Volume 78 — Texas Reports

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

<p>1. Dissolution of Partnership. — Any one of a business firm may dissolve the firm at any time provided it is done under such circumstances as would hot wrong or defraud his copartners. He may do this by explicit notice to the other partners in any way, so it is done, and he may fix a time in the near future when the dissolution is to take effect. It is not essentia] that all the partners consent to the withdrawal of one who by such withdrawal dissolves the firm.</p> <p>S. Notice of Dissolution to Customers.—A bank with which a firm of wool and hide dealers had no business, and to whom it had not extended credit, was not entitled to notice of the dissolution of such firm, and in taking an obligation in name of the firm the bank was charged with the duty of knowing who composed the firm when taking-such obligation.</p> <p>3. Authority of Member of Firm.—A member of a firm would have no power, in absence of express authority from the other members, to sign the firm name to a note given for the debt of another.</p>

Tried below before Hon. J. V. Cockrell. ■ In the year 1880 Thomas Barron, son of appellee, acting as agent of appellee, purchased for appellee from one Lacy, in Ellis County, Texas, two American jacks of the value of §525 each, one of which is the animal in controversy in this cause.

<p>. Failure to Prosecute Appeal.—A motion to strike out the brief of appellant was sustained at Austin Term, 1888, and time was extended for filing briefs. At Austin Term, 1890, no briefs were on file. Held, that the appeal was not prosecuted and case was dismissed for want of prosecution.</p>

Tried below before Hon. Eugene Williams. Suit by Oliver in trespass to try title against Charles Russell and S. M. Swenson for one undivided half of 450 acres of land, patented 28th April, 187.5, to J. B. Tong, by virtue of his donation warrant No. 539. ' Defendant pleaded not guilty.

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

Tried below before Hon. G-, H. Noonan. An outline statement of the nature and result of the suit is given from the brief of appellees.

<p>Appeal from Clay. Tried below before Hon. J. A. Templeton, Special District Judge.</p>

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

Tried below before Hon. Geo. M. Aldredge. On March 10, 1886, appellant filed its suit against appellees in the District Court of Dallas County, alleging that on February 28,1884, the defendant Powell executed to plaintiff his promissory note for 84253.94, payable to plaintiff’s order twelve months from said February 28, 1884, said note reciting on its face that it was given for the payment of printing presses, ehgine, type, and material, and was secured by a joint note for…

<p>1. Pleading—Same Cause of Action.—Plaintiff sued for value of 250 bales of cotton which had been delivered to defendant and not returned on demand, the property of plaintiff. After two years plaintiff by amendmeht alleged that of the 250 bales of cotton he had deposited three, and that by purchase he had become the owner of the others. The defendant pleaded limitation of two years to the amended petition. Held, that the cause of action relied upon in the amended petition was the same declared on in the original.</p> <p>2. Pleading—-Evidence in Rebuttal.—Action for value of 250 bales of cotton owned by plaintiff and detained by defendant. The defendant pleaded that the cotton had been destroyed by fire without negligence on its part. Held, that this allegation of absence of negligence could be rebutted by the plaintiff by affirmative testimony showing negligence of defendant without pleading it. Revised Statutes, article 1917, provides that it shall not be necessary to deny any special matter of defense pleaded.</p> <p>3. Care of Compress Company—Ordinary Care.—That the compress company was required to use only ordinary care and prudence for the safe keeping of cotton stored with it is well settled. Whether such care was exercised in a given case must depend upon the testimony upon the subject.</p> <p>4. Fact Case — Negligence. — See facts held to prove want of ordinary care on part of the compress company for cotton deposited in its care and lost by fire. From the facts a judgment for the loss sustained.</p>

Tried below before Hon. J. M. Hall. This suit was brought by W. II. McDonald, appellee, against O. T. Lyon, appellant, September 29, 1885. On October 1,1887, plaintiff filed his second amended original petition, alleging ownership in fee simple on August 16, 1882, of a certain lot of land in Hillsboro, Texas, described in exhibit A attached to his petition.

<p>Appeal from Fannin. Tried below before Hon. E. D. McClelland.</p>

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

Hamilton. Tried below before Hon. T. L. Hugent. Appellees brought suit in the Justice Court of Pre'cinct Ho. 1 of Hamilton County, on the 4th day of February, 1886, against appellants on an account claiming an indebtedness against them in the sum of $175 on account of a sale alleged to have been made by them as agents for appellants of the Haley place off the Green De Witt survey. The amount of such sale was $3500, the amount claimed by appellees being 5 per cent thereof.

Tried below before Hon. L. A. Crane, Special District Judge. From the following‘maps the opinion can be understood. The first is one made by a surveyor who testified as witness and had surveyed the Crane and surrounding surveys. The second map includes the subdivisions sold, and also the Roberts surveys made south of the supposed south line of the Crane.

Tried below before Hori. J. M. Hall. The appellee A. Schluter brought this suit in the District Court of Johnson County October 11, 1886, against J. L. D. Louder, George Etter, Thos. Gray, A. J. Louder, J. S. Hutchins, and Mrs. M. B. Louder, wife of J. L. D. Louder, to recover 3,213,111 square varas of land located by virtue of the headright certificate of G. B. Jemison, and patented to his heirs June 10,1851.

Tried below before Hon. Geo. McCormick. This was an action of trespass to try title for 1280 acres of land in Guadalupe County. The defendants pleaded not guilty and limitation of three and five years. The contention of the parties as given in the brief of Mr. Neal, of counsel for appellees, is here given: “The plaintiffs’ claim that their grandfather Michael Erskine deeded to them the land in controversy, which is situated in Guadalupe County.

<p>1. Husband’s Rights Over Common Property After the Wife’s Death.— After the death of the wife the husband has the right to administer the community property for the payment of community debts without interference on part of her legal representatives.</p> <p>8. Same.—Upon the death of the wife the husband occupies the relation of a surviving partner in an ordinary partnership.</p> <p>3. Injunction.—An administrator of a wife can not by injunction control the action of a surviving husband in his administration of the community property. Such control may be directed as to the separate property of the wife by her administrator.</p> <p>4. Heirs of Wife.—Children and heirs of the wife interested in the community property can by injunction prevent the father from applying the community property., to other uses than paying the debts of the community.</p> <p>5. Joinder of Causes of Action.—A surviving husband, there being minor children of the marriage, ponveyed in trust to secure his own debt a stock of cattle belonging in part to the separate estate of his wife and in part community, in fraud of the administrator of the wife and of the minor children. The two causes arising from the same act may be joined.</p> <p>6. Final Judgment.—In the suit to enjoin the sale of the mortgaged cattle the petition made parties defendant the trustee, the beneficiary, and the mortgagor. The latter was not served with citation nor ever noticed in the subsequent proceedings. Held, that the case stands as if discontinued as to him. He is, however, a proper party and should he served with citation.</p>

Tried below before Hou. W. A. Blackburn. The opinion sufficiently gives the facts. The only question was one of boundary.

<p>Appeal from McLennan. Tried below before Hon. B. W. Rimes.</p>

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

<p>1. Practice—Motion for New Trial. — Where a motion for new trial is based upon an erroneous verdict, the grounds upon which the verdict is attacked as contrary to the evidence should be distinctly stated.</p> <p>2. Homestead—Pacts.—See facts held sufficient to support a v.erdict establishing homestead rights in property designated as such, but not in actual occupation at the levy of an execution.</p> <p>3. Instructions—Homestead.—See instructions held sufficient upon the issue of the existence of the homestead at the levy; also see special instructions properly refused.</p> <p>4. Practice — Irrelevant Testimony. — The admission of irrelevant testimony not shown to have influenced the verdict is no ground of reversal.</p>

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

<p>Appeal from Cooke. Tried below before Hon. D. E. Barrett, Special District Judge.</p>

<p>Appeal from Cherokee. Tried below before Hon. James I. Eerkins.</p>

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

<p>1. Judgment Lien — Abstract for Record. — Article 3155, Revised Statutes,, prescribes what the abstract shall contain, but does not require any particular form. Any certificate including the essential facts required in the article should be sufficient. See certificate held sufficient.</p> <p>2. Indexing Abstract.—The statute does not require that the clerk certifying to-the record of an abstract of a judgment shall also state that the same has been duly indexed, in order to fix a lien.</p> <p>3. Index—Names of Parties.—The statute (Revised Statutes, article 3158) prescribing that the names of each of the parties to a judgment shall appear upon the in-</p> <p>‘ dex is not complied with by the insertion of the firm name under which the defendants appear in the judgment. The firm name alone appearing, such registration is fatally defective.</p>

<p>1. Indexing a Requisite to Judgment Lien.—The statute prescribing that the “index shall show the name of each plaintiff and of each defendant” (article 3158, Revised Statutes), it is not complied with when the full names of the plaintiffs were not given, and the firm name alone of the defendants was in the index.</p> <p>2. Case Adhered to.—Nye v. Moody, 70 Texas, 434, adhered to.</p> <p>3. Testimony Irrelevant.—-Against the title of a son to town lots bought by him the declarations of his father prior to the purchase were irrelevant, and properly excluded. So was testimony to correspondence by the father prior to the purchase by his son with reference to his own purchase, unless supported by testimony tending to connect the father with the purchase by his son.</p> <p>4. Separate Property.—See testimony held insufficient to establish the wife’s, separate property.</p>

<p>Appeal from Shelby. Tried below before Hon. James I: Perkins.</p>

<p>Appeal from Dallas. Tried below before Hon. R. E. Burke.</p>

Tried below before Hon. James I. Perkins. Appellees W. G-. Paxton and wife brought this suit in the Distinct Court of Shelby County, Texas, against the appellant Abe Mayers, and subsequently brought suit against the defendants Rebecca and James Silas for the same land, and the two suits were by order of the court consolidated.

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

Tried below before Hon. Sam. B. Frost. This is an appeal from a judgment for $7000 rendered in the District Court of Navarro County against appellants, receivers of the Houston & Texas Central Railway Company, and in favor of J. M. Scales and his wife R. S. Scales, for damages for negligently causing the death of N. E. Scales, the son of plaintiffs and an employe of the defendants. The deceased at his death was 24 years of age.

<p>1. Landlord and Tenant—Ejectment by Landlord.—In an action of ejectment it is sufficient for a landlord who is suing Ms tenant to produce Ms lease, and that estoppel closes the mouth of the defendant to call his title in question. As a general rule a tenant can not dispute his landlord’s title, but where it is the purpose of the action not only to recover possession but to establish title or to have partition, where the decree sought will not only give possession of the land but by estoppel settle the title to it, the rule does not apply, and in such case the defendant may prove that he owns the superior title.</p> <p>2. Same—Practice.—When in trespass to try title the plaintiff proves that the defendant had attorned to him and had not subsequently surrendered the possession, it devolves upon the defendant to prove a superior title with which he is connected.</p> <p>3. Certificate of Acknowledgment — Registration.—A certificate that “this day personally appeared Jacob Presley to be the person whose name is subscribed to the foregoing instrument and acknowledged,” etc., does not conform to articles 4809 -and 4312, Revised Statutes, and is fatally defective.</p>

<p>Appeal from Hood. Tried below before Hon. 0. K. Bell.</p>

Tried below before Hon. P. M. Stine. This was an action of trespass to try title, brought December 16, 1887,. in the District Court of Clay County by George W. Hill, appellant, againstajopellees to recover 2043 acres of land in Clay County, located by virtue-of headright certificate No. -fir issued to the heirs of Eliza A. Farris for one league and one labor of land. The plaintiff relied upon a location and survey under this certificate and owership of it.

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

Tried below before Hon. P. M. Stine. This was an action of trespass to try title, brought January 21,1889, in the District Court of Clay County by appellant L. 0. Barrett against appellee the Henrietta National Bank. The appellant L. C. Barrett sought to recover 153 acres in Olay County, all of the southeast quarter of Texas & New Orleans Bailroad Company section No. 2, patented toE.

<p>Appeal from Tarrant. Tried below before Hon. R. K. Boykin.</p>

<p>1. Approved Claim Against an Estate.—After the close of the term of the Pro-hate Court at which a claim hy an administrator of an estate against it has heen approved, the Probate Court has no power to set aside such claim unless such approval was obtained by fraud or the court was without jurisdiction.</p> <p>2. Immaterial Issues.—The trial court having found as a fact that there was no fraud used hy the administratrix in obtaining the approval of her claim by the Probate Court, such finding under the law disposed of the case in her favor. Other matters were immaterial. Thegroundsof attack were that the claim was unjust, andthatithad heen allowed without notice to the complainants, and that they did not know of the action of the court until after its term ended.</p>

Tried below before Hon. Anson Rainey. The following statement accompanies the opinion: This suit was brought by appellee J. M. Dudley against appellants H. S. Easton, Charles Dillingham, and James Rintoul, receivers of the Houston & Texas Central Railway Company, alleging that J. T. Bell, agent of appellants at Ennis, on June 33, 1888, agreed with plaintiff to furnish him six cars for shipment of 131 cattle on the next day at 3 p. m., plaintiff agreeing to deliver the same…

Appear from Olay. Tried below before Hon. P. M. Stine. This is an appeal from a judgment in the court below recovered by Turner, the appellee, for $946.32 and costs against John Gr. James, administrator of the estate of W. H. Boone. The suit was for an attorney fee stipulated between Turner and Mrs. Mary A. Boone, widow of the deceased, and while as surviving widow she was administering the community estate. The husband died in December, 1882.

<p>1. Special Defense in Trespass to Try Title.—In an action of trespass to try title the defendant pleaded not giiilty, and further alleged the purchase of the lands under trust deeds made to secure a debt not all satisfied, with prayer for equitable relief against other lands, in event plaintiff recovered. Held, that by such allegations the defendant was not precluded from proving title through other sources.</p> <p>2. Corporators—Corporation.—A conveyance of land by partners in business to a corporation of which the members of the firm became the only stockholders passes title to the corporation, the stock being a consideration for such transfer.</p> <p>3. Judgment Lien—Sale.—A judgment lien subsequent to the conveyance to a corporation by members of a partnership constituting the stockholders in the corpora-¿ion, and a sale thereunder by virtue of a judgment against the partnership, would pass no title against the corporation.</p> <p>4. Fraudulent Conveyances. — While a conveyance by a partnership firm to a corporation if made with specific intent to defraud creditors may be set aside, still such transfer to the corporation can not be treated as a conveyance not for a valuable consideration and therefore as fraudulent merely upon that ground.</p>

<p>1. Order Reinstating on Payment of Costs.—An order that the “cause be reinstated on the docket upon the condition of plaintiff paying all costs accrued” operates to tax the plaintiff with the costs and is not conditional upon the prepayment of the costs.</p> <p>2. Same—Case Adhered to.—Fenn v. Railway, 76 Texas, 380, adhered to.</p> <p>3. Pleading—Exhibit.—In a suit upon a foreign judgment, if it be properly described in the petition it is not necessary that a copy of the judgment be made an exhibit or copied into the petition.</p> <p>4. Depositions—Practice.—It being in issue that the defendant sued upon a foreign judgment had not been personally served in the original suit, depositions of the officer who made the return of personal service were taken, and in reply to an interrogatory of plaintiff testified: “1 have known him (defendant) about eighteen years and</p> <p>had very friendly acquaintance with him.” On cross-examination the witness was asked, “What was the personal appearance of the man you served as R. T). Hall? What is the personal appearance of the defendant?” The witness answered, “ Ilis personal appearance was a man of medium height, dark complexion, and long dark whiskers.” The defendant moved to suppress the deposition because no answer was made to the question, “ What is the personal appearance of the defendant?” It appearing that the defendant was examined in his own behalf before the jury, held, that the motion to suppress the deposition was properly overruled.</p> <p>5. Foreign Judgment.—If the court had jurisdiction over the person of the defendant the judgment imports absolute verity and precludes all further examination, whether as to the form and manner of the service or of the rate of interest allowed in such judgment.</p>

Tried below before Hon. P. M. Stine. The statement made in brief of appellant, conceded to be substantially correct, is given. This was an action originally brought in the District Court of Clay County on the oth day of February, 1887, by John T. Craig as assignee of C. W. Israel & Co., against J. W. Welborne and R. D. Welborne, defendants, upon a certain note dated October 1, 1885, payable four months after date to 0.

<p>1. Garnishment, form of the Writ—Statutes Construed.—Construing articles 186 and 188, Revised Statutes, it was intended by article 186 to prescribe the essential elements of the writ of garnishment. Any additional recitations, averments, or commands appearing in the form contained in article 188 were intended to be merely directory.</p> <p>2. Same.—It was error to sustain exceptions to a writ of garnishment upon the ground that it did not recite the amount of the indebtedness as claimed against the original defendant.</p>

Tried below before Hon. P. M. Stine. The statement is adopted from brief of appellant. W. R. Curtis, appellant herein, on the 15th day of July, 1885, instituted suit in the District Court of Clay County against one R. P. Wells, a resident of Missouri, to recover the sum of §3135, which appellant claimed was due him by said Wells on a certain note for §13,326, which appellant and said Wells had signed together as sureties for one B. Z, Bowers.

<p>1. School Lands, Withdrawal from Sale.—Under the laws in force October 2, 1882, the Commissioner of the General Land Office had the power to withdraw school lands from market upon discovering that the tabulated reports as to value, etc., for the county where the lands are situate were erroneous. Act of April 6, 1881, Laws 17th Leg, 119.</p> <p>2. Application to Purchase School Lands Withdrawn.—When it was shown that the school lands in Crosby County had been withdrawn from market by the Commissioner of the General Land Office any application to buy such lands while so withdrawn was of no effect.</p> <p>3. Cases Adhered to. — White v. Martin, 66 Texas, 342, adhered to in holding that section 7 of Act of April 14, 1883 (Laws of Eighteenth Legislature, page 106), did not protect the rights of an applicant to purchase who had only made application and had done nothing more at the time the lands were withdrawn from sale by the Act of February 3, 1883.</p> <p>4. Dormant Equities—Actual Settler—Cases Adhered to.—If a settler whose right to purchase had become dormant, and whose equitable claim is renewed by statute, within the time specified in the act restoring vitality to his claim shall comply with the law for acquiring the land upon which he is a settler before the legal title to the land passed from the State to another, the right of such settler to the land so acquired becomes perfect; all efforts by others by location or to purchase are defeated.</p>

<p>Appeal from Robertson. Tried below before Hon. John N. Henderson.</p>

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

<p>1. Opinion of Nonexpert.—A witness was asked, “Why was it the water of the Bosque did not flow in 1887 as it did formerly?” To which the witness replied, “The railway obstructed it.” This witness was not an expert, but he had testified to actual knowledge of the facts—of the water flow before and after the railway had been built— was present at the flood causing the damage in controversy. Having given the attendant circumstances his opinion as above was admissible.</p> <p>2. Irrelevant Testimony. — That lands above and below the injured lands the subject of litigation had suffered by the overflow, although the disturbing cause complained of was not present, is not competent to negative the testimony of witnesses that by the embankment of the railway the waters had been collected into a culvert and the increased flow caused thereby had washed away the soil and injured the crops upon which the current was thrown. The exclusion of the testimony was proper.</p> <p>3. Practice—Bill of Exceptions.—Where the ruling of the court in sustaining exceptions to a question asked a witness is sought to be revised the bill of exceptions must fairly show what it was expected would be the answer of the witness. See example.</p> <p>4. Charge.—Where a charge sufficiently submits an issue to the jury it is proper ■to refuse an instruction substantially covering the same grounds.</p> <p>5. Testimony to Damages. — See facts held ample to sustain a verdict for the amount given as damages.</p>

<p>1. Actual Settler—Power of Land Board.—Under Act of April 13, 1883 (Laws of Eighteenth Legislature, page 85), the Land Board had the power to inquire into and to determine whether or not the facts actually existed upon which an actual settler claimed the right to purchase.</p> <p>2. Same—Declaring Forfeiture.—Subject to the right of an aggrieved party to appeal to the courts for redress, the Land Board had the right to declare a purchase forfeited in favor of another.</p> <p>3. Same—Fact Case.—See facts where the claim of a party to a tract of school land as an actual settler was properly annulled by the Land Board upon the ground that the claimant was not an actual settler when the land was awarded him, nor had he settled upon it within the time required, having in fact resided during the entire period in another county.</p>

<p>1. Justice of the Peace—County Officers.—Oounty officers as in article 705, Revised Statutes, are defined in article 706, and do not include justices of the peace.</p> <p>2. Office Rooms for Justices of the Peace.—Counties are not responsible for office rent incurred by justices of the peace when offices are not furnished by the county commissioners, nor are the county commissioners required to furnish office rooms nor furniture for justices of the peace of their county.</p>

<p>Appeal from Shelby. Tried below before Hod. James I. Perkins.</p>

Tried below before Hon. Felix J. McCord. The statement of the nature and result of the case by appellant is accepted by the appellee and is here given.

<p>Appeal from Hopkins. Tried below before Hon. J. A. B. Putman.</p>

<p>1. Negligent Killing of a Dog by Bailway.—The plaintiff was hunting, and passing along the side of a railway track his dog becoming frightened by an approaching train tried to escape by flight, running upon the track. The train ran upon and killed the dog. It could have been seen from the train upon the track. Held: Concede that the plaintiff was a trespasser and guilty of negligence in going upon the track, with his dog, that fact would not relieve the railway company of the exercise of ordinary prudence and care to prevent injury to the dog. Under such facts it would seem that upon the plainest principles of reason if the railway employes by using ordinary care could have prevented the injury, and failed to use it, causing thereby the injury and damage, the plaintiff should recover the value of the dog.</p> <p>2. Willful Injury.—See facts which would sustain a verdict for willfully killing the dog of the plaintiff.</p>

Tried below before Hon. H. 0. Head. This suit is brought by the appellee, W. M. Andrews, to recover of the appellant §5000 actual and §5000 exemplary damages arising from a delay in the delivery of a message sent by appellee to T. G-. Andrews, at Jacksonville, Texas, on the 23rd day of January, 1888.

<p>Appeal from Tarrant. Tried below before Hon. R. B. Willing, Special District Judge.</p>

Tried below before Hon. Felix J. McCord. This suit was filed on the 26th day of April, 1888, by appellee to recover of appellants both actual and exemplary damages for certain injuries alleged to have been sustained by him while a passenger on defendants’ train, in a wreck between the towns of Troupe and Tyler, on the 26th day of December, 1887.

<p>Appeal from Upshur. Tried below before Hon. Felix J. McCord.</p>

Tried below before Hon. R. E. Beckham. This is an appeal from a judgment upon a verdict for $3000 for personal injuries alleged to have been sustained by appellee.

Error from Upshur. Tried below before Hon. Felix J. McCord. June 17, 1888, the defendant in error brought suit based on account, against the East and West Texas Lumber Company, procured the issuance of the original writ of attachment as auxiliary thereto, and caused the same to be levied on certain personal property of the said East and West Texas Lumber Company.

<p>Appeal from Upshur. Tried below before Hon. Felix J. McCord.</p>

<p>Absence of Counsel — Recitals.—The judgment entry recited: “Cause being</p> <p>called, came the plaintiffs and the defendant by their respective attorneys and both parties announced ready for trial,” etc. Motion for new trial was urged upon ground that the defendant had a meritorious defense, and that its counsel were not present from uncontrollable causes. The motion was overruled. Held:</p> <p>1. The recitals that the parties appeared, etc., are not controlled by the affidavit explaining the absence of both members of the firm of lawyers representing the defendant.</p> <p>2. The recital should have been corrected if erroneous.</p> <p>3. Absence of counsel, if material, should have been urged as ground for continuance.</p> <p>4. The refusal of a new trial upon such showing was not error.</p>

Tried below before Hon. Felix J. McCord. On the 36th of June, 1889, J. E. Wingate was employed by the International & Great Northern Bailroad, through T. B. Bonner and J. M. Eddy, its receivers, as locomotive fireman on one of defendants’ freight trains going west from Palestine at night. Near Milano Junction, on defendants’ road, said train ran into a culvert which had been washed away during the night, and said J. E. Wingate was killed in the wreck.

<p>1. Practice—Charge.—Where but one issue is made by the testimony, although others are made by the pleadings, it is proper that the charge be confined to the issue made by the evidence and to refuse charges as to other issues not so made.</p> <p>2. Mortgage by Insolvent Sustained.—An insolvent debtor executed to a creditor a mortgage with power to sell a saloon, with stock, fixtures, etc., giving possession, with authority to sell for cash and to pay expenses of the trust and the debt, and if there should be an excess over paying the debt of the mortgagee it was to be paid to the mortgagor. The mortgagee sold and there was no excess. The sale is sustained against suit by an assignee under a subsequent assignment made by the mortgagor.</p>

Tried below before Hon. F. A. Williams. The appellees on the 29th day of December, 1888, in a suit then pending in the County Court of Galveston County, sued out a writ of attachment against the defendant in said suit, J. J. Murphy, which writ of attachment was levied by the sheriff of Anderson County on the 31st day of December, 1888, on eight barrels of whisky called “ Coon Hollow,”' which whisky was taken from the “ Ruby Saloon” in Palestine and valued by said sheriff at…

Tried below before Hon. J. M. Moore. The report in the first appeal in this case, 71 Texas, 645, contains a statement of the pleadings.

Tried below before Hon. F. A. Williams. This is an action of trespass to try title. All parties claim title through Mrs. M. L Hallum, deceased, as the common source. She died in 1879, leaving a will in which she appointed J. M. Willis independent executor. The will was duly probated January 21, 1879, J. M. Willis qualifying as independent executor and guardian of the minor children. All parties claim the land in controversy through and under this will.

Tried below before Hon. E. W. Terhune. This is an appeal by Wren and others from a judgment in favor of Harris for one-third in the James May 320 acres headright. The plaintiffs claimed the entire interest through heirs of said James May. The defendant claimed one-third interest by purchase of the locative interest from parties who made the location under a contract with the guardian •of the said James May, non compos mentis.

<p>Appeal from Tarrant. Tried below before Hon. B. K. Boykin, Special District Judge.</p>

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

<p>1. Final Judgment.—In a suit against two defendants a judgment in favor of the plaintiff and against one of the defendants, the record not showing any disposition of the case as to the other, is not a final judgment from which an appeal will lie.</p> <p>2. Perfecting Record.—It will not be allowed to perfect the record after the appeal has been dismissed.</p>

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

<p>1. Pleading—Time—Variance—Practice.—Action against a railway company for killing a jennet, brought September 19, 1889. The killing was laid on April 29,</p> <p>1886. Defendant pleaded a general denial. On the trial testimony was offered by plaintiff that the jennet was killed as alleged on April 29, 1889. Objection was urged on ground of variance. The objection was overruled. Held:</p> <p>1. The allegation as to time of killing was not material, and it was not necessary that it should be proved at the time as alleged.</p> <p>2. If counsel for defendant was surprised by the evidence the fact should have been made known at the time, with application to withdraw announcement of ready for trial, etc.</p> <p>2. Extent of Damages.—Suit for death of a mule alleged to have been killed by defendant. It was shown that the mule had been injured; no proof was made of its death. Verdict and judgment were rendered for the full value of the mule for the plaintiff. Held error, in that it could not be presumed that the crippled mule was of no value.</p>

<p>Appeal from Shelby. Tried below before Hon. James I. Perkins.</p>

•Appeal from Red River. Tried below before Hon. E. D. McClellan, The pleadings set out the facts upon which arose the questions discussed. The facts alleged and proved appear in opinion.

<p>Error from Bowie. Tried below before Hon. W. P. McLean.</p>

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

Tried below before Hon. E. W. Terhune. This is a motion to dismiss the appeal.

<p>Appeal from Hemphill. Tried below before Hon. Frank Willis..</p>

<p>1. Approach to Railway Platform.—Charge.—In an action for damages against a railway company for injuries received by plaintiff in falling from a platform upon leaving a car at a depot, where the negligence alleged was not that the company had not constructed a safe passage way, but that it had provided no means by which that way was apparent to passengers alighting in the night time, it would be improper to charge the jury that plaintiff could not recover if defendant had provided a way upon which the public could safely travel, and if plaintiff went in a direction which the public did not usually go.</p> <p>2. Same—Charge___The court properly charged the jury that it was the duty of</p> <p>the railway company to provide good and safe places of egress from its platform at such places as persons would naturally or ordinarily go; it appearing that the way prepared was zigzag in course and not visible from darkness, and the plaintiff was ignorant of the place and had left the platform in a natural direction.</p> <p>3. Verdict.—See facts held to sustain a verdict for §5000 for personal injury suffered by the plaintiff.</p> <p>4. Hostility of Witness may be Proved when Denied by Him.—A witness may be interrogated on cross-examination as to statements made by him showing his hostility to the party against whom he is called, and if he deny having made them the statements may be proved by other witnesses.</p> <p>5. Same — Example.—A witness for defendant on cross-examination denied having stated ‘ ‘ he would be willing to swear that white was black and black was white in order to defeat plaintiff’s claim;” it was competent to prove the statement by other witnesses.</p> <p>6. Railway Platform—Duty of Railway.—In an action by a plaintiff for personal injury suffered while going from a platform, if it be shown that he was careful and was injured in the attempt to get off the platform, negligently constructed and badly lighted, and if a person would naturally get off the platform at the place plaintiff did, then he should recover. See charge embodying this. •</p> <p>7. Defective Charge—Practice.—A failure to give such charge as a party had the right to demand is no ground for reversal. See example.</p>

Tried below before Hon. B. E. Beckham. April 16, 1887, Hiram Sumpter brought suit of trespass to try title against Boydston in the District Court of Tarrant County for about three acres of land, alleged to be situated in Tarrant County. November 25, 1889, Sumpter filed an amended petition as substitute for original.

Tried below before Hon. J. V. Cockrell. The case fully stated in appellant’s brief is given: This is a quo warranto proceeding filed in Jones County District Court August 15,1890, by leave of the judge of said court. The allegations of the petition are substantially as follows: 1. That relators were at date of filing of petition resident citizens,, legal voters, and property owners in Stonewall County. 2. That respondents were also residents of said county. 3.

<p>Appeal from Hunt. Tried below before Hon. E. VV.’ Terhune.</p>

Tried below before Hon. Anson Rainey. The original petition filed by Barron November 18, 1889, charged that he was a passenger for hire on the appellant’s train on June 30, 1889, for the purpose of being transported from Terrell, Texas, to Wills Point, Texas, and that through the careless, negligent, and reckless running of appellant’s cars by its agents, and the negligent and dangerous condition of its road bed, the car upon which appellee was a passenger was wrecked, and…

Tried below before Hon. R. E. Beckham. This is the same suit, with no important changes, which was recently before this court and decided at the Tyler Term, 1889, reported in 75 Texas, 484. The suit was commenced in the District Court of Tarrant County by appellants against appellees oti the 11th day of February, 1886, and was in the nature of the ordinary action of trespass to try title.

<p>Appeal from Navarro. Tried below- before Hon. Rufus Hardy.</p>

Tried below before E. B. Perkins, Special District Judge. This is an action for personal injuries,' commenced by ajopellee against appellant June 18,1887.

Tried below before Hon. Anson Rainey. This is a suit under the statute to try the right of property to certain goods, wares, and merchandise, between B. Eppstein & Co. and 0. L. Betterton & Co.; the plaintiffs, E. Eppstein & Co., claiming that they had a landlord’s lien on the goods for rent due, and 0.

Tried below before Hon. Anson Rainey. This is a suit brought by the Citizens Bank of Texarkana, Texas, in the 'County Court of Kaufman County, August 31, 1886, against the city of Terrell, Texas, to recover the amount alleged to be due on six coupons issued by the city for $70 each, payable to bearer, and each due on the 1st day of May, 1885. The county judge being disqualified, the cause was transferred to the District Court November 27, 1888.

<p>1. Attachment—Only a Defendant Can Abate for Irregularities.—Revised Statutes, article 159, prescribes that “ every original attachment issued without affidavit and bond as herein provided shall he abated on motion of defendant.” In accordance with this statute the right to abate an attachment on account of defects in the affidavit or bond has been restricted to defendants, and has not been allowed to creditors subsequently causing the same property to be attached.</p> <p>2. Same—Cases Adhered to—Murray & White v. Schluter & Co., 62 Texas, 338, and Bateman v. Ramsey, 74 Texas, 592, adhered to.</p> <p>3. Subsequent Attaching Creditor May Show Fraud in First Attachment. The right of a subsequent attaching creditor to intervene in an action in which a prior attachment has been levied, for the purpose of showing that the older attachment is based on a fraudulent demand, or one which has in fact no existence, for the purpose of having his lien declared superior and enforcing payment out of the attached property, is fully recognized by the decisions of this court.</p> <p>4. Charge—Recitations in the Charge.—An affidavit for attachment was defective. The attachment was attacked by subsequent attaching creditors. On the trial the charge'stated that it was averred in the affidavit that the defendant was indebted to plaintiff in the amount sued for. The charge then contained a statement of the items, •amount and date of each, and when due. Held, that no grounds for reversal existed from such statement in the charge.</p> <p>5. Charge—Bight to have Prominence Given to Facts.—-The statutes of this State forbid a judge to charge or comment on the weight of evidence, but it seems -to have been thought in some cases that this did not deprive a court of the power to inform the jury of the purpose for which evidence has been admitted. Howerton v. Holt, 23 Texas, 60. See example outside of the rule.</p> <p>6. Same.—The propriety of calling the attention of a jury to isolated facts by the charge of a court, with the statement that they are to be considered as evidence of fraud, or that they are to be considered as circumstances tending to show fraud, is doubtful in any case, unless the matter to which attention is called under the settled .rules of law is prima facie evidence of fraud.</p> <p>7. Charge.—Where the general charge fully informed the jury that they might look to all the circumstances in evidence to ascertain the real transaction between the parties, the validity of which was in issue, it is not error to refuse a charge calling attention to isolated facts in evidence as tending to prove or disprove the fact in issue.</p> <p>8. Fictitious Demands—Simulated Claims.—The charge of the court instructing the jury to find for parties attacking a prior attachment if they found that the notes .sued on in such attachment suit were not the evidence of just debts due from the defendant to the plaintiff on valid and valuable consideration, “but were fictitious demands .against the defendant,” is not misleading. The jury must have understood by the words fictitious demands only such as were not upon valuable consideration-—claims ■simulated.</p> <p>9. Effect of Fictitious Claim in Part of Amount Sued for.—When any part ■of a claim sued for and made the basis of attachment proceedings is fraudulent or fic"titious, such fact will vitiate the attachment proceedings as to entire claim. Where the entire claim was found by the jury, it is immaterial error in the charge that it limited the effect upon the attachment to that part of the debt, if any, found to be fictitious.</p> <p>10. Declarations of Cashier of Bank. — Declarations made by a cashier of a bank in Texas to a Hew York merchant touching the financial standing of a merchant residing near the bank are not competent against the bank unless evidence is introduced tending to show that by virtue of the official position of the cashier or otherwise it was his duty to make such statements. In absence of such proof the statements of the cashier would not affect the bank. This rule would not be affected by the truth or falsehood of such declarations.</p> <p>11. Charge Properly Befused,—Where an attachment is attacked, and there is no evidence tending to show that the facts sworn to did not exist, nor any attack upon the debt sought to be secured, it is not error in the court to refuse a charge that the finding of such facts would invalidate the attachment.</p> <p>12. Same.—Where the general charge sufficiently informs the jury of the law upon an issue it is proper to refuse special charges upon the subject, the more so when such charges asked are faulty or imperfect.</p> <p>13. Stockholder’s Belation to Bank.—A national bank does not have alien upon the stock owned by a customer indebted to it for loans or advances.</p> <p>14. Attachment by Consent of Defendant.—If the debt claimed by the plaintiff in attachment is just and grounds for suing out the attachment exist, the fact that the defendant in attachment may consent that the attachment issue will neither invalidate the writ nor its levy.</p>

<p>Statement of Facts — Omission. — The failure of the statement of facts to show that the instrument sued on was read in evidence is ground for reversal where a general denial was pleaded, although such instrument is in the record as an exhibit to the petition.</p>

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

Tried below before Hon. John L. Sheppard. J. L. O’Fiel was employed by appellee as a brakeman; the brake staff broke, which caused him to fall and break his arm. He sued for $10,-725 actual damages. Defendant answered that they had careful car inspectors, and that the defect in the brake staff was a hidden defect, and that plaintiff assumed the risk. June 18, 1890, trial by the court without a jury; judgment for 82500. Defendant appealed.

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

Tried below before Hon. W. 0. Jones, Special District Judge. This was an action of trespass to try title, brought by C. M. Houston and his wife Nancy Houston against defendant Callahan for a tract of land alleged to be the separate property of said Nancy Houston.

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

<p>Appeal from Hopkins. Tried below before Hon. B. W. Terhune.</p>

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

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

<p>Appeal from Hopkins. Tried below before Hon. E. W. Terhune.</p>

Tried below before Hon. Felix J. McCord. This was a suit to recover damages for negligently causing the death of Arthur Johnston, instituted in the District Court of Smith County, Texas, on the 31st day of December, 1888, by appellee Mrs. Anna Johnston in her own right as surviving wife and for the use and benefit of James H. Johnston, Capi tola Wills, and Jennie Johnston, the surviving children of herself and the said Arthur Johnston, against appellant, the St. Louis,…

Error from Smith. Tried below before Hon. Felix J. McCord. This suit was brought by Charles Warner against John C. Brown and Lionel A. Sheldon, receivers of the Texas & Pacific Railway, as defendants, to recover damages for the alleged wrongful removal by them, while such receivers, of a side track or switch on the line of the Texas & Pacific Railway known as Warner’s Switch, near which was located the plaintiff’s saw hiill.

<p>Appeal from Van Zandt. Tried below before Hon. Felix J. McCord.</p>

Tried below before Hon. James I. Perkins. This is an appeal from a judgment for the value of goods seized by appellant as United States marshal and sold by him under execution. Reagan filed a motion for continuance as follows: “ B. O. Uopelandv.

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

Tried below before Hon. T. A. Falvey. This is an appeal from a judgment below for $1569.71 and costs in favor of Braxton and against Walsh, the value of 139 head of cattle, the property of plaintiff and sold by the defendant. The pleadings, evidence, and rulings of the court below, so far as necessary, are given in'the opinion.

<p>1. Calls in Surveys—Charge.—Where there was testimony tending to show that a corner with bearing trees was found, and that the corner indicated by course and distance was at a different place, it was error to refuse a charge that where there is a conflict in the calls of a survey for natural and artificial objects on the one hand and distance and quantity on the other, the latter must give way to the former where the former can be kndwn and determined; and this though the general rules as to the dignity of calls were correctly given.</p> <p>2. Hearsay as to Boundaries—Opinion.—A witness testified that a deputy surveyor had pointed out a corner in dispute, and it was proposed to prove by the witness that the bearing trees so pointed out corresponded with the calls in the field notes of the survey. He was unable to state the facts. It did not appear that the surveyor pointing out the corner was in a position to know the locality of the corner in dispute. Held, the testimony to the declarations of the surveyor and the opinion of the witness touching the identity of the corner were properly excluded.</p>

<p>1. Final Judgment upon Dismissal.—In a sequestration suit three parties were alleged as claiming the property sequestered and seized for the purpose of foreclosure against their vendor. Upon trial the plaintiff dismissed as to two of them. In the judgment it was declared that as to them the plaintiff take nothing, and that they recover costs. On appeal this was affirmed, but the case was reversed and remanded as to the third of said parties. Reid, the judgment of dismissal, and that plaintiff take nothing against them, must be construed to determine the suit as to them. Until brought again into the suit the court had no power to render judgment of any kind against them. A judgment could not be rendered against them as principals on the joint replevy bond.</p> <p>2. Sequestration—Affidavit.—An affidavit for sequestration filed with the petition is not invalid because not stating who were the defendants, or who had possession of the property sought to be sequestered, these facts appearing in the petition.</p> <p>3. Motion to Quash Writ of Sequestration.—Such motion must be determined by the record when the writ was issued. Facts subsequently developed can not vitiate it.</p> <p>4. Variance—Erasure of Credit on Mote.—The petition setting out a note declared on is supported by the production of such note, although an erased credit is upon it. Where a copy of the note with such endorsed credit with erasure is attached to the petition, such copy would cure the misdescription if it were such.</p> <p>5. Value of Sequestered Property. — The value of sequestered property condemned to sale is the value at time of trial. The amount is not limited by the affidavit made to procure the writ.</p> <p>6. Practice in Supreme Court.—See case where the j udgment below was reversed and dismissed as to two defendants and affirmed as to another. ■</p>

<p>Certificate of District Court to Transcript on Appeal.—Appellants filed a transcript certified that it “ contains a true copy of all the proceedings as per list furnished by the attorney for the defendant. ” The appellee, who was plaintiff below, filed a transcript certified that “it contains a true copy of all the proceedings in the case.” The two transcripts were filed as separate cases. A motion of appellee to strike out the transcript filed by the appellants was sustained and costs taxed against them.</p>

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

<p>1. Parol Sale of Land. — An executed parol sale of land, the purchase money having heen paid and possession taken by the vendee, followed by his making valuable improvements thereon, constitutes a good title in the vendee to the land.</p> <p>2. Possession as Notice.—Actual possession of town lots under a purchase by parol is notice to a subsequent purchaser of said town lots.</p> <p>3. Quitclaim Deed. — A sale of the vendor’s interest in the south half of section 18 did not pass title to such lots as the vendor had by parol previously sold to others. There was no interest in the vendor to pass by such deed.</p>

Tried below before Hon. D. P. Marr. Appellant and appellee intermarried in Louisiana in 1874. At the time of the marriage appellee owned 1720 acres of land in Live Oak County, Texas. On the 24th day of May, 1876, he sold one-half of the land for $861, and with this money improved the remaining one-half.

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

<p>1. School Districts May he Divided.—There is nothing in the Act of February 6, 1884 (Laws 1884, page 43), prohibiting the county commissioners from subdividing a school district into two or more districts, provided the majority of the legal voters of the district to be divided should not object.</p> <p>3. Power of County Commissioners to Divide Districts.—The statute confers upon the Commissioners Court the immediate power to alter the school districts, and its exercise is not made dependent upon any precedent act or condition. It is to be exercised only in the event that a majority of the voters consent. The court has the power to adopt any method satisfactory to themselves to ascertain the consent of those to be affected by the change.</p> <p>3. Parties Interested in School Matters.—Parents of children within the scholastic ages, residents in a school district, may prosecute a suit for mandamus against the county judge for refusal to appoint trustees for the district when it is his duty under the school laws to do so.</p> <p>4. Action of Commissioners Court Final.—That the action of the Commissioners Court was impolitic is no answer to a petition for a peremptory mandamus urged to-compel the county judge to appoint trustees for a school district formed from part of another district.</p> <p>5. Mode of Ascertaining Consent of Voters.—It may be doubted whether the action of the Commissioners Court in ascertaining the consent of the voters interested can be revised; but conceding that it may, an answer setting up irregularities and not expressly negativing the consent would not form a basis for such investigation.</p> <p>6. Apportioning the School Funds.—The county judge -was properly ordered to apportion the school funds pro rata to the new district, including funds realized from a special school tax assessed against the property in the original district.</p> <p>7. Mandamus of County Judge. — The county judge may be compelled to appoint trustees and to apportion the school funds to a newly ordered school district when such judge refuses to do so.</p>

■ Appeal from Johnson. Tried below before Hon. J. M. Hall. On the 10th day of October, 1887, the appellant, E. M. Tillman, procured the issuance of a writ of attachment out of the District Court of Dallas County, Texas, against W. 0. McDavid and T. C. Parker, composing the firm of W. 0.

Tried below before Hon. W. M. Key. This is a suit brought against the appellant J. S. Ramsey, as collector of taxes for Bexar County, and the sureties on his bond for certain moneys received by him in redemption of lands sold for taxes and bid in by the State. The defense was that the moneys sued for were not recoverable by the State,- being his own share of the redemption money. Judgment was rendered for plaintiff below for $304 and costs. Defendants appealed.

<p>1. Parties—Foreclosure.—To pass title by a foreclosure decree and sale the party in whom, is the legal title must he made party to the suit.</p> <p>2. Defective Foreclosure Proceedings — Purchase Money.—When the land sold under defective foreclosure proceedings is sued for by the legal owner, before recovery he must restore the purchase money which was made by the defective sale, and which was a credit upon the debt for which the land was bound.</p> <p>3. Same — Stale Demand. — The defense of stale demand does not apply to the right for the restoration of the purchase money paid upon the recovery of the land when the defective sale was for the purpose of enforcing a lien upon the land.</p>

<p>1. Tax Assessment by Bank—Amount of Money on Deposit. — By “the amount of money on deposit” authorized to be deducted from the gross amount of money and credits in the rendition for tax assessment (provided in article 4681, Revised Statutes, section 4 and subdivision 3) is meant the amount due depositors. That is to say, the debts of the hank due depositors, and not money belonging to others and held by the hank as bailee.</p> <p>2. Taxation of Money and Credits. — The effect of articles 4669, 4670, 4671, 4672, and 4673, Revised Statutes (Sayles’ edition), is to subject to taxation, in addition, to tangible property, all moneys actually belonging to the tax payer and any excess that may exist of his credits over his indebtedness.</p> <p>3. Rendition, of Credits and Money in Assessment.—The object of amended article 4684 (Sayles’ edition Revised Statutes) is not to define the property of banks and bankers subject to taxation, but merely to secure a faithful rendition of their assets. It is additional to the provisions in article 4681, Revised Statutes, which apply to banks and bankers as to all other tax payers.</p> <p>4. Money on Deposit in Banks. — In a banking business proper the sum due depositors represents the bank’s indebtedness, and in order to make the tax upon the credits of a bank equal to and uniform with the tax upon the credits of other persons it is necessary that all its debts should be deducted.</p> <p>5. Treasury Notes in Hands of Other Banks.—If a bank has to its credit by another bank an amount of money, although made up of United States treasury notes, subject to draft, as is the usual course of dealing between bankers, such money would not be treasury notes in the hands of such other banks, but merely credits to that amount, subject to taxation as other credits.</p> <p>6. United' States Treasury Notes.—The words “except United States treasury notes’’ in amended article 4684, refer to “money on hand or in transit,” and not to “money in the hands of other banks, bankers, or brokers, or others subject to draft.”'</p> <p>7. Injunction Restraining Collection of Taxes.'—The burden of proving the ground of relief is upon the plaintiffs; and the plaintiffs testifying that they had treasury notes on deposit in other banks, should have gone further and stated whether the money was a general or special deposit, and if special how they knew the fact. In absence of testimony that the deposit of United States treasury notes in other banks was a special deposit it was taxable.</p> <p>8. United States Treasury Notes Accumulated. — A bank may accumulate United States treasury notes paid over its counter and such sum be exempt from taxation; otherwise if the treasury notes had been procured for the special purpose of avoiding taxation by the exchange of taxable money or property.</p> <p>9. Practice in Submitting Special Issues.—When special issues are submitted to the jury care should be taken to make them specific. See example of mixed questions defective.</p>

<p>1. Excess in Surveys—Calls for Common Line.—Where two surveys call for a common division line, the surveys being- mapped as adjoining and so recognized in the various offices in the State, an excess in one or both surveys will not be a sufficient reason for separating the surveys in favor of a pre-emptor settling upon the land which would be vacant but for the surveys calling for each other.</p> <p>S. Cases Adhered to.—Freeman v. Mahoney, 57 Texas, 636; Boon v. Hunter, 63 Texas, 589; and Morrill v. Bartlett, 58 Texas, 648, adhered to.</p> <p>3. Fact Case. — See facts held insufficient to recover upon suit on a pre-emption by a settler insisting upon a vacancy between two surveys mapped as adjoining and calling for a common division line.</p>

<p>1. Posthumous Child May Recover for Parent’s Death.—Article 2908, Revised Statutes, provides the action (for negligently, etc., causing death of a person) “ shall he for the sole and exclusive benefit of * """ children * * * of the person whose death shall have been so caused,” etc. The word children used in the statute includes a posthumous child. Such child is entitled equally with other children of the deceased to the benefit of such action.</p> <p>2. Practice—Suit for Negligently Causing Death of Parent.—In a railway collision a man was killed under circumstances fixing liability upon the railway. The widow of the deceased prosecuted to judgment a suit for the benefit of herself and a daughter. A son was born after the father’s death. Suit was brought in favor of the son more than one year after the death of the father. Held, if the amount of compensation of the son had not been included in the former suit, upon no principle of reason should he be precluded from recovery by the judgment in which his rights were not considered; nor was the suit in behalf of the minor plaintiff barred because not brought within one year after the cause of action accrued.</p>

<p>1. Independent Executors—One Dying1, Others May Act.—Where a joint authority is given by a will to two or more persons as executors to sell and convey real estate, and one of the executors refuses to act or can not act, a convej’ance made by those surviving under the authority of the wiE is valid. And this doctrine applies to executors charged with the execution of the will independently of the control of the Probate Court.</p> <p>2. Suit by Tenant in Common for Land.—In an action of trespass to try tilde for a given number of acres, part of a larger tract, it is no ground of objection to the title of the plaintiff that in the deeds offered in evidence the particular part of the larger survey was not designated. As against a trespasser the plaintiff showing an undivided interest would he entitled to prove such interest and recover the same.</p> <p>3. Sale by Widow to Pay Community Debts.— In a suit for land defendants, showing no interest in the land and neither heirs nor creditors of the deceased husband whose widow had sold it to the plaintiff, could not raise the question whether debts recited in the deed as being provided for by such sale were barred by limitation.</p> <p>4. Presumptions in Aid of Acts of Independent Executors.—Ten years after the death of the testator his independent executors conveyed land, reciting that the sale was made for the payment of the debts of the testator. Held, that in face of the recitals there could be no presumptions against the existence of debts.</p> <p>5. Limitation of Pive Years—Tax Deed.—A tax deed for the E. A. Campbell survey wiU not support limitation of five years upon the George A. Campbell survey.</p>

<p>1. Duplicate Land Certificate.—The Commissioner of the General Land Office has no lawful power to issue a duplicate land certificate when no original had ever issued or when the original had been satisfied.</p> <p>2. Location Upon Titled, etc., Lands Forbidden—Titled Land.—The Constitution forbids the location, survey, or patent of any land by virtue of a genuine land certificate if the land was titled or equitably owned under color of title from the sovereignty of the State, and the prior appropriation he evidenced in the manner stated in the Constitution, article 14, section 2. Where land was filed upon and field notes returned to the Land Office by virtue of a duplicate land certificate where no original had ever existed, such land was evidently not titled land as against a subsequent claimant locating upon it before the patent had issued.</p> <p>3. Land Equitably Owned.—Land can not be said to be “ equitably owned under color of title from the sovereignty of the State” unless a state of facts exists which as against the State would make such ownership equitable.</p> <p>4. Fact Case.—Where no original certificate had ever existed a dupli cate was issued by the Commissioner of the General Land Office. Under this duplicate land was located and survey made and field notes returned. When in this condition others located other land certificates upon the land. A patent, however, issued upon the elder claim, and subsequent to the issuance of the patent the land was sold and came into the hands of parties ignorant of the defect. Held, in favor of the second location, that there was no equitable ownership of the land shown under the first location so as to prevent the second location and surveys.</p> <p>6. Duplicate Where no Original Land Certificate.—The duplicate of a land certificate entitles the owner "to the same quantity of land as was conferred by the original.” If there was no original it confers no right whatever.</p> <p>6. Continuous Adverse Possession—Breaks.—The fact that the fences (of a pasture) may for a time not have been so kept up as to exclude others from the land, whether from inattention or accident, would not necessarily interrupt the running of the statute of limitations if there was still “an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of all others.” See facts.</p> <p>7. Limitation as to School Alternate Sections.—Title by limitation can not be acquired against the State by the adverse possession of land surveyed by an alternate certificate for the State.</p>

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

Tried below before Hon. Sam. Furman, Special District Judge. This is an action of trespass to try title to two-thirds of a tract of Si-acres. Held: “ 1. That the evidence adduced on the trial shows no chain of title from S. G. Jennings to plaintiffs conveying any part of the S. G. Jennings 542 acres survey. 2.

<p>Judgment upon Failure of Plaintiff to Prosecute. — In an action in trespass to try title against several defendants, some of whom answered hut none asking affirmative relief, upon the plaintiff refusing to proceed with the trial when his application for a continuance had been overruled, the only judgment proper was to dismiss the case for want of prosecution. It was error to enter judgment in favor of the defendants upon the merits.</p>

<p>1. Costs. — When judgment is rendered in favor of part of the defendants they should recover costs of the plaintiff.</p> <p>2. Care by Railway for Safety of Employes—Repair Yards.—It is the duty of a railway company to establish regulations by which its servants moving cars upon repair tracks may be advised of the position of other employes who may be engaged at work in the repair yards, and who may be injured by the running of the cars so placed upon the tracks; and also to provide means by which those working in the yard may know of the approach of cars upon the tracks in the yard. See example.</p> <p>3. Same—Practice.—Whether or not such regulations for the safety of the employes at work in the repair yards were provided is a question for the jury.</p> <p>4. Verdict Excessive.—See facts where a verdict for $6000 was held excessive. The injury was breaking one of the bones of the right arm.</p>

<p>Appeal from Hopkins. Tried below before Hon. E, W. Terhune.</p>

<p>1. Petition—Cause of Action.—In a suit by a widow to set aside a deed made by her deceased husband and herself, alleged to be in fraud of the rights of plaintiff, she alleged “that she is the widow of Charles F. Groesbeck, deceased, who died intestate without child or children, leaving his mother and two brothers surviving, possessed at the time of his death of certain real and personal property in this State; that as surviving wife she is entitled to all the personal property of the estate of the deceased, and that the deed sought to be annulled changed her right to take the property in accordance with law ” Held, these allegations show in her a sufficient interest in 'the deed to have it vacated if illegal or void.</p> <p>2. Practice.—Under a general demurrer the right of the widow to bring such suit (to annul a deed affecting her interest in the estate) could not be raised for the reasons that it was not shown that there was no administration, or that the administration had been closed, or that there was fraud or collusion between the administrator and the person holding the property belonging to the estate, or that there were no debts against the estate.</p> <p>3. Suit to Annul a Deed of Deceased During Administration. — It seems that the District Court would have jurisdiction to entertain a suit to set aside a deed by the deceased alleged to be in fraud of the rights of the plaintiff, and that such jurisdiction would not be affected by probate proceedings in the estate.</p> <p>4. Pleading. — In a suit to avoid a deed made by a deceased and brought by his widow the trial court properly sustained exceptions to so much of the answer of the beneficiary in’the deed so attacked setting up a money demand against the plaintiff or against the deceased.</p> <p>5. Marriage Contract.—Husband and wife can not alter the legal order of descent in respect to themselves or their children by contract made in contemplation of marriage, and for a stronger reason they can not do so by contract during marriage. See example. Eev. Stats., art. 2847.</p> <p>6. Antenuptial Contract.—Without reference to an antenuptial contract which was attacked by the postnuptial agreement, the latter, in attempting to alter the legal descent of property, was illegal and void.</p>

<p>Appeal from Justice Court—Bond.—Judgment was rendered in a Justice Court for a mule, and in event it could not be found then for its value, against defendants and their sureties on their replevin bond. The defendants appealed and gave bond, describing the judgment as one for the money value and costs. Held, on motion to dismiss, that the bond was insufficient because of misdescription of the judgment appealed from.</p>

<p>1. Assignment of One of Several Vendor’s Lien Notes.—It is settled by this ■court that the holder of one of several vendor’s lien notes assigned by the holder of the others does not have any priority of lien over the holder of the others.</p> <p>2. Interpretation of Written Contract.—Jarvis, the holder of six vendor’s lien notes for a tract of land, numbered consecutively, endorsed the second of the series as follows: “I endorse the within note with the understanding that if the makers thereof actually need the indulgence of one year from the maturity it may be granted. In other! words, this note, under those circumstances, becomes due January 1, 1886, but loses none of its rights of vendor’s lien upon said land, and would still be second note of collection. This endorsement does not bind myself in any wise outside of this land transaction, I agreeing not to press so as to cause any depreciation of said land or the purchase price thereof to the injury of this note. Signed this 23rd day of August, 1883.” The endorsee sued upon the note and sought a personal judgment, etc., against Jarvis. Held:</p> <p>1. The endorsement showed the intent on his part to protect himself from personal liability.</p> <p>2. To provide for an extension of the note in the interest of the makers.</p> <p>3. Not to press the collection of his own claims so as to cause sacrifice of the property upon which the lien existed.</p> <p>4. The meaning is clear and parol evidence was not needed to explain its terms.</p>

<p>1. Continuance—Incompetent Witness.—In connection with an application for continuance on its face sufficient, the record showed that the witness desired in the application was a convict in the penitentiary. Held, the continuance was properly refused.</p> <p>2. Pleading — Allegation of Ownership. — In an action for the value of 1172 bushels of com it was alleged that “the com was taken from this plaintiff and held,” and “ that at the time said levy was made as above stated the said sheriff and the said agent of said Tillman were well advised of the fact that said corn was the property of this plaintiff, and that they knew that it did not belong to said Maples [the defendant in the attachment], and they knew that it was the property of this plaintiff. Nevertheless they,” etc., “seized and withhold said property from this plaintiff.” There was no exception taken to the allegation of ownership. Held:</p> <p>1. The allegation, though defective, was sufficient as basis for the introduction of testimony of ownership.</p> <p>2. A motion for arrest of judgment would not reach the defective allegation.</p> <p>3. Practice—Defective Pleading.—Where a plea is defective but not wholly insufficient, it is not proper to take advantage of such defect by objecting to evidence in support of it.</p> <p>4. Conflicting Testimony.—See conflicting testimony, but not such as to unsettle the action of the jury upon it.</p>

<p>1. Assignments of Error, When Filed—Practice,—Article 1037, Revised Statutes, requires that the appellant or plaintiff in error shall file with the clerk below an assignment of errors before he takes a transcript of the record from the clerk’s office. A motion to strike out an assignment filed subsequently should be granted. The assignment stricken out is no basis for briefs based thereon.</p> <p>2. Same—Insufficient.—An assignment "that the court erred in rendering judgment for the plaintiff upon the evidence adduced upon the trial, because the judgment is contrary to law and not supported by the evidence,” is too general, as has been repeatedly held by this court.</p>

<p>1. Abstract of Title in Trespass to Try Title.—The plaintiff in an action of trespass to try title by regular motion demanded that the defendant file an abstract of his title. Within less than twenty days from the notice the cause came on for trial. The plaintiff objected to the evidences of title offered by the defendant for the reason that the abstract had not been filed. Held:</p> <p>1. That article 4797, Revised Statutes, providing that defendant shall have twenty days after notice to file it, is peremptory and without exception.</p> <p>2. That it was the duty of the plaintiff to ask delay of the trial for the absence of the abstract; but</p> <p>3. It would seem that the application for such delay should show diligence on the part of the plaintiff in making the demand.</p> <p>2. Immaterial Error.—The admission of conversations between individuals not parties, and not in the presence of the party against whom offered, is no ground for reversal when the case is tried before the judge and in his findings such testimony is expressly ignored.</p> <p>3. Irrelevant Testimony. — In trespass to try title, the defendant pleading not guilty, attachment proceedings and a suit for partition affecting other lands and voluntarily abandoned were irrelevant and should have been excluded.</p> <p>4. Pleading—Attacking Deed as Fraudulent under Plea of Not Guilty.— In the action of trespass to try title a defendant may, if his relation to the title is such as to confer upon him the right, introduce evidence attacking a link in the plaintiff’s chain of title as fraudulent, under the plea of not guilty.</p> <p>5. Fact Case.—See testimony held insufficient to connect the defendant with the common source of title, and insufficient to rectify an alleged mistake in a deed, and to affect the plaintiff with notice of alleged equities held by the defendant.</p>

<p>Appeal from Kaufman. Tried below before Hon. Anson Rainey.</p>

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