Volume 77 — Texas Reports

Tried below before Hon. D. P. Harr. This is an appeal from a judgment for $614 in favor of Abbey against Shiner for rent for 3840 acres of land enclosed by defendant and used since February, 1887. The judgment was rendered October 29, 1887. The opinion sufficiently gives the facts.

<p>Presumption in Absence of Statement of Facts.—In the absence of a statement of facts in support of the judgment below it is presumed that every fact has been proved which under the averments in the petition could legally have been proved.</p>

<p>1. Tax on County School Lands—Case Adhered to.—In Daugherty v. Thompson, 71 Texas, 192, this court held that the school lands belonging to the several counties of the State were not subject to taxation so long as they remained the property of the county; and that the leasehold estate could not be taxed as the property of the lessee when they were held under lease from the county. This is adhered to.</p> <p>2. Injunction Restraining Sale to Satisfy Illegal Tax.—In Court v. O’Con-nor, 65 Texas, 334, it was held that it was not necessary for one who seeks to enjoin the collection of a tax wholly illegal to show that he had first applied for relief to the board of equalization. So also to restrain a tax assessed without authority of law.</p> <p>3. Equalization Board.—The function of the board of equalization is to correct errors in the valuation of property that has been properly assessed. It has no power to add to the rolls property not previously assessed, nor to take from them property which they embrace.</p>

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

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

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

<p>1. Right of Way of Railway Company—Statute Construed.—Article 4216, Revised Statutes, prescribing the rights, etc., of railway companies in the right of wag acquired by them, has no application to land in which a railway company owns an estate in fee, even though its track be built upon it.</p> <p>2. Same—Land Owned in Fee by Railway Company.—The ownership of land when the estate is a fee carries with it the right to use the land in any manner not hurtful to others, and the right to lease it to others and therefrom to derive profit is an incident of such ownership.</p> <p>3. Same.—No such rights exist in a right of way acquired by condemnation or by-a conveyance made by the owner which only conveys the right of way.</p> <p>4. Same—Definition.—The words “right of way,” if not defined, are expressive of the very nature of the right ordinarily held by railway companies in the lands over which their roads run—a right to use the land only for railroad purposes.</p> <p>5. Case in Judgment.—The Houston & Texas Central Railway Company owned in fee a strip of land upon which the railroad was built through the town of Manor. The railway company leased to appellant land upon the strip of land west of its depot. The leased land was occupied by appellant for storing its lumber. Suit was brought by another lumber dealer of the town, complaining that his business was obstructed and injured by the occupancy by defendant of the land along the track. Held, that no cause of action existed upon the alleged facts.</p> <p>6. Duty of Railway Company to Furnish Approach to Track.—If the railway company fails to furnish proper facilities to lumber dealers for removing lumber from the place where it is unloaded, as far as the railway company owns and controls the land, the injured dealer would have cause of action against the company, but not against a lessee of it.</p>

<p>Appeal from Olay. Tried below before Hon. B. F. Williams.</p> <p>A. K. Swan and J. G. Chesnutt, for appellants.</p>

<p>Appeal from Taylor. Tried below before Hon. T. H. Connor.</p>

<p>1. Attempt to Foreclose Lien in Justice Court upon Personal Property of Value over the Jurisdiction.—It is well settled that in suits to enforce a lien upon personal property the value of the property determines the jurisdiction of the court; that if the Justice Court did not have jurisdiction of the case, the District Court acquired none by an appeal. If the Justice Court did not have jurisdiction by reason of the value of the property upon which the lien was sought , to be enforced, the want of jurisdiction could not be cured in the District Court by an abandonment of the lien. Although plaintiff in the District Court may have dismissed so much of the action as sought to foreclose the lien, yet it was the right of defendant to rely upon the dilatory plea, and prove the value of the property, and thereby defeat the jurisdiction if the value exceeds the jurisdiction of the lower court.</p> <p>3. Same—Absence of Statement of Facts.—In absence of a statement of facts it will be presumed that such testimony was introduced in the trial court as would support the judgment appealed from.</p> <p>3. Liability of Sureties on Appeal Bond in Justice Court.— Revised Statutes, article 1689, provides that the bond on appeal froth a judgment in a Justice Court shall be conditioned that the appellant shall prosecute his appeal to effect, and shall pay off and satisfy the judgment which may be rendered against him on such appeal. It renders the sureties liable for any judgment that might be rendered against the appellant, although the judgment may have been reduced on appeal.</p> <p>4. Conclusions of Fact—Practice.-—The failure of the trial judge to file his conclusions, etc., when requested, will not be revised on appeal in absence of a bill of exceptions bringing up the question.</p>

<p>Appeal from Parker. Tried below before Hon. George A. McCall.</p>

<p>1. Common Source of Title.—When the plaintiff in an action of trespass to try title has proved that both he and the defendant claim from the same grantor, and that he has the superior title as emanating from that source, he has made a prima facie case. No other facts appearing, it is to be presumed that the defendant claims no other title. The effect of his claim is to assert that prior to the conveyance through which he derives his right the title was in the common source; and this is deemed sufficient to relieve the plaintiff from the necessity of proving that fact.</p> <p>2. Same—Case in Judgment.—Plaintiff exhibited a deed for the land in controversy, being one-third interest in a survey. He also read in evidence a junior sheriff’s ■deed for the same interest in the same survey. The sheriff’s deed conveyed to the defendant the land as having been seized and sold as the property of the grantor of plaintiff and his sister—heirs of Peter and Mary C. McGrael. It not appearing what interest was conveyed from the common source by the sheriff, field, that judgment was properly rendered for the defendant, the plaintiff not showing title nor a common source of "title.</p> <p>3. Same.—Nor would the fact that the sister had not been cited in the suit under which the sheriff sale was made alter the result.</p>

Tried helow before Hon. F. E. Finer. Appellant obtained a judgment against Werner on ¡November 5, 1886, on an indebtedness contracted by him and his deceased partner in the year 1884, and having had execution issued on said judgment and returned nulla Iona within the time prescribed bylaw, filed its petition, in the District Court of Cooke County on the 27th day of August, 1887, against appellees, to subject to its judgment a certain tract of land purchased and paid for by…

<p>1. Actual Settlers upon County School Lands.—An actual settler upon land is one who has actually established his residence upon it, and not one who has enclosed it and cultivated it, intending at some future time to live upon it.</p> <p>3. Same.—-The use of the word actual would seem to have been intended to prohibit the courts from extending the meaning of the word settlers by construction, and to confine the benefits of the provisions (Const., art. 7, sec. 6) to those only who come within the literal meaning of the term.</p> <p>3. Same—Case in Judgment.—A single man enclosed 160 acres of county school land and cultivated a part of it. He lived with his father, who lived upon an adjoining tract of land. The son sought to avail himself of the right to buy as an actual settler. .Held, that although not excluded because a single man, yet not being an actual settler his claim eouldi not be enforced.</p> <p>4. Possession in Good Faith.—See facts held not to show such possession in good faith as to make good a claim for improvements.</p>

Tried below before Hon. F. E. Piner. On the 5th day of August, 1887, the Gainesville National Bank and other creditors of Goldstein & Melasky sued out and had levied writs of attachment upon the entire stock of dry goods belonging to said Gold-stein & Melasky, they being at said time merchants doing business in Gainesville.

<p>1. Presumptions in Probate Proceedings.—When the record of an administration discloses the fact that the court, in the exercise of its jurisdiction over the subject matter, has transcended the limits prescribed by law, the presumption of regularity and of jurisdiction is repelled and no order made therein affords protection to a purchaser.</p> <p>2. Estate of Deceased Soldier of the Texas Revolution.—By the provisions of the Act of January 14,1841 (Pasch. Dig., art. 1398), administration was prohibited upon the estates of certain deceased soldiers to any person not showing himself entitled to the same as next of kin, or producing authority from the next of kin authorizing the administration. An application was made for letters of administration in June, 1851. The record showed the intestate fell at Goliad, March, 1836. No debts were shown to exist against the deceased, who was a transient person having no domicile in the State. Held, that such administration was without authority of law and void,'and that a purchaser at a sale made by such administrator took no title.</p>

<p>1. Tenant in Common — Trespass to Try Title. — Though in trespass to try-title brought by a tenant in common he alleges ownership only of an undivided interest, .he may as against a defendant who shows no title recover the entire tract on proof' of his undivided interest.</p> <p>2. Evidence—Heirship.—The fact that a nuncupative will was made devising a land certificate to the plaintiffs, with no sufficient evidence showing its validity and probate, will not preclude plaintiffs in trespass to try title from showing title through descent to land located under the certificate.</p> <p>3. Trespass to Try Title.—When the transcript shows that the plaintiff was not entitled to recover the entire tract of land sued for, and that the interest which defendants were entitled to recover through limitation is uncertain, a judgment for plaintiff' will be reversed and remanded.</p>

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

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

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

<p>Error from Wise. Tried below before Hon. E. E. Finer.</p>

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

<p>1. Injunction.—If the averments of a petition for injunction are of such a character as would make it the duty of the court to enjoin the defendant from instituting or conducting legal proceedings in Texas, it is a proper case for restraining him by sim ilar process issued by a Texas court from prosecuting like legal proceedings in the courts of another State. The courts of Texas may compel its citizens to respect its laws . beyond its territorial jurisdiction.</p> <p>2. Same.—When both plaintiff and defendant are subject to the jurisdiction of the court the plaintiff may obtain an injunction to restrain the defendant from prosecuting a garnishment suit in another State to subject to the payment of debt the plaintiff’s, wages, when no law exists in the State where the suit was begun which affords the protection given by the laws of Texas.</p>

<p>Error from Callahan. Tried below before Hon. T. H. Conner.</p>

<p>Trusts.—A deed absolute on its face but executed upon trust that the land should be reconveyed to the vendor on the payment by him of a stipulated sum vests title which can not be retained; after the money is repaid, as security for advances or other debts not specified in the trust. The vendor may enforce after repayment a reconveyance of the land, without regard to other indebtedness.</p>

<p>Error from Clay. Tried below before Hon. B. F. Williams»</p>

Tried below before Hon. Eugene Williams. The entry on the records of the Probate Court of Brazoria County appointing McGreal administrator in 1848, and to which reference is made in the opinion, was as follows: “This day came on to be heard the petition of Thomas J. Green, representing that his brother, Charles P. Green (who formerly resided in this county, and belonging to the firm of C. P. Green & Co., of which he is the surviving partner), died some time in the fall of…

<p>Appeal from Cooke. Tried below before Hon. D. E. Barrett.</p>

<p>Execution Sale.—A purchaser at execution sale when the execution issues in the name of one only of a partnership, and under a judgment in favor of the firm, acquires no title.</p>

<p>Appeal from Val Verde. Tried below before Hon. W. Kelso.</p>

Tried below before Hon. F. E. Finer. J. E. Coleman instituted this suit against L. J. Chaney, in the District Court of Denton County, Texas, for the purpose of rescinding an exchange of lands made by him and the said Chaney on September 3, 1886.

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

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

<p>1. Case Adhered to. — Ghilf, Colorado & Santa Fe Railway v. Baird, 75 Texas, 256, adhered to.</p> <p>2. Freight Contract by Railway Company—Limited Liability.—In the absence of a partnership or agency to bind one another, carriers over whose lines freight is to pass are but the agencies employed by the contracting carrier receiving the freight for through shipment upon such lines.</p> <p>3. Same—Ratification. — The mere receiving and forwarding freight delivered from a connecting line of railway is not evidence of a ratification of a through freight ■contract made by the railway company receiving the property from the shipper. The law compels such acts.</p> <p>4. Same—Joint Liability.—To show liability of a connecting line for damages to freight caused elsewhere than upon its line, something more must be shown than a freight contract for through shipment made by the railway company receiving the freight, and that it was shipped upon the route indicated by the contract.</p>

<p>Appeal from Grayson. Tried below before Hon. H. 0. Head.</p>

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

<p>1. Injunction Against Nuisance.—There is no doubt of the power of a court of equity to enjoin a threatened injury when it is made clearly to appear that without relief irreparable injury must result.</p> <p>3. Graveyard.—That a cemetery is not a nuisance per se would seem to be a self-evident proposition, and it is well settled by the authority of many adjudicated cases.</p> <p>3. Pleading—Injunction—Nuisance.—It is not enough for parties complaining of a nuisance simply to allege that particular consequences will follow from it; facts must be stated so that the court can see and determine whether the allegation is well fotfnded.</p> <p>4. Pleadings.—See allegations held insufficient to sustain an injunction.</p>

Tried below before Hon. P. M. Stine. Appellant P. A. Booker, plaintiff below, brought this suit against J. P. Hart, appellee, by mandamus to compel Hart, who was the county ■surveyor, to make surveys of land claimed by Booker to be vacant, upon which he had filed certificates. Parties claiming the land where the vacancy was alleged to be were made parties defendant.

<p>Appeal from Colorado. Tried below before Hon. R. H. Phelps, Special District Judge.</p>

<p>1. Limitation—Tax Deed.—A tax deed offered in evidence, duly acknowledged and recorded, as a basis for limitation, is admissible for that purpose without first proving that the land had been properly assessed, that before the sale the time for malting sales for unpaid taxes had arrived, that the land had been advertised for the proper time, or that the officer was legally empowered to make the sale.</p> <p>2. Evidence.—Receipts from the proper officer for taxes paid on land which identify the land by the proper abstract number, but not by the name of the grantee, the terminal letter of the grantee’s name being omitted, are admissible in evidence, leaving the question of the payment of taxes to the jury.</p>

Tried before Hon. P. M. Stine. The appellant Brown had in a former suit attached the property, which being sold under his judgment he became the purchaser. Before its removal from the premises O. F. & S. Y. Collins sought in the proceeding to subject the same property under distress warrant to payment of rent. Brown appeared as a claimant and gave bond.

<p>Error from Grayson. Tried below before Hon. H. 0. Head.</p>

<p>1. Removal of Cause to United States Court. —• Suit by Hardeman County •against Williams and Heed to cancel an alleged fraudulent purchase of the Hardeman County school lands, and for the recovery of the land. Williams disclaimed. Heed filed a petition for removal of the cause to the United States Court March 3,1887, alleging that he was a citizen of Missouri, and that the plaintiff was a citizen of Texas, that the amount in dispute exceeded $500 in value, and that the suit involved a controversy which is wholly between citizens of different States, and which can be wholly determined as between them. After the disclaimer by Williams the plaintiff amended, ■claiming damages. The land was worth about $20,000. Held, that it was error to •overrule the application, and to proceed to try the cause.</p> <p>3. Amount in Controversy.—The entire record may be looked to to ascertain the value of the matters in controversy. The application for removal to the United States Court having been made a few days after the enactment of the act of Congress increasing the amount in value as a condition of the right of removal, the allegation of value as over $500 did not affect the right of removal, it appearing from the record that the amount was sufficient under the statute as amended.</p>

<p>Appeal from Bandera. Tried below before Hon. T. M. Paschal.</p>

<p>1. Presentation, of Claim Against Telegraph Company.—Within sixty days plaintiffs presented a claim against the defendant, the telegraph company, for the “ sum of $50 actual and $5000 exemplary damages ” for negligence in failing to deliver a dispatch. Suit was brought for said sums. By amendment plaintiffs claimed $5000 actual and the same as exemplary damages. • A verdict was rendered for plaintiff for $500 actual damages. Held, that the plaintiff should not be prejudiced by his classification of the damages, and judgment upon the verdict was approved.</p> <p>2. Case Adhered .to.—Stuart v. Western Union Telegraph Company, 66 Texas, 580, adhered to.</p>

Error from Travis. Tried below before Hon. A. S. Walker. This was an action for damages for personal injury suffered by the defendant in error by colliding with an engine of the plaintiff in error at Corsicana, Texas. The passenger train of plaintiff in error had come to a full stop and had been at rest for several minutes north of and near the track of the Texas & St. Louis Railway.

<p>1. Ordinary Negligence.—The use of the terms “ ordinary man” and “ordinary business man ” in standards of comparisons, to illustrate ordinary care, criticised and condemned.</p> <p>2. Oases Adhered to.—City of Austin v. Kite, 72 Texas, 402, and Railway v. Beatty, 73 Texas, 592, adhered to.</p> <p>3. Fact Case—Want of Care, etc.—See state of facts-held as showing want of care on part of the injured party and due care on part of the railway company upon whose track the injury occurred.</p>

<p>1. Land Condemned to Public Use.—The rule that land taken by the public for a certain use can not be appropriated to another use, to the detriment of the owner, affords the only adequate protection of the citizen’s constitutional right to be compensated for the condemnation or use of his property for the public benefit.</p> <p>2. Grant to Public—Construction. —A grantor conveying a right to a town or city can prescribe the terms of his grant. If the grant be received it will be limited in extent by its terms.</p> <p>3. Same—Case in Judgment.—Appellants conveyed the right, “for street purposes only,” to the city of Sherman in a strip 50 feet in width through their lands. The city proceeded to sink artesian wells upon the tract; held, that the application of appellants for an injunction restraining the city from such use of the land should have been granted.</p>

<p>1. limitation—Part Payment.—Payment of a part of a debt under the statutes of limitation this State does not avoid the bar of the statute, nor are such payments the acknowledgment of the justice of the debt nor a promise to pay it which will have that effect.</p> <p>2. Assignment by Debtor does not Stop Limitation.—An assignment was made under the statute for the benefit of the creditors of the assignor. The trustee was empowered to convert the assets into money, and after payment of expenses to pay creditors pro rata. The holder of a note named as a debt in the deed of assignment after four years brought suit on the note. Limitation was pleaded. Held, that limitation upon the note was not suspended by the assignment, and that the action was barred by limitation of four years.</p>

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

<p>1. Garnishment of Debts Owing to Nonresidents.—Debts owed by resident citizens of the State to nonresidents may be reached by garnishment proceedings in the courts of this State. Such proceedings will give to the court jurisdiction to render judgment, after citation by publication, against the nonresident defendant and the garnishee. The payment under such judgment by the garnishee is conclusive against his nonresident creditor.</p> <p>2. Same—Citation by Publication.—Where garnishment proceedings are instituted and the garnishment is served npon one indebted to a nonresident, such nonresident may be duly cited by publication. Such proceedings will conclude the nonresident to the extent of the judgment in the garnishment proceedings.</p> <p>3. Tender After Suit.—A tender after suit will not relieve defendant from costs accrued prior to such tender. See facts.</p> <p>4. Costs to Garnishees. —If garnishees permit costs to accrue subsequent to the judgment they can not charge the funds in their hands with such costs.</p>

<p>Suit to Avoid Sheriff Sale.—A vendee of land sold at sheriff sale under such circumstances as to render the sale voidable can maintain an action to set aside the sale. The equity of the judgment debtor in the land after a fraudulent sale of it under execution can be sold by such debtor.</p>

<p>1. Actual Settler Upon County School Lands.—Counties, although having the legal title to their patented school lands, can not deprive an actual settler of his right to purchase the land occupied by him to the extent oí 160 acres.</p> <p>2. Same.—The county commissioners, after fixing the price upon the school land, should allow actual settlers the option to purchase.</p> <p>3. Same.—A purchaser from a county of its school lands occupied by an actual settler takes title subject to the rights of such settler to buy on the terms fixed by the county commissioners in the sale.</p> <p>4. Same—Trespass to Try Title—Pleading.—A purchaser from the county sued an actual settler for possession. The defendant pleaded not guilty. Held, in absence of pleading in defense, setting up the right of defendant as an actual settler, with an offer to purchase, that evidence of such settlement, etc., was no defense to the action.</p> <p>5. Case Adhered to.—Land Company v. Wood, 71 Texas, 460, adhered to".</p>

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

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

<p>1. Inadequacy of Price at Judicial Sale.—At a sheriff sale upon an execution for costs against a plaintiff in a suit to recover a tract of land, the land in controversy was sold for $55; it was worth $1200. In a suit to set aside the sale, held:</p> <p>1. That the inadequacy of price alone was not ground to avoid the sale.</p> <p>2. It is such inadequacy as to require the sale to be set aside if even slight irregularities attending the sale had been proved.</p> <p>2. Suit to Avoid Sheriff Sale.—In such suit a tax deed was introduced for the purpose of showing that the plaintiff had no title in the land. There were no facts in evidence showing authority for the tax sale. Held, that the testimony was irrelevant under the pleadings, but not sufficient ground for reversal, the trial having been before the court without a jury.</p>

<p>1. Disclaimer.—Suit for a tract of land imperfectly described in the petition. The defendant pleaded not guilty. An order of survey issued. The surveyor reported under the order with a sufficiently definite description. The defendant, after the report was filed, disclaimed. The cause was tried by the court without a jury, and judgment was rendered for the plaintiffs for the land, the judgment adding from the report to the description in the petition. A motion for new trial was overruled. Held:</p> <p>1. The withdrawing of the plea of not guilty by the disclaimer was an implied confession of judgment, having reference to the cause of action stated or attempted to be stated in the petition.</p> <p>2. After the disclaimer the defendant had the right to be heard on the trial to object to testimony showing title in plaintiffs to land not described in petition.</p> <p>3. It not appearing but that the judgment was for the land sued for, it will not be revised.</p> <p>2. Costs.—A disclaimer does not free a defendant from costs accrued up to the time of disclaiming.</p>

Tried below before Hon. Geo. H. Noonan. The goods of the appellee Charles Wolf were levied on by attachment sued out of Justice Court of Precinct No. 1 in Bexar County in the suit of Robert Carey & Co. against Emanuel Abrahams. The levy was made by Constable E. 0. Stevens (appellant), he having taken an indemnity bond from Robert Carey & Co. for $192. Charles Wolf brought this suit in the District Court of Bexar to recover of E. 0.

<p>Error from Wilbarger. Tried below before Hon. P. M. Stine.</p>

<p>Fire Insurance Policy—Hurricane. Suit on a policy containing the provisions: “(1) This company shall not be liable for any loss or damage by fire caused by means of a hurricane. (2) If the building shall fall except as the result of a fire all insurance of this company on it or its contents shall immediately cease and determine.” The fire occurred during or immediately following a severe hurricane which at least partially blew the house down. The evidence tended to show that the fire started from a lamp broken by falling timbers. Held:</p> <p>1. It devolved upon plaintiff to show that the fire did not occur from any of the excepted causes.</p> <p>2. Burden of proof was upon plaintiff to prove a loss, and also that it arose from causes insured against.</p> <p>3. It was error to refuse a charge, “ If you believe from the evidence that the fire was caused by a hurricane, then you will find for the defendant. A hurricane is a storm or wind of extraordinary violence—sufficient to blow down buildings."</p> <p>4. This issue was made by a general denial.</p> <p>5. It was error to charge, “If the jury found that the building as such was not destroyed by wind, but was destroyed by fire, then find for plaintiff.”</p>

<p>Appeal from Brown. Tried below before Hon. J. C. Randolph.</p>

Tried below before Hon. J. 0. Randolph. The character of this case will be seen from the opinion, in connection with the opinion in The Gulf, Colorado & Santa Fe Railway v. Dallas Dawkins, ante, 228.

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

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

<p>Practice in Supreme Court.—-One against whom a judgment by default has been rendered, with writ of inquiry, cannot be heard on appeal to object on account of error in admitting evidence which was not objected to on the trial.</p>

<p>Error from Grayson. Tried below before Hon. H. 0. Head.</p>

<p>1. Venue.—The unlawful seizure of goods is a trespass within the meaning of the statute (Rev. Stats., art. 1198, sec. 8), and the venue of an action for damages based on such unlawful seizure may be brought in the county in which the seizure occurred, either by an assignee for creditors who had title and right to possession or by his successor in the trust.</p> <p>2. Approval of Bond.—A district judge who removes an assignee for the benefit of creditors may approve the bond of the successor who is appointed by him.</p> <p>3. Appeal.—No appeal lies from the order of a district judge removing an assignee for the benefit of creditors and appointing his successor in vacation.</p> <p>4. Evidence.—One who sues for damages for the illegal seizure of goods under attachment, and who is not a party to the writ, is not bound by the return of the officer, hut may show what disposition he made of the goods, without reference to the return endorsed on the writ.</p> <p>5. Sale.—See opinion for facts showing a contract between the plaintiff in attachment and the assignee for creditors appointed by the debtor which passed no title to the property seized.</p> <p>6. Evidence — Trespass. —The ownership by purchase subsequent to wrongful seizure by the purchaser under attachment of goods which had been legally conveyed to an assignee for the benefit of creditors, can not affect the right of the assignee to recover in an action for damages based on the trespass committed by the illegal seizure under the writ.</p>

<p>Appeal from Milam. Tried below before Hon. Eugene Williams.</p>

<p>Appeal from Atascosa. Tried below before Hon. D. P. Marr.</p>

<p>Appeal from Parker. Tried below before Hon. A. T. Watts, Special District Judge.</p>

<p>Error from Wilson. Tried below before Hon. George McCormick.</p>

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

<p>Appeal from Kinney. Tried below before Hon. Winchester Kelso-</p>

<p>Appeal from Wilson. Tried below before Hon. W. H. Bust, Special District Judge.</p>

<p>1. Evidence — Certified Copy of Lost Deed. — An affidavit by an attorney of record that an original deed is lost and can not be procured is sufficient to authorize the introduction of a certified copy in evidence. A specific statement of the acts of diligence in searching for the lost deed is only necessary when made with a view to the introduction of parol evidence of the contents of the lost deed.</p> <p>2. Deed—Relation Back.—A deed made by one who had conveyed the land before to a trustee to secure the payment of a debt more than thirty years before, and which contains a recital that it was executed to discharge the debt, can not relate back to the date of the trust deed or be construed as executed in pursuance of its terms. A purchaser for value from the maker of such trust deed thirty years after its execution, though buying with notice of its registration, may safely presume that the debt it was made to secure was extinguished.</p>

<p>Error from Hamilton. Tried below before Hon. T. L. Nugent.</p>

Tried below before Hon. John C. Randolph. This is an appeal from a judgment below sustaining exceptions to the petition of appellant, suing as assignee of the Brownwood Drug Company, against the appellees, who were attaching creditors. The opinion sufficiently states other facts.

<p>1. Resulting Trusts.—To constitute a resulting trust the payment must be made at the time of the purchase and not subsequent.</p> <p>2. Subrogation.—The right of subrogation does not exist when payment is made without legal obligation, and without being required for the preservation of some right of property in the party paying. If, however, the payment be made at the request of the debtor under circumstances which would operate as a fraud if the debtor were permitted to insist that the security for the debt was discharged by the payment, then the party paying may be subrogated to the security as against the debtor. See opinion for-facts illustrating the rule^</p> <p>3. Landlord and Tenant.—When the relation of landlord and tenant is once established it attaches to all who may succeed the tenant immediately or remotely.</p> <p>4. Trusts—Limitation.—A purchaser of land who received a deed which recited that the consideration was evidenced by an unpaid note, appropriated trust funds in his hands belonging to a married daughter and her minor sisters to its payment on its. maturity. Up to the period of the purchaser’s death he declared that the land belonged to the children. Held:</p> <p>1. That the children were subrogated to the lien rights of the vendor.</p> <p>2. That no homestead right existed in his wife as against the rights of the children.</p> <p>3. That the purchaser could convey to the children the land in satisfaction of the lien.</p> <p>4. The purchaser having declared that he held under the children, no limitation could run in his favor against them.</p> <p>5. Evidence.—One having no interest in common with parties calling him as a witness, and who though nominally a party to the suit has no interest in the result, is competent to testify as to statements and admissions against his interest at the time they were made by a deceased person in possession of property in litigation against those holding under him as heirs, legatees, etc.</p>

Tried below before Hon. H. 0. Head. This suit was brought by the appellant, Mrs. Annie Williams, a widow, against appellee, in form of trespass to try title, and for damages. Plea of not guilty filed by defendant. The judgment was for defendant, and plaintiff appealed. The court filed conclusions of law and fact. There is no statement of facts. The court's findings are as follows: “1.

<p>1. Tax Collector.—When a default is shown in the accounts of a tax collector who has succeeded himself in office, if the default of one year is attempted to be made good by the appropriation to its payment of taxes collected on the next year’s account, and if the deficit so produced in the second account is in turn discharged by the application of moneys due on the next succeeding account, the default should be attributed to the first account. If the last account be not settled a wrongful application of payments to a former account may be corrected at the instance of the sureties on the last bond, who are entitled to have erroneous payments applied to discharging the account for the year to which they properly belong.</p> <p>2. Fact Case.—For facts exempting the sureties on a tax collector’s bond from liability, see opinion.</p>

<p>Tax Collector.—The accounts of a tax collector with the State, properly certified to by the State Comptroller, are prima facie correct. When a tax collector has served as such more than one term, and his sureties on the last bond being sued rely for a defense on the fact that tax money properly applicable to the tax collector’s account with the State for his last term was wrongfully appropriated to the account which the former sureties on the first bond were liable to make good, the burden of proof is upon them to show. it. See opinion for facts from which a wrongful appropriation will not be presumed.</p>

Tried below before Hon. H. 0. Head. This is an appeal from a judgment for $700 -recovered by appellee for personal injuries sustained in crossing a defective bridge in the city of Sherman. The opinion contains a statement of the facts.

<p>Appeal from McLennan. Tried below before Hon. Eugene Williams-</p>

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

<p>Appeal from Shackelford. Tried below before Hon. J. C. Randolph.</p>

<p>1. Sheep Inspector—Presumption.—In the absence of evidence to the contrary it will be presumed from an order of a Commissioners Court appointing a sheep inspector that the facts existed required by the Act of 1888 to authorize such appointment.</p> <p>8. Inspection Fees—Husband and Wife.—The law which confers on the husband the sole management of the wife’s property renders him liable under the Act of April 4, 1888, for inspection fees due for the inspection of her sheep, though the immediate supervision and management of the flock may have been entrusted to another.</p>

<p>Appeal from Grrayson. Tried below before Hon. H. 0. Head.</p>

<p>1. Fact Case.—See opinion for a statement of facts under which it was held that the verdict of a jury finding property subject to attachment should not be disturbed.</p> <p>2. Practice.—It is not error for the district judge after the return of a verdict to ask the jury for which party they intended to find, with a view to preparing a verdict in form.</p> <p>3. Delivery—Sale.—The sale of horses left at a livery stable by the owner is complete without actual delivery by the execution of a bill of sale, if they be placed under the absolute control of the purchaser.</p> <p>4. Trial of Bight of Property.—In trial of the right of property when the judgment is against the claimant, interest should be allowed upon the value of the property only from the date of the bond.</p>

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

Tried below before Hon. Wm. Kennedy. A full statement of this case would require much space, and would not tend to make more clear the opinion on the points decided.

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

<p>Appeal from Dallas. Tried below before Hon. Thos. J. Freeman, Special District Judge.</p>

<p>1. Contract—Husband and "Wife.—Contracts made by the husband in the name of the wife which affect only community property, she having no separate estate, are in contemplation of law the contracts of the husband.</p> <p>2. Pleading.—As against a creditor who has attached property conveyed by his debtor to a surety to secure him against loss on his suretyship, and burdened with a trust in regard thereto, such conveyance with possession and right to possession is sufficient to sustain the surety’s averment of ownership.</p> <p>3. Contract with Surety to Indemnify.-—As against such attaching creditor the surety is entitled to protection for the goods conveyed to indemnify him against loss to the extent of payments made by him as such surety.</p>

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

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

<p>Assignment for Creditors.—An assignment for the benefit of creditors was executed by one only of several partners, and which purported to convey the partnership and individual property of the members of the firm. Afterwards, and before its ratification by the other member of the firm, the property was seized under attachment by a creditor of the firm. The assignee gave claimant’s bond. In a trial of right of property, held:</p> <p>1. The assignment when executed was void, and was valid under the statute only from the date of its ratification by the partner who did not execute it.</p> <p>2. The ratification could not relate back so as to affect the lien of the attachment.</p> <p>3. To have been a valid assignment it should have conveyed all the individual property of each member of the firm which was subject to forced sale.</p> <p>4. The declaration of the ratifying partner made after attachment that the original deed of assignment was made under his instruction could not affect rights secured by attachment.</p> <p>5. They could only be affected by competent evidence on the trial showing the existence of power in the original maker of the assignment to act for each member of the firm in conveying his individual property.</p>

<p>Appeal from Parker. Tried belotv before Hon: Geo. A. McCall.</p>

<p>1. Certificate of Acknowledgment.—The failure of the officer to certify that the grantor executed the deed for the purposes expressed therein does not affect the legality of the certificate of acknowledgment.</p> <p>2. "Use of Certified Copy of Recorded Deed.—An affidavit of the loss of the original is a sufficient basis for the introduction of a certified copy from the record of such deed.</p> <p>3. Identity of Land Sued for.—See testimony insufficient to identify land sued for with that for which title was exhibited in evidence.</p> <p>4. Case Adhered to.—Catlett v. Starr, 70 Texas, 485, adhered to.</p>

<p>1. Public Street—Evidence of.—The city of San Antonio was proceeding to open up streets across lands of appellant. She obtained a temporary injunction, which on hearing was dissolved. The city failing to show a right to the proposed streets either by dedication, condemnation, or prescription, the injunction should have been perpetuated.</p> <p>2. Limitation Against Public Street or Road.—Prior to the Act of 1887 there was no statutory inhibition from a person acquiring title by limitation to land upon which a street or road had been established.</p> <p>3. Same. — See facts held sufficient under limitation of ten years to show title against the rights of the city to a public street.</p>

<p>Error from Guadalupe. Tried below before Hon. George McCormick.</p>

Tried below before Hon. T. H. Conner. - This suit involves title to a tract of land of 270 varas in width and lying north of the Hoxie and Stephens surveys. It is a location upon an alleged vacancy between said surveys on the south and the Bonham survey ‘on the north. The north line of the Hoxie and Stephens surveys is known; so the beginning or southeast corner of the Bonham, and also its northwest corner and its west line. Its southeast corner is on the Hoxie north line.

<p>1. Negligence—Contributing Causes.-—If an accident occurs from two causes, both due to negligence of different persons, but together the efficient cause, then all the persons whose acts contribute to the accident are liable for an injury resulting, and the negligence of one furnishes no excuse for the negligence of the other.</p> <p>2. Same—Case in Judgment — Turntable.—A child five years of age was injured at a turntable left unlocked, the property of the appellant railway company. The table was put in motion by other children of years of discretion, thus causing the injury. Held, that the negligence of the other children did not excuse the want of care on part of the railway company in leaving the turntable unfastened. A charge so stating was properly refused.</p> <p>3. Care of Child.—In determining whether contributory negligence in case of injury to a child exists the intelligence of the child must be considered, for a child’s care must be measured by its intelligence, whether it be actor or sufferer.</p> <p>4. Charge — Negligence. — It was proper to refuse a charge importing that the railway company was not negligent in leaving its turntable unfastened if its weight was such that it could not be moved by a child of five years of age.</p>

<p>Error from Wise. On motion to dismiss writ of error for want of sufficient bond.</p>

<p>1. Practice in Supreme Court—Appeal Bond,—Where there are several defendants and only part of them appeal against a judgment for the plaintiff, and the defendants not appealing are adversely interested in the appeal to those appealing, the appeal bond should be made payable to the defendants not appealing and to the plaintiff. See facts.</p> <p>2. Same.—In complicated cases where only a part of the losing parties appeal, the better practice is to make the appeal bond payable to all parties to the action who do not appeal.</p>

<p>1. Railway Alternate Surveys.—If the design in the Constitution of the State was to give the school fund three-fourths or more than one-half of the land granted to corporations, it is reasonable that such purpose would have been stated in uncontingent and unambiguous terms.</p> <p>8. Construction.—The narrow rule of arriving at the meaning of an instrument by reference alone to any one clause, when it includes others relating to the same subject, can not be allowed in construing any written instrument, much less the Constitution.</p> <p>3. Constitution did not Set Apart Undivided Half of the Entire Public Domain.—It is clear that the Convention and people creating the Constitution did not intend to appropriate an undivided one-half of the entire unappropriated public domain to the public school fund. Such act would have stopped the location of lands, as there would then have been no spot in the State unappropriated upon which to make locations. It is manifest that it was not intended that land locating should cease or be suspended, for it was indicated otherwise by the renewal of forfeited land certificates and the provisions requiring speedy location of all certificates.</p> <p>4. Location of Land Certificates Provided for.—Section 2, article 14, of the Constitution provides “that all genuine land certificates heretofore or hereafter issued shall be located, surveyed, or patented only upon vacant and unappropriated public domain. ” This anticipated the location of such certificates and assumes that there was unappropriated public domain upon which locations could be made, etc.</p> <p>5. Same.—So as to unexpired certificates and pre-emptions provided for.'</p> <p>6. Partition not Indicated in Constitution.—If the one undivided half of all the vacant public lands was vested in the school fund upon the adoption of the Constitution, then before certificate holders, etc., could locate at all a partition was necessary, segregating that owned by the school fund. We see no evidence that such partition or a suit therefor was contemplated, still less that a suit should be instituted for partition of every survey</p> <p>7. Same.—It is not held that a partition suit would be necessary, but held that if the State resort to such suit, unless specially relieved by law it must be governed by such rules in the same manner that other litigants are.</p> <p>8. Same.—Nor does it appear that any other mode of partition was contemplated, else it had been clearly expressed in the Constitution.</p> <p>9. Reservation.—Section 3, article 14, of the Constitution recognizes the power of the Legislature to grant land to railways, but directs “that no reservation of any part of the public domain for the purpose of satisfying such grant shall be made. ” It seems that the effect of a partition of the public domain into two parts in one of which the railway certificates could be located would be obnoxious, as a reservation was forbidden.</p> <p>10. Favored Objects of Legislation, etc.—There have always existed with the people of this State three prominent objects which through their Constitutions and laws they have worked to accomplish by means of the public domain. These objects were to secure immigration, promote education, and encourage the construction of railways.</p> <p>11. Construction. — The specific directions in the Constitution in regard to the University land ‘ ‘ set apart, ” that it should be ‘ ‘ designated and surveyed as may be provided by law, ” and to the Capitol lands, that ‘ ‘ suitable laws” be enacted to carry out the purpose, indicate that the Constitutional Convention did not consider that the general expression in the Constitution relating to the school land was self-executing; and it is inferred that had the intent existed that óne-half of the public domain should be preserved intact for the school fund it would have been clearly expressed.</p> <p>12. Alternate Sections.—The Constitution speaks of grants to railways only by the use of the words alternate sections, without defining the meaning of the words, or in any way explaining or defining how much or by what process land granted in that way was to be known or secured. This use of the.words would require a reference to existing legislation to ascertain what was meant by alternate sections, and showing how they were surveyed and to whom they belonged when surveyed.</p> <p>13. Same.—Interpreted by the existing laws the necessary construction of the Constitution in the use of the language “set apart and appropriated for the support of public schools all the alternate sections of land reserved by the State out of grants heretofore made or that may hereafter be made to railroads,” is that the school fund should receive one section and the corporation the other.</p> <p>14. Construction of Section 2, Article 7, of Constitution.—We are of opinion that its true meaning and intention is that all then existing lawful claims should be surveyed out of the whole body of unsurveyed public domain, and that alternate surveys for corporations, pre-emptions, and lands granted to counties for school purposes should be surveyed in the same way, until the Legislature had caused to be surveyed and set apart 4,000,000 acres for the University and new Capitol, after which these lands would be excluded from survey, and future surveys for any of the purposes enumerated would be confined to the unsurveyed portion of the public domain.</p> <p>15. Object of Grant of One-Half, etc.—We believe the object of the clause granting ‘' one-half of the public domain to the school fund” was to reach and hold beyond legislative control whatever portion of the public 'domain remained after the execution of the enumerated purposes.</p> <p>16. Duty of Legislature, etc.—Whenever and however the Legislature undertook to dispose of what then remained of the public domain after the satisfaction of the then acquired rights, the Constitution required a recognition of the school fund’s claim to one-half of such remainder.</p> <p>17. Modes of Segregation of School Lands.—The statutes recognize surveys in alternate sections as a mode of partition. The power given the Legislature at any time to provide for the sale of any part of the public land would enable a further partition. The Constitution entrusted the subject to the Legislature and provided no other method.</p> <p>18. Extent of Appropriation in Constitution to School Fund.—The Constitution did not appropriate, or intend to do so, the one-half of the whole domain, and in addition thereto one-half of the corporations’ alternate sections. Nor did it absolutely appropriate or intend that there should be appropriated a full one-half of the then unappropriated public domain for the school fund.</p> <p>19. Legislation.—Discussion of legislation upon the disposition of the public domain and public school fund subsequent to the adoption of the Constitution.</p> <p>20. Calculations as to Lands Granted, etc.—Examination of the facts bearing upon the disposition of the public land with reference to the school fund, showing what amount went to school fund.</p> <p>21. Protection of School Fund Left to Legislature.—If the Constitution left it for the Legislature to make the division of the public domain, subject alone to such rights and limitations as the Constitution itself recognizes, it results that what has been done in the premises must be held final and binding on the State. It will be conclusively presumed that through such division the school fund has acquired all of the domain that it was entitled to under the Constitution.</p> <p>22. Same.—No disregard of any mandate of the Constitution either by the legislative or executive departments, however often repeated or long continued, can be tolerated by the judicial department as a reason for a like disregard of it by that department.</p>

<p>Appeal from Shackelford. Tried helow before Hon. T. H. Connor.</p>

<p>1. Will—Probate Necessary.—A will is not admissible in evidence as such until shown to have been duly probated.</p> <p>2. Presumption of Probate.—Presumption of probate of an ancient will will not obtain until it be shown that the records of the proper court for its probate are lost or destroyed.</p> <p>3. Independent Executor, Power of.—Such executor has no power by agreeing upon the locality of a line to give away or abandon land belonging to the estate of his testator.</p> <p>4. Acquiescence.—If the true boundary line be doubtful or controverted', acquiescence of the parties in or their recognition of a particular line is evidence which should have great weight in determining the boundary, affording as it does a strong presumption that the line so recognized is the correct line; which presumption is strengthened by lapse of time. Floyd v. Rice, 38 Texas, 844.</p> <p>5. Same—Charge.—Where heirs sued for land and their acquiescence with a line made without authority was pleaded in defense, there being no evidence tending to show acquiescense by any but one of the plaintiffs, a general charge submitting such defense was error, as was a verdict based on that issue.</p> <p>6. Charge.—A charge defective in not defining acquiescence, while defective, is no ground for reversal.</p>

<p>Appeal from Comanche. Tried below before Hon. T. H. Connor.</p>

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

<p>Appeal from El Paso. Tried below before Hon. T. A. Falvey.</p>

<p>Appeal from Holán. Tried below before Hon. William Kennedy.</p>

Tried below before Hon. A. S. Walker. This was a suit by ex-Comptroller Brown against Sneed, Ms chief clerk, and his sureties to fix liability of the defendants upon their bond, which was the official bond of said chief clerk. Suit was filed January 14,1887, and alleged that judgment had been rendered at suit of the State against plaintiff as Comptroller and Ms sureties for an alleged deficit in the tax department in said office.

Tried below before Hon. J. M. Hall. On October 25,1885, appellants Scurlock & Rutledge sued in the District Court of Johnson County, Texas, one Doggett and Neely on four promissory notes, aggregating, principal andinterest, $1046.76, and $104.67 attorney fees.

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

<p>1. Depositions—Amending Defects by Officer.—Depositions were taken and returned; the return was in accordance with the statute. The jurat was defective, and without authority of the court, counsel for the party taking the depositions detached the answers and sent them to the officer, who having corrected the jurat returned the answers. Held, that such withdrawal, etc., were such irregularities as to be fatal to the use of the answers as testimony afterwards.</p> <p>2. Manner of Taking Depositions.—The statute intends to secure and preserve evidence of the correctness of depositions and of their freedom from being tampered with by the observance of the regulations prescribed, and not otherwise.</p> <p>3. Locative Interest—Custom.—Plaintiff sued for a locative interest in a tract of land, alleging an express contract. Held, that under such allegation it was error to admit in evidence the custom with land locators.</p> <p>4. Testimony Incompetent.—A surveyor was permitted to testify, over objection: ‘ ‘ I understood I was locating the scrip for Creager and Douglass; that the scrip belonged to Douglass, and that Creager had a locative interest in it.” Held, that tbe testimony was incompetent.</p> <p>5. Practice—Admission of Improper Testimony.—It must be assumed that every judge who has heard improper evidence, upon concluding that it should not have been admitted, is able to and does in fact discard it from his consideration when deciding the cause.</p> <p>6. Practice in Supreme Court.—In absence of testimony to support the plaintiff’s alleged cause of action, on appeal a judgment in his favor may be reversed and cause dismissed.</p>

<p>Appeal from Nolan. Tried below before Hon. William Kennedy.</p>

Tried below before Hon. T. A. Falvey. This is an appeal from a judgment against the claimant asserting ownership of “550 head of horses, consisting of horses proper, mares and colts, and 75 head of mules,” levied upon by the sheriff of El Paso County under an execution against one Wadlington. The affidavit and claim bond described the horses as to number, etc., as did the sheriff in his entry of the levy given above.

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

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

<p>1. Practice—-Several Defenses.—In a trial without a jury, in absence of conclusions of fact and of law, there being two grounds of defense, and it not appearing upon which issue the decision was made, incompetent evidence admitted upon one issue without which a finding for that issue could not have been had, is ground for reversal.</p> <p>2. Variance—-Misnomer.—A suit by publication against Mary E. Robinson and a judgment upon such citation would not bind Mary E. Freeman, although the former was the maiden name of the defendant before her marriage with D. C. Freeman.</p> <p>3. Surname of Wife.-The law confers upon the wife the surname of the husband upon the marriage.</p> <p>4. Self-Serving Declarations.-Evidence in relation to proceedings by the plaint-life as heirs in l85~, in which they recovered a land certificate in no way connected with Ihe litigation on trial, was incompetent as self-serv~ng in another suit as such heirs.</p>

Tried below before Hon. George McCall. Appellants’ brief gives the following statement of the nature and result of the suit. It is adopted, being correct: This suit was instituted by appellees on the 6th day of December, 1884, against appellants and H. Prince & Co., Crane & Trenchard, 1ST. & L. Wartelsky, T. R. Allen, sheriff, and H. L. Ward, clerk County Court of Wise County, Texas.

Tried below before Hon. Geo. McCormick. This is a suit involving the title to about 130 acres of land claimed by plaintiff to be part of the Moseley Baker league grant on the right bank of the Guadalupe River. The defendants insist that it was not included in the Baker grant; that although the Baker grant calls for the Guadalupe River for its east boundary, yet the surveyor by mistake took a slough or the old river bed for the river in running the east boundary line.

<p>I. Competency of Witness—Suit by Legatee.—The exception in article 3348, Revised Statutes, naming ‘ ‘ all actions by or against the hews or legal representatives of a decedent arising out of any transaction with such decedent,” etc., does not include ‘ ‘ legatees or devisees. ” In a suit by an heir or devisee the parties may testify without restriction.</p> <p>3. Wife’s Competency as Witness. —Where the husband is incompetent by reason of interest to testify, the wife also will be where the suit affects the community interest of the husband and wife.</p> <p>3. Consideration.—Under our statute all written instruments import a consideration. Rev. Stats., art. 4438.</p> <p>4. Impeaching Consideration. — The consideration of written instruments can only be impeached by sworn plea. Rev. Stats., art. 1365. Such plea only admits evidence attacking the consideration. The plea does not cast the burden of proving consideration upon the plaintiff.</p> <p>5. Failure of Consideration.—See testimony incompetent to negative the consideration of a note sued upon, being an effort to alter the note by parol evidence.</p>

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

<p>1. Commissions of County Treasurer.—That the County Court cashed county bonds, deposited the money realized in a bank, and drew out the money will not deprive the county treasurer of his commissions upon the money so realized and disbursed.</p> <p>2. County Funds. — The county treasurer is the legal custodian of the county funds. Orders otherwise by the County Court do not aSect his rights as treasurer.</p> <p>3. Commissions on Money Realized upon County Bonds.—In a contest by a county treasurer for commissions upon money realized upon the sale of county bonds the question of the legality of the issue of the bonds can not be raised by the county.</p> <p>4. Settlement of County Treasurer’s Account.—While the settlement of the account of a county treasurer on his going out of office is presumably a full settlement, the treasurer is not thereby estopped from proving that other items were in fact not included therein.</p> <p>5. Parol Evidence of Amount of Fees of County Treasurer.—It was not error in the trial court to permit the treasurer to testify that he received as such §600 a year. If the exact amount received had been material and in controversy, the records of the ■County Court would have been better evidence and could have been insisted upon.</p> <p>6. Hearsay —■ Practice.— The answers of a witness testifying by deposition to a question developed the fact that he testified upon information had from another. Held, that the testimony was hearsay and incompetent. The court properly excluded the answer, and also the same statements when brought out on cross-examination in answer to a cross-interrogatory. Such statements are not testimony.</p>

<p>1. Membership of Mutual Benefit Association—Power of Officers.—Although the certificate of membership of such association may provide that in the absence of payment of the membership fee it should be of no effect, and also prohibits officers, etc., from deviating from the rules of the association, still when the testimony authorized it it was proper to submit the issue whether the certificate had been issued on credit, and if so it would be valid in absence of payment of membership fee.</p> <p>2. Same—Admissions, etc., of Membership.—Receipt for an installment of annual dues, demand upon party for assessment being only binding or due from members, circulars including the party in list of members, are facts upon which the inference of the fact of membership might be drawn by the jury in opposition to other facts controverting such membership.</p> <p>3. Assessments.—An assessment was payable by a day given in the notice of the assessment. Held, that the beneficiary had the right to make the payment within the time designated. In this case the widow made the payment after her husband’s death but within the prescribed time. The husband held the benefit certificate.</p> <p>4. Fact Case.—See facts held sufficient to sustain a verdict in suit by widow whose husband held policy in a mutual benefit association.</p>

<p>Appeal from Brown. Tried below before Hon. J. 0. Randolph.</p>

Tried below before Hon. J. 0. Townes. This suit was brought February —, 1888, in District Court of Travis County, by Radam, the appellee, against Alff & Co., for alleged infringement of the trade mark “Microbe Killer ” used by plaintiff in his business as proprietor and dealer in a valuable medicine, by the use by defendants of the device “Microbe Destroyer” used by the defendants as a label upon a fraudulent imitation of RadanTs Microbe Killer.

Error from Clay. Tried below before Hon. J. A. Templeton, Special District Judge. On the 10th of August, 1886, trespass to try title brought by Steven Martin, plaintiff in error, against Joanna Cobb, defendant in error, for the John A. Scott 640 acres in Clay County.

Tried below before Hon. D. P. Marr. This suit involved the locality of the northwest line of the F. Breeding survey. The appellant, who was plaintiff below, claims under the Maria Eita Solis survey, made under a certificate to the Galveston, Houston & Henderson Eailway Company. This survey was made many years after the Breeding. The opinion collates the facts, and will be understood by reference to the map here given. [See next page.]

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

<p>1. Venue in Justice Court.—Makers of a promissory note for a sum within the jurisdiction of the Justice Courts are subject to the jurisdiction of a justice of the peace within the precinct of the payee who endorsed such note in suit against him as endorser and the makers of the note; so also if the note is payable to bearer.</p> <p>3. Plea in Abatement.—Such makers pleading to the jurisdiction of the justice in the precinct of the endorser when he and they are sued do not present a sufficient plea unless the jurisdiction over the endorser be also denied.</p> <p>3. Practice— Plea in Abatement.—The plea in abatement, even if good, is not a defense unless supported by evidence.</p>

<p>Appeal from Fannin. Tried below before Hon. H. 0. Head.</p>

Tried below before Hon. H. Teichmueller: This case was before this court at Austin Term, 1885. 64 Texas, 144. In the report on the former appeal and in the opinion here a statement of the facts is given.

<p>1. Party Wall—Use of Wall by Adjoining Owner.—Plaintiff built a house with one wall upon edge of his lot. The owner of the adjoining lot erected three walls, using plaintiff’s wall for the fourth, for a stable. Suit for use and damage to the wall. There being a conflict in the testimony whether defendant did anything more than simply use plaintiff’s wall to form part of the enclosure, it was error to refuse instructions:</p> <p>“1. If you believe from the evidence that the defendant did not join any of his buildings to plaintiff’s wall, and is not using plaintiff’s wall except as it may be adjacent to his own lot, Jie would not be liable for rent of such building. Defendant can only be made liable for rent of such of plaintiff's property as he may have taken into his possession.</p> <p>“2. The mere fact that plaintiff’s wall may be beneficial to defendant does not entitle plaintiff to rent or damages for its use. Before finding damages for its use you must believe that defendant has joined his building to said wall, or has built entirely up to said wall, or has said wall in actual use.”</p> <p>2. Rights of Adjacent Land Owners.—If one proprietor enclose his land, putting his fence upon his line, the owner of the adjacent land may avail himself of the advantage thereby afforded him of enclosing his own land without incurring any liability for the use of his neighbor’s fence; so of a wall of a house.</p>

<p>1. Contest of Election of City Marshal.—The statute (Rev. Stats., art. 367) prescribing the duties and powers of a city council declares that it shall “be the judge of the election and qualification of its own members.” The mayor and aldermen compose a city council. While the marshal is an officer of the city, he is not a member of the council.</p> <p>2. Same.—This power, which is all the grant of power on the subject, does not confer upon the city council the power to hear and determine a contest of an election for the city marshalship; nor does it include the power to enact ordinances for such purpose.</p> <p>3. Power of City Council.—The power of a municipal corporation or of a city council can not exceed that conferred by the city charter, and all ordinances must be subordinate thereto.</p> <p>4. Mandamus.—Mandamus refused when asked by a contestant for the city marshalship against the city council refusing to hear the contest, the city being incorporated under the general laws of the State.</p>

<p>1. Pleading—Necessity of Itemizing.—Suit for damages for the unlawful seizure under attachment of a stock of merchandise. The petition named a number of kinds of goods taken, without giving the number or value of the several items. The petition also averred “that it was impossible to give a better description.” Held, that exceptions that the property taken was not sufficiently described should have been sustained.</p> <p>2. Same—Excusing Absence of Description.—Where the circumstances are such that a party can not give an accurate description of his property he should in his pleadings state the facts that render it impracticable.</p> <p>3. Levy of Personal Property—Schedule.—It is the duty of an officer making a levy under an attachment to incorporate or annex to his return a specific description of the articles attached. From such return the defendant in attachment can obtain a description for use in suing for damages or other purpose.</p> <p>4. Practice.—The plaintiff should have alleged that the return of the officer seizing the goods could not be had, or that no description could be had from the records in the attachment suit, to excuse want of items in an action for damages for their seizure.</p> <p>5. Officer’s Return of Levy Conclusive.—The return of an officer making a levy is conclusive between the parties, and in an action by a defendant in attachment against the plaintiffs in attachment for damages for an illegal seizure the recovery is limited to value, etc., of the goods shown upon the officer’s return. In such suit it is not permitted to go outside of the return, and to recover for property not included in it by showing that additional goods were actually seized.</p> <p>6. Sheriff’s Return.—As between the parties to the action in which the return is made, it can not be attacked in a collateral suit, and the remedy of the party aggrieved by an incorrect return is by a direct proceeding to have it amended or by an action against the officer for a false return.</p> <p>7. Evidence Upon Issue of Exemplary Damages.—-Plaintiffs in suit for damages, actual and exemplary, for the wrongful seizure of their goods under attachment sued out by defendants, were entitled to prove upon issue of exemplary damages that they had made arrangements to replevy their goods which had been seized before, and that the agent of defendants knew of their arrangements and then secured another attachment upon their goods. It was also competent against plaintiffs to show large indebtedness of one of the firm suing for exemplary damages.</p> <p>8. Testimony too Remote.—It is incompetent against plaintiffs suing for exemplary damages for the wrongful seizure of their goods under attachment to prove that another creditor had made efforts to collect his own debt from plaintiffs without success. Such fact is too remote.</p> <p>9. Levy—Foreclosure.-—-While the levy and return of the officer making the seizure is conclusive, the judgment of foreclosure in an attachment suit is not, as the foreclosure may not extend to all the property seized.</p>

<p>1. Citation by Publication Valid in Suits for Partition.—The decisions to the effect that jurisdiction can not be acquired over nonresidents by publication merely of process so as to authorize the rendition of personal judgments against them have no application to suits to partition land.</p> <p>2. Citation Against Unknown Heirs.—The Act of November 9, 1866, authorizing citation against unknown heirs by publication for partition of land, was not repealed by the Act of August 13, 1870, nor by the Act of November 20, 1871.</p> <p>• 3. Same.—The 13th section of the Act of November 20,1871, authorizing ' ‘ the Governor to designate certain journals to perform and publish the county and judiciary printing and advertising of the judicial districts respectively in which such journals may be published,” etc., did not suspend the former laws on the subject until such selection was made and notice given.</p> <p>4. Costs in Partition Suits.—While a personal judgment for costs could not be rendered in such suits against nonresident defendants cited by publication so as to support an execution sale, still the court could provide for such costs. See practice indicated as within the power of the court.</p> <p>5. Case Followed.—Freeman v. Alderson, 119 U. S., 185, approved and followed.</p> <p>6. Limitation—Possession.—A possession of a party entering under a deed of a part of a large tract (200 acres of 2000 acres) is sufficient to put the statute into operation as to the entire tract described in the deed, other facts concurring.</p> <p>7. Same.—So the enclosure of land within a large pasture with many other tracts is such possession as will support the plea of limitation.</p>

<p>1. Assignments of Error.—“The court erred in overruling defendant’s general and special demurrers” points out no distinct error and is too general to require consideration.</p> <p>2. Practice—Charge.—A widow sued for the unlawful and malicious killing of her husband. By amended petition filed more than one year after her husband’s death the names of three adult surviving children of the deceased were given. One of the grounds of special exception overruled was that the rights of the children were barred because their suit had not been brought within twelve months after their father’s death. Held, that the court properly charged the jury that the children could not recover, their rights being barred.</p> <p>3. Suit for Malicious Killing.—The statute intends that but one suit be brought upon such cause of action. Want of proper parties plaintiff, however, must be met by objection for such nonjoinder.</p> <p>4. Argument of Counsel.—Counsel in reply to matters outside the record introduced by his adversary may discuss such matters. See example.</p> <p>5. Verdict not Excessive.—See facts where verdict for $6250 damages was sustained as not excessive.</p>

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

<p>Appeal from Archer. Tried below before Hon. R. F. Arnold, Special District Judge.</p>

<p>Bailment—Gift.—See facts evidencing a bailment of money, not a gift.</p>

<p>1. Construction of 'Agreements of Counsel.—The statement of one purpose for which evidence may be offered in an agreement touching a case pending would exclude evidence offered for any other purpose.</p> <p>2. Same — Case in Judgment. — Pending suit the parties made the following agreement: “ It is agreed between us that the plaintiff owns the "Willis West survey and 300 acres out of the north part of block 4, Gray league, and the defendants the remainder of block 4 south of plaintiff’s 300 acres. For the purpose of showing the true locality of the land either party may offer in evidence their deeds, or such deed as they may see proper, and any other fact explanatory bearing upon the true locality of such land.” Held, the court properly limited the issue to the locality of the land.</p>

<p>Appeal from Limestone. Tried below before Hon. Sam. B. Frost.</p>

Tried below before Hon. A. W. Moursund. Suit by appellant as assignee of W. P. Higdon, filed May 13,1887, against appellee Ben. F. Beeson as sheriff of Llano County and his sureties on his official bond for $910 damages for illegal seizure of a stock o'f merchandise and some cattle and horses by appellee under a writ of sequestration from County Court of Llano County in case of Texas Trading Company v. W. P. Higdon.

<p>1. Omission to Charge upon Limitation.—Appellant’s complaint that the jury was not charged upon limitations in a suit for breach of warranty of land is not sustained when the record fails to show evidence tending to establish adverse possession or that the charge was requested by him.</p> <p>2. Costs in Eviction Suit.—Suit on breach of warranty for purchase money and in addition for costs of court m the eviction suit wherein plaintiff lost the land. The costs were claimed upon an express promise, and such promise was proved. Held, no error on plaintiff’s recovery that he also recovered the costs, of eviction upon such express promise.</p>

<p>1. Correction of Mistake in Deed—Practice.—Action of trespass to try title for land described in the petition. The defendant pleaded not guilty, and asserted title in himself under the same vendor, and specially alleged that although the deed to plaintiff described the land sued for, that in fact the plaintiff did not own it, having bought a different tract which had been distinctly pointed out and identified. Held:</p> <p>1. If the field notes in the plaintiff’s deed from the common vendor, which was the oldest, do not correctly describe the land sold to the plaintiff, a correction of them can not be made in this suit.</p> <p>2. In cases of mistake in written instruments courts of equity will interfere only between the original parties or those claiming under them in privity.</p> <p>3. Defendant having bought with knowledge that the land had been sold by his vendor to the plaintiff was concluded by the older deed.</p> <p>4. The mistake, if one, could have been corrected by application to the courts by the vendor, or by the defendant if affected by the mistake, by a suit for that purpose with the proper parties before the court.</p> <p>2. Practice.—A defendant in trespass to try title, pleading specially title in himself, can not prove that the land was vacant.</p>

<p>1. Judgments—Presumption of Jurisdiction.—A domestic judgment of a court of general jurisdiction upon a subject matter within the ordinary scope of its power is entitled to such absolute verity that in a collateral action, even where the record is silent as to notice, the presumption, when not contradicted by the record itself, that the court had jurisdiction of the person also is so conclusive that evidence aliunde will not be admitted to contradict it.</p> <p>2. Same—Justice Courts.—It is not necessary for everything to affirmatively appear in the record of a justice’s judgment which is required to exist to confer upon it jurisdiction with regard to .the person or to the subject matter. But the authorities do not hold that the rule applied to other courts of general jurisdiction apply to Justice Courts; that where the record is silent on the subject jurisdiction will be conclusively presumed, and no evidence to the contrary will be heard.</p> <p>3. Same—Justice Judgment Attacked.—See facts where a judgment in a Justice Court was attacked, the record not showing service, by disproving personal service.</p> <p>4. Name of Grantee in Deed.—A deed made to a married woman by her name previous do her marriage, her identity being shown, is valid to convey the land.</p>

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

<p>1. Rejection of Lien by Administrator.—The refusal of an administrator to recognize a lien upon a part of the land claimed to be subject to a mortgage, the claim for money being allowed, did not authorize the holder of the secured claim to sue in the District Court to subject the entire land to the payment of the debt secured by the mortgage.</p> <p>2. Right to Sne Administrator on Rejected Money Claim.—Under the Revised Statutes it is only where a claim for money against the estate of a deceased person has been rejected by the administrator that the holder of the claim is entitled to bring an independent suit for its establishment. Art. "2028.</p> <p>3. Claim for Money—Lien.—A claim for money means literally the claim that a debt exists. A claim for a lien is something more—a claim not only that there is a debt, but also that a lien exists for its enforcement.</p> <p>4. Approval of Claim for Money. — Upon the approval of a claim for money against the estate the law classifies it with others, and the Probate Court, upon application of the holder of such claim, will make the necessary orders to enforce payment by sale of property which may then be held subject to such claim.</p> <p>5. Power of Administrator in Allowing Claims.—The power of an administrator extends no further upon claims presented to him than to allow or to reject; he can pass only upon the question of indebtedness.</p> <p>6. Jurisdiction of District Courts in Suits Against Estates.—The District Court has no jurisdiction in a suit by the holder of an approved claim seeking an order subjecting mortgaged lands to the claim upon the rejection of the lien in part by the administrator.</p>

Tried below before Hon. D. H. Scott. Appellants were plaintiffs below and brought suit of trespass to try title for 320 acres of land patented to John D. Black against these appellees, in the District Court of Fannin County, on-day of-, 1871. December, 1884, appellants filed a supplemental petition stating that the unknown heirs of Welbourne Smith, deceased, were necessary parties and cited them by publication.

Tried below before Hon. A. S. Walker. Appellants L. E. Griffith and J. H. Muckleroy brought this suit in the District Court of Travis County against the appellee J. H. Sauls in trespass to try title to 589 acres of land described in appellants’ original petition. ■ The appellee Sauls answered by general denial, pleas of not guilty, and statutes of limitations of three and five years.

<p>Appeal from G-ravson. Tried below before Hon. H. 0. Head.</p>

Tried below before Hon. L. W. Campbell, Special District Judge. This is a suit by J. T. Townsend, appellee, against H. Johnson, appellant, on a note executed by appellant (defendant below) to A. Lawrance or bearer for $133, on January 17,1884, and bearing 10 per cent interest per annum from date, and to foreclose vendor’s lien upon land described in the petition.

Error from Coleman. Tried below before Hon. J. C. Randolph. This suit was brought by W. F. Murray and J. F. Taylor against C. Fountain and J. J. Jackson. The petition shows that plaintiffs and J. J. Jackson were sureties on two promisory notes for C. C. Fountain, the principal; that plaintiffs paid off and discharged the notes after their maturity.

<p>Appeal from Collin. Tried below before Hon. H. 0. Head.</p> <p>The opinion gives a statement.</p>

Tried below before Hon. P. M. Stine. The appellees J. H. Van Hook and V. A. Van Hook instituted this suit in the District Court of Archer County on the 5th day of October, 1886, against the appellants J. D. Lasater and T. M. Coulson, to recover of them 160 acres of land, described by metes and bounds, and being a divided part of a tract of 640 acres of land situated in Archer County, Texas, and granted to Matthew Pickens.

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

Tried below before Hon. W. A. Blackburn. .This is a second appeal. In the report of the first (67 Texas, 627) will be found a statement of the case, save that after the reversal the appellants here pleaded that in the purchase by appellees of Denny they expressly waived a warranty, and that the price was reduced materially upon their taking such a deed.

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