Volume 75 — Texas Reports

<p>1. Damages.—In a suit to recover actual and exemplary damages no judgment can be rendered awarding exemplary damages on a verdict which finds no actual damages.</p> <p>2. Same.—A claim for damages resulting from personal injury can not be assigned.</p> <p>3. Same—Pleading.—A plea by a defendant who is sued for damages alleged to have resulted from injuries to the person, setting up a transfer by the plaintiff to his attorneys of all sums of money to he recovered in the suit, that the attorneys of plaintiff were the real parties in interest, and they alone were to be liable for costs, should he stricken out on exception.</p>

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

<p>1. Presumption.—The decree of a Probate Court of another State, properly certified, which assumes to change the name of a minor and decree her adoption by those not her parents as their child, will he presumed to be legal, and to have been rendered after jurisdiction had properly attached, though such presumption is not conclusive.</p> <p>2. Pleading.—A plea which contains only conclusions from facts not stated should he stricken out on exceptions. Thus in a suit attacking the validity of a will an allegation that the defendant and another “conspired and confederated with themselves and others, and used and exercised undue influence over said [the testatrix] in order fraudulently to procure the execution of such instrument in writing,” is had on demurrer.</p> <p>3. Will.—The probate of a will can not be set aside on proof of facts which do no-more than show that an opportunity to exercise undue influence existed, or to raise a bare suspicion that such influence may have been used.</p> <p>4. Evidence—Depositions.—The answer of a witness to an interrogatory when testifying by interrogatory can not be excluded on objection raised for the first time-during the trial.</p> <p>5. Evidence—-Wills.—In a suit by a son attacking the validity of the will of a deceased parent, and against a surviving parent, such surviving parent claiming under-the will is not p competent witness to establish statements made by the deceased spouse affecting its validity.</p> <p>6. Evidence—Opinion of Witness.—The opinion of one who is present when a will is signed, and who witnessed the appearance, heard the conversation, and who can-state the condition of the testator at the time, is admissible in evidence on the question of mental capacity.</p> <p>7. Wills.—While it is true that capacity in the testator to understand the nature and extent of property disposed of by will must exist at the time the will is made, it is not necessary to its validity that an actual knowledge in the mind of the testator of the extent and nature of the property disposed of by will should exist. See opinion for a charge on this subject held erroneous.</p>

<p>Liability of Telegraph Company.— Plaintiffs were operating a saw' mill, and having broken their saw, one of the firm went to a neighboring village and engaged a member of a mercantile firm to telegraph to St. Louis to parties to ship at once another saw for use ill the saw mill to the mercantile firm. A dispatch was prepared but was handed to a traveling agent of the hardware firm to whom it was addressed. The agent did not send the dispatch, but sent another in terms: “Express Galloway & Stewart one Disston circular rip saw, fifty-six inches. Terms regular,” signing it himself. It was not made known to the agent of the telegraph company that the order was in behalf of plaintiffs. Held, that no recovery could be had by plaintiffs against the telegraph company for damages for want of the saw, or for the failure to deliver the dispatch.</p>

Tried below before Hon. W. P. McLean. The facts are given in opinion. The charges discussed are as follows: “ 4. The burden of proof is on the plaintiff to show his right to recover by a preponderance of the evidence. He must not only show by such preponderance that employes of defendant did intentionally frighten the team of plaintiff, and that he was thereby injured.

<p>1. Trustee Buying at His Own Sale.—A trustee to whom lands were conveyed in trust to secure his own debt and that of others secured by the conveyance may purchase at his own sale of the land.</p> <p>S. Same—Deed.—A deed from such trustee to himself for land sold as trustee to himself, in absence of fraud, is valid to pass the title.</p> <p>3. Payment.—That the trustee having sold the lands at cash sale executed his promissory notes for the pro rata shares of the other parties interested in the sale, they consenting, is no ground of attack upon the sale by unsecured creditors.</p> <p>4. Grantor to Himself May Prove Deed.—It was not error to allow the maker of the deed as trustee to himself to testify to its execution, there being no witnesses or acknowledgment.</p>

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

<p>1. Pleading—Tender Excused.—Clarke, a vendee of Roy, brought suit against Roy for the land and possession, which under the contract of purchase was to he surrendered at a date prior to the maturity of a note for five hundred dollars of the purchase money. Clarke claimed $700 damages of Roy for trespass upon timber and for taxes on the land paid by plaintiff, etc. Held, that exceptions to the petition for not "tendering the unpaid purchase money were properly overruled.</p> <p>2. Vendor and Vendee—Transfer of Vendor’s Lien Note.—In suit for possession of land by a vendee against the vendor, such vendor could not resist the action by reason of the existence of an unpaid note for a part of the purchase money transferred by him. Such note, as to the vendor, was paid, and the suit could not affect the lien upon the land held by the owner of the vendor’s lien note.</p> <p>3. Homestead—Surrender of Same to Pay Purchase Money.—The husband has the power to convey land to satisfy the purchase money therefor, if done in good faith and without fraudulent purpose to defraud the wife in her homestead rights, or-to a purchaser ignorant of such intent.</p> <p>4. Same—Case in Judgment.—Roy by parol had contracted for the land with Williams and entered into possession. Roy was unable to pay, and Clarke made the payment (of greater part) of the purchase money to Williams, when Williams deeded the land to Roy, Roy at same time deeding same to Clarke. Roy and wife refused to yield possession, and the wife claipied homestead rights in 200 acres of the tract. Held:</p> <p>1. That as against Williams, Roy and wife could not assert homestead rights.</p> <p>2. As Clarke by payment to Williams was subrogated to his rights, he took the land, by the transfer free from any homestead rights, it appearing that the transactions between Roy and Clarke were not in fraud of the rights of Roy’s wife.</p>

<p>Appeal from Lamar. Tried, below before Hon. D. H. Scott.</p> <p>The opinion states the case.</p>

<p>Appeal from Williamson. Tried below before Hon. A. S. Walker.</p> <p>The opinion can be understood from the statement given therein.</p>

<p>1. Tenant’s- Growing Crop Sold Under Execution.—A purchaser of a growing cotton crop at execution sale (the crop having been made by a tenant who besides-the landlord’s lien had mortgaged the crop) takes the crop with the right to enter the-premises, gather and market the crop; the net proceeds, however, subject first to the-landlord’s lien and next to the mortgage.</p> <p>2. Rights of Purchaser of Tenant’s Crop.—Such purchaser, while he has the-right to gather such crop, is under no obligation to the lien holders to do so.</p> <p>3. Liability of Such Purchaser.—His liability is the net proceeds of said crop, and to the lien holders in order of priority.</p> <p>4. Parties.—In suit against the purchaser by the landlord having an unsatisfied judgment for rent, the junior mortgagees were proper parties, although they had a suit pending against the purchaser for conversion of same crop.</p> <p>5. Extent of Liability of Such Purchaser.—The purchaser having paid the net proceeds of the crop upon the landlord’s lien was not further liable to the junior-lien holders.</p>

<p>1. Care Toy Railway Company in Its Track, etc.—The test of diligence required of a railway company in furnishing and maintaining proper appliances for the use of its employes is that of ordinary care.</p> <p>8. Ordinary Care is such as an ordinarily prudent man would use under the circumstances.</p> <p>3. Same.—It was error to give in charge as to the duty of railway companies the following: “Railways are not bound to their employes to provide the best possible .appliances, but they are bound only to supply such as are in common use by well managed railways, and which they have skillfully constructed and carefully maintain in repair. They are bound to furnish such appliances as are reasonably safe and suitable, such as a prudent man would furnish if his own life were exposed to danger that would result from unsuitable or unsafe appliances.”</p>

Tried below before Hon. E. W. Terhune. This is an action in trespass to try title and for damages by appellees Lucy A. Prather, Holloway W. Prather, Edward B. Prather, Thomas G. Prather, Alberta F. Jones, joined by her husband W. L. Jones, Laura D. Garrett, Jefferson Prather, Ellen Gregory, joined by her husband Robert Gregory, Missouri Bobo, joined by her husband Jesse Bobo, and Willie Camp, joined by her husband John Camp, the collateral heirs of N. C. Prather, deceased,…

<p>1. Physical Sufferings.—While in a suit by the mother, a widow with no children, against a railway company for negligently causing the death of her son, his physical sufferings preceding the death can form no basis for damages, yet where the testimony showed that the body of deceased had been mangled and that he died a few hours after the injury, it is no ground for reversal that a witness, over objection, was allowed to testify that the deceased “moaned until he died.”</p> <p>2. Res Gestae—Declarations of Servants.— It was competent to show that about half an hour before an accident upon a railroad caused by the spreading of the' rails upon the track, a track walker reported to the section boss at work upon the track the condition of the track, that “the track is spread.” The rejrort was by a servant whose duty it was to ascertain the condition of the track, and to report it to other servants whose duty it was to repair it.</p> <p>3. Contributory Negligence.—See facts and charge approved upon contributory negligence; also charge refused as not applicable to the testimony.</p> <p>4. Life Expectancies.—Courts can not hold juries bound by statistics or calculations of life expectancies in estimating damages to a mother for loss of her son’s support during her life.</p> <p>5. Verdict—Damages.—Suit by a widow for death of her only child, a son 26 years old, earning $1000 a year, out of which he contributed $200 a year to his moth er’s support, who was fifty-one years old. He was “industrious, economical, and temperate.” Held, a verdict for $4200 was not ground for reversal.</p>

<p>Appeal from Tarrant. Tried below before Hon. Chas. I. Evans, Special District Judge.</p> <p>The opinion states the case.</p>

<p>1. Jurisdiction—Seizure of Goods Under Illegal Attachment.—Willis & Bro. having procured a writ of attachment from the District Court of Galveston County ■against McNatt & March upon an affidavit not warranted by the facts, having sent the writ by their agent to Montague County, the residence of the defendants in attachment, and having caused the seizure of the goods of the defendants, the plaintiffs thereby so far participated in the seizure as to be liable in trespass for damages for the illegal seizure in Montague County. (See facts.)</p> <p>2. Abuse of Legal Process.—A sheriff having an execution and a writ of attachment which were levied upon the same goods, advertised and sold the goods. Held, as to the sale of the remnant after the execution had been satisfied, the sale thereof under the attachment (no order of sale existing therein) was illegal, and was an abuse of the process in the hands of the sheriff, for which an action would lie against those •participating in the sale and conversion of the goods.</p> <p>3. Exemplary Damages. — Exemplary damages may be allowed against the plaintiffs in an attachment obtained by them upon a ground not true in fact, and the falsehood of the affidavit being known or should have been known to the plaintiffs in ■the attachment.</p> <p>4. Grounds of Attachment.—The apprehension that some other creditor might attach affords no sufficient reason for suing out a writ of attachment, but rather indi•cates a reckless disregard of the rights of the debtor where the attachment is sought on .such grounds.</p> <p>5. Remarks of Counsel in Argument.—Objectionable words and phrases used in argument, when in reply to objectionable remarks by the adversary, and where it •does not appear that the remarks were of injury, are no grounds of reversal.</p> <p>6. Actual Damages—Value—Interest.—A verdict is not excessive when it is supported by testimony to actual value of the goods when taken, and does not exceed ■such value with interest at eight per cent until the date of the trial.</p>

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

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

<p>Assignment of Errors—Buies.—By Buie 29 as amended February 10, 1888, as. signments of error must be copied in the brief of appellant. Failure to comply with this rule is a practical failure to call the attention of the court to any error.</p>

Error from Marion. Tried below before Hon. John L. Sheppard. This is a second appeal. The case is stated in the report on the first appeal, 72 Texas, 70, and in opinion.

<p>1. Surprise—Continuance—Amendment.—We do not understand that upon the coming in of an amendment presenting new issues the party who claims surprise is entitled to a continuance as a matter of absolute right. If the court be satisfied upon sufficient grounds that there is no surprise, a continuance should be refused if asked on account of such amendment.</p> <p>2. Exhibits—Variance.—Where an instrument declared on is made an exhibit there can not be a variance when it is offered as evidence. It would not matter if the pleader had been mistaken in alleging its legal effect.</p> <p>8. Practice—Admission of Incompetent Testimony.—In a trial before the court without a jury the admission of incompetent testimony is no cause of reversal where other testimony sustains the judgment upon the issue.</p> <p>4. Illegal Contract.—It is not illegal that parties, pending an election to locate the county seat of a county, contracted with the county officers in event of the selection of a certain place to defray the expense of a court house for five years, it not appearing that the amount exceeded the pecuniary outlay incident to the change of location.</p> <p>5. Same.—It is not, however, held that even if the„amount stipulated had been in excess of the expenses of the change that the transaction would not be lawful.</p> <p>6. Contracts Made on Sunday.—Contracts,made upon Sunday, when not made in course of a business prohibited upon that day by statutory law, are valid.</p> <p>7. Destruction of Leased Premises.—It seems that a contract of lease of a part of a building, the ground not being leased, would cease upon the destruction of the building by fire, there being nothing to which the lease would attach.</p>

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

Tried below before Hon. P. M. Stine. May 18, 1886, appellee McBride sued J. H. Tolbert, as administrator of W. B. Morrison, upon a promissory note, as follows: “Vernon, Wilbarger Co., Texas, September 12, 1883. “One year after date I promise to pay C. M. Byars three thousand and twenty-five dollars without interest.

<p>1. Division Line.—See facts held insufficient to show consent to a division line run in 1855 on part of owner of the land encroached upon by the line so run.</p> <p>3. Limitation of Three Years.—Where the chain of title under which the benefit of three years limitation is sought does not include the land in dispute in its description, such possession does not mature the claim and possession into title.</p> <p>3. Limitation of Ten Years.—So where there is no actual adverse oocupancy, and the paper title under which possession is held does not include the land in controversy, the statute of limitation of ten years does not apply.</p> <p>4. Trespass to Try Title—Practice.—Where the title to the land is in controversy the suit is practically trespass to try title, and in such suit one tenant in common as plaintiff could maintain the action against one having no title. A plea in abatement for nonjoinder of other tenants in common with plaintiffs was properly disregarded.</p>

Tried below before Hon. J. W. Patterson, Special District Judge. March 7, 1837, the following contract was executed: “Republic of Texas, Coimty of San Augustine.—Know all men by these presents, that Moses F. Roberts of said county and Republic has this day nominated, constituted, and appointed, and by these presents do nominate, constitute, and appoint Wm.

<p>Fraudulent Conveyance—Charge.—Creditors of an insolvent debtor attached Ms-stock of goods. A few hours prior to the levy of the attachments the debtor had executed a transfer of all his stock, notes, and accounts to a trustee, who at once took possession, with poAver to sell and dispose of the goods “on such terms as to him may seem best, and full poAver to collect said notes, etc.”—the proceeds, after expenses, to be paid, first, §715 and interest to a brother in Chicago, and second, a debt of about §2600 Avith interest to the State National Bank of El Paso; the trustee to manage and1 sell the property and collect said notes, etc., under the direction of the officers of the bank. It appeared that the estimated A'alue of the goods and the claims was in excess of the indebtedness secured. The trustee claimed the goods. Held:</p> <p>1. It Avas error in the court to refuse to charge upon the issue that the conveyance was fraudulent in attempting to delay creditors.</p> <p>2. The court could not charge that the conveyance was fraudulent on its face.</p> <p>3. The jury could pass upon the conveyance with the circumstances in evidence and determine the fact whether fraudulent.</p>

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

<p>1. Limitation.—The statute of limitations will not run in favor of one who holds the title to land in his own name under a resulting, trust in favor of another until he repudiates such trust, and nqtice of such repudiation to the cestui que trust is shown.</p> <p>S. Fraud—Attorney and Client—Contract.—In a purchase by an attorney from his client during the existence of that relation presumptions will be indulged against its validity. In a contest involving its validity between the parties it is incumbent on the attorney to show affirmatively: 1. Good faith. 2. The absence of undue influence. 3. The payment of a fair price. 4. Knowledge, intention, and freedom of action by the client. 5. That the attorney-gave the client full information and disinterested advice.</p> <p>3. Same—Limitation.—Limitation runs against a suit to rescind a contract consummated in fraud after the expiration of four years, or after the expiration of four years from the time when the the fraud was discovered, or when under the facts as they existed it should have been ascertained.</p> <p>4. Fraud—Attorney and Client.—While equity holds an attorney to the utmost good faith in making a sale to or purchasing from his client, while that relation exists, and where fraud has been practiced by the attorney limitation is suspended until its discovery, yet the client can not neglect every precaution incident to ownership after a purchase from his attorney. If he purchases from his attorney relying on his representations, and is defrauded, limitation will run against his cause of action after such lapse of time as would naturally suffice to an owner to ascertain the character of his property, and the truth of the representations on which he purchased. See opinion for facts illustrating the rule.</p>

Tried below before Hon. John L. Sheppard. This is an appeal from a judgment sustaining exceptions to pleadings of appellants controverting the answer of appellee in garnishment. The ■court allowed the garnishee forty dollars attorney fee for preparing answer, etc. The opinion states the case.

<p>■ Appeal from Hopkins. Tried below before Hon. E. W. Terhune.</p> <p>The opinion states the case.</p>

<p>1. Constitutional Law—Legislative Act.—An act of the State Legislature will be held valid unless its passage is expressly or by necessary implication forbidden by some superior law.</p> <p>2. Same.—A prohibition against the exercise of legislative power can not result. from necessary implication unless, looking to the language and purpose of the Constitution, it is evident that without such implication the will of the people, as manifest by an inspection of all the provisions of the Constitution, can not be given effect.</p> <p>3. Same.—Under sections 7 and 14 of article 5 of the State Constitution, the Legislature may increase or diminish the number of judicial districts and prescribe what territory should be embraced in a given district. In the absence of some constitutional prohibition the Legislature has power to create a judicial district out of territory, however small, when in its judgment the public interest requires it.</p> <p>4. Same.—Nothing contained in article 5, section 7, of the State Constitution, shows either an express or implied prohibition against the legislative power to create a judicial district with less territory than an entire county.</p> <p>5. Same.—No necessary implication can arise from the requirement in section 7, article 5, of the State Constitution, which requires “regular terms of the court to be held at one place in each county in the district twice in each year, ” that it was intended to prohibit the creation of more than one judicial district in a county. Another clause of the same section which confers the power " to provide for the holding of more than two terms in any county in one year for the dispatch of business,” shows that the former provision was only intended as a limitation on the legislative power to reduce the number of terms of court.</p> <p>6. Same.—The place within the county at which sessions of the District Court may be held is subject to statutory control, and the Constitution contains nothing express or implied which prohibits two District Courts from holding sessions in the same place.</p> <p>7. Same.—Nothing contained, in article 5, section 9, of the State Constitution prohibits the Legislature from providing two District Courts for one county.</p> <p>8. Same.—A State Constitution grants no power to a Legislature, but limits its exercise. The fact that the necessity for the exercise of a legislative power was manifestly not foreseen by the framers of a State Constitution, can not be regarded as impliedly prohibiting its exercise.</p> <p>9. Same—District Clerk.—The Act of 1889 creating the Forty-fifth Judicial District, which requires the clerk of the District Court of Bexar County to perform in the courts of the Forty-fifth and Thirty-seventh Judicial Districts the duties imposed by law on a district clerk, violates in this regard no constitutional provision.</p> <p>10. Constitution Construed.—Nothing contained in the Constitution of Texas, either expressly or by necessary implication, prohibits the Legislature from creating the Forty-fifth Judicial District in Bexar County, in which the Thirty-seventh Judicial District also exists.</p> <p>11. Same — Special or Local Laws.—Though a law prescribing the territory which shall constitute a judicial district is necessarily local in its character, the power to enact such a law is expressly recognized, and is not in conflict with article 8, section 56, of the Constitution.</p> <p>13. Quaere.—Quaere, whether so much of the Act of 1889 creating a new judicial district in Bexar County as provides that no grand jury shall be summoned or impaneled in the court to be held in such district, but that a grand jury shall be organized at each term of another District Court in the same county, to inquire into all offenses committed within the entire county, is constitutional.</p> <p>13. Same.—Clauses in the Act creating the Forty-fifth Judicial District, claimed to be of doubtful constitutionality, are not so inseparably connected with those portions of the act clearly constitutional as to involve the legality of the entire act.</p> <p>14. Same.—Courts sitting in the Forty-fifth and Thirty-seventh Judicial Districts, in Bexar County, are legal courts, entitled to exercise the jurisdiction conferred on District Courts by the State Constitution.</p>

<p>1. Fraud in Sale—Fictitious Consideration.—If tlie consideration, or any part of it, in a sale by a failing debtor, as alleged to have been paid, is unreal or fictitious, such sale is voidable when attacked for fraud by other creditors.</p> <p>3. Keeitals.—A bill of sale by a failing debtor recited a cash consideration of §2250. It was shown that the transaction was a transfer to pay the vendee for debts and liabilities assumed, in the aggregate about §1800. No explanation being made of the false recital as to the consideration, held, upon such facts a judgment below avoiding the sale was properly rendered.</p>

Tried below before Hon. D. W. Doom, Special District Judge. September 2, 1887, Hanrick filed a motion to retax costs taxed against him by the district clerk of Williamson County in ninety-one cases in which appellant was plaintiff and ninety-one different persons were defendants, said causes having been removed by change of venue to Travis County on the application of plaintiff, where they are still pending.

Tried below before Horn D. P. Marr. Suit by Mary Woodward, appellant, a married woman, against Toll McNeill, for a piano,- valued at $550, and rent for the same, her separate property.

<p>1. Variance—Exhibit With Items.—Suit upon an account for merchandise alleged to have been sold defendants August 4, 1888. To the petition was attached an exhibit giving items; among items were charges for goods delivered August 11, 1888. Judgment nil elicit for the whole amount claimed in the petition. Held, that the judgment was correct, the items on the exhibit of 8th of August being properly included.</p> <p>3. Practice in Supreme Court—Remittitur.—A judgment nil elicit was rendered for an excess of interest. After an appeal was perfected by the defendants the plaintiffs entered a remittitur. Held, that it was made too late to save costs of the appeal.</p> <p>3. Same.—The general rule seems to be to allow the plaintiff in error his costs when the judgment has been by default and is excessive and the remittitur is not entered before the writ of error is sued out.</p>

<p>1. Employer and Employe.—A servant in pay of one railway company and employed in the yard and track of another railway company under some agreement be tween them, is entitled to protection of the law for injuries received from the want of proper care on part of the railway company owning the yard and train in working upon which the injury was caused, although paid by the other railway company.</p> <p>2. Same.—A servant by his employment charged with the duty of working at a common railway yard for several companies is protected against negligence on part of any of the companies upon whose machinery he may be employed, regardless of the question from which of the companies his direct employment came.</p> <p>3. Damages Not Excessive.—-In an effort to couple cars plaintiff was injured, thereby losing the use of one hand. Held, that a verdict for $6000 damages was not excessive.</p>

<p>1. Pleading—Negligence.—A mere abstract proposition that defendant was; guilty of negligence which resulted in injury to plaintiff is not sufficient; the act done or omitted constituting negligence must he averred.</p> <p>3. Same.—The testimony upon trial should be confined to the specific acts relied upon as negligence. Evidence to other acts of negligence a ground for reversal.</p> <p>3. Same—Exception to Rule.—Where from the nature of the case the plaintiff would not he expected to know the exact cause or the precise negligent act, and where such facts are peculiarly within the knowledge of the defendant, it would he sufficient in a general way to allege the fact.</p> <p>4. Irrelevant Testimony. — Suit for personal injury suffered by plaintiff by reason of the negligence of defendant in not signaling by hell or whistle the approach of the cars inflicting the injury, and by running at too fast speed. The proof was that the negligent act was in the failure to have the place properly lighted. Held, the testimony should have been confined to the allegations.</p> <p>5. Irrelevant Testimony.—Evidence that defendant, a few days after the injury, placed lights near the place, held irrelevant in suit for the injury.</p>

Tried below before Hon. Anson Rainey. Appellee brought his suit against appellant to recover damages alleged by him to have been received in a railroad wreck on appellant’s road on the 25th day of June, 1888, while he was a passenger thereon. He states in his petition that he received divers injuries on his person, including a fracture of the arm and dislocation of the right shoulder.

Tried below before Hon. H. O. Head. Mary E. Haley, administratrix of W. H. Haley, brought this suit May 11, 1887, against the appellant T. H. King for the north half of 320 acres of land in Hunt County, patented to Simeon K. Woodrow. King disclaimed on the 30th of January, 1889, and alleged that he was a tenant of Samuel 0.

<p>1. Traced Copies.—Traced copies offered in connection with photographic copies of signatures material in the case were properly excluded. But as the photographic copies evidently are more accurate, no injury could follow the exclusion of the traced copies.</p> <p>,j 2. Ancient Records of Masonic Lodges—Pedigree.—Upon an issue of peditree in a trial had in September, 1888, it was competent to show by examined copy the /record of proceedings of a Masonic lodge held in 1836, reciting a fact pertinent to the /inquiry in the trial. See facts.</p> <p>3. Certificate to Effect of Ancient Records.—Such certificate is incompetent as evidence. An examined copy of such part of the records as may be relevant to the issue should be produced.</p> <p>4. Impeaching Witness.-—-The depositions of an aged witness were taken by one of the parties. A lawyer in employ of an adverse party subsequently visited the witness. Held, that his testimony giving his opinion as to the capacity of the witness to testify was not competent; he was not an expert, nor did he testify to the capacity of the witness at the time her depositions were taken.</p> <p>/f 5. Pedigree—Evidence.—In seeking to establish the identity of a deceased intestate by one claiming to be an heir, testimony to the deceased having changed his name having been admitted, it was also competent to admit his declarations that he had killed a man and had fled the country as reason for such change of name.</p> <p>6. Same.—Conversations between the deceased and a witness touching the personal resemblance between deceased and one claiming to be his brother, and present at the conversation, are competent.</p> <p>, 7. Hearsay.—To corroborate a witness who testified to the declarations by the deceased that he had killed a man, the depositions of witnesses were read to the effect that they had heard of the killing and that the deceased had committed the act. Held,, that the testimony was hearsay and should have been excluded.</p> <p>8. Date of Establishing a Postoffice. — A witness having testified to having received a letter from Camden, Arkansas, in 1835, it was sought to impeach the witness by reading from an encyclopedia that the town of Camden was so named in 1842. Held, that the testimony was properly excluded. The records of the general postoffice department at Washington could furnish competent testimony to date when the post-office at Camden was established. 9. Liability for Costs.—In a contest for the administration parties intervened,</p> <p>some favoring each of the contending litigants. Held, proper to give and impose such costs to the allies of the main contestants as are adjudged between the principals.</p>

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

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

<p>1. Partial Partition in Administration.—Under section 94, Act of August 9, 1876, authorizing a partial partition by order of the Probate Court upon petition of the heirs, filed after the first term of the court after expiration of twelve months from the original grant of administration, it is held upon such proceedings ascertaining the indebtedness of the estate and retaining sufficient assets to pay the debts—partitioning the excess—that the property so partitioned thereby is placed beyond the jurisdiction •of the Probate Court, and to leave it no longer subject to partition.</p> <p>2. Same.—Property once partitioned according to the law in administration under :said section 94, Act of August 9, 1876, should be deemed as effectually administered •as if sold by the administrator, and should not be again subjected to the payment of debts through the jurisdiction of the Probate Court.</p> <p>3. Disqualification of Judge.— Facts disqualifying a judge acting as a court must be established by testimony. See facts insufficient to disqualify a judge.</p> <p>4. Recording of Judgments.—It is not necessary that a decree of partition be recorded to be competent evidence, save as against one claiming to be a good faith purchaser.</p> <p>5. Bona Fide Purchaser.—One can not be an innocent purchaser under a void .sale; e. g., under a probate sale of property over which the court had no jurisdiction.</p> <p>6. Estoppel.—A widow and a child were the heirs of the deceased husband and father. After a partition the child died, leaving the widow the sole owner of the estate. In a sale of land of the estate after the child’s death she made the deed as “ administratrix and sole heir.” Held, that the land passed to the vendee, at least by estoppel.</p> <p>7. Practice in Trespass to Try Title.—Where the plaintiff fails to establish his title, errors committed in admitting testimony for defense will not avail him on appeal.</p>

Tried below before Hon. Norman G. Kittrell. The opinion in this case, and the report of the preceding case, contain ,a statement of the matters discussed in the opinion.

<p>Appeal from Hunt. Tried below before Hon. ¡E. W. Terhune,</p> <p>The opinion states the case.</p>

<p>1. Breach of Contract for Hire — Cause of Action.—The breach of contract, for hire for a term by the hirer gives to the discharged employe a right of action for damages., Such right of action can not be divided into several suits, as for wages per month at the contract price.</p> <p>2. Same—Remedy.—Suit for damages for the breach of such contract may be brought at any time before the cause of action is barred by limitation, either before or after the expiration of the time that the contract was made for. There can be but one recovery.</p> <p>3. Injunction.—After one recovery further suits upon the cause of action may be restrained by injunction.</p>

<p>Compromise and Settlement.—It was reversible error to sustain a general demurrer to a plea in substance that for the purpose of settling the matter in controversy it had been agreed upon before suit by the parties that defendant should pay to plaintiff §250 in full satisfaction of all demands, including notes sued on; that subsequently, under the agreement, defendant had delivered to plaintiff a gold watch at agreed value of §125, which was accepted as part payment upon said compromise, and that after-wards defendant tendered to plaintiff §125 and interest from the date of said settlement, but plaintiff refused to receive the same. The plea was good on general demurrer.</p>

<p>1. Venue—Breach of Parol Contract.—A parol contract to be performed in Shelby County by appellees, whose residence was in Galveston, was broken. Suit was brought upon its breach in Shelby County. Held, that a demurrer to the jurisdiction should be sustained. The case does not come within the exceptions in Revised Statutes, article 1198, section 5.</p> <p>2. Pleading—Fraud.—A plaintiff by abundant allegations can not enlarge a simple breach of contract into a fraudulent conspiracy, so as to confer jurisdiction over the defendants upon the court of the place of the contract. ,</p> <p>3. Same.—In alleging fraud specific allegations of the acts relied upon as fraudulent must be made. See allegations held insufficient.</p>

Tried below before Hon. A. J. Booty. H. M. Gay was a white man and America Gay is a negro woman. Before emancipation she was his slave, and while such slave he began cohabiting with her and had children by her. After emancipation they continued to live together as before and more children were born to them.

<p>1. Jurisdiction—Two Sessions of Court at Same Time.—While a special judge was engaged in the court room in the trial of a case in which the district judge was disqualified, the district judge, without objection of any of the parties, tried another case in another room in the court house. In the latter case on appeal, held, that objection comes too late when made by the losing party after the trial had ended. Such objection does not go to the jurisdiction. 2. Continuance—First Application.—It is ordinarily error to overrule an ap-</p> <p>plication for a continuance complying with the statute upon the subject. 3. Same—Bill of Exceptions.—The judge acting upon a refusal may in bills of</p> <p>exception give the grounds of his action. That a witness was engaged in business near the court house does not prove that his attendance could have been had, and is no suffi-cient reason for refusing the continuance. See facts.</p> <p>4. Map—Survey,—The production of an order of a city council as follows, “The cemetery committee was instructed to have a map made of the new addition to the cemetery, and placed with the city sexton,” was sufficient authority for a survey of the cemetery, such survey being necessary in order to make the map.</p>

<p>1. Statements of Husband Affecting Wife’s Property.—The acts or declarations of the husband touching his wife’s title to her separate property can not affect her rights, and the more so when it is not shown that such acts or declarations of the husband were acted upon by the party seeking to use them in evidence.</p> <p>2. Pleading—Fraudulent Conveyance.—Where a mortgage of all the property owned by the mortgagor is attacked by a subsequent attachment lien holder, and it is sought to show that part of the sum secured in the mortgage was fictitious, such fact must be pleaded; it is not sufficient to generally charge that the mortgage was made to defraud creditors.</p>

<p>Appeal from Ellis. Tried below before Hon. Anson Rainey..</p> <p>The opinion states the case.</p>

Tried below before Hon. Felix J. McCord. April 18, 1888, Wood County brought suit in the District Court against H. M. Cate, late the county judge of Wood County, for $264, alleged to have been illegally collected by him as fees for disbursing the public school fund for said county during his term of office from November, 1884, to November, 1886, together with threefold that sum added as penalty.

<p>1. Suit for Penalty—Exacting Illegal Fees.—Article 2421, title 42, of Revised Statutes, provides: “If any of the officers named in this title shall demand and receive any higher fees than are prescribed to them in this title, or any fees not allowed to them by this title, such officer shall be liable to the party aggrieved for fourfold the fees so unlawfully demanded and received by him, to be recovered in any court of competent jurisdiction.” This penalty does not apply to article 3745, which provides compensation for services of county judges for disbursing county funds.</p> <p>2. Jurisdiction.—The sum sought to be recovered, the penalty excepted, being less than $500, the District Court did not have jurisdiction. The case was properly dismissed.</p>

Tried below before Hon. W. E. Oollard. This suit was filed June 6, 1886, by Isabella Henry against the Missouri Pacific Railway Company and the International & Great Northern Railway Company for damages for the killing of her son, John Henry, at Taylor, Texas, on May 6, 1886. She alleged that her husband, the father of the deceased, John Henry, had abandoned her and moved to another State, and had no interest in this suit; alleged defective engine, and incompetent engineer.

Tried below before Hon. D. P. Harr. Suit originally brought in the Justice Court and appealed to the District Court upon the following filed account: “J. E. Long to N. W. Cude, Dr. “February, A. D. 1884.—To actual damages for removing a certain fence from around a certain growing crop in Frio County, Texas.. .$100 “To exemplary damages for the wrongful and malicious removal of the aforesaid fence.......................................... 100 “ To total amount of damages,…

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

<p>Appeal from Dallas. Tried below before Hon. Geo. N. Aldredge.</p> <p>The opinion states the case.</p>

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

Tried below before Hon. F. A. Williams. The statement of the case made by appellee’s attorneys is adopted substantially, as follows; The issue involved was whether appellee or appellants were rightful receivers of the International & Great Northern Railway.

<p>1. Promissory Note—Endorsements.—The payee of a promissory note who sues thereon in his own name, alleging himself to he the legal owner, is entitled to recover, being in possession of it, though he may have erased his own and subsequent endorsements made thereon.</p> <p>2. Practice.—The Supreme Court will not revise the action of a District Court in admitting or rejecting evidence unless such action be excepted to at the time.</p>

<p>Freight Contract for Cattle.—Cattle were shipped at Decatur, Alabama, for Fort-Worth, Texas, upon a contract made by the Louisville & Nashville Railway Company for itself and connecting lines. Among other stipulations was the following: “It is. further distinctly understood by the parties hereto that all liability of the said Louisville & Nashville Railway Company as carriers shall cease at New Orleans when ready to be delivered to the owner, consignee, or carrier whose line may constitute a part of the route to destination.” The cattle reached New Orleans in good condition. At New Orleans and at Houston they appear to have had hut little care, and in poor condition they passed into the control of the appellant at Rosenberg Station. They were conveyed to the destination with due care. Suit was brought against appellant, and judgment obtained. I-Ield:</p> <p>1. The Louisville & Nashville Railway Company had the right to limit by contract their liability, so that it should not as common carrier extend beyond their lines.</p> <p>2. A common carrier is under no obligation to contract beyond its lines. As its obligations beyond are by contract, the terms of contract may be determined by the parties.</p> <p>3. In the absence of limitations in the contract a railway company making a contract for through carriage would be liable for injury occurring at any point, upon any connecting line.</p> <p>4. In the absence of partnership or authority to make a joint contract binding upon all carriers over whose lines freight is to pass, connecting lines are but the agencies employed by the contracting carrier to perform its own contract.</p> <p>5. A contract made without authority might have been ratified by the connecting-lines, "but a ratification will not be presumed from the performance of some of the services contemplated by it when it is not at liberty to refuse to render the services.</p> <p>6. The laws of Texas prescribing the duties of connecting railways provide that * ‘ every such company shall for a reasonable compensation draw over their railroad, without delay, the passengers, merchandise, and cars of every other railway company which may enter and connect with their railroad.” In face of this legislation more would be required to fix the liability of the other railways than that a through shipment was made under the contract, that a price was fixed for the entire transportation, and that it was collected at the place of destination by the railway company delivering the cattle.</p> <p>7. The clause in the contract limiting the liability beyond its line repudiates the alleged partnership with the other connecting lines.</p> <p>8. See other facts held insufficient evidence of joint liability.</p> <p>9. The defendant was only liable for injury to the cattle while in its possession.</p>

<p>Appeal from Bains. Tried below before Hon. E. W. Terhune.</p> <p>The opinion states the case.</p>

<p>1. Venue in Trespass.—Where a trespass is the cause of action suit may be brought in the county where it was committed.</p> <p>2. Negligence—Charge.—It is error to charge as matter of law what facts constitute negligence.</p> <p>3. Vicious Animal.—In a suit for damages against the owner of a vicious horse, which at a fair kicked a colt, thereby causing its death, it would not affect the owner’s liability that the servant in charge of the horse had temporarily put the horse in control of another, and while in such control the injury was inflicted.</p>

Tried below before Hon. H. 0. Head. In Buzad v. Bank of Greenville, 67 Texas, 83, and in opinion in this-case will be found a sufficient statement of the matters discussed.

Tried below before Hon. John N. Henderson. H. D. Prendergast, on October 24, 1885, borrowed from appellee Mrs. A. H. Terrell $2000, for which he executed his note with interest at 12 per cent per annum from date, due twelve months after date.

<p>Appeal from Ellis. Tried below before Hon. Anson Rainey.</p> <p>The opinion states the case.</p>

<p>1. Charge of Court.—When evidence of title is necessary to a recovery of damages sued for, and it is clearly proved, its existence may be assumed in the phraseology of a charge which instructs the jury as to the law of damages in the particular case. When a fact is clearly established by evidence, a charge which is based on its existence is not a charge, in contemplation of the statute, on the weight of evidence. '</p> <p>3. Parties.—In a suit by heirs to recover damages for injury to land the defendant may, by proper plea, have the father, in whom is vested a life estate to one-third of the property, made a party. Failing in this, he may by instruction limit the recovery to the interest of the minors. If the plaintiff be the father of the minors, and he alleges ownership in them, he is estopped from afterwards recovering damages to his life estate, and a judgment for damages to the entire estate will not be disturbed.</p> <p>3. Damages.—The damage to city lots caused by the construction of a railway track along a street upon which they abut, is the difference in value of the lots immediately before the construction of the roadbed, and its value immediately after the construction, and its use made for passage of cars and engines. In ascertaining this, if the lots were before valuable for residence purposes the jury may estimate the depreciation in value caused by cuts and excavations, and the noises, bell ringing, whistle blowing, and smoke and cinders, incident to operating the road.</p>

<p>Justice of the Peace—New Trial.—No new trial can he granted by a justice of the peace after the expiration of ten days from the rendition of judgment in his court, or at a subsequent term of his court after order entered at the term when the judgment is rendered continuing the motion for rehearing.</p>

<p>1. Necessary Parties.—In a suit to cancel a deed, "brought by the vendor, a subsequent purchaser from the vendee is not a necessary though a proper party defendant.</p> <p>2. Pleading.—Though the plaintiff, in his special prayer for relief, may not ask •specifically for the relief to which under the pleadings and facts he may be entitled, yet under the prayer for general relief the court may submit to the jury the issues ■arising on the pleading and evidence. Thus in a suit "to cancel a deed which contains a prayer for general relief, if the defendant sets up title in himself under the deed on which issue is joined, the suit becomes practically an action of trespass to try title, and instructions and judgment applicable to the question of title are appropriate.</p> <p>3. Charge of Court.—It is not error for the court in its charge to the jury to use the words “if the evidence shows you,” instead of the language,if you believe from the evidence,” which is more commonly used.</p> <p>4. Deed—Mortgage.—A deed to the homestead, absolute in form, may be shown by parol to have been intended as a security for debt, conveying no title.</p>

<p>Appeal from Bock wall. Tried below before Hon. Anson Bainey.</p> <p>The opinion states the case.</p>

<p>1. Order of Survey.—A report of survey made under an order of survey is admissible in evidence only in actions of trespass to try title.</p> <p>2. Costs.—In a suit on note and to foreclose a lien on land, if a moneyed judgment with decree of foreclosure be entered for plaintiff it carries all costs against the defendant, including such as may have been incurred at his instance.</p> <p>3. Description—Pleading.—A deed, for a designated number of acres of land, “more or less,” is a conveyance of the land embraced in the description, and not of a designated quantity. If a diminution in quantity results from a conflict in part between the land embraced in the calls and other land adversely held under superior title, and the purchaser seeks relief against his vendor, he must aver the facts in his pleading.</p>

<p>Trial by Jury—Jury Fee.—If a jury be demanded in the County Court in time, and a jury fee paid, the subsequent transfer of the cause to the District Court on account of the disqualification of the county judge entitles the party who has thus demanded and paid the jury fee to trial by jury in the District Court.</p>

<p>Appeal from Bexar. Tried below before Hon. C. H. Noonan.</p> <p>^he opinion states the case.</p>

<p>1. Receiver May be Sued. — Exceptions were properly overruled questioning "the right of the State court to entertain jurisdiction in a suit against a receiver of a railway company appointed and acting on order made by the United States court.</p> <p>2. Evidence—Res Gestae.-—In a suit for value of mules killed in a railway collision it was competent for the plaintiff to show how the mules were killed, and that they were killed in a collision of the car in which they were with a passenger train, and that the engineer was drunk.</p> <p>3. Testimony to Value—Opinion.—From necessity, opinions as to value are received in evidence; but in all cases, before the reception of such evidence, it should be made to appear that the witness is in possession of such information as will enable him to form an intelligent opinion.</p> <p>4. Same.-—See facts where witness was not in possession of facts upon which he could give opinion as to value. .</p> <p>8. Agreement as to Value.—An agreement exacted by a railway company of a shipper, fixing a maximum of value for stock shipped, is against public policy if such agreement provides that in event of loss the shipper shall not recover the value of his property so lost by the negligence of the carrier.</p> <p>6. Same.—An agreement as to the value of the thing shipped, made with a view to avoid controversy as to the actual value if it be lost in the hands of the carrier, it seems should be sustained.</p> <p>7. Authority of Agent.—An agent of the owner of stock shipped would not, by virtue of such agency, be authorized to contract with the carrier fixing the value of the stock. See facts not showing power of agent.</p> <p>8. Agreements as to Value of Freight.—The owner is not under obligation co make such agreement, nor is it necessary in order that the carrier may obtain reasonable freight for carrying the property.</p> <p>9. Liability of Common Carrier.—The carrier’s release from liability for loss of goods is determined by the common law; the facts not existing, a contract will not supply their absence. As to the compensation for loss, the carrier is bound to pay the full value of the property so lost; a contract otherwise would be against public policy.</p> <p>10. Value as Basis for Freight Charges.—That the value of a thing to be carried may be properly taken into consideration by the carrier in fixing compensation to be paid is true; but when the carrier knows what the thing to be carried is, and from its nature what degree of care will be necessary to carry it safely, it seems that to permit the carrier to grade his care by his compensation contravenes the rule that ■denies the right of such public agent to contract against full liability for loss resulting from a failure to use at least ordinary care.</p> <p>11. Carrier’s Duty.—We understand the rule to "be universal, except where some law exists which permits a common carrier to relieve himself by contract from liability resulting from his own negligence, that the carrier must, even where a valid contract limiting his liability exists, exercise such care as prudent persons would ordinarily use for the safety of the thing shipped.</p> <p>12. Contract Between Shipper and Carrier.—The common carrier is entitled to an opportunity to fix compensation in view of the labor to be performed and the risk to be incurred in a given case, which must depend to some extent on the value of the freight and its qualities; but when this opportunity has been given, and the carrier receives the freight, any contract which relieves from liability for its full -value if lost through the carrier’s negligence is obnoxious to the objection that it is an attempt to relieve itself from its own negligence or that of its employes.</p>

Tried below before Hon. R. E. Beckham. This is a second appeal. The first is reported in 67 Texas, 190. The opinion and the report give a sufficient statement.

<p>Appeal from Navarro. Tried below before Hon. Rufus Hardy.</p> <p>The opinion states the case.</p>

<p>Argument of Counsel.—Where on the trial two issues are presented, upon either of which the verdict could have been rendered, upon one of which there was a preponderance in testimony against the verdict, and the counsel of the successful party in argument to the jury used abusive language not warranted by the testimony, and calculated to excite prejudice and' influence hostile feelings against his adversary, such line of argument is considered ground for reversal.</p>

<p>1. Life Insurance—Public Policy.—It is against public jjolicy to allow any one not owning- an insurable interest (that is, one not related, by blood or otherwise, nor a creditor of the insured), to become the owner, by assignment or otherwise, of insurance upon the life of a human being.</p> <p>2. Creditor of Insured—Purchaser, etc.—A creditor of the assured may lawfully become the owner of such insurance to an extent requisite to protect him against ultimate loss of his demand. A purchaser or assignee of it will be recognized as having an interest in it sufficient to repay him the purchase money invested in it, including advancements in nature of dues, assessments, and premiums to preserve and keep the-insurance in force, with lawful interest.</p> <p>3. Beneficiary—Heirs, etc.—•'Where the policy is made payable to one not entitled to hold it, as if to a purchaser, he will be considered a mere trustee—the heirs, in-absence of other disposition, to take it or the residue.</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. B. J. Boykin, Special District Judge.</p> <p>The opinion states the case.</p>

<p>1, Evidence.—A defendant in trespass to try title who has a regular chain of title from the sovereignty of the soil, though he may also claim under a common source from which alone the plaintiff shows title, will recover if a deed to such common source constites no link in such chain from the State. If a link in such regular chain consists of a deed from one to whom no conveyance had been made, but to whose wife the title had been conveyed during her marriage, and the wife having died before the execution of the husband’s deed, the title to an undivided half interest passed by the deed from the husband, and this so connected the defendant with the title as to enable him to plead it as outstanding.</p> <p>2. Community Property—Presumption.—It will be presumed that land conveyed to the wife during marriage is community property.</p>

<p>1. Insurance—Warranty by Insured.—A warranty by the insured in an application upon which an insurance policy is issued must be strictly complied with.</p> <p>2. Same—Distinction.—While the doctrine of warranty will be strictly applied, it should be as strictly limited to the precise undertaking of the party making it.</p> <p>3. Same.—Endorsed upon the application and above the signature of the applicant was the printed paragraph: "It is hereby agreed that all the foregoing statements and answers, as well as those made or to be made to the society’s medical examiner, are warranted to be true, and are offered to the society as a consideration of the contract.” Held, that this warranty did not warrant, in addition to the truth of the answers made to the medical examiner, that the examiner should correctly reduce his answers to writing and report them as made.</p> <p>4. Same.—Where in replication to an answer pleading the warranty and its breach, in that true answers were not made as shown in the medical examination as reported, the plaintiff alleged and there was testimony supporting that the insured had made true answers in respect to the specified matters, but that the medical examiner had not correctly reduced them, to writing, the applicant not having signed the examination. Held, that it was proper to refuse a charge assuming that the applicant had had his answers put down in writing by the medical examiner.</p> <p>5. Charge.—Where the pleadings contested the truth of specific representations, it was proper to refuse a charge asked by the defendant, to find for the defendant if the representations, etc., were in any respect untrue. The charge should apply only to such questions as were put in issue.</p> <p>6. Care on Part of Insured—Medical Examination.—In absence of anything putting him on inquiry the assured was not bound to assume the exercise of supervisory power over the work of the medical examiner in reducing the examination to writing. If, however, the insured by any means had knowledge that his answers were not being- correctly taken, it did become his duty to correct them. Failing to do so he would be estopped to deny them.</p> <p>7. Application for Insurance.—In the application the insured denied ever negotiating for insurance with any other company. It was shown that while the application was being written it was made known by the insured that he had ai>plied to the “Legion of Honor.” That the agent of the insurance company suggested that mutual benefit companies were not contemplated by the inquiry upon which the answer w-as given, the agent knowing of the negotiations with the “Legion of Honor.” Held, that by these facts there was no misrepresentation to the company.</p> <p>8. Insurable Interest.—A person not having an insurable interest in the life of another can not take and hold by an assignment a policy upon the life of such other person, and a creditor can only take and hold such a policy by assignment to an extent sufficient to secure his debt.</p> <p>9. Same—Designation of Beneficiary.—So far as public policy is concerned, the rights of one designated in the policy as the beneficiary, and who has no insurable interest, would not difíer from those of an assignee in like condition.</p> <p>10. " Policy Held by One Hot Having Insurable Interest.—A policy is not void when held by or in name of one not having an insurable interest. The policy is collectable, the proceeds to he for use of those having legal right thereto.</p> <p>11. Insurable Interest—Brother and Sister.—It seems that a brother may take the benefit of a policy taken in his name by the insured party.</p> <p>12. Same—Creditor,'—A creditor would be allowed to provide for a sum sufficient when collected to cover his demand, and such disbursements as may be required to keep the policy in force, with accrued interest. This would limit Ms recovery.</p>

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

Tried below before Hon. John C. Townes: The opinion states the case. The Attorney-General filed a motion to dismiss the appeal, as follows (filed April 3, 1889): “'How comes the State of Texas by attorney and moves the court to dismiss this case, which is by quo warranto, for the following reasons, to-wit: “1.

<p>1. Practice in Supreme Court.—It devolves upon appellant to call the attention of this court to the rulings of the court below of which he complains. The rules plainly point out the manner in which he shall do this.</p> <p>2. Not Guilty in Trespass to Try Title.—.Under the plea of not guilty in trespass to try title the statute of frauds may be invoked as a defense when applicable, as under the plea any defense can be made save that of limitation. Rev. Stats., art. 4793.</p> <p>3. Newly Discovered Evidence—New Trial.—Upon a motion for new trial upon ground of newly discovered evidence, it must be shown that there was no want of diligence in not producing it upon the trial, and that it is material. See facts wanting in both.</p>

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

<p>Attorney Fees—Damages on Dissolution of Injunction.— Attorney fees for -obtaining the dissolution of an injunction can not be recovered by suit on the injunction bond.</p>

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

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

Tried below before Hon. A. J. Booty. In 1835 a grant was made of a league of land to John Piburn, and on. August 7, 1835, final title issued. The land was located in Nacogdoches County, now Rusk. On September 5, 1835, Piburn.conveyed the east half of the league to Wm. Q-. Logan and John K. Allen. Shortly after this Wm. G-. Logan died, and left surviving him as his nearest relatives five sisters and one brother. On November 21, 1839, Tlios.

<p>Injunction—Costs.—One who seeks to enjoin the collection of a judgment, even for causes which, would entitle Mm to relief from paying a part of the amount adjudged against him, must, in order to entitle himself to the writ, pay off or tender payment of so much of the judgment as under the averments of the petition equity can not relieve against. For facts see opinion.</p>

Tried below before Hon. Anson Rainey. This is an action of trespass to try title, brought by Jas. H. Starr and Hattie J. Pope as plaintiffs, on the twelfth day of March, 1884, against H. J. Snow as defendant, to recover two tracts of land of 160 acres each, the same being part of the W. P. King section Ho. 1, for 640 acres. The land sued for is specifically described by metes and bounds in plaintiffs’ petition.

Tried below before Hon. H. Teichmneller. ' This is a quo warranto case on the relation of Wren to try the right to the office of sheriff of Hays County for the term of two years from the general election in November, 1888. Wren was the sheriff incumbent, and a candidate for re-election, J. S. Davis being his opponent. There was a relation by Wren, and thereon was founded an information in the nature of quo warranto, the court having granted leave to file it.

<p>1. Sale of Railway.—The conveyance made by the East Line & Red River Rah-way Company to the Missouri, Kansas & Texas Railway Company, on November 28, 1881, of all its property and corporate franchises of every character whatever necessary to the conduct of the business for which it was created, except the mere franchise to be a corporation, until such time as by agreement of the parties this might be taken away by dissolution, was not authorized by law.</p> <p>S. Same.—To authorize such a sale, power to sell and the power of the purchaser to acquire title by the sale must both exist—following Railway v. Rushing, 69 Texas, 306.</p> <p>3. Same — Consolidation of Railways.—A charter power given to a railway corporation to join stocks or consolidate with any other railway company “running in the same general directiononly empowers such consolidation with a railway having a road which might constitute a part of the line between the points designated in the charter for the road which it was authorized to build.</p> <p>4. Same.—The charter power conferred on a railway company to rent, sell, lease, or consolidate with another railway company can not exist in the absence of some law authorizing it, and can not he implied from a prohibition extending only to parallel or competing lines.</p> <p>5. Competing Lines of Railway.—Railway companies, by reason of their relations with or control or management of other lines than their own, may become within -the meaning of the law competing lines, though the- railways owned hy them may not in fact connect.</p> <p>6. Sale of Railway. — The East Line <& Bed River Railway Company had no power, hy virtue of any law in force, or under its charter, to sell its road or any franchise conferred by its charter to the Missouri, Kansas & Texas Railway Company, and the latter had no power to buy.</p> <p>7. Evidence—Pleading.—In a suit by quo warranto to forfeit the charter of a railway company which was chartered by the State before the adoption of the present Constitution, when the answer admits that the corporation is “subject to the Constitution and general laws now in force,” it is unnecessary for the State to prove that the railway company had taken the benefit of legislation subsequent to the adoption of the ■Constitution, and thus became subject to all its provisions.</p> <p>8. Railways—Constitution Construed.-—The sale by the East Line & Red River Railway Company to the Missouri, Kansas & Texas Railway Company, made on the 28th November, 1881, the latter being a corporation chartered and organized under the laws of Kansas and Missouri, was in clear violation of section 6, article 10, of the Constitution of Texas.</p> <p>9. Forfeiting Franchise.—While the courts of Texas have no power to forfeit the franchise of a railway company granted in another State whose line of railway has been extended into Texas, they can withdraw the franchise granted in Texas whenever -a violation of the laws of Texas justify it, and can by injunction prohibit it from carrying on business in Texas in violation of Texas laws. They may also place the property of such corporation situate in Texas in the hands of a receiver, to adjust the claims of creditors.</p> <p>10. Waiver of Right of Forfeiture—Statute Construed.—Nothing contained in the Act of March 28, 1885, evidences the intention of the Legislature to waive the forfeiture of the charter of a railway corporation, chartered by Texas, which has misused its franchise or failed to carry out the purposes for which it was created.</p> <p>11. Forfeiture of Franchise.—When a railway company violates the Constitution -of the State by making a transfer and sale of its property and franchises in a manner forbidden by that instrument, and afterwards willfully persists for a long period in a nonuser of its franchises, a cause for foi feiture of its franchises exists, and nothing contained in the statute indicates an intention of the State to waive its right to forfeiture under such circumstances.</p> <p>12. Same—Parties.—In a proceeding on the part of the State to forfeit the charter of a railway company on account of a sale of its corporate franchises, rights, and privileges to a railway company chartered by another State, the purchasing company is not a necessary party.</p> <p>13. Receivers.—Nothing contained in the Act of July 9, 1879; the Act of 1887, p. 120, section 8; the Act of 1885, p. 66, section 4; or Revised Statutes, article 606, relating to the appointment of receivers, is in violation of the rights of any person or corporation.</p>

<p>1. Investment by Guardian.—The same notice of an intended application by a guardian to invest the money of his ward in land must be given that is required in an application to sell the ward’s land. Unless the contract of purchase is approved at a. regular term of court the investment of the ward’s money is without authority of law, and its repayment by sale of the land may he enforced at the suit of the ward as against parties with notice.</p> <p>3. Same.—If the guardian, without the approval of the court in which the guardianship is pending, invests the ward’s money in land, taking deed to himself and the ward jointly, and giving note writh express lien for deferred payments, the lien of a purchaser of the lien notes with notice is subordinate to the superior right of the ward to reimbursement of his money wrongfully invested in the land.</p> <p>3. Same—Notice.—The recitation in the notes that they were given for the purchase money of the land, and the signature of the guardian thereto, as such, were, sufficient to put the assignee of the notes on inquiry, and charge him with notice.</p>

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

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

<p>1. Self-Serving Declarations.—Declarations of a remote vendor of land not in possession of it, asserting ownership in it and in the land certificate, are not competent evidence to support title in the party making the declarations.</p> <p>2. Bankruptcy Proceedings.—After bankruptcy proceedings were closed property of the bankrupt not disposed of by the assignee reverted to the bankrupt. The title which vested in the assignee in bankruptcy can not be used as an outstanding title to defeat the recovery of land so undisposed of when claimed by the heirs of the bankrupt.</p> <p>3. Fact Case.—See facts held insufficient to prove a sale of land.</p>

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

<p>Collateral Attack of Judgment injustice Court.—In a suit in a Justice Court against two parties who had been partners, judgment was rendered against the defendants individually, the judgment reciting that the defendants were duly served, and that they appeared in person and by attorney and announced ready for trial. An execution issued under the judgment, under which a city lot, the individual property of one of the defendants, was sold. In suit against the purchasers for the lot, brought by the defendant in the Justice Court judgment who had owned the lot, held:</p> <p>1. All reasonable presumptions should he indulged in support of the judgment.</p> <p>3. The recital showing affirmatively personal service on and appearance by the defendants, the papers in the case being lost, it was incompetent to prove the want of service, and to contradict the recital of appearance in the Justice Court.</p> <p>3. The recitals showed a valid judgment, and the execution sale passed the title.</p>

<p>Appeal from Hunt. Tried below before Hon. E. W. Terhune.</p> <p>The opinion states the case.</p>

<p>Appeal from Ellis. Tried below before the Hon. Anson Rainey.</p> <p>The opinion states the case.</p>

<p>Appeal from Tarrant. Tried below before Hon. E. E. Beckham.</p> <p>Ho further statement is necessary to understand the opinion than that included in it.</p>

<p>1, Warrantors May be Made Defendants in Trespass to Try Title.—Article 4788, Revised Statutes, authorizes the defendant in actions of trespass to try title to make his warrantor a party to the suit, and the practice of doing so seems to have been recognized by this court as proper.</p> <p>3. Same—Practice.—But such warrantors should not be brought in at such a time or in such a manner as unreasonably to delay the trial of the case.</p> <p>3. Charge—Location of Land Certificate by Joint Owners.—Where part of a land certificate was located for the benefit of all of several joint owners of the certificate, one of the part owners can not, by locating the balance, acquire ownership in severalty of the land so located. In such state of facts it was error to charge that a part owner of a land certificate could locate his share therein for his own.</p> <p>4. Charge—Practice.—A charge defective in form but indicating a material issue, when requested, operates as a request to the court to charge upon the issue.</p>

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

<p>1. Declarations.—What a witness thought and said at a time prior to the trial in regard to a material fact can not be detailed by him on the trial in response to a leading question unless his answer be sought for the purpose of impeaching his testimony; if that be the object, his attention must be first called to the time, place, and circumstances under which the declarations were made. If such testimony he admitted, and be of a character likely to have influenced the verdict, it will constitute cause for reversal.</p> <p>2. Experts.—Every employment which has a particular class devoted to its pursuit is an art or trade, and a person instructed therein by study or experience may, as to a matter peculiar to such employment, give his opinions as an expert when testifying as a witness. One who has had long experience as a railroad brakeman, who has in person investigated the physical facts connected with the derailment of a car, may give his opinion as to its cause.</p> <p>3. Same.—An expert may be asked his opinion regarding facts affecting a matter peculiar to his art or employment when the facts are undisputed, but he can not he asked his opinion as to the evidence in the case as rendered. . Such a practice would usurp the province of the jury, who must weigh credibility.</p> <p>4. Evidence.—The question at issue in a suit for damages resulting from the derailment of a railway car being negligence ml non, a witness who helped to construct the road, and who was engaged as brakeman when the accident happened, may state facts within his knowledge showing the defective construction of the road when the . derailment occurred, though the pleadings may not have charged specifically that the road was wanting in permanence of construction when huilt.</p> <p>5. Same.—Though evidence he improperly admitted, if of a character not calculated to influence the verdict, its admission will afford no ground for reversal.</p>

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

Tried below before Hon. J. Y. Hogsett, Special District Judge. This suit was filed against defendant, a citizen of Taylor County, upon a promissory note given by him to plaintiff for the sum of five thousand dollars, interest and attorney fees, and to foreclose an alleged deed of trust given to secure the same, a copy of which deed was attached to plaintiff’s petition.

<p>Appeal from .Hunt. Tried below before Hon. E. W. Terhune.</p> <p>The opinion states the case.</p>

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

<p>Appeal from Ellis. Tried below before Hon. Anson Rainey.</p> <p>The opinion states the case.</p>

Error from Tarrant. Tried below before Hon. R. E. Beckham. Held: and for judgment by default against Watson for the amount before recovered against B. P. Hatcher, such judgment was rendered in favor of Orr & Lindsey for $786.35, interest, and costs. B. Q-.

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

Tried below before Hon. R. J. Boykin, Special District Judge.

<p>1. Extension of Contract for Sale of Land by Parol.-—The time for the performance of a contract for the sale of land may be extended by a verbal agreement.</p> <p>2. Statute of Erau&s.—Where a valid contract for the sale of land was made and the time of performance had been extended, but negotiations and work under the contract had been abandoned, and a new contract agreed upon different in material parts from the first, and relating to a part of the subject matter of the first, the new contract having been reduced to writing and its terms agreed upon, but the vendor refused to sign it; held:</p> <p>1. That such new contract was in no wise an extension of the first.</p> <p>2. That it was invalid under the statute of frauds.</p> <p>3. That labor and money expended under the new contract could not be considered as expended in part performance of the original contract.</p> <p>4. In an action between the parties for specific performance, the negotiations and acts under the original contract are irrelevant to the controversy, as dependent upon the new and final parol contract.</p> <p>5. A charge submitting as a basis for specific performance acts and declarations prior to the second agreement was improper.</p> <p>3. Community Property.—Where the pleadings and the testimony treat and show the land to be community property, the court properly charged the jury to so consider it.</p> <p>4. Irrelevant Issues.— That another corporation was engaged upon adjoining-lands in operations affecting the value of the property in litigation can have nothing to do with the question of the rights between the parties to it, although parties litigating are stockholders in such corporation.</p>

<p>1. Collision at Crossing of Railroads.—A passenger on the Southern Pacific Railway was injured in a collision with a car upon the track of the Gulf, Colorado & Santa Fe Railway Company, alleged to have been negligently left so as .to occasion the collision. The passenger sued both companies. The Southern Pacific Railway Company alleged that the injury was caused alone by the negligence of the other railway company, and asked judgment over against it in case the plaintiff should recover. Meld, that it was within the power of the court to allow such relief.</p> <p>2. Verdict Must be Intelligible.—A verdict, “We the jury find for the plaintiff against the G. C. & S. F. Rwy. Co., find for Southern Pacific Company, damages to the amount of (§4000) four thousand dollars,” is not sufficiently certain to support a judgment for plaintiff against the appellant (the Gulf, Colorado & Sarita Fe Railway Company).</p>

<p>Appeal from Washington. Tried below before Hon. C. C. Garrett.</p> <p>The opinion states the case.</p>

<p>1. Damages for Attaching Property.—In reconvention by a defendant in attacliment for damages for the wrongful seizure of his property in .attachment, the plaintiffs debt being admitted, held, if the ground alleged as basis for attachment in fact existed, that defendant was not entitled to either actual or exemplary damages.</p> <p>2. Grounds for Attachment.—That a merchant, the defendant in attachment, had executed a mortgage upon his goods, notes, and accounts to secure a creditor, with stipulation that the mortgagee should take possession of the property and should dispose of it “in a regular course of mercantile sales at customary prices,” the defendant being indebted to others and to extent of his assets, was ground for attachment, and supported the affidavit that the defendant had disposed of his property in part with intent to defraud his creditors.</p> <p>3. Fraud by Insolvent Debtor—Mortgage.—A creditor may take a mortgage upon his debtor’s property to secure his debt, even though the debtor be in failing circumstances; but if at the same time he advances his debtor a sum of money and leaves it subject to the latter’s control, and attempts to secure its repayment in the same transaction, the transaction it seems would be fraudulent, in that it places the money advanced beyond the reach of the creditors.</p> <p>4. Fraudulent Mortgage.—The effect of a provision that the mortgagee should sell the goods in due course of trade and at customary prices is to hinder and delay other creditors.</p> <p>5. Briefs—Rules for Supreme Court.—Disregard of the rules of the Supreme 'Court in the preparation of briefs criticised.</p>

<p>Appeal from Washington. Tried below before Hon. 0. C. Garrett.</p> <p>The opinion states the case.</p>

<p>Appeal from De Witt. Tried below before Hon. H. Olay Pleasants.</p> <p>The opinion states the case.</p>

Tried below before Hon. I. B. McFarland. This suit was instituted February 3, 1885.

<p>Error from Webb. Tried below before Hon. J. 0. Russell.</p> <p>The opinion states the case.</p>

<p>Appeal from Victoria. Tried below before Hon. H. Clay Pleasants.</p> <p>The opinion states the case.</p>

<p>Error from. Duval. Tried below before Hon. J. C. Russell.</p> <p>The opinion states the case.</p>

<p>1. Comments by Trial Judge Upon the Testimony.—Remarks upon the testimony made by the trial judge during the examination of a witness should be excepted to at the time, so as to give opportunity to the court to correct or remedy the injury done.</p> <p>2. Same—Charge.—Where remarles upon the testimony were made by the court in presence of the jury, and in the charge the jury were told “that they were the judges of the weight to be attached to the testimony, and that it was not the province of the court to pass on that question, or to express an opinion as to the value of the testimony admitted,” such remarks,‘though improper, do not afford ground for reversal.</p>

<p>1. Pleading.—A petition in an action on a contract that sets out the contract, a performance of its terms by the plaintiff, and a breach by defendant, is sufficient.</p> <p>2. Contract.—The owner of a pasture who receives cattle therein for a stipulated time, at a sum agreed on, is not liable for loss resulting from poor pasturage or want of water, when the owner of the cattle has reserved the right as a part of the contract to remove the cattle whenever they might be liable to loss from defective supply of either grass or water, and when the condition of the pasture at the time of the contract is known to both contracting parties.</p>

<p>1. Waiver.—No waiver of ownership of land, with its incidental rights, which has been wrongfully taken for right of way by a railway company, without payment or tender thereof, can be implied as against the rightful owner, from the mere fact that he elects to sue for the damage done instead of seeking a recovery of the land. In such a suit the judgment rendered in the plaintiff’s favor should be regarded as an assessment of the amount due him and a demand therefor until paid. It in no regard affects his title until the railway company by payment of the sum due acquires the legal right to use the land or the right of way.</p> <p>3. Cases Followed.—Railway v. Johnston, 59 Pennsylvania State, 290; Gilman v. Railway, 18 Wisconsin, 155; Hibbs v. Railway, 39 Iowa, 340; White v. Railway, 7 Heiskell (Tennessee), 518; Gallison v. Railway, 7 South Carolina, 17; and Provolet v. Railway, 57 Missouri, 256, followed.</p> <p>3. Same—Condemnation—Constitution Construed.—When a law requires that payment shall be made for land taken for public use before the right to such use can be acquired, the paramount title remains with the owner until the money is paid, unless its payment be waived, and an effort to enforce payment is not a waiver.</p> <p>4. Same.—A judgment against a railway company for damages claimed by the plaintiff for appropriating his land for road bed without paying therefor, which judgment is not satisfied, neither affects the plaintiff’s title to the land so taken nor con-eludes him in Ms right to demand compensation from another railway company which, succeeded to the rights of the original trespasser and continues to use the land. The-purchasing company bought the road bed cum onrn'e, and can not be an innocent purchaser of that portion of the road wrongfully built without payment to the land owner.</p>

<p>Appeal from Washington. Tried below before Hon. I. B. McFarland.</p> <p>The opinion states the case.</p>

<p>1. Injunction Restraining Execution Sale.—A sale of land under execution ■will not be enjoined at the instance of one not a party to the execution on the sole ground that the third party claims to own the property. It must be further shown that his right will be injuriously affected, or that some irreparable injury will follow if the sale be made.</p> <p>2. Same—Case in Judgment.—Complainant alleged his purchase of the land, a part of the rural homestead of defendant in execution, March -11, 1889. The execution was levied April 10, 1889, on the land, no prior lien being alleged. Held, in application for injunction that there was no necessity shown for a resort to a court of equity for protection.</p> <p>3. Same—Clouding Title.—Injunction will be granted to prevent a cloud being cast upon the title where the evidence on which the right depends is not of record or shown in the papers through which the right depends.</p> <p>4. Practice in Injunction Suits.—Where exceptions to the petition are sustained and no amendment is made or proposed, it is proper to dismiss the petition for injunction. A trial upon merits would be useless.</p>

<p>1. Trespass to Try Title—Immaterial Questions.—Plaintiffs in trespass to try title claimed: title under the statutes of limitation of five and ten years. Failing in this suit, on appeal, held, that questions upon the admissibility of testimony introduced by the defendants in deraigning title from the State were immaterial, because if plaintiff’s title by limitation is established the testimony was of no effect, and if not, then they could not recover.</p> <p>2. Conflict in Evidence.—Where the findings of the court upon issues of fact are found upon conflicting testimony, this court will not reverse from mere preponderance of testimony in the record against the finding by the trial court.</p> <p>3. Time of Holding District Court.—By statute (Gen. Laws 21st Leg., p. 155) changing the time of holding courts in the district including Goliad County, enacted April 2, 1889, the time for holding the court in that county being April 22, was changed to the second Monday in April; the act taking effect from its passage. Court began April 22, and adjourned May 8. Held, that the court was legal.</p> <p>4. Case Adhered To.—Ex Parte Murphy, 27 Texas Court of Appeals, 492, adhered to.</p>

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

<p>Unmarried Man May Mortgage His Homestead.—An unmarried man, although he may have a family, may mortgage his homestead, and a sale under such mortgage will pass the title.</p>

<p>Appeal from Washington. Tried below before Hon. C. 0. Garrett.</p> <p>The opinion states the case.</p>

<p>1. Misjoinder of Plaintiffs—Torts.—Suit was brought by Meddlegge against the Mexican National Construction Company for damages caused by defendant making-excavations which became a nuisance upon its lands lying between the land of plaintiff and the gulf. The removal of the sand also exposed the premises to floods from the-gulf when tides were high. Suit was filed May 17,1886. September 12, 1888, plaintiff by supplemental petition alleged that on February 29, 1888, defendant sold the railway of the defendant to the Galveston & Western Railway Company, and that the two made some kind of arrangement together for the use of the land upon which the alleged nuisance was made, and that subsequent to the purchase the two companies had continued the nuisance; making the Galveston & Western Railway Company a party defendant. Exceptions were urged to the supplemental petition on ground of misjoinder. On final trial plaintiff recovered $1000 damages against the original defendant, and $500 damages against the Galveston & Western Railway Company. Held, the exceptions were well taken for misjoinder of parties and of causes of action.</p> <p>S. Same.—The allegation that the Galveston & Western Railway Company had ratified the acts of its vendor did not make it liable upon the original suit.</p> <p>3. Incidents of Land Ownership.—The general rule is that liability does not arise from the mere exercise of a legal right, though hurt may result from it, if this could not have been avoided except by abandoning the right; from which it seems questionable whether plaintiff would have any right of action for damages for increased danger from the gulf by reason of the removal of a sand bank upon lands of the defendant, whereby such danger was increased.</p>

<p>1. Homestead—Divorced Husband.—Whether a divorced husband is a head of a family does not depend upon the actual and constant presence of his children at his house. Where, after a divorce, no disposition having been made of the children by the court, the children reside temporarily with their mother, the father does not renounce his character as head of the family by an acquiescence in such disposition of its members.</p> <p>2. Same—Case in Judgment.—The wife obtained a divorce. The homestead was divided between the divorced parties. The children remained with the mother, except a son fifteen or sixteen years old who worked about in the neighborhood, who sometimes visited his father, but did not live with him. No disposition was made of the children in the decree for divorce. The execution for costs was levied upon the husband’s part of the divided homestead, upon which he resided. Held, that the land was exempt as homestead.</p> <p>3. Same.—Thequestion of who was in fault in the divorce suit is of no consequence; and it seems that a homestead should be exempt as well where the marriage relation was dissolved by divorce as by death.</p>

<p>Appeal from Washington. Tried below before Hon. C. C. Garrett.</p> <p>The opinion states the case.</p>

<p>Appeal from Fayette. ' Tried below before Hon. H. Teichmueller.</p> <p>The opinion states the case.</p>

<p>Appeal from Nueces. Tried below before Hon. J. B. Wells, Special District Judge.</p> <p>The opinion contains a statement.</p>

Tried below before Hon. John Alexander, Special District Judge. This is an appeal from a judgment in favor of appellee Breedlove for a town lot in the city of Brenham against appellant, who claimed the lot as her homestead. The conclusions of fact and of law found by the trial judge are as follows: “Sam Love and his wife Angelina Love, the defendant in this case,, owned a lot, which they occupied as a homestead, in the city of Brenham.

Tried below before Hon. 0. 0. Garrett. In the appeal the issue is presented whether appellant established his heirship to his father, Moses Livingston. The suit was against children of same father by another woman, claimed by defendants to have been the wife of said Moses. The parties are all colored, and had been slaves. The findings of facts and of law by the court are as follows: “ 1.

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

<p>1. Appeal Bond— Surety for Costs may sign Appeal Bond.—A surety for costs in a Justice Court, in event Ms principal be cast in the suit, may become surety on appeal from the judgment.</p> <p>2. Case Adhered to.—Trammell v. Trammell, 15 Texas, 291, adhered to.</p>

<p>Tees of District Clerk.—While an appeal was pending in this court the record in the case was destroyed by fire, so that another transcript became necessary to the prosecution of the appeal. The case was reversed. Held, that as part of the costs of appeal the clerk’s fee for making the second transcript was properly included.</p>

Tried below before Hon. Wm. H. Burkhart. This is an appeal from a judgment in the District Court for $6000 in favor of appellee for damages against appellant for negligently causing the death of her minor son. The facts are sufficiently stated in the opinion.

<p>Appeal from Freestone. Tried below before Hon. Bufus Hardy.</p> <p>The opinion states the case.</p>

<p>1. Proceeds of "Voluntary Sale of Homestead.—The proceeds of a voluntary-sale of a homestead deposited in hank are not exempt from garnishment.</p> <p>3. Cases Adhered to.—Mann v. Kelsey, 71 Texas, 609; Whittenherg v. Floyd, 49 Texas, 633, adhered to.</p>

<p>Appeal from Calhoun. Tried below before Hon. H. Clay Pleasants.</p> <p>The opinion states the case.</p>

<p>Vendor and Vendee—Removing Cloud from Title.—Twenty-eight years after a deed was made which retained an express lien for unpaid purchase money, the vendor, unable to learn the residence of the purchaser, or whether he was living, the notes being still unpaid, brought suit to remove cloud from title. The evidence showed that the notes were never paid. Held, that the plaintiff, being in possession, was entitled to a judgment canceling the deed and removing the cloud cast by it on his title.</p>

Error from Jefferson. Tried below before Hon. J. F. Lanier, Special District Judge. This is a writ of error prosecuted from a judgment in favor of appellee in a suit by the plaintiff for damages from the negligent and improper construction of the railway of appellee, whereby plaintiff's lands were injured and stock drowned and starved from effects of water thrown back and dammed up on the lands of plaintiff.