Volume 62 — Texas Reports

Tried below before the Hon. A. S. Walker. Albert Weir and Louisa Burleson, joined by her husband David C. Burleson, brought suit against Peter Weir, Eliza McLaren Weir, Monterey Y. Weir, Felix E. Smith and Fred Carleton, as executors of the last will of Martha J. Weir, deceased, and Joseph, Sarah J., Martha J., Stephen M., Louisa and Elizabeth S. Burleson, and Cornelia A. Cole, wife of J. D. Cole (who was also joined as defendant), for the purpose of declaring null and void…

Tried below before the Hon. A. S. Walker. The lengthy statement of the pleadings made for the inspection of the supreme court by the commission of appeals is omitted here. The suit was for damages caused by the manner in which the appellant constructed its railway crossing over a public highway.

Tried below before the Hon. Geo. H. Noonan. Suit begun in justice court upon the following account: Railroad Company Dr. to IV. Underwood: 1881. To two mares killed while on the defendant’s railroad, valued at §50 each...........----................................._____ §100 00 Verdict was rendered for the plaintiff for $100. The appellant removed the case to district court by appeal, where a judgment for the same amount was rendered against him.

Tried below before the Hon. W. E. Collard. On May IS, 1880, Gillett brought this suit against Hearne and others, in the district court of Hamilton county, to recover an undivided interest of two thousand two hundred and eighty-nine acres out of the league of land patented to the heirs of Rhoda Kennedy, and situated in that county. By the agreement of the parties the venue was changed to Robertson county.

<p>Geo. W. Littlefield sued Wells for cattle and procured their seizure under writ of sequestration. Littlefield replevied the property. On the trial judgment was rendered for plaintiff for the property, which on appeal was reversed on June 5, 1883, and the cause remanded, with directions to the court below to enter such judgment in favor of the then appellant, Wells, as under the law announced in the opinion he was entitled to on the former trial, and to allow him such recovery as he had a right to in the state of the record below had the decision there been in his favor upon the trial of the right to the property in controversy. Thereafter, in the court below, on December 8, 1883, judgment was rendered in obedience to the mandate and opinion, but was afterwards, on motion of Littlefield, set aside, on a showing by him of newly-discovered evidence. Wells filed thereafter his motion in the district court asking that judgment be again entered in accordance with the mandate and opinion of the supreme court, which was overruled. Application was then made to the supreme court for a writ of mandamus to compel the lion. W. A. Blackburn, the district judge, to obey the mandate of the supreme court.</p> <p>It is regretted that the return of the district judge to the writ is not found among the papers of the cause, nor can it be found. Its character, however, may be plainly inferred from the opinion.</p>

<p>1. Action—Parties.—The real owner of property, whether it be a chose in action or not, may sue to reduce it to possession, and when a nominal party refuses the use of his name as plaintiff for the benefit of the real party in interest, no technical rule can prevent the real party from maintaining an action to protect that interest.</p> <p>2. Same.— Therefore, where a franchise authorized the collection of tolls from a lessee using a water channel, and for that purpose authorized suit to be brought in the name of the city of Corpus Christi for the benefit of the owners of the franchise, the refusal of the city to permit the use of its name as a plaintiff could not defeat the right, and the owners of the franchise can maintain the action in their own name.</p> <p>8. Same.— The right could not be destroyed by the refusal of the city council to authorize a suit in the name of the city.</p> <p>4. Same.— By the act under which the water channel was constructed, it was provided that any one holding the bonds of the city of Corpus Christi, to pay which the tolls were to be applied, could enforce the payment of tolls in the courts by compulsory process. Held, that the appellants as owners of those bonds could not. be affected in their right to sue by a refusal of the city to permit its name to be used as plaintiff.</p>

Rusk. Tried below before the Hon. A. J. Booty. On the 15th day of July, 1879, appellant filed in the district court of Rusk county an original amended petition against appellee, charging it with gross negligence-in its management, whereby physical injuries resulted to him.

<p>1. Railway company—Liability of receiver—Damages.—A receiver was appointed in April, 1878, by a court of competent jurisdiction, on the application of bond-holding creditors of a railway company, and was invested with exclusive authority to manage and carry on the business of the road, as a common carrier, subject to the supervision of the court, and for that purpose he was invested by its order with all the rights and franchises of the corporation. The property was afterwards sold, October 13, 1879, and purchased by the bondholders, for whose benefit the receiver had been appointed, and the sale had been ordered. The sale being approved by the court, a deed was executed to the purchasers. The purchasers thereupon conveyed the property to the original railway company for a less sum than the amount bid by them, taking a mortgage to secure payment. After the reconveyance to the original company, its board of directors passed a resolution accepting from the receiver the property and all money in his hands, and assuming all debts and liabilities against him as receiver, and providing for executing to him an indemnifying bond. The receiver was finally discharged from his trust in December, 1879. On the 15th of October, 1879, suit was brought against the receiver, and against the railway company, to recover damages for injuries inflicted on plaintiff through the negligence of its servants, at a time when the road was under the exclusive management and control of the receiver, but it was not claimed that he was responsible otherwise than officially, as receiver. Held:</p> <p>(1) The receiver was not liable to plaintiff after all the property, once in his control as receiver, had been turned over to the purchasers, and after he had received his discharge from the court.</p> <p>(2) With the discharge of such receiver from his trust, and the surrender of all property in his hands as receiver, his liability, being an official one, ceased, except in cases where he was personally, at fault.</p> <p>(3) It is technically true that the relation of master and servant does not exist between a railway company and a receiver, when the company’s property is placed in his possession by a proper court, and he is required by its order to discharge with the property of the company the duty of a common carrier. Citing cases, for which see opinion.</p> <p>(4) While this is true, the profits or income of the property, while in the hands of the receiver, are responsible for the satisfaction of claims for injuries resulting from the negligence of the receiver or of his employees.</p> <p>(5) The question whether, when a receiver is appointed on the application of mortgage creditors, they can be required to yield from the proceeds of the sale of the mortgaged property a sum sufficient to pay for freight lost, or for damages or injuries done passengers through the negligence of the receiver or his employees, not considered.</p> <p>(6) If the company was not responsible for damages sustained by plaintiff, through the negligence of the servants of the receiver, further than its current receipts while in his hands, it follows that the company would incur no obligation to pay such damages, from the mere fact that they purchased the property from those who bought it at the receiver’s sale.</p> <p>(7) A valid claim for damages against the receiver was entitled to satisfaction out of the current receipts applied to satisfy mortgage creditors, or to the improvement of the railway property; and the court appointing the receiver would have had authority to apply such portion of the proceeds of the mortgage sale as would equal such applied current receipts or the value of such improvements, to satisfy such claim for damages.</p> <p>(8) The resolution of the directors, providing for an indemnifying bond to the receiver, inured to the benefit of any one contemplated by it, having a just debt or claim against the receiver as such, or personally.</p> <p>(9) A claim for damages caused by injuries inflicted by the servants of a receiver, while he is operating a railroad, is entitled to payment out of the current receipts of the road; and if they are invested in betterments of the road, then such claim is entitled to satisfaction out of proceeds of sale of the road to satisfy a mortgage, to the extent of the value of such betterments.</p> <p>2. Verdict.— See opinion for a verdict held to be neither a general nor a special verdict, and not sufficient to authorize a judgment in this case.</p>

Tried below before the Hon. H. Clay Pleasants. Plaintiff on the 17th of February, 1881, sued F. S. Stockdale, D. C. Proctor and M. D. Monserrate, the trustees of the Indianola City and Land Company, a joint stock company, and T. C. Allen and A. Schwartz, to recover of them property inherited from his mother and devised to him by her last will, and also to recover of Stockdale the value of such property as had been lost to plaintiff by reason of Stockdale’s alleged neglect…

<p>1. Statement op Facts—Practice,— When there is nothing in the transcript showing that a statement of facts, filed after the adjournment of the court for the term, was filed under an order of court entered of record during the term, no assignment of error referring to charges of the court can be considered, unless the charges were so clearly against the law as to be erroneous under any state of facts that could be possibly shown under the pleadings in the case.</p>

Tried below before the Hon. B. W. Rimes. This was an appeal prosecuted by Geo. W. Jackson, who was one of the sureties on a claimant’s bond executed by Field & Co., to re-verso a judgment rendered against him on the bond by default, on the 7th day of December, A. D. 1883. In the spring of 1883, a writ of execution was issued out of the district court of McLennan county, Texas, in cause Ho. 3842 on the docket of said court, in favor of Tilman F. Fowler v. C. P. Field.

Tried below before the Hon. A. S. Walker. W. M. Daniels brought his suit against the Austin & Northwestern Railroad Company, Sandford & Son, contractors, and G-. G-.

Tried below before D. W. Doom, Esq., Special Judge. This case involved the validity of the same grant to eleven leagues of land situated in the colony of Austin & Williams (now in Williamson county) which was involved in the case of Hanrick v. Cavanaugh, 60 Tex., 1. Reference is made to the very lengthy statement deemed necessary in that case for a more clear understanding of this.

Tried below before the Hon. Wm. H. Stuart. Appellee brought this suit on the 21st of September, 1877, in trespass to try title against appellants, to recover possession of twenty acres of land situated in the county of Galveston, and comprising two smaller tracts of ten acres each, known as lots 120 and 125 in section 2, on Phelan’s map of the original survey of Galveston Island, alleging that it was the same that was granted by the state of Texas to the heirs of John…

Tried below before the Hon. G. H. Noonan. ■In April, 1859, I. A. & Gr. W. Paschal executed their note to Win. McLane, the father of the present party, H. II. McLane, for 37,000, and also in conjunction with Mrs. Mary 0. Paschal — the wife of . Judge I. A. Paschal—made a deed of trust to J. C. French, trustee, conveying the lots in question to secure said note. The property incumbered consists of two blocks divided from one another by a street — First street.

Error from Harris. Tried below before the Hon. James Masterson. Plaintiff in error, M. S. Cole, a married woman, sued in. trespass to try title for a three-acre tract of land, and a'fractional part of an acre adjoining, situated in the city of Houston. Her husband refused to join her in the suit, and leave was granted her by the court to prosecute it alone. The plaintiff was the owner of the property sued for.

<p>1. Liability of municipal corporation created by special act for damages.— The city of Galveston, a municipal corporation created by act of the legislature, was by charter invested with exclusive control over its streets and alleys, public grounds and highways in the city, and with power to widen, regulate, clean or improve the same, to put drains and sewers therein, and to prevent the incumbering thereof; to establish, erect, construct, regulate and keep in repair sidewalks, culverts and sewers; to compel persons to keep filth, rubbish, etc., from the sidewalks and streets and gutters, in front of premises occupied by them, and also other powers set forth in the opinion. A permanent physical injury resulted to a child, nine years old, •- who fell into an uncovered ditch in the city, from two to three feet deep, which for a long time had been left open by the city, along a defective sidewalk and without barrier or protection. In the ditch rubbish and piles of glass had been suffered to accumulate. In a suit for damages brought for the child, held:</p> <p>(I) The liability of the city could not result from any express statute.</p> <p>(3) No recovery could be had on such a cause of action had it been brought for injury resulting from neglect of the public officers of a subdivision of the state, even if given a quasi corporate existence, if created solely for a public purpose by a general law, applicable to all such subdivisions.</p> <p>(3) This rule grows out of the principle that a state cannot be made liable to an action for neglect or misfeasance of its officers, through which a person is injured, unless some statute creates the liability. Citing Bigelow v. Inhabitants of Randolph, 14 Gray, 543; Eastman v. Meredith, 36 N. H., 295, and other cases.</p> <p>(4) The tendency of decisions is, however, to change the rule to a limited degree, so as to make even quasi corporations liable.</p> <p>(5) The rule exempting quasi corporations from liability on such a cause of action lias no application to towns and cities incorporated under special laws.</p> <p>(6) The reason for the distinction is, that quasi corporations are but agencies of the state for the general convenience and benefit of all, while municipal corporations created by special charter are supposed to be created chiefly for the benefit of the inhabitants of the city.</p> <p>(7) The essential difference between municipal involuntary corporations, such as counties, created by general law, and incorporated cities, considered.</p> <p>(8) Whenever any municipal corporation is created, and is restricted to the exercise of powers pertaining to the administration of general laws and the policy of a state, they are agencies of the state, and not liable to be sued for the exercise of such powers, when the right to sue is not given by statute.</p> <p>(9) Persons or corporations voluntarily assuming to perform a work, even though it be quasi public in its character, must be held responsible for due care in its performance. When a city accepts a charter conferring defined powers, the resulting duty is imposed thereby to faithfully exercise them, and, failing in this, it is responsible to one injured thereby.</p> <p>(10) Gases cited.— City of Chicago v. Robbins, 2 Black, 418; Mayor v. Sheffield, 4 Wall., 189; Evanston v. Gunn, 99 U. S., 660; Barnes v. District of Columbia, 91 U. S., 551, cited.</p> <p>(11) A city existing under a special charter from the legislature is responsible in damages for the wrongful and negligent performance of acts done under its charter powers in the management of property or rights voluntarily held for its own immediate profit or advantage as a corporation, although inuring incidentally to the benefit of the public at large.</p> <p>(12) Cases cited and approved.— Duke v. Mayor of Rome, 20 Ga., 635; Brinkmeyer v. City of Evansville, 29 Ind., 187; City of Richmond v. Long, 17 Gratt., 375; Prather v. City of Lexington, 13 B. Mon., 559; Western College v. City of Cleveland, 12 Ohio St., 375; Detroit v. Blackeby, 21 Mich., 84, and City of Navasota v. Pearce, 46 Tex., 527, noticed and reviewed. Peck v. City of Austin, 22 Tex., 265, and Keller v. Corpus Christi, 50 Tex., 628, cited and approved.</p> <p>(13) At common law a city corporation created by special charter is liable for an injury resulting from a neglect to .keep its streets in repair, and it is not necessary that the right to sue therefor should be given by statute.</p> <p>2. Damages.— In this case, as above stated, if there were pieces of glass or other sharp and dangerous substances in the ditch, without which the injury, notwithstanding the fall of the child, would not have occurred, even tiren, though such substances would not have injured without the fall, yet if the fail was caused by the defective condition of the sidewalk, then it must be deemed the proximate cause of the injury.</p> <p>8. Same.—If the injury resulted from one of the causes, or from the two combined, if such cause would not have existed but for the neglect of the city, it would be liable if there was no failure on the part of the plaintiff to exercise due care.</p> <p>4. Damages.— A verdict was rendered against a city for §10,000 damages, caused by its negligence in failing to keep its streets in repair, whereby the leg of a child nine years old was injured and the child rendered lame for life. Held, that though the verdict was for a large amount, the judgment would be permitted to stand, the supreme court expressing an unwillingness to substitute their judgment for that of the jury in the absence of facts showing undue influence.</p>

<p>1. Colonization law—Sale.—The right of the purchaser of lands under article 24 of the colonization law of March 24,1825, to sell his concession, or to alienate the land previous to the expiration of six years from the date of the concession, was contemplated by article 27 of the laws and decrees of Coahuila and Texas. Citing Fulton v. Duncan, 18 Tex., 37.</p> <p>2. Community property.—A concession issued under the twenty-fourth article of the 'colonization laws of March 18, 1831, being the. subject of sale, was property, in which the wife of the party to whom it issued had a community interest, which on her death descended to her heirs, and attached to the grant subsequently extended in the name of the husband. Citing Porter v. Chronister, 58 Tex., 54; Wilkinson v. Wilkinson, 20 Tex., 244; and Tates v. Houston, 3 Tex., 452.</p> <p>3. Concession—Sale.— A power of attorney which conferred on the attorney the right to take possession of land to which the principal was entitled by virtue of a concession issued under the colonization laws of 1831, and to hold and alienate the same as his own property, the principal undertaking to abide by and ratify the acts of his agent, done under the authority thus conferred, though in form a power of attorney, was in legal effect a sale of the concession, and of the right to the land that might be acquired under it.</p> <p>4. Land — Superior title — Same.—Such an instrument, executed during the life of the wife of the principal to whom the concession issued, conveyed the superior title to the attorney and his vendees to the land afterwards granted in the name of the maker of the instrument, and no interest descended to the heirs of the wife, who died before the final title was extended.</p> <p>5. Presumption of deed.— See opinion for facts from which the sale of land, in the absence of direct evidence of a conveyance, was presumed.</p> <p>6. Presumption.—Since the surviving husband was authorized to sell the community property for the payment of -community debts, under the laws of Mexico, if, after the death of the wife, the surviving husband sold such property, a presumption of good faith on the part of the husband, and of the existence of community debts authorizing the sale, will be indulged against the heirs, who after a lapse of forty years assert tights to the property so sold.</p>

Tried below before the Hon. E. B. Turner. This was a suit brought by Morgan C. Hamilton, in June, 1875, against appellants as the heirs of Geo. W. Glasscock, Sr., deceased, for contribution. Appellee in his petition alleged that E. 1ST. Lane was appointed collector of internal revenue for the third district of Texas, on July 24, 1866, and appellees, James H. Eaymond, James P. McKinney, James M. Swisher and Geo. W. Glasscock, Sr., signed as sureties on his official bond.

Tried below before the Hon. R. R. Gaines. Suit brought by appellee to recover an interest in land which he claimed by virtue of its having been acquired in a land certificate located on the land, the interest in which was obtained when he was married to his wife. The admission of her testimony to transactions with, and statements by, John Brotherton, deceased, in this suit against his legal representatives was objected to.

<p>Appeal from Galveston. Tried below before the Hon. ¥m, TT. Stewart.</p>

Error from Coryell. Tried below before the Hon. T. L. Nugent.

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

<p>Appeal from Smith. Tried below before the Hon. Felix J. McCord.</p>

<p>1. Appeal bond.—An appeal bond, executed in a suit where there are several appellees, and where one of the appellees is not made a party as obligee, is of no effect; and even if all are included, it is rendered invalid if filed more than twenty days after the adjournment of the court for the term at which the judgment was rendered.</p> <p>2. Appeal in forma pauperis.— The statute which authorizes an appeal in foi’ma pauperis, by permitting one desiring to appeal to the supreme court to make oath before the county judge of the county in which the appellant resides, has reference to county judges in Texas, and an oath of that character before the county judge of some county in another state, where the appellant may reside, is of no effect.</p>

Tried below before the Hon. Peyton F. Edwards. This suit was ultimately brought by Jennie Martin, as administratrix of Josiah Martin, deceased, against W. M. Shumatte and Jno. A. Matthews, upon two instruments in writing alleged to be promissory notes, one of which is as follows: “$2,100. Palestine, Texas. “Two years from date, we promise to pay Josiah Martin two thousand and one hundred dollars, part and last payment for a patent right No. 181,086.

Tried below before the Hon. Jo Abbott. This suit was brought by appellant to recover possession of a lot of ground in the city of Cleburne. The statement of the case made by appellant’s counsel, and adopted by the judge who delivered the opinion, is unnecessary in view of the opinion, and quite too lengthy for insertion here.

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

Tried below before the Hon. Richard Maltbie. Stelle, Tost & Co. filed their suit in the district court of Grayson county against R. E. Shannon and J. T. Shannon, a firm doing business under the firm name of R. E. Shannon & Bro., and at the same time sued out an attachment and levied it upon certain goods in possession of J. T. Shannon. R. G. Hall, J. G. Eobberson and G. W. McDonald were sureties on the attachment bond.

Tried below before the Hon. Jo. Abbott. On December 11, 1882, appellants brought suit against R M„ Chapman & Co., in the county court of Johnson county, on a claim for $420.32, and caused an attachment to be issued, which on the next day was levied upon certain merchandise in the possession of the appellee, as the property of Chapman & Co. Appellee then made claim in accordance with the statute, and as the property was valued at $759.27, the affidavit and bond of the…

Error from Anderson. Tried below before the Hon. Peyton E. Edwards.

<p>Appeal from Limestone. Tried below before the Hon. L. D. Bradley.</p>

<p>Appeal from Hacogdoches. Tried below before the Hon. E. H. Morris, Special Judge.</p> <p>Appellant prayed for a divorce on. the ground of adultery on the part of appellee. It was shown that immediately upon finding out that appellee had committed adultery, appellant left her, and had remained away from her ever since. Adultery on the part of appellant was also proven, the act being committed on his part about two years after leaving appellee. Upon this ground a divorce was refused him.</p>

Tried below before the Hon. Felix J. McCord. Callaway Dean filed his petition on the 21st day of May, A. D. 1883, alleging that on the 8th day of May, 1883, plaintiff was lawfully seized and possessed of an undivided half interest of one thousand four hundred and seventy-six acres of land. That on that date, appellants entered and ejected plaintiff therefrom, wherefore he sued for restitution of the land, for damages, costs of suit and for partition.

<p>1. Statute construed.—Articles 2709 and 2711 of the Revised Civil Statutes mean that a transcript of proceedings from the county court shall be filed in the district court at the first term after judgment in the county court, and, if this cannot be done, that it shall be filed within sixty days after the appeal is taken.</p> <p>2. Jurisdiction op district court — Probate.— From the day when notice of appeal from a county court is given, the appeal is taken, and from that time the district court has jurisdiction of the cause.</p> <p>3. Same — At peal bond.— A supersedeas bond, not being essential to the appeal, serves no jurisdictional purpose.</p> <p>4. Removal op guardian.— The several grounds for removing guardians enumerated by statute (R..S-> arts. 2614-2616) exclude the idea of removal on any ground not so named.</p> <p>5. Same—Waiver op guardianship.— Though, by virtue of the Revised Statutes (arts. 1864, 2198, 2474), the right of one, who is not otherwise disqualified, to letters of guardianship, is prior to that of the person holding letters already given, still, where such an one requests a person to receive the appointment, and consents to the same, he cannot be heard to ask the removal of such guardian in order to be appointed in his stead. Mayes v. Houston, 61 Tex., 690; Cole v. Dial, 12 Tex., 100, cited.</p> <p>6. Same — Surviving parent.—That the surviving parent applies for guardianship in such a case does not change the rule. Cook v. Bybee, 24 Tex., 280, discussed.</p> <p>7. Same — Statutes discussed and compared.—Paschal’s Digest of Laws of , Texas, arts. 3835, 3886, 3888, discussed.</p>

Tried below before the Hon. A. J. Booty. Suit brought in the district court of Harrison county by George Anna Kirk, a citizen of the state of Virginia, and Laura Kirk, on the 23d day of March, 1881, for damages, wrongs and injuries alleged to have been done them by reason of the death of William Garth Kirk, husband of Laura Kirk and son of George Anna Kirk. The plaintiffs alleged that Wm.

<p>1. Damages — Pleading — Verdict.— When damages are claimed for wrongfully suing out a writ of attachment and for using the writ maliciously, the two elements of damage should be separately pleaded, and the jury should be required, under appropriate instructions, to discriminate by their verdict between the actual and exemplary damages found, if any. The pleader who neglects thus to plead should not be permitted to obtain benefit from a general verdict which fails to discriminate between the two elements of damage.</p> <p>2. Damages—Attachment.—A jury cannot infer malice in an attaching creditor, who honestly believes that the defendant is indebted to him and who has a reasonable and probable cause for so believing, simply from the fact that no debt did in fact exist. If there was probable cause for suing out the writ, actual damage only can be recovered.</p> <p>8. Same.—While malice maybe implied from the want of probable cause, it cannot be implied where probable cause exists. If the circumstances are such as to induce a reasonably prudent person to believe that a debtor is about to so dispose of his property as to defraud his creditors, malice cannot be implied against the creditor in attachment.</p> <p>4. Same—Probable cause.—Probable cause is a mixed question of law and fact, and should be submitted to the jury under appropriate instructions.</p> <p>5. Same — Fact case.— See opinion for facts held insufficient to sustain a verdict for exemplary damages for maliciously suing out an attachment.</p>

Error from McLennan. Tried below before the Hon. B. W. Rimes. The following from the brief of counsel is adopted as a correct statement of the case: Maria Boggess, on the 22d day of October, 1880, brought an action of trespass to try title to a certain lot and improvements thereon, in Waco, Texas, against Louis Berry and Sarah Berry, the plaintiffs in error in this cause.

Tried below before the Hon. James J. Perkins. On the 20th day of June, 1883, Wilson Lumpkin, as the guardian of the estate of Wm, H. Murchison, a minor, filed his -final account, because his ward had departed this life. The only heirs of the minor’s estate were Walter and Benjamin Murrell, minors, of whose estate E. B. Smythe was guardian. E. B. Smythe, guardian, contested the final account.

Tried below before the Hon. Richard hlaltbie. Stewart brought this suit against appellee to recover damages for an injury received while in the employment of the company as brakeman, claiming that he had lost his arm by reason of the negligent construction of a side track.

<p>1. Jurisdiction — Executor — Will.—Article 1948 of the Revised Statutes was manifestly intended to enable the executor acting under a will, which might withdraw the estate from the jurisdiction of the county court, to have the county court determine who were entitled to the entire estate, where the will failed to do so, or in what proportions beneficiaries were entitled to take under it, in order that the estate might be turned over to them after the executor had discharged his trust. When such a will does provide for the distribution of the entire estate, and also a means for its partition, the county court has no jurisdiction to pass upon the propriety of its administration by the executor, to allow him extra compensation for his services, or to discharge him from further liability.</p>

Tried below before the Hon. Felix J. McCord. Suit by the surviving wife of Thomas Smith, against the appellant, for damages resulting from the alleged negligence of the company and its employees. The facts as stated in the petition will be found in the opinion. The verdict and judgment were for the appellee for $8,000.

<p>Appeal from Anderson. Tried below before the Hon. Peyton Edwards.</p>

Tried below before the Hon. Felix J. McCord. The substance of this cause of action, as gathered from the pleading, is that plaintiff Sallie Dawson, joined by her husband, conveyed to defendant, the I. & G. N. R. R. Co., twelve acres of ground; that, at the time of making this conveyance, a parol agreement was made between them, which was the consideration for the deed, that defendant should permanently locate its depots in the southern part of the city of Tyler; that they…

Error from Anderson. Tried below before the Hon. James J. Perkins.

Error from Dallas. Tried below before the Hon. Geo. N. Aldredge. The opinion sufficiently states the facts. The verdict was against the company for $4,000. It was contended that the injury was inflicted on plaintiff at a time when plaintiff was not actually engaged in service, and when his time was his own, and that it was the result of the negligence of the manager of the train in not giving signals.

Tried below before the Hon. Felix J. McCord. This suit was originally brought by the appellee, James MeCaughey, against Coventry, Price & Co. and the Texas & St. Louis Eailway Company.

Tried below before the Hon. Jas. J. Perkins. This case was reported in 60 Tex., 180 et seq. Mary Ormond, for the benefit of herself and minor son, brought this suit against the I. & G. N. R’y Co. and R. S. Hays, who was its receiver by appointment of the United States circuit court, to recover damages for the death of her husband, James Ormond.

Tried below before the Hon. Thos. M. Paschal. This suit grew out of a probate proceeding in the district court, in the estate of J. M. and E. A. Ramirez, deceased. A part of the proceeding will be found reported in Burks v. Bennett, 55 Tex., 237. After the administration was transferred to the district court, Mrs. Burks, as administratrix, presented an account of the.administration to the court, which was contested by Mrs. Bennett as heir.

Tried below before the Hon. W. E. Collard. September 7, 1883, appellants brought this suit to perpetually enjoin appellee Terry from enforcing against them an execution by virtue of a judgment rendered against one Oullins and appellants in favor of M. Terry, wherein a vendor’s lien was foreclosed, in cause No. 1559, claiming that the records in that case showed that Oullins was sued as principal, Beal as surety and Henderson as indorser of the note.

Tried below before the Hon. Felix J. McCord. Manuel Garcia, a minor ten years old, brought suit in the district court of Harrison county, Texas, by his next friend, Sixto Garcia, against the Texas & Pacific Railway Company, averring that on August 20, A. D. 1883, he was a passenger on one of appellant’s trains going from Longview Junction to Marshall, Texas, and the train of cars went to Marshall on that date with appellee as a passenger thereon; that when the cars arrived…

Error from Morris. Tried below before the Hon. B. F. Estes. This suit was brought by Henry Cannon, and Millie Cannon in the district court of Morris county, on the 22d day of February, A. D. 1883, against G. C. Chambers and F. M. Thigpen for §75 actual and §75 exemplary damages, and for the restraining of the sale of a mule valued at §50, levied upon by F. M. Thigpen as constable of precinct number one, Morris county, Texas, by virtue of an execution issued out of the…

Tried below before the Hon. B. T. Estes. Suit was instituted by appellee against 0. S. Black, for the recovery of a tract of land described in her amended original petition, for rents claimed by her for use of same, and for the value of certain personal property described in her amended petition.

Camp. Tried below before the Hon. B. T. Estes. This suit was brought by appellees against John A. Stoker and his wife, M. L. Stoker, and A. T. Lightfoot and G. Seeligson & Co., who were made defendants by petition in trespass to try title.

Tried below before the Hon. Jo Abbott. Mrs. Dale and the other appellees owned lot 3, block 3, in city of Cleburne. G-. W. Bonner and his wife owned the adjoining lot 4. The appellees had a brick store-house on their lot. Bonner had erected a wooden building upon his premises. This last mentioned building was destroyed by fire in April, 1882, and, as it abutted upon the brick store, the latter was damaged also.

Tried below before the Hon. B. T. Estes. On the 1st day of February, A. D. 1876, J. A. Donaldson made and delivered to G. C. Chambers a promissory note for the sum of $141.32, payable to the order of G. C. Chambers one day after the date thereof, and to secure the payment of this note Donaldson, on the 1st day of March, A. D. 1876, executed to Chambers a trust deed upon certain personal property, including the mule in controversy in this suit.

Tried below before the Hon. George T. Todd, Special Judge. The appellee recovered judgment against one Brinck, and execution was levied on a stock of goods. It was alleged that two days before execution issued the debtor made an assignment of his goods to appellant for benefit of creditors. After levy the appellant made oath and filed claim bond under the statute. There was a trial of the right of property. The statement of facts was on motion stricken from the record.

Tried below before the Hon. B. T. Estes. C. McBride and F. M. Henry, the appellees, brought an action of trespass to try title against B. A. Bauguss, J. E. D. Blaydes, the appellants Mooring & Lyon and J. A. Bauguss, to recover a tract of seven hundred and seventy acres of land, part of the Davenport head-right in Cass county. J. E. D. Blaydes is the common source of title.

Tried below before the Hon. Thomas M. Paschal. Suit by Wm. Pape against the I. & G. N. R’y Co. for $1,000 damages. The petition alleged four grounds of damages, in substance as follows: 1. For carelessly constructing its road-bed over his land in such a manner as to cut off and separate about five acres of his land from the remainder of his tract, so as to deprive him of access to the five acres, to his damage $250. 2.

Smith. Tried below before the Hon. Pelix J. McCord. This suit was instituted by the appellee, T. B. Collier, to recover of the appellants the sum of §10,000 damages for personal injuries sustained by him while a passenger on the International & Great Northern Railroad, which it was alleged was being operated by the Missouri Pacific Railway Company, caused by the car, in which plaintiff was seated, leaving the track and turning upside down from an embankment, on the night of…

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

Tried below before the Hon. B. T. Estes. I. T. Suggs, the appellee, brought this suit against the Texas & St. Louis Bailway Company, for damages to him caused by the overturning of the passenger car in which he was traveling. He claimed to have been seriously injured, that his head was cut, his body crushed and some of his ribs broken, besides having severe internal injuries.

Tried below before the Hon. B. T. Estes. Schluter & Co., the appellees, instituted suit February 12, 1884, by attachment against French & Son upon a debt evidenced by a note, not then due, for §994.38, and an account for §73.78. On February 15,1884, suits were instituted by Henney & White for §1,553; by Moore & Murchison for $1,662, and J. M. Wilcox for §215.74.

Tried below before the Hon. Everett Lewis. Hovember 16,1881, Leach brought this suit against Wilson county, to recover upon an allowed claim evidenced by a warrant drawn upon the county treasurer, dated June 1, 1872, in favor of Maverick & Kroeger.

Tried below before the Hon. B. W. Rimes. Suit brought the 13th day of October, 1873. On the 1st day of September, 1881, appellant filed his first amended original petition, alleging that appellee E. C. Stuart was administrator of the estate of S. S. Ward, deceased, and the other appellees were the widow and children of Ward' that plaintiff was a son of the deceased and was twenty-one years of age in 1865, and that S. S. Ward died in May, 1873.

<p>1. Divorce.— In suits for divorce prosecuted against a defendant beyond the jurisdiction of the court, and who is in another state, the mode of procedure prescribed by statute for obtaining jurisdiction must be pursued in order to invest the court with power to render a judgment in personam.</p> <p>3. Same — Service — Jurisdiction.— In suchasuit,i£ there be no actual service made on the defendant within the state, or acceptance of service, and no appearance of defendant, then, in the absence of compliance with the statute which permits service to be otherwise made, a court can acquire no jurisdiction to decree a divorce. Citing Edriugton v. Allsbrooks, 31 Tex., 189; 4tki»s v. Atkins, 9 Neb., 194, and other cases.</p> <p>8. Divorce — Jurisdiction. — No legal service was made on a defendant in a divorce suit, but apparently a fraud upon the jurisdiction of the court was perpetrated, and a decree was entered divorcing the parties. A month after-wards the defendant filed her petition to vacate the judgment and to restrain the former plaintiff from again marrying. He married again before process was served on him. Held, the court had power to vacate its former judgment which decreed the divorce, no service of process having been made on defendant in the first suit. Citing Edson v. Edson, 108 Mass., 590; Willman v. Willman, 57 Ind., 501; Colvin v. Colvin, 3 Paige Oh,, 885, and other cases.</p>

<p>Appeal from Milam. ’ Tried below before the Hon. W. E. Collard.</p>

Tried below before the Hon. Jo Abbott. Suit by husband and wife in behalf of the latter, for personal injuries from alleged negligence of the defendant and its servants. On the 29th of September, 1881, James S. Greenlee and his wife, Lou M. Greenlee, the plaintiffs in this cause, with their five children, were traveling from the town of Meridian, to Comanche Springs, in a wagon drawn by a yoke of oxen, along the public road.

<p>1. Attachment—Affidavit.—The statutory grounds for attachment which must be sworn to may be verified by the affidavits of two different attorneys, each attorney swearing to different facts, provided the two affidavits cover all the facts required to be sworn to by the statute to authorize the writ. In this case, one affidavit was to the justness of the debt and its amount, and the other covered the other statutory grounds for the writ.</p> <p>2. Same.— Section 3 of the final title of the Revised Statutes requires that they shall be liberally construed with a view to effect their objects and to promote justice. Held, that thus construed, under the statute which permits the issuance of a writ of attachment when the statutory grounds are sworn to by an “ attorney,” it is competent for two attorneys to verify, each knowing distinct facts which must be stated, but which are unknown to the other.</p> <p>3. Construction of statute.--The Revised Statutes (art. 3133, subd. 4) provide that the singular number, when used in the language of a statute, shall include the plural, unless otherwise provided.</p> <p>4. Attachment.— Where the existence of the causes for the issuance of an attachment was sworn to by two different attorneys for the plaintiff, and one affidavit was made four days after the other, it was held that the difference in time was too small to invalidate.</p>

Tried below before the Hon. W. E. Collard. Mrs. Isabella Cooper, for herself and as next friend of Janie Cooper, brought suit with Meredith James, against Jno. G. Horner and Joseph lock, in trespass to try title, and for partition, for seventeen twenty-fourths of lot Ho. 3, block Ho. 159, in Bryan, Texas, in 1883.

<p>1. Judgment against heir for debt of ancestor.—A proceeding against the heir to subject assets inherited to the payment of a debt due from the ancestor is a proceeding in personam. To the extent of property inherited the heir is liable, but it is error to order the sale of specific land inherited from the ancestor to satisfy a judgment rendered in such a suit. Citing State v. Llewellyn, 25 Tex., 799, and Webster v. Willis, 56 Tex., 468.</p>

Tried below before the Hon. Green J. Clark. On March 28, 1884, plaintiff (appellee) filed his petition in the Kaufman district court, and therein alleged in substance that on January 15, 1884, he and his wife, S. E. Hardin, took passage on one of defendant’s trains at Terrell to go to some point west on defendant’s line; that about 3 o’clock in the morning, in Parker county, the train met with an accident and was derailed, whereby plaintiff was seriously injured; that the…

Harrison. Tried below before the Hon. A. J. Booty. On January 23, 1879, Wagnon and wife loaned W. W. Hall and John B. Hall $800, and took their promissory note for the same. At the same time, the Halls executed to Wagnon and wife a mortgage on land owned by them in severalty: W. W. Hall died in 1879, leaving a will appointing his wife, Elizabeth, sole executor, who qualified without bond, September 22, 1879.

Tried below before the Hon. W. E. Oollard. The appellee brought this suit in the district court of Milam county, alleging that he attained his majority on the 27th day of August, 1881, and that before that time he labored under the disability of minority, to recover of the appellant’s railway company damages for the violation of his rights as a passenger on one of its. freight trains, and upon which plaintiff had paid his fare from Rockdale to the depot of Milano J unction,…

<p>1. Liquor law — Penal bond — Statute construed.— Suit was brought against a retail liquor dealer and the sureties on his official bond, under the act of April 4,1881 (Gen’l Laws, p. 113), for knowingly permitting a minor to enter upon and remain in the retail liquor dealer’s place of business. It was shown that the minor was employed by the defendant to aid him in his grocery with the written consent of the boy’s mother; that before being employed there he had been out of employment for a month, and had been unable to procure employment elsewhere; that his mother was poor, and that his wages were greater than he could otherwise have obtained. On appeal from a judgment against the defendant and his sureties, held:</p> <p>(1) The legislature intended the penal statute which provides a penalty against any one who shall knowingly sell or give spirituous liquors to a minor (P. 0., 376) to remain in force unaffected by the act of April 4, 1881.</p> <p>(2) The action given by the act of April 4 is cumulative and did not repeal the criminal statute. Citing Simpson v. State, 10 Yerg., 535; People v. Stevens, 13 Wend., 341, and other cases.</p> <p>(3) The state may not exercise its power to declare that an act hurtful to society shall he punished criminally, and yet declare that a civil action may be prosecuted for the same act, when done in such manner as not to violate penal law, and this for the purpose of preventing such an act.</p> <p>(4) The consent of the mother to the employment of the minor by the saloon keeper did not protect him against the enforcement of the penalty of the bond.</p> <p>(5) The statute was enacted for the purpose of shielding youth from temptation, and the state has power to enact the law and provide for its enforcement, in disregard of the parents’ wishes, when its object and tendency is to protect the child; and for such a purpose, if necessary, if the parents were unfitted to properly rear their offspring, the state could confide the child to the keeping of another.</p>

Tried below before the Hon. Richard Maltbie. Appellee sued appellant to recover damages for injuries received by him while in its employ. The petition alleged in substance that defendant failed to furnish skilful engineer, conductor and brakemen to operate its train, and furnished defective and unsuitable machinery and cars, and that while in its employ as brakeman he received certain injuries described in his petition, and he claimed $20,000 damages.

Tried below before the Hon. T. D. Montrose, Special Judge. On the 14th day of January, 1880, S. M. Hawkins executed his note for $175 to O. B. Carter, appellant’s testator, and on the same day, to secure the payment of the note, he executed to O. B. Carter a mortgage on land containing the following description and field notes, to wit: “ The east half of a tract of land in the town of Greenville, bought by me from A. D. Robey.

Tried below before the Hon. Felix J. McCord. This was an action of trespass to try title and for damages, brought by C. S. Hays against the railway company, to recover land described in appellant’s petition, and $100 as damages. The action was in the usual form; tbe petition alleged possession and ownership in fee simple of the land, and the unlawful entry, ejectment of plaintiff, and the withholding from possession on part of defendant.

Tried below before the Hon. A. J. Hood. S. Jacobs, Bernheim & Co., on the 15th of February, 1882, brought suit in the district court of Tarrant county against Isaac E. Crum, on his note to them for $1,598.90, dated August 17,1881, due March 1, 1882, and bearing interest at the rate of ten per cent, per annum from maturity. An original attachment was at the same time sued out on the affidavit of S. B. Mayer, agent for the plaintiffs.

Error from McLennan. Tried below before the Hon. B. W. Rimes. This case has been twice before considered on appeal. For a statement of its character, reference is made to 55 Tex., 452. There also will be found the doctrine here held to be stare deeisis,— that though the superior title remains with the vendor of land until the purchase money is paid, the right in the vendor is not assignable with the debt.

Error from. Bexar. Tried below before the Hon. G. H. Noonan. On November 9, 1883, L. & H. Blum brought this suit against Grubbs and Bower to recover $1,652,30, claimed to be due by account as based upon a written instrument attached to the petition. It was alleged that the defendants were resident citizens of Bell county, and that the suit was brought in Bexar county by virtue of the written instrument signed by Grubbs, and dated November 5, 1883.

Tried below before the Hon. R. R. Gaines. Rogers & Atkinson, merchants at Walker Station in Red River county, became indebted to Hill, Fontaine & Co., the appellees, in the sum of §840.

Tried below before the Hon. L. D. Bradley. C. W. Beeman was a cattle-dealer in ¡Navarro county in 1882. He had a regular bank account with Jester Bros, appellants, bankers, at Corsicana, during the year. His deposits consisted in drafts drawn by him on his commission merchants, Campbell, Lancaster & Co., of East St. Louis, 111., collected through Jester Bros,, or discounted by them.

Tried below before the Hon. T. D. Montrose, Special Judge. C. M. Pearre & Co., appellants, sued J. W. Hawkins, appellee, for money due on an account, and on the same day sued out an attachment.

<p>Appeal from Johnson. Tried below before the Hon. Jo Abbott. This was an appeal from a judgment of the district court of Johnson county, May term, 1883, allowing a claim of S. C. Davis & Co., appellees, against the estate of S. P. Hollingsworth, deceased.</p> <p>In December, 1879, S. P. Hollingsworth, a resident of Johnson county, died, having made his will, by which he gave to M. A. Hollingsworth his entire estate.</p> <p>On the 16th of May, 1880, she presented the will to the county court of Johnson county, and after due process, etc., it was probated.</p> <p>Mo administration was taken out by M. A. Hollingsworth.</p> <p>On the 17th of July, 1882, in term time, administration with the will annexed was granted to D. T. Bledsoe upon the estate of S. P. Hollingsworth, deceased.</p> <p>Sam’l C. Davis & Co. filed as a claim against the estate of S. P. Hollingsworth, in the county court of Johnson count}’, a decree of the circuit court of the United States at Dallas, Texas, rendered at the December term, 1881, in favor of Sam’l C. Davis & Co., against M. A. Hollingsworth, for $1,096, with interest.</p> <p>The appellants contested this decree as a claim against the administrator of S. P. Hollingsworth, and upon issue made and trial thereof the county court decided that it was a valid claim against the estate of S. P. Hollingsworth. Thereupon an appeal was taken by contestants to the district court, which established the claim against the estate of S. P. Hollingsworth in the hands of the administrator.</p> <p>The judgment of the district court was as follows: “It is therefore considered by the court that the decree of the United States circuit court, northern district of Texas, numbered and styled as follows: No. 8, chancery. Samuel C. Davis & Co. v. Martha A. Hollingsxvorth, for the sum of one thousand and ninety-six dollars, dated January 28, 1882, with ten per cent, interest from date, be and the same is established as a valid claim in favor of said Samuel C. Davis & Co., and against the estate of the said S. P. Hollingsworth, for the sum of one thousand and ninety-six dollars, with interest thereon from the 28th day of January, 1882, at the rate of ten per cent, per annum, to be paid in due course of administration,” and judgment for costs against M. A. and J. E. Hollingsworth, and execution therefor upon the trial in the district court. Samuel C. Davis & Co. offered in evidence certified copies of the record in the circuit court of the United States at Dallas, Texas, in the case of Samuel C. Davis & Co. v. M. A. Hollingsworth, consisting of bill in chancery by Davis & Co., complainant, against M. A. Hollingsworth, filed May 19, 1880; the answer of M. A. Hollingsxvorth, and the final decree of the court in favor of the complainants and against defendant M. A. Hollingsworth.</p> <p>The certificates of the record were in proper form, and there was no objection on that account; but contestants objected to the decree and to the pleadings in said transcript of Samuel C. Davis & Co. v. M. A. Hollingsworth, and to each separately, as evidence against the administrator in this case, and moved the court to exclude the same as incompetent and illegal. The motion to exclude which was overruled, the transcript read in evidence, and defendants thereupon filed their bills of exceptions.</p> <p>Other facts regarding the character of the estate appear in the opinion.</p>

Tried below before the Hon. Green J. Clark. Plaintiff brought suit to recover damages for being ejected from defendant’s train, and alleged that on the 28th day of October, 1883, he entered defendant’s train at Elmo to he carried to Terrell; that after going about a mile, defendant, after receiving from him twenty cents, a part of the fare, declined to receive any further sum for such fare,— though the same was tendered to the conductor,— and with force and violence ejected…

Tried below before the Hon. Jno. C. Robertson. J. O. Ross & Co., composed of J. O. Ross and J. H. Burnett, were railroad builders and contractors, and during the fall of 1879 and until about July, 1880, were engaged as such, upon the road of the Texas & St. Louis Railway Company, doing certain work, consisting of clearing, grubbing, grading, bridging, pile-driving and furnishing cross-ties, pile and bridge timbers, and they also did some extra work.

Tried below before the Hon. W. E. Collard. The appellants J. S. Perry and others, property holders in the city of Rockdale, filed their petition in the district court of Milam county against the appellees, the city of Rockdale and John Scott, its assessor and collector of taxes, to enjoin the collection by the city of a tax of one-half of one per cent., ad valorem, for public school purposes, one-fourth of one per cent, tax, ad valorem, for general revenue purposes, and $1…

<p>Appeal from Hopkins. Tried below before the Hon. E. W. Terhune, Special Judge.</p>

Tried below before the Hon. Geo. N. Aldredge. The appellee (an English insurance company) issued to Patrick, McMillan & Co. an open policy of insurance, for the purpose of insuring against loss or damage by fire such property as might be entered by appellee’s agents, in a book attached to the policy. This policy was, with the consent of appellee, assigned, in October, 1883, to appellant.

Tried below before the Hon. D. P. Marr. On March 1,1884, appellants brought this suit against appellee to recover sections No. 6 and 10 of school lands situated in McMullen county, and containing six hundred and forty acres each, and to cancel a patent issued to appellee therefor, etc., alleging in substance that: Applications for the purchase of these two sections of land were filed by R. H. Brown, the appellee, who was the defendant below, in the name of G. J. Vanmeter, in…

Tried below before the Hon. L. W. Moore. Appellant brought this suit as a private corporation against John M. Comparet, Henry Habenicht and Frederick Kuhne, on the 6th clay of August, 1881; and afterwards made Benjamin, Thomas and Phil. P. Cage and Benjamin Brigham and C. A. Brown, defendants, to recover certain machinery described in “ Exhibit A,” a part of petition, or in the alternative to enforce an equitable or mortgage lien against the property.

Tried below before the Hon. Green J. Clark. In 1848 James M. and I. W. Perrin, who were brothers and nonresidents of Texas, made an agreement to buy and locate land certificates in Texas. By the terms of this agreement, I. W. Perrin was to furnish the money and James M. was to buy the certificates, locate the lands and procure the patents — the two to be equally interested in the lands so acquired.

Tried below before the Hon. Green J. Clark. In 1863 Z. G. M. owned three hundred and twenty acres of land patented to A. J. Paschal. October 12,1863, M. sold to J. C. Gaunt the northwest half, and executed and delivered to him a bond for title. The only description of the land given in the bond was “ one hundred and sixty acres, it being the northwest half of the A. J. Paschal survey.” The bond for title was never acknowledged or recorded.

Tried below before the Hon. Felix J. McCord. S. P. Wilson brought suit against A. N. Alford on a promissory note for $120, and to foreclose the vendor’s lien on two hundred and forty acres of land, part of the Martello Vasacuel survey. The note was executed by Alford to B. Miller and his wife Christina, who transferred it to Wilson. The note was given for the balance of purchase money for the land.

Tried below before the Hon. D. P. Marr. On March 1,1884, appellants brought this suit against appellee to recover sections No. 8 and 54 of school lands, situated in McMullen county, and sought to cancel patent, etc. The petition presented the cause substantially as follows: Applications for the purchase of these two sections of land were filed by R. H. Brown, in the name of G. J. Tanmeter, in the surveyor’s office on January 10, 1882.

Error from Van Zandt. Tried below before the Hon. Felix J. McCord. This suit was brought by appellee Carter against appellant Taylor on three notes for $250 each, due in one, two and three years, respectively, alleged to have been executed by Taylor as part purchase money for ninety-two and one-half acres of land situated in VanZandt county. Taylor filed a general demurrer, special exceptions and general denial.

T. B. Wheeler. C. L. Terry carried on business as a retail merchant in Callahan county, and died intestate. His heirs at law were his widow, Rachel Terry, his son, M. M. Terry, and a minor son who soon afterward died intestate, leaving Rachel Terry and M. M. Terry heirs of the entire estate.

Tried below before the Hon. A. J Booty. Fannie Osborn, widow of John D. Osborn, Sr., and guardian of his and her minor child, John Osborn, Jr., brought this suit against S. H. Osborn, the father of her husband, and William and Gay Osborn, and alleged: First.

Tried below before the Hon. C. C. Potter. Appellee sued appellants to recover balance claimed on open account, and interest at an agreed rate of twelve per cent.

Error from Robertson. Tried below before the Hon. W. E. Collard. This was a suit brought by P. J. Willis & Co. against W. H. Ham-man to recover $693.95, balance alleged to be due from the defendant as their attorney at law on account of collections made of a judgment which defendant had obtained for them against James S. Hanna and William Davis. The amount of the judgment was collected by the defendant, amounting to $7,443.09.

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

Tried below before the Hon. Green J. Clark. On January 18, 1883, appellee brought his suit, alleging in substance that on the 30th day of November, 1883, in the city of Terrell, by reason of the negligence of defendant’s servants in charge of defendant’s backing train, it collided with plaintiff’s wagon while passing over Virginia street, destroying the wagon, and inflicting on himself serious and permanent injuries, to his damage §10,000.

Tried below before the Hon. A. S. Walker. On March 3, 1883, appellee sued for a divorce and to secure a division and partition of property. Held: The matters found in No. 2 of above findings are sufficient grounds for divorce; and the effects thereof are not removed by the mere fact of plaintiff filing as pleadings charges not supported by evidence, and taken as false.” Upon these findings the court decreed a divorce and a division of the property.

Tried below before the Hon. J. A. Carroll. This was an action of trespass to try title by appellant. There were two patents to the same six hundred and forty acre tract of land; the plaintiff’s, issued in January, 1870, by virtue of the Geo. Taylor certificate, and the defendant’s in February, 1870, by virtue of the M. Huffman certificate. In 1850 Pleasant Thorpe, the real defendant in this cause, came to this country on a surveying expedition.

Tried below before the Hon. Green J. Clark. Suit by M. M. Green against Ferguson, sheriff of Hopkins county.

Tried below before the Hon. Z. Hunt. Richard H. Mumford brought this suit against the defendants to recover of them, as heirs at law of one William Clark, damages for breach of covenant of title contained in a deed alleged to have been made by Clark to plaintiff on the 7th day of January, 1853, conveying the tract of land described in the petition and situated near the town of Covington, in the state of Tennessee, containing one hundred and forty-seven acres.

Tried below before the Hon. A. J. Hood. On December 4, 1880, Joseph H. Brown, to meet and protect his acceptance for $5,679.93 in favor of Dymond & Gardes, of the city of Hew Orleans, which matured on the 6th of the same month, procured from the banking house of Tidball, YanZandt & Co., of Fort Worth, “telegraphic exchange” on New Orleans.

Tried below before the Hon. L. D. Bradley. Trespass to try title to one hundred acres of land, part of the Lipscomb Norvell headright survey in Limestone county, begun by appellant February 8, 1881. Defendant accepted service and filed his “ original answer and plea making James Phillips a plaintiff,” which consisted of — 1.

Tried below before the Hon. W. E. Collard. This suit was brought by Kaufman & Eunge against H. S. Pipkin, to recover upon a promissory note a judgment of debt, and to foreclose a vendor’s lien retained in the note on nine hundred and eighty-four acres of land on the J. J. Acosta grant, “ particularly described in a deed of even date herewith, conveying said land to me,” . . . “to which deed reference is hereby made, 14th January, 1878,” and signed by H. S. Pipkin.

<p>Appeal from Van Zandt. Tried below before the Hon. Felix J. McCord.</p>

<p>Appeal from Ellis. Tried below before the the Hon. Geo. A. Aldridge, in chambers.</p>

Tried below before the Hon. James H. Burts, Special Judge. On September 7, 1878, appellee, as governor of the state, for the use of the state, brought this suit against appellants and their sureties upon a lease and bond,executed and given by them as lessees of the state penitentiary.

Tried below before the Hon. B. F. Estes. Bayliss sued the Texas & Pacific Railway Company for the value of three hundred and thirty bushels of corn alleged to have been destroyed by the negligence of appellant in failing to keep a sufficient cattle-guard where its road entered his field.

Tried below before the lion. Geo. N. Aldredge. The following statement, taken from brief of counsel for appellant, was adopted by the commission of appeals as their statement of this cause to the supreme court: Geo. F. Alford, the appellee, was administrator of the estate of' John E. Cravens, father of appellant, which was pending in the probate court of Anderson county, and finally closed in the year 1880.

<p>Hunter instituted this suit against W. A. Benson, surveyor of Jack county, to compel him to approve and record the corrected field notes of a survey which had been made, and the original field notes approved, recorded and forwarded to the general land office, and against appellant Boon, who claimed that he owned patented lands which conflicted with Hunter’s survey as corrected, and who had filed a protest with Benson setting forth his claim and protesting against Benson’s approving and recording the field notes of the corrected survey.</p> <p>The case was discontinued as to Benson.</p> <p>The case as finally presented was one of boundary, and so tried by the court without a jury. Judgment in favor of Hunter. The facts of the case will be understood from the opinion and the maps.</p>

Tried below before the Hon. Jo Abbott. Appellee Helsley brought this suit against the appellant, the railway company, to recover damages to lands of appellee, alleged to have been caused by the negligent and unskillful construction of appellant’s railway on lands near those of appellee, causing overflow, etc. The nature and extent of the damage complained of is sufficiently set out in the opinion.

Tried below before the Hon. B. T. Estes. Appellee, for herself and two children, brought suit in the district court at Jefferson, Texas, for damages for the death of Patrick Harringfon, husband and father of the plaintiffs. The petition charged that Pat. Harrington was car-repairer on defendant’s road in its yard at Marshall, and was run over and killed by its engine while Harrington was on one of the yard tracks.

Tried below before the Hon. T. L. Hugent. This wag a suit brought by C. Garrett, the appellee, against Hamilton county for the recovery of $1,000 damages, alleged to have resulted to him through the action of its county commissioners’ court in establishing a public road of the first class over his land, against his protest.

<p>Appeal from Denton. Tried below before the Hon. A. T. Watts, Special Judge.</p>

Tried below before the Hon. D. P. Harr This suit was brought by appellee, as governor of Texas, to recover a penalty of $9,000, on the following instrument: “The State of Texas, “ County of Bexar, “Know all men by these presents, that the Leona Irrigation, Manufacturing and Canal Company, as principal, and H. F. & W. H. Young, Hugo & Schmeltzer and Wm.

Tried below before the Hon. Green J. Clark. Appellants and others, as the heirs of Amanda McDonald, deceased, brought this suit to recover an undivided interest in land described in the petition; asserting that Mrs. McDonald, during her life and while under coverture, made a pretended deed to Bryan for the interest sought to be recovered, which was void, as the acknowlment thereof was not in compliance with the statute.

Error from Limestone. Tried below before the Hon. L. Bradley. Frank Conrad brought this suit for damages resulting from the loss of his left eye. He charged “ that he was in the employ of the company, and in the line of his employment, engaged in striking a chisel with a spike maul, in the act of cutting railroad iron in two.

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

Error from Marion. Tried below before the Hon. B. F. Estes. Wallace & Co. sued out an attachment against Crittenden & Kibbie, November 7, 1870, which was levied upon certain merchandise. Bogel & Bro. made claim, and presented their affidavit and claim bond. About sixty days thereafter Crittenden & Kibbie were adjudged bankrupts by the United States court at Tyler.

Tried below before the Hon. Felix J. McCord. Darnell Bros, brought suit for $415 damages for delaying the cylinder of a steam-engine thirteen days after it was delivered to appellant for shipment. The case was transferred to the district -court.

Tried below before the Hon. B. W. Rimes. Trespass to try title, brought by Ann H. Dashiell and Alfred II. Dashiell, a minor, represented by his next friend, J. H. Bennett, filed 15th March, 1882, against J. J. Faulk and wife, Genie Faulk, for the recovery of four hundred and sixteen acres of the Jacob Walker league in McLennan county. Defendants filed a general demurrer, general denial and a plea of not guilty.

Tried below before the Hon. L. W. Moore. Appellees brought this suit the 17th day of April, 1879, in the district court of Bastrop county, against G. W. Jones, T. J. Mullin, Moses Gage, Thomas Reider, Andrew Yaws and Murray Burleson and wife, S. E. Burleson, for damages and to try the title to land known as the W. H. Hunt one-fourth league. On the 6th day of October, 1879, by supplemental petition, they made B. S. McWilliams, A. L. Saunders and Caton Erhard defendants.

Tried below before the Hon. D. E. Barrett, Special Judge. The sale was in this case ordered by the district court sitting in probate. The facts appear from the opinion.

Tried below before the Hon. Green J. Clark. The appellee brought this suit in the district court of Kaufman county, March 16, 1882, to recover §5,000 damages of the appellants for an alleged trespass upon and conversion of certain personal property belonging to him. In his petition he alleged his ownership, its situation in Kaufman county, its unlawful seizure while there by appellants, and their conversion thereof to their own use and benefit, as also the value of the same.

Tried below before the Hon. L. D. Bradley. On December 5, 1883, J. T. Sullivan & Co. sued out of the district court, of Navarro county a writ of attachment against Hollinger & Sims, failing merchants of the town of Dawson, in Navarro county. On the same day, Sparks, Mallory & Allen sued out of the county court of McLennan county attachments against Hollinger & Sims. Sutherland & Montgomery also, sued out attachment against them on the same day.

<p>Appeal from Fannin. Tried below before the Hon. R. R. Gaines.</p>

Tried below before the Hon. A. J. Booty. Suit against appellants brought September 6, 1878, in the district court of Harrison county, to revise, vacate and annul an order of sale, sale and confirmation thereof, of the land in controversy, made by the county court of Harrison county, in the administration of the estate of Thomas Heath, deceased, and to remove cloud from title, etc. The pleadings are very voluminous, and the record made up in disregard of the rules.

<p>Error from McLennan. Tried below before the Hon. B. W. Rimes.</p> <p>The case will be found stated as it was presented by the former appeal in 52 Tex., 170. The following from plaintiff in error’s statement of the case presents its progress afterwards:</p> <p>Upon return of the mandate to the court below plaintiff amended, alleging his purchase August 14, 1871, the executory purchase of Estell January 15, 1867, and forfeiture of same by non-payment at maturity, etc. He further alleged improvements made since he got possession under a writ of sequestration in this case April 30, 1874, and changed his prayer accordingly. Chism amended, leaving out his former plea tendering issue of title to the Rios, and joined plaintiff in his pleadings.</p> <p>The Rios made default. The defendant Estell amended, reiterating the material points of his former answer and conforming the same to the ruling of this court; also further alleging that since the former trial, the suits brought by the Rios in the United States court against this defendant and others had been decided in favor of said Rios, and that he had been forced to buy the land from said Rios in order to protect his rights under the purchase of Chism, but that this purchase was made in subserviency to the title he held under Chism, and prayed he be allowed reasonable compensation therefor, and that he have title under his said contract with Chism, etc.</p> <p>The trial resulted in a judgment for plaintiff for the land, etc., and the defendant Estell again brings the case to this court.</p> <p>The substance of plaintiff’s amended petition, filed after the cause was remanded, is thus stated in the brief of appellee’s counsel:</p> <p>In his amended petition Cole alleges the accrual of his title on August 14, 1871, by deed from Chism; that Chism had sold to Es-tell by bond for title, January 15, 1867, for three notes, due in one and two and three years, two of which were for $666-§, and one for a less sum, although the bond recited three notes for equal amounts; that the effect of said bond was an obligation to make title on the prompt and full payment of said notes; that Estell failed and refused, without adequate excuse, to pay any part of said notes, though often demanded; that he never intended to pay them, but, being insolvent, designed to hold possession of the land and defraud Chism of the use and profits until he could be ejected, or invent some pretext to retain said land without payment. That the money was often demanded after the maturity of all of the notes; that he neither offered nor attempted to pay them, and after default was notified by Chism and his agents of his intention to rescind the contract, and that Estell set up no claim to compensation for any improvements or payments, nor did he base his refusal to pay upon any fear or apprehension as to the validity of Chism’s title, but simply failed and refused to pay, without excuse; and that these facts were known to plaintiff, and relied on by him when he purchased from Chism as authorizing Chism to abandon the contract.</p> <p>That the notes were tendered to Estell on the rescission and have been delivered into court for him; that no person has since asserted any liability of Estell upon them. At all times before the sale to plaintiff, Chism was able, ready and willing to make title to Estell upon the payment of the notes. That after full notice of intention to abandon said contract Chism conveyed to Cole; that Cole has paid for the land; that Estell was in possession at the institution of this suit and refused to deliver possession to plaintiff, but held possession three years, converting the rents and profits, and is still setting up claim to same; that the pretended excuses now set up for non-payment are false; that he well knew that Chism had the title, and does not now assert that any of the pretended adverse titles are or were superior to Chism’s, or that Chism’s title was doubtful; that it is not true, as alleged by Estell, that Chism is insolvent; that the right to abandon the contract having accrued and been exercised, no supervening equities, real or so-called, arising out of doubts or apprehensions of Estell as to title, and no subsequent failure upon the part of Chism to perform any duty to Estell, growing out of these supervening events, can impair Cole’s title. Before the accrual of plaintiff’s title, Estell, fraudulently designing to deprive Chism of his security, cut down, wasted, destroyed, sold and converted to his own use, timber of more value than any pretended payments or improvements made by him.</p>

Tried before the Hon. C. S. West, Special Judge, without a jury. This case having been tried in the court below before the Hon. C. S. West, and the Hon. J. W. Stayton having been of counsel, on appeal the same was heard before the chief justice and the Hon. F. Chas. Hume and Hon. Robt. G. Street, special judges. The facts of the case are sufficiently stated in the opinion.

Tried below before the Hon. L. C. Alexander. This was a suit by the Bridge Company against Compton, then the marshal of the city of Waco, seeking to perpetually enjoin him from executing an ordinance of the city of Waco, which is as follows : “ Ordered that the marshal be and is hereby instructed and authorized to proceed at once to remove any and all obstructions that may exist in Elm and Washington streets that in any way prevent the public from free access to and crossing…

Tried below before J. M. Pearson, Esq., Special Judge. The following statement of appellants’ counsel presents the case: This suit was brought by appellants against appellees for partition of land belonging to estate of D. C. Foreman. Appellee Lucetta Meroney claimed the right, as surviving wife of D. C. Foreman, to use and occupy the land as the homestead of herself and D. C. Foreman, and that it had been set apart to her by the county court of Collin county.

<p>1. Jurisdiction — Quo warranto.— An information in the nature of a quo warranto sought to oust the defendants of a franchise alleged to have been usurped by them. No specific value of the franchise was alleged, but it was stated in the information that §80,000 in tolls had been collected by defendants under the franchise within less than seven years before the institution of the suit, and that tolls were still being unlawfully collected. Held, that in view of the character of the proceeding, the petition contained sufficient allegations of the value of the amount in controversy to sustain the jurisdiction of the district court.</p> <p>2. Quo warranto — Action.— A proceeding by quo warranto maybe maintained against the enjoyment of a franchise claimed, whether under state legislation or municipal act, when there was absence of power to grant it.</p> <p>3. Same — County attorney.— A county attorney may institute proceedings by quo warranto in the name of the state to oust one from the exercise and enjoyment of a franchise not authorized by law. This case distinguished from State v. Paris R’y Co., 55 Tex., 76.</p> <p>4. Franchise—Ordinance—Tolls.—The city of Corpus Christi, under act of February 16, 1854, was given the right to construct a channel between the Bay of Aransas and the Bay of Corpus Christi; to pay for it with money in the city treasury, and to borrow money if necessary, giving bonds therefor; to levy tolls on vessels passing through the channel; to refund the money used, with interest, and to pay off the bonded debt accruing for the money borrowed to execute the work. Under that act, the city of Corpus Christi employed certain parties to do the work, and afterwards the state granted the employees sixteen sections of land per mile of channel to be constructed. After this the city, by consolidated ordinance, provided for issuing to the same employees §500,000 in city bonds for the completion of the work, with a provision that they should be permitted to collect tolls on vessels passing through the channel, until the bonds were paid. Held, that the effect of the ordinance was to transfer to the employees, to the extent of the power of the city to do so, the franchise of collecting tolls, and to require them to appropriate the sums collected to the payment of the bonds issued to them by the city.</p> <p>5. Constitution construed.— When congress has legislated under the grant of power contained in the federal constitution, and has regulated any particular matter pertaining to foreign or interstate commerce, a state has no right to interfere and pass laws which are tantamount to a regulation of the same subject.</p> <p>6. Same.— Under the commerce clause of the federal constitution there are some powers conferred on congress which, from their very nature, may be exercised by a state until the federal government shall legislate concerning them. Among this class is to be included the power to improve the waterways of a state by the removal of obstructions from their channels for the benefit of navigation, and to authorize persons or corporations to collect reasonable tolls for the increased facilities thus afforded to travel and commerce (citing authorities, for which see opinion).</p> <p>7. Statutes construed — Constitutional law.— The legislation of Texas, the effect of which was to vest in private parties, as agents and contractors of the city of Corpus Christi, the franchise of collecting tolls from all! freight passing through the channel between Corpus Christi Bay and Aransas Bay, until they had realized sufficient over and above the expenses of collection to retire bonds issued by the city in payment for the construction of the channel, was not in violation of the constitution of the United States.</p> <p>8. Retroactive laws.— An act of the legislature which would have been constitutional in conferring power on a municipal government to act in futuro, but which attempts to validate an ordinance adopted before authority to-pass it was vested in the city by charter, was not a retroactive law within the meaning of art. I, sec. 14. of the state constitution of 1869.</p> <p>9. Statute construed.— There is no constitutional direction as to the manner in which municipal corporations shall enact ordinances, and it is competent for the legislature to validate by statute the ordinance of a municipal government passed to revive a repealed ordinance for the benefit of a contractor. Citing People v. Supervisors, 30 Mich., 95, and People v. Mitchell, 35 N. Y., 551.</p> <p>10. Constitution construed — Caption of bills.—Section 196 of the act of May 33, 1873, entitled “An act to re-incorporate the city of Corpus Christi,” and which attempted to validate as binding contracts certain city ordinances passed before that time, under which money had been expended by those contracting with the city, was not in violation of the constitution in force, as not being indicated in the caption of the act. The section was germane to the object of the act. The tendency of decisions is to construe the constitutional provision regarding the caption of legislative acts liberally.</p> <p>11. Constitutional law.— An enactment by the legislature validating a defective city ordinance, so as to protect one who had expended money under it, is not the exercise of judicial power.</p> <p>12. Legislative act — Constitution construed.—The constitutional provision which prohibits the amendment of a legislative act by a mere reference to the title of the law amended has no application to an act validating a municipal ordinance.</p> <p>13. Contract to collect tolls.— After the passage of the act of May 33, 1873, a valid contract existed between the city of Corpus Christi and Morris & Cummings, under which, upon conditions (referred to in the opinion), Morris & Cummings were to be allowed to collect tolls on vessels passing over the channel between Corpus Christi Bay and Aransas Bay.</p> <p>14 Repeal of city charter—Contracts.— The power of the legislature to repeal an act creating a municipal corporation always exists; but it cannot be exercised to the injury of creditors of the corporation, or of those who hold contracts with it, and especially those who have complied with their contracts, and have not received their compensation from the municipal government. Citing Mount Pleasant v. Beckwith, 100 U. S., 514</p> <p>15. Contracts — Statute construed.—The obligation to perform its contracts rests upon a corporation as upon a natural person, and a legislative act which deprives a corporation of its charter cannot be construed as relieving it from liabilities to creditors already incurred.</p> <p>16. Agent — Contract.— All agencies whereby the agent agrees with his employer to perform certain services for the latter, and to receive in return certain compensation, are contracts; and none the less so because the services are performed by one party in the name of the other, as agent.</p> <p>17. Statute construed — Contract.— The agreement that contractors and agents of the city of Corpus Christi should collect tolls (as stated in the fourth subdivision of this syllabus) was not to be affected by an act of the legislature repealing the charter of the city; a different construction would violate both the constitution of the United States and of Texas.</p>