Volume 70 — Texas Reports

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

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

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

<p>1. Nuncupative Will—Declarations.—Though a nuncupative will can not pass title to land, yet it is admissible when offered in connection with other evidence to show that the deceased had previously made a parol sale or gift of the land to the devisee.</p> <p>8. Parol Sale of Land.—The enforcement of a parol sale of land, when the vendee has taken possession and made valuable improvements, will be decreed on the ground that otherwise a fraud would be consummated on the vendee in possession; aud the vendor, under such circumstances, is estopped to set up the statute of frauds to avoid the contract. See this case for facts under which it was held that specific performance of a parol sale of land could not be enforced.</p>

<p>Jurisdiction—The district court has no jurisdiction of a suit when the sum sued for is just five hundred dollars.</p>

<p>Purchaser, Vendor and Vendee.—A purchaser of land in possession under deed with covenant of warranty from several vendors, one of whom only is alleged to be insolvent, can not be relieved against a claim for unpaid purchase money unless there was fraud in the sale perpetrated by the vendors at or before the sale, or a defect in the title not known to him when he purchased.</p>

<p>1. Execution Sale.—When notice of a judicial sale has not been properly given, if objection be made by defendant in execution without unnecessary delay, the sale may beset aside: if objection be not made in reasonable time, it will be considered as waived.</p> <p>3. Collateral Proceeding—Same.—In a collateral proceeding it is not essential to the validity of an execution sale that there should have been an advertisement of the property; though if the irregularity is brought about by the fraudulent collusion of the purchaser, and the property sells for a grossly inadequate price, the sale maybe avoided as to such vendee and those claiming under him with notice.</p> <p>8. Execution Sales.—Construing articles 2309 and 2319, Revised Statutes, held, that it was not the intention of the Legislature that sales of property under execution should be void on account of mere irregularities in advertising or in failing to advertise such property, but it was intended that the injured party should seek redress from the officer, and this in consideration of the public policy that execution sales should be sustained.</p> <p>4 Separate Property.—See opinion for facts held not sufficient to establish with certainty the separate interest of the wife in property conveyed to her by deed after marriage.</p>

<p>1. Evidence—Custom.—When there is nothing in a contract to negative the inference that the parties contracted with reference to the usage or custom which prevails in the particular trade or business to which the contract relates, then the usage may be shown in evidence for the purpose of ascertaining with greater certainty what was intended by the words or terms used in the contract; and this, though a meaning may he thereby given to words contradicting that which would attach to them generally. This rule, even when there is no ambiguity in the contract, is especially applicable in a ease where the literal and usual construction of the words used would render the contract so unconscionable that no sane man would have entered into it. See opinion for an illustration of the rule.</p>

<p>1. Fraud—Debtor and Creditor.—One in possession of land under a parol gift claiming it as his own, and who afterwards receives a deed for the same, can not be affected by the claim of a creditor of the donor when the credit was extended after the date of the parol gift, and after actual occupancy of the donee.</p> <p>3. Same.—In an action by the creditor against the donee to subject the property to the payment of a note given by the donor, which covered items of indebtedness antedating the parol gift, as also debits subsesequent to the gift, it was shown that the creditor received cotton from time to time from the debtor. If it was the agreement between the debtor and creditor that the proceeds of sales of such cotton should be applied to the payment of debts antedating the parol gift, the donee can, in his protection, enforce such an application of the proceeds of sales.</p> <p>3. Approprition op Payments.—When there is a continous account consisting of many items, if no appropriation of payments to specific items is made by either party, they will be applied in accordance with the priority of dates of the items of account. If no specific appropriation of payments be made by either party until rights of third parties holding under the debtor had been created of such a character as to authorize against him their enforcement, the creditor can not so appropriate payments made by the debtor as to affect such rights, if, by a different appropriation, they can be protected.</p> <p>4 Cases Reviewed.—Miller v. Miller, 23 Maine, 24; Barker v. Conrad, 12 Sergeant & Rawle, 304, and Burgess v. Alter, 9 Watts, 386, reviewed.</p> <p>5. Appropriation of Payments.—The right of the debtor to appropriate to specific items payments made on account will be denied when necessary for the protection of one having equities against the debtor, which would authorize against the latter a decree for specific performance of a verbal gift of land.</p>

<p>1. Color of Title—Limitation.—The re-enactment of the law defining color of title (Rev. Stat., art. 3193) with no. change in its language, carried with it the construction given to the former statute in Marsh v. Weir, 21 Texas, 97. It is only such a defective muniment of title as is not wanting in “intrinsic fairness and honesty” that will support the statute of limitations of three years. Color of title can not, in contemplation of the statute, exist when one of the links in the chain of title has been fraudulently obtained.</p> <p>2. Practice—Charge of Court.—A 'judgment rendered on a verdict returned under an erroneous charge, will not be disturbed if under the facts in evidence the same verdict would necessarily have been rendered if a proper charge had been given.</p> <p>3. Statute Construed—Homestead—Limitation.—Construing article 3201, Revised Statutes, in connection with Kelly v. Whitman, 41 Texas, 647; Simonton v. Mayblum, 59 Texas, 7, and Smith v. Uzzell, 61 Texas, 221, held, that the law which suspends the operation of the statutes of limitation as against the wife during coverture, has no application to suits involving the homestead when it is claimed as the separate property of the husband, or as part of the community estate. In either case the right of the wife to maintain an action during coverture in her own name, exists.</p> <p>. 4, Cases Distinguished.—This case distinguished from Simonton v. Mayblum, 59 Texas, 7, and Smith v. Uzzell, 61 Texas, 221.</p> <p>6. Limitation.—An exception in favor of the wife who sets up claim to the homestead merely as such, can not be engrafted on the statutes of limitation by the courts, and the fact that the husband, in alienating the property, has acted in hostility to her claim will not suspend the operation of the statute as against one in possession claiming under deed. See opinion for facts to which this applies.</p> <p>6. Limitation.—A married woman directed her daughter to sign in her name a conveyance of property which had once been occupied as a homestead by the husband and wife, and which was community property. The wife believed the instrument was a lease. It was a deed absolute. The daughter signed and acknowledged the deed, which was recorded. The fraud practiced by the husband was soon discovered by the wife, who on account of the husband’s physical condition, refrained attempting to procure a cancelation of the deed until after an innocent purchaser and his vendor had been in actual, peaceable adverse possession of the property for eight years, when after the death of the husband the widow sued to recover the property; held that without considering the question of estoppel, the plaintiff was barred by limitation.</p>

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

Error from Galveston. Tried below before the Hon. W. H. Stewart. George A. Hill sued the Houston & Texas Central Railway Company to recover damages for breach of contract.

<p>Appeal from Fort Bend. Tried below before the Hon. W H. Burkhart.</p>

<p>1. Damages—Railway Company.—Every employe of a railway company assumes such risk as is naturally incident to the employment. This he must have considered when he was hired, and the company is only liable in damages if he sustains injury when, through its negligence, it has increased the dangers ordinarily incident to the same. See this case for facts under which it was held that a railway was not liable in damages for injuries sustained by a brakeman.</p>

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

<p>1. Negligence.—The starting of a train without the usual bell ringing or whistle from, a flag station on a railway where trains do not usually stop unless signaled, whereby one who had left the train during its temporary stopping at midnight was injured in the effort to return to it, is not negligence per se. Whether negligence did in fact exist should be determined by the jury from a consideration of other facts, in evidence.</p> <p>2. Argument oe Counsel.—The argument of counsel in addressing a jury should be confined to a discussion of facts in evidence, and when language is used relating to matters not in evidence, and of a character calculated to inflame and prejudice the minds of the jurors against the adverse party, the judgment will be reversed, especially in a case where the verdict seems excessive.</p>

<p>1. Administration—Jurisdiction.—After an administrator has filed his final exhibit and report of his administration, which is approved, and the estate is partitioned among those entitled, after being withdrawn from administration, no power exists in the probate court to require the administrator to file an additional inventory, and an order requiring this is void. If the administrator is indebted tó the heirs after such final report and close of the administration, and for assets not formerly reported or not accounted for by him, their remedy is by direct proceeding against him.</p>

<p>1. Charge op Court.—See opinion for a charge of court in regard to the rights of one "who had received personal injuries from the alleged negligence of a railway company, and who was afflicted with disease as a result, held correct. .</p> <p>2. Negligence—Damages.—One who receives injury from the negligence of another, and who neglects to use such means to effect a recovery as a prudent man would under like circumstances, can not recover for the aggravation'of his injuries accruing from such neglect. Yet, if suffering with pain caused by his inj uries, he neglects to do that which is most prudent for his recovery, he will not be held negligent if constrained to such neglect to alleviate his suffering.</p> <p>3, Pleading.—An allegation that the plaintiff has received personal “injuries in his spine, chest, head and limbs,” will authorize evidence that heart disease had been a result of the injury inflicted.</p>

<p>1. Statutes Construed—Practice.—Construing articles 1263,1280, 1281 and 1282 Revised Statutes, held, that if, on the call of the appearance-docket on the fifth day of the term after suit brought, no answer be filed in a cause, and the defendant fails to ask further time to answer, a judgment by default should be rendered against him. If, however, he be present in person or by attorney, and will ask the remainder of the fifth day within which to prepare and file his answer, it should be allowed him.</p>

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

<p>1. Certiorari.—A proceeding by certiorari issuing out of the district court to correct orders or a judgment of the probate court, under which a hearing is had de novo, is in no respect collateral in its character.</p> <p>3. Same—Bill op Review.—Though article 2217 provides also for a bill of review to correct orders and judgments of the probate court, it does not follow that such means of correcting improper judgments should be resorted to before seeking to accomplish the same result by certiorari.</p> <p>3. Abatement—Bonn.—If, in a proceeding by guardian and ward to remove a cause by certiorari to the district court, both the guardian and the minor ward sign the cost bond, the fact that the minor signed it in his own name with sureties will not vitiate the bond. Hó bond for cost could rightfully have been required, and the sureties became bound, even without the signatures of guardian or ward.</p> <p>4. Homestead.—The provision in the prrsent Constitution enlarging the value of the exempt homestead can not be retroactively applied so as to include not only property which was of value up to the maximum-exception of the former Constitution when it was first acquired and occupied as homestead, and up to the maximum allowed by the present, Constitution by reason of its increased value, but also contiguous property of value sufficient to make up, where the homestead was fixed the full value of the present homestead exemption.</p> <p>5, Estates oe Decedents.—The surviving widow is liable to the minor heirs of her deceased husband for reasonable rents of improved property improperly set aside to her as homestead by order of the probate court, when such order is corrected by direct proceeding for that purpose.</p>

Tried below before the Hon. J. M. Hall. Appellees as plaintiffs below brought this suit on the thirtieth day of October, A. D. 1883, against appellant (defendant below) to recover the possession of thirty-seven acres of land, a part of three surveys of six hundred and forty acres each, in the name of James H. Poindexter, who was the father of appellees.

<p>Í. Contract op Sale.—When a contract for the sale of goods is that the goods sold shall he paid for with cash or notes executed by the vendee or a third person, the sale is on condition that the payment be made, and, until this is done, the title to the goods remains in the vendor, notwithstanding they may have come into the possession of the vendee, unless it appears that they were delivered to the purchaser with intent to waive the condition of payment. See opinion for facts illustrating the rule, and under which a disaffirmance of a conditional sale by a failing debtor and a subsequent sale of the goods to his wife in payment of a pre-existing debt was as against the creditors of the husband, sustained.</p>

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

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

<p>1. Pleadings—Exhibits.—When an exhibit is referred to in pleading, and its inspection shows facts contradictory of the allegations in the plea, the exhibit in considering the plea on demurrer, and not the allegations found in the plea, must control.</p> <p>2. Pleading.—When a chattel mortgage is referred to in a plea and attached as an exhibit to verify the allegations as to its contents, the fact that the exhibit does not show by indorsement that it was filed for registration with the clerk, is immaterial on demurrer, which raises the question of its proper filing with the clerk, if the petition by distinct averment alleges such filing. The duty of mortgagee as to purchasers, creditors of the mortgagor and lien holders claiming under him ceases when he has in proper time deposited the mortgage with the clerk.</p> <p>3. Creditors and Subsequent Purchasers.—As to creditors, the deposit of a chattel mortgage with the clerk in compliance with the statute is absolutely necessary to give it validity; as to subsequent purchasers, the mortgage is valid if they have actual notice of its existence.</p> <p>4. Mortgage.—A mortgage can be made to cover future debts, and such a mortgage will be good not only between the parlies, but as to purchasers from the mortgagor with notice of the mortgage.</p>

<p>1. Parties.—As a general rule the cestui que trust is a necessary party in all suits brought by or against the trustee to recover the trust property. The exceptions to this general rule apply chiefly to cases where there are a great number of benefleiaries in the trust, and where the inten-. tion existed in creating the trust to invest the trustee with power to prosecute and defend suits in his own name.</p> <p>2. Same—.Necessary Parties.—The fact that the trustee is authorized by the instrument evidene ng the trust, to receive rents for the use of the cestui que trust, and in his discretion to sell the property and apply the proceeds to the benefit of the cestui que trust, will not authorize the trustee to defend alone a suit brought to cancel the instrument creating the trust. The beneficiary is a necessary party.</p> <p>8. Same—Practice.—The want of necessary parties to an action may be urged after judgment by default has been entered against those who • have been made parties. Anderson v. Chandler, 18 Texas, 436, followed.</p>

<p>Appeal from Brazoria. Tried below before the Hon. W. H. Burkhart.</p>

Tried below before the Hon. James Masterson. Plaintiff sued for twenty thousand dollars actual, and ten thousand dollars exemplary, damages, alleged to have been sustained by one óf his feet being cut off by one of defendant’s trains, within the corporate limits of the city of Houston, and on a public street of said city.

<p>1. Lien—Foreclosure.—The transfer of a note given to secure the purchase money for land, either when there is an express or implied lien reserved in the deed or other instrument, carries with it the lien on the land, which the assignee may enforce by forelosure procedings.</p> <p>2. Superior Title—Vendor and Vendee—Election.—In all executory contracts for the conveyance of land, whether evidenced by bond for title or deed, which retains a lien to secure unpaid purchase money, or deed'and mortgage, cotemporaneouslv made to secure deferred payments, the superior title remains with the vendor until the contract price is paid. In default of payment the vendor may elect to sue for unpaid purchase money or disaffirm the contract and recover the land.</p> <p>-3. Same.—The vendor’s title to land, existing under an executory contract, does not pass by a mere assignment of the purchase money notes, and the assignee can not therefore obtain possession of the land in default of payment. In such a case the vendor holds the legal title in trust, whoever may become ultimately entitled to the land. But if the assignee of unpaid purchase money notes receives from the original vendor in an executory contract for the sale of land, a transfer of his superior title which exists until the contract of sale is consummated by complete payment, such assignee is subrogated to all the rights of the original vendor, and may enforce his rights by sale of the land in default of payment, though a note be barred by limitation.</p> <p>4. Equity.—A court of equity will not permit a vendor in an executory contract to disaffirm it for nonpayment of purchase money notes when the vendee is willing to complete payment, and the vendor has already received part of the purchase money, or when valuable improvements have been made by the vendee, or when from any reason it would be inequitable for the vendor to recover possession.</p>

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

Tried below before the Hon. W. H. Burkhart. This suit was brought by the appellees against J. Telfener and others. Telfener claimed under a tax deed. The character of his title is apparent from the opinion. Judgment against Telfener and his co-defendants for the land and for damages against Telfener for one thousand two hundred and eighty-five dollars and seventy-one cents.

<p>2. Appeal—Estates op Decedents.—Any heir to an estate being administered may appeal from the action of the probate judge allowing a claim against the estate, without notice of appeal, and this without regard to whether he had appeared and objected to the approval of the claim. The extent of the heir’s interest is immaterial, and if the judgment of the court is reversed it enures to the benefit of all the heirs in. interest.</p> <p>3. Revision op Approval op Claim.—The law requiring a denial under oath of the correctness of an account properly sworn to has no application in proceedings in the probate court.</p> <p>3. Practice—Exceptions.—When a judgment is rendered by the trial judge within two days from the adjournment of the term in a cause submitted to him in disregard of Rule 65, the judgment will not, for that cause, be reversed, unless exceptions were taken at the time.</p>

Tried below before the Hon. George McCormick. This suit was filed in the district court of Colorado county on the seventeenth day of April, 1885, by appellant.

<p>Appeal from Waller. Tried below before the Hon. W. H. Burkhart.</p>

Tried below before the Hon. William H. Stewart. In this case the injury complained of was the loss of an arm by the plaintiff, the amputation of which was rendered necessary by the fact that it had been crushed by the car wheel. Verdict for six thousand four hundred and seventy-five dollars for plaintiff.

<p>4. Fraudulent Conveyance.—A fraudulent grantee is substituted to the rights of his grantor in the property conveyed, which is subject only to the rights of the creditors of the grantor, and it is the right of such fraudulent grantee to compel such creditors to pursue strictly the procedure provided by law for the enforcement of their claims.</p> <p>S. Same — Gross Inadequacy of Consideration.—If property fraud-] ulently conveyed be seized under legal process to satisfy the debts of' the grantor, and is sold for a grossly inadequate price, under irregular proceedings, the fraudulent grantee can, by proper proceedings, have; the sale set aside. The right of such grantee is subordinate only to,, that of the creditors, and his participation in the fraud does not place» him beyond the pale of protection in reference to their illegal acts.</p> <p>3. Indexing necessary to perfect judgment hen upon recording abstract.</p> <p>4. Presumption.—The registry of an abstract of a judgment, as well. as the index thereof, is necessary to secure a lien. No presump-; tion arises from evidence that the abstract of the judgment was re-, corded that the index thereof has been made.</p> <p>5. Inadequacy of Consideration —Fraudulent Conveyance.—One claiming under a fraudulent conveyance can not procure a sale to be. set aside for gross inadequacy of price, which is made under legal process to satisfy a judgment against his vendor, when the low price bid for the property was caused by the registration before the judicial sale of the fraudulent conveyance.</p> <p>3. Parties.—In order to set aside a sheriff's sale for gross inadequacy of consideration, a direct proceeding should be instituted for that purpose in the court from which the execution issued, and the plaintiff in execution, as well as the purchaser, should be made parties.</p>

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

<p>' 1. Sub Tenant.—A sub tenant, in the absence of a stipulation to the contrary, is not liable to the landlord for rent, unless he becomes assignee of the term, in which event he becomes liable on all the covenants of the original lease.</p>

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

<p>1. Foreclosure—Vendor and Vendee — Recitals in Deed.—When., the vendor in an executory contract obtains a decree of foreclosure in] 1873 he is thereby concluded from, asserting that the superior title re-1 mains in him. After foreclosure his position is that of a lien creditor.1 If a foreclosure made in 1873 was decreed against the administrator of j the vendees’ estate, the vendor could have had the sale made under his; decree, or by asserting his lien through the probate court, he could ; have obtained an order of sale. If the administrator assumed to sell at, private sale, and convey the property in satisfaction of the decree of '■ foreclosure, the recitals of his deed can not supply the place of an order 1 of sale and confirmation of sale. The existence of these must be shown. to pass title.</p>

<p>1. Probate of Wills.—If one interested in the probate of a will, after due notice, fails to attend and cross examine a witness thereto when the will is probated in the county court, and the testimony of the witness is reduced to writing, he can not on appeal object to the written evidence of the witness on the ground that he had not been cross examined. On appeal the original written testimony of the witness, taken in the county court, may be read in evidence instead of a certified copy thereof.</p> <p>8. Bill of Exceptions.—A bill of exceptions based, upon the exclusion of the testimony of a witness, will be disregarded if it fails to disclose the character of the excluded evidence.</p> <p>3. Hew Trial.—The fact that a witness, in a proceeding to probate a will, had testified under an agreement with one interested in the probate that he should receive a sum of money for his services in testifying as an expert, and a still larger sum if the will was admitted to probate, if the fact be not known to the party adversely interested until after the trial, will not afford ground for a new trial if, considering all the testimony, it is apparent that no different judgment could have been rendered.</p> <p>4, Trial.—When it is evident that an irregularity was committed on the trial of the cause, either in the introduction of testimony or in permitting writings to be taken by the jury in their retirement which should have been withheld from them, yet, if on an inspection of the record, no other judgment could properly have been rendered, it will afford no ground for reversal.</p>

<p>1. Limitation.—When the period of limitation has fully run in favor of an adverse possessor of land, it confers title on him which he may assert against the former owner, though his possession ceased after his title by limitation was acquired.</p> <p>2. Pleading.—Limitation.—A naked trespasser in possession may set up in his defense an outstanding title acquired by a third party by limitation, to defeat an action instituted by one whose title was lost by limitation Privity of claim or of possession is important only when it becomes necessary to tack the possession of two or more to give adverse possession for the period requisite to perfect limitation.</p> <p>3. Same—'Warrantor.—A warrantor whose deed conveyed no title, when sued by the former owner with his vendee as codefendant, may set up title acquired by limitation by such vendee since the sale.</p> <p>4. Ambiguity—When one who entered under a deed for a less quantity of land than six hundred and forty acres, continues his possession until title is secured under the ten years statute of limitations, the admission of the deed in evidence, which on its face is ambiguous as to the bounds of the land intended to be conveyed, becomes unimportant.</p>

Tried below before the Hon. James --Masterson. Suit brought in the district court of Harris county by Henry ¡.Seeligson, against the Texas Transportation Company, Charles Fowler, E. W. Cave, A. C. Hutchison and L. Meggett, as defendants, to the March term, 1884, of said court, and on. February 9, 1884, C. P. Huntington was made a party defendant, and all defendants were duly served with process to said March term, 1884.

<p>•1. Statement of Facts—Judgment—Practice.—To reverse a judgment in the absence of a statement of facts, the Supreme Court should ordinarily be able to see not only that the court below had erred, but that such error must with reasonable certainty have produced a substantial injury to the party in the cause.</p> <p>2. Administration.—An administration may properly allow without suit a credit on a claim due the estate, which he knows to be just, and that i it could be established as a credit if suit were brought on the claim.</p> <p>S. Same.—An administrator may be allowed compensation for extra personal services rendered the estate, when shown to have been performed and necessary. Such a claim may be properly presented to the probate court in an exhibit made by the administrator under oath.</p> <p>4, Interest.—Under the statute a speedy partition of an estate that has been administered is contemplated after the payment of debts, and, since the law does not require the administrator to loan money remaining in his hands, interest can not be exacted of him unless actually received.</p> <p>B. Practice.—When the record fails to disclose any injury resulting from alleged errors, the judgment will be affirmed.</p>

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

<p>Appeal from Jasper. Tried below before the Hon. William H. Ford.</p>

<p>1. PLEADING.—A petition in a suit to recover on a promissory note which; contains no averment as to the time when the note was due, but which i contains the general allegation that the note “remains still due and I unpaid,” being formal in other respects, is good on general demurrer.</p> <p>3. Evidence.—Six months before a certified copy of a deed was offered in . evidence it was filed with the petition, but was not referred to therein. I The petition alleged that the original was in the custody of the defend-1 ant, and gave him notice to produce it or secondary evidence of its con- i tents would be offered on the trial. The defendant was its proper cus-1 todjan. Held, that it was not necessary that the plaintiff should makei affidavit that he could not procure the deed; the copy was admissible I in evidence and only admissible under article 2257, Revised Statutes.</p>

<p>1. Evidence—Dedication.—The declarations of a vendor, made at the time of purchase, that a street abutted on one of the lines of the land sold are admissible against his heirs who claim title to show a dedication of the ground by the ancestor to public use.</p> <p>2. Charge of Court.—When it is manifest that no injury could have resulted to the appellant from a charge complained of, it can afford no ground for the reversal of the judgment.</p>

<p>Appeal from Matagorda. Tried below before P. E. Peareson, Esq., Special Judge.</p>

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

<p>,2. Damages.—When injury is received by one in the employ of another ■ while engaged in the performance of service for his employer, but which is rendered in a manner violative of the rules of the employer, no damage can be recovered from such employer. It will be presumed, in the absence of evidence to the contrary, that in such case the employe knew of the general rules made to govern him in the employment.</p> <p>& Same.—Ho damage can be recovered from an employer for injuries sustained through the negligence or incompetence of co-employe, unless it. is shown that the employer has failed to exercise proper care in his selection.</p> <p>8. Rks Gest®.—When the circumstances in evidence render it probable that a statement offered as part of the res gestee was the result of premeditation, or deliberate design to effect some particular purpose, it should be excluded.</p>

Tried below before the Hon. W. H. Burkhart. This was a suit to set aside a sheriff’s sale of land and cancel sheriff’s deed, brought by W. H. Ward against W. F. Duer and P. C. Duer and his wife, L. A. Duer. The land in question was sold under judgment and foreclosure of vendor’s lien in favor of W. H. Ward, and at the sale was bid in by P. C. Duer, by whose direction a deed was executed to his wife, L. A. Duer.

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

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

<p>3.. Pleading.—When a petition in a suit to recover damages alleges generally that the plaintiff was damaged in a designated sum, and it after-wards claims a different sum as punitory damages, and a designated sum as actual damages, the general claim for damages should be stricken out on exception.</p> <p>3. Damages.—A wrong doer is liable in damages for ail the injurious consequences of his tortious acts, which, according to the usual course of events and general experience, were likely to ensue, and which, therefore, when the act was committed, he may usually be supposed to have foreseen and anticipated. See opinion for facts illustrating the rule.</p> <p>3. Same.—When a telegraph message is sent which contains nothing to indicate apprehension of the sickness of a relative to whom it is directed, and no such information is given to the agent of the company who transmits it, the mental suffering that may be occasioned by a failure to transmit or deliver it can not be made a ground for the recovery of punitory damages.</p>

<p>1. Benefit Certificate.—On the face of a mutual benefit association certificate it appeared that the wife of a member whose name was mentioned in it as beneficiary, was not a party to the contract with her husband evidenced by it. It was subject to be surrendered by the laws of the association,, which were, after its issuance, amended so as to permit a surrender of the certificate without the consent of the beneficiary. After the laws were thus changed the original benefit certificate was surrendered by the husband, and another issued instead to the 'husband, who before his death assigned the new certificate on full consideration, and without fraud in the assignment. Held:</p> <p>(1) That the wife was not thereby deprived of any legal right.</p> <p>(3) Her ignorance of the surrender of the original certificate, and failure to give her assent to its surrender, are immaterial.</p> <p>(3) The wife not being a party to the original contract, could not complain of the change of the laws of the association.</p>

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

<p>1. Abatement.—When no action is sought or obtained at the first term of the court on a plea in abatement, it operates ordinarily as an abandonment of the plea.</p> <p>3. Contract.—Though a parol contract for the conveyance of land for services to be rendered may not be enforced, an action may be maintained to recover the value of the services performed under it. When the services extend during a period which would ordinarily bar the claim lor their value, yet if they are rendered in good faith and the owner of the land accepts the benefit conferred by them without disaffirmance of the parol contract, limitation will not begin to run against an action to recover their value until the renunciation of the agreement. In such an action the vendor will not be entitled by way of offset to the value of aid or supplies furnished the purchaser, which were advanced and accepted at the time as a gratuity.</p>

<p>1. Banks.—The directors of a banking corporation are personally liable at the suit of an individual depositor for damages sustained by reason of the insolvency of the corporation, when the depositor is induced to-place money in the hands of the corporation solely by representations of solvency made to the general public by the directors, who ought to have known, and by the use of ordinary care, such as it was-their duty to have exercised, might have known, that such representations were false.</p> <p>2. Same.—Such directors are so liable to such depositor, when such false representations are knowingly made with intention to defraud the public generally.</p> <p>3. Same.—Such directors are so liable when such false representations are made in pursuance of a fraudulent combination, and common design upon their part to give to the corporation a fictitious credit that the business might be continued for the purpose of enabling such directors to collect loans claimed to have been made by them to the corporation.</p>

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

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

<p>1. Description.—A deed purporting to convey land which describes it only by quantity, and as being part of a larger tract, with nothing whereby to identify what specific portion of the larger tract is intended to be conveyed, is void for uncertainty of description in a tax title.</p> <p>2. Innocent Purchaser.—One who claims under a quit claim deed which on its face purports to convey only the interest of the vendor in the land as contradistinguished from a conveyance of the land itself, can not be an innocent purchaser. See opinion for a deed held to be a quit claim deed.</p> <p>8. Statute Construed—Verdict.—When a juror is excused from service by counsel for both parties after the trial has begun, and a verdict is rendered by the remaining eleven, it is not necessary that all should sign it.</p>

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

<p>1. Deed—Parol Evidence.—While parol evidence is admissible to show that a deed which by its terms is a deed absolute, was intended as a mortgage, it will be construed according to the plain import of the language in which it is written, unless a different intention existed in the minds of both the vendor and vendee.</p> <p>8. Certificate of Acknowledgment—Homestead.—When the husband and wife execute in due form a deed conveying the homestead, the wife can not impeach the certificate of the officer taking her ac knowledgment, if the same be in due form, where there is a valuable and adequate consideration for the deed. If the consideration be the discharge by the deed of a pre-existing debt, it will be sufficient, unless there was such gross inadequacy of price as to induce the belief that undue influences had been used to induce her execution of the deed, in which event the certificate of the officer may be impeached and shown to be false. But the mere fact that a man by imposing upon his wife through misrepresentations as to the character of the instrument, induces her to sign a conveyance of the homestead, in payment of a preexisting debt, coupled with the fact that the notary did not comply with the law in taking her acknowledgment, will not affect the rights of the purchaser, if he is ignorant of the husband's fraud.</p>

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

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

Tried below before the Hon. James Masterson. Appellant sued for damages for malicious prosecution, and alleged that appellee had made an affidavit before the United States commissioner, at Houston, charging that the appellant had taken a letter from the post office at* Lynchburg, Texas, which was addressed to appellee, with design to pry into business or secrets of appellee, which charge was a crime against the laws of the United States; that the United States district…

<p>1. Amendment—Pleading.—A judgment will not be reversed on account of the refusal of the trial court to permit a plea to be entered or amended after the close of the argument on the trial. Pleadings may be amended on such terms as the court may impose before the parties announce themselves ready for trial, and not thereafter.</p> <p>2. Limitation.—To sustain the plea of limitation of five years, continuity of possession and privity in the title are requisite, with the other conditions of hostile claim. When possession is claimed under different titles, and the requisite term of occupancy has elapsed under neither, but the possession under one title must be tacked to that under another in order to make out the five years, a privity must be shown between the various titles under which possession is claimed, or its continuity will be broken, and the statute will not avail the defendant. See opinion for facts showing the requisites of privity of title and continuity of possession.</p> <p>3. Charge of Court.—While it is irregular to submit to the jury special issues, and also to require a general verdict, it will not afford ground for reversing a judgment unless, from an examination of the case, it appears probable that injury resulted therefrom.</p> <p>4. Special Issues.—There is no uniform practice determining the mode of forming and submitting special issues to a jury; they' may be prepared by counsel and sanctioned by the court, formulated by the judge at the request of counsel, or on bis own motion, to meet the requirements of the case in the furtherance of justice. When a special verdict is rendered, no other facts can be looked to in aid of the judgment.</p> <p>5. Same—Judgment.—It is not necessary that a judgment should declare upon what portion of a verdict finding special issues it is based.</p> <p>13. Interpretation of Statutes.—Rights may be as securely acquired under statutes of limitation as by any other method. Such statutes are designed to quiet titles, and the courts will not obstruct the object of their enactment by technical strictness in construing them.</p>

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

<p>2. Right of Action.—lío action lies to restrain an interference with a mere public right at the suit of one who has not suffered or who is threatened with some damage peculiar to himself or been threatened with it. When the injury inflicted (or threatened) is of a character which affects the public generally, and inflicts no special wrong on the individual, the suit must be brought by those who are intrusted with that duty by the Legislature. The rule was otherwise under the laws of Spain, but they were abrogated by the adoption of the common law in the Republic of Texas, and the remedy afforded by the laws of Spain to the individual in cities established before the revolution of 1836 did not so vest as to survive the change of laws when the common law was adopted. Even the laws of Spain did not confer the right on a private citizen to sue for damages done by the city itself, in erecting a structure and place dedicated to public use.</p>

Tried below before the Hon. William H. Stewart. The character of this case, in which the plaintiff recovered i damages for personal injuries, is manifest from the opinion. The evidence, of which there was much, is quite too lengthy; for insertion, and if given would not aid to a better understand- ■: ing of the principles decided.

<p>1. Railways.—The material used in the construction of a railway on the land of another without right acquired from the land owner to place it on his land does not become such a fixture as to constitute it the property of the railway.</p>

Tried below before the Hon. H. Clay Pleasants. The following statement of the nature and result of the suit below, made by appellant’s counsel, and not controverted, is adopted: Appellee sued upon a contract of date April 25, 1885, setting , out the contract wherein appellee agreed to deliver to appellant eight thousand head of mixed yearlings, all to be good, merchantable cattle, to be delivered in three herds; time fixed for delivery of first herd, May 15, 1885; afterwards…

Tried below before the Hon. George McCormick. The charter powers claimed in the charter of the appellant are set forth in the syllabus.

<p>S. Quo Warranto — Appeal—Writ op Error.— In a proceeding by quo warranto, instituted to determine the right to an office, the judgment of the district court becomes a finality when, with no excuse for delay, the party desiring its revision fails to prosecute an appeal to the term of the Supreme Court in session at either branch, or the first term to be held, if not in session, after judgment has been rendered in the district court.</p>

Tried below before the Hon. J. M. Hall. This suit was brought by appellees to remove cloud from title and to recover one hundred and .eleven acres of land alleged to have been sold under judgments rendered in a justice court, in favor of T. 0. Donnell and against S. J. Robinson and one Blackburn and her husband.

Tried below before the Hon. W. H. Stewart. In this case J. C. Henderson accepted service for himself and his partners, co-defendants; judgment was rendered against J. G. Henderson individally, and against the others as co-partners.

<p>1. Negligence.—The owner of real property is entitled to its exclusive use and enjoyment, and is not liable for injuries occasioned by its unsafe condition when the person receiving the injury was not at or near the place of danger l>y lawful right, and when the owner has neither expressly nor impliedly invited him there, or allured him by attractions or inducements exhibited or held out in some way, and calculated to lead him into danger, without giving notice of the point to be avoided.</p> <p>2. Same.—A trespasser or mere licensee who is injured by a dangerous machine or contrivance on the land of another can not recover damages unless the machine or contrivance is such that the owner may not lawfully erect, or when the injury is inflicted willfully, wantonly or through the gross negligence of the owner <r occupant of the premises.</p> <p>3. Same.—One who goes into a place of his own volition where machinery belonging to another is being operated, and on his own business, not being employed or invited by the owner or those in charge, and is injured by such machinery while passing through a place in which employes usually go, and in which only mechanical operations are usually performed, usual in such places, can not recover damages for injuries inflicted in such a place by mechanical appliances which from their location and use are not dangerous to those acquainted' with the locality.</p>

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

Tried below before the Hon. W. H. Burkhart. Suit brought by George W. Durant against the unknown heirs of W. H. Snyder, John O’Leary, and Thomas J. Ewing, for an undivided one-third interest in three hundred and twenty acres of land. The court appointed F. J. Duff to represent all the defendants, who filed a general denial and plea of not. guilty. Judgment was rendered against O’Leary and Ewing, and in favor of the heirs for two-thirds of the land.

Tried below before the Hon. Sam R. Frost. For a history of this case see 65 Texas, 710, proceedings upon a former appeal.

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

Tried below before the Hon. R. E. Beckham. Suit by the appellee, Antoinette Raymond Bousselet, of Paris, Republic of France, against The Franeo-Texan Land Company, alleging that it was a private corporation created by the laws of Texas, which has its principal office in the city of Weatherford, Parker county, Texas.

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

<p>1 Lien OF Judgment.—The lien given to a judgment after its registration and index is statutory, and can not exist without a compliance with the terms of the statute. Unless the abstract of the judgment is indexed in the manner pointed out by the statute, no lien exists.</p> <p>S. Certainty.—See opinion for description contained in a deed for land, held sufficiently certain. The fact that field notes of a survey to be made after its execution, which by its terms were to be attached and recorded with it as part of a new certain description were not so attached, did not impair its effect as a recorded instrument.</p> <p>3. Certainty in Deed.—A deed for a given number of acres out of a larger tract with right to vendee to select its locality is valid.</p>

<p>Appeal from Falls. Tried below before the Hon. Eugene Williams.</p>

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

Montague. Tried below before the Hon. F. E. Piner. This appeal involves ownership of lots 20, 21 and 62 in town of Hillsboro. The parties, W. H. and Damaris Grant, were married January 29, 1883. At their marriage the husband had but little property.- The wife owned several tracts of land. The lands were quickly sold. With about five hundred dollars of the wife’s money Grant bought a stock of groceries from plaintiffs, paying half cash and balance on credit.

<p>1. Trusts—Statute oe Fraud.—An agreement between two or more persons for the joint acquisition of land is not, within the meaning of the statute of frauds, a contract for the sale of land which, to be valid, must be in writing. Such a contract is neither prohibited by common or statute law, and when under such a contract the purchase is effected by one of the parties, and the deed is taken in his name, he holds in trust for his associates in the parol agreement, whether he advances only his proportion of the purchase money, or pays from his individual means the entire price under a parol agreement to be reimbursed by them at a future time. Such a trust is not a resulting trust, the latter being that trust which the law creates in favor of one who has furnished the entire purchase money by which title has been taken in the name of another.</p> <p>"2. Same.—An agreement between two or more persons by which one of the parties agrees to advance money for the benefit of the other in payment for an interest in land already acquired, is not within the meaning of the statute of frauds a contract for the sale of real estate. If the party for whom the advance was made tender payment and demand a deed for his interest, in a suit to compel specific performance he is not bound to again tender the money in court. His rights were fixed by his tender in.accordance with his contract, and from that date he was entitled to his pro rata of the rents and profits of the land.</p>

Tried below before the Hon. B. F. Williams. This was an action of trespass to try title to five hundred and thirty-eight acres of the Charles L. Harrison one-third of a league df land in Wichita county, brought by appellee Gribble against appellants Thomas O. Nye and Fred K. Fisher, who vouched Ileber Stone and wife, M. L. G. Stone, and Mrs. Ann M. Giddings as warrantors, to appear and defend the title.

<p>£. Homestead Donation—Statute Construed.—Whatever rights re suit to one who, in the terms of the law, made application for a home - stead donation of public domain, are lost by a "failure to occupy p,</p> <p>(Rev. Stats., art. 3942.)</p> <p>2. Public Domain—Statutes Construed.—The act of July 14,1879 (Gen. Laws Special Session, p. 48) authorized the sale of such separate tracts of land in unorganized counties as, at the time of its passage, contained not more than six hundred and forty acres, the fact that a tract of land of greater area when that act was passed than six hundred and forty acre's, may subsequently have been lawfully appropriated t-private ownership to such an extent as to leave less than six hundred and forty acres unappropriated, would not render such residue subject to sale.</p>

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

Tried below before the Hon. R E. Beckham. About the second of June, 1884, on a very rainy and stormy night, a certain stone wall in course of erection in the town of Weatherford fell upon an adjacent brick building occupied at the time by appellee, as a drug store, and by its fall the contents of said drug store, consisting of patent and other medicines, and various drugs, were greatly damaged.

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

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

<p>1. Evidence—Practice.—Objections to evidence inust pertain to its competency, not its sufficiency, and evidence which is competent can not be excluded during the progress of a cause merely because other evidence, that in connection would seem to render it sufficient, had not already been introduced. Evidence when offered to show a conveyance of land is competent, though it .may not describe the land, if it refers to other writings for specific description.</p> <p>■8. Same—Corporate Seal.—A copy of a deed purporting on its face to be the act of the corporation, certified to by the county clerk, and which recites that it was executed by the officers of the company under its corporate seal, is admissible in evidence, though a scroll by way of seal is placed in the certified copy where the corporate seal should have been attached in the original. It being a violation of the duty of the recording officer to take the acknowldgement of the officers of the corporation unless the instrument was sealed with the corporate seal, the presumption must obtain that it was thus sealed, after the lapse of twenty-five years from its registration.</p> <p>"3. Trust—Trustee.—A deed containing no words of defeasance, conveying land in trust for the benefit of designated parties, which contains no direction as to ho w the property is to be made available, but which is made for the sole use and benefit of parties named therein in proportion to the debts specified as being due to each from the grantor, conveys the absolute title, to be disposed of by the trustee as the beneficiaries may direct or approve, and this without the aid of a court of equity.</p>

<p>1. Railways—Evidence.—Though a railway company which receives-cattle for transportation may not contract to carry them on a train devoted for the trip to that exclusive purpose, or to carry the cattle at a designated rate of speed, the duty remains to carry them with reasonable dispatch, in view of the character of the freight, and its liability to injury from delay, and evidence showing neglect in this regard is admissible under proper averments in a suit against the company for damages.</p> <p>8. Shipping Cattle.—If in transporting the stock the cars can be stopped and started without doing it so abruptly as to throw the cattle down and injure them it is the duty of the company to do so.</p>

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

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

Error from. Tarrant. Tried below before the Hon. A. J. Booty. In this case the chief objection to the charge of the court was to the following portion of it: “And the value of the child’s services during the period of her minority is to be ascertained by you as best you can from your own judgment, common sense and sound discretion, and the evidence before you.”

<p>1. Mechanic’s Lien.—Under the law as it existed in 1884. a sub contractor or material man could only stop the payment of whatever money due or to become due upon a building contract which might remain under the control of tne owner of the house; and the statutory notice only stopped payment of such balance, and the proceedings affected the property only so far as was requisite to secure payment of the fund affected by the notice.</p> <p>8. Same—Notice.—Verbal notice to the owner of a house that the contractor who constructed it had verbally transferred to a material man an amount of the contract price sufficient to meet such claims, withdrew that amount, if due, from the further control of the owner of the house.</p> <p>3. Case Followed.—Harris v. Campbell, 68 Texas, 27, which holds that an assignment of part of a chose in action, for a valuable consideration, is good in equity; that it may be made by a direct transfer, or by order drawn on the particular fund, and that such assignee has not only a lien on the fund, but a property in it which, he may enforce by suit, followed.</p>

<p>1. Partnership.—A bond executed in a partnership name which does not pertain to the ordinary business of the firm, or in settling up its affairs, which is executed by one member of the firm without the knowledge or consent of the others, and when nothing has been done by the other partners that would estop them from denying the authority. will not bind the firm. A subsequent ratification will supply authority.</p> <p>2. Same.—When the firm name is used as surety for a third person the presumption prevails that such use is outside of the firm business.</p> <p>3. Charge oe Court.—See opinion for charge of court regarding the lia bility of a partnership held not applicable to facts stated in the opinion and misleading.</p>

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

Tried below before the Hon. Richard Maltbie. Suit brought March 2, 1880, for personal injuries received byappellee while crossing the appellant’s track, in Denison, not .at a public crossing. The defense was a denial of the facts alleged in the petition, and contributory negligence. The trial resulted in a verdict for appellee for five thousand dollars, which was sustained over a motion for a new trial, and the appellant appealed.

Tried below before the Hon. B. F. Williams. Suit in trespass to try title brought by appellees. The order of the court January 27, 1851, attempting to grant letters upon fourteen estates is as follows: “Estate of Charles Dupolllon, George Voss, Isaiah Dickson, Frank Gray, George Green, William Harper, Dennis Ma-honey, Richard Starr, James Dunkin, Daniel Broce, H. Z. Lewis, Charles Zanar, George Wiggin and Bobert Evans.

<p>1. Practice.—In a suit involving title to property seized under attachment and claimed by a third party, while the trial judge must in the first instance determine in whose possession the property was when it was seized under process, it does not follow that in a proper case the court should not submit to the jury the question of fact on which the determination of the burden of proof must rest.</p> <p>8. Same.—When rights involved in a sale are fixed by written contract between the parties which is not produced on the trial, and the sale is proved by parol without objection, the failure to produce the written contract of sale becomes immaterial.</p> <p>8. Evidence.—In a suit involving the good faith with which a sale of goods was made, which was attacked for fraud, the answers of the vendor in his own behalf, regarding his motives in selling, are admissible in evidence.</p>

<p>Appeal from Lamar. Tried below before A. M. Taylor, Esq., Special Judge.</p>

Tried below before the Hon. J. M. Hall. This suit was brought by Lou M. Greenlee and her husband, James S. Greenlee, in the district court of Bosque county, against appellants.

<p>1. Statute Construed.—Construing article 994, Revised Statutes, which refers to the duties of the county treasurer in regard to money belonging to the county, held: That no distinction can be made between general and special funds belonging to the county, and no authority exists in a commissioners court to deprive the treasurer of the right to his commissions for receiving and paying out county funds, by directing their receipt and disbursement by any other person. In such ease, a right of action in favor of the treasurer exists to recover the amount allowed by law for receiving and paying out the money.</p> <p>2. Case Approved.—Beard v. The City of Decatur, 64 Texas, 7, cited and followed.</p> <p>3. Office.—An office is property, and he who is legally its incumbent is entitled to its emoluments during the term for which he is elected or appointed.</p> <p>4 Same — Commissions of County Treasurer.—When the commissioners court of a county fail to fix, under the limitations of the statute (Rev. Stats., art. 2403), the amount which the county treasurer shall be paid for receiving and disbursing county money, and authorize another person to perform that function of his office, their act must be held as equivalent to an implied agreement on the part of the county that the treasurer shall have the maximum of two and one-half per cent for receiving and two and one-half por cent for disbursing county funds. This held in a case in which it was shown that the county court had for more than ten years before the election of the treasurer from whose control they diverted the county funds, allowed the maximum rate-permitted by law for receiving and disburing money.</p>

Tried below before the Hon. Geo. H. Noonan. Appellees, plaintiffs below, alleged that, on the twenty-first day of June, 1884, one of the defendants, W. J. Prince, made his certain bill of exchange in writing, of which the following is a copy: San Antonio, June 21st, 1884. Mr. L. Lambert: Please pay to Gus A. Kampmann & Co. five hundred dollars, and charge the same to account of yours truly, W. J. Prince.

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

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

Tried below before the Hon. Thomas M. Paschal. On the twenty-seventh day of February, 1883, Julius Kuehn was traveling along the public highway, riding in a wagon and going to his home. At the railroad track north of the Q-audalupe river, a north bound passenger train collided with his wagon and injured Kuehn severely in the head.

<p>Appeal from Falls. Tried below before the Hon. Eugene Williams.</p>

<p>1. City Ordinance—Negligence.—When the ordinance of a city under which a street ear railway company is incorporated makes it the duty of the driver of a street railway car to keep a vigilant look out for all persons approaching the raihva3 track, and to stop the car on the first appearance of danger, a failure to perform this duty, followed by injury to one near the track, is of itself an act of negligence.</p> <p>2. Pleading—Negligence.—The term gross negligence includes every lesser degree of negligence, and when it is charged in a petition to recover damages for injuries alleged to have been caused thereby, evidence of any character of negligence is admissible.</p> <p>3. Negligence.—When one is injured by the negligence of another, the exercise of ordinary caution by the injured party' to avoid the danger is all that the law requires in order that he may be protected against the consequences of having contributory negligence imputed to him.</p> <p>4. Contributory Negligence.—Though the negligence of one who has been injured by another may have contributed to the injury, yet if the person inflicting it discovers the peril of the other in time by the reasonable exercise of the means at hand to prevent the injury, the failure to use such means must be regarded as the proximate cause of the-injury, for which the person inflicting it is liable, although the injured party was guilty of contributory negligence.</p> <p>6. Charge oe Court.—See opinion for a charge of court held improper because argumentative.</p> <p>6. Evidence.—When an article to which testimony relates can be brought into court and exhibited to the jury it is proper that it should be done.</p>

<p>1. Homestead.—Whether property claimed as a homestead is exempt from forced sale must depend on the facts existing which would tend to make it a homestead at the time of the levy of execution. The former occupancy of other property as a home, which may he still owned by husband and wife, becomes immaterial if at the time of the levy the property seized under execution was actually occupied and used as the home residence.</p>

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

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

<p>Appeal from Tom Green. Tried below before the Hon. W Kennedy.</p>

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

Tried below before the Hon. George N. Aldridge. The appellee sued appellant for damages resulting from negligence, the character of which is stated in the opinion. Appellee’s family consisted of himself and two children. Before his injury he was an active and strong man, enjoying health, twenty-two years of age. He was a butcher by trade, and earned in that business seventy-five dollars per month.

<p>1. Notice—Lien—Purchaser.—The possession of land by a purchaser through his tenant, though his deed is unrecorded, operates as notice of the purchaser’s rights to a creditor in whose favor a levy is made of an execution on the property. The purchaser under such execution who has actual notice of such deed at the execution sale, can not be an innocent purchaser, as he would be if the creditor had acquired the lien secured by levy unaffected by the constructive notice resulting from the possession of the tenant.</p>

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

<p>1. Taxation.—The failure of an assessor in listing property for taxation to give the survey number of the grant as required by article 4711, Revised Statutes, renders subsequent proceedings to enforce collection of the tax illegal, unless good cause can be shown why the requirement of the statute in this regard was not complied with.</p> <p>8. Same.—It would be a sufficient description when an entire survey is-assessed to give the owner’s name if known, or to state that it is unknown. together with the abstract number, certificate number, survey number, name of original grantee and number of acres, but when only a portion of a survey is assessed some further description is necessary in order to identify the particular portion assessed.</p> <p>8. Tax Deed.—A conveyance by a tax collector or sheriff of a number of acres to be taken out of a larger survey is void for uncertainty.</p> <p>4, Case Disapproved.—Sheaf v. Wait, 30 Vermont, which dissents front the generally adopted rule that a purchaser at tax sale must stand . strictly on the legal title if any, which he acquired by his purchase, disapproved.</p>

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

Tried below before the Hon. A. S. Walker. The trial judge filed the following conclusions of fact and of law: It is agreed by the parties as follows: The Houston & Texas Central Railway Company v. the Texas & Pacific Railway Company. Three suits pending between the same parties transferred to and pending in the district court of Travis county, Texas, for land in the counties of Mitchell, Howard and Tom Green.

<p>1. Declarations of Surveyors.—The declarations of a surveyor who !s dead, which were made at a time when he was attempting a survey of a tract of land not originally surveyed by him, of which he had no previous knowledge, and which relate to his opinion regarding the identification of comers and lines of the survey, are not admissible in evideuce. His declarations as to distances then measured by him from designated objects would be admissible. Where it is shown that the surveyor was in a position to know the truth of his declarations from having made the original survey, or from other knowledge possessed by him, the rule is different.</p>

Tried below before the Hon. A. S. Walker. C. A. Brown and wife sued for bodily and mental injuries to-the wife, alleged to have been inflicted upon her by defendant Bridges at the instance of defendant Smith then present, their action being advised and ratified by the -other defendants Rucker & Montgomery. Smith acting also in capacity of, agent for the last named defendants.

<p>1. Partition—Decree—Collateral Attack—One who purchases land allotted to one of several joint owners at the term of court when a decree of partition is entered determining the interest of each owner, and after the entry of such decree, must be held to have purchased with notice that the court could exercise its authority to alter its judgment at any time during the term, on proper notice. If such vendor had no notice of a motion to revise and change the decree, still his vendee would be concluded by his subsequent appearance to contest the motion to change the decree, and a judgment changing the decree would be conclusive of the rights of the purchaser to the extent of such change, and could not be disturbed in a collateral proceeding.</p>

<p>1. Negligence.—The statute requiring farmers, gardners and planters to make a sufficient fence about cleared land in cultivation, was designed for the protection of crops inside of the inclosure against stock running at large. The failure to keep a fence around a growing crop, which crop in its nature could not be regarded as dangerous to stock would not render the owner of the ground in possession liable for injury which might result to animals running at large that had entered and been injured by eating of the crop. The failure to erect or keep up the fence would not, under such circumstances, be regarded as negligence.</p>

Tried below before the Hon. J. V. Cockrell. Suit brought by appellants against appellee George A. Scarborough, sheriff and tax collector, to restrain him from collecting off of appellants all the county tax for the year 1885, upon various grounds, among which were that the tax was levied at a called session of the commissioners court, and therefore void; that appellants had the valuation of their property raised by the board of equalization without notice to them, and that…

Tried below before the Hon. D. P. Marr. Suit of trespass to try title by appellees to recover one undivided one-half of survey number three, section number six, in the name of Juan Ignacio Diaz, situated, in McMullen county,, Texas, and for partition. By_ a second amended answer filed March 28, 1887, the pleas of “not guilty,” the statutes of three, five and ten years limitation, stale demand and improvements were pleaded.

<p>1. Purchaser—Easement.—When land Is actually appropriated under an order of the commissioners court, requiring a jury to lay out and mark a public road, a subsequent purchaser of the tract of land crossed by the road takes it subject to the easement thereby created and existing at the date of purchase. The public use for a less period of time than would give a right by prescription would not appropriate the way used beyond that character of road designated in the order establishing it. Thus, if the original order established a third class road, the commissioners court can not change its classification arbitrarily, without notice or further proceedings, to a second class road, and require the removal of gates, thereby imposing an additional burthen without compensation. Such action would be violative of the seventeenth section of the Bill of Bights.</p>

<p>1. Unlawful Enclosure of School Lands—Injunction.—A demurrer was sustained to a petition tiled by the Attorney General to compel by mandatory injunction the removal of enclosures around many thousand acres of public free school lands, which, in connection with line riders, practically enclosed and appropriated the same, excluding the public from grazing thereon, interfering with the removal of stock from one portion of the State to another, obstructing traVel and impeding the sale of the public lands, held:</p> <p>(1) Such an enclosure is both a purprestore and a public nuisance.</p> <p>(2) By impeding the sale of the public lands, the act charged was violative of the act of February 7, 1884, aud it was the duty of the proper officers of the State to remove the obstruction by legal proceedings.</p> <p>(3) The enclosure, in so far as it might obstruct the right of common and the removal of cattle to market, would be such an interference with individual rights in public property as to constitute a nuisance, subject to be abated at the suit of the State, to accomplish which injunction is an appropriate remedy.</p> <p>(4) The fact that, by virtue of the act of February 7, 1884, the enclosure of public land is made a penal offense, does not impair the right of the State to remove such enclosure by mandatory injunction.</p> <p>(5) The decision in Attorney General v. Woods, 108 Massachusetts Reports, 436, approved.</p> <p>(6) The State is not confined to the action of trespass to try title to enforce its right to remove the enclosure.</p> <p>(7) The defendant could be enjoined from constructing new fences of the character complained of, without being compelled to join as defondants other persons who might be interested in the performance of such unlawful act, though he could not be compelled by mandatory injunction to remove a fence owned in part by others who were not defendants.</p> <p>8. Abatement.—A plea in abatement, predicated on the non-joinder of parties defendant, should set forth definitely the nature and extent Of the interest of each person who is claimed to be a necessary party.</p> <p>S. Injunction.—In proceeding by in j unction to compel the removal of fences which enclose public free school land, the defendant can be compelled to remove such fences as he has constructed on his own land, or on public land, but he can not be compelled to remove such portions of the fencing as are on the lands of others, though he may have been a party to their erection, unless the owners of the land are made parties to the suit. If the defendant be part owner of the fence, either as partner or co-tenant, and such tenant or partner is beyond the reach of the court’s process, he may be compelled to remove the fence without joining such co-tenant or partner as co-defendant.</p>

<p>1. Telegraph Company.—Though a telegraphic message is neither prepared, delivered nor paid for in person by the one for whose benefit it is sent, yet if it he prepared, delivered and paid for by others acting for him at his special request, the contract is complete and the telegraph company having knowledge of its urgency "and importance is liable in damages for negligence in its transmission and delivery.</p> <p>2. Same—Parties.—When from the negligent failure to transmit and deliver such a message prepared and sent at the instance of a mother who desired information regarding the condition of an absent son, the relationship being known to the messenger, she was deprived of knowledge of his death until too late to have the consolation of attending his burial, an action for damages will lie, which may be maintained by the husband alone.</p> <p>8. Cases Adhered to.—Ezell v. Dodson, 60 Texas, 331, and Gallagher v. Bowie, 66 Texas, 265, adhered to.</p> <p>8. Same.—The message from the son was as follows: “I am very sick; come immediately.” Held: The agent of the company who received the message, knowing that the relationship of mother and son existed between the parties, was charged from the words of the message with knowledge of its importance and of the anguish which would result from its non delivery, if thereby in the event of the son’s death his mother should be deprived of the consolation of seeing him in his last sickness, or of being present at his burial.</p> <p>4» Same.—When from the negligent failure of the telegraph company to deliver such a message, the mother was unable to go on the first railway train, which would have transported .her in time, and was compelled to go on a later train, which would also have conveyed her in time but for the fault of the railway company, such fault can furnish no defense when such negligence of the telegraph company is shown. In such an action for damages the death and burial should be distinctly. averred.</p>

<p>i. Assignment op Error.—An assignment of error which is neither signed by the complaining party nor by his counsel can not be eonsidsidered. When signed by neither, only such fundamental errors as are apparent on the face of the record can be considered.</p> <p>2. Parties.—The presumption will be indulged that the wife and children were properly made parties plaintiff to a suit instituted during the life of a deceased husband and father to recover damages for an injury inflicted on the wife, when the cause of action survives.</p> <p>3. Receiver—Action.—When a receiver appointed by a federal court resigns during the pendency of a suit brought against him under permission of the court appointing him, it is not necessary to obtain permission to prosecute the suit against his successor in the receivership-Even were it otherwise the failure to obtain a renewal of the consent would not constitute such error as would authorize the reversal of a judgment rendered against such receiver, in the absence of exceptions urged in proper time and manner, and in the absence of a proper assignment of error.</p>

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

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

Tried below before the Hon. F. E. Piner. Action of trespass to try title instituted by Leon & H. Blum against John T. Lilly et al., for the recovery of two hundred and seventy acres of land, described by metes and bounds. It was admitted that plaintiffs (defendants in error) were the owners of the land included within the Pinchback survey. The point of litigation being as to whether said land was included within said Pinchback survey according to its calls in the patent.

<p>1. Pleading.—Though a petition may contain a more detailed statement of the facts on which a recovery is sought than may be required to present properly the cause of action, yet, when the purpose is to indi" cate thereby particularly the scope of the evidence which will be relied on at the trial, and no injury can result to the adversary from their statement, it is not bad on demurrer.</p> <p>3. Examination of Witness.—When a witness has on cross examination more than once answered a question propounded by counsel, whether he shall again be required to make answer to the same question, is a matter within the discretion of the trial judge. The great object of the examination being to elicit the truth, the bearing, moral courage, bias, memory and demeanor of the witness being apparent to the trial judge, will furnish guides for his discretion, in determining the extent of the cross examination, and that discretion will not be revised when no injury could have resulted from its exercise. It is also within the discretion of the judge to permit a plaintiff who has been examined as a witness to be recalled to correct his testimony, previously given.</p> <p>8. Damages.—A railway comp.my in constructing bridges, cuiverts and embankments, must prov.d* agaiusc such damages as might be reasonably anticipated from ove ¡flow of the stream, but the company will not be guilty of that culpable negligence that would make it responsible in damages if it failed to provide against such extraordinary floods as could not have been reasonably foreseen by men possessing ordinary engineering skill and capacity required in the construction of railroads.</p> <p><L Measure of Damages.—The measure of damages against a railway company for the destruction of growing crops and land injured or destroyed by overflow caused by the defective construction of a railroad track, is the market value of the destroyed crop at the time it was destroyed, and the injury to the land caused by the overflow. The rule for computing damages given in Railroad Company v. Helsley, 62 Texas, 596; Railroad Company v. Tait, 63 Texas, 223, and Railroad Company v. Johnson, 65 Texas, 393, adhered to.</p>

<p>1. A Debtor on open account wrote to his creditor, November 14,1883, In reference to the debt, saying: “I will, if I am ever able, pay it.” The amount of the debt at the date of the letter was established, and it was, also shown that in Octbber, 1885, the debtor had acquired and owned an amount of money more than sufficient to pay his debts, including the account. In December, 1885, he was sued on the written conditional promise. Held:</p> <p>(1) The existence of the original debt being shown, and the reference made to it in the letter being established, the claim was not barred by limitation, but the right of action accrued on the written promise at the time when the defendant first had the ability to pay.</p> <p>(3) The plaintiff was not bound to show that the defendant continued to be able to pay, after showing that such ability once existed.</p> <p>(3) The fact that the defendant, after being able to pay, invested, his money in a homestead, could not defeat the plaintiff’s right of action.</p>

Tried below before the Hon. D. H. Scott. Suit by attachment, begun by appellant, whose claim was attacked for fraud by Simon & Morse and Max Judd & Company, interveners, and subsequent attaching creditors.

Tried below before the Hon. George N. Aldridge. The charge referred to in the fourth assignment of error is as follows: “If you believe from the evidence that, at the time plaintiffs leased the second story of defendant’s building from defendant’s agent, A. F. Hardie, said agent represented that the walls of said building were safe and substantial; and if said representation was then untrue, the east wall of said building being then defective and unsafe, and if, after…

<p>1. Administration.—Suit was begun on August 11, 1885, against one who-had been appointed administrator of an estate in 1867; it was brought by one claiming a distributive share of the estate, and sought to com pel an exhibit by the administrator, preparatory to a suit by plaintiff for partition. The records of the probate court had been destroyed by fire, hut orders of the court were shown appointing the defendant ad ministrator, appointing appraisers of the estate, and another order, it being the last, approving an amended exhibit and decreeing a sale of lands, dated March 31, 1869. No order showing final account or discharging the administrator was shown. Held:</p> <p>(1) The forty-sixth section of the probate act of August 15, 1870, and Revised Statutes, art. 1829, abrogated the rule announced in Murphy v. Menard, 14 Texas, 61; Porter v. Cummings, 14 Texas, 140; and Marks v. Hill, 46 Texas, 345: which conclusively presumed the close of administration after the periods fixed in those cases.</p> <p>(2) When the records of a probate court have been destroyed, it is competent to show by pa/rol that an order of court was entered before the destruction of the record closing the administration. The entry upon the record must be shown; an order requiring such entry would not be admissible.</p> <p>(3) Until the close of administration, the county court has exclusive jurisdiction to decree a partition of the lands of an estate, when the title, as between the'distributees, is clear, and no other party claims an interest adverse to the heirs</p>

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

Tried below before the Hon. George H. Aldridge. The allegations in the amended petition in regard to the letter from the defendant, and the letter itself copied in the plea, are as follows, viz: “Afterwards, to wit, on the twenty-seventh day of March, 1885, the defendant, in answer to a letter written by said Dabrelle to him, containing a demand in writing for said money, and bearing date February 10, 1885, acknowledged in writing the justness of said debt and thereby became…

<p>Appeal from Jones. Tried below before the Hon. J. V. Cockrell.</p>

Tried below before the Hon. A. W. Moursund. Low and Low, against whom this suit was brought, assumed to control an execution issued on a judgment rendered in favor of The Brown Cotton Grin Company and against the appellant, W. W. Tandy and others.

<p>1. Continuance.—On an application for the continuance of a cause the court can not assume the existence of any fact necessary to authorize it when the applicant fails, or is unwilling to set such fact forth in the application.</p> <p>3. Same.—On a first application for continuance it was not stated that “due diligence” had been used to procure the testimony of the absent witness, but the date was stated when the subpoena was placed in the hands of the officer. It stated that the witness had been served but did not state when. The process was applied for when the plea of the applicant was filed on March 9, 1886, and the application to continue was made April 2, 1886. Held, that the application was properly overruled.</p>

<p>1. Judgment—Appeal—Justice Court. —If a motion for a new trial has been filed within five days after the rendition of judgment by a justice court, but no action has been had thereon within ten days after the rendition of the judgment, such motion should be considered as overruled on the tenth day after the date of the judgment and a party-would, in such case, have ten days thereafter within which to file his appeal bond.</p>

<p>1. Separate Property op Wipe.—When a judgment is rendered on a verdict in favor of the wife’s claim that land acquired during marriage was purchased with her separate money, and the finding in her favor is sutained by the evidence of the husband and wife alone, which considered by itself is sufficient to warrant the verdict, the judgment will not be reversed merely because there was other evidence tending to throw suspicion on their testimony.</p>

Error from Dallas. Tried below before the Hon. George N. Aldridge. The final judgment referred to in the latter part of the opinion was rendered December 24, 1885, a motion for a new trial having been overruled December 15, 1885. The execution issued in February, 1886, the property was advertised for sale on March 2,1886, and the court adjourned March 6, 1886. Writ of •error bond filed July 1, 1886.