Volume 73 — Texas Reports

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

<p>1. Pleading.—See opinion for the substance of a plea setting up contributory negligence which was held too general on special exceptions.</p> <p>2. Evidence—Damages—Case Adhered to.—Texas & New Orleans Railway Company v. Crowder adhered to. An employe of a railway company who sues it for damages on account of personal injuries must show the circumstances under which the injury occurred, his employment at the time, what facts constituted the negligence of the defendant, and if his own conduct was connected with defendant’s negligence so as to bring about the injury he must show that connection and acquit himself of negligence or establish the fact that he was exercising due care. Thus the plaintiff establishes prima facie his right to recover. But the defendant may show that the case thus prima facie made should not authorize a recovery by showing the contributory negligence of plaintiff; such contributory negligence must first be alleged by defendant in order to authorize evidence to establish it.</p> <p>3. Same.—The plaintiff must show that the injury complained of was produced by the negligent act of defendant under such circumstances as do not develop any negligence on the part of plaintiff which contributed to his injury. If the plaintiff’s case develops his own want of care the defendant can take advantage of it, but if the defendant relies on contributory negligence he must allege it as a defense in the nature of avoidance.</p> <p>4. Negligence—Fact Case.—An act of negligence proximately contributes to the injury when without the act of negligence the injury would not have been inflicted. See case for facts under which it was held that contributory negligence existed.</p>

<p>1. Libel—Pleading.—In a suit to recover damages for an alleged libelous publication it is only necessary to set forth those portions of the publication complained of, unless they contain words which indicate that the alleged libelous words are qualified by other portions of the publication, or show that the meaning of the language complained of is qualified by other portions of the article published.</p> <p>2. Joinder of Causes of Action,—A cause of action for libel and one for slander may be joined in the same suit if each count is complete in itself and relates to the same matter.</p> <p>4. Fact Case.—See opinion for petition for libel held good on special exceptions.</p>

<p>. 1. Verdict.—Though a verdict may not be in its form strictly in accordance with the court’s charge, yet if its meaning is manifest by reference to the entire record it will not be set aside for informality.</p> <p>2. Pleading—New Trial.—The effect of an order granting a new trial on the motion of one only of several parties who are jointly and severally sued is to vacate the judgment formerly rendered as to all the defendants.</p> <p>3. Verdict.—In actions of tort based on the malicious character of the act complained of, when the suit is against several parties, a verdict returned in favor of the plaintiff against one defendant, and which is silent as to his codefendants, will not for that cause alone be set aside.</p> <p>4. Malicious Prosecution—Probable Cause.—In a suit for malicious prosecution the court should not in the charge on the question of probable cause review the evidence which if true would establish a want of probable cause and so say to the jury, or state evidence which if true would establish probable cause and then instruct the jury that if they believed it then probable cause existed. The question of probable cause must be decided by the jury, and such a charge should be given as to enable the jury to draw correct conclusions from the facts as they find them.</p> <p>5. Malicious Prosecution—Principal and Agent.—In a suit against a railway company for maliciously prosecuting the plaintiff through its general business manager for perjury, held, that the prosecution having been for the offense of perjury alleged to have been committed by the accused in a suit involving the liability of the railway company, and the prosecutor being shown to have had the entire control of the business interests of the company, and of • litigation affecting its interests, was responsible in damages for the malicious prosecution of the plaintiff.</p> <p>6. Probable Cause.—In a suit for malicious prosecution probable cause is not conclusively established by proof that the defendant acted under the advice of counsel. Such proof can be considered as a circumstance showing both the want of malice and as supporting the defense of probable cause. It does not necessarily establish the existence of the latter or the absence of the former.</p>

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

Tried below before Hon. F. A. Williams. Appellee, with her invalid daughter, Mrs. Long, was a passenger from 'San Antonio, to Crockett via Taylor and Palestine, and was changing cars .at Taylor for Palestine when she stepped from the lowest step on the car platform on to a- stool provided by the railroad company for passengers to alight on, and the stool tilted which caused her to fall.

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

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

Tried below before Hon. Geo. McCormick. This suit was brought by plaintiffs, John W. Hanna, Silas Hanna, and Ella Goodrich, joined by her husband, as surviving children of John W. Hanna, and their mother, Mrs. Tennie Hanna, as surviving widow of said J. W. Hanna, said John W. Hanna being legatee named in last will ■of Walter Hinkly.

<p>1. Trespass to Try Title.—In trespass to try title when the petition does not-set forth specifically the title hut alleges in general terms title to the property, the plaintiff may show its existence through a resulting trust.</p> <p>2. Same—Practice—Evidence.—Under the plea of “not guilty” a defendant in trespass to try title is entitled, without specially pleading it, to whatever benefit may result from the staleness of the demand for an enforcement by plaintiff of a resulting trust.</p> <p>3. Limitation—Tenant in Common.—If a tenant in common in possession sets up claim for a greater interest than he owns and excludes his cotenant, his holding being adverse may mature into title by limitation. The cotenant may protect himself before limitation matures by suing to establish his right and to be let into possession, or for partition.</p>

Error from Freestone. Tried below before Hon. Sam. R. Frost. This suit was brought against plaintiffs in error by the defendant in error, Russell Anthony, to recover both actual and exemplary damages for unjustifiable assault and ill treatment inflicted upon him while a passenger on the cars of the railway company by one of its conductors.

<p>Appeal from Brazos. Tried below before Hon. John FT. Henderson.</p>

Tried below before Hon. W. H. Stewart. This is appeal from a judgment recovered by Burke against W. B. Hance for $686. The trial was upon an amended original petition. The caption and the material parts are given:

<p>Appeal from Grimes. Tried below before Hon. Herman G. 'Kittrell.</p>

<p>1. Libel—Pleading.—In a suit for libel the manner in which the publication of the alleged libelous matter was made should be averred. A failure to make such an averment would subject the petition to special but not to a general demurrer.</p> <p>3. Pleading.—The sufficiency of an amended petition must he tested by its own allegations alone, without reference to anything contained in the original plea.</p>

<p>Appeal from Freestone. Tried below before Hon. Sam E. Frost.</p>

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

Tried below before Hon. Geo. McCormick. The injuries inflicted on the appellee by the alleged negligence of appellant were of a serious and permanent character. He claimed $30,000 .and the verdict was for $5000 damages.

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

This was a motion filed in the Supreme Court for a peremptory writ of mandamus to compel J. H. McLeary, an attorney who had been appointed as special judge, to proceed with the trial of the case.

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

<p>1. Statement of Facts—Bills of Exception—Presumption.—A statement of facts which contains bills of exception was filed more than ten days after the motion for new trial was granted, though before the close of the term of court. Held, that the record being silent as to when the bills of exception were presented to the trial judge the presumption will be indulged that they were presented within ten days after the trial was concluded.</p> <p>2. Practice.—When a bill of exceptions and the statement of facts are not inconsistent, as when evidence incorporated in the statement of facts does not appear therein-to have been objected to, but the bill of exceptions shows that an exception was reserved, both may be taken together as constituting the bill of exceptions on the particular matter.</p> <p>3. Principal and Agent—Evidence.—A written contract was made in the name of the principal and signed in his name by another as his agent» Held, that it was not competent to show by parol evidence in a suit on the contract that in signing it the one who signed as agent signed the name of the principal for his own benefit and with intent to bind himselfo This case distinguished from that of an undisclosed principal wh£> is made responsible for his agent’s act when made for the benefit of the principal and within the scope of the agent’s authority.</p> <p>4. Contract—Parol Evidence.—When a written contract upon its face clearly shows who were bound by it and who were not bound, its legal effect in a suit on such contract can not be varied by parol evidence, though it may be shown by parol that the written contract was colorable only and intended to obscure the real connection. with the transaction of one whose name does not appear on the contract as a principal, and who was really a party to it. In such a case suit must be brought upon the real agreement^</p> <p>5. Cases Discussed.—Chandler v. Coe, 54 N. H., 561; Trueman v. Loder, 11 Adolphus & Bilis, 589; Melledge v. Iron Company, 59 Mass., 158; Brown v. Parker,, 89 Mass., 337; and Rodgers v. Hadley, 2 Hurlstone & Coltman, 227.</p>

<p>1. Removal of Cause to a Federal Court—Jurisdiction—Pleading.—Under the Act of Congress of March 3, 1887, if the petition filed by the plaintiff in a suit instituted in a State court shows that the suit is between citizens of different States, that the defendant is a non-resident of the State in which the suit is pending, and also that the matter in controversy exceeds two thousand dollars exclusive of interest and costs, the right to remove said cause by the defendant to a United States court in the manner specified by act of Congress exists. If these facts exist but are not disclosed by the petition they may. be shown in defendant’s petition for removal. However they may be shown, after they are once properly shown the filing of the bond and petition for removal deprives the State court of all jurisdiction, and no pleading can afterward be amended in a State court. If an issue as to the existence of the facts which authorize a removal is made in the State court the State court tries and determines that issue.</p> <p>2. Same. — A petition for the removal of a case to a Federal court which contains a sufficient statement of the citizenship of the defendant to show that the Federal court has jurisdiction need not be verified by affidavit or proved unless the alleged citizenship is put in issue under oath by special plea; the burden of proof would then be on the defendant who seeks the removal.</p> <p>3. Citizenship—Corporations.—A corporation is conclusively presumed to be a citizen of the State which created it.</p> <p>4. Removal of Cause.—It is the duty of the court and not of its clerk to determine the sufficiency of the bond for the removal of a cause from a State court to a Federal court. If no objection be made to the bond which is filed with the petition for removal it will be conclusively presumed that the securities were sufficient.</p> <p>5. Same—Agreement of Counsel.—An agreement of counsel made before the beginning of a term of court to the effect that the cause should stand continued can not be given the direct effect of depriving the defendant of his right to remove a cause to the Federal court.</p> <p>6. Citizenship.—A railroad chartered by another State, doing business, owning property, and having an office and agents in Texas, does not thereby lose its citizenship of such other State or forfeit any right conferred on it by act of Congress regulating the removal of a cause from a State court by a non-resident defendant.</p>

<p>Homestead.—When a deed absolute is made by the husband and wife for the home- . stead and it is reconveyed to them by deed, reserving a lien for unpaid purchase money, the real object of both conveyances being to secure a loan of money to the husband and wife, no lien attaches.</p>

<p>1. Separate Property.—A stock of goods was the separate property of the husband at the date of his marriage, and was from time to time replenished and increased until the wife’s death. Held, that the rule which requires that the separate property when it has been sold and the proceeds reinvested or undergone changes must be clearly traced in order that its separate character shall be preserved, has no application. The' property to the extent of the value of the goods at the date of the marriage was the same, and protected against those claiming through the deceased wife.</p> <p>2. Same.—When one spouse in a matrimonial partnership invests separate funds, and the business is carried on and its profits reinvested in the enterprise until it is dissolved by death, a right exists to reimbursement from the community estate thus acquired to the spouse thus investing separate funds.</p> <p>3. Same.—If the community estate contributes to the improvement of the separate estate of either spouse, the community is entitled to reimbursement by the separate estate for such improvement.</p> <p>4. Cases Cited and Approved.—Lewis v. Lewis, 18 Cal., 654; Werner v. Kelly,.</p> <p>La. Ann., 60; and Coons v. Stringer, 14 La. Ann., 726, cited and approved.</p> <p>6. Cases Adhered to.—Furrh v. Winston, 66 Texas, 525, adhered to.</p> <p>6. Separate Property.—If separate funds be used by one spouse to make permanent and valuable improvements on land the separate property of the other member of' the matrimonial union, the right to reimbursement exists from the community property if there be any; if there is no community property the cost of the improvement-thus made can not constitute a charge against the land.</p>

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

<p>1. Evidence—Negligence.—When in an action for damages for the destruction of ■property with fire caused by sparks escaping from a railway engine the use of the most approved appliances to prevent fires and the employment of skillful servants is relied on as defense, the plaintiff may show in rebuttal that fires kindled in the same manner from the same cause were about the same time occurring along the line of the road. ■Such evidence though weals; is not irrelevant.</p> <p>2. Negligence—Railway Companies.—The liability of a railway company for the negligence of its employes in failing to exercise such care as one of ordinary prudence would to extinguish a fire kindled by sparks from the engine attached to a passing train exists only when the employe is not at the time engaged in some duty owing from the company to the public. Hence a charge which makes a railway company liable for the failure of its employes on a passing train to use proper care to extinguish a fire, without regard to the duty of the company to the public which would preclude ■the stoppage of the train, is error.</p>

<p>1. Authentication—Acknowledgment of Deed.—Article 7418a, Paschal’s Digest, construed; and held, that under that article, which was enacted in 1874 to cure defective acknowledgments of deeds and their registration, the acknowledgment of a deed to Texas land before a notary public of another State in 1841 waá validated, and its registration made prior to the passage of that statute was legalized.</p> <p>2. Bond for Title—Deed.—An instrument executed in Texas in 1841 binding the maker to convey to a citizen of another State land situated in Texas whenever such citizen should become a citizen of Texas, which contains the language usually used where conveyances were made under the civil law by notarial act, such as “I dispossess myself of, and my heirs and assigns relinquish the dominion and possession of the tract of land,” etc., and “ I pray the courts of competent jurisdiction to declare and compel me, my heirs, and assigns to perform the same,” etc., passed the title.</p> <p>3. Consideration.—Such an instrument was not void for want of a consideration, expressed on its face, and the omission to recite a consideration did not affect its validity. The grantor could only avoid the deed for want of a consideration, if at all, by affirmative evidence that the instrument was voluntary and that no consideration in fact passed.</p> <p>4. Deed to an Alien.—Under the Constitution of the Republic of Texas land conveyed to an alien was subject to escheat, but as between the parties to the conveyance and their privies the conveyance was good. If the alien when the deed was made was a citizen of the United States and remained such until after Texas became by treaty a member of the Federal Union the title became indefeasible.</p>

<p>1. Grant of Water Privileges.-—An owner of a tract of land upon and through which a stream of water rises and flows, in selling parts of the tract fronting upon the stream may reserve exclusive water privileges, and when in selling the residue of the tract he sells the land and specially conveys the water privileges theretofore reserved, such grantee holds such privileges as against another vendee holding a part of the tract fronting upon the stream, but in whose deed the privileges were reserved.</p> <p>2. Estoppel.—One holding exclusive right to the use of a stream is not estopped to assert such claim by reason of having assented for the use thereof by an owner upon the stream not having such right to the use of the water.</p> <p>3. Same.—A riparian owner without water privileges, by consent of the owner of the water rights, having built a dam and having made contracts extending for several years at the instance of the said owner of the water rights, which contracts were to supply water by means of the dam so built, held, that the owner of the privileges was estopped from denying the right to keep and use the dam during the term of years necessary to fill such contracts as he had induced or assented to.</p>

<p>1. Resulting Trust—Alien.—It seems that a resulting trust in real estate will not be raised in favor of an alien whose money may be traced into such land.</p> <p>2. Same—Iiien.—It seems that upon an alien tracing his funds into a tract of land that he would be entitled to a money judgment against the party using his funds in the purchase and would have a lien upon the land which the courts will foreclose.</p> <p>3. Same—Certainty—Presumption.—Where the owner of a' fund by his own want of care transmitted money in a draft to an innocent party in excess of the amount, intended, and the money was spent, no presumption will apply to the acts of the innocent receiver in favor of the careless sender of the money.</p> <p>4. Same.—To establish a lien upon a tract of land under such circumstances it would require satisfactory proof of the application of the funds so received and used by mistake to the purchase and the amount so used.</p> <p>5. Same—Separate Money of Wife—Homestead.—Where such funds were used jointly with separate money of the wife in the purchase of a homestead a lien will not be established.</p>

<p>Appeal from Wise. Tried below before Hon. E. P. Marshall, special district judge.</p>

Tried below before Hon. A. S. Walker. The litigation of which this suit is a continuation was commenced by Stephen J. Cassidy, as administrator of Thomas Cassidy, deceased, against John King, a citizen of the State of Arkansas, by the filing of a petition, in the character of a bill in equity in the District Court of Travis County, Texas, on the 25th day of October, 1858.

<p>1. Bill of Lading—Common Carrier—Public Policy.—A clause in a bill of lading to the effect that the carrier shall have the full benefit of any insurance that may have been effected upon or on account of the article to be transported is not invalid by reason of its being in contravention of any rule based on public policy.</p> <p>2. Cases Cited and Reviewed.-—Insurance Company v. Railway, 63 Texas, 475; Insurance Company v. Transportation Company, 117 U. S., 312; Jackson v. Boylston Mutual Insurance Company, 139 Mass., 505, cited and reviewed.</p> <p>3. Insurance.—The carrier’s liability for loss of a commodity received for transportation is the ultimate liability; for the loss of the property while in his custody as carrier results in fact or in legal contemplation from his failure of duty, while that of the insurer is that of an indemnitor in all cases in which the insurance contract does not stipulate to the contrary, or in which a contrary intention may not be fairly inferred from the time and circumstances of the contract.</p> <p>4. Same.—If the insured wishes a policy that will place the ultimate liability on the insurer and not on the carrier, he must so malee his contract as to protect the carrier afterwards to be selected by him, compensate the insurer for the increased risk of ultimate loss, and thus be in position to contract with the carrier for reduction in freight rates rendered proper by reason of the shifting of the ultimate risk from the carrier to the insurer.</p> <p>5. Public Policy—Insurance.—An open policy of insurance which stipulates that “ this insurance shall not enure to the benefit of any carrier,” is not void as being in restraint of trade, and when violated by a contract between the insured and a carrier by which the latter should be subrogated to the rights of the insured in case of loss, avoids the policy, and neither the insured nor the carrier can assert rights under it in case of loss, and this whether the carrier had notice of the stipulation in the policy or not.</p> <p>6. Common Carrier.—A common carrier can not require the shipper to stipulate that the carrier shall have the benefit of insurance effected in case of loss as the condition on which the freight will be received and transported. If such a stipulation is contained in the bill of lading, and afterwards a certificate of insurance is issued to the shipper on an open policy which provides as follows, “ Warranted that this insurance shall not enure to the benefit of any carrier,” and the certificate is transferred to the carrier after the loss occurs, it confers no right as against the insurance company, and this though both the carrier and the insured were in fact ignorant of the clause contained in the open policy.</p>

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

Ebeob from Harris. Tried below before Hon. James Hasterson. This is a writ of error prosecuted by the defendant in a divorce suit. Service had been had in the State of New York, where the defendant resided. The trial was ex parte, no appearance having been entered. The circumstances of the trial shown in the record are: The cause was called on appearance day of the court, and was passed and no order made in reference to it.

Tried below before Hon. James Masterson. This is an appeal from a judgment rendered April 16,1888, for $5983.90 in favor of George Mellinger and against P. B. Hurst, administrator of estate of John Mellinger, deceased.

<p>1. Charge.—A charge not objectionable in law, and which does not assume as facts anything about which there can be controversy in the testimony, can not be a matter of complaint.</p> <p>3. Charge.—See an approved charge upon the duty of a railway company’s employes upon a train approaching a person upon the railway track, and upon the duty of such person for his own safety.</p> <p>3. Duty of Railway Employes.—In case of an adult not known or appearing to be wanting in any of his senses, and apparently able to take care of himself, persons in charge of a train may reasonably suppose when he is seen on the track that he will leave it in time to avoid danger.</p> <p>4. Same.—If he does not leave the track, but is injured, then a case arises in which it becomes necessary for the jury to determine whether the injury resulted from the ■contributory negligence of the person injured or from the failure of the servants of the railway company to exercise due care under the circumstances.</p> <p>5. Case Adhered to.—Railway v. Weiser, 65 Texas, 443, adhered to.</p> <p>6. Deafness of Injured Party,—The fact of his deafness made it the more necessary that the injured party should not place himself in a place of danger, rendered as to him more dangerous from his infirmity.</p> <p>7. Practice.—It is not error to refuse to charge upon an issue which from the testimony could not have been material; e. g., the plaintiff alleged negligence in the making up of the train as affecting the outlook from it; the testimony showed that employes saw the injured party at one hundred yards distance, and on seeing that he would not leave the track efforts were made to stop the train.</p>

<p>1. Wife’s Separate Property in Promissory Notes.-—Where promissory notes payable to the order of the wife and being her separate property were endorsed by the husband writing her name without her knowledge or consent, and were used as a means of credit by a firm of which the husband was a member, the holder taking the notes as collateral, supposing they were correctly endorsed by the payee, and ignorant that the payee was a married woman, will not be aided by the presumption of law that the notes were community property, and such holder can not prevail against the rights of the wife.</p> <p>¡2. Power of Husband to Endorse His Wife’s Paper.—We can give no satisfactory reason for holding that the husband has authorit)- as such to convey by endorsement or otherwise his wife’s promissory note without her consent, while the principle that intervenes to prevent his doing so is manifest. He can not legally transfer what is not his, and the law limits his power over his wife’s property to management.</p> <p>3. Bes Adjudicata.—A suit may he maintained on a note secured by lien without enforcement of the lien, and after judgment another suit can be brought to foreclose the lien at any time before the debt is barred by limitation.</p> <p>4. Divisible Demands.—-Where a demand is indivisible or the contract is entire one judgment will merge all the rights and undertakings under it, hat- not so where the demands are separate and distinct. Nor will a deed of trust executed to secure the payment of several items of indebtedness have the effect of merging all the demands secured by it into one contract.</p> <p>5. ' Homestead—Abandonment.—A designation of premises as homestead accompanied by acts of preparation and followed by residence will protect the homestead from the designation; but until the homestead rights are vested by residence the intention may he abandoned, and a mortgage made including such abandonment of the designation and intent will hold against a claim followed by actual residence as homestead.</p> <p>6. Same.—The disclaimer of homestead rights in an actual homestead is inoperative—of one merely designated will hold good.</p>

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

<p>1. Homestead on Partnership Land.—A partnership in the lumber business, sawing plank and shingles, etc., had their mills and shops upon a tract of eight and one half acres within the corporate limits of a town. One member, to whom the man agement of the business was entrusted, resided upon the land for a time and then moved to rented premises, but continuing to work at the business. The other partner deeded half the tract with all improvements to his wife. In a litigation by the latter as a cred itor of the firm, held, that the claim of the managing partner to homestead exemption to one-half the tract was properly sustained.</p> <p>S. Dissolution of Partnership. —The conveyance by one of two partners in the lumber business of the land and buildings, machinery, and stock to his wife operated as a dissolution of the firm.</p> <p>3. Receiver.—In a suit by one member of a firm which had been dissolved against the other who had been the manager, seeking to enforce a claim against the firm by subjecting its property, it is error on establishing the claim to place the property in the sole charge of the party in possession, who was insolvent; a receiver should have been appointed.</p>

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

<p>1. Argument of Counsel—Ground for Reversal.—Counsel for the plaintiff in closing the argument to the jury made a direct appeal to the self-interest of the jurors. The preponderance in the testimony was against the plaintiff and against the verdict. On appeal, held, that it is probable that the improper argument may have influenced the jury, for which cause the judgment should be reversed.</p> <p>2. Bill of Exceptions.—A bill of exceptions to words spoken in argument was filed; the adverse party, who was the plaintiff, sought by motion to have it corrected, alleging that the bill had not been submitted to the plaintiff or to his counsel. The motion was overruled for the reason “that the language admitted in the motion was substantially the same as that contained in the bill as filed. ” On appeal the question so raised by the motion was considered and the ruling of the trial court adhered to and approved.</p>

<p>Fact Case—Duty of Railway to Passenger—Due Care.—Mrs. Crispí, with her two small children, holding a ticket from Galveston to Houston, was a passenger on train of appellant, intending to stop at Harrisburg, where she resided, four miles from Houston. It was after dark when the train passed Harrisburg. Mrs. Crispí was carried past Harrisburg; the train would reach Houston about midnight, and she had no money to defray her expenses. The train was stopped some distance north of Harrisburg, and she voluntarily left the car and made her way back home. The way was difficult, o'f which, however, she knew when determining to attempt it. In an action for damages, held:</p> <p>1. If the railway company was at fault in carrying her past Harrisburg the fact that she voluntarily chose to leave the car and make her way back, knowing of its difficulties, does not necessarily show want of care on her part.</p> <p>2. Whether the circumstances were such as to be held a coercion upon her in leaving the train is a question for the jury. The court can not determine for the jury the ■question of care or want of it with reference to her acts.</p> <p>3. Facts of the case warrant a recovery by the plaintiff for damages.</p>

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

Tried below before Hon. James Masterson. This is an appeal from a judgment for $350 and costs rendered in favor of John and Sallie Maxey against appellants Thomas and Martin Loftus and Mose Whitely upon a cause of action stated in the petition substantially as follows: “That about the 12th of August, 1887, Thomas F. Loftus, Martin Loftus, and Mose Whitely did act together and enter by force and violence the home of plaintiffs without their consent, when Sallie Maxey and her…

<p>1. Joint Wrongdoers.—Where an injury is inflicted by the joint act of two or more parties the injured party may sue either or all of them.</p> <p>3. Same.—The defendant company in its work left a rope suspended across Buffalo Bayou at night without a signal light showing its presence. A boat with passengers ascending the bayou collided with the rope, thereby injuring the plaintiff, who was a passenger. Held, that while the boat as a carrier owed the duty of greater care to its passengers, still the navigation company would not be relieved from responsibility for its negligence by the contributory negligence of those managing the boat.</p> <p>3. Negligence—Charge.—It was error in the court to instruct the jury that ‘ ‘ warning by hailing in time to have prevented the accident would be proper care on part of the defendant.”</p>

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

Tried below before Hon. W. H. Stewart. This is an appeal from a judgment against the plaintiff, Thos. F. Hudson, Jr., suing P. J. Willis & Bro.

Tried below before Hon. James Masterson. This is an appeal from a judgment for $3500 in favor of appellee for personal injuries suffered in the employment of the appellant. The coupling apparatus attached to 'the locomotive, called a goose neck, is alleged to have been dangerous and unfit for use in coupling to freight cars, and was safe when used to couple to passenger cars.

Tried below before Hon. James Masterson. January 23, 1888, D. F. Stuart filed an application in the County Court of Harris County to probate what purported to be the will of Mrs. Buckley, bearing date January 11, 1888, in which he was named independent executor without bond and Lula Kibbs Roberts and Mary L. Robinson the beneficiaries.

<p>1. Homestead—Charge of Court.—See opinion for a charge regarding the partition of a homestead the legal effect of which is construed and held not erroneous.</p> <p>3. Presumption—Community Property.—In a suit involving the claim of an heir inheriting from a deceased mother a community interest, and which is brought against the surviving father, it will be presumed that personal property delivered to the heir by the father after the mother’s death was intended by him as a delivery of that much of the heir’s interest in the community estate. In partition of the inherited community estate between several heirs of the mother, each is chargeable with the value of one-half the community property received during the mother’s life.</p> <p>3. Homestead—Partition—Judgment.—In a suit involving the rights in the rural homestead of Thomas J. I-Iare and his minor children, Pearl D. and Kuby Hare, after the death of their mother who had a community interest in the same, the judgment provided that the “said tract of two hundred acres shall not be partitioned so long as it remains in law the homestead to Thos. J., Pearl I)., and Euby Hare, or any one or more of them, during which time the said three defendants last named are entitled to the possession thereof.” Held, that the judgment must be construed to mean that the homestead should not be partitioned so long as the father alone or with his minor children should use and occupy it as such, or so long as a Probate Court, in the event of the father’s death, would permit the guardian of the minors named to use it as a homestead.</p> <p>4. Judgment.—A judgment based on evidence conflicting in its character will not be disturbed on appeal.</p> <p>5. Advancements—Offsets.—After the death of the mother advancements were made out of the community property by the father to a married daughter. The daughter’s husband holding an account against her father and his minor children accruing after such advancement can not offset such account against the advancement so made to his wife.</p>

Tried below before Hon. Geo. McCormick. August 17, 1887, Robinson filed his original petition against apjDellant, and on July 4, 1888, he filed his “ first .amended original petition,” alleging that on July 4, 1887, he boarded the regular passenger train of appellant’s company at a station on its line of road in Colorado County, Texas, bound for the town of Cuero on the line of said road; that he paid his fare in cash to the conductor in charge of the said train, and was…

<p>Administration—Deed—Authentication.—-A married woman in 1842 joined her husband in conveying land certificates then located and surveyed which were in part tlie separate property of her former husband and partly their community property.</p> <p>This she did after an order of the Probate Court had been entered closing her administration on the estate of her former husband, though an order had been entered during her administration turning the property over to her to be used and disposed of by her for the support of herself and children. The wife was not examined privily and apart from her husband by the officer in taking her acknowledgment to the deed. In a suit brought by the heirs of the woman and of her first husband to recover the land against those claiming under the deed, who had not been in possession but who had paid taxes on the land for over forty years, held:</p> <p>1. The deed of the wife can not be regarded as one made by her as administratrix in pursuance of an order of court.</p> <p>2. The deed having been made after the survey and location of the certificates, must be tested by the rules applicable to a conveyance of real estate.</p> <p>3. The deed not having been acknowledged by the wife in accordance with the Act of February 8, 1841, conveyed no title to the interest of either the deceased husband or his widow.</p>

<p>Appeal from Nueces. Tried below before Hon. J. 0. Russell.</p>

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

Tried below before Hon. James Masterson. ■ Hpon the issue of limitation of ten years, upon which the case was decided, the testimony was as follows: Bankin testified that he had known this tract of… Held: testified that he bought this land from Win.

<p>1. Presumptions—Negligence.—In a suit by parents against a railway company for negligently causing the death of their son, whose dead body was found upon the track in a mangled condition, with blood upon the rails; held, that it is fair to presume that the train of the railway caused the death, but that it devolved upon the plaintiffs to show that the accident resulted from the negligence of the employes of the railway and that their son’s negligence did not contribute to the injury.</p> <p>2. Negligence—Circumstantial Evidence.—In absence of eye witnesses negligence on part of a railway company and due care on part of the injured party may be proved by circumstances. But these circumstances must themselves be shown by direct testimony and they can not be inferred from other circumstances. The law does not. admit one presumption to be based upon another.</p> <p>3. Same—Fact Case.-—See testimony held insufficient to show either negligence on part of.the railway or proper care on the part of the injured party.</p>

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

<p>1. Negligence—Declarations of Conductor.—In a suit for damages brought by a passenger against a railway company it was error for the judge to charge the jury that if the conductor told the plaintiff that the train would stop five minutes at Dodge (a way station), and then moved the train before the time had elapsed, then this was negligence on the part of the railway company.</p> <p>8. Same.—No duty of care is imposed upon a railway company by reason of a conductor of a train in response to a question asked by a passenger answering and giving the length of time the train managed by the conductor would stop over at a station ahead upon the road.</p> <p>3. Contributory Negligence—Burden of Proof.—-While it is the general rule that the burden of proving contributory negligence is upon the party alleging it, yet where the plaintiff’s own case shows a suspicion of negligence on his part then he must clear off such suspicion. Ry. Co. v. Spicker, 61 Texas, 427.</p>

<p>1. Attachments—Torts.—It seems to have been uniformly held that in the absence of statutory provisions allowing an attachment to issue on actions founded on. tort it will not lie.</p> <p>2. Same.—An attachment is not authorized where unliquidated damages are demanded, and the contract alleged as the cause of action affords no rule for ascertaining the damages, and the amount is not and can not with propriety be averred in the affidavit, and when the amount must be altogether uncertain until the jury have ascertained it, and for which operation no definite rule is presented to them.</p> <p>3. Drummer’s Contract for Commissions.—A contract by which a drummer is employed upon a stated commission upon his sales, he to bear his expenses, the employment being for a stated time, when broken does not contain a mode of determining the damages with sufficient certainty to support an attachment.</p> <p>4. Jurisdiction—Non-Resident.—In a suit against non-residents not found in the State, the failure of the attachment made the basis of the action is fatal to the jurisdiction; the defendant only having appeared for the purpose of excepting to and resisting the attachment.</p>

<p>1. Sale of Chattels—Estoppel.—Ordinarily the purchaser of personal property can not acquire by his purchase a better title than the seller owned. There are circumstances in which the buyer may acquire a better title than, the seller had, growing out of the principles of estoppel applied to the acts of the owner touching the thing sold.</p> <p>3. Notice—Land Certificate.'—A purchaser of a land certificate filed in the Land Office and located upon land which it can not hold is affected with notice of the facts apparent in the records of the Land Office in the particular file of which the certificate formed a part, and also of what ordinary investigation upon such facts would develop.</p> <p>3. Estoppel.—See facts held not to estop a purchaser of a land certificate from asserting ownership of land secured by the certificate but located by a subsequent purchaser of the certificate.</p>

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

<p>1. Irrelevant but Immaterial Testimony.—The plaintiff in a suit for damages for personal injuries suffered through the negligence of a railway company for which he was working was permitted to testify that his superior at time of the injury was subsequently killed on the railroad of defendant; another witness who was called for -defendant testified to the same fact. Held, that the testimony of the plaintiff complained of was not to the effect that the boss had been negligently killed, for which reason and that the manner of the death was proved by a witness for defendant the testimony was immaterial and no cause for reversal.</p> <p>2. Mental Injury.—It is competent as a ground for relief to prove that the injury affected the mind of the plaintiff.</p> <p>3. Habits of Industry and Sobriety.—go also it is competent for the plaintiff in ■suing for damages for personal injury to prove his habits of sobriety or of industry.</p> <p>4. Charge—Entire Charge Upon Same Subject Taken Together.—See a charge .the several paragraphs of which taken together fairly submit as a question of fact for the jury whether the plaintiff from his inexperience in the work engaged in realized the danger to which he was exposed when injured.</p> <p>5. Duty of Employe to Employer.—The defendant employer asked the instruction: “The degree of care required of defendant in furnishing safe implements and appliances for its workmen is that of ordinary care. The company is required to use only those in ordinary use in and about its workshops and yards. And unless the jury are satisfied from a preponderance of evidence that there are other and more suitable- and safe implements in use by railroads as fenders between engines or cars being moved about their yards or workshops than that of the character of the fender used in this case the plaintiff can not recover.” The court had already charged that “it was the duty of defendant to use due care in the protection of its employes, and that they on the other hand assumed the ordinary risks incident to their employment.” Held, that the instruction asked was misleading and it ignored the duty of the employer to warn the inexperienced of danger in the work, wherefore the court below properly refused it.</p> <p>6. Repeating a Charge.—It is proper practice for the trial judge to refuse instructions asked which only embody in different language the charge given upon the subject.</p> <p>7. Verdict Not Excessive.—See facts where a verdict for $12,000 for actual damages for personal injuries was sustained.</p>

<p>1. Railroad Companies—Purchases.—A railway company by buying the stock of another and by buying the corporate franchise and property of the other, it having the power to buy, only becomes the owner of such franchise and property.</p> <p>2. Consolidation of Railroad Companies.—Ownership alone does not operate a consolidation of that bought, with the purchaser. This can not be made without consent of the State, which will not be implied; nor can it be made without the consent of the stockholders of the companies to be consolidated.</p> <p>3. Sale of Franchise does not Affect the Corporate Existence.—-While an execution sale of the franchise and property of a railway company conveys the franchise and property to the purchaser, still the corporate existence of the sold out company remains.</p> <p>4. Relations of Railway Company to Public.—A railway company in whomsoever may be its ownership stands charged with every duty and obligation to the public imposed upon it by its charter and the nature of its business. From these obligations it can not escape save by consent of the State.</p> <p>5. Continuous Obligations in Charter.—If a railway charter imposes obligations continuous and in which individuals as distinguished from the public have an interest, then such obligations would rest upon any subsequent owner.</p> <p>6. Contract by Railway for Locality of a Depot.—The Central & Montgomery Railway Company made a valid contract to maintain its depot within one thousand yards of the court house in Montgomery. After the sale of its franchise, etc., at sheriff sale, the purchasing company moved the depot. The plaintiff alleged as cause of action that the defendant, the purchaser at the execution sale, was liable. Held:</p> <p>1. The acquisition at the execution sale took the property and franchise freed from all liability save as secured by prior lien.</p> <p>2. The contract was one personal in its character, and which could not fix any obligation whatever upon appellant, the purchaser</p> <p>3. The refusal to perform the contract would give no cause of action.</p> <p>7. Estoppel.—The subsequent purchase, etc., can not be held as an estoppel to deny a consolidation between the two railway companies.</p>

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

Tried below before Hon. Edwin Hobby. Appellant L. T. Ferguson and his coplaintifl A. H. Ferguson instituted, on the fifth day of June, 1884, an action of trespass to try title to the tract of land described in their petition against appellee, and to cancel, as a cloud upon their title, a certain instrument designated a power of attorney, a copy of which was made a part of their petition, under which appellee claimed the land, alleging that at the time of the execution of the…

<p>Practice—Judgment.—Two suit were brought by parties who executed a power of attorney during their minority, under which lands inherited by them were sold to different parties. The suits were tried on the same pleadings and testimony before different trial judges, who failed in each case to file conclusions of law and facts. Each suit was a direct proceeding by the heirs for their interests in land conveyed during their minority under the power of attorney. On the same testimony and pleadings the plaintiffs recovered judgment in one suit and the defendants in the other. Both cases were appealed to the Supreme Court. There being testimony in each case which if believed would sustain the judgment, the judgment in each case was affirmed.</p>

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

Tried below before Hon. W. H. Burkhart. A clear statement from the brief of appellant is here given: Suit was instituted in the District Court of Galveston County and by consent the venue was changed to Fort Bend County.

Tried below before Hon. James Masterson. This was an action of trespass to try title. The testimony to title in the plaintiff held by the court insufficient is set out in the opinion, as also is the description1 of the land set out in the judgment appealed from. Gillespie, a witness, testified among other things: “I was county surveyor at the time, and laid out the John Brashear addition, and made a map of the John Brashear addition.

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

<p>Appeal from Dallas. Tried below before Hon. G. 1ST. Aldredge.</p>

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

Tried below before Hon. Felix J. McCord. This is the fourth appeal in this case; 54 Texas, 294, 59 Texas, 63, and 67 Texas, 297. The opinion fully states all facts necessary.

Tried below before Hon. W. H. Stewart. This appeal presents another phase in the litigation following the failure of Dublé & Wootters in the city of Galveston. The subject has been before this court in 54 Texas and in 67 Texas, cases referred to in the opinion. Ho statement is necessary.

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

<p>1. Collateral Attack—Fraud.—A suit to cancel and annul a deed executed in pursuance of the proceedings of the Probate Court, which are alleged to have been fraudulent and void, is not a collateral attack on such probate proceedings, but a direct effort to vacate the deed, which may be done when fraud has been perpetrated, though the probate orders stand.</p> <p>2. Stale Demand.—The defense of stale demand will not avail in favor of one who sets it up against the claim of title by a former owner when the defendant’s right, accrues within less than ten years.</p> <p>3. Evidence—Fraud—Administrator’s Deed.—When an order of probate confirming an administrator’s sale and the deed made in pursuance thereof are attacked lor fraud, and suit is brought by the heir to cancel the deed, alleging that the recitation therein which alleged payment of purchase money was false, parol evidence is admissible to contradict the recitations of the deed by showing that no consideration was ever paid.</p> <p>4. Void and Voidable.—When the jurisdiction of a Probate Court over the administration of an estate has once attached, its orders though not strictly in accordance with a directory statute are not void but voidable. If an administrator’s report of sale and the order confirming it were procured through fraud, they can not form the basis of a right claimed by the purchaser or his vendee in a suit to cancel the deeds, they having notice of the fraud complained of.</p> <p>5. Contract—Condition Precedent.—An attorney contracted with heirs of one whose estate was being administered that he would render all professional services necessary in litigating the title of the estate to lands, and would pay, compromise, or discharge in some way all debts established against the estate. The contract further-provided that he should be entitled to one-half the land of the estate upon its final settlement, distribution, and partition, after payment of all lawful debts, costs, and charges.. Held, that the payment, compromise, or discharge in some way of all debts established against the estate was a condition precedent to the right of the attorney to receive the one-half set forth in the contract.</p> <p>6. Same.—Under a. contract between an attorney and the heirs of an estate the attorney was to have for his services one-half of the land of the estate which might remain after the discharge in some way of all debts against the estate. The debts were never paid. The form of an administrator’s sale was gone through with and its confirmation by order of the Probate Court secured, but no money was ever paid by the purchaser for the land sold, one-half of which was deeded to the attorney, on which transaction also no money was paid. In a suit by the heirs to recover the land, held, that the attorney who had received a deed without consideration, with full knowledge that his vendor, the pretended purchaser, had paid nothing for the land, held the legal title in trust for the benefit of the heirs.</p> <p>7. Fraud in Probate Proceedings.—The administrator was also an heir, a party to the contract with the attorney, and one of the plaintiffs in a suit to recover the land from the attorney. Held, that if such heir, being administrator, did in Ms representative capacity consciously participate in the fraud and knew that his report to the Probate Court that the purchase money for the land had been paid was false, he would be without remedy as against his coworker in the fraud or his vendee.</p>

<p>1. Mental Anguish as Damages.—Mental anguish may constitute an element of actual damage lor which compensation may be recovered on a breach of contract where such anguish is the direct and natural result of the breach. When the mental anguish results from the breach of a contract for the payment of money no recovery can be had unless it be alleged and proved that the party contracting to malee the payment was informed when he made the contract of the peculiar condition and circumstances of the party for whose benefit the contract was made.</p> <p>2. Telegraph. Company Transmitting Money.—A telegram was received at-Galveston by the agent of a woman who sent the message from Los Angeles, California, on the twelfth of January, informing him of the fact that her husband had just died,, that she would leave there at two o’clock next day, and requesting that he send two-hundred dollars immediately. The message when received purported to have been sent from San Francisco. The message was not repeated. The agent of the woman expressed-to the company’s 'agent his belief that the woman sent the message from Los Angeles, and making application for the transfer of the money to San Francisco after being assured by the company’s agent that no mistake had been made, delivered to the telegraph company the two hundred dollars and tolls for transferring it. The company’s-agents took no steps to inform themselves as to whether a mistake had been made in the name of the place from which the telegram was sent, but transferred the money to-San Francisco. The woman failed to receive it, but two days afterwards her agent, after receiving a message from her over the wires of the same company from Los Angeles announcing that no money had been received, sent her by express the desired sum, the express company transmitting safely to Los Angeles by using the wires of the same telegraph company. In an action for damages brought against the telegraph company by the widow, held:</p> <p>1. It is the duty of a telegraph company to write on. a message transmitted by it the name of the place from which it was sent.</p> <p>2. If the application for the transfer of the money to San Francisco was made by the woman’s agent on direction of the telegraph company’s agent, after the agent of the woman had insisted on his belief that the message was really sent from Los Angeles, the company would be liable in damages.</p> <p>3. Fact Case.—See opinion for facts under which a verdict for $1000 was not deemed excessive.</p>

<p>1. Pleading.—If a petition be sufficient to authorize the relief granted mere inconsistencies contained in it will not support a motion in arrest of judgment.</p> <p>2. Pleading—Nonjoinder of Parties.—Nonjoinder of parties when presented for the first time after judgment will not support a motion in arrest of judgment. It •must be specially pleaded before trial.</p> <p>3. Evidence—-Fraud.—In a suit by vendor against his vendee to cancel a deed for fraud the plaintiff is not required to deraign title from the sovereignty of the soil. The fraud of the purchaser being shown, he is entitled to a cancellation.</p> <p>4. Practice—Pleading.—In a suit for cancellation of a deed for fraud in the purchaser, when in addition the prayer is for general relief and the purchaser was by virtue ■of the deed in possession, the decree canceling the deed should award a writ of possession under the prayer for general relief.</p> <p>5. Deed.—It is necessary to the validity of a deed that the mind of the vendor comprehends and assents to its terms; hence if he, being ignorant and unable to read, is misled as to its terms by even a stranger to the contract, he is entitled to a decree canceling the deed, but only after tendering the consideration received, or if this consisted of specific articles then the articles or their value. If facts authorize a cancellation the plaintiff is entitled to a cancellation of the entire contract, though the deception which vitiated the deed had relation to only a part of the land conveyed.</p>

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

<p>Municipal Corporation.—A municipal corporation incorporated under general laws can not by contract loan its credit to a private corporation. A contract between such city and individuals who bind themselves to be afterwards incorporated, and which provides in effect for an extension of such credit to the proposed corporation, is within, the prohibition of article 11, section 3, of the State Constitution, and void.</p>

Tried below before Hon. J. M. Hall. The agreement of counsel and the affidavit submitted in support of the motion to set it aside are given.

<p>1. Venue—Suit for Land.—The District Courts have jurisdiction over suits for the recovery of land situate within the respective counties of such courts. This is not taken away by the Land Fraud Act giving jurisdiction in certain cases to the District Court of Travis County regardless of the locality of the land. 66 Texas, 363.</p> <p>2. Limitation—Fraud.—The limitation of one year prescribed for the institution of suits to cancel fraudulent land sales, does not begin to run until the discovery of the fraud.</p> <p>3. Pleading—Fraud.—It was alleged in the petition that Jones, in whose name the lands were bought, was the hireling and tool of the defendant company; that he made the purchase at its instance and for its benefit, and that he had transferred all his interest in the land to the defendant corporation. Held, that these allegations were ¡sufficiently definite to charge the fraud relied upon.</p> <p>4. Parties.—Where it is charged that the original grantee had parted with his title he is not a proper party to a suit to recover the land from a purchaser participating in the fraud in obtaining the title.</p>

<p>Appeal from Dallas. Tried below before Hon. Geo. H. Aldredge.</p>

<p>1. Damages.—Plaintiff by falling through an open cellar door broke his leg; the .■same leg had been broken before, but it had recovered; the bone however was weak■ened by the first break. Held, the damages to which plaintiff was entitled were the ■damages resulting to himself in the condition in which he was when injured, and not such as he might have been entitled to had his condition been different. A charge otherwise was properly refused.</p> <p>2. Former Injuries.—The questions in asuit for personal injuries caused by negligence are:</p> <p>1. Was plaintiff injured through the negligence of the defendants without contributory negligence on his own part; and</p> <p>2. If so, what sum would compensate him for the injury so received. Former injuries form no subject of inquiry. '</p> <p>3. Facts.—See facts where a verdict for $2000 held not excessive.</p>

<p>1. County School Lands — Pre-emption.-—Against one entering upon county school lands knowing that the lands were leased for a term of years, and claiming possession in right of pre-emption, held: If section 6 of article 7 of the Constitution was intended to apply to persons who might thereafter enter upon school lands it should be limited so as to include only such parties as should make settlement in good faith.</p> <p>2. Same—Power to Sell.—It is contemplated by the Constitution, in section 6, article 7, that the counties should have the power to derive a revenue from their lands by lease, without selling them. It would be inconsistent with this right to allow any interference with the possession of the county by the entry of any one, although claiming "the right of pre-emption, when the county should offer the lands for sale.</p> <p>3. Same.—The county desiring to raise revenue for the public schools by leasing -its school lands can regain possession against an intruder upon the land, even though -claiming the right, by reason of his occupancy, to buy.</p>

<p>Appeal from Dallas. Tried below before Hon. Geo. H. Aldredge,</p>

<p>Homestead.—One having title to real estate who occupies with his wife a house situate thereon with a purpose existing at the time to malee it the permanent residence of himself and wife, thereby constitutes it his homestead, and the duration of such occupancy is immaterial. Though the actual occupancy was for but two days, after which the husband and wife rented and moved to another place, if there was no intention of abandonment, the homestead right protected the property from forced sale, and this against a purchaser having no notice of its former occupancy as a home.</p>

<p>1. Descent and Distribution.—Before the Act of March 30, 1887, amending article 1653, Revised Statutes, if the husband or wife died leaving grandchildren and no. children the entire community estate passed to the surviving spouse.</p> <p>2. Practice—Judgment.—A plaintiff in a suit for partition whose petition asked for partition and general relief, without alleging that the defendant is in possession or withholds possession, when the judgment is for title to an undivided interest, is not entitled to a judgment awarding a writ of possession.</p> <p>3. Partition.—An action brought for partition abates as such on the dismissal of' the suit as to one defendant whose tenancy in common is admitted by the petition. All. parties in interest are necessary parties.</p>

<p>Appeal from Fannin. Tried below before Hon. D. H. Scott.</p>

<p>1. Ancient Instrument—Affidavit of Forgery.—An instrument produced from, the proper custody and over thirty years old, being such that if genuine it would transfer the property affected by it, is admissible as an ancient instrument. Its competency is not affected by an adverse affidavit of forgery. With or without such affidavit any proper evidence may be introduced to contest its validity.</p> <p>2. Same—Married Women.—An instrument regular in form as a deed for land, and made by a married woman but not executed as required by statute by privy examamination and acknowledgment, is not the deed of such woman, and age does not give-it validity.</p> <p>3. Partition—Parties.—All parties interested as part owners of a tract of land, are necessary parties in a suit for a partition of it.</p> <p>4. Depositions of Party Taken by Adverse Party.—It is not sufficient ground for suppressing the depositions of a party taken without notice by the adverse party that counsel for the party taking the testimony was present and aided the notary taking the answers by reading the interrogatories, nor is such witness entitled to time for preparation or to get advice about her answers.</p> <p>5. Construction of Deed — Land Measure Judicially Known.—A deed was produced in evidence by defendant who was shown to have been the owner of one-fourth of two-thirds of a league and labor of the David Odum headlight conveying “ three hundred acres of land of the remaining interest that I hold in the David Odum headlight. ” There was no other testimony to the number of acres in the tract. Held, error to instruct the j ury that such deed conveyed the entire interest of the grantor in the tract of land. The court judicially lmows the acreage in a two-thirds league and labor.</p> <p>6. Limitation in Tenancy in Common.—-Title in land held by tenants in common may he acquired by adverse possession, etc., in separate parcels of a large tract. A plaintiff seeking- partition in the adjustment of the equities may become entitled to have his share allotted out of such part as may not have been acquired in severalty by limitation.</p>

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

<p>1. Bight of Action—Practice—Land Fraud Act.—A defendant against whom suit was brought by the Attorney-General in the name of the State under the Act of April 14, 1883, known as the Land Fraud Act, can not question by demurrer the right of the Attorney-General to bring the suit without specific direction so to do, directly applicable to him. It was not necessary under that act that the Land Board should have directed the Attorney-General to cause suit to be brought against any particular person. It was sufficient that the Board directed suit to set aside purchases of the specific land, and a conveyance by the fraudulent purchaser from the State after suit brought against him could not affect the right of the State to prosecute the suit against his vendee.</p> <p>3. Same.—When the defendant in a suit brought by the State under the Land Fraud Act of April 14, 1883, conveyed by deed his entire interest after the suit was instituted, it was not necessary that his heirs should be made parties defendant, but the State could continue the suit to set aside the original purchase against his vendee, not as a new suit but as an action brought in contemplation of law within twelve months • after the Act of April 14, 1883.</p> <p>3. Tender.—The doctrine announced in State v. Snyder, 66 Texas, 687, that it was not incumbent on the State to tender a return of purchase money for public land fraudulently purchased in order to maintain an action to recover the land, adhered to.</p>

<p>1. Pleading.—In a suit to recover damages against a building contractor for breach of his agreement to construct a house .with the character of material contracted for and in a workmanlike manner, a general allegation in the petition that the material used and work done were not in accordance with the contract, though good on general demurrer is bad on special exception. It is the right of the defendant to be informed by the averments in the petition of specific facts which constitute the defects of material and workmanship.</p> <p>2. Pleading.—When a petition is silent in regard to an issuable matter involving the plaintiff’s right to recover, and which from the character of the case should have been set forth, if the issue be presented by the answer, the action of the court in overruling a demurrer to the petition becomes unimportant and can furnish no cause for reversal.</p> <p>3. Building Contract—Damages.—An architect selected by the property owner supervised the construction of a house built under a contract which provided that all cases of disputes as to the character of labor or material, or the meaning of the words used in the contract, should be submitted to the architect, whose decision should be final with no right of appeal therefrom; that the architect should not only supervise but direct and control the builder both as to material and workmanship, and that on the final completion of the work and its acceptance by the owner the reserved payment ■should be made on the certificate of the architect. On the completion of the building the reserve payment was made on the certificate of the architect and the building accepted. In a suit by the owner for damages caused by defective work and material, held:</p> <p>1. In the absence of collusion or fraud on the part of the architect or fraud on the part of the builder, a contract which provides that the owner shall not be liable for the construction of the house until the work is approved by the architect, is valid.</p> <p>2. It was not necessary that a controversy should have arisen during the progress of the building in order to make the decision of the architect either as to workmanship or material binding between the parties.</p> <p>3. The certificates of the architect given as the house progressed and on its completion that it was built according to contract were decisions conclusive in the absence of •collusion, fraud, or concealment, and binding on the parties.</p> <p>4. The right of the builder to exercise his own judgment was subordinate to the right of the architect as to all matters relating to workmanship or material.</p> <p>4, Cases Reviewed.—Omaha v. Hammond, 94 United States, 98; and Kane v. Stone, 39 Ohio State, 11, reviewed.</p>

Error from Wise. Tried below before Hon. F. E. Finer. The petition of Mary E. Hale, as surviving widow of J. W. Hale, and Roena T. Oates, as only heir of J. W. Hale, joined by her husband -C. D. Cates, declared that Hale was dead; that plaintiffs were his only heirs; that there was no administration upon his estate, and showed by facts alleged that there was no necessity for administration.

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

Tried below before Hon. T. M. Paschal. This is a second appeal. In the report of the first appeal (62 Texas, :313) is a general statement of the case. This with the opinion here •will fully state the facts of the case.

<p>1. Pleadings—Petition in Suit for Personal Injuries.—Upon general demurrer a petition is good asking damages for personal injury suffered by the plaintiff alleged to have been received upon the railroad track of the defendant necessarily used by the public in passing along the street, without fault or negligence on his part, by the cars detached and loose, running swiftly on a down grade upon the plaintiff.</p> <p>2. Negligence—Loose Cars on Street.—It is clearly negligent for a railway company to permit detached cars without signals or warning to run upon a down grade through the streets of a city when the public had the right to use the track in passing along the street.</p> <p>3. Pleadings.— By special exceptions the defendant could have compelled the plaintiff to set out in the petition the circumstances showing the necessity for the public using the track, and the acts of the plaintiff at the time to avoid danger</p>

<p>1. Former Judgment—Trespass to Try Title.—In 1872 a second action in tres•pass to try title was brought. The controversy was as to the locality of the north line of the Mixon survey. The defendant pleaded not guilty. In a bill of exceptions it is shown that defendant offered in evidence the proceedings and judgment in his favor in the first suit, insisting that the first suit was conclusive upon the matter of boundary claimed to be the matter in controversy. The jury were instructed “if they found for defendant on the issue of the old judgment * * * they will so say in their verdict. If they should find their verdict for plaintiff or for defendant on the merits of the case, without reference to the old judgment, they should return a general verdict.” There was a general verdict for the defendant. In the statement of facts there is nothing tending to show the former judgment. Held:</p> <p>1. That in the absence of testimony in the statement of facts the court can not assume that the result was affected by testimony the nature or amount of which is not ;shown.</p> <p>2. The verdict being upon the general issue and not upon the plea of former judg.ment, the charge submitting the special issue will not be presumed to have been injurious to the plaintiff.</p> <p>2. Calls—Corners, etc.—See charge upon dignity of calls in surveys held to be in .accordance with previous cases.</p>

<p>1. Vendor’s Lien.—Two joint owners of land malee a partition and exchange deeds -which on the face show a settlement between them of the values placed upon the part ■of the tract taken by each. Held, that a subsequent purchaser without notice from the one owing upon the partition would take freed from the burden which had been assumed by his vendor.</p> <p>2. Subrogation.—One of two joint purchasers paying more than his proportion of the purchase money, when the rights of the vendor will not be affected thereby, is entitled to be subrogated to the vendor's lien for so much as has been paid over the proportion assumed by him in the purchase.</p> <p>8. Extinguishment of a Debt.—The extinguishment by payment or otherwise -of a debt jointly owed by two parties will enure to the benefit of the parties in absence •of any indication upon whose credit such payment or satisfaction was made.</p>

Tried below before Hon. Geo. 1ST. Aldredge. September 1, 1882, appellee Hays brought suit against J. M. Gross for the possession of a quantity of goods, household furniture, wearing apparel, etc., of alleged aggregate value of 8606.50. A writ of sequestration was obtained and the sheriff took such of the described articles as were found. The defendant declining to replevy the plaintiff gave a replevy bond.

<p>Corpse and Distance—Comers—Calls.—A verdict fixing a comer by course and distance from another well known comer 2688 varas distant, which gives the quantity called for to the survey, will not be disturbed by reason of a call in the field notes for a known bearing tree 916 varas distant, the corner in dispute being unmarked and in a prairie and the acreage in the survey being in excess if the comer he located upon the course and distance from the hearing tree.</p>

<p>I. Practice—Attorney.—No written answer is required to amotion that an attorney be required to show by what authority he instituted or prosecutes a suit. He may in answer to the motion exhibit to the court the evidence of his authority.</p> <p>3. Evidence—Dormant Judgment.—In a suit to revive a dormant judgment, from which no appeal was taken, the defenses interposed in the original suit can not be set up.</p> <p>3. Judgment.—In a proceeding in debt upon a dormant judgment, and for costs paid in the original suit, if the judgment be for the plaintiff the judgment should be rendered for an amount which the original judgment with the accrued interest and costs of both suits would aggregate.</p> <p>4. Hetaxing Costs.—No relief can be had on appeal against a judgment in so far as it relates to costs if in other respects correct unless an effort to correct the judgment as to costs was made before the trial court.</p>

<p>Appeal from Lamar. Tried below before Hon. D. H. Scott.</p>

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

<p>Partition—Final Judgment.—In a suit for partition the action of the court which ascertains the rights of the parties in the property sought to he partitioned, with order appointing commissioners to make the partition, is the final judgment. An appeal from the order of the court upon the report of the commissioners, the record not, showing a final decree, will not open the question as to the legality of the first or final judgment.</p>

Error from Johnson. Tried below before Hon. J. M. Hall. On the 8th day of May, 1884, defendant in error caused an execution to be levied upon the goods in question by the sheriff of Johnson County, and by him valued at $1625.65, as the property of one H. Horton, defendant in execution, to satisfy a debt or judgment for the sum of $124.06, interest and cost.

<p>1. Cities and Towns.—The Act of April 13, 1871, which empowered municipal corporations to malee donations to railway companies, practically became a part of the. charters of cities and towns which were granted prior to the passage of that act.</p> <p>2. Donations to Railways.—The donation made by the town of Bonham in 1873. to the Texas & Pacific Railway on a vote of its citizens under the Act of April 13,1871, was valid and binding on the town. It was for the Legislature to determine whetherafterwards, when the town of Bonham was incorporated as a city, its limits should be extended by charter, and this without regard to the wishes of those included by the extension. The property thus included by the extended limits becomes, in the absence of legislation to the contrary, subject to taxation for all municipal indebtedness existing before the limits of the municipal government were extended.</p>

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

Tried below before Hon. J. P. Hutchison, special district judge. This is an appeal from a judgment for the defendant in an action of trespass to try title. The plaintiff claimed under an execution sale.

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

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

<p>Appeal-from Bexar. Tried below before Hon. G. H. Abonan.</p>

<p>1. Practice—Affidavit in Lieu of Cost Bond.—It is error to dismiss an action although a cost bond may not have been filed within the time prescribed by the statute but tendered before the case was actually dismissed. The affidavit of inability supplies the place of the cost bond.</p> <p>2. Libel—Corporation Liable.—A corporation may become liable in a civil action for both actual and exemplary damages for libel.</p> <p>3. Same—Exemplary Damages.—Exemplary damages may be awarded against a corporation when it is shown that a libel has been published by it with express malice as in other cases of torts done maliciously or wantonly.</p> <p>4. Libel—Pleadings.—It was alleged that defendant published in a pamphlet that plaintiff “A. F. Richmond, a conductor on the I. & Q-. N., was discharged in July, 1883, for carelessness.” Of this publication it was alleged that by its language was meant and intended to charge that plaintiff was careless in his business and employment as conductor, and was so at his discharge. Held, that exceptions to the petition that the language was not susceptible of the meaning so charged were properly overruled.</p> <p>5. Libel Concerning a Man in His Employment.—Language which concerns the person in his employment will be actionable if it affects him therein in a manner that may as a necessary consequence, or does as a natural or proximate consequence, prevent him deriving therefrom that pecuniary reward which probably he might otherwise have obtained. Townshend on Libel, 182.</p> <p>6. Same.—The circulation of the pamphlet containing the alleged statements concerning the plaintiff among those entrusted with the duty of employing railroad hands would be injurious, and if the matter was false it would be libelous.</p> <p>7. Duty of Railway Company to Avoid Incompetent Employes.— It appearing that the defendant company was operating 6000 miles of railroad with 24,000 employes, it would be impossible without some system of reporting incompetent men to avoid the danger of re-employing them. It would become the duty of the defendant to the public to avoid such re-employment, and to take proper measures to guard against it.</p> <p>8. Reports of Employes.—In absence of evidence other than that the reports to the central office as to employes were honestly made, and that copies of the pamphlet compiled from the reports were circulated beyond the officers of the defendant company, there could be no recovery save for actual damages even if the matter was false.</p> <p>9. Privileged Communications.—A communication made in good faith in reference to a matter in which the person communicating has an interest, or in which the public has an interest, is privileged if made to another for the purpose of protecting his interest; and a communication made in discharge of a duty and looking to the prevention of wrong towards another or the public, is so privileged when made in good faith.</p> <p>10. Malice.—In such cases malice will not be inferred from the publication, and the existence of it as a fact must be established by other evidence.</p> <p>11. Duty to Public—Competency of Railway Employes.-—Looking to the public interests involved in the safe operation of railways, as well as the interests of their owners, it seems that one having reasonable ground to believe that a person seeking important position in that service was incompetent, careless, or otherwise unfit, would be under such obligation to communicate his knowledge to all persons likely to employ such unfit person in that business as would make the publication privileged if made in good faith.</p> <p>12. Pleadings.—In alleging special damages suffered the petition alleged that the plaintiff had been refused employment by other railway companies, not giving names .or circumstances. Held, the allegations sufficient on general demurrer.</p>

<p>1. Deed by Married Woman.—A deed by a married woman, in which her husband does not join and concerning the execution of which she is not privily examined as required by statute, conveys no title.</p> <p>2. Deed.—When the intention of the maker of a deed can be clearly arrived at from the language used effect must be given to it.</p> <p>3. Same.'—A deed was made to land which was referred to as containing one hundred and ninety acres, and which by its calls embraced a tract of one hundred and twenty acres, though the one hundred and twenty acres were referred to as follows: “ Furthermore, this deed is not to interfere or in the least conflict with or include any part or parcel of one hundred and twenty acres heretofore deeded to said A. Dougherty (one of the grantors) by said Nancy M. White, but the right to said A. Dougherty made as aforesaid holds good, and the one hundred and twenty acres is yet held and owned by A. Dougherty in and out of said one hundred and ninety acres.” Held: The apparent repugnancy of the provisions of the deed should be reconciled by giving effect to the manifest purpose of the grantor to except from the land conveyed the one hundred and twenty acres.</p> <p>4. Partition.—A married woman who participates in a voluntary partition between herself and other joint owners of land, and who executes a deed in partition, though it be not acknowledged as required by statute or signed by the husband, it may be enforced when she acts on the division as made by receiving and appropriating other property conveyed to her in partition of the entire estate, all parties in interest regarding the land thus conveyed by her as a part of the general partition. The irregularity in the execution of the deed in such case becomes unimportant since the married woman could have bound herself by co-operating in aparol partition of the estate.</p>

<p>1. Parties.—In a suit for debt against the husband the wife is neither a necessary nor proper party defendant when there is no prayer to subject the separate property of the wife to the payment of the debt.</p> <p>2. Husband and Wife—Contract.—Marriage alone confers on the wife an agency to purchase necessaries for herself and children, if her husband fails to supply them. In a suit involving the liability of the husband, whether goods purchased by the wife-were necessary or not is for the determination of .the jury.</p>

Tried below before Hon. William Kennedy. In addition to the statement of the case contained in the opinion, it may be added that the plaintiff having alleged that the money with which the property in controversy had been bought had accrued to her from a separate estate she owned in Pensylvania, the law of Pennsylvania relating to the estates of married women was introduced, and was as follows: “ That every species and description of property, whether real, personal, or…

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

Tried below before Hon. A. S. Walker. The note sued on by appellants is as follows: “$1625.00. Georgetown, Texas, October 15, 1883. “ On December 15th, 1884, after date, I promise to pay Annie L. Etheridge the sum of $1625 value received, with interest at the rate of ten per cent until paid.

Tried below before Hon-. R. E. Beckham. Suit by appellants alleging that appellants were a firm doing business ■in Dallas, Texas, and that they had theretofore between March 7, 1884, and the last of July, 1884, delivered to J. D. Parks, then at Fort Worth, but who suddenly died in the last of July, 1884, goods to the amount in value of algout $2100, which Parks never returned nor accounted for; that the goods were delivered under a written contract entered into by them and…

Tried below before Hon. G. H. Noonan. This suit wa brought August 18, 1885, by Henry Bosse against A. H. Cadwallader and J. D. Snyder, in trespass to try title for certain lots in. the city of San Antonio, described in the petition. September 5, 1885, Cadwallader and Snyder answered not guilty, and. further that they held the premises as tenants of S. M. Johnson the appellee.

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

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

Error from Wise. Tried below before Hon. E. E. Finer. This is a writ of error from a judgment sustaining a demurrer and exceptions to the petition brought by the plaintiff in error, a stockholder in the Wise County Coal Company, and against its officers and stockholders other than plaintiff for damages from the fraudulent mismanagement of the business of the corporation, resulting in loss and injury to plaintiff. The opinion sufficiently shows the petition and its defects.

<p>Appeal from Lamar. Tried below before Hon. Richard B. Semple..</p>

<p>Error from Erio. Tried below before Hon. D. P. Marr.</p>

<p>Appeal from Travis. Tried below before Hon. W. M. Key.</p>

<p>Trustee—His Duty and Liability.—Two vendor’s lien notes were executed to Parker, one of them in trust for Boss. The vendee of the land executed to Parker a deed of trust to secure the notes and it was provided that Parker’s note had preference. By agreement insisted upon by Boss the vendee insured the premises, Parker holding the policies. In the policies it was stipulated, “Payable to Thomas Parker as his interest may appear.” In the deed of trust it was stipulated that the insurance “was to cover the amount that may be due on both notes * * ® for the benefit and protection of Thomas Parker or the owner of said notes.” Boss received his note from Parker. The insured improvements upon the land were destroyed by fire. Parker collected the insurance money, retained the amount of his note, and gave the balancetothe purchaser. Held, that Parker’s duty was to appropriate the insurance money as was provided for in trust deed, and having disposed of the money otherwise he was liable to .Boss for his proportion.</p>

<p>1. Charge.—In absence of testimony tending to prove that a railway company had in its employ incompetent servants it is improper to charge upon that subject, or if any charge thereon, simply to direct that the jury should not consider that issue.</p> <p>2. Railway Employes—Fellow Servants.—An engineer and the fireman upon an engine are fellow servants, and a fireman can not recover for injury caused by the engineer’s want of proper care.</p> <p>3. Directions and Orders are Acts. —There- is no difference in respect to the liability of the employer between words and acts; between an act of a fellow servant that causes an injury or a command that produces the same result.</p> <p>4. Case Followed.—Robinson v. Houston & Texas Central Railway Company, 46 Texas, 541, adhered to.</p>

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

<p>Appeal from Dallas. Tried below before Hon. Geo. H. Aldredge.</p>

<p>1. Citation Upon Non-Resident Without the State.—Since the decision in Pennoyer v. Neff (95 U. S., 733), it must be held that service made without the State is insufficient to confer jurisdiction on a court of this State to render a mere personal judgment against one a citizen of and resident in another State.</p> <p>2. Appearance.—An appearance is said to be strictly voluntary when without the-service of process a defendant in some manner indicates his intention to submit his person and cause to the jurisdiction of the court.</p> <p>3. Same.—Revised Statutes, articles 1241 and 1242, declare what is an appearance* how entered, and the effect of it as the equivalent to personal service.</p> <p>4. ^-Special Appearance.—Article 1343, Revised Statutes, provides: “ When the ■citation or service thereof is quashed on motion of the defendant the case may be continued for the term, but the defendant shall be deemed to have entered his appearance to the succeeding term of the court.” This gave to the special appearance of defendant for the purpose of objecting to the service of citation upon him the effect of an appearance to the succeeding term of the court.</p> <p>5. Same.—A defendant who files any defensive pleading makes such an appear•ance under the Revised Statutes as gives the court jurisdiction over his person as fully •■as would the issuance of proper citation and its proper service within the State.</p> <p>6. Same.—The purpose for which an appearance is made is unimportant, as is the intention with which it is made, if the act done is one which the statute declares is such as gives to the court jurisdiction to render a personal judgment against the person appearing.</p> <p>7. Agreement as to Venue.—An agreement in a lease from the State that the venue for suit upon it shall be in Travis County does not confer jurisdiction upon the court over the person of the party signing such lease contract who is a citizen and resi•dent of another State.</p>

<p>Appeal from Travis. Tried below before Hon. W. M. Key.</p>

<p>1. Pleading—Assignment of Note..—In absence of a plea supported by affidavit, putting in issue an endorsement upon a note sued upon, the assignment should be regarded as fully proved. Rev. Stats., art. 337.</p> <p>2, Delivery of Instrument.—The statutory rule includes the delivery as well as. the endorsement upon the note.</p> <p>3. Pacts Not Alleged.—Under a general denial the defendant could have no benefit from testimony tending to show the non-delivery of a note to the endorsee. Facts; not alleged can not form the basis of relief.</p> <p>4, Pleading—Limitation.—The note declared on by plaintiff holding under an. endorsement, appeared barred by limitation. The defendant pleaded by special demurrer that the action was barred by limitation. By amendment plaintiff alleged “ that at the date of the execution of the note sued upon and of the transfer of said note plaintiff' was a minor.” The note was payable one day after date. Meld:</p> <p>1. That as but one date was alleged for the making and the transfer it was equivalent, to an allegation of the transfer upon the date of the note.</p> <p>3. As the defense was made by exceptions and not by plea the petition was good unless the action appeared to be barred.</p> <p>3. The transfer being alleged as made to the minor before the statute began to run it would avoid the statute, the continuance of his minority until within four years of the filing of the petition appearing.</p> <p>4. But otherwise if the statute had began to run before the transfer.</p>

<p>Citation—Suit Against Partnership.—Suit was filed against J. W. Sacra, E. C. Sugg & Bro., and others. The firm of E. C. Sugg &Bro. was alleged to be composed "of said E. C. Sugg and T. D. Sugg, called Iker Sugg. The latter was a non-resident. The resident defendants were regularly served with citation. Notice was served upon the non-resident defendant under name of Iker Sugg. At return term judgment final by default was rendered against all the resident defendants and against the firm of E. C. Sugg & Bro., composed of E. C. and I. D. (or Brer) Sugg. No personal judgment against the latter. During the term J. D. Sugg filed a motion to set aside the judgment against E. C. Sugg & Bro., alleged that he was the partner in said firm with E. C. and that his name was not T. D. or Iker but was J. D. Sugg and sometimes called Ikard. That the firm E. C. Sugg & Bro. were sureties, and that E. C. Sugg had no authority to bind the firm by signing the note as security, etc. The plaintiff in answer to the motion alleged that Sacra and E. C. and J. D. Sugg were partners, and that E. C. Sugg was accustomed to sign the firm name and as security, and asked that the judgment be amended so as to correct the names of the members of the firm. Affidavits for and against the truth of the allegations were heard. The court overruled the motion and amended the names. Held, on appeal:</p> <p>1. The court having heard the parties upon the merits of the motion and the testimony being conflicting its action will not be revised.</p> <p>2. The judgment being against E. C. Sugg and E. C. Sugg & Bro. was a final disposition of the case as to all the parties, the jurisdiction over the firm having been obtained by service upon the resident members.</p> <p>3. The amendment in the judgment during the term was within the power of the. court.</p>

<p>1. Separate Property of Wife—Notice.—A bona fide purchaser from the husband of real estate deeded him during coverture takes the land discharged from any latent equity, such as that his wife’s money entered into the purchase.</p> <p>S. Practice—Charge.—When the court has fully charged upon an issue it can not injure a party that further instructions upon the subject were refused.</p> <p>3. Charge Not Required Unless Issue Made.—If there is no testimony to a cause of action or of defense alleged it is not error to omit to charge upon such issue.</p>