Volume 72 — Texas Reports

Tried below before Hon. T. B. Wheeler. An outline of the case is in the report in the former appeal, 64 Texas, 406. Additional facts necessary are in the opinion and in the last paragraph of the syllabus above.

Tried below before Hon. H. Teichmneller. Andrews and others, appellees, filed their action in trespass to try title April 17, 1879, against appellants, for a tract of one-fourth of a league of land patented in name of Wm. H. Hunt. The land is described as lying “about 14 miles S. E. of the town of Bastrop; beginning at the H. E. corner of survey Ho. 27, made for Wm. H. Hunt, a post oak, from which a post oak bears S. 26 deg. 30 min.

<p>Appeal from Atascosa. Tried below before Hon. W. W. Herron, Special District Judge.</p>

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

Tried below before Hon. Winchester Kelso. On the 24th of March, 1880, Ben Muschamp entered into a contract with appellants to furnish material and do the stone work and plastering in constructing a house in the town of Del Bio, the work to be completed by the 15th of May, 1886.

<p>1. Assignment—Garnishee.—Under the assignment law of this State a non-consenting creditor by garnishing the assignee is entitled to a discovery of the condition of the estate; and thereby he establishes his right to any excess in the hands of the assignee after the payment of prior claims, costs, and expenses of the assignment.</p> <p>2. Assignee’s Bond—Sureties.—In a suit upon an assignee’s bond, brought by a non-consenting creditor, the plaintiff should show that there are or should be assets in the hands of the assignee subject to Ms debt, and that they are withheld.</p> <p>3. Liability of Garnishee.—Where by judicial proceedings the assets or property assigned have been seized and the assignee thereby prevented from realizing anything, such facts are a bar to an action by a non-consenting creditor upon the bond, and the sureties are not estopped from malting such defense by a judgment against the assignee in garnishment proceedings under the statute.</p>

<p>Appeal from Travis. Tried below before Hon. A. S. Walker.</p> <p>This is a second appeal. 64 Texas, 403. The opinion sufficiently states the case.</p>

Tried below before Hon. W. E. Collard. On December 24, 1886, G. A. Gordon sued the International and Great Northern Railroad Company for the recovery of $6 actual damages and $2000 exemplary damages, sustained, as alleged by him, by reason of the negligent and wrongful conduct of appellant’s employes in charge of its passenger train, in refusing to stop and allow appellee to board said train at Englewood, a flag station on appellant’s road.

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

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

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

Error from Navarro. Tried below before Hon. L. D. Bradley. The facts of the case appear in the opinion. The defendants in error submitted with the record a motion to strike from the record a “ substituted bill of exceptions,” for the reason, apparent in the record, that neither the defendants nor their attorneys had notice of the motion in the court below to substitute the lost bill of exceptions.

<p>1. Claims Against Estates.—A mere creditor of an estate, whether such by virtue of his ownership either of a legal or equitable claim, can not maintain an action for its enforcement against the administrator until after its presentation duly authenticated for allowance.</p> <p>2. Eight of Action.—A creditor who is entitled by reason of absolute ownership to a specific fund in the custody of an administrator, which is claimed by the administrator as estate assets, may maintain an action for its recovery without first presenting it for allowance in due course of administration when the fund is claimed not through the estate of the decedent but adversely to it.</p> <p>3. Equitable Lien.-—An agreement whereby a third party advances money to a contracting builder to carry out his contract, it being agreed that the borrower shall execute to the lender a written power to collect the contract price for building from the owner of the structure, confers on such third party as between th'e parties an equitable hen to repay advances on the amount due the builder for his work, and this though the written power to collect was never executed. Equity regards that as having been done which was agreed to have been done.</p> <p>4. Same.—Such a hen, even had it become a legal hen by the execution of the written contract, would be subordinate to the hens of material men and mechanics fixed under the statute.</p>

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

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

<p>1. Lawyer acting as Notary Public.-—While suit was pending it became necessary for the plaintiff to malee and file with the clerk an affidavit of inability to make a bond for costs. Such affidavit was prepared for plaintiff by his attorney in accordance with the statute (Rev. Stats., 1488), and the attorney being a notary public the affidavit was sworn to by the client before his attorney as notary; the affidavit so made was filed and the case proceeded upon it. Held, that inasmuch as the terms of the affidavit are prescribed by the statute, and that it may properly be written by the attorney, that it is of no consequence before what officer authorized to administer oaths the affidavit be made, and that it was not improper for the attorney to take the affidavit.</p> <p>2. Evidence of General Bad Character.—In an action for false imprisonment the defendant can not, either to show good faith in making the arrest or to diminish the claim for damages, show the general bad character of the plaintiff nor facts warranting such character totally disconnected with and independent of the transaction the subject of the litigation.</p>

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

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

Tried below before Hon. Felix J. McCord. Suit brought January 21, 1888, in the District Court of Smith County, by appellee, for $21,200 actual and $20,000 exemplary damages, claimedfor personal injuries received by him, December 26, 1887, in a wreck of a passenger train on the International & Great Northern Railroad, about two and one-half miles north of Troupe. Appellee was a passenger and the road was operated by appellant.

<p>1. Parol Contract for Sale of Land—Duty and Obligation of Buyer.—The</p> <p>members of a firm made an oral agreement, November 6, 1888, by which Bufford, one of the firm, was to take a mill owned by the firm and was to pay therefor $5600 upon the firm debts; if a less amount should be required to pay them the difference between the amount paid in discharging the debts and the agreed price was to be paid to the other members, they to execute a deed for the mill to him. Bufford retained possession of the mill. The larger debt owing was in a judgment then held by Bufford’s wife. Subsequently, and without notice to his partners, Bufford caused execution to be enforced against the mill, and bought it for $1000 and took the sheriff’s deed to himself. The other partners sued Bufford, claiming that he had not paid the agreed amount, asking judgment for the difference. In the suit Bufford asserted title in the mill under the sheriff’s sale, and pleaded that he had paid in excess of the agreed price, giving items including interest and costs of suits which had been brought against the firm subsequent to the date of the oral agreement. The other partners tendered a deed for the mill and no deed had been demanded by Bufford. Held:</p> <p>1. Bufíord having taken possession of the mill under an agreement as to price, can not resist the performance of his oral contract when the deed was tendered, on the ground that the deed had not been delivered.</p> <p>2. He could not acquire title under the execution sale under the judgment he had undertaken to pay.</p> <p>3. He could not charge his partners with interest upon the debts which had accrued subsequent to his agreement to pay them.</p> <p>4. Nor would he be allowed for costs of court incurred upon valid notes of the firm upon which he had allowed suits to be brought subsequent to the agreement by terms of which he was to pay them.</p> <p>2. New Trial.—The record not showing but that suits which had been brought upon some of the accounts against the firm had been properly resisted, and the record showing a payment of the agreed price, the judgment against Bufford is not sustained by the testimony, for which reason the case is reversed.</p>

Tried below before Hon. Felix J. McCord. Suit instituted by Eugene T. Borough in the District Court of Smith County on the 7th day of November, 1887, against the Kansas & Gulf Short Line Railway Company for $10,000 damages for personal injuries alleged to have been received by the appellee on the 8th day of August, 1887, through the negligence of appellant.

Tried below before Hon. Geo. H. Noonan. This is an appeal from a judgment in favor of appellee upon an account on its face barred by limitations.

<p>.1. Non-ResicLent Corporation—Agent.—In a suit against a foreign corporation service was had on an alleged agent of the defendant residing in the county. The defondant pleaded in abatement that it had no agent in the county, denying that the alleged agent was one in fact. There being conflicting testimony; held, (1) error to withdraw the fact of agency from the jury; and (2) agency or not is a question of law to be determined by the relations of the parties as they in fact exist under their agreements and acts.</p> <p>2. Statute Construed—Venue in Suits Against Corporations.—Under Act of March 31, 1885, suit may he brought against foreign, private, or public corporations in any county where such corporation may have an agency or representation, and without showing that its principal office is in such county.</p> <p>3. Punctuation.—Errors in punctuation in a statute will he disregarded when the meaning is obvious.</p> <p>4. Libel—Pleadings.—The petition in a libel suit should put the court in possession of the libelous matter published, the language used, with such innuendoes as are necessary to explain what was meant by the language and to whom it applied.</p> <p>5. Same..—In alleged libel by reporting a merchant’s standing “in blank” the complaint should have stated the fact, with such explantions as to what was meant by the report as were neceesary to show that the report was injurious.</p> <p>6. Commercial Agency—Key to Reports.—In an action involving the meaning of a report by a commercial agency it is competent to call an expert to explain the meaning of the terms and characters used.</p> <p>7. Opinion as to Effect of Report.—The jury should determine the effect; the witness could only give his opinion, on which the jury would be as competent to judge as the witness. Such testimony is inadmissible.</p> <p>8. Privileged Communications.-—The publications of commercial agencies, issued to their subscribers generally, are not privileged. They are only so when made in confidence to a subscriber who is interested in the pecuniary standing of the merchant reported.</p> <p>9. Commercial Agencies are lawful, and when conducted lawfully are beneficial, but they are not exempt from liability for false and defamatory publications.</p> <p>10. Privileged Communications, if false and made with malice in fact, that is if express malice he shown or such gross disregard of the rights of the injured party as will he equivalent, are actionable.</p> <p>11. Communications not Privileged, if false, may he presumed to he of malice from their falsehood.</p>

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

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

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

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

<p>Appeal from Van Zandt. Tried below before Hon. F. A. Williams.</p>

Tried below before Hon. Anson Rainey. This was a proceeding to settle and determine the respective interests of the widow and children—children of two marriages—of S. A. Clift, in the real estate in Waxahachie, Texas, which was declared, in Clift v. Kaufman & Runge, 60 Texas, 64, to be exempt property, and was after-wards set apart to the widow and children as such.

<p>Appeal from Hunt. Tried below before Hon. W. C. Jones, Special District Judge.</p>

<p>1. Ordinary Laws of Nature.—Railroad hands, as all other employes, are chargeable with knowledge of the ordinary laws of nature. Weight and its effects in an instrument used by employes, when manifest, must he recognized, and an employe in possession of knowledge of the material and construction of an implement used in his employ can not complain that the ordinary laws of physics were not explained to him by his employer.</p> <p>2. Sheffield Hand Car.—It being shown that the Sheffield hand car is strong and well fitted for the purpose used, its mere want of weight as compared with others in use is not an obstacle to its introduction.</p> <p>3. Novelty.—That an instrument is new and requires a different kind of management on part of persons using it is no reason against its introduction, and an employe using such new machinery is charged with knowledge of its visible qualities and the ordinary working or effect of such qualities.</p>

<p>1. Call of Cases upon Jury Docket.—The statutes now in force recognize the power of the court to require a cause to he tried out of its order upon the jury docket without reference to the consent of the parties. The exercise of this power may be revised on appeal, but it is incumbent on the party seeking a revision of the action of the court in this respect to show that he was injured by the ruling.</p> <p>2. Continuance—Diligence.—It was not error to overrule a first application for continuance only stating as diligence that a commission had been obtained to take the testimony of the absent witnesses and sent to the general attorneys of the railroad company, the applicant, and not stating the time necessary to obtain the testimony.</p> <p>3. Gross Negligence—Exemplary Damages.—Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the rights or welfare of the person or persons to be affected thereby. It was error therefore for the court to define gross negligence as a total want of ordinary care.</p> <p>4. Connection between the Neglect and Injury.—It is clear that no individual can become entitled to recover damages, actual or exemplary, from a railway company for any act or omission unless from it he receives injury. It was therefore error to charge the jury that “if they believed from the evidence that the railroad was out of repair and so had been for a long time, if this was lmown or ought to have been known to the railway company, even though they may have believed that the road at the place where the injury occurred was only slightly defective.” The charge is erroneous in not specifying the extent to which the road must have been out of repair to authorize exemplary damages.</p> <p>5. Same.—The charge was erroneous in that it authorized exemplary damages on account of the general had condition of the road without reference to whether the injury resulted therefrom.</p> <p>6. Damages.—See facts where a verdict for $4000 actual damages was sustained.</p>

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

<p>1. Liability of Common Carrier of Goods.—Such liability continues from the commencement of the trip until the goods are delivered to the consignee at the point of destination. Rev. Stats., art. 281.</p> <p>2. Same—Delivery by Carrier.—So long as possession remains with the carrier there can be no delivery, but in case of railway transportation the character in which the carrier holds after freight has been safely taken from its cars and deposited on platform or in warehouse may be affected by notice to the consignee of its arrival at its destination.</p> <p>3. Same—Statute on Subject.—The statute (Rev. Stats., art. 282) provides: “If the carrier at the point of destination shall use due diligence to notify the consignee, and the goods are not taken by the consignee and have in consequence to be stored in the depots or warehouses of the common carriers, they shall thereafter only be liable as warehousemen.” This indicates the duty of the carrier to use diligence to notify the consignee that the cars are at the place where they are to be unloaded. In absence of any effort to give such notice liability would continue.</p> <p>4. Same.—Under the statutes in force in this State the liability of the carrier continues until the thing carried is actually delivered to the owner or consignee thereof at such place as the nature of the carriage requires the delivery to be made, or at some other that may be agreed upon, unless due diligence he used to notify the owner that it has arrived at its place of destination.</p>

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

<p>Appeal from Caldwell. Tried below before Hon. H. Teichmneller.</p>

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

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

<p>1. Charge Must Submit the Issues.—Plaintiffs claimed as heirs of one Solomon Keel to whom the land was patented, and they proved heirship of one Dr. Solomon Keel, and that he had located the land and had obtained a patent. The defendant proved the existence of another Solomon Keel, residing in Peters’ Colony, under which the certificate was issued, ■with testimony that the land certificate was issued to him and that the Dr. Solomon did not reside in the colony. Held, Error to refuse to submit to the jury the issue as to the identity of the person to whom the certificate was issued.</p> <p>2. Land Certificate and Patent.—It would not affect the ownership -of the land granted to the owner of the certificate for another of the same name to locate the land by virtue of the certificate and to obtain the patent.</p>

<p>1. Presumption—Heirs—Wills.—The law presumes that a person proved to be dead left an heir or heirs. No such presumption obtains as to the existence of a will.</p> <p>2. Foreign Probate Proceedings.—It is well recognized that a will though probated elsewhere is not admissible in evidence in the courts of this State until probated within the State.</p> <p>3. Same—Notice.—Such foreign probate proceedings are not chargeable as notice upon the purchaser of lands affected thereby within the State.</p> <p>4. Notice—Inquiry.—A purchaser is chargeable with notice of what he might have known upon reasonable inquiry suggested by his actual knowledge. But where negligence or carefulness of investigation or inquiry would have reached a like failure no presumption should follow from the presence or absence of either.</p> <p>5. Same—Bona Fide Purchaser.—The probate of a will in Tennessee will not affect a bona fide purchaser of land affected by such will made in Texas from an heir and before the will was probated in Texas.</p> <p>6. Registration of Foreign Probate Proceedings.—See statutes on subject collated.</p>

<p>1. Attachment—Affidavit.—In interpreting an affidavit for attachment it is not permitted to resort to presumptions as to what the affiant intended to swear, but the court must be governed by what he has sworn as shown by the language employed.</p> <p>2. Same.—Where there are two defendants and an attachment is sued out against the property of both the attachment is fatally defective when it fails to state that “the attachment is not sued out for the purpose of injuring or harrassing the defendants.” The use in such case of the word “ defendant ” instead of defendants is fatal.</p>

Tried below before Hon. Anson Bainey. There is no question upon the pleadings. The conclusions of fact found by the court are as follows: “1. C. N. Ousley & Co. being indebted to plaintiffs, writs of attachment were sued out and same levied on the property in controversy, which was claimed by the defendant, Watson. “2.

<p>1. Deed.—The doctrine heretofore announced "by the Supreme Court of Texas, that a deed to land which purports to convey immediately the title, but which reserves expressly a lien to secure the payment of purchase money, stands upon the same ground as a mere agreement to convey on the payment of purchase money at a future time, adhered to.</p> <p>2. Deed—Executory Contract.—In an executory contract the vendor Avlien the purchaser makes default in paymant may elect to cancel the contract and recoA'er the land or enforce the payment of purchase money. Until default the equitable title is in the A'endee, and the vendor’s right is to receive the piurchase money which at common laAV Avent to his executor as personal assets and not to the heir. The election of remedies once made by a vendor after default in payment binds him unless the vendee shall by some distinct act repudiate the agreement.</p> <p>3. Executory Contracts—-Wills.—A testator who had-sold land and sued the defaulting purchaser on his purchase money note died and made no reference in his will either to the land or unpaid purchase money. Afterward suit was brought by the executor, Avho also claimed as an heir, to annul the executory contract of sale for default in payment of purchase money and to recover the land. Reid:</p> <p>1. The claim existed only as a claim for money, which at common IaAV, in the absence of a will, would have vested in his personal representatives and not in his heirs. Under a clause in the will which gave to a dewsee “all lands not otherwise disposed of ” no right to the land can be asserted.</p> <p>2. A clause in the Avill which bequeathed to a devisee “ all the money I have or may have at my death, or money arising to me, ” included not only cash on hand at the devisor’s death, but all money collectable by his executor after his death on existing claims.</p> <p>3. The testator having elected to proceed by suit for the money, the heir could not claim a rescission of the contract and recover the land.</p> <p>4. There being no controversy as to the facts the court should have construed the language of the will in the charge.</p>

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

Tried below before Hon. Felix J. McCord. Suit by appellee for $35,000 actual and $20,000 exemplary damages for personal injuries received by him on December 26, 1887, in a wreck of a passenger train on the I. & G. N. Railroad about two and one-half miles north of Troupe, and to set aside because of his alleged insanity a release of damages executed by him on January 6, 1888, in consideration of $500 paid by appellants.

<p>1. Quo Warranto.—The District Court under the Constitution does not have jurisdiction to try the right to an office unless the office, the matter in controversy, exceeds five hundred dollars in value.</p> <p>2. Forfeiture.—Forfeiture is where a person loses some right in consequence of having done or omitted to do some act, and in the case where the disqualification to take the office is set up it seems that the District Court could not entertain the case under the power to hear “all suits in behalf of the State to recover forfeitures,” etc.</p> <p>3. Statute Construed.—The Act of July 9, 1879, can not be held as effective to enlarge the power given the District Courts by the Constitution.</p> <p>4. Power of City Council.—It seems that the power of the city council to pass upon the election and qualification of its members is conclusive when exercised.</p>

<p>1. Boundary Lines.—Where the acts and purpose of the surveyor are shown to locate a line which is not marked, such line will be recognized against course and distances from other corners.</p> <p>2. Improvements in Good Faith.—A defendant claiming compensation for improvements upon the land sued for must show his possession to have been in good faith. This is not done where, he claims to be upon a Aracancy between two surveys, and his Own deed, under which the plaintiff claims, calls for a common corner and a consequent common line between the two surveys between which the vacancy is claimed.</p> <p>3. Good Faith—Notice.—The defendant is chargeable with the inevitable result of facts within his knowledge as to the boundary lines affecting his right to possession. A neglect of care to determine the locality of lines so indicated is not consistent with good faith.</p>

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

Tried below before Hon. Felix J. McCord. This is an action to supply a lost deed alleged to have been executed by one Amanda Johnson a short time before her death. Her heirs were made defendants. There is no question upon the pleadings and they are sufficiently given in the opinion.

<p>Appeal from Lamar. Tried below before Hon. A. M. Taylor, Special District Judge appointed by the Governor in place of Hon. D. H. Scott, disqualified.</p>

Tried below before Hon. J. M. Hall. This is an appeal from a judgment based upon a title acquired by the ten years statute of limitations. Suit was filed June 21, 1883. The plaintiffs, who are appellees, to make out the ten years adverse possession sought to tack their possession to that of their vendor. It is shown that in 1863 Samuel Nelson planted a hedge upon what he considered the west line of his land.

<p>Appeal from Eecl Eiver. Tried below before Hon. E. D. McClellan.</p>

Tried below before Hon. George N. Aldredge. Appellants, F. and E. Hope, filed their written petition in the County Court of Dallas County on the 3d day of January, 1887, for the probate of the last will of Martin Meman, deceased. The petition is in the usual form and complies with the requirements of the law in such cases.

Tried below before Hon. Frank Willis. The following agreement was made for the purpose of advancing this-cause in the Supreme Court, which fully states the case: “It is agreed that the only issues to be considered b.y the court in this case are questions of law, viz.: “First.

<p>Appeal from Gregg. Tried below before Hon. William Steadman, Special District Judge.</p>

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

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

<p>1. Affirmance on Certificate.—The object of the statute which permits judgments to be affirmed on certificates when the party whose duty it is to file the transcript fails to do so, is to enable the appellee or defendant in error to protect himself against unnecessary delay. Hence a motion to set aside such a judgment on the ground of “unavoidable absence and other engagements” of counsel, when the cause of the absence and the character of the engagements are not shown, will not be sustained, especially when the transcript is not filed after affirmance rnd there is no proposition to submit the cause for decision during the term.</p>

Tried below before Hon. J. M. Hall. This is an appeal from a judgment final for the defendant-on demurrer to the petition. The petition set up in detail the facts relied upon for title by the plaintiff and the facts constituting the title of the defendant. The plaintiff claimed under proceedings enforcing to judgment and sale a supposed lien under facts set out in the head notes. The defendant was shown to claim under a valid execution sale of the property.

<p>1. Administration—Bight of Action—Judgment.—A judgment rendered in another State against an administrator who was appointed in such State confers no light of action against an administrator of the estate appointed by a Texas court, unless it be shown that there are assets in the hands of the Texas administrator which were assets in the hands of the administrator formerly appointed in such other State.</p> <p>2. Limitation.—The laws of limitation of Texas apply in suits brought in her courts on contracts executed between parties in other States, and not the statutes of limitation applicable in the State in which the contract was made.</p>

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

<p>1. Charge—Issue not made in the Evidence.—Where there is no evidence to support an issue raised in the pleading it is error to submit it to the jury.</p> <p>2. Same—-Release.—Where in a suit for damages against a railway company the defendant pleaded a release which was produced upon the trial and to which the plaintiff had replied that it had been obtained from him when too drunk to know what he was doing, and without his having opportunity of knowing its contents. On the trial it was shown that the release was signed after deliberation and when apparently sober, plaintiff not denying his signature, but testifying to not remembering signing it; held, error to submit to the jury the replication of drunkenness or of his signing it without having had an opportunity to understand its terms.</p>

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

Tried below before Hon. John Bailey, Special District Judge. This suit was instituted in the District Court of El Paso County on September 25, 1882, by appellant, to recover of the appgllge Keating a certain tract known as “ White's Ranch,” lying in said county about eight miles above the city of El Paso, and containing three hundred and twenty acres.

Tried below before Hon. W. A. Blackburn. This is an appeal from a judgment in favor of appellees, holding the title to the Maximo Morena eleven league grant and establishing the north boundary of the grant upon the claim that the west line be extended to its full length as called for in the grant.

<p>1. Trespass to Try Title—After-acquired Title.—The plaintiff in trespass to try title must recover upon the title owned by him at the institution of his suit. An after-acquired- title, if relied upon, should be alleged by amended petition. In absence of such amendment it was not error to exclude evidence offered by plaintiff of a title acquired pending the suit.</p> <p>2. Defense against Legal Title.—To defend against a legal title in plaintiff under a parol executed contract for the acquisition of the land by the defendant made with an agent of the holder of the legal title, it devolves upon the defendant to show that the agent making the contract had the power to make it, the terms of the contract, and compliance with it.</p> <p>3. Statute Construed.—Revised Statutes, Article 1370—Mew Trials.—Article 1370, Revised Statutes, provides: “Not more than tAvo new trials shall be granted to either party in the same case except where the jury have been guilty of some misconduct or have erred in matter of law.” This is understood to mean that where the court has committed no error and the jury have followed the law so given and have not been guilty of any misconduct, no more than two new trials can be granted to either party; but so long as the trial court commits errors in its rulings upon the trial, or in giving the law to the jury, or the jury disregards the law when correctly given and the trial court on proper motion refuses to grant a new trial, the injured party on appeal will be protected against any errors prejudicial to his rights by having the judgment reversed and obtaining a new trial.</p>

Tried below before Hon. A. W. Moursund. Mrs. Marie Schumacher and husband sued in trespass to try title J. O. Johnson, D. W. Parrisher, and W. O. Hartley, for survey No. 111, in district 10, San Saba County, and in another action sued the same parties and also A. McGill, J. W. Williams, Dick Callan, and Katy Williams for section No. 110 in the same district. Mrs. Schumacher claimed the land as her separate property. The suits were consolidated.

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

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

<p>Appeal from Bexar. Tried below before Hon. Geo. II. Hoonan.</p>

<p>1. Chattel Mortgage—Parol Agreement.—C. & A. being insolvent agreed, to execute deeds of trust in favor of their principal creditors, agreeing upon the order of preference. Before the execution of any of the trust deeds C. & A. change their mind as to the preference and execute a deed of trust to secure another, which deed was placed upon record before any of the others which were duly executed a few hours later. Held:</p> <p>1. The parol agreement to give a preference lien upon cattle in the range did not affect the rights of the holder of the chattel mortgage first executed and placed on record.</p> <p>2. The xearol agreement being without consideration no damages could be recovered for its breach.</p> <p>3. Chattel mortgages are governed by statute and a parol lien unaccompanied by possession does not affect the property, and hence notice of it would not affect a subsequent incumbrance.</p> <p>2. Instruments Executed at Same Time.—Two debtors owing the same creditor, one a security for the other on part of the indebtedness, at the same time execute chattel mortgages in favor of the creditor. It is shown that the debt upon which one is surety is secured by the mortgage made by the principal debtor. It is shown also that such security is valuable and probably ample. Funds of the security come into the hands of the creditor. Held, that the creditor must exhaust the security held from the principal before he can apply as matter of right the money of the surety to the debt</p> <p>3. Application of Payments.—When money of a firm was paid with reference to the release of a mortgage held by the creditor such purpose is a sufficient designation of the payment to require that the money be applied upon the secured debt.</p>

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

<p>1. Held—Holding.—As a technical term held embraces two ideas,, that of actual possession of some object of dominion or property, and that of being invested with the legal title or right to hold or claim such possession.</p> <p>2. Contract for the Hew Capitol.—Under the contract for building the new capitol the contractor did not take actual possession nor had he the legal or equitable title to the lands until they should be earned in the work of construction of the building.</p> <p>£5. Same—Lease.—Under the supplemental contract and for additional work the unearned lands were leased to the contractor. Whether such lease was legal or not the holding of these unearned lands was under the lease.</p> <p>4. Lands held under Contract of Purchase from the State..—The laws for the sale of the public school lands, etc., provided for an actual holding of the lands so purchased, on terms stipulated in the contracts of sale.</p> <p>5 Same—Taxation of the Capitol Lands.—The unearned lands leased to the contractor were not subject to taxation as lands held under contract of purchase from the State.</p>

Tried below before Hon. P. E. Piner. The appellant (plaintiff below) sued appellee (defendant below) to recover a sum of money which the former had paid as surety for the latter.

<p>"Will.—A testator directed in his will that title to a tract of land to be purchased after his death should be vested in a trustee, “in trust for the sole and .separate use of my said sister Ann Warren Gee, whereon as long as she may see fit to reside, she-shall have the absolute and sole control, free from any control of James H. Gee or any other husband that she the said Ann Warren Gee may hereafter have. * * "s" Upon the death of the said Ann it is my will that her daughters who may be unmarried at the time of her said death shall have the aforesaid tract of land * * to have, hold, use, and enjoy to their sole use, free from any control of any husband that either of them may hereafter have; and in the event that there should be at the time of the death of the said Ann no unmarried daughter of hers, then the aforesaid lands are to-be equally divided between all of her daughters, to be by them held, used, and enjoyed for their sole and separate use, free from the control of any husband that'any of them may have or may thereafter have.” Held:</p> <p>1. No. rights could be asserted to the land under the will by the children of a daughter of a testator who had died prior to the date of the testator’s decease.</p> <p>2. The intention of the testator was that such of the daughters of his sister as remained unmarried at the date of her death should take title to the land; if at that time-none of them were then unmarried, then title should vest in those then living and married.</p>

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

Tried below before Hon. J. Y. Hogsett> special district judge, elected by the bar upon the illness of the district judge.

Tried below before Hon. A. S. Walker. This suit was brought by the appellee against the appellant, the City of Austin, in the District Court of Travis County on the 20th day of July, 1885, to recover damages for personal injuries alleged to have been sustained by plaintiff by being overturned while attempting to drive his spring wagon across a ditch or drain at the intersection of Mesquite and Trinity Streets, in the city of Austin, on the 6th day of December, 1884.

<p>Appeal from Travis. Tried below before Hon. John 0. Townes.</p>

<p>Appeal from Liberty. Tried below before Hon. J. F. Lanier, special district judge.</p> <p>This is the third appeal. See 58 Texas, 422, and 67 Texas, 245.</p>

Tried below before Hon. N. G. Kittrell. Smith brought suit to enjoin the city of Navasota from opening up-the street or alley way between blocks 7 and 8 of Nolan’s addition to the said city.

<p>1. Community Property, Sale of.—Land during the existence of the relation of husband and wife was deeded to the wife upon recited valuable consideration; the wife by a power of attorney authorized the husband to sell the land. In her lifetime the husband sold the land, giving his own warranty and signing his wife’s name and his own as her attorney to the need. Held, (1) in a suit by the heirs of the wife for the land that they could not recover; (2) the property being community the heirs were estopped by the act of the husband.</p> <p>2. Estoppel.—In an action of trespass to try title under the plea not guilty the defendant may introduce evidence to title by estoppel.</p>

Tried below before Hon. Edwin Hobby. November 29, 1884, Dow Bros., the appellees, brought suit against appellant Fisher and others to recover $250 and interest on an obligation made September 1, 1883, and due September 1, 1884, by Fisher to Mrs. H. E. Moore or order.

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

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

Tried below before Hon. Geo. McCormick. This is an appeal from a judgment for §956 actual and §4000 exemplary damages rendered in favor of Duke, the appellee. The judgment for exemplary damages was against appellants, Mayer, Kahn & Freiberg, the plaintiffs, and suing out the attachment.

Error from Galveston. Tried below before Hon. Wm. H. Stewart. This suit was instituted March 26, 1886, by the plaintiff in error against the defendant to recover for the use and occupation by the latter of block of lots Ho. 640, in the City of Galveston, belonging to said plaintiff, at the rate of $100 per month therefor from July 1, 1883, hitherto.

<p>1. Judgment—Petition—Law in 1847.—In 1847 the law allowed the petition to he referred to in actions of trespass to try title as well as in other suits, to aid the description of the land recovered furnished by the judgment.</p> <p>2. Same—Lost Petition.—In case of a judgment dependent for certainty of description upon the petition, if the petition he lost it is to that extent equivalent to a loss of the judgment, and it becomes proper to supply it by proof or presumption, as of the entire judgment if lost.</p> <p>3. Presumption of Lost Judgment.—A sheriff’s deed describing the land was made and recorded in 1847. A judgment entry of the same court of the trial, of date May 25, 1847, referred to in the deed was read, being a foreclosure decree, and referring to the petition for description of the land, with the entry from execution docket of issuance and return of the order of sale. It was shown that search was made by plaintiff’s attorney and the clerk of the court for the petition. A receipt was found for the papers dated many years ago by a firm of lawyers, one in California, and the other ignorant of the existence of the papers. Held: That the loss or destruction of the petitition (part of the judgment) was sufficiently shown, and in the absence of the record sufficiently accounted for, and that the sheriff’s deed was admissible in evidence as an ancient instrument.</p> <p>4. Charge Upon Paper Title.—A charge to the jury that if they find the facts relied upon as title by a party (enumerating the instruments) they should find for the party is proper, although not distinctly informing the jury of the legal effect of the several instruments in evidence.</p>

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

Tried below before Hon. I. B. McFarland. Under appropriate pleadings Mrs. Simon, the plaintiff below, introduced in evidence a deed from her husband to her for the lot in controversy, made February 16, 1885, and duly recorded the same day.

<p>Disqualification of the County Judge.—An appealed case in the County Court was transferred to the District Court on account of the disqualification of the county judge. A trial was had, resulting in a judgment for the defendant. In a motion for new trial it was urged that the county judge in fact was not disqualified. Held:</p> <p>1. The county judge in the first place was the judge as to his disqualification.</p> <p>2. Doubtful whether the matter can he tried de novo as to the disqualification in the District Court.</p> <p>3. In absence of a bill of exception or other showing in the record negativing the disqualification the action of the District Court in hearing the case on appeal will not be revised.</p>

<p>1. Pleading—Evidence.—An instrument charged in a pleading to have been executed by the other party or his authority is admissible in evidence without proof of its execution unless the act or the power of the agent be denied under oath. This rule obtains also to an instrument which does not on its face purport to be the act of the party on whose behalf it is alleged to have been executed. 61 Texas, 536.</p> <p>2. Depositions.—Where depositions are taken by one party and no cross-interrogatories are filed the statutory rule is that the party not crossing the interrogatories can not read the depositions over the objections of the party taking them. Eev. Stats., art. 2233.</p> <p>3. Attachment—Certainty in Levy upon Land.—A levy upon a tract of land subdivided into town lots is insufficient unless the separate lots levied upon are specified in the return upon the writ.</p>

Tried below before Hon. H. C. Pleasants. This was an application by Miss Emma J. Nicholas, appellee, to probate an instrument dated in 1873, which she alleged to be the last will of H. W. Hawes, deceased, filed in the County Court of Calhoun County.

<p>1. Identity of Grantee Named in Deed.—Plaintiffs introduced a deed and proved that'they were heirs of a party of same name who had resided in Texas at the ■date of the deed, hut who had subsequently died in West Virginia. Held, the sufficiency of proof as to the identity of the intestate with the grantee named in the deed -can not he raised on appeal.</p> <p>2. Limitation—Break in Possession.-—A conveyance of a part of a tract of which adverse possession was held before the conveyance and not followed by possession of the tract sold breaks the continuity of possession as to that sold.</p> <p>3. Improvements—Good Faith Possession.—Defendant claiming the value of improvements suggested “that he and P. H. Faison whose estate and under whom he claims the lands described in plaintiff’s petition have had adverse possession of the same in good faith since the nineteenth day of August, 1875, about twelve years next before the commencement of this suit, and that he has made permanent and valuable improvements on same” of the value of $784 (giving items). There was no exception to the claim. On tire trial defendant offered to prove by himself and two other witnesses “the value of the improvements he had made upon the land occupied by him * * * and that they were placed on the land in good faith. ” The testimony was. excluded upon the objection that no sufficient predicate had been laid by the pleadings, of the defendant. Held:</p> <p>1. The suggestion of improvements not having been excepted to, it was error to exclude testimony to support the claim; but,</p> <p>2. The question of good faith is one of fact to be supported by testimony, and as the bill of exceptions failed to show the exclusion of any testimony to such fact this court can not reverse by reason of refusing the testimony of the witnesses “that the improvements were placed on the land in good faith.”</p> <p>4. Improvements in Good Faith__The existence of good faith is a fact to be established by evidence of other facts tending to show that the person asserting it at the time he made the improvements on the land believed himself to be its owner, and had grounds for such belief such as would ordinarily be satisfactory to one unlearned in the law but of ordinary intelligence, after having made such inquiry as the law presumes every person desiring to buy land would make, and as an ordinarily prudent man for Ms own protection ought to make.</p>

<p>1. Venue—Injunction—Statute Construed.—Subdivision 15 of article 1198, Revised Statutes, providing “Where suit is brought to enjoin the execution of a judgment, etc., the suit shall be brought in the county in which such judgment was rendered;” and article 2880, “Writs of injunction granted to stay, etc., execution on a judgment shall be returnable to * * * the county where such judgment was rendered,” apply to injunctions restraining the execution of the judgments, and not to an injunction restraining the sale of property claimed to be exempt from execution.</p> <p>2. Same.—An injunction to restrain the sale of land exempt as homestead may be granted and heard in the county in which the land is situated.</p> <p>3. Equity.—The petition alleged that complainants had bought the land while it was the homestead of the defendant against whom the judgment lien was about to be enforced; that it was bought for the purpose of sale; that if sold under the execution its market value would be injured, and that the parties seeking to enforce the sale are insolvent. Held, the allegations contained sufficient ground for injunction.</p> <p>4. Homestead.—A judgment was duly recorded May 17, 1883. It appeared that active preparations were made and the intention expressed to occupy and use the property as a homestead by the defendant in the execution as early as December, 1882, or January, 1883, which was followed up by an actual residence upon and use of it as a homestead in connection with his business from June, 1883, until his sale of it in January, 1886. Held, that such sale was not subject to the judgment lien.</p>

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

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

<p>1. Close of Administration.—Without a statute or a well established rule to that effect we would be loath to hold that mere lapse of time without action by the court in an administration would relieve the administrator from being called to account in the Probate Court. •</p> <p>2. Administrator a Trustee.—An administrator is a trustee charged with the management of a trust estate under the rules of the Probate Court. He ought not to be allowed to plead his own laches as a bar to the jurisdiction of the court to compel him to make settlement of the trust estate.</p> <p>3. Non-Action in Administration.—Letters of administration were granted in 1862. The executor filed bond. The bond, and inventory if any, were lost. In 1879 a motion was made by the legatees to compel an exhibit and account. Reid, that such motion was not barred by the lapse of time or non-action in the Probate Court, and the action of the District Court (to which the motion had been taken by certiorari) dismissing the proceedings for want of jurisdiction of the Probate Court to compel an exhibit and settlement held error.</p> <p>4. Acts of Administration. —Where an executor qualified as such his acts in collecting rent for the property of the estate are acts in the administration.</p> <p>5. Cases Discussed.—Murphy v. Menard, 14 Texas, 62; Portis v. Cummings, 14 Texas, 189; and Marks v. Hill, 46 Texas, 850.</p>

<p>Appeal from Galveston. Tried below before Hon. S. W. Jones, special district judge.</p>

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

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

<p>1. Declarations of Party not in Possession.—Declarations of a party against Ms interest and against Ms title to land after he had parted with his interest are inadmissible against one claiming the land through him. Where the admissions are important and upon a material issue on the trial their admission is ground for reversal.</p> <p>2. Stale Demand—Legal Title.—Where the plaintiff in trespass to try title exhibits a legal title the defense of stale demand is not recognized.</p> <p>3. Grantor Resuming Possession of Land.—If after executing a deed for land the grantor resumes possession, he does not hold under any title or color of title, and Ms right to acquire title by limitation of ten years would be limited to the amount prescribed by the statutes upon that subject—640 acres before and 160 acres subsequent to the enactment of the Devised Statutes.</p> <p>4. Description in Deed.-—A deed for “300 acres of land including improvements on Pophers Creek,” where there is evidence showing two or more improvements upon the creek, does not sufficiently describe any land as a basis for recovery.</p> <p>5. Fraudulent Sale—Stale Demand—After a lapse of time from 1838 to 1883 an attack against a deed for fraudulent representations inducing the grantor to execute: it would be a stale demand, nor would the right of action to avoid the deed be preserved by the mere re-entry and temporary possession by the grantor.</p> <p>6. Same—Pleading.—It seems however where fraud or where an equitable claim to the land is set up by the defendant to wMch the defense of stale demand applies, that plaintiff should plead m replication that the attack was stale.</p>

Tried below before Hon. H. Clay Pleasants. This is an appeal from a judgment of the District Court refusing a, writ of mandamus at suit of appellant. There is no question upon the-pleadings.

<p>1. School Property Exempt from Taxation.—By statute all buildings used exclusively and owned by persons or associations of persons for school purposes shall not be subject to taxation. Property is used for such purposes when the owners use it solely for the purpose of keeping a school upon it and receive no direct profit from it. Where therefore premises are owned by four persons, three of whom occupy the place and use it for keeping a school upon it, the other joint owner taking no profit, the premises—being buildings and lots in the city of Austin—are not subject to taxation.</p> <p>2. Res Adjudicata.—That the parents of the plaintiffs made an ineffectual attempt to relieve the property from taxation for a former year does not estop the plaintiffs from claiming exemption from taxation of the same property under different circumstances.</p> <p>3. Case Approved.—Cassiano v. Ursuline Academy, 64 Texas, 674.</p>

<p>1. Illegal Assessment—Case Followed.—The opinion in County of Galveston, v. Galveston Gas Company followed, ante 509.</p> <p>2. Wharf Privileges.—The assessment of “wharf privileges,” it being a subject of taxation, by a tax assessor supplemental to the property rendered by the owner for taxation and received by the officers charged with the duty of assessment, is legal, it not having been actually rendered for assessment by the owner.</p>

<p>1. Liability of City for Defective Sidewalks.—^In a suit by a special policeman for damages against the city in whose employ he was when injured by a defective sidewalk, when the plaintiff testified that he did not know of the defect, it will not be presumed that he had the same or equal knowledge of it with the city nor that the defect was patent. A verdict for the plaintiff will not be set aside as against a charge that if the jury find that plaintiff was in the employ of the city and had equal means of knowing the defect and if the defect was patent they should find for the defendant.</p> <p>2. Policeman—Duty and Risks.—Policemen do not assume risks incident to defective sidewalks and highways in the city where employed, and do not stand in the same relation to the city that the employes of a railroad company or other private corporations do to their employers and are not subject to the restricted rights of such relations.</p> <p>3. Contributory Negligence.—Where the injured plaintiff testified to his ignorance of the defect and to the care he exercised when injured the verdict in his favor will not be set aside.</p> <p>4. Reasons of Judge for Refusing a New Trial.—The action of the court in refusing a motion for a new trial is revised on appeal, not the reasons upon which the action was based.</p> <p>5. Same.—The trial judge gave as a reason for his decision upon a question doubtful in his mind that the defendant could appeal without bond and had plenty of money. Held, that such action though improper was not subject to revision.</p>

<p>1. Mortgage—Equity of Redemption—Estoppel.—Smith claimed title to the 'Talley league of land under an execution sale made September, 1881. Willis claimed under a decree and foreclosure sale under a mortgage made by Epperson, the common source of title, for half interest in the league (the mortgage conveyed a half interest), decree being of May, 1880. Willis also claimed under a sale under a decree against Epperson foreclosing the vendor’s hen for five-sixths of the tract. The sales under which Willis claimed were made after Smith’s purchase. The decree foreclosing the vendor’s lien recited that Epperson (who bought jointly with one Wright) had paid one-sixth of the purchase money and thereby had discharged the hen to that extent.</p> <p> Held: </p> <p>1. The court erred in refusing instructions as to the legal effect of the mortgage conveying one-half interest in the land with the decree enforcing it, and of the recitals in ■.the decree foreclosing the vendor’s hen upon five-sixths of the land as an estoppel.</p> <p>2. That the plaintiff in buying the equity of redemption took only what Epperson or his estate had—the right to redeem.</p> <p>3. That Smith was estopped by the -recitals in his title affecting the Epperson title, which he held.</p> <p>2. Fraud—Evidence—Practice.—In a suit for recovery of land the plaintiff by pleading and evidence attacked the title of the defendant for fraud in certain judicial sales under which he held. The plaintiff introduced in evidence a mortgage made by executors, defendants in the executions under whom both plaintiff and defendant claimed. In rebuttal defendant offered the mortgage, not as basis of title but to rebut the charge of fraud. Held, that the exclusion for such purpose was error; the mortgage having been read by one party for any purpose was properly testimony in the case for whatever effect the jury might give it upon the issue of fraud.</p>

Tried below before Hon. J. R. Dickinson, special district judge. This is an appeal from a judgment and decree in favor of appellee establishing a trust in his favor in a house and lot in the town of Waco. Suit was filed February 23, 1885. The petition alleged that January 19, 1882, the house and lot, then the property of plaintiff, was advertised for sale by-Rogers, a trustee under a trust deed.

<p>1. Homestead—Evidence.—A defendant in a suit involving his homestead right in urban property which had been actually and continuously occupied by himself and family as a homestead from, the year 1872 until the institution of the suit in 1882, can not be affected in his homestead rights by evidence that he had executed and placed on record a designation of his homestead on other property which he had never lived on as a home. Such evidence of written designation should have been excluded. The actual occupancy is a conclusive designation of homestead against which no declaration to the contrary can be considered.</p> <p>2. Same—Statute Construed.—Articles 2843 and 2866, which provide a method where a rural homestead is a part of a larger tract of land whereby the homestead may be designated and the excess subject to execution may be identified, have no application to homesteads in towns and cities.</p>

<p>1. Practice—Setting Cases for Trial.—Without tlie consent of the district judge neither party nor their attorneys can set a case for trial upon a day of the term other than upon its regular call upon the docket.</p> <p>2. Practice—Mistake.—An agreement in terms to set a case upon a day other than on its regular call was shown, but without the consent of the judge of the court, being acted upon by counsel of one of the parties, held, that it was a sufficient excuse for the absence of the counsel, and where the attendance of the client was prevented from sickness his own absence upon the trial nor his failure to procure other counsel will prevent the granting of a new trial upon a motion showing merits.</p> <p>3. Motion for New Trial.—While accounting for the absence of his counsel and r.self at the trial the motion must further show a meritorious cause of action or defense Iby specific allegations of the facts under oath.</p>

<p>1. Libel.—Proceedings in courts of justice, legislative proceedings, and petitions and memorials to a Legislature are privileged and can not be made the basis of a suit for libel.</p> <p>2. Same — Privileged Communications. — It is immaterial whether a charge made in the course of legal or judicial proceedings he true or false; being thus made it is absolutely privileged, and the question as to whether it was false or malicious can not be made the subject of inquiry in an action for libel. Though a civil court may have no-jurisdiction of the subject matter contained in a plea filed therein in a cause pending,, and which is alleged to be libelous, the privilege is absolute and no action for libel can be maintained.</p> <p>3. Same—Pleading.—The very language relied on as libelous must be set out in a petition for libel, and not its substance and meaning.</p> <p>4. Same.—See allegations in a count upon a newspaper publication of the judicial proceedings held to be defective in not specifically setting out the alleged libelous words-nor in alleging damages caused.</p>

<p>1. Deed—Power of Attorney.—A deed made by one properly authorized by power to convey the property will pass the title, although it may declare by its recitals, that it was executed by virtue of a power contained in some other instrument which is invalid.</p> <p>2. Deed—Fraud.—A deed after being prepared and read and before signature was substituted by the grantee with another deed unsigned and conveying much more land. This was done during the temporary absence of the grantor from the room where the deed was written, and was done by the grantee, who thus fraudulently obtained both the signature and acknowledgment. Held, that as between the parties to the transaction the signing and acknowledgment of the substituted paper did not malte a contract. Through mistake on the part of the grantor and fraud of the grantee the minds of the parties did not meet and concur in the terms of the paper signed so as to constitute a legal agreement. But if the negligence of the vendor contributes to the perpetration of such a fraud he is thereby estopped from setting it up as against an innocent third party who in ignorance of the fraud has paid value to the apparent vendee therefor.</p> <p>3. Power of Attorney.—No presumption from lapse of time exists that a power of attorney once legally executed and acknowledged has been revoked.</p> <p>4. Innocent Purchaser.—An innocent purchaser who has paid value for land to-one acting under power of attorney, and who had already exercised his power by selling the land to another who neither entered into possession nor had his deed recorded, takes title if he purchased with no notice of the prior unrecorded deed.</p>

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

Tried below before Hon. W. H. Ford. In addition to the facts stated in the opinion the following among other things was in evidence, viz.: W. W. Salter testified that the engine was switching at Ogden Station and had backed up going west when the deceased was going down the track. The deceased stopped, stooped over, and seemed to be tying his shoe.

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

Tried below before Hon. W. H. Ford. This is an appeal from a judgment for the defendant in a suit by ¡the appellants for damages against the appellee for negligently causing the death of Clarence B. Berry, an employe, by the negligence of an incompetent coemploye.

<p>Appeal from San Jacinto. Tried below before Hon. L. B. Hightower.</p>

<p>1. Limitation.—In a suit brought by husband and wife as plaintiffs on a cause of action in favor of the community interests of both, though the wife be an improper party, yet if her name be stricken from the case as plaintiff and judgment be sought by the husband alone on the same cause of action, limitation against the action was stopped at the date of filing the original petition.</p> <p>2. Pleading—Contributory Negligence.—In an action for damages for injury caused by the negligence of the defendant, if contributory negligence be relied on as a defense it must be pleaded, unless it appears from the pleading of the plaintiff.</p> <p>3. Negligence.—A railway company is under obligation as a carrier to provide proper facilities for passengers to enter its passenger cars at its regular stations. Failing in this its defense of contributory negligence in a suit for damages caused to a passenger as resulting from an effort to use the inefficient means provided for entering a passenger car can not receive favorable consideration. The danger attending the entering of a car under such circumstances must be very apparent to justify a court in setting aside a verdict awarding damages against the company on the ground of contributory negligence of the plaintiff.</p>

<p>1. Limitation—Presumption.—When under a plea of limitation of ten years it appears from the record that the defendant who set up the plea had occupied the land with exclusive possession since 1873, he alleging in his plea that such possession was “ continuous, adverse, and peaceable to this date,” and the record failed to disclose when the suit was begun on which final judgment was rendered in 1886, held:</p> <p>1. It will be presumed, no objection being filed to the plea, that the plea was designed to charge that the possession was peaceable until the commencement of the suit.</p> <p>3. The court having sustained the plea of ten years limitation, and the record being-silent as to the time when the suit was begun, it will be presumed that ten years of possession had elapsed before the petition was filed.</p> <p>3. Limitation which begins to run against an ancestor is not stopped in favor of the heir either by minority or coverture.</p> <p>2. Marshal’s Sale—Void and Voidable.—A marshal’s sale of land under execution made before the door of the United States court house, and not in the county where the land is situate, is void; such a sale is incapable of ratification and may be attacked collaterally. The mere acquiescence of the judgment debtor in such void sale imparts to it no validity.</p> <p>3. Same.—Such a sale presents no bar to the operation of the statute of limitations in favor of one in possession adverse to the judgment debtor.</p>

<p>1. Resulting Trusts.—In 1869 an enfranchised negro man began to live with a negro woman as husband and wife, but no marriage ceremony was ever performed. 'Thus they lived until 1887, during which time land was purchased and paid for with money earned by the labor of the woman and a deed made to the man. In 1887 the man was married to another woman and died. In a suit brought by the woman with -whom he had so long liyed to recover the property, held:</p> <p>1. A resulting trust existed in favor of the plaintiff.</p> <p>:2. In the absence of any evidence that the parties understood that the relation of ■debtor and creditor existed it will be presumed that the parties agreed that the title should be held for the benefit of the woman who paid the purchase money.</p>

<p>Vendor’s Lien—Pleading.—In a suit to enforce the vendor’s lien the petition set out the purchase money note with a defective description of the land and acknowledged a partial payment upon the note with a release of a given number of acres. Judgment was asked for balance due upon the note and foreclosure of the lien upon the balance of the land without further description. Held:</p> <p>1. Error to render judgment foreclosing the lien upon the entire tract.</p> <p>8. There being no description of the land upon which the lien is sought to be foreclosed a foreclosure can not be adjudged.</p>

<p>Appeal from Colorado. Tried below before Hon. Geo. McCormick.</p>

<p>1. Negligence—Telegraph Company.—It is immaterial whether a telegraph company which receives a message for transmission is informed at the time that the charges are paid by another and that for his benefit its transmission is desired. When its terms disclose the necessity for its prompt delivery the company is liable to the party for whose benefit it is sent, if he suffers damage from the company’s negligence.</p> <p>2. Telegraph Message—Negligence.—A telegraph company can not relieve itself from liability for failing to deliver a message paid for and sent by it by showing that its office at the point of delivery was closed when the message was received for transmission.</p> <p>3. Case Adhered To.—Stewart v. Telegraph Company, 66 Texas, 581, adhered to.</p> <p>4. Telegraph Message.—The stipulation contained in a printed blank on which a telegraph message is written, that the company would not be liable for damages beyond the cost of the message unless it was repeated, can not affect the right to recover damages caused by a failure to deliver the message.</p> <p>6. Same,—When the very nature and importance of a telegraphic message are apparent from the terms used and the urgency for its speedy transmission is thus known by the agent who receives it, no further explanation to the company’s agent is required in order to render the company liable for negligence in delivering it.</p> <p>6. Measure of Damages.—Mental anguish constitutes an element of damage which the law affords no rule for measuring, and when this is the basis of a verdict for damages and nothing appears to show that the jury acted under passion, prejudice, or other improper influence, the verdict and judgment will not be disturbed.</p> <p>7. Fact Case.—See this case for facts under which a verdict, against a telegraph company for $ 1168 damages caused to the feelings of a surviving husband by the failure of a telegraph company to deliver a message announcing the moving of his wife’s remains by railway train just after her death, was not deemed excessive.</p>