and also John P. King, county clerk.

<p>1. Libel — Bad Debt Collecting Agency Letters. — Letters sent in open envelopes endorsed "Bad Debt Collecting Agency,” which are read before reaching their destination, and which state among other things that the correctness of the claim against the addressee is guaranteed, that if she desires to maintain a reputation for fair dealing and honesty she must pay the claim at once, and that a list is furnished all merchants of those who will not pay their debts, is libellous per se, and special damages need not be alleged in an action thereon.</p> <p>2. Same — Proof of Publication. — The evidence is sufficient to connect defendants with the publication of letters to plaintiff sent in open envelopes by a “bad debt collecting agency,” where it shows that the claim mentioned in the letter was a claim by defendants on which they were suing while the letters were being sent out, and that they were subscribers to the agency and had given their bookkeeper general instructions to send out such notices, and knew the business methods of the agency.</p> <p>3. Same — Remarks of Counsel. — In a suit for libel in sending out open letters through a “bad debt collecting agency” of Chicago, remarks of plaintiff’s counsel that the jury should give a verdict that would teach men when they have debts to collect to go into the courts at home where there is an honest judge and jury, and not try to collect them by sending such scandalous libels to a widow woman through a nameless agency at Chicago, are justifiable.</p>

<p>Dedication — Revocation Before Acceptance. — In order to render irrevocable a dedication to public use evidenced only by acts and declarations, it must have been consummated by an acceptance.</p>

<p>Limitation — Mental Suffering —Personal Injury. —An action for mental suffering resulting from the nondelivery of a telegram, is for personal injury, and is barred within one year.</p>

<p>1. Agency — Evidence. — See evidence uncontradicted held sufficient to prove that W. was the chief engineer and superintendent of construction of a railway in time of its construction.</p> <p>2. Proof of Agency. — Agency can not he proved by the acts and declarations of the agent, and this rule may extend to the proof of the extent of the agency; but in some cases the rule is modified, e. g., in case of acts of an agent •engaged in the construction of a railway. In such case the character of the business, the manner in which such work is usually carried on, and the manner in which the work in question was carried on, is competent, in order to determine ■or ascertain the powers impliedly conferred upon the agent.</p> <p>3. Same. — Where an agency is once proved to exist, it is presumed to be general and not special.</p>

<p>1. Amendment. — In a suit for libel the complaint was that plaintiff was published in a list of persons who, though able, would not pay their debts, and were unworthy of trust or credit. By amendment the occupation of plaintiff was stated, and additional parts of the alleged publication inserted. Held, that the new matter only brings out more clearly the original cause of complaint, and does not allege a new ground of action.</p> <p>2. Truth a Defense. — There is no question that the truth of an alleged libel may be set up and proved as a complete justification and defense.</p> <p>3. Same — Pleading.—The plea is generally broad enough if it merely state that the matter charged to be libellous is in fact true. When the libel is of a general character the plea of justification must set up the facts which make the character in question. See example.</p> <p>4. General Reputation. — Suit for libel, alleging that the defendant had charged the plaintiff with want of honesty, etc., in business dealings. Held, that the character of the investigation can not be ignored in determining what is material testimony as to reputation. The inquiry, however, must be confined to the general reputation'as to the particular quality of character that is in issue.</p> <p>5. Charge — General Topics. — It is not good practice to give in charge general principles of law unless called for by the facts of the case. See faulty charge in this respect.</p> <p>6. Libel — Practice.—Suit for libel for circulating a writing libellous per se. In such case the amount of damages is to be fixed by the jury from the circumstances in evidence; the defense, however, is made out if the truth of the alleged libellous matter be proved, if the libel did not apply to the plaintiff, or if not made, authorized, or uttered by the defendant.</p> <p>7. The Dnited States and Canada Protective and Detective Association. — The pamphlet circulated by this association is libellous as against the individuals named therein. See opinion for details. The court could not instruct the jury that the language and publication were harmless.</p>

<p>1. Rescission of Sale Procured by Fraud. — If goods were purchased on credit upon false representations by purchaser as to his financial condition, the seller, upon discovery of the fraud and by exercise of reasonable diligence, may disaffirm the sale and recapture the goods; or if disposed of to one not a bona fide purchaser for value, may reclaim the goods, or hold such purchaser for their value if disposed of by him.</p> <p>2. Valuable Consideration. — A credit upon a pre-existing debt, or the destruction of the evidence of such debt, can not constitute a valuable consideration so as to protect a purchaser without notice.</p> <p>3. Same. — ITor.is it a valuable consideration for the purchaser to assume to .pay debts of the fraudulent buyer, in selling the goods, if such payment, by the ■terms of the contract, is to be made out of accounts sold with the goods.</p> <p>4. Same. — A bona fide purchaser may be defined as one who advances a new consideration, surrenders some security, or does some other act which leaves him in a worse position if his purchase should be set aside.</p>

<p>Title by Limitation. — Possession from June, 1874, continuous and adverse, with regular payment of taxes. Holder of legal title died March 16, 1878. This suspended limitations for one year. Suit was brought in trespass to try title September 22,1891. The tract contained 96 acres. He Id:</p> <p>1. Party in possession showed title under statute of limitation of ten years.</p> <p>2. Statute having commenced against the holder of legal title, limitation did' not stop by reason of minority or coverture of his children and heirs.</p> <p>3. An entry made September 23, 1890, upon the land, which was terminated by eviction under action of forcible entry and detainer, had no effect. The title-by possession had matured before the filing of the suit.</p>

<p>1. Trespass to Try Title — Boundary. — It is common practice in this State, in determining the question of boundary lines between adjoining surveys, to' present the issue in a petition in the ordinary form of trespass to try title. Such petition practically presents both the question of title and of boundary. This practice is clearly permissible and can not be seriously questioned.</p> <p>2. Retraxit. — Parties in open court may withdraw from a suit on trial matters which would otherwise be concluded by the judgment.</p> <p>3. Same — Fact Case. — Action of trespass to try title against several defendants. The question involved the location of a boundary line. One of the defendants owned 134 acres of the tract sued for as described in the petition. On the trial it was made known to the court by both parties that the question of boundary alone was in issue. The defendant did not exhibit his title to that portion of the land sued for owned by him. The judgment was for the plaintiff, that he recover the land. Held, that paroi testimony was competent to prove the retraxit; and upon it appearing that boundary alone was put in issue, the rights of the defendant to his land included in the plaintiff’s petition was not concluded.</p> <p>4. Same — Res Adjudicata. — When an issue is expressly withdrawn upon the trial the judgment does not affect it. Rushing v. Runnels, 71 Texas, 352, adhered to.</p>

<p>1. Fellow Servant. — Plaintiff was an employe of the railway and engaged in nailing boards with numbers upon bridges on the road. A train accompanied, partly to convey him in his work. There was testimony that plaintiff's injury was caused by the negligence of a brakeman upon the train. The men were fellow servants, and it was error to refuse an instruction submitting the defense.</p> <p>2. Reasonable Care by Person Injured. — The testimony tended to show that the plaintiff, by using reasonable care, could have avoided danger when injured. It was his duty to adopt the less dangerous mode of escape. It was ■error to refuse to submit the issue as defense.</p> <p>3. Practice — Requested Charges. — Charges asked may not be strictly proper, and yet may be sufficient to call the attention of the court to an omission sought to be corrected. See example.</p>

<p>1. Stipulated Limitation — Unreasonable.—A condition exacted by a -carrier of a shipper, that suit should be filed and service of citation had in such suit within forty days from the loss, is unreasonable; and a demurrer to a plea setting up a failure under it was properly sustained.</p> <p>2. Station Agent of Railway. — A railway station master is by virtue of his position ordinarily the agent of the carrier for the making of contracts to furnish cars at his station upon the road. In order for the railway to relieve itself from liability it devolved upon it to show want of authority in the agent, and that the shipper knew it.</p> <p>3. Same. — Where it is understood that the shipper knew of no limitation upon the authority of the station agent, it was proper for the court to instruct the jury that the agent had the power to contract for the railway for supply of cars, etc., for a shipper.</p> <p>4. Heavy Pressure of Business. — Heavy and unprecedented traffic will not relieve a railway from liability for breach of its contract to furnish cars at agreed time and place for a shipper!</p> <p>5. Measure of Damages — Delay.—Deterioration in value of cattle from shrinkage and loss of weight that resulted from holding cattle awaiting the arrival of cars, beyond the stipulated time at which they were to be furnished, is the proper measure of damages for delay in furnishing ears.</p> <p>6. Same — Delay in Furnishing Cars. — The contention that the necessary expense, if any incurred, in restoring the cattle to the condition they were in before their loss and shrinkage in weight, should be held as the measure of damages, can not be allowed.</p>

<p>Citation Served on Agent of Corporation. — Citation was served upon the local agent of the defendant, a nonresident insurance company. The petition alleged that the insurance money was payable to the local agent and another, as their interest might appear, and they were made parties. Judgment by default was rendered against the insurance company. Motion was made in its behalf, supported by affidavit, to set aside the default on grounds that the local agent was interested adversely to the defendant, and that it had a meritorious defense-on ground of over insurance without the consent of the defendant. Meld, error to overrule such motion. Service on an agent adversely interested would not. bind the defendant.</p>

<p>1. Limitation — Warranty.—Sale of land encumbered by mortgage. Warranty by vendor that he would pay the mortgage. On maturity of mortgage foreclosure suit was brought and decree was rendered for foreclosure. The. vendee bought the land at foreclosure sale for less than the debt, and brought suit for the money expended in taking up the judgment, etc. Held, that limitation did not run from the maturity of the mortgage, that the judgment of foreclosure merged the note and mortgage, and that so long as the lien was valid the obligation of the warrantor to pay remained in force.</p> <p>2. Same. — Ordinarily, limitation begins from the time the loss occurred in a warranty against a lien. The measure of damages in this case being the amount paid to extinguish the encumbrance, this could not be known until it was discharged ; liability would not arise if the lien was barred when paid.</p>

<p>1. Fraudulent Mortgage —Notice of Intent. —The intention on the part of the mortgagor to defraud other creditors will not render void a mortgage or deed of trust taken by a creditor in good faith to secure a pre-existing bona fide debt, without knowledge of the fraud intended.</p> <p>2. Mortgage Valid in Part and Void as to Part. — A mortgage may in case of several mortgagees be declared valid as to some and void as to others. Wallis v. Adoue & Lobit, 76 Texas, 120.</p> <p>3. Purchaser. — Under all circumstances a mortgagee who takes a mortgage to secure an existing debt would not be in the same position as a bona fide purchaser for value without notice, hut he is comprised within the term purchaser as used in article 2465, Revised Statutes. Shoe Co. v. Mars, 82 Texas, 493.</p> <p>4. Conflicting Charges. — It is error to give conflicting and irreconcilable charges.</p> <p>ON REHEARING.</p> <p>5. Fraudulent Intent. — The fraudulent intent of the mortgagor, unless known to the mortgagee, or unless it was participated in by the mortgagee, will not invalidate the instrument, and when some of the mortgagees have the guilty knowledge, or participate in the fraud, and others do not, the mortgage will be-valid as to those who acted in good faith, and invalid as to the others who did not.</p>

<p>1. Charge of the Court not Error, when. —Where appellee sues appellant for loss and damage to a stock shipment, occasioned by negligence and delay on the part of appellants, and such delay in transportation is sought to be excused and ¡justified by appellants on the ground that there was a strike and washouts along the line of road, which prevented the forwarding of the stock, thus causing the loss and damage complained of, Held, when there is no testimony to support a charge that a washout occurred, there is no error in refusing it.</p> <p>2. Connecting Carriers — Partnership, How Proved. — Where a petition alleges a partnership between two connecting carriers, and there is nO' denial of such partnership, verified by affidavit as the statute requires, it need not be proved, but is to be taken as admitted, and under such pleadings the first carrier would be liable for all damages accruing on its connecting line of road.</p> <p>3. Partnership, Who is Liable in. — Where a partnership exists, a tort or violation of a contract committed by one of the partners is the act of both; and either can be sued and held liable if such tort grows out of the partnership business.</p> <p>4. Contract of Shipment — Parol Evidence. — Where goods are shipped under a verbal contract, the delivery afterwards to the shipper of a bill of lading, his attention not being called to its terms, does not conclude him from showing what the actual agreement was under which the shipment was made.</p> <p>5. Same — Fraud in Securing Signatures to. — Where, in a shipment of stock, no written contract is entered into between the shipper and carrier before said shipment is put en route, and after said stock have been started toward their destination, the shipper and his men are called into the depot at a way station late at night and there told to hurriedly sign for transportation, and he is compelled to sign papers which he has not had time to read, owing to the coercion and impatience of the train men, Held, that such conduct is sufficient to constitute fraud in securing the signature of the shipper to a written contract of shipment.</p> <p>6. Same — Verbal Contract — Merger. — A verbal contract can not be merged into a written contract obtained by fraud or misrepresentation.</p> <p>7. Measure of Damages. — Where a common carrier is sued for loss and damages to a stock shipment, the measure of the damages is the value of the stock at the point of destination, as to those killed, and the difference in the market value of the stock delivered, if in an injured condition, and what they would have sold for if they had been delivered uninjured.</p> <p>8. Same — How Estimated. — In calculating damages of this character, where the shipper is to be paid in foreign money, evidence of what the shipper was to be paid in such foreign money and its value in our currency is admissible, and an allegation by the shipper that he was to have been paid in such money is not a necessary part of his petition.</p> <p>9. Notice of Claim for Damages, Sufficiency of. — When a contract of shipment requires a notice of a claim for damages to be made in writing to the carrier’s agent at the point of destination, and such written notice is expressly waived by the agent of said carrier, a verbal notice is sufficient upon which to base a claim for damages.</p> <p>ON REHEARING.</p> <p>10. Assignments of Error, Object of. — An assignment of error not copied into the brief is thereby waived, and can not be considered by this court, as the object of requiring assignments of error to be copied into briefs is to apprise the opposite parties and1 the court upon what counsel relies for a reversal, and it is too late, after the fire of the opposite party has been drawn and the opinion of the court elicited, to permit counsel to fall back on reserved assignments to reinforce a position, as it would be allowing an advantage that will not-be tolerated in any court.</p> <p>11. Same — What is Not. — In an action against a railway company for injuries to stock shipped over its line of road, a charge to the jury, “ that so much of the written contract as seeks to relieve the defendant from the liability of a common carrier, and to relieve it from the consequences of negligence on the part of its agents or employes, is unreasonable and void,” is not erroneous.</p>

<p>1. Executors and Administrators — Statutes Construed. —Under the Eevised Statutes of Texas, articles 290-297, providing that any person interested in the estate of a decedent may have the proceedings of the County Court therein revised and corrected at any time within two years after such proceedings were had, and not afterwards; provided, that infants shall have two years after the removal of their disabilities within which to apply for such revision and correction.” Held, that when such revision and correction is sought to be obtained by means of a writ of certiorari from the District to the County Court, the cause thus brought to the District Court shall be tried de nova, and the proceeding thus provided for is a direct one, and not collateral in any sense.</p> <p>2. Same — Power to Sell — Order of County Court. — The order of sale made by the County Court constitutes the administrator’s warrant of power to sell, and it is his duty, in making a sale, to act in obedience to and in conformity with such power, and report his action under such authority truly to the court.</p> <p>3. Same— Sale by, Invalid and Avoided when. — When an administrator makes a sale indirectly to himself, such sale is invalid as between the parties, regardless of their intention, or whether it was fairly made for an adequate price or not. That the sale was not made in conformity with the order of the Probate Court, nor as reported by the administrator, is sufficient to avoid it in a direct proceeding, it being enough to show that the report of sale was false and fraudulent.</p> <p>4. Same — Action Taken when Sale is Set Aside. — When an administrator or executor sells land, and afterwards an order is entered vacating and annulling the order of the County Court confirming said sale, the amount paid by the administrator from the proceeds of said sale, on claims against the estate, with interest thereon at the rate designated in each claim, together with the cost of administration, less the commissions allowed the administrator for making the sale, with interest at the legal rate, should be or edited to him; and the rental value of the property from the date of sale, less taxes and expense for reasonable repair thereon, up to the time of the trial, should be charged to the administrator.</p> <p>5. Advancements, What are. — Where the husband and wife enter into an agreement “ for the maintenance, support, and education of their child,” under which agreement $2600 is placed in the hands of a trustee, to be managed and controlled as follows, to-wit: Said money to be put out on interest, with real estate security, the net proceeds of the interest accruing when the child becomes of age; said interest to be paid to the wife during the child’s minority for its maintenance and support; when the child reaches his majority $1000 of said sum is to be paid to him; the interest on the remainder to be paid to the wife during her life, and in case of her death before the child the whole sum to be paid over to him. Held, that only the $1000 to be paid at the child’s majority could be considered as an advancement, as the child'might never receive the remainder.</p>

<p>1. Recorded Instruments —Certified Copies in Evidence. — Where the rule in reference to the use of copies of recorded instruments as evidence is purely statutory, and the statute requires an affidavit by the party that the original is lost, or that he can not procure it, Held, that an affidavit made by plaintiff’s attorney, who was authorized by another statute to do so (Revised Statutes, article 5), and which affidavit states, among other things, that neither he nor the plaintiff could procure the same, was sufficient, and stated all that the statute required.</p> <p>2. Review of Pacts on Appeal. — In an action at law, a finding of certain facts by the trial court will not be reviewed or disturbed on appeal, as the testimony upon which such finding was based may have been entirely satisfactory to the mind of the judge who saw and heard the witnesses testify.</p> <p>3. Stale Demand. — Property was purchased in 1869 with the money of D., and the deed taken in the name of S., as their joint act. I). entered into possession with S. and remained there until her death in 1889, using the property as she desired, during which time S. made repeated declarations that his possession was subordinate to her title. Plaintiff, the heir of D., after the death of S. in 1891, sued the wife of S. to try title to the property. Held, that an equitable title, recognized as this was, exercised by a continuous possessory use of the property, does not become stale.</p> <p>ON REHEARING.</p> <p>4. Same — A Statutory Plea, when. — Stale demand in actions for specific performance of contracts has become a statutory plea, and such defense must be specially pleaded, and the disabilities relating thereto must be pleaded.</p> <p>5. Same — Proof Permitted under the Pleadings. — The rules of pleading are unchanged as regards other forms of stale demand; and when the holder of the legal title has acknowledged the equity in such manner as to prevent the latter from becoming a stale demand, it ought certainly be permitted to be proved, if such defense is one that can be established without specific pleading, i. e., under the plea of not guilty.</p>

<p>1. Return on Writ need not Show What Interest is Seized,— When land is sold under a judgment foreclosing an attachment lien, it is not necessary for the return of the officer or the judgment to show it was the land of the defendant, nor to specify the interest sold.</p> <p>2. Judgment — Premature Entry. — The premature entry of a judgment is erroneous, but does not render the judgment void.</p> <p>3. Citation by Publication not Void. — The return on a citation by publication from the date of issuance and the return day showing that less than twenty-eight days have expired, does not render it void, when the officer’s return recites it was published for four successive weeks previous to the return hereof. The presumption is in favor of the officer’s return on a collateral attack.</p> <p>4. Constable’s Deed — Recitals, Variance Between and Judgment.— A constable’s deed reciting a judgment rendered on a different date from the true date, does not render the deed inadmissible, and can be explained by other evidence.</p> <p>5. Writ Levied on Return Day. — A writ of attachment may be levied on return day.</p> <p>6. Homestead — Evidence.—Evidence that at the time of the levy of the attachment on the land in controversy it was the homestead of defendant is admissible in a suit for the land, and this question is not adjudicated unless raised in the foreclosure suit.</p> <p>7. Outstanding Title. — An outstanding title can be shown under a plea of not guilty. A trespasser can show an outstanding legal title.</p>

<p>1. Actionable Negligence Defined. — Negligence constituting a cause of" action, is such an omission by a responsible person to use that degree of care, diligence, and skill which it was his legal duty to use for the protection of another person from injury, as in a natural and continuous sequence causes unintended damage to the latter.</p> <p>2. Same — Essential Element in. — An essential element in negligence is. a duty. If there is no duty there can be no negligence, and to recover in an action for negligence plaintiff must allege and prove facts sufficient to show what., the duty is, and that the defendant owed it to him.</p> <p>3. Same — Duty of Railway as to. — The duty upon the part of a railway company, the nonperformance of which is the essential element of its negligence, is dependent upon the relation between the individual injured and the company, and may be off ected by the mental or physical incapacity of the individual, and in some cases by the circumstances under which the injury was inflicted.</p> <p>4. Pleadings and Proof to Sustain Damages. — Where an action for damages is brought for alleged physical injuries to a child of tender years, while standing in the door of a freight car belonging.to appellant, the defendant company, and the pleadings of plaintiff allege that the child was standing there “ by the invitation of and with the consent and knowledge of the appellant's servants" at the time of his alleged injury, Held, that to make appellant liable to him for its nonperformance of any duty, it must have been within the scope of the authority of appellant’s servants who gave such invitation or consent, if given, to have done so.</p> <p>5. Degree of Care, Measure of. — Where a child of tender years is injured while standing in the door of a freight car belonging to appellant, the defendant company, the degree of care to be exercised by said company depends upon the circumstances under which the child came there, to-wit:</p> <p>1. If he was in the car at the invitation, either express or implied, of the servants of the appellant, it was the duty of appellant and its servants to exercise ordinary care towards the child to prevent him from being injured, and to abstain from doing any act which would reasonably result in his injury, taking into consideration his tender years.</p> <p>2. If he was there merely with the consent and knowledge of appellant’s servants in control of the cars, and engaged in transferring freight, a different rule for measuring the company's duty would obtain. Mere permission or acquiescence of appellant or its servants in his being in the car would create no duty on the part of the appellant except to refrain from acts willfully and knowingly injurious to him.</p> <p>3. If he was not upon the car at the invitation of the company, or by its permission, he was an intruder, and in that event he was not entitled to recover except for injuries knowingly and willfully inflicted.</p> <p>6. Same — A Question for the Jury. —It is for the jury to determine from the evidence under an appropriate charge, where a child of tender years is injured while in a freight car of the defendant company (appellant), whether he was rightfully on the cars, as alleged, or was there merely as a trespasser.</p>

<p>1. Setoff by Vendee Against Assignee for Benefit of Creditors. When a vendee of land owes a purchase money note for the land, and the vendor makes an assignment of his property for the benefit of his creditors, and at the time of the.assignment owes the vendee a debt, the vendee has a right, to bring a suit against the assignee for a release of the vendor’s lien, upon tendering him the balance due on his note, after deducting therefrom the indebtedness of the vendor to him.</p> <p>2. Tender, to Whom Made. — The assignee was the proper person to whom the tender should have been made.</p> <p>3. Right to Pay Note Before Maturity. — A note payable on or before a certain date.can be paid at any time.</p>

<p>1. Pleading — Forgery. —An allegation in an answer that a note had been changed and something added thereto is a plea of forgery which is not required to be verified.</p> <p>2. Partition Among Heirs. — Tn a partition of land among heirs, where one owns the interest of several others, the interests so purchased can not be subjected to the payment of a debt due the decedent by the heir purchasing the interests; only the portion inherited could be so subjected in the partition.</p> <p>3. Wife’s Liability. — Even though the wife sign a note with her husband, she is not liable thereon, unless it was executed for necessaries, or for the benefit of her separate estate, and her separate property can not be charged with the payment thereof in partition.</p> <p>4. Advancement. — A loan by a mother for which her daughter and her husband execute their note with interest payable monthly, is only a debt due by the husband and wife, and not an advancement.</p>

<p>1. Contributory Negligence — Trespasser.—In an action against a railway company for damages for personal injuries, where it appears that the plaintiff was injured while walking on the track, and there is no evidence showing that he had permission to be there, it must be held that he was trespassing upon the railway company's track when injured, and therefore guilty of contributory negligence.</p> <p>2. Negligence. — The law presumes that a person walking on a railway track • will leave the same in time to prevent injury from an approaching train of which he has knowledge, or should have, by the ordinary use of the senses of hearing and seeing, and the managers of a train may act upon this presumption. In this case appellee, plaintiff below, was seen by the engineer and fireman for some distance, alternately walking and running ahead of the train, but from his conduct it was evident to said employes that he was aware of the approaching train, and was apparently in possession of the ordinary faculties common to mankind. There is no circumstance appearing from the record that was calculated to cause the engineer to believe or warn him that appellee was not going to leave the track in time to prevent being struck by the engine, and when he did realize it he did all he could to prevent injuring appellee. It is held that it was not unreasonable for the engineer to presume that the appellee would get off of the track in time to prevent being hurt, and that the facts all show that the plaintiff contributed to his own injury, and that there is nothing to show liability on the part of appellant.</p>

<p>Verbal Lien on Personal Property — Bona Fide Purchaser — Notice— Bills of Lading. — Appellants advanced money to Williamson with which to buy cotton, with the verbal understanding that the cotton bought should stand pledged for the money advanced. Afterward a quantity of the cotton so-bought by Williamson was contracted to be sold to Bessling & Co., with the agreement by appellants, Williamson, and Bessling & Co. that the money should be paid to appellants. Williamson took bills of lading for the cotton, naming Bessling & Co. as consignors and consignees. Instead of sending the bills of lading to appellants, as he had agreed to do, he procured an advance upon the cotton from the First National Bank of Corsicana, to which he executed his draft on Bessling & Co. with the bills of lading attached. Bessling & Co. declined to-pay the draft and set up no further claim to the cotton. After the institution of this suit the cotton was delivered by the receiver of the railway company to said bank upon the bills of lading, and sold for its account for less than the amount advanced by it to Williamson. In an action by appellants for the value of the-cotton, Held:</p> <p>1. If appellants had a verbal lien which might be good as between the parties, yet, as they were not in actual possession of the property, such lien would not, under article 3190b, Sayles" Statutes, be valid as against the First National Bank, which was a subsequent purchaser in good faith with no actual notice of appellants' claim.</p> <p>2. The fact that the bills of lading were in the name of Bessling & Co. was not sufficient to put the bank upon notice of appellants’ claim.</p> <p>3. As the bills of lading were never delivered to Bessling & Co., nor to appellants, the former never secured title to the property by a perfected purchase, and the latter never secured a perfected lien; for they had neither actual nor symbolical possession of the property, or any instrument of writing whatever showing a valid lien.</p> <p>4. Bills, of lading are not in the strict sense of the term negotiable under the law merchant; but for a great number of years their possession by the shipper has been regarded as prima facie evidence of the ownership of the goods shipped, and their delivery upon advances made is a symbolical delivery of such property.</p>

<p>1. Constitutional Law — Jurisdiction of District and County Courts. — Construing section 8 of article 5 with section 16 of article 5 of the State Constitution, which are in conflict, it is held that the District Court has no jurisdiction to try the right of property levied upon under a distress warrant, the value of the property as assessed by the officer being exactly $500. In such cases the County Court has jurisdiction, and the affidavit and bond for the trial of the right of property should be returned to that court. So held, not only under the rule of construction that where reconciliation is impossible between provisions, and there is a clear, evident repugnancy, the latter vacates the former, but for the stronger reason that section 16 is clearer and fuller than section 8, and draws the line of demarkation between the jurisdictions of the two courts, which is not attempted in section 8.</p> <p>2. Same — Trial of Right of Property. — In suits for the trial of the right of property levied upon by any writ of execution, sequestration, or attachment, and the value of the property is equal to or exceeds $500, the District-Court has jurisdiction, under special provision of section 8, article 5 of the Constitution, as decided in the case of Erwin v. Blank, 60 Texas, 583. The jurisdiction of the District Court in such cases being treated as an exception to the general rule, such exception or special provision can not be enlarged by construction so as to embrace other writs not there mentioned.</p> <p>3. Same. — Under section 22 of article 5 of the Constitution the Legislature had the power to enact the statute (Sayles’ Statutes, article 3841), providing in such cases that where the value assessed is more than $200 and does not exceed $500 the writ shall be returned to the proper County Court, and where the assessed value is more than $500 the writ shall be returned to the proper District Court, in so far as the same is not in conflict with the special provisions of section 8, article 5, of the Constitution, as decided in Erwin v. Blank, supra.</p>

<p>1. Imputed Negligence — Parent and Child. — The negligence of the parent in exposing the child to danger can not be imputed to the child, to prevent a recovery for the child’s benefit.</p> <p>2. Contributory Negligence of Child — Discretion. — In case of a child suing for damages resulting from injuries inflicted through negligence, the degree of care required of it is that which would be suggested by the discretion of an ordinarily prudent child of the same age under like circumstances.</p> <p>3. Same — Case in Judgment. — In this case a girl, 7 years of age, while being led over a railway trestle under direction of her mother, was knocked off the trestle by a train. In an action for damages for personal injuries sustained by her, prosecuted by her father and next friend for her benefit, it is held, that under the evidence she should not be held guilty of contributory negligence, and that her tender years alone should exempt her from liability for her conduct.</p>

<p>1. Boundaries — Field Notes — Course and Distance. — Where there is a call in the field notes of a younger survey for the west line and southwest and northwest corners of an older survey, the west line of such older survey can not he run at a different variation than that called for in its field notes to reach an unmarked tree which can not be clearly identified as the original corner. In such case the west line of the older survey should be run at its proper course and distance.</p> <p>2. Same. — See opinion giving reasons for the holding that the identity of a tree relied upon as fixing the northwest corner of the Mclntire survey is not sufficiently identified to require a change in the variations of the lines of that survey as fixed by surveyors more than fifty years ago.</p>

<p>Liability of Master for Act of Servant — Ejection of Passenger— Brakeman — Rules of Company. — A boy 13 years of age was riding upon a freight train by the permission of a brakeman to whom he had paid his fare. Just before reaching his destination, he was ordered by the brakeman to jump off the moving train, and on his refusal to get off until he got to the depot, the brakeman threw a piece of coal at him. which struck him upon the head and knocked him from the train. In an action by the boy’s guardian for damages for the resulting injuries to the minor, Held:</p> <p>1. It being an issue of fact whether it was within the scope of the bralceman’s employment to eject persons from the train, and there being evidence upon both sides of the issue, and the court in its main charge having placed the burden of proof upon the plaintiff, generally, a special charge to the effect that the brakeinan had no implied authority to eject persons from the train, was properly refused.</p> <p>2. It is not necessary that the servant should have authority to do the particular act resulting in the injury. The particular act may be directly in conflict with the express orders of the master, yet if it be done in furtherance of the master’s business and to accomplish that which has been committed to him by general or special authority, the master will be held liable for the consequences.</p> <p>3. It having been proven that it was against the rule of the company for persons to be taken upon freight trains as passengers, and that the conductor had no right to relax the rule, it was error for the court to charge the jury, in effect, that if the conductor consented for the boy to ride, or if he knew that the boy was upon the train, and did not object to it, that the company would be liable for the act of the brakeman in striking him and causing his injuries, regardless of whether the act was done within the scope of his employment or not.</p> <p>4. If the rules of the company, in good faith, forbade persons being carried on freight trains, and the conductor had no authority to relax the rule, and the boy took passage upon the train with a knowledge of these facts, the consent of the conductor would not make him a passenger, rendering the company liable for injuries received by him for wrongful acts of the servant done without the scope of his employment.</p> <p>5. The age and discretion of the boy should be considered by the jury in determining whether he in good faith got on the train believing that he had a right to ride on it.</p>

<p>1. Chattel Mortgage — Statute Construed. — Construing section 1 of article 3190b, Sayles’ Statutes, it is held, that it was the intention of the Legislature that when the property is not delivered contemporaneously with the execution of the mortgage thereon, the mortgage should be without effect as to creditors until it is deposited with the proper officer for filing, etc.</p> <p>2. Same — Attachment — Priority of Liens. — The lien of a creditor fixed by the levy of a writ of attachment upon personal property after the execution and .delivery of a mortgage thereon, but before the mortgagee got actual possession of the property, and before the deposit of the mortgage in the county clerk’s office, is superior to the mortgage lien.</p>

<p>1. Mechanics’, Laborers’, etc., Liens. — The statute (Sayles5 Civil Statutes, article 3179a) gives a lien to “mechanics, laborers, and operatives who have performed labor or worked with tools, teams, or otherwise in the construction, operation, or repair of any railway, locomotive, car, or other equipment of a railway, and to whom wages are due or owing for said work," but does not give a lien for material furnished for such construction or repairs.</p> <p>2, Case in Judgment. — Appellee performed labor to the value of $56 in preparing ties for one Doak, who was a tie contractor getting out ties under a contract with appellant, and the ties were used in repairing appellant’s road. Following Railway v. Mathews, 75 Texas, 92, Held, appellee did not have a lien upon appellant’s road. In this case Doak was not a contractor to construct or repair the railway, but was merely a contractor to furnish, material for that purpose. Appellee, therefore, did not perform labor or work in the construction or repair of the railway, but merely performed labor upon material to he furnished by Doak for the construction or repair of the" same. Appellant is not liable to appellee.</p>

<p>1. Abatement — Cause of Action Merged into Judgment —Parties. — In an action against appellant by appellee, who was a passenger suffering from rheumatism upon one of appellant’s sleeping cars, for damages for its refusal to prepare and allow him to occupy his berth as a bed in the daytime, judgment was rendered in favor of appellee for §1500 in the court below. An appeal was perfected by appellant, and afterward appellee died. Upon appellant’s motion that the suit be abated on the ground that the cause of action is not one which survives, and upon motion of counsel for appellee that the heirs of appellee be allowed to make themselves parties, Held, under article 1044. Bevised Statutes, it is clear that the judgment stands now as the cause of action, and until set aside the motion to abate can not be maintained; and new parties are not necessary or proper in this court.</p> <p>2. Measure of Damages — Mental Suffering. — In the absence of evidence of mental suffering, it was error for the court to charge the jury, that if they found for the plaintiff (appellee), in estimating the damages to take into» consideration the mental suffering plaintiff sustained.</p> <p>3. Same — Charge.—It was claimed by appellee that in the contract made with the company he had a right to use the berth as a bed to lie upon for the whole trip. Appellant claimed that the purchase of one berth did not allow him the use of the same as a lengthwise bed in the daytime. Held, if it be conceded that appellee was right in his interpretation of the contract, and is entitled to damages, the measure thereof is such only as directly and naturally flow from a breach of the contract, and such as were reasonably within the contemplation of the parties. In the absence of any harsh or unkind treatment, or even of injury inflicted, it could not be said that the parties reasonably contemplated mental suffering for the breach of such a contract, or that such mental pain or suffering" would flow naturally from such breach, and in the absence of testimony upon this issue it was error for the court to charge upon it.</p> <p>ON MOTION FOR REHEARING.</p> <p>4. Same — Excessive Verdict. — Additional conclusions of fact and law are found, and it is held, that in the event appellee is entitled to recover thereunder, the verdict and judgment are, in the opinion of a majority of the court, excessive to the amount of $1150, and that the charge of the court below in submitting to the jury mental suffering as an element of damages when there was no evidence showing any mental anguish or suffering, was erroneous, and that for this reason the judgment should be reversed and the cause remanded.</p>

<p>Executory Contract — Election to Claim Purchase Money — Former Appeal — Pleading — Parties — Executors. — Appellants, as heirs, devisees, and legatees under the will of James Park, the vendor of the land, brought this suit against Horace Summerhill, the original vendee, and the appellees, as claimants under, said Summerhill, and by their last amended petition offered to convey upon the payment of the purchase money, and prayed in the alternative for a judgment for the land, or for the unpaid purchase money and an enforcement of the lien thereon. Upon the first trial the appellants, plaintiffs below, in open court abandoned their claim for the purchase money and proceeded to judgment upon J. P. Hanner’s claim to the property as land devised to him by the will of James Park. The case was appealed to the Supreme Court and the judgment reversed and remanded, after which no amended pleadings were filed by appellants. Upon the second trial in the District Court the judge instructed the jury to return a verdict in favor of appellees, defendants below. Held, in this there was no error, because:</p> <p>1. The claim for purchase money was eliminated from the case by the abandonment thereof, upon the first trial, by appellants, who proceeded to trial the second time upon their pleadings as they existed at the first trial after such abandonment; and the Supreme Court had decided that appellants could not recover the land, inasmuch as their testator, James Park, by bringing suit in Alabama against Horace Summerhill, the original vendee, on the purchase money note, elected to affirm the sale and recover the purchase money, and thereby abandoned any claim to or right to recover the land.</p> <p>2. The Supreme Court on appeal also decided that appellants and the wife of James Park were the owners of the claim sued on, under the following provision of the will of James Park, to-wit: 111 will all the money I have or may have at my death, or money arising to me, to be equally divided between my wife and Dr. J. P. Banner's wife, my debts to be paid first,’’ and suggested that they had a lien on the land which could be foreclosed by plaintiffs’ amending and making Mrs. Park a party plaintiff to the suit. Ho amendment was made making Mrs. Park a party, and as she is a joint owner of the claim sued on, she was a necessary party plaintiff, and as she was not made such, a recovery can not be had by appellants.</p> <p>3. Appellants can not recover by virtue of J. P. Banner’s executorship under the will, because he does not sue in that capacity, but appellants, plaintiffs below, sue as heirs, devisees, and legatees of James Park, deceased.</p>