Volume 65 — Texas Reports

Tried below before the Hon. W. H. Bullock, Special Judge. This suit was brought by appellee on March 19, 1883, against one Harry May and appellants, J. M. Cook and H. L. McElvey. The plaintiff alleged that May was indebted to him on a promissory note for the sum of $850, executed by May on the 15th day of February, 1883, and due on the 1st day of September, 1883, with twelve per cent, interest after maturity.

Tried below before the Hon. T. B. Wheeler. This was a suit brought at the March term, 1884, of the District Court of Mitchell county, by Wm. Cameron & Co. against Thomas Marshall and wife, Fannie Marshall, to recover a balance of $127.80 due on account for lumber and material furnished by appellants to appellees for the purpose of constructing improvements upon the homestead of appellees.

<p>1. Agent—Transportation.—As a general rule, the consignor, as the agent to whom the owner intrusts his goods to be delivered to the carrier, must be regarded as having authority to stipulate for the terms of transportation. (Red. on Car., sec. 52; Hutch, on Car., sec. 265.)</p> <p>2. Same.— The carrier is authorized to act upon this presumption in contracting with . the agent, and need not inquire into his authority to make a particular shipment. (Authorities cited.)</p> <p>3. Contract—Place—Validity.— It is admitted in law that when a contract is to be wholly performed within a state, the laws of that state must furnish the rule as to its validity.</p> <p>4. Same.—When the contract is to be partly performed in the state where it is made and partly in another, the presumed intention of the parties, gathered from circumstances surrounding the transaction, must govern.</p> <p>5. Same.—When there are no circumstances attending the transaction, except the mere execution, delivery and acceptance of a bill of lading, the safest rule to arrive at the intention of the parties is that which upholds, rather than that which defeats, the contract, and the laws of the state under which the contract is valid should be applied. (Eng. and Am. cases cited.)</p> <p>6. Same—Bill of lading.—It will not be presumed that the parties to a bill of lading intended to have their contract governed by different laws according as a loss might occur in one or in another state, unless circumstances were proved showing such an intention.</p> <p>7. Bill of lading— Conditions.— In America it is generally held that a mere notice displayed in the office of a railway company, or printed on the bill of lading, will not bind the owner, though brought to his knowledge.</p> <p>8. Same.— But his assent is conclusively presumed to conditions inserted in the body of the bill of lading, when he has had an opportunity to know its contents, has received it at the time of shipment, and the carrier has used no unfair means to deceive. If the conditions are in small type, they are not void foi that reason alone. (Authorities cited.)</p> <p>9. Carrier—Negligence—Burden of proof.— Under an ordinary bill of lading, with no special exceptions, if the goods are lost by the act of God, the burden is upon the carrier to prove that his negligence did not contribute to cause the loss. (Story on Bail., sec. 529, etc.)</p> <p>10. Same. — So when goods are lost by some agency excepted by the carrier in the bill of lading, the plaintiff has merely to aver and prove that they were delivered to the carrier and were not received at the point of destination. This makes a prima facie case of negligence.</p> <p>11. Same.— To avoid liability, the carrier must show that the loss was caused by one of the excepted agencies, and must also rebut the presumption of negligence. This is in accordance with the rules of evidence and with the important rule that the burden of proof is on him who best knows the facts. (Authorities cited.)</p>

Error from Smith. Tried below before the Hbn. J. C. Bobertson. This suit was filed by plaintiffs in error in the District Court of Smith county, June 10, 1880, to enjoin the county of Smith and her officers from collecting state and county taxes claimed to be due on that part of plaintiff in error’s railroad constructed from Troupe to the east boundary of Smith county, 111 miles, by the International Bailroad company, under its charter granted August 5, 1870.

<p>1. Practice—Evidence—Rescission — Interest.— A parol sale of the lands in controversy was made in 1859; the vendee paid a yoke of oxen on the purchase, made valuable improvements, and in 1863 paid §100 on the purchase. He died, and his widow married again in 1868. The wife and her second husband leased the premises to the father of defendants in December, 1868; the land was sold under execution against the original vendor, and the purchaser sold to the lessee ; the wife and children of the original vendee brought suit against the heirs of the lessee. Held:</p> <p>(1) The second husband of the vendee’s wife, though separated from her, was, as they had not been divorced, a proper party plaintiff.</p> <p>(2) As the lessee was dead and the suit was against bis heirs, plaintiffs could not testify to conversations and transactions with him, but if such testimony did not injure defendants, it was no ground for reversal.</p> <p>(3) The rights of the wife could not be affected by declarations of her second husband, unless they were made in her presence. (8 Tex., 178.)</p> <p>(4) The acts and declarations of the original vendor could not affect the rights of' his vendee. He had waived time as an essential feature of the original contract, and could not rescind that contract without first giving his vendee, or his heirs, distinct notice of his purpose to require the purchase money within some reasonable period.</p> <p>(5) A bill of exceptions to the exclusion of testimony must show what the testimony would have been, or what was proposed to be proved by the witness.</p> <p>(6) In the absence of proof of the interest to be paid by the vendee on the balance of the purchase money, the jury was properly instructed to calculate interest, at 8 per cent.</p>

<p>1. Evidence—Tax deed—Variance.—Plaintiff in trespass to try title relied upon a tax deed, and sought to prove that the jurisdictional prerequisites had been complied with in the sale by producing the tax roll. The land in controversy was the Jos. Shelton survey, and it was admitted that the roll had been changed since the institution of the suit from Joshua to James Shelton. Held:</p> <p>(1) That the survey listed was not that conveyed to plaintiff, and the roll and deed were properly excluded.</p> <p>(2) Independant of constitutional and statutory law, a tax deed does not affect title unless the authority of the maker of the deed is shown by proof of the performance of all precedent requisites. (Bur. on Tax., 332; Cool, on Tax., 353, etc.)</p> <p>(3) The deed alone did not make a prima facie case for plaintiff. (Authorities reviewed.)</p>

Tried below before the Hon. James I. Perkins. This action was brought in the District Court of Cherokee county by John J. Gray and his wife, Mary A. Gray, for themselves, against the International and Great northern Railroad company and the Missouri Pacific Railway company, to recover actual damages for an injury inflicted upon Mrs. Mary A. Gray, one of the plaintiffs, and for compensation for the death of a child of the plaintiffs, and the loss of service of another child,…

Tried below before the Hon. B. W. Rimes. Plaintiff and defendants claimed title to the land under Felix W. Robertson as a common source. Felix W. Robertson was the guardian of a minor, and in anticipation of a possible delinquency, which had not then occurred, mortgaged the land in controversy to his sureties to indemnify them against loss. This mortgage was recorded in McLennan county on August 23, 1859, being executed August 23, 1858.

Tried below before the Hon. W. P. McLean. This suit was brought by appellant for himself and the other white citizens, inhabitants of the city of Sulphur Springs, Texas, against James A. Weaver, A. H. Edwards, E. H. Beale, E. A. Kellogg and F. Z. T. Jackson, on the 8th of August, 1881, in the District Court of Hopkins county, Texas. • Appellant alleges in his petition, in substance, that on the 2d of February, 1867, Dr. O. S. Davis deeded to trustees, for the white citizens…

Tried below before the Hon. W. P. McLean. This was a suit brought to obtain a personal judgment against one S. E. Brande, and alleging that the debt sued on had been secured by trust deed on certain property which had been destroyed by fire, but which was covered by insurance in the two insurance companies (appellees) to the amount of $2,000, which insurance was payable to Brande, and praying for an original writ of garnishment to be served on J. B. Littlejohn as the agent…

Tried below before the Hon. J. C. Bussell. This is the second appeal of this cause. For the action of this court on the former appeal, 62 Tex., 728.

<p>Appeal from Busk. Tried below before the Hon. J. G. Hazlewood.</p>

Tried below before the Hon. L. D. Bradley. This was a case of trial of right of property, and grew out of the failure of E. M. Ewing, in 1881. In August, 1881, P. J. Willis & Bro., of Galveston, sold E. M. Ewing, of Blooming Grove, a town in Navarro county, fifteen miles west of Corsicana, a bill of goods, to be delivered in September, and to be paid for in one, two, three and four months.

Tried below before Hon. Felix J. McCord. This is an ordinary suit of trespass to try title and for damages, instituted by appellee against W. C. Inge, appellant, and The Mutual Fire Shielders Association. The land in controversy is described as follows: A part of the H. McNutt headright survey in Gregg county, and known and designated upon the map of the town of Longview as the east half of the north half of lot- number six, in lot number twenty-one.

<p>Appeal from Rusk. Tried below before the Hon. J. Gr. Hazlewood.</p>

Tried below before the Hon. E. W. Terhune, special judge. This was an action of trespass to try title, brought in the District Court of Hopkins county by appellant against appellee, to recover eighty acres of land, the north half of a 160 acre tract deeded by Silas Garvin to Alexander Johnson.

<p>1. Mistake—Inconsistent Allegations.—Plaintiff alleged that she and defendant partitioned between them a league of land ; that in accordance with an agreement, a portion of the land contained within certain metes and bounds was conveyed to defendant as his share; the petition further stated that the agreement was to convey only 400 acres, but through an error made by the surveyor, 676 acres were conveyed in the deed. Held</p> <p>(1) That as the first allegation claimed no mistake in making the agreement, there was nothing in the deed to correct. (2) The latter allegations were contradictory of the first, and taken in connection with the first, showed a state of case so inconsistent with itself as to warrant the court below in refusing relief.</p> <p>2. Boundaries—Presumption.—Every owner of land is presumed to know its boundaries and the well-marked and defined lines that separate it from adjoin- . ing tracts belonging to another.</p> <p>3. Limitation—Negligence.—In a suit over the boundaries of land, the plaintiff alleged that the lands were situated in the woods, and partly in a river bottom, and were remote from her residence. Held: That these facts did not excuse plaintiff from knowing the boundaries of her land and being acquainted with errors therein; if she did not improve her opportunities of knowing the limits of her land she did not give that reasonable attention which was due to her affairs, and such negligence deprived her of relief in equity by re-forming the boundaries after the bar of the statute of limitations had run.</p>

Tried below before the Hon. J. A. B. Put-man. This was a suit by appellee against appellant to cancel a deed made to appellant on the 26th of January, 1882, and to recover so much of the land therein conveyed as was still owned by appellant.

<p>Appeal from Rusk. Tried below by the Hon. J. G. Hazlewood.</p>

<p>Appeal from Bed Biver. Tried below before the Hon. D. H. Scott.</p> <p>On the 19th of February, 1884, the appellees, Ely Walker & Co., instituted a suit in the District Court of Bed Biver county against D. P. Smith, on an open account, and at the same time obtained an attachment in said suit, which was levied on the stock of goods, wares and merchandise in the possession of appellant, B. F. Hinson. Hinson claimed the goods, and filed an affidavit and claim bond under the statute for the trial of the right of property. The case was tried on the 25th of May, 1885, and resulted in a judgment for the plaintiffs.</p> <p>In the second paragraph of the charge the court said: “If you find from the evidence in this case that the property in controversy belonged to D. P. Smith at the date of the levy of attachment offered in evidence, or if you believe from the evidence that D. P. Smith furnished the money to buy said property, and took the title in defendant’s name for the purpose of placing said property beyond tie reach of his, D. P. Smith’s creditors, or if you find that said property was transferred to defendant by D. P. Smith for the purpose of hindering, delaying or defrauding the creditors of said Smith, and defendant, Hinson, knew the object of such transfer, or had possession of sufficient facts in reference thereto to put a prudent man on inquiry, or to excite the suspicions of a prudent man, then you will find that the property in controversy was the property of D. P. Smith at the date of the levy of attachment, and subject to said attachment.”</p> <p>The fourth paragraph was: “In arriving at the conclusion as to whether or not the transactions between D. P. Smith and defendant, Hinson, were fair and right, or otherwise, you will take into consideration all the facts and circumstances shown by the evidence.”</p> <p>The witness, Harris, testified: “In the early part of January, 1884, I heard a conversation between Smith and my son, Robert Harris. Smith said he had four or five thousand dollars surplus money, and wanted to go in partnership with Harris Bros.; said he would put his brother-in-law, Hinson, in as clerk to look after his interest.”</p>

Tried below before the Hon. E. B. Perkins, special judge. On June 15th, 1884, Mayer & Kahn, a wholesale house of Galveston, sued out an attachment' against Harrison & Robertson, of Delta county, Tex., for $803, for goods bought in March, 1884, on four month’s credit, and had same levied upon a lot of saloon goods and fixtures in Cooper, that were transferred on June 11, 1884, by Harrison & Robertson, to T. E. McClinton.

<p>1. Demurrer—Description—Boundaries.—The petition described the land in controversy as eighty-five acres, more or less, out of a certain survey, situated at a certain distance from the town of 0., and being a farm belonging to 0. up to the time of her death, and known as the 0 place. Held:</p> <p>(1) The description of the land could not be attacked on demurrer unless it was manifest that the terms of the petition did not distinguish the land from all other tracts.</p> <p>(2) If a well-defined tract of land was known as the C place, and no difficulty was encountered on the trial in determining the precise limits of the land in controversy, the description on the face of the petition was not insufficient.</p> <p>2. Execution—Return—Sale—Validity.—It does not affect the validity of a sale under an execution that the return on the execution failed to show that the owner was called upon to point out the property, or who pointed it out, or that notice of sale was posted, as required by law. (Howard v. Worth, 5 Tex., 290; Sydnor v. Roberts, 13 Tex., 598.)</p> <p>3. Sale—Holiday—Construction.—Article 1184, Revised Statutes, refers to such process as may be required in the commencement of a suit, and in cases of injunction, attachment and sequestration alone.</p> <p>4. Same—Sunday.—The issuance and service of process on Sunday is, at common law, invalid; the statute declares the common law and, by exception, modifies it. Holidays have only the sanctity attached to them by statute, and all busimay be transacted on them except what is expressly forbidden. (63 Tex., 162.)</p> <p>6. Same—Article 1184, Revised Statutes.—The words “ any civil process,” in article 1184, Revised Statutes, are broad enough to cover executions, but the chapter limits the language to process pertaining to the commencement of suits. No such prohibition is found in the chapter on executions or legal holidays.</p> <p>6. Homestead.—See opinion for facts held insufficient to constitute a tract of land a homestead.</p> <p>7. Source of Title—Inconsistency —When defendant agreed that a certain party was the common source of title to the land in controversy, he was precluded from claiming any interest in the land not derived from that source.</p>

Tried below before the Hon. A. J. Booty. Frank Mallon, the appellee, and plaintiff in this case in the court below, instituted this suit against the Texas & Pacific Railway company to recover a sum of money as compensation for personal injuries received by Mm in a collision between two freight trains on defendant’s road a short distance east of Hallville, a station on defendant’s road, on the 6th of December, 1881, between one and two o’ clock a. m. The colliding trains were…

Tried below before the Hon. F. B. Sexton, special judge. This is a suit brought by appellee to recover $2,500 with interest, on a policy of insurance against loss by fire upon a certain three-story brick building in Greenville, Texas, known as the Ende hotel, issued by appellant on the 16th day of December, 1882, which building appellant claims to have been destroyed by fire, on the 7th day of April, 1883.

Tried below before the Hon. F. B. Sexton, special judge. Appellees, plaintiffs below, brought this suit against appellant to recover the sum of $2,500, with interest, on a policy of insurance against loss or damage by fire upon hotel and kitchen furniture, beds, bedding, tables, table-ware, chairs, washstands, bureaus, wardrobes, and other furniture usually kept and used in hotels.

<p>1. Partnership—Wife—Liability—Husband.—A married woman invested the proceeds of the sale of her separate estate in a partnership, and carried on a mercantile business under articles of partnership. Suit was brought against the husband, the wife, and the other partner, as members of the firm, on a note executed by the firm. Held:</p> <p>(1) That a wife cannot become a partner in business either with her husband or any one else. (Wallace v. Finberg, 45 Tex., 35 ; Cox v. Miller, 54 Tex., 16.)</p> <p>(2) Neither the wife nor the husband could invest her separate property in a mercantile business, and thereby become entitled to the profits arising therefrom as part of the separate estate.</p> <p>(3) Her separate estate could not be°subjected to any of the debts of such an attempted partnership, though she would doubtless be liable to the extent of her separate property invested.</p> <p>(4) The profits to which the wife’s right might be recognized by reason of her connection with the business became the common property of herself and husband, was entirely under the control of the husband, and could be disposed of by him only.</p> <p>(5) The husband enjoyed an interest in the profits of the business as profits, and he was a partner in the firm, as to third parties, if not as to other members of the firm. (Par. on Part., 70, 71 and authorities in note “/.”) He could not enjoy all the advantages of a partnership without incurring its liabilities.</p> <p>(6) Had the wife made no contract of partnership or been known in respect to the partnership affairs, and yet he had been in a position to demand an interest in the profits of the character stated, he would have been a partner as to third parties.</p> <p>(7) Had the husband signed articles of partnership void as to his copartners, but had regularly reaped his portion of the partnership gains, he would have been responsible for the firm debt, and was so in this case.</p>

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

<p>1. Verdict—Judgment—Variance—Interest.—In rendering judgment upon facts found by the jury, the court cannot add a fact not included in the verdict, as interest on the sum found, where interest did not follow as an incident, even though the uncontradicted testimony showed the fact so found by the court.</p> <p>2. Same.—The verdict must constitute the basis of the judgment, and the court must look to it alone. The judgment is the conclusion of law upon the facts of the case as found by the verdict. (Claiborne v. Tanner, 18 Tex., 68.)</p> <p>3. Same.—Interest is not such a legal incident to a sum, found by a jury to be due plaintiff from defendant as the proceeds of a crop, that the court can add it to the principal in its judgment, without a finding of the jury.</p> <p>4. Community property—Survivor—Use.—In some cases a survivor may be liable for the use of stock belonging to the community estate, but when it is not averred that he improperly cared for or overworked the animals in any way, or that he hired them out, or should have hired them out or sold them, or that plaintiffs (the other heirs) demanded a division of the stock, the survivor is not liable.</p> <p>5. Same.—If there are no debts, it is the survivor’s duty to take care of the community stock for the owners, and while doing this, if he makes only such use of them as would not damage their value, he is not liable for the value of their hire. A reasonable use is an incident of his possession as owner in common.</p> <p>6. Same—Suit.—After the institution of a suit by the other heirs, claiming the value of the animals’ use, and demanding partition, the survivor thenceforth becomes liable for the value of their hire.</p> <p>7. Community—Exemption—Distribution.—Pas. Dig. of Laws of Tex., art. 5487, does not prevent exempt property from being finally distributed, or being taken into account under the law of descent and distribution.</p> <p>8. Community—Survivor—Tenants’ rents and profits in common—Authorities reviewed.—A wife died and the husband occupied the community lands. The wife's children sued him for their part of the rents with interest. Held :</p> <p>(1) That plaintiffs and defendant became tenants in common on the death of the wife, and if he occupied all the land, without excluding his co-tenants, they could not at common law compel him to account for the profits; unless he was made their bailiff, he could not be made to account, even where he let the premises and received the entire rents.</p> <p>(2) Statutes of 4 and 5 Anne, gave the right to an account only when the land held in common was let, and one of the co-tenants received more than his share of the rents. (Neil v. Shackelford, 45 Tex., approved.)</p> <p>(3) In this state, independent of the Statute of Anne, if a tenant in common lets the entire estate, he may be held to account to his co-owners for the rent, but if he occupies the lands himself, and by his own labor, and at his own expense, causes them to produce a profit, his co-tenant, not in possession, nor sharing the toil or risk, cannot claim part of the profits.</p> <p>(4) A surviving partner has the right of exclusive possession, and the duty of using the partnership property in discharging debts is imposed upon him; if he exercises the right, he assumes the duties of a trustee, and must account for rents and profits.</p> <p>(5) If ch. 28, R. S. is followed, the surviving wife or husband becomes a trustee ; if he or she does not assume that character by a compliance with the statute, creditors or heirs of the wife may open administration, or the wife's heirs may share the occupancy of the lands or sue for partition.</p> <p>(6) If the surviving husband refused to act as trustee, and did no act to prevent plaintiffs from exercising all the privileges of tenants in common, occupying the lands by their acquiescence, then he did not act as their trustee or agent, but as their co-tenant, and incurred no obligation to account to them for rents and profits.</p> <p>0. Separate property—Community—Purchase money.—Land was bought and paid for by a man before his marriage ; after marriage!' he compromised a suit against him for the land by paying half its value, the compromise money being community property. Held:</p> <p>(1) If the husband acquired a good title by the first purchase, or by limitation before his marriage, all the land was his separate property.</p> <p>(2) If he did not have a title at the time of his marriage, it was all community property.</p>

Tried below before the Hon. W. P. McLean. This proceeding was a bill for an injunction filed by appellees to restrain the appellants, who were the county officers of Bowie county, from removing their offices and archives, records, books, papers, etc., from Boston, Bowie county, Texas, to Texarkana, in that county, which the bill alleged they were unlawfully about to do in consequence of, and in obedience to, an order of Jno.

Tried below before the Hon. A. J, Booty. Held: as administrator, four or five thousand dollars in notes, the proceeds of the sale of personal property of the estate. Turner stated that the trials referred to took place about the years 1868 and 1869.

Tried below before the Hon. F. A. Williams. , The defendants in this suit were numerous, and, by agreement of parties, Beagan and Word, two of the defendants, severed from the others on the trial, and all of the plaintiffs except Mrs. Woodard and Mrs. McClung abandoned the suit.

Tried below before the Hon. B. F. Estes.' This suit was instituted by D. P. Smith, as administrator of L. H. Tetro, deceased, to recover of the East Line and Red River R’y Co. damages, both actual and exemplary, for the wrongful death of Tetro, which it is alleged was brought about by the negligence of the defendant company as follows: That Tetro was on August 7, 1882, a passenger on one of its trains, and on that day, at Scroggin’s switch, in Wood county, Texas, the train…

Tried below before the Hon. W. P. McLean. The opinion states the case. Among other things, appellants claim in their fifth assignment of error that the court erred in charging the jury, “the proof must show that the whole of the purchase money for the land was paid with the defendant’s (B. A. Banguss) money to entitle plaintiff to recover.”

Tried below before the Hon. F. A. Williams. This action was brought in the district court of Henderson county, Texas, on August 8, 1883, by A. T. Miller, W. P. Miller and O. E. Stalter, a minor, by next friend, David Stalter, against F. P. Moss and C. A. Atwood, and amended September 5, 1884, and as amended, the petition is in the ordinary form of trespass to try title to one hundred and sixty acres of land described in petition by metes and bounds, and situated in Henderson…

Tried below before the Hon. T. B. Wheeler. The case was tried before the court without a jury. Appellee (plaintiff below) brought suit for the land covered by certificates Bos. 22, 23, 24, 25, 27 and 28, issued to Burr & Caswell, and Bos. 82, 83, 84, issued to the Bast Line and Red River railroad, and 498, issued to the Houston Bast and West Texas railroad.

Tried below before the Hon. John B. Kennard. Appellant, Mrs. Parish, joined ‘by her husband, instituted this suit against appellee, as executor of Philip Alston, deceased, to recover amounts claimed to be due her by Philip Alston as her guardian. The original petition was filed September 16, 1881. The guardian qualified in 1858 or 1859, when his ward was only two or three years old, and she lived in his family until her marriage in April, 1872, at the age of seventeen years.

Tried below before the Hon. Wm. H. Burkhart. Held: as conclusions of law, that the plaintiffs had not shown such participation on the part of Mrs. Wood in the fraud of the executor as to entitle them to recover against her, and also that the plaintiffs’ suit was barred by limitation.

Tried below before the Hon. J. A. B. Putman. Appellant, as plaintiff below, brought this suit in the usual form of trespass to try title against B. M. Powers, and his wife Elizabeth Powers, Mrs. M. A. Allen, surviving wife of A. C. Allen, deceased, John Yesey, and his wife Mrs. Addie Yesey, John Allen, W. H. Allen, Sid Bass, and his wife Mrs Leda Bass, appellees, in the district court of Kaufman county, on June 13, 1884, to recover the possession of four hundred and…

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

Tried below before the Hon. W. H. Ford. The appellants, Electra C. Hancock, and her husband W. J. Hancock, H. H. Allen, Jr., Emmett B. Allen, Myrtle Hancock and her husband Jas. W. Hancock, as plaintiffs below, filed their petition in the district court of Jasper county, July 25, 1882, in the ordinary form of trespass to try title, against the Tram Lumber company, James Masterson and Henry Fox, to recover a league of land in Jasper county, granted to Martin Flores.

Tried below before the Hon. Wm. H. Stewart. John Buchanan sued Kauffman & Bunge, March 26, 1883, in Galveston district court, for $1,326.33, claimed to be due him by reason of defendants’ breach of express warranty of title to a stock of merchandise sold by them to him December 18, 1880, for a consideration in cash and notes (afterwards paid), amounting to something over $3,000.

Tried below before the Hon. H. 0. Pleas-ants. This suit was instituted by H. J. Huck & Co. against the appellants, F. S. Taylor and his wife L. B. Taylor, on February 16, 1882, in the district court of Goliad county, on a promissory note for $1,221, and bearing date August 9, 1877, and to foreclose a lien upon the property therein described, for lumber and material furnished.

Error from Washington. Tried below before the Hon. J. B. McFarland. This suit originated, December, 1881, in the county court of Washington county, sitting as a court of probate. The appellant, Mrs. Y. B. Clifford, as guardian of several minor children, was the holder of a claim of the third class, duly allowed, approved and classified, against the estate of T. R. Power, deceased, the same being secured by a deed of trust on lands belonging to that estate.

Tried below before the Hon. J. B. McFarland. This suit was instituted on February 20, 1885, in the district court of Washington county, to establish a rejected account against the estate of John S. Smith, deceased, of which appellee is administratrix.

<p>1. Limitations—Lis pendens—Presumptions—In November, 1871, B., E. & T., as trustees of a religious association, entered into possession of a lot in the town of Corpus Christi, Texas, under a deed to them from J., and they and their successors have ever since continuously occupied and used the property as a place of public worship. In 1849 suit involving the title to the above mentioned lot was instituted in the United States circuit court, at Galveston, by D. against K., which resulted in a decree vesting the title in D. One of the links in the trustees’ chain of title is a deed executed by K., in 1852, pending the suit between him and D. in the United States court. In an action of trespass to try title, brought in 1882, for the lot by S., who derives title through D., against W., G. & P., the successors of B., E. & T. Held:</p> <p>(1) That the plaintiff’s right of action was barred by limitation;</p> <p>(2) That as the plaintiff relied.on lis pendens as matter to defeat the defendant’s plea of limitation, it was incumbent on her to show, not only that suit was pending at the time the deed made by K. in 1852 was executed, but also that this condition of things continued down to such period of time as would preclude the defense of limitation.</p> <p>(3) That although there may have been lis pendens in 1852, yet, in the absence of proof to the contrary, it will not be presumed but that it ended in that year, or at least at some time sufficiently long before the institution of this suit in 1882, as to have' made available to the defendants, under their deed executed in 1871, even the longest period of time prescribed by the statute.</p> <p>2. Practice in supreme court—A certified copy of a decree of another court, though found in the transcript, will not be considered by this court for any purpose unless the same has been made a part of a statement of facts or bill of exceptions, or has otherwise been so made a part of the record in the cause as to authorize the court to consider it.</p>

Tried below before the Hon. H. Tiechmueller. Mrs. S. P. Ragsdale brought this suit in the district court of Fayette county, Texas, against Mary Mays, to compel specific performance of a certain contract, in writing, executed by the latter to the former, for the sale of lands lying in Lavaca and Uvalde counties.

Tried below before the Hon. J. C. Russell. G. W. Morton brought this suit in the district court of Webb county against L. J. Giraud, Thomas Ryan and Gaspar Mas, on a bond executed to him by Giraud as principal, and Ryan and Mas as sureties, and conditioned for the performance, on Giraud’s part, of a contract entered into between him and Morton for the erection of a certain building on the property of the latter, according to plan and specifications attached to the contract.

Tried below before the Hon. J. B. McFarland. Isaac Heidenheimer brought suit, December 2, 1885, against Chas. Wenar & Co., for debt, and sued out an attachment, which he caused to be levied on a stock of goods, wares and merchandise found in their store in Brenham, Texas. Other attachments were levied on the same goods by the plaintiffs in error, on December 3, 1885, and on subsequent days during said month.

Tried below before the Hon. W. H: Burkhart. The appellants Swearingen and Garrett, plaintiffs below, brought this suit against B. H. Bassett, and Martha J. Bassett and her children, widow and children of Jefferson Bassett, deceased, to recover a lot and improvements in the city of Brenham, claimed by plaintiffs as assignees under a deed of assignment made by B. H. Bassett as surviving partner of the late firm of Bassett & Bassett, composed of himself and Jefferson Bassett,…

Tried below before the Hon. J. B. McFarland. This suit was brought by appellant, Laura V. Seale, November 24, 1884, to recover damages for the death of her daughter, Capitola Seale, which she alleged occurred August 30, 1884, from burns received in attempting to prevent the destruction of appellant’s fence and dwelling by fire, originating from sparks emitted from appellee’s engine.

Error from Washington. Tried below before the Hon. J. B. McFarlands This suit was brought by Amanda Nickerson, October 10, 1883, against Abram Nickerson and James V. Matson, Jr., for false imprisonment, laying her damages at $10,000. The plaintiff alleged, in her petition, that she and the defendant Abram Nickerson were, at the time, husband and wife, but had not been living together for several years, charging the fault of their separation to the husband.

Tried below before the Hon. J. B. McFarland. This suit was brought in the district court of Burleson county by J. B. L. Hilliard and Silas Hilliard, against Sam G-. Wilson, who resided in Burleson county, and Leon and H. Blum, residents of Galveston county, who with one Hyman Blum were alleged to be partners transacting a mercantile business in the city of Galveston, under the firm name of Leon & H. Blum.

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

Tried below before the Hon. J. B. McFarland. From the foregoing statement and the opinion of the court the case will be readily understood.

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

Tried below before the Hon. J. B. McFarland. On November 18, 1884, Marek & Marek were indebted to Gus. Lewy & Co. in the sum of $1,400.29. On that date Marek & Marek sold their entire stock of goods (valued by them at $4,200) to Joseph Fischl, the consideration being an indebtedness to Fischl, of $3,000, and certain debts that Fischl assumed to pay. On November 20, 1884, Gus.

Tried below before the Hon. R. H. Phelps, special judge. Heidenheimer Bros., as indorsees of one Alexander, brought tbia suit in the district court of Payette county, against Dennis Stewart, to recover amount due on a negotiable promissory note executed by the latter, and to foreclose a lien on a certain tract of land in that county, retained, as security for the note, in a deed from Alexander to Stewart for the land.

Tried below before the Hon. H. Clay Pleasants. On April 16, 1884, Ayérs & Cannon, A. Levi & Co., and A. F. Higgs filed their original petition, in the nature of a creditor’s bill, in the district court of Victoria county, against the Texas Continental Meat company, a private corporation established under the laws of Texas.

Tried below before the Hon. H. Clay Pleas-ants. On July 2, 1885, Thomas O’Connor, the appellee, filed his petition for injunction, in the district court of Aransas county, against P. P. Court, sheriff and tax-collector of the county, to restrain that officer from selling certain lands of O’Connor, situated in Aransas county, for taxes, for the year 1884, assessed against those lands and four thousand head of cattle.

Tried below before the Hon. W. H. Ford. This suit was originally instituted in the justice’s court, precinct Ho. 1, of Jefferson county, March 2, 1885, by George P. Smith, on an open account showing a balance of $14.00 due him, for labor performed in the building of a certain boat, against James Ingalls, Jr., as being individually liable therefor.

Error from Orange. Tried below before the Hon. Stephen Chenault, special judge. On July 12, 1882, John Gordon, the appellee, instituted this suit, in the district court of Orange county, against W. F. Stewart & Co. and J. A. Bell, to recover $600 for services rendered, and the further sum of $5,000 as damages for malicious prosecution.

Tried below before the Hon. John C. Russell. Held: the true result of the election, from the face of the returns alone, would have showed that plaintiff had received three hundred and eighty-two votes and the defendant three hundred and eighteen votes.

Tried below before the Hon. William B. Collard. The two hundred and sixty-eight acres of land in controversy formerly belonged to the estate of William H., Sarah E., John and Joseph Goff, minors. In January, 1881, the appellant, J. H. Sheffield, as guardian of that estate, applied to the county court for leave to sell the land, at private sale, for the support and maintenance of his wards.

<p>1. Garnishment—Municipal corporations—In the absence of any statute providing that municipal corporations shall be exempt from garnishment, a city, like an individual or private corporation, is subject to the process of garnishment for any ordinary debt it may owe to a third person.</p> <p>2. Same—Fund set apart for a public building—Public policy—Public policy may demand that a sum set apart for erecting a public building, should not be taken during the progress of its construction, for the debt of the person contracting to do the work, for that might prevent its completion; but when the work is finished and the money has been earned, and is standing to the credit of the contractor with the city, it should be subject, like any other property, to the payment of his debts.</p> <p>3. Semble—Execution against a city—There is no statute in this state forbidding an execution against a city, and it may be that a plaintiff who has obtained judgment in garnishment against such corporation, is entitled to the same process to enforce its collection as would be accorded to the creditor upon whose demand against the city the garnishment is founded.</p> <p>4. Cases followed—The cases of Rodman v. Musselman, 12 Bush. 315; Whidden v. Drake, 5 N. H. 13; Bray v. Wallingford, 20 Conn. 416; Mayor v. Horton, 38 N. J. Law, 88; Smart v. Hart, 33 Ala. 69, cited and followed.</p>

Tried below before the Hon. J. P. Stevenson, special judge. This suit was brought by H. W. Moore against David Jordan and Tamer Jordan, in justice’s court, Houston county, to recover a balance due Moore, for advances made by him to the Jordans during the year 1882, and to foreclose a mortgage on certain personal property, given as security for the debt. Moore sued out a writ of sequestration, and levied on a portion of the property described in the mortgage.

Application to the supreme court for injunction against the judge and the clerk of the district court of San Saba. On December 14, 1885, Barclay Martin recovered, in the district court of San Saba county, a judgment awarding him a peremptory mandamus, requiring the defendants in the suit, who had in charge the public free schools of the town of Burnet, in Burnet county, to receive Mm as a pupil in the schools.

Tried below before the Hon. J. P. Stevenson, special judge. This suit was brought by J. A. Christman, appellee, against the Missouri Pacific Railway company, appellant, in the district court of Houston county, to recover damages for personal injuries received by him whilst serving the railway company in the capacity of locomotive engineer, the plaintiff laying his damages at $20,000.

Tried below before the Hon. W. H. Ford. This was an action of trespass to try title, brought by William Davison, the appellant, in the district court of Newton county, March 13, 1885, against Geo. F. Poole, for the recovery of four and a half acres of land, near the town of Newton, in that county.

Tried below before the Hon. W. H. Ford. This suit was instituted by appellant in the district court of Jefferson county, June 12, 1885, against appellee as executrix of the estate of G. C. Caswell, deceased, upon nine promissory notes executed by her testator in his lifetime, and aggregating the sum of $5,814.12.

Error from Tyler. Tried below before the Hon. W. H. Ford. This suit was instituted, in the district court of Tyler county, September 2, 1882, by Porter & McMillan against Burkett, Murphy & Burns, for damages for breach of contract.

<p>1. Citation—Sheriff’s return—Defective service—The return upon the citation was as follows : “ Came to hand on the 12th day of February, A. D. 1884, at 11 o’clock a. m., and executed the 18th day of February, A. D. 1884, by delivering to Mrs. A. A. Holliday and W. H. Holliday, the within named defendants, in person, a true copy of this writ.” Held:</p> <p>(1) The service was insufficient;</p> <p>(2) The fact that in the statement of the sheriff’s costs, at the end of the transcript, fees for delivering two citations are charged, does not cure the defect in the return.</p> <p>2. Case followed—The case of King v. Goodson (42 Tex. 153), cited and followed.</p>

Tried below before the Hon. W. H. Ford. This is a suit by Ben J. Johnson against the Sabine and East Texas Railway company, for damages for injury to land, fruit trees, growing crops, grass and live stock, from overflow caused by the negligent and improper construction of defendant’s road.

<p>1. Appeal—Trial de novo—Joint judgments—In all cases of joint judgments where, on appeal, the trial is de novo, the rule is, that an appeal by any party against whom the judgment was rendered annuls the judgment and divests it of all power to support an execution. (Citing Powell on Appellate Procedure, 359, 378; Freeman on Judg. 328; Curtis v. Beardsly, 15 Conn. 523; Bank v. Wheeler, 28 Conn. 441; Campbell v. Howard, 5 Mass. 378; Bender Bros. v. Lockett, decided at last Tyler term.</p> <p>2. Appeal from justice’s court—Effect upon the judgment—An appeal from a judgment rendered in a justice’s court does not merely suspend its execution until the determination of the cause in the appellate court, as does an appeal from the district court to the supreme court; but its effect is to annul the judgment.</p>

Tried below before the Hon. A. M. Miller, special judge. On April 20, 1885, appellant, in his capacity of county judge of Houston county, brought this suit, in the county court of that county, against John McConnell, the county treasurer, and John C. Wootters and John B. Smith, sureties on McConnell’s official bond, to recover, for the use of the county, $256.25 retained by that officer as commissions in alleged excess of what he was entitled1 to charge under the law.

Tried below before the Hon. Edwin Hobby. This is an action by M. S. Cole, joined by her husband, Richard Cole, against appellants, W. D. Cleveland et al., for the alleged wrongful conversion of two mules, of the value of $125 each, one wagon valued at $65.00, and about one hundred and twenty thousand pounds of seed cotton valued at $5,000, the petition alleging the same to be the separate property of M. S, Cole.

Tried below before the Hon. John C. Bussell. This suit was begun by the appellant against the appellee in the county court of Webb county, but was removed to the district court of that county, on account of the disqualification of the county judge.

Tried below before the Hon. Jno. C. Russell. Baymond Martin, the appellee, as assignee of Fondard and Yglesias, insolvents, instituted this suit, in the district court of Webb county, against Thomas C. Sheldon, the appellant, on a promissory note, executed by the latter to the former, for the sum of $817.62, and bearing interest at the rate of five per cent, per annum.

Tried below before the Hon. W. H. Ford. This is a suit, in trespass to try title, by Amanda Cartwright, appellee, against JohnC.

Tried below before the Hon. Edwin Hobby. This was a suit for both actual and exemplary damages, brought by Hattie Jones, joined by her husband, J. H. Jones, on April 9, 1884, in the district court of Polk county, against T. J. Epperson, sheriff of that county, and Charles Heidenheimer, Jake Stern and D. M. Ehrlich, for the wrongful and malicious levy of an execution in favor of the three last named defendants against the plaintiff, J. H. Jones, and one M. L. Matthews, upon a…

<p>Appeal from Tyler. Tried below before the Hon. W. H. Ford.</p>

Tried below before the Hon. J. B. McFarland. This suit, begun in the county court of Washington county, but subsequently transferred to the district court of that county, because of the disqualification of the judge of the county court, was instituted August 22, 1879, by the appellant Thomas Dwyer against the appellee Adrian Testard, on a promissory note for $201.35, executed to the former by the latter, jointly with other's, who were alleged to be insolvent, bearing date…

<p>Appeal from DeWitt. Tried below before the Hon. H. Clay Pleas-ants.</p> <p>December 5, 1884, Field, .Thayer & Co. recovered, in the district court of DeWitt county, a judgment against A. W. Evans for $828.17, and costs. Execution was duly issued on this judgment and returned “no property found.” On March 22, 1885, an alias execution was issued thereon, directed to the sheriff of Lavaca county, and, by plaintiffs’ attorneys, placed in the hands of that officer, A. J. Smothers, with instructions to levy the writ upon a certain tract of land in the latter county, conveyed, October 4,1884, by C. C. Haynes and wife to F. M. Evans. The officer refused or failed to make the levy; and, on May 16, 1885, Field, Thayer & Co, instituted this proceeding against him and the sureties on his official bond, by written motion, filed in the district court of DeWitt county, for such failure or refusal.</p> <p>The motion alleged, that the conveyance from Haynes and wife to F. M. Evans was for a valuable consideration, and that F. M. Evans was, at the time of such conveyance, and had been, continuously since then, the wife of A. W. Evans, the defendant in execution; and it prayed for judgment against the officer and his sureties for the amount of their judgment, and interest and costs, etc. The defendants in the motion pleaded, specially : first, that the property upon which the sheriff had been directed to levy, was, at that time, the separate property of F. M. Evans, and that A. W. Evans, the defendant in execution, at no time owned it or any interest therein, or any interest in any other property-in Lavaca county; second, that the property was, at the time, mortgaged for greatly more than its value; third, that the plaintiff directed him to levy on land conveyed by C. C. Haynes and wife to A. W. Evans, whereas, the land in question had been conveyed by C. C. Haynes and wife to F. M. Evans.</p> <p>The plaintiffs filed a general demurrer to these pleas, which was sustained. The cause was then tried by the court without a jury, the trial resulting in a judgment in favor of the plaintiffs for $861.30. The defendants appealed.</p>

Tried below before the Hon. H. Tiechmueller. This was an action of trespass to try title, brought by W. E. Luhn against A. B. Stone, in the district court of Austin county, to recover eighty-seven and one-fifth acres of land. The defendant pleaded: first, not guilty; second, that the land sued for was, at the time it was levied on and purchased by plaintiff, a part of defendant’s homestead.

<p>1. Guardian—Order of removal not invalid because of defective petition—The county court may, of its own motion, for cause, make an order removing the guardian of a minor; and where such an order is made by the court on the petition of some person interested in the minor, it is not invalid because of the petition’s being defective.</p> <p>2. Same—Article 2615, Revised Statutes, construed—Sub-division 3 of article 2615, Revised Statutes, applies as well to guardians of the person as to guardians of the estates of minors; and a judgment removing a guardian of the person, which assigns as the ground therefor, that such guardian had misapplied property of the ward, committed to his charge, states a good cause for removal.</p>

Tried below before the Hon. Wm. H. Stewart. This suit was instituted, in the district court of Galveston county, by Budolph Weisen against the Missouri Pacific Bailway company, for damages for personal injuries resulting from a collision between the plaintiff and one of the company’s train of cars, alleged to have been caused by the defendant’s negligence. The petition laid the damages at $5,000. The defendant pleaded not guilty and contributory negligence.

Tried below before the Hon. W. J. Win-gate, special judge. This was an action of trespass to try title, brought by Preston &■ Smith against the Beaumont Pasture company, to recover a league of land in the possession of the latter. Defendants pleaded not guilty. The trial was by jury, and resulted in a verdict and judgment for the plaintiffs. The defendants appealed.

Tried below before the Hon. F. A. Williams. This was a suit on a promissory note for $800, executed to the appellee, L. W. Cooper, by James Collins, in the name of Collins & Douglas, a firm composed of E. M. Collins and M. C. Douglas, for money borrowed and used by Mm in a mercantile business, wMch he, as sole manager, was at the time conducting for that firm.

<p>Appeal from Colorado. Tried below before the Hon. R. H. Phelps, special judge.</p>

Tried below before the Hon. J. B. McFarland. Held: and adjoins the town of Lyon, a station on the Santa Fe railway ; a tract of one hundred and fifty acres, which includes the twenty-four and eighty-four one-hundredths acres and the mill and gin sued for and recovered by plaintiffs in this suit; three and one-third acres, less the railway company’s right of way, say two and…

Tried below before the Hon. Geo. McCormick. This suit was brought by H. C. Bartleson, a resident of the state of Alabama, and Maria L. Cheesborough, a resident of the state of Ohio, against W. F. Heal, H. M. Everett, and W. H. Getzendaner, to recover a league and labor of land situated ini Colorado county, and patented to the heirs of Peter K. Bartleson, deceased.

<p>1. Vendor and vendee—Refusal to receive personal property contracted for— Seller’s remedies—Measure of damages—When a vendee refuses to receive personal property contracted for, the seller has either of three remedies: He may hold the property as the property of the vendee, and sue for the price ; or he may foreclose his vendor’s lien upon the property by a fair sale of it, and sue the vendee for the portion of the agreed price he fails in this way to realize ; or he may treat the property as his own, and sue for damages. If the vendor elects the latter remedy, the measure of his recovery is the difference between the contract price of the thing refused and its market value at the date when it ought to have been received. (Citing 3 Parsons on Cont. 209.)</p> <p>2. Pleading—Inconsistent matters of defense—Estoppel—A defendant is allowed to plead as many inconsistent matters of defense as he pleases to reduce to writing. He is not estopped by pleading his rights under a contract from claiming the advantage of any change in that contract, which legitimate proof may establish.</p>

Tried below before the Hon. J. P. Stevenson, special judge. August 3,1879, Mrs. V. E. Petty, joined by her husband, B. M. Petty, and her sister, Miss L. B. Steed, brought this suit of trespass to try title against the tenants of their brother, W. M. Steed, for a tract of two hundred and twenty acres of land in Houston county. W. M. Steed defended as landlord.

Error from Galveston. Tried below before the Hon. W. H. Stewart. The court, to whom the cause on the trial thereof was submitted without a jury, rendered judgment in favor of the plaintiff for the amount of the note and interest, less certain sums advanced the payee by the executor. The defendants excepted, and have brought the case to this court by writ of error. The trial court’s conclusions of law, which form a part of the record, are as follows: 1.

<p>1. Street railways—Grant of right of way over streets of a city not an exclusive privilege—A grant made, under legislative sanction, by a city to a street railway company of the right, not in express terms exclusive, to build and operate a railway upon one or more of its streets, confers upon the railway company no exclusive privilege as to such streets. The city, notwithstanding such grant, retains all the control it formerly possessed over those streets, subject only to the company’s exclusive right, as against other railway companies, to use that portion covered by its track. (Citing Jersey City and Bergen R’y Co. v. Jersey City and Hoboken Horse R’y Co., 20 N. J. Eq. 61.)</p> <p>2. Same—Railway company’s authority over streets confined to portion covered by its tracks—City’s dominion over portion of street not covered by company’s tracks remains unimpaired—Subsequent grant of like privilege over same street, if authorized by the legislature, may be made—Company holding older grant no right to object—Over that portion of any street upon which its track, switches, or turn-outs do not lie, a railway company has no authority, but the city’s dominion over it remains unchanged and unimpaired, and is as full and complete, for all purposes, as it was over the entire street before the privilege of constructing a road upon it was granted. If, therefore, the city should choose to grant to another company the privilege of laying a track upon the same street, the company already operating a road there would have no right to object, so long as the free and unobstructed use of its own track was not interfered with; and the new grant may, with the consent of the legislature, be made. (Citing Dillon on Mun. Corp. 727; Mkt. St. R’y Co. v. Central R’y Co., 51 Cal. 583; N. Y. & H. R’y Co. v. R’y Co., 50 Barb. 285.)</p> <p>3. Case discussed—The case of G. C. R’y Co. v. G. C. S. R’y Co., 63 Tex. 529, discussed.</p>

<p>1. Promissory notes—Promise not to prosecute one charged with crime—Illegal CONSIDERATION—NOTE IN RENEWAL OR SUBSTITUTION OF ONE BASED ON ILLE- , gal consideration is itself invalid—P., being indebted to B. on open account, gave him his note for $350 in settlement. About the same time B., claiming to have lost divers of his goods, the value of which he estimated at $1,000, accused P. of having stolen them. P. finally admitted the theft, and executed to B. his promissory note for $1,000, payable in twenty equal monthly installments, with W. as indorser or surety. P. was, shortly afterwards, indicted for the offense, whereupon he fled the country, leaving behind his interest in a retail grocery, worth about $1,250. Subsequently,W., to secure himself against loss, procured from B. the $350 note and the $1,000 note, upon the latter of which P. had, in the meantime, paid the first installment, by giving in exchange ■ therefor his own note for $1,300, payable to B. four months after its date. Upon the notes thus obtained fronrB., W. instituted attachment proceedings against P.’s interest in the grocery, which was eventually sold under the attachment, and the entire net proceeds ($725) applied to the satisfaction of the judgment in favor of W. upon the notes. In a suit subsequently brought by B. against W. on the $1,300 note, wherein it was pleaded by the latter, and wherein there was evidence tending to prove, that B. had threatened P. with imprisonment and criminal prosecution unless he made good B.’s loss by reason of the theft, and that the $1,000 note, which formed part of the consideration for the note sued on, had been executed by P. and indorsed by W. in consideration of B.’s agreeing to desist from and to suppress any criminal prosecution of P. because of the theft. Held:</p> <p>(1) That if part of the consideration of the $1,000 note was a promise by B. not to prosecute P. for theft, then that note was not a legal demand against W., and, as there was evidence introduced tending to prove that fact, the trial court should have submitted the issue to the jury;</p> <p>(2) That as the money contracted in the $1,000 note was never paid, but this suit was brought upon a new promise to pay the same and other moneys, the new promise is as vicious as that for which it was substituted; and if B.’s promise not to prosecute P. was nó part of the consideration for the making of the $1,000 note by P., but was only the consideration for W.’s indorsement, the principles of law applicable are not materially changed.</p> <p>2. Contracts—Consideration—Illegal in part vitiates the whole contract— Although there may be ample valid consideration to support a promise sued on, yet if, to the abundance of valid consideration, there has been added a leaven of that which is illegal, the whole contract is tainted. (Citing Story on Cont., sec. 583; Bishop on Cont., sec. 471; Pollock on Cont., 318.)</p> <p>3. Same—Promissory note—Illegal consideration—If a debtor in payment of an account, and in consideration that his creditor will do an unlawful act or refrain a duty imposed by law, executes his note only for the amount of the account, the note is, nevertheless, void. The good consideration has no virtue to cure the bad, but the bad corrupts the whole. (Citing Steuben Co. Bank v. Mathewson, 5 Hill 249, and Roll v. Raguet, 4 Ohio 400.)</p> <p>4. Same—Illegal demand—Change in the form or security does not validate— A mere change in the security or in the evidence of a demand, does not render valid that which was before invalid. If the transaction is illegal, no expression of it in innocent forms makes it innocent or meritorious. (Citing Seeligson v. Lewis, 65 Tex. 215, and Collins v. Blantern, Smith’s Ldg. Cases, 676.</p> <p>6. Cases reviewed—The cases of Bly v. Bank, 79 Penn. St. 456, and Bibb v. Hitchcock, 49 Ala. 468, reviewed.</p> <p>6. Cases distinguished—The cases of Armstrong v. Toler, 11 Wheat. 272; DeLeon v. Trevino, 49 Tex. 89; Pfeuffer v. Maltby, 54 Tex. 454, distinguished.</p>

Tried below before the Hon. W. E. Collard. Plaintiff, L. Holliday, brought this suit against the defendant, the Gulf, Colorado and Santa Fe railway company, for damages for the destruction of his crops of corn and cotton in the spring of 1884, grown by him in the Brazos bottom, on land situated near the railroad, and near where the road crosses the Brazos river.

Error from Galveston. Tried below before the Hon. W. H. Stewart. .

<p>1. Cities—Corporate powers need not be pleaded, when—The corporate powers of a city chartered by a public law are known to the courts and need not be pleaded.</p> <p>2. Same—Power to contract for printing ordinances—City charter—Where the charter of a city provides that all of its ordinances when printed, &c., shall be admitted in evidence in all courts, without proof, it contemplates the printing of the ordinances, and there is necessarily in such city an implied power to have its ordinances printed, when needed in the accomplishment of its corporate purposes, and also to contract to pay for such work. (Citing Dillon on Mun. Corp., sec. 89.)</p> <p>8. Same—Current expenses—Constitution, article 11, section 5—A debt con- . traeted by a city for current expenses, is not within the class of debts contemplated in section 5, article 11, of the Constitution.</p>

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

Tried below before the Hon. W. H. Burkhart. This suit was brought by J. Bust, as administrator of the estate of F. G-. Franks, against E. Byon, in 1874, in the district court of Fort Bend county, on a promissory note for $500. E. Byon subsequently died, and J. W. Byon, E. D. Byon and J. B. Byon, his heirs, were made defendants.

Tried below before the Hon. W. H. Stewart. This suit was filed by appellants, January 17, 1885, against A. S. Valentine & Son, and their sureties on an indemnity bond and the sheriff, for unlawfully seizing and converting a lot of goods valued at $1,091.20, and alleged to have been seized December, 23, 1884.

Tried below before the Hon. W. H. Burk-hart. This suit was instituted, May 9, 1884, in the district court of Brazoria county, by Wm. Holt, against. A. Gr. Follett, for damages for malicious prosecution. On November 3, 1883, A. G. Follett made affidavit before a justice of the peace, in Brazoria county, charging William Holt with trespassing on his private shores.

Tried below before the Hon. Benton Randolph. This was a suit brought by Trinity county against E. L. Vickery, the county treasurer, and the sureties on his official bond, to recover $935, alleged to have been retained by him as commissions, in excess of what he was entitled to under the law.

Error from Walker. Tried below before the Hon. Herman G. Kittrell. On motion of appellant for a continuance. The facts upon which the motion is based sufficiently appear in both the opinion and the syllabus.

Error from Walker. Tried below before the Hon. Norman G. BLittrell, special judge. This was a suit for damages, brought by J. T. Jarrard, against the Missouri Pacific Railway company, lessee of the International and Great Northern railway, for personal injuries, received in an accident to one of the defendant’s trains, upon which the plaintiff was, at the time, a passenger.

Tried below before the Hon. J. B. McFarland. This was a suit by Eugene Wallen against the Gulf, Colorado and Santa Fe railway company to recover damages for injuries sustained by his wife, Carrie Wallen, in jumping- from a passenger train of the defendant, to avoid what she supposed would be a collision with defendant’s freight train, which was at the time approaching from behind. Defendant pleaded general denial and contributory negligence.

Tried below before the Hon. Wm. H. Burk-hart. This was a suit by W. A. Wheeler against O. A. Wheeler for recovery of certain property, or, in the alternative, for recovery of a certain debt and foreclosure of a mortgage onthe property, as security therefor.

<p>1. Railroads—Employes—Volunteers—Injuries—One who has no interest in the performance of certain work for a railroad, but volunteers to assist in such work, assumes all risks incident to his position, and cannot recover for injuries caused by the negligence of his fellow servants. (Following Mayton v. T. & P. R’y Co., 63 Tex. 77, and authorities cited.)</p> <p>2. Same—If the injured person is not a volunteer, but engaged at the request or with the permission of the railroad’s agent in a transaction of interest as well to himself or his master, as to the railroad company, he is entitled to the same protection against the negligence of the company’s servants as if he were at the time attending to his own private affairs. (Authorities cited.)</p> <p>3. Same—See opinion for allegations held sufficient to support an action against a railroad for injuries sustained through the negligence of a fellow servant.</p>

Tried below before the Hon. W. H. Burkhart. This was a suit by sequestration, instituted by John Haokett, in justice court of Fort Bend county, against M. J. Mills, on July 18, 1881, to recover a certain mule described in the affidavit for sequestration, or for its value. The writ was executed July 19, 1881, and, on the following day, Mills replevied the mule, giving bond, with J. W. Blakely and H. M. Bose as sureties.

<p>Appeal from Harris. Tried below before the Hon. James Masterson.</p> <p>This suit was filed, on June 24, 1885, by the appellants, Paulina Huppman, Theresa Huppman, Cornelia Huppman, Katie Kattmann, joined by her husband Robert Kattmann, as heirs at law of Charles Huppman, deceased, and by J. Rotge, as administrator of the estate of said Charles Huppman, deceased, plaintiffs below, against the appellees, Martin Schmidt, Wm. Reichardt, Wm. Disson and J. Pereira, defendants below, representing, that, on July 27, 1880, Katrina Schmidt died in Harris county, leaving surviving her the defendant Martin Schmidt, her husband, and the following children, who were her sole heirs at law: Paulina, Theresa, Cornelia and Katie, appellants herein, and the said Charles Huppman, deceased; that appellant J. Rotge was the duly qualified administrator of the estate of Charles Huppman, deceased; that, on November 4, 1880, the appellee Schmidt filed an application in the county court of Harris county to be allowed to qualify as survivor of the community estate of himself and his deceased wife Katrina ; that, thereafter, on the last named date, the appellee Schmidt, under the order of the court, presented an inventory and appraisment of the estate, and a list of claims, and, at the same time, presented to the court his bond as survivor of the community, with the other appellees as sureties thereon, in the penal smn of fourteen thousand six hundred and seventy dollars, which bond, inventory and appraisement were all approved and accepted by the county judge, and ordered to be recorded; that, immediately thereafter, Schmidt took possession of the estate, and has ever since controlled, managed and disposed of the same; that the inventory filed by Schmidt showed that the estate consisted of both real and personal property (naming it); that Schmidt was the only person who possessed accurate knowledge of the amount and value of the property belonging to the estate, and who had the means of acquiring such knowledge; that the appraisers and county judge were wholly ignorant of the value and amount of the estate, and were without means of informing themselves; and were, therefore, compelled to rely, and did rely upon the appellee Schmidt for such value and amount; that Schmidt, taking advantage of his peculiar position and special knowledge, and with intent to cheat and defraud appellants, falsely represented to the appraisers and the county judge, knowing such representation to be false, that the real and personal property were of the value set forth in the inventory and appraisement; that he falsely represented that there were no household or kitchen furniture, articles of ornament or jewelry, belonging to the estate; that, by his artifice and fraud, Schmidt caused the appraisers to vahie the property erroneously, and, appraise the same far below its true value.</p> <p>The petition then proceeded to set forth specifically wherein the inventory and appraisement were erroneous; that Schmidt owned an undivided half in all the realty, and the appellants owned, jointly and equally, the remaining moiety; that the realty belonging to the community estate remained undisposed of; that appellee Schmidt had converted to his own use all of the personal property belonging to the community estate, including the revenue from the realty; that the appellants were entitled to large sums of money from the estate; that, notwithstanding more than twelve months had elapsed since he qualified as survivor, Schmidt refused to pay over to appellants any portion of the estate to which they were entitled as heirs at law of their deceased mother; that, therefore, the conditions of the bond had been broken and violated, and the appellee Schmidt, as principal, and the remaining appellees, as sureties upon his bond, had become liable to appellants. Appellants prayed for a partition for such of the property as was partible in kind, and a money judgment for the balance. Attached to the petition is a certified copy of the community bond, signed by the appellee Schmidt and his sureties.</p> <p>To this petition appellees interposed a general demurrer, and specially excepted to so much of the petition as sought to correct the inventory and appraisement. They also filed an answer. The court sustained the general demurrer interposed by appellees, and also the special exception, and dismissed the suit, upon the ground that the district court had not jurisdiction to try the case. Plaintiffs appealed.</p>

Error from Galveston. Tried below before the Hon. Wm. H. Stewart.

Error from Harris. Tried below before the Hon. James Masterson. In 1882, M. A. Harn, joined by her husband W. T. D. Harn, who are plaintiffs in error herein, instituted suit in the district court of Harris county, against W. F. Duer, P. O. Duer, G-. ÍT. Phelps and his wifeC. D. Phelps, for a one-seventh interest in the estate of MaryS. Duer and C. F. Duer, and for partition.

Tried below, before the Hon. Wm. H. Burkhart. This cause, as it appears in 59 Tex. 97, is an action of trespass to try title. By the amended original petition, it was converted into a suit to establish a disputed boundary line. The general and special exceptions of the defendant’s second amended original answer were ' sustained, and the case dismissed. The facts' are sufficiently stated in the opinion of the court.

Tried below before the Hon. W. H. Burkhart. This case was before this court at a former term, and is reported in 58 Tex. 15. The tract of eight hundred and sixty-three acres in controversy was a part of a half league grant to I. H. Charles in 1831, and also of the league grant to Brookshire in 1835. Plaintiffs claimed under the former grant; defendants under the latter.

Erbob from Victoria. Tried below, before the Hon. H. Clay Pleasants. The Texas Continental Meat Company, a corporation under the laws of Texas, was, up to about April 16, 1884, engaged in the business of slaughtering, refrigerating and selling dressed beef, at two slaughtering and refrigerating establishments, one of which was located at Victoria, and the other at Fort Worth.

Error from Harris. Tried below before the Hon. James Master-son.

Tried below before the Hon. Wm. H. Burkhart. Suit by appellants in the usual form of trespass to try title, against appellees, for the upper half of the lower half of the quarter of a league of land in Fort Bend county, granted to J. W. Moore.

<p>1. Community—Management—Survivor bond—The right of the survivor in community to the absolute management of the common estate, is acquired only in case the statutory bond is filed in the county court of the proper county. Unless this is done the property is open to administration, as in other cases.</p> <p>2. Same—Removal—If the bond filed is not satisfactory, or the court sets it aside, and the survivor fails to file one that is sufficient, he is, in effect, removed from the management of the estate; an order removing him may be rendered, and an administrator appointed.</p> <p>3. Same—Sureties—If the survivor acts under an accepted bond, but, failing to give a new bond when required, is removed from the administration, the administrator appointed to succeed him may sue his sureties on the bond for the value of assets wasted. The bond takes the place of the wasted property, and to that extent the sureties are debtors to the estate.</p> <p>i. Same—Jurisdiction—The court in which the suit should be brought is the one having jurisdiction of a suit for the amount claimed upon the bond, and it is not necessary for the devastavit to be first established in the county court.</p> <p>5. Same—Construction of statutes—The articles of the Revised Statutes providing for the exhibit and the suits which may follow its appearance in court, apply when the survivor is still administering the estate, and a creditor has called him to account for failure to pay his debts.</p> <p>6. Same—District court—The district court can inquire into a devastavit in the case of a survivor in community, as well as in the case of an administrator.</p>

Tried below before the Hon. James Masterson. This was a suit by appellant, S. S. Ashe, against appellees, Henrietta Yungst and Alice Yungst, to remove cloud from his title to a lot of ground, and the improvements thereon, situated in the city of Houston, Texas. He alleged that he was in possession of the lot, and that the appellees were asserting a right and title to the premises, or a part thereof.

Tried below before the Hon. Wm. H. Stewart. This was a suit by John McGown against the Gulf, Colorado & Santa Fe Railway Company for damages for personal injuries caused by the derailment of the company’s passenger train, on which the plaintiff was at the time a passenger, and traveling on a free pass. The petition laid the damages at $20,000.

Tried below before the Hon. Wm. H. Stewart. This suit was brought by John 0. Craig, plaintiff below, to recover the amount of two drafts drawn by John B. Goodhue to the order of Craig, upon Marx & Kempner, defendants below.

<p>Appeal from Gonzales. Tried below before the Hon. George McCormick.</p>

<p>1. Railroads—Subscription—Right of way—Location of depot—Obligation— Construction of contract—Good faith—Suit was brought by a railway company upon certain notes executed by citizens of a town, the consideration being the early construction of the road to that town. The condition was annexed to each note, that, if the road was not completed to the town by a certain date, the obligations were to become null and void. About the same time a number of citizens, including defendants, executed a bond in the sum of $7,000, conditioned that “ we shall cause to be secured to the said railway company all necessary conveyances for right of way for said company through our county and town, etc., when detnanded by it, on any line it may locate that touches the corporate limits of the town, etc.” The charter of the company provided that the road should run as near as practicable to the town referred to, and, in the event its citizens donated to the company the necessary right of way for road, switches and turnouts, through the town, and sufficient ground for depot purposes, the depot should be located within half a mile of the court house. At the time the subscriptions were raised, in lieu of which the notes were given, one of the directors of the road, acting as spokesman for himself and several other directors who were present, said, in a public speech to the citizens : “We desire you shall procure for us the right of way along two lines through your town and county, thereby enabling us to procure the most practicable route. Then, we shall expect you to procure the necessary ground in your city for depot purposes ; and, lastly, we ask you to donate a specified sum of money.” Held</p> <p>(1) That the instruments sued upon, together with the right of way bond, taken as one transaction, construed in the light of the circumstances surrounding the parties at the time, and with reference to the obligations imposed upon the company by its charter, must determine the right to recover;</p> <p>(2) Evidently it was the purpose of the parties, at the time the notes were made, that in consideration of the sum subscribed and the right of way, the railway company would survey and construct its road into the corporate limits of the town; and, the necessary grounds for depot purposes being secured and donated by the citizens, the company would establish its depot within half a mile of the court house.</p> <p>(3) In order to put the citizens at default, the railroad company should have selected the most practicable route, established it into the town to within half a mile of the court house, selected, surveyed, and marked off the grounds necessary for depot purposes, and then notified the citizens composing the committee appointed to secure the right of way and depot grounds, and made “ demand ” of the same for the purposes stated;</p> <p>(4) Until this was done, the citizens could not have known what lands to purchase, nor had they the power to institute, in their own names, proceedings to condemn the land;</p> <p>(5) It is the legitimate inference that, at the time the notes were made, all parties understood that the company would select and survey its route and depot grounds, and in case the citizens failed to purchase such land, the railroad company would institute proceedings for its condemnation, and call upon the citizens to pay whatever damages and costs were thereby incurred.</p> <p>(6) If the citizens had a fair opportunity of donating the right of way and depot grounds, and failed to do so, the failure of the company to locate the depot in the town, as agreed, was no defense to their action.</p> <p>(7) It was the duty of the company to give the citizens definite notice of the locations desired for right of way and depot. Until this was done, the company was not authorized to conclude that they were unable or unwilling to comply with their promises.</p> <p>(8) See opinion for evidence, showing a want of that good faith and fair dealing, on the part of the company, which would entitle it to recover on the notes sued on.</p>

Tried below before the Hon. H. Teichmueller. On June 19, 1884, S. B. Moore and M. Cockrill filed, in the county court of Fayette county, their petition for the probate of the last will and testament of Rhoda Byler, deceased, and for letters testamentary.

Tried below before the Hon. Wm. H. Stewart. By an agreement of February 11,1880, between M. L. Weems, Wm. Hendley & Co. and P. J. Willis & Bro., Hendley & Co. contracted to make cash advances to Weems, to enable him to cultivate the two plantations, “Riverside” and “Cedar Grove,” during the year 1880. Weems was to “make the crop,” and Hendley & Co. were to have the disposal of it.

Tried below before the Hon. James Masterson. The plaintiffs’ (appellees) petition was to set aside the determination of the engineer, as to the quantities and amounts of part of the work (rock bank hauled) done, and his decision upon the question which arose between the parties, during the progress of the work, in-the execution of a contract for railroad construction, made December 1, 1881; and to recover for such rock bank hauled in excess of the quantities as determined by…

. Appeal from Galveston. Tried below before the Hon.Wm., H. Stewart. This suit was instituted by Thos. F. Hudson, Jr., in the district court of Galveston county, March 21,1883, against P. J. Willis & Bro., to recover damages, actual and exemplary, in the sum of $200,000, for the wrongful seizure and conversion of a stock of goods at Fort Worth, Texas, on October 23, 1882, at that time in the possession of plaintiff, and valued at $61,544.98.

Tried below before the Hon. James B. McFarland. This was an action of trespass to try title, instituted, on February 22, 1873, by Thomas Dwyer, against A. H. Bippetoe, and his tenant, Julius Tamschowsky, to recover a part of lot forty-three, in the city of Brenham, and rents and damages.

Tried below before the Hon.L. D. Bradley. Appellees brought this suit against T. E. Jackson, sheriff of Limestone county, and his sureties on his official bond, and against Leon Blum, Sylvain Blum and Hyman Blum, composing the firm of Leon & H. Blum, and against Joseph E. Wallis and Henry A. Landes, composing the firm of Wallis, Landes & Co., for the recovery of $4,000 damages and interest, and against R. E. Edmison and Isaac Whatley, for the recovery of a debt due…

Tried below before the Hon. Wm. H. Stewart. The plaintiffs, Kauffman & Runge, sued the defendants, Thos. F. Hudson & Son, on a promissory note for $25,000, dated January 4, 1881, due twelve months after date, with interest from date at the rate of eight per cent, per annum, allowing a credit of $10,000, July 6, 1882, for the proceeds of land embraced in a trust deed given to secure the note and sold by trustees, under the power of sale contained in the instrument.

Tried below before the Hon. Wm. H. Stewart. In lieu of her original application, filed March 19, 1883, Mrs. Elizabeth Buhl filed in the county court, April 4, 1883, her amended application for an order setting aside to her and her three minor children, -as a homestead, lots eleven, twelve, thirteen and fourteen, in block two hundred and fifty four, and improvements, in the city of Galveston.