Volume 74 — Texas Reports

<p>Appeal from Wilson. Tried below before Hon. Geo. McCormick.</p> <p>The opinion states the case,</p>

Tried below before Hon. A. S. Walker. G. T. Tisdale, the appellee, sued the appellants upon a contract of carriage from Franklin, Kentucky, to Georgetown, Texas, to recover damages for failure to deliver a jack and for injuries sustained in transit by a stallion. Plaintiff also sought to recover the rental value of the jack and of the stallion, and the probable earnings of each as a foal getter during the breeding season of 1886.

<p>1. Final Judgment.—A judgment in a partition suit is not final where the interest of a party plaintiff claiming a life interest in a part of the land is not passed upon.</p> <p>2. Same—Disclaimer.—Nor is the judgment aided by a disclaimer filed subsequent to the judgment by the party claiming such life estate assigning and filing his transfer in the record, transferring his right to his daughter, who was a party.</p> <p>3. Same.—In such state of the record, for want of a final judgment the appeal is dismissed.</p>

<p>Appeal from Bexar. Tried below before Hon. Geo. H. Noonan.</p> <p>The opinion states the case.</p>

<p>1. Attack Upon Fraudulent Transfer.—Where a creditor seeks to avoid a transfer by a debtor and the evidence is conflicting or uncertain as to the amount of his claim he can only complain to the extent of his demand.</p> <p>3. Effect of Fraudulent Transfer of a Judgment.—As against the plaintiff assigning a judgment held by him his act is binding as well against himself as one taking ■a second transfer knowing the facts. Such is the effect, whether the first assignment or transfer was fraudulent or an honest transaction. '</p> <p>3. Estoppel.—A contract by defendants in a money judgment with the apparent owner of it by transfer from the plaintiff, by which for a valuable consideration the judgment was not to be enforced by execution until certain garnishment proceedings over which the defendants had control should be dismissed, will turn loose the judgment upon the dismissal of the garnishment proceedings although dismissed by the defendants in ignorance of the effect their dealings with the original plaintiff would have as against the holder of the judgment. The contract and consideration estopped the defendants to deny the ownership of the holder with whom they had dealt as such.</p>

<p>1. Exemplary Damages for Causing Death.—It is recognized "by our courts that the right to maintain an action for the recovery of exemplary damages for death of a person caused by the willful act, omission, or gross neglect of a corporation or company, etc., is confined to the class of persons who by the terms of the Constitution are designated as entitled to maintain such actions, viz., the surviving husband or wife or heirs of the body of the deceased, and not to the parent.</p> <p>2. Allegations of Negligence.—On special exception to the allegations in petition it is not sufficient to allege that the servants and employes of the defendant (a railway company) were grossly negligent and reckless in running and operating the train, in failing to give proper signals, or keep a proper look out, etc., that the train was under control of an officer of defendant—there being ne allegation showing any willful act, omission, or gross neglect on part of the officer in control and representing the defendant, nor of any ratification of such act on part of defendant.</p> <p>3. Suit for Death of an Adult Son by Parent.—As basis for damages for the death of a son in a suit by a parent the reasonable expectation of benefit the parent would have received had the adult son not been killed must be shown And in the absence of legal right to the services of the deceased this would depend upon his ability and will to confer the benefit upon the parent.</p>

<p>Appeal from Coleman. Tried below before Hon. J. O. Randolph.</p> <p>The opinion states the case.</p>

<p>Appeal from McMullen. Tried below before Hon. D. P. Marr.</p> <p>The opinion states the case.</p>

<p>Appeal from Runnels. Tried below before Hon. Wm. Kennedy.</p> <p>The opinion states the case.</p>

<p>1. Sheriff’s Return—Service on Corporation.—A sheriff’s return, “Came to hand on the thirteenth day of April, A. D. 1883, and executed the same day of April, A. D. 1883, by delivering to the defendant the G. H. & S. A. R. R. Co. in person by and through H. B. Andrews, the vice-president thereof, a true copy of this citation,” is defective in not showing that service was made by the sheriff.</p> <p>2. Void and Voidable Judgments—Injunction.—Injunction was sought by the railway company to restrain a number of judgments rendered against it in a Justice Court. Held, that while the judgments were voidable because rendered upon a defective service, still resort should have been had to the statutory mode of correcting the errors in the several judgments, viz., appeal or certiorari. Where such remedies were neglected relief by injunction will be denied.</p> <p>3. Same.—Inasmuch as some of the judgments sought to be enjoined were for less than twenty dollars it was error to dissolve the injunction as to them, the right to appeal not existing.</p> <p>4. Expenses in Resisting an Injunction.—In this State .the expenses of the •defendant in obtaining a dissolution of an injunction, as attorney fees, loss of time, etc., can not be allowed as damages.</p> <p>5. Exemplary Damages can not be imposed upon a client for the act of his attorney in absence of ratification or of participation by the client.</p>

<p>1. Citation—Recitals in Judgment.—On writ of error it is assigned that the •citation is insufficient to support the judgment. No citation is copied into the transcript. The judgment recites that the defendant was duly cited. Held, that it is evident from the entire record that the defendant had been cited and the defect in the ■service is not shown. There is therefore no ground for reversal for want of sufficient •service.</p> <p>2. Days of Grace.—Suit was upon four notes secured by mortgage, one of which notes was not due. The notes provided for an attorney fee in case of default in payment and suit. On the day of the rendition of the judgment by amended petition it was alleged that all the notes were due, prayer for judgment upon all, and for stipulated attorney fee. The judgment was rendered on the eighteenth of May, 1886. The last note was qrayable May 15. Held:</p> <p>1. The note was entitled to days of grace.</p> <p>3. Consequently that upon rendition of the judgment the last note was not due, and it was error to render judgment for it or for the stipulated attorney fee" upon it.</p> <p>3. A note payable to the payee only is entitled to the days of grace.</p> <p>4. The maker has the entire day of the last day of grace within which to pay.</p>

<p>1. Errors Cured by Verdict.—A pleading is cured by the verdict when the omitted fact is such that it is to be presunled that the judge would not have directed the jury to give the verdict, or the jury would not have given it, unless it (the omitted allegation) had been proved. ' But a verdict will not' cure the omission of a necessary .substantive allegation.</p> <p>S. Same—Case in Judgment.—It is held that by fair implication from an alleged sale of its assets by a partnership to a third party the conclusion is deducible that the firm was dissolved. From the allegations that the defendant, who had been a member of the firm, had owed it two debts (describing them), one of which was settled in the' sale, is indicated that the partnership owed him nothing upon account further than his interest in the assets which he had sold, and that his unsatisfied debt was intended to he transferred as a part of the assets. These facts with the transfer to the plaintiff are sufficient on appeal, the demurrer not having been urged below.</p> <p>3. Immaterial Excess in Verdict.—An excess in a verdict of one-fourth of one per cent of the recovery, and not brought to the attention of the court below, on appeal will he considered immaterial and is no ground for reversal.</p>

<p>1. Garnishment.—An affidavit for garnishment by a judgment creditor which stated that “The Insurance Company of North America” was indebted to the judgment debtor, without stating whether the company was a corporation, joint stock company, or copartnership, is insufficient, since it does not enable the officer to properly issue the writ of garnishment, and this though it does contain a statement that a party named in the affidavit is the agent of the insurance company.</p> <p>2. Return on Writ of Garnishment.—The return of the officer on the writ of garnishment against two corporate companies which recites its execution “by delivering to the within named garnishee in person a true copy of this writ,” is fatally defective, and will not authorize an action against either company.</p> <p>3. ' Garnishment—Jurisdiction.—When both the affidadit for a writ of garnishment and the return of the officer thereon are fatally defective, and the court is without jurisdiction to hear and determine, such jurisdiction can not be acquired by the answer of an agent of the party sought to be garnished.</p> <p>4. Garnishment.—Garnishment rests wholly on judicial process, and depends on the due pursuit of the steps prescribed by law for its prosecution. It can derive no aid from the volunteer acts of the garnishee, and such acts will be regarded as void when they interfere with the rights of third persons.</p> <p>5. Garnishment—Judgment.—The power in a court to render judgment against one sought to be charged as garnishee can not be derived from an answer he may file or an issue made thereon; it can exist only when the steps made requisite by the statute to bring the garnishee before the court have been taken.</p>

<p>Appeal from Tarrant. Tried below before Hon. J. Y. Hogsett, Special Judge.</p> <p>The opinion states the case.</p>

Tried below before Hon. A. W. Hoursund. This was an action brought by W. L. Armstrong against Kaufman & Runge for the recovery of two thousand dollars actual damages and eight thousand dollars punitory damages for the alleged unlawful and malicious suing out of a writ of attachment and the levy of the same upon a stock of goods alleged to have been the property of Armstrong.

<p>Appeal from Jack. Tried below before Hon. P. M. Stine.</p> <p>The opinion states the case.</p>

<p>1. Parol Agreement for Sale of Land—Part Performance.—Payment of purchase money and change of possession under a parol contract for the sale of the land not followed by the vendee making permanent improvements thereon or showing other equity will not pass the legal or equitable title and the land may he recovered by the vendor.</p> <p>2. Case Followed.—Ann Berta Lodge v. Leverton, 42 Texas, 25, adhered to.</p> <p>3. Specific Performance.-—Where specific performance would be denied to the vendee the facts would not be a defense at suit by vendor for the land. The effect of the contract is alike invalid at suit of either party.</p>

<p>1. Outgoing Partner—Giving a Promissory Note is Not Payment.—After a partner left the firm the firm executed a promissory note for an account due the payee at the time of the dissolution. Suit was brought upon the note, also against the outgoing partner. He pleaded non eH factum, and denied that he was a member of the firm. Plaintiff by amendment alleged that the note was taken for a debt of the old firm, setting out the items of the account. Held, that the taking of the note was not a payment of the account, there being no testimony to an agreement that the note should he in satisfaction of the account.</p> <p>2. Attachment—New Cause of Action.—An attachment was sued out upon the note declared on. In the amended petition the plaintiff set up the account for which the note was given, and recovery was had upon the account. Held, that the change in the cause of action in the pleadings was fatal to the attachment, which ought to have been set aside. 6</p> <p>3. Interest Upon Accounts.—By agreement between parties interest may he recovered upon the account to which the agreement applied.</p>

<p>Appeal from Wise. Tried below before Hon. F. E. Finer.</p> <p>The opinion states the case.</p>

Error from Karnes. Tried below before Hon. H. Clay Pleasants.

<p>Appeal from Val Verde. Tried below before Hon. Winchester Kelso.</p> <p>The opinion states the case.</p>

<p>1. Libel—Charge of Court.—When in a suit for libel it is manifest that no ambiguity exists in the language complained of it is the duty of the court to instruct the jury as to whether the terms used are libelous; if the language is ambiguous the court should define libel in the charge and leave the jury to determine whether the language was libelous.</p> <p>2. Same.—When a libelous publication attacks one in office, if it relates to him personally and not officially, it is governed by the same rules that apply to libels against private persons; if it applies to him as an officer, then to malee the language actionable per se the charge must be of such a nature that if true it would be cause for his removal from office.</p> <p>3. Same.—A charge that a county commissioner was influenced in the discharge of an official duty by pecuniary considerations, or that he willfully sat as commissioner in judgment in a matter in which he was personally or pecuniarily interested, is libelous. Either charge, if true, would be cause for removing the commissioner for official misconduct.</p> <p>4. Libel.—See opinion for causes published by the constituents of a county commissioner for asking his resignation held not libelous.</p> <p>5. Same.—Certain citizens in a published address to the county commissioner asked him to resign his office for the following among other alleged causes: * * ";:" “2. Because it is contrary to our system of laws that any man should sit in judgment or pass on any right, real or imaginary, wherein he may have a pecuniary interest. ■* * * Because your actions show you to be a commissioner for Joe Cotulla [the name of the commissioner] only, and not for Precinct No. 1. For many reasons satisfactory to us, among which are the above, you are respectfully urged and earnestly requested to resign.” Held, the publication was libelous and the court should have so instructed the jury; and each and every one who signed the paper knowing that the purpose was to print it, or who signed and delivered it to another without knowing that it would be printed, would be guilty of circulating and signing a libelous paper.</p> <p>6. Publication.—Signing a libelous paper when it is being carried around to procure signatures, and delivering it when signed to another, is in itself a publication of it before it is printed if no protest against it being printed is made by the signer. Under such circumstances it is no defense for the signer to say that he did not intend or direct its publication.</p> <p>7. Libel—Damages.—One who signs and publishes a libel against a public officer is liable in a civil action for at least nominal damages unless he justifies by showing its truth; he is also liable for damages proximately resulting- from the publication, but not for loss of financial credit, the expense of borrowing money, or other injuries, having no connection with official character. Exemplary damages may be awarded when malice instigated the publication, and this may be inferred from the absence of probable cause.</p> <p>8. Libel.—It is no defense to a suit for libel that the defendant signed and published the same having reasonable and probable grounds to believe its truth.</p> <p>9. Same—Charge of Court.—See opinion for irrelevant matter connected with libel which should have been excluded from the consideration of the jury.</p>

Tried below before Hon. A. W. Moursund. This suit was brought by appellees on April 13, 1886, in trespass to try title and to remove cloud, against appellant for the 616-acre survey of land located in San Saba County, Texas, and patented by the State of Texas to Jacob De Cordova, assignee of the German Emigrant Company, on October 16, 1856.

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

Tried below before Hon. J. M. Hall. October 18, 1883, Adams sued Crenshaw and others in trespass to try title. The plaintiff claims that the land is included in the Mendoza survey for 2043 acres. This survey calls for the north lines of the several surveys claimed by the defendants, which are older than the Mendoza. The defendants pleaded not guilty. The question at issue was the locality of the northern boundary of the Johnson County school lands.

<p>1. Joint Wrongdoers.—Two writs of attachment were obtained against the same defendants, but in favor of different plaintiffs. The first in date was levied upon a stock of goods. On same day and by the same officer the second was levied upon the same stock and upon other property. In the latter the defendants set up in re-convention a claim for damages for an alleged wrongful and malicious seizure under the attachment. In the reconvention two thousand dollars damages were recovered. The defendants in attachment suosequently sued the plaintiffs in the first attachment, who had collected their debt under the attachment proceedings. Held:</p> <p>1. The wrongful seizure of the goods under the first attachment was a completed act for which an action would lie.</p> <p>3. It was error in the court below to charge that the recovery in reconvention against the plaintiffs in the second attachment barred action against the plaintiffs in the first.</p> <p>3. No common purpose or concert of action was shown so as to give to the separate acts of the two parties the character of joint trespass.</p> <p>2. Same.—It seems there can be no joint trespass unless there he command, advice, or encouragement to the actual trespasser, or concert or co-operation in the commission of a trespass, or subsequent ratification or adoption of an act of another done for his benefit or in his interest.</p>

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

<p>1. Settler in Good Faith—Cases Adhered To.—Burleson v. Durham, 46 Texas, 159; and Snyder v. Nunn, 66 Texas, 260, adhered to.</p> <p>2. Same—Statute Construed.—Under section 5 of Act of April 12,1883, providing for the acquisition of land by actual settlers in good faith, such settlement in good faith is essential to the validity of a purchase by one in fact upon the land sought to-be acquired.</p> <p>3. Same—Testimony.—Testimony merely showing that the applicant settled upon and had possession of the land and had erected valuable improvements thereon, and that he desired to purchase the land and still desires to do so, held, insufficient to establish settlement in good faith under the statute under which he sought to purchase.</p> <p>4. Land Board—Classification, etc., of Lands.—Section 8 of chapter 88, Laws of Eighteenth Legislature, approved April 12, 1885, prescribed that ‘1 the State Land Board shall, under such regulations as they may prescribe, cause the said land to be classified into agricultural, pasture, and timber land, and ascertain what tracts have-permanent water on them or bordering on them, and shall cause a tabulated statement, of the land in each county to be made, showing the number of each survey, block, and quantity in each survey. ” A permanent record thereof shall be made and preserved in the Land Office and a copy of such record relating tó a county shall be-forwarded to the surveyor of such county or land district in which the land is situated,” etc. Held, that such classification and tabulated statement were necessary before the lands could be sold under the said act.</p> <p>5. Sales of Land by Land Board.—Section 6 of said chapter 88, Laws of Eighteenth Legislature, provided: “ The lands -when placed upon the market shall be sold in the county or land district in which it is situated, by such authority and under such system of competition as may be prescribed by said Land Board, ” etc. Held, that the-Land Board could not sell lands elsewhere than as thus provided.</p> <p>6. Same.—A sale by the Land Board by a bid received by the surveyor of the county where the land is situated and accepted by the board at the city of Austin was-without authority of law and passed no title to the purchaser.</p>

Tried below before Hon. J. V. Cockrell. The statement by appellant in full is given.

<p>1. Limitation—Presumption.—While the filing of petition with the District Court is such a beginning of a suit as will from the date of filing stop the running of limitation, yet if by the direction of the plaintiff the issuance of citation to the defendant is delayed until after such a lapse of time as under the statute would bar the right to recover the statute will continue to run until the issuance of citation is ordered. No presumption will be indulged that long delay in issuing citation was by direction of plaintiff.</p> <p>2. Variance—Amendment—Limitation.—Suit was brought on a note describing it as a note for $330.50. On the trial judgment was for defendant because of misdescription of the note, the note offered in evidence being for $338.50. A new trial was granted, and after the lapse of four years from the maturity of the note an amendment was filed describing the note sued on as a note for $333.50. Held, the amendment set up no new cause of action and limitation was stopped at the date of filing the original petition.</p>

<p>Appeal from Hemphill. Tried below before Hon. Frank Willis.</p> <p>The opinion states the case.</p>

<p>1. Declarations and Admissions.—As a general rule tlie declarations or admissions of a vendor made after title has vested by deed in the vendee and not made in his presence can not be admitted in evidence to disparage the vendee’s title. The same rule applies to acts of the vendor doné after his deed has been executed when fraud or fraudulent conspiracy are not in issue.' If the deed was made in consideration of the undertaking of the vendee to provide for and sustain the vendor the rule would be different and the subsequent acts of the vendee violative of his contract can be shown.</p> <p>2. Mental Weakness—Deed.—Mental weakness of a vendor or old age will not alone avoid a deed in the absence of imposition or undue influence on the part of the vendee. See opinion for facts.</p> <p>3. Deed—Undue Influence.—A deed may be avoided by the vendor when an undue influence has been exercised by the vendee on a vendor of weak mind and aged. This influence may when the deed is a deed of gift from a child to the parent be inferred from the relationship itself, but this will not apply when the deed of gift is from the parent to the son or daughter, in the absence of evidence casting suspicion on the conduct of the latter.</p> <p>4. Notary Public—Authentication.—A notary, public is only required to explain the contents of a deed before his authentication when it is made by a married woman, and the fact that he failed to explain to a feme sole the contents of a deed executed by her can not be admitted in evidence in a suit by the vendor to avoid the deed.</p> <p>5. Argument of Counsel.—See tins ease for language used by counsel in argument before a jury held to be so objectionable as of itself to require a reversal of the judgment.</p>

Tried below before Hon. J. M. Hall. The following was the testimony of appellee Maxey: “Is sixty-nine years old, and resides upon property in controversy; family consists of wife, self, and a little boy; his homestead consists of a part of out block No. 2 in city of Cleburne; bought and resided on it in July, 1867; bought' the whole block and enclosed it with a fence in 1867, and built near center of it, fronting on head of Caddo Street, and has always resided on the block…

<p>Appeal from Hays. Tried below before Hon. H. Teiclnnueller.</p> <p>The opinion states the case.</p>

<p>Appeal from Kinney. Tried below before Hon. Winchester Kelso.</p> <p>The opinion states the case.</p>

<p>Appeal from Yrilliamson. Tried below before Hon. A. S. Walker.</p> <p>The facts necessary to understand the opinion are contained in it.</p>

<p>Appeal from Bosque. Tried below before Hon. J. M. Hall.</p> <p>The opinion states the case.</p>

<p>Error from Taylor. Tried below before Hon. Wm. Kennedy.</p> <p>The opinion states the case.</p>

<p>1. Community Property.—Where a title to land comes through one purporting to be a widow acting under the statute authorizing the control of the community property by the survivor upon filing bond and appraisement, a necessary link is the proof of the marriage of the parties at the time of the acquisition of the land.</p> <p>2. "Verdict—Suggestion of Improvements.—In actions of trespass to try title, where there is a suggestion of improvements by the defendant with testimony upon the suggestion, the verdict should conform to article 4813, Revised Statutes.</p> <p>3. Description of Land.—A judgment will be reversed when for the recovery of land not described in the pleadings nor in the verdict.</p> <p>4. Pleadings—Description.—In trespass to try title the petition should describe the land sued for as in fact it is situated upon the ground, alleging that such is the correct description of the land intended to be conveyed by the title papers under which the ownership to the land is claimed.</p>

<p>1. Surface Water.—A land owner lias tire right to protect it against surface water, and to do so can erect walls upon his land to prevent its flow upon it. Having this right he has the same right to exact of the municipality in which the land lies that it shall perform its duty to the public as do others with reference to surface water dammed up by such wall so constructed.</p> <p>2. Ditches and Drains in City.—In constructing ditches for drainage made necessary by the erection of walls to protect against surface water by a lot owner it is the duty of the city to construct them with ordinary skill and to cause thereby as little injury to the adjacent lot owner as would be consistent with the right to malte the improvement.</p> <p>3. Same.—An adjoining lot owner is entitled to damages which may be proximately the result of negligent construction of drains or ditches, causing injury to the value of the lots or danger to those using the property.</p>

<p>1. Orphan’s Right to Damages for Persona,! Injury.—A minor whose parents were dead was taken care of by a stranger. In an action for damages for personal injuries to the minor by his next-friend it was proper to refuse an instruction excluding damages for the period of his minority.</p> <p>2. Same.—One taking care of a minor not his child and without adopting the child is not entitled to damages for personal injuries to the child for diminished capacity to labor during minority. The minor can recover for such damages.</p> <p>3. Charge.—The court having charged that want of ordinary care on part of the street car driver causing the injury must be shown to entitle plaintiS to recover for damages so caused, it was not error to refuse a charge asked by the defendant that if the injury was caused through misfortune or misadventure the plaintiff could not recover.</p> <p>4. Damages.—A verdict for personal injuries negligently inflicted upon a minor four years of age for seven thousand dollars held not excessive.</p>

<p>1. Effect of Reversal Upon Sales Made Under the Judgment.— The general question as to the effect of reversal of a judgment after property has been sold under it and bought by the person in whose favor the judgment was originally rendered was considered in Stroud v. Casey, 25 Texas, 755, and it was said “the consequence is that the reversal of the judgment puts an end to the title.”</p> <p>8. Same.—No proceedings would be necessary to give effect to the reversal as avoiding sales affected by it.</p> <p>3. Same—Case in Judgment.—lilies prosecuted to judgment a suit to foreclose, etc., the judgment being for the amount sued for with decree foreclosing the alleged mortgage upon certain lands named in the mortgage, and also upon certain other lands alleged to have been substituted by parol agreement for other lands. Under the decree the lands were sold, lilies becoming the purchaser. Within two years Castro, the defendant, prosecuted error and the judgment was reversed as to all the substituted lands—among which are the lands in controversy. Appellants bought of Castro, appellee of lilies, and is in possession. The process under which the sale was made simply ordered the sheriff to sell the described lands. Held:</p> <p>1. The process could confer, as between lilies and Castro, no power save what the judgment had.</p> <p>2. As the process contained no power to levy and sell other lands than those affected by the foreclosure, the sheriff could not under it levy upon other lands.</p> <p>3. No right under the judgment existed to have any particular lands sold other than such as were embraced in the mortgage, and the former judgment of the Supreme Court which declared this swept away all claim of lilies founded upon the sale made under process issued only to carry out the decree of foreclosure.</p> <p>4. After reversal so much of the decree as directed the sale of lands not embraced in the mortgage as between the parties to it was as though it had never been entered, and process issued under it as between the parties and those claiming under them by conveyance after the reversal can not stand on other ground than does the decree.</p>

Tried below before Hon. J. P. Hutchison, Special District Judge, appointed by the Governor. This is an appeal from a judgment for the defendant Taylor in an action brought by Haddock for damages for fraudulently inducing defendant to buy a -tract of land by falsely and fraudulently representing to defendant the facts necessary (in detail) to render the title good as school land purchased from the State subject to the payment of the deferred payments under the law.

<p>Appeal from Nolan. Tried below before Hon. Wm. Kennedy.</p> <p>The opinion states the ease.</p>

<p>Appeal from Collin. Tried below before Hon. Richard Maltbie.</p> <p>The opinion states the case.</p>

<p>1. Trial of Right to Personal Property. —A party whose property may he seized Tinder attachment is not required to seek relief under the statute by claim bond and oath, but may sue for the taking and conversion.</p> <p>2. Evidence.—The maker of a bill of sale not having witnesses is a competent witness to prove its execution.</p> <p>3. Evidence—Relevancy,-^It was competent to admit' in evidence as a link in Ms title a bill of sale executed to plaintiff for a given number of cattle in a stock as a share proportional to the entire stock—having- further proved a delivery of specific cattle in a settlement of his claim under the hill of sale.</p> <p>4. Competency—Evidence.—There being an issue of fraud in the conveyance to the defendant by reason of alleged fraudulent preference of the defendant by an insolvent vendor, it is competent to prove the vendor’s settlement with other creditors in cattle at §20 per head and the refusal of a settlement at the same rate by the party attacking.</p> <p>5. Relevancy.—In support of the title of plaintiff it was competent to show a conveyance by the common vendor to a third party, reserving the cattle conveyed theretofore to the plaintiff.</p> <p>6. Insolvent Corporation May Adjust and Pay Claims.—When a coropration becomes insolvent and ceases to carry on the business for which it was organized its assets become a common fund for the payment of debts ratably among its creditors. Equity will interpose to prevent unjust preferences. Payments made in assets if at reasonable value are valid and no evidence of fraud.</p> <p>7. Shareholders as Creditors.—No distinction is made as to creditors who are shareholders if their shares are paid up. They have the same rights as other creditors if not in arrears for unpaid shares of stock.</p> <p>8. Same—Attack Upon an Adjustment.—A creditor levied upon cattle to satisfy a debt against an insolvent cattle company. The cattle were shown to have been delivered to certain other creditors of the insolvent company. Held, that to set aside the preference made it must be shown that more than enough property had been so taken than was required to satisfy the debts for which it was given, at a reasonable valuation.</p> <p>9. Settling up Insolvent Corporations.—If an insolvent company should attempt an unjust apportionment of its property among its creditors the remedy of the complaining creditor is to apply to the courts of equity and have a receiver appointed, etc.</p> <p>10. Commingling Cattle.-—A charge that ownership of cattle was acquired, by a sheriff herding cattle of plaintiff with others so that the identity of the individuals in the herd was lost became unimportant when by other undisputed testimony the identity of the entire herd claimed was established.</p> <p>11. Pleading—Values.—The petition for recovery of a number of cattle (935 head) alleged that they were taken by the defendant on October 9, 1885, and were then of value of sixteen dollars each. The suit was filed October 23, and it was alleged further that the cattle by reason of bad treatment received were worth only $12.50 each, and damages by such depreciation $3275.00. Prayer for the cattle and damages and general relief. Held, that a verdict for 666 head of cattle at $16 each (a remittitur in the number and one dollar each in value being made) was supported by the .allegations of value in the petition.</p> <p>12. Judgment in Suits for Personal Property.—The judgment properly provided for the return of the cattle at the- valuation fixed. In suits for specific property the judgment should be for the recovery of the property or its value.</p> <p>13. Sequestration—Bond.—A writ of sequestration for a herd of cattle was levied upon the cattle while in the possession of one not the defendant in the writ. The sheriff took from the party in whose possession he found the cattle a bond conditioned that the defendant would return them, etc. Held, that no judgment against the sureties to the bond could be entered. It was not a claim nor replevy bond.</p> <p>14. Cotrespassers.—See facts where parties by their acts were held cotrespassers and jointly liable for the cattle taken and retained.</p>

<p>Appeal from McLennan. Tried below before Hon. Eugene Williams.</p> <p>The opinion states the ease.</p>

<p>Bill of Sale—Mortgage.—Whatever may be the form of instruments which transfer and retransfer property, if it is manifest that the result contemplated was the security of a debt and not its discharge, effect will be given to the object contemplated. See opinion for facts.</p>

<p>1. Parties.—When creditors of an estate unite in contesting a report of the administrator, without objection, no objection can prevail on appeal on the ground of misjoinder, and it is not error for such creditors to join in an appeal bond.</p> <p>2. Fact Case.—See opinion for facts under which it was held that the District Court properly sustained exceptions to an exhibit filed by an administratrix, and committed no error in requiring- her to make a full report to the County Court of the condition of the estate and of her administration.</p> <p>3. Practice—Administration.—Proceedings against an administratrix to compel the inventory of additional property can not properly be included in a proceeding against her to make an exhibit of the condition of the estate. If creditors believe that property not claimed or inventoried by the administratrix as such belongs to the estate, their remedy is by petition to require the administratrix to be cited to show cause why the property pointed out by the creditors should not be inventoried as assets.</p> <p>4. Same.—It is not proper to bring into administration additional property of an estate through exhibits filed by the administrator. It should be designated in an additional inventory.</p> <p>5. Administration.—Immediately after an inventory and list of claims have been completed it is the duty of the court to make such allowances to the widow and children for a year’s support, and in lieu of exempt property, as they may be entitled to. Such an order can not be delayed by the application of creditors to have an exhibit of the condition of the estate returned. The allowance must be made by the court and can not. "be selected and taken from the corpus of tlie estate by the parties. entitled in the absence of an order.</p> <p>6. Same.—When an administrator or executor takes and appropriates to his individual use the property of an estate at its appraised value the duty of the court is to-remove him and appoint another to protect the estate and sue the former administrator.</p> <p>7. Administration.—When the property of an estate is misappropriated and invested in a mercantile enterprise without authority of law, the remedy is not to require-the administrator to file an account showing the condition of the business, but to remove the administrator and appoint one who should sue to recover the value of the-property so converted, and if the investment yielded profits then also for its profits. If the property converted be money or claims due the estate, then ample remedy may be found in the administrator’s bond; but if property subject to appraisement has been converted and can not be returned the administrator should be removed.</p> <p>8. Sale of Property of an Estate.—No land belonging- to an estate can be sold, pending administration until after it has been properly inventoried and appraised.</p> <p>9. Insolvent Claims.—An administrator should not be allowed a credit for claims-as insolvent which were inventoried as solvent claims in the absence of evidence of insolvency. The oath of the administrator to the insolvency, when there is no contest,, may in some cases be sufficient.</p>

<p>Error from Lamar. Tried below before Hon. H. 0. Head.</p> <p>The opinion states the case.</p>

Tried below before Hon. G. H. Noonan. This is an appeal from a judgment below in favor of appellee Johnson for $21,415.16 with' interest from August 31, 1882, total $28,910.45, against the appellant. The cause of action was work done under a construction contract and involved the construction or interpretation of a written instrument signed by and in behalf of the parties March 14, 1882. Suit was filed December 16, 1884.

<p>Appeal from Coleman. Tried below before Hon. J. P. Hutchison.</p> <p>The opinion states the case.</p>

Tried below before Hon. D. P. Marr. This is an appeal from a final decree perpetuating an injunction against Duck as sheriff and collector of taxes, restraining the collection of certain taxes alleged to be illegally claimed by reason of the alleged act of the assessor in increasing the valuation upon the property of the complainant. The pleadings and testimony are sufficiently shown in the opinion. The conclusions of law by the court below are here given: “1.

<p>Error from Mason. Tried below before Hon. A. W. Moursund.</p> <p>The opinion states the case.</p>

Tried below before Hon. W. A. Blackburn. The appellee sued to recover damages for physical injuries resulting to him from the derailment of a railway passenger car.

<p>Appeal from McCulloch. Tried below before Hon. John 0. Randolph.</p> <p>The opinion states the case.</p>

<p>1. Will—When it Takes Effect.—A will speaks from the death of the testator and applies to property acquired between the date of the actual signing of the will and the death.</p> <p>2. Will—Construction.—The clause “I will and bequeath all the estate I now own and possess” does not apply to property the testator did not own or possess. It does not, therefore, apply to the community property owned by the testator and his wif e.</p> <p>3. Will—Devise of Husband’s Interest in Community.—A devise by a husband of “ all his property to his wife and his six children by her in equal parts” conveys one-seventh of his half of the community to the wife, and she as widow in partition would take her own half and the one-seventh of the husband’s half.</p> <p>4. Separate Property—Inventory.—That a widow acting as executor placed lands upon the inventory of property of the husband’s estate does not estop her from showing that the lands were bought with her separate funds and claiming them as her separate property.</p> <p>5. Error in Computation.—Where the statement of facts shows an error in the amount charged to one of the parties it can be corrected on appeal, but when no attention was taken to it in tlie motion for new trial or otherwise in the court below the costs of the appeal will not be taxed upon the appellee.</p> <p>6. Taxes Paid out of Funds of an Estate.—In a proceeding against executors and for partition the executors claim a credit for money paid out for taxes, and it is shown that the amount claimed is the aggregate of the taxes as well upon the property of the estate as upon the widow’s share and upon her separate property, it devolves upon the party resisting the claim to show by testimony the amount of overcharge.</p>

Tried below before Hon. J. M. Hall. This is an appeal from a judgment for $240 and costs in favor of Keith. The suit was for damages for the value of two horses at $125 each, $60 feed for the horses while caring for them, $80 for care and attention to them, and $40 expended in repairs on wagon.

<p>1. Liability for Death Caused by Servant.—Under the statutes as they were in 1884 a railway company was not liable in damages for the death of a person killed on its track unless it was shown by the evidence that the death was caused by the negligence or carelessness of the proprietor, owner, charterer, or hirer of the road, or by the unfitness, gross negligence, or carelessness of its servants or agents.</p> <p>2. Unfitness of Employe.—Such unfitness is not shown by proof of a single exceptional act of such employe.</p> <p>3. Gross Negligence is defined to be that entire want of care which would raise a presumption of a conscious indifference to consequences. And negligence can not be considered gross.unless evidenced by an entire failure to exercise care, or by the exercise of so slight a degree of care as to justify the belief that the person on whom care was incumbent was indifferent to the interest and welfare of others.</p> <p>4. Same.—See facts held insufficient to support a verdict which required evidence of gross negligence to support it.</p>

<p>1. Minors—Necessaries—Attorney Fees.—The contracts of a minor for necessaries are neither void nor voidable. The services of an attorney should be held necessary to an infant when he is charged with crime.</p> <p>2. Promissory Note Made by Minors.—Such note when executed for necessaries is voidable. When suit is brought upon such note, if it be shown that the agreed price for the necessaries for which the note was given was unreasonable judgment will be given for the reasonable value as may be shown of such necessaries.</p> <p>3. Mortgage.—It seems that a minor may execute a mortgage to secure a promissory note executed by him for necessaries.</p> <p>4. Mortgage with Power to Sell.—Such power or a sale under it would be voidable upon the minor paying the note or the reasonable value of the consideration of the note after majority.</p> <p>5. Delay in Avoiding Act by Minor.—In this case the minor made a deed to the land to another over a year after his majority, never having at any time tendered the amount of his debt or the value of the services for which his note was given. Held, that such action did not avoid the sale made under his mortgage with power to sell made and executed while he was a minor.</p> <p>6. Decree—Certainty.-—The judgment rendered in a suit for partition decreed that plaintiff recover one-third of the land and the remainder of the land to the defendants (there being two married women with their husbands defendants), and ordered that it be divided equally between the three. Held, this sufficiently showed that each was decreed a third interest.</p> <p>7. Costs of Partition.—Where defendants litigate a partition suit it is proper on the plaintiff succeeding that he have judgment for his costs up to the final judgment, the costs of partition to be paid pro rata by those taking in partition.</p>

<p>1. Defense in Injunction Suit.&emdash;A defendant in a judgment against Mm of forcible entry and detainer rendered on appeal in the County Court sought by injunction to restrain the enforcement of the writ against him as to a tract of forty or forty-nine acres alleged not to have been described in the judgment nor in the process. The process was executed before the service of the writ of injunction. The defendant in the injunction suit answered, and upon exceptions to the answer, held:</p> <p>1. The District Court having acquired jurisdiction of the cause would proceed to da full equity between the parties and determine the whole case.</p> <p>2. The defendant could show that the judgment of the County Court did include in its description the forty-nine acres, and also could set up any equitable defense that would defeat a recovery by the plaintiff had the suit been an ordinary one for the land.</p> <p>3. Defendant could show by former deeds and transactions what construction should be put upon the description of the land, as well as to show that the plaintiff himself was committed to that construction.</p> <p>2. Estoppel&emdash;Pointing out Lines to a Purchaser.&emdash;See case where it was not improper to charge the jury as follows: “If a party selling land points out his land to-the purchaser and thereby induces the purchaser to believe he is buying the land included within said lines he will in law be deemed to have parted with the land included within the lines so pointed out by him, if any.”</p> <p>3. Erroneous Instruction.&emdash;Appellant can not complain of a charge which is erroneous in following views of the case held too restricted and favorable to the party complaining. He can not object to error in his favor.</p>

Tried below before Hon. Wm. Kennedy. October 9, 1885, Wylie sued Hightower and Mangum on a promissory mote made by them. Mangum pleaded in defense that he had been discharged by the acts of Wylie and Hightower from liability upon the note; that he was surety upon the note, and that upon signing it he had exacted that Hightower should secure the payment by a trust deed upon a flock of sheep, and by a promissory note held by Hightower.

Tried below before Hon. G. H. Hoonan. December 31, 1883, R. F. Alexander, asserting title to an undivided five-twelfths of an eleven-league grant in Kinney County, in the name of Doña Dolores Soto de Beales, less certain tracts described and specially excepted, sued W. S. Carothers and G. A. Searight, under their firm name of Carothers & Searight, in the District Court of Kinney County, in an action of trespass to try title, and sought thereby a judgment for the recovery of…

Tried below before Hon. F. B. Finer. This is an appeal from a judgment in favor of Bdsall against the appellant for 83560. This is a second appeal. 63 Texas, 668. The report of the first appeal and the opinion here give full statement of the case.

Tried below before Hon. D. H. Scott. The conclusions of facts and of law drawn in question in this appeal are given in full. “1. Certificate for 2910 acres was issued to Thomas Stalcup August 2, 1845. “2. Deed from Thomas Stalcup to Rice Smith for 75G.G6 acres of said certificate August 4, 1845. “ 3.

Tried below before Hon. P. M. Stine. On the 15th day of May, 1886, Wichita County obtained two judgments in her favor against Wilson, county treasurer, etc. One was upon the school bond and the other was upon what is termed the treasurer’s bond.

<p>1- Pleading.—A defendant who was sued on a promissory note answered among other things that he was only a security, and that upon signing the note it was agreed between him and the plaintiff that he (plaintiff) would obtain the signature of one Warren to the note, which was not done; and, further, that his codefendants, who were the principals, were solvent when the notes matured, and that plaintiff failed to exercise diligence to collect them until the principals became insolvent. Held, that an exception to that portion of the answer was properly sustained.</p> <p>2. Variance—Idem Sonans.—The plaintiff sued H. C. Dillahunty on two promissory notes. The signature of the maker was signed H. C. Dillaunty to one and H. C. Dillahunty to the other. The notes were set out in the petition in Ime verba except the signature, which was written “ H. C. Dillahunty ” in both notes. Held, that there was no variance, and the notes were within the rule of idem sonans and were properly admitted in evidence.</p>

Tried below before Hon. Geo. H. Aldredge. The following statement of the case was made by counsel for appellant and concurred in by counsel for appellee: Earle E. Cravens, a minor, owned an estate consisting of twenty-seven tracts .of land lying in various counties in Texas.

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

<p>Appeal from Olay. Tried below before Hon. B. F. Williams.</p> <p>The opinion states the ease.</p>

<p>1. Contributory Negligence—"Walking Upon Railway Track.—The failure by one walking upon a railway track to listen and to look while upon such track to .avoid collision with trains which may be expected to pass on the track is an entire failure of duty to take proper care. Such negligence would prevent a recovery for damage from a passing train on ground of contributory negligence.</p> <p>2. Fact Case.—See facts held sufficient to show contributory negligence.</p> <p>3. Res Gestas—Declarations by Employes.—Declarations on the part of the engineer after the train had been stopped showing ill will and of a threatening nature toward one injured by the train upon the track are incompetent:</p> <p>1. Not being res gestee.</p> <p>2. Declarations outside of the employment of the party making them.</p> <p>4. Charge Must Apply to Issues.—See charges, properly refused because not pertinent to the issues made by the testimony.</p> <p>5. Duty of Railway Trains Crossing Track of Another Railway.—It is required by the statute of a railway train approaching a crossing upon another railway that the train be brought to a stop. No statute requires that signals by bell or whistle he given in approaching such crossing.</p>

<p>1. Archives—Relevancy of Testimony.—-A Land Office translation of a copy of a report of the Secretary of State for Coahuila and Texas to the Political Chief of Bexar, of date January 2, 1833, giving a statement of colonial grants made under decrees of March 24, 1825, and April 28, 1832, including the grants whose validity is in litigation, is relevant to support the grants. The translation is from a report transferred from the officer to whom made to the office of the county clerk of Bexar County, and from that office to the Land Office, from which the translation was certified.</p> <p>2. Same—Colonial Contract.—A certified translation from the Land Office of a testimonio of the original of a colonization contract made at Monclova and given hy the proper authority is competent as evidence, and if the land in controversy or part of it was within the limits of the colony whose commissioner extended the final title to it, then such document is relevant testimony.</p> <p>3. Concession.—That an application to purchase land was more limited than the concession granted upon the application does not affect the validity of the concession, which on its face and by its terms is more extended than the application. The concession conferred the right to have the land titled to the holder.</p> <p>4. Testimonio.—The protocol being in Mexico and the testimonio being in the Land Office in Texas as an archive, the instruments relating to land and being a colonial contract, “no case can be found in which it has been held that a copy certified from the Land Office was not admissible in evidence. ”</p> <p>5. Oases Adhered to.—Houston v. Perry, 3 Texas, 393; Hatch v. Dunn, 11 Texas, 713; Bissell v. Haynes, 9 Texas, 556; Robertson v. Teal, 9 Texas, 344; Paschal v. Perez, 7 Texas, 356; Herndon v. Casiano, 7 Texas, 322.</p> <p>6. Concession.—A concession was a necessary link in a land grant made by the Mexican Government to purchasers. Such concession was proved by the testimonio of it; that such testimonio was not attached to the grant.does not render it incompetent as ■evidence. Nor did the fact that the testimonio of the concession was retained by the grantee affect its validity; the officer extending the grant in this case had recited the ■existence of the concession in the instrument extending the title.</p> <p>7. Authority of Commissioner to Extend Title.—The commission to Soto to extend titles on its face did not indicate the locality of the land, but where the concession was sufficiently full to include lands granted, authority in the concession together with the appointment, had the effect of conferring power to extend the grant.</p> <p>8. Archive.—In the absence of any objection to its genuineness we are not prepared to hold that a paper which would be a proper archive of a government now foreign affecting lands in Texas is not legally archived in the General Land Office. A certified copy of such original now in the Land Office was properly admitted in evidence.</p> <p>9. Form of Title.—The testimonios of the titles are unusual in form, not containing petitions to the commissioner for extension of final title with general designation of land desired, accompanied with the concession, nor a reference to the empresarios, their consent, order of survey, report of survey, etc., but it can not be held that for the want of such, things, as the testimonios contain the essentials of a final title, they ought to be excluded when offered in evidence.</p> <p>10. Ancient Instrument.—A testimonio of a grant of land bearing date 1834 was deposited in the Land Office in 1845. The survey was placed upon the map in the Land Office and upon the map of the district in which it was situated in 1846. The grant was'in the Abstracts of Titled Lands printed in 1852 and 1878; possession was held under the grant from 1868; in 1875 the testimonio was withdrawn from the Land Office by the agent of the grantee; taxes were paid by those holding under the title from 1871. Held, that the testimonio was admissible as an ancient instrument.</p> <p>11. State Constitution—Powers of.—It is doubtless within the power of a State through a constitutional provision to declare what evidences of right may or may not be archived in the Land Office or recorded in the several counties, or to declare what notice of ownership of land may be evidenced by delineations upon public maps.</p> <p>15. State Constitution, Article 13, Section 4.—The declaration in article 13, section 4, of the State- Constitution, ‘ ‘ that no claim of right or title to land which issued prior to tire thirteenth day of November, 1835, * * * shall ever hereafter * * * be used as evidence in any of the courts of this State,” unless it had been archived in the General Land Office or recorded in the county in which the land was situated at the time of record, could have application only to such evidences of right as before that time could have been archived or recorded—to writings evidencing titles.</p> <p>13. Same.—Prior to the adoption of the present Constitution failure to register evidences of titles to land did not render them inadmissible in evidence on proper proof of their execution, and the only effect of failure to register was to render them inoperative as to creditors and subsequent purchasers for value without notice.</p> <p>14. Same.—The effect of this section 4, article 13, of Constitution, was to deny to the holders of such claims as were not archived or recorded at its adoption the right or power to exhibit their rights in due course of law.</p> <p>15. Same—Destroying a Eight.—A right existing to-day and susceptible of proof under well established rules of evidence applicable to all persons by the writing creating, and by law required to be given as the evidence of the particular right, which in consequence of legislation of to-morrow may not thus nor in any other manner be established in a court of justice, is practically a right destroyed.</p> <p>16. Same—Possession—Retroactive Legislation.—The only means recognized in said section 4, article 13, for establishing titles not archived or recorded is by possession such and so long continued that a grant therefor may be presumed under the rules applicable to that subject. Prior to the adoption of the Constitution persons owning such grants were not required to remain in possession as a condition upon which the continuance of the right depended. A subsequent law making possession the only evidence of proving a title, valid when it was issued, would be subject to the objections urged against retroactive legislation.</p> <p>17. Impairing Obligation of Contract.—Legislation in whatever instrument found which forbids the introduction of evidence of a prior contract admissible and made necessary to the validity and existence of the contract by the law in force at the time it was made, unless it provides some other method for making sufficient proof of the necessary facts accessible to the person called upon to make the proof, impairs the obligation of such contract.</p> <p>18. Same—State Constitution in Conflict with Constitution of United States.—We are of the opinion that the provision of the Constitution of this State under which it is claimed the evidence under consideration (the testimonio of the grant, -genuineness of signatures being conceded) should have been excluded, is in conflict with the provisions of the Constitution of the United States, viz., the fourteenth amendment: * * ® “Nor shall any State deprive any person of life, liberty, or’ property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws;” and of article 1, section 10: “No State shall * * "" pass any * * * law impairing the obligation of contracts.”</p> <p>19. Treaty of G-uadaloupe-Hidalgo.—This treaty, proclaimed July 4,1848, protected the rights of Mexican citizens in titles to lands owned by them March 2, 1836. The grants appear to have been made to Mexican citizens, and no change in ownership appeared prior to the treaty. It seems that the title here in controversy was protected thereby.</p> <p>20. Case Followed.—Jenkins v. Chambers, 9 Texas, 234, adhered to.</p> <p>21. Presumptions of Regularity of Official Acts.—Nothing short of a law clearly showing a usurpation of power in the acts of a duly appointed commissioner who extended the titles April 18, 1834, will justify the holding that such titles were invalid, in view of the course pursued by the government of the State and other officials who must be presumed to have understood their powers and have in good faith acted upon them.</p> <p>22. Same—Construction of Repealing Act..—The articles 29 and 30 of Decree 272 in terms repealing so much of all former instructions as were inconsistent with its provisions, and declaring that no further colonization contracts should be made, but that those theretofore made should be strictly fulfilled in accordance with the law of March 24, 1825, did not destroy the authority to complete titles where concessions had been made to purchasers under existing laws.</p> <p>23. Junior Title—Color of Title.—The holders of land under “ junior title” or “color of title,” as stated in sections 1 and 2, article 13, of the Constitution of the State, are those holding under a grant or patent subsequent- to the one in conflict, or under such title matured upon a location prior to the adoption of the Constitution. Such junior title, etc., is entitled to the presumptions attached to such titles in said sections.</p> <p>24. Titled Lands—Protected from Location.—The concessions being genuine and Soto having been authorized to extend titles and having done so, the defendants having exhibited such title to the land sued for (no issue as to forgery being made) the questions whether the conditions upon the grants had been complied with, whether Beales had attempted a fraud upon the government in acquiring more than eleven leagues of land, or whether the land was within the proper boundaries of the commissioner, can not be raised by one locating upon the land subsequent to the adoption of the State Constitution and in violation or it.</p> <p>25. Cases Cited and Approved.—Windsor v. O’Connor, 69 Texas, 571; Truehart v. Babcock, 51 Texas, 177; Westhrope v. Chambers, 51 Texas, 187; Sommers v. Davis, 49 Texas, 541.</p>

Tried below before Hon. R. E. Beckham. This suit was brought by Crawford against the city of Fort Wortli to-recover of it damages for the reason that it established and maintained near to his home, consisting of seventeen and one-half acres of land whereon he resided with his family, a place of deposit or burying ground-for the excrement of the city, dead animals, and all other noxious and offensive matters incident to a city; it being claimed that the work of the city in…

<p>Limitation—When it Begins to Bun.—Suit was filed August 17, 1885, upon a promissory note as follows: “ Six months after date I promise to pay to Jerome B. Robertson or order two hundred and twenty-four dollars, with interest at the rate of ten per cent per annum from date, this June 24, 1875. This note is given in part payment for a tract of land this day conveyed to Chas. D. Cates by Jerome B. Robertson, by his agent J. W. Colbert, and is to become due when a proper chain of title from the State to Jerome B. Robertson is placed upon the records of Wise County.” It was alleged that it was understood between the parties, Robertson and Cates, the maker of the note, that it was to be payable when the chain of title should be placed on record as stated in the note, and that such title had been so filed August 7, 1885. Held, error to sustain exceptions to the petition on grounds of limitation.</p>

<p>1. Practice—Injunction.—When a petition for injunction presents no sufficient basis for the relief sought, it is not error to sustain a general demurrer to the petition which is filed at a term of the court subsequent to that during which a motion to dissolve had been overruled.</p> <p>3. Answer of Garnishee—Judgment—Injunction.—When a judgment has been rendered against a garnishee whose answer to the writ is insufficient, no relief against the judgment can be granted when the failure of the garnishee to make a proper answer resulted from the want of proper care and diligence either of himself or of those employed by him to prepare the answer. The fact that a good defense to the proceeding in garnishment existed is immaterial, if without the fault of the opposing party it was not presented in proper time and manner. See opinion for facts.</p>

<p>1. Divorce—Jurisdiction.—An allegation that plaintiff “is a bona fide citizen of the county of Bell, State of Texas, and has been for more than six months before the filing of this petition,” is not the equivalent of the provision in Bevised Statutes, article 2862, that the petitioner “shall at the time of exhibiting his petition be an actual bona fide inhabitant of the State, and shall have resided in the county where the suit is filed six months next preceding the filing of the suit,” and a demurrer should have been sustained to it.</p> <p>2. Same—Actual Inhabitant—Residence.—Such actual inhabitancy as required by the statute was not shown when it appeared that in 1881 plaintiff left his home and family in Bell County, Texas, and resided in Central America from 1881 to December, 1885, and again from January, 1886, to October, 1887, the suit having been filed October 10, 1887.</p> <p>3. Temporary Absence.—A temporary absence from the State or county of an inhabitant of the State during the six months next preceding the filing of the suit would not affect the right of the plaintiff to maintain it.</p> <p>4. Jurisdiction.—-When residence in the county for six months before the suit is negatived, a divorce should be refused.</p> <p>5. Religious Opinions in Divorce.—-In view of the constitutional provisions securing to “ all men the right to worship Almighty God according to the dictates of their own consciences,” and asserting that “no human authority ought in anyway whatever to control or interfere with the right of conscience in matters of religion,” we do not think that questions as to the doctrines or practices of the sanctificationists ought to have been permitted to enter to any extent into the trial. Pleadings alleging them and evidence showing them should have been excluded.</p> <p>6. Other Separations.—Testimony to other separations caused by the prevalence of the religious views in question should have been excluded as irrelevant.</p> <p>7. Abandonment.—See facts insufficient to show abandonment of husband by wife.</p> <p>8. Abandonment—Change of Domicile.—While generally the husband has the right to decide where the matrimonial domicile shall be," and if he changes his residence and the wife declines to go with him she thereby deserts him, yet there may be places to which the wife would not be required to change her domicile, or be held guilty of desertion of her husband so as to entitle him to a divorce for that cause.</p> <p>9. Custody of Children.—The custody of the minor children in divorce cases is a question of the welfare of the children rather than of deference to the affections or feelings of the parents.</p>

Tried below before Hon. R. E. Beckham. This suit was filed by appellant on the 17th day of August, 1884, against the Texas Investment Company, Limited, W. A. Garner, B. B. Paddock, George B. Loving, Eore, Morphy & Henderson (a firm composed of Walker Eore, W. J. Morphy, and R. M. Henderson), J. W. Dabbs & Co. (a firm composed of J. W. Dabbs, A. A. Henderson, R. M. Henderson* and Samuel T. Tomlinson), and an attachment sued out against the Texas Investment Company, Limited,…

<p>Appeal from Travis. Tried below before Hon. A. H. Graham, Special District Judge.</p> <p>The opinion states the case.</p>

<p>Appeal from Wilbarger. Tried below before Hon. B. E- Williams.</p> <p>The opinion states the case.</p>

<p>1. Bona Fide Purchaser—Quit Claim.—It seems that one claiming under or through a quit claim deed can not be protected as a bona fide purchaser.</p> <p>2. Same—Construction.—The use of the words quit claim in a deed does not restrict the conveyance if other language employed in the instrument indicates the intention to convey the land itself.</p> <p>3. Same.—The deed contained the words “do by these presents sell, convey, remise, release, and quit claim unto the said * * * his heirs and assigns forever, all our right, title, claim, interest, and demand in and to and for [the land, describing it], to have and to hold the above described premises unto the said [grantee], his heirs and assigns forever.” Held, from this language it is clear that it was the intent thereby to convey the land itself, and not to release the claim thereto by the grantors.</p>

Tried below before Hon. D. H. Scott. Appellant was arrested by appellee J. A. Boothe, deputy sheriff of Lamar County, under instructions from appellee W. T. Gunn, sheriff of that county. After arrest appellees confined appellant in jail and there detained him four days without having carried him before a magistrate or giving him an opportunity to give bail for his appearance.

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

<p>Appeal from Mills. Tried below before Hon. W. A. Blackburn.</p> <p>The opinion states the case.</p>

<p>Appeal from Lamar. Tried below before Hon. J. A. B. Putman.</p> <p>The opinion states the case.</p>

<p>Appeal from Grayson. Tried below before Hon. Richard Maltbie.</p> <p>The opinion states the case.</p>

Tried below before Hon. J. H. James, Special District Judge. Held: stipulated that no other license should issue. Tugwell, upon bids for the exclusive ferry rights, offered and paid $250 per annum for the ferry license and rights. The defendant, after incorporating as a ferry company to operate between Eagle Pass and Piedras Hegras, sought a license, tendering the license fees, but was refused.

<p>1. Testimony.—Where parties claimed, under a common source of title and plaintiff exhibited a deed from the common vendor, it is not reversible error to admit amortgage by the said grantor to the grantee named in the deed and of date prior to the date of the deed. Such mortgage having been duly recorded it may have been pertinent as a circumstance to show notice. It being the rule that in the absence of information in the record of the purpose of the testimony, it will be presumed that the trial court had legal reason for its ruling in admitting the testimony upon some issue made on the trial.</p> <p>2. Sales of Lands Under the Bankrupt Law,—Sales of land under the bankrupt law of 1867 were legally made in Texas according to the provisions of said law. The sales are not controlled by the laws of the State as to the time, manner, and place of sale.</p> <p>3. Declarations of Parties to a Deed.—It was not error to exclude testimony by the grantor as to her physical and mental condition at the signing by her of a deed when offered against a remote vendee, the witness having already testified that the ■deed was in fact to secure a debt though in form an absolute deed.</p> <p>4. Pining a Party While Testifying.—It not appearing that a party suffered injury to his case from his having been fined by the trial court for contempt while being examined as a witness, the-act of the judge in imposing such fine upon the losing party, who when testifying “was almost uncontrollable and would pay no attention to the questions of counsel nor admonitions of the court,” will not be revised.</p> <p>5. Amending Verdict.—It is within the power of the trial judge to recall the jury in a civil case that they may amend the verdict. The original plaintiff having died the amendment consisted in omitting his name as plaintiff in the corrected verdict.</p> <p>6. Conditional Sale.—Two instruments bore the sáme date, one in form a deed by Mrs. Hunt to L. W. Groce, reciting a money consideration, the other a bond executed by Groce to Mrs. Hunt reciting that the deed was executed by her and received by him in payment of an antecedent debt, and the bond was in the sum of $20,000, conditioned that he should reconvev the land to her upon payment by her to him of the sum of $1028.45. The money never was repaid. Held, that it was not error in the court to instruct the jury that the conveyance to Groce was prima facie a conditional deed, but leaving to the jury to determine it to be a mortgage if the entire testimony showed that such was the understanding and intention of the parties at its execution.</p> <p>7. Notice—Conflict in Testimony.—There being a conflict in the testimony as to the fact of notice on part of the defendant at his purchase, and the court having charged the jury more favorably to defendant than the law required on that subject, the case will not be reversed upon the testimony. The verdict is not without testi mony.</p> <p>8. Notice.—What facts will amount to notice sufficient to put a purchaser upon inquiry will depend upon the circumstances of each case.</p>

<p>1. Administration—Claims Against an Estate.—Article 3031, Revised Statutes, which confers the right of appeal from a final judgment of a County Court approving or disapproving a claim against an estate, has reference to such claims as originated before the commencement of administration, and does not apply to claims which grow out of the administration. The latter class of cases are provided for in articles 3193, 3193.</p> <p>2. Same.—Claims for expenses of administration, while they are required to be acted upon as other claims against the estate, yet the action of the court in approving or rejecting them is not given the conclusive force of a final judgment, and this chiefly because the proceeding is ex parte and without notice to those adversely interested.</p> <p>3. Probate Matters—Judgment.—When the expense account of an administrator is presented with and made a part of his final exhibit, and is docketed and acted on by the court on the same day, the action of the court in docketing and approving the account, in overruling the exceptions to it, and in approving the final exhibit including the claim of the administrator, must be considered as substantially one judgment. An appeal from such judgment by creditors of the estate carries with it to the District Court the entire case.</p> <p>4. Allowance of Expense Account to Executor.—The expenses of administion for which an executor or administrator may be reimbursed by order of the court must be specifically stated in writing, setting forth each item and the date thereof. See opinion for facts showing charges too general for proper allowance.</p> <p>5. Payment of Debts—Discharge of Lien.—The executor or administrator of an insolvent estate can not discharge a lien on the personal property of the estate, unless the value and use of the property when released from the lien will be more valuable to the estate than the amount required to discharge the lien.</p>

<p>Appeal from Donley. Tried below before Hon. Frank Willis.</p> <p>The opinion states the case.</p>

<p>1. Practice in Trial of Bight of Property.—A stock of horses in possession of one Burgess was levied on under execution. Appellee filed claim and "bond to try right of property in the horses. Before the trial began the claimant asked that the sheriff be permitted to amend his return so as to show that Burgess was in possession as agent of claimant. This amendment was made by the sheriff upon the alleged ground that Burgess at the time of the levy had stated that he held the horses for the claimant. The plaintiff, resisting the motion to allow the amendment, offered to contradict the alleged statement by Burgess. Held:</p> <p>1. That it was error in the court "below to allow the amendment, it having the effect of changing the burden of proof without evidence other than the declaration of Burgess.</p> <p>3. The court should have heard any proper evidence offered to show who had possession, actual or constructive, of the horses at the time the levy was made.</p> <p>2. Voluntary Conveyance—Fraud.—A voluntary conveyance is invalid against creditors without reference to knowledge or want of it on part of the grantee of the indebtedness of the grantor.</p>

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

<p>Error from Wood. Tried below before Hon. Felix J. McCord.</p> <p>The opinion states the case.</p>

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

<p>Appeal from Harrison. Tried below before Hon. John L. Sheppard.</p> <p>The opinion states the case.</p>

<p>1. Resulting Trust..—When land is purchased with money the separate property of the wife, and the deed taken in her name, a resulting trust is thereby created in her favor which can not be defeated by the levy of an attachment in a proceeding against her husband, or by any other proceeding except a sale by the husband to an innocent purchaser for value.</p> <p>3. Innocent Purchaser.—An attaching creditor who purchased land under judgment foreclosing the attachment lien, fraying therefor five dollars, the land being worth two thousand dollars, can not be held to be a purchaser for value.</p> <p>3. Lis Pendens___One who purchases land after the institution of suit by another</p> <p>to recover it, and during its pendency, is charged with notice of every fact that affects injuriously his vendor’s title; as a purchaser pendente lite he can malee no defense which the vendor can not interpose.</p> <p>4. Praud.—When a conveyance is made by husband and wife of property presumed to be community property, but which in equity is the wife’s separate estate, though the conveyance be colorable and designed to protect it from the husband’s creditors, they can not attack it as fraudulent.</p>

<p>Appeal from Shelby. Tried below before Hon. James I. Perkins.</p> <p>The opinion states the case.</p>

<p>1. Pleading—Practice.—When in trespass to try title the plaintiff pleads his title it is proper for the court to determine on exceptions whether the facts pleaded constitute title.</p> <p>2. Deed—Certainty.—When neither the judgment, order of sale, nor sheriff’s deed contains a description sufficiently certain of property sold under foreclosure of an attachment lien, the sale is a nullity. The judgment and writ are the only sources of power to the officer who sells, and if these fail to describe the property to be sold under foreclosure of the attachment lien no amendment can be made by inserting in the deed a sufficient description found in the return of the officer endorsed on the writ of attachment.</p>

<p>1. Practice—Before the trial of a cause the defendant admitted on the record that “the defendant had a good cause of action as set forth in the petition, except in so far as it might be defeated in whole or in part by the facts of the answer constituting a good defense, which might be established on the trial.” Held:</p> <p>1. The admission must be construed to mean that the defendant admitted every fact alleged in the petition which it was necessary for the plaintiff to establish in the first instance to enable him to recover, but did not admit allegations in the petition which merely denied new matter alleged in the answer, the burden of the proof of which was upon the defendant.</p> <p>2. Under such an admission of record the plaintiff can not deny the defendant the right to open and conclude upon his affirmative defense by simply amending the petition, and alleging the contrary of the defenses set up in the answer in confession and avoidance.</p> <p>2. Case Reviewed.—Alstin v. Cundiff, 52 Texas, 453, discussed.</p> <p>3. Failure of Consideration.—See opinion for facts which were held to constitute a good defense showing failure of consideration for a promissory note.</p>

<p>1. Evidence—Order Setting Apart the Homestead.—An order of the Probate Court setting apart a -homestead to the widow and children of a deceased husband is admissible in evidence without being first duly recorded in the county in which the homestead lies.</p> <p>3. Limitation.—When limitation of five years is pleaded, and a deed to a deceased husband, duly recorded, is in evidence, an order of the Probate Court setting apart a homestead, including part of the tract deeded to the deceased, is competent to show the extent of possession by the widow claiming the homestead by limitation.</p> <p>3. Decrees of Probate Courts—Homestead,—After the Probate Court has entered an order designating and setting apart to the widow and children their homestead, no subsequent order of that court could disturb their right to the homestead so set apart unless such subsequent order was rendered in a direct proceeding brought for the purpose of vacating the order designating the homestead.</p>

Tried below before Hon. T. L. Regent. Appellant Cain, May 2, 1883, sued Woodward in trespass to try title for 960 acres of land in Hamilton County grunted to H. H. Watrous, assignee of John Person. Cain and Woodward both claimed through.

Tried below before Hon. T. A. Falvey. Appellant Bassett sued in the District Court of El Paso to foreclose a lien claimed by him as a material man and lumber dealer on certain lots belonging to appellee Schuster, in the city of El Paso, by reason of the fact that appellant furnished to appellee Brewer, original contractor with.

<p>1. Taxation of Leasehold of Land.—A lease in which the State reserves the-right to sell, and thereby to terminate the lease at any time, is not such title as contemplated in article 4691, Revised Statutes, taxing “ property held under a lease for a term of three years or more.”</p> <p>2. Same—Estate Taxable.—The value of the term and not of afee simple estate in the land would be the proper assessment of value upon lands so held under lease.</p>

<p>1. Evidence—Witness.—In a suit by the widow and children for damages against parties charged to have unlawfully taken the life of the deceased husband and father the defendants are competent witnesses. They are not within the exceptions of the statute. Rev. Stats., arts. 2246, 2248.</p> <p>2. Same—Construction of Statutes.—Where a general rule has been established by statute with exceptions, the courts will not curtail the rule or add to the exceptions by implication.</p> <p>3. Unlawful Killing of Human Being.—In suit by the widow and children of a man who had been killed, brought against the parties who killed him, the court charged: “ If at the time Wallace was killed he had abandoned the fight and was fleeing from the fight, and the defendant J. T. Stevens had no reason to believe and did not believe that he or his father was in immediate danger of losing life or suffering serious bodily harm at the hands of Wallace, the killing would he illegal and wrongful.” Held, that the charge was improper, in that it maltes the question whether the killing was wrongful depend not only on the absence of reasonable appearance of danger, but also on the actual absence of belief of danger by the party killing.</p> <p>4. Charge.—Although defendants are sued as joint trespassers, still where the testimony requires, the charge should be so framed as to allow a verdict against one though the others be innocent.</p>

<p>1. Unorganized Counties—Jurisdiction.—The territory of a new county remains subject to the jurisdiction of the county from which it was taken until the actual organization of the new county, unless by act of the Legislature some other county is given jurisdiction of the territory of the new county for specific purposes. Rev. Stats., art. 670; 66 Texas, 311; 69 Texas, 177.</p> <p>2. Registration—Unorganized Counties.—A deed for land within the original limits of Bexar County was there registered April 28, 1877. The land lies within the limits of Taylor County, then unorganized and attached to Eastland County for judicial purposes, and a part of Palo Pinto Land District. Meld, that prior to the Act of March 30, 1881, there was no law requiring titles for land in unorganized counties to be recorded in the counties to which such unorganized territory was attached for judicial purposes, and such record in Bexar County was valid as notice.</p>

<p>Costs on Appeal from Justice Courts.—Recovery was had for thirty-five dollars in a Justice Court; defendant appealed, and on appeal judgment was rendered for thirty dollars and accrued interest, aggregating over thirty-five dollars. Held, error to-compute interest during the appeal so as to impose costs 'npon the appellant when in fact by appeal he had reduced the recovery.</p>

<p>Appeal from Anderson. Tried below before Hon. F. A. Williams.</p> <p>The opinion states the case.</p>

<p>Error from Henderson. Tried below before Hon. F. A. Williams.</p> <p>The opinion states the case.</p>

Tried below before Hon. V. W. Hale, Special District Judge. August 10, 1888, appellant brought this suit in the District Court of Red River County against W. S. Campbell and C. W. Walker in trespass to try title to lots Nos. 1 and 4 in block 68 in the city of Clarksville, and for rents, etc. On 23d of November, 1888, Campbell and Walker entered their appearance and filed a general denial and plea of not guilty.

Tried below before Hon. R. J. Boyken. This is an appeal from a judgment for $475.30 in a suit for damages-for negligently burning grass, etc., upon 128 or 130 acres of land. The verdict apportioned the damages, $345 for burning grass, $66.30 for burning fence, and $64 for injury to turf. Other facts are given in opinion..

<p>1. Bight of Action.—A purchaser who agrees to pay a note held by a third party against his vendor which constitutes a lien on the land purchased, is not liable on such, note in an action by the vendor unless such vendor has paid the note.</p> <p>2. Lien—Bight of Action.—One who holds a lien for unpaid purchase money reserved in his deed may on default of payment either rescind the contract of sale or sue to recover his money. If he elects to sue and the land is sold at foreclosure sale the title vests in the imrchaser. If the vendee sells the land to a third party no action can be maintained against him by bis vendor on his promise to such vendor to pay off a pre-existing lien which the vendor himself had not discharged. The land in such case can not be seized under attachment at the suit of the vendor on the ground of fraud in the conveyance made by his vendee. If fraudulent it would only be so against creditors, and he could only become a creditor by paying oil the pre-existing lien.</p> <p>3. Attachment.—An attachment sued out against two defendants is not supported by an affidavit that “the attachment is not sued out for the purpose of vexing or harassing the defendant.”</p>

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

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

<p>Appeal from Tarrant. Tried below before Hon. R. J. Boyken, Special Judge.</p> <p>The opinion states the case.</p>

<p>Heirship.—Title to an estate of inheritance, real, personal, and mixed, when the owner dies intestate as to such estate and leaves no surviving husband or wife, but children, and also grandchildren whose parents are dead, descends and passes in parcenary to such children and grandchildren.</p>

<p>1. Collateral Security—Administration.—When a promissory note is deposited as collateral security for a debt the creditor is not a mere mortgagee or lien holder who in case of the death of his debtor must prove up his debt in the Probate Court. In a proceeding in the District Court involving the rights of contesting claimants the court may order the amount due on the debt thus secured to be paid without requiring the establishment of the claim in the administration of the estate.</p> <p>2. Promissory Note—Collateral Security.—The holder of a note secured by mortgage, when the note has been received by him as collateral security for a debt due from the payee, may maintain an action on such note and for foreclosure of the mortgage. If the administrator of the estate of the payee is a party to the proceeding the judgment may require the holder to retain in trust the proceeds of the note and mortgage, subject alone to the payment of such amount as he might establish against the estate of the deceased payee. In such a case the proceeds of the sale of the mortgaged property should be paid into the court by the sheriff for distribution in accordance with the terms of the decree, the excess after discharging the mortgage debt to be paid to the mortgagor.</p>

<p>1. Mechanic’s Lien.—The lien of a mechanic .is secured by section 37, article 16, of the Constitution; the method of its enforcement depends on statute law. Though it is not fixed before record of the contract or bill of particulars, yet when it is fixed it relates back to the time when the work was performed or the material furnished, and taires precedence of all claims to the property improved which were fastened on it since that time. The lien exists before registration; the registration preserves it.</p> <p>2. Same.—Within the period of time allowed by statute for a mechanic’s lien to be fixed by registration, every person dealing with the property is charged with notice of the existence of such lien.</p> <p>3. Case Discussed, and Approved—.Fixtures.—• Hutchins v. Masterson, 46 Texas, 554, discussed and approved in regard to tests to be considered in determining whether a chattel has become an immovable fixture.</p>

<p>1. Experts.—When the injury relates to a matter that may be understood as well by one rational mind as by another, and without special training or experience, the testimony of experts is not admissible. See opinion for facts illustrating this rule.</p> <p>2. Cities and Towns—Streets.—-The liability of a city or town for defective streets or sidewalks is not that of a guarantor of the safety of those who use them. They are bound to use only reasonable skill and diligence in making them safe and convenient for travel.</p> <p>3. Negligence.—When one who is using a bridge in a city is injured by some defect in its construction, and such injury would have been avoided by the use of such care and prudence as an ordinarily prudent person would have used under like circumstances, the city is not liable in damages.</p> <p>4. Opinion of Witnesses.—When a claim for damages against a city was based on the alleged negligence of the city in constructing a bridge which was alleged to have been dangerous for travel, and the facts relied on were such as could be understood by men of ordinary experience and without the aid of an expert, the opinions of witnesses as to the dangerous character of the bridge were properly excluded.</p>

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

Tried below before Hon. A. S. Walker. This was an action for damages instituted by appellee against the appellant in the District Court of Travis County on February 19, 1886.

<p>Appeal from Anderson. Tried below before Hon. F. A. Williams.</p> <p>The opinion states the case.</p>

<p>Cities and Towns.—A city or town incorporated under the general laws of Texas is responsible in damages for an injury inflicted under circumstances which would fix liability on a city or town incorporated by special enactment, clothed with the same powers and charged with the same duties.</p>

<p>1. Contracts—Principal and Agent.—The law will not permit the employed agent of a county to make profit for himself at the expense of a county by influencing the County Court to disregard its duty. Even though the county commissioners be guilty of culpable negligence in the performance of their duty to protect the public interest, the county may recover back the damage sustained by the act of the faithless agent. Eor facts see opinion.</p> <p>2. Cases Distinguished.—This case distinguished from De la Garza v. Bexar County, 31 Texas, 484; Looscan v. Harris County, 58 Texas, 514; and McFadin v. MacGreal, 25 Texas, 73.</p>

<p>1. Practice.—A defendant has the right to file his answer at any time before judgment by default is actually announced by the court.</p> <p>2. Same.—Rules that may properly control the practice of District Courts when causes are taken under advisement by the judge have no application when the only-question is the right of the plaintiff to take a default.</p>

<p>Error from Titus. Tried below before Hon. Felix J. McCord.</p> <p>The opinion states the case.</p>

<p>Appeal from Cass. Tried below before Hon. John L. Sheppard</p> <p>The opinion states the! case.</p>

<p>1. Business Homestead.—To constitute a business homestead separate from a residence the head of the family must have a calling or business to which the property is adapted and reasonably necessary, and such property must be used as a place to execute the calling or business of the head of the family.</p> <p>3. Same.—A member of a failing mercantile firm, being a notary public and mayor of the village of his residence, is entitled after the business failure to a place for carrying on his calling as notary and mayor.</p> <p>3. Extent of Exemption as Place of Business.—The place of business must be reasonably appropriate to the business carried on. In the change from the mercantile firm a part of the buildings was leased by the owner to a purpose inconsistent with the owner’s use. Held,, that by such leasing, there being ample space left the owner for the business carried on, it was made subject to execution.</p> <p>4. Case in Judgment.—A mercantile firm used in business two buildings, each twenty by seventy feet, with a common partition wall in which were two connecting arches; one building was of two stories, the other one. After the failure of the firm one of its members, owning the houses, continued the occupancy of the one story building for office as a notary public, etc., leasing out the two story building. Held, that the two story building was subject to execution.</p>

<p>1. Principal and Agent,—When an agent employed to sell land complies with the contract of employment, and the owner refuses without sufficient reason to fulfill the agreement made by such agent with the party who desires to purchase, if such party he able, willing, and ready to purchase, the agent is entitled to compensation, to be regulated either by the terms of the contract, or by established usage if there be no •contract fixing the terms.</p> <p>2. Judgment.—When the evidence, though conflicting, is sufficient to sustain the judgment, it will not be reversed on appeal.</p>

<p>Damages—Custom—Railways.—A railway company is bound.by a custom acquiesced in by it under which timber is piled up on its right of way for shipment. If it is destroyed by fire originating from one of the company’s trains, and without the contributory negligence of the owner of the timber, the railway company is liable in damages.</p>

<p>1. Deed by Married Woman.—Revised Statutes, articles 4310 and 4313, prescribe the form of privy acknowledgment to be taken to make effectual the deed of a married woman, and the requisites of the official certificate to such acknowledgment. They must be substantially followed by the officer taking and certifying such acknowledgment.</p> <p>2. Certificate of Privy Acknowledgment.—-A certificate showing “that this deed from Margaret A. Barbee and Joseph A. Barbee, her husband, to Sarah T. Tingle was produced to me in my office this day, and was acknowledged by the grantors to be their act and deed, and said instrument of writing being shown and explained to Mrs. M. A. Barbee separate and apart from her husband, she acknowledged the same freely and willingly, without fear or undue influence of her said husband, and desired the same certified and recorded,” held, defective, and such deed was properly excluded when offered as evidence of title.</p> <p>3. Privy Acknowledgment.—When such acknowledgment is made to the proper officer in the manner and under the circumstances prescribed by the law the deed takes effect and conveys the title. It seems that a defective certificate may he corrected upon showing the facts and that the statute w'as followed.</p> <p>4. Registration—Notice.—If the certificate of privy acknowledgment does not state the facts essential to the conveyance, the registration of the instrument is illegal and does not constitute notice.</p> <p>5. Same.—While the certificate of privy acknowledgment may he supplied or corrected, if defective, the registration is not affected thereby. The registration upon the defective proof is a nullity.</p>

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

<p>Appeal from Morris. Tried below before Hon. John L. Sheppard.</p> <p>The opinion states the case.</p>

<p>Unliquidated Damages—Setoff.—Suit for wrongful conversion of a package of money received by defendant through an agent of plaintiffs. The package was to he returned to the agent, but was retained. Upon suit by plaintiffs for damages for the conversion of the money the defendant pleaded in setoff certain items of indebtedness owing him by plaintiffs. It was objected to the allowance of the offset that the cause of action was in tort. Held:</p> <p>1. That as the money withheld by the defendant was known, the measure of damages was a matter of calculation, in no wise uncertain or unliquidated.</p> <p>2. It was proper to allow the offsets pleaded, they being proved.</p>

<p>1. Specific Performance — Stale Demand.—The defense of stale demand became statutory by article 3209, Revised Statutes, providing: “Any action for specific performance of a contract for the conveyance of real estate shall be commenced within ten years next after the cause of action shall have accrued, and not afterward. ”</p> <p>8. Stale Demand—Exceptions.—Only the statutory exceptions to the running of limitation, and such other matters as have been held applicable to the defense of limitation, will excuse the failure to bring such suit before the expiration of ten years from the accrual of the action.</p> <p>3, Registration,—An instrument acknowledging an obligation by the maker to transfer land to another, diily acknowledged, may be recorded, whatever its form may be. (See example.)</p> <p>4, Testimony of Party to Suit.—It is competent to admit the testimony of the grantee to the existence and contents of an instrument made by the deceased grantor, the original being lost, in a litigation between such grantee and the heirs of the grantor.</p>

<p>Appeal from Red River. Tried below before Hon. E. D. McClelland.</p> <p>The opinion states the case.</p>

<p>1. Variance.—The petition described a note sued upon as follows: “That on July 1, 1887, the defendants, under their firm name, for a valuable consideration, made, executed, and delivered to plaintiffs their certain promissory note in writing of that date, whereby, seven months after date, they promised to pay to the order of themselves §8746.39, and thereafter on the same day defendants endorsed said note by writing their firm name,across the back thereof.” The court, on account of variance, properly-excluded when offered by plaintiffs a note for the same sum of same date and signed by same firm, but which was endorsed by one I. Lewis; the testimony further showing that one of the defendants, acting for the firm, had executed the note to I. Lewis, who endorsed same to plaintiffs.</p> <p>3. Plea of Non Est Factum.—Such plea, after it has been withdrawn by the defendant making it, is not competent evidence when offered by an intervenor attacking the validity of the note to which it had been opposed.</p> <p>3. Garnishment—Funds in Custody of the Law.—Service of a writ of garnishment upon a district clerk gives no lien upon funds deposited by the sheriff with the clerk to await the further action of the court.</p> <p>4. Testimony—Interrogatories Confessed.—Interrogatories propounded to one not made a party to the suit can not be taken as confessed andbe made evidence against parties to the suit upon the officer charged with the duty of taking the answers certifying that the witness would not answer the interrogatories.</p>