Volume 76 — Texas Reports

. Tried below before Hon. L. B. Hightower. September 3, 1887, the appellant, James H. Robertson, who was the plaintiff in the court below, filed his original petition in an action of trespass to try title against the apppellee, A. H. Du Bose, who was the defendant below, in the District Court of Angelina County, Texas. The appellee, A. H. Du Bose, answered by a general demurrer and a plea of not guilty.

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

<p>1. Railway Receivership.—It is not true that a receiver empowered to take possession of, control, and operate a railway, is in no sense the representative of the corporation that owns it; nor is it true that a court appointing a receiver is under no obligation to continue in forcé and in some cases to cause to be fulfilled the personal contracts of the company, though they may have been improvidently made.</p> <p>2. Same—Obligation, of Oontracts.—The continuance of the obligation of contracts of a railway corporation is not dependent on the will or act of a court, nor can a court in any proper case refuse to execute them.</p> <p>3. Same — Case in Judgment.—The railway company constructing its road through a tract of land contracted with its owner for the right of way, and for water supply to be furnished from an elevated spring through pipes to a tank at the side of the track, the water service to be paid for. Held, that as the compensation for the latter embraced the consideration for the right of way, the obligation to pay must be considered as binding for so long as the right of way is used under the contract.,</p> <p>4. Suits Against Receiver.—A creditor holding the specific right to be paid out of the earnings of a railway, or having a lien on the property in the hands of a receiver in control of such road, may proceed by suit against the receiver.</p> <p>5. Same—Case in Judgment.—Under the contract involved in this case, inasmuch as the account accrued under the provisions therein for the payment for the right of way and for water supply in running trains, the creditor would be entitled to payment from the earnings of the road as current expenses, if not from the corpus of the property, even if no lien existed to secure it.</p> <p>6. Same.—The railway company or receiver, repudiating the contract for the payment for the monthly water service, would be liable for the purchase money for the right of way, as well as for compensation for work and material furnished to convey the water to the tank.</p> <p>?. Vendor’s Lien for Right of Way.—It seems that a lien equivalent to the vendor’s lien exists to secure the purchase money for the right of way when not paid.</p> <p>8. Same—Statutory Remedy.—By General Laws of 1887, page 131, “all judgments, claims, or causes of action, when determined, existing against any corporation at the time of the appointment of a receiver, shall be paid out of the earnings of such corporation while in the hands of the receiver, to the exclusion of mortgage actions; and the same shall be a lien on such earnings.” This includes such claims as the one here in'controversy.</p> <p>9. Judgment Against Receiver.—The judgment below was that plaintiff “recover of M. G. Howe, as receiver of the Houston East & West Texas Railway Company, the sum of §663. * * "x" It is further ordered, adjudged, and decreed by the court, that this judgment be certified to the District Court of Harris County, wherein the receivership is pending, and that M. G. Howe, receiver, be required to pay this judgment in the course of law out of the earnings of the corporation while in the hands of the receiver, and as required to be paid by statute. * * * It is further ordered, adjudged, and decreed by the court, that in case the said receiver fails, neglects, and refuses to pay this judgment within a reasonable time, then that the fact of his refusal to pay the same be certified to this court for further action in this behalf, for such other orders as may then be deemed necessary. It is further ordered that no judgment be taken against the railway company as such, the receiver of said company as such being the only party against whom a judgment can be rendered in this behalf to enforce the obligations existing as in this case.” Held, these directions as to the manner of enforcing the judgment do not operate to the prejudice of other creditors.</p>

Tried below before Hon. Rufus Hardy. Suit was brought February 33, 1888, by appellee against B. H. Gardner, as administrator of the estate of L. D. Bradley, deceased, on two motes amounting to over $1000.

Error from Houston. Tried below before Hon. F. A; Williams. The findings of the court below involved in this appeal are as follows: “ 1. J. P. Edmiston and wife, owned a tract of land ascertained on survey to contain 87 acres, along the west side of which lay a strip belonging to plaintiff (Mrs. Collins). It was not definitely known when the negotiation hereinafter referred to took place how much this strip contained. It was found on a survey to contain 18 acres. “ 2.

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

<p>1. Sureties may Buy of their Principal for Self-Protection.—Sureties may assume the debt of their principal and take property at reasonable price for the debt so assumed, and the transaction is valid, whether the principal be solvent or insolvent.</p> <p>2. Purchase of Encumbered Lands.-—Those who purchase for a fair price lands that were already covered by lien to the full value, with agreement to pay the debt secured by the lien, could not by such purchase practice a fraud upon any person.</p> <p>3. Parol Agreement for Application of Purchase Money. — A creditor in failing circumstances conveyed lands upon full consideration, the purchaser by parol stipulating that the purchase money should go to the payment of the vendor’s debts. In pursuance of the parol agreement the purchaser executes promissory notes to the vendor; the vendor executes a deed to vendee for the land, the deed reciting the promissory notes given for consideration; the vendor of the land and payee in the note endorses the note to the creditor. Held, that parol evidence was competent to show the purpose of the parties to the sale, and that such testimony in no way contradicted the written part of the transaction, viz., the deed and note.</p> <p>4. Case Discussed.—This case distinguished from Elser v. Gfraber, 69 Texas, 225. If the promissory note taken by a failing debtor for property be taken to be applied to his debts, and the purchaser provides for such application, and it is so applied, such sale is valid. .</p> <p>5. Fraudulent Preference.—On the issue of fraud charged to avoid a sale by a failing debtor to a creditor, it is competent to prove that the debtor offered the complaining creditor property at the price for which it was afterwards sold to another creditor.</p> <p>6. Principal and Surety.—Several parties borrow a sum of money; by agreement they share it among themselves, but execute their note to the lender for the gross sum. Held, that as between the parties making the loan each was principal for the amount he received and surety as to the balance, and that one thus a surety could assume the debt of one or more for whom he was surety, and to protect himself take property from such principal.</p> <p>7. Same.—Such conveyance to the surety would be valid although the creditor whose debt was thereby assumed did not release the principal from personal liability.</p> <p>8. Practice in Supreme Court.—An appellee not having given notice of appeal nor assigning error can not have a revision of orders made against him in the trial court.</p>

<p>Probate Sale—Parol Evidence.—Probate proceedings showed an order for sale of a tract of land. The return of sale showed sale to J. C. Kendrick. The order of confirmation ordered that deed be made to the purchaser. Deed was executed to W. C. Kendrick, who deeded the land to appellee. It was shown by parol that the land had been bid off by W. O. Kendrick at the probate sale, and the testimony tended to show that the administrator was the real purchaser at his own sale, as he charged himself as administrator with the proceeds of the sale, while the nominal purchaser paid nothing. Held:</p> <p>1. That it was competent to prove by parol that W. C. Kendrick was the real purchaser and the mistake in the return of sale in the other name.</p> <p>2. The order of confirmation only approves the sale, without reference to the purchaser.</p> <p>3. To avoid the sale for reason that the administrator was the purchaser, neither the necessary parties nor pleadings were before the court.</p>

<p>1. Expert Testimony—Waves.—A witness aged sixty-five years, whose principal occupation had been that of a sailor, and who was acquainted with the locality, was properly allowed to answer the question, "With a wind sixty miles an hour, what would have been the size of the waves in that immediate vicinity?” the testimony being pertinent.</p> <p>3. Same.-—Nor was the expert opinion as to height of the waves improper, although other witnesses testified to the height of the waves at the time and place from actual observation.</p> <p>3. Proximate Cause. — Where there was testimony tending to show that the house for whose destruction the suit was instituted would have been destroyed in the storm at the time, regardless of the effect of the railway embankment by which the depth of the water was increased, and the court found that the injury was caused by the storm, the finding will not be set aside.</p>

Tried below before Hon. N. G. Kittrell. This is an appeal from a judgment for §2000, rendered against appellant for damages for negligence in failing to deliver a telegram.

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

Tried below before Hon. L. B. Hightower. c This is an appeal from a judgment against appellant for 82200 in favor of the widow and two children of John Dean, killed in crossing the track of appellant. The issues were a general denial and contributory negligence. The facts are sufficiently shown in the opinion.

<p>1. Garnishment of Debt in Suit. —During the pendency of a suit against a debtor by his creditor in one court the debtor can not be compelled to defend, as garnishee, a suit in a different court by one seeking- a judgment against him for the same debt.</p> <p>S. Same—Defense by Garnishee.—It ought to be held a complete defense for one to answer the pendency of a suit for the same debt in any other court where he •may be cited to answer for it as garnishee.</p> <p>3. Case in Judgment.—Burke obtained a judgment in the District Court against Hance, who appealed the case. Pending the appeal Chimene obtained judgment against Burke before a justice of the peace, and caused a writ of garnishment to be served upon Hance. Hance answered, denying his indebtedness to Burke, set out the condition of the judgment in District Court, etc. The justice of the peace, however, gave judgment against Hance as garnishee. The appeal by Hance to Supreme Court was not successful, the judgment below having been affirmed. Execution issued upon this judgment, as well as upon the Chimene judgment. Injunction was sought to restrain the collection of the latter. Chimene reconvened. Held:</p> <p>1. It was the duty of Hance when garnished to plead the pendency of the former suit, which plea should have been held sufficient.</p> <p>2. Upon the failure of the justice of the peace to recognize his defense the case should have been appealed so that the law might be administered.</p> <p>8. Having failed to appeal from the judgment of the justice of the peace, such judgment remains valid, and Hance can not by injunction prevent its collection.</p> <p>4. Nor was Chimene authorized to intervene or reconvene in the injunction suit; his remedy ishy proper process from the Justice Court to collect his judgment.</p> <p>4. Proceeds of Sale of Exempt Property.—-A judgment for damages for the conversion of personal property was rendered. The record did not show that all the converted property was exempt. In defense of garnishment proceedings against the judgment, held, that while a judgment for damages for the seizure, etc., of exempt property would not he subject to garnishment, yet the rule coul'd not he invoked when the record disclosed that value of other property than exempt entered into the judgment.</p> <p>5. Garnishment of Judgment.—It seems that after the termination of all proceedings in the suit a judgment may he reached hy garnishment.</p>

<p>1. Business Homestead—Attachment.—A lien can not be fixed upon a business homestead by the levy of an attachment against the ownei upon it.</p> <p>2. Same—Sale of Business Homestead.—A voluntary conveyance of the business homestead passes the title to it against attachment proceedings levied upon the property while used as the place of business, etc., before such voluntary conveyance.</p>

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

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

Tried below before Hon. F. A. Williams. This suit was brought by appellee Margaret E. Haden, February 23, 1887, a daughter of Phillip and Eliza Alston, deceased, to establish her claim against appellants to four-sixths of, the entire estate which was •community of her deceased parents, Eliza and Phillip Alston, claiming by inheritance from Eliza all her one-half and by will of Phillip one-third of his half.

Tried below before Hon. J. C. Russell. Action of forcible detainer by appellant, Johanna Cahill, against the appellee, the Texas-Mexican Railway Company, was brought in Justice Court of Precinct Ho. 1 of Hueces County, for possession of lot Ho. 2, block Ho. 2, in the beach part of the city of Corpus Christi. Complaint filed December 34,1884, and tried December 31,1884, complainant recovering. Appealed to District Court, the County Court having no civil jurisdiction.

<p>1. Master and Servant—Extra Hazardous Work.—Wliere cars unusual and extra hazardous in the mode of coupling were used in carrying a circus upon a railway, it was the duty of such railway company to know of the extra hazardous condition of the cars, and to notify the employe engaged in coupling them, and thus exposed to danger in his service.</p> <p>2. Verdict, Form of.—A verdict as follows, “We the jury find for the plaintiff damages to the amount of $7500,” is in no way defective.</p>

<p>1. Pleading—Trespass to Try Title.—Defendant in trespass to try title attacked tlie title of the plaintiff on ground that a trust sale of the land to him had been unfairly made, and at an inadequate price. Held, that without replication the plaintifE could show that the land was encumbered by prior liens, and the extent of such encumbrances.</p> <p>2. Same.—Under article 1197, Revised Statutes, “It shall not be necessary for the plaintiff to deny any special matter pleaded by the defendant, but the same shall be regarded as denied unless expressly admitted,” and rebutting testimony is admissible without replication.</p> <p>3. Parties.—Defendant in an action of trespass to try title died after answering; his administrator and heirs were made parties. By amended petition it was alleged that plaintiff had purchased the interest of a number of the heirs. In® such state of pleading the parties so selling out were not necessary or proper parties in the subsequent litigation.</p> <p>4. Charges Given and Refused.—Upon testimony on issues affecting the validity of a trust sale attacked for irregularity of the trustee in making the sale, and for inadequacy of price, see instructions approved and instructions properly refused.</p> <p>5. Charges.—See charges held to be appropriate to the testimony upon the issues-made in the pleadings and evidence.</p>

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

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

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

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

Tried below before Hon. H. Clay Pleasants. The report of the former appeal (69 Texas, 736) and the opinion here state the case.

Tried below before Hon. J. S. Lanier, Special District Judge. The conclusions of law, in part, found by the trial judge are as follows: “ 1.

<p>1. Malice and Probable Cause.—The following definitions approved: “Malice means wickedness of purpose, or a spiteful or malevolent design against another, or a purpose to injure another, or a design of doing mischief, or any evil design, or an inclination to do a bad thing, or a reckless disregard of the rights of others, or an intent to do an injury to another, or absence of legal excuse, or any other motive than that of bringing a party to justice. Probable cause means a reasonable ground of suspicion, supported by facts and circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.”</p> <p>2. Verdict.—Suit by husband and wife for malicious prosecution against the wife. The charge submitted the facts necessary to their case upon finding which the jury should find for the plaintiffs. The verdict was for the plaintiff. Judgment was rendered upon the verdiet for the plaintiffs. Held, not to be error.</p> <p>3. Malice and Probable Cause.—That the question of malice is one of fact, and the existence or nonexistence of probable cause one of law and fact, are rules as old as the action out of which they grew.</p> <p>4. Probable Cause.—See facts held sufficient to show want of probable cause for charging a party with theft.</p> <p>5. Affidavit.-—The party making the affidavit charging an offense is responsible for the proceedings legally following such complaint.</p> <p>6. Arrest.—Actual contact is not necessary to constitute an arrest. An arrest was made when the officer read the warrant to the accused and demanded bail or her person. She gave bail.</p> <p>7. Pleading.—The petition alleged that she “by reason of the premises had suffered great anxiety and pain of body and mind,” etc., and that she “suffered great mental pain caused by the acts of defendant.” No special exceptions were urged, nor objections to testimony to such suffering. Held, proper to submit to the jury mental pain as basis for damages.</p> <p>8. Advice of Counsel.—That advice of counsel was taken before malting complaint against one charged with an offense will not be a justification of itself; it may be talten by the jury with the circumstances upon question of probable cause for malting the complaint.</p> <p>9.. Malice—Charge.—That the charge upon the effect of taking advice of counsel applied such consultation to the question of malice instead of probable cause is no ground for reversal.</p> <p>10. Advice of Counsel.—Where defendant in an action for malicious prosecu-tion, in attempting to justify Toy showing that he took advice of counsel also shows that such advice was not followed by him, he can not complain that the jury did not hold such advice as evidence of probable cause.</p>

<p>Trustee Sale—Substituted Trustee.—The power to appoint a substitute to make sale of land charged with a debt, upon the refusal or failure of the trustee named to act, will not arise where the trustee is proceeding to execute the power; and as against a«sale made by the original trustee a purchaser under sale by a substitute appointed after the original trustee had advertised the sale will take no interest in the land.</p>

<p>1. Life Tables—Probable Duration of Life.—In a suit by the widow against a railway company for negligently causing her husband’s death it was competent to introduce tables prepared by the American Legion of Honor as evidence to aid the jury in determining the probable duration of the life of the husband but for the injury.</p> <p>2. Separation of Jury.—By article 1304, Revised Statutes, it seems that it is expressly provided that the court may permit the separation of a jury engaged in trying a civil case under conditions provided.</p> <p>3. Contributory Negligence—Burden of Proof.—Unless the plaintiffs case discloses want of care on part of the injured party, or exposes him to suspicion of negligence, and the defendant relies upon contributory negligence as a defense, it must be pleaded and proved.</p> <p>4. Due Care on Part of Injured Party.—It is error to charge the jury that it devolved upon plaintiff to prove not only the negligence of the defendant, but also that the deceased did not by his own negligence contribute to his own death, in suit by widow against a railway company for negligently causing her husband’s death.</p>

Tried below before Hon. Wm. H. Stewart. This is an appeal from a judgment in Dyer’s favor for $5000 damages ■for injuries received in attempting to cross the track of the defendant in the city of Galveston. Plaintiff was a drayman, driving a dray heavily loaded with wood and a tree 'intended for a Christmas tree from the wharf south along Twentieth Street. He had to cross Avenue A, running east and west, on which defendant had its track and operated its trains.

Tried below before Hon. James Masterson. Suit by appellant, filed on the 7th of August, 1887, upon and for breach of a contract, dated October 10, 1885. The residence of appellees is alleged to be in the State of Hew York, and notices were served on them in that State under article 1230 of the Revised Statutes.

<p>1. Sequestration—Intervention.—Personal property having been sequestered, the plaintiff replevied. Subsequently another party claiming the property intervened in the suit, claiming the property in controversy between the original parties. Held, that such claimant could intervene in the suit without filing oath or claim bond as under statute for trial of right to property.</p> <p>2. Practice.—Where exceptions to pleadings so general as to be only a general demurrer were urged in the court below, specific reasons of objection can not be heard on appeal.</p> <p>3. Admissions not Acted Upon not an Estoppel.—Subsequent to the seizure of personal property under writ of sequestration one who subsequently intervened claiming the property made declarations adverse to his own interest in the property. The plaintiff was not induced by such declarations to alter his condition. Such matter can not operate as an estoppel.</p>

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

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

<p>Acknowledgment Believing Claim from Limitation. —An acknowledgment to relieve a claim from the operation of the statute of limitations must contain an unqualified admission of a just subsisting indebtedness and express a willingness to pay it. See a letter held insufficient.</p>

<p>1. Venue—Joint Trespassers.—The right to maintain a suit in another county (as under eighth exception in article 1198, Revised Statutes) than that in which the statute fixes the venue, must depend upon the existence of the facts which constitute the exception-to the statute, and not upon the mere allegation of such facts.</p> <p>2. Same—Case in Judgment.—Suit by Hilliard Bros, against Wilson, sheriff of Burleson County, and Blum & Blum, residents of Galveston County, brought in Burleson County. The cause of action was the alleged seizure and conversion of a stock of goods, the property of plaintiffs, by said Wilson as sheriff, instigated by the Blums, who were plaintiffs in attachment proceedings under which the seizure was made at suit of the Blums, who also gave the sheriff an indemnity bond. The Blums pleaded in abatement their privilege to be sued in Galveston County. Held, that the court prop•erly charged the jury that the right of plaintiffs to recover against the Blums was dependent upon the proof of the allegations of misconduct by the sheriff in the seizure and sale of the goods.</p> <p>3. Inventory of Goods Levied Upon.—It is not required by law that a sheriff in seizing a stock of goods shall make an inventory of such goods; he is only required to describe them with sufficient certainty.</p> <p>4. Advertisement of Sale by Sheriff.—The sheriff was ordered by the court to sell goods seized under attachment after giving four days notice. This notice was given for January 13; on that day, by consent of parties, the sale was postponed to the 16th of January; no other notice of the day of sale was given. The sale was made in bulk and for a fair price. Held, that the defendants in attachment had no legal grounds of complaint against the acts of the sheriff.</p>

<p>1. Surveys.—See discussion of facts consisting of maps, field notes, monuments, tradition, etc., to ascertain the locality of a survey, none of the landmarks called for therein being identified upon the ground.</p> <p>2. Maps as Testimony—Locality of Survey.—We know of no rule that would require a court to prefer a map description, though, contemporaneously made, to testimony of a more direct character to the existence of a corner from,which by measurement the locality may be determined.</p> <p>3. Evidence of Locality, etc.—There is no specific rule of law to direct the mind in cases of conflicting testimony. The conclusion which is most reasonable and satisfactory under all the evidence should be adopted.</p> <p>4. Cases Adhered to.—Stroud v. Springfield, 28 Texas, 669, and Welder v. Carroll, 29 Texas, 317, adhered to.</p>

Error from Galveston. Tried below before Hon. Wm. H. Stewart. Suit by plaintiff in error, servant of a tenant, against defendant in error, the owner of the rented premises, for damages resulting from the falling of a cistern.

Tried below before Hon» H. Olay Pleasants. This is an appeal from a judgment against the plaintiff Hunter, who sued appellee for damages for not delivering beeves shipped for plaintiff at Cuero, Texas, to Chicago, Illinois. Damages claimed, $2170. The petition alleged a contract by the railway to deliver the beeves in Chicago.

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

Tried below before Hon. John Alexander, Special District Judge. December 2, 1884, appellant I. Heidenheimer brought suit by attachment in the District Court of Washington County against Charles Wenar &■ Go. for the recovery of certain sums of money alleged to be owing to him by them, and caused a writ of attachment to be levied upon the stock of goods, wares, and merchandise belonging to Charles Wenar & Co., situated in their store in the city of Brenham.

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

<p>1. Telegram.—A telegraphic dispatch as follows, “C. S. Kirkpatrick, Highland Station: Come on first train; bring Ferdinand; his father is very low,” signed “Jerry Lordon, ” and sent from Galveston, did not apprise the telegraph company either that plaintiff had a wife, or that she was at Highland Station, or that the object of the communication was to afford information upon which she was expected to act.</p> <p>2. Same—Notice.—That the agent of the telegraph company at Highland knew the wife and her father, about whose sickness the dispatch was sent, did not charge the company with notice that the wife’s presence at Galveston was invited by it.</p> <p>3. Cases Limited.—It was not the purpose of the court in the recent cases (Telegraph Company v. Adams, Id. v. Feegles, Id. v. Moore) to depart from the ruling •that in these actions only such damages are recoverable as were in contemplation of the parties at the time the contract was made. ,</p>

<p>1. Reading Authorities.—It must be left largely to the trial judges to determine what authorities and how much of each they will permit to be read to them. If in any case it is apparent that the purpose is to influence the jury rather than to inform the judge, the attempt should be promptly rebuked when it occurs. But such practice is no cause for reversal unless strong grounds be shown to believe that it improperly influenced the verdict.</p> <p>2. Rules of Railway Company—Employes.—The court properly rejected the testimony of a witness that it was a rule of the company that every switchman should carry a coupling stick, and that the rule was printed on the application for employment, no effort having been made to produce the original, nor to show that the injured employe ever signed or knew of such order.</p> <p>3. Same—Charges.—The testimony to the rules of the railway company having been excluded, it was proper to refuse a charge upon such testimony.</p> <p>4. Practice—Objecting to Testimony.—After testimony has been admitted without, objection, a motion to exclude it should be left more to the discretion of the judge than when objections were made.</p> <p>6.' Switch Engine.—Testimony that the engine in use when an injury was inflicted was not so easily handled as the regular switch engine was relevant on question of due care on part of the railway company.</p> <p>6. Allegata and Probata.—It not being alleged that the injury was caused by failure or inability to see the signals, it was not relevant to produce testimony to that effect.</p> <p>7. Side Bar Remarks.—The practical enforcement of the rules of court against side bar remarks, etc., must be left mainly to the trial courts, and there must bo strong reasons to believe that injustice has been caused by a violation of such rules before the action of the trial court will be held cause for reversal. See facts.</p> <p>8. Opinion of Witness.—See testimony to manner in which deceased was killed held competent.</p> <p>8. Condition of the Weather the Night of an Accident.—In absence of any testimony tending to show any connection between the condition of the weather and the accident, it was proper to refuse a charge to the jury that “if they believed from the evidence that the proximate cause of the accident was the darkness of the night, or the stormy condition of the weather, the plaintiff would not be entitled to recover.” If such causes increased the peril from imperfect machinery or service, it would rather aggravate the negligence.</p>

<p>1. Erasures in Ancient Instrument.—On the production of an instrument, if it appears to have been altered, it is incumbent upon the party offering it in evidence to explain this appearance. If nothing appears to the contrary the alteration, it is said, will be presumed to be contemporaneous with the execution of the instrument. If any ground of suspicion is apparent upon the face of the instrument the law presumes nothing, but leaves the question of the time when, the person by whom, and the intent with which the alteration was made as matters of fact to be found by the jury upon proofs to be adduced by the party offering it.</p> <p>3. Case in Judgment—Presumption—Erasures.—A mortgage regularly executed in 1833 for a league of land granted to the mortgagor, a colonist, purported to have been made to secure a loan of $5000 for six years, the mortgagee to pay dues and taxes and to have possession. After the maturity of the debt the instrument was proven up (in 1840) by one of the witnesses. The mortgagor left the country, and in Mexico it was shown he disclaimed owning land in Texas. Possession was taken and held by the mortgagee, and continued by his heirs and their assigns up to the trial. Held, that the presumption of law was that erasures patent upon the face of the instrument were made at its delivery.</p> <p>3. Same.—But without the presumption of law in its favor the instrument evidently conveyed the land to either the named mortgagee, or to him and another whose name may have been erased, on which hypothesis the heirs of the mortgagor would take no interest in the land.</p> <p>4. Same.—But if the erasures were grounds of suspicion, the finding of the court passing upon the entire evidence produced in support of the instrument would be conclusive in finding its validity.</p> <p>5. Recitals.—The recitals of the particulars of the grant, and that the documents evidencing it were delivered with the mortgage, would be conclusive that the conveyance was made subsequent to the grant.</p> <p>6. Executed Contract in Violation of Law.—The heirs of aigrantor in a conveyance in contravention of law can not recover the land by reason of their legal title against one in possession under such contract without .refunding the money received by their ancestor.</p> <p>7. Mortgagee in Possession.—Where the mortgagee by the terms of the instrument is placed in possession of the land so mortgaged, the mortgagor can not recover possession after the condition broken without payment of the debt secured thereby.</p> <p>8. Notice of Claim.—The possession of the land would operate as notice of the ■claim to it by thevmortgagee in possession.</p> <p>9. Probate Proceedings in Partition—Evidence.—Where probate proceedings in partition are offered in evidence to show continual claim to the land in controversy, and not as title, it is not necessary that they be recorded in the county where offered in evidence.</p> <p>10. Witness—General Conclusions.—Where a case was on trial before the judge ■without a jury it is no ground for reversal that a witness testified uo general conclusions, especially when the witness had carefully testified to facts evidencing such conclusion.</p> <p>11. Circumstantial Evidence of Deed.—See facts held sufficient to support a finding by the court of the existence of a deed..</p>

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

Tried below before Hon, H. Teichmueller. ¡November 22, 1888, Cox sued Hubbard, alleging that he was the owner and in possession of forty acres of land described in his petition, to which appellant was asserting a claim which clouded appellee^ title to the land and obstructed his free use and enjoyment of the same, and the sale thereof.

<p>1. Care by Person Crossing Railway.— There is no statutory enactment or fixed rule of law prescribing exactly what a party must do who approaches a railway crossing. If aware of it he is held to use such precautions as a prudent man would resort to under similar circumstances.</p> <p>2. Cases Adhered, to.—Railway v. Wilson, 60 Texas, 148; Railway v. Chapman, 57 Texas, 82; and Railway v. Lee, 70 Texas, 501, adhered to.</p> <p>3. Same—Charge.—It would be an infringement upon the province of the jury for the court to charge that it was the duty of the person approaching a railway crossing to do any particular act, failure of which would be negligence; nor should special issues be given submitting particular acts of the plaintiff in approaching the crossing, The court can not determine negligence as an inference from any fact or group of facts in evidence.</p> <p>4. Allegata and Probata.—The petition alleged that plaintiff was injured at the crossing at intersection of Twenty-seventh Street with Avenue A, in Galveston. The defense alleged that the collision occurred while plaintiff was walking upon trestle work. Under these allegations testimony to the ■ injury upon the trestle work was relevant; the omission in the petition was supplied in the answer.</p> <p>5. Rebutting Testimony.—In suit for damages for injuries from negligence of defendant at a street crossing upon a railway the defendant pleaded contributory negligence, and that if plaintiff had looked or listened for the approaching train, which he could have done, he would have discovered the same in time to have avoided the accident. Held, that without replication the plaintiff could prove that his view of the train was obscured by smoke or steam, thereby seeking to negative the existence of negligence on his part. '</p> <p>6. Charge—Statutory Notice of Train.—It is no ground for reversal that the trial court charged in the words of the repealed statute (Rev. Stats., art. 4232), “It is the duty of the railway companies to ring the bell or blow a whistle at the distance of at least eighty rods from the place where such railway shall cross any street, and to keep ringing or blowing until it shall have crossed such street, or stopped,” instead of the amended article of March 21, 1885.</p>

Tried below before Hon. George McCormick. This is an appeal from a judgment for $150 in favor of appellee Smith for negligent failure to deliver a telegram sent by the said Smith. The allegations in the petition are given in the opinion, which presents the only question discussed in the opinion.

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

<p>1. Damages.—A warehouseman who receives'freight and stores it so negligently as to cause personal injury to the agent of the owner or consignee who without negligence on his part attempts to handle it, is liable in damages for the injury inflicted.</p> <p>2. Same—Common Carrier.—When freight transported by a common carrier to a seaport town is placed in warehouse for delivery to the consignee, and control thereof is assumed by the consignee, the delivery is complete; but if he so negligently places and leaves it that the consignee or his agent, in attempting and with reasonable care to remove the same, is injured by reason of the negligent manner in which it was left by the carrier, the latter is responsible in damages, provided no negligence of the consignee or his agent contributed to such injury.</p>

<p>1. Available School Fund—County Treasurer’s Bond.—A county treasurer executed Ms official bond conditioned that “he would faithfully keep and faithfully disburse the school fund according to law.” Suit was brought upon the bond, and the defendant excepted to the petition on the ground that the available school fund apportioned to the county by the State belonged to the State, and that as to such of the funds sued for the suit should have been brought in the name of the State. Held:</p> <p>1. That the exception was not well taken, and that suit was properly brought by the county.</p> <p>2. That it was not necessary that the bond on its face should recite in terms that it included available school fund.</p> <p>3. Under the bond suit could also include available school funds of the county from other sources than that apportioned to it.</p> <p>2. Parol Evidence to Limit Official Bond.—It was incompetent by parol to limit the legal effect of the bond by the county treasurer by showing that it was only intended to secure that part of the available school fund which was apportioned to the county from the State.</p> <p>3. Depositions of State Comptroller.—Depositions of the State Comptroller are competent to prove the amounts of school fund apportioned to a county by the State Board of Education which were received by a county treasurer. Attached to the deposition were copies of certificates and vouchers provided for in articles 3724, 3740e, 3740f, Sayles’ Civil Statutes.</p> <p>4. Drafts on Collector—Payment.—Drafts in favor of the county of Galveston upon the collector of taxes for the pro rata of State school funds apportioned may be paid by the collector in advance of collections made upon which drawn. The collector is authorized to apply the proceeds of the collections when made to meet such advances.</p> <p>The county treasurer would not be relieved from responsibility by showing that such funds had been paid, etc., after it was due but before the collection from the tax payers. It would be of no consequence at what time money so paid to a county treasurer was actually charged to him in the collector’s books.</p> <p>5. Receipt not Conclusive of Payment—School Fund Coupons.—It having been shown that certain coupons drawn upon the tax collector were delivered to the tax collector and receipted, as against the sureties on the treasurer’s bond, it was error to instruct the jury that it “would make no difference as to their liability what disposition the collector made of the money for which said coupons were drawn.” It appearing in evidence that the money had been appropriated to the purposes intended by law in the payment of the coupons, the error is not sufficient ground for reversal. The coupons are prima facie but not conclusive evidence of the payment of the money.</p> <p>6. Receipt.—The party contradicting the payment for which his receipt is produced, when testifying in his own behalf, should be able to testify directly that the payment had not been made. See facts held insufficient to contradict a receipt.</p>

Tried below before Hon. L. B. Hightower. The petition alleged, substantially, that in May, 1889, plaintiff and defendant entered into a contract, by the terms of which the latter was to provide the former with a building site on the latter’s premises, where the plaintiff was to erect a store house for the purpose of conducting a general mercantile business. The consideration was set forth in detail.

<p>1. Intervenor—Practice.—An intervenor against whom, no affirmative relief is asked by the pleadings of the other parties to the cause occupies so much the position of a plaintiff that the only proper action to take with regard to him when he fails to appear is to dismiss his suit for want of prosecution.</p> <p>2. Partition—Parties.—As long as the pleadings fail to show in a suit for partition that there are persons interested in the title that is the subject of the suit who are not parties to it, the proceedings may be prosecuted to a final decree.</p> <p>3. Necessary Parties in Partition.—It is not incumbent upon plaintiffs in a partition suit to make parties persons claiming under an adversary title, or not under the title of which partition is sought. Persons not parties are not prejudiced by the proceedings.</p>

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

<p>1. Maintenance and Education of Minor.—A mother of limited means supporting her minor children can charge funds belonging to them coming into her hands with reimbursing her for such expenses without the orders of the Probate Court.</p> <p>2. Pleadings—Fictitious Debt.—In an attack upon a conveyance by a failing creditor upon the ground that the named consideration for the transfer was fictitious, such allegation that the debt was fictitious was sufficient to admit testimony to an offset not allowed in the transaction, which if allowed would have reduced the indebtedness below the sum named in the conveyance.</p> <p>3. Mistake as to Amount of Indebtedness.—Should the amount of the debt recited in the conveyance be over stated, not intentionally but on account of a mistake of fact or law, and should at the same time the value of the property conveyed not exceed the amount of the actual indebtedness, the transaction would be valid. In such case there is neither an intent to defraud nor a fraud resulting from a transfer of an excess of value in property over the debt.</p> <p>4. Charge.—See a charge properly refused, but which was sufficient to call the attention of the court to an issue not included in the general charge.</p> <p>5. Acquiescence.—That a son acquiesced in the use of his funds by his mother and failed to demand them will not have the effect to discharge the debt of the mother so receiving funds belonging to her son and using them.</p>

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

<p>Appeal from Hamilton. Tried below before Hon. O. K. Bell.</p>

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

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

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

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

<p>1. Dissolving Municipal Organizations.—There is nothing in the legislation of the State to intimate an intention to permit existing corporations to incorporate under the general law, and thus dissolve the existing corporation, in any other manner than that prescribed in the Act of March 15, 1875 (Rev. Stats., art. 340), and amendment thereto, March 27, 1885 (Sayles’ Civil Stats., art. 340b).</p> <p>2. Cases Adhered to.—The State v. Dunson, 71 Texas, 65; and Buford v. The State, 72 Texas, 182, adhered to.</p> <p>3. Jurisdiction—Amount.—See allegations held sufficient to show jurisdiction of the District Court in absence of an averment of value, where the question was first raised on appeal.</p> <p>4. Case in Judgment.—The town of Lampasas was incorporated under an act of the Legislature, April 18,1873. At an election held in the spring of 1876 a city council was elected favorable to a dissolution of the corporation. The council settled up the city business and resigned, after having passed an ordinance declaring the offices, etc., vacant thereafter. Held, that such attempted dissolution was ineffectual, and that an organization de novo in 1883 was void.</p>

<p>1. Injunction to Stay Execution Within Twelve Months.—-The provision (Rev. Stats., art. 2875) that no injunction restraining a judgment shall be granted after twelve months after such judgment, does not forbid an injunction within twelve months after the affirmance of such judgment on appeal, although applied for more than that time after the rendition of the judgment in the District Court.</p> <p>2. Multifariousness.—Where several judgments stand against the same persons, the questions with regard to their validity and interpretation being the same, executions thereon were levied upon the same property, and the question upon which it is sought to restrain the judgments was common to all the cases, and affect all alike, and where the litigation theretofore had been conducted as if the cases had been but the one case; held, that the defendants in the several judgments may join all the plaintiffs in the several suits as defendants.</p> <p>3. Injunction, when the Remedy. — When an error occurs in the proceedings leading to a judgment, or in the judgment itself, the error can only he corrected by proceedings in the case by appeal, etc. But if the matter complained of grew out of unlawful proceedings subsequent and with regard to the process issuing out of the judgment, the remedy is by injunction.</p> <p>4. Judgment in Suit to try Right of Property.—Under article 4843, Revised Statutes, upon rendition of judgment against the claimant prosecuting in the trial of right to property judgment should be rendered against him and sureties for the value of the property, with legal interest thereon from the date of the claim bond; yet the judgment creditor could not collect more than his judgment with interest and ten per cent damages, etc. This is not materially altered by the amendment, April 2, 1887. While a judgment rendered in accordance with the statute would not be error, yet an •effort to enforce such judgment according to its terms would he ground for injunction for the excess over the amount of the original judgment, interest, and damages.</p> <p>5. Statutes Discussed.—Revised Statutes, articles 4841, 4843, and amendment to ■article 4843 of April 2, 1887, discussed.</p> <p>6. Practice.—The dismissal of the original action under which an attachment was levied, had the effect of a release of the attached property. No judgment could be obtained by the plaintiff in such case against a claimant of the attached property after such dismissal of the original suit.</p> <p>7. Release of Joint Obligor.—The doctrine seems to be well established that such a release of one of a number of joint debtors discharges the others.</p>

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

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

Tried below before Hon. James Masterson. This is an appeal by the Gulf, Colorado & Santa Fe Railway Company from a judgment rendered for $1000 in favor of Jordan Jones. The plaintiff, suing by his next friend, is a son of an old negro woman, and is aged sixteen years. The cause of action was injuries received by plaintiff in the employ of the defendant company while serving it as a temporary brakeman upon a train upon the road of the defendant.

<p>1. Common Carrier.—In an action for damages against an incorporated navigation company, based on the alleged negligence of its agents in charge of one of its steam tugs, whereby injury resulted to the person of one alleged to have been a passenger on the tug, it was alleged that at the time of the injury the relation of passenger and common carrier existed between the company and the injured party. Meld, that the answer setting up that the steam tug was used only in towing other vessels, that those having charge were forbidden to carry passengers except on special permit, and that the injured party was at the time of the injury on the steam tug in violation of the rules of the company, presented a valid defense.</p> <p>2. Common Carrier.—The employes of a company operating a freight boat who are forbidden by the owners to carry passengers can not, by contract to carry passengers, bind their employers.</p> <p>3. Negligence.—While one who operates dangerous machinery may owe no duty of care to an adult person who voluntarily places himself in contact with it, a different rule prevails as applicable to children. Hence it is held negligence to permit a child to go on board a tug boat without talcing adequate precautions to avoid injury to it from all accidents while there. If, however, the child goes on the boat against the consent of the boat’s officer, and on the invitation of employes having no authority to invite, the company will not be held liable, when the right of action is made dependent on the invitation.</p> <p>4. Same.—If the officer having control of the boat leaves its management for a time to his servants on board, the company will be bound by their action in allowing a minor to enter upon the boat, though in violation of the orders of the owners.</p> <p>5. Years of Discretion.—When it becomes an issue as to whether one between the ages of thirteen and fourteen has arrived at years of discretion, it should be left to the determination of the jury.</p> <p>6. Negligence—Parent and Child.—See case for facts under which it was held that if a parent consented to the minor child entering upon a tug boat, and the child was drowned, no right of action existed in behalf of the parent.</p>

Tried below before Hon. James Masterson. This is a second appeal. The report in 73 Texas, 289, and the opinion here sufficiently state the matters discussed.

<p>1. Presumption of Power of Attorney.—A deed which purports to be executed under authority of a power of attorney, which is not produced, authorizes the presumption that the power of attorney existed, if the deed is thirty years old, comes from the proper custody, and rights have been asserted and taxes paid by those claiming under it.</p> <p>S. Parties—Corporation.—If a suit be begun in the name of a corporation having a legal existence, and is prosecuted to judgment in a different corporate name, which was alleged in the pleading to have been given by amendment of the charter after suit brought, it is immaterial whether the amended charter was lawfully or unlawfully granted; in either event the judgment will not for that cause be disturbed.</p>

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

<p>1. Limitations—Declarations.—The secretary of a municipal corporation can not by Ms report to the city council, which in his estimate of the bonded indebtedness of the city includes as a valid claim bonds wMck on their face are barred by limitation, relieve such bonds from the bar of the statute. An acknowledgment of a debt from wMch a promise to pay can be implied must be made by the debtor, or some one authorized to make it, and to some one holding the claim, or his agent.</p> <p>2. New Promise.—A promise to pay a debt which appears to be within the bar of limitation, when made to a stranger, will not relieve the claim from the bar of limitation. Fort Scott v. Hickman, 112 TJ. S., 150, cited and approved.</p>

<p>1. Objections to Testimony—Practice.—On appeal, only objections to testimony ■shown by the record to have been acted upon by the trial court will be revised.</p> <p>2. Same.-—See example where a letter from .a cashier to the president of a bank was held not to be subject to the objection made to it, and its admission not error, although it was subject to other valid objections. Such other objections are considered ■ as waived.</p>

<p>1. Bight of Way.—A grant of right of way to one railway company does not authorize it to operate its road, and to convey a portion of the unused right of way to .another company for the same purpose, without the consent of the owner of adjacent land damaged thereby, and without compensation for such damage.</p> <p>2. Same—Injunction.—Injunction can be maintained against the railway company attempting to build upon the right of way of another, at suit of adjacent land owner damaged by the act complained of.</p>

<p>Conditions Imposed Upon Granting New Trial.—Judgment was rendered for ■plaintiffs. The defendant filed a motion for new trial. Upon the motion the minutes of the court show: “ The court is of the opinion that a new trial should be granted.</p> <p>It is therefore decreed by the court that defendant’s motion for a new trial be and the same is hereby granted and judgment vacated. It is further * * decreed that defendant pay all costs of witnesses in attendance at this term who testified in this cause as a condition upon which the venire facias de novo is awarded.” Reid:</p> <p>1. That an order granting a new trial must be absolute.</p> <p>2. Among definitions of the word “condition” is “something to be done,” and in that sense the plural is synonymous with terms. This evidently is its meaning in article 1868, Revised Statutes, providing that “ new trials may be granted "x" * * on motion, for good cause, on such terms and conditions as the court shall direct.”</p> <p>3. The word “ condition” in the order is not used in its technical sense, but in the statutory meaning.</p> <p>4. By the order it was not intended to make the grant of the-new trial conditional upon the payment of the costs of witnesses for the term.</p> <p>5. The order had the effect of granting a new trial.</p>

<p>Creditor Purchasing Insurance Policy of Debtor.—A creditor purchasing policy of insurance upon the life of his debtor from him, upon the death of the debtor takes only his debt and the aggregate of premiums he has paid, with interest upon his debt and outlay.</p>

<p>1. Deed for Land Taken by an Executor for a Debt due an Estate.—The fact that a deed for land sold under a decree in favor of an executor was taken in name of the heirs of his testator did not divest the land of its character as an asset of the estate in the hands of the executor. It simply took the place of the debt in satisfaction of which it was acquired.</p> <p>2. Receiver.—In a suit between devisees under the will against parties claiming under a sheriff sale of it under a judgment against one of two executors, it was not the duty of the court to appoint a receiver, or to call in the executor to protect the estate in the litigation.</p> <p>3. Effect of one Executor Failing to Act —When one of two exei.mojrs of mi independent will refused to qualify or act as such, the other is authorized fo ;v; n he was the sole appointed executor.</p> <p>4, Immaterial Evidence.—That an executor in fraying in land at a sale in his favor as executor took a deed in name of heirs of his testator, and that subsequent to the sale he had paid taxes on the land, if shown, would not affect the material issues as to the ownership of the land; it took the place of the purchase money.</p>

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

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

<p>Policy of Insurance.—The personal representatives of a debtor who obtained a. policy of insurance on his own life and transferred it to his creditor are entitled to recover the amount remaining paid on the policy after deducting debt and interest, with premiums paid by the creditor, and expenses paid in its collection.</p>

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

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

<p>Appeal from Wharton. Tried below before Hon. Wm. H. Burkhart.</p>

Tried below before Hon. J. L. Sheppard. This suit was filed September 14, 1888, by T. R. Johnson, against Johm 0. Brown, receiver of Texas Pacific Railway Company, for damages for' personal injuries received by him while running an engine on the Texas Pacific Railway on January 31, 1888, at Lansing Switch.

<p>Appeal from Marion. Tried below before Hon. John L. Sheppard.</p>

<p>Appeal from Marion. Tried below before Hon. John L. Sheppard.</p>

<p>1. Venue in Suit Against Receiver of Railway.—Suit for personal injuries by an employe may be brought against a receiver managing a railway in a county where "the railway corporation has an office and agent.</p> <p>2. Suit without Leave of Court.—Such suit may be brought without first having obtained leave from the court appointing the receiver.</p> <p>3. Liability of Receiver.—The sole liability of a receiver, except in cases in which he is personally at fault, is official. A discharge of the receiver and return of ■the property to the owner would render a judgment against him for injuries caused in the management_of the property fruitless, and no judgment could legally be rendered against him for injuries for which the railway company would have been liable.</p> <p>4. Practice.—Where pending suit for injuries against a receiver he is discharged, the suit as to him should abate for want of proper parties. The railway company should be made party defendant.</p> <p>5. Remedy After Discharge of Receiver.—See Johnson v. Railway Company, ■supra, page 421, for principles governing the liability of the railway for injuries in•flicted in the working of the road while m hands of receiver.</p>

<p>1. Evidence.—Parol evidence of the contents of a written document the absence of which is not accounted for is not admissible.</p> <p>2. Same—Handwriting.—Parol evidence to establish by comparison the handwriting of the signature to a paper which is not produced is not admissible.</p>

<p>1. County Treasurer.—When in pursuance of an authority given by a county treasurer to Ms agent (who is also county tax collector and cashier of a bank) to hold and disburse county funds which came to the agent’s hands as tax collector, such agent reports to the treasurer the collection of money and gives to the treasurer a check therefor, and the treasurer then executes to the agent a formal receipt for the amount and transfers to him the check, the treasurer is chargeable with the money and estopped from denying its receipt.</p> <p>S. Auditor.—The account made up by an auditor should be so reported that the undisputed items on either side may be eliminated from the case, and the issue thereby narrowed to the items actually in dispute. As to items in the account not excepted to, the report is conclusive; as to items excepted to, the report is without effect.</p> <p>3. County Treasurer.—When a county treasurer, having constituted the tax collector, who is also cashier of a bank, his agent to keep the money of the county, receipts to such collector for the money and gives him control over it, the treasurer becomes responsible for it in the event of its misappropriation by such agent..</p>

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

<p>1. Corporation—Assessment.—In a suit by a corporation against one of its members to collect an assessment made under its charter, it must be shown by competent evidence that the assessment was made.</p> <p>2. Same—Records.—Article 586, Revised Statutes, requires corporations to keep a record of their business transactions, of which action copies authenticated by the president and secretary under the seal of the corporation are evidence.</p> <p>3. Same—Parol Evidence.—It is incompetent to prove by parol the records of a corporation without showing the loss of the original record or otherwise accounting for the absence of such original.</p>

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

Tried below before Hon. Wm. H. Stewart. This is an appeal from a judgment for defendants dissolving an injunction which had been sued out by the plaintiffs, and for affirmative relief asked in a cross-bill by the defendants to the injunction suit.

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

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

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

<p>District Courts — Statutes Construed. — The Act of 1889 which divided Dallas ■County into two judicial districts and made the dividing line to pass through the centre of the court house, contemplated that the courts of said district should he holden in the one court house of Dallas County. After the destruction of the court house which ■existed when the law was enacted the County Commissioners Court rented for court house purposes a building which was located' entirely within the territorial limits of one ■of the districts. Held, that sessions of the District Courts of both districts could be legally held in such rented building.</p>

<p>1. Partition of Homestead—Bights of Minor Child.—After the death of both parents the use and occupation of their homestead by their minor children is recognized, but to protect it from partition at suit of the adult children the agency of a guardian must be had, acting under authority and by permission of an order of the Probate Court having jurisdiction.</p> <p>2. Same.—A minor resisted partition of the parental homestead sought by suit of his adult brothers and sisters. No guardian had ever been appointed over his estate. Held, that the proceedings should be suspended until the County Court should appoint i guardian, and determine whether such guardian should be permitted to occupy and use the homestead for the use of his ward.</p>

<p>Payment of Debt Discharges Lien.—The holder of a note secured by deed of trust upon several tracts of land, upon a part payment of the note released the lien upon one of the tracts. A substitute trustee sold all the lands conveyed in the trust deed, the holder of the note becoming purchaser. Held:</p> <p>1. That upon the discharge of the lien no sale could be made of the land so released.</p> <p>2. The debt having been paid, the lien no longer existed. A sale under the power was void.</p>

Tried below before Hon. James Masterson. Appellee Mary Crowder, joined by her present husband James Crowder, sued appellant for damages for its alleged negligence in causing the death of her son George Cohn, 17-g- years of age, while in its employ as brakeman. Defendant answered by general denial.

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

<p>1. Irrelevant Testimony—Case in Judgment.—Wegner Bros, were sureties of one Pohl upon two promissory notes, one for $1000 and the other for $850, payable to Biering & Co. At instance of Wegner Bros, they executed their own notes to Biering & Co. for the amount of the two notes. Wegner Bros, then sued Pohl by attachment and realized upon the attachment. Biering & Co. sued upon the note made by Wegner Bros., who set up that one of the notes which was settled by that sued upon was given in consideration that plaintiffs should not prosecute Pohl for theft. Held, that upon the issues litigated it was immaterial what, if anything, Wegner Bros, realized by their attachment. It was not error to exclude the testimony to such amount.</p> <p>2. Leading Questions by the Court. — On the trial one of the defendants was testifying, and the court asked him, “ Did Biering understand the note (for §1000) was given under an agreement he should not prosecute Pohl?” to which witness answered, “Yes, sir.” Upon exceptions, held the question was improper; first, as leading, and second, as asking the opinion instead of facts.</p>

Tried below before Hon. Wm. H. Burkhart, Andrew E. Westall was the sole heir at law of Thomas and Henson G. Westall, grandson of the former and son of the latter. Thomas Westall owned the land in suit, an undivided interest in the Asa Mitchel labor, and upon his death Henson G. Westall as his heir inherited the same—-that is, one-dhirty-second undivided interest in the labor.

<p>1. Res Adjudicata—Case in Judgment.—January 5, 1889, appellees sued Humasen by attachment in District Court of Harris County upon a promissory note and an account. The defendant pleaded and proved that a judgment had been rendered in the District Court of Polk County in favor of the plaintiffs against defendant upon the identical subject matter on December 9, 1887, with stay of sixty days. The plaintiffs, in replication, pleaded that no execution had issued, 'and that the judgment was dormant. Held, that plaintiffs showed no cause of action, and the petition should have been dismissed.</p> <p>2. Presumption.—In absence of testimony the court will not presume that an execution upon a judgment in the District Court was not issued within one year after the rendition of the judgment.</p>

<p>1. Probate of Will—Jurisdiction—Parties.—On an appeal to the District Court from the action of the Probate Court in probating a will the case is tried de novo, and the District Court may dismiss the party who originally made application for probate, and proceed in the case at the instance of a legatee under the will, or of any one interested in the estate.</p> <p>2. Limitation.—When a will is not under the control of the party who seeks its probate, nor in the proper place for its deposit, but in the possession of one who resists the application to probate it, the four years statute of limitations does not apply, but it may be admitted to probate after the expiration of that period.</p> <p>3. Cases Cited and Reviewed.—Ochoa v. Miller, 59 Texas, 462; and Ryan v. Railway, 64 Texas, 241, cited and reviewed.</p> <p>4. Probate of Will—Fact Case.—See opinion for facts under which it was held that proceedings to probate a will, made by the testator who died on January 1, 1888, which were begun in the name of a trustee for the beneficiary within four years, could be prosecuted by the beneficiary after the expiration of four years from the death of the testator.</p> <p>5. Foreign Corporation—Will.-—A foreign corporation can in New York take under a will, and a will made by one dying in Texas which maltes a New York corporation a legatee may for that purpose be probated in Texas.</p> <p>6. Construction of Will.—A bequest to a corporation in its original corporate name “and to its successors and assigns” sufficiently identifies as a legatee the same corporation known at the time of the bequest by a different corporate name which it had received by amended charter.</p> <p>7. Evidence—Probate of Will.—Though a will may be probated by other witnesses than those who subscribed as witnesses thereto, when the latter are dead, beyond the jurisdiction of the court, or unwilling from corrupt motives to give evidence, yet the failure to call the subscribing witnesses must first be accounted for. When the subscribing witnesses have testified, other evidence secondary in its character may be .admitted. The evidence of an attorney who drafted the will at the request of the testator, identifying it and showing the sanity of the testator, is admissible.</p>

<p>1. Descent of Homestead in Insolvent Estates.—Under the Constitution (art. 16, see. 52) and the Revised Statutes (arts. 1817,1998, 2002, 2007-, and 2008), the homestead in insolvent estates descends as other property, subject to use by surviving widow or minor children as provided, and is not liable for the debts of the deceased head of the family.</p> <p>2. Same—Construction of Statutes. •— If a part of a statute repugnant to the Constitution can be stricken out and that which remains is complete in itself and capable of being executed in accordance with the legislative intent, such part remaining must be sustained.</p> <p>3. Same.—So much of article 2002, Revised Statutes, as provides a different rule of descent from that in article 16, section 52, of the Constitution, must be disregarded as void, but the other provisions of the statute are not dependent upon this and can stand as the law, not being unconstitutional.</p> <p>4. Statutes Discussed.—The several statutes of descent of exempt property in this State are discussed.</p>

<p>Appeal from Washington. Tried below before Hon. John Alexander, .Special District Judge.</p>

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

<p>Appeal from Washington. Tried below before Hon. 0. 0. Garrett.</p>

<p>1. Mandamus.—The writ of mandamus is the appropriate remedy to restore a member of an incorporated society to his rights and privileges in the association when they have been wrongfully denied him.</p> <p>2. Same.—The writ of mandamus will not issue in behalf of a party who has some other adequate statutory or common law remedy.</p> <p>3. By-Laws—Expulsion.—By uniting with a society which is not organized principally for commercial gain a member accepts its constitution and must abide the decision of such tribunals as that instrument may provide to settle disputes among the members. The judgment of such tribunal, when organized under the constitution and lawfully exercised, though it expels a member, is no more subject to collateral attack for mere error than is the judgment of a court of law.</p> <p>4. Same.—If, however, such tribunal acts illegally, or if it declare sentence of expulsion for some offense to which that penalty does not apply under its constitution and by-laws, and no right of appeal within the association is provided for the redress of the wrong, the courts will review the proceedings,'and if justice require, restore the member to his privileges. A mandamus, however, can not issue to afford relief even against an expulsion if by the laws of the association an appeal be allowed, until that remedy is exhausted.</p>

<p>1. Statute Regulating Foreign Corporations.—The opinion in Barren v. Burnside, 121 United. States, 186, followed, holding invalid an act of a State Legislature requiring foreign corporations to obtain a permit to transact business in the State, and malting the right to a permit depend upon the surrender by the foreign corporation of a privilege secured to it by the Constitution and laws of the United States.</p> <p>2. Same—Statute Declared Unconstitutional.—The Act of April, 1887, Twentieth Legislature, pages 116, et seq., relating to foreign corporations, held unconstitutional.</p> <p>3. Same.—But if said act were constitutional it should not be construed so as to preclude a corporation having acquired property in the State from asserting and protecting its rights in the courts of the State.</p>

<p>1. Municipal Charter,—The city of Galveston under its charter has power to establish market houses, and to require fresh meats to be sold there, and also to forbid their sale at other places. Such power can not be fettered by contracts, but must be left free to be exercised at all times, whether in conferring or in withholding market privileges when once conferred.</p> <p>2. Same.—One who established under authority of the city a private market and -expended money in preparing and equipping it, is chargable with a knowledge at the time that the city may at any future time forbid him from continuing to keep his market at that place. The withdrawal of the privilege does not, in contemplation of law, divest the citizen of a right or deprive him of his property, and the ordinance withholding the privilege is not in restraint of trade.</p>

<p>Purchaser for Value—Community Interest—Heirs.—Though a deed has been made to the husband during his wife’s life, and for land paid for with community funds, yet if lost and never recorded, and another be made to the husband after the wife’s death, in which no reference is made to a prior deed, and it be shown that a purchaser for value from the husband bought with no knowledge of the former deed or the equitable claim of the children, or of facts that should have caused him to inquire, he takes full title free from the equitable interest which descended from the mother to her children.</p>

<p>1. Municipal Corporations.—No law existed prior to the Act of March 27, 1885 (Sayles’ Civil Stats., art. 340b), under which towns and villages incorporated under chapter 11, title 17, Revised Statutes, on acquiring the requisite population, could accept the provisions of that title in lieu of an existing charter, in the manner provided by article 340, Revised Statutes, and thus become an incorporated city, with all the powers, privileges, and duties given and imposed on such towns and cities as might incorporate under the first chapter of that title.</p> <p>S. Same.-—Colorado, the county seat of Mitchell County, became an incorporated town under the law providing for the incorporation of towns and villages containing more than two hundred and less than one thousand inhabitants. The resolution of the town council of Colorado, on the 21st of November, 1882, surrendering the town charter and accepting in lieu thereof all the franchises and powers conferred in title 17, Revised Statutes, was without effect, and its original corporate existence continued.</p> <p>3. Same.—The corporation created for Colorado in March, 1882, limited to its territory as then designated, still exists, and those who live within such limits can, if they desire, have the enlarged powers conferred on cities incorporating under chapter 1, title 17, Revised Statutes, by compliance with the Act of March 27, 1885.</p>

Tried below before Hon. Wm. H. Burkhart. The objection to the introduction of the deed in evidence was based on want of certainty in description of the property conveyed.

Tried below before Hon. Eugene Williams. The controversy in this case originated in an application filed in the County Court of McLennan County by appellants to probate the will and codicil thereto of Peter McClelland, Sr., who died on September 24,1886.

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

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

Tried below before Hon. W. H. Burkhart. In August, 1873, F. Gr. Franks qualified as guardian of the estates of appellees, who were minors, and he gave to Hamilton, Claton, and Ahldag sureties on his guardian bond, to secure them against loss as such, a mortgage on the 1107 acres land involved in this controversy.

<p>Appeal from Wharton. Tried below before Hon. Wm,' H. Burkhart.</p>

Tried below before Hon. Wm. H. Stewart. This is a second appeal. 73 Texas, 111. It is purely a question of fact. The testimony is voluminous. An outline of it is given in the opinion. The contention was whether the transaction was a bona fide sale of the homestead or was an attempt to create a lien upon the homestead. The report on the first appeal and the opinion here give a sufficient outline of the facts.

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

<p>1. Description—Evidence.—A description of land as follows, "Beginning at. the west boundary [naming the headright survey and its locality] and extending east sufficiently far to embrace five hundred acres,” is sufficiently certain, and when such description is contained in a mortgage deed under which the mortgagor deraigns title-it is admissible in foreclosure proceedings to enable the court to define more accurately the mortgaged premises.</p> <p>2. Parol Evidence.—The admission of parol evidence to show an entire contract, when part only of such contract has been reduced to writing, which in exceptional cases was recognized in Thomas v. Hammond, 47 Texas, 42, must be limited to matters which under other rules of evidence may be established by parol. Thus an agreement to purchase land of which there was no memoranda in writing signed by the party to be charged therewith, can not in a case where the statute of frauds is relied on to invalidate the agreement be admitted in evidence to show an entire contract, part only of which was written.</p> <p>3. Statute of Frauds—Evidence.—A contract for the purchase of land of which there was no memoranda in writing can not be validated and the effect of the statute of frauds avoided by showing a tender of deed sent by mail to the purchaser and his letter in answer thereto signed by him, which fails to admit and recognize the parol contract, but proposes to purchase on different terms.</p>

<p>1. Suit on Administrator’s Bond.—The District Court has no power to annul the orders of the Probate Court in a suit brought on the bond of an administrator.</p> <p>‘2. Conclusiveness of Judgment.—The judgment of the Probate Court approving a claim presented and allowed by the administrator is conclusive, there being no appeal.</p> <p>3. Same—Creditors.—Notwithstanding the judgment of the Probate Court, unappealed from, which allows a claim against an estate, either the heirs or other creditors. may show on final settlement of the administrator’s account that the claim was harred when it was allowed, and prevent the administrator from receiving a credit for its amount.</p>

Tried below before Hon. James Masterson. This suit was brought for damages for injuries occasioned to appellee, through the gross negligence of the appellant on February 27, 1888, by the bursting of the engine with which he was working in appellant’s employment.

<p>Megligenee—Damages.—When an employe of a railway companyplaces himself, ■in disregard and violation of a rule of the company which is known to him, in a position which is dangerous, and personal injury to himself results which is caused in whole ■or in part by such violation of the rule, no damages can be recovered for.the injury.</p>

Error from Matagorda. Tried below before Hon. I. H. Dennis, Special District Judge. This is an appeal from a judgment or decree rendered December 7, 1888, confirming a report of commissioners of partition. The original decree of partition adjusting the rights of the parties was rendered June, 1887. Commissioners appointed under the decree made their report December, 1887.

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

<p>1. Parol Partition of Land.-—In support of the right of one holding under a parol partition of land it is competent to prove by parol that such partition had been made by the joint owners. It was also competent to prove by parol that a partition subsequently had of the same land under the orders of the Probate Court was so made by some of the parties because others participating in the partition had died.</p> <p>2. Title by Limitation—Break in Possession. — Where title is asserted by plaintiff by limitation, and the testimony tends to show possession within the time necessary for the existence of adverse possession in order to confer title, by one or more not in privity with the parties asserting title by limitation, it was proper for the court to instruct the jury that such possession broke the continuity of the possession asserted as title.</p> <p>3. Decree of Partition—Probate Court.—A decree made by a Probate Court of this State showing that it was made upon the report of commissioners based upon the consent of parties, and showing that the distribution was made among the heirs of their ancestor who owned the land, is competent, without showing the proceedings prior to such decree. ‘</p> <p>4. Admissions of Tenant Against Landlord.—Title to land by limitation may be acquired by one by adverse possession of it through another who is his tenant. The admissions of such tenant are incompetent against his landlord.</p> <p>5. Hearsay.—The declarations of one not in privity with the party against whom they are offered, although made while he was residing upon the land in controversy, are but hearsay and are incompetent.</p> <p>6. Ancient Instrument.—See testimony to circumstances attending an ancient instrument, which had been attacked by an affidavit of forgery, authorizing the admission of the instrument in evidence.</p> <p>7. Same—-Practice.—When the preliminary proof upon which the ancient deed is permitted to be read is disputed or is conflicting, it is proper for the court, under proper instructions, to submit the issue to the jury.</p> <p>8. Charge of the Court—Limitation in Tenancy in Common.—Where coverture was relied upon to avoid the statute of limitations, and such coverture applied only to a part (undivided) interest, and the extent of the interest was changed by purchase and by sale, the court in the charge should adapt the instructions to such interest and the changes therein. A failure to do so is error.</p>

Tried below before Hon. Wm. H. Stewart. This is an action by appellees on a policy of insurance issued to A. T. Glenn & Son by appellant on October 2, 1886, which was transferred to appellees after the destruction of the goods covered by it. Glenn & Son did business at the town of Buffalo, and prior to the issuance of policy in question had obtained three policies on-their stock of goods, each for $1000.

<p>1. Homestead. —Before the adoption of the Constitution of 1876 the homestead, under the statutes and decisions of the courts, was uniformly secured to the widow and children who were surviving constituents of the family against the claims of creditors after the death of -the head of the family, as fully as it had been done during his lifetime.</p> <p>2. Same—Descent.—After the death of the wife the husband died, leaving property consisting of a rural homestead and some personal property exempt during his life from forced sale. For thirty years before his death a widowed daughter had resided with him, and with her daughters had been partially supported by him. She was so living with him when he died. He had also three other adult children who did not live with him. Construing articles 1874,1993, 2003, 2335, Revised Statutes; the Constitution of 1876; article 1305, Paschal’s Digest; held:</p> <p>1. The Constitution exempts from forced sale the homestead of the family.</p> <p>2. It was not intended by the Constitution when it declares that the homestead “ shall descend and vest like other real property,” that it should be subject to administration in favor of creditors, and to malee void the legislation exempting and setting it aside to the survivor and other members of the family.</p> <p>3. It was the object of the Constitution to provide for the equal distribution of the homestead among the heirs of the owner when it shall become subject to distribution after the uses to which it is devoted have ceased.</p> <p>4. The homestead can not be disposed of in an administration where a constituent of the family survives who is entitled to participate in its occupancy otherwise than by partition among the heirs of the owner, if it becomes subject to partition before the close of administration.</p> <p>5. The same homestead exemption existing in favor of the head of a family during life is continued in favor of the wife or minor child, even if the sole survivor and the family should become otherwise extinct.</p> <p>6. When on the death of the owner of the homestead no constituent of the family survives, the exemption ceases, and the homestead becomes subject like other real estate to be sold to pay debts.</p> <p>7. The exemption from forced sale extended under the Constitution and laws for the benefit of the daughter as a constituent of the family, and the estate was not subject to administration on the application of creditors.</p>

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

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