Volume 69 — Texas Reports

<p>1. Legislative Grant.&emdash;When in a State Constitution there is found nothing to prohibit the Legislature from, making a grant of land, the power exists to ratify a former act of legislation which attempted to make a grant which was prohibited by the Constitution then in force.</p> <p>3. Evidence.&emdash;When one claims a benefit under a statute he should bring himself, in a suit that involves his right, by allegation and evidence, strictly within the terms and conditions of the law by virtue of which the benefit is claimed.</p> <p>8. Same.&emdash;When the proviso to a confirming aet of the Legislature restricts its benefits to designated persons who on account of meritorious service are to receive such benefits as a bounty, the fact that a claimant of such bounty belongs to the designated class, is in the nature of a condition precedent and must be shown, before he can recover.</p> <p>4. Actual Settler&emdash;Statute Construed.&emdash;The act of March 81, 1883, (Laws of Eighteenth Legislature, page 38), confirming headrights and bounty warrants issued under former special laws which were passed between March, 1870, and April 17,1876, was legal and valid, but in order to be effective to one claiming its benefits as a settler entitled to a head-right, he must allege and show that he was an actual settler in Texas as far hack as March 3, 1836. The issuance of a patent by the Commissioner of the General Land Office, can not affoiffi evidence of this fact.</p>

Tried below before the Hon. J. V. Cockrell. The character of the action, and so much of the conclusions of law and fact as were found by the trial judge, deemed important, are manifest from the opinion.

Tried below before the Hon. T. L. Nugent. This suit was commenced by the appellee, A. Day, against the appellants, I. Stone, Rosa, Sarah and Zatie Stone, to try title to three lots, situated in Cleburne, and to recover possession thereof with rents and damages. Verdict and judgment in favor of the appellee for the land and for one thousand two hundred and thirty-eight dollars and fifty cents for his damages, from which appellants prosecute this appeal.

Tried below before the Hon. D. P. Marr. This suit was brought by the heirs of Joseph McGinnis to recover one-third of a league of land. There was no evidence direct of the death of Joseph McGinnis. He was heard from by letter in 1848, and indirectly in 1851, when he wrote to his brother from California. There was no evidence that he ever established a home anywhere after he left Ohio in 1834.

Tried below before the Hon. B. W. Rimes. This suit was brought against Sanger Brothers by the appellant to recover damages.

Error from Hood. Tried below before the Hon. T. L. Nugent. Suit by defendants in error to recover an undivided interest in one thousand three hundred and forty-five acres of land, part of one thousand nine hundred and twenty acres, patent to Which issued to the heirs of J. C. Grace in 1847. The plaintiffs claimed by inheritance as heirs of Grace.

Tried below before the Hon. William Kennedy. In this suit, the appellees in possession of the land sued for claimed through mesne conveyance under a deed from one 0.

Tried below before the Hon. Wm. Kennedy. This suit was brought by appellant against Yandell, appellee, and W. A. Gray and A. M. Waldrup, on a promissory note, joint and- several upon its face, but which it was alleged in the answer that Gray and Waldrup signed as sureties. The answer alleged that Yandell was non compos mentis when the noté was made and that there was no consideration therefor.

<p>1. Pleading — Forged Checks. — A bank was sued by a depositor, whose pass book had been balanced and all checks returned to him in June, for an amount paid by the bank on forged cheeks drawn in the depositor’s name, which forgery was discovered during the following August, when repayment was demanded. The bank pleaded that the depositor, having failed to discover and give notice of the forgery in a reasonable time, the plaintiff was estopped from questioning the correctness of the account, but failed to allege any injury or loss to the bank from the failure to sooner notify it of the forgery. Held, that exceptions to the defense were properly sustained.</p> <p>2. Same. — See opinion for plea by defendant setting up the laches of the plaintiff by way of estoppel, held good on general demurrer.</p> <p>8. Depositor — Forged Checks — Degligence.—A bank is not liable to a depositor, when money has been paid out by it on forged checks, if the depositor, after receiving a statement of his account by which he is enabled to ascertain the forgery, neglects to inform the bank thereof in a reasonable time, and thereby it loses the opportunity of recovering the money, which it could have secured if promptly informed.</p> <p>4. Estoppel. — An estoppel may be created, not only when the party sought to be concluded knows the material facts he is charged with having rep. resented or concealed, but also where he is in such position that he ought to have known them, so that knowledge will be imputed to him.</p> <p>6. Depositor — Forged Checks. — It is the duty of a depositor to know whether his account with a bank is correct or not, and promptly to report a forgery when detected. Should he negligently fail to- make the examination and consequent discovery, when it could have been discovered, it is as if he ha*! expressly admitted the genuineness of the forged checks, and he will not afterwards be permitted to deny their genuineness, provided the bank has been prejudiced by his failure.</p>

Tried below before W. M. Flournoy, Esq., Special Judge. This suit was brought by E. G. Hanrick against Ike Casey in the district court of Falls county on twenty-sixth of October, 1881, to recover fifty acres of land out of the Le Serda eleven league grant, with the rents therewith accruing.

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

<p>I. Right of Action — Corporation.—An inquiry may he made, by quo warranto, into the legality of a corporation, when the right of a person claiming to be an officer under the terms of its charter, to exercise such powers as the charter proposes to give, is called in question.</p> <p>3. Jurisdiction. — The findings of a county judge under the provisions of article 508, Revised Statutes, that the territory sought to be embraced within a contemplated municipal corporation has the population required by statute, is conclusive, since the law provides no means whereby his findings may be revised.</p> <p>8. Election — De Facto Officers. — When an election has been held for officers of a municipal government, at the time prescribed by the statute (Rev. Stats., 519, 345), at which, election the will of the voters has been fairly expressed, and which was preceded by every legal step necessary to a valid election, except that the election was ordered by de facto officers, exercising the powers of mayor and aldermen, such election must be deemed valid.</p> <p>4. Corporations. — The Legislature may make the question whether a eor_ poration has been created or not, depend on the action and determination of some official or tribunal whose determination the courts will have no power to revise, and if this be done, in a proceeding by quo warranto against persons who assume to exercise the powers given by the act of incorporation, no inquiry could be made into the legality of the corporation.</p>

<p>1. Fraudulent Conveyance. — A conveyance of land by a parent engaged in the mercantile business was made to her book keeper, who was her son, who knew the condition of her business; that she was insolvent at the time she made the .deed, unable to meet her debts as they fell due> and with assets less than her indebtedness. Under this condition of affairs the deed was made, and the son gave his note for deferred payments, the last of which was paid, and also á balance due the son from the mother was settled, in notes and accounts of the latter, and this after attachments against the mother’s property were levied on the land. It was sold under those attachments, and in a contest between the purchaser at foreclosure sale and the son, held:</p> <p>(l)'The natural and ordinary result of the transaction was to withdraw the land from the reach of creditors; this the parties must be held to have intended, with a view of hindering and delaying creditors. Had the land been conveyed in satisfaction of a pre existing debt, the conclusion might be different.</p>

<p>1 Parol Trusts. — A creditor having a deed of trust upon property to secure his debt, instead of foreclosing the trust deed, accepted from Ms debtor a deed, absolute upon its face, under a parol contract, whereby the creditor agreed that in consideration of the execution of a deed absolute on its face, he would, hold the legal title until such time as the land would bring its highest market value, when he would sell the same, and pay to the vendor what might remain after liquidating the debt, with interest and taxes, held: The contract could be enforced after a sale of the land and the vendee compelled to pay over after satisfying the original debt, whatever might remain of the proceeds of the sale.</p> <p>8. Practice — Statement oe Pacts. — The Supreme Court can not impeach . the truth of a statement of facts agreed on by counsel, and signed by the trial judge. If any portion of it fails to agree with a bill of exceptions which refers thereto, there is no means whereby the Supreme Court can tell which is correct, or whether error was committed in the matter to which the exception refers.</p>

<p>!'l. Affidavit. — Construing article 6 of the Revised Statutes of Texas, held, that the signature of an affiant placed under the following jurat: “Sub" scribed by the said David H. Kohn, and by him sworn to before me this the 31st day of August, A. D. 1885,” is sufficient.</p> <p>r%. Attorney — Surety.—The rule of court in Texas which provides that no attorney or other officer of the court shall be surety in any case pending in court except under special leave of the court, is directory, and if such officer or attorney become such surety his act is neither void nor voidable.</p>

<p>1. Partition. — After seven years acquiescence by parties in interest to a verbal partition of land, fairly made, and under which the parties have held possession in severalty of the parcels allotted, the partition was held valid and conferred title.</p> <p>2. Contract — Vendor and Vendee. — A contract for the sale of realty can not be avoided by showing that the vendor’s title at the date of the contract was not perfect, if before the trial the vendor had. secured the title.</p> <p>3. Parol Evidence — Deed.—Parol evidence that a witness had been called to witness a sale of land, is admissible, not for the purpose of establishing a sale, hut as a circumstance explanatory of the purpose with which a deed was afterwards delivered to the alleged purchaser, the fact that it was delivered in consummation of a purchase being controverted.</p> <p>4. Judgment — Vendor’s Lien. — In rendering judgment fov an amount due as purchase money on land it is error to foreclose a vendor’s lien on the land and to direct its sale to satisfy it, in the absence of evidence that a vendor’s lien, was reserved by the terms of sale.</p>

<p>1. Perading — Evidence . —When a proclamation offering a reward for the stealing or embezzling of cmoney from an Express Company was alleged in a suit against it, to have been made by the company, acting through designated parties as its officers, the authority can not be questiones by the defendant, except on a plea of non est factum, filed as required by statute.</p> <p>S. Evidence. — In such a suit the declarations of a third party who assumed to act for the company, are not admissible in evidence against it for the purpose of showing that the defendant agreed to pay the reward, in the absence of evidence showing his authority to make them, when there is no proper plea setting up such íSÉÉwrity, and this, though they were made by the superintendent of ij^^^^pany. ______________</p> <p>8. Contract. — A proclamation by é^H^resféSTtopay a designated sum for the arrest of two persons who nad stolen or embezzled money, eonstitutes, when acted on by one who makes the arrest of both persons, a contract which may be enforced; but it is single in its nature, and no right of action exists to recover any portion of the reward for the arrest of but one of the parties, when the failure to arrest the other, is not caused by the fraud or fault of the person offering the reward.</p>

Tried below before the Hon. W. A. Blackburn. This suit was brought by the appellee, J. T. Bartlett, against the appellant, The Missouri Pacific Railway Company, June 9, 1884, in Bell county for the value of thirty-five bales of cotton placed by plaintiff upon defendant’s platform for shipment, which he alleged were destroyed by fire from defendant’s locomotive through the negligence of the defendant.

<p>Appeal from Tarrant. Tried below befor^he Hon. R. E. Beckham.</p>

Tried below before I. P. Hutchison, Special Judge. This suit -was brought by John Colgate against D. E. Gas-ton and Coleman Sc Davidson, to whom Gaston, acting as the agent of plaintiff, had sold wool belonging to the plaintiff. The defendants Coleman Sc Davidson set up, by way of defense, that Gaston and one Starkneacter were the general agents of the plaintiffs, and they pleaded, in set off, the value of goods sold and delivered to Gaston.

Falls. Tried below before the Hon. Eugene Williams. This suit was brought by E. G. Hanrick, in form of trespass to try title, against A. B. Gaither, for a tract of land in Falls county, on tenth of August, 1883, describing it by metes and bounds, and alleging that said tract was r, part of a survey of eleven leagues, granted to Rafael de Aguirre.

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

<p>1. Tax Sale. — Ordinarily it is requisite to the validity of a tax sale that the property sold shall have been described when listed for taxation by the number of the certificate under which it was surveyed,</p> <p>g. Same. — A failure to give the notice required by law of the place where a tax sale will occur, vitiates the sale. A recitation in the tax deed that the tax collector offered the land at public auction at the time, place, and in the manner required by law, is not evidence of either fact.</p> <p>3. Same. — A tax deed which conveys all of a tract of land except the half of the same on which taxes were paid by another party, leaving uncertain as to whether taxes had been paid on an interest described by metes and bounds, or on an undivided interest, conveys no title.</p>

<p>1. Jurisdiction — Appeal.—The Supreme Court will not revise the judgment rendered in a cause when the transcript filed on appeal cont ains nothing but the judgment appealed from and proceedings in the court below after its rendition.</p>

<p>1. Tax Sales. — An omission to give in the tax list, by virtue of which land is sold at tax sale, the number of the certificate under which the land was located, as a general rule vitiates the tax sale.</p> <p>3. Same — Subrogation.—A void tax sale involves no equity that would subrogate the purchaser to rights of the State for taxes paid, and entitle him to re-imbursement from the true owner when sued by him to recover land. (See opinion for authorities cited) The same rule obtains as to taxes paid the State to redeem land which had been sold for nonpayment of former taxes.</p> <p>3. Purchaser at Tax Sale. — A purchaser at void tax sale can not, unless authorized by a statute, recover even the taxes lawfully assessed upon the land and paid by his purchase.</p>

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

<p>'31. Sequestration — Petition.—A petition properly sworn to, in which a writ of sequestration was prayed for, described the property to be sequestered as saw logs, in the defendants’ possession, in the county where the suit was brought, “each marked cross within a circle on the end of the log, averaging from fourteen to thirty feet in length and from one foot to thirty inches in diameter and containing in the aggregate about 463,TOO • feet by measurement.” The value of each log was stated. Held: that the property to be sequestered was described with sufficient certainty, there being nothing in the pleadings of either party showing that there was any other property than that seized, which answered the description given.</p> <p>% Same — Bond,—When sequestration is sought against several who are jointly sued, it is not necessary that the plaintiff should execute bond separately to each defendant.</p> <p>3. Mortgage — Description.—A chattel mortgage on certain logs then in a place designated, and on a certain number of other logs which were to be cut by the mortgagor on land described and placed with the former within a specified time, sufficiently describes the property on which the debt is secured. A morí gage on standing trees to be cut by the mortgagor is not void as a chattel mortgage.</p> <p>4. Same — Joinder oe Parties. — In a suit to foreclose a mortgage against parties, each of whom claims in his own right and holds possession of a portion of the mortgaged property, all may be joined as defendants. If the mortgaged propertv, after sequestration, be replevined by the defendants jointly, a joint judgment may be rendered against all; their joint liability resulting from their bond.</p> <p>5. Chattel Mortgage. — Construing section 2 of an act in relation to chattel mortgages, approved April 22, 1879, Held, that the statute does not require, when a copy of a chattel mortgage is filed with the clerk instead of the original, that the copy shall show that the original was acknowledged; that the copy is a true copy and that the original was acknowledged must be ascertained by the clerk before filing. If a copy is filed, and either the correctness of the copy or the fact that the original was acknowledged be controverted, the original mortgage would afford the. best evidence.</p> <p>• 8. Evidence. — As against parties who bought property covered by a chattel mortgage, with notice of its existence, parol evidence to show that an entry made by the clerk as follows: “satisfied in-,” is admissible to explain the circumstances under which such incomplete entry was made and whether the mortgaged property had been relieved or not.</p>

<p>1. Common Carriers. — Considerations of public policy require that a com. pany operating a sleeping car attached to a railway train, and used for the comfort and transportation of passengers, should use reasonable care to guard the passengers from theft. When a failure to exercise such cara results in the loss by theft of such personal effects as a passenger may reasonably carry with him, the sleeping ear company is liable.</p> <p>2. Same. — The liability of the sleeping car company is not affected by the fact that the railway company, to whose train the sleeping ear is attached may receive the greater part of the money paid by the passenger for his transportation. The sleeping car company is still a carrier of .passengers, and it is liable as such.</p> <p>8. Same. — If the passenger retains the exclusive control of his baggage, the carrier is not responsible for its loss, unless such loss results from the carrier’s negligence.</p>

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

<p>1. Burden of Proof. — When, in a proceeding under the statute for the trial of the right of property to goods, the return of the sheriff does not disclose in whose possession the property was found when a writ of attachment was levied, the burden of proving that the goods were in the possession of the defendant in attachment, is upon the plaintiff,</p> <p>a. Sale; When Consummated. — When anything remains to be done by the seller, such as counting, weighing or measuring, the title to" the thing sold does not pass when either of these operations is necessary in order to separate the goods from the mass of which they form a part; but when the entire mass is sold, and must be measured, counted or weighed, with a view to the ascertainment of its price, for the purpose of settlement, the title passes.</p> <p>8. Charge of Court. — A new trial should he awarded when the charge of the court is so worded as to assume the existence of a material controverted fact involved in the issue, regarding which the evidence is conflicting, and the verdict is in accordance with such assumption.</p> <p>4. Evidence. — The declarations of a vendor made after the sale are not admissible to affect the title to the property sold, when offered in contro versy between third parties involving the ownership of the goods.</p>

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

Tried below before the Hon. James I. Perkins. Suit by F. E. Griffin against the appellants upon a promissory note signed by F. E. Thompson, purporting to be given to John R. Bugg for a second payment due upon a tract of land sold to the maker of the note by Willis Bugg.

<p>1. Vendor’s Lien". — A vendor’s lien, which exists by operation of law to secure unpaid purchase money for which promissory notes have been executed, is not affected by the substitution of other notes in lieu of those first given.</p> <p>8, Same. — Though the vendor’s lien is one which equity embraces, and is . not, strictly speaking, created by contract, yet our decisions recognize the right of parties to create by contract on the sale of land a lien which will bind the land for unpaid purchase money. Such a lien will be enforced when made by the parties, and its technical misdescription in a note intended to secure it, will not affect it.</p> <p>8. New Trial. — It is no ground for new trial that a party represented by attorney was absent on the day of trial, and that if present he could have established by his own evidence facts material to his cause which were not known to his attorney.</p> <p>4. Practice. — When a judgment appealed from can properly be reformed and rendered, and the appellant could, upon proper notice, have had the judgment corrected in the court below, and thus have rendered an. appeal unnecessary, he will be taxed with the costs of appeal in addition to the costs adjudged against him below.</p>

<p>Appeal from. Hunt. Tried below before the Hon. J. A. B. Putnam.</p>

<p>Appeal from Navarro. Tried below before the Hon. Sam R. Frost.</p>

Tried below before the Hon. J. M. Hall. This suit was brought by Moore to recover damages for injuries caused both to person and property by the moving train of the appellant. His hack was destroyed, and two horses, he alleges, were killed, and he severely injured and his health impaired. The injury happened at a railway crossing, and it was charged that the proper signals were not given from the locomotive before the crossings were reached by the train.

<p>1. Fraud. — A creditor may receive goods in payment of his debt, though it may result in hindering other creditors, provided the goods taken are in value reasonably proportioned to the debt extinguished, and provided also, that the debtor reserves to himself no benefit in the goods thus transferred.</p> <p>2. Same. — The goods thus used in the payment of the debt must be no more in value than reasonably necessary to discharge the debt. A slight excess in value will not vitiate the transaction.</p> <p>8. Fraudulent Transfer. — The commissions which a debtor by agreement is to receive on a stock of goods to be sold by him, which he had transferred to his creditor in payment of a debt, and which he was to retain possession of and sell for such creditor, is not the reservation of such an interest in the property as will vitiate the transaction for fraud.</p> <p>4. Same — Fact Case. — See opinion of the court for facts under which it was held that a judgment should be reversed, based on conclusions of fact found by the trial judge, under which he found that a sale of goods by a debtor to his creditor in satisfaction of the debt was fraudulent.</p>

<p>Appeal from McLennan. Tried below before the Hon. B. W. Rimes.</p> <p>This suit was brought by Owen against Glasgow to recover damages for an alleged malicious prosecution begun by Glasgow against plaintiff, in which he was alleged to have been maliciously and without probable cause charged with cutting and breaking down Glasgow’s fence, in McLennan county — verdict and judgment for plaintiff for two hundred dollars. Owen, it seems, was overseer of a road for Hill county, which was ordered to be opened into McLennan county near the line and through Glasgow’s pasture. In opening the road, Owen cut, or caused to be cut, Glasgow’s fence within the limits of McLennan county. Glasgow had obtained an injunction to restrain the cutting on the eleventh of September, 1884; the fence was cut on the twelfth, but the injunction was not then served. It was in evidence that an attorney had advised Glasgow that Owen had violated the law and could be prosecuted.</p> <p>The court instructed the jury that if they believed from the evidence “that plaintiff was duly appointed and commissioned overseer of the road in question, and was proceeding in good faith to open the said road along the line designated to him by the order of said court, and cut said fence under a claim of right, and the honest belief that the same obstructed the opening of said road, then the fact, if it be a fact, that said fence when cut was located in McLennan county would not relieve defendant of liability for damages, provided the proof shows satisfactorily to the jury that he acted maliciously and without probable cause in causing plaintiff to be prosecuted therefor.” This charge is assigned as error.</p> <p>The court in the charge defined probable cause as follows: “By probable cause is meant the existence of such facts and circumstances as would excite belief in a reasonable mind, act- . ing on the facts within the knowledge of the prosecutor that the person charged was guilty of the offense for which he was prosecuted.” The charge defined malice as follows: “Any</p> <p>unlawful act* done willfully and purposely to the injury of another, is as against that person malicious; this wrong motive, when it is shown to exist, coupled with a wrongful act, wilfully done to the injury of another, constitutes legal malice.”</p> <p>And upon the subject of consulting counsel the court instructed the jury that if, before Glasgow made said affidavit against plaintiff and caused the prosecution to be instituted against him, he said Glasgow submitted a full, fair and correct statement to an attorney of all the facts'and circumstances connected with the cutting of said fence, and said attorney upon a consideration of all the facts advised said Glasgow that they were sufficient to authorize said prosecution, is entitled to consideration by the jury in determining whether said Glasgow was prompted by malicious motives in causing said prosecution against plaintiff to be set on foot and if you believe that defendant sought the advice of counsel in regard to said prosecution before it was begun and after a full and correct statement of all the facts connected therewith; to said attorney, the said attorney advised him, that plaintiff had been guilty of the offense charged and that acting upon such advice (if any), the defendant in good faith caused said prosecution against plaintiff, honestly believing that plaintiff had committed an offense against the penal laws of the State, then the jury may take that fact into consideration in determining the issue of malice.</p> <p>The defendant asked the court to instruct the jury, that to justify a finding for plaintiff, they must find that he was prosecuted as alleged and that the prosecution was at an end, which ' was refused by the court and the ruling assigned as error.</p> <p>The record does not show that there was any evidence upon the subject.</p>

<p>1. Jurisdiction — County Boundaries. — The amendment made by the act o£ April, 1885, to section 8, of the article of a former act which provided for the settlement of disputed county boundaries (Rev. Stat., appendix, p. 27), does not authorize a county to institute suit in the district court until it has taken the preliminary steps after the amendment went into effect that were required by the original statute.</p> <p>8. Construction oe Statutes — Retroactive Law. — In the absence of any special indication, or reason, as a common rule, a statute will not be applied retrospectively even where there is no Constitutional impediment.</p>

<p>1. Jtjdq-ment by Defatjlt. — No judgment by default can be entered In a case where the petition setting forth the cause of action has been substituted, with no notice given either to the defendant or to any one authorized to represent him, and this without regard to whether the defendant has been injured by the judgment or not.</p>

Tried below before the Hon. T. A. Falvey. The appellant in this case sued to recover from Pecos county, from whose territory it was created, taxes collected between the date of the act authorizing its organization and the time when. it became, by the election of its officers, etc., under the statute, a new county, and for its pro rata of the money claimed to belong to Reeves county.

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

<p>Appeal from Navarro. Tried below before the Hon. Sam R. Frost.</p>

Tried below before Chas. I. Evans,. Esq., special judge. In this case, both parties Claimed title to two lots and improvements thereon, under J. M. Cupp & Co., and through sheriff’s sales made under orders of 'saje ■ on judgments rendered on attachment suits against Cupp & Co., foreclosing attachment liens. - ' ■ • - Appellee, through a sale made on the third day of July, 1883, under an order of sale issued by the clerk of the district court of Tarrant county, on a judgment…

<p>1, Parties — Joinder of Causes of Action. — It is not error to join in the same suit, claims for property converted, and for damages proximately ■ resulting from a breach of contract, when the matters relied on for a recovery are connected with and grew out of the same cause of action , and subject matter in dispute; in such an action it is proper to join all the parties as plaintiffs or defendants, who have so participated in the transaction as to render them interested in the determination of the suit.</p> <p>3. Pleading — Exhibits.—When a paper is made an exhibit in a plea, and its verity is alleged, it must be taken in aid and explanation of the averments in the pleading which refer to it.</p> <p>S. Construction op Contracts. — All preliminary negotiations, whether written or unwritten, which have led to the execution of a contract, are deemed to have been merged in it, and the writing which consummates the contract must be taken as expressing the views of the parties.</p> <p>4. Same — Evidence.—While contemporaneous writings may be considered, in construing a contract, when they are reciprocally dependent, and the meaning of one can not b"e wrought out, without considering the other, they can not be considered for the purpose of showing that the parties did not agree upon a stipulation, plainly expressed in a writing which purports to be the final and only contract between the parties.</p> <p>5. Contract. — A contract and bond executed by contractors and their sureties, with the commissioners of a county, some of the provisions of which were not in accord with a former order of the county commissioners court which reférred to the contract, can not be avoided by the contractor and sureties who thus assented to a disregard of the prior order.</p>

Tried below before the Hon. A. S. Walker. This suit was instituted in the district court of Travis county on the twenty-sixth day of December, 1883, by the State of Texas, by and through her Attorney General and District Attorney, against J. A. Rhomberg, P. M. Robinson, George Berden, H. W. Day, Alonzo Cragin.

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

<p>3. Construction of Wills. — In construing a will, all of its provisions should be regarded for the purpose of ascertaining the intention of the testator, and if any particular paragraph of the will indicates an intent varient from that which is manifest from a consideration of all the other provisions, the general intent thus manifest must prevail.</p> <p>Same. — The words “I will and desire," when used in a testamentary paper, indicate a mental decision that something shall be done, or refrained from and makes this madatory, rather than directory.</p> <p>8. Same. — When the same words are used in different parts of the .will relating to the same subject matter, the presumption exists that the testator intended that they should have the same signification, unless there is something in the context indicating that they were used in a different sense.</p> <p>4. Same. — A will contained the following clauses: “3d. It is.my will and desire that my beloved husband shall have all my property, both real, personal and mixed, whatever the interest may be, whether separate or community interest. And that he shall have full power and control over same, to sell and dispose of as he may desire. “4 It is my will and desire that at his death, snould he have any of said property still remaining in his possession, not disposed of by him, that the same shall he given by him to my nieces, Jessie McMurry and Flora Brown, daughters of Vina and Taylor Brown." In a contest between the executor of the husband named in the third clause and the beneficiaries under the fourth clause, held;</p> <p>(1) The third paragraph of the will can not be construed so as to pass to the surviving husband an absolute estate in fee, for his sole benefit, -without nullifying the succ.-eding paragraph.</p> <p>(3) Though the third paragraph of the will vested in the surving husband an estate in fee, it was a fee ■ in trust for the beneficiaries named in the fourth paragraph of the will, except as their right was limited by the authority vested in the husband by express terms to dispose of the the estate during his life.</p> <p>(3) The doctrine that the absolute power of disposition given to one who is constituted the first beneficiary under a written instrument, for his own benefit, renders a subsequent limitation void for repugnancy, should not be applied to wills, when it clearly appears (construing the-entire will) that the testator did not intend that such first beneficiary should have an absolute estate in fee for his own use and benefit.</p> <p>(4) The testatrix must have intended from the language used, to leave her surviving husband no discretion as to how he should dispose by last will of the property she devised, and which at his death he had not alienated.</p> <p>(5) The objection that the trust created by the fourth paragraph of the will was not sufficiently certain, is without force. It could be made certain by ascertaining what property received by him under the wife’swill remain undisposed of by the husband by deed or gift up to the-time of his death. .</p>

<p>Appeal from Grayson. Tried below before the Hon. R. MaTbie.</p>

<p>1. Homestead. — The benefit of the homestead law can not extend to a man and woman living together in adultery; they do not compose such a family as can be recognized by law. But a natnral obligation rests on the father of illegitimate children to support them, and they living with him may constitute such a family, as may assert homestead rights.</p>

<p>Error from Shelby. Tried below before the Hon. J. G. Hazelwood.</p>

<p>1. Homestead. — An insolvent debtor who has assigned for the benefit of creditors, who at the time of such assignment has a homestead in which his family resides, can not afterwards claim homestead rights in another piece of property which he had begun to improve with a view of making it a home, but did not occupy as such, at the time of the assignment.</p> <p>2. Abandonment. — Abandonment of a homestead occupied as such, can not be accomplished by mere intention; there must be a discontinuance of the use, coupled with an intention not again to use as a home, to constitute abandonment, and without the abandonment of an existing homestead no right can exist to fix that character to another property, unless it be by way of addition to the existing homestead.</p> <p>3. Case Distinguished. — This ease distinguished from Franklin v. Coffee, 18 Texas, 417; Barns v. White, 5 Texas, 628; Swope v. Stanzenberger, 59 Texas, 390; and Gerdner v. Douglass, 64 Texas, 79.</p> <p>4. Homestead. — The doctrine above announced with reference to a residence homestead, applies also to the business homestead.</p> <p>6. Charge of Court — Homestead.—See opinion for a charge of the court regarding homestead rignts, held erroneous.</p>

Tried below before the Hon. D. P. Marr. In this case the appellant, John S. Hickman, who was the husband of his co-plaintiff, Lucretia Hickman, sued Josefa Stone to set aside for fraud a conveyance made by the plaintiffs to Josefa Stone, of Lucretia Hickman’s interest in her deceased father’s estate. That father, William Stone, was the husband ■of the defendant, and she, under his will administered his estate without bond.

Tried below before the Hon. W. A. Blackburn. This is a suit of trespass to try title which was instituted by Catherine A. Willis, and others (who are admitted to be the heirs of Matthew Byrne, deceased, who was killed at the maesaere at Goliad in March, 1836,) in the district court of Bell county, Texas, on December 8, 1883, against J. T. Alexander and others, for one thousand two hundred and eighty acres of land in Bell and Falls counties, Texas, patented to heirs of Mathew…

<p>Appeal from Busk. Tried below before the Hon. J. G. Hazel-wood.</p>

Tried below before the Hon. B. W. Rimes. In 1877 a suit was pending in the district court of Falls county, by appellee against appellant, for the recovery of the Harvey three hundred and seventy acres survey of land, which is east of and claimed to be contiguous to the Moore survey, which is claimed by appellant.

Tried below before the Hon. L. W. Moore. The opinion states all that is necessary to its proper understanding except the following: A witness, Brackenridge, was allowed to detail to the jury, over the objections of defendant, the following conversation had by him with, J. K. Painter, an employe of defendant: “Mr. Painter said the poles were on the railroad right of way, and that I must remove them.

<p>1. Attachment. — When the petition, for attachment and the affidavit j thereto states the same sum of money as being due from the defendant, on ¡ account consisting of many items which is attached to the petition as j an exhibit, and it is found that by correctly adding up the items, they do I not aggregate by a small amount the sum alleged to be due, the variance ■ will not vitiate the writ. \</p> <p>2. Same. — An amendment to a petition for attachment varying the date ' on which the original petition alleged that the debt was due, will not j vitiate the attachment.</p> <p>8. Attachment Bond. — It can not be assumed as matter of law that the conjunction of two names signed as sureties to an attachment bond, as is usual in the style of partnership, represents a partnership consisting of two persons. If it did, and the partnership name was thus signed to an attachment bond, it would not necessarily vitiate the bond. In such l case the presumption would be, that the officer who took the bond satisfied himself that the member of the firm who signed the partnership name, had authority to sign it.</p> <p>4. Bond Surety. — Whenever the authority of one who signs a partnership name to an attachment bond is questioned, it should be done by plea raising an issue of fact, and not by motion.</p> <p>6. Attachment Bond. — It is hazardous and tends to complicate the rights of parties in proceedings by attachment, for the officer to receive a partnership as surety on an attachment bond. The necessity of legislation on the subject suggested.</p>

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

<p>Error from Shelby. Tried below before the Hon. J. G. Hazelwood.</p>

<p>Appeal from Panola. Tried below before H. L. Stone, Esq., Special Judge.</p>

Tried below before the Hon. J. A. B. Putman. Syit against appellant, alleging that on March 2, 1886, plaintiff was a passenger on appellant’s cars between McKinney and Greenville, that when the train arrived at Greenville the passengers were informed “that the train stopped at Greenville twenty minutes for breakfast, and that they must all change cars, as that car went no further; that as soon as the train stopped,' the brakeman locked one door of the car, so all the…

<p>1. Homestead. — Under the law as it existed in 1863, title to land which was possessed and owned as a homestead vested absolutely in the widow of the deceased husband, he dying insolvent, freed from, all claim by his heirs, or liability to pay debts against his estate. It was not liable for any community debts contracted by the husband during his life.</p> <p>S. Homestead — Foboed Sale. — Even if by an agreement in partition between the surviving wife whose husband died in 1863, and his children, the main estate could be held bound to pay community debts under a judgment afterwards rendered against the surviving widow for a community debt, which was made the basis óf a subsequent judgment against her administrator, for payment in due course of administration as a charge upon all the community property remaining at the time of the husband’s death “as well as all the interest devised by him to her which may be subject to forced sale for the payment of debts,” the homestead of the wife would not be bound. Such judgment would constitute a complete bar to the right of such creditors and their privies to subject the homestead to forced sale. If the debt on which the judgment was rendered was one for which the wife was personally liable, a judgment might have been rendered against her administrator which would have subjected her termer homestead to sale, she having died leaving no constituent of the family.</p>

<p>1. Pleading. — A plea in abatement, filed after an answer to the merits, should be disregarded.</p> <p>2. Abatement. — When matters pleaded in abatement do not appear of record, the plea must be sworn to; and if the affidavit is to the truth oi the plea; according “to the best of affiant’s knowledge and belief,” it is fatally defective.</p> <p>•8. Judgment. — A judgment based on a verdict returned in response to an issue not presented ay the pleadings will be reversed.</p>

Tried below before the Hon. B. W. Rimes. Appellees who were plaintiffs below, alleged in substance that defendants were the heirs at law, children and descendants of Jesse Russell, deceased. That Jesse Russell acquired a headright for a league and labor of land issued by the Board of Land Commissioners in 1838, by the commissioners of Sabine county; that it had been lost or mislaid; that in 1850, Wm.

<p>Appeal from Clay. Tried below before the Hon. P. M. Stine.</p>

<p>Appeal from Hunt. Tried below before the Hon. J. A. B. Putman.</p>

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

<p>1. Jurisdiction. — When the amount'in controversy is exactly five hundred dollars, the district court has no original jurisdiction.</p>

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

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

Error from Ellis. Tried below before J. W. Ferris, Special Judge. • Plaintiffs in error sued the insurance company of Forth America, on a fire policy for the sum of fifteen hundred dolíais.

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

<p>1. Quo Warranto. — A proceeding in the name of the State, and in the nature of quo warranto, upon the relation of one entitled to the office of district clerk, may be maintained by him to oust an intruder who has obtained possession and assumes to exercise the functions of such office.</p> <p>2. Election — Ballot—Statute Construed. — It must be held in favor of the right of suffrage, that the statute regulating the character of ballots that may be used at an election should be strictly construed and words printed on the face of a ticket, other than those allowed by the terms of the law, will not vitiate it if they do not amount to a device or mark within the meaning of the statute. The printing of the name of the political party to which the candidate belqngs will not vitiate the ticket, Nor is it vitiated by the fact that at a general election the names of more than one political party are found on the ticket above the names of the candidates who belong, respectively, to such parties.</p> <p>3. Same — Returns oe Election. — The original returns of election are admissible, in a ease of contested election, as prima facie evidence of the truth of what they contain, when produced from the custody of the eóunty clerk, in whose office they were deposited by the managers of the election.</p>

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

<p>1. Homestead — Tenant in Common. — The principles which are decided in Clements v. Lacy, 51 Texas, 156, and in Jenkins v. Volz, 54 Texas, 639, to the effect that a tenant in common is entitled to a homestead estate in lands thus held, and that such estate is not confined to an undivided interest in the two hundred acres constituting the rural homestead, but may be an undivided interest of two hundred acres in the entire tract, reaffirmed in this ease.</p> <p>3. Homestead — Statute Construed. — Construing article 2336, Revised Statutes, held: That a tenant in common who establishes and improves a homestead place on the common property, is entitled in partition to have allotted to him the portion of the land so improved, or so much of it as may be equal in value to his share of the entire tract, independent of the improvements.</p> <p>3. Homestead. — When on a rural homestead improvements are made at the joint expense of two tenants in common, the homestead being occupied and claimed as such, by only one of them, the occupant is entitled to his ttvo hundred acres embracing the homestead improvements, and his co-tenant would in partition be entitled to an allowance for the amount expended by him in the making such improvements.</p>

<p>1. Usurious Interest. — When partial payment is made to a national bank under a contract to pay usurious interest, in the absence oí a stipulation as to how the payment shall be appropriated, the law will apply it in liquidation of that portion of the contract which is legal, and the bank may afterwards avoid the penalty fixed by act of Congress for collecting usurious interest by relinquishing claim for it. If, however, a partial payment on the debt is, by agreement between the bank and the debtor, appropriated to the payment of usurious interest, the locus penitential can not exist, since the offense has been consummated and the right to recover the penalty is fixnd.</p> <p>3. Partnership. — A partner may bind his firm by the release of a debt due the partnership of which he is a member, if the debtor has neither knowledge nor notice that the partner is acting in violation of his obligation and duties to the firm, or for purposes disapproved of by the firm, or in fraud of its rights.</p> <p>3. Release — Partners—Usurious Interest — National Banks. — A settlement and release executed by a member of a copartnership to a national bank which had collected usurious interest from the firm, recited: “ We (the firm) do renounce and declare to be fully satisfied any and all rights, rights of action, .claim, or demand, that we may have or be entitled to under any law of the United States, to recover any sum of money from said Ennis National Bank, by reason of us having paid heretofore to said bank any interest at a greater rate than twelve per cent per annum,” held:</p> <p>(1) The release, though it may have been made with fraudulent intent as to the other partners, was binding on the firm when accepted by the bank in ignorance of such fraudulent intent.</p> <p>(2) Farnival v. Weston, 7 Moore, 356, and Arton v. Booth, 4 Moore, 171, cited.</p> <p>(3) The mere fact that a partner has executed a release.without the consent, or even against the opposition of his copartners, and that this is known to the party who accepts the release, will not of itself justify the conclusion that the release was fraudulent.</p>

<p>1. Heirs — Descent and Distribution. — Under the civil law in force in Texas in 1886 the brothers and sisters of the full blood and children of brothers or sisters of a deceased brother or sister of the full blood inherited the estate to the exclusion of brothers or sisters of the half blood.</p> <p>2. Grant. — A grant of land By the Republic of Texas to the heirs of one "who fell at the Fannin massacre, enured to the benefit of such only as were heirs under the laws in force tct the time of the death.</p> <p>3. Parol Partition. — A parol partition of laud is valid when a wife, having an interest in land, gave her consent in a written instrument, joined by her husband, to a partition thereof, accepted the land allotted to her and clearly manifested by her acts, an intention not to avoid the partition: the fact that the written instrument was not signed in the manner regulating the conveyance of the property of married women was immaterial.</p> <p>4. Mistake — Partition—Notice.—A purchaser claiming under a voluntary partition is not affected by a mistake made by one of the parties thereto as to the extent of his interest in the property partitioned, though the facts recited in the paper, which evidences the partition, may show that such party was entitled to a larger interest in the land than he consented to receive. The purcbáser, while chargeable with notice that the party had received less than his share, would not be charged with notice as to whether the party was mistaken as to his legal rights.</p>

<p>1. Taxation. — Personal property, belonging either to a corporation or a natural person, must be assessed and the taxes thereon paid in the county -where it is situated, unless such county has not been organized, in which event the assessment must be made and the taxes collected in the county to which it is attached for judicial purposes.</p> <p>2. Unorganized Counties. — The Legislature of Texas has almost uniformly treated an unorganized county as part of the county to which it 1b attached-for judicial purposes, so far as the exereise of local governmental power ever it is concerned.</p>

<p>1. Negligence — Onus Pbobandi. — When property situate contiguous to the right of way of a railroad company is burned by sparks emited from the company’s locomotive engine passing over the road,- which" ignite the dry grass on the right of way, and injury results therefrom, in a suit for damages brought by the injured party, the burden of proof is on the railway company to show that there was no negligence.</p> <p>2. Same. — This rule as to the burden of proof is satisfied when the railway company shows that it was using, when the fire occurred, on the engine the be^it mechanical appliances to secure safety from fire, that they were in good repair and operated in a proper manner by a skillful engineer.</p> <p>3. Same. — No matter how much care is observed in the construction and operation of a locomotive on a railway track, it is always a question o f fact for a jury to determine, as to whether the failure of the railway company to permit inflammable material to accumulate on its right of way was negligence, if it was ignited by sparks from the locomotive and so destroyed adjacent property, o</p>

<p>1. Practice. — The action of the court below in refusing to postpone the trial of a cause can not be considered in the absence of a bill of excep tions.</p> <p>3. Account. — The printed heading to an account of goods sold contained the following words and figures:</p> <p>Terms 1 30 days discount 5 per cent</p> <p>Cash f 10 “ “ 6 “ “</p> <p>Seld, in the absence of evidence to the contrary, that the price for the ■ goods sold was due on delivery, yet, if the money was paid in thirty days, a discount of five per cent, and, if paid in ten days, a discount of six per cent would be allowed to the debtor.</p> <p>B. Attachment. — In attachment proceedings, a prayer for the foreclosure of the attachment lien on personal property is unnecessary; the statute directs the foreclosure when judgment is for the plaintiff in attachment.</p>

Tried below before the Hon. Eugene Williams. This suit was brought by appellees for possession of land sold appellant’s vendor under an executory contract involving annual payments. The answer which presented the defenses referred to in the opinion, was on exceptions stricken out.

Tried below before the Hon. J. M. Hall. Five purchase money notes were given by J. B. Landers, to secure deferred payments on land sold by B. F. Vinson. The appellee sued on one of the notes as endorsee, making Landor the maker, one O’ Connor an endorser, and the appellant Fisher the occupant and subsequent purchaser of the land, defendants. It is not necessary to detail the character of the pleading.

<p>Appeal from ¡Navarro; Tried below before the Hon. Anson Rainey.</p>

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

Tried below before the Hon. B. W. Rimes. This was an action of trespass to try title, brought by M. E. Fears et al. against C. P. Albea, et al. to recover the southeast half of lots 4, 5, 6 and 7 in block 29, in Waco. The character of the issues involved is apparent from the opinion.

<p>Error from Bell Tried below before the Hon. B. W. Rimes.</p>

<p>1. Dedication. —In order that a city may claim rights under a proffer made by an individual to dedicate property for the use of the city, there must have been some act indicating within a reasonable time, an acceptance of the dedication.</p> <p>2. Basement. — A right to an easement on land acquired by deed, is lost by an occupancy of the property by another, claiming under a deed recorded. after five years of such occupancy.</p> <p>3. Right of Way — Limitation.—A right of way may he barred by an adverse holding of the servient estate; following Bowen v. Team, 6 Richardson (S. C.), 296, and City v. Lufkin, 23 Texas, 349.</p> <p>t. Cases Reviewed, — Gilder v. City of Brenham, 67 Texas, 345; Arnold v. Stevens, 24 Pick., 106; White v. Crawford, 10 Massachusetts, 183; Wiggins v. McLeary, 49 New York, 346, and Slocum v. Railway Company, 11 Northwestern Reporter, 461, reviewed.</p>

<p>Appeal from Webb. Tried below before the Hon. J. C. Russell.</p>

<p>Error from Burleson. Tried below before the Hon. I. B. McFarland.</p>

<p>1. Conveyance op Wipe’s Separate Property. — The doctrine held in Patton v. King, 26 Texas, 686, to the effect that a married woman may jointly with her husband make a'valid conveyance of her separate property by an attorney in fact, duly authorized by power of attorney exechted and acknowledged in the manner prescribed by law for the execution and acknowledgment of deeds of conveyance, reaffirmed in this case.</p> <p>2. Same. — There is nothing in the Constitution or laws which would invalidate a conveyance of the homestead under such a power of attorney.</p>

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

<p>1. Deed — Mistake—Description.—A mutual mistake in the calls of a deed conveying land in excess of that bargained for, can not be corrected at the suit of the vendor, when, after the discovery of the mistake, he has received payment of the purchase money for the land thus conveyed, and yielded possession thereof to the vendee.</p> <p>2. Pleading — Evidence.—In a suit by a vendor to recover possession of land conveyed by mistake, the defendant, although in his pleading he may rely on his deed alone, may show without special plea that after the discovery of the alleged mistake, the vendor received the full-consideration for the land, and had agreed to let the conveyance remain-undisturbed.</p>

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

<p>1. Vendor and Vendee. — When land is sold to be paid for at a future time, and a deed is executed to the vendee who executes to the vendor a mortgage to secure payment of purchase money, the legal title remains with the vendor until the land is paid for. If before payment the vendor executes a deed of conveyance for the same land to a third party, and transfers to him the unpaid notes of the first purchaser, such party is subrogated to the rights of the vendor under the mortgage, and being in possession, may in a suit by the first purchaser in trespass to try title-show under the plea of not guilty, that the original purchase money remains unpaid and defeat a recovery either of the land or the possession. The fact that the deed executed by the vendor to the second purchaser was made in consummating an attempted sale under the mortgage not authorized by its terms, is immaterial.</p> <p>8. Certified Copies — Evidence.—A certified copy of a deed is not admissible in evidence on mere proof that the party offering it had caused it to be attached to a commission to take testimony and sent to the clerk of another county who had not returned the same, although requested to do so by letters written by the party and by others. Such evidence does not establish the fact that the deed could not have been procured by the exercise of reasonable diligence.</p>

<p>1. Venue — Statute Construed. — In a case where the proper venue depended on the residence of the defendant, it was found that he had gone from the county in which he had first lived to another county, and had there engaged in business, taking with him all his movable property; that he had sold his house and given possession, but had returned and was only prevented from removing his family by sickness, and it was notorious that he had removed from the county of his former residence; held, that when it is uncertain ia which of the two counties a defendant has his residence, he may be sued in either. In this case he could not properly be sued in the county where he first resided.</p>

<p>1. Vendor and Vbndbe. — The vendee in an executory contract for the sale of land, who has not naid the nurehase money, must at least offer to pay before he can enforce specific performance by the vendor. The fact that limitation has run on the purchase money notes is Immaterial; the oh-ligation to pay remains, though the right of action on the notes may be barred, and payment must be made before the transfer to the purchaser of the title can be enforced.</p> <p>3. Same. — When purchase money notes for land, under an executory contract for its sale remain unpaid, the vendee, if in possession, can not defeat the suit of the vendor for the recovery of the land, nor if out of possession can he recover against the vendor or against any one holding under him.</p> <p>3. Same. — If, after such default in payment as would authorize a vendor to rescind an executory agreement for the sale of land, he should sue for the unpaid purchase money, he thereby loses his right to rescind the contract, provided the vendee avails .himself of the privilege of paying the debt. The contract, however, in such an event, still remains exeeu • tory, and the vendee can not by pleading limitation defeat the suit for the debt, and yet hold the land when he has refused to pay the contract price.</p> <p>•4. Costs. — The statute which entitles one who will make oath that he is too poor to pay costs (art. 1438) to have all necessary process without security, does not relieve the affiant from liability for costs incurred by him. or for all costs in the suit, if judgment should be rendered against him.</p> <p>5. Rules of the Court — Judgment.—An amendment of a judgment, under article 1355, Revised Statutes, which is made on the last day of the term, but which is of a character authorized by statute to be made at any time, is not, when the case was first submitted for determination by the judge on the law and the facts more than three days before t Inclose of the term, violative of Rule 65 for the government of district courts.</p>

<p>1. Banks — Trusts—Debtor and Creditor. — In the course of dealings between a New York and Texas bank, the New York bank was in the habit of discounting notes for the latter, and of forwarding the same, on maturity, to the latter “for collection and returns,” with the understanding that the proceeds of such discount notes should be preserved by the Texas bank as the property of the New York bank, and should be returned to it as such. Such being the habit of business between the banks, the Texas bank received notes from its New York bank eorrespondent “for collection and return of proceeds,” held:</p> <p>(1) The Texas bank became as to such collections, when made by it, a trustee for the New York bank.</p> <p>(2) After their collection was made the relation of creditor and debtor as between the banks did not exist. The Texas bank had no authority to credit on its books the amount collected, but was legally bound to remit the money to its correspondent.</p> <p>3. Same. — The trust fund thus collected was credited by the Texas bank to its New York correspondent and mingled with other money of the Texas bank; thereafter, and before an adjustment of accounts, the Texas bank became insolvent, and was placed in the hands of a receiver. Held, that the trust attached to whatever money remained, when the receiver was appointed, in the bank vaults.</p> <p>8. Same. — The Texas bank, after receiving some notes from its New York correspondent “for collection and returns,” procured renewals of the same, after which the Texas bank endorsed them and deposited them as collaterals with other banking houses in New York, to which they were paid, and were by them applied to the debts due them from the Texas bank. Held, that the New York bank, as to the amount thus collected on said notes, had no lien on the general assets of the Texas bank in the receiver’s hands. One who receives the money of another in a fiduciary capacity and expends it in paying his own debts, does not thereby create a lien on the mass of his property for its repayment. The trust estate must ordinarily be clearly traced into specific property in order that the cestui que trust may be entitled either to the specifip property or to a lien thereon.</p> <p>4. Same. — When a trustee mingles trust money with his own, whatever he pays out afterwards to others, so long as he retains enough money to cover the trust fund, it will be presumed that he has paid out from his own funds.</p> <p>6. Cases Reviewed. — Brocchus v. Morgan (Tenn.), 5 Central Law Journal, 53; National Bank v. Insurance Company, 104 United States, 54; Peak v. Ellicott, 30 Kansas, 156; People v. The Bank, 96 New York, 32; Hanson v. Smith, 83 Missouri, 210; Strother v. Cooley, 88 Missouri, 514; McLeod v. Evans, 66 Wisconsin, 401, reviewed.</p> <p>7. Banker’s Lien. — The lien of a banker on the funds of his customer in his hands for his indebtedness is the result of a contract, either express or implied. A bank which receives notes sent to it for discount, and to have the amount placed to the credit of its correspondent, which refuses to discount the paper, but which pays drafts drawn in the belief that the notes had been discounted, has no lien upon the notes for its reimfo ursement.</p> <p>8. Same. — In .such a case the bank, in settlement with a receiver of its correspondent, is chargeable with money collected on the paper thus sent for discount, and with the value of so much of it as remained unpaid to be set off by the amount of the drafts drawn upon it by its correspondent after the notes were forwarded for discount.</p> <p>9. Practice — Reconvention.—A receiver of an insolvent corporation may reconvene against one who intervenes in a proceeding to which he is a party, and ask an adjudication of all the rights of the corporation growing out of a continued course of business with the intervenor under one judicial agreement. The fact that other suits were pending in another jurisdiction involving some of the matters in dispute, and to which the the receiver was a party, When pleaded in abatement to the plea in re convention, is not an answer to it.</p>

<p>1. Public Policy. — A contract under which the owner of sheep infected with disease, agrees that another, fora specified consideration may keep, use and shear them, is not rendered invalid as against public policy because the owner induced the other party to drive them along the public highway to a distant range, by his representations that they were not diseased. Even if the owner knew the diseased condition of the sheep, and that the other party intended to drive them along the public highway, the contract would not thereby have been void as against public policy, the fact of such removal of the sheep forming no part of the contract.</p> <p>8. Illegal Contract. — While there is conflict of decisions on the question as to whether a contract is rendered invalid on the mere ground that one party to it may have known of the intention on the part of the other to use the subject matter thereof for an unlawful purpose, the tendency of the Texas decisions is to deny the invalidity of a contract for such cause.</p> <p>3. Contract. — A contract whereby one is permitted to select from the flock of another, one thousand “picked ewes” does not necessarily imply that the sheep shall be sound and free from all disease.</p> <p>4. Means op Knowledge — Principal and Agent. — One who by contract is to receive specified articles, he being present at their delivery, and who seeks to avoid liability on his contract by reason of the existence of a latent defect which impaired their value and operate a fraud upon him, is not chargeable with the knowledge of the defect that may have been known at the time by his employe whose only duty was to take charge of and transport the articles.</p> <p>6. Same — Fraud.—When it has once been established that there has been a fraudulent representation by which one has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell him that he might have known the truth by proper inquiry. The perpetrator of the fraud is liable for the injury caused by his falsehood to one who acted in the belief that the representation was true.</p> <p>6. Interest. — On a contract to pay a designated sum, and in addition thereto other instalments, but not as interest, the mere fact that such instalments aggregate a sum equal to twelve per cent on the main debt, will not authorize them to be computed in a judgment as interest.</p> <p>7. Principal and Surety. — It is error to render judgment against a principal and in favor of a surety with direction that execution shall issue, in a suit against both, when the surety has not paid the debt, and when his right to an execution is not made dependent on his future payment.</p>

<p>1. Quo Warranto. — The act of July 9, 1879 (Special Laws, p. 48), provides with reference to appeals in proceedings by quo warranto, that “All such appeals should be presented to the term of the court in session at either branch of the first term to be held, if not in session, after judgment has been rendered in the district court,’’ held that if an appeal from a judgment rendered in a proceeding by quo warranto, is not presented to the next term of the Supreme Court, no matter at which of three places for holding court that may be, the appeal, when presented to some other term, must be dismissed for want of jurisdiction. The provision of the act which declares that the remedy and mode of procedure in such cases shall be construed as cumulative, does no affect the question.</p>

Tried below before the Hon. J. C. Russell. In addition to what appears in the opinion, it may be stated that on the trial of this cause the witness A. L. McLane having testified that he was not a party to, or in any way interested in this suit, the defendant thereupon offered to prove by him the following facts, to wit: That when the deceased, Peter Steffian, handed to witness the deed from Steffian to Hunt, he, Steffian, remarked to witness “be sure and return it (the deed)…

<p>1. Sheriff’s Costs. — Construing article 2396 (Rev. Stats.), held: that a sheriff, charging, tor service of process, can only rightfully charge for the distance actually traveled in any case, but be is entitled to charge the amount specified in the statute for eaen writ, though he may serve a number in making one trip. When two or more persons are mentioned in the same writ, he can charge for but one mileage. The fact that the sheriff in executing process, may go in person a portion of the way towards th.es witness he is required to summon, and, before reaching him, mav deliver the process to a, deputy, by whom it is served and returned by mail ■ will not affect the right of the sheriff-to charge mileage for his return trip.</p>

<p>Appeal from Nueces. Tried below before the Hon. J. C. Russell.</p> <p>The opinion states so much of what is contained in a voluminous record, as is necessary to a proper understanding of the legal propositions decided.</p>

<p>1. Public Domain. — Land included within the bounds of a grant emanating from the government of Spain in 1767, and situated in Texas, is not subject to appropriation by land certificates issued by the State.</p> <p>2. Founding OP Laredo. — The town of Laredo was founded in 1767 by a commission appointed by the Marquis of Croix, then Viceroy of New Spain. That commission apportioned the lands that should be held in common, surveyed the town, apportioned the land to he held in private right, designated the grounds for public use, fixed the town exidos, provided for the organization of municipal government, and established porciones of land outside of the exidos for the benefit of such as might receive them.</p> <p>3. Location op Laredo in 1767. — The visita general of that commission shows that sixty-four porciones were then surveyed, and that the town of Laredo was located on both sides of the Rio Grande, on lands then presumably within the then province of Nuevo Santander.</p> <p>4 Preamble to Act op Legislation. — The preamble to a legislative act may be looked to in order to ascertain, when doubtful, the general purpose of the act, and may he regarded as the legislative declaration of the existence of a fact therein recited.</p> <p>5. Same. — The preamble to the act of April 24,1871 (Paschal’s Digest, page 1191), reveals its general purpose to have been to obtain and preserve evidence of at least the extent of old grants in the localities mentioned in the act, which were not archived in the general land office, and which the Legislature did not believe could be obtained elsewhere than in the archives at Laredo and the other towns mentioned in the act.</p> <p>6. Case Reviewed. — The decision in the State vs. Cuellar, 47 Texas, was rendered before the adoption of the Revised Statutes and under a rule of evidence more restrictive as applicable to archives than that which now exists.</p> <p>7. Evidence — Copies.—The copy of a testimonio of the visita general, which was certified to by the mayor of Laredo under the seal of the cor. poration and deposited in the General Land Office by J. L. Haynes, who was appointed under the act of April 24, 1871, is such a paper as the Commissioner of the general land office may properly certify to, and under art. 2253 (Revised Statutes) is admissible in evidence in all cases in ' which the original protocol of such visita general would be admitted. That copy, so far as preserved, was authenticated as such instruments were required to be, by the laws then in force; it had all the force and was entitled, under the facts referred to in this ease, to all the faith given to authentic instruments.</p> <p>8. Same. — The legislature which required the transcripts of the archives on the Bio Grande towns mentioned in the act of 1871, having been passed with a knowledge that the protocol of the visita general, under the laws in force at the time, was deposited in the City of Mexico or at Guadalahara, and that a copy only was left to serve as an archive in the local municipality, it must be presumed that it was the intention to make such transcripts evidence of every fact that could be shown by the papers from which.they were copied.</p> <p>9. Evidence. — After the lapse of a hundred years the visita general found archived at Laredo, under which rights had been acquired and recognized continually, can not be invalidated as evidence, because of the fact that a few of the original leaves are missing; the presumption will prevail that they were executed with the same regard to the laws in force, that is observed in that portion which is preserved.</p> <p>10. Evidence— Constitution Construed. — The fourth section of article thirteen of the State Constitution, which, among other things, excludes as evidence of title to land any claim originating prior to the thirteenth of November, 1835, which has not been recorded in the county or archived in the general land office has no application to the transcript of the visita general of 1767 concerning the city of Laredo, deposited in the land office before the adoption of the constitution. Nor is the admissibility in evidence of copies from the land office of such transcripts affected by article fifty-eight of the Revised Statutes.</p> <p>11. Confirmation by Viceroy. — Whether the laws in for.ce in 1767 required a confirmation by the viceroy of the grants made at Laredo in that year, may be involved in doubt. A confirmation by the viceroy of grants made by the sub-delegates at Laredo in 1767 will be presumed after so great a lapse of time, during which title has been openly asserted under such grants and possession maintained.</p> <p>12. Judgment — Evidence.—The fact the judgment was rendered against a claimant who sued under the act of August 15, 1870, does not establish prima facie against such claimant, the fact that the title never passed to him from the former government.</p>

<p>1. Bmii of Exceptions — Practice.-—'When the record shows no statement of facts from which the materiality of excluded testimony can be determined, and the bill of exceptions based on such, exclusion fails to state enough of the facts established in the case to make intelligible the ruling of the court in reference to the issue made by the pleadings, the exception will be disregarded on appeal.</p> <p>%. Practice. — Papers which neither constitute part of the pleading, state ment of facts, or bill of exceptions, when incorporated in the transcript, will be disregarded.</p> <p>8. Practice. — One who excepts, in the trial of a cause in trespass to try title, to the action of the court in excluding a judgment which, in its proper connection, would be admissible, can derive no benefit on appeal from the exception, when there is nothing in the record to show that he had by evidence connected himself with it.</p>

<p>1. Negligence.——Before an act can. be deemed as negligent per se, it must either have been done in violation of a statutory duty, or must in its nature be so violative of common prudence, that, without doubt, no prudent man would have committed it.</p> <p>2. Contributory Negligence,—If one having no other way to reach the neighboring town where he transacts his business, than over a railway bridge where the county road crosses the railway track, is injured in attempting to cross such bridge, the fact that he had reason to believe the bridge was unsafe before attempting to cross it, it being used by the public at the time, does not furnish conclusive evidence of his contributory negligence. In such case the question of his negligence must be determined by the jury.</p> <p>8. Oases Reviewed.— DeWise v. Bailey, 131 Massachusetts, 164; and County Commissioners v. Burgess, 61 Maine, 29, reviewed.</p>

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

<p>1. Verdict. — The fact that the weight of evidence is against a verdict, will not of itself justify the reversal of a judgment based thereon, if there be evidence to sustain the verdict. It is only in cases where the verdict is manifestly wrong that the Supreme Court will disregard it on the ground that it is against the weight of evidence.</p> <p>#. Damages. — A young lady while a passenger on the coach of a railway company, was injured by the coach leaving a defective track on which the cross ties were rotten, and when the train was going at a speed more rapid than usual. She was for a time rendered unconscious; her ribs were broken, her spine injured, her health impaired, and thereafter at intervals of six weeks, she suffered pains such as a woman has in child birth. Held, that a verdict against the railway company for six thousand nine hundred and thirty-three dollars was not excessive.</p> <p>3. Same. — A passenger-on a railway car who is injured by reason of the malicious act of one not in the employ of the railway company, whereby the ear was derailed, can not recover for the damage inflicted.</p>

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

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

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

Tried below before the Hon. Edwin Hobby. This suit was instituted on the ninth day of April, 1884, by Mrs. Hattie Jones, joined by her husband, J. H. Jones, plaintiffs, against T. J. Epperson, sheriff of Polk county, and Charles Heidenheimer, Jake Stern and D. M. Ehrlich, copartners, composing the mercantile firm of Charles Heidenheimer & Company, of Galveston, for damages growing out of an alleged trespass by the defendants on «the first day of April, 1884, by seizing the…

Tried below before the Hon. Norman G. Kittrell. This suit, instituted to compel the commissioners court, by-mandamus, to issue a draft on the county treasurer for the amount approved on a school voucher, was before the Supreme Court at a former term, and will be found reported in 67 Texas, page 318.

<p>1. Limitation. — Oase Reviewed and Distinguished. — Though a second vendee from the same vendor, who has purchased with knowledge of the former sale, can not prescribe under the three years statute, because of the want of intrinsic fairness and honesty in the transaction, and hip: failure to connect himself with the sovereignty of the soil, this rule does not apply to one in possession claiming under the five years statute. If such an díte fills the requisites of the statute as to the period of his possession, and in ail other respects, the fact that he had knowledge when he purchased that his vendor had previously conviéyed title, can not affect his right to title and possession. Harris v. Hardeman, 27 Texas, 248, reviewed and distinguished.</p> <p>2. Limitation. — Under the five years statute, the payment of taxes must be concurrent in point of time with the possession.</p> <p>8. Notarial Deed — Acknowledgment.—A deed made in 1838, signed by the vendor with witnesses, and by the chief justice apd ex-officio notary-public, executed as a notarial act, and which in the body thereof recites in-appropriate form the acknowledgment of the vendor, needed no other formal acknowledgment to admit it to record.</p>

Appeal frota Victoria. Tried below before the Hon. H. Clay Pleasants. Suit by appellees to recover a building lot in the town of Victoria. Thurmond disclaimed and filed no other plea. The facts in view of the principles announced are unimportant.

Tried below before the Hon. W. H. Stewart. Suit filed in the district court of Galveston county, September 26,1884, by appellant, for actual and exemplary damages for the alleged wrongful and malicious suing out of writs of attachment and garnishment and seizing appellant’s effects. The petition fully alleged the trespass and damages.

<p>1. Forged Draft — A draft for one thousand one hundred and fifty dollars on Vogel & Boss, of Galveston, in favor of Heard, Allen & Barnes, hankers, at Cleburne, was indorsed, to Ball, Hutchings S Co., of Galveston for. collection, as follows: “Pay Ball, Hutchings & Co., or order, for account of Bank of Cleburne.” Signed “Heard, Allan & Bamee.’’ Tims received, Ball, Hutchings & Co., stamped the word “paid” on the draft, with their signature. In that condition the draft was paid by the drawees named, Vogel & Ross. The draft, which was attached to a bill of lading for thirty-two bales of cotton, was a forgery. In a suit by the drawees against Ball, Hutchings & Co., as indorsers, held:</p> <p>(1) The legal effect of the stamp indorsement of Ball, Hutchings & Co.. who were mere agents, was a cancelation of the obligation and a receipt for the money.</p> <p>(2) They were not indorsers of the paper and were not liable as such.</p> <p>(3) They were not liable for money had and received on the ground that payment was made to them through mistake.</p> <p>(4) No personal responsibility was incurred by Ball, Hutchings & Co. in the collection for their principals.</p> <p>2. Cask Distinguished. — This case distinguished from the City Bank v. The National Bank, 45 Texas, 203.</p>

Error from Galveston. Tried below before the Hon. W. H. Stewart. The venue of this suit in trespass to try title, originally brought in Chambers county to recover a league of land, was changed to Galveston county, where the cause was tried and a judgment rendered for defendants. The suit was brought by the plaintiff in error.

<p>1. Possessor in Good Faith. — To constitute one a possessor in good faith he must not only believe that he is the true owner, and have reasonable-grounds for that belief, but he must be ignorant that his title is con tested by one having or claiming a better right, unless he has strong grounds to believe that the adverse claim is destitute of legal foundation. If, by investigating the records of his county, he can ascertain that his own title, which contains only a special warranty, is worthless, and he improves the land, he can not, on eviction of the true owner, be regarded as a possessor in good faith, and be entitled to compensation for his improvements.</p> <p>2. Description. — A deed conveying many tracts of land attempted to con- • vey land by the following description: “Three hundred and twenty-four acres, Milton Sweeney tract, in Polk county, valued at one hundred and seventy-one dollars,” held that the description considered in connection with other deeds in the line of the claimant’s title, which described more specifically the survey, sufficiently identified the land.</p>

Tried below before the Hon. Edwin Hobby. Appellee sued appellant for damages from an overflow of water, caused in the month of January, 1885, and continued into May following, as alleged, by the negligent construction in 1881 and 1883, by appellant, of an embankment for its road bed, without such culverts, or sluices, as the natural lay of the land required, whereby his pasture lands were overflowed for four months, or more, and his cattle and horses injured and destroyed to…

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

<p>t. Registration — Statutes Construed. — Construing articles 3157, 3158, 3159 and 4399, Revised Statutes, held: That while under the general registration laws instruments that are required to be recorded will be deemed, if properly authenticated, to have been recorded from the date of their filing for record with the proper officer, a different rule was clearly intended by the Legislature to apply to the registry of abstracts of judgments; the latter will not for any purpose be regarded as recorded until they are recorded in fact, and no judgment lien attaches by virtue thereof before such actual registration.</p> <p>3. Authentication. — The following certificate of acknowledgment was attached to a deed:</p> <p>State of Texas, )</p> <p>County of Galveston. )</p> <p>I, P. S. Wren, county clerk in and for Galveston county, on this day personally appeared J. L. Belbaze, known to me to be the person whose name is subscribed to the foregoing and annexed instrument, and acknowledged to me that he executed the same for the purposes and considerations therein expressed.</p> <p>In testimony whereof I have hereunto signed my name and [seal] affixed my seal of office, on this twenty-fourth day of February, A. D. 1886.</p> <p>P. S. Wren,</p> <p>Clerk of the county court of Galveston county.</p> <p>Held: The certificate was a substantial compliance with article 4308, Re vised Statutes.</p>

<p>1. Statement of Facts. — When a statement of facts shows on its face that it is an imperfect statement of the facts in evidence, and also that it was not intended by either party that the cause should be decided on appeal upon the facts that are stated, no assignment of error based on a claim that a different judgment should have been rendered on the facts will be considered.</p> <p>2. Same — Agreement of Counsel. — An agreement between opposing counsel incorporated in the transcript, to the effect that the evidence found in the statement of facts contained in the transcript of another cause on appeal may be used in the Supreme Court, contemplates a mode of procedure not recognized by law and will be disregarded.</p>

Tried below before the Hon. Geo. McCormick. The charge referred to in the opinion will be found quoted in the syllabus. The fire from which the injury resulted, occurred in December, 1885.

Error from Anderson. Tried below before the Hon. Benton Randolph. This was a suit for damages resulting from personal injuries inflicted through the alleged negligence of appellant while appellee was a passenger on its road. The verdict was for the appellee for twenty-three thousand five hundred and seventy-five dollars. In view of the opinion, the facts in evidence are unimportant.

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

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

Tried below before the Hon. H. Clay Pleasants. In this case a verdict was rendered for the appellee for seven thousand five hundred dollars. The leading facts of the case are given in the opinion.

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

Tried below before the Hon. J. C. Russell. Suit in trespass to try title, brought by appellee, for two sections of common school land situate each in the counties of Nueces and Duval.

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

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

<p>1. Equity — Purchaser at Execution Sale. — A purchaser at execution sale, who, being the owner of the judgment under which land is sold, credits his bid on the execution, takes the land charged with all the equities to which it is subject. Though the judgment debtor was the apparent owner when the debt was contracted and the judgment was rendered, such purchaser would acquire no title by his purchase as against a claimant in possession who had paid purchase money and made valuable improvements under a parol contract. The beneficiary in the trust had in this case taken possession, made improvements, had been in possession for ten years, and was in possession when the land was sold under execution, and when the credit for the debt on which the judgment was rendered was extended.</p>

Tried below before the Hon. W. H. Stewart. The petition of appellee charged, that on the ninth day of ¡November, A. D. 1884, plaintiff was employed as engineer of defendant’s engine ¡No. 10, attached to defendant’s train ¡No. 18.

Tried below before the Hon. H. Clay Pleasants. - The facts are sufficiently stated in the opinion. There was a verdict for plaintiff for eleven thousand two hundred and thirty-one dollars and twenty-five cents.

Tried below before the Hon. H. Olay Pleasants. This suit was brought by the appellant upon two promissory notes, one for fifteen hundred dollars, dated November 3, 1881, due one day after date, the other for eight hundred and fifty dollars, dated August 1, 1882, due one day after date, both payable to Virginia R. Eberly, and purporting to be signed by William Ruply.

<p>1. Common Carrier — Bill of Lading. — A carrier may require the production of a bill of lading before he delivers the goods, and he may before delivery, when the consignee refuses to receipt for the goods. But a carrier can not rightfully refuse to deliver the goods after inspecting the bill of lading, on the ground that the bill is not surrendered to him, if the consignee tenders the freight charges as contained in the bill, and executes his receipt for the goods.</p>

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

Tried below before the Hon. Norman G. Kittrell. This suit was brought by appellants March 31, 1884, against appellees in trespass to try title to forty-seven feet by seventy-nine feet of land in lot 2, and thirty-six feet by seventy-nine feet of land in lot 3, all in block 118, in the town of Havasota, in Grimes county. Appellees answered May 28,1884: 1. Plea not guilty. 2. That Muldrow is owner of land described and Johnson is his tenant. 3.

Tried below before the Hon. W. H. Stewart. Appellees brought suit against appellants April 19, 1883, to recover actual and exemplary damages for tearing down his house and destroying his goods situate therein, on the ninth day of April, 1883.

Tried below before the Hon. W. H. Stewart. The verdict in this case rendered for appellee was for ten thousand dollars damages.. The court having suggested that three thousand be remitted, the same was done, and appellant’s motion for new trial based, among other things, on the ground that the verdict was excessive, was overruled.

<p>1. Principal and Surety — Administration.—Since the adoption of the Bevised Statutes the common law must be looked to in ascertaining the liability of the personal representation of a deceased joint obligor; at common law he is discharged, and if he be a surety his estate can not be liable for the debt. If, however, the surety participates in the consideration for which the joint obligation was made, his estate is liable. If the consideration for which the joint obligation was given was the discharge of a prior obligation on which the sui ety was liable, such discharge would be sufficient to render the estate of the surety liable.</p>

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

<p>Appeal from Brazos. Tried below before the Hon. Norman G. Kittrell.</p>