Volume 61 — Texas Reports

Tried below before the Hon. W. H. Ford. In this case the court on application permitted a blank left in the date of the writ of attachment to be filled, the correct date being manifest from other portions of the writ. A motion to quash was filed: ... 2d, because the writ of attachment was not dated; . . . 4th, because there was no sufficient levy in the writ of attachment; which was overruled.

Tried below before the Hon. I. B. McFarland. Suit by appellee to recover damages of the railway company for injuries to his son, seven years old, received while he was engaged in play, with other boys, upon a turn-table of defendants, at Brenham, Texas. At the September term, 1881, a demurrer to the petition was sustained and the cause dismissed; but, on appeal, this judgment was reversed. See 57 Tex., 123.

<p>Appeal from Grimes. Tried below before the Hon. John R. Kennard.</p>

Tried below before the Hon. V. H. Ford. Suit by appellant in the district court of Jefferson county. The cause was tried on a general demurrer and a special exception of defendant to plaintiff’s petition, the latter going to so much of the petition as sought a recovery of punitory damages against the defendant corporation.

<p>Error from Tyler. Tried below before the Hon. W. H. Ford.</p> <p>John W. Busby brought suit against M. L. Cline, administratrix of the estate of W. B. Cline, deceased, alleging that W. B. Cline had died and was a citizen of Tyler county; that administration was pending in that county upon his estate; that Cline, deceased, was an attorney at law; that he, Busby, placed certain school vouchers in Cline’s .hands for collection as attorney, which vouchers were described; that Cline took the vouchers as attorney to collect, and promised to collect them and to pay the proceeds to Busby, or to appropriate the same to the payment of a certain note, executed by Busby to Sutton, which note Cline held for collection. Suit was instituted on this note in the district court of Tyler county, on the 12th day of October, 1875, by W. M. Lewin; that Cline collected on said drafts §237.32, but failed and refused to credit the note or pay that sum to Busby; that a trust relation existed between Busby and Cline, and that Busby did not know and could not have known of the collection and failure to pay, etc., until January, 1877; that Busby presented his account against the estate and to the administratrix for allowance as a claim against said estate, and that the same was rejected by her.</p> <p>The court permitted Busby to give evidence as to transactions between the deceased, Cline, and himself in regard to collecting the school vouchers and application of the money.</p>

<p>1. Presumption of a power.— Though the statute provided that the sale of real estate belonging to a county should be made by public auction by some commissioner appointed for that purpose (Pasch. Dig., 1058), yeta grantor donating land to a county could, in the instrument creating the right, impose conditions for its disposition by county officers in some other manner; and where the conveyances of such land thus granted by an individual to a county were made for portions thereof for a period of over forty years by the chief justices and county commissioners of the county, and the records had been burned, leaving no evidence of the character or terms of the original grant to the county, the presumption will be indulged that these officers acted in pursuance of the powers contained in the grant to the county.</p>

Tried below before the Hon. John. B. Kennard. Suit by the appellee in trespass to try title to recover the east half of the J. D. Parker pre-emption for one hundred and sixty acres of land. Appellee alleged that he was owner in his own right of the east half of the Parker survey, and that he was ousted of his possession on the 6th day of February, A. D. 1880, by appellant; he alleged damages at $200.

<p>1. Depositions — Examination of witness.— It is proper to ask a witness on a cross-examination any question that may be pertinent to the matter to be decided by the jury; and any fact to show a bias in the evidence of the opposite party is admissible whether the same be offered by the examination in chief or on cross-examination.</p> <p>2. Same.— This rule is not confined to such questions as will show bias of the witness; for the purpose of showing this, or falsity in his main statement, a witness may be examined upon collateral matters; but it extends to an examination into all matters connected with the res gestee.</p> <p>3. Cross-examination of witness.— On a cross-examination inquiry may be made into the situation of the witness in respect to the parties and to the subject of litigation,— his interest, his inclinations and prejudices, his means of obtaining a certain and correct knowledge of the facts about which he testifies, the manner in which he uses those means, his power of discernment, memory and description, may be fully investigated and ascertained.</p> <p>4. Cross-examination. — • While the rule that only such evidence as is relevant to the matter in issue is admissible applies to the cross-examination as well as the examination in chief of a witness, it is not applied with the same strictness to a cross-examination.</p> <p>5. Witness.— Any fact which bears on the credit of a witness is a relevant fact; and this whether it goes to his indisposition to tell the truth, his want of opportunity to know the truth, his bias, interest, want of memory, or other like fact.</p> <p>6. Practice — Deposition.— That cross-interrogatories to a witness sought information regarding matters to which the witness testified in a former deposition affords no reason for striking them out.</p> <p>7. Deposition. — See opinion for facts under which it was held that the taking of the deposition of a witness by the same party a second time in the same suit was an irregularity, unless done by leave of the court. When done, it is the right of the adverse party not only to question the witness about all such matters as were covered by the direct interrogatories in the second deposition, but also about all matters about which the witness testified in his first deposition.</p> <p>8. Verdict.— When there is evidence before the jury, upon which, under the instructions, the jury would be authorized to return a given verdict, it cannot be said that such verdict is contrary to the charge given.</p> <p>9. Charge of court.— In an action for damages against a railway company for injury done, a little child by the company’s negligence in leaving unfastened a turn-table, whereby the child playing on it was hurt, there was evidence tending to show that the table was’ well fastened, that it could not have been unfastened by a child of tender age, and that it was unfastened by those old enough to be responsible for their negligences. Held, it was the duty of the court to give an instruction fairly submitting to the jury whether the servants of the corporation had so fastened its turn-table that children non mi juris could not have unfastened it and used it.</p>

Error from Burleson. Tried below before the Hon. Spencer Ford. Suit by James Connolly, J. C. Womble and J. L. Dean against Edwards and one B. B. Hunt, constable, etc., as defendants, to enjoin an execution in favor of the appellant against the appellees, based upon a forfeited claimant’s bond, executed by Connolly as principal and the other appellees as his sureties, and a judgment of the court thereon on a trial of the right of property.

Tried below before the Hon. W. H. Stewart. The suit was brought by appellee to recover damages for injuries received in being beaten by appellants. There was nothing peculiar either in the brawl out of which the suit grew, or in the instructions given or refused, that illustrates any principle which is worth the time or space given to explain the proceedings below. The charges given, as well as those refused, were quite lengthy, and in view of the opinion are not inserted.

Error from Grayson. Tried below before the Hon. Joseph Bledsoe. On January 20, 1879, John Brown (the intestate of defendant in error, Ellen Brown) brought suit in the district court of Grayson county against O’Neill, plaintiff in error, and cited him. by publication. He alleged that he and O’Neill were partners; that the latter was indebted to him in various sums of money, on account of the partnership business.

Tried below before the Hon. Jo Abbott. Appellant, guardian of the minors Joseph Balch, S. B. Balch and Maggie Balch, brought this suit on the 10th of May, 1881, against appellee, defendant below, for the sum of $6,000, $2,000 for each of said wards.

Tried below before the Hon. D. M. Prendergast, special judge. On July 22, 1882, appellant brought this suit against appellee to vacate and annul a judgment of partition, in a suit of D. M. Brown, against appellants, rendered May, 1877. The judgment, it is claimed, was procured by and through the fraud of D. M. Brown, deceased. D. M. and L. A. Brown, the father and mother of some of the appellees, and the grandparents of the others, were married in 1840.

Error from Grimes. Tried below oefore the Hon. John R. Kennard. Defendants in error, as landlords, on the 18th of November, A. D. 1882, sued out a distress warrant against their tenant, A. D. Jones, for the amount due them for rent and advances during that year. On the 20th of November, 1882, they caused the warrant to be levied upon four bales of cotton found at the gin of R. T. Flewellyn, and upon twenty-six bushels of corn found on the rented premises.

Tried below before the Hon. W. H. Ford. Appellee, as county judge of Orange county, and for the use of the county, brought this suit in the district court, September 12,1882, against W. E. Eeed, late county treasurer of said county, and appellants as sureties on his official bond, to recover §835.77 and interest, for which amount it was alleged the treasurer had defaulted.

Tried below before the Hon. D. M. Prendergast, special judge. On June 1, 1881, appellee brought this suit against appellants as the heirs of D. M. Brown,, deceased.

Tried below before the Hon. John C. Bussell. Two suits in trespass to try title, brought in the district court of Webb county, by Teresa P. de Benavides, Antonia Pisana Bamos and husband, Ygnacio Bamos, and Pamfila Dovalina Bamon and husband, George Bamon, against' F. Farias, and Juan Ortiz and F. Farias, as defendants, were ordered, pursuant to agreement of the parties, by said district court, at its October term, 1883, to be consolidated, and both parties required to…

<p>1. Parties — Estates of decedents.— Though the legal representative of a deceased person’s estate is the proper party to bring suit for the recovery of a debt due the estate, since this rule has its foundation in the necessity of protecting the creditors of the estate, it does not exist for the benefit of debtors, and is subject to exceptions. The legal representative is entitled to the property of the estate only in a qualified manner and for a specific purpose; for all other purposes the title is in the heir from the moment when descent is cast.</p> <p>2. Parties — Estates of decedents. — When over three years had elapsed since the death of the intestate, whose estate was alleged to have been insolvent, and during which time no one had applied for administration thereon, the surviving widow brought an action of debt on a judgment which was the community property of herself and of her deceased husband, and which was rendered nearly seven years before his death. Held, that under the facts stated in the opinion the surviving widow could maintain the action. Following Evans v. Oakley, 2 Tex., 185.</p> <p>3. Same. — Independent of the special facts of the case, the wife, as survivor of the community estate, could, being the owner of the judgment rendered in the life-time of her deceased husband, preserve the debt, against which limitation was nearly complete, by an action in her own name.</p>

Tried below before the Hon. W. J. Win-gate, special judge. The following statement, made by appellant, was concurred in by appellees as substantially correct: Suit for damages for breach of contract, brought by J. W. McCauley.

Tried below before the Hon. C. C. Potter. December 8, 1877, appellant brought trespass to try title against appellees, except Herndon and Hood, to recover the land described in the petition, claiming title by virtue of a patent issued to him May 10, 1856.

Tried below before the Hon. John C. Russell. Suit by appellant to compel the rescission of the covenants of a. deed, and, should the defendant elect to receive the tender of purchase money made, then to compel a reconveyance of the land. General demurrer, which was sustained by the court, with leave to amend. Appellant declining to amend, final judgment dismissing the petition.

Tried below before the Hon. I. B. McFarland. On the 19th day of January, 1875, B. F. Dodson instituted this suit in the district court of Washington county against appellants T. J. & G. W. Newman for $20,000 damages, for an assault alleged to have been committed by them. At the September term, 1875, T. J. & G. W. Newman answered by general and special demurrers, by general denial and special answer.

De Witte. Tried below before the Hon. H. Clay Pleasants. On the 29th of March, 1878, in the district court, of Lampasas county, R. S. Willis, for use of P. J. Willis & Co., recovered a moneyed judgment, as stated in appellant’s brief, against appellee Mark-ward, a resident of Lampasas county, and Gustave Schleicher, a resident of De Witt county.

Tried below before the Hon. J. C. Russell. The facts on which the principles announced in the opinion are based are sufficiently manifest from it. It should, however, be stated that the causes for new trial urged on the motion were to the rulings of the court made in the cause, to which rulings no bills of exception bad been taken or otherwise excepted to.

Tried below before the Hon. I. B. McFarland. January 13, 1880, appellee brought trespass to try title against appellant and Dock Sharp, to recover twenty acres of land adjacent to the town of Caldwell.

Tried below before the Hon. Wm. H. Stewart. Henry Seeligson & Co. brought suit against B. M. Hobby by attachment to recover the amount of a note sued on for $1,374, and obtained a writ of attachment which was levied on certain lots; also a writ of garnishment against the Galveston City Bailway Company, which was served on 9th August, 1877.

Tried below before the Hon. W. II. Ford. The suit was by the husband, L. C. E. Scott. The character of the petition, a demurrer to which was overruled, is sufficiently indicated by the opinion. Though there was much evidence on both sides showing that neither of the parties was very amiable, there was no pretense that the virtue of either was brought in question by the other, or that any violence had been used by, or was apprehended from, either.

<p>1. Pleading.— Though a pleading for want of specific averments may be bad on special exception, yet if it states, though in terms too general, a cause of action prima facie, an exception to it which fails to point out specifically the defect in the pleading should be overruled. See opinion for an illustration of this rule.</p> <p>3. Assignments of error.— Appellant relied on the following assignments of error: . . . “II. The court erred in overruling the motion of defendant for a new trial: 1. Because the verdict was contrary to law. 3. Because the verdict was contrary to the instructions of the court. 3. Because the verdict was contrary to the evidence. III. The court erred in overruling the motion for a new dial, because, under the law and the instructions of the court, the verdict was not supported by the evidence.” Held: That, in view of the statute and the rules of court, the assignments of error were too general to receive consideration.</p>

Tried below before the Hon. I. B. McFarland. Suit by appellant Carlisle against Sommer as garnishee.

Tried below before the Hon. W. H. Stewart. The appellee Green sued, as plaintiff, Le Gierse & Co., G. W. Bird & Co. arid Focke & Wilkins, as defendants, to recover from them the rent due under a written lease from Green to Bear Bros. & Hirsch, claiming that the defendants in the suit were liable to Green for the rent due, by reason of the fact that the defendants in the suit were purchasers of the leasehold interest of Bear Bros. & Hirsch at a sale made under a judgment of…

Tried below before the Hon. A. T. McKenney, special judge. Suit brought September 21, 1883, by Wm. Withers to recover the Amos Donovan league of land. Plaintiff alleged title by regular conveyances from Donovan and also by limitation; and as against defendants Frisby and Gibson, he set up a former judgment. The defendants, on October 28, 1881, pleaded not guilty.

Tried below before the Hon. Everett Lewis. Action for damages against J. L. Townsend, J. E. Wallis and Henry Landes, of Galveston county, for the alleged wrongful entry of appellees into appellant’s store-houses and warerooms, and forcibly taking therefrom goods, the property of appellant, of the value of $1,685.85; for alleged wrongs and trespasses done and committed by appellees in forcibly taking possession of and carrying away said goods without appellant’s consent,…

<p>Appeal from Kaufman. Tried below before the Hon. Green J. Clark.</p> <p>Appellee brought suit the 28th of October, 1881, charging that defendant so negligently managed its cars, while crossing a public street in the town of Terrell, as to run them near and against a certain wagon, of the value of $75, and a set of double harness, of the value of $10, and two mares of the value of $100 each, the property of plaintiff, and that by reason thereof the mares became frightened, ran away and injured themselves, broke and destroyed the wagon and harness, and lacerated and broke plaintiff’s left arm, all to his damage, $5,000.</p> <p>Plaintiff filed a trial amendment, by which he alleged that “By reason of the wrongs done by defendant, as charged in his original petition, his arm was broken, his elbow dislocated, his shoulder bruised and greatly injured, and many other wrongs inflicted, all of which were permanent and lasting, causing him to suffer great pain, both in body and mind, and his arm to become wholly lost to him, and large sums of money for medical attention and other expenses of sickness consequent thereupon were expended, and to lose much time from his daily employment, to his great damage; that his wagon was damaged, and his horses,” etc.</p> <p>Answer: 1. A general demurrer. 2. A general denial. 3. A plea of contributory negligence, resulting from plaintiff’s driving his team up to and against the train of defendant while it was in motion, on its own track, and by reason of the team of plaintiff becoming frightened at the train and plaintiff losing his control of it. That plaintiff’s team had not reached the track of defendant’s railroad on which its train was being moved, when it became frightened and turned and ran away, and it was not, at any time, on defendant’s road-bed or struck by defendant’s train; and plaintiff’s team not being on defendant’s track, its servants carefully ran its train on its own track, without any knowledge that plaintiff or his horses would become alarmed, or lose control of themselves.</p> <p>Verdict and judgment in favor of plaintiff for $2,000.</p> <p>The pleadings were not copied into the record, but there was an agreement of counsel that they were sufficient to authorize the evidence which was introduced and to support the judgment rendered.</p> <p>Only a small part of the charge of the court was given, but it was agreed that the charge was unobjectionable in that part complained of by defendant, so far as it related to damage of plaintiff’s property.</p> <p>Special charge IsTo. 3, requested by defendant and refused by the court, reads: “ That defendant had the right to use its own track, and its servants managing its train would have the right to presume, if its track was clear, that it would remain so; and if its servants saw plaintiff driving his team toward the crossing over its track, they had the right to act on the presumption that he would not drive his team on to its track, or in contact with its train, or in dangerous proximity to it; and if you believe from the evidence that plaintiff was not on the track that defendant’s engine.occupied, and that his injury, if any, was occasioned by his drivihg his team up to or against defendant’s train, by reason of which his horses, or one of them, took fright and ran off, and occasioned such injury, then your verdict should be for the defendant.”</p> <p>The court had charged the jury as follows:</p> <p>That to entitle plaintiff to recover he must not have contributed to his said injuries and damages, if any, by his own carelessness, negligence and want of precaution, and, should the jury believe from the evidence that the plaintiff, by want of care, diligence or precaution on his part, contributed to his said injuries, losses and damages, then and in that event they will find for the defendant.</p> <p>“Negligence is a question for the jury, to be determined from the evidence before them.</p> <p>“ Should the jury believe from the evidence that the plaintiff knew, or that by the use of reasonable care, diligence and precaution he might have known, that said engine was in motion in time to have prevented his said injuries, losses and damages, if any, you will find for the defendant. But, on the other hand, should you believe from the evidence that the agents or servants of defendant in charge of said engine knew, or that by the use of reasonable care and diligence they might have known, of the situation of plaintiff in time to have prevented such injuries, losses and damages, if any, then and in that event you will find for the plaintiff.”</p> <p>The tenth special charge refused was as follows:</p> <p>“ In this case, if, under the law and evidence, you conclude that the plaintiff is entitled to recover any sum or damages, then you are instructed that he is only entitled to recover such sum as the evidence shows he was damaged in his person or property, including compensation for such bodily pain as he suffered as a result of the injury to his person.</p> <p>“ In regard to compensation for his property, that will be regulated by value of the property destroyed, or the injury done to that not entirely destroyed, to determine which you will look to the evidence before you.</p> <p>“ As to the injury done to his person, you will also look to the evidence.</p> <p>“ In the absence of proof of the value of the labor of his arm, and of the value of his time while it was useless or disabled, and of what he could make by its use in his occupation or calling before its injury, and by such use in its present condition, you cannot include in your estimate of damages any sum for pecuniary damage done to him by reason of the loss of the use of his arm, either totally or partially, in his occupation or employment in life.</p> <p>“ In estimating the value of bodily pain, you should keep in view the character, duration, etc., of the injury. You are not at liberty to find the same amount for one character of pain as another, but, without passion or prejudice, considering the character, intensity and duration of the pain, find, according to your best judgment, such sum as you believe proper and compensatory under the circumstances of this case.”</p> <p>The court had charged the jury as follows:</p> <p>“ If the jury believe from, the evidence that the plaintiff’s arm was broken, wounded and lacerated, and that plaintiff suffered bodily pain by reason of such injuries to his arm, then, in addition to the injuries done the plaintiff’s property, the jury will assess the plaintiff’s damages for such injuries to his person at such fair, just and reasonable sum as the jury may consider reasonable and proper, under all the circumstances of the case.”</p> <p>“ The jury will assess the plaintiff’s damages for such injuries to his arm at such fair, just and reasonable sum as the jury may consider reasonable and proper, under all the circumstances of the case.”</p> <p>The parties agreed that the charge was unobjectionable so far as it related to the damage to the plaintiff’s property.</p> <p>The assignments of error were as follows:</p> <p>1st. In overruling the motion for a new trial on the ground that the verdict was for an excessive amount.</p> <p>2d. Befusing to give each one of the special charges requested by defendant, numbered from 1 to 10 inclusive.</p> <p>The evidence was conflicting on many points.</p> <p>The evidence showed that Virginia street was one of the most public streets in the town; that plaintiff entered this street at a point about one hundred yards from the crossing. There was evidence. showing that the engine was then standing by the depot; that plaintiff watched and listened for a signal that the engine was to move, before undertaking to cross; that no signal xvas given; that others were crossing at this point at the same time; that tho hind wheels of a xvagon loaded xvith three bales of cotton, and drawn by four horses, passed from the track just as plaintiff’s team were in the act of stepping upon it; that at this point the engine, without any signals having been given, moved forward toxvards the crossing at rapid speed; that the valves were thrown open and steam escaping; that plaintiff’s team became frightened, ran axvay, and thus caused the injury; that plaintiff did all in his power to prevent .the injury done.</p> <p>The evidence showed that plaintiff’s arm was seriously injured; that it was dislocated at the elbow; that the bone was broken and stove back; about one-half inch of: the. bone .is gone; that the ligaments were torn loose, and had never grown back; can lift no heavy xveight with it; cannot plow; plaintiff suffered much pain because of the injury; cannot elevate this arm; the injury was a permanent one. His occupation xvas that of a farmer.</p>

Tried below, by the Hon. A. C. Turner, special judge. The following, adopted from the brief of appellants, together with the further statements contained in the petition, will sufficiently show the nature and result of the suit: On the 11th day of November, 1875, George Lary and others, the appellants in this case, except Bledsoe, Head, Taylor, Oneal and Parker, filed their petition in trespass to try title against a number of persons, among whom were appellees J. L. Spencer…

Tried below before the Hon. John R. Kennard. The fact, stated in the opinion, that the charges given, and those refused, to which exceptions were taken, cover about thirty pages of the record, precludes their insertion, nor, in view of the opinion, which announces principles by which their correctness was to be tested, is it deemed necessary. The original pleadings seem to have been lost, and there is nothing in the record to determine when the original petition was filed.

<p>Appeal from Galveston. Tried below before the Hon. Wm. H. Stewart.</p> <p>The petition of French alleged that appellee was the owner of lot Ho. 2, in block 384, in Galveston, and said lot was his homestead and had been his homestead, on which he and his family resided since 1873; that after appellee had purchased the lot and established his homestead on it, appellant bought lot Ho. 1, adjoining appellee’s lot on the west; that soon after his purchase, appellant erected on that lot three houses, all built close to each other, without yard room, and in close proximity to appellee’s homestead; that immediately after the completion of the houses in the year 1878, appellant “ began to rent them to public and notorious prostitutes and lewd women, to be used by them as places of prostitution, and knowing that they were to be so used, and the houses had constantly since been rented by defendant and his agents to that character of persons, and by his consent occupied by them, and have been the resort of prostitutes and base men and women, who have resorted there for purposes of prostitution, which has been well known during all of said time to defendant;” that plaintiff had used all means in his power to prevent such renting and use of the premises; that-the tenants of defendant had been time and again prosecuted for keeping disorderly houses and resorts for prostitution, and the tenants pleaded guilty and were convicted of such offenses; yet the defendant had continued this nuisance by consenting thereto, and refused to abate it, and the premises were still used as houses of prostitution; that the defendant has habitually rented said premises to prostitutes, knowing that the premises were being used for the purpose of prostitution, etc.</p> <p>The petition stated that appellee’s family consisted of himself and wife, and three small children, and five sisters of his wife; and actual and special damages were fully and particularly alleged.</p> <p>The court, on exceptions of appellant, limited special personal damages to such as accrued within one year from the filing of the petition, and special damages alleged to property within two years.</p> <p>Verdict and judgment for appellant for $1,000 damages, and appellant was enjoined from, renting the premises to be kept for the purpose of prostitution, or as a common resort for prostitutes, etc.</p>

Tried below before the Hon. Wm. H. Stewart. Hawley brought this suit against A. Watts and appellant Labadie for the recovery of damages alleged to have accrued in the injury ■to the premises occupied by him, and his merchandise therein, by reason of excessive heat and smoke caused by hot fires made and «continuously kept up by Watts and appellant in a cooking range or oven alleged to have been erected by them upon premises in the city of Galveston, alleged to be in their…

Tried below before the Hon. John Kennard. Suit for trial of the right of property under the statute. On November 25, A. D. 1881, appellants brought suit in the district court of Grimes county against Joel T. Smith, on a sworn account, and- obtained an attachment on the ground that Smith had disposed of his property in whole or in part with intent to defraud his creditors. The writ of attachment was levied upon goods in the storehouse of appellees Brown & Brown.

<p>1. Cotton weighers — One who kept scales in a city on which to weigh produce, who solicited orders to weigh upon them, and who was not the official public weigher, was not liable on a quo warranto to the official weigher, on account of weighing produce under written instructions from the owners thereof. Such a person had the right under the law to keep scales for weighing in a city; to pursue the business of a private cotton weigher, and to solicit such business on private orders as he was allowed to receive.</p>

<p>1. Charge on weight op evidence.— In a suit brought by appellant for commissions claimed in selling flour, it was a controverted point whether appellant should be paid twenty cents per barrel, or $30 a car-load, about which the evidence was conflicting. The following instruction was given: “If the jury believe, from the evidence, that a contract existed between the parties prior to 1879, and continuing during that year, by which R. L. Anderson was to be paid $30 per car-load, consisting of one hundred barrels, and if you believe that after such contract had been in existence, and of performance, the number of barrels shipped in each car was increased, and if Anderson was notifled of such increase without his making any demand for extra compensation, then you are charged that the fact of an increase in the number of barrels stored in each car would not of itself change or alter the original contract. And if the original contract was that the parties should receive compensation by the car load, the mere fact alone of an increase in the number of barrels sent in a car would not entitle him to charge or receive commissions by the barrel.” Held, that it was not a charge upon the weight of evidence.</p>

<p>1. Appeal bond.— The supreme court has no power to dispense with the express conditions prescribed by statute for an appeal bond; and it is held that the appeal must be dismissed-because of the omission' of the condition for the payment of damages awarded by the supreme court, though the case is one in which the court could not, in any event, assess damages against the appellant.</p>

Tried below before the lion. L. G. Alexander. On September 10,1877, Alice Young instituted suit in the district court of Bell county against W. P. Young to procure a divorce and for the recovery of certain real and personal property.

Tried below before the Hon. I. B. McFarland. Suit instituted by appellant. The petition alleged in substance that plaintiff had been employed by defendant to guard the property of defendant, and especially to find out who had burned and destroyed a lot of ties, and to prevent the burning and destruction of other ties and property of defendant along its railroad and right of way from the Yegua creek to the town of Caldwell in Burleson county.

<p>Appeal from Colorado. Tried below before the Hon. Everett Lewis.</p> <p>Appellee sued for damages for personal injuries alleged to have been caused by the negligence of the porter of a passenger car of defendant, whereon plaintiff was a passenger, in closing the door of the car upon the middle finger of his left hand, whereby the same was crushed. The defendant answered by a general denial.</p> <p>Verdict and judgment for plaintiff for $2,000. The judgment was reversed on account of a charge held to be erroneous, which will be found in the opinion.</p>

<p>1. Judgment — Execution — Sale.— An execution issued in 1881, under which property was levied on and sold as the property of the judgment debtor, recited the rendition of a judgment on April 13, 1867, in favor of G-. against S. O. and H., “executors of the will” of the judgment debtor, and commanded the sheriff to make the money out of the property of those who were styled executors. Held:</p> <p>(1) The judgment did not support the execution, since it did not refer to that judgment as the authority for its issuance.</p> <p>(3) If the judgment debtor was in fact dead, and the judgment against him had been revived against S. O. and H., as executors of his will, such judgment should have been shown.</p> <p>(3) Even if such revived judgment had been shown, it would not have authorized the issuance of execution against the property of the deceased in the hands of executors, unless it was further shown that this was authorized by the judgment of revivor, or that, under the terms of the will, the executors were authorized to administer the estate free from the control of the probate court.</p> <p>. (4) But if all these things had been shown, the sale of the property of the deceased would have passed no title, for the execution did not direct its seizure or sale, but that of the executors.</p> <p>2. Innocent purchaser.— One who purchases under an execution issued on an original judgment, so old as on its face to be barred, and who, upon inquiry properly directed, would have discovered that the judgment had been discharged in bankruptcy, could acquire no title as against a former purchaser of whose interest he had no actual notice.</p>

Tried below before the Hon. Wm. H. Bnrlrhart. Suit commenced by a petition to the judge of the eighteenth judicial district in chambers, for a certiorari to the county court of Brazoria county for the purpose of revising and correcting the proceedings of said county court in the matter of the estate of O. S. Bennett, deceased, in relation to the classification and payment of the claims against said estate held by the appellants, and that of the appellee A. L. Armstrong.

<p>Error from Waller. Tried below before the Hon. Wm. H. Burk-hart.</p>

<p>Appeal from Montgomery. Tried below before the Hon. James Masterson.</p> <p>The case, in connection with the former report of it in 56 Tex., 319, will be understood from the opinion.</p>

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

Tried below before the Hon. Everett Lewis. Trespass to try the title, brought by Edmond Eason, to the premises described in plaintiffs’ petition as a portion of original lot Ho. 1, block Ho. 97, in the town of Columbus.

Harris. Tried below before the Hon. James Masterson. Appellants brought suit to recover the amount of a note executed by Woodson to Mrs. Perry, and against the other parties to secure the foreclosure of the vendor’s lien upon two hundred and sixty acres of land described in the petition, and in the alternative to secure the foreclosure upon another tract of land described in the petition as containing one hundred acres.

Error from Harris. Tried below before the Hon. James Master-son. This suit was filed October 15, 1881, by Mary Hardy against the defendant for damages to her homestead property, occasioned by the negligent construction and operation of the track of defendant’s railroad in front of her premises, so as to impede the flow of the water having a natural outlet that way, and cause it to back up upon and injure her premises.

Tried below before the Hon. Wm. H. Stewart. Appellee brought this suit, alleging that he was the owner in fee simple of lot No. 1, in block No. 324, in the city of Galveston, and improvements; that appellant wrongfully entered upon the lot and dispossessed him. Appellee made application for and obtained a writ of sequestration.

Tried below before the Hon. Wm. H. Burkhart. Suit for a tort filed on the 13th day of February, 1882, by appellant against J. F. Dyer (the original defendant), seeking to recover actual and exemplary damages alleged to have been sustained by him by reason of an indictment which was presented against Perkins in the district court of Fort Bend county charging him with having swindled Dyer, it being alleged that the presentment of the indictment was procured by Dyer, and that…

Tried below before the Hon. E. E. Gaines. Trespass to try title brought against appellees April 1, 1873. Appellants claimed through a grant to John Taylor, October 12, 1835, by George W. Smythe, special commissioner, and by mesne conveyances under it. Appellees claimed separate portions of the land through several junior patents and mesne conveyances, and relied upon limitations of three, five and ten years. Verdict and judgment for appellees.

Tried below before the Hon. W. H. Stewart. The questions involved in this suit originated out of the construction of the last will and testament of John Dean, deceased. The will was probated in Galveston county and the estate was fully administered by the executors, when application was made to the probate court for direction as to the • disposition of the property remaining undisposed of.

Tried below before the Hon. James Masterson. This ivas a suit by the appellee for partition of three acres of land situate in the city of Houston, and of which the appellee claimed three-eighths, and he alleged the appellants owned five-eighths.

Tried below before the Hon. L. D. Bradley. Appellees institutéd this suit of trespass to try title against appellant and W. S. Herndon on the 24th day. of March, 1883, to recover a tract of land containing three hundred and twentjr acres and known as the Josephus Williams survey, claiming the same through a conveyance from Wm. M. Love to D. M. Prendergast, dated March 26, 1868, and recorded two days after date; also, by deed from L>.

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

Tried below before the Hon. John 0. Russell. This suit was brought in the name of the state of Texas as plaintiff, July 9, 1872, against Salvador Cardenas and others, and against Parker, administrator of Reynolds, alleging the title of the state to the salt lake notoriously known as “El Sal del Rey,” comprising about a square league, ouster therefrom by defendants, prayer to recover the same, and indorsement that the suit was brought as well to try title as for damages.

Tried below before the Hon. A. J. Booty. This was a suit for damages brought by John F. Needham against Horace McDaniel for false imprisonment and malicious prosecution, which resulted in a verdict for the plaintiff for $150 actual damages, and $250 as exemplary damages.

Tried below before the Hon. Everett Lewis. Appellants conveyed the land described in the pleadings to Ferd. Floege, and executed a deed, which retained a lien to secure deferred payments of purchase money. Floege mortgaged the land to Wollhoefer. Floege died, and, at the time of his death, he was insolvent, and owed a note given for the land to appellants for §6,400, due in 1885, interest payable annually, and one year’s interest was due and unpaid.

Error from. Harris. Tried below before the Hon. James Masterson. This case is chiefly remarkable for the singular verdict rendered in view of the evidence. Appellee sued to recover damages for a personal injury.

Tried below before the Hon. W. H. Stewart. Suit brought on a policy of insurance to Coffee & Pearson, and transferred, by consent of defendant, to Coffee, and to recover the amount of loss occasioned by fire to a stock of goods insured thereby, alleged to have been burned.

Tried below before the Hon. Wm. H.. Burkhart. Mamie Anderson brought suit May 5, 1883, in the district court of Wharton county, against the supreme council of the American Legion of Honor, a corporation chartered under the laws of Massachusetts, to recover $5,000, being the amount, as alleged in the petition, which appellant had agreed to pay appellee upon the death of her husband, W. J. Anderson.

Tried below before the lion. A. J. Booty. This cause was before this court on a former appeal. See Pearson v. Flanagan, 52 Tex., 266. The nature of the suit is fully stated in the former report of the case. After the cause was remanded the defendant filed an amended answer setting up the statute of three years’ limitations, and the other defenses relied on at the previous trial. Verdict and judgment for the defendant, M. Cochran, administrator of the estate of P. H. Pearson.

Tried below before the Hon. James Masterson. The opinion, states the case. The bonds referred to were those to issue under the provisions of a bill which passed two days after-wards through the Texas legislature, chartering the International Railway Company, and providing for a bonus to be given to it by the state in state bonds at the rate of $10,000 for each mile of road to be constructed.

Washington. Tried below before the Hon. I. B. McFarland. Held: and in which the commissioners’ court sat when it passed the orders complained of; and the records of said court had been kept safely therein; that the court-house was safe; that the commissioners and county judge in session February 17, 1883, resolved that the courthouse was insufficient, and an unsafe depository for- the public…

Tried below before the Hon. Geo. H. Noonan. On December 18, 1875, appellant brought this suit of trespass to try title against appellees to recover the land described in the petition. He claimed by deed of conveyance from John H. Herndon to J. L. & A. 0. McKeen, dated January 7, 1867, and filed for record November 7, 1868, and a deed from J. L. McKeen to appellant, dated May 23, 1874.

Error from Parker. Tried below before the Hon. J. A. Carroll.

Tried below before 'the Hon. John W. Robertson, special judge. Thompson brought suit in the district court of Travis county against appellant, who was the surveyor of' Pecos county, for the possession of four hundred and eighty-seven land certificates and nine hundred and seventy-four sets of field notes of surveys made by virtue of those certificates, which certificates and field notes appellant had in his possession in Travis county.

Tried below before the Hon. James Masterson. Suit on the relation of the attorney-general to recover a penalty of $1,000 under article 4250, Revised Statutes, for failing to make an annual report to the comptroller of public accounts, as required by article 4249, Revised Statutes.

Tried below before the Hon. W. II. Stewart. W. J. Jones brought suit against E. F. George to recover on a breach of warranty.

Tried below before the Hon. Wm. H. Stewart. Suit by James B. Turnley to recover from the defendant the value of a certain bond of the Georgia Railroad Co., payable on 1st July, 1874, of the denomination of $500, with two interest coupons thereto attached, each for $17.50, alleged to have been deposited with the defendant, and which the defendant had wrongfully converted to its own use.

Tried below before the Hon. Thomas M. Paschal. The original petition in this cause was filed August 29, 1877. It was a suit by appellee against appellant upon the following note: “$2,029.09. January 1, 1875. “ One day after date I promise to pay to the order of Henry Eothe the sum of two thousand, and twenty-nine y-fy dollars, at -, value received.

Error from Colorado. Tried below before the Hon. Livingston Lindsay. ¡Nearly thirty years ago, on the 7th day of August, 1855, Booth instituted this suit against Strippleman, the then surveyor of the Colorado land district, to compel him to enter certain locations, to survey the land, and return the field notes to the general land office. Others who claimed under surrounding surveys were made defendants as claimants of the land sought to be appropriated by Booth.

Tried below before the Hon. Everett Lewis. Appellees brought trespass to try title against appellants. Suit filed on the 31st of August, 1877. Appellees claimed title to the land sued for through a survey made on the 23d day of October, 1876, by virtue of bounty certificate No. 22/5, issued for unlocated balance of bounty certificate Ho. issued to William Brander, and a patent based thereon to the heirs of William Brander, dated January 16, 1877.

Tried below before the Hon. A. J. Hood. On the 29th day of November, 1881, appellant, Thomas J. Rag-land, filed petition in trespass to try title against Mary Wisrock, Frank, John, Joseph and Lizzie Wisrock, Christina Witzer and her husband, Nicholas Witzer, Barbara Reitz and her husband, John Reitz, for the recovery of two hundred acres of land in a square out of the northeast corner of the George Greere survey of six hundred and forty acres in Tarrant county, which was…

<p>1. Jurisdiction.— The probate court has no jurisdiction to determine, as between an administrator and the hems, the ownership of the proceeds of a policy of insurance, claimed by the administrator to be assets of the estate, and by the heirs as their individual property, derived by inheritance from another ancestor, the assignee of the party insured. Following Timmons v. Bonner, 58 Tex., 555, and other authorities cited.</p>

<p>Appeal from. Montague. Tried below before the Hon. O. C. Potter.</p> <p>Trespass to try title by Lilly D. Ivers, formerly .Snyder, and her husband, O. H. Ivers, against Thomas Snyder, Alice M. Smith, Thomas H. Smith, Sawnie Robertson, B. F. Hodges, and A. K. Work, administrator of Nimrod Snyder, to recover three hundred, and twenty acres of land patented to W. W. Holman.</p> <p>The petition alleged, in substance, that on April 5, 18Y6, Nimrod Snyder executed and delivered to his daughter, Lilly D. Snyder, now Ivers, a deed of gift of the Holman survey,.which became lost or mislaid without having been registered; that afterwards Nimrod Snyder died, and defendant A. K. Work, as his administrator, appointed by the county court of Dallas county, Texas, had caused the land to be inventoried as the property of the estate of Snyder, and had procured an order of court directing him to sell the land for the payment of debts; that at such sale defendant Robertson became the purchaser, but the sale had not been confirmed; that defendants Thomas Snyder and Alice M. Smith were children and heirs of Nimrod Snyder, and that defendant Hodges claimed some kind of pretended title to the land.</p> <p>Answer by general denial and plea of not guilty. Judgment for the plaintiffs.</p> <p>The testimony of the plaintiff Lilly D. Ivers, as to the acts and declarations of her father and of all transactions between them, was excluded under art. 2248 of Revised Statutes; but the testimony of Alice M. Smith and Thomas H. Smith, the sister and brother-in-law of plaintiff Lilly D. Ivers, tended to establish the following facts: That Nimrod Snyder signed and acknowledged before a notary public a deed conveying the land in controversy to his daughter, the plaintiff Lilly D. Ivers. He declared it to be bis intention to give this land to his daughter Lilly.</p> <p>Mrs. Smith, a witness, testified that Lilly D. “ owned the land.” “ She obtained the deed from Nimrod Snyder.” “ When Nimrod .Snyder gave her the deed, or told her to take it, I do not remember if she did so, but he told her he would take it to Texas and have it recorded for her, and told me the same thing.” He in the presence of Thomas H. Smith, in the city of St. Louis, showed this deed to his daughter Lilly, who was the grantee in the deed, and “gave jher the deed or told her to take it,” and told her that he would take it to Texas and have it recorded for her.</p> <p>After this the last time that it was seen by any of the witnesses .it was in his hands.</p> <p>Nimrod Snyder, on several occasions, declared that he had conveyed this land to his daughter Lilly, one of these declárations being made after he came to Texas and while he and the witness, Thos. H. Smith, were standing on the tract of land in controversy.</p> <p>The petition alleged the execution of the deed and its loss or destruction, and plaintiffs inability to produce the original or a copy. The plaintiff, Lilly D. Ivers, testified that she had made diligent, search for it, but could not find it, and did not know where it was.</p>

Tried below before the Hon. Bichard Maltbie. January 11, 1876, Hardin Hart sold S. M. Loggins one hundred and sixty acres of land, and executed a deed to the same. Loggins, in part payment for the land, gave his note to Hart for $340, due January 1, 1879. The deed recited the note, and the note referred to the land. The deed was recorded October 16, 1876. Loggins sold the land to Calvin and Thomas Stacy, and made them a joint deed which was recorded October 16, 1876.

Grayson. Tried below before the Hon. Richard Maltbie. On the 6th of December, 1882, S. W. Kniffin, of Parsons, Kansas, •and W. G. Kniffin, of Denison, Texas, who were partners under the firm name of Kniffin Bros., being insolvent, executed to A. H. Coffin their deed of assignment, whereby Coffin was appointed assignee. Coffin accepted the trust and filed his bond, which was approved and qualified.

Tried below before the Hon. Richard Maltbie. Kevins, who brought this suit, was garnished in the former suit, and, his answer being controverted, a judgment was rendered against him.

<p>1. Collateral attack — Judgment.— The judgment of the court of a justice of the peace, rendered against a defendant in a proceeding in which service of citation on him is shown by the record, cannot be collaterally attacked on the ground that no service was made, and that the record which stated to the contrary was false.</p> <p>2. Homestead.— The surviving wife, though without children, is entitled to the protection afforded the homestead from forced sale after the husband’s death, so long as she uses it as homestead, or she may exchange it for another homestead, which will receive like protection. And it would seem that if the old homestead is sold with the intention of reinvesting the money in another, the unpaid purchase money cannot be reached by garnishment, or subjected by other process to the payment of debts.</p>

<p>Appeal from Fannin. Tried below before the Hon. E. E. Gaines.</p> <p>This suit was brought by the appellee Morrow, in trespass to try title, who showed a regular chain of title from the sovereignty of the soil. The defendants were 0. Bombarger and his children. The father, whose deed is construed in the opinion, disclaimed all interest. The other defendants relied on the statute of limitation, and possession under the deed from the father. They sought to show a verbal understanding, when the deed was made, that the reservation to the grantor contained in it had reference only to the “home place” and not to other portions of the land conveyed by the deed. This evidence was excluded.</p>

Tried below before the Hon. A. J. Hood. Wm. Eichoff brought this suit, charging in substance: That on the 22d of March, 1878, he recovered a judgment in the district court against one Henry Eichoff for $4,872.54, and for the foreclosure of his attachment lien on certain goods levied on; that after-wards, at the same term of court, on the 12th of April, at the instance of the appellees, Conrados, Logeman, Siler, Vonbrock, Meyer and Kerchner, who were intervenors in the suit…

Tried below before the Hon. Geo. H. Aldredge. * Plaintiff below, Hannah T. Spicker, alleged that her husband, Henry Spicker, whilst being transported in a train of cars over one of defendant’s bridges, received injuries of which thereafter he died; that they were caused by the giving away of the bridge, and the falling through of the train; that the bridge was constructed by -defendant negligently, and without care, in disregard of human life, and was permitted to become,…

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

<p>Appeal from Clay. Tried below before the Hon. B. F. Williams.</p>

<p>1. Garnishment.— Except in a case in which an original attachment has issued, a writ of garnishment can issue only when the debt sued for is due.</p> <p>2. Promissory note — Days of grace.— Under the law merchant a note payable on demand was not entitled to days of grace, and suit could be brought on it without payment being first demanded.</p> <p>3. Statute construed — Promissory notes — Days of grace. — One of the leading purposes of the act of March 20, 1848, was to restrict the operation of tlie law merchant, in reference to days of grace, to such paper as was between merchant and merchant, their factors and agents, rather than to prescribe the particular classes of negotiable paper which should be entitled to grace. One of the leading objects of the act of January 11, 1863 (Pasch. Dig., 234; R. S., 276), which was amendatory of the act of March 20, 1848, was to place on the same footing such negotiable paper as was therein contemplated, whether made between merchant and merchant, their factors and agents, or between other persons, in so far as allowing days of grace thereon was concerned.</p> <p>4. Construction of statutes.— An affirmative statute does not repeal an affirmative statute, and if both may stand together, they should have a concurrent efficacy. But if the latter be contrary to the former, it amounts to a repeal of the previous law.</p> <p>6. Same — Law merchant.— The law merchant remains in foyce in Texas except as modified or changed by statute.</p> <p>6. Statutes construed — Days of grace. — The statutes of January 11, 1862, and of March 20, 1848, construed, and the conclusion announced that the former act did not give days of grace to paper, except to such as was entitled thereto by the law merchant; that a note payable on demand is not entitled to days of grace, and suit may be maintained thereon without previous demand.</p> <p>7. Partnership — Dissolution of, by marriage.— The marriage of a woman dissolves a business partnership, which prior to that had existed between herself and another, and after marriage she can form no partnership for the. transaction of business, either with her husband or the former partner, which the law can recognize.</p> <p>8. Partnership.— A general authority given by one partner on the dissolution' of the firm to his late copartner, to settle up the business of the late firm, does not authorize him to give a note in the firm name for a firm debt, or to renew one that had been given before dissolution of the firm.</p> <p>9. Cases reviewed and discussed.— The cases of Kieffer v. Ehler, 18 Penn. St., 391; Phillips v. The State, 15 Georgia, 531, and Parks v. Willard, 1 Tex., 354, reviewed.</p>

Tried below before D. E. Bassett, Esq., special judge. The suit was begun December 15,1880, on two notes executed by appellee, W. H. Dixon, to R. W. Allison, August 23, 1875, both payable six months after date, one to Allison or bearer, the other to Allison alone.

<p>1. Confession of judgment. — Though a confession of judgment cures all errors committed in defectively stating a cause of action, or in the rulings made by the court before it was entered, still the pleadings must disclose some basis for the judgment. Hence, when, in a suit to recover §298.75, judgment was rendered by confession for §793.54, there being no pleading to authorize such a judgment, it was reversed.</p>

<p>1. Telegraph messages —Measure op damages.— When the meaning of a telegraphic message is unknown to the company’s agent who receives and transmits the same, being in cipher, it cannot be assumed that the company could know that any pecuniary loss would be the natural or necessary re-suit of a failure to send such message; and in such a case, upon a breach of contract to transmit and deliver, the sender can recover only nominal damages, as the amount paid for sending the same. Following Candee v. W. U. Tel. Co., 34 Wis., 471, and other cases cited.</p> <p>2. Same — Negligence.— In such a suit, general allegations in the petition of a vague and indefinite character, as to the employment of an incompetent operator by the company, when disconnected with any specific statement of facts showing acts of negligence resulting in loss, will not be deemed sufficient to support a claim for exemplary damages.</p>

Tried below before E. De Armond, Esq., special judge. Suit for slander, brought by appellee May 31, 1880.

Tried below before the Hon. A. J. Hood. Appellant sued her husband, A. P. Ryan, in debt, and had attachment levied on the community property of herself and her husband. The defendant was served but made no appearance.

<p>Appeal from. Collin. Tried below before the Hon. E. Maltbie.</p>

Tried below before the Hon. J. E. Flemming. This was a suit brought by G. A. Graham against S. E. Jeffery to declare forfeited the conditions of defeasance declared in a deed made by the plaintiff to the defendant to a certain lot in the town of Graham, and for a decree divesting the title thereby conveyed to the defendant, and reinvesting the plaintiff therewith. The defendant excepted to the sufficiency of the petition, and the exceptions were overruled.

Tried below before the Hon. Geo. H 27oonan. Suit by Charles Brett, Jr., for damages aggregating §20,000, resulting from injuries alleged to have been sustained by defendant’s engine and train colliding with plaintiff’s wagon and team while crossing defendant’s railroad track in the suburbs of the city of San Antonio, on the 6th of May, 1882; §18,730 damages for personal injuries, and §1,270 incidental damages, were claimed, resulting from injuries to property.

<p>Error from Williamson. Tried below before the Hon. J. W. Eobertson, special judge.</p>

Tried below before the Hon. A. J. Hood. Appellees brought suit to recover damages for a breach of contract in failing to receive and ship over appellant’s railroad beef cattle from Colorado, Texas, to Chicago, Illinois.

Tried below before the Hon. R. Maltbie. Suib to recover damages by the appellant for personal injuries received by him while a passenger on one of appellee’s freight trains, laying his damages at $10,000. The appellee answered by general denial, and specially that the appellant’s injuries were caused by his own negligence and want of care, etc. Verdict and judgment for the appellant. It was admitted that passengers were carried on the train on which appellant was injured.

Tried below before J. F. Cooper, Esq., special judge. This suit was brought by appellants, stating that on the 15th of November, 1882, they resided in Pennsylvania, and were the father and mother of Holland H. Hoover, who was of the age of twenty-two years. That on that day appellee, being engaged in running cars by means of steam locomotives in the city of Fort Worth, negligently ran an engine tender backwards and thereby killed the said Holland H. Hoover.

<p>Appeal from Hays. Tried below before the Hon. L. W. Moore. The opinion states the case.</p>

<p>1. Evidence.— In a suit against two, as partners, to recover an amount alleged to be due on account of checks on the plaintiff drawn by one of the firm after its dissolution, under authority from the late partner to settle the firm debts, and which checks were paid by the plaintiff, held, that in the absence of a plea under oath denying the authority of the drawer of the checks to bind the firm, they are admissible in evidence against both defendants, and their admissibility is not affected by the fact that they were signed alone by the member who had authority to settle the debts.</p> <p>2. Same.— The rule of evidence above stated is not varied by the fact that the member of the late firm whose name did not appear on the checks denied by plea under oath the existence of the partnership when the checks were drawn; the averment made by the plaintiff’s pleading being, that the checks were drawn, and the money obtained to pay the debts of the firm, under a power existing after the dissolution of the partnership.</p> <p>3. Evidence.— The production of the checks by the plaintiff, who was a banker, and on whom they were drawn, was, under the state of the pleading, sufficient evidence of the request of both partners to pay the money to the holder of the checks, and of its payment. But the presumption, unexplained, would be, that the checks were paid out of deposits made by the drawers, or in satisfaction of a debt due from the banker.</p>

Tried below before the Hon. Everett Lewis. Mary Hewton filed her application in the county court of Wilson county to be appointed administratrix, with the will annexed, of the estate of James Hewton, deceased. Afterwards D. C. Hewton et al. filed in the county court a protest against the appointment. Mary Hewton’s application was granted, and she was appointed administratrix without bond.

Tried below before the Hon. W. E. Collard. This was a proceeding begun in the county court of Robertson county by Mrs. Louisa Millican (who was at the death of Glover W. Blanton, deceased, his surviving widow), filed in the year 1880, for the purpose of enforcing the payment of an allowance made for her benefit at the December term of that court, A. D. 1855, in lieu ■of the homestead and exempt property.

Tried below before the Hon. L. W. Moore. Suit by Vaughn, assignee, against C. A. Keating and H. E. Barber, for the recovery of damages for seizing and taking away certain goods of the estimated value of $2,000.

Tried below before the Hon. Geo. H. Noonan. Mrs. Judy Burton, as surviving widow of King Burton, and as administratrix of his estate, filed her petition against the Galveston, Harrisburg & San Antonio Railway Company, claiming $15,000 compensatory damages, and $5,000 exemplary damages, on the ground that her husband, through neglect of the company, lost his life while being transported on-its train.

Tried below before the Hon. A. S. Walker-Suit instituted by the appellee, on a promissory note, in the following words: “ $6,000.

Tried below before the Hon. Everett Lewis. Appellants, on the 2d day of January, 1882, brought suit against appellee, setting up their homestead in two hundred acres of land, and complaining that the appellee was trespassing upon the sama and cutting down the timber, etc., and praying for injunction, etc. They obtained an order for a writ of injunction.

Error from Falls. Tried below before the Hon. B. W. Rimes. This suit was begun by an application for a writ of injunction by defendants in error, Melissa Kimbrough, wife of Wm. Kimbrough, Mollie E. Price, and Mrs. J. E. Perkins, wife of George Perkins. The defendants were Josiah Watson, sheriff of the county, B. L. Aycock and his wife, Emma Aycock, and A. P. Morris.

Tried below before the Hon. L. W. Moore. This was a proceeding involving the trial of the right of property in a stock of goods in the district court of Caldwell county. On ¡November 8, 1880, an execution from the county court of Gillespie county in favor of appellees, and against N. Marx and Theo. Kriiger, was levied on the goods in question. The goods were in the possession of NT. Marx in the town of Luling.

Tried below before the Hoñ. G; H. Noonan. Suit by Martin Nicholson to recover the value of a bureau and contents, alleged to have been shipped from San Marcos to Galveston and lost by defendant. The goods were valued in the petition at $228.55.

Tried below before the Hon. B. B. Gaines. . Suit by. appellants on a written contract executed by appellees June 8, 1882, whereby it was agreed that appellee Strong bound himself in the sum of §3,000, with W. A. Kelsey as surety, to furnish and deliver to Bruner Bros, one thousand head of one and twovear-old heifers on or before August 1, 1882, for which they agreed to pay §7.75 per head for yearlings and §9.75 for two-year-old heifers, and in the event Strong should fail to…

<p>1. Charge of court — Practice.— One who does not regard the charge of the court as sufficiently full should call attention to the fact by presenting and asking a charge supplying the supposed defect; failing to do this, he cannot urge the defect for the first time on appeal.</p> <p>2. Bill of exceptions. — When a bill of exceptions fails to state the objection to the introduction of evidence admitted on the trial of a cause, it cannot be specified for the first time on appeal.</p> <p>3. Divo foe — Evidence.— The record showing a conviction of the husband, on his plea of guilty, to a charge of having assaulted the wife, cannot be used in evidence in a divorce suit by the wife against the husband. It is excluded by art. 2863, Bevised Statutes.</p>

Tried below before the IIon. A. S. Walker. The following statement, made in appellant’s brief, presents the case: This suit was instituted by the state of Texas, in the district court of Travis county, on the 14th of December, 1881, against Richard Wells and his sureties, on the official bond executed by said Wells on the 18th of April, 1876, as tax collector of Yan Zandt county, for the taxes due the state for the year 1878, amounting to $1,850.08, besides interest thereon…

Tried below before the Hon. A. J. Hood. This was an action brought by the appellee, Stout, against the City ¡National Bank of' Fort Worth for the recovery of $1,428.29, which plaintiff alleged he deposited with defendant, and that defendant failed and refused to pay him that amount, although requested so to do.

Tried below before the Hon. Richard Maltbie. Keep & Yates assigned to appellee for the benefit of their creditors. Have, Goddard & Co. instituted suit against them and attached a part of the assigned goods.

Tried below before the lion. D. P. Marr. On tlie 5th of July, A. D. 1883, plaintiffs filed their petition in the county court of Atascosa county to contest the validity of the •will of G-. W. Chapman, deceased, and its probate, alleging in substance as follows: That on the 22d day of July, A. D. 1879, at the •July term of that court, sitting in probate, such proceedings were had that an instrument in writing, purporting to be the last will and testament of Gr.

Error from Limestone. Tried below before the Hon. L. D. Bradley. Suit for trial of the right of property between Oliver & Griggs, appellees, and Meyer, Weis & Co., claimants, and R. T. Mosely and S. Pulver, the sureties upon their claim bond. Oliver & Griggs, plaintiffs below, on the 1st day of January, 1881, rented to one Sol Weis, a store, described in appellees’ tender of issues, in the town of Mexia, Limestone county.

Tried below before the Hon. C. C. Potter. Trespass to try title by appellees, the heirs of Margaret Renner, to recover one hundred and sixty acres of land from Rufus Browder, who claimed through a deed from John Renner, the father of the plaintiffs, executed after the death of their mother, said Margaret Renner. The defendant pleaded not guilty, limitation of five years under deeds duly registered, and possession in good faith with improvements.

Tried below before the Hon. John C. Townes. It is unnecessary to give a statement of this case, since the opinion relates only to matters of practice.

Tried below before the lion. W. A. Blackburn. Trespass to try title, brought by appellant against R. W. Cates, to recover possession of lots No. 2 and 3, in block No. 11, of the Kerr portion of the town of Burnet. Appellant in his petition alleged that the lots were part of his homestead. The source of title was a common one. The unlawful entrance and ouster by the appellee was averred to have taken place on the 1st day of August, 1881.

<p>1. Jurisdiction. — When, on appeal from a judgment by default, the record fails to show affirmatively either service of citation on the defendant, or waiver thereof, or an appearance entered by him in the court below, the judgment must be reversed.</p> <p>U. Disqualification of a judge.— When a county judge declines to hear a cause, and transfers the same to the district court because he is disqualified to hear and determine it, the grounds of his disqualification need not be stated unless their existence be questioned.</p>

Tried below before the Hon. D. P. Marr. This was an application for a mandamus to compel the county surveyor of McMullen county to receive and record an application for the survey of four sections of land made by William Oassin on the 9th of December, 1882, and to survey the same. E. H. Brown, claiming the land under a subsequent location, made on the 12th of December, 1882, was made a party defendant.

Tried below before the Hon. L. C. Alexander, special judge. Appellants, the children and grandchildren of James Hanrick, deceased, brought this suit against appellees to recover an undivided interest in and to secure partition of the land described in the petition. Appellants, except Nicholas Hanrick, were and are aliens — subjects of Great Britain. James Hanrick, their ancestor, was also an alien, and died such in 1875.

Brazos. Tried below before the Hon.. W. E. Collard. The statement of the case in appellant’s brief is substantially adopted. Appellee Wilkinson brought this suit against Hudson for a wagon and two mules and their hire. Verdict and judgment for plaintiff. The wagon and team were originally the property of one E. D. Stewart, under whom both parties claimed. On the 13th of October, 1870, Stewart was indebted to one It.

Tried below before the Hon. B. W. Himes. Suit by James Oliver, involving a question of boundary. The Burns survey was made in 1846; its field notes are not in the record; afterwards the Haney Anderson was made west of the Burns, and the A. S. Anderson still west of that. The controversy was over a strip of land which, under the decision in this cause, existed between the Burns and the Haney Anderson surveys, for which Oliver, who claimed the Haney Anderson survey, sued.

Tried below before the Hon. Richard Maltbie. On the 13th of October, 1879, between midnight and daylight, plaintiff, Jo Reason, went to defendant’s passenger depot at Denison for the purpose of taking the passenger train for Dallas. The depot being closed, plaintiff, standing on the platform, was struck by a moving car and received the injuries complained of without any fault or negligence, he alleged, on his part.

<p>Appeal from Burnet. Tried below before the Hon. W.. A. Blackburn.</p>

<p>Appeal from Eobertson. Tried below before the Hon. W. D. Wood, special judge.</p>

<p>i. Pre-emption — Homestead — Donation — Statute construed.— Art. 3940, Revised Statutes, was intended to protect land from location by another for the period of thirty days after its occupancy or settlement by one intending to pre-empt it begins. It was intended for the benefit of the occupant seeking a homestead donation, and was never intended to prohibit the occupant from making his application for the land at any time after the expiration of the thirty days, if no location made by a third-party intervened.</p> <p>8. Reservations — Public land — Pre-emptor — Location — Statutes construed.— Public land situate in Nolan and in other counties mentioned by the act of July 14. 1879, was “appropriated and set apart for sale.” The act amendatory thereof'of March 11, 1881 (Gen. Laws, p. 85), and the act of January 22, 1883 (Gen. Laws, p. 2), construed in connection with the act of July 11, 1879, and the conclusion announced:</p> <p>(1) That the eighth section of the act'of July 14, .1879, was intended to prohibit any one from locating a purchase or donative homestead preemption, such as are provided for by chapters 8 and 9, title LXXIX, Revised Statutes, on lands which, under the terms of the act, had been surveyed for a purchaser, or for any of the other purposes named in the act, and was not intended to leave the land open to ordinary location until such survey was made.</p> <p>•(2) A patent issued on a location made April 11, 1831, of a headlight certificate on land, embraced in the provisions of the act of July 14, 1879, was void; the location itself, being prohibited from being made on the land, was void,</p> <p>(3) Such a location, made by virtue of a land certificate upon land occupied by a pre-emption settler, after the expiration of thirty days from his occupancy, and before any application of the settler for the land, interposed no bar to the subsequent application of the settler, and "to his acquiring a homestead donation. •</p>

<p>Appeal from Grayson. Tried below before the Hon. Richard Haltbie.</p>

Error from Shackelford. Tried below before the Hon. T. B. Wheeler. Appellees, Chas. G. Burnett and wife, recovered a judgment against appellant for $1,000, as damages for personal injuries alleged to have been received by the wife of Charles G. Burnett in a collision between two of appellant’s trains at the town of Cisco, in Eastland county, on or about July 31, 1882, the said Charles and Sarah being then man and wife.

Tried beloxv before the Hon. John C. Townes. Trespass to try title to three surveys of land in San Saba county, instituted by T. W. House ei al. J. De Cordova owned three German Emigration Co. premium land certificates, Nos. 7, 8 and 9, which issued February 28, 1855, and were located upon land in Fisher and Miller’s colony, then in Bexar land district, now in the county of San Saba.

<p>Appeal from Bosque. Tried below before the Hon. Jo Abbott.</p> <p>Appellee brought suit May 23, 1881, against W. W. Pearce for the recovery of two hundred acres of land.</p> <p>It was alleged in the petition that M. L. Jackson was the duly qualified and acting administratrix of the estate of A. 0. Pearce, deceased. That on the 1st day of November, A. D. 1878, A. 0. Pearce in his life-time was lawfully seized in fee and in peaceable possession of the land in controversy, and on that day defendant W. W. Pearce forcibly took possession thereof and ejected plaintiff. W. W. Pearce filed a general denial and a plea of not guilty; and a special answer alleging that since the 2d day of December, 1876, he had not held or claimed that part of the land described in the plea of intervention of Nannie L. Pearce as his own, but for his wife, Nannie J. Pearce, during her life-time, and after her death for his minor child, Nannie L. Pearce. The balance of the land he had held under the deeds from A. 0. Pearce and wife to B. M. Linn, and from Linn and wife to defendant W. W. Pearce.</p> <p>Defendant prayed for judgment for the land described in the Linn deeds.</p> <p>On the 25th day of January, 1884, Nannie L. Pearce, by her next friend and natural guardian, W. W. Pearce, filed her plea of intervention under leave of the court, alleging that she was a minor four years old and the child of W. W. and Nannie J. Pearce. That on the 2d day of December, 1867, A. 0. Pearce made and delivered a deed to W. W. Pearce, which was acknowledged and recorded in Bosque county, Texas, conveying the land in controversy. That W. W. Pearce immediately became seized in fee and possessed of said land and thereafter held actual possession thereof. On the 2d day of December, 1876, he made, executed and delivered a deed to the land to his wife, Nannie J. Pearce, who paid a valuable consideration therefor out of her separate money. That she had no actual or constructive notice of any adverse claim. That she was seized in fee and in actual possession of said land at her death. She left surviving her Nannie L. Pearce, her only surviving heir. She made no will and there was no administration on her estate.</p> <p>Plaintiff M. L. Jackson filed her supplemental petition, excepting to the plea of intervention as insufficient. Verdict for plaintiff for the land sued for.</p> <p>Among other things the court charged the jury, “It not having been shown that the consideration for the land conveyed by said deed (meaning the deed from W. W. Pearce to his wife, Nannie J. Pearce) was the separate money of said Nannie J. Pearce, she cannot be regarded as an innocent purchaser for a valuable consideration without notice, and therefore intervenor’s right to the land cannot be regarded as superior to plaintiff’s right to the land.”</p>

Tried below before the Hon. T. L. Nugent. Letitia G-. McKamey, joined by her husband, Wm. N. McKamey, sued appellees P. Thorp et al. in trespass to try title to a house and lot at Thorp’s Spring. Plaintiffs alleged that the lot was the separate pz’operty of the wife. Defendants answered by general demurz'er and not guilty.

Tried below before the Hon. Richard Máltbie. Appellant, Elizabeth Slavin, the wife of J.- B. Slavin, instituted this suit of trespass, to try title and for damages against J. B. Slavin and Jube Wheeler, on the 15th day of February, 1881. Wheeler filed his amended original answer of general denial, plea of not guilty, stale demand and improvements made in good faith.

Tried below before the Hon. T. M. Paschal. Wilhelmine Timmermann sued the I. & Gr. H. B. B. Go., in a justice court, upon the following account or statement, which was lodged with the justice of the peace, and formed the basis of the suit, to wit: The Int. & Great Northern R. R. Go.. To Wilhelmine Timmermann, Db.

Tried below before the Hon. Jo Abbott. Suit in trespass to try title by plaintiffs, Frances C. Kaiser and Elizabeth F. Sibley, joined by their husbands, against M. Dicas, J. K. Montgomery, (L O. Wood, A. Lott, Jr., and Ida Ellen Lott, the latter being a minor, for the recovery of two tracts of land in Bosque county, for partition of the same between the plaintiffs Frances 0.

<p>1. Tbespass to tey title — Landlobd and tenant. — While the action of trespass to try title in Texas is a form of procedure in which most of the forms and fictions of the action are abolished, yet most of the principles applicable to ejectment are retained; among others, that a tenant cannot deny the title of his landlord, is one; and to recover in trespass to try title, it is only necessaiy for the plaintiff to prove that the defendant is a tenant holding over without authority from his landlord.</p> <p>2. Same. — The fact that the tenant originally entered without recognizing his tenancy, and afterwards attorns to the landlord, does not vary the rule; he is estopped by his recognition of his tenancy, no matter how he first went into possession, except in a case of mistake, or of fraud or misrepresentation on the part of the landlord.</p>

Tried below before the Hon. Jo Abbott. This was an action of trespass to try title by appellant against appellee to recover a tract of land in Hill county. The defendant answered by a general demurrer, general denial, and plea of not guilty. Trial before the judge without a jury. Judgment for defendant. When the plaintiff produced his chain of title, the last link was a deed from F. M. Good to Isaac B. Webb, dated Hay 21, 18S0, and recorded in Hill county August 31, 1883.

Tried below before the Hon. T. L. Nugent. The following'portion of the lengthy statement adopted by the commission of appeals will sufficiently present the case: Hartwell & Chambers filed their first amended original petition November 29, 1881, in the district court of Coryell county, wherein they complained of J. H. Chrisman, J. E. Saunders and Benjamin Worley, alleging that J. H. Chrisman executed to one P. N. Harris his promissory note for §500, payable to P. N. Harris or…

<p>Appeal from Wilson. Tried below before the Hon. Everett Lewis.</p> <p>July 25, 1883, appellant filed his application in the county court of Wilson county to revoke letters of administration on the estate of Mary A. Mayes, deceased, formerly granted to appellee, and to be appointed in his place. The application alleged in substance that appellant was a son and one of the heirs of M. A. Mayes, deceased, and that his right was superior to that of appellee; that appellant had never waived his right and was not disqualified.</p> <p>Appellee filed his protest against the application, alleging that appellant had waived any right he may have had to administration of the estate:</p> <p>1st. By failure to object to or protest against the appointment of appellee.</p> <p>2d. By failing, after having been appointed temporary administrator of said estate, to give a new bond required and to apply for letters of permanent administration.</p> <p>3d. By lapse of time, in failing, within four years after the death of the intestate and within nearly two years after the appointment of appellee, to make his application for letters of administration.</p> <p>In the county court, the letters of administration granted appellee were revoked and appellant appointed administrator, from which .judgment appellee appealed to the district court.</p> <p>In the district court, W. B. Story filed his protest against the grant of appellant’s application, alleging that he was interested in the estate by virtue of a purchase of the interest of one of the heirs of the intestate; that appellee had administered the estate faithfully and well for years; that before appellee’s appointment the estate, while in the hands of appellant, was unprofitable and running to waste; that appellee had made the estate pay, over and above expenses, a revenue of over $800, and that therefore the estate would be more likely to be profitably administered by appellee than by appellant.</p> <p>E. D. Mayes testified that he was a son and heir of the intestate, and twenty-seven years of age; that his failure to apply for letters of permanent administration was because he could not give the bond required, which would have been $40,600.</p> <p>The administrator was not of kin to the deceased.</p> <p>The evidence is unimportant in view of the facts stated in the opinion.</p>

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

Tried below before the Hon. Richard Maltbie. Plaintiff filed his petition alleging, in substance, that he was in defendant’s employ as brakeman in the yard at Sherman, and, as such, was engaged in setting a car in on the side track. That it was a part of his duty to set the brake on the car, and when he attempted to do so he found that the brake would not hold the car.

Tried below before the Hon. Jo Abbott. Trespass to try title, brought January 31, 1883, by appellees, to recover lot Ho. 2, in block Ho. 1, in the town of Hillsboro. Defendants pleaded the “ general denial ” and “ not guilty.” Judgment for plaintiff. The important facts will be found in the opinion.