Volume 63 — Texas Reports

Tried below before the Hon. Green J. Clark. Suit by appellants against J. W. Hawkins and S. M. Hawkins upon a note for $1,111.80, and against J. W. Hawkins and his wife, S. T. Hawkins, to foreclose a mortgage executed by J. W. Hawkins and wife to appellants on lot No. 8 and half of lot No. 1, in block No. 15, in the town of Greenville, and block No. 27, to secure its payment.

Error from Galveston. Tried below before the Hon. Wm. H. Stewart. Suit by Heidenheimer against Strasburger to recover $4,099.13, alleged to be due on a note dated December 13, 1882, payable one day after date to Heidenheimer’s order, and executed by Strasburger.

Tried below before the Hon. John W. Eobertson. Suit by S. M. Swenson against John Stringer and Olara D. Stringer, his wife, and S. J. Swenson, trustee. On March 5, 1877, John Stringer borrowed from S. M. Swenson $4,000, and delivered to him his note for that sum with interest at ten per cent, per annum. The note was payable in instalments, the last instalment falling due on March 5, 1882.

<p>1. Galveston Wharf Company —Decree.—The decree of the district court of Brazoria county, rendered April 1, 1869, in the case of The City of Galveston v. The Galveston Wharf Company, consolidating the interests of the respective parties thereto, vested the undivided one-tliird of the property of the consolidated Wharf company in the city of Galveston, with the exception of certain property specified in the decree. Said one-third interest was represented by one-third of the stock of the consolidated company..</p> <p>2. Same.— The effect of said decree was to vest in the city of Galveston, not only the right to receive one-third of the dividends accruing to the wharf company, but the further right to one-third -of the entire property of the company as consolidated; it being, however, subject to the control of the Galveston Wharf Company for the uses and purposes for which the consolidation was made.</p> <p>8. Same.— The power to alienate one-third of the wharf company property, which was reserved to the city in said decree, is inconsistent with any other relation to the one-third interest than that of ownership by the city.</p> <p>4. Same.— Said decree clothes the wharf company with a power to be exercised in the management of said one-third interest, through a directory to he selected, in which .the city of Galveston is to be represented as provided by said decree.</p> <p>5. Wharves.— The fact that compensation is received for the .use of a wharf across which the commerce of a -country passes does not divest it of its public character.</p> <p>6. Taxation—Constitutional law.—Sec. 1, art. 8, of the state constitution, which enumerates certain property which is exempt from taxation, cannot be construed to subject all property not specified to taxation; that section simply indicates the character of things and the uses to which they must be appropriated in order to entitle them to the exemption.</p> <p>7. Taxation of municipal property..— In. the absence .of any statute controlling the subject, such property as a municipal corporation owns and uses for a public purpose is not affected by general laws regulating taxation. (Citing many cases, for which see opinion.)</p> <p>S. Taxation.— The city of Galveston owns such -a beneficial interest in the ¡property of the Galveston Wharf Company, and of the dividends to arise from its use, as venders it improper for the city to impose taxes which would ordinarily deprive the city of a part of the dividends of the company which it is entitled to receive.</p> <p>9. Same.— The two-thirds interest owned by the wharf company is subject to ¡state and municipal taxation.</p> <p>10. Equity—Taxation.— The rights of the -city .of Galveston .and of the wharf company, in respect to dividends, resulting from the fact that the interest of one is taxable, and that of the other is not, must be adjusted as would the rights of persons holding shares of stock in other corporations, except that the city cannot dimmish the dividends by the imposition of a tax in its own favor, not authorized by law.</p> <p>11. Injunction.— An injunction properly issued to restrain the city of Galveston from collecting taxes on its interest in the property of the Galveston. Wharf Company.</p>

Tried below before the Hon. J. C. Russell. This suit was originally instituted in a justice’s court, precinct No. 1, Nueces county, against the Western Union Telegraph Co. by W. S. Rains and his brother for $198.90; the demand being presented in the nature of an open account and sworn to as required by statute. Exceptions to the action in this form having been sustained, they brought suit in form of petition. W. $. Rains sent the following message to Chas.

Tried below before the Hon. I. B. McFarland. On the 26th of March, 1883, the appellants McKinnon & Van Meter, who were defendants below, filed their affidavit and claim bond to try the right to certain lumber, shingles, doors, sash, etc., levied on by the appellees, the Reliance Lumber Co., under a writ of attachment issued in cause Ho. 5940, wherein the Lumber Company were plaintiffs and one E. J. Ingleheart was defendant.

Tried below before the lion. I. B. McFarland. On the 12th day of January, 1884, F. Schulz and his wife Wilhelmina Schulz, for a consideration of $6,000, deeded about six hundred acres of land to H. Schulz, Carl Schulz and Ferdinand Rogge, and on the same day went before H. Miller, a notary public in and for Washington county, and acknowledged the same.

Tried below before the Hon. H. Clay Pleasants. Wilhelmine Beck instituted this suit in May, 1883, and prayed a divorce be granted her on the ground of cruel treatment and other excesses on the part of her husband, Carl Beck. The latter answered, setting up that she had not conducted herself with propriety and treated him. with kindness and forbearance, and that she had on her part ill-treated him, and therefore he prayed for a divorce.

Tried below before the Hon. J. O. Russell. Action by the appellants against several parties, including the appellee, on the 26th day of June, A. D. 1882, in the nature of a bill to enforce contribution for costs paid and expenses incurred by the appellants in the prosecution of a suit in the district court of Hueces county, for the purpose of establishing the boundaries of and quieting the title to a tract of land known as and called “La Huerta,’’ in which all the parties…

Tried below before the Hon. I. B. McFarland. This suit was instituted by appellant, S. M. Dunlap, in the district court of Washington county, on the 24th day of July, 1883, against appellee L. S. Southerlin, and against Wyatt Lipscomb, appellee, as sheriff of Milam county, to enjoin Lipscomb from selling the interest of S. M. Dunlap in the partnership property of Dunlap & Graves, under an execution issued out of the district court of Washington county on the 17th day of…

Error from Washington. Tried below before the Hon. I. B. McFarland.

Tried below before the Hon. J. C. Russell. This suit was instituted by Carroll & Iler, the appellees, on. the following bill of exchange: “$1,805.06. Corpus Christi, Texas, June 8, 1883. “ The Texas Land and Cattle Company, Limited: “ Pay to the order of Carroll & Iler, eighteen hundred and five 06-100 dollars in current funds. On account of building and repairs. Payment in full. “ Charge $1,805.06 to Banche. “ To Underwood, Clarke & Co., ) Thos. Beynon, “ 15 West Mo.

Tried below before the Hon. I. B. McFarland. Appellee filed suit in the district court of Washington county, May 12, 1880, to recover damages of the railway company for injuries received while engaged in play with some other persons upon a turntable 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., 127).

Tried below before the Hon. Green J. Clark. On April 9,1883, plaintiff (appellee) brought suit in the Kaufman district court against defendant (appellant) to recover the value of thirty-six bales of cotton which he alleged were destroyed by fire on January 28, 1883, at Terrell, by fire originating from one of defendant’s engines.

Tried below before the Hon. W. D. Wood, Special Judge. Second suit in trespass to try title, brought by appellants March 27, 1875. It was before this court oh a former appeal, and was reversed and remanded at the Austin term, 1879. The case is reported in 51 Tex., 635, where a full statement will be found. After the case was remanded appellants sought to attack the deed from Moffitt to W. H. Steele, and their affidavit was stricken out.

<p>1. Notice of appeal—Practice in supreme court.—Even though notice of appeal is given from an interlocutory decree, yet where no such notice is given from the final judgment, the appeal will be dismissed, as there is no such thing as an appeal from an interlocutory order without an appeal from a final judgment, though the former may be considered when the latter is properly brought up for revision. (Citing Messner v. Lewis, 17 Tex., 519.)</p> <p>2. Same.— Where the appeal is only from an interlocutory order, and not from a final judgment, the supreme court will of its own motion dismiss the appeal.</p>

Tried below before the Hon. J. C. Russell. Appellants sued A. Varona for nine hundred and thirty-seven and two one-hundredths Mexican dollars, and obtained a writ of attachment against him. On the same day they sued out writs of garnishment against appellees, alleging indebtedness to Varona. The writs were served on the agents of appellees. ■ They answered separately, admitting a qualified indebtedness to Varona on a policy of insurance.

<p>1, Measure of damages.— The measure of damages for a failure to deliver in accordance with the contract specific articles is the difference between the contract price and their value at the time and place when they should have been delivered. Proof of value at any other time is inadmissible.</p> <p>8. Contract — Ambiguity—Delivery.—In a written contract between a wholesale house and a customer for the purchase of specific articles, the following language occurred descriptive of the thing bought: “ 15 bbls. T. J. Monarch $2.50, 1880, laid in Laredo direct from distillery, same as gauger leaves it.” Held:</p> <p>(1) It was competent to show by parol that it described fifteen barrels of whisky of the T. J. Monarch brand, manufactured in 1880, at the price of $2.50 per gallon.</p> <p>(2) That the words “laid in Laredo, direct from the distillery,” bound the seller to deliver the whisky in Laredo within a reasonable time.</p> <p>3. Handwriting — Evidence.— When it is shown that letters are received by due course of mail, purporting to be in response to letters mailed to the party whose name appears to be subscribed to such letters so received, their genuineness will he presumed, and proof of handwriting will not be required.</p> <p>4 Contract, rescission of.— If after the making of an executory contract for • the delivery of goods, the purchaser, who has not paid the contract price, becomes insolvent, the vendor may refuse to deliver, without being liable therefor.</p>

Tried below before the Hon. R. R. Gaines. Suit brought by William Miller and appellee, Elizabeth, his wife, against William C. Whitsett and appellants, J. L. Smith and wife, E. H. Smith; alleging that, in Januarjr, 1865, plaintiff Miller, by a verbal contract, purchased from one James M. Collins two tracts of land in Fannin county, embracing together five hundred and ninety-nine and one-half acres; that by the terms of the contract Miller was to pay Collins $1,500 for the…

<p>1. Pleading—Certainty to a common intent in general.— Where the allegations in a petition were not sufficiently certain to a common intent to inform the defendant of the nature of the issue to be met, held that it was not error to sustain a demurrer to such pleading.</p> <p>3. Master's liability to volunteer servant.— Where a person volunteers to assist the employees of a railway company in managing its cars, and is injured by the train, such person, in respect to the liability of the railway-company for the injury, stands in the same position as those with whom he associates himself.</p> <p>3. Case distinguished.— This case distinguished from Bradley v. N. Y. Central R. R., 03 N. Y., 99.</p>

Tried below before the Hon. I. B. McFarland. Appellee John M. Key brought this suit against Mrs. L. Biesenbach and her husband, A. Biesenbach, by suing out a distress warrant in the justice court of precinct number 3, in Washington county, to secure the sum of $200 rent for a portion of the “ Central Hotel” in the city of Brenham, for the months of June, July, August, September and October, 1883.

„ Appeal from Burleson. Tried below before the Hon. I. B. McFarland. Jannett & Fran lie brought this suit in the district court of Burleson county against Miller & English and S. G. Wilson, for damages, actual and exemplary, for an alleged unlawful seizure and conversion of certain personal property claimed by the plaintiffs. The case was tried by a jury, and resulted in a verdict and judgment for the plaintiffs for $846.97 actual and $500 exemplary damages.

<p>1. Judgment against one non compos mentis.—A judgment rendered by a court of competent jurisdiction against one who was non compos mentis at the time of its rendition is binding upon him and on those holding in privity with him, so long as it remains unreversed, and not affected by some direct proceeding instituted to annul it. (Citing Lamprey u. Nudd, 29 N. H., 303; Wood v. Bayard, 63 Penn. St., 331; Johnson v. Pomeroy, 31 Ohio St., 248, and other cases.)</p> <p>2. Same.—Such a judgment is conclusive, in trespass to try title, as to all matters affecting title which might have been litigated, and is binding upon parties and privies until reversed or set aside by some direct proceeding.</p> <p>3. Equity — Parties.— In a proceeding to set aside a sale made under judgment, the plaintiff and purchaser should as a general rule be made parties. (Citing Toler v. Ayres, 1 Tex., 400, and other cases referred to in the opinion.) A court of equity will not, as a general rule, entertain a bill which does not make all persons who would be affected by the decree sought, parties to the proceeding.</p>

Tried below before the Hon. Geo. N. Aldredge. On July 28,1880, Boone brought this suit against Muller and wife, and Moore, the then sheriff of Dallas county, to enjoin a sale under an execution, which had been issued upon a judgment rendered in the district court of Dallas county, in favor of Muller and wife and against the First National Bank of the city of Dallas.

Tried below before the Hon. Hi chard Haltbie. Appellants begun this suit by attachment in the county court on open account for §493.25. The case was transferred to the district court on account of the disqualification of the county judge. September 3,1881, original answer filed by defendants in district court. May 9, 4883, defendants filed motion to quash the attachment.

<p>1. Fraudulent conveyance — Deed.— When one in failing circumstances purchases real estate, and procures the deed thereto to be by the vendor made to another, for the purpose of hindering, delaying or defrauding creditors, such real estate is subject to execution to satisfy a judgment against the purchaser, and the sheriff’s deed in such case conveys title.</p> <p>2. Same.—The rule is not varied by the fact that the purchase was made for the benefit of a daughter, and that money, which had been before set apart and appropriated for the daughter’s benefit, was paid for the land, there never being any actual delivery of the money to the daughter, but the same being paid by the parent on the purchase direct to the vendor.</p>

Tried below before the Hon. W. A. Blackburn. Suit by appellant upon a note for $930.30, dated November 16, 1873, and due December 1, 1873. Attachment issued, which was levied upon a stock of merchandise, and which was sold as perishable property. The attachment was quashed upon motion of appellees, and judgment rendered for appellant for the amount of the note. Appellant claimed that the court erred in quashing the attachment.

Tried below before the Hon. C. C. Potter. This was an action of trespass to try title brought in the district court of Denton county, Texas, by the appellant, Wm. Davie, against appellee J. P. Terrill, to recover a tract of four hundred and three acres of land, being the Wm. Gaffield survey in Denton county, Texas. At the spring term, 1883, of said court, trial of the case was had.

Tried below before the Hon. A. J. Booty. The plaintiffs below were Benj. F. Blanton, Charles L. Bunnally and Leander B. Cunningham, comprising the firm of Blanton, Nunnally & Co. The petition was filed April 3, 1883.

Tried below before the Hon. A. J. Hood. On the 2d day of May, 1883, appellants caused an attachment to issue out of the district court of Tarrant county against O. W. Barradell, which was on the 2d of May, 1883, levied on a drug store belonging to C. W. Barradell, and also on a soda fountain and apparatus in possession of Barradell. May 23,1883, appellee executed and filed with the district clerk an affidavit and bond, claiming title to the soda fountain and apparatus.

<p>1. Limitation — Jurisdiction — Triad of right of property.— The statutes in force in 1877 provided that, when property was claimed by a third party, which was seized under execution, and when the execution was levied in the county in which the judgment was rendered, the claim and bond should be returned into the court from which the execution issued, and this without reference to value. In March, 1877, personal property of less value than §200 was seized under execution, and a claim and claimant’s bond were filed to try the right to property, and were returned to the county court from which execution issued. Issues were there made up, and the case was continued until May, 1878, when it was dismissed, for want of jurisdiction, by the administrator of the claimant, and the claim was not afterwards prosecuted. In May, 1883, suit was brought against the securities on the claimant’s bond, and the defendants pleaded limitation. Held:</p> <p>(1) It is not clear where jurisdiction of cases for trial of right of property existed after the adoption of the present constitution, and before the adoption of the Revised Civil Statutes.</p> <p>(3) Under the Revised Statutes (R. S., 4831) the justice’s court alone had jurisdiction.</p> <p>(3) The statute of limitations could not begin to run until suit could legally have been brought on the bond. No subsequent action of the claimant could make a cause of action relate back to the date of the bond.</p> <p>(4) It was the duty of the officer to return the papers to the proper court, and his failure could not defeat the claimant’s right.</p> <p>(5) The condition of the bond was, “in case he fails to establish his right to such property he shall return the same to the officer making such levy.” The failure to return the papers to the proper court did not create a breach of the bond; but when the claimant procured a dismissal of the cause for the want of jurisdiction in the court, it was his duty to see that they were filed in the proper court, and limitation began to run against the claimant and his securities from and after the first term of a court thereafter in which the papers should have been filed. The failure to so file them operated an abandonment of the claim, and a cause of action existed on the bond only from that time.</p> <p>(6) In an action on the bond the sureties were estopped from asserting that the property belonged to their principal, who had thus abandoned all claim thereto.</p>

Tried below before the Hon. R. H. Ward, Special Judge. Suit was brought by appellees, originally against B. M. Longley, May, 1881, to recover upon a debt due by note and by open account, amounting to the sum of $679.55.

Tried beloxv before the Hon. Peyton F. Edwards. On February 13, 1879, this suit was brought by appellant to recover certain lands situate in Cherokee county. A writ of sequestration was applied for and issued at the same time. The respective parties claimed title as follows. Appellant claimed: 1. Common source deed or bond for title from G. W. Copeland and Wm. C. Daniel to Wm. Chambers and Clayton Williams. 2. Judgment of G. W. Copeland against Wm.

Tried below before the Hon. H. D. Prendergast, Special Judge.

<p>Appeal from Hardin. Tried below before the Hon. Edwin Hobby.</p>

Tried below before the Hon. W. H. Ford. This was a suit brought to try the title to two lots in the town of Beaumont, claimed by plaintiff under a tax deed to James Ingalls, Jr., dated June 1, 1880, against parties who had used and occupied the lots continuously for ten years prior to March 31, 1880. The cause was tried by the court, and judgment given for the defendants, from which the plaintiff appealed.

Tried below before the Hon. Edwin Hobby. This suit was brought by the East Texas R’y Co. against the appellant Chance, and others, to enjoin their interference with a right of way claimed by plaintiff. The character of the. claim is set forth in the opinion. Various exceptions to the action of the court were relied on, now deemed unimportant to notice, in view of the statement of facts being illegally filed, and of the opinion of the court.

Tried below before the Hon. John R. Kennard. Trespass to try title brought August 5, 1880, by appellant against appellee and Jos. Caffey, for one hundred and sixty and one-half acres of land, part of the John Welsh league. Caffey disclaimed except as tenant of appellee. Appellee pleaded not guilty, and in. reconvention for the land and for rents. Appellant by supplemental petition pleaded limitations of three, five and ten years, and improvements in good faith.

<p>Appeal from Freestone. Tried below before the Hon. L. D. Bradley.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>1. Legal holiday.— The statute does not require the public offices of the state to be closed on legal holidays, nor prohibit the courts from transacting business. In enumerating what is forbidden to be done on a holiday, and leaving the performance of other things discretionary, it is manifest that judicial acts, not specially prohibited, which are performed on that day, are not void.</p> <p>2. Same.— It is too late to object for the first time in the supreme court to the fact that a writ of inquiry was executed in the district court on a legal holiday, and on which writ a judgment was afterwards rendered. If the objection were good it should have been made in the court below,— to set aside the proceedings for irregularity.</p>

<p>Error from Orange. Tried below before the Hon. W. H. Ford.</p>

Tried below before the. Hon. Geo. H. Noonan. The appellant, who brought this suit, was a member of the San Antonio Club, a corporation created, organized and doing business under the laws of Texas at San Antonio, and formed for literary purposes, to promote social intercourse among its members and to provide them the conveniences of a club house. The club had no capital stock.

Grayson. Tried below before the Hon. Richard Maltbie. Suit by appellee, brought March 6,1883, and an amended petition filed October 25, 1883. The petition alleged that the plaintiff and one Rush were immigrants from Ireland, and were going to Galveston. They had imr migrant tickets from Philadelphia to Galveston, but that their route from Denison was over the Missouri Pacific Railroad. They reached Denison in the night.

Tried below before the Hon. L. D. Bradley. 0. W. Beeman, S. A. Beeman and J. A. Beeman brought this suit against the appellant J. E. Farrar upon a contract which was entered into by the Beemans and the Tecalote Stock Company of New Mexico, dated March 7, 1882, and executed in duplicate.

<p>1. Possession — Limitation.—When naked possession alone is relied on as constituting title to land, there must be an actual occupancy of the land, and the possession cannot be extended by construction beyond that actual occupancy.</p> <p>2. Same.— Possession of land to sustain limitation must be actual, continued, visible, notorious, distinct and hostile.</p> <p>3. Notice — Same.— While the true owner is chargeable with knowledge of the boundaries of his land, he cannot be affected with notice that an adjoining proprietor has encroached by his fence a few feet over the line for the purpose of acquiring six hundred and forty acres of his land under the ten years’ statute.</p> <p>4. Same.— The rule is different where the party who sets up limitation entered under a recorded deed, which on its face discloses a conflict and assumes to convey title to the land occupied. In such case’the true owner, whose land is held adversely, is notified of the adverse claim.</p> <p>5. Ten years’ limitation.— See this case for facts under which it was held that adverse possession for twenty-three years entitled the occupant to hold, under the ten years’ statute of limitation, only the land actually inclosed and occupied.</p>

<p>1. Implied lien—Deed.—Though promissory notes recite upon their face that they were given for the purchase money of land, and the deed executed by the payee recites the dates at which unpaid purchase money was due, corresponding with the dates of payment provided for by the notes, yet if neither the deed nor notes reserve a lien to secure the deferred payments, and the deed is on its face a deed of warranty, the contract is executed, the absolute title passes, and an implied lien on the land only exists. (Following Hale v. Baker, 60 Tex., 317; Webster v. Mann, 52 Tex., 416, and other cases referred to in the opinion.)</p> <p>3. Same—Foreclosure.—In such a case the vendor, having parted with title, cannot resume it if the purchase money be not paid; his remedy is on his debt, and to foreclose his implied lien. If, however, the lien be reserved in the deed, the vendor has his election either to foreclose his lien, disaffirm the contract after default, assert his superior title and sue for the recovery of the land, or convey it to another; the latter remedy being his only available one (if he can find a purchaser) after the notes are barred by limitation.</p>

Tried below before the Hon. W. H. Ford. Appellee sued appellants, as partners, upon an account in the sum of $1,510.15, principal and interest, for value of timber delivered to appellants under verbal contract of purchase, and for damages for violation of the contract.

<p>1. Description —Certainty —Survey.—A decree of a court of competent jurisdiction purported by its terms to establish a lost deed, through which the plaintiff claimed title to land, which the same decree declared him to bo the owner of, but which was not described except by reference to the description contained in the lost deed to his vendor. That description identified with certainty the first line, described the third line while calling for the second, and described the fourth line which closed the survey. Held, that the description was sufficient.</p> <p>3. Same.— See opinion for facts which did not render a description of land contained in a decree of court void for uncertainty.</p> <p>3. Certified copy — Authentication. — An act of sale executed for land which was not located in San Augustine county was recorded in that county, together with the following certificate attached thereto:</p> <p>“ I do certify that the foregoing is a true copy of the original, given under my hand and seal this 35th day of November, A. D. 1836.</p> <p>[seal.] “ S. W. Blunt, Clerk.”</p> <p>Held, that a copy of the record so made was not admissible in evidence,— the certificate showing that the instrument recorded was but a copy of the original, and there being nothing to show that the original was an archive of which certified copies could be given.</p>

<p>Appeal from Nueces. Tried below before the Hon. John C. Russell.</p>

Tried below before the Hon. Edwin Hobby. This cause was formerly before the supreme court on appeal (58 Tex., 470).

Error from Trinity. Tried below before the Hon. John E. Kénnard. Trespass to try title brought by plaintiffs in error to recover land, a part of the headright league granted to Joel Clapp. The defendants pleaded: First, not guilty. Second, title by limitation under the three, five and ten years’ statutes. Third, improvements in good faith. Judgment for plaintiffs for one-half the land, and for the defendants for the other.

Tried below before the Hon. H. Clay Pleasants. This suit was brought by appellee against appellants A. L. Haskins, the surviving wife, and Lulu Haskins, the infant daughter, of R. F. Haskins, deceased. The purpose of the suit was to recover a tract of one thousand eight hundred and ninety-six acres of land out of the Francis J. Haskins league and, labor survey in Karnes county.

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

<p>1. Damages—Railway company.—The rainfall, which the formation of the earth’s surface would cause to flow naturally on land alleged to have been damaged by a railway company, would form a lake on three acres of plaintiff’s land. A railway company so constructed its ditch along its road-bed as to drain water from its natural course so as to increase the size of such lake to one covering thirty acres, and whicii separated the cultivated portion of the plaintiff’s land from the portion where wood for domestic purposes was obtained, thereby causing it to be obtained only by going a circuitous way over the land of others. Held:</p> <p>(1) That the railway company was liable for such injury as results from flooding the land, by its ditches, with water, which otherwise would not flow upon it.</p> <p>(2) The fact that the ditch conducted the water into a branch, usually dry, and not on plaintiff's land, and through that branch it flowed to form the lake complained of, did not vary the case.</p> <p>(3) The facts that road ditches were skilfully constructed, and that the roadway and other lands over which the water would naturally flow were more fully protected by the construction of the ditch, so far from being a defense, are held an aggravation of the injury.</p> <p>(4) The question whether the ditches were constructed in a skilful manner is important only when the right to construct them so as to direct the water flow in a particular direction is shown to exist.</p> <p>2. Same — Damages, measube of.—The suit was brought to recover damages to land and crops and for injuries resulting from inconvenience in getting access from one portion of the land to another, and for an injunction to prevent further injury. Held:</p> <p>(1) That a charge to the effect that “ the proper criterion for ascertaining the damage would be the actual damage to the value of the land before the water was turned on it, and the reasonable worth or value of the land with the water so changed or turned on to the land, and in this way arriving at the actual damages sustained by the plaintiff,” was error.</p> <p>(2) The facts being established that the natural water flow was diverted so as to result in injury, an injunction to prevent the continuance of the wrong should issue.</p>

<p>1. Statement of facts — Trespass to try title.— When in trespass to try-title judgment was rendered in the court below against the defendants, the contest involving the location of a dividing line between adjoining surveys claimed by the respective parties, and the statement of facts was so meager that no basis for a conclusion as to which party was entitled to the disputed strip could be found, the case was reversed.</p>

<p>1. Separate and community property.— Merchandise which was not acquired by the wife, either by gift, devise or descent, nor by the exchange of property thus acquired, nor by money derived through the sale of property thus acquired, but which was purchased by the wife with money borrowed upon the faith of her separate property as security, is not the separate property of the wife, but the community property of the husband and wife. The transaction is not equivalent to an exchange of the wife’s separate property for the merchandise.</p>

Tried below before the Hon. A. J. Hood. The first amended original petition of appellees in this cause was filed on. the 17th day of August, 1882, and took the place of the original petition filed May 4, 1882.

Washington. Tried below before the Hon. I. B. McFarland. This suit was brought against Watson & Larue and Cochran & Ewing to recover $800 due on a promissory note secured by a chattel mortgage on type, printing press, etc., bought of appellant.

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

Tried below before the Hon. B. W. Rimes. Appellee brought this suit against the appellants January 5,1875. This was the second appeal, and for statement see Poole v. H. & T. C. R’y Co., 58 Tex., 134. The suit was to recover the value of the goods, and interest, alleged to have been shipped by Poole from Galveston to La Prelle, at. Marlin, in Falls county.

Tried below before the Hon. A. S. Walker. Appellee brought suit against appellants Charles G. Jones and wife: 1. Tor the reformation of an agreement executed by appellants January 8, 1883, whereby they agreed to convey to appellee certain, land in Austin city, so as to correct an alleged mistake as to quantity; and 2.

<p>Eeeoe from Washington. Tried below before the Hon. I. B. McFarland.</p>

<p>1. Quo warranto — Jurisdiction — Contested election.— The previous decisions of the supreme court of Texas (made under the present constitution), as announced in Ex parte Towles, 4.8 Tex., 413, which held that the district court had no jurisdiction to revise under quo warranto the action of the returning officers of an election and place a contestant in office, when a certificate of election had been awarded to his competitor, who had thus obtained possession of the office, proceeded mainly upon the ground that such a proceeding was not a suit, complaint or plea wherein the matter in controversy “is valued at or amounts to $500, exclusive of interest.”</p> <p>2. Oases reviewed.— Ex parte Towles, 48 Tex., 413; Williamson v. Lane, 52 Tex., 335; Ex parte Whitlow, 59 Tex., 273, and Gibson v. Templeton, 5 Tex.</p> <p>Law Rev., 18, reviewed.</p> <p>3. Political question.— Whether the constituted authorities of a state shall create an office, or provide to have it filled, and how long an incumbent shall hold it, are political questions. If they determine that it shall be filled by election, and prescribe that the candidate receiving the largest number of votes shall hold the office, the courts have no power to declare that these things shall be determined otherwise.</p> <p>4. Election.—When the will of the people is ascertained by their ballots, at an election provided for by law, the candidate who receives the number of votes necessary to elect him is entitled to the possession of the office and its emoluments.</p> <p>5. Same — Jurisdiction.— This right toan office thus ascertained is a private right, which the constitution protects, and which the courts will enforce. The distinction between the right to contest an election, and that to recover an office unlawfully withheld, announced.</p> <p>6. Office — Property. — An office of profit is not only a franchise, but is property, as clearly as any other thing can be made the subject of ownership; and when the lawful owner is deprived of its use and possession by an intruder, his right to have it restored to him by the courts is as clear as his right to recover any other property legally owned by him, and illegally withheld from him.</p> <p>7. Same — Election.— If, in a direct proceeding to recover an office, it becomes necessary for the plaintiff to trace his right thereto through a popular election, provided for by law, he may do so; to deny him this privilege would be to destroy his right, if it existed. In doing this he is not restricted to the returns of election made by the managers, but may resort to the best evidence, which is to show the votes cast at the election.</p> <p>8. Same.— The return of the managers of an election in such a proceeding is only prima facie evidence of the state of the vote, which maybe disproved by producing evidence furnished by the ballots themselves.</p> <p>9. Political question.—The term “political question,” as used in our decisions, refers to questions coming before the courts, the determination of which has for its object the settlement of some policy of the state, or of some local division of the body politic, and not the private rights of individuals, though the latter may be incidentally affected.</p> <p>10. Same.— Though the determination of the result of an election may be in one sense a political question, it is so only when sought in a contest regarding the election itself under the statute. It is not so when an inquiry as to who was really elected by the people arises incidentally, and is necessary to be known in determining rights claimed, and clearly cognizable before the courts.</p> <p>11. Cases FOLLOWED.—McKinney v. O’Connor, 26 Tex., 5; State v. Draper, 50 Mo., 353; People v. Jones, 20 Cal., 50; Reid v. Moulton, 51 Ala., 255; 43 Conn., 383; 44 Miss., 352; and Hudson v. Solomon, 19 Kan., 177, approved and followed.</p> <p>12. Jurisdiction.— It results that the district court has jurisdiction to try the right to an office, in a suit brought for its recovery by a party claiming the right to it, as against one who has usurped the office and who holds possession of it wrongfully, provided its value is $500 or more. In trying the • right, if the claimant charges that an incorrect return of the votes that elected him was made, he has the right to give evidence to show what votes were placed in the ballot-box by showing the votes themselves.</p> <p>13. Quo warranto.— Quo loarranto is a proper proceeding to determine disputed questions of title to public office. In such a suit, if the relator succeeds, the proper judgment is that defendant be ousted, and the relator placed in possession of the office.</p>

<p>Appeal from Comanche. Tried below before the Hon. W. A. Blackburn.</p> <p>Appellees brought suit against appellant, July 13, 1876, to recover certain moneys claimed to be due them as the assignees of a contract made and entered into between appellant and W. II. Wood-house, concerning the transportation of the United States mail upon certain routes named. The cause was tried and appealed, and was by the supreme court reversed and remanded. See Bigham v. Talbot & Cropper, 51 Tex., 450, for statement. After the reversal appellees filed their first amended original answer, to wit, February 9, 1880, and on the same day took judgment by default. Upon appeal, it was held that the amendment set up a new cause of action, and that it was necessary to have service upon Bigham, and the cause was again reversed and remanded. On September 3, 1883, appellees filed their second original petition, reasserting the cause of action asserted in their original petition, with elaborate allegations as to their intention in filing the first amended petition.</p> <p>Appellant specially excepted to the amended petition, upon the ground that the cause of action.therein asserted appeared from the allegations to be barred; this was overruled, etc. lie also answered by general denial, etc.</p> <p>Verdict and judgment was against Bigham, and he again appealed.</p> <p>The testimony of the auditor of the treasury department was, over objection, admitted, to show that he was the custodian of the records of that office, and what those records contained, no certified copy from the records being offered in evidence.</p>

Tried below before the Hon. I. B. McFarland. The petition by appellees alleged that the defendant, in making payment of a debt due by him to the plaintiffs, delivered to plaintiffs a package of money, which he falsely represented to them to contain $1,000, but which in fact contained only $500, and that the plaintiffs, trusting to his representation, and being misled thereby, accepted it as $1,000, and surrendered up to the defendant certain securities which they held for…

<p>1. Injunction against a judgment,—An application for injunction, made by the defeated party in a suit, and based on the fact that he was misled as to the time of the adjournment of the term at which the judgment was rendered, whereby he was prevented from obtaining an order giving time after adjournment to make up a statement of facts, should not be granted, even if due diligence in the former cause was shown, unless it is made to appear that the judgment would probably have been reversed on appeal.</p> <p>2. Same — Pleading.— In such a proceeding the petition should set forth in substance the pleadings and facts proved in the former suit. Unless it appears from these that there is good reason to believe that a different result would be reached by a new trial, equity will not interpose to prevent the enforcement of the judgment.</p>

Error from Galveston. Tried below before the Hon. Wm. H. Stewart. On the 25th of June, 1883, Leon & H. Blum brought this action to recover on a policy of insurance against fire issued by the plaintiff in error to E. Y. Adair, and assigned to defendants in error after loss. The case was submitted to the judge, who found conclusions of facts and law, rendering judgment for defendants in error for the sum of $779.40.

Tried below before the Hon. Everett Lewis. Mattie Thomas, for herself and as next friend of her daughter Susie, aged six years, brought this suit on the 16th of June, 1882, against Heidenheimer & Richter, for the recovery of lot 16, in block 4, in the town of Weimar, and for the rental value thereof. On the 14th of October, 1881, the lot was a part of the homestead of Mattie and her husband, H. C. Thomas, and on that day they conveyed to Heidenheimer.

Tried below before the Hon. B. W. Rimes. On January 23, 1882, appellees brought this suit against appellants to restrain the prosecution of a case of forcible detainer, wherein they claimed that it was sought to recover their homestead.

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

Tried below before the Hon. James M. Anderson, Special Judge. On the 11th day of June, 1879, the appellees recovered a judgment in the county court of Galveston county against William Heiling for $392.67. An execution was issued thereon to Falls county, and on the 21st of July, 1879, levied upon merchandise, groceries, etc., as the property of Heiling, which were valued by the sheriff at $667 on the day of levy.

Tried below before the Hon. L. W. Moore. Suit for the trial of the right of property to certain goods levied upon under an execution in favor of C. W. Klaiden, appellant’s intestate, against Wm. Newman. The goods were claimed by John Susan, in accordance with the statute, and were valued at $200.

Tried below before the Hon. Spencer Ford. Appellant, as one of the creditors of D. O. Warren’s estate, with a claim established, filed suit in the district court of Leon county, May 29, 1874, against appellees, as the representative of W. H. Warren, the former administrator, then deceased, and his sureties on the administration bond, alleging devastavit, etc., and by amendment that the administrator de bonis non of said estate had been appointed at the instance and in the…

Tried below before the Eton. L. D. Bradley. August 14, 1882, appellees brought this suit to recover damages for the failure and refusal of appellant to transport cotton as it was tendered, etc. The amount of damages claimed aggregated $21,112.68.

Tried below before the Hon. H. Clay Pleasants. Suit in trespass to try title, commenced by the appellant, J. C. Fulton, administrator of Joseph F Smith, deceased, against the appellee, Frandolig, on the 5th day of March, 1380.

<p>Appeal from Hill. Tried below before the Hon. Jo Abbott.</p> <p>This suit was brought in the district court of Hill county, on July 17, 1882, by F. M. Middlebrook against Rosenthal, Meyer & Co., to recover the value of a stock of goods alleged to have been seized and converted by defendants under attachment and orders thereafter made in a suit by defendants against Hunt & Son. Verdict and judgment for plaintiffs for $2,310.75. The defendants had pleaded a general denial, and set up that the property was not, at the seizure and conversion, the property of plaintiff; also that it was seized by virtue of a valid writ of attachment regularly sued out against Hunt & Son, the debtors of defendants; that the property-belonged to Hunt & Son; that Middlebrook claimed .the same by virtue of a pretended sale or transfer made to him by Hunt & Son a few days before the levy of attachment, and that if there was such transfer it was made by Hunt & Son with intent to hinder, delay and defraud their creditors and defendants, which fraudulent intent was known, and could have been known, by the vendee by reasonable care, and that the transfer, if made, was void as to defendants.</p>

<p>1. Attachment.— In a proceeding by attachment upon claims, part of which are due and part not due, it is not necessary that the affidavit should show, in terms, how much of the debt was due and how much not due, when the petition and affidavit, which refer to each other, contain the requisite data for making certain that fact by calculation.</p> <p>2. Case distinguished.— This case distinguished from Cox v. Reinhardt, 41 Tex., 591, Seligson v. Hobby, 51 Tex., 147, and Evans v. Tucker, 59 Tex., 249.</p> <p>3. Attachment—Return of sheriff.— The failure of the sheriff to state in his return on the writ that the property levied on was the property of the defendant in attachment affords no ground for quashing the attachment.</p> <p>4. Cases discussed.—5 Rand. (Va.) Rep., 596; 2 Kansas, 340; 13 Ohio, 209; and Meuley v. Zeigler, 23 Tex., 90, discussed and reviewed.</p> <p>5. Jurisdiction—Attachment.— Jurisdiction over attachment proceedings is part of the general jurisdiction conferred on the courts in which they are cognizable, and the same presumption will be indulged in favor of that jurisdiction as in other cases, and the same intendments in favor of the officer executing the writ of attachment.</p> <p>6. Return of writ.— The fact that a writ of attachment is not filed in court until after the return day will afford no ground for quashing the attachment.</p>

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

Tried below before the Hon. Everett Lewis. J. E. Seymour sued the appellant for $10,000 damages, alleging that he was the-owner of a valuable plantation near Columbus containing some seven hundred acres of land; that the railroad company, in the'fall of 1882 and the winter and spring following, dug ditches and made embankments, and thereby turned the waters from a large scope of country from their natural courses and channels upon his plantation, overflowing and injuring one…

<p>1. Jurisdiction—Agency.— One owning a farm beyond the county of his residence executed a mortgage upon it in 1881, and upon the crops of corn and cotton to be produced thereon during the year 1883, to secure the repayment of advances made to make the crop for 1883 and to supply the farm, and plaintiffs (the mortgagees) were authorized to sell all of said property, including the cotton, to pay the debt. An agent, left by the mortgagor upon the place, to superintend, make the crop and purchase supplies, as needed, under the mortgage, assumed to be unable to save the crop without further advances, and gave another mortgage on the crop of 1883, the proceeds of wiiich were applied to its satisfaction by the agent and mortgagee. Had such proceeds of the crops been appropriated to discharge the mortgage made by the owner, they were sufficient to have discharged it. In a suit by the mortgagee to recover on the original advances which he claimed payment for, and to foreclose the mortgage, the owner pleaded to the jurisdiction. Held:</p> <p>(1) A power of attorney given by the owner to the agent, to mortgage stock upon the farm, executed before the mortgage and given for a temporary purpose, was not sufficient to infer an authority in such agent to execute the second mortgage.</p> <p>(3) The proceeds resulting from the crop produced in 1883, when paid to the mortgagee, should have been appropriated in payment of the debt secured by the mortgage executed by the owner of the farm.</p> <p>(8) The proceeds being sufficient to pay that debt, and the owner residing out of the county in which he was sued, the plea to the jurisdiction should have been sustained.</p>

<p>1. Circumstantial evidence.—In a suit to recover on a policy of insurance for loss by fire, where the defendant charges that the fire was caused by the procurement or consent of the insured, every circumstance which throws light on the motives of defendant is admissible in evidence; such as over-insurance; proof of loss in excess of the value of the property destroyed; the assignment of the policy after loss in a manner out of the usual course of business or for an improper purpose; the disposition of goods just before the burning, out of the usual course of business, and other like facts, may be inquired into. The declarations of persons present at the fire, who had no interest in the matter, are, however-, not admissible.</p>

Tried below before the Hon. ¥m. H. Stewart. This was an original proceeding begun by appellant July 3, 1884, for injunction against a judgment rendered against him as surety. On ¡November 21, 1884, the court sustained demurrers and exceptions to the petition, dissolved the injunction and dismissed the petition, and from this judgment this appeal was taken.

Tried below before the Hon. Win. H. Stewart. On the 17th of March, 1877, Thos. D. Gilbert borrowed from the plaintiff Hurt a sum of money which appears to have been secured as follows: Thos. Gilbert and his wife Annie made a deed of conveyance to B. P. Cooper for lots 6 and 7 in block 626, and lot 11 in block 143, in the city and county of Galveston, Texas.

<p>1. Pleading — Prayer in the alternative.—The prayer for relief in an original petition was for a balance due on account, as well as for general relief; the prayer in a supplemental petition was in the alternative for the balance due on the account sued for, or for that amount as damages for an alleged fraud. Held, that the prayer in the alternative was not subject to demurrer.</p> <p>2. Same — Supplemental petition.— In a supplemental petition, made necessary by way of replication, to matter contained in the answer, though the original suit be for a balance due on account, the plaintiff may set up and claim damages for fraud.</p> <p>3. Damages for deceit.—When a party, after making a contract, but before its performance, discovers the fraud of the other party, and still goes on and performs his part, he is thereby precluded from the equitable remedy of cancellation, and also from the remedy of recovering back the consideration, but not from the legal remedy of damages for (the deceit and fraud.</p> <p>4. Action — Fraud — Pleading.— Where a creditor is induced by the fraudulent representations of his debtor to compromise, and receives a part of his demand, he cannot, on discovery of the fraud, retain the sum paid, and sue for the balance due as on account or contract; but he may retain the payment and maintain an action on the case for damages sustained by the fraud.</p> <p>5. Damages.— See opinion for a state of facts on which an attachment issued in a suit to recover damages, which under the state of pleading were regarded as “ specific and determinate.”</p> <p>6. Measure of- damages for fraudulent concealment on compromise of a debt.— When a creditor sues to recover damages for fraud, retaining what he has received in the compromise about which the fraud was practiced, he thereby affirms the compromise, and the damages which he is entitled to recover is the amount he would have received had no fraudulent concealment been made. (Following Page v. Wells, 37 Mich., 421, and other cases cited in opinion.)</p> <p>7. Same.— The damages which a party is entitled to under such circumstances cannot be reduced by deducting losses which the perpetrator of the fraud may have suffered incidentally as a result of an arrangement procured by his fraud.</p>

<p>1. Venue — Cause op ACTION.—The “cause of action,” as those words are used in the statute regarding venue (R. S., art. 1198, subd. 31), consists not only of the right which plaintiff has, but of the injury thereto; thus, when there is a breach of contract which by its terms was to have been performed in any particular county, a cause of action arose there, and the defendant can be sued there.</p> <p>3. Contract — Principal and agent.—A contract made with a general passenger agent for the transportation of excursionists over the railroad for which he is agent, he having general supervision of the passenger business, and it being a part of that business to make special contracts for excursions on the road, is binding on the railroad company, and the company cannot avoid performance of such contract on account of any instructions to the agent divesting him of authority to make the particular contract, unless notice thereof be brought home to the other contracting party.</p> <p>3. Same.— A railroad company may bind itself to transport passengers and freight beyond its own line. (Citing S. M. Co. v. Mo. Pac. R’y Co., 70 Mo., 673; Cummins v. Dayton & U. R’y Co., 9 Am. & E. R’y Cases, 36, and other cases.)</p> <p>4. Contract — Measure of damages.—The appellee made a contract with the passenger agent of a railway company, on the 37th of October, 1883, to transport excursionists from Galveston to Dallas and return for §5 for each passenger on the occasion of public amusements at Dallas. Its performance was to begin November 3, and the passengers were to be returned to Galveston by the 13th of November. No limit to the number of passengers. On the 31st of October, 1883, the company repudiated or disaffirmed the contract, and notified appellee of that fact. In a suit by appellee to recover damages for its breach, held:</p> <p>(1) He was entitled to recover such damages as were incidental to and caused by the breach of contract, and which might be reasonably supposed to have entered into the contemplation of the parties at the time of making the contract.</p> <p>(3) The party contracting with the company having done so to secure such profit as he might make by the sale of tickets to be furnished at the contract price, an approximate basis for damages would be the profit above the contract price which he could have realized on delivery of tickets negotiated by him and contracted for by others, and which he would have realized but for the repudiation by the company of its contract. To this might be added the difference in expenses incurred by appellee in transporting excursionists whom he had agreed to take on the faith of the contract and the amount he would have expended had the contract of the company been observed. Conjectural profits not based on actual agreements with those desiring to make the excursion, and with no definite knowledge of how many tickets could have been sold under the original contract, or for what profit, can form no legal basis for a recovery.</p>

Tried below before the Hon. Wm. H. Burkhart. February 10, 1881, appellees brought this suit against appellant, upon a judgment rendered in January, 1877, against Overton Young, the husband of appellant (who died in September, 1877), and one Plumer, claiming that a large amount of community property had gone into the possession of appellant, as surviving widow, upon the death of her husband, and seeking to make her liable for the debt, etc. Among other defenses appellant…

Tried below before the Hon. Wm. H. Burkhart. The relator presented to the district attorney his affidavit setting forth the result of the election returns of Brazoria county for the office of assessor of taxes, at the election in Hovember, 1884, and showing that the defendant B. L. Phillips received and had returned for him by the managers of election the total number of one thousand and fifteen, and relator, C. C. Millican, the total number of four hundred and fifty-eight…

Tried below before the Hon. ¥m. H. Burkhart. Appellee sued appellants and J. E. Billups, sheriff of Jackson county, for $1,000 actual and $3,500 exemplary damages for wilfully and maliciously levying an attachment on a stock of general merchandise. The verdict of the jury found for appellee the sum of $650 against Charles Heidenheimer, D. M. Ehrlich and Jacob Stirne, appellants, and in favor of J. E. Billups, sheriff.

Error from Harris. Tried below before the Hon. James Masterson. W. E. Wood, as the guardian of the minor, Hosmer W. Wood, commenced this suit in the county court September 6, 1883, against Edwin L. Perkins, executor of the independent will of his mother, Harilla Perkins, for the purpose of removing him from his position as executor, or of compelling him to execute a bond if the court declined to remove him.

<p>1. Corporation — Pleading.— An averment in a petition against an incorporated company, that the company “undertook and promised to pay plaintiff” a sum designated, is sufficient to authorize the introduction of testimony showing such a promise made in any mode which could bind a corporation, which can act only through created agencies.</p> <p>3. Declarations—Agency.— One assuming to act as agent of a corporation declared himself such agent, which declarations were admitted without objection made on the ground that agency could not thus be proved. Held, that the objection to the evidence could not be raised for the first time in the supreme court.</p> <p>3. Limitation.— If the course of conduct pursued by an insurance company after adjusting a loss by fire is such as to induce the insured to believe that the sum admitted to be due on the adjustment will be paid without suit, and for that reason suit is not brought in the time limited for its institution by the terms of the policy, an action may be maintained even on the policy after the expiration of the time prescribed. (Citing Insurance Co. v. Lacroix, 45 Tex., 164; Smith v. Ins. Co., 62 N. Y., 86; Ames v. Ins. Co., 14 N. Y., 264; F. & M. Ins. Co. v. Chesnut, 50 Ill., 111, and other cases.)</p>

Tried below before the Hon. Win. H. Stewart. Appellant brought suit against A. P. Luckett, Morris Uffjy and T. Eatto, partners under the name of T. Eatto & Co., and against H. Seeligson, doing business as H. Seeligson & Co., and E. P. Sargent and J. H. Smith, for the recovery of damages, actual and exemplary, alleged to have accrued by reason of the suing out by T. Eatto The questions presented by the assignment of errors referred to the finding of the jury.

Tried below before the Hon. I. B. McFarland. Suit brought in the district court of Burleson county February 7, 1883, by appellants, to recover of appellee, under articles 4257 and 4258, Be vised Statutes, the penalty prescribed for excessive charges made by appellee for the transportation of freight. The petition specified fourteen instances of excessive charges, in so many counts, demanding the penalty in each case.

Appeal irom Harris. Tried below before the Hon. James Masterson. The statement of the case approved by both parties is adopted.

Tried below before the Hon. James Masterson. On the 1st day of November, 1883, the appellees, Sweenejr & Coombs, bought from J. S. Mills his entire stock of goods, store fixtures, etc., then in the store occupied by Mills, at Houston, Texas, and were at once placed in possession of the property purchased. 'Sweeney & Coombs, according to their testimony and that of their agent, paid $2,000 cash for the goods, and in addition obligated themselves for the goods to pay L. J.…

Tried below before the Hon. Wm. H. Burkhart. Suit by Jackson county against George F. Simons and Frank B. Owens, sureties of Wm. Wood, late treasurer of that county, who, it was alleged, had absconded and was insolvent, and therefore was not sued. The cause was tried by the court without a jury, and a judgment rendered in favor of the plaintiff for the sum of $1,385.19, being for $1,233.11 principal, and interest thereon from January 1, 1883.

Tried below before the Hon. James Masterson. Suit by appellee on the 17th day of October, 1882. Its object was to recover two lots in the city of Houston. It sought to enforce an alleged trust, created by operation of law, fifteen years after the facts and circumstances transpired out of which, it is claimed, the trust arose.

Error from Waller. Tried below before the Hon. Wm. H. Burkhart. On the 5th of April, 1884, plaintiff in error filed a motion in the district court of Waller county to reinstate this case upon the docket of that court for a rehearing. The reasons assigned in support of the motion were as follows: “For this, that on the 18th day of.

<p>1. Construction of laws.—In the construction of a law the whole law must be considered together, in order that from it as a whole the legislative intent may be arrived at; and that construction must be adopted which will, if possible, give effect to every provision,</p> <p>2. Same.—Thus, if in one section of a law a general rule is prescribed, which. without qualification would embrace an entire class of subjects, and in another section a different rule is prescribed for particular subjects of the same class, the latter must be construed as excepted out of the operation of the general rule. (Following Warren v. Shaman, 5 Tex., 441.)</p> <p>3. Same — Taxation.—Construing the amended section 9 of art. 8 of the statu1 constitution, and section 5 of art. 11, the conclusion is announced that cities of ten thousand inhabitants are to be exempted from the maximum limit prescribed for municipal governments as a class, and may levy ad valorem, taxes to the extent of two and one-half per cent, on the hundred dollars’ valuation, when so authorized by the legislature.</p> <p>4. Taxation in cities.— The city of Galveston has authority to levy an annual tax of seven cents on the one hundred dollars’ valuation, to provide an emergency fund.</p>

Tried below before the Hon. James Masterson. This suit was brought by Trentem upon a contract made between him and appellant, through O. G. Woolridge, chief engineer, for the construction of seven or more rock culverts on the line of the road of appellant, according to plans and specifications, at the stipulated price of $10 per cubic yard. The contract was signed by appellant, by O. G. Woolridge, chief engineer, and by appellee.

Tried below before the Hon. Wm. II. Steivart. This suit was brought to recover for liquors and cigars furnished by appellant for the use of the corporation known as the “ Beach Hotel and Seaside Improvement Com pany.” It appeared in evidence that all the stock of that corporation was owned by another corporation known as the Galveston City Eailroad Company, between ' whose president, W. H. Sinclair, and Pierce, the appellee, the following correspondence passed: “ New York…

Tried below before the Hon. Wm. H. Burkhart. This was a suit by appellee to recover a tract of land, the issues formed in which it is not necessary to give in view of the opinion.

Tried below before the Hon. Wm. II. Stewart. Suit byP. J. Willis & Bro., on three notes signed by appellee and one Franklin, who, not being served, was dismissed.

Tried below before the Hon. James Masterson. Suit brought October 15, 1883, by Almond Fuller against the Gulf, Colorado & Santa Fe Railway Company, to recover the sum of $3,000 for damages, alleged by plaintiff to have been occasioned to land and improvements thereon owned by him, on St. Emanuel street, in the city of Houston, Texas, by the building and operating by defendant of a railroad on that street. The lots were occupied by plaintiff as a homestead.

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

Tried below before the Hon. Wm. H. Stewart. On the 16th of November, 1883, the appellant brought suit against the Gulf, Colorado & Santa Fe Bailroad Company for the value of cotton received by the latter company, December 5, 1882, from Z. Maurey & Co., and which the railway, as a common carrier, undertook to carry and deliver to Z. Maurey & Co., at Havre, France.

<p>1. Mandamus.— A mandamus to an inferior court lies only in case where the act directed to be performed requires no exercise of judicial discretion. Hence, a mandamus could not be used to revise a judgment of an inferior court dismissing an appeal for want of a sufficient appeal bond.</p> <p>2. Final JUDGMENT.— A judgment dismissing an appeal for want of a sufficient appeal bond is a final disposition of the case by the court rendering it, and can be revised, by a superior court having supervisory power over its proceedings, by means of an appeal or writ of error.</p> <p>8. Mandamus.—Though mandamus is the proper remedy to enforce the performance of a ministerial act, when there is no other adequate legal remedy, yet the converse of that proposition, that when there is no other legal remedy the writ of mandamus may always be resorted to, is not true.</p>

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

Tried below before the Hon. Wm. H. Burkhart. Appellants E. Blanc et als., members of the Catholic church at Hempstead, Waller county, brought this suit against C. M. Dubois, Catholic bishop at Galveston, and Francis H. Alsbury and husband, to set aside a conveyance made by Bishop Dubois, as bishop, to F. H. Alsbury to six lots of ground out of block 163, in the city of Hempstead, on the ground that the block belonged to the Catholic church, and that the bishop held it only…

Tried below before the Hon. James Masterson. Appellees, as coal merchants, shipped a cargo of coal by the schooner Hunter, from Baltimore to Harrisburg on Buffalo Bayou, and in order to get to the latter place they were accustomed to bring their vessels up that bayou, and through the cut or canal across Morgan’s Point.

Tried below before the Hon. James Masterson. This case was once before on appeal before the supreme court (61 Tex., 262). The same witness for plaintiff gave the same evidence (in substance) as on the former trial, and now, as then, there was nothing in the record to show that the wound from which the son died resulted from any negligence of the company, or, in fact, how he came to receive the injury. Ho one saw him at the time the wound was received.

Tried below before the Hon. Wm. H. Stewart. I. Lovenberg, statutory assignee of Carl Schwarz, brought suit against appellant to recover -the value of a stock of goods, notes, book accounts and choses in action of the value of $30,000; alleging that all of said property had been legally conveyed and transferred to him by Carl Schwarz by deed of assignment, and had been previously owned by said Schwarz, and daily exposed to sale by him in the regular course of business.

Tried below before the Hon. James Masterson. Suit filed on the 3d day of October, 1884, by the appellants against B. Smalley and B. F. Harris, composing the firm of Smalley & Harris, on two promissory notes, executed by Smalley & Harris on the 11th day of June, 1884, one for the sum of $1,162.35, due and payable at Houston, Harris county, sixty days after date, to order of appellant, and one for $1,162.34, due and payable ninety days after date, and to foreclose a mortgage…

Tried below before the Hon. Wm. H. Stewart. Appellee, as plaintiff below, and his wife, Elizabeth Jones, filed an amended petition April 23, 1883, alleging in substance that they owned as a homestead a certain tract of land (describing same) on Galveston Bay near Virginia Point.

Tried below before the Hon. Vm. H. Stewart. April 9, 1884, appellee brought this suit to recover damages, and for injunction to restrain defendant from interfering with appellee in constructing street railroads over certain streets and avenues in the city of Galveston, alleging that plaintiff was duly incorporated in accordance with the general laws of the state of Texas; that it had secured the consent of the city council to construct its lines on certain streets named;…

Tried below before the Hon. James Masterson. Appellant Taylor, defendant below, was sued by Wm. Boyd, on two “ Street Improvement Certificates,” dated April 28, 1884, each certifying Wm.

<p>Error from Washington. Tried below before the Hon. I. B„ McFarland.</p> <p>The defendant in error, Jefferson Bassett, as plaintiff below, brought this suit, which was in form an action of trespass to try title, in the district court, against the plaintiff in error, Wm. Axer, to recover a lot of ground-in Brenham, consisting of about two acres. Mrs. Axer intervened, setting up a claim of homestead. Miss Kate Kinney, the other plaintiff in error, also intervened, claiming the superior title.</p> <p>The residence lot and the lot in controversy are about one hundred yards apart, and are both within the corporate limits of the city of Brenham.</p> <p>All the parties claimed under the defendant Wm. Axer, in whom title to the premises in controversy was vested by the deed of Kemp and wife, dated January 12, 1872.</p> <p>Axer and wife were married prior to 1868. In 1868 Axer bought a vacant lot, comprising an acre and a half of ground, for §400, and during that year erected on it a dwelling-house, with suitable outbuildings; and he and his wife entered upon and occupied it, claiming it as their homestead, and had ever since continued so to use, occupy and claim it. The naked lot was worth no more than $400 when so designated, and was still worth approximately the same sum.</p> <p>The residence lot was in the southern part of Brenham, and was and is used as follows:</p> <p>The dwelling-house is on the north end of the lot. The stable and carriage-house, with horse lot and cow pen, are on the southeast corner, fronting on ¡North street. The garden and orchard take up the greater portion of the center and south end of the lot. The eastern corner of the residence lot is about one hundred yards from the northernmost part of the premises in controversy. Brenham is a city of some six thousand inhabitants.</p> <p>The lot in controversy was purchased by Axer January 12, 1872. It contains nearly two acres of ground. It is about one thousand yards from the court-house. ¡North street terminates at its northwest corner. There is no other street but the thirty foot street or alley, which belongs to the adjoining lot owners, and was opened by them for their own convenience, but it is also used by the public.</p> <p>When Axer bought the lot in controversy, in 1872, it was inclosed and in cultivation, and there were no buildings on it. He paid $500 for it, which w'as about its fair value. Shortly after his purchase he erected on it a building at a cost of some $1,500, which wTas first used, in 1872-73, as a tannery, and afterwards, in 1874-75, as a broom factory. ¡Neither business proving profitable, they were abandoned, and the building was unoccupied down to 1877, when it was destroyed by fire.</p> <p>¡No other building ;or improvement had been erected on the place since 1872, but the inclosure then existing remained substantially the same as when Axer purchased.</p> <p>Ever since 1872 Axer and his wife have used the lots in controversy as a pasture and a rye and barley patch. They have usually kept two horses and two or more cows. They have owned no real estate other than their residence lot aforesaid and the lot in controversy.</p> <p>The lot was mortgaged by Axer, twice in 1872, and twice again in 1875, Mrs. Axer not joining.</p> <p>In July, 1880, Miss Kinney, who claimed a mortgage lien upon the premises, brought suit against Axer for her debt and foreclosure of lien. The homestead claim was not set up by Axer, and judgment was rendered by default. Miss Kinney purchased the premises at a sale under her ven. ex., in January, 1881.</p> <p>Bassett & Bassett recovered a judgment in 1877 against Axer, for $1,511, which was revived April 23, 1880. An abstract of this judgment was duly recorded and indexed June 3, 1880.</p> <p>In July, 1880, the appellee, Jefferson Bassett, purchased the lot in controversy at execution sale, under the last recited judgment, for $50, of which amount a portion was applied to the payment of costs, and the balance credited on the judgment.</p> <p>Axer had been insolvent continuously since 1872. He was present at the execution sale under the Bassett & Bassett judgment, and claimed the premises in controversy as his homestead, and forbade the sale.</p> <p>Upon the foregoing facts, the court held that it was not shown that the lot in controversy constituted any part of the homestead, and that the execution sale passed the legal title in the premises to the purchaser, Jefferson Bassett, which was not affected by the judgment in the suit of Miss Kate Kinney against Axer, to which Bassett was not a party, and judgment was accordingly rendered for the defendant in error, Jefferson Bassett.</p>

Tried below before the Hon. Peyton F. Edwards. Suit by E. P. Watts against the Missouri Pacific Railway Company and the International & Great Northern Railroad Company, for damages for personal injuries inflicted on him while he was in the employment as a servant of the Missouri Pacific Railway Company, lessee of the said International & Great Northern Railway Company. He claimed that he was damaged in the sum of $6,000.

Tried below before the Hon. Horace Chilton, Special Judge. This was an action of trespass to try title brought by Amos McLaughlin against P. H. McManigle to recover lot No. 1, in block No. 30, in the town of Corpus Christi. The defendant answered by plea of “not guilty;” plea of statutes of limitation, and improvements made in good faith.

Tried below before the Hon. Wm. H. Stewart. In July, 1881, the city council of Galveston gave its consent that John Bailey use and occupy exclusively the shore and surf of the gulf, between Tenth and Thirtieth streets, for the purpose of constructing thereon public bath houses, and to use the same for the period of ten years. The appellant sued, alleging that it was the assignee of John Bailey and succeeded to all his rights under the lease, which was fully set forth.

Tried below before the Hon. H. Clay Pleasants. Plaintiff Douglas, by trade a plumber, alleged that he was employed by defendant at its shops, in.

Uvalde. Tried below before the Hon. T. M. Paschal. The appellee sued on a verbal contract with the agent of the appellant to recover for work done.

Tried below before the Hon. W. E. Collard. Suit in the district court of Robertson county by W. B. Robinson, as administrator de bonis non of the estate of Thomas L. Kerwin, deceased, against E. J, Houston, J. S. Williams, H. Schmidt, Mrs. E. L. Drennan, Mrs. Mary J. Parks and her husband, J. F. Parks, two minors, Bettie K. and John T. Adkisson, Jr., and the firm of J. S. Williams & Co., composed of said J. S. Williams, E. J. Houston and John T. Adkisson, Sr. In the original…

Tried below before the Hon. T. M. Paschal. August 26, 1882, appellees brought this suit against appellants and others to recover the land described in the petition. The other defendants failing to answer, judgment by default was taken against them, but appellants answered by plea of not guilty. On December 8, 1882, the cause was tried, resulting in a judgment for appellees. The points made by the assignment of errors, and relied upon for reversal, are stated in the opinion.

Error from Bosque. Tried below before the lion. Jo Abbott. Trespass to try title by plaintiffs in error for the recovery of about eighty acres of land. The petition alleged that the land was community property and the homestead of the plaintiffs.

<p>Appeal from Bexar. Tried below before the Hon. Geo. H. Noonan.</p>

Tried below before the Hon. Jo Abbott. Suit by Mrs. Jennie Bacon, joined by her husband, S. H. Bacon, against the appellants.

Tried below before the Hon. A. S. Walker. This is the second appeal (see Brown v. Renfro, 57 Tex., 327, for statement, etc.). After the case was remanded the following proceedings were had, to wit: Before the trial of the cause K. J. R. Edwards and her husband, L. E. Edwards, intervened and claimed that K. J. R. Edwards had become the owner of the south one-half of lot 5, and a part of lot 6, and was entitled to the same as against all parties to the suit.

<p>1. Continuance — Pbactice — Bill of exceptions.—Though the judgment sought to be reversed may show that a continuance was applied for, which was overruled, and exceptions to the action of the court taken, if there be no bill of exceptions in the record showing the action of the court and the circumstances attending the overruling of the application for continuance, the ruling will not be revised on appeal.</p> <p>2. Res ADJUdioata.— Generally a former judgment will not be a bar to further litigation regarding the same subject-matter, unless the same vital point was put directly in issue or was fairly within the scope of the pleadings; it is not conclusive of any matter, if the matter be not such that it had of necessity to be determined before the judgment of the court could have been given.</p> <p>3. Judgment— Res adjudigata.— A judgment or decree is not conclusive as to collateral questions, nor of any matter to be inferred by argument from the judgment.</p> <p>4. Same.— In pleading a former judgment in bar it should be averred that there was a trial on the merits; the merits involved in the former proceeding should be set forth, and definite facts should be pleaded showing their determination against the adverse party.</p>

Tried below before the Hon. Geo. H. Noonan. William 0. Igel brought this suit to recover §550 claimed to be a balance of a deposit still due him. The bank claimed that it had paid out the amount to appellant on a draft drawn in his favor by Igel, and set forth the draft. Igel claimed that the draft was a forgery.

Tried below before the Hon. George H. Noonan. Suit by appellant to recover of Martha Knox a lot containing three acres of ground in the city of San Antonio, which he claimed as the homestead of himself and his deceased wife, Ann M. Hector. He alleged that he was married to Ann M. on May 19, 1870, and was her husband at the time of her death, May 20, 1881.

Tried below before the Hon. T. P. Hughes. December 13, 1878, appellees and Mrs. Elizabeth O’Brien brought this suit against appellant and Phillip O’Brien and his wife to establish their right by inheritance to an interest in the land described in the petition, and to divest apparent title out of Phillip O’Brien and wife. The plaintiffs claimed by inheritance from Edward Han-rick, deceased, as follows: appellee one-third, and Mrs. Elizabeth O’Brien one-third.

Tried below before the Hon. Geo. H. Noonan. Appellant brought this suit for a mandamus to compel W. M. Locke, as district surveyor of Bexar land district, to make surveys of certain land described in plaintiff’s petition and situated in the county of Zavalla; and to make correct field notes of said surveys and return the same to the general land office. The following were the material allegations of plaintiff’s petition: First.

Tried below before the Hon. B. W. Rimes. On the 30th day of October, 1882, Fielding & Gwynn, of New York city, filed their petition against Amos Du Bose, E. Dickey and C. H. Higginson, for a balance due on a note for the sum of $2,116.25, executed by the said Amos Du Bose to one I. 0. Du Bose on the 23d day of January, 1878, and due on its face one day after date; which note had been indorsed to plaintiffs by said I. 0.

Tried below before the Hon. T. L. Nugent. On August 30, 1881, Weatherford brought this suit against Little to recover the land described in the petition, to remove cloud from and to quiet his title thereto; claiming that the land was patented to the Gazley heirs; that they conveyed the same to Tingley by and through their agents, Lockart and Sucker, and that Tingley conveyed to him.

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

Tried below before the Hon. R. R. Gaines. E. H. Brittan, a hardware merchant in Clarksville, Texas, gave Taylor & Chambers, attorneys, a mortgage on his stock of goods to secure a number of creditors whose claims were in the hands of Taylor & Chambers for collection. This mortgage was given on the 31st day of October, 1881, and on the 14th day of November following Taylor & Chambers took possession of the goods by virtue of the provisions of the mortgage.

Tried below before the Hon. J. C. Russell. Appellant brought this suit against appellee, who was her husband. She alleged that their marriage took place in 1872, in March; that she was a good and faithful wife, and lived with her husband until September, 1873, at which time, by false and fraudulent pretenses, he induced her to return to her father’s house, for a short time, as be represented and as she believed.

Tried below before the Hon. Wm. H. Stewart. Appellants below obtained a writ of injunction restraining L. 0.

Tried below before the Hon. James Masterson. Appellant, A. F. Eames, brought this suit for personal damages against the T. & N. O. R’y Co. for injury received in August, 1888. Defendant filed an amended answer containing a general demurrer to plaintiff’s petition, which, being sustained by the court, leave was given plaintiff to amend. Plaintiff filed his second amended original petition, to which defendant filed a renewal of his general demurrer.

Tried below before the Hon. John R. Kennard. The suit was brought in trespass to try title by Patten. Many questions were raised and discussed, but notice of them is omitted in view of the opinion, which states all that is important to be understood. The briefs of counsel were able and exhaustive on points not decided.

Tried below before the Hon. C. C. Potter. Suit by appellee to recover of appellant §6,332.50 damages for an alleged error of appellants in transmitting a message, in this: That, on the 20th day of January, 1882, appellee purchased of one George West, in Cooke county, thirteen hundred head of sheep, and desiring help from his ranch in Throckmorton county to aid him in driving them to his said ranch, he delivered to appellant’s operator at Gainesville a message in substance as…

Tried below before the Hon. I. B. McFarland. Thos. F. Hudson, Jr., sued P. J. Willis & Bro. and Sam. G. Wilson, alleging that Thos. F, Hudson, Jr., on December 2, 1882, was the owner, and was in the quiet and peaceable possession of a stock of goods in the town of Caldwell, of the value of $4,500; that on the 2d of December, 1882, Willis & Bro. and Sam. G-.

Tried below before the Hon. E. B. Turner. c Suit begun in the district court of Travis county, February 7, 1880, b.y Wren, the appellee, against A. H. Belo, J. J. Hand and D. C. Jenkins, doing business under the firm name of A. H. Belo & Co., and who were proprietors of the Galveston Daily ¡News.