Volume 7 — Texas Civil Appeals Reports

<p>1. Charter of Houston—Conflict with Constitution.—In a suit on an improvement certificate issued by the city of Houston, it being payable in three annual installments, each bearing interest at 8 per cent until maturity, and at 10 per cent after maturity, default in payment of two installments authorizing suit on the whole, with foreclosure of lien and 10 per cent attorney’s fees as penalty. It was not error to hold that the clause in the charter authorizing the city to issue certificates bearing different rate of interest from that fixed by the Constitution, is in conflict with section 56, article 3, of the Constitution, which prohibits the Legislature from passing a local law establishing a rate of interest.</p> <p>2. Same—Penalty.—The clause of the charter of the city of Houston under which the city issued the certificate did not authorize a penalty for nonpayment.</p> <p>3. Public Officers—Agents.—Such a certificate is not a contract executed by defendant, the city government being her agent. Public officers are agents of the community, but not agents of the individual members of the community.</p> <p>4. Attorney’s Fees.—The certificate only allows attorney’s fees after a demand for payment. To authorize a recovery of attorney’s fees in judgment by default, “that payment was demanded” must have been averred; not “that payment was requested.”</p>

<p>1. Assignment for Benefit of Accepting Creditors.—An assignment under the statute for the benefit of accepting creditors conveys all the property mentioned therein to the trustee. Such trustee has the right to sue for and recover its value from a non-accepting creditor who has attached a part of it and had it sold, and received the proceeds in payment of his debt, although the assignee had in his hands assets amply sufficient to pay in full the debts due to all accepting creditors.</p> <p>2. Insolvency.—When the deed of assignment made a part of the pleadings demurred to shows that the assignors were unable to pay their debts in the ordinary course of their business, such inability is, in judgment of law, insolvency, and the petition is good against a special demurrer claiming that the pleadings show on their face that assignors were not insolvent, but only temporarily embarrassed.</p> <p>3. Partnership Assignment; Debt Due to Member.—Assignment being made by a partnership, a debt due by it to one of its members passes by the deed of assignment to the assignee (being in the schedule of debts). This debt was subject in his hands to garnishment by any nonaccepting creditor, if not necessary to satisfy the debts of accepting creditors, and a court of equity, upon the application of any creditor, would restrain the assignee from paying any money to the member of the firm to whom the debt was due, until all the firm creditors had been paid.</p>

<p>1. Fact Case—Defective Machinery.—The engine and tender were coupled l>y an iron bar, one end of which was fastened to the engine and the other bolted by an iron pin to a piece of casting attached to the tender. On the casting were two parts, the flange and the lug, between which the drawbar entered, and through which, as well as the bar, the coupling bolt passed. The lug was pulled off and the holes in the flange broke out, releasing the pin entirely, and plaintiff, who was the fireman, engaged in his duties as such, was thereby caused to fall between the tender and engine, and injured. There was evidence tending to show that there was an old crack in the casting at the place where it broke. The casting had been on the tender a month, and no inspection of it was shown. The injuries received by the plaintiff were severe and permanent, and a verdict for §20,000 was affirmed,</p> <p>3. Evidence as to Wounds and Their Probable Effect.—The court did not err in allowing the physician who was called in by the attending physician, about three weeks after plaintiff had been wounded, to testify as to the nature of his wounds and their probable effect.</p> <p>3. Admissible Evidence in Rebuttal.—Defendant having proved that the broken castings, when they arrived at Beaumont from the place of the accident, were in the condition in which they were when the trial was had and they were exhibited in evidence, and their appearance at that time indicating that the whole casting had been broken at the same time and that there was no old crack in it, and the witness who testified to the old crack, having sworn that the casting when exhibited on the trial was not m the same condition that it was when he had examined it at the place of the accident, but that a part of it was gone, it was admissible to allow testimony as to the condition of the roadbed between the place of the accident and Beaumont, to explain how additional breaking of the casting could have occurred, it having been shown that the drawbar of the engine was chained to the tender, and thus fastened they were carried to Beaumont, a distance of twenty miles.</p> <p>4. Objectionable Charge.—It being the duty of the engineer in charge of the engine and tender to inspect them, and the evidence having shown, that before the accident he had made a cursory examination of the engine, but had not inspected the flange and lug, which had broken, the general charge having presented the law of the case, it was not error to refuse a charge which gave prominence to such inspection by the engineer.</p> <p>5. Contributory Negligence—Proper Charge.—There was no error of which appellant can complain in the following charge: “If you believe from the the evidence that the alleged old crack did exist, and was the cause of plaintiff’s injuries, if any, yet if you believe that plaintiff could, by the exercise of the care and prudence incumbent upon him as above stated, have known thereof and foreseen and prevented such injuries, if any, you will find for the defendant.”</p>

<p>1. Agency.—W. was the agent of the insurance company at Beaumont. Keen was his clerk, and had been for more than three years, and did all the detail work of soliciting insurance, filling out policies, collecting premiums, and the like, W. doing nothing except to sign the policies officially. The facts constituted Keen the agent of the insurance company, and notice to him would bind the company.</p> <p>2. Conditions in Policy.—The condition in the policy, that “if the property was incumbered by mortgage the policy should he void,” was reasonable; but the insurance company would be estopped to set up the breach of the condition if the policy was delivered with full knowledge of an existing mortgage constituting the breach. W. had no knowledge of it, but K. did, and therefore the company was liable.</p> <p>3. Want of Cross-Assignment of Error.—Request is made to reform the judgment, and give appellee the full amount of his policy (the court below having rendered judgment for the amount of the policy, less the value of a piano upon which was a mortgage); but while the court inclines to the opinion that the contract of insurance was not divisible, there is no cross-assignment of errors, and we can only affirm the judgment.</p>

<p>1. Homestead Exemption—Dedication—Estoppel. —Henkel and wife executed six vendor’s lien notes to Breeding for purchase money of 475 acres of land; they took possession and occupied the land as homestead, and afterwards executed a mortgage on the whole tract to Bohnke to secure payment of a $1500 note; they then sold seventy acres to Cockrill with general warranty of title. Bohnke acquired the vendor’s lien notes and sued for debt, and to foreclose both liens. Held:</p> <p>1. That the mortgage was subject to the right of defendant to designate ahomestead, although such designation was after the mortgage and after sale to Cockrill, and the mortgage was only valid as to the excess of land over homestead.</p> <p>2. Defendants' deed to Cockrill estopped them from asserting any equity to have his land first sold in satisfaction of debt.</p> <p>2. Proper Judgment.—See opinion for judgment proper to be rendered upon the facts above stated.</p> <p>3. Attorney’s Pees.—Ten per cent on the amount due when judgment was rendered was correct, hut legal interest should be allowed on all offsets of defendant.</p> <p>4. Marshaling Assets.—This doctrine should not be applied without regard to the homestead exemption.</p>

<p>1. Evidence in Case of Contributory Negligence.—Where, in a suit by a street car conductor for damages for injuries caused by a collision between the car on which he was and a freight train, facts come out in the development of the transaction on which plaintiff relies for recovery, which prima facie show contributory negligence, testimony covering the same ground and showing the whole occurrence, by the defendant, is admissible, whether contributory negligence be pleaded or not.</p> <p>2. Charge —Reversible Omission.—Where there was evidence showing that plaintiff approached the track with due care, and also testimony showing that he was guilty of contributory negligence, a charge omitting any reference to the rule prohibiting his recovery, if himself guilty of negligence, was erroneous.</p> <p>3. Charge—Positive Error.—The failure to include, in the statement of the facts necessary to a recovery, the absence of contributory negligence, is positive error, and not merely an omission that could be supplied by a request for a special charge.</p> <p>4. Contributory Negligence—Failure to Obey Rules.—Plaintiff's failure to comply with a rule of the street car company requiring an approach to a track with due care, would not in itself be contributory negligence, unless shown to be in violation of the rule of law requiring from him such care as a prudent man would ordinarily exercise.</p>

<p>Appeal from Brazoria.</p>

<p>1. Sale of Land—Deficit in Acreage.—When land is sold, and as a part of the consideration the vendor agrees to refund the amount of any deficiency in acreage of the land at §10 per acre, and the acreage falls short, he will be required to perform the agreement as made. He will not be heard to contend, in the absence of evidence of " fraud or coercion on the part of the purchaser, that the agreement does not express the intention of the parties, nor that it is without consideration.</p> <p>ON MOTION FOB BEHEAEING.</p> <p>2. Interest on Deficit.—When the exact amount of the deficit in acreage is not known when the trade is made, but is afterwards ascertained, the amount to be refunded by the seller will bear interest from the date when the deficit is discovered, and not from the date of the agreement to refund.</p>

<p>Appeal from Harris.</p> <p>Tried below before Hon. S. H. Brashear.</p>

<p>1. Only Isolated Sections of School Lands Can be Sold.—The Commissioner of the General Land Office has no authority under the Acts of 1887 and 1889 to sell any of the public school land in any county in this State (except Présidio, El Paso, and Pecos) organized prior to January, 1875, to any person but actual settlers, except such sections and fractions of sections as are expressly named in the twenty-second section of the Act of April 8,1889. Following Eastin v. Ferguson, 4 Texas Civil Appeals, 643.</p> <p>2. Restrictions on the Power of Sale of the Commissioner.—The power given to the Commissioner of the General Land Office to sell to others than actual settlers is not only restricted to lands situated in counties organized prior to January, 1875, but to those sections or fractions Of sections of lands which are detached from other public lands.</p> <p>3. Statute Constitutional.—The statute restricting sale of public lands to actual settlers is not an appropriation of the lands to another purpose than that to which they had been dedicated by the Constitution, and the statute is constitutional. That a portion of the public domain is made a part of the permanent school fund is not an inhibition upon the power of the Legislature to dispose of it. The Constitution contemplates that the Legislature shall make the school land available for school purposes, and it is for the Legislature to determine when, upon what terms, and to whom, this land shall be sold.</p> <p>4. State Need Not Return Money Paid by Purchaser.—The State need not make a tender of the money paid by the purchaser, nor return his obligations for unpaid purchase money, as a prerequisite to its recovery of land illegally sold by the Commissioner of the General Land Office. It is to be presumed that the State will in its own way make restitution.</p> <p>5. What Is an Isolated Section.—When a section is detached from all other public lands at every point of its boundary, it may be sold to other than actual settlers, although it lies in the immediate vicinity of other public lands. Such a section is necessarily isolated, though it may be in close proximity to them.</p>

<p>Deed or Will.—A written instrument duly executed and delivered at its date recited natural love and affection as its consideration, and containing the usual granting, habendum, and warranty clauses, but concluding as follows: “But it is hereby</p> <p>expressly understood that I reserve to myself the full ownership and control of the above named property during my natural life, and that at my death the property belongs to the said” grantee. Held, especially in view of article 556 of the Revised Statutes, providing that estates of freehold and inheritance may be made to commence in futuro by deed as well as by will, that the instrument was a deed and not a will.</p>

<p>1. Practice—Consolidating Causes.—Where attachments by different parties are levied on the same property of a defendant, and the property is claimed by a third person, who gives separate bonds as claimant, in such case it is proper to consolidate these cases on motion; but a refusal of such motion is not reversible error unless injury be shown to have resulted to the complaining party.</p> <p>3. Attachment—Range Levy on Cattle.—A levy of attachment by a sheriff upon cattle as they run on the range is not invalid because the return describes them as running “on the range in C. and adjoining counties.” Gunter v. Cobb, 83 Texas, 603, distinguished.</p> <p>3. Trial of Right of Property—Special Plea Necessary to Attack Levy.— In a trial of the right of property, the invalidity of the levy by virtue of which the property was seized can be raised only by a special plea calling it in question and pointing out the invalidity.</p> <p>4. Contract in Writing—Parol Rescission of Defeasance Clause.—H. executed to D. Bros., in satisfaction of a debt, an absolute bill of sale of cattle as they ran on the range, and about the same time made a written contract with them to gather the cattle for them, he to retain all over a certain number sufficient to discharge the debt at an agreed price per head. A few days afterwards, with the consent of D. Bros., he threw up the undertaking to gather the cattle. Held, that paroi evidence was admissible to show this fact, and that thereby the bill of sale was left as the only and absolute contract between the parties.</p> <p>5. Verbal Sale of Cattle on the Range.—A verbal sale of cattle on the range is valid when followed by actual possession before the rights of third parties have attached.</p>

<p>Appeal from the County Court of Tarrant.</p>

<p>Appeal from Cooke.</p>

<p>1. Consideration—Written Instrument.—While under the statute a written instrument will ordinarily import a consideration, this rule will not apply where the instrument shows on its face affirmatively that it was executed without a consideration.</p> <p>2. Same—Release from Liability.—A release to the master from liability for personal injuries received by an employe must be supported by a consideration; and a stipulation for employment thereafter for such time as may suit the master is not a sufficient consideration.</p> <p>3. Negligence of Master—Defective Turntable.—Where a railway company expects its employes to go into a turntable pit to move the turntable, it is bound to use ordinary care .to see that it is in such condition as not to expose them to unusual hazard.</p>

<p>Jurisdiction on Appeal—Writ of Error After Appeal Heard.—Where an appeal has been prosecuted to judgment in the Court of Civil Appeals and its judgment affirmed by the Supreme Court, the former court is without jurisdiction to again determine the cause upon a writ of error prosecuted to it from the trial court before the appeal was heard, or to affirm the judgment below on certificate in such writ of error cause.</p>

<p>Railway Company—Negligence—Stockpens.—It is not negligence for a railway company not to have its stockpen and chute for loading cattle on the cars inclosed or guarded against trespassing hays, such structure being itself a substantial inclosure.</p>

<p>1. Telegraph Company—Evidence of Title to Land in Action for Damages.—In an action of damages against a telegraph company for error in transmitting a message, by reason of which plaintiff’s lands were sold under a trust deed to other parties at a sacrifice, paroi evidence by plaintiff, stating merely that he owned the lands and was in possession thereof, is insufficient.</p> <p>2. Same—Possession as Evidence of Title.—Proof of actual possession is usually sufficient evidence of title in cases of this kind, but the evidence should show the facts and character of the possession, and not merely the conclusion of the owner that he has possession.</p> <p>3. Certified Copies of Recorded Deeds.—As predicate for introduction of certified copies of a deed duly recorded, an affidavit in words of the statute is sufficient.</p> <p>4. Same—Evidence of Mitigation of Damage—Burden of Proof.—The burden of proving that plaintiff, after the forced sale, repurchased his lands at a less price than the damages he claims, was on the defendant company, and it should have developed the amount of the price paid on such repurchase.</p> <p>5. Same—Duty of Injured Party to Prevent Further Loss.—Plaintiff should have alleged and proved that he was unable to obtain the money from other sources to discharge the debt which, owing to the mistake in transmitting the telegram, his default in the nonpayment of the interest had caused to mature, and thereby have prevented the sacrifice of his mortgaged lands.</p> <p>6. Same—Deposit of Message as Completion of Contract to Notify.—Where loan agents at W. agreed with H. that if by a given date he would notify them there that he had placed subject to their order the money due on a loan, they would forbear sale of the mortgaged lands, the deposit by H. of such a message, duly addressed, in a telegraph office at B., is not such a compliance with a completion of the agreement as will invalidate a sale of the land by the agents, the message having been wrongly transmitted.</p> <p>7. Same—Right to Damages Not Defeated.—The fact that the loan company, in violation of the agreement to forbear, was already taking steps to sell the lands, would not defeat H.’s right to damages against the telegraph company, since such violation could not have deprived him of his rights under the agreement had the notice by him been duly given.</p>

<p>Appeal from Montague.</p>

<p>Error from Wise.</p>

<p>1. Negotiable Paper—Bonds—Garnishment.—Bonds of a corporation payable to bearer with interest due annually are negotiable, and the corporation is not subject to garnishment to reach obligations of the payee.</p> <p>2. Effect of Garnishing a Debt Payable in Bonds.—The ferry company was owing Burns & Dillon in amounts called for by certain bonds payable to them but not delivered, and due in twenty years, or earlier at option of maker, with interest payable annually. Garnishment was served against the company in suit against B. & D. before the delivery of the bonds. Held:</p> <p>1. The company can be garnished and judgment rendered against it for the debt as it existed, not changing it in any respect.</p> <p>2. Judgment with stay of execution for principal until maturity of bonds with executions issuable for annual interest, against the company.</p>

Tried below before Hon. J. H. Henderson. A demurrer was sustained in the trial court against a petition against a receiver for damages caused by the negligent escape of fire from the trains of cars operated by the receiver. The plaintiff appealed.

<p>Appeal from Travis.</p> <p>Tried below before 'Hon. James H. Robertson.</p> <p>The opinion sufficiently states the facts.</p>

<p>1. Charge Upon Negligence—Enumerating Facts.—It is error in a charge to tell the jury that facts stated would he contributory negligence, and that it was the duty of a party walking upon a railroad track “to look and listen.” The question of negligence or not should he left to the jury. It is enough to inform the jury that a plaintiff in such actions (for injury from collision with a train) is required to use ordinary care—that is, such as a person of ordinary prudence would use under ordinary circumstances; and that a failure to do so would he negligence on his part which would preclude a recovery by him if it proximately contributed to the injury complained of.</p> <p>3. Same.—So it was proper to refuse an instruction enumerating certain facts as constituting negligence on part of the railway employes. See example.</p> <p>The plaintiff appears to have been injured by a collision with a car operated by employes of the defendant, under the following circumstances: It occurred a little after midnight. The plaintiff was walking upon the track of what is called “the dummy line77 between the city of Austin and the dam across the Colorado river near the city. The colliding car was going towards the dam, and was one of a train loaded with granite and pushed by an engine in the rear. They were near the crossing by the International & Great Northern Railway track, upon which was a passing train. The attention of the plaintiff was attracted by this train, and he neither looked nor listened for a train upon the track on which he was walking. He did not know of its approach until struck by it. The plaintiff was walking outside the rails, but on ends of crossties. The street, or ‘ ‘ boulevard ” at the place was smooth, and as well suited for travel as that occupied by the track. The way was much used by travel to and from the dam, and the whole street was used, regardless of the track. Employes upon the car had two hand lights, and an effort was made by one to attract the attention of plaintiff. The headlight was at the rear. Plaintiff was not expecting a train; besides, his attention was fixed upon the train upon the International <& Great Northern track.</p> <p>The defense was contributory negligence.' The instructions discussed are given in the opinion. Verdict for the defendant, and writ of error was sued out by the plaintiff.</p>

<p>1. Harmless Error—Necessary Parties.—Suit for an interest in a tract of land ; prayer for partition. After answer to the merits by defendants it was suggested that others were interested in the land, with request that they he made parties. On the trial it appeared that the plaintiffs and the defendants owned the entire tract. Held, the refusal by the court to continue the case to make other parties was harmless, even if error; besides, the motion came too late under the circumstances.</p> <p>2. Discharging Jurors—Bight to Jury.—The court discharged ten jurors at their request, leaving thirteen in the panel. Defendants excepted to the discharge and then waived a jury, preferring trial by the court to a jury selected from the remaining jurors and talesmen. The case had been on the nonjury docket for several years. After the first day of the term at which the trial was had demand was made for a jury, but it does not appear that the jury fee was paid, or affidavit of inability to pay filed, nor had the case been placed upon the jury docket. Held, that it did not appear that the defendants were in a position to demand a jury, and they could not complain that the action of the court in excusing the jurors had deprived them of any legal right.</p> <p>3. Application for Continuance.—An application for continuance was overruled. Appeal was taken, and the judgment was reversed for error in overruling the motion. After the reversal a motion for continuance was properly held to be a second application, and treated as such.</p> <p>4. Continuance—Second Application.—See second application for continuance held insufficient.</p> <p>5. Application—Reference to Documents.—The application for continuance was to obtain witnesses to prove a letter from the father of plaintiff, and acting for him, to one of the defendants, in which “plaintiff virtually admits and acknowledges the cotenancy,” etc. Held, the better practice required that the letter should be produced; and that the affidavit did not show the letter to be material.</p> <p>6. Admissions.—Declarations admitting cotenancy made by father of a minor holding in severalty are incompetent; and especially so when it was not shown that the father was in possession of tbe land to which the admissions related.</p> <p>7. Tender of Witness Fees.—Railway v. Hall, 83 Texas, 678, 679, adhered to as to necessity for tender of witness fees in exercise of due diligence to procure the attendance of a witness, to be shown in second application for continuance.</p> <p>8. Title by Limitation.—Plaintiff proved deed to undivided interest, from com•mon source, paroi partition allotting to him his interest, that he went into possession in 1872, fenced it, cultivated a part of it, and has continuously occupied it. Held, that he showed full title to the land in suit filed October, 1889, the defendants exhibiting a deed from common source for balance of the tract as undivided, executed subsequent to the entry of plaintiff into possession under the partition.</p>

<p>Appeal from County Court of Travis County.</p> <p>Tried below before</p> <p>Hon. William Yon Bosenberg, Jr., County Judge.</p> <p>The opinion states the case.</p>

<p>1. Unmarked Line Between Adjoining Surveys.—Where adjoining surveys are made by same surveyor, about the same time, and the junior survey calls for the other, and the division line was never run, an excess of quantity should be divided between the surveys in proportion to their respective acreage; and the division line should be thus established.</p> <p>2. Case Followed but Criticised.—Maddox Bros v. Fenner, 75 Texas, 286, followed, but criticised as conflicting with the rule in Welder v. Carroll, 29 Texas, 334, and Sellers v. Reed, 46 Texas, 379, as to unmarked lines of surveys.</p>

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

<p>1. Freight Contract.—Horses were shipped at Coleman, Texas, for Winston, North Carolina. The receiving railway limited its liability to carriage to Fort Worth, Texas, and contracting to deliver the stock to some other line for transportation to Winston. In absence of contract the inference is, that the receiving carrier knew that the purpose of the shipper was to sell the horses at destination. In such case, the measure of damages for nondelivery of the horses is their value at Winston. The carrier could not by contract relieve itself from liability for any loss caused by its own negligence.</p> <p>2. Competency of Evidence of Value.—Witnesses in charge of a drove of horses carried from Texas to North Carolina, and who knew the horses lost, and had sold horses in North Carolina and near Winston about the time the horses lost should have reached there, and had talked with citizens of Winston about the market value of horses, were competent to testily as to the value of the horses in controversy at Winston.</p> <p>3. Duty of Carrier to Deliver to Connecting Line.—The carrier obliged to deliver freight to a connecting railway did not do so, but did deliver the car containing the freight to the Union Stock Yards, at the city of the transfer. Meld, that the possession by the stock yard was that of the first carrier, which was liable until it should deliver or tender the freight to the connecting- line. The duty of such delivery can not be transferred to another.</p> <p>4. Stock Escaping from Carrier.—The carrier of live stock failing to deliver to a connecting railway can not be relieved from liability for the value at place of delivery by showing that the stock escaped. The stock yards captured two of the horses so shipped and proposed returning them to the shipper, charged with yard expenses. Meld, that he was not bound to receive them; and such facts were no defense in suit for value.</p> <p>5. Harmless Error.—A defense was alleged in answer, and was erroneously stricken out on demurrer. In progress of the trial it clearly appeared that the allegations so pleaded were negatived. Meld, that the sustaining of the demurrer was error, but harmless.</p> <p>6. Stipulated Limitation—Notice of Claim.—Chapter 17, Acts Twenty-second Legislature, page 20 (March 4, 1891), prohibiting contracts limiting time in which to sue, and prescribing that stipulations for notice of claim of loss for less time than ninety days shall be void, applies to interstate as well as domestic contracts of shipment. Nor does the law interfere with or regulate interstate commerce.</p> <p>7. Reasonable Notice.—State courts have exercised the power to enforce the rights of shippers to have reasonable time within which to make claim of loss, and have refused to enforce stipulations in freight contracts held to be unreasonable. Such power may be exercised by tbe Legislature, as has been done in above act.</p> <p>8. Limitation—The act prescribing minimum time for stipulated notice, etc., may be considered a statute of limitation, and as simply affecting the remedy and not attempting to effect the rights of parties, or to control dr regulate in any manner interstate commerce. Such legislation by the States has been recognized as constitutional and valid by the Supreme Court of the United States. Cases discussed.</p>

<p>Appeal from County Court of Bell County.</p>

<p>1. Impressions of Witness Properly Excluded.—The answers of a witness, that he was under the impression that there was a sale of certain land, and that one of appellees told him she had sold the land, were properly excluded. Such impressions were vague and uncertain, and as such are not evidence.</p> <p>2. Continuance Refused.—The answers of the witness having been properly stricken out, the refusal of the continuance was proper, if the object was to obtain a repetition of the answers; and if to obtain different answers from the witness, the application failed to show diligence in procuring them; the depositions had been on file for years.</p> <p>3. Pleadings in Another Suit Properly Excluded.—It was not error to exclude the petition and answer in the cause of Alpheus Rackliff v. The State of Texas. The only purpose for offering the petition would be to show that Rackliff claimed the land, which fact was shown by the decree entered in the case, and it could have served only to mislead and confuse the jury; and being sworn to by Rackliff, the jury might have considered it as evidence of the facts therein alleged.</p> <p>4. Receipt Can Be Attacked Without First Making Affidavit of Forgery or Pleading Non Est Factum.—The receipt of Agapito Martinez could be attacked without making affidavit of forgery, or pleading non est factum; it was acknowledged and recorded, and offered in evidence under article 2257 of the Revised Statutes. Its being over thirty years old, and having come from the proper custody, was sufficient proof of its execution to admit it in evidence, but its execution was only presumed; and when a fact to be presumed is controverted by direct testimony, the jury may indulge or reject the presumption, as the entire evidence may justify.</p> <p>5. Charges Asked and Given.—When no general charge is given, and the case is submitted on general charges asked by both parties, if there was error in the charge given for appellees that was cured by charges asked and given for appellant, he should not be heard to complain on that score.</p> <p>6. Charge—Forged Deed in Chain of Title.—A charge, that if the evidence shows a forged instrument in the chain of defendant’s title, it is such a defect as shows the want of intrinsic fairness and honesty, and will defeat the plea of limitation of three years, is correct.</p> <p>7. Charge—Laches.—That loches, or neglect of plaintiffs, in bringing suit and in paying taxes would not defeat their action, when there has not been adverse possession for sufficient length of time to support the statute of limitations, is a correct charge.</p> <p>8. Charge—Power of Attorney.—See opinion for correct charge on the title held by appellees, and the necessity of appellants, under their plea of not guilty, connecting themselves with the original grantee, and on the effect of a conveyance, under a power of attorney.</p> <p>9. Adverse Possession.—See opinion for facts held insufficient to show appellants had acquired title to the land under the five years statute of limitations.</p>

<p>1. New Contract—Breach.—Appellees made a contract with appellant to do certain work, and before the work was completed a new contract was entered into by the parties, reciting that the work was in a damaged and unsatisfactory condition, and providing that appellant should retain §2000 out of the money due on said contract, as indemnity, to be deposited in a bank and there held till the work was completed to the satisfaction of appellant, either by appellant himself or by appellees upon the written request of appellant. Held, that on appellant’s failure to complete the work or give appellees an opportunity to do so, they could recover the difference between the §2000 and the cost of the repairs.</p> <p>2. Same.—Appellees had a right to sue and recover on the new contract, without declaring on the original.</p> <p>Appeal from El Paso. Tried below before Hon. H. H. Heill, Special Judge.</p>

<p>Appeal from Bexar.</p>

<p>1. Statutory Penalties—Prescribed for Whom.—The statutory penalty of $500 for an infraction of a liquor bond, where the breach of the bond consisted in permitting games of chance, to wit, faro, roulette, and craps, to be played in the said place of business, was not prescribed for the benefit of persons whose grievance could not have arisen except by their violation of law.</p> <p>2. Same—Civil Action Maintainable, When.—The civil action in such cases is maintainable when, and only when, the person complaining is of a class entitled to take advantage of the law, is a sufferer from the disobedience, and himself not a partaker in the wrong of which he complains, or is not otherwise precluded by the principles of the common law from his proper standing in court, and the court will not lend themselves to the task of repairing an injury which has been the result of a guilty participation in the violation of its laws.</p> <p>3. Same—General Rule Applicable.—The general rule applicable in such cases may be found expressed in the maxim, that “no man can make his own misconduct the ground for an action in his own favor. ” If he suffers because of his own wrongdoing, the law will not relieve him, as the law can not recognize equities arising from a wrong in favor of one concerned in committing it.</p> <p>4. Statute Law—How Violated.—There must be some cause of grievance accrue to the person asking for the penalty, arising directly and proximately from the breach of the stipulations of the liquor bond, and not that arising from some intervening cause growing out of the criminal act of the person desiring the penalty.</p>

<p>Appeal from Atascosa.</p>

<p>1. Opening Public Road—Injunction—Demurrer.—The petition alleged that on a certain date, on the application of the requisite number of freeholders, the Commissioners Court appointed a jury of view to view the proposed road and report to the court; that this was done, and the road placed by the jury as had been prayed for; that the report had been changed by the Commissioners Court, and that the road attempted to be laid out by said court was never viewed by a jury of view; that the report of said jury was neither adopted nor rejected, but that the court, without a petition or any view of the proposed road, entered an order laying out a second-class road, in another and different place, through the lands of appellant, having a different beginning point; that no damages had been allowed appellant. A temporary injunction was granted, exceptions were sustained, and the cause dismissed. Held, that the petition showed a good cause of action, and cause should not have been dismissed.</p> <p>2. Eminent Domain—Right to Exercise Requires Strict Compliance with the Terms of the Law.—The condemnation of private property for public use is a proceeding vested by the law in certain tribunals, and certain prerequisites to its legal exercise are required, and in no other way than that prescribed can property be diverted from a private to a public use.</p> <p>3. Report of Jury of View.-—When the report of the jury of view has been returned to the Commissioners Court, it is their duty to approve the same and order the road opened, or reject it. See opinion for discussion as to power of the court to open road without application, and opening a road different from one reported.</p> <p>4. The Power to Condemn Property for Public Use Must Be Strictly Pursued.—Since the power to condemn private property against the will of the owner is a stringent and extraordinary one, based upon public necessity or an urgent public policy, the rule requiring the power to be strictly construed, and the prescribed mode for its exercise strictly followed, is a just one, and should within all reasonable limits be inflexibly adhered to and applied.</p>

<p>1. Unreasonable Requests of Appellee—Practice on Appeal.—Where, on appeal, the appellee requests the appellate court to examine the evidence and dispose of the case on an issue of fact which was not submitted to the jury, and which was not a fact conceded, such request, if complied with, would be exceeding the authority conferred upon this Court of Appeals.</p> <p>2. Charge of the Court—-Not Error, When.—Where the court charged the jury, that “the defendant as a railroad company has no means to act except through its agents, and the act or negligence of an agent in the performance of his duties is in law the act or negligence of the company itself,” and immediately follows this charge by instructing the jury, that the company would not be liable for the negligent acts of an employe if it had used ordinary and reasonable care and diligence in employing him, such charge when considered in connection with other portions of the charge would not be erroneous.</p> <p>3. Same—Is a Proper Charge, When.—Where the court charges, that “if the plaintiff has shown that the defendant failed to use ordinary care and diligence in employing an engineer who is a careless and reckless man, and the injury complained of was occasioned as the direct and proximate result thereof, and the same happened "without fault or contributory negligence on the part of the plaintiff, this, in law, would be such negligence on the part of defendant as would render the company liable, and you should find for the plaintiff,” such charge embodies a correct proposition of the law.</p> <p>4. Same—-Is Erroneous, When.—-A charge is distinctly erroneous which instructs the j ury, that ‘1 an inj ury is the proximate result of an act, when, without said act, the injury would not have occurred; if, therefore, you believe from the evidence that plaintiff’s injuries are and were the direct proximate result of the act of the fireman, then you will find your verdict in favor of the defendant.”</p> <p>5. Evidence—Admissible, When—Not Hearsay.—That a witness obtains his knowledge from telegraphic reports of the reckless running speed of trains, is not objectionable as hearsay evidence, in view of the fact that the objection was not made on the ground that the original reports would have been better evidence, but that the character of the evidence was hearsay, which would have applied equally to the original.</p> <p>6. Same—Hearsay Evidence Admissible, When.—When a witness states that the character of an employe for care and caution is not good, as the superintendent and trainmaster said he had been discharged before by the company for carelessness, this is evidence of general reputation, which is always based on hearsay, and is admissible when sufficiently general.</p> <p>7. Liability of Master for Injuries to Servant.—The master will not be held liable for the negligent acts of a fellow servant, unless such master has himself been negligent in having such servant in his employ; nor would he be liable even then, unless the negligent act was found to be the proximate cause of the injury.</p> <p>8. Proximate Cause—Intervening Agencies.—An intervening agency, in order to make the original cause too remote, must be some new cause of itself sufficient to stand as the cause of the misfortune. It must be an independent agency. If the intervening cause has been produced by, or its presence attributable to, an ulterior cause, it does not take the place of the latter as the sole responsible cause.</p> <p>9. Excessive Verdict—What Is Not.—A verdict for §11,200 is not excessive when given for injuries sustained through the negligence of the defendant company in employing a dangerous and unworthy fellow servant, when such injuries result in the amputation of one limb, and render the plaintiff unfit for hard labpr.</p> <p>10. An Ordinary Jury—Must Possess What Capacity—Presumptions as to Capacity.—A jury must be presumed to possess such capacity as will enable them to understand a charge that is expressed in ordinarily clear language. No principle of practice is better established than that the entire charge must be looked to, to determine its sufficiency.</p>

<p>Railway Company—Receivers—Return of Property Without Sale—Agreed Decree—Betterments—Right to Sue in State Court—Excessive Verdict.—Appellant being in the hands of receivers appointed by the United States Circuit Court, appellee, desiring to send his wife and two little girls, aged about 4 and 11 years respectively, to visit relatives near Newton Creek, a way station on appellant’s line of railway between Dallas and Lancaster, bought tickets for them from the agent of the receivers, from Dallas to Lancaster, and upon such tickets the conductor in charge of the train agreed to put them off at Newton Creek crossing, a few hundred yards from where their relatives lived. Mrs. Chilton and the children boarded the train, expecting, under the agreement with the conductor, to be put off at Newton Creek crossing. When the train reached Five-mile Bottom, a point about two miles from Newton Creek, the train was stopped in a muddy swamp, in the night-time, several miles from any habitation, and they were put off, against their protest. When this suit for damages was brought, and at the time of the injury, the railroad was in the hands of the receivers, but before trial the property had been returned to appellant, and the receivers discharged by an agreed decree, to which appellant was a party. Held: ,</p> <p>1. The decree of the Federal court being an agreed decree, appellant, being a party to such agreement, and having accepted the property under it, is bound by all of its terms.</p> <p>2. Appellant having agreed thereby to accept the property “subject to all claims, damages, and liabilities now existing, or which may hereafter be made against the receivers,” and having been made a party to this suit, became liable herein for any damages sustained by appellee while the property was in the hands of the receivers.</p> <p>3. That part of the decree of the United States Circuit Court which orders the receivers to return the property to the railway company on a certain date, is a valid order, and when the receivers did, in obedience to such order, deliver the property into the hands of the company, it was no longer in the custody of the Federal court, and it had no power or authority to require parties having claims against the receivers or against the company to intervene in the United States Circuit Court within a limited time, or forfeit their rights.</p> <p>4. Independent of the decree of the Federal court, appellee had the right to pursue his remedy against the receivers in the State court, not only by State statute, but by the Act of Congress of March 3, 1887.</p> <p>5. After the discharge of the receivers and the return of the property to the railway company, which was then released and placed wholly beyond the custody of the Federal court, appellee was authorized, by the agreed decree, as well as by the Act of the Legislature of March 19, 1889, to proceed against the railway company to enforce his claim.</p> <p>6. Under general principles of equity, and without reference to any statute, it has heen frequently held that the receiver was the representative of the income of the railway during the receivership, and when this income was invested in betterments upon the road, a creditor could follow the same into the hands of the company, and to that extent, at least, enforce the collection of his claim.</p> <p>7. The statute of 1889 has gone further than this, and enacted that where the property has been returned to the company without sale, it is responsible for a debt or liability incurred during the receivership, without reference to the question of betterments; and the act in this respect is not only constitutional, but pre-eminently just and equitable.</p> <p>8. It was not error to charge the jury, that when the appellant received back the property from the receivers it took the same subject to appellee’s claim, and that appéllee was entitled to recover against appellant, if without such discharge he would have been entitled to recover against the receivers. The charge is good under both the statute and the agreed decree.</p> <p>9. See opinion for facts under which it is held that a verdict for §1160 damages is exceedingly moderate.</p> <p>ON MOTION FOB EEHEABING-.</p> <p>1. Betterments—Presumption.—It appearing that while the road was in the hands of the receivers they placed betterments thereon of value exceeding the recovery in this case, the presumption is that this was done out of current receipts.</p> <p>2. Burden of Proof.—The betterments being shown, the burden of proof was on the appellant to show that it was not from the current receipts.</p>

<p>Appeal from County Court of Fannin.</p> <p>Tried below before Hon. Wm. A. BRAaiLETTE.</p>

<p>1. Municipal Corporation—Grading Streets—Damages—Constitutional Daw.—Article 1, section 17, of the Constitution, not only prohibits the taking and destruction of a person’s property for the public benefit without compensation, but also prohibits the damaging of such property without such compensation. The liability for such damages does not depend upon negligence; the owner has the absolute right to compensation for the damage done to his property, unless he has consented thereto.</p> <p>2. Consent of Owner a Matter of Defense—Need Not to he Negatived in Petition.—In a suit against a city for damages for grading a street in such a manner as to decrease the value of plaintiff’s abutting lots, it was not necessary for the petition to allege that the grading was done without his consent Consent was a matter of defense in the nature of an estoppel to be pleaded by defendant.</p> <p>3. Request of Owner to Grade is Consent—Negligence.—Where the owner of property petitions the city counsel for the fixing and construction of the grade of a street, he consents, within the meaning of the Constitution, to all such damages as are incident to a skillful and proper construction thereof, and can then recover only for injuries resulting from negligence of the city in constructing the work consented to.</p> <p>4. Same—Surface Water.—In such case, where the municipality keeps within the limits of its streets and its jurisdiction, and the injury caused by surface water is wholly incidental to and consequent upon the exercise of its lawful powers, there is no implied or common law liability.</p> <p>5. Measure of Damages.—If a recovery could be had, the proper measure of damages, if the injury be permanent, would be the difference in the value of the property just before and just after the injury was inflicted; if the injury was not of a permanent character, then such special damages as could be shown to be the proximate result of the wrongful act.</p>

<p>Partnership—Dissolution—Sale—Estoppel—Case in Judgment.—Finley, a retiring partner, made a secret conveyance of his interest in the partnership business to Hall, his dormant partner, agreeing that the business might be carried on in the name of Finley until February 1,1891, thereafter, and received in consideration a promissory note, and an indemnity that Hall would discharge all debts then existing, or that might thereafter be created against the business, and protect Finley against loss by reason thereof. The instrument of conveyance was deposited for keeping with the attorney who drew it, and it contained the following: “It is further agreed, that should said J. D. Hall desire to do so, he may, upon the payment of said promissory note, and all the then outstanding liabilities of said business of said J. T. Finley, at any time prior to said 1st day of February, 1891, have said business, together with everything of value connected therewith, transferred and assigned to him by said party of the first part” (Finley). After this conveyance, Hall conducted the business in Finley’s name until Hall’s death, which was July 14, 1891. When the note matured on February 1, 1891, Finley demanded payment, and Hall paid a part of it, and told Finley that as soon as he could he would pay the balance. After Hall’s death, Finley made an inventory of the stock of goods, and a few days thereafter sold the goods to the produce company, they agreeing to pay certain debts created by the business while so conducted under Finley’s name. Before the Texas Produce Company had paid any sum whatever, and before they had completed an inventory, but after the terms of the sale had been agreed upon, they were notified not to pay anything on the goods; that Finley had no interest in them; that they belonged to the estate of J. D. Hall; that airpellee would be appointed administrator of the Hall estate the following Monday, and that he would then demand the goods as such administrator. In a suit by Hall’s administrator against appellant for the value of goods' (in which the holders of debts created by Hall in the name of Finley intervened), Held:</p> <p>1. The legal effect of the instrument of conveyance from Finley to Hall, as between them, absolutely conveys all of Finley’s interest in the business to Hall.</p> <p>2. The partnership between Finley and Hall was dissolved by the sale of Finley's interest to Hall, and at the time of Hall’s death Finley had no interest, either legal or equitable, in the property of the business.</p> <p>3. Upon Hall’s death the property belonged to his estate, subject to administration, and the administrator of the estate was entitled to possession of it.</p> <p>4. In the purchase from Finley, the Texas Produce Company acquired no title, unless by estoppel, and the estate of Hall is not estopped to assert title.</p>

<p>1. Change of Venue—Agent as Compurgator—Competency.—That one of the compurgators to a motion of a railway company for a change of venue was the local agent of the railway company in the county where the suit was pending did not render him incompetent to make the affidavit nor preclude him from being a “credible person,” as contemplated by article 1271, Revised Statutes, as the same existed prior to the Act of February 11, 1893.</p> <p>2. Same—Continuance — Estoppel.—Appellant being entitled to a change of venue at the time the motion was acted upon, the failure to renew the motion at a subsequent term, after the cause had been continued for several times, does not estop the railway company from insisting upon the error of the court in refusing to grant a change of venue.</p>

<p>Appeal from Dallas County.</p> <p>Tried below before Hon. B. E. Burke.</p>

<p>Appeal from Dallas County.</p> <p>Tried below before Hon. B. E. Burke.</p>

<p>ON MOTION FOB BEHEABING.</p> <p>1. Joint Contracts—Parties—Pleading.—It is well settled that in actions upon joint contracts all persons in whom the right of action exists must he made parties thereto; and the failure to make them such will prove fatal to the right to recover, whether the defendant pleads such want of parties in abatement or not.</p> <p>2. Same—Fundamental Error.—The failure to make the necessary parties plaintiff to an action on a joint contract will be considered on appeal by this court if brought to its notice, whether the defendant plead the want of parties below or not, as it is fundamental error.</p> <p>3. Same—Parties.—As the right to subject the land to the payment of the purchase money exists only by reason of the sale of the land by Parks to Summerhill, and the reservation of the lien to secure the purchase money, though no personal judgment could be recovered against appellees, yet Mrs. Parks, being jointly interested in the recovery, was a necessary party, and without her being such appellants were not entitled to a judgment.</p>

<p>Appeal from Bowie.</p> <p>Tried below before Hon. John L. Sheppabd.</p>

2. On January 2, 1887, and prior thereto, Reynolds & O’Heal, of which firm George M. O’Heal was a member, owned a stock of horses and cattle running on the range in Hunt County, branded O R. On that day, for a valuable and legal consideration, George M. O’Heal in good faith transferred his interest in such horses and cattle to his partner Reynolds, who was his father-in-law.

<p>Appeal from Grayson.</p>

<p>1. Foundations of "Colleges.—The law makes two species of eleemosynary foundations, the one, foundatio incipiens, or the corporation, in which sense the gtate is the general founder of all colleges, and the other, foundatio perficiens, or the donation of it, in which sense the first gift of the revenues is the foundation, and the giver is the founder.</p> <p>8. Power of the Founder.—One who conveys property in trust for charitable purposes has, unless he assigns it to another, visitatorial power, in the exercise of which he may prescribe rules for its management and the administration of the trust, govern and control the trustees, inspect their proceedings, and correct abuses.</p> <p>3. Trustees of a Corporation.—The incorporation of trustees under a charter which confers upon them the full power of management, divests the right of the founder, and vests it, as well as the absolute title to the property conveyed, in the corporation.</p> <p>4. Title to the Baylor University Grounds.—See facts upon which it is held that the Union Baptist Association had no such interest, legal or equitable, in the Baylor University grounds at Independence as would enable it to recover them froin one to whom they had been sold, by the trustees of Baylor University, after the abandonment of the school, for the purpose of realizing funds to pay the debts of the corporation; although at one time the Texas Baptist Educational Society had the power to fill vacancies in the board of trustees of the university corporation, and this power had afterwards been transferred to the Baptist State Convention, of which the Union Association had at that time become a part.</p> <p>5. Execution Sale—Insufficient Description of Realty.—A sale under an execution, the levy upon which describes the property as “the Baylor University, in the town of Independence, Washington County, Texas, together with all its lands, buildings, improvements,” etc., vested no title in the purchaser, because no such description of the property is given as is essential to a valid sale of lands under execution.</p> <p>6. Baylor University at Independence.—History of the Baylor University— final sale of its property.</p>

<p>Appeal Bond—Sufficient.—An appeal bond made payable to “Mrs. E. Varden,” when her name correctly was “Mrs. E. Vanden,” is sufficient. The bond being payable to plaintiff under a name which the record assigns to her, could be made as available to her as if her true name was given.</p>

<p>Priority of Attachment Liens.—A. Seibel and plaintiff, the father and father-in-law of the defendant, who had the prior attachment liens upon the property of the defendant, having procured their attachments for amounts more than were due them by the defendant, and upon grounds which the evidence tended to prove were untrue, the trial court having found as one of his conclusions of fact that the grounds upon which they sued out their attachments were false, the trial court did not err in postponing the lien of their attachments to the lien of the intervenors’ attachment, who had attacked the prior attachments for fraud.</p>

<p>1. Guardian’s Powers.—A guardian, having taken a mortgage to secure money of her ward loaned out, has no power, without authority from the Prohate Court, to discharge the borrower from his liability for the debt, release the lien by which it is secured, or take a new note and other security for the loan. The first mortgage was not released by such acts, and a subsequent purchaser, having knowledge of the existence of the mortgage, is charged with notice of the want of power of the guardian.</p> <p>3. Effect of Approval of Guardian’s Accounts by Probate Court.—The approval of an account of the guardian, wherein she reported that she had had the note of the borrower, including interest, renewed, and had taken a deed of trust on 350 acres of land, which she believed worth the money due by the debtor, will not be allowed by implication to have the effect of curing the illegal acts of the guardian to the prejudice of the minor.</p> <p>3. Effect of Probate Order Allowing- Credits on Second Note.—An order of court allowing certain credits upon the second note appears to have been made upon the ex parte account of the guardian, and was not binding upon either the debtor or the subsequent purchaser. Not being an estoppel upon them, it could not have such effect in their favor.</p> <p>4. Subrogation.—As the second mortgage was given to secure a debt charged against the property sold by the borrowers by warranty deed, the purchaser of it, in case his property shall be taken to satisfy that claim, is entitled to be subrogated to the rights of the guardian under that mortgage.</p> <p>5. Attack on Privy Acknowledgment of Wife.—When the certificate of the officer taking the acknowledgment of a wife is in proper form, and there is no charge of fraud or misconduct on his part or the husband’s, the mere fact that the instrument may not have been explained to the wife privily and apart from her husband, will not authorize the setting aside?of the instrument, and the application of the rule is not dependent upon the question whether the beneficiary was or was not an innocent purchaser. Aside from fraud or undue influence, the officer’s certificate furnishes conclusive evidence that the acknowledgment was made as recited.</p> <p>6. Warranty of Married Woman.—A married woman who joins in a warranty deed of property sold by her husband, which was not her separate property, can not be held personally thereon.</p>

<p>1. Jurisdiction of the District Court.—The District Court has no jurisdiction of a suit for damages against a constable and his sureties for the seizure and sale of certain tools of a stone-mason claimed to be exempt from forced sale, .when the amount of damages alleged, and which plaintiff was entitled to recover, was less than $500, and the other items of damage pleaded were not the obvious consequences of the conversion of the property, and were not such as might have been reasonably foreseen by the officer making the levy.</p> <p>2. Unforeseen Damages Not Recoverable.—All the items of damage alleged, except the value of the tools arid the lost time of plaintiff’s teams, appear to have grown out of the fact that plaintiff had a contract to build certain bridge pillars, of which contract it is not alleged the constable had notice, and he could not have reasonably foreseen damages resulting therefrom.</p>

<p>1. Parol Evidence to Vary Writing.—The deed from, appellees to appellant conveying a lot and right to extend a wall forty feet, not undertaking to state what the appellant was to do in return for the grant of right to extend the wall, further than the cash consideration expressed in the deed, it is not inconsistent with its terms to prove by paroi what obligation the grantee assumed.</p> <p>2. Same.—A contract may be partly written and partly oral. The obligations on one side may be wholly in writing, while those on the other may be wholly oral. The recital of a money consideration will not exclude proof of another and additional consideration.</p>

<p>1. Judgment—Impeachment of—Service.—Where a person has not heen served with process in a suit, and has no notice thereof, and a judgment has heen rendered against him when he has a good defense, he may impeach the sheriff’s return without being required to show that the plaintiff connived at or procured such return, or had any connection therewith. It is sufficient that the return is not true in fact, and that there is a good defense.</p> <p>2. Collateral Attack.—This is not a collateral attack upon the return of the sheriff, hut a suit between the original parties to vacate and annul the judgment.</p> <p>3. Injunction Within Twelve Months.—When the suit is to reform a judgment by vacating that portion thereof charging the land in controversy with a lien, it being a part of the homestead of the plaintiffs, article 2875 of the Revised Statutes, limiting the time within which suits to enjoin judgments must be brought, does not apply, although the injunction was sought to restrain the execution of a writ of possession.</p> <p>4. Judgment of the Trial Court on the Facts.—The evidence impeaching the return was conflicting, but the finding of the court below, sitting as a jury, is as binding upon this court, under the law organizing it, as it was upon the Supreme Court before the change.</p>

<p>1. Jurisdiction of Justice Court.—A Justice Court has no jurisdiction of a suit against an administrator and Ms sureties for a sum directed by the Probate Court to be paid to a creditor of an estate, when the amount ordered to be paid, with the 5 per cent per month damages for delay in payment given by statute thereon, shall exceed in amount the sum of §200.</p> <p>2. Jurisdiction—Statute Unconstitutional.—Article 2049, Revised Statutes, which provides, that any executor or administrator who neglects to pay over money which he has been ordered by the county judge to pay, when payment is demanded by the person entitled to receive it, shall be liable for 5 per cent per month damages upon said amount for each and every month he shall neglect to pay, such damage to be recovered by suit against such executor or administrator and Ms sureties, before any court having jurisdiction of the amount claimed, exclusive of interest and such damages, in so far as it gives the court of a justice of the peace jurisdiction in suits involving an amount exceeding §200, is in conflict with the Constitution of the State, and to that extent inoperative and void.</p>

<p>1. Assignments of Error Disregarded.—In a suit against several defendants plaintiffs prevailed, and one of the defendants alone gave notice of appeal, and filed an appeal hand, made payable to the plaintiffs and all of his codefendants. The assignments of error of a defendant who gave no notice of appeal, and filed no bond for appeal, are disregarded.</p> <p>2. Proper Parties to Appeal Bond.—There was a judgment in favor of plaintiffs against S. & Co. and T. Prior to the final judgment, by order of the court, E., one of the defendants, had been dismissed from the suit. It was proper for S. & Co., who appealed, to make their appeal bond payable to the plaintiffs and their codefendants, T. and E.</p> <p>3. Change of Venue—Jurisdiction.—Suit was originally instituted in Colorado County. Upon motion of E., one of the defendants, who set up the existence of a prejudice against him in Colorado County, the venue of the suit was changed to Fayette County. In Fayette County, by the judgment of the court, the suit was dismissed as against E., and he was adjudged not to be a proper party. This judgment of dismissal did not oust the jurisdiction of Fayette County District Court. That court, having obtained jurisdiction by proper proceedings, retained it.</p> <p>4. Proper Party.—Plaintiffs sued defendants S. & Co. to recover of them part of the proceeds of a sale of certain goods which had been mortgaged to secure plaintiffs’ debt against E. Plaintiffs acquired their claim against E. after its maturity. S. & Co. also had a debt against E. secured by the same mortgage, and the proceeds of the sale had been deposited with them, as provided by the trust deed. They claimed the right to retain it, and set up large offsets against E.—more than sufficient to cover the total proceeds of sale. Plaintiffs’ claim having been assigned to them after its maturity, they took it subject to all defenses good against E., and he was a proper party to the suit.</p> <p>5. Fraud and Misrepresentation as a Defense.—When false and fraudulent representations are made by the debtor to a creditor as to the value of goods which are about to be sold to satisfy the creditor’s debt, and further promise made by the debtor that he would pay a part of the debt in cash, and put a man in charge of the stock to sell the same, and keep it replenished until therefrom the whole debt is paid, and these promises and agreements are made to induce the creditor to buy the stock and pay more for it than he otherwise would have done, and, relying upon them, the creditor does purchase at a price greater than the goods were worth, and after the sale the debtor repudiates the whole agreement—these facts may be averred and proved in answer to a suit for a part of the proceeds of such sale, by another creditor of E., who acquired his claim after its maturity.</p> <p>6. Uecessary Party When a Receiver Has Been Appointed.—While this suit was pending in Colorado County, and before the change of venue, a receiver was appointed by the court to sell the goods purchased by S. & Co. and in their hands, and he did sell them and denosited the proceeds with the registry of the court. After the change of venue, and after E. had been dismissed from the suit, the Fayette County District Court adjudged that there had never been any legal cause for the appointment of a receiver, and ordered that his acts and doings should be no further considered. If the allegations of the pleadings showed a proper case for the appointment of a receiver, which is not decided, because E. was not a party when the case was tried, E. would have been a necessary party to the suit.</p> <p>7. Offset.-—One who is sued as above for a part of the proceeds of a sale of goods mortgaged to secure a debt due him, may plead in set-off against an assignee of the debtor, that the debtor had sold other property upon which defendant had a lien, with the consent of defendant, but with the understanding and agreement that the proceeds of such sale should be paid over to the defendant, and that after such sale in violation of the agreement, the debtor had converted such proceeds to his own use.</p> <p>8. Allegation and Proof.—Matters of fact which amount to a confession and avoidance of the opponent’s cause of action or defense can not be proved when there is no pleading to support such proof.</p> <p>9. Set-off—Motes Secured by Mortgage.—It is no valid objection to the notes of E., pleaded by the defendant in set-off, that they were secured by trust deed, and there was no equitable reason why the property described in the trust deed should be first sold and the proceeds applied to the payment of the notes before they could be pleaded in set-off. This contention being made after E. had been dismissed from the suit, and plaintiffs having no pleadings asking such relief, it will nbt be granted. Plaintiffs would have been amply protected by subrogation to the security held by the defendants.</p> <p>10. Set-off of Attorney’s Fees.—See facts upon which it was held that certain attorney’s fees claimed to have been paid by S. & Co. for the collection of notes against E., which provided for a 10 per cent attorney’s fee, and for writing trust deed, were disallowed, and it was held that E. would only be liable for a proportionate part of a reasonable fee.</p> <p>11. Liability of Trustee.—T. was trustee in a deed of trust given to secure a debt due S. & Co. He executed the trust in strict accordance with its terms, and deposited the proceeds with S. & Co. as directed by the trust deed. In a suit by one claiming a part of such proceeds, it was error to render any judgment against the trustee in favor of plaintiffs. Although the proceeds of the sales stood credited to his name in the bank of S. & Co., a judgment in favor of or against plaintiffs would dispose of the fund, and be binding on him.</p>

<p>Construction of Deed—Case in Judgment.—In a partition of the estate of Stephen F. Austin, in 1846, to Mrs. Hill, one of the heirs, was allotted one-fourth of his estate, and to Mrs. Perry the remainder. In the deeds of partition, among other lands, Mrs. Perry conveyed to Mrs. Hill one-half a league of land in Wharton County, being league number 1, abstract number 4, granted to S. F. Austin. In her deed giving the boundaries of the half-league, it appeared that it contained 2214 acres, and was taken out of the middle of the league; and Mrs. Hill conveyed to Mrs. Perry all the remainder of the league. In 1875, it was discovered that there was an excess of 1270 acres in the league. In the partition of Mrs. Hill’s estate after her death her interest in the league was described as 2214 acres, and it was so described in the deed from her heir to Underwood, and in his deed to Brooks, and in the deed of Brooks, administratrix, to Quinan. It does not appear that this excess was known to Mrs. Hill and Mrs. Perry in 1846, when they partitioned. Held, that the subsequent vendees under Mrs. Hill only took 2214 acres, and the heirs of Mrs. Perry were entitled to all the excess.</p>

<p>1. Exemption—Tools of Trade.—The business of saddle, harness, and collar making may be regarded as one trade within the meaning of the statute exempting from execution all tools belonging to any trade or profession.</p> <p>2. Same,—Several Trades.—It seems that in this State one who actually engages in several trades to earn a support for himself and family can hold as exempt the necessary tools and apparatus for carrying on all of them.</p> <p>3. Practice—Judgment for Interest.—Where, in a suit for debt tried before a jury, the defendant admits the plaintiff’s cause of action, and the jury omit to allow plaintiff interest on his debt, such omission may be corrected either in the trial court or the appellate court.</p>

<p>Appeal from Tarrant.</p>

<p>1. Pleading—Supplemental Petition.—Plaintiffs sold goods to a mercantile firm, which afterwards conveyed them to H. in trust for the benefit of certain creditors. Plaintiffs brought suit against H. for the value of the goods, alleging a conversion. H. answered, that the sale by plaintiffs had passed the title to the firm, and that the firm had by the trust deed duly conveyed the title to him, and that said firm and the beneficiaries in the trust deed were necessary parties to the suit. Plaintiffs by supplemental petition replied, that the firm had fraudulently procured the alleged sale by false representations as to their solvency, wherefore no title had passed. Held, that this was proper matter for a supplemental petition, and objection that it should have been presented in the original petition was not well taken.</p> <p>2. Parties—Beneficiaries in Trust Deed.—Neither the firm of original purchasers, who were insolvent, nor the beneficiaries in the trust deed, were necessary parties to this suit.</p> <p>3. Evidence—Copy of Original.—Where a witness testified, that a certain original report of a commercial agency as to the standing of a mercantile firm which he had taken, was lost, that he had looked for it and could not find it, and that the figures contained in the report, the correctness of which he recognized, were m.ade by such firm, such copy was properly admitted in evidence.</p> <p>4. Evidence—Fraudulent Intent.—Where the action involves the issue of fraud in the purchase of goods, evidence tending to show a fraudulent intent is not confined to the existence of that intent with reference to the parties complaining in the action, but the fraudulent design to purchase goods upon false statements as to solvency may be shown to have extended to others, prior to the sale in question.</p> <p>5. Same—After Statements of Grantor.—Statements and declarations by an assignor or grantor in an instrument after he has parted with the title to the property, can not be heard to defeat the sale.</p> <p>6. Same.—But in this case it was not error to admit as original evidence such statements by the purchasing firm showing fraudulent intent, made to witnesses after their failure, and after the execution of the trust deed, although the suit was dismissed as to them after the introduction of such evidence, they having testified in the case and denied making the statements, and no specific objection to the evidence on this ground having been made in the court below, or embodied in the assignments of error.</p>

<p>Appeal from Denton.</p>

<p>Insurance Policy—Waiver of Condition—Estoppel by Action of Agent.—</p> <p>Where an insurance policy provides that it shall become void if other insurance on the property be taken without the company’s consent, and the agent who issued the policy is notified of the intention of the insured to take out further insurance and fails to object thereto, the company is estopped to claim a breach of the condition because of such additional insurance.</p>

<p>1. Limitations—Two Years—Amendment.-—An amended petition against a common carrier, seeking additional damages for injuries to other cattle than those mentioned in the original petition, and filed more than two years after the occurrence of the injuries, sets up a new cause of action, subject to the bar of the statute, although the injuries were all done at one and the same time.</p> <p>2. Common Carrier—Liability Beyond Its Line.—In the absence of a contract assuming such liability, a common carrier can not be held liable for damages to goods resulting beyond its line.</p> <p>3. Pleading—Common Carrier—Through. Shipment.—A petition alleging that defendant was a common carrier engaged in shipping cattle to and from points in Texas, and by means of connecting lines, to Chicago, and that defendant accepted cattle from plaintiff for shipment to Cairo, and thence to Chicago, for a certain compensation, in the absence of special exceptions, sufficiently charges a contract of through shipment.</p> <p>4. Pleading—-Inconsistent Pleas—Evidence.—Defendant pleaded a special contract under which it received the cattle, exempting it from liability beyond its own line. Plaintiff pleaded a general denial, and also, specially, that he signed the contract under duress. Held, that this admission of the execution of the contract did not excuse defendant from producing the original, as plaintiff would otherwise be deprived of the benefit of his general denial altogether.</p> <p>ON MOTION FOB BBHBABING-.</p> <p>5. Limitation—Two Years Statute—Trespass.—A petition alleging that defendant carrier contracted to transport plaintiff’s cattle to Chicago safely and expeditiously, but that it failed to provide suitable cars, and ran its cars negligently, whereby some of the cattle were killed, and others were bruised and became sick and depreciated in value, states an action of trespass for injury to property coming within the two years’ statute of limitations.</p>

<p>Appeal from Tarrant.</p>

<p>1. "Written Instrument—Secondary Evidence.—Where plaintiff’s petition described a written lease, charging it to be in the possession of one of the defendants and giving him notice to produce it, and the evidence of such defendant tends to show it was destroyed by him, a copy of the lease, made at the time of the execution and proved to be correct, is admissible in evidence.</p> <p>2. Notice—Putting on Inquiry.—It is not necessary that a party should have actual knowledge; if he has knowledge of such facts and circumstances as would put a reasonably prudent man on inquiry, and if such inquiry by being so made would have led to a knowledge of the fact in question, such information would have the same effect as actual notice.</p> <p>3. Limitations—Statute of Three Years—Intrinsic Fairness.—Where a deed forming a link in defendant’s chain of title was in fact a mortgage, and defendant knew this at the time he purchased the land, such deed will not support the three years’ statute of limitations, for “want of intrinsic fairness and honesty in the transaction.”</p> <p>4. Practice on Appeal—Assignment of Error.—An assignment of error, that “the court erred in failing to give instructions on defendant's claim of possession of the land in controversy,” unaccompanied by any proposition, or any specific statement, or reference to the record, indicating the point of complaint, is not entitled to consideration.</p> <p>5. New Trial—Newly Discovered Evidence.—Newly discovered evidence, desired for the sole purpose .of impeachment, is not ground for a new trial.</p>

<p>1. Jurisdiction—Receiver—Property in Another State.—The court of another State being without jurisdiction to appoint a receiver for property situated entirely within the State of Texas, it can not make certificates issued by such receiver under its order a preference lien on the property. The fact that the president of the insolvent corporation for which the receiver was so appointed, in obedience to the order of the foreign court, attempted to convey the property to such receiver, can not affect the question.</p> <p>2. Parties—Trustee—Foreclosure of Mortgage.—The trustee in a mortgage given to secure bondholders brought suit to foreclose the mortgage, and the holders of certain receiver’s certificates subsequently issued on the property intervened, setting up an agreement between themselves and a part of the bondholders whereby the certificates were to have priority of lien over the mortgage. Held, that such bondholders were necessary parties, as the mortgage did not authorize the trustee to represent them in matters affected by such agreement.</p>

<p>1. Limitations—Five Years’ Statute—Coverture.—Where a defendant who has heen for several years in possession of land that belongs to a woman takes a sheriff’s deed therefor, made after the woman has married, such deed, because of her coverture, will not support the five years’ statute of limitations, though possession be held for that time after its record.</p> <p>2. Same—Ten Years’ Possession—Revised Statutes.—Where the ten years’ actual possession of land was not complete at the time of the adoption of the Revised Statutes, September 1,1879, the possessor’s right was thereby reduced from 640 to 160 acres, unless more than 160 acres was actually inclosed, or held under some recorded memorandum of title defining its boundaries.</p>

<p>1. Damages for Stock Killed—Market Value.—In an action for the value of stock killed, brought against a railway company, a judgment for plaintiff will be reversed where the only evidence of their value was a description of them, accompanied with a statement that there was no market value for them at the place of the killing.</p> <p>2. Same—Negligence—Liability of Railroad.—To render a railroad liable under the statute for stock killed, it is not necessary to show actual contact with the cars when negligence other than a failure to fence the track is shown to have been the proximate cause of the injury.</p>

<p>1. Penalty for Failure to Furnish Stock Cars—Pleading.—Petition for damages and for the statutory penalty for failure hy the defendant company to furnish three stable stock cars, demanded by plaintiff of the company’s agent at Llano, Texas. Sdd, that article 4227a, Sayles’ Civil Statutes, under which the action was brought, does not designate the character of cars to be furnished; and that there is no penalty prescribed for failure to furnish the kind of cars demanded.</p> <p>2. Same.—The rule is well settled that statutes which impose penalties are to be strictly construed, and those who seek to recover such penalties must bring their cases clearly within the terms of the statute.</p> <p>3. Local Station Agent—Superintendent, etc.—The local station agent in charge of the railroad’s transportation may be considered as “ the superintendent or person m charge of transportation,” upon whom demand for stock cars may be made under the statute.</p> <p>4. Reversal in Part, etc.—The judgment below as to actual damages is approved, and for the penalty it is reversed and remanded.</p>

<p>1. Suit by Parents'for Damages for Killing Their Minor Son.—Action by parents against a railway company for negligently causing the death of their minor son, in its employ without consent of his parents. The petition did not allege knowledge or notice on part of the railway company of the son’s minority at the time of employing him. Verdict for plaintiffs. On motion for new trial the defect was urged. Held;</p> <p>1. The allegation was material to the cause of action.</p> <p>2. Verdict and entry of judgment do not cure the defect.</p> <p>3. As basis for a valid judgment pleadings are as essential as evidence. - •</p> <p>4. We have been unable to find any authoritative decision that goes to the extent of holding that the omission or failure to plead a fact essential to good pleading, the averment of which should be made in order to state a cause of action, is waived by the failure to demur, or that such defect could not be urged at some later stage of the proceedings.</p> <p>5. Such defect is ground for reversal of a judgment for-plaintiff upon such petition.</p> <p>2. Acquiescence.—There being testimony to the knowledge by the father of his son’s employment by the railway, such fact should have been submitted to the jury.</p>

<p>1. Waiver—Vendor's Lien.—The burden of proof lies upon one alleging a waiver of the vendor’s lien. Such fact may be established by circumstantial evidence. See testimony held insufficient to prove waiver.</p> <p>3. Rescission of Contract for Sale of Land by Vendor..—A vendor can not rescind a contract for sale of land against the holder of a vendor’s lien note given by a subvendee to the original vendee from whom the holder obtained such note, without demand and notice by vendor to such holder.</p> <p>3. Agreed Facts—Presumptions.—Where the trial court acts upon an agreed statement of facts, and there is no conflict in the testimony, no presumptions are indulged to support such judgment, as are if rendered upon a verdict of a jury.</p>

<p>Appeal from Hamilton.</p>

<p>Error from Coleman.</p>

<p>1. Costs.—Plaintiffs in trespass to try title alleged title to lots 5 and 6 in a block of surveys, and that the defendant was in possession. On trial it appeared that the defendant was not upon any part of said lots. Held, a judgment for costs for defendant was proper, although plaintiff proved title in said surveys or lots.</p> <p>3. Immaterial Error.—Where defendant established title by limitation, it was an immaterial finding that there was a superior outstanding title to the land. Such finding was harmless.</p> <p>3. Agreed Boundary.—Adjacent land owners agreed upon a division line upon which they built a fence. The plaintiff subsequently purchasing from one of the parties is estopped from attacking said agreement.</p> <p>4. Same—Estoppel.—The defense of estoppel in trespass to try title may be proved under plea of not guilty.</p> <p>5. Declarations of Deceased in Evidence.—It was competent to prove a paroi agreement upon a division line, acted upon subsequently, after the death of one of the parties making it, and in behalf of the survivor, when the agreed line was attacked by vendees of the deceased party.</p>

<p>Tried below' before Hon. W. M. Sleeper, Special District Judge.</p>

<p>Appeal from McLennan.</p> <p>Tried below before Hon. L. W. Goodrich.</p>

<p>Ebbob to County Court of Llano County.</p> <p>Tried below Hon. W. S. Maxwell, County Judge.</p> <p>Suit was brought upon a promissory note executed by the four defendants. The note was set out in full, and was a joint obligation by the makers. The petition, however, alleged that the instrument was a joint and several obligation. The defendants did not appear, and judgment final by default was rendered. The judgment was joint and several against the several defendants. There is no statement of facts, and the case is brought up for revision, by writ of error. The only assignment complained of was the form of the judgment.</p>

<p>1. Pleading—Petition—Negligence.—The allegations in the petition show that the carriage, the subject of the injury and the litigation, was run upon by a train of the defendant company and was injured; that after this collision the employes placed it upon another track, which was near, and that upon this track a train collided with the carriage, destroying it. Held, that the driver in charge at the first collision might presume and act upon the presumption that the defendant would not run upon the carriage again. The facts alleged show a cause of action; it was not necessary to aver further effort by the driver to protect the carriage.</p> <p>2. Opinion—Value.—A driver whose carriage was injured in a collision, who was present at the wreck and knew the condition of the carriage before and after the injury, would be competent to testify to the amount of damage caused by the collision. This is not of that class of cases in which the jury alone can estimate the damages.</p> <p>3. Charge—Failure to Request that Omission be Supplied.—A failure to enumerate all the issues in the statement of the case made by the judge in his charge, or a like omission in the body of the charge, must be noted in the trial court by request that the omission be supplied. Such defect can not be the subject of complaint for the first time in the appellate court.</p> <p>4. Form of Charge—Reference to Other Parts.—It is not error in the court that it referred to other parts of the charge, instead of repeating such part. See example.</p> <p>5. Negligence—Fact Case.—See facts upon which the trial court did not err in refusing to instruct the jury that the defendant would not be liable for damages done in a collision unless its servants wantonly and willfully ran into the carriage and caused the injury.</p> <p>6. Defective Charge.—A defective charge given on request can not be attacked on appeal by the party at whose instance it was given.</p> <p>7. Value—Market Value.—There was testimony to the value of the injured property before and after the collision. That no market value was proven at the time and place is no ground for reversal when not called to attention of the court in motion for new trial, although by the charge the market value was submitted as a basis for verdict.</p>

<p>1. Legal Title—Construction of Conveyance.—A conveyance reciting a consideration and declaring that the grantor has sold unto the vendee a tract of land described, passes the legal title, although followed by an obligation binding the grantor to execute a deed in fee with warranty * * * “as soon as the deed for the same may be obtained from the State.” So also a transfer by the vendee annexed to such conveyance, transferring all the right and title thereto, will pass the legal title to the land. After thirty years these documents as ancient instruments, having been produced by the subvendee who had asserted title with continuous payment of taxes, were sufficient evidence to entitle recovery against parties claiming under heirs of the grantor in the first named instrument, without proof of payment of consideration or of the execution of the instrument.</p> <p>3. Harmless Error.—The admission of evidence of general repute in the neighborhood of the land in controversy as to the ownership, though erroneous, was harmless under the circumstances. See example.</p> <p>3. Equitable Title—Stale Demand.—Owner of an equitable title is not required to assert it by suit so long as not adversely questioned by the party holding the legal title. But in this case no question of stale demand or of equitable title arose.</p> <p>4. Improvements in Good Faith.—The jury having found for the defendant upon suggestion of improvements in good faith, he could not complain of the failure of the court to instruct the jury that they were judges of the credibility of the witness. The appellant claimed and testified to a much larger value of improvements than that allowed by the jury.</p> <p>8. Recorded Instruments—Certificate of Acknowledgment.—A certificate by notary public correct in other respects stated, that on this day personally appeared Horace Baker and C. C. Baker, * * * and acknowledged to me that Zte executed the same for the purpose and consideration therein expressed.” Held, the certificate was insufficient, and record under it void. Where more than one person is mentioned in the certificate as makers of the deed, the acknowledgment should he by each, and the certificate should show it.</p> <p>6. Refusal to Postpone Trial—Want of Diligence.—Deeds offered as recorded instruments were excluded because not properly recorded, on account of defective certificate of acknowledgment. Held, not error to refuse to postpone the trial to procure attendance of the notary before whom the deeds had been acknowledged, for purpose of proving their execution.</p>

<p>Appeal from El Paso.</p>

<p>1. Petition on Contract of Insurance Insufficient.—The rules of pleading, where not modified by statute, are the same in their application to contracts of insurance as to other contracts. In declaring on a contract of insurance, it, or so much as will show a right to recover, must be set out in terms or in substance. The money is only recoverable on the performance of certain acts by the insured, and the existence and performance of these facts must be alleged.</p> <p>S. Same—Interest of Assured Must Be Averred.—An insurable interest at the time of the insurance and at the time of the loss must be averred, to entitle plaintiff to recover.</p> <p>3. Same—Proof of Loss Must Be Alleged.—Proof of loss, in accordance with the terms of the policy, must be alleged, or an allegation that this stipulation was waived.</p> <p>4. Ten Days Vacancy Clause in Policy Valid—Waiver.—A stipulation that the policy, unless otherwise provided by agreement, shall become void if the property insured become vacant and remain so for ten days, is valid, and an allegation that the agent knew that the building was not the dwelling of the assured, and that it would be occupied by a tenant, and knew of the vacancy when the policy was issued, would not avoid the vacancy clause.</p> <p>5. Knowledge of Agent Estoppel.—If at the time of the loss the occupancy of the premises is in the same condition as was known to the agent at the time of insuranee, the company is liable, even though the applicant ignorantly signed an applicar tian filled out by' the agent containing an erroneous statement on the subject. But if the premises once become occupied after insurance, the condition takes effect, or if the agent, on knowing of a vacancy occurring after insurance, notifies the insured that it will invalidate the policy, or if he is merely silent, the company is not estopped.</p> <p>6. Proper Charge.—See opinion for a proper charge that should have been given.</p>

<p>1. Answer Remains Effective, When.—The answers replying to the original petition were not rendered of no effect by the filing of an amended petition, even though the nature oí the suit was changed from one of trespass to try title for the whole of the tract to one of trespass to try title for a part of it, and asking for partition.</p> <p>2. Limitation—Coverture—Pleading.—Although evidence of coverture was admitted without objection, it can not be considered without coverture has been pleaded in reply to the plea of limitation set up by the defendant. 68 Texas, 599.</p> <p>3. Limitation—Tenant in Common.—If one tenant in common in possession sets up a claim for a greater interest than he owns, and excludes his cotenant, his holding may become adverse and mature into title by limitation. 73 Texas, 44.</p> <p>4. Adverse Possession—Land Within Inclosure.—Defendant inclosed the lands sued for, in 1882 or 1883, with other lands held by purchase or lease by defendant, until 1892, when suit was filed. Held, such possession was sufficient to bar a recovery prior to enactment of chapter 57, Twenty-second Legislature (March, 1881).</p> <p>5. Same—Statute Construed.—The amendment touching lands inclosed within large pastures did not affect titles which had been perfected by limitation before its passage.</p>

<p>1. Subrogation.—Subrogation rests on principles of equity, and privity of contract is not necessary to its support. It requires, (1) that the person seeking its benefit must have i>aid a debt due to a third person before he can be substituted to that party’s rights; and (2) in doing this, he must not act as a mere volunteer, but on compulsion, to save himself from loss by reason of a superior lien or claim on the part of the person to whom he pays the debt, as in cases of sureties, prior mortgages, etc. Ins. Co. v. Middleport, 124 U. S., 549.</p> <p>S. Same.—The appellee had a lien on certain property belonging to the Laredo Improvement Company, which was foreclosed, subject to §4525.84, a superior lien, growing out of the expenses of the receivership and receiver’s certificates, and the property having been sold for less than appellee’s claim, appellee (but for this claim adjudged a superior lien) would have been entitled to the whole proceeds of the sale. It was therefore subrogated to the right of the parties to whom the §4525.84 was paid, who were to have the amounts due them on receiver’s certificates, etc., paid by the Laredo Improvement Company. When a sum sufficient to reimburse the appellee was colleci ed from the stockholders, upon which there was no lien superior to that paid off by appellee, it was entitled, to an order of the court requiring the receiver to reimburse it out of such sum. Clifford v. Campbell, 65 Texas, 246.</p>

<p>1. Damages—Facts Stated Sufficient to Show.—The petition alleges a knowledge by plaintiff of the incompetency of the fireman, who by his incompetency caused the injury; and further states, that as soon as plaintiff learned of the unfitness of the fireman he complained to his foreman, the proper person to notify, whose duty it was to discharge the fireman; and that he promised plaintiff, if he remained in the service of defendant, he would have the fireman discharged, and have a competent fireman employed; and when injured, plaintiff was ignorant that the fireman had not been discharged. Held, the petition shows a cause of action, and to go further than plaintiff has done in his petition would be to plead matters of evidence.</p> <p>2. Evidence of Incompetent Employe—Notice Imputed to Employer—Immaterial When Employe Has Knowledge of Incompetency.—When the evidence tends to show the fireman was incompetent, and that such was his general reputation among those in the yards, this may have been sufficient to impute to the defendant knowledge of his unfitness; but this becomes unimportant when the testimony shows plaintiff had knowledge of this incompetency; he could not hold the master liable, for the injury is chargeable to plaintiff’s own negligence, and the risk was one assumed by him. Railway v. Whitmore, 58 Texas, 286.</p> <p>3. Vice-Principal.—See opinion for facts insufficient to show that the foreman to whom plaintiff complained was a vice-principal.</p> <p>4. Charge.—A charge which assumes a controverted fact to be true, is erroneous.</p> <p>5. Charge Should Conform to the Pleadings.—When a party alleges incompetency of a fireman as the cause of injury, the charge should limit the right to recover to the incompetency of the fireman.</p>

<p>Appeal from Atascosa.</p>

<p>1. Board of Prisoners.—Appellant brought suit against appellee for the board of three prisoners, two of whom were indicted in ICimble County for murder, and one was indicted in Sutton County for murder, whose cases had been removed by change of venue to Mason County, and were there held by the sheriff. All the prisoners, by order of the District Court of Mason County, were transferred to the sheriff of Travis County for safe keeping, on account of the insecurity of the jail at Mason. Appellant presented a claim for board of these prisoners for a total of 363 days, at seventy-five cents a day, to the Commissioners Court of Mason County; its payment was refused. Suit was brought on the claim in the District Court, and judgment was against appellant. Held, that appellee, not having made any contract, was not liable. Article 1062 of the Code of Criminal Procedure places the liability for appellant’s claim on Sutton and Kimble Counties, respectively.</p> <p>2. Comity Not Liable to Sheriff, When.—Under article 279 of the Code of Criminal Procedure, when a prisoner is removed to a county for safe keeping, the county keeping the prisoner can recover expenses attending the custody and safe keeping of the prisoner from the county transferring him; but this article does not create any liability against the county in favor of sheriffs.</p> <p>Code of Criminal Procedure, articles 279, 1073-1074.</p>

<p>1. Rules—Assignment of Error—Propositions.—When an assignment contains more than one point, Rule 30 contemplates that each point should he stated in a distinct proposition; but “the rules were never intended to hedge the Courts of Civil Appeals around with technical and arbitrary requirements, so as to cut off the approach of such parties as seek relief in good faith from the consequences of supposed errors committed to their prejudice in the trial courts.”</p> <p>2. Damages—Personal Injury, What Allegation Sufficient.—It is not necessary to aver with great particularity the specific acts of negligence which caused the injury. Railway v. Bunker, 68 Texas, 502.</p> <p>3. Same.—An allegation that plaintiff's minor child was violently thrown through the window of a car, and thereby was seriously injured, and permanently crippled so as to disable her from performing labor of any kind, is sufficient.</p> <p>4. Witness Not Required to Criminate Himself—Privilege Extends to the Witness Only.—It is the privilege of a witness not to answer a question that will subject him to a criminal prosecution; but the privilege is Ms own, and not that of a party to the suit; and counsel will not be allowed to make the objection.</p> <p>5. Services of Physician Not Qualified by Law to Practice, Paid by Parent, Not Recoverable as Damages for Injury to Minor.—A parent suing for the loss of services of a child from defendant’s negligence can recover, as expenses for medical and surgical attendance, only those actually incurred, and the court erred in not permitting the defendant to show that the attending physician was not qualified under the law to practice medicine.</p> <p>6. Allowing Improper Evidence Not Reversible Error, When.—The introduction of hearsay evidence is not reversible error when the case is tried by the judge, and there is other evidence to support the findings of the court upon the issues to which the testimony complained of relates. 1</p>

<p>Appeal from El Paso.</p>

<p>1. Private Corporation—Notice.—A corporation is not charged with notice that a promissory note is a lien on land by proof that before the organization of the corporation the holder of the note so notified a person who became a stockholder in the corporation and an agent thereof at a subsequent time when the corporation acquired an equity in the land.</p> <p>2. Non-Negotiable Note—Purchaser—Notice.—The transferee of a non-negotiable note, secured by a lien on land, while charged with notice of any right, equity, or defense in favor of the maker as against the payee, is not charged with notice of an "equity claimed in the land by an outside person in no way connected with such note.</p> <p>3. Unrecorded Vendor’s Lien—Notice.—Where, upon the sale of land the deed recites all the consideration cash, but notes are given for part of the purchase money, no vendor's lien being reserved in the deed or notes, neither of which indicate that the notes were given for the land, one who subsequently acquires the land without notice of such notes takes it discharged of any equity in favor of the holder thereof.</p> <p>4. Secret Equity—Legal and Equitable Title—Innocent Purchaser.—Where the legal title and the apparent equitable title become vested in an innocent bona fide purchaser, who has no notice of a secret equity claimed by remote vendor, the title passes to such innocent purchaser stripped of such secret equity.</p> <p>5. Vendor’s Lien—Corporation—Ultra Vires.—Where one buys land without knowledge of outstanding purchase money notes of a former vendee, and his note is taken for a part of the purchase price secured by vendor’s lien, and is deposited with a domestic corporation as collateral security for a loan, the owner of the outstanding notes can not, in an action to foreclose, set up that the transaction of the corporation was not a loan, but a discount, and for that reason ultra vires, unlawful, and void.</p> <p>6. Assignment of Error.—An assignment, specifying an error not fundamental, not filed below or contained in the transcript, will not be considered.</p>

<p>1. Street Railways—Evidence—Charge of Court.—Action against a street car company for running one of its electric cars over a child. If the testimony of witnesses as to repairing the wires after the accident was improperly admitted, the error was cured by the charge of the court in specifically directing the jury not to consider it.</p> <p>2. Negligence—Charge—Ordinary Care.—The error of charging that it was the duty of defendant to use “proper care,” without defining it, is rendered harmless where another portion of the charge instructs that appellees could not recover if the motorman could not, by the exercise of 1 ‘ ordinary care and watchfulness, ’ ’ have seen the child in time to have prevented the accident. It was not necessary to define ‘ ‘ordinary care.”</p> <p>3. Same—Degree of Care Required.—While a high degree of care is required of a carrier to protect its passengers from injury, it owes no less a duty to the public while running cars propelled by electricity along the streets of a city.</p> <p>4. Same.—As it was incumbent upon the motorman to use the highest degree of care in keeping a lookout to see that the track was clear, it was not error to refuse a special charge that the care required of a street car company to persons upon its track is not that high degree of care which it is required to exercise towards its passengers.</p>

<p>1. Citation—Amendment of Sheriff’s Return.—A citation commanded the sheriff to serve a copy of plaintiff’s first amended original petition, which was in fact served. The return showed service of plaintiff’s original petition. After judgment by default, but before motion for a new trial was acted upon, a motion, of which defendants had notice, was made to correct the sheriff’s return in accordance with the facts. Held, it was proper for the court to require the sheriff to make a proper return on the citation.</p> <p>2. Attachment—Foreclosure—Homestead—Parties.—A plaintiff who sues on a claim for debt, and sues out an attachment which is levied on real estate, can make parties those who claim homestead rights in the land, and have the question of homestead rights tested, and foreclose the attachment lien in that suit, and therein adjudicate the respective rights of the parties.</p> <p>3. Judgment—Pleadings.—In order to adjudicate the homestead rights in the foreclosure of an attachment lien, the homestead question must be raised by the pleadings.</p> <p>4. Attachment—Jurisdiction.—The court issuing an attachment which is levied on land in another county than where defendants in attachment resided, having jurisdiction to foreclose the attachment lien, has jurisdiction over all matters pertaining to the attachment to make the foreclosure effective. Appellees, defendants below, having failed to appear and contest appellant's right to foreclose, thereby submitted to the jurisdiction of the court, and judgment by default was proper.</p> <p>5. Interest—Judgment.—Notes bore interest at the rate of 10 per cent per annum, payable semi-annually, according'to interest coupons attached, and provided that the interest coupons should bear interest after maturity at the rate of IS per cent per annum. A judgment on the notes and interest not matured into coupons should bear interest at the rate of 10 per cent per annum.</p>

<p>Appeal from Dallas.</p>

<p>Appeal from Navarro.</p>

<p>Appeal from County Court of Johnson.</p>

<p>1. Administrators—Subrogation.—Where an administrator pays out money to a creditor of an estate without authority of law, but the party upon whose claim such payment is made is entitled to a pro rata share in such money, the administrator becomes subrogated to the rights of such creditor, and is entitled to a credit to the extent of such creditor’s pro rata share.</p> <p>2. Fact Case—Payment of Claims—Order.—See facts under which it is held that a creditor of an estate whose claim had been classed as third class, secured by a lien on land, was entitled to payment to the extent of the money received by the administrator upon the sale of the land, whereupon such creditor was entitled to have the balance of his claim against the estate to take its place with the fourth-class claims, and to be paid pro rata out of the general assets of the estate.</p> <p>3. Same—Limitation.—Where the legality of a payment made by an administrator to a creditor under an erroneous order of the court, and the credit thereof to the administrator is contested by a creditor of the estate when the administrator files his final account showing the insolvency of the estate, no other account having been filed or exhibit or order shown which would indicate that the estate was in fact not solvent, the administrator is in no condition to invoke the two years’ limitation, even if the same were applicable.</p> <p>4. Same—Order of Court to Pay Claim Interlocutory.—The orders of the court to an administrator to pay out money are not made by statute final judgments, as are orders approving or disapproving a claim, but are treated as interlocutory orders; and when the exhibit of the administrator is filed, a creditor may contest his account and credits. In this case it is held, that the contest of a creditor filed upon the first opportunity after such exhibits were presented was not too late, though filed more than two years after the money was paid out under the erroneous order of the court.</p>

<p>Municipal Corporation—Powers— Condemnation-—Trespass—Constitutional Law.—Appellees occupied as a- homestead a lot which jutted out into the street about five feet further than adjoining property. The chief of police of appellant, acting in pursuance of an ordinance, and under the instructions of the mayor, forcibly removed the front fence of appellees, set it back, converted the space of five feet into a sidewalk for the use of the public, and reported his action to the city council, which acquiesced therein. In an action by appellees for damages, Held:</p> <p>1. Appellant was a trespasser, and being such, was responsible for the damage done to appellees by reason of the wrongful taking of the strip of land.</p> <p>2. Allowing one of appellees to testify that he owned the land, and admitting in evidence a deed to the other, without proof of the genuineness of the signatures thereto, if error, was not injurious to appellant, since there was evidence upon the issue, besides such testimony, to warrant a recovery by appellees. Proof of actual and exclusive possession of the land by appellees gave them the prima facie right to recover for the damage done, and appellant could escape liability only by showing that another owned the land.</p> <p>3. Appellant had the right under its charter to remove the obstruction by legal condemnation proceedings. Not adopting this method, but proceeding in an illegal manner to appropriate private property to public use, appellant became liable for damages for the injuries done.</p> <p>4. The action of the city council manifested an intention to appropriate the property to public use, and the same was done in disregard of the constitutional inhibition against the taking or damaging of private property for the use of the public, without first rendering compensation therefor.</p> <p>5. The obligation of appellant arises not by contract, but by tort, and does not fall within the purview of article 11, sections 5 and 7, of the Constitution, which requires a city council, at the time of creating a debt against the city, to provide for the levying and collecting of a tax to pay interest, and to provide a sinking fund.</p> <p>6. Appellees having elected to sue for damages instead of the land, the judgment awarding damages and vesting title in the city will not be disturbed, as appellees are not complaining thereat, although the court should have decreed to appellant an easement over the land instead of title thereto.</p>

<p>Appeal from Ellis.</p>

<p>Appeal from Colorado.</p>

<p>1. Appeal by a City—Appeal Bond.—A city incorporated under the general laws of the State is not required to give a bond for appeal, and in answer to a motion to dismiss made in the County Court upon this ground, after appeal from the Justice Court, the city may show such fact, and the dismissal will be properly refused.</p> <p>2. Necessity for Statement of Facts.—The plaintiff having sued the city for damages for the conversion of bis horse, whether the act complained of was such that its consequences were chargeable to the city, or was that of an officer for whose conduct the city would not be liable, were questions which could only be determined from the evidence, and there being no statement of facts in the record, it can not be here decided; nor can the charge be reviewed.</p>

<p>ON MOTION TO DISMISS.</p> <p>1. Condition of Bond.—A bond conditioned to abide and perform the judgment of the Court of Civil Appeals is not sufficient; it should also be conditioned to abide the judgment of the Supreme Court. Acts 22nd Leg., Called Session, April 13, 1892, chap. 17, art. 1400.</p> <p>2. Sureties on Appeal Bond.—One who is a surety on the replevy bond of the defendant in attachment is not a good surety on the appeal bond of the defendant.</p> <p>3. New Bond in Place of an Insufficient Appeal Bond.—Evidence of the solvency of the sureties on the new bond at the time of its presentation must be furnished. The court will not look to the approval of the clerk of the court below of the same sureties made months before.</p> <p>4. New Bond for Appeal Allowed.—"When the condition of an appeal bond is incorrectly stated in the bond, a new bond may be given by the appellant.</p> <p>ON THE MERITS.</p> <p>5. Allegation and Proof Must Correspond.—The petition averred that defendants were indebted to plaintiff for the goods, wares, and merchandise, money and checks, specified in the account, and “sold by plaintiff to defendants at their special instance and request.” The checks were given by defendants to their employes, and by them traded to plaintiff for goods or money. Several of the items were for goods sold to one of the defendants for his individual use. The judgment in favor of plaintiff was reversed.</p> <p>6. Same.—The plaintiff must recover upon the proof of his case as he states it. He can not be allowed to aver one state of facts and prove another. No amount of evidence will suffice as a basis for a judgment, unless the pleadings authorize the introduction of the evidence.</p> <p>7. Inadmissible Evidence.—Plaintiff was permitted to prove an agreement between himself and defendants, that he would fill the orders of defendants for goods and money, and that checks given by the defendants to their employes should be received by plaintiff as money, and that at the first of each month- defendants would account with plaintiff and take up the checks, and this was done as to the items in the account sued on, and the account admitted by the managing partner of defendants as correct. This evidence should have been excluded, because not in support of any allegation in petition.</p> <p>8. Partner’s Authority.—Without proper averments and proof that the defendants did promise and agree to pay those debts which were due plaintiff by other parties, they can not be made liable therefor, and to authorize judgment against defendants, the evidence must show a binding agreement by one of the partners, and that such undertaking was within the scope of his powers, or authorized by the other partner.</p>

<p>1. Amendment of Attachment Suit—Judgment.—A suit was brought for §525 against three defendants, married women, by attorneys who had recovered a tract of land for them, and attachment was issued for the whole amount and levied upon land. By amended petition it was alleged, that the defendants had agreed to pay one-third each, or §175 apiece, with prayer for foreclosure of the attachment as in the original petition. Service having been made on only one of the defendants, the case was dismissed as to the other two, and judgment by default against the third. Subsequently, on motion of the plaintiffs, because of an insufficient service upon that defendant, the judgment was set aside, the case transferred to the Justice Court, and there, after new service by publication on the one defendant, judgment was rendered against her with foreclosure of the attachment, under which judgment the testator of appellants bought the land. Held, the judgment was valid and the title thereunder good.</p> <p>2. Amendment Not a New Cause of Action, or Abatement of Attachment. The amendment of the petition was not such a change of plaintiffs’ cause of action as operated as an abandonment of the original suit or a dissolution of the attachment. It declared the liability of defendants’ separate property just as it was by law; no additional burden upon the land was imposed, nor did it change the identity of the cause of action asserted, but corrected an error in the original petition by stating a several and not a joint liability, which was admissible.</p> <p>3. Jurisdiction of Justice Court.—All presumptions are to be indulged in favor of the jurisdiction of the Justice Court. From aught that appears, there may have been pleadings filed in the District Court or County Court dismissing the suit against all the defendants but the husband and wife against whom judgment was rendered; but upon the record as presented the jurisdiction can be sustained, because the order of the District Court dismissing the suit as to the defendants not served was not affected by the order setting aside the judgment by default. Thereafter, the suit was against one only of the defendants and her husband, and for a sum within the jurisdiction of the justice of the peace.</p> <p>4. Transfer of Causes to Justice Court.—The transfer of the case should have been made directly from the District to the Justice Court, but the fact that it went through the County Court is an irregularity merely, which did not defeat the jurisdiction of the proper tribunal.</p> <p>5. Venue—Attachment.—The suit was properly brought in the county where some of the defendants resided, and the attachment could run to any county in the State where defendant had property.</p> <p>6. The Attachment Valid.—The fact that the amount sued for was reduced by amendment, after the attachment had been levied, did not change its character or render the writ nugatory.</p> <p>7. Executory Sale of Land—Recovery of Land.—The sale of the land to the defendants being executory, and the purchase money not having been paid nor tendered, plaintiffs, who were devisees of the vendors, were entitled to recover the land sued for.</p>

<p>1. Bills, of Exception to Interlocutory Judgments.—A bill of exception to an order of the court sustaining exceptions to a plea of personal privilege must be filed at the term of the court at which the order complained of is made, within the time allowed by law.</p> <p>2. Proper Party.—S. having sued M. to recover the proceeds of a sale of land made by M., in which S. owned a half interest, which he had conveyed to K. to enable M., as K.’s agent, to make the sale; and in his pleading S. having charged that both M. and K. refused to pay over his share of the money, and that M. claimed to be withholding it by instructions from K. (the evidence showing that M. was seeking to charge S. with half of a vendor’s lien note of K.’s on the land which M. had paid to clear the title, and for back taxes paid by him), K. was a proper party to the suit.</p> <p>3. Special Warranty as Affected by Statute.—Though the vendor’s deed contains only covenants of special warranty, it carries w'ith it the covenant against incumbrances engrafted upon it by statute, and the vendor is liable for the whole of his outstanding unpaid vendor’s lien note against the land.</p>

<p>1. Mortgage on Homestead—Attachment.—Plaintiff sued on promissory note secured by mortgage on mill machinery permanently attached to defendant’s homestead. Attachment was sued out, which was levied on the machinery. It appeared that one M. had sold the machinery to S., taking note without security. S. then sold to defendant, with agreement that title should remain in S. until defendant had paid purchase money. Afterwards defendant and S. gave a joint note to M. for the debt, with lien on machinery. The note sued on was a substitute for the last note and mortgage on the mill machinery given to secure it; note and mortgage transferred to plaintiff. Held:</p> <p>1. The mortgage on the machinery was good. Defendant could acquire no homestead privilege as against S.</p> <p>2. The transfer when the second note was given changed the form of contract between S. and defendant from a conditional sale, and vested title in the latter, incumbered with an express lien.</p> <p>3. As the property was attached to the homestead, the mortgage was prima facie invalid; to charge the lien on the property, plaintiff must have gone behind the mortgage and shown facts to sustain lien; such facts should have been pleaded.</p> <p>4. If title to the property had remained in S., not even that fact would render the property subject to attachment for debts of defendant due third parties. If M.’s debt had constituted a lien, he could not have taken it hy attachment. As against attachment, defendant’s homestead plea was a complete defense.</p> <p>2. Attachment.—If grounds for exist, but levy is unlawful, defendant is entitled to damages.</p> <p>3. Statement of Facts—Costs.—When statement of facts, in violation of rules, contains copies of instruments the substance of which should have been stated, costs of copying statement of facts in the record will be adjudged against appellant.</p>

<p>1. Damages for Conversion—Case in Judgment.—When a building company was sued, and attachment against it was levied upon two knock-down houses which had been sold by the authorized agent of the company to plaintiff, and paid for by him before the levy of the attachment, and which were upon the lot of plaintiff when levied on, and under the attachment proceedings were sold and the proceeds appropriated by the attaching creditor, he knowing of the sale to plaintiff before the levy of the attachment, in a suit against the attaching creditor for damages for the conversion, plaintiff is entitled to recover the value of the materials so appropriated, and 6 per cent interest from the date of the seizure.</p> <p>2. Allegation and Proof—"Variance.—The petition described the property seized as two portable houses in a knock-down state, including materials, the necessary and usual component parts of two complete houses, including sashes and flooring. The proof showed that the materials consisted of the component parts of two houses complete, except sash and flooring for one of them. There is no material variance between the allegations and the proof. Unless the allegations are words of essential description, it is sufficient if they are substantially proved.</p> <p>3. Admissible Evidence.—-The value of the two houses was alleged to be $2000. The trial court properly heard evidence of the value of the missing parts of the houses, although not alleged in the pleading, in order to determine the value of the material seized and appropriated by defendant. He could not complain that plaintiff did not recover all that he sued for, nor that the damages awarded were less than the sum claimed.</p> <p>4. Opening Default—Meritorious Defense.—A motion for a new trial after default judgment taken, which alleges that the defendant had a meritorious defense, but fails to state what it was, is properly overruled.</p> <p>5. Second Motion for Hew Trial.—A second motion for a new trial made after the first had been disposed of, and more than two days after the judgment had been rendered, can not be treated as an amendment to the original motion.</p> <p>6. Motion for Hew Trial Too Late.—A third motion for a new trial, made nineteen days after two former motions had been overruled, was properly denied, when no excuse for the delay was given.</p> <p>7. Jury Trial—When It May Be Denied.—The court may try a case without a jury, unless one is demanded and the fee paid; and the mere fact that in a previous trial of the case, in another county and before another court, the record shows that the trial was by jury, is not sufficient to convict the judge of denying appellant a privilege secured to him by law.</p>

<p>Appeal from Colorado.</p>

<p>1. Motion for a New Trial—Too General.—One of the grounds of the motion for a new trial was, that the verdict is contrary to the law as given in the charge of the court. This part of the motion was properly disregarded, because made in violation of Rule 68 for District Courts, not being specific.</p> <p>2. Same—Not Reviewed, When.—When action by the court below upon the effect of evidence upon a particular point in the case has not been invoked by the motion for a new trial, the ruling on the motion on that point will not be reviewed.</p> <p>3. Charge on Contributory Negligence.—Plaintiff having sued for damages resulting from an unsafe crossing, and the presence of an engine there with its pilot upon the crossing, a charge, in effect, that if the bridge was constructed of unsuitable materials, and its timbers were broken or unsafe, and plaintiff knew the defects, or by the use of reasonable care might have known of them, his crossing would be contributory negligence, was as full and specific a charge as the defendant had the right to demand.</p> <p>4/ Irrelevant Hypothesis in Charge.—See opinion for a charge which submitted an irrelevant hypothesis, and made the right of plaintiff to recover to depend upon its determination, and which was properly refused.</p> <p>5. Ordinary Care.—See opinion for charges given by the court below which properly define ordinary care with regard to crossings, and which are held not to require that the crossings be kept in safe condition, but only that defendant exercise proper care to keep them in safe condition; and which negative the idea that defendant was an insurer of safety.</p>

<p>1. Limitation—Action for Violation of Lease.—A suit to recover damages for the wrongful eviction of the lessee (holding under a written lease) from the rented premises, by the lessor, must he instituted within four years from the date of the eviction, although the lease may have a longer time to run.</p> <p>2. Same.—The eviction of the tenant from the rented premises was a distinct invasion of his right, and inflicted immediate injury, for which a suit might have been at once instituted.</p>

<p>Municipal Corporation—Validity—Q,uo Warranto, Not Injunction.—An injnotion will not lie in favor of a taxpayer to enjoin the officers of a municipal corporation from collecting taxes, on the ground of invalidity of the existing corporation; such issue being determinable alone by quo warranta proceedings.</p>

<p>1. Subrogation—Purchase of Judgment by Joint Debtor.—Where a joint debtor in a judgment makes the final payment thereon and takes a transfer of the judgment to himself, in order to be subrogated to the rights of the judgment creditor it must aprpear that he intended a purchase of the judgment, and not merely a satisfaction of it.</p> <p>3. Venue—Enjoining Sale of Land.—Where plaintiff’s suit is to enjoin a sale of land under execution and judgment to which he is not a party, such snit may be brought in the county where the land lies, instead of the county where the judgment was obtained.</p> <p>3. Parties to Suit—Warrantor.—One who has conveyed land by warranty deed has such interest therein as entitles him to maintain a suit by injunction to restrain a wrongful sale of the land under execution which would cast a cloud on the title of his vendees.</p> <p>4. Judgment Lien—Priority of Mortgage.—A mortgage creditor who takes from his debtor a deed of the mortgaged property in satisfaction of the debt, and at its fair value, takes it clear of a judgment lien against the debtor which attached after the date of the mortgage, but before such conveyance.</p> <p>5. Execution Purchaser—Void Sale.—A bidder at an execution sale can not be required to make good his bid where the sale and execution are void.</p>

<p>Appeal from Denton.</p>

<p>1. Continuance—Withdrawal of Announcement.—The action of the court at a former term in permitting one of the parties, upon a proper showing as to needed evidence, to withdraw his announcement of ready, and in thereupon continuing the cause until the next term, is not reversible error, the case having been finally tried on its merits.</p> <p>2. Deed—Proof of Loss—Secondary Evidence.— Evidence that the office of the attorney with whom a lost deed was last seen was burned, and diligent search made among the papers saved, and that the executor and heirs of the last claimant under the deed testified that they had made diligent search among such claimant’s papers without success, justifies the admission of paroi evidence of the contents of the deed.</p> <p>3. Lost Deed—Proof of Wife’s Acknowledgment.—The acknowledgment of a married woman to a lost deed can be established by paroi or by circumstantial evidence.</p> <p>4. Lost Deed—Proof of Contents.—Evidence by a former owner of the land, testifying that a deed executed by persons of the same name as the grantors in the lost deed was delivered to him by his grantors, and that he had it recorded; that such deed conveyed the survey of land in controversy, and was executed and acknowledged according to the statutory requirements of a deed to convey a wife’s separate estate, was admissible to prove such lost deed and its contents, though the witness was not acquainted with the grantors, and did not see them execute the deed.</p> <p>6. Charge of Court—Harmless Error.—An erroneous instruction which, when construed in connection with the rest of the charge, is not calculated to mislead the jury, is not ground for reversal.</p> <p>6. Practice on Appeal—Sufficiency of the Evidence.—Objection to the sufficiency of the evidence to sustain the verdict, in order to avail on appeal, must be first presented by motion for new trial in the court below.</p>

<p>1. Notice to Agent— Insurance.—Where an agent of an insurance company whose power of attorney authorizes him “to renew and consent to the transfer of policies” receives notice of an assignment by an insured party of the money due on a loss by fire, such notice is binding on the company.</p> <p>2. Same—Acceptance of Order.—Where an insured party makes an assignment of part of the money due by an order on the agent of the insurance company, it is not necessary that the agent agree to it as agent in order to bind the company.</p> <p>3. Same—Equitable Assignment of Insurance.—While such order may not be a legal assignment of part of the insurance money, yet where there is evidence tending to show that it was the understanding of the insured party to transfer that amount of the debt, and that the company had notice thereof, it should be left to the jury to determine whether or not it was an equitable assignment.'</p>

<p>Appeal from Shackelford.</p>

<p>1. Assignment for Benefit of Creditors—Instruments Construed Together.</p> <p>Where several interdependent deeds of trust conveying title to all his property subject to execution are executed by an insolvent debtor about the same time, and as parts of the same transaction, for the benefit of certain specified creditors, the surplus, if any, to be distributed among all other creditors holding legal claims, the deeds constitute a general assignment.</p> <p>2. Same—Fraud Does Rot Vitiate.—Where the transaction in fact constitutes an assignment under the statute, fraud on the part of the assignor or assignee will not vitiate it or affect its character.</p> <p>3. Same—Exempt Property.—A lot belonging to the insolvent debtor, alleged to be exempt as a business homestead, if not in fact so exempt, passes by a general assignment, whether it is mentioned therein or not.</p> <p>4. Attachment of Property in Custodia Legis.—Where an application for a receiver of an insolvent debtor’s property has been made to a court, and a temporary injunction has been issued to restrain a disposition thereof, such property can not he lawfully seized under an attachment issued out of another court.</p>

<p>1. Judgment—Directing Issuance of Execution.—The issuance of an execution follows as a necessary consequence from the rendition of a judgment for costs, although execution be not awarded in express terms.</p> <p>2. Judgment Against Administrator - Execution Thereunder.—Judgment against an administrator, as such, does not authorize the issuance of an execution, and a sale thereunder of the property of the estate.</p> <p>3. Pleading—Trespass to Try Title—Ouster.—Plaintiff’s original petition in trespass to try title alleged ouster on January 1, 1886. After the filing of his suit he acquired additional title through a sheriff’s sale and deed of the land, and thereupon amended his petition and abstract of title filed in the cause by showing such sale, but alleged the ouster as of the former date. Held, immaterial that plaintiff did not allege the ouster at a later date, even though he should prevail on the strength of the later title.</p>

<p>Appeal from Denton.</p>

<p>Appeal from Denton.</p>

<p>1. Option—Right to Rescind Sale.—Contract for sale of land; deed by vendor and vendor’s lien note by vendee. Vendor also executed an instrument agreeing that the vendee, if “dissatisfied with the title to said property at any time” before the maturity of the purchase money note, could reconvey the property and demand the surrender of his note, paying over such rents as he had collected. JECeld, that the cause of such dissatisfaction can not be questioned by any one else; and courts will not pass upon the reasonableness of the grounds of dissatisfaction.</p> <p>2. Rescission—Tender of Reconveyance.—In such contract the dissatisfaction by the vendee, to be available, must be accompanied with an offer to reconvey the property and pay the rents.</p> <p>3. Same—Estoppel.-—Vendor having postponed a proffered rescission, is held estopped to refuse a tender of the property and rents made after the contract time. Having caused the delay, he can not plead it in defense.</p> <p>4. Estoppel.—Estoppel may grow out of words as well as acts and promises; if made and actually acted upon, they may be the basis of estoppel. See example.</p> <p>5. Reasonable Time.—Stipulated time for rescission expired June 14, 1891; tender was made with demand to rescind on June 23, 1891. Held, that such demand was within reasonable time; delay.had been extended at instance of vendor.</p>

<p>Filling Blank—Negotiable Paper—Bona Fide Holder.—Whittle & Harrel being indebted to Meyer & Sons Co., sent them a check for the amount, drawn on themselves and accepted by them; the name of the drawers was blank. Held:</p> <p>1. That the creditors were authorized to sign or fill the blank as drawers.</p> <p>2. The instrument coming into the hands of plaintiff before maturity, for value and without notice of any irregularity, constitutes the latter a bona fide holder.</p> <p>3. The rights of plaintiff are not affected by subsequent acts in bad faith on part of the creditors.</p>

<p>Argument of Counsel.—In an action against a railway company for damages for negligently burning grass, etc., upon land adjoining its track, on the trial it was reversible error in the court in allowing the counsel for plaintiff in his closing argument to the jury to use the following language: “Gentlemen of the jury, the attorney for</p> <p>the railroad says you should consider this case as though this were a suit against a private citizen. Gentlemen, I want to show you why you should not do so. I want to show that a railroad has rights that you don’t have. The railroad can condemn your graveyards and disturb the resting place of your sacred dead. Can yon do that?”</p>

<p>Appeal from Hays.</p> <p>Tried below before Hon. H. Teiokmuelleb.</p>

<p>1. Pleading—Suit Against Sureties of Officer.—Action for damages for false imprisonment against a constable and his sureties. The illegal arrest was alleged to have been unlawful, etc., and made by the constable “acting under color of his office.” Special demurrer by the sureties should have been sustained. The allegation is not the equivalent of an allegation charging him with acting in an official capacity as constable in making the arrest. It simply states the conclusion of the pleader. It should have shown the authority under which he was acting.</p> <p>2. Pleading.—Character of Business.—Where damages for loss of time are sought as resulting from an illegal arrest, the petition should have stated the character of business in which the plaintiff was engaged, so that the defendants could be prepared to meet the issue as to the value of the services. The objection was raised by special demurrer.</p> <p>3. Evidence of Value of Mental Anguish.—A witness was permitted to testify that he was damaged by mental anguish at least §50 a day. Held, reversible error. Such damages can not be measured by a witness. The amount is left to be ascertained by the jury from the facts of the particular case.</p> <p>4. Good Faith of Officer Making Arrest.—The good faith of an officer, or his honest belief of the identity of the person arrested, is competent in mitigation of damages when such belief is caused by the words or conduct of the party arrested, when such words, etc., are calculated to induce such belief in the mind of a person of ordinary prudence and caution.</p> <p>5. Same—Declarations of Party Arrested.—The testimony tending to show that the plaintiff when arrested told the officer that he was not the party wanted, the arrest was at the risk of his being the wrong man, although the officer in arresting acted in good faith and upon the previous declarations of the plaintiff. Such belief would not be a defense in event of mistake, but would be competent in mitigation of damages for wrongful arrest.</p>

<p>Appeal from Bell.</p> <p>Tried below before Hon. W. A. Blackburn. Appellee Pomeroy recovered judgment, January 27, 1892, against appellants for the land sued for. Appeal was perfected, and transcript was filed by appellants June 21, 1892, in Supreme Court. The case was transferred to the Court of Civil Appeals, and was there filed October 4, 1892. The case was submitted on briefs of both parties in December, 1892, upon the merits. March 25, 1894, the case was dismissed for want of notice of appeal. Ho motion to dismiss was filed. April 5, 1894, appellants filed a motion to set aside the order of dismissal and to reinstate the cause. The motion was accompanied by a certified copy of notice of appeal in the court below, and an affidavit of counsel that the omission from the transcript was not known to him before the order of dismissal. It was asked that the transcript be perfected, so as to show the fact of notice.</p>

<p>1. Lumber Dealers’ Association of Texas—Conspiracy.—Delz v. Winfree, Norman & Pearson, 80 Texas, 400, adhered to, as to conspiracy and actions for conspiracy. Allegations that the parties composing the “Lumber Association of Texas” had combined for the purpose of maintaining a high price for lumber against citizens of the State, and had maliciously influenced others from dealing with plaintiffs in their business of selling lumber, to their injury, show cause of action.</p> <p>2. Same—Measure of Damages.—Plaintiffs can not recover for any injury except such as results from the wanton and unlawful interference with their business, in influencing third parties not to trade with them, and only for the injury that has occurred.</p>

<p>Appeal from Falls.</p>

<p>1. Practice—Damages for Wrongful Attachment—Exemplary Damages.— Sait for damages against principal and sureties on attachment bond for wrongfully and maliciously suing out the attachment; actual and exemplary damages were claimed. No exception raised the question of the liability of the sureties for only actual damages; nor was such distinction made in the charge. The verdict found separately the actual and the exemplary damages. The court rendered judgment for exemplary damages against the principal alone. Held, that the judgment is the legitimate and only legal result that can be derived from the facts. The sureties could not be made liable.</p> <p>2. Corporation Acting by Its Agents Hay Be Liable for Exemplary Damages.—Action for damages, actual and exemplary, against a corporation and its sureties on attachment bond. The petition charged that the attachment was maliciously sued out and caused to be levied, etc., and that the corporation in so doing acted through its agents, but alleging that the malicious acts were those of the corporation. These allegations were sufficient to admit proof of facts showing the liability of the corporation for exemplary damages.</p> <p>3. Corporation—General Agent.—See facts held sufficient to show that an agent was more than a mere servant of the corporation, as he represented it in its corporate capacity in the matters involved. It was proper to submit the issue of exemplary damages upon evidence tending to show malice, etc., on part of such agent in the matter of the attachment.</p> <p>4. Legal Rate of Interest—Charge.—At the time the goods were seized the legal rate of interest was 8 per cent; before the trial the rate was reduced to 6 per cent. It was not error in the charge in stating that the measure of damages for goods wrongfully taken was their value, and 8 per cent interest. See facts.</p>

<p>Appeal from Lee.</p> <p>Tried below before Hon. Beauregard Bryan.</p>

<p>1. Land Titled or Held Under Color of Title from the State Not Subject to Location.—When by Act of the Legislature certain land acquired by the claimants thereof from Mexico was relinquished to the owners, and in compliance with the act the land was surveyed and the field notes returned to the Land Office, the land was not subject to location as unappropriated public domain, even though the survey as made did not in all respects correspond with the original grant.</p> <p>2. Same.—The land having been surveyed under the Act of 1858, the appellees equitably owned it under color of title from the State, and the subsequent location and survey made by appellant was void.</p> <p>3. Void Location.—The location or patent of lands covered by patents or surveys are without standing, although the first patents or surveys may be void. Knight v. Land Association, 142 U. S., 974.</p>

<p>1. Railway—Negligence—Fire.—Appellant is not relieved from negligently permitting bark and other inflammable matter to accumnlate on its track, from which fire was communicated to appellee’s property, by reason of the fact that it used the latest appliances to prevent escape of fire.</p> <p>2. Same—Lessee.—Appellant, as lessee of the track which was to be kept in repair by the lessor, is not excused from negligence in permitting fire to escape from the track, when it knew, or could have known, of the inflammable material on the track.</p> <p>3. Charge.—A charge, that negligence from allowing combustible matter to remain on the track, and whether defendant was guilty of contributory negligence in placing his wood near the track, were questions for the jury to determine from all the evidence in the case, was correct.</p> <p>ON MOTION FOE BEHEABING.</p> <p>4. Contributory Negligence.—The appellee was not guilty of contributory negligence in placing his wood near the railroad track, where it was covered with inflammable material, if he placed the wood at a point on or near the track prepared by the railway for loading the wood, and it was the only place the wood could be unloaded for shipment. The railroad can not screen itself from the result of its negligence by the fact that appellee knew the had condition of the track before he placed his wood near it.</p>

<p>1. Jurisdiction—Waiver.—When a nonresident is sued, and notice is served on him outside of the State, and he appears for the purpose only of pleading to the jurisdiction of the court, such appearance is a waiver of his immunity from the jurisdiction of the court, and has the effect of perfecting the service.</p> <p>2. Petition—Sufficient.—In making parties for the purpose of foreclosing a lien, it is not necessary to inform the defendants in detail what kind of claims they were setting up in the property.</p> <p>3. Evidence Admissible.—It was not error to permit one of plaintiffs to testify that defendant Alvord furnished him a memorandum showing the number of brick made, when defendant Alvord testified that he had furnished plaintiff the memorandum, which was correct, without objection.</p> <p>4. Mechanic’s Lien—To What Applies.—The lien contemplated by article 3164, Be vised Statutes, can be fixed on improvements, fixtures, etc., placed on the land by no one except by authority of the owner of the land, his agent, trustee, or contractor.</p> <p>5. Same.—A mechanic’s lien does not attach when the party executing it does not own the land, nor is authorized by the owner to execute the lien. No such lien can attach to the material furnished, independent of connection with the land.</p>

<p>Appeal from Mason.</p>

<p>1. Special Judge.—-The powers of a special judge terminate when the occasion for his existence has ceased.</p> <p>2. Defamatory Words Libellous, When.—Defamatory words applied to a minister of the gospel, calculated to directly affect his professional standing and occupation, are libellous per se.</p> <p>3. Same—Actionable.—To say of a minister of the gospel that he is devoid of moral principles, is defamatory and is actionable, if actual damages, as a proximate result of their publication, resulted to plaintiff.</p> <p>4. Damages Accruing After Filing Suit Recoverable, When.—When the plaintiff pleads the effects of the publication as existing and continuing, evidence of damages accruing after the suit was filed is admissible.</p> <p>5. Burden to Prove Truth of Words.—The onus of proving that the words are true is on the defendant. The falsehood of the defamatory words is presumed in plaintiff’s favor, and he need give no evidence to show they are false.</p> <p>6. Excessive Judgment.—See opinion for facts to show the judgment is not excessive.</p>

<p>• 1. Recovery on Covenants of Warranty.—In a suit to recover on a warranty, when the parties seek to recover on the ground of eviction and of paramount outstanding title, as a prerequisite to recover it was necessary for the plaintiffs to show that they had been evicted from the land, or that there was a superior outstanding title, as alleged.</p> <p>2. Outstanding Title.-—If dependence was had upon the paramount title of another, it devolves on the party suing to establish by competent and satisfactory evidence the existence and validity of the outstanding title.</p> <p>3. An Agreed Judgment Does Not Evidence an Eviction.—The appellees having been sued for part of the land, and an agreed judgment having been entered that each party take one-half the land, the appellant not having been a party to the suit-, it did not evidence an eviction; and appellees having agreed to the judgment, with the knowledge or consent of appellant, it did not lift any burden from them in establishing an outstanding title.</p> <p>4. Surrender of Land Without Suit, When.—The surrender of the land without a law suit can be justified by showing that the person to whom the surrender was made had title superior to the warrantor, and this would justify a recovery; but the surrender of the land to some stranger to the title would not authorize a recovery.</p> <p>5. Suit for Land—Notice to Warrantor—Agreed Judgment.—Warrantors of titles are not necessary parties to a suit brought to evict a warrantee. Neither is it necessary, to justify a recovery, that notice of the suit should be given them. Still, in cases where there has been no notice given the warrantor of the suit for eviction, the judgment alone will not be sufficient to make out a case; but as in an ouster in pais, the burden of proof is upon the warrantee to show paramount title in the parties who recovered the land from him. This would apply with still greater force where the judgment indicated an agreement.</p> <p>6. Rendering Judgment on Appeal.-—Where the ascertainment of some fact is necessary to support the rendition of the proper judgment of this court the case should be reversed; but a case should not be remanded because the successful party in the court below failed to introduce sufficient testimony upon which to justify a judgment.</p> <p>OX MOTION FOR REHEARING.</p> <p>7. Jurisdiction of Court of Civil Appeals.—This court has appellate jurisdiction only, and the causes before it must be decided upon the record made in the lower court. It is not contemplated in the statutes that affidavits of facts not in the record should he entertained by this court, or should in anywise shape or affect its decision.</p>

<p>1. New Trial—Absence of Leading Counsel.—A motion for a new trial should not he granted on the ground that the defeated party is of opinion that another and different attorney than the one who tried his case could have better presented his defense.</p> <p>2. Bill of Exceptions—Continuance.—Unless a bill of exceptions is taken on the overruling of an application for continuance, the action of the lower court will not be reviewed.</p> <p>3. Ownership of Property Insured.—R A. Lancaster, whose house was insured, originally bought the lot upon which the house stood from Jones, and he sold it to Lamar for §500 cash and two notes for §1250, due respectively in 1892 and 1893. These notes were not paid, but Lamar sold the lots to Reynolds, and the latter sold to Agnes Deerwood, and Agnes Deerwood sold the land again to R. A. Lancaster. Mary Reynolds and Agnes Deerwood, as part of the consideration for their deeds,- each assumed the payment of the notes given by Lou Lamar to R. A. Lancaster, which notes were by Lancaster placed with a firm he owed, as collateral security for a debt. In the policy is a condition, that it'shall be void “if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple.” Held, that the clause in the policy has reference to the quality of the title and not to liens and incumbrances on the property, and that the policy was not forfeited.</p> <p>4. Burden of Proof—Charge.—It was alleged by appellant that the house was burned through the agency of the owner, and it was not error to instruct the jury that the burden of establishing this allegation was on appellant.</p>