Volume 68 — Texas Reports

Tried below before the Hon. James Masterson. It may be stated, in addition to facts in the opinion, that Schedule A, referred to therein, gave a list of preferred debts aggregating twelve thousand three hundred and eleven dollars and twenty-six cents, and schedule B, attached to the deed of assignment, gave a list of the debts not preferred, amounting to one thousand five hundred dollars. The debts mentioned in these two exhibits were all the debts owing by Dunn.

<p>1. Constitution Construed—Taxes—City Bonds.—Construing section 6, of article 11 of the State Constitution, which provides that taxes levied by a municipal corporation to pay an indebtedness theretofore • existing “may be paid in the coupons, bonds or other indebtedness, for the payment of which such tax was levied;” held, that unless the tax payer avails himself of his constitutional privilege to pay such taxes in such coupons, by tendering payment before the institution of suit against him to enforce collection, a tender after suit is unavailing, and the corporation is entitled to a moneyed judgment.</p>

Tried below before the Hon. William H. Burkhart. The will paper writing, which was produced as the will of the deceased Hugh Kelly, was as follows: “In the name of God, amen! “I, Hugh Kelly, being of sound mind and desiring to settle my estate with which God has blessed me, while I have capacity so to do— “ First, I desire that my funeral expenses and all my just debts be paid by my executor, hereinafter named. “Secondly, I appoint W. J. Settegast the sole executor of this…

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

<p>1. Quo Warranto—District Attorney.—A proceeding by quo warranto may be filed by a district attorney pro tem. appointed during a term of court by the district judge on account of the non attendance of the district attorney. The authority of such an appointee to represent the State, after he has been recognized as a de facto officer, can not be questioned in a collateral proceeding.</p> <p>3. Pleading.—In a proceeding by quo warranto, to recover an office to which the relator claims to have been elected, an allegation that be Was a citizen of the county and entitled to the office, is, on general demurrer, a sufficient averment of his qualification to hold the office.</p> <p>3. Same.—In such a proceeding a statement in the information that the relator received a majority of the ballots of the qualified voters of the county, is sufficient, without setting forth the facts which constituted their qualifications. A more definite allegation would, however, be required, if the relator should claim that ballots had not been counted, on the ground that the persons casting them lacked some of the qualifications named in the statute, when in fact they possessed them all, and that thereby the relator lost his election.</p> <p>4. Election Laws.—The object of every popular election for office is to ascertain the will of the people as to who shall serve them. The laws enacted to secure this object, in so far as they require the election to be by ballot, the day of the election, and the places within designated precincts where the election shall be held, are mandatory. Other provisions prescribing the conduct of and return of an election are directory, and mere irregularities in their observance, which have not prevented the electors from exercising freely and fairly their right of suffrage, and from having their votes properly estimated for the candidates of their choice, must be treated as informalities which do not vitiate the election; provided, such' irregularities are not of a character which the law declares shall vitiaté an election.</p> <p>5. Same.—When irregularities occur in the conduct of the officers holding the election, it must be made to appear by those claiming benefit from the election, that such irregular conduct has not prevented an honest and fair election.</p> <p>6. Same.—Election returns can not be counted if the irregular way in which they have been transmitted has resulted in their being changed since they were made out by the officer; and ballots which have been tampered with by ±eason of a failure to secure and properly forward the ballot box can not be counted. If, however, the irregularities committed by the officer have in no way changed the result of the election, or its fair and honest character, the returns or ballots, as the ease may require, will be corrected as readily as though the directory provisions of the law had been rigidly observed.</p>

<p>1. Limitation—Municipal Corporations.—The general statutes of limitation do not exempt municipal, corporations from their operation, and the courts have no power to do so upon the mere ground of expediency and to avoid a seeming hardship.</p> <p>S. Cases Cited and Reviewed.—Galveston v. Menard, 23 Texas, 408; Houston & Texas Central Railway Company v. Travis County, 4 Texas Law Review, 22; City of Wheeling v. Campbell, 12 West Virginia, 44; Evans v. Erie County, 66 Pennsylvania Stale, 228; School Directors v. Georges, 50 Missouri, 194, cited, and City of Jefferson v. Whipple, 71 Missouri, 521, reviewed.</p> <p>3. Taxation—Purchaser—Statutes Construed.—In construing the sixteenth section of the act of July 4,1879 (General Laws, special session, 1879, page 15), which denies to any tax payer the right to plead in any court, or in any manner to rely upon any statute of limitation by way of defense against the payment of any taxes due from him or her, either to the State or to any county, city or town; held,</p> <p>(1) One who purchases property encumbered with a lien for unpaid taxes must be deemed as to such taxes a delinquent tax payer, and can not avail himself of a defense which his vendor could not plead had he continued to be the owner.</p> <p>(2) The statute contains nothing to indicate the legislative intent to give it a retroactive effect, and is operative only against those delinquent tax payers in whose favor limitation had not run before its passage.</p> <p>(3) Rights based on contract are as fully protected by section 16, article 1, of the Constitution of Texas, as they are by section 10, article 1, of the Constitution of the United States. Under the former, no citizen’s rights of any character can be affected by a retroactive law. The latter, it has been held, does not prohibit the passage of a retroactive law, even though such a law may divest antecedent vested rights of property, unless such rights be founded pn contract.</p> <p>(4) That clause of the State Constitution which provides that no retroactive law shall be made, was intended to impose a broader restriction on legislative power than could exist in its absence. It protects the citizen in every legal right existing before the enactment of any law designed to retroact and deprive him of it; and this whether the right be strictly speaking a right to property or not.</p> <p>(5) A right in a legal sense exists when in consequence of given facts-the law declares that one person is entitled to enforce against another a claim, or to resist the enforcement of a claim urged by another.</p> <p>(6) When by virtue of law a defendant may plead and show an existing state of facts which would defeat the plaintiff’s right to recover, then a protecting right against the plaintiff’s demand exists; such a right is fixed and vested, and in view of the constitutional provision against retroactive law, can not be divested by legislation. The same constitutional provision protects a plaintiff in the enforcement of every right, recognized and fixed by law, against retroactive legislation.</p> <p>(7) Prior to the act of July 4, 1879 (General Laws, special session 1879, page 15), limitation would run against the right of a municipal government to enforce the collection of taxes, and if the bar was complete in favor of the delinquent tax payer before the adoption of that act, the right to rely on limitation as a defense was an existing right, which could not be defeated by any retroactive force of that act.</p>

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

<p>1 Jurisdiction—Toll Bridge—Statutes Construed.—A toll bridge company, incorporated under the provisions of section 79 of the act of April 8, 1874, does not acquire, under its charter, such an exclusive right to maintain a bridge as to take away the right of the county in which it is situate to establish a free bridge within three miles above or below it.</p> <p>2. Construing Charters op Incorporation.—Any doubt in regard to the true construction of a legislative act authorizing or granting a charter under which special privileges are claimed, should be resolved in favor of the State and the public.</p> <p>3. Injunction—Toll Bridge—Jurisdiction—Contract.—A county commissioners court granted to an incorporated toll bridge company whose bridge was already constructed, the use of the site on which the bridge stood for the period of ten ye'ars. In a proceeding by injunction to restrain the county from opening for travel a free bridge within three miles of the toll bridge, held, without considering what would have been plaintiff’s rights had the bridge been constructed after the order granting the privilege was obtained, the order was not a contract, since the bridge was built when the order was entered, and the order subsequently made, authorizing a free bridge within three miles of the site, did not impair the obligation of a contract.</p>

<p>Appeal from Gonzales. Tried below before the Hon. George McCormick.</p> <p>On the twenty-seventh day of November, 1869, Mrs. Elizabeth Smith, having five sons and two daughters, all married, conveyed land containing nine hundred and thirty-eight acres, on the Guadalupe river, in Gonzales county, which she had received from her father, to her grandson, D. T. Smith, reciting a consideration of thirty-seven hundred and twenty dollars. The deed was one of general warranty, reciting the payment of the purchase money, and was duly acknowledged and recorded.</p> <p>On the ninth day of March, 1.870, D. T. Smith conveyed to his uncle, W. W. Smith, four hundred and ten acres of this land, reciting a consideration of sixteen hundred and forty dollars. On the same day he conveyed to his uncles, David and Harbert Smith, four hundred and fifteen acres) reciting a consideration of sixteen hundred and forty dollars, and on the seventeenth day of December, 1877, he conveyed to his' father, James Smith, the remaining one hundred and five acres of the nine hundred and thirty acre tract, reciting a consideration of five hundred and fifty dollars—all by warranty deeds, which were duly acknowledged and placed on record.</p> <p>On the seventh day of January, A. D. 1881, Mrs. Elizabeth Smith died intestate.</p> <p>On the twenty-ninth day of November, 1883, Mrs. M. J. McElyea and Mrs. Elizabeth Murphy, who were daughters of Mrs. Elizabeth Smith, filed this suit against D. T. Smith, James Smith, W. W. Smith, Harbert Smith and David Smith, to cancel the deeds from D. T. Smith to W. W., David, Harbert and James Smith, alleging fraud and a weak mind on the part of their mother when the deed was executed. On the second day of April, 1885, plaintiffs filed their first amended original petition, setting forth that both plaintiffs and defendants, except D. T. Smith (who was a grandson of Elizabeth Smith, deceased), were the children and constituted all her heirs at law; that Elizabeth Smith died about the seventh day of January, 1881, intestate; that on the twenty-seventh day of November, A. D. 1869, she was persuaded to execute and" deliver to defendant D. T. Smith, in secret trust for plaintiffs M. J. McElyea and Elizabeth Murphy ¡ her daughters, and James Smith, David Smith and W. W. Smith, a deed to said nine hundred and thirty acres of land, and that D. T. Smith, disregarding the trust, and having entered into a conspiracy with the defendants to wrong, cheat and defraud plaintiffs out of their just claim and title to said land, did on the ninth day of March, A. D. 1870, execute and deliver to W. W. Smith, Harbert Smith, David Smith and James Smith the deeds above- referred to. Plaintiffs averred that no consideration was ever paid by D. T. Smith to Elizabeth Smith, nor was any consideration paid by W. W. Smith, David Smith, Harbert Smith and James Smith to D. T. Smith, for any portion of the land; that the land was at the time of sale, and is still, worth ten thousand dollars; that the deed was made by Elizabeth Smith to D. T. Smith in trust for all her children; that Elizabeth Smith was, at the time she made said deed to D. T. Smitl), aged and infirm of body and weak of mind, and that defendants overreached her, and that she never was apprised of their real intentions to defraud plaintiffs; but defendants, up to the time of the death of Elizabeth Smith, always by their acts and words led her to believe that they would carry out the purposes for which the deed by her to D. T. Smith was made, and that plaintiffs in this suit would, after her .decease, be allowed an equal portion of said land with the defendants. Plaintiffs further alleged that their portion of the nine hundred and thirty acres of land, as beneficiaries in the deed to D. T. Smith, was one- hundred and sixteen and one-third acres each.</p> <p>Plaintiffs, answering defendants’ pleas of three, five and ten years limitation, averred that they could not be maintained in this suit because of the coverture of Mrs. McElyea and Mrs. Murphy at the time said deed was made to D. T. Smith and from D. T. Smith to their brothers; that Elizabeth Murphy was then, and was still, the lawful wife of James Murphy, and M, J. Mc-Elyea was at said time the lawful wife of W. P. McElyea, and continued to live with him as such until his death, on the twenty-sixth day of June, 1871. Plaintiffs further denied that defendants had peaceable and adverse possession of the land, and claimed that the same had been held in common by plaintiffs and defendants since the date of the deeds. They denied that they received any advancements, and prayed for judgment, declaring the deeds from D. T. Smith to James Smith, Harbert Smith, David Smith and W. W. Smith null and void; asked that they be canceled, and that plaintiffs M. J. McElyea and Elizabeth Murphy be decreed title each to one hundred and sixteen and .three-fourths acres of the land and for costs of suit.</p> <p>Defendants demurred to plaintiffs’ first amended original petition, and specially excepted, viz:</p> <p>“1. That it appeared from said petition that this is an equitable proceeding to set aside and declare void certain deeds made in November, 1869, and in March, 1870, and more than ten years have elapsed since the alleged execution and delivery of said deeds, and because it appears that said plaintiffs’ claim is a stale demand and can not now be enforced.</p> <p>“2. Because it appears from said petition that certain frauds were alleged to have been perpetrated on the said Mrs. Elizabeth Smith, whereby said deeds were procured to be executed; yet if such was the case it appears from said petition that more than two years, and more than four years have elapsed since the perpetration and discovery of the fraud before the commencement of this suit.</p> <p>“3. That the bill for relief shows no equitable or legal rights or interest in the complainants to the property described in the bill, for it appears from the bill that the fee simple title to the land was in Mrs. Elizabeth Smith, and there was no contingent or reversionary interest whatever in the complainants, and that Mrs. Smith had perfect right to convey the same, with or without any valuable consideration, and that she lived for more than eleven years after .the execution of the deed, and never took any steps, legal or otherwise, to annul the deed.”</p> <p>Defendants denied all the allegations of the petition and pleaded not guilty; they alleged that they had been in peaceable adverse possession of the land claimed by them for more than three, five and ten years next before the commencement of the suit, and they pleaded in form the statutes of three, five and ten years as a bar to the right of the plaintiffs to recover. Defendants further pleaded that if plaintiffs ever had any claim or right to recover the land in suit, that the same had become a stale demand. They denied all the allegations of fraud and of secret trusts, and that there was any undue influence or overreaching practiced upon Elizabeth Smith; • they denied that Elizabeth Smith was of weak and feeble mind at the date of the execution of the deed, but alleged .that she was possessed of her full mental vigor arid capacity to know and understand what she was doing.</p> <p>Defendants alleged that it was fully understood and intended by Mrs. Smith at the time said deed to D. T. Smith was executed, that the subsequent deeds made by him to W. W. Smith, Harbert Smith, David Smith and James Smith should be made in the-proportion and manner that they were made, and that her object and purpose was at the time, as it had been for a long time-previous to said date, to give the land to said parties, who were her own children, as her distribution of her estate among them. They further alleged that Mrs. Smith had, long prior to the date-of the deed, given to each one of her daughters, plaintiffs to this suit, their full proportionate share of her estate; that in the year-18— she gave to Mrs. McElyea a certain negro woman valued to her at the time at the sum of one thousand five hundred dollars, and that she gave to Mrs. Murphy in the year 18— a certain negro woman valued to her at the time at one thousand five hundred dollars, and that said slaves were at the time worth the-sums fixed; that Mrs. Smith had never given of made any advancements of any kind to her sons, the defendants, and that it was always her purpose and intention to give her lands to her sons as she did do, and which was not more than their pro rata share of her said estate.</p> <p>The court overruled defendants’ demurrer and exceptions, to which defendants excepted.</p> <p>Verdict for the plaintiffs and judgment accordingly.</p> <p>The assignments of error are manifest from the opinion.</p> <p>Appellants by their pleadings admit that the deed from Elizabeth Smith was made in trust for certain purposes, namely, for the benefit of the five sons to the exclusion of the two daughters, the plaintiffs, which was denied by plaintiffs, they claiming that the deed was made in trust for the use and benefit of all the seven children, to be divided share and share alike after death. This was the issue joined, and the only real issue in the case.</p> <p>The testimony of Harbert Smith, W. W. Smith and D. T. Smith was to the effect that Mrs. E. Smith wanted her five sons to have the land in controversy, as she had given her daughters their share of the estate in negroes; that she did not know which was the best way to do it, whether by will or by deed, and that she, in company with ber sons James and Harbert, went to the town of Gonzales to get legal advice. She there consulted with Mr. Chenault, the county clerk, in whom she reposed confidence, and he advised Mrs. Smith to have the division made by bargain and sale deed, using money to make it a good deed, first conveying to a trustee and then directing him to divide the land out as she desired; and this was accordingly done, he writing the deeds and the transaction taking place in the presence of witnesses. There was evidence that she selected her grandson, D. T. Smith as her trustee, and sent for him about a week before the deed was made to him, and told him that she wanted to divide the tract of nine hundred and thirty acres of land between her five sons, viz.: W. W. Smith, Stroud Smith, Harbert Smith, David Smith and James Smith, and told him that she wanted to convey the whole tract to him, and that then she wanted him to subdivide the tract and to convey to each his share of the land; that D. T. Smith agreed to act in the matter for her and accepted the trust as offered; that in a week from that time he went to her house and the deed was made to him; that she gave him her reasons for not giving any of the land to her two daughters, and also told him that she had been advised by Mr. Chenault to fix the matter up in that way; that in the following March, about three months after the land was conveyed to him, he went to the clerk’s office and divided out the lands as he had been directed. To contradict this, and to establish a different trust, appellees, after appellants had closed their case, recalled Mrs. Elizabeth Murphy, who was permitted, over the objection of appellants, to testify as follows, to-wit: That on the evening prior to the day of the execution of the deed from her mother to D. T. Smith, she (witness) had a conversation with her mother (Mrs. E. Smith), at the house of witness; that her mother called her out into the corner of the yard and told her she wanted to talk to her in private, and said to her that her sons (meaning defendants) had been trying to persuade her to make to them a deed to land, but that her husband had" told her during his life time not to do so; that she had concluded to make over her land by deed to little Dave Smith, her grandson (meaning D. T. Smith, the trustee), in whom she had perfect confidence, and that he would hold the land until her death, and then divide it out among all her children share and share alike; that her reasons for doing this was that she was afraid that Mr. McElyea (husband to M. J. McElyea) would try to have her land divided up during her life time, which she did not want done, and that she hoped she (witness) would not think hard of her about it; that the parties (meaning D. T. Smith, Frank Laird, F. E. Harrell et als.) would come there (at witness’s house), where Mrs. E. Smith was staying, the next day, for the purpose of fixing up the deed and having it duly executed. Witness fufther stated: The next fall, after mother died, I talked to W. W. Smith, David Smith and James Smith, and told them that mother had told me on her death bed that she wished her children to divide her land equally; that she feared there would be trouble about the division; she feared there would be trouble about Polly (Mrs. McElyea) getting her share. W. W. Smith said he was willing for me to have mine, but he would spend all he had to keep Polly from getting anything. Dave Smith said about the same.</p> <p>To all of this testimony appellants objected. First, Because it was hearsay, and second, because it was not made in the presence of trustee and was not competent testimony or legally sufficient to establish a trust, or vary the terms of the trust as executed by the trustee. Which objections were overruled by the court below and the testimony permitted to go to the jury.</p> <p>The following charges asked by defendants were refused by the court:</p> <p>“First. A deed absolute upon its face maybe shown tobe executed as a trust by parol evidence, but such evidence should be carefully considered, and should have been sufficient to establish the trust with clearness and certainty, and the declarations of the grantor to third parties at a time anterior to, or subsequent to the date of the execution of the deed, when the trustee was not present consenting thereto, can not be heard to establish a trust, or to vary and give direction to its provisions when at variance with the terms sought to be carried out by the trustee.</p> <p>“ Second. In the case now before the jury,- it is admitted by both plaintiffs and defendants that the deed from Elizabeth Smith to D. T. Smith was a conveyance in trust, and the jury should look alone to the instructions as communicated by the grantor to the grantee, who is the trustee, for the terms of the trust, and ascertain from that source alone what were the terms and objects of the trust, and if the jury find from the instructions so given to the trustee D. T. Smith that it was the declared wish of the grantor that said, trustee should, at some subsequent date, by deeds subdivide the land described in the petition, and convey the same to the defendants, then you should find for the defendants. (Adams's Equity, pages 101, 102, 103.</p> <p>“Third. If the jury should find from the evidence that the trustee D. T. Smith did not comply with the directions given him by the grantor, Mrs. Elizabeth Smith, at the time of the execution of the trust deed, but that he violated said instructions at the date of the execution of the deeds to W. W. Smith, David Smith, Harbert Smith and Stroud Smith, on the seventh day of March, 1870, and the deed to James Smith on the -day of -, 1877, then the statutes of limitations would begin to run against suóh of the plaintiffs whose rights were violated by said deeds from the date of the record of said deeds in the clerk’s office of the county court of Gonzales county, unless such plaintiffs were under disability of coverture.”</p>

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

Tried below before the Hon. William H. Burkhart. The instrument which in this case received construction is set forth in the opinion, as are also the facts in evidence on which the construction was based.

Tried below before the Hon. E. E. Beckham. On May 13, 1886, in pursuance of the fiat of Hon. J. M. Hall, judge of the eighteenth judicial district, an injunction was issued in cause number 3599, in the district court of Tarrant county, the Gulf, Colorado & Santa Fe Eailway Company, plaintiff, v. the Fort Worth & ¡New Orleans Eailway Company, defendant, and served on the defendant, restraining it from entering on certain right of way of plaintiff, therein described; from…

<p>Error from Waller. Tried below before the Hon. William H„ Burkhart.</p>

Tried below before the Hon. W illiam H. Burkhart. • The conclusions of fact found by the district judge are sufficiently referred to in the opinion. The conclusions of law filed by him were as follows: “First. That the assignment of Page and Gregory has not the effect to stop these creditors in proceeding against W. D.. Gregory for any amount due them, as he (W. D. G.) is not a party to the assignment, nor is he relieved thereby. “ Second.

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

Tried below before the Hon. William H. Burkhart. Suit begun by appellees on the twenty-sixth day of January, 1886, by filing an original petition in the county court of Brazoria county setting up the execution by appellants of a check for three hundred dollars sued upon in favor of one Brinkley, who was made a party defendant with appellants; the endorsement of check by Brinkley to appellees; the exercise of due diligence by them in presentation of same for payment to the…

<p>1. Guardian ad'litem.—When a court has acquired jurisdiction over the persons of minor defendants, though a judgment rendered against them when no guardian ad litem has been appointed to represent them, would not be void, yet a due administration of justice would require its reversal on appeal.</p> <p>2. Costs—Statute Construed.—The statute (Revised Statutes, article 2437) provides that “ each party to a suit shall be liable for all costs incurred by him, and in case the costs can not be collected of the party against whom the same have been adjudged, execution way issue against any party in said suit for the amount of costs incurred by such party, but no more.” In a suit brought against minors who owned no property from which costs could be collected, and for whose defense a guardian ad litem had been appointed, held:</p> <p>(1) That the costs incurred as compensation for the services of the guardian ad, litem, was the result of the suit brought by the plaintiff, and after the return of nulla bona on an execution against the minors, an execution to collect it could properly issue against the plaintiff.</p> <p>(2) The plaintiff would not be liable for the costs due the clerk or sheriff, or for witness fees incident to the minors’ defense.</p> <p>(3) In the absense of a statute, equity would in some cases allow compensation to a guardian ad litem, to be taxed as costs and charged to the successful party in the cause.</p>

Tried below before the Hon. James Masterson. Suit by S. C. Red and W. S. Red, executors of R. K. Red, against the Houston Flour Mills Company, D. P. Shepherd and the administrator of the estate of L. J. Latham, deceased, on a note for five thousand dollars, payable to the order of D. F. Stuart, signed by the Houston Flour Mills Company, and at the time of its execution indorsed on the back by D. P. Shepherd and L. J. Latham. The note is set forth in the opinion.

Tried below before the Hon. Wm. H. Burkhart. Suit brought by Mrs. Millie Wheat as survivor of the community estate of herself and her deceased husband, James B. Wheat, against the Gulf, Colorado & Santa Fe Railway Company for damages alleged to have been sustained by plaintiff by the burning of the grass on her pasture lands situated adjacent to appellant’s track in Fort Bend county, Texas.

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

<p>1. Insurance.—A policy of insurance which, by its terms, is to become void if the property insured shall be sold or transferred, or if the interest of the assured he any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, is not avoided by a deed subsequently made by the assured to another for the sole purpose of enabling the owner, through him, to negotiate a loan which was never effected, and which was not intended by either party to convey title.</p> <p>2. Same.—The language of a policy of insurance, being the language of the insurers, is to be construed most strongly against them.</p> <p>3. Same.—A policy, with conditions such as are stated above, is not vitiated by a deed to another by a transfer of the property as collateral security for a debt due, and an action. on the poliey may be maintained by the assured for the use of his creditor, the assured being the real party plaintiff:</p>

<p>1. Limitation.—When the legal title to land is vested in a trustee for the-benefit of another, limitation will run against such trustee in favor of an adverse claimant in possession; when the bar of the statute is complete against the legal title vested in the trustee, it applies also to the equitable title of the cestui que trust, and this though the latter be a woman under coverture.</p> <p>2. Same.—The doctrine above announced is not applicable where a claim is-set up through the trustee as against the cestui que trust, or against those claiming under the latter. Neither can it affect the rights of one laboring under disability when the cause of action arose, if at that time the legal title existed in him, though the control of the property was entrusted to another.</p> <p>3. Same.—If the cause of action arose from a breach of trust on the part of the trustee, other than his negligence in failing to sue within the period! of limitation, then limitation would not run against the cestui que trust. In every ease when loss results from the mere negligence of the trustee, the remedy of the cestui que trust is in an action against him.</p> <p>4. Gases Disapproved.—The doctrine announced regarding limitation in' Bacon v. Gray, 23 Mississippi, disapproved.</p> <p>5. Cases Followed.—The cases of Wingfield v. Virgin, 51 Georgia, 139, Williams v. Otey, 8 Humphreys, 563; Molton v. Henderson, 62 Alabama, 426; Smilie v. Biffle, 2 Pennsylvania State, 52, and other cases cited in the opinion regarding the effect of limitation on the mere equitable title; cited and followed.</p>

<p>Appeal from Rusk. Tried below before the Hon. J. G. Hazelwood.</p>

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

The following is the motion for attachment forcontempt, viz.: “Fort Worth Street Railway Company, Appellant, v. “Rosedale Street Railway Company, Appellee. “In the Supreme Court of the State of Texas.

<p>Appeal from Tarrant. Tried below before the Hon. A. J Booty.</p>

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

Tried below before the Hon. J. M. Hall. Suit against T. O. Prather, for the recovery of a lot and house in the town of Clifton, in Bosque county. It was alleged in the petition that on the twenty-second day of September, 1883, Henry Wilkens was lawfully seized in fee simple and possessed the house and lot, and that T. 0. Prather unlawfully entered on the lot and premises and forcibly ejected Wilkens.

<p>1. Homestead.—The homestead rights of the husband and wife are lost by a voluntary abandonment of the homestead. Hot only can the husband bind his children «by such voluntary abandonment, but the homestead rights of the wife also are lost by her voluntarily leaving the home and accompanying the husband when he abandons it.</p> <p>3. Same.—A husband and wife left their home in Texas, and after removing to another State, acquired a home there. Af ter seven years the husband, during a temporary visit to Texas, sold the Texas home. Afterward the husband and wife returned to Texas, and, after living in a rented home, occupied the Texas homestead as tenants of another whose claim of title ' was in opposition to their claim of homestead rights. The wife left the Texas home unwillingly, and when in another State frequently expressed her intention to return to it, though this fact was unknown to the purchaser from the husband, held:</p> <p>(1) The declarations of the wife of an intention to return to her home could not outweigh the evidence of abandonment furnished by the acts and conduct of herself and husband during so long a period of time.</p> <p>(3) It was too late to repudiate the tenancy and assert homestead rights against their landlord’s claim of title.</p> <p>(3) The homestead right was abandoned.</p> <p>3. Parol Evidence.—When land is owned jointly by several persons, the legal title being in one of the number who conveys by deed an interest therein, in general terms, without designating whose interest is conveyed, parol evidence is admissible to show what particular interest was intended.</p>

<p>1. Promissory Notes.—A note given for a debt by a corporation, signed with the name of the corporate agent, who wrote the word “agent" after his signature, and who had been accustomed thus to sign for the corporation, when such signature is followed by that of other persons, is the note of the corporation as the pricipal debtor, and, as between the corporation and the other makers, the latter are sureties.*</p> <p>2. Release.—As between joint promissors, who are principals, a release of one is a release of all; but as between promissors who sustain as between themselves the relation of principal and surety, the liability of the principal is made neither more nor less by the release of a surety, and the latter may stipulate for his own discharge and leave she creditor to pursue his remedy against the principal for the full amount of the original debt.</p> <p>3. Principal and Surety.—A surety on a promissory note may buy his discharge and leave in full force the original debt against his principal.</p>

Error from McLennan. Tried below before the Hon. B. W. Rimes. This suit was instituted by defendants in error to recover two different tracts of land. The first tract contained two hundred and forty-nine acres and was patented to the heirs of Benjamin G. Wallace, October 16, 1871. The second tract contained sixty-six acres, title to which, issued from the State October 19, 1882.

<p>Appeal from McMullen. Tried below before the Hon. D. P. Marr.</p>

<p>On motion to dismiss.</p>

<p>1. Homestead Abandonment.—When a wife removes her domicile from this to another State she relinquishes any right of homestead which she might have retained had she continued an inhabitant of Texas.</p> <p>2. Same.—It is immaterial what business may engage the attention of husband and wife who once establish their home beyond the limits of Texas; the nature of their business can have no weight in destroying the effect of the abandonment already accomplished.</p>

<p>1. Mechanic’s Lien.—The lien of a mechanic for material furnished, who procures the material for the construction of a building, can not be defeated by reason of its delivery in accordance with the wish of the owner of the house at some other place them where the house is being erected. After such material is prepared for the building, though it be not delivered on the ground, that fact will not defeat the lien for its value, if the mechanic, being ready to deliver at the bftilding, is prevented by the owner of the improvement, who violates his contract and refuses to receive it.</p> <p>2. Same.—The lien of a mechanic, though not fixed before registry of the contract or bill of particulars, yet when it is fixed relates back to the ' time when the work was performed or the material furnished, and takes precedence of all claims on the property being improved, which have been fastened on it since that time.</p> <p>3. Waiver—New Trial.—A party who permits without objection a witness to testify who has not been sworn, thereby waives all objection to his evidence based on the failure to swear him.</p> <p>4. Same—Equity.—In foreclosing a mechanic’s lien, when the original owner of the house and a purchaser under attachment levied after the mechanic’s lien was fixed, are both made defendants, the decree should direct that whatever remains from the proceeds of sale, after satisfying the mechanic’s lien, should be paid to the purchaser under attachment.</p>

<p>Appeal from Coleman. Tried below before the Hon. T. B. Wheeler.</p>

<p>1. New Trial—Statement of Facts.—A motion for new trial was overruled on the last day of the term, and an order entered allowing ten ° days for statement of facts, the defendant’s counsel refusing to agree to a statement of facts presented by plaintiff against whom judgment had been rendered. After five days had elapsed plaintiff’s counsel committed to the mail his statement of facts, directed to the judge who was holding court in another county. The statement of facts was not signed by the judge until the expiration of the ten days. In an original action for a new trial held:</p> <p>(1) Without deciding whether an original petition for new trial could be entertained in any case on the ground that a party against whom judgment was rendered had been deprived without fault on his part of an opportunity fairly to present his case bn appeal or writ of error, no proper diligence to obtain a statement of facts in this case was shown.</p> <p>(2) The statement of facts should have been presented in person or* by attorney or messenger, and should not have been entrusted to the mail.</p>

, Tried below before R. H. Ward, Esq., special judge. In addition to what is apparent from the opinion, it may be added that, when this case was called for trial, February 5. 1886, appellees announced ready. Appellants refused to answer, and objected to the trial proceeding, because the case was not regularly reached on the docket. The court ordered the trial to proceed.

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

<p>Appeal from LaSalle. Tried below before the Hon. D. P. Marr.</p>

<p>Appeal from Dallas. Tried below before the Hon. A. S. Lathrop, Special Judge.</p>

Tried below before the Hon. A. S. Lathrop. Suit of trespass to try title and for partition, brought by C. C. Swindle, his wife, Mary Louisa Swindle, and others, against Jefferson Peak and other persons. Suit was begun August 18, 1874.

R. Maltbie. Suit by Leopold Bros. & Co., of Chicago, against I. Franklin and J. E. Rohrbough, to rescind a contract of sale of goods made by Leopold Bros. & Co. to Franklin in August, 1883.

<p>Appeal from Johnson. Tried below before J. M. Hall, Esq., special judge.</p>

<p>Error from Parker. Tried below before the Hon. A. J. Hood.</p>

<p>Error from Folan. Tried below before the Hon. T. B. Wheeler.</p>

<p>Appeal from Hill. Tried below before the Hon. J. M. Hall.</p>

<p>1. Contract—Fraud.—One who does business in his own name, in replenishing from time to time by purchasing and in selling in the usual course of trade a stock of goods, under such circumstances as to induce others dealing with him to regard him as the real owner, must as to creditors and purchasers be regarded as the real owner. This case distinguished from Tufts v. Bank, 63 Texas, 113.</p> <p>2. Same.—A secret contract by which one who is the apparent owner of a stock of goods and merchandising in his own name is to pay for them to the former owner in instalments of three-fourths of the gross receipts from sales at stated periods, to replenish by purchase from time to time, the title to the original stock, and to that bought to replenish, to remain in such former owner until the original debt is paid, can only be regarded as to purchasers and creditors without notice as a device for the perpetration of fraud.</p>

<p>Appeal from Wise. Tried below before the Hon. F. E. Piner.</p>

<p>1. Assignment of Error,—A$i assignment of error to the effect that the court erred in overruling a general demurrer “and special exceptions numbers one, two, three and four of plaintiff to defendants amended original answer, for the reasons set forth in said several exceptions," can not be considered; and the fact that the supposed errors are specified in the propositions submitted by counsel does not cure the defect.</p> <p>2. Interest—Oases Approved.—Interest can not be charged upon a premium on a loan made by a building and loan association to a member thereof, since this would be a charge not on what the member received, but upon what he relinquished to the association. To this extent the cases of Association v. Gallagher, 25 Ohio State, 208; Society v. Taylor, 41 Maryland, 409; Association v. Blackburn, 48 Iowa, 385; Gordon v. Association, 12 Bush, 110, and Martin v. Association, 2 Coldwell, 418, approved.</p> <p>3. A member of a building and loan association, who owned five shares of one hundred dollars each, desiring a loan, bid upon her stock a premium of fifty-seven per cent and received in cash forty-three per cent. She thus received from the association the two hundred and fifteen dollars, and executed her obligation for five hundred dollars at six per cent interest. The five hundred dollars bore interest at six per cent per annum, to be paid in monthly instalments of one-half per cent. She further agreed to pay one dollar per month on each share of stock and all fines and other charges that might be assessed against her as a member of the association. The stock was transferred as collateral security, and a deed of trust given on land to secure payment, held:</p> <p>(1) Since the contract was for a loan of two hundred and fifteen dollars, and required the borrower to pay more than twelve per cent for the use of the money, she having agreed to pay six per cent on the five hundred dollars, it was in violation of the statute, usurious and void as to the whole amount of interest.</p> <p>(2) The association was not a partnership, and the decisions regarding advancements made to a- partner out of a common fund in which he has an equal interest, have no application.</p> <p>(3) The vice in the contract was not cured by an entry made by the association after foreclosure sale, of a credit to the borrower of a sufficient sum to reduce the interest to twelve per cent per annum. The entry was in itself evidence that the lender was a conscious violator of the law.</p> <p>(4) On a proper statement of accounts, the association being in debt to the borrower, the sale of her property under the deed of trust was void, and the purchaser acquired no title.</p>

<p>Appeal from Medina. Tried below before the Hon. T. M. Paschal.</p>

Tried below before the Hon. B. W. Rimes. Suit brought by J. A, Witte to recover damages for burning his grass, hay, straw and wood. The opinion contains all the facts necessary to its being understood, except the language of counsel referred to in it, which will be found in the syllabus.

<p>Error from LaSalle. Tried below before the Hon. D. P„ Mair.</p>

<p>1. Lien of Livery Stable Proprietor.—The Statute (Rev. Stats., art. 3183) which confers a lien in favor of proprietors of livery stables upon all animals placed with them for feed, care and attention, has no application when the animal is placed in the stable by one not the ojyner, and whose possession of the animal, or whose agency to control the same, is unauthorized.</p> <p>2. Cases Approved.—Dodd v. Arnold, 28 Texas, 101; McCreary v. Gaines, 55 Texas, 485; Small v. Robinson, 69 Maine, 425; Robinson v. Baker, 6 Cushman, 127; Saltus v. Everett, 20 Wendell, 267, and Gibson v. Gwinn, 107 Massachusetts, in so far as they refer to extent of a livery stable keeper’s lien, approved.</p>

<p>Appeal from Comanche. Tried below before B. D. Shropshire, Esq., special judge.</p>

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

<p>1. Mandamus—School Claims.—In a proceeding by mandamus against a county to compel the commissioners court to issue a warrant on the county treasurer, and to levy a special tax provided for in the act of 1883 (page 41), to pay off a school claim, a cause of action is stated by alleging that plaintiff is owner of the claim which is described; that it had been audited by the former board; that it was unpaid, and that the county commissioners court refused to pay or provide for its payment. The act of Apiil 2, 1883, contemplated that the audit made of a claim prior to that time should be considered sufficient evidence of its validity.</p> <p>2. Same—Pleading.—In a suit for such claims chargeable to different school districts, it is not requisite that the petition should state how much is due from each one and define them, that fact the county records should show, and the law prescribes how the money to pay the claims must be obtained.</p> <p>3. Limitation.—Limitation does not run against a school claim during the period of its recognition by the county as a valid claim, and not until after its disallowance. (Rev. 'Stats., art. 677.)</p> <p>4. Same.—The Legislature may require a county to pay a just debt, and thereby enable the creditor to enforce its collection, even after the lapse of such time as would otherwise bar it by limitation.</p> <p>6. School Claims.—The fact that a county treasurer, in settlement with one of the sureties on his general bond, has misappropriated school funds and paid them to him, can furnish no defense in a suit against the county to enforce payment of school claims audited, allowed and required to be paid by the act of 1883, even though such surety were one of the several plaintiffs in the suit.</p> <p>6. Trial by Jury.—Though a trial by jury be improperly denied, such denial will not require a reversal of the judgment if, upon the facts of the case, no other judgment could have been rendered.*</p> <p>7. Statute Construed.—The benefits of the act of August 7, 1876, enured to the holders and owners of school claims, whether teachers or their assignees of such claims.</p> <p>8. Limitation.—In the absence of statutory prohibition, limitation will run in favor of or against a county.</p>

<p>Error from Hill. Tried below before the Hon. Jo. Abbott.</p>

<p>Appeal from San Saba. Tried below before the Hon. A. W. Moursund.</p>

<p>Appeal from Tarrant. Tried below before the Hon. R. E. Beckham.</p>

<p>1. Attachment.—When process of attachment; is obtained by one who has no just claims against the owner whose property is seized, and for the purpose of gaining thereby an illegal advantage in the collection of his pretended debt, the act is not only wrongful but malicious, and though the property seized be returned to the owner uninjured and the attachment suit dismissed, at least nominal damages may be recovered for the wrong.</p> <p>2. Same.—If, under attachment thus wrongfully obtained, the property seized ‘ is not, on the dismissal of the suit, returned to the owner, but is impaired in value or lost to the true owner, he may recover in addition not only an amount that will reimburse him for the loss sustained, but if the attachment was without probable cause, exemplary damages.</p> <p>3. Principal and Agent, Estoppel.—The fact that one has on a former occasion paid drafts drawn on him by another, can not of itself render him liable for purchases made by such other person as his agent, nor can it estop him from denying that an agency ever existed.</p>

<p>1. Charge of Court.—In a suit against a county on a county warrant, a charge which, in effect, instructed the jury that if the work for which the warrant was given had been paid for before its issuance, to find for the defendant, was error, when, from the evidence, the jury might have been warranted in finding that the warrant was issued to reimburse another whose property had been used in paying for the work.</p> <p>2. Charge of Court.—It is error to so instruct a jury as to preclude them from considering a theory arising upon the evidence which is rational, consistent with other facts, and which, if believed, might have resulted in a different verdict.</p> <p>3. County Warrant—Notice.—The holder of a county warrant is not charged with notice of any order made by the court with regard to it, after the order directing its issuance.</p> <p>3. Trusts and Trustees.—A trustee can not, by any act which is unknown to the beneficiary in the trust, set the statute of limitation to running against the cestui que trust.</p>

Tried below before the Hon. W. H. Blackburn. T. P. Lockhart, by deed of assignment conveyed his property to S. W. Miller, for the benefit of such of his creditors as would consent to accept their proportionate share of his estate and release him. Miller immediately qualified as assignee according to law, and took possession of the property assigned. Mcllhenny Company afterwards caused an attachment to issue and had it levied on the property in Miller’s possession.

Tried below before the Hon. W. A. Blackburn. W. J. Wheat, formerly a member of the firm of Lockhart & Wheat, conveyed certain property, by deed, to W. A. Craddock, in trust, for the benefit of his (Wheat’s) creditors. Craddock qualified and took possession of the property. McIlhenny Company sued out a writ of attachment against Lockhart & Wheat, which was on the same day levied on the property as the property of Wheat.

<p>1. Policy or Insurance.—A party having no insurable interest in the life of another can not receive an assignment of a policy of insurance issued upon the life of the latter by the Supreme Lodge of the Knights of Honor upon an agreement merely to pay the premiums or assessments necessary to keep th e policy in force. Such an assignment is in contravention of public policy, and the fact that the rules of the Supreme Lodge of the Knights of Honor may permit the transfer, can not validate it.</p> <p>2. Same.—Such an assignment will not vitiate the policy, but will, on the death of the insured, leave the insurance money payable to the parties originally designated in the certificate.</p> <p>3. Public Policy.—Public policy will not recognize the transfer of a life policy of insurance to another whose interest is involved in the early death of the insured, thus creating a temptation to destroy human life.</p> <p>4. Same—Gases Cited and Approved.—On this point the cases of Swick v. Insurance Company, 2 Dill C. C., 160; Sternes v. Warner, 101 Massachusetts, 364; —— v. Insurance Company, 9 Rhode Island, 34, cited and approved.</p>

<p>1. Statute of Limitations.—When the cause of action is an injury resulting from the alleged negligence of the defendant, the time, place and circumstances of which are stated in the original petition, which is filed before limitation has barred the action, limitation can not be pleaded to an amendment which states more' fully than the original petition the results of the injury, and which is filed at a time when the statute would bar a recovery on a suit then brought-</p> <p>2. Damages—Negligence.—If one entitled to the rights of a passenger on a railway train is, without being guilty of contributory negligence, injured in the effort to get on the train, which has started from a stopping place before the time designated to the passenger by the conductor in charge, the company is liable in damages for the injury.</p> <p>3. Verdict—Excessive Damages.—A woman fifty-seven years old, who was a passenger on a railway train, was told at a station that she had ten minutes within which to recheek her baggage. Within that time she attempted to get on a car while the train was not moving, and was told by a brakeman to get on the train, as there was plenty of time. In attempting to do so, the train started suddenly and threw her off. In falling she received injuries. She was deprived permanently of the use of her left arm, her power to move about as formerly was impaired, one of the bones of her shoulder was broken, her spine injured, her general health rendered bad, great pain occasioned and her system rendered more hable to disease. Held:</p> <p>(1) The verdict of a jury awarding damages can not be disturbed on appeal, when found on conflicting testimony, if there is evidence to sustain it. In such a case, the finding of the jury upon the facts must be regarded as conclusive.</p> <p>(2) A verdict for five thousand dollars damages was not deemed so excessive as to require a reversal.</p>

<p>1. Right of Action.—A right of action given by the laws of another State of this State. can not be enforced by suit in a Texas court, when the right claimed is denied at common law, and is not secured by the Constitution or statutes</p> <p>3. Same—Damages.—The statutes of Louisiana subrogate the child, on the death of the father, to such right as the father had to recover damages for an injury inflicted on him. No such right exists by virtue of a Texas statute, and such a cause of action did not survive the death of the parent at common law. A suit was brought in Texas by a child to recover such damages as the father could have recovered for injuries inflicted on him in Louisiana, had his death not resulted from the injury. Held, the action could not be maintained.</p>

<p>1. Purchaser—Warranty—Notice.—A purchaser who receives a deed with general warranty of title, having at the time knowledge of a defect of title, can not resist the payment of the purchase money on the ground that such defect exists. Thus one claiming under such a deed, with notice, can not avoid the payment of a purchase money note, given by him for land, the deed to which was received by his vendor during the continuance of the marriage relation between such vendor and his wife, who afterwards died, leaving children, and which was sold by said vendor after her death.</p>

<p>1. Verdict.—A verdict is general which finds in general terms for one party or the other, and is not rendered special by the fact that it designates the grounds on which it is based.</p> <p>2. Opinion op Witness—Lapse op Time.—The sufficiency of a lost deed to pass title can not be established by the mere opinion of witness who once saw it. He must recollect what its provisions were and state facts regarding its contents. Among the exceptions to the rule which ordinarily excludes the opinion of a witness, when offered as evidence can not be included the long time that has elapsed since the occurrence of the matters about which the witness is called to testify.</p> <p>2. Statutes Construed—Registration—Cases Hollowed.—The act of December 20, 1836, section 35, requiring the registration of certain instruments, did not authorize the registration of a conveyance, or of a contract for the conveyance of the right to receive land from the government of the republic of Texas, before the certificate was issued and before the land was located. On this point Simpson v. Chapman, 45 . Texas, 560, followed.</p> <p>3. Same—Evidence.—The contents of a lost instrument of writing which was once recorded by a county clerk without authority of law, and who took the maker’s acknowledgment thereto can not be established by proof that the clerk and subscribing witnesses are dead, and by proof that the record was in the handwriting of the clerk. If the clerk were alive he might swear to the record as an examined copy.</p> <p>4 Evidence.—The mere possession of a muniment of title is not evidence of title in the possessor.</p>

<p>Appeal from Travis. Tried below before D. W. Doom, Esq., special judge.</p>

<p>1. Assignment.—A conveyance which contains no condition of defeasance and which passes the property absolutely to another to be administered by him according to its terms, first to pay a preferred debt from the proceeds of the property and to appropriate the balance to the satisfaction of other debts, can not be regarded as a mortgage, but must be treated as an assignment.</p> <p>2 Same.—Such deed of assignment, which contains nothing on its face to show that the assignor was insolvent, or made the conveyance in contemplation of insolvency, is not a statutory assignment. It did not purport to convey all the property of the assignor, and though its chief object was from its terms to secure a preferred creditor, there being no evidence of the intention to defraud, it must be held valid at common law.</p> <p>3. Same—Partnership.—Such an assignment, made by one partner in a firm, the other partner being absent from the State, when made to secure a firm debt, is a valid conveyance.</p> <p>4. Same.—Such an assignment is not rendered invalid by the fact, that its execution was induced by threats of the asssignee to attach the property of the assignor to enforce payment of his debt.</p>

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

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

<p>1. Sale of Goods—Debtor and Creditor—Fraud.—A debtor in failing circumstances has the right to prefer a creditor, and to this end to sell out to him bis entire stock of merchandise; if the goods thus transferred in payment are not of value more than the debt, no fraud is perpetrated provided the only purpose of the creditor who receives payment in this manner, is to collect.his debt.</p> <p>2. Same.—If, however, the merchandise thus conveyed, exceeds in value the sum due, and the creditor being aware of this fact, and of the debtor’s insolvency, pays to the creditor a sum of money to induce the transfer, whereby other creditors are prevented from enforcing their claims against so much of the. goods as are not necessary to pay the preferred creditor’s claim, then the conveyance should he deemed fraudulent, and the entire transaction void as to other creditors.</p> <p>3. Same—Attachment—Measure of Damages.—In determining the liability of the purchasing creditor, in a suit by other creditors, if the purchase be deemed fraudulent, the value of the goods transferred in payment of the preferred claim at the time of their transfer and conversion, is the measure of the preferred creditor's liability and not the sum real ized afterwards from their sale. .</p>

<p>1. Legal Holiday—Waiver.—A defendant who enters his appearance and answers to the merits in a suit begun on a legal holiday, before excepting on account of the suit being thus instituted, thereby waives the question of jurisdiction. The objection to a suit thus brought, may also be cured by an amended original petition filed before the defendant’s exceptions.</p> <p>2. Administrator de bonis non.—An administrator de bonis non may maintain an action to recover the proceeds of a note which has been fraudulently disposed of by a former administrator.</p> <p>3. Parties—Administration.—An administrator transferred a note belonging to the estate in payment of a debt due from himself. The maker of the note afterwards executed to the holder a new note payable to him in lieu of the note thus transferred, which he paid. In a suit against the former administrator, by the administrator de bonis non, to recover the proceeds of the note thus fraudulently transferred, held: That in such a suit brought for the wrongful conversion of property against the former administrator, neither the sureties on his official bond nor the maker of the original note were necessary partiés defendant.</p> <p>4. Administrator de bonis non.—An application for letters of administration which alleges that a former administrator had been appointed who qualified as administrator and had died before winding up the estate, is sufficient, even if it were essential to the validity of the administration de bonis non that the necessity therefor should appear in the application for lettters. Such a necessity, however, does not exist, since it will be presumed that the proper evidence to authorize the appointment was submitted.</p> <p>5. Oath oe Administrator de bonis non.—It is no valid objection to the oath required before the issuance of letters (Rev. Stats., art. 1886) that it omits the words, “died without leaving any lawful will.” The question as to whether there was a will must be presumed to have been settled prior to the issuance of the former letters.</p> <p>6. Bond oe Administrator.—The amount of the penalty which should be fixed in the bond of an administrator must be determined, not from the estimated value of the estate as set forth in the application for letters, but by the order of the court. Once fixed by the court granting administration, the presumption must obtain that the penalty specified in the bond was twice the value of the estate, as estimated by the court.</p>

<p>1. Equity—LACHES.—Equity will always refuse relief to stale demands when s party has slept upon Ms rights for a great length of time. Nothing ©an call forth its active interposition but conscience, good faith and reasonable diligence. Laches and neglect are always discountenanced.</p> <p>2. Laches.—One whose land has been conveyed by sheriffs deed under a voidable judgment rendered against him, can not, when chargeable with notice of the adverse deed and in possession of the evidence on which he relies to set aside the judgment, wait for ten years, during which the courts are open to him, and then maintain a suit to clear his title of the adverse claim.</p> <p>3. Same.—The fact that one seeking equitable relief after such a lapse of time was, during a portion of that period, in possession of the land, can not excuse his laches. His possession gave notice of the adverse claimant of his claim, but not that he would assert such claim in a suit to cancel the deed which assumed to convey under the judgment of a court, his title to another.</p> <p>4 Laches—One whose land has been sold under a judgment which he claims to have been voidable, can not excuse his apparent laches in instituting a suit to set it aside, on the ground that he could not procure the title papers to the land. In such a proceeding there is no necessity for the plaintiff to establish his own title as against an adversary who claims under him.</p>

<p>I. Principal and Surety—Contribution—Equity.—One of several co-sureties who voluntarily pays a note, the principal debtor being insolvent, is entitled in a suit to enforce contribution against his co-sureties to recover from each his aliquot proportion of the original debt, according to .the number of the original sureties who are solvent; he also must sustain his proportion of the loss resulting from insolvency.</p> <p>2. SAME.—In such a suit by a surety who has voluntarily paid the debt, the per cent as attorney’s fees in addition to the debt, stipulated for as attorney’s fees in the event of suit, can not be collected; a pro rata contribution on the amount actually paid only can be enforced.</p>

<p>1. Agreements oe Counsel—Continuance.—An agreement of counsel in regard to the trial of a cause will not be always observed by a court, although it may be in writing, and is not to be treated as a contract to be enforced under all circumstances. Such an agreement may be set aside by the court, in the exercise of a sound discretion, when its en- " forcement would result in serious injury to one of the parties, and the other party would not be prejudiced by its being disregarded. See opinion for an agreement of an attorney to continue a cause, made without the knowledge of his client, who disapproved thereof and employed other counsel, which agreement was properly disregarded by the court.</p> <p>2. Witness—Depositions.—When a witness is in attendance upon court, and is held under the rule during the trial of the cause, his deposition, formerly taken, can not be read.</p> <p>3. Evidence.—When, in a question involving the ownership of cattle, evidence had been offered that they had been rendered for assessment in the name of one not a party to the suit, who was in charge of them, it was held admissible for the adversary, who denied the ownership of such property, to show a local custom to render cattle in the name of the person in charge of them, without regard to the real ownership.</p> <p>4. Marks and Brands—Statute Construed.—Though the statute (Rev. Stats., art. 4556) provides that an individual shall have but one mark and brand for his cattle, yet, if cattle be removed by the owner from a county in which his brand is recorded, and from any reason he causes to he recorded a different brand in the count}' to which the cattle are removed, the new brand does not invalidate the old one, nor deprive the owner of any benefit accruing from its registration.</p> <p>5. Fraud—Collateral Security.—An insolvent debtor has the righe to transfer a debt due himself as a collateral, to secure his debt to another, and a reservation to himself in the transfer, of any balance that may remain after the satisfaction of his own debt, does not render the transfer fraudulent. The validity of such a transfer and reservation depends on the good, faith which influenced the insolvent to provide for a bona fide debt which he proposed to pay, and the absence of intent to hinder, delay or defraud other creditors. The reservation of the right of the debtor to receive the balance remaining, after payment of the debt, does not of itself render the transfer fraudulent.</p> <p>6. Assignment of Error.—An assignment of error which declares that “the court erred in refusing instructions, as shown by bill of exceptions,” will not be considered, and can not be aided by a bill of exceptions which contains a general exception to the action of the court in refusing to give the special charges asked.</p>

Tried below before the Hon. Richard Maltbie. The court adopted the opinion of the Commissioners of Appeals, rendered on a former appeal of this case, holding that the judgment rendered in favor of appellees on demurrer September 22, 1879, was res adjudicata of appellant’s claim in this suit, and reversed the case, with leave to appellant to amend.

<p>1. Presumption—Judgment.—Under a statute that empowers a county commissioners court to fix the terms when such court should be held, it must be presumed that a judgment rendered by that court was rendered at a term fixed by the court, in the absence of a recital in the judgment that it was rendered at a regular term.</p> <p>8. Appeal Bond.—When the name of the principal who signs an appeal bond appears on the face of the bond above his signature thereto, and following it unfilled blanks are left for the names of the sureties, it can not be urged as an objection to the bond that under the signature thereto of the principal appear the names of parties whose names are not found in the body of the bond, and who are not referred to therein by name as sureties.</p> <p>3. Evidence—Books of Original Entry.—Though a tradesman’s books of original entry of charges against a customer are admissible in evidence, they are only admissible after it is shown, 1, that they contain a correct record of his business as it transpires, and that the original entries therein were made cotemporaneously with the transaction of the business which the entries evidence; 2, the entries must relate to the business for which the books are kept, and not to matters disconnected therewith; 3, they must show with reasonable certainty what article of trade was made the basis of the charge; 4, the book must be regular, and the entries free from suspicion of alteration; 5, if they be kept by the party offering them, he should make oath to their correctness, and should offer evidence sustaining his probity and fair dealing in his accounts with others.</p> <p>4, Same—Pact Case.—See this case for facts under which it was held that an examined copy of entries in a lost book of original entries, kept by a saloon keeper, was not admissible in evidence in a proceeding to enforce collection for “drinks," “games,” “balances," etc., against the estate of a dead customer.</p>

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

<p>Appeal from Uvalde. Tried below before the Hon. Thos. M. Paschal.</p>

Tried below before the Hon. A. S. Walker. In May, 1885, one Emanuel recovered judgment against W. W. Calhoun and wife for a debt on account of groceries sold to them, and took judgment by default for thirty dollars and sixty-five cents. Execution was issued and levied on lot number five, block number one hundred and sixty-six, in the city of Austin, which was sold under execution on the fourth day of August, 1885, to Newton, appellant, for thirty dollars.

<p>1. Statutes Construed — Assignment for Benefit of Creditors.— The object of the act of 1879, regulating assignments for the benefit of creditors, was not to invalidate all such assignments as failed to conform strictly to the requirements of that act, but to subject all, as far as practicable, to its operation, in order that the assigned property might be administered, and its proceeds distributed according to the requirements of the act.</p> <p>2. Same.—Construing section 1, of the act of 1879, regulating assignments held: that the failure to insert, in a deed of assignment for the benefit of creditors, that the property therein specified is not all of the assignor’s estate, will not render the conveyance void upon its face. Such a conveyance, made by an insolvent debtor, will be deemed a general one, and must be construed to pass all the assignor’s property subject to forced sale, whether so expressed or not.</p> <p>3. Attorneys’ Pees.—See opinion for facts under which, in a suit to recover damages for a wrongful seizure of property under judicial process, it was held, that attorneys’ fees could not be included.</p>

<p>Appeal from Taylor. Tried below before Hon. William Kennedy.</p>

<p>1. Judgment—Administration.—A purchaser°at a sale made under a judgment of the district court rendered against an administrator, foreclosing a mortgage on land, given by his intestate, acquires no title when the sale is made by the sheriff under order of the district court requiring the land to be sold as under execution. Under repeated decisions, the judgment should be certified to the county court and the mortgaged property sold by the administrator under proper order from that court.</p>

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

<p>Error from Cameron. Tried below before the Hon. J. C. Büssell.</p>

<p>Estoppel—Trusts.—An agent controlling two judgments against an estate for different parties, received a conveyance from the administrator, of land, in trust to sell and apply the proceeds of sale to their payment. Afterwards a deed was made by the administrator to the plaintiff (who was one of the judgment creditors) under order of the probate court, in a proceeding to which said creditor was not a party, which purported to convey other land in full satisfaction of the creditor’s judgment. The deed was not delivered to the creditor or accepted by him, but was accepted by the trustee. In a proceeding against the administrator and the other judgment creditors to recover an interest in the trust land, held:</p> <p>(1) Neither creditor acquired under the trust deed anything more than a lien upon the land and a right to demand its sale in satisfaction of his debt.</p> <p>(2) The recitals in the deed to land not embraced in the trust deed, which deed was never accepted by the creditor could work no estoppel of his rights under the deed of trust.</p>

<p>1. Mandamus.—When the official act which an officer may perform involves the exercise of his judgment, his decision is not subject to revision by mandamus.</p> <p>2. Election—Mandamus. —In determining upon the sufficiency of an application of persons applying to the mayor of an incorporated city under the act of April 14, 1883, to order an election to restrict the limits of said city to an area embracing a diameter of one mile, the mayor must, before ordering the election, determine two facts: First, that there is a surplus of terrritory over the limits prescribed by the statute; and, second, that at least fifty qualified voters of that territory have signed the petition. If there be controversy as to the existence of these facts, his act in determining it, is one of judgment or discretion, and if he refuses the application he can not be compelled to order the election,</p> <p>3. Same.—If, under such circumstances, a writ of mandamus be applied for, to compel the mayor to order an election, and the petition states facts which, if true, would, under the statute, require him to do so, a general demurrer to the petition, relieves the ease of controversy by admitting the truth of the .allegation, .and since, in the absence of an answer to the merits, the act has thus become one purely ministerial, a peremptory mandamus should issue to compel his obedience to law.</p> <p>4. Oases Reviewed.—Arberry v. Beavers, 6 Texas, 457; The State v. The Commissioners, etc., 8 Nevada, 309; Gibbs v. Bartlett, 63 California, 117, reviewed.</p> <p>5. Election.—The act of April 14, 1883, which provides the manner in which the territorial limits of an incorporated city may he diminished, is not invalid because of its failure to prescribe a method for holding elections; being made a part of title seventeen of the Revised Statutes, the intention must he presumed that elections ordered under it should he held as other elections.</p> <p>6. Mandamus.—If the signers to a petition to restrict under the statute the area of territory included iu the limits of an incorporated city, are qualified voters in the territory sought to be excluded, they, as such, being at least subject to the payment of a poll tax, have such an interest as will entitle them to maintain a suit by mandamus to compel the performance of an act which is purely ministerial in ordering the election to restrict the city limits. On this point this case distinguished from Turner v. The Commissioners, 10 Kansas, 16, and Bobbett v. The State, 11 Id.</p> <p>7. Same.—When it is apparent that the refusal of an officer to perform an official act, which prima facie involves judgment and discretion in regard to the existence or non-existence of the conditions which would require its performance, is arbitrary, and not because of any doubt or conviction regarding his duty, and there is no controversy as to the existence of the facts which would make his action ministerial, purely, mandamus will lie. Under such circumstances a special answer, which controverts no allegation in the petition, and which rests the defense on the fact that the mayor had rejected the application for an election “upon full consideration, and upon advice of counsel,” should be treated as' a nullity, even in the absence of a demurrer thereto.</p> <p>8. Same.—The rules of pleading at common law, in cases of mandamus, should be observed when not in conflict with the statutes. The respondent was at common law, required, in his answer to plead specially by distinct traverse of the allegations of the writ, or by way of confession, and avoidance. It, follows, that a general demurrer to the petition in a proceeding by mandamus, should be disregarded.</p> <p>9. Same—Practice.—When the allegations of a petition are sufficient, if true, to entitle the plaintiff to a writ of mandamus, and the pleadings filed by respondent, present no issue of fact, and virtually amount to no answer, the proper practice is to render judgment against the respondent, and direct the issue of the peremptory writ.</p>

<p>1. Garnishment—Costs—Attorney's Fees.—The statute (Rev. Stats, art, 219) which provides for' an allowance of ‘reasonable compensation” to the garnishee who is discharged, entitles him to reimbursement for such. sum of money as he was required to expend in protecting his interest in the garnishment proceedings; this must he held to include reasonable attorney’s fees. In making the allowance the court may demand evidence showing what amount of fees had been paid or contracted for, but the trial judge must be presumed to know the value of professional services, and his failure to require evidence on that point will constitute no ground for a reversal of the judgment. The plaintiff has the right, if he should think the amount allowed by the judge too large, to offer evidence that a less' amount would be reasonable.</p>

Tried below before the Hon. A. W. Moursund. In this case a jury was waived and the judgment of the court recites that “ the law and evidence on the issue in this cause is for the defendant in that plaintiff has failed to establish title to himself to the land sued for. It is therefore ordered,” etc.

Tried below before the Hon. J. H. B. Putman. Suit by W. J. Brinker to recover damages for alleged personal injuries received on the fifth day of April, 1885, at the point where appellant’s railroad crosses a public highway, known as the Sulphur Springs and Pittsburg road; by reason of the fact, as he alleges, that appellant failed to prepare, fix and keep the same in repair, and had allowed, the plank covering over the crossing to become “defective, rotten and insufficient,”…

Tried below before the Hon. D. H. Scott. The finding of fact and conclusions of law filed by the district judge are apparent from the statement of the case contained in the opinion.

Tried below before the Hon. A. S. Walker. This suit was brought to recover of the oity ten per cent as commissions claimed by the city attorney on nine thousand, eight hundred and seventy-four dollars and twenty-five cents, fines collected by him, imposed for violation of ordinances.

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

<p>1. Mechanic’s Lien.—The registration of a bill of particulars of material furnished for the construction a house, filed for record and recorded in the office of the clerk of the county court, to which is appended a statement embracing a description of the lots on which the house was erected, is not invalidated because the description also embraced other ground on which no building was done. The fact that a lien is claimed on more land than it can lawfully cover, can not vitiate it in its application to so much of the land described as the lien may properly apply to, unless the claim is intentionally or fraudulently made, or would in some way operate to the injury of the owner or third persons.</p> <p>2. Lien—Registration.—The object contemplated by the statute in requiring registration, is to give notice to third persons of the existence of the lien, and to accomplish this, the statute only requires that the account or contract recorded “shall be accompanied by a description of the lands, lots, houses and improvements made, against which the lien is claimed.”</p> <p>3. Lien—Registration.—The fact that the registration of a contract or bill of particulars, with its accompanying statement necessary to fix a mechanic’s lien, is made in a book also used by the clerk to record bills of sale, will not affect the validity of the record, if the book is also used for the purpose of recording all mechanic’s liens.</p> <p>4. Pleading.—Defective averments in the petition may be cured by the averments in the answer, and for this purpose both may be considered on demurrer.</p> <p>5. Mechanic’s Lien.—When materials are furnished under a single contract for buildings to be erected on two or more contiguous lots owned by the person contracting for them to be supplied, the lien attaches to all the lots. If the owner omitted to make separate contracts for the improvement of each lot, he can not be heard to say that a lien does not attach to all the lots for all the material used.</p>

Tried below before the Hon. A. S. Walker. On the twenty-eighth day of March, 1884, John Ireland, then Governor of Texas, and William Walsh, then Commissioner of the General Land Office, issued patents to lands in Greer county amounting in all to 144,640 acres, on which had been located certificates issued under the act of March 15, 1881.

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

Tried below before the Hon. G. H. Nbonan, , The opinion contains so full a statement of the case that but pttle remains to be added aside from reference to the evidence. ¡'4^16 testimony relating to the reasonableness of the contract for ''one-third of the ferry receipts for twenty years as- compensation for professional services was somewhat conflicting. The 'chief contest was regarding the reasonableness of the stipulated Tee.

<p>1. Separate-Property—Contract.—'When time is of the essence of a contract made by the husband and wife pertaining to land the separate property of the wife, the wife is not bound by any subsequent contract made by the husband alone, for the extension of the time limited by the terms of the agreement.</p> <p>3. School Lands—Husband and Wipe—Community Property.—One who bought from the State school lands in the name of his wife, because he had already applied for as many sections as the law entitled him to purchase in his own name, and who thus bought in pursuance of a contract with other parties, by the terms of which they also should purchase other sections, all of which were to be used by the contracting parties for mining purposes, must be presumed, in the absence of evidence, to have used community funds in acquiring the lands thus applied for in the wife’s name, and which were patented to her. If, at the time of the application to purchase, it was the intention of the husband that the land afterwards patented to the wife should belong to her, then, as to the husband and his heirs and those claiming under him with notice, the land would be regarded as the separate property of the wife.</p> <p>3. Same—Title to school land acquired by purchase from the State by a married woman, subjects the property to the same presumption that it is part of the community estate that would obtain if the title had been acquired from an individual. The fact that the statute, at the time of the purchase, prohibited the husband from acquiring more school land than he had already applied for, and that on that account he had applied for it in his wife’s name, would not, without other evidence, be sufficient to divest the land thus titled to the wife, of its community character.</p> <p>4. Same—Declarations—Evidence.—While it is true that the declaration of the husband made at the time when title to land is taken in his wife’s name, to the effect that he intended it to be her separate property, would make it such, as to him and his heirs, and that a declaration under like ' circumstances that he intended that it should be community property would give it that character, yet, when in her name he applies for and acquires school land, though his declarations made at the time are important in determining his true intent, when the rights of third parties are involved, all the facts and circumstances surrounding the acquisition of title should be carefully considered to ascertain the separate or community character of the wife’s interest.</p> <p>5. Same.—When the rights of third parties are involved, growing out of a contract with the husband anterior to the date of the application for the land and having reference to it, the character of title received by the wife will depend, not on the declarations of the husband at the time the application to purchase was filed, or on his testimony regarding his secret intentions concerning the title, but on a consideration of every fact and circumstance surrounding the transaction which might tend to' prove or disprove the alleged secret intent of the husband, that the land should belong solely to his wife. (See the opinion for a charge of the court in regard to the intent with which a husband applied for school land in the name of his wife, which, in view of the evidence, was misleading.)</p> <p>6. Contract—When Time is of the Essence of.—When one goes into-possession of land under a unilateral contract, which authorizes him during, or at the expiration of, the year for which he leases it, to consummate its purchase on terms stipulated, then time is of the essence of the contract.</p>

<p>1. Usury.—The fact that the agent of a money lender exacted and received from the borrower, for his own benefit, a sum of money, when a loan was negotiated, which loan was to be repaid with the highest rate of interest allowed by law, will not render the contract usurious if the sum was exacted without the knowledge of the lender.</p> <p>2. Pleading.—In a suit on a promissory note, a plea of usury, based on the allegation that the borrower paid to the agent of the lender, for negotiating the loan of a sum, which, added to the interest stipulated for in the note, would exceed the interest which might lawfully be charged, and which fails to charge that the sum exacted was demanded and paid with the knowledge of the lender, is bad on demurrer.</p>

Tried below before J. W. Ferris, Esq,, Special Judge. The first assignment of error referred to in the opinion is as follows: “First. The court erred in not charging the law of the case as developed by the evidence.” The third assignment was as follows: “ Third. The court erred in refusing the four special charges asked for by defendant, filed September 15, 1885.”

Error from Henderson. Tried below before the Hon. Felix J. McCord.

Tried below before the Hon. J. G. Hazlewood. Leon & H. Blum, through their agent, Zemanskey, sued out attachment on the ground that appellee was about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors.

Tried below before the Hon. Felix McCord. The opinion in this case details the oppressive and arbitrary act of a corporate agent in dealing with a citizen, who paid for the privilege of committing his body to be transported in the night time by the corporation, as a common carrier.

<p>1. Practice—Suggestion OF Delay.—When a record is filed in the Supreme Court by the defendant in error who suggests delay, and asks an with damages, he must in compliance with rule forty-four, file with his suggestion a brief statement of the character of the 'suit, the proceedings therein, and the j udgment rendered. Failing in this, though the judgment below may be affirmed, it will be without damages.</p>

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

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

<p>Assignment for Creditors.—A deed of assignment for the benefit of creditors which in the body of the instrument uses the partnership name, but which is signed with the names of the individual members who compose the firm, and which purports to convey all the property of the assignors of every description, conveys the property of the partnership as well as that of the individual members of the firm, and is not vitiated by a clause providing for releases by consenting creditors.</p>

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

Appear from Marion Tried below before the Hon. W. P. McLean. The syllabus states the character of the action and the verdict.

<p>Appeal from Marion. Tried below before the Hon. W. P. McLean.</p>

<p>1. Landlord’s Lien—Estoppel.—Whether the produce to which the landlord’s lien attaches is sold under order of court to enforce that lien, or by the landlord or tenant, the rights of á subsequent lien holder attach only to what shall remain after the landlord’s lien is satisfied. If the junior lien holder, by his declarations of a purpose not to look to his lien to enforce payment of his debt, induces the landlord and tenant to disregard his lien in the sale of the crop, he is thereby estopped from setting up claim that the landlord or tenant having possession shall appropriate any part of the proceeds to the payment of his debt.</p>

<p>Reconvention—Pleading—Attorney’s Fees.—In a suit on note to recover a debt, the payment of attorney’s fees stipulated for in the note, can not be defeated when the defendant admits that the principal and interest is due, by showing that the plaintiff had contracted when the note was given to release all claims for damages based on defendant’s violation of the covenants in another contract, and that another suit is pending in the same jurisdiction against defendant for such damages. If the defendant desires a cancelation of the contract on which the suit for damages is based, and to have the questions in both suits settled in one, he should move to have the cases consolidated; failing in this, he should pay the note according to its terms, set up his contract for the release of damages in the other suit, and thr-n seek a cancelation of the former contract on which the claim for damages is based.</p>

<p>1. Attachment—Lien—Sheriff.—The appellee, Taylor, while he was a sheriff, levied an attachment at the suit of appellant, on counters and shelving in a store house. The lot, house and stock of goods therein were already held under former attachments, to satisfy which they were sold by the sheriff’s successor in office, to whom the counters and shelving had not been turned over, and who had not taken possession because the doors of the house were looked. Neither the defendants in attachment nor any other person claimed or asserted any right adverse to that of the attaching creditors, to sell the same. In a suit by the attaching creditor against the sheriff who levied the writ, and his securities, to recover the value of the property seized, on the ground that the debtor was insolvent,—that the property had passed from the possession of the sheriff, and the plaintiff’s security had been destroyed, held:</p> <p>(1) The claim of no third party intervening, the property might still have been sold to satisfy appellant’s lien.</p> <p>(2) The fact that the purchaser of the goods, and the store house in which the counters and shelving were, went into possession thereof and used the latter for his convenience, constituted him a custodian, under the sheriff, of the property levied on, and not an adverse claimant thereof.</p> <p>(8) There having been no adverse possession or claim to the property seized, there was no abandonment or loss of lien as between the sheriff and the attaching creditor.</p> <p>(4) The statutes (Rev. Stats., arts. 1458, 1459) requiring the sheriff to turn over property to his successor, do not refer to the character of property above described.</p> <p>(5) It was the duty of the sheriff’s successor to execute the mandate of the court and sell the property, and his failure to do so could not be excused on the ground that his predecessor in office had failed to formally turn over to him the property.</p> <p>(6) The sheriff who levied the writ was not liable.</p>

Tried below before the Hon. W. P. McLean. The facts developed on the trial' of this cause, resulting in a verdict for twelve thousand dollars for the wife and the children of the deceased husband and father are not important in view of the opinion.

Tried below before the Hon. L. D. r Bradley. This suit was brought by Reiley in the form of trespass to try title, the only question involved being one of boundary. The 'plaintiff described his three surveys as bounded on the west by the eastern line of the Rutledge survey, which was made in 1889. The true location of the eastern line of the Rutledge was i the vital question in the case.

<p>Appeal from Marion. Tried below before the Hon. W. P. McLean.</p>

<p>Appeal from Class. Tried below before the Hon. W. P. McLean.</p>

Tried below before the Hon. W. P„ McLean. In this case the trial was had on June 3, 1887. After the adjournment of the term, on the seventeenth of September, 1887, what purports to be a motion to substitute a tender of issue in the case was filed by the appellants.

<p>Appeal from Franklin. Tried below before the Hon. W. P. McLean.</p>

<p>1. Tax Collector’s Bond.—Though the official bond of a county tax collector required to be given for the faithful discharge of his duties, in re-. gard to taxes due the county, is required by the statute to be made payable to the county judge, no matter to whom it may through mistake have been made payable, an action may be maintained in the name of such person for the use of the county for breach of its conditions.</p> <p>2. Same.—To maintain such an action, however, unless the bond on its face relates to taxes due the county, the mistake as to the name of the obligee • must be alleged and proved. That it was made payable to the Governor and filed in the county clerk’s office, is not of itself sufficient evidence of such mistake.</p> <p>3. Same.—In a suit against a collector of taxes, the county ledger required by the statute to be kept, is not admissible in evidence to show the state of the collector’s account with the county. The entries therein to the debit of the collector, made from his receipts for the tax rolls, would be inadmissible, though his receipts would be.</p> <p>4. Same—Evidence.—In such a suit it is unnecessary for the plaintiff to prove the election of the defendant as tax collector, when the bond, which is the basis of the action, recites that he is the tax collector; the signatures of the collector, and of the sureties to the bond, estop them from denying his official character.</p>

<p>Appeal from Bowie. Tried below before the Hon. W. P. McLean.</p>

<p>Appeal from Camp. Tried below before the Hon. W. P. McLean.</p>

Tried below before the Hon. W. P.. McLean. Suit by John S. Scott, for damages for injuries to him, caused by the explosion of a boiler of a pile driving engine, on February 6, 1886, alleging that the boiler was defective, and the engineer in charge of the same was incompetent.

Tried below before the Hon. A. S. Walker. A jury being waived, the trial judge filed the following conclusions found by him: “ 1. The allegations of facts in the petition are true. 3. The plaintiff is an institution of purely public charity, and its lots and building are occupied by it, and are not leased or used with view to profit; its rents and moneys are appropriated to sustaining it as a charitable institution.

<p>1. Trial of Right of Property.—In a proceeding under the statute to try the right of property levied upon to satisfy a judgment, if the issue is determined against the claimant, judgment should be rendered against him and the. sureties on his bond for the value of the property with interest from the date of the bond; and in the absence of fraud or collusion between the judgment creditor and debtor, the claimant can not be permitted to go behind the judgment and inquire into the debt upon which that judgment was rendered.</p> <p>2. Case Overruled—Landlord’s Lien.—Reference again made to the fact that the case of Green v. Bear Bros. (5 Texas Law Review), is over* ruled. A landlord has a lien on the house leased by him, on all the property of the tenant it contains, not exempt from forced sale, for all rent accrued and to accrue during the entire term of the lease.</p>

Tried below before the Hon. J. M. Hall. This suit was brought by the appellees, Thos. Goggan & Bro., against H. M. Dillard to recover the value of a piano and rent for the same. The property was sequestered by the plaintiff.

Tried below before the Hon. H. Teichmueller. Suit instituted by appellee, O. S. Cock, for damges resulting from the alleged negligence of defendant about the thirty-first of August, 1884. Appellee was a .justice of the peace residing at San Marcos, Hays county. At that time appellant owned and operated a line of railway, extending from Laredo to and beyond Taylor, and was a carrier of freight and passengers, over said line of road for hire.