Volume 67 — Texas Reports

<p>1. Injunction—Delivery—Trial of Right of Property.—The c1aim ant of goods in a proceeding for trial of right of property, after filing his claim and bond, but before final judgment against him, transferred his interest in the property to a third party. After judgment the claimant purchased the- property from a purchaser thereof at tax sale, but it remained in the possession of his former vendee. The property was not (according to the finding of facts by the court) delivered by the claimant to the sheriff within ten days after the final judgment in the proceedings for trial of the right of property as required by statute. Afterwards the plaintiff levied and sold real estate of the claimant to satisfy his judgment, but before a sheriff’s deed was made or purchase money paid, this suit was brought to restrain the plaintiff from proceeding with the collection of his judgment, and against the sheriff and purchaser at sheriff’s sale, to enjoin payment of the money and the delivery of the deed, held:</p> <p>(1) A statement made by the attorney of the claimant to the deputy sheriff within ten days after final judgment that the attorney wanted to deliver the property which was replevied and which was in the possession of claimant’s vendee (the property being several hundred yards distant), was not, though assented to by the officer, a delivery of the goods. This held, in connection with the facts, that the officer went at once to consult the party in possession to have the goods checked off before receiving them; that he never found him; that he never obtained his authority to receive the goods in satisfaction of the judgment; that no order for the goods was given on the party in possession, and his consent that the officer should receive them was not shown.</p> <p>(2) The claimant was entitled to a levy on other property if the goods claimed were not of value sufficient to satisfy his judgment, and a failure to shew in the petition that the amount bid for the land was not in excess of the judgment after crediting it with what the goods claimed would have brought at forced sale, was fatal to the proceeding by injunction.</p> <p>(3) If the claim in the right of property proceeding was not sustained, no matter for what reason, the bondsmen of the claimant were bound to return the property or its value in ten days.</p> <p>(4) The rights of a creditor, to secure whose debt property has been seized, can not be affected by any transactions between a third party claiming it and others, which occur after the rights of the creditor are fixed under the claim judgment and when the property has not been returned.</p>

<p>1. Rescission of Executory Contracts.—A vendor has his election, either to rescind an executory contract for the sale of land when the vendee makes default in payment, or, to subject the land to sale to satisfy the debt; but if he elects to rescind, it must be rescission of the entire contract,</p> <p>2. Same.—If he elects not to rescind the contract, but to enforce it, the vendor is regarded as a creditor holding the superior title, and he occupies with reference to the land the same position that a mortgagee does in those States in which it is held that the legal title passes by a mortgage.</p> <p>3. Release of Vendor’s Lien—Repurchase.—A vendor who has conveyed land by a deed, retaining a lien to secure the purchase money, who tabes a reconveyance of a part of the land from his vendee in part ■ payment of purchase money, and who subsequently conveys the part thus reconveyed to him to a third party, can not enforce the lien on the residue of the land against a purchaser from his vendee, if such purchaser has paid in part for it and executed negotiable notes for the balance of the purchase money, when the part so reconveyed is of value equal to or greater than the sum due on the notes held by the original vendor for purchase money. The fact of the sale by his vendee and of the equities growing out of such sale being known to him, he thereby, by procuring such reconveyance, defeats his right to have all the land subjected to sale for the payment of the entire sum remaining due.</p> <p>4. Same—Release, Its Effect.—The release of one parcel or share of land from a vendor’s lien in an executory contract which originally covered all other parcels or shares, would release all from the proportionate amount of their respective original liabilities which the value of the amount released bears to the total value of all. One owner being released, all the rest are entitled to the same pro rata abatement. When the equities of the various owners are unequal, so that their respective parcels are liable in the inverse order of alienation, if the vendor, having notice of the facts, releases a parcel which is primarily liable, he thereby discharges or releases all the parcels which are subsequently liable, in the order of their several liabilities, from an amount of the lien debt equal to the value of the parcel released. If the value of the parcels released equals the lien debt, then all the subsequent parcels are wholly relieved from liability; if the value is less than the original lien debt, the subsequent parcels can at most be liable in their order only for the excess of the debt over such value.</p>

<p>1. Injunction—Equity—Fact Case.—A petition for injunction alleged that defendant paid off a judgment against plaintiff, agreeing to take in payment of the money so advanced a certain tract of land; that in pursuance of this agreement defendant was put in possession, and was still in possession, of the land, but, claiming to be the owner of the judgment, had sued out execution, levied it upon plaintiff’s lands, and would cause the same to be sold if not enjoined. He Id, the petition showed good grounds fór a writ of injunction.</p> <p>% Temporary Injunction—Dissolution—Effect—Practice.—In a suit by injunction, when the temporary injunction has been dissolved on the filing of an answer swearing away the equities of the bill, the plaintiff is entitled to a trial upon the merits unless the right is expressly waived, and it is error to dismiss though the plaintiff make no request for a trial on the merits. (Pullen v. Baker, 41 Texas, 419; Fulgham v. Chevallier, 10 Texas, 549; Burnley v. Cook, 13 Texas, 586; Dearborn v. Phillips, 21 Texas, 449; Texas Land Co. v. Turman, 53 Texas, 623.)</p> <p>'3. Same—Cases Overruled.—Gaskins v. Peebles, 44 Texas, 390; Sims v. Redding, 20 Texas, 386; Lively v. Bristow, 12 Texas, 60; Clegg v. Darragh, 63 Texas, 357; Baldridge v. Cook, 27 Texas, 565, overruled, and the distinction laid down in Texas Land Company v. Turman not recognized.</p>

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

<p>1. Diligence—Application for Continuance.—The refusal of the district court to continue a cause on account of the failure to procure the testimony of a witness will not constitute error for which the judgment rendered will be reversed, unless facts be set forth in the application for continuance distinctly and with certainty showing that due diligence to secure the testimony was used. See statement in the opinion illustrating this rule.</p> <p>2. Agency.—Agency may be established by showing that the principal had 1 habitually ratified the acts of the alleged agent in similar transactions.</p> <p>3. Declaratives—Agency.—The rule is well established that the declaratives of an agent are only admissible as to matters within the scope of his authority; and only as the transactions then going on, and not as to past events.</p> <p>4. Evidence—Compromise.—The rule which excludes an offer to compromise a contemplated suit, when made under an express or implied agreement that the conversation shall be without prejudice, is founded in the policy that to admit it in evidence would tend to discourage the settlement of litigation. If the proposition be to pay a sum to buy peace, and it has not been accepted and become a contract, it will be deemed to have been made without prejudice, and is not admissible in evidence; following Home Insurance Company v. Baltimore Warehouse Company, 83 United States, 627—which case is reviewed.</p> <p>5. Eight of Action—Damage.—The doctrine that proof of possession of land is alone sufficient to entitle the occupant to maintain an action of trespass against a wrong doer, is founded on the fact that possession is prima facie evidence of title. But if the title be in another, the right of the possessor to recover is limited to the amount of damage to the possessory interest; if the damage be beyond this, and to the freehold, the possessor or tenant at sufferance can not maintain an action for its recovery.</p>

Tried below before the Hon. J. G. Hazlewood. This was an action upon a promissory note for the purchase money of land and to foreclose the vendor’s lien. The trial resulted in a judgment for plaintiff, Thomas P. McKinney. The facts are stated in the opinion of the court.

Tried below before the Hon. Felix. J. McCord. This was Em action to recover damages for the unlawful seizure: of property under attachment. The trial resulted in a verdict and judgment for the plaintiff, C. M. Sides. The facts are stated in the opinion of the court.

Tried below before the Hon. Felix J. McCord. Suit brought by Wills Point Bank against John A. O’Neal, September 21, 1882, for debt of six hundred and eighty-two dollars- and fifty cents; attachments were sued out against defendant and levied on his property.

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

Tried below before the Hon J. A. B. Putman. This was an action for the rescission of a contract alleged to have been procured by fraud. Upon the trial, after the introduction of the evidence, the court dismissed the case for want of jurisdiction. The facts are stated in the opinion of the court.

<p>Appeal from Denton. Tried below before the Hon. F. M.. Davidson, Special Judge.</p>

<p>1. Warranty Contraot.—When a manufacturer accepts an order for his machinery which on its face asks that it be forwarded subject to war ranties specified in the order, the warranties become as much a part of the contract as are notes and a mortgage on the machinery subsequently executed by the purchaser to secure the payment of the contract price.</p> <p>2. Warranty.—Though under such a contract the purchaser receives the machinery, and by thus making it his property loses the right to return it, if on trial it is found to be defective and not as warranted, and have his notes therefor canceled (as would be his right if he acted promptly in case of an executory contract for the purchase of machinery not seen, and not as represented by the seller), he is still protected by the warranty, and may resort to either of two remedies: (1) After accepting and running the machinery the purchaser may maintain an action for damages, in which he may recover not only a sum equal to the difference between the value of the defective machine and one of its kind not defective, but in which he may recover such amount of money as under the rules of law he would be entitled to as consequential damage. (2) If sued for the purchase money he may set up the defective quality of the thing warranted in diminution of the price agreed to be paid. The above doctrine is announced on a state of facts which negative the idea that the purchaser executed notes for the machinery and remained in possession of it after knowing its defective character, and in such manner as to waive his rights under the warranty.</p> <p>3. Cases Approved.—Brantly v. Thomas, 22 Texas, 270, and Blythe v. Speake, 23 Texas, 429, approved.</p> <p>4. Notice.—A manufacturer of machinery must be held to have full notice of its defects, and the want of diligence used by a purchaser thereof, who buys with warranty, in not testing it further after the execution of notes for the purchase money, given with an assurance that the seller would remedy the defects, is unimportant. The giving of collateral security to secure such notes long after their execution does not defeat the right of the maker to still rely on the warranty.</p> <p>6. Notice—Principal and Agent.—The agents of the manufacturers of machinery, who were agents and not mere dealers, sold a machine under a contract containing warranties as to its fitness for the use intended, and with a stipulation that if found to be defective the manufacturers should be notified. On being delivered to the purchaser, the machine was found defective when tested by the warranty. Thereupon notes were given for the purchase money, under an assurance from such agents that the defects would be remedied, and if other defects were discovered, and they were notified, they would communicate them to the manufacturers. Held, notice to such agents was notice to the principal.</p> <p>6. Guaranty.—The guarantor of the payment of a note is discharged from his guaranty by the existence of any matter growing out of the contract which entitles the maker of the note to recover from the payee a sum equal to the balanch which would otherwise be due on the note.</p>

<p>1. Municipal Corporations—Legislative Power Over.—The legislature may annex, or authorize the annexation, of territory contiguous to the limits of an incorporated town or city, without the consent of the persons residing either in the corporation or the annexed territory. If the legislature should, however, prescribe that such territory should not be annexed to a municipal corporation unless a majority of the persons living therein shall assent thereto, this would not be a delegation of legislative power, but a concession to the parties to be affected of the privilege of accepting or rejecting a charter.</p> <p>2. Constitutional Law—Elections.—The provision of the Constitution requiring all elections by the people to be by ballot, is no restriction on the power of the legislature to provide that the will of persons desiring territory to be annexed to a contiguous municipal corporation may be ascertained in some other manner than by public election.</p> <p>3. Statute Construed—Elections.—Neither Article 503 of the Revised Statutes, nor any other law, provides in terms that the will of the inhabitants of a territory proposed to be annexed to an adjoining city, shall be ascertained at an election held, as in cases of other elections by the people. The persons interested may express their preferences on the subject by any method of voting which is satisfactory to themselves and to the city council. When it is shown by the proper affidavit that a majority have favored annexation, the city council is authorized to receive the territory on which they reside into the limits of the city.</p> <p>4. Same.—Even if the vote or method of ascertaining the will of the majority of the inhabitants is not expressed in accordance with the Constitution and laws, the action of the city council in admitting the territory is not void. The State alone can annul their act in a proceeding begun for that purpose, and its legality can not be questioned by a tax payer living in the annexed territory, in a proceeding by injunction to restrain the collection of a tax on his property levied by the city authorities.</p> <p>5. Cases Approved.—Mendota v. Thompson, 20 Illinois, 200; Keltering v. Jacksonville, 60 Illinois, 39, and Bird v. Perkins, 33 Michigan, 28, approved.</p>

<p>Appeal from Kaufman. Tried below before the Hon. Anson Rainey.</p>

<p>1. Recitals—Limitation—Conclusiveness op Judgment.—The recital in a judgment approving the accounts of a guardian and discharging him from the guardianship, that the ward had arrived at full age, will not, in a suit brought against the guardian by the ward to revise the final settlement, conclude him from showing that he was still a minor when the final settlement was made and the judgment rendered.</p> <p>2. Pleading—Bill op Review.—When a party interested in an estate seeks by bill of review to revise the final or other account of a guardian or administrator, the items of account complained of must be pointed out and the errors designated and set forth in the petition.</p> <p>3. Guardian and Ward.—A guardian should not be allowed credit for expenditures for the education and maintenance of the ward beyond the amount of the income of his estate, unless an order of court has been obtained authorizing the same:</p> <p>4. Witness—Statute Construed.—Article 3348 of the Revised Statutes has no application to suit brought by a ward against his former guardian to revise the final account rendered by the latter. In such a suit either party is a competent witness in regard to transactions between the gurdian and ward, as such.</p> <p>5. Contract—Estoppel—Guardian and Ward.—The declarations of a ward made to his guardian before attaining his majority that he would soon be twenty-one years old, and that he would then on final settle ment allow the guardian credit for goods purchased of the guardian, is not binding on the ward after he attains his majority, either as a contract or by way of estoppel.</p> <p>6. Guardian and Ward.—A mere verbal order from the county judge to a guardian to expend for the ward’s support the money of the estate in excess of the income can afford no protection to the guardian.</p> <p>7. Fact Case.—See this case for a statement of the items of account which might properly be allowed the guardian in a settlement with his ward.</p> <p>8. Practice—Restatement of Accounts.—Upon a bill of review filed by the former ward against the guardian to correct his final settlement, when the trial is in the district court, the findings by the court should designate the particular items found incorrect, and which correct; and should specify distinctly the several corrections and revisions of account made by the court.</p>

<p>1. Partnership.—A banking house brought suit against P. on a note executed by him, and joined B. as a defendant, alleging that P. & B. were partners in the cattle business, and that the note was given for a partnership debt. P., who had been acting as B.’s agent in purchasing and selling cattle, under a salary, received from B. on settlement sixteen thousand five hundred dollars, advanced under a contract as follows: P. was to purchase cattle and take care of them until sold, using the money for that purpose. B. was to receive back after final sale the money advanced, and the net profits, if any, were to be divided equally. If there were no net profits after deducting the money to be used in purchasing and taking care of the stock, then P. was to receive nothing. The one-half of net profits were to be retained by P. in lieu of the salary he had formerly been paid. The cattle were to be branded in the V brand, claimed by B., but without B.’s knowledge was recorded in P.’s name. P. was not to pay prices greater than those directed by B., and not to sell for less than prices that B. specified. B. did not think he was forming a partnership; did not know in whose name the cattle business was carried on; there was no agreement regarding the name under which the business was to be carried on. But he did know that the money arising from sales was deposited in P.’s name. The note sued on was-executed in renewal of another for the money advanced by the bank to enable P. to carry on the cattle business, and it was expended chiefly in buying cattle which were branded V. The advances of money were-made on P.’s representations that the money would be used in the cattle business, and relying on B.’s solvency. P. represented himself as B.’s partner, and drew drafts in the name of B. & P., but B. had no knowledge of this, nor had the bank when it advanced the money. It was sought by the petition to hold B. responsible as a partner and not as P.’s principal in an agency. On the above state of facts, held:</p> <p>(1) Where one furnishes money to another under an agreement that he who receives it as agent for the owner is to use it in a designated business and receive a part of the net profits as compensation for his services, he who thus receives the money is not thereby constituted a partner of him who advances it.</p> <p>(2) The doctrine above advanced, held in Cox v. Hickman (8 H. L. 0., 268), reversing former English decisions during half a century, and was finally incorporated in the act of 28 and 29 Victoria, C. 86.</p> <p>(3) B., whether liable as principal for the act of P. as his agent or not,, was not liable under the facts above stated as P.’s partner.</p> <p>2. Oases Reviewed—Cothran v. Marmaduke & Brown, 60 Texas, 370; and Goode v. McCartney, 10 Texas, 193, reviewed.</p> <p>3. Cases Approved—Ford v. Smith, 27 Wisconsin, 267; Richards v. Green,. 13 Iowa, 44; Rediek v. Otis, 33 Iowa, 403; Colwell v. Britton, 54 Michigan, 26, and other cases referred to in the opinion.</p>

Tried below before the Hon. J. Gr. Hazlewood. Appellant brought this suit in a justice’s court to recover damages for failure of appellee to deliver a quantity of corn, under a verbal contract. Appellant had judgment in the justice court. Appellee, having appealed to the district court, pleaded as a set oif the damage he had sustained by reason of a breach by appellant of another contract between them.

Tried below before the Hon. J. G. Hazlewood. This was an action of trespass to try title. The trial resulted in a verdict and judgment for defendant, Able Meyer. The facts are stated in the opinion of the court.

<p>1. Mortgage—Statutes Construed—Assignments.—The seventeenth section of the assignment law regulating general assignments recognizes the fact that mortgages, deeds of trust and other forms of lien given by a debtor will be valid notwithstanding the existence of the assignment law, if under the general rules applicable to such instruments they are not, in legal contemplation, fraudulent.</p> <p>2. Same—Preference to Creditors.—That the effect of such instruments is to give preferences to one or more creditors over others has never been held to make them fraudulent, unless under the provisions of a bankrupt or similar law they are to be so held.</p> <p>3. Statutes Construed—Fraudulent Conveyances.—The Act of March 24,1879, regulating assignments, did not repeal the Act concerning fraudulent conveyances; and instruments giving preferences to particular creditors, which are not general assignments, are not invalid unless made under such circumstances as would invalidate them under the statutes concerning fraudulent conveyances.</p> <p>4. Mortgages.—An instrument which from its terms shows that it was intended as security for a debt, or debts, is to be deemed a mortgage, or in the nature of a mortgage, although it may give power to a creditor, or even to a third person, to sell the thing mortgaged, and to apply the proceeds to the debt or debts secured.</p> <p>5. Same.—When the leading object of the instrument is to give security to a creditor or creditors, the debtor making it will have the right at any time before the property is sold to avoid it and reclaim the property by paying the debts. Even when such a mortgage is construed to pass the legal title, a condition of defeasance will be implied if not expressed.</p> <p>6. Mortgage.—A conveyance of personal property made by a creditor to a debtor, with power to sell the property and pay the debt, with a reservation to the creditor of such portion of the property as may not be required to pay the debt, is a mortgage. When a like conveyance is made to a creditor, who is also the debtor’s surety on other debts, for the purpose of paying debts including those due the creditor, and those for which he is surety, the instrument is a mortgage, and it can not be said in such a case that the surety holding the mortgage is a trustee for the creditor. (Stiles v. Hill, Fontaine & Co., 62 Texas, 429; Leitch v. Hollister, 4 Comstock; Henshaw v. Sumner, 23 Pick., 431, and other eases cited in the opinion, followed.)</p> <p>7. Same—Assignment for Creditors.—An instrument of the character ' last described, being essentially a chattel mortgage, the property conveyed would be subject to a proper levy of a writ of attachment at the suit of third parties, but could not be taken from the possession of the mortgagee. If the property were held under legal assignment, which divests the assignor of all interest, legal or equitable, in the assigned property, and vests title in the assignee for the benefit of all the creditors, no creditor could obtain by attachment a preference over the others.</p>

<p>Appeal from Wise. Tried below before the Hon. O. 0. Potter.</p>

<p>Appeal from Tom Green. Tried below before the Hon. John C. Townes.</p>

Error from Panola. Tried below before the Hon. J. G-. Hazlewood. This was an action for the trial of the right of property. A. C. Hill being indebted to W. D. Smith & Co., they sued out an attachment, which was levied on some seed cotton belonging to him. Discovering some defect in the first, Smith & Co. sued out a second attachment, which was levied upon the cotton before the first was dismissed.

<p>Appeal from Presidio. Tried below before the Hon. T. A.. Falvey.</p>

<p>1. Jurisdiction—Removal of County Officer.—The district court has jurisdiction to determine whether a county treasurer has been guilty of such official misconduct as would authorize his removal, in a suit brought by the State having that object in view, and if guilty it has the power to remove him.</p> <p>2. Same—Evidence.—In such a suit, the defendant may show that the acts which are charged to have constituted “official misconduct” were legal acts; or, if not legal, that they were done under circumstances which negatived the idea of willful wrong.</p> <p>3. Statute Construed—County Seats.—The Act of April 10, 1879, regula- • ting the removal of county seats, repealed all laws in conflict with its provisions, and neither it nor any previous law contained any provision by which it was declared what vote should be necessary to establish a county seat in a county which had been organized, but" in which no county seat had beep located. The Act of March 28, 1881, which added to the Revised Statutes Article 694a, prescribed the rule by declaring that-a vote of two-thirds of all the electors voting in a newly organized county should be necessary to locate a county seat at a point more than five miles from the geographical center of the county.</p> <p>4. Same.—The Act of April 12, 1883, relating to the establishment of county seats went no further than the Act of April 10, 1879, in providing a rule to determine what vote should be necessary to locate a county seat in a county already organized; it has no repealing clause, and did not, by necessary implication, repeal the Act of March 28, 1881.</p> <p>5. Same—Statute Construed.—Since the Act of April 12, 1883, does not, in terms, declare what proportion of votes cast shall be necessary to locate a county seat in an organized county, in which no county seat has been fixed, the Act of March 28, 1881, has application to such a county, and must control. The county seat to be estalished in an organized county, in which none has been estalished, is to be deemed to be “the county seat first established.”</p> <p>6. Same.—A two-third vote of all the votes cast at an election to remove a county seat is required in all cases except where the county seat is to be removed from a place not within five miles of the geographical center of the county to a place within that distance of such centre.</p> <p>7. Election—County Seat.—The election held in Presidio county on the fourteenth of July, 1885, was held for the purpose of removing a county seat, and not for the purpose of establishing one in an organized county in which none had been established. It required a two-third vote of the vote east to effect such removal to Marfa, and since a two-third vote was not obtained in favor of the removal, the county treasurer of Presidio county was not guilty-of official misconduct in refusing to remove his office to Marfa, or in refusing to register bonds issued to build a court house and jail there.</p>

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

<p>1. Statute Construed—City Charter.—The twenty-third section of the Charter of the city of Houston is neither violative of the federal or State Constitution. The certificate authorized by that section, when issued, signed by the proper officer, and in the form required by the charter, is prima facie evidence of the right of the holder to recover against the person whose property is liable for the claim recited in such certificate; though a defendant may show any fact which will defeat the right of the holder of the certificate to recover thereon.</p> <p>3. Cases Followed.—Taylor v. Boyd, 63 Texas, 533, and Adams v. Fisher, 63 Texas, followed.</p> <p>3. Evidence—Same .—If in a suit upon a certificate of the character above referred to, the defendant shows when the certificate is offered in evidence that the contractor to whom it issued, or the city authorities, had failed to perform any act required by law as pre-requisite to rendering city property liable for the improvement for which the certificate issued, it ought to be excluded. Its holder must prove the fact that would entitle him to recover on it.</p> <p>4. City Charter—Improvements.—Unless the provisions of a city charter referring to the method of contracting for city improvements, and which in their nature are designed for the protection of the citizen, are substantially complied with, property fronting on a street to be improved can not be made liable for such improvements.</p> <p>5. City Charter—Contract eor City Improvements.—The city council of the city of Houston has no power to make a contract for street improvements which is to constitute a charge upon the property of adjacent proprietors, when the contract, as an entirety, provides for the making of and pay for improvements not contemplated by the resolution under which the contract is made, or the published call for bids. If a certificate issue for work performed under such a contract it can not be admitted in evidence, even to establish a claim for so much of the-work as might lawfully have been contracted for, but the claim of the certificate holder must be established by other evidence.</p>

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

<p>1. Public Carriers.—The doctrine once held that carriers of animals did not incur the responsibilities of common carriers, that they were private-carriers and subject only to such liabilities as the law imposed upon such bailees, or, as the contract between the parties fixed, does not obtain in in Texas. The carriers of such property are common carriers, subject to-the same responsibilities imposed by law on carriers of other property, except as this is modified by the inherent character of such property. It. folic s that a special contract which by its terms purports to exempt a railway from liability for injury in the transportation of cattle, except such as might result from the willful negligence of a railway company* can not be enforced.</p> <p>2. Same,—A common carrier can not by contract be exempted from liability for an injmy resulting from the negligence, though not willful, of itself or servants.</p> <p>3. Contract—Common Carriers.—A railway company in a suit to recover damages against it for negligence in failing to deliver cattle within a reasonable time, set up a special contract in its answer by which it was agreed that as a condition precedent to the plaintiff’s right to recover damages for loss or injury to the cattle, the shipper should give notice in writing of his claim to the officers of the company or its nearest station agent before the cattle were removed from their place of destination, and before they were mingled with other stock. The line of railway did not exend to the point of destination, and both contracting parties understood that the carrier would transport the cattle from its own road over a connecting road. Held:</p> <p>(1) The contract was a limitation on the liability of the carrier at common law.</p> <p>(3) A limitation on the common law liability of a carrier for the proper delivery of articles to a point beyond the limits of Texas, to be recognized must be reasonable.</p> <p>(3) The reasonableness of the limitation must appear from the matters set forth in the answer.</p> <p>(4) The failure of the answer to show that the carrier had an officer or agent so situated that the contract to give notice to such officer or agent was reasonable, was fatal on demurrer.</p> <p>(5) lío presumption can be indulged that the carrier had an officer near the place of destination.</p> <p>(6) It is doubtful whether, under any circumstances, such a contract, which fails by its terms to specify who is the officer or agent to whom notice shall be given, when the carrier is a corporation and the cattle are to be delivered in a distant State beyond the line of its road, should ever be sustained.</p>

' Tried below before the Hon. J. M. Hall. This was an action instituted by Focke, Wilkens & Lange, upon a claim partly due, an attachment issuing at the same time. The attachment was quashed, and the trial upon defendants’ plea in reconvention resulted in a judgment for nine hundred and two dollars and seventy-seven cents, the value of the attached property, in favor of defendants, Hardeman & Waters. The facts are stated in the opinion of the court.

Tried below before the Hon. Jo. Abbott. In addition to the facts stated in the opinion, it should be stated that John W. Street, J. E. Masterson, James Syrus and B. F. Edwards were made co-defendants with Phillips, and it was alleged that the co-defendants had ejected appellant from the land to which title had failed, and that they claimed and held the same adverse to appellant.

Tried below before M. D. Priest, Esq., Special Judge. In addition to the facts stated in the opinion, it should be added that it appeared in evidence that the appellee at the time he received the injuries, was working on a moonlight night with a heavy fog prevailing, on a portion of the road bed he had never seen. He had been at work for the corporation continuously for eighteen hours before the injury.

<p>1. Damages—Negligence—Parent and Child—If injury results to a minor from the negligence of his employer, the parent is entitled to a judgment against the employer for damages for the loss of the minor’s services caused by such negligence, and incidental expenses resulting from the injury.</p> <p>2. Same.—If the employment was for a service in its character dangerous, and the minor was employed without the father’s consent, his minority being known to the employer, and injury results to the minor in the course of his employment, the father may recover, as damages, the value of the son’s services to him which were lost by reason of the injury,</p> <p>3. Same.—When the father sues in tort for enticing away or harboring his minor child, he must, in order to recover, aver and prove that the defendant knew of the minority. The same rule applies when the father sues for damages resulting from the employment of his son in a dangerous business, and without his consent.</p>

Tried below before the Hon. I. B. McFarland. This suit was by Leon & H. Blum, junior attaching creditors of H. Cohn, against Bassett & Bassett, Charles Wenar, J. S. Newbauer and others, seeking to set aside the attachments of Bassett & Bassett, J. S. Hewbauer & Brother, Charles Wenar, Isaac Heidenheimer and 8.

Tried below before the Hon. D. H. Scott. This was an action for divorce, brought by Mrs. E. A. T. Williams. The trial resulted in a judgment for defendant, W. T. Williams.

Tried below before the Hod. George H. Noonan. William B. Knox died in March, 1880, intestate, leaving a •widow, Rachel J. Knox, who married John Eckford, surviving Mm, and no children; On the trial it was agreed what part of the property was his separate property, and what part was the community estate of him and the said Rachel, as will be seen from the statement of facts and the judgment.

Tried below before the Hon. J. A. B. Putman. This was an action of trespass to try title. Suit was filed December 10, 1884, by E. L. Agnew against John T. Davis and Andrew Sproul, as members of the firm of Samuel 0. Davis & Go., of St. Louis, Mo., and T. H. King, of Hunt county, Texas, to recover one hundred and sixty acres of land in Hunt county, the south half of the S. K. Woodson survey of three hundred and twenty acres.

Tried below before the Hon. Wm. H. Stewart. Schwarz, the appellant, made a warranty deed for a city lot to The National Bank of Texas, for value credited to Schwarz as paid on his indebtedness to the bank, and thereupon became a tenant to the bank, at rental of twenty-five dollars per month. The National Bank demanded possession from Schwarz, and • possession was refused. Suit was instituted by sequestrian, and was tried before the court without a jury.

<p>1. Practice—Plea in Abatement. —It rests in judicial discretion to permit a plea in abatement which is to be determined after hearing evidence in support thereof, to be tried as a separate issue and before a trial upon the merits.</p> <p>2. Judgment—Partners.—Judgment rendered in a suit brought by the recognized partners in a firm as such, is generally as binding upon a dormant partner as though he had been made a party.</p> <p>3. Actual Damages.—See the opinion for a statement of facts which did not authorize the verdict rendered for actual damages.</p> <p>4. Malice—Charge of Court on Exemplary Damages.—When in an action to recover exemplary damages for wrongfully suing out a writ of attachment it appeared that the affidavit for the writ was made by an agent of a non-resident plaintiff, who was made a party defendant with his principals, it was error to charge the jury that if the defendants or either of them had no probable cause for suing out the writ, and were actuated by malice or evil motive in the issuance and levy of the writ, the plaintiff would be entitled to a verdict against all the defendants for exemplary damages.</p> <p>5. Same.—The error in such a charge is not corrected by charging also that the principals would not be liable for exemplary damages if the agent was influenced by malice and they were not, unless the jury believed that the principal accepted the act of the agent, ratified and approved the same and received the benefit thereof. This was defective in not stating that, to render the principals liable as having ratified the agent’s act, it was necessary that they should have had knowledge of such facts as showed the wrongful conduct of their agent at the time they accepted and approved his act.</p> <p>6. Same—Implied Malice.—The doctrine of implied malice, as applicable to civil suits, is of doubtful utility, and should only be indulged in cases clearly calling for its application.</p>

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

<p>Appeal from Trinity. Tried below before the Hon. Benton Randolph.</p>

<p>1. Statute Construed—Damages.—Under the provisions of title 53 of the Revised Statutes, the widow can only recover damages for an injury resulting in the death of her husband when the injury is of such a character as would, had death not resulted, have entitled the husband to maintain his action for damages.</p> <p>2. Negligence oe Fellow Servant—Damages.—The widow of one who, at the time of receiving the injuries which resulted in his death; was brakeman on a railway train, can not recover from the railway company damages on account of the death of her husband when the death resulted from the negligence of the engineer in operating the train, unless there was a want of due care on the part of the company in employing the engineer.</p> <p>3. New Trial—Fact Case.—See facts set forth at length in the opinion held not sufficient to sustain a verdict for damages.</p> <p>4. Right of Action—Damages.—Either the widow or any of the children of one killed by the negligence of another, under such circumstances as would give right of action under Title 63 of the Revised Statutes, may maintain the action for the benefit of all. (Rev. Stat., art. 2404.)</p> <p>A Pleading.—When such an action was instituted by the widow in her own name, by petition which disclosed that there was an only child of the deceased, whose name was stated, and the prayer of the petitioner was that the damages might be apportioned between them, after an averment that both were damaged by the death, it was held that the averments were in substance sufficient, and that, if defective, the defect should have been taken advantage cf by special exception.</p>

Tried below before the Hon. J. C. Russell. The evidence tended to show that plaintiff in this suit was running a gambling house, a saloon and variety theater, under the same roof and in connection with each other, at the time the attachment complained of was issued. The opinion states other facts.

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

<p>Appeal from Galveston. Tried below before the Hon. William H. Stewart.</p> <p>The opinion states the facts.</p>

<p>Appeal from Victoria. Tried below before the Hon. H. Clay Pleasants.</p>

<p>1. Parties—Practice—Abatement.—In a suit to recover an undivided half interest in personal property situate on the ground of another, the name of the owner of the other interest was not set forth in the petition. His non-joinder as a party to the suit could not be considered on general demurrer, but if urged in proper time and manner by plea in abatement, the plea should have been sustained. Such a question can not be considered for the first time in the Supreme Court on appeal.</p> <p>2. Practice— ConclusionS/Of Fact.—When a cause is tried by the district judge, a jury being waived, his conclusions of fact, when not supported by the evidence, may be corrected on appeal with a proper assignment of errors, if a full statement of the facts in evidence be incorporated in the record. Erroneous conclusions of fact may also be corrected by motion for new trial in the court below, based on the want of evidence to sustain the findings.</p> <p>3. Practice in District Courts —Findings op Fact.—When a district judge to whom a cause is submitted for trial on the law and facts, is requested to make findings on a material issue, he should do so. A failure to comply with such request is ground for reversal, unless it clearly appears that the evidence would have required a finding adverse to the party complaining.'</p> <p>4. Sheriff’s Sale.—A sheriff’s sale made under execution issued on a dormant judgment is voidable, and as to the purchaser who is a stranger to the proceeding it can not be collaterally attacked.</p> <p>5. Evidence.—In a suit to recover personal property purchased at execution sale under a judgment against the defendant, it is competent for the defendant to prove that the property belonged to a third person, and not to himself, when sold. Even if the defendant had declared himself the owner before sale it would not estop Mm from showing the contrary, or pass to the purchaser the title of a third person who was not a party to such declarations.</p>

Tried below before the Hon. A. Ohesley, Special Judge. The suit was brought by cestui que trust and a trustee against the assignees of Bassett & Bassett and against B. H. Bassett, to recover a trust fund. About February, 1872, B. H. Bassett was by a decree of the district court of Washington county duly appointed substitute trustee of Eonald Mills and Georgiana Mills, his minor daughter.

<p>1. Mortgage.—Limitation.—The power of a trustee to sell under a deed of trust may be executed though a right of action in the courts of the country upon the debt secured by the deed, may be barred by the statute of limitations, and the purchaser takes title free from the lien of a subsequent mortgagee with notice.</p> <p>2. Cases Reviewed.—Goldfrank, Frank & Co. v. Young, 64 Texas, 433; and Duty v. Graham, 12 Texas, 427, reviewed.</p> <p>3. Statutes op Limitation.—Our statutes of limitation with reference to debts operate solely on the remedy in the courts, but do not destroy the debt; following Goldfrank, Frank & Co. v. Young, and overruling Blackwell v. Barnett, 52 Texas, 326.</p> <p>4. Subrogation.—The payment of a debt secured by lien, though made by a stranger to the original contract, if made under an agreement with the creditor that he may hold the security for his reimbursement, subrogates him to the rights of the original creditor.</p> <p>6. Subrogation.—If a third party pay the entire debt secured by mortgage, under an agreement between himself and the debtor, that upon his doing so he shall be subrogated to the righis of the creditor, the agreement will be given effect, and the third party will stand in the place of the original creditor as to all persons interested in the property or the security. The rule in Louisiana under a statute governing it is otherwise.</p> <p>6. Same.—If, however, the payment of the debt be made at the request of the debtor, with exclusive reliance on his promise to repay, the mortgage debt is extinguished, and no subsequent act of the mortgagor can revive it to the prejudice of a subsequent lien holder or one purchasing under him.</p>

<p>Appeal from Duval. Tried below before the Hon. J. 0. Russell.</p>

<p>1. Survey—Dignity op Calls.—When a marked line is called for in a grant, it is only when the line can be identified on the ground as the one made by the surveyor that it will control a call for course and distance.</p> <p>2. Same.—The law does not require the distance named in the field notes of a grant to be greatly extended to reach a line, merely because it is found on the ground with marks corresponding in age with the date of the grant. He who claims the right to so extend the distance, and give superior dignity to the marked line, must show that the line was the one marked on the ground by the surveyor preparatory to the issuance of the grant.</p>

<p>■ 1. Appeal from Justice’s Court.—It is from the transcript and papers which on appeal are required to be set up by a justice of the peace (Rev. Stats., art. 1640), that the district court can determine what the cause of action presented and tried before the magistrate was. Though the pleadings may have been oral, the statute requires that a brief statement showing their character shall be noted on the magistrate’s docket. (Rev. Stats., art. 1573.)</p> <p>3. Same.—On the appeal to the Supreme Court of a cause originating in a justice’s court, the Supreme Court can only be informed what the cause of action was by a transcript of the entries made on the magistrate’s docket, by pleadings, if any, which were filed in the case, or by an agreed case; ¡and unless informed by one of these methods, it will presume that the judgment of the district court was correct, and will affirm .it.</p>

Tried below before the Hon. W. H. Ford. Appellee brought this suit in the district court of Newton county April 3, 1885, to restrain the enforcement of a judgment for fifteen dollars rendered March 14, 1885, in a justice court, in favor of appellant and against appellee.

<p>1. Special Verdict.—A special verdict is defective and can not form the basis for a valid judgment, unless it finds all the material facts put in issue by the pi. tidings; and this, though the evidence may clearly e3tablish the existence of the facts not found. It is the right of a litigant to' have the jury pass on all facts controverted by the pleading. When they have failed to do this, the court can not render a judgment without infringing a right guaranteed to the citizen by the Constitution and laws.</p> <p>2. Same.—The verdict and judgment should be the end and not the basis for the continuance of the same controversy. The verdict should therefore be rendered on the issues made by the pleading in apt language, which can not admit of mistake.</p> <p>3. Writ of Error—Purchaser Pendente Lite.—The writ of error is a continuation of the original suit, and not the beginning of a new one. One who buys after judgment in the district court is rendered, and before a writ of error is sued out, is a purchaser pendente lite.</p> <p>4. Cases—Reviewed,—Patterson v. U. S., 2 Wheaton, 221, and McCoy v. Rives, 1 Smedes & Marshal, 592, reviewed.</p> <p>5. Cases Approved.—Crouch v. Martin, 3 Blackford, 336; Smith v. Raymond, 1 Day, 189; People v. Doesbury, 17 Michigan, 135; Crutcher v. Williams, 4 Humphries, 345, and Longeope v. Bruce, 44 Texas, 434, approved.</p>

<p>Appeal from San Jacinto. Tried below before the Hon. Norman G. Kittrell. i</p>

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

Tried below before the Hon. J. 0. Russell. . The conclusions of law and of fact by the judge trying the case were as follows: “I find that a valid contract existed by the laws of Texas, and the charter and ordinances of the city of Corpus Christi, between D. S. Howard & Co. and their assigns and the city of Corpus Christi, to construct and maintain a ship channel between Corpus Christi and Aransas bays, to be of the depth of eight feet, and a width of one hundred feet…

<p>Appeal from Grimes. Tried below before the Hon. Benton Randolph.</p>

<p>Appeal from Grimes. • Tried below before the Hon. Herman G. Kittrell.</p>

<p>Appeal from Leon. Tried below before the Hon. James I. Perkins.</p>

<p>Appeal from Fayette. Tried below before the Hon. John Lane, Special Judge.</p>

<p>Appeal from Houston. Tried below before the Hon. Anson Bainey.</p>

<p>1. Insurance.—An insurance company may, through its authorized agent, contract by parol for the renewal of a policy of insurance, although if may be stipulated on the face of the policy itself that this shall nob be done.</p> <p>2. Same—Forfeiture.—Though a policy of insurance be forfeited by the failure to pay the premiums according to conditions, yet an agent duly authorized may waive the forfeiture, and thereby re-instate the obligation.</p> <p>3. Same—Waiver.—When a policy of insurance provides for a forfeiture upon failure to pay the premiums which are to fall due, but does not stipulate that upon such failure the over due premiums shall be considered as earned, a demand for, and payment of such premium, constitutes a waiver of the forfeiture. It is otherwise when the policy stipulates that upon default in any instalment the insurance shall cease and the instalment shall be considered as earned.</p> <p>4. Cases Reviewed—Insurance Company v. Norton, 96 M. S., 234, and Chicago Life Insurance Company v. Warner, 80 Illinois, 410, reviewed.</p> <p>5. Demand—Forfeiture.—A mere demand for the payment of an over due premium, without its payment, is not sufficient to reinstate a policy which is forfeited.</p>

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

<p>1. Parties—Amendment.—A suit was filed in the name of “F. A. Eabb, a minor, by Ms guardian, G-. A. Eabb.” The petition was amended in the name of “ Gh A. Eabb, guardian of Frank Eabb,” suing for the benefit of Ms ward; each petition was for the benefit of the ward alone. Held, that the amendment did not make a new party plaintiff, and that the guardian was in effect the party plaintiff in each petition.</p> <p>2. Amendments—¡Notice op.—A defendant who has been cited, but has not answered, must be notified of every amendment which sets up a new cause of action, or requires a more onerous judgment against him; but if he has answered, the only notice to which he is entitled is the order of court granting leave to file the amendment.</p> <p>3. Appearance.—A motion to quash citation by a defendant when sustained and the cause continued, is equivalent tó an entry of appearance by him at that term.</p>

<p>Appeal from Crockett. Tried below before the Hon. F. A. Williams.</p>

Washington. Tried below before the Hon. I. B. McFarland. Trespass to try title and for damages, brought by the appellant M. E. Gilder, administratrix of A. J. Gilder, deceased, as plaintiff, against the City of Brenham and Frank Harvin, the city marshal, appellee, as defendants, to recover the title and possession of a certain lot in said city, and to restrain the defendants from interfering with plaintiff’s possession thereof, and for damages for her eviction therefrom.

<p>Appeal from Houston. Tried below before the Hon. Anson Bainey.</p>

<p>Appeal Srom San Jacinto. Tried below before the Hon. Morman G. Kittrell.</p>

<p>Appeal from Brazos. Tried below before the Hon. W. E. Oollard.</p>

<p>Appeal from Victoria. Tried below before the Hon. H. Clay Pleasants.</p>

<p>1. Collateral Attack—Jurisdiction.—When a court o£ record of general jurisdiction over all matters pertaining to the estates of deceased persons has assumed to exercise jurisdiction in a given case, all presumptions are in favor of the validity of its proceedings; and if the record of such a court shows that the steps necessary to clothe it with power to act in the given ease were taken, or if the record be silent upon this subject, then its judgment, order or decree must be held conclusive in any other court of the same sovereignty, whon collaterally attacked.</p> <p>2. Jurisdiction.—When a person dies, leaving to the jurisdiction of the probate court an estate, then, and not before, the court has power to inquire and determine the existence or non-existenee of every fact necessary to be determined in ascertaining whether it has jurisdiction in the particular ease, and the extent to which it ought to be exercised.</p> <p>3. Same.—Such a court must determine the existence of the facts which make it proper that administration should be granted in the county in which the court sits; if it comes to an erroneous conclusion and orders the issuance of letters of administration, its judgment is voidable and not void.</p> <p>4. Oases Reviewed. —Blair v. Cisneros, 10 Texas, 35; Fisk v. hTorvei, 9 Texas, 15; Boyle v. Forbes, 9 Texas, 36; Wardrup v. Jones, 23 Texas, 489; Coehran v. Thompson, 18 Texas, 653; Merriweather v. Kennard, 41 Texas,. 273; Dunean v. Veal, 49 Texas, 604, are all reviewed in the opinion.</p> <p>5. Collateral Attack.—When the judgment or decree of a court of general jurisdiction is attacked collaterally, it must be deemed valid, unless it appears that no facts could have been shown which could render it so.</p> <p>6. Statute Construed.—The act of March 20, 1848, did not fix any period' after which administration should not be opened, and the courts can not legislate by fixing an arbitrary period. Ricard v. Williams, 7 Wheaton, 115, and McFarland v. Stone, 17 Vermont, 173, cited, and reviewed in this-connection.</p> <p>7. Jurisdiction—Collateral Attack.—A decedent died in 1832. Over fourteen years afterwards letters of administration were granted on his estate, under which lands wei e sold. The letters were granted on a petition, which stated that his principal estate was in the county where the application for letters was made, and that he died in another county. Over ten , .0) years afterwards the heirs brought suit to set aside the sale for the alleged want of jurisdiction in the probate court to order it; for fraud and óollusion between the administrator and the purchaser, who presented the claims under which the land was sold; because the deceased had his residence, when he died, in a county other than the one in which the estate was administered, and that his principal estate was in the county of his residence; because the administration was taken out for the fraudulent purpose of acquiring title to the land, and that all claims against the estate were barred before the letters of administration were granted. The suit being an original proceeding in the district court by the heirs to declare the administration a nullity for want of jurisdiction; to set aside the sales and deeds for fraud; to recover the land, and to remove cloud from title, held:</p> <p>(1) The grant of letters can not be held void in such a proceeding by the district court, and it cannot inquire whether, on the ground claimed, the action of the probate court in granting letters was erroneous.</p> <p>(2) A different doctrine would destroy the safeguards for purchasers at sales ordered by courts invested with power to decide when sales shall be made, and when they have been legally made; and would lead to the sacrifice of estates by destroying confidence in such sales.'</p> <p>(3) Though claims against an estate were presented to and approved by the court, which were at the time manifestly barred by the statute of limitations, that approval stands as a judgment which can not be collaterally attacked.</p> <p>(4) But if the claims were fraudulent and the land was sold to satisfy them by order of the probate court, and the pretended creditor who presented the claims became the purchaser, a court of equity would have power in an independent proceeding to act directly on the purchaser, while the apparent title still remained in him, to prevent his reaping benefit from his fraud, and wrest from him the title thus fraudulently obtained. On this point Poor v. Boyce, 12 Texas, 449; Dancy v. Stricklinge, 15 Texas, 564, and George v. Watson, 19 Texas, 369, approved.</p> <p>(5) N o relief can be afforded, even by a court of equity, against one who has purchased the land from such fraudulent purchaser, for value, and without notice of his fraud.</p> <p>(6) If the period which would bar debts is to be deemed the period after which administration can not be legally granted (when not regulated by statute), then the courts ought not, in a collateral proceeding, to declare an administration void, if granted within ten years, which, in Texas, is the longest period of limitation.</p> <p>(7) Whenever, in a collateral attack upon an administration, it • has been judicially held that" an administration was a nullity, unless some fact was shown when letters were granted, the word nullity is to be construed as equivalent to the word voidable, for if there were a fact or facts, proof of which would have made the administration valid, it can not be void, and the legal presumption is that the very fact which would give validity was pressed before the court which granted the administration.</p>

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

<p>Appeal from Fayette. Tried below before the Hon. H. Teichmueller.</p>

<p>Error from Bueces. Tried below before the Hon. J. C. Bus-sell.</p>

Tried below before the Hon. H. Clay Pleasants. Coleman & Stockley agreed to .pay a note held by T. M. Coleman .against E. L. Dunman, the intervenor, for the sum of five thousand dollars, and this payment was part of the consideration that was to pass-from Coleman & Stockley to intervenor for a stock of cattle sold by him to them.

<p>1. Pleading in a Justice’s Court.—The statute (Rev. Stat., art. 1573), which permits parties to a suit in the court of a j ustice of the peace to plead, orally, does not dispense with the necessity of forming in some way, the issues to be tried, a brief statement of which should be noted on the magistrate’s docket.</p> <p>2. Practice—Pleading.—When the record showed affirmatively that there were no pleadings made by the defendant in a suit for debt before a justice of the peace, it was error on appeal to hear evidence of payment.</p> <p>3. Same.—It would seem that the record would be sufficient to show the pleadings in a justice’s court, if there appeared therein the brief statement required by the statute, either from the transcript of the justice’s docket or that of the district court (when that court obtained jurisdicdietion), or by entry upon the minutes of the latter court, either independent of, or in the judgment itself.</p>

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

<p>Trespass to Try Title—Evidence—Judgment.—When in trespass to try title the plaintiff fails to show title in himself, errors committed by the-court in admitting improper evidence to establish defendant’s title are immaterial and will not be considered on appeal. In such a case the defendant is entitled to a judgment conclusive against the claim of the plaintiff, and such is the effect of a judgment in the usual form, “that the plaintiff take nothing by his suit,” etc. If to this, the judgment should contain a clause removing cloud and quieting defendant’s title to the premises sued for, it adds nothing to the force of the usual entry, and is not error.</p>

<p>1. Constructive Trust—Fraud.—A trustee acting under a power to sell, who conveys the trust property to himself, thereby constitutes himself by his own fraud a constructive trustee, and he and all who purchase from him with notice, will be regarded in equity as holding the property in trust for the original beneficiary.</p> <p>2. Same—Circumstances which might validate such a sale will not be presumed, but must be proved by the purchaser, and in a suit to recover property- thus conveyed by several trustees to one of their own number and afterwards conveyed by him to a third party, when the trustee and his vendee are both made defendants, it is not necesary to allege that the vendee knew of the decree which created the trust, or that he knew that the trustees had sold the property to one of their number. These facts were in the line of the vendee’s title, and it was sufficient to allege the title under which the vendee claimed. It was equivalent to charging him. with knowledge of the fraud which constituted his vendor a constructive trustee.</p> <p>3. Pleading.—See the opinion in this case for a statement of the allegations in a petition by one of many parties in interest, the others not joining, to recover her interest in a trust estate, purchased by the defendant from one constituted a constructive trustee by his own fraud in conveying the trust property to himself, held good on general demurrer.</p> <p>4. Same.—In such a suit it is not error to join the trustees as defendants with the last vendee, with a prayer for cancellation of the conveyances made. If the plaintiff failed to recover the land by reason of want of notice of the fraud on the part of the purchaser, she was entitled to recover of the constructive trustee her interest in the purchase money paid to him. The fact that the petition showed no ground for recovering a monied judgment against the trustees afforded no reason for dismissing the suit.</p>

Tried below before the Hon. Norman G. Kittrell. In this case the cause was submitted to the presiding judge, without the intervention of a jury, who found the following conclusions of fact and law: Conclusion upon the facts: “First. That John C. Gallion owned six hundred and forty acres of land in Trinity county, Texas—three hundred and twenty granted to him by the State as assignee of John Conklin, and three hundred and twenty as the assignee of T. L. Trevathan.

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

<p>1. Railways—Statute Construed.—The laws giving penalties for receiving more than the maximum rates for transportation of passengers and freights by railway companies, in force prior to the passage of the Act of April 10, 1883, did not make the willfulness of the charge a fact on which the right to recover depended. To relieve against this hardship, the proviso to the tenth section of that Act was inserted.</p> <p>3. Same.—Under Article 4357, Revised Statutes, the amendment thereto of April 19, 1879, and the Act of April 10, 1883, it is only in cases of unjust discrimination by railway companies that the penalty against them is given.</p> <p>3. Same—Statute Construed.—Thus protected as railway companies are from liability for inadvertent discrimination in the management of their roads, there was no necessity for further protection, such as is given in the proviso to the tenth section of the Act of April 10, 1883.</p> <p>4. Same.—It is only when an overcharge for transportation, or a charge not permitted by law, is made by a railway company that notice to the company and a refusal to refund are required, before an action to recover-the penalty can be maintained.</p> <p>5. Same.—When intention, design or knowledge at the time an act is done, is an element essential to liability for the act; to require notice to be-given by the injured party, before the intentional wrong doer could be made liable, would be to require the doing of a useless thing.</p> <p>6. Same—Notice oe Unjust Discrimination.—No notice is required by the statute to be given to a railway company in cases of unjust discrimination in freight charges, and the proviso to the tenth section of the Act of April 10, 1883, has application only in cases in which charges for freight or passengers in excess of the maximum rates fixed by law, have been made.</p> <p>7. Railway Companies.—Railway companies voluntarily assume duties to the public from which they can not free themselves by surrendering the management and control of their roads to other persons, in the absence, of such law as would permit them; and there is in Texas no statute according such a privilege.</p>

<p>1. Banks and Banking— Franchise—Contract—'Corporation.— The Island City Savings Bank, chartered in 1870, by special Act of the legislature, becoming insolvent, suspended business, and compromised with al its depositors, save one, on the basis of a payment of seventy-four cents on the dollar. About two months after the suspension the insolvent bank transferred all its assets, including its name and franchise to a new association (whose names were not revealed on the trial) and obligated itself to pay back to the new association any amount it might be compelled to pay in excess of the seventy-four per cent compromise, the new association agreeing to pay for the old association any such amount. The new association resumed business under the old name and franchise. In a suit against the bank as re-organized, by the depositor who refused to . accept the compromise, held:</p> <p>(1) When a bank becomes insolvent, it may, under proper contract, transfer its assets to a new association who may continue a similar business without incurring liability for the debts of the insolvent corporation.</p> <p>(2) If, however, the shareholders of the insolvent bank agree with a new set of shareholders that the latter shall become substituted to the rights of the former in the corporate property and franchise, in consideration of their agreement to pay the debts to a specified amount, and the new organization in its business uses the seal of the insolvent bank, it becomes liable for its unpaid debts.</p> <p>(3) A corporation is not necessarily dissolved by insolvency. A surrender of it franchise will not be presumed as long as it has power to continue its business.</p> <p>(4) Nor will the sale of its visible property to pay debts, and a temporary suspension of business, work a forfeiture of its charter, so long as it has capacity to increase its subscriptions, call in more capital and resume business.</p> <p>(5) Nor will such temporary suspension work a forfeiture of its franchise if new stockholders purchase and resume business under the old charter.</p> <p>(6) The unpaid obligations incurred by the Island City Savings Bank, and which existed at the time of insolvency, continued to exist against it when re-organized. The artificial existence called the body corporate remained the same.</p> <p>(7) The bank as re-organized was liable to the depositor who refused to compromise for the full amount of his debt.</p> <p>' 3. Cases Cited and Approved.—Bradt v. Benedict, 17 New York, 93; Brinkerhoff v. Brown, 7 Johns’s Chancery, 217; Rochester City Bank v. Paige, and Longley v. The Longley Stage Company, 23 Maine, 39, cited and approved.</p>

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

<p>Trusts and Trustees.—A trustee appointed under decree to sell land, who conveys the title for the nominal consideration of one dollar, violates the trust, and the deed executed by him amounts only to a deed of gift. The donee in such case becomes a trustee for the beneficiaries in the trust, and this, whether the donee had notice of the trust or not, since he had not paid value for the land. »</p>

<p>1. Mortgages.—Ho valid mortgage can exist in the absence of the consent of the parties to the contract, nor is the contract, even with consent, consummated until the delivery of the instrument which constitutes its written evidence. Thus, when a failing debtor placed on record a transfer of his stock of merchandise to designated creditors, who were never consulted and were in ignorance of the transfer, one of whom after-wards attached the goods, other creditors who subsequently consented and ratified the transfer acquired thereby no right as against the lien of the attachment.</p> <p>3. Cases Cited.—Foster v. Perkins, 43 Maine, 168; Oxhard v. Blake, 45 Maine, 603; Day v. Griffith, 15 Iowa, 104; Welch v. Saekett, 13 Wisconsin, 343; Miller v. Blinebury, 31 Wisconsin, 676; Jewett v. Preston, 37 Maine, 400; Maynard v. Maynard, 10 Massachusetts, 456, cited.</p>

<p>1. Partnership. — It is the right of a partner to have the partnership indebtedness satisfied from the partnership assets before a division can be had. The interest of each partner is confined to what may be left after liquidating all debts of the firm, and in the payment of such debts each partner is, as between himself and the others, entitled to retain, before a division of assets, all sums advanced by him beyond his share of the capital, and sufficient to reimburse him for debts of the firm paid by him.</p> <p>2. Same.—The effect of a sale of an undivided interest of partnership assets by one of the firm is a dissolution of the partnership, and the purchaser, in the absence of special contract to the contrary, becomes a joint owner of the property.</p> <p>8. Same—Estoppel.—A partner who thus sells, and in the sale treats the partnership property as though all equities between himself and partners were settled, and appropriates to himself what would have been his interest if all partnership debts had been paid, is estopped from setting up claims against the interest of his former partner in the firm assets, for reimbursements on account of advances made, or firm debts paid by him.</p>

<p>i. Assignor and Assignee—Assignment fob Benefit of Creditors— Statute Construed.—A bank, as creditor of an insolvent debtor, received an instrument in the nature of a chattel mor tgvi ge, made in violation of law, to secure its claim, and took forcible possession irom an assignee, of goods transferred to him by the debtor by legal assignment for the benefit of creditors, but made after the chattel mortgage. The chattel mortgage having been decided by the supreme court to be in contravention of law regulating assignments, the bank thereupon filed with the assignee proof of its claim, but about eighteen months after the notice given by the assignee, who refused to accept it. The claim of the bank was twice the value of the assigned property. Held:</p> <p>(1) Without deciding whether, under, all circumstances, it is necessary for a creditor of an assignor to file a claim against him within six months after the publication of notice by the assignee, to entitle him to the benefit of an assignment, in this ease the failure to do so was without excuse.</p> <p>(3) The statute does not contemplate that the pendency of a suit by a creditor, which from its very nature, must leave a large portion of a creditor’s claim due from the a=signee, shall excuse him for awaiting the action of the courts indefinitely before proving up any portion of his claim.</p> <p>(3) Though circumstances may surround a claim against an insolvent debtor who has assigned, making the precise sum due difficult of ascertainment, the law does not contemplate that a creditor shall stand excused for that cause, who fails to file his claim with the assignee within the time required by the assignment laws.</p> <p>(4) If the bank was in possession of doubtful security, afforded by an instrument executed to it by the insolvent, and the construction of which was involved in litigation during the period within which the claim should have been filed, it could state that fact, and any other fact rendering the amount of the claim uncertain, and leave for adjustment between itself and the assignee, the amount which was due thereon.</p> <p>(5) But when, as in this ease, the bank was in possession of nearly all the insolvent’s estate under an illegal transfer, and retained the same during a protracted suit prosecuted by it to defeat the assignment, and deprive the other creditors of their legal rights to pro rata payment, and only filed its claim with the assignee when defeated in its effort to perpetrate a wrong, and after the six months for filing claims had expired, the assignee acted properly in rejecting the claim.</p> <p>(6) Valentine v. Decker, 43 Mo., 583, approved.</p> <p>(7) Ho one can rely on his own wrong to excuse his delay in complying with the requisitions of the law.</p> <p>(8) The bank was entitled to no portion of the assigned assets, thereby defeating garnisheeing creditors who might be entitled to any excess remaining after legally consenting creditors had been fully satisfied.</p> <p>(9) The judgment was so reformed as to pay, First, The costs and expenses of the trust. Second, The claims of consenting creditors, except the bank, the full amount of their claims. Third, The claims of garnisheeing creditors who had appealed, and any remaining funds to be paid out under decree of the district court.</p> <p>8. Appeal—Practice—Judgment.—A garnisheeing creditor of an insolvent debtor, who had garnisheed the assignee of the debtor, afterwards also accepted the assignment and filed his verified claim, though too late. In a suit between the assignee, the garnishee, and other creditors, the garnishee appealed only from that portion of the judgment below which denied him the right to participate in the assignment, and decreed, that as to him the assignee go hence without day. In his pleadinghe had asked to be placed on an equality with other consenting creditors, and in the alternative that bis claim be paid in full, after all accepting creditors, with the exception of appellee, had been satisfied. Held:</p> <p>(1) The court by adjudging that the garnisheeing creditor had no right to partake of the assignment as a consenting creditor, and that the appellee had, refused the former every relief he had asked in his pleadings.</p> <p>(3) If the garnisheeing creditor was entitled to be treated either as a consenting creditor or a garnisheeing creditor, and the appellee had no right to any portion of the assigned property, then the judgment was, as-against the former, erroneous.</p> <p>Rehearing.</p> <p>3. Judgment—Appeal.—When in a suit involving the claims of a number of parties, judgment is rendered in favor of one and against another on one of the issues involved, and from that portion of the judgment the complaining party takes no appeal and assigns no error based on the judgment as to that issue, the judgment of the court below will be treated, in so far as it determined the particular issue, as final.</p>

<p>Error from Austin. Tried below before the Hon. H. Teichmueller.</p>

Tried below before the Hon. W liam H. Stewart. This suit was brought against the city of Galveston by appellant, Sonnenthiel, as the assignee and holder for value of the following instruments, which referred to a fire alarm contract between the appellee Skinner and the city, viz.: “This is to certify, that according to the terms of a contract between T. M. Skinner and the city of Galveston, now on file in the office of the City Glerk of Galveston, the city of Galveston…

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

Tried below before the Hon. John 0. Russell. The opinion sufficiently presents the case. The record is immense, containing much pleading and evidence, and an extensive map, but the opinion contains all that is necessary to a proper understanding of the points decided in it.

<p>Appeal from Fayette. Tried below before the Hon. H. Teichtnueller.</p>

Grimes. Tried below before the' Hon. W. E. Oollard. This suit was brought in September, 1885, by Leake, as guardian of the minors, Margaret, Hamp, Mary and Nannie Thomas, children of Hamp Thomas, Sr., against his widow, as guardian of his youngest child, Fannie Byrd Thomas, to recover one thousand dollars, paid to her for the, benefit of .her ward by the trustees of the American Benevolent Association.

Tried below before the Hon. W. H, Stewart. This suit was brought in the name of appellee, an infant nineteen months old at the date of the injury complained of. He was run over by a street car of appellant in a public street in Galveston between four and five o’clock in the day time, and by a car under the control of one of appellant’s employees.

Tried below before the Hon. W. H. Stewart. The appellee, Kate Lee Wallis, a minor, by her guardian, W. B. Wallis, instituted this suit on the twenty-eighth day of May, 1886, in the district court of Galveston county, against George O. Cherry, her former guardian, and E. P. Sargent, S. T. x Blessing-and J. P. Kindred, the sureties on his bond, which was executed by them on July 12, 1882, and approved July 13, 1882, and made a part of the petition.

Galveston. Tried below before the Hon. Win. H. Stewart. Suit by John 0. Wootters and William Hayes, composing the firm of J. O. Wootters & Co., against Henry W. Dublé and John H. Wootters, factors and commission merchants, composing the firm of Dublé & Wootters, and also against Julius Kauffman, brought in 1874, to recover one hundred and thirty-four bales of cotton or its value.

Tried below before the Hon. W. H. Stewart. This suit was brought by E. P. Pomeroy, to recover damages to plaintiff’s crops, caused by insufficient culverts in defendant’s road embankment.

Tried below before the Hon. W. H. Ford. Appellee sued March 18, 1885, for damages placed at one thousand two hundred and sixty-five dollars to his garden crops and land, of three quarters of an acre, by reason of two overflows, one from May 25 to July 10, 1884, and the other beginning in January, 1885, and continuing six weeks, alleging that the water had been obstructed of its natural outflow and caused to stand on appellee’s lands and crops longer than it otherwise would,…

<p>l. Builders’ Risks—Negligence.—A builder is not required to protect himself against loss by fire by insuring the property of another, which he is constructing or repairing; and, if a fire occurs and destroys the structure during the progress of the work, his failure to do so will not be regarded as negligence.</p> <p>3. Builders’ Contract.—If one undertakes to furnish the material and build a house for another, to be paid for when the work is complete, and the structure is destroyed by fire during the progress of the work, without fault of either party, the builder can not recover for the material furnished and labor performed.</p> <p>3. Same.—If, however, the contract be for the builder to furnish material and perform labor in altering a structure already erected, according to-specifications agreed on, there being no agreement as to when payment should be made, and, without fault of either contracting party, the structure itself is destroyed by fire when the work of altering has been but partially performed, the rule is otherwise. Under such circumstances the owner must pay the builder a full compensation for the work done and material furnished before the fire. Qucere, whether this rule' would be applied if the owner should reconstruct the house as it was. before the remodeling under the contract began, and then demand of the builder to comply with his contract.</p> <p>4. Oases Cited and Reviewed.—Hollis v. Chapman, 36 Texas, 1; Cleary v. Sohier, 120 Massachusetts, 210; Lord 'v. Wheeler, 1 Gray, 282; Wells v. Calnan, 107 Massachusetts, 514; Carroll v. Welch, 26 Texas, 149, and Gonzales College v. McHugh, 21 Texas, 257, cited and reviewed.</p>

<p>1. Disclaimer—Estoppel.—A judgment in trespass to try title rendered in defendant’s favor for costs, based on his disclaimer filed in the cause, estops him from asserting title against those claiming through the plaintiff or his heirs, unless he claims by virtue of some right acquired after the judgment.</p> <p>2. Disclaimer.—A disclaimer filed in trespass to try title admits the plaintiff’s title to the land and considered alone in connection with the petition, entitles the plaintiff to a judgment for the land and the defendant to a judgment for costs. If, however, the plaintiff shows that the defendant was in possession when the suit was brought, the defendant will not be entitled to his costs.</p> <p>3. Superior Title.—A judgment in' trespass to try title was rendered for the defendant, reciting that “the plaintiff had failed to make out his case,” in a subsequent proceeding between those claiming under the defendant and those claiming under the heirs of plaintiff, held, that the former had the superior title.</p>

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

Tried below before the Hon. Eugene Williams. Appellees brought this suit on the twenty-second day of February, 1886.

<p>1. Garnishment.—In contesting the answer of a garnishee, it appeared that between the service of the garnishment and the return day of the term on which the garnishee answered, he had received cotton under a contract with the debtor, made before the issuance of the writ, that it should belong to the garnishee and be under his absolute control until the payment of the debtor’s drafts cashed by the garnishee and drawn on his principals in the east, against the cotton purchased by the debtor for them and to be shipped east. The garnishee advanced in this manner, from time to time, money, with the distinct stipulation that any and all balances at any time due from the debtor to the garnishee on bank account were hypothecated to the garnishee until all amounts thus due were settled and all drafts cashed in the manner above referred to were paid; this being also as security against the failure of the debtor’s eastern principals, depreciation in the value of cotton purchased, and its loss by accident or ñre. Held:</p> <p>(1) The service of the writ could not work a change in the contract between the garnishee and the debtor, or compel the former to violate his contract in order to create a fund for the payment of the debts of the latter.</p> <p>(3) The contract could be carried out, notwithstanding the garnish-meat, and the garnishee could only be charged with the amount of such balances as might become due the debtor, or for such effects of his as might come to the garnishee’s possession.</p> <p>(3) The effect of the contract was to give the garnishee a lien upon the cotton bought and in his possession until the money advanced was repaid, and the plaintiff could only claim the excess of the proceeds of the cotton in the hands of the garnishee, over and above the amount necessary to satisfy that lien. There being, according to the facts found by the court, no such excess, it was further held:</p> <p>(4) To carry out the meaning of the contract, the cotton should have been shipped for the east and for the garnishee’s benefit until he was reimbursed, unless a mutual agreement was made to the contrary.</p> <p>(5) So long as the garnishee complied with the spirit of the contract and paid over on drafts the money necessary to huy the cotton, he had a right to dispose of the cotton under the agreement in order to have the purchase money refunded, with his charges for advancing, as well as the expenses paid by him, and premium, on exchange. The debtor could not impair or question this right until all balances due the garnishee were repaid, and the plaintiff was in no better position.</p> <p>(6) The debtor could not, under the contract, have compelled the garnishee to sell the cotton where it was purchased before shipment, though better prices might have been realized, and the plaintiff had no greater right than the garnishee in this respect.</p> <p>(7) The cotton being purchased for account of eastern capitalists, subject to the rights of the garnishee for advancing on drafts, and after being sold in the eastern market for its full value, not realizing more than enough to reimburse the garnishee for his advances, the fact that he did not preserve the weights and grades can not be regarded as evidence of the intention of the garnishee to assist the debtor in a fraud.</p> <p>(8) The payment of attorney’s fees being provided for in the contract, the garnishee could not be charged with the amount of such fees paid for the debtor in this proceeding, it not being shown that anything was due the debtor when they were paid.</p>

<p>1. City Charter—Statute Construed.—Construing the charter of the city of Brenham, granted February 4, 1873, in connection with Articles 629 and 630, of the Revised Statutes, that city had power to enter into a contract by which it might be supplied with water. This power was derived from the charter alone, to be exercised by the city for the public good, and not under any private corporate right or proprietorship.</p> <p>3. Contract—City Ordinance.—An ordinance of the city of Brenham provided “that there is hereby given and granted to the Brenham Water Company the right and privilege, for the term of twenty-five years from the date of adoption of this ordinance, of supplying the city of Brenham and the inhabitants thereof with water for domestic and other uses, and for the extinguishment of fires.’’ Construing this part of the ordinance in connection with other portions of it, and in connection with its fourteenth section, which in effect provided that the ordinance should be a contract between the city and the water company, whenever the company accepted the same in writing, held:</p> <p>(1) That the language employed in the ordinance clearly evinced the purpose to confer on the water company the exclusive right to furnish the city of Brenham and its inhabitants with whatever water might be needed or necessary to he furnished by .such a system, for a period of twenty-five years.</p> <p>(2) The charter of the city conferred on the city the power to furnish the water, and this included the power to contract with some other corporation having power to so contract, or with some other person, to supply the water; the charter of the water company expressly authorized it to contract to supply the water.</p> <p>(3) A municipal corporation may exercise, 1, powers expressly granted by charter; 2, those powers necessarily or fairly implied in or incident to the powers expressly granted; and, 3, powers essential to the declared objects and purposes of the corporation. Any fair, reasonable doubt as to the existence of a power must be resolved by the courts against the corporation.</p> <p>(4) No express power was conferred on the city of Brenham to make a contract giving to the water company the exclusive right to furnish the city and its people with water at a fixed rate for twenty-five years, and no power to make such a contract was necessary or essential to the exercise of powers expressly granted.</p> <p>(5) Powers are conferred on municipal corporations for public purposes, and they can neither be delegated nor bartered away. Such corporations have no power either to cede away or embarrass their legislative nr governmental powers, either through the agency of by-laws or contracts with others, so as to disable them from the performance of their public duties.</p> <p>(6) The contract evidenced by the ordinance above referred to, and by its acceptance by the water company, would have the effect not only to embarrass the city government in the exercise of the power conferred on it, hut to withdraw from it the right to provide water in any other authorized way, for public purposes and for the inhabitants of the city,. which was the sole purpose for which the power to erect, maintain and regulate water works was given to it. This would result from the exclusive right which, from the terms of the ordinance, it intended to confer.</p> <p>(7) The power of a city government to make such a contract as would disable it from controlling in future, as it might deem best, municipal affairs to which it refers, can not be implied from the express delegations of power to contract regarding the particular subject matter.</p> <p>(8) When a contract is made by a city corporation not warranted by its charter power’s, the city council have at all times the right to declare it null and to refuse compliance with it.</p> <p>(9) The city of Brenham had no power to make the contract.</p> <p>3. Oases Reviewed.—Richmond County Gras Light Company v. Middletown, 59 New York, 231; Garrison v. City of Chicago, 7 Bissell, 486; Canal Compariy v. St. Louis, 2 Dillon, 84; City of Indianapolis v. Gas Light Company, 66 Indiana, 400; City of Valparaiso v. Gardner, 7 American and English Corporation Cases, 629, and Water Works Company v. Atlantic City, 6 Atlantic Reporter, 24, reviewed.</p> <p>4. City Elections.—The very object contemplated by the legislature in compelling, by the terms of a city charter, frequent elections of city officers by the people, was to secure to them such control as would make the city government reflect as near as possible at all times the popular will. This object would be defeated if a city council could, even in dealing with an express power, barter away by contract its exercise for a long period of years, so as to deprive their successors of all discretion over the subject matter.</p> <p>5. City Improvements.—In making permanent improvements, authorized by charter, contracts must be sustained, when the improvement remains the property of the city, to be controlled and dealt with as from time to time it may determine.</p> <p>6. Monopoly—City Ordinance.—The Constitution provides: “Perpetuities and monopolies are contrary to the genius of a free government-, and shall never be allowed.” The city of Brenham made a contract by which it gave the exclusive right to sell water to the city for public purposes to a company on specified terms for the period of twenty-five years, with the resulting obligation on the city to buy for public use. It gave also to the company the exclusive right to sell to the inhabitants of the city, for the same period, water for private uses. Held: ■</p> <p>(1) A grant which gives to one person, or to an association of persons, an exclusive right to buy, sell, make, or use a designated thing or commodity, or to pursue a designated employment, creates a monopoly.</p> <p>(2) The right to exercise the exclusive privilege need not extend to all places; the monopoly exists if it operates in and to the hurt of one community. It need not continue indefinitely, so as to amount to a perpetuity; the monopoly exists, if the privilege be exclusive for a period of time.</p> <p>(3) Such an exclusive right as was attempted to be granted by the city of Brenham would cut off future competition in supplying the city with water for a quarter of a century, tend to enhance the price of an article of necessity, and would constitute, within the meaning of the Constitution, a monopoly.</p> <p>(4) Though the use of a street to lay down water mains may not be a matter of common right, yet when it becomes a means whereby an exclusive right is claimed to sell water and to compel the city and its inhabitants to buy, it can give no sanction to a contract whereby the use to be made of such mains will result in a monopoly.</p> <p>(5) A franchise to supply a city with water will ordinarily involve the-right to use its streets, but from its very nature it is subject at all times to control.</p> <p>7. Cases Reviewed.—Gas Light Company v. City Gas Company, 25 Connecticut, 18; State v. Cincinnati Gas Light Company, 18 Ohio, 293; City of Memphis v. The Memphis Water Company, 5 Heiskel, 525; New Orleans Gas Company v. Louisiana Light Company, 115 U. S., 650;- and Crescent City Gas Light Company v. New Orleans Gas Light Company, 27 Louisiana Annual, 138-147, reviewed.</p> <p>8. Monopoly—Water Companies.—An exclusive right in a municipal corporation to operate water works is distinguished from such an exclusive right held by a private corporation, in this, that in the former case the right is exercised by and for the people, not for profit but for the public-welfare, and the correction of its oppressions and abuses in its management is in their hands; while, in the latter case, the right is exercised for private gain, with every incentive to oppress those who, under such a contract as was made with the city of Brenham, would be powerless to-relieve themselves if the contract should be held valid.</p>

<p>1. Practice—Examination of Witness.—Questions to one intro Sneed as an expert propounded by the adversary, and which go to his credibility, are not proper on a cross examination of the witness when being examined before the presiding judge as to his qualifications as an expert.</p> <p>3. Evidence.—It is not error to charge a jury on a question involving the genuineness of a signature to a note, that it may be established by a wit ness capable of testifying to the genuiness of the disputed signature, that the signature to the note is genuine. Such a charge can only be construed to mean that when no one saw the note signed, the signature may be established by the opinion of a witness on the question.</p> <p>3- Charge of Court.—When there is an absolute absence of all direct tes- \ tiinony regarding a fact pertinent to the issue, and when the absence of such testimony is the predicate for the introduction of evidence of the opinion of experts as to such fact, it is not error to announce to the jury in the charge that there is no direct evidence of the fact. Such a charge is not upon the weight of evidence, but is proper when connected with a charge directing the j ury’s attention to the secondary evidence, which they might look to in determining the issue.</p> <p>4. Comparison of Hand Writing.—A paper, not already in evidence and having no connection with the issue to be tried, can not be introduced to establish a signature in order that it may be compared with a signature the genuiness of which is controverted. To permit such a practice is to raise a collateral issue as to the genuineness of the signature itself, which is to be the basis of comparison. If, however, a paper bearing the admitted signature of the party is already in evidence, it may be made the standard of comparison, in testing the genuineness of another signature.</p> <p>5. Construction.—The construction of the language used in a plea of non est faotum, is for the court, and not for the jury.</p> <p>6. Practice—Evidence.—Gulf, Colorado & Santa Pe Railway Company v. Levy, 59 Texas, 543, and Tucker v. Hamlin, 60 Texas, 171, reviewed, and the opinion given, that the practice of admitting improper evidence and then excluding it, is wrong, but whether such a practice will require a reversal, must depend on the facts of each particular case. If it occurs in"a case where the judgment is rendered, on conflicting evidence, and a contrary judgment would have been sustained on appeal, and the evidence withdrawn was calculated to secure the verdict and judgment rendered, the judgment will be reversed if it shall appear to be against a slight preponderence of legal evidence, or if the damages awarded be so large as to raise a doubt of the fairness of the jury. .</p> <p>7. Practice—Evidence.—It is the duty of counsel who believes that evidence improperly admitted and then excluded, may tend to prejudice the case of his client, to ask a specific charge,' instructing the jury to disregard the evidence thus excluded. Failing to do this, the presumption will obtain that they had mo apprehension that it would affect the verdict.</p> <p>8. Evidence.—In an action of debt on note, it is competent for the defendant who denies the execution of the note under oath, to introduce the record of a former judgment in his favor against plaintiff, rendered in a proceeding in which the debt sued on could have been pleaded as an offset, and was not.</p> <p>9. Charge of Court.—The remedy for an incomplete instruction, when there is no objection to so much as is given, is to ask a charge to cover the matter omitted; failing to ask this, there is no remedy on appeal.</p> <p>10. Same.—An erroneous charge which from its very nature, could not have operated to the prejudice of the party complaining, will not authorize a reversal of a judgment.</p>

Tried below before the Hon. Wm. H. Stewart. Henry Rosenberg, James M. Brown and Robert A. Brown* plaintiffs below, sued out the writ of injunction restaining the collector of taxes, R. Weekes, from selling certain real estate belonging to plaintiffs, which the collector had advertised to be sold at public sale for the purpose of collecting money advertised to be due the State of Texas as taxes for the years 1877, 1878, 1879, 1880 and 1881 upon shares of stock owned by…

Tried below before the Hon. G. H. Noonan. On November 6, 1883, Nathan Underwood brought this suit in the district court of Bexar county, Texas, against the International & Great Northern Railroad Company, for damages for personal injuries alleged to have been sustained by an accident or colliding of two of appellant’s trains, at the station of Corbin, upon appellant’s road, about twenty miles northward of the city of San Antonio, Texas.

<p>Appeal from Bexar. Tried below before the Hon. G. H. Hoonan.</p>

<p>Appeal from Dallas. Tried below before the Hon. George H". Aldridge.</p>

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

<p>Appeal from Cooke. Tried below before the Hon. 3T. E. Finer.</p>

<p>Practice—Statement of Pacts.—In the absence of a statement of facts, no reversal can be made of a judgment rendered in the cause by the district court on account of the fact that charges were given to the jury which, as abstract propositions, were erroneous. Unless they operated to the appellant’s injury in the particular case they would be immaterial, and whether they did or not could not be determined when no statement of facts was made out.</p>

<p>1. Promissory Note— Indorsers.—When according to the terms of a promissory note, payable to the order of the maker thereof, and which was indorsed by the payee and by other names which appeared after his on the note, a licensed attorney was authorized to appear and confess judgment against the maker in ease of non payment, and be entitled to ten per cent additional as attorney fees for so doing, held: The legal presumption is that no authority was given to confess judgment against any one but the maker—that the indorsers did not sign before delivery. Their names appearing after the payee, it must be presumed that the indorsers signed after the payee had indorsed, and parol evidence can not be admitted to vary the plain terms of such a contract to subject others not named to so extraordinary a remedy.</p> <p>2. Cases Followed.—Rickey v. Dameron, 48 Missouri, 61; Clapp v. Rice, 13 G-ray, 403, and Blatehford v. Milliken, 35 Illinois, 434, followed.</p> <p>3. Indorsers.—Though the indorser, by his indorsement, in effect agreed that the principal of the debt, with interest and attorney’s fees should be paid according to the terms of the note, yet this was subject to the indorser’s right to notice of protest for non payment, or that suit should be brought within the prescribed time. To hold otherwise would be to ignore the provisions of the statute for the protection of indorsers.</p>

<p>1. Limitation.—In order that the filing of a suit to recover land should operate to stop the running of the statute of limitation in favor of the defendant, it is not necessary that the petition should charge a trespass or adverse occupancy by defendant. In a suit for partition against one defendant whose interest is admitted, and with whom another is joined as defendant who is charged with claiming an unknown interest, limitation is stopped in favor of the one thus joined from the date of filing the petition, when it is alleged in the petition that the plaintiff and the defendant, whose interest is admitted, own the entire tract of land.</p> <p>2. Same.—The placing of rails on land, no further act being shown toward exclusive possession, is not sufficient to start limitation. The assertion of an adverse and exclusive right to the land, no matter how long continued, can not avail unless accompanied with exclusive possession.</p> <p>2. Same.—An actual enclosure of land in possession is not in all eases necessary to meet the requirements of exclusive possession under the statutes of limitation. The character, situation and adaptability of the land for specific uses, in connection with the use made of it by one claiming limitation, may be looked to in determining whether the occupation is exclusive.</p> <p>3. Same.—The adverse claim may be manifested by facts which will not amount to an exclusive possession; while an exclusive possession may be such as to be sufficient evidence of an adverse claim.</p> <p>A Same.—If, in addition to placing material around land to enclose it, the claimant should begin to construct a fence, and while doing so should, by other means than the fence, secure to himself, and actually have exclusive possession and occupancy, it would seem that limitation would run from the time the exclusive occupancy began.</p> <p>5. Same.—When the acts done on land by a claimant thereof are such as to give unequivocal notice to all of the adverse claim, and this is accompanied by actual exclusive possession, then limitation will run in favor of such claimant from the time the exclusive occupancy began, whether the land be enclosed or not.</p> <p>6. New Trial.—The fact that a party seeking a new trial did not understand a witness who testified in plain language, and that if he had properly understood him evidence would have been introduced material to the issue, and which would be produced on another trial to correct his evidence, will not avail on motion for new trial.</p> <p>7. Same.—Neither will the fact that a witness who was not examined was so fatigued by her journey in attending court that she could not testify afford ground for new trial, no matter how material her testimony, when no postponement of the trial was asked, nor any of the means resorted [to provided by statute for securing her evidence.</p>

<p>1. Attachment—Levy.—While, as a general principle, goods seized under attachment by one officer can not be attached by another officer, the fact that a deputy sheriff is also a constable will not affect the levy of an attachment made by him as deputy sheriff upon goods already in the sheriff’s hands under former attachment. The possession of the deputy is the possession of the sheriff; his acts are the acts of his principal, and for their proper performance the principal is responsible.</p> <p>2. Leyv—Attachment.—One who has seized under attachment two different stocks of goods, may be compelled by a subsequent attaching creditor, whose writ was levied upon but one of the stocks, to exhaust first his remedy upon the goods on which he had secured an exclusive lien; nor is this right affected by any subsequent levy made by a third party.</p> <p>3. Statute Oonstbued.—Article 4520, Revised Statutes, construed.</p> <p>4. Oases Reviewed.—Vinton v. Bradford, 13 Massachusetts, 116, and Watson v. Todd, 5 Massachusetts, 273, reviewed.</p>

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

<p>Appeal from Falls. Tried below before the Hon. B. W. Eimes.</p>

<p>Appeal from Montague. Tried below before the Hon. F. E. Finer.</p>

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

Tried below before the Hon. Thomas M. Paschal. The facts are stated in the opinion, except the language referred to as improper in pleading, which is as follows: “Plaintiff, therefore, in addition to the injuries hereinbefore pleaded, says that defendant is a wealthy and powerful corporation, composed of enormous land holders of Texas lands, and the largest railroad owners in the world, and says that they should be so castigated for indulgence of malice to an individual that…

<p>1. Administrator’s Deed—Lapse of Time—Presumption.—The records of a court, if they be in existence, or properly certified copies thereof, are the best and generally the only competent evidence of their contents. But when twenty-five years after the destruction of the probate records and papers pertaining to the administration of the estate, and after the death of the administrator, in a suit by heirs to recover land claimed to have been regularly sold under order of court by the administrator the production of the defendants’ deed from the administrator made twenty-five years before, containing recitals, which, if true, showed the regularity of the sale, and its confirmation by the court, in connection with evidence that a subsequent administrator returned a purchase money note referred to in the deed on his inventory, and that the note was paid to him, it will be presumed that the court and its officers did their duty, and the validity of the sale was sustained.</p> <p>2. Partition—Statute Construed.—Construing Article 1348, Paschal’s Digest, held: That the direction contained in the statute as to the time when the estate of a decedent could be partitioned was intended solely for the protection of creditors, and if such an order was prematurely made by a court that had acquired jurisdiction, none but creditors could complain.</p>

<p>1. Nuncupative Will.—Under the statutes as they existed before the present Revised Statutes, real estate could not be devised by nuncupative ■will. The law merely provided as to the time, place and manner in which' such a will could be made without saying what property could be disposed of thereby.</p> <p>2. Same.—Article 4862, Revised Statutes, provides that “any person who is competent to make a will may dispose of Msproperty by nuncupative will made under conditions and limitations hereafter prescribed,” none of which make any discrimination between real and personal estate, held:</p> <p>(1) The statutes, as they aforetime were, and now are, taken together and construed literally and without reference to the intentions of the law makers, gave a special power to devise land by written will, and a general power to devise all property by will, either written or nuncupative.</p> <p>(2) When a new statute substantially the same in its provisions as a former one is enacted it must be considered as having been adopted with the judicial construction which had been given to the former statute.</p> <p>(8) With reference to the statute of wills, this rule, if construed, is not needed, for the ¡report rof the commissioners who revised the statutes, and which was made by the legislature in effect a part of the new law, expressly declared that they had only rearranged the old statutes of wills, and had not felt authorized to change a law that had so long been in force and whose provisions had so often been the subject of judicial interpretation.</p> <p>(4) The provisions of the Revised Statutes, so far as they are substantially the same as the laws in force at the time when the Revised Statutes went into effect or of the common laws in force at that time, must be construed as a continuation thereof, and not as new enactments of the same.</p> <p>(5) A devise of land even by written will was not permitted by the common law. The English statutes changed this by allowing devises by written will, but did not allow the devise of real estate by words spoken in last sickness.</p> <p>(6) The laws of Texas in force when the Revised Statutes were adopted went no further on this subject than did the English law.</p> <p>(7) The case of Lewis v. Aylott, 45 Texas, 190, which is approved, decided that under the Statutes of Texas, as they existed previous to the Revised Statutes, real estate could not be devised by nuncupative will, and such is still the construction given to the Revised Statutes.</p>

Tried below before the Hon. B. F. Williams. Suit by Wichita county against Thomas 0.

<p>Appeal from Caldwell. Tried below before the Hon. L. W. Moore.</p>

<p>Jurisdiction.—Section 8, Article 5, of the Constitution, confers on the district court jurisdiction of ail suits when the matter in controversy shall be valued at or amount to five hundred dollars, exclusive of interest. Construing this section in connection with section 16 of the same Article, which provides that the county courts shall have exclusive original jurisdiction in all civil cases when the matter in controversy shall exceed two hundred dollars and not exceed five hundred dollars, exclusive of interest, and concurrent jurisdiction with the district courts when the matter in controversy shall exceed five hundred and not exceed , one thousand dollars, exclusive of interest, held:</p> <p>(1) There is an irreconcilable conflict between the two provisions— since the district court can not have jurisdiction when the amount involved is precisely five hundred dollars, and the county court exclusive jurisdiction for the same amount.</p> <p>(2) But the provision in section 16 is more comprehensive as well as more specific than that in section 8, and, under a canon of construction, should be regarded as the more accurate expression of the law makers’ intent.</p> <p>(3) In construing repugnant provisions of a Constitution, it would seem that the last provision should prevail, but as applied to the organic law, this rule should be acted on only as a last resort.</p> <p>(4) The district court has no jurisdiction of a suit to recover money of the exact amount of five hundred dollars.</p>

<p>1. Bona Fide Purchaser.—One who purchases at a voluntary sale from his debtor, and pays no money, but credits the amount of the consideration on a pre existing debt, is not a bona fide purchaser for value—following former adjudications.</p> <p>2. Same.—The reason of this rule is, that the purchaser advances nothing on the faith of his purchase, and loses nothing if the apparent title of his vendor should prove worthless. Hence, an agreement to discharge a debt to a third party for which the purchaser is already liable as guarantor, or to assume the payment of a debt to a third party without the knowledge or assent of such third party, or to pay off a mortgage already existing on other property of the purchaser which he would be compelled to pay off to protect his title, is within the reason of the rule.</p> <p>3. Cases Reviewed.—Brothers v. Mundell, 60 Texas, 240, and Grace v, Wade, 45 Texas, 527, reviewed.</p> <p>4. Chattel Mortgages.—By the word creditors, as used in the Act of February 5, 1840, which protected creditors and purchasers without notice against prior unrecorded conveyances and mortgages of property, was meant creditors who had acquired some character of lien on the property. Such is still the law. Whilst the statute as to chattel mortgages differs from the Act of 1840, in that it avoids these instruments as against creditors, whether with or without notice, it makes no change as to the character of the debt to be thus protected.</p> <p>6. Statutes Construed.—The language of the Act of February 5, 1840, and the Act regarding chattel mortgages being the same, and the latter act having been passed since the decision in Grace v. Wade, relating to the same subject matter, the word creditors as it occurs in the latter act must be regarded as having the same meaning that was applied to it in construing the former act.</p> <p>6. Chattel Mortgage Act.—One who has not acquired a lien by process of law, on chattels claimed under a prior unrecorded mortgage, is not a creditor within the meaning of the statute regarding chattel mortgages, and is not entitled to protection as such.</p> <p>7. Admissions.—An admission of a grantor, to affect his grantee, must be made prior to the grant.</p> <p>8. Same.—In a suit involving a question of priority of liens, in which the respective claimants are co-defendants, the admissions of one as to a question of indebtedness between themselves, is competent, but not when it is introduced to affect the claim of the plaintiff who was not present, and whose rights are sought to be affected thereby.</p>

<p>1. Equity—Judgment.—A court of equity will vacate a judgment or decree obtained by false testimony if it be shown that the false testimony was obtained through the procurement or connivance of the party to be benefited by it. The district courts of Texas exercising equity powers, will, by re-examining a case on its merits, grant relief when it is made to appear that a judgment was obtained by fraud, mistake or accident, and where there has been no want of diligence on the part of the person against whom the judgment was rendered.</p> <p>2. Cases Approved.—Laith v. McDonald, 7 Kansas, 254;, Bell v. Walnitzch, 39 Texas, 194; Burgess v. Levengood, 2 Jones's Equity, 460, and Peagram v. King, 2 Hawks, 297, approved.</p> <p>3. Divorce—Judgment—Equity,—Belief may be obtained against a judgment in a divorce case, when procured by the fraud of one of the parties, when the complaining party was prevented by such fraud from presenting the case fully at the time the decree was entered, if there was no want of diligence in the complainant; and such relief may be obtained in a new suit brought to correct the wrong, though begun after the close of the term at which the decree was rendered. The doctrine announced in Green v. Green, 2 Gray, 361, in regard to the exercise of such revisory powers in a suit brought after the close of the term at which the decree was entered, disapproved or qualified.</p> <p>4 Equity—Review.—The discovery after the term of a material fact, which being revealed would have resulted in a different judgment, and of which the injured party was unavoidably ignorant during the progress of the cause, and which such party could not know by reasonable diligence, constitutes a basis for equitable relief.</p> <p>6. Husband and Wife—Divorce—Review.—The husband being, under the laws of Texas, the custodian of the community interest of himself and wife, and invested with the power of its disposition, a fraudulent concealment of its extent and value from his wife, followed by his perjury as to that value in a proceeding against the wife for divorce, will, on its discovery by the wife, entitle her to a review of the decree settling their property interests, there being no want of diligence to discover the facts on her part.</p>

<p>1. Practice.—When on an issue made by the pleadings there is no evidence to justify its consideration, it is the duty of the judge to withdraw it ' ‘from the jury.</p> <p>3. Charge oe Court.—A charge of the court which, though erroneous, could not, in view of the facts in evidence, have operated to the prejudice of appellants, will not afford a cause for reversing the judgment.</p> <p>3. Same.—The appellee was the only witness examined who had a pecuniary interest in a suit on a trial of which the following charge was asked: “In determining the credibility of the witnesses and the weight you should give their evidence, you are authorized to consider the interest which such witnesses have in the matter in controversy, and their demeanor and manner of testifying upon the stand.” Held, the charge was properly refused. To give it would have been to have virtually instructed the jury to consider the witness’s interest in determining whether they would believe his testimony, and would have been a charge on the weight of evidence.</p> <p>4. Presumption.—The law never presumes that a transfer of property was made with fraudulent intent when made to one to whom the vendor is indebted. Such a presumption has only been indulged "as applicable to voluntary transfers or gifts; never when a valuable and adequate consideration has been paid by the purchaser.</p> <p>6. Fraud—Charge of Court.—In a suit for damages by the claimant of goods against an attaching creditor of the claimant’s vendor, the defendant denied that debtor in attachment had ever transferred the goods to the claimant, and averred that if he had, it was done fraudulently. The evidence of the transfer was clear and uncontradicted. Held:</p> <p>(1) The exclusion from the jury by the charge of the issue made on the transfer was proper.</p> <p>(3) The fact that claimant may have obtained possesion of the goods by fraudulent means was, as against an attaching creditor, immaterial, if his right to their possession existed by virtue of a legal purchase.</p> <p>6. Damages—Interest.—In a suit to recover damages for the wrongful seizure and conversion of plaintiff’s goods, under attachment, the measure of actual damages is the value of the goods, with eight per cent interest by way of damages from the date of their unlawful seizure.</p>

Tried below before the Hon. B. W. Rimes. S. A. Owens brought this suit to recover damages for the destruction by overflow of appellant’s pasture, which embraced about two hundred acres of land.

<p>1. Measure oe Damages—Evidence.—In a suit to recover damages for the negligent destruction of property “by the defendant, the measure of damages is the highest market value of property at the time of its destruction, and it is competent to prove its value at that time for any use to which it might have been applied.</p> <p>2. Assignment of Error.—An assignment of error to the admission of evidence must rest in the Supreme Court upon the same objection taken to the evidence before the trial court.</p> <p>3. Evidence.—Evidence of the market value of an article is not objectionable because it is in some measure the opinion of a witness.</p> <p>4. Practice—Evidence.—That the answer to a question, proper in itself, is shown to be an opinion of a witness not an expert as to the matter inquired about, is no ground for ruling out the question before it is answered. The proper practice is to move the exclusion of the answer if iis objectionable character is not developed until across examination.</p> <p>6. Measure of Damages.—In a suit for damages caused by permanent injury to the land of another, the true measure of damages is the difference between the market value of the land immediately before the act complained of and its value immediately afterward.</p> <p>6. Negligence.—A railway company is liable in damages for injury to the property of another caused by sparks of fire escaping from its engines through its negligence; or which sparks of fire ignite the grass left on the right of way of the road, and thus burn up adjoining property. It is negligence in a railway to leave grass and other combustible material liable to be ignited by sparks from an engine on its right of way.</p> <p>7. Cases Approved.—Troxler v. Railway Company, 74 North Carolina, 377;' Railroad Company v. Chase, 11 Kansas, 47, and Flynn v. Railroad Company, 40 California, 14, approved.</p>

Tried below before the Hon. L. D. Bradley. This suit by appellant for three hundred dollars, which originated before a justice of the peace, was taken by appeal to the county court. While pending there the counter claim exceeding the jurisdiction of a justice’s court was first presented by defendant. Afterward, by reason of the disqualification of the county judge, the cause was transferred to the district court.

<p>1. Corporation.—A corporation organized for public purposes can not, except with the consent of the political authority which created it, render itself incapable of performing its corporate duties to the public, whether this be attempted by contract of lease, sale, or otherwise. Any such contract, made without legislative sanction, is void.</p> <p>2. Railway Companies.—Under the statute authorizing a railway company to borrow money to construct, complete, improve or operate its road, and to give mortgages therefor, a purchaser may acquire title to the road by sale made under a power conferred in such a mortgage, or title may be acquired by purchase under judicial sale to pay such indebtedness. After such a sale the corporate existence continues, and the purchaser becomes in effect a stock holder of the corporation.</p> <p>3. Same.—A railway company chartered under general laws can not purchase the railway of another company; it results that, since the power to make such a purchase could not exist under an original charter of incorporation, it could not be obtained through an amended charter, in the absence of legislative permission.</p> <p>4. Same.—Though the statute requires articles of incorporation to be passed on by the attorney general before they can be filed with the secretary of state, and the incorporation completed, yet that officer can not judicially determine either the purposes for which a company may be incorporated or what powers it may acquire by the act of incorporation; the law, to-be construed by the judicial department, must determine both.</p> <p>5. Corporate Power.—The rule that a corporation has only power to do such acts as its charter, considered in relation to the general law, authorizes it to do, applies to every class of corporations.</p> <p>6. Railway Company.—The Gulf, Colorado & Santa Fe Railway Company obtained an amended charter, under general law, which provided, among other things, that it might purchase the Central & Montgomery Railroad, and own, operate and equip the same. Certain stock holders of the Gulf, Colorado & Santa Fe Railway Company purchased all the bonds and stocks of the Central & Montgomery Railroad Company, and, after destroying the bonds, attempted to sell the latter road to the Gulf, Colorado & Santa Fe Railway Company. Possession of the road bed, etc., was taken under the attempted sale, and the road operated and controlled as part of the Gulf, Colorado & Santa Fe Railway Company. Held:</p> <p>(1) That no title to the road passed by the purchase.</p> <p>(2) The Central & Montgomery Railroad Company continued as an existing corporation, and those holding its stock might complete a reorganization.</p> <p>(3) The Central & Montgomery Railroad Company and its property was liable for any debts incurred in its management, without regard to whose management it was subjected to.</p> <p>7. Judgment—Execution.—The issuance of an execution first to a county other than that in which judgment is rendered is an irregularity of which no one, not having an interest in the property levied upon, can complain.</p>