Volume 79 — Texas Reports

<p>1. Stale Demand.—Evans in June, 1847, executed a transfer for one-third interest in liis headlight certificate for 640 acres to Howard. It was duly recorded March, 1853. Evans located the certificate in his own name. October, 1858, patent issued to Evans. Howard died in 1866, leaving a widow and minor children, who brought suit -for the land August 8, 1887. Held, that their claim was a stale demand, and that it was not error in the court to so instruct the jury.</p> <p>2. Minority as Defense to Stale Demand.—Under article 3235, Revised Statutes, limitation beginning in the lifetime of the ancestor is not stopped by his death in favor of his minor heirs. This rule obtains in the defense of stale demand.</p> <p>3. Executed and Executory Contracts—Limitation.—In this case the statute of limitations began upon the issuance of the patent to Evans. • The claim of Howard thereafter was an equity. In case of an executory contract, as in contract by locator for locative interest, the issuance of patent to the grantee of the certificate alone would not be an adverse act so as to cause the statute of limitations to run.</p>

<p>Appeal from Scurry. Tried below before Hon. "William Kennedy,</p>

<p>Appeal from Harrison. Tried below before Hon. Frank B. Sexton, Special District Judge.</p>

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

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

<p>1. Garnishment—Assignment.—A merchant made an assignment for the benefit of certain creditors, the surplus, if any, to be returned to the maker of the assignment. Other creditors brought suit upon their claims and procured writs of garnishment against the assignee. The garnishee answered, claiming that the assets, merchandise, notes, and accounts were not of value in excess of the claims secured. The plaintiffs contested the answer. The case being called, the plaintiffs requested that it he postponed as to the question of garnishment until the garnishee had executed his trust. This was denied and the parties proceeded to trial. Held:</p> <p>1. The court erred in refusing to postpone the garnishment proceedings until after the execution of the trust.</p> <p>2. But as the plaintiffs went to trial without objection, on appeal they are not entitled to favor.</p> <p>3. The interest being large and there being a probability of a surplus after paying those secured in the trust, the judgment is reversed for the error in not postponing the case. The case should be postponed until the trust shall have been fully executed, when the garnishee should he required to make a supplemental answer showing the condition of the estate, etc.</p> <p>. 3. Choses in Action. — Choses in action can not he reached by garnishing the holder of them.</p> <p>3. Attorney Fees.—-It was not error in the trial judge allowing §100 to the garnishee as attorney fees.</p>

<p>Appeal from Ellis. Tried below before Hon. Anson Raine.y.</p>

<p>¡Payment—Evidence.— See evidence held insufficient to prove payment of an account admitted to he correct.</p>

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

<p>1. Common Source of Title—Practice.—-A defendant in an action of trespass to try title having filed an abstract of his title in which he claims under a common source with the plaintiff, will not be heard to attack the chain of title between the common source and the sovereignty.</p> <p>2. Possession Considered Equivalent to Occupancy.—It was not error in the court in charging upon the defense of limitation of ten years to use the word occupied in the sense of possessed. The words are so nearly identical in meaning that the charge is not erroneous.</p> <p>3. Title by Limitation of Ten Years.—The possession by an intruder without any title continued in hostility to the owner for ten years will confer, title under the statute, but only to the extent of the possession, and would not extend beyond the land actually occupied.</p> <p>4. Charge Must Only be Upon the Issues Made. — See facts held not to require a charge upon the effect of an agreed line between tenants in common or adjoining land owners.</p> <p>5. Charge—Report of Survey.—A report of survey made under order of court was read in evidence. It reported a rock for a corner of the traqt as upon the ground and recognized for many years as the corner of the tract in controversy. Held, proper to refuse a requested charge confining the jury to course and distance unless there were natural objects called for in the patent still existing, etc. See example.</p> <p>6. Same.—In determining the locality of a boundary line the inquiry is, where was it in fact located? not where it ought to have been located.</p>

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

<p>1. Negotiable Note in Hands of Bona Fide Holders.—A negotiable promissory note was endorsed by the payee for accommodation; the accommodation holders-delivered it as collateral to plaintiffs, to whom they were indebted upon a pre-existing debt. Subsequently the maker and payee of the note rescinded the contract of which the note was a part. Reid, that the plaintiffs were bona fide holders of the note, and it was not subject to any defenses on the ground of failure of consideration or the misappropriation of -it by the accommodation holders.</p> <p>2. Vendor’s Lien Note—Registration. — A vendor’s lien note expressing .the consideration and describing the land is entitled to registration, and if recorded it is notice to all subsequent purchasers 'and encumbrancers.</p> <p>3. Marshaling Securities.—Although a junior lien upon the land had obtained priority of the note, still plaintiffs were entitled to cause the holder of the junior lien notes, if held as security, to disclose what other securities he holds and to cause him to exhaust such other securities.</p> <p>4. Bank President. —A bank and its president are different parties. Plaintiffs seeking to reach securities in the hands of the bank must prove the facts affecting the bank; and that the president when called as a witness by the plaintiffs prevaricates, such misconduct can not be charged against the bank, as it might be against the president if a party. He is but a witness, and if his conduct made it necessary a postponement might be granted to obtain testimony reasonably expected from the president as witness.</p>

<p>1. Incorporation of Towns Under the General Law.—Such an incorporation may properly include the territory occupied by the persons attending church and sending to the schools residing near to the others making up the proposed town, and this may be done regardless of whether the land be laid out into blocks or lots.</p> <p>2. Same—Agricultural Lands.—It will not vitiate an organization of a town under the general laws that a small part of agricultural land is included in the lines necessary to include the population having residences near each other and constituting the assemblage of residence and business houses constituting the town.</p>

Error from. Cass. Tried below before Hon. John L. Sheppard. This is error from a judgment in the District Court for $1500 damages, rendered in favor of defendant in error against the telegraph company. The cause of action was unreasonable delay in delivering a message to the plaintiff touching the illness of his mother. The message was delayed over two days. The plaintiff reached his mother an hour before her death. 'She was unconscious and so remained until her death.

<p>1. Construction of Will.—See discussion of a will and conclusion reached as to its meaning that an absolute devise was made to one of the devisees of four sections of land in Texas. The conclusion is reached by considering all parts of the will which can relate to the devise. The intent appears to control a literal interpretation of the language used.</p> <p>2. Same.—The words "If I gain the suits against Wm. A. Harrison depending in the Chancery Court at Columbus, also four sections of my Texas land scrip to be taken by lot,” construed, in connection with the other parts of the will, not to prevent the devise of the ‘ ‘ four sections of my Texas land scrip” from being absolute, and not depending upon the contingency expressed in the preceding words. These are held to be attached to the preceding devise of lands in Mississippi, some of which appear to have been in litigation.</p> <p>3. Residuary Legatee.—The will not making the grantors of the plaintiffs residuary legatees of the land devised to Mahorner, under whom the defendants claim, even if the devise was contingent the plaintiffs would show no title upon the happening or failure of any contingency affecting the Mahorner devise.</p> <p>4. Evidence of a Lapse in a Devise.—See testimony insufficient to show the death without issue of two parties to whom lands were devised for their life, with power to appoint to the heirs of one or of both.</p> <p>5. Partition.—By will the testator gave four sections of Texas lands to Mahorner, four to the Magee girls, two to Jane Y eatman, and the balance (nine) to Mary Ann Y eat-man’s children equally. The heirs of the latter took possession of nine sections of the Texas lands. In a suit by them against vendees of Mahorner for a section selected by him they could not have partition unless they alleged and proved that the nine sections were not of value section by section with the remaining sections.</p>

<p>1. Ratification — Attachment Lien. — A safe and some saw logs were turned over by an agent of Bell, an absent debtor, to Conner & Co., who held a mortgage upon "one steam saw mill” described, together with all its fixtures, "all the supplies I now have on hand or may have at the time of the foreclosure of this lien,” etc. Littlefield & Co. caused the safe and saw logs to be seized under attachment. Subsequently Bell returned and in writing ratified the agent’s act. The ágent had also turned over to Conner & Co. all the mortgaged property. They claimed the saw logs and safe; and upon trial of the right of property, held:</p> <p>1. The ratification by Bell of the agent’s sale to Conner & Co. could not affect the rights of the attaching creditors, nor could Bell’s admissions of authority affect the attachment.</p> <p>2. There are no words in the mortgage which include the iron safe, nor does the word supplies include the lot of saw logs.</p> <p>3. It appearing that in connection with the saw mill a commissary was kept, the word supplies must be applied to stores of food, etc., kept on hand for daily use.</p> <p>4. Authority to turn over the mill and fixtures to the mortgagees would not include power to turn over property not mortgaged to them.</p> <p>2. Remarks of Trial Judge.—Where the jury returned the only verdict they could properly have done remarks of the trial judge are immaterial. See example.</p>

<p>1. Liability of Railway Companies—Receivers.—The rulé adopted in former decisions adhered to, that appellant is liable for injuries suffered during the late receivership. Railway v. Johnson, 76 Texas, 421, and other cases.</p> <p>3. Carrier of Passengers Duty. —The rule imposing' upon the carrier of passengers the highest degree of care applies only to the means and measures for safety which the passenger of necessity must trust wholly to the carrier. It is in general applicable only to the period during which the carrier is in a certain sense the.bailee of the person of the passenger. Thompson, Carriers of Passengers, 209. See charge in accordance with this principle applied to an injury suffered by a passenger in alighting, from cars at a station.</p> <p>3. Duration of Duty of Such Care.—The transit can not be considered as ended until the passenger has left the car. The carrier’s duty continues until the passenger has alighted from the car.</p> <p>4. Charges.—Where there is no testimony to a part of the plaintiff’s allegations it is not error in the court to refuse a charge calling attention to such absence o'f testimony upon such issue, the court not having noticed it in the general charge.</p> <p>5. Assisting Passenger in Alighting from Car.—It being the duty of the railway company to exercise the highest degree of care for the safety of its passengers in alighting from its cars, it is for the jury to determine whether such care included the duty in the particular case of assisting a woman laden with bundles in alighting from the train.</p> <p>6. Special Issues. — It rests with the discretion of the court whether a general verdict shall be taken or one in answer to special issues. A clearly proved abuse of such discretion only would authorize a reversal for the refusal to submit special issues.</p> <p>7. Same.—See special issues held not exhausting the necessary facts, and which were properly refused.</p> <p>8. Dismissal of One Defendant. — A passenger injured in alighting from the train sued the railway company and its conductor. The plaintiff and the conductor were both examined as witnesses, and the interest of each was discussed in the argument to the jury. Upon the jury retiring the plaintiff dismissed as to the conductor. This was not known to counsel for the railway company. There was nothing tending to show that the conductor was made a party for the purpose of affecting his standing as a witness. Held, that the railway company could not complain of such dismissal, and it was no ground for a new trial.</p>

Camp. Tried below before Hon. Felix J. McCord. This is a suit for personal injury, viz., the breaking of appellee’s arm in alighting from a train at Belden, the negligence charged by appelleebeing failure to provide lights at the station and failure to furnish assistance to appellee in alighting from the ear, she being a lady traveling alone. Appellee sued for $10,000 actual damages.

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

<p>1. Public Lands—Sale Under Acts of 1879 and 1881.—The Legislature did not intend by the Acts of 1879 and 1881 to offer for sale any titled or patented lands. The acts provided for the sale of unappropriated land only, and land to which the State had issued a patent was no longer unappropriated.</p> <p>3. Patented Land—See Attack Against Patent.—See facts relied upon as a ground of attack against a patent not deemed sufficient.</p> <p>3. Void and Voidable.—See an attempt to invalidate a patent by a purchaser un,der the land sale acts of 1879 and 1881, urging the reason that the patent was based upon an exhausted land certificate.</p>

Tried below before Hon. Winchester Kelso. Suit brought March 7, 1888, by appellee. B. Oppenheimer & Co. caused an execution under a valid j udgment rendered in their favor against appellee, Fritter, in the County Court of Kinney County, to be levied upon parts of lots 4 and 5, in block 6, in the town of Brackett, in Kinney County, which were legally sold by the sheriff to appellants, and deed was executed to them for the same.

Tried below before Hon. John 0. Townes. This is a suit by Mrs. M. V. Taylor against the Taylor, Bastrop & Houston Railway Company to recover damages, actual and exemplary, for personal injuries inflicted upon and resulting in the death of her husband, W. S. Taylor, while in the employ of the defendant as a section foreman, through its alleged negligence.

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

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

<p>Appeal from Lamar. Tried below before Hon. E. D. McLellan.</p>

<p>1. Venue in Partition — Partnership Matters. — Suit in Hopkins County by Nunn against Morris, who resided in Wood County, for partition of a partnership farm owned by the parties and for a money claim owing plaintiff upon the settlement of their’firm matters. Held, the venue of the suit for partition was in Hopkins County, and the court also had jurisdiction to determine the question of the indebtedness claimed and to adjudge it a lien upon the interest of the defendant in the land.</p> <p>2. Account Stated.—In a settlement by two partners of a partnership farm business with many items, charges, and credits, that individual charges were mixed with partnership items, the credits being in excess of such individual items, will not affect the adjustment so made so as to deprive the court from determining the rights of the partners growing out of the accounting in a suit for the partition of the partnership land.</p> <p>3. Limitation.—The limitation of two years does not apply between partners. By third subdivision of article 3205, Revised Statutes, actions by one partner against another for a settlement of partnership transactions may be brought within four years after the ending of the partnership operations.</p>

<p>1. Predicate for Secondary Evidence of Deed.—See facts held sufficient as to search for a deed, alleged to have been lost, as basis for secondary evidence of its existence and contents.</p> <p>2. Practice—-Rebutting Testimony.—Article 1397, Revised Statutes, directs that the plaintiff shall in opening “introduce his evidence,” and that in reply to defendant’s evidence “he shall be confined to rebutting evidence.” This rule was not violated where the plaintiffs chain of title as in the opening would authorize a verdict for him, and where an omitted link in his title only became manifest by the testimony introduced by the defendant. See example. -</p>

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

<p>1. Construction of an Imperfect Promissory Note.—A writing in the form following was properly admitted in evidence and was sufficient to support a judgment for $100, etc.: “$100. Texarkana, Texas, 4—2,1888. On or before July 1, 1888, I promise to pay to the order of Benj. Whitaker the sum of one hundred-with interest,” etc.</p> <p>2. Same.—The sign and figures “ $100 ” in the margin of the note indicate that it was the word dvllars that was omitted in the body of the note.</p> <p>3. Vendor’s Lien.—Plaintiff sued upon a vendor’s lien note dated March 28,1888, executed for “lot 11, in block I, in Tilson’s & Pilcher’s addition to Texarkana, Texas.” Intervenor set up another vendor’s lien note upon the same lot of date April 2 of same year. Each note recited that it was given for a part of the purchase money of said lot “this day ” sold by H. W. Dillard to J. E. Garrett; held,, upon objection, that the note to intervenor was competent to show the lien. The recital of date of sale in the later note evidently was by mistake.</p> <p>4. Pleadings—Vendor’s Lien.—The allegation that the note set out was given in part payment for the land (described), with prayer for foreclosure, no exceptions being taken, are sufficient to sustain a judgment of foreclosure of the lien.</p> <p>5. Stipulated Attorney Fee in Lien Note.—In a vendor’s lien note it was stipulated that in case of suit an attorney fee should be added. Upon suit it is proper to foreclose the lien for benefit- of the attorney fee.</p>

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

Original motion from the District Court of Dallas County. This was an application to the Supreme Court by the appellants, who were plaintiffs below, for “an alternative writ of mandamus” against Judge R. E. Burke, judge of the Fourteenth Judicial District, including Dallas County, commanding him to appear before the Supreme Court and show cause “why a peremptory writ of mandamus should not issue commanding him to certify to the Governor of the State of Texas the fact of his…

<p>Appeal from Marion. Tried below before Hon. Geo. T. Vaughn.</p> <p>This is a second appeal. See 71 Texas, 588, where and in the opinion there is a statement.</p>

Tried below before Hon. D. E. Barrett. On the 3rd day of July, 1888, the appellant, O. M. Greenlee, brought this suit as an action of trespass to try title and for damages against appellee W. H. Taylor and against minors Wilford Stroud, Freeman Stroud, James Stroud, and Jew Stroud, for a certain tract of land out of the O. S. Brewster survey, described by metes and bounds.

<p>1. Practice in Supreme Court—Affidavit of Forgery.—Objections to an affidavit attacking a deed for forgery, made before the trial and acted upon as perfect by the trial court and by the parties, can not be made on appeal. Such objections should be urged in the court below, as the defect might then be remedied.</p> <p>2. Preponderance in Testimony—Ancient Instrument.—See facts held insufficient to sustain a verdict for the plaintiff, the issue being the genuineness of a deed from plaintiff to one A. Superville, under whom the defendants held. The plaintiff testified that he had not executed the paper. The document had been of record over thirty years. Witnesses testified to the transaction between plaintiff and Perez. Held, that the preponderance in the testimony to the execution of the deed was so great that the verdict against it should be set aside. Details in opinion.</p>

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

<p>1. Description of Land—Reference to Deed.— While it is the better rule to give a description of the land in controversy in the pleadings by describing its situation and boundaries rather than by a reference alone to other sources of information, it has been held by this court that a description by reference to deeds which are themselves identified with certainty is sufficient, at least when no objection is taken to "the pleadings.</p> <p>2. Judgment by Default.—Suit against the maker of a vendor’s lien note. Others. were joined in order to adjust equities as tq the ownership of the debt. The maker of the note did not answer. No interlocutory default was taken, but in the final judgment rendered upon the verdict of a jury upon issues between the other parties judgment final for the amount of the note and for foreclosure was rendered against him. On appeal held, no interlocutory judgment was necessary, and that judgment final was properly rendered.</p>

<p>1. Payment by Check —Due Diligence. — Without agreement a creditor was under no obligation to receive from a debtor the check of another, hut if such check is received, then it devolves upon the creditor to use due diligence to collect it, otherwise he can not recover upon his original account.</p> <p>3. Pact Case. — See facts held sufficient to sustain a verdict negativing due diligence in presenting a check sent by a Texas debtor to his creditor at St. Louis.</p> <p>3. Mutilation.—It being important to determine the date the check was received at St. Louis, and the date of mailing being given at December 12 or 13, and the ordinary time by mail being shown as two days on the one hand, against this was testimony that it came to hand on December 22. The letter produced accompanying it was mutilated, the part giving date, where written, etc., being torn off; the envelope was not produced. Held, the inference would not be unfair that the mutilation was done for the purpose of destroying the date of the letter.</p>

<p>1. Exclusion of Immaterial Testimony.—It is no ground for reversal that the testimony of a witness was improperly excluded when the record shows the fact sought to be proved by such witness had been established by other testimony.</p> <p>2. Declarations of Party. — Declarations of a defendant made a party only as surety upon the bond declared on are not competent against the other defendants, principals in such bond.</p> <p>3. Practice in Supreme Court.—Where suit was brought upon an appeal bond the absence from the record here of the judgment, in appeal of which the bond was made, will be fatal to a judgment for the plaintiff. (The judgment had been stricken from the statement of facts on motion.)</p> <p>ON MOTION EOR REHEARING.</p> <p>4. Rules for Supreme Court —Rule 72a.—'Documents called for but not inserted in the statement of facts when signed by the trial judge must not be inserted by the clerk in making out the transcript. Such matter will be stricken out whenever observed by the court, whether on motion or from information otherwise obtained.</p> <p>5. Recitals. —• In suit upon an appeal bond its recital of the judgment appealed from is evidence between the parties of the judgment.</p> <p>6. Sale of Attached Property Before Judgment. — Three attachments were levied upon the same property. The property was sold by order of the court and proceeds held subject to the attachment proceedings. The plaintiffs in attachment each obtained judgment. The aggregate of the two attachments first levied was greater than the sum realized by the sale of the attached property. Held, that the third attachment took nothing, and that therefore plaintiff could not recover damages upon the appeal bond.</p>

<p>1. "Wife’s Separate Property—Purchase on Credit.—The wife bought a tract ■of land, paying one-third cash, with two notes signed by herself and husband. Deed was made to the Avife. The purchase money notes were paid with money given her by her mother. Held, these facts made the land the wife’s separate property. It was misleading in the charge to say, “ The burden of proof is on Mrs. S. (the wife) to show by a preponderance of evidence that the land is her separate property; that, it was purchased and paid for Avith money given her by her mother.” The charge admits of the construction that unless her mother’s gift Avent directly to discharge the purchase money ■she should fail.</p> <p>2. Earnings of Minor.—A minor son by his earnings bought a pony and gave it ■to his mother. She bought a tract of land, giving the pony in part payment at $100. For the remaining purchase money two notes for $300 were given, and were unpaid when the land was seized and sold. The court correctly charged that these facts made the land community property.</p> <p>3. Minors, Emancipation of.—While the parents may emancipate a son, in which case his earnings would be his own, still until some act of emancipation be shown the creditors of the father can proceed against such earnings or proceeds as against any other property of their debtor.</p> <p>4. Practice in Supreme Court.—A recovery of three tracts of land was sought in one action. The plaintiff claimed under attachment proceedings and sale against the husband. The wife claimed the three tracts as separate property. Her claim to each parcel was independent of that of the others. Ho error appearing as to two of the tracts, judgment below affirmed as to them and reversed as to the other, in which there was error.</p>

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

<p>Community Property — Homestead and Other Exemptions. — Hoffman, senior. died leaving children and a widow, the widow a second wife who had no children. The estate was largely indebted. During the second marriage about §150 in value of property was acquired. . At the death of the first wife no constituent of the family remained but the husband. The homestead was encumbered at the death of Hoffman, senior. The debt was paid by his administrator. The household goods were taken and divided by the children. The widow applied to the Probate Court for such allowances as she was entitled to. The Probate Court made an allowance in lieu of homestead and of other exempt property. On appeal to the District Court a judgment was rendered allowing the widow §1200 in lieu of homestead and §450 in lieu of other exempt property, to be paid only after the community debts of the first marriage were all paid, and out of the one-half of the surplus remaining. The widow appealed. Held:</p> <p>1. Under the facts it was proper to malte an allowance, and the amounts were not excessive.</p> <p>2. One-half of the household goods on hand at her husband’s death belonged to her without any order of court. If she permitted them to be taken by others it is her loss.</p> <p>' 3. Deducting the half of the household furniture an allowance should be made in lieu of other exempt property. In making such allowance care must be taken that the interest of the children in. their mother’s share of the estate is not diminished thereby, either directly or indirectly.</p> <p>4. Such allowance must be made from the estate of the deceased husband. If there is not enough the want can not be made up from the estate of his deceased wife inherited by her children.</p> <p>5. The widow must have the full amount of such allowance if her husband’s estate be sufficient. Her allowance has priority over creditors.</p> <p>6. Creditors can not resort to the half of the excess of assets above the whole amount of indebtedness that went to the first wife’s heirs for the purpose of making up their loss by reason of the widow having taken from them so much of the husband’s share of the estate. To do this would be to make the estate of the first wife contribute indirectly to the second wife’» allowances.</p> <p>7. The residence of the deceased not being in a condition as to title to be treated as a homestead should be disposed of as other property.</p> <p>8. Suggestions are given for adjusting the equities arising among the parties interested.</p>

<p>1. Citation by Publication—Appearance. —A defendant cited by publication appearing to quash the service is in court for all purposes as if regularly cited to the . , next term.</p> <p>2. Independent Executors— Creditors.—Persons holding claims against an estate administered under a will without control of the Probate Court by an executor not required to give bond may require those interested in the estate as devisees, legatees, or heirs to give bond as provided by statute, on which suit to recover such claims may he maintained. And in default of such bond they may force administration.</p> <p>3. Same—Sole Legatee Accepting the Estate.—The widow, Mrs. Kauffman, having received from the executors a large estate as sole devisee and legatee, became liable to the creditors to the extent of the value of the assets so received by her.</p> <p>4. Gift by Legatee.—The widow being sole devisee and legatee, having full control of the property received by her from the executors, had the right to make a gift of a part of it to her son. The son not having expressly assumed the payment of the claims against the estate, and it not having been alleged or shown that the gift impoverished the mother so that she was unable to pay the debts of the estate, he is not liable.</p> <p>5. Limitation.—In an action against a defendant to subject property received by him to the debts of an estate from which it was received, or to make him liable from having received it, limitation will run from the time the property was received until the filing of the petition. An amendment containing substantially the saíne cause of action will have no effect upon the statute. It will he stopped by the filing of the original petition, and right of action would be barred in two years after the property was received, subject to the statutory exceptions.</p> <p>6. Practice in Supreme Court.—There being no error in the proceedings so far as pertains to the judgment against Mrs. Kauffman, and plaintiffs dismissing as to Julius Kauffman, the judgment is affirmed in the Supreme Court against Mrs. Kauffman and reversed and dismissed as to Julius Kauffman.</p>

<p>1. Immaterial Testimony.—Defendant testified in explanation of a letter he had written. Witnesses were called in corroboration to testify to the facts inducing the letter. The facts were not controverted. Held, the testimony was properly excluded, being immaterial.</p> <p>2. Fraud and Collusion—Fact Case.—The plaintiff sued for the value of a stock of groceries seized under attachment sued out by Edloff against Hunt. The goods had been bought by the plaintiff. The plaintiff alleged a fraudulent collusion between Edloff and Hunt in making the sale to the plaintiff. The court charged that such agreement would entitle plaintiff to recover regardless of the intent of Hunt in making the sale. See facts held insufficient to raise the question of collusion as an issue. The charge upion the issue not made in the testimony was error.</p>

<p>1. Public Road—Condemnation held Void.—In 1878 the County Commissioners-Court opened a road through lands within the corporate limits of the town of Gonzales. In 1882 the city council by ordinance adopted the road as laid out by the count}' commissioners. In 1883 the limits of the town were drawn in so as to leave said road outside the limits of the town. The road was used and worked by the county as a public road. The owner of the land in 1878 was a married woman. Her coverture continued until after her sale in 1887 to appellants, wko.at once enclosed the land. The fence was removed and the road opened by order of the county commissioners. The appellants then brought suit for the land and for damages. On appeal, held:</p> <p>1. It was without the jurisdiction of the County Commissioners Court to open up the road through land within the corporate limits of the town, and the proceedings had no legal'effect.</p> <p>2. The ratification by the city council of the void act of the County Commissioners Court did not affect the title of the owner of the land appropriated for the road.</p> <p>3. As the town did not legally condemn the land as a street while within its limits, nor the commissioners condemn it as a road after it was left outside the town, there has been no legal appropriation of the land for road or street purposes.</p> <p>4. The coverture of the owner in 1878 and subsequent thereto prevented limitation.</p> <p>2. Claim for Damages Against County.—A claim for damages against a county for a trespass upon lands should be presented to the County Commissioners Court for allowance before suit. Bev. Stats., art. 677.</p>

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

<p>1. Conversion of Personalty—Refusal to Restore it.—When property of one person is held hy another who refuses to surrender it, it is to be presumed that the owner can not regain possession without incurring the danger of a breach of the peace. He may act upon this presumption. The refusal of the holder to surrender the property is evidence at least of a conversion of it.</p> <p>3. Same.—So if the property he in the house of another the owner can not repossess himself of it against such other’s will without committing a trespass, and hence a refusal of consent may be deemed a conversion.</p> <p>3. Case in Judgment. —The Doziers mortgaged a quantity of saloon fixtures to Pillot to secure a note of the husband Dozier to Pillot, expressly retaining possession of them. The fixtures were in a house owned by Pillot and leased from month to month to Dozier. Dozier leased the mortgaged property to Wolfe & Gentry for twelve months, and procured a lease to them of the room from Pillot. Before the lease ended Wolfe & Gentry sold their lease for the room to Kendall & J ones, who closed up the room. W olfe & Gentry notified Dozier that they had abandoned the furniture, whereupon Dozier desired to move it to another stand. That request was refused by Pillot. After maturity of the note the property was sold under the mortgage at an alleged sacrifice. Dozier and wife suing Pillot for the conversion of the mortgaged property, held, that the testimony did not sustain the action, as the possession was in Kendall & Jones.</p>

<p>Appeal from Refugio. Tried below before Hon. H. Olay Pleasants.</p>

<p>Notice of Trust Sale — Manner of Notice. — A trustee was authorized to sell lands for cash at the court house door in the city of Austin, county of Travis, “ first giving thirty days public notice of the time, terms, and place of sale, and of the property to be sold, by notice posted at the place of sale and by advertising the same in some newspaper in the city of Austin, for at least thirty days prior to the day of sale, such publication "to be made four times in succession in said paper.” The trustee gave notice of the time, terms, and place of sale of the property to be sold by posting two printed copies of such notice on the boards provided by the county for the posting of public notices. The boards were in the corridor of the court house, about forty feet from the front door, where public sales were made, and just at the side of the stairway leading to the court rooms in the second story. Notices of trustee sales, sheriff sales, and tax sales, and all notices of probate matters were posted on the board. Such notices were never permitted upon the walls or doors of the building. The notices were posted December 31, 1887. The notice was also published in the Austin Evening Dispatch, a newspaper published in the city of Austin, beginning December 31, 1887, and being published every successive day thereafter, except Sundays, until January 33, the day of sale. The sale was made at the court house door and within the usual hours. 'Suit was brought to recover the land by Howard, the mortgagor, against Fulton, holding under the trust sale. Held:</p> <p>1. The stipulation “first giving thirty days public notice * * * by advertising the same in some newspaper” indicates the period that was to elapse irom the insertion in the paper of the first notice, and in so far as that stipulation is concerned was complied with by a first insertion thirty days before the day upon which the property was to be sold. The publication being continued, Sundays excepted, the publication was in strict compliance with the power.</p> <p>3. Touching the stipulation that the notice should be posted “at the court house door,” no reason is seen why a notice posted near the door and in immediate view of it does not fully meet the purpose of the law in regard to legal notices and of parties to a mortgage with a power of sale who have stipulated for a like advertisement.</p> <p>3. The notices of sale given were sufficient and the sale valid.</p>

<p>Appeal from Goliad, Tried below before Hon. H. Clay Pleasants.</p>

<p>Appeal from Orange. Tried below before Hon. Hal. W, Greer, Special District Judge.</p>

<p>Appeal from Fayette. Tried below before Hon. H. Teiekmueller.</p>

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

<p>1. Destroyed. Record of Deed. — Since the Act of 1876 a destroyed record of a deed can not operate as notice unless it has been restored as required in article 4393. This requires that the deed he rerecorded within four years after the destruction of such record.</p> <p>2. Case in Judgment.—Border conveyed to Ballew by deed in 1860, and in that year the deed was duly recorded. The record was burned with the destruction of the court house of Goliad County, June, 1870. There was no record again made of the deed. In 1883 Border’s heirs conveyed the land to appellee for value paid "without notice. Held, that appellee took title to the land against one holding under the deed to Ballew.</p>

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

Tried below before Hon. H. Teichmueller. This is an appeal from a judgment for $7000 in favor of the State of Texas and against the San Antonio & Aransas Pass Railway Company. The suit was brought by the county attorney under'article 4238, Revised Statutes, as amended April 8, 1889. The act is set out in the opinion.

<p>Appeal from Nueces. Tried below before Hon. J. C. Russell.</p>

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

<p>1. Titled Lands.—To he entitled to the protection of the Constitution as landtitled the land must be included within the lines of the patent or grant claimed as protecting it from location. If by a proper interpretation of the patent or grant it should be construed not to embrace the land sought to be located, the land can not be affected by the Constitutional prohibition. In that event it is not land titled within the sense of the Constitution.</p> <p>2. Calls in Patent—Course and Distance.—Locations of surveys are governed:</p> <p>1. By natural objects or boundaries, such as rivers, lakes, creeks, etc,</p> <p>2. Artificial marks, such as marked trees, lines, stakes, 'etc.</p> <p>3. Course and distance. It is conceded that course and distance may in some instances be entitled to have greater weight attached to them than is permitted by the general rule.</p> <p>3. Unmarked Line Called for.—Whether or not course and distance shall yield to the unmarked line of another survey which is called for does not seem to be entirely settled, and probably no general rule on the subject can be safely announced.</p> <p>4. Surveys Presumed to Have Been Made. — In the absence of evidence on the subject, the presumption must be indulged that the surveyor actually surveyed all of the lines called for by him in the field notes of any survey certified by him.</p> <p>5. Unmarked Lines.—When unmarked lines of adjacent surveys are called for, and when from the other calls of such adjacent surveys the position of such unmarked lines can be ascertained with accuracy, and when in the absence of all evidence as to how the survey was actually made there arises a controversy as to whether course and distance or the unmarked line of another survey shall prevail, we see no good reason . why the survey line should not be given the dignity of an “artificial object” and prevail over course and distance.</p> <p>6. Excess in Survey.—Such excess (2719 acres in survey of 800 acres) has never been held by this court a ground for disregarding surveys actually made. See facts held insufficient to require calls for adjacent unmarked lines of surveys to be disregarded in favor of course and distance, although the excess be so great.</p>

<p>Appeal from Nueces. Tried below before Hon. J. 0. Russell.</p>

<p>1. Limitation of Five Years.—The several requisites to title under five years statute of limitation miist concur for the entire term.</p> <p>2. Registration of Deed,—A "break in the registry of a deed or deeds under which - the possession was had is fatal; as where a deed forming a link in the title under which possession was held was not on record for a period of more than a year. See example.</p>

<p>1. Practice.—In a suit to recover land from one holding under a void judicial sale, the purchase money at said sale having been applied upon the judgment under which the void sale had been made, upon a recovery of the land it seems that the claim of the defendant to the purchase money he had so paid should have been adjudicated.</p> <p>3. Judgment for Costs. — A judgment in favor of the officers of the court for costs incurred by the successful against the losing party belongs to such officers. It can not be offset by a claim, against the successful party. That he was insolvent will not make an exception to- the rule.</p>

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

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

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

<p>1. Levy Upon Interest of Partner.—Article 2295, Revised Statutes, prescribes that “a levy upon the interest of a partner in partnership property is made by leaving a notice with one or more of the partners, or with a clerk of the partnership.” This language indicates that it was the intention not only to provide that manner of levying upon such interest, but to exclude any other. A seizure is unlawful.</p> <p>2. Same—Bemedy.—Accounting as by bill in equity to ascertain the residue after payment of the partnership debts suggested as means of realizing upon such levy.</p> <p>3. Measure of Damages—Facts.—Partnership goods were levied upon under an execution against one of the partners. At the sale the defendant in execution bought the goods. The amount of the value of the goods was charged to him in settlement with the partners, and the amount of the money made by the sale credited upon the execution. Held, that while such facts might satisfy the claim for the excess of value of the goods over that realized upon the sale, still they are not a defense where the seizure by the sheriff closed up the business and injured the credit of the firm. These constitute a cause of action upon which damages may be given.</p> <p>4. Opinion — Financial Standing. — It is incompetent to admit the opinion of witnesses as to the probable effect the seizure under execution of the goods of a mercantile firm, with closing of their business, would have. Such fact of injury, if it existed, could be proved directly.</p>

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

<p>Error from Archer. Tried helow before Hon. B. E. Williams.</p>

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

<p>Deed by Husband for Homestead. — Husband and wife left their homestead. About one year thereafter the husband sold and by warranty deed conveyed the land upon which he had lived. About four years thereafter he with his wife and children started to return to the land. On the way the husband died. The wife moved from place to place in the State, thence to the State of Mississippi, where she remained twenty months. She returned eighteen or nineteen years after her husband’s death, and joined by her only child, a daughter, she sued for the land. She testified she had never abandoned the place, and had continually claimed it as homestead. The defendant pleaded limitation, and that the homestead claim had been abandoned, showing title under the husband. Held:</p> <p>1. The deed of the husband executed after he had left the land evidenced on his part an abandonment of the homestead.</p> <p>2. The husband’s act of abandonment would bind his children in any case, and his wife too if he acted in good faith towards her and not against her will.</p> <p>3. The testimony of the wife that they never intended to abandon the homestead should not be allowed to control the facts showing actual abandonment if such intent was not known to the purchaser from the husband.</p> <p>4. The long absence without claim is evidence of intent on her part to abandon the homestead.</p> <p>5. A verdict for the defendant was required by the testimony.</p>

<p>1. Petition—Cause of Action—-Negligence.—The question of negligence and its degree must depend generally upon the facts of the case, and if it consists of an omission to perform a duty devolved on the person charged with negligence it must be considered with reference to the character of business in which such person is engaged. It is not necessary to allege that certain facts pleaded constitute negligence if the conclusion of negligence may be drawn from them.</p> <p>2. Same.—The legal effect of the. case made by the pleader depends upon the manner in which he states the facts, and not upon the name he gives them. See allegations of facts which if found true by the jury would also sustain the conclusion therefrom of gross negligence.</p> <p>3. Negligence, — See facts held sufficient to sustain an allegation of negligence made in the petition, and requiring that the issue be submitted to the jury.</p> <p>4. Gross Negligence. — In an action against a railway company for negligently killing a human being on May 21,1884, where the act resulted from negligence on part of the street car driver, the liability of the railway company was only for gross negligence. In such case (before the amendment of the law) gross negligence should be defined in the charge, and the matter submitted to the jury whether the driver was guilty of gross negligence.</p> <p>5. Contributory Negligence.—See facts where refusal to instruct upon contributory negligence was sustained. The suit was by the mother for damages against the railway company for negligently causing the death of her infant son, aged fourteen months. The child had crawled upon the track from his mother’s door fronting upon the street.</p> <p>6. Husband and Wife—Parties.—Pending a suit for damages for her son’s death, the mother, a widow, married a second time. The husband is a proper party, and should be made party on suggestion of the marrirge. Rev. Stats., art. 1252.</p> <p>7. Same—-Practice.—The proper practice upon the marriage of a feme sole plaintiff is to present the fact by motion or suggestion before the trial. The court should then act.</p>

<p>1. Presumption of Power to Execute a Deed.—The power to execute a deed, will be presumed generally in those cases where the conveyance purports to have been executed under a power, and would be evidence as an ancient instrument without proof of its execution.</p> <p>2. Same—Case Adhered to.—In Veramendi v. Hutchins, 48 Texas, 583, it was. said in effect that the presumption might obtain, in the absence of proof to the contrary, after a sufficient lapse of time, that the facts existed authorizing the sale of community property by the surviving husband.</p> <p>3. Same—Burden of Proof.—Vendees of the surviving husband who five years after the wife’s death sold their headright certificate, after the lapse of over thirty years, from the sale of the certificate are not charged with the burden of proving affirmatively the equities which would conclude the heirs of the wife. It was reversible error in the-court to hold that they were.</p> <p>4. Practice—Stale Demand.—Plaintiffs suing for land failing to plead stale demand to facts alleged in the answer can not avail themselves of facts which would show laches in the assertion of an equitable title.</p>

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

Tried below before Hon. H. Teichmueller. The statement of the case by appellant is adopted. In August, 1888, Mrs. P. W. Davis, a single person, died, leaving an independent will, with Evander Hubbard executor, who duly qualified as such. Prior to making the will she gave J. B. Cox all the property she had, which consisted of about 40 acres of land and $1000 in money; she also gave the same to Hubbard by and through her will.

<p>Appeal from Leon. Tried below before Hon. T. T. Gammáge, Special District Judge</p>

Tried below before Hon. J. C. Randolph. This was an action of trespass to try title to a league of land in Pecos County, Texas, brought by Runnels County against M. B. Pulliam, in the District Court of Tom Green County.

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

<p>Cause of Action—Remote Damages.—Russell et al. sued Bancroft & Sons for damages, claiming that by reason of a slab burner erected by defendants within two hundred yards of their saw mill, the plaintiffs could not insure their mill. The mill was burned; no connection between the slab burner and the fire was shown. Suit for the amount of insurance which could have been effected but for the slab burner. The plaintiffs before the fire had obtained an injunction against the defendants, restraining the operation of the nuisance. Held, the demurrer to the petition was properly sustained, no cause of action appearing in the petition.</p>

<p>1. Tax Deed.—A tax deed executed without authority, subsequently altered by the unauthorized insertion of field notes, the original not describing the. land, can form no basis for title by limitation of five years. Parties asserting such claim are simply trespassers.</p> <p>2. Title by Limitation of Five Years.—A party entering upon a tract of land under a deed duly recorded, and holding adverse possession thereof under the deed, is affected in his title by limitation by an entry by a trespasser only to the extent of the land in actual possession of such trespasser.</p>

<p>Appeal from Webb. Tried below before Hon. J. 0. Russell.</p>

<p>Appeal from Orange. Tried below before Hon. W. H. Ford.</p>

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

Error from Coleman. Tried below before Hon. J. 0. Randolph. This is an action of trespass to try title, brought in the District Court of Coleman County by all the defendants in error except A. J. and J. R. Nations, against the last named parties, for an undivided one-half interest in 1476 acres of land granted to Joseph W. Hicks, and asking for partition.

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

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

Tried below before Hon. W. M. Key. This is a suit brought by the appellee, John Anderson, in the District Court of Travis County, Texas, against the appellant, the Austin & Northwestern Railroad Company, for damage to his farm and crops by improper construction of appellant’s road bed near to his land, thereby obstructing the flow of surface water falling east of its road and forcing same through a sluice on to the lands of the appellee.

Tried below before Hon. G-. H. Noonan. This is an appeal from a judgment for $2445.33 and costs, rendered, against Maverick in favor of S. P. Maury. The cause of action was an alleged balance of account for plumbing, gas fitting, and steam heating apparatus for a building for appellant. Defendant contested the claim, and alleging that he had overpaid the plaintiff, asked judgment in reconvention for the excess. 'Verdict and judgment thereon for Maury. Maverick appealed.

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

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

Tried below before Hon. A. W. Moursund. This is a suit brought by W. W. Tandy in the District Court of San Saba County on the 6th day of August, 1888, against S. B. Howard and the sureties on his bond as sheriff, to recover the amount alleged to have been received by the said Howard on an execution in favor of W. W. Tandy against Low & Low, a firm composed of William G-. Low, Arthur Low, and R M. Low.

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

<p>1. Pleading—Evidence.—It was alleged in the petition that plaintiff’s expulsion from the car in motion (from which he suffered injury) was caused “by an agent or servant of the defendant company in charge of the car.” Under this allegation it was relevant to show in evidence who might properly eject persons from the train</p> <p>2. Charge—Acts of Employes in Charge of Car. —It was proper to instruct thejury that “if the defendant’s servant within the scope of his employment, by peremptory order and by violent and threatening language towards the plaintiff, caused plaintiff to get off the defendant’s car while the same was moving at so great a rate of speed as to render such getting off manifestly dangerous, and that by reason of such speed the plaintiff was injured in getting off, they should find for the plaintiff.</p> <p>3. Ratification — Retention of Employe After Misconduct. — The court charged the jury that if the servant acted without the scope of his authority when ordering plaintiff from the car they should find for the defendant, “unless you should further find from the evidence that the defendant company, after full notice of the conduct of its employe, ratified the.same by retaining him in its employment, in which last case you will find for the plaintiff. ” This was erroneous. W e are not prepared to hold that the performance of a wrongful act by a servant for which his employer for any reason is not liable at the time the act is committed shall become the act of the employer simply because he refuses to discharge the servant from his employment.</p>

<p>1. Wrongful Levy of Attachment Upon Land.—In an action for the wrongful and malicious suing out of an attachment an ordinary levy upon real estate will not authorize a recovery of either actual or exemplary damages.</p> <p>2. Mere Issuing of Attachment Itself no Cause of Action. — It is not for the mere issuing of the attachment, though wrongful, that damages can he given.</p> <p>3. Case Adhered to. — Wallace v. Fihberg, 46 Texas, 35, adhered to in holding that the measure of damages for the wrongful seizure of goods under attachment is the depreciation or loss to the owner and the loss resulting from the sacrifice at forced sale.</p> <p>4. Levy Upon Beal Estate.—A levy upon real estate under our statutes not heing attended with any disturbance of the possession, use, or enjoyment of the premises by the owner, it follows that as a general rule such a levy can afford no ground for the recovery of actual damages.</p> <p>5. Insufficient Allegations.—The plea in reconvention stated that “he was and has been ever since hindered and prevented from selling the same (lands levied upon) or any part thereof and liquidating his debts with the proceeds thereof, which he could and would have done had not said attachment been levied thereon as aforesaid, to his damage,” etc. It did not allege that he had an opportunity to sell, and that the sale was defeated by the levy, and that the property had depreciated in value. Held, the allegations showed no cause of action.</p> <p>6. Injury to Feelings — Loss of Credit.—While injury to feelings and loss of credit may be taken into consideration in estimating exemplary damages, they are not grounds for or elements in actual damages.</p>

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

<p>Error from Kaufman. Tried below before Hon. Anson Bainey.</p>

<p>1. Burden of Proof—Trial of Bight of Property.—Where personal property is seized by an officer and taken from the possession of an agent of the defendant, in a trial for the right of property at suit of a claimant the burden of proof is upon the plaintiff.</p> <p>2. Same—Charge.—The court having instructed the jury that the burden of proof was upon the plaintiff, and further had repeated the charge in enumerating the allegations to be found sustained by the testimony in order to find a verdict for the plaintiff, this was sufficient, and it was not error to refuse it when asked by the claimant.</p> <p>3. Fraudulent Intent — Notice. —In an attack of a sale of personal property as made with intent to hinder, delay, and defraud creditors, it being shown that a valuable consideration was paid, it was necessary to show that the purchaser had actual or constructive knowledge of the fraudulent intent. A refusal so to instruct is error.</p> <p>4. • Same — Issues. — See facts requiring that the issue be submitted whether the sale in controversy was made with intent to defraud the creditors of the vendor, and also whether the purchaser knew or was chargeable with knowledge of such intent.</p> <p>5. Same—Charge.—The court charged the jury that to justify a verdict for plaintiff (avoiding the sale) they must find that Thurber & Co. (the parties malting the sale) were ■ insolvent at the time of the sale, an'd that the claimant (the purchaser) knew it. This was not the required charge or its equivalent. The vendor may be insqlvent and yet make a legal and valid conveyance of his property for the purpose of securing or paying his just debts.</p> <p>6. Payment by Promissory Note. —A purchaser defending as a bona fide purchaser, and who paid by his promissory note, must also show that the note was negotiable. The fact will not be presumed.</p> <p>7. Promissory Note Appearing to be a Valuable Consideration.—The flock of sheep was subject to a lien in excess of its value. The sale was for full value and the note was deposited with the prior lien holders, to whom payment was to be made, and when made the lien was to be released to the maker. Held, these facts showed a valuable consideration for the sale.</p>

Tried below before Hon. J. M. Hall. This is an appeal from a judgment for $742 and costs, rendered in favor of Schneider & Davis against Wallis, Landes & Co. The cause of action was for damages for the conversion of a stock of goods the property of plaintiffs, and by them bought of one J.'P. Wilkerson.

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

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

Appeal ‘from Denton. Tried below before Hon. B1. M. Davidson, Special District Judge. This suit was instituted on May 5, 1886, by J. 17. Baker against Mary C. Douglas, to substitute an alleged power of attorney from Douglas and deceased husband to F. E. Finer and W. J. Austin, jointly and severally, which it was claimed had been lost. Defendant Douglas resided in the county of Houston and plaintiff Baker in Denton County.

<p>1. Boundary Lines — Corners.—Two adjoining- surveys on the north side of the Concho River were fixed in 1870 by a surveyor by the aid of a Land Office map, the corners being placed opposite well known corners of surveys on the south side as appearing upon the map. The surveys on the different sides of the river did not call for those across the river, nor were they dependent, upon them. The surveys were subdivided according to this survey, and the-owners conveyed some of the subdivisions, calling for the west line as so determined. In 1879 hearing trees were found as described in the original field notes of the surveys upon the river. Held, that the verdict of the jury as to the locality of surveys, and placing it according to the corners as fixed by the bearing trees, will not be disturbed.</p> <p>2. Acquiescence.—Acquiescence is a question of fact, and each case must furnish its own rule, to be deduced from its own facts and circumstances. See facts not evidencing an acquiescence in the surveyed lines of adjacent surveys.</p> <p>3. Estoppel.—The intervener, not showing- that he acted upon any statement or representation of the plaintiff, does not establish an estoppel.</p>

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

<p>1. Guaranty—Notice of Acceptance.—It is true that a mere offer or proposal to guaranty is not binding on the party making it until he has notice that the person to whom it is made accepts it; but when the parties to be bound and secured have entered into a contract of guaranty, then such notice is no more necessary than in any other case in which the rights of the parties depend on contract.</p> <p>2. Guaranty.—A contract hearing upon its face evidence that the makers intended to he bound by it when delivered can not be regarded as a mere proposal. See contract held a guaranty, not an offer to guaranty.</p> <p>3. Construction of Contract — Limited Guaranty.—A guaranty by its terms “an open and continuous one at all times to the amount of $1000 until revoked by us in writing” imposed upon the makers an obligation to pay to the extent of $1000 for any default occurring before its revocation within said limit, regardless of the value of articles contemplated to he used and furnished before the default sued upon.</p> <p>4. Drummer’s Samples.—Merchants brought suit upon a guaranty for the return of samples used by a drummer furnished by plaintiffs for use in the trade. A plea that the drummer had sold the samples in a business carried on by him, it not being alleged that it was known to the plaintiffs, is not a defense.</p> <p>5. Pleading — Offsetting Commissions.— It was pleaded that the merchants in their dealing with their drummers reserved a lien upon commissions, or reserved them until settlement at regular times. Held, that such contract would not authorize the reserving of commissions to secure samples for future trade, and it not being shown that any commissions were paid which could have been applied upon the account sued upon, the matters would be no defense.</p> <p>6. Same.—To have made a good answer it should have been alleged that at the close of the season in which the samples in question were sent out commissions enough to have paid for them were paid to the drummer.</p> <p>7. Irrelevant Testimony. — Attached to the petition was an affidavit to the correctness of the account for the samples as “ sold and delivered.” This was offered in evidence by the defense, and was properly excluded on the ground-that there was no pleading setting up such sale.</p> <p>8. Contract Construed. —The contract between the merchants and the drummer specified that the articles should be furnished the drummer for use in the business. There was no express stipulation for their return or for payment for them. Held, that as the guaranty stipulated for their return or payment of their value, an action upon the guaranty would lie for their value when not returned.</p>

<p>1. Sale of Community Property Pending Divorce Suit. — Article 2867, Revised Statutes, provides: “ On and after the day on which the action for divorce shall he brought it shall not be lawful for the husband to contract any debts on account of the community, nor to dispose of the lands belonging to the same; and any alienation made after that time shall he null and void if it be proved to the satisfaction of the court that such alienation was made with a fraudulent view of injuring the rights of the wife. ” This is applicable in a case in which divorce proceedings were pending in which the right to the property owned by the husband and wife was not put in issue. It was not intended thereby to take such property out of the general rule, which malees the right of a purchaser pen cien te Uta to depend on the result of litigation in which the right, to the property sold was in controversy.</p> <p>2. Same.—A deed by the husband for community property executed while divorce proceedings were pending, and for land adjudged to the wife in the final decree, is void as against the wife.</p> <p>3. Divorce—Partition of Community.—See facts supporting a decree charging the husband with money taken by him on his abandonment, and the allotment of property left to his wife.</p>

<p>1. Limitation—Adverse Possession—Attornment.—The possession required as basis for title by limitation must continue in the defendant himself for the full period, or in himself and others with whom he can assert some privity and through whom he claims. When a possessor acknowledges himself the tenant of another his possession in his own tight ceases, not only against the person to whom he attorns but against the true owner.</p> <p>2. Same—Break in Possession.—The tenant repudiating his attornment can not tack his possession as tenant either with his previous or his subsequent possession. His subsequent possession would operate under the statute upon his repudiation of his contract of tenancy. .</p> <p>3. Same.—See facts held insufficient to give title under the statute of limitations ' of ten years'.</p>

<p>Appeal from Jefferson. Tried below before Hon. A. G. Bullitt, Special District Judge.</p>

Tried below before Hon. F. A. Williams. This is an appeal from a judgment upon a verdict for $5000 for personal injuries inflicted upon plaintiff by alleged negligence of the defendants, operating the railroad upon which the accident happened.

Tried below before Hon. W. H. Ford. This is an action of trespass to try title to 111 acres of land, out of the Absalom Williams survey, in Jefferson County, Texas, brought by the appellants against the appellees on the 4th day of April, 1890. Appellants site as the only surviving heirs of their deceased parent, Adalissa McDonough.

Tried below before Hon. ¡Norman G-. Kittrell. This is an appeal from a judgment upon a verdict for $3067.20 damages in favor of appellee, injured in voluntarily assisting servants in employ of the appellants. The facts necessary to understand the opinion are given in it.

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

<p>1. Title Bond by Married Woman Enforced.—A married woman can execute a valid bond for title or an executory contract to convey her separate real estate when joined by her husband and the instrument is properly acknowledged. Courts will enforce specific performance in such case against the wife.</p> <p>2. Conveyance of Wife’s Separate Property. —• The leading purpose of the statute (article 4310, Revised Statutes) prescribing the character of acknowledgment to any conveyance affecting the separate property of the wife was to secure freedom of will and action on part of the wife.</p> <p>3. Same.—The statute (Revised Statutes, article 4310) does not attempt to define the character of conveyance or contract which would be necessary to transfer the title to the wife’s separate property. Nor is such instrument changed or its legal effect altered by the privy acknowledgment of the wife. That examination is necessary to the validity of the instrument to the extent of showing that she executed it voluntarily, etc.</p> <p>4. Bond for Title.—A bond for title in this State it is well understood passes the superior title to the land in equity.</p> <p>" 5. Wife’s Right to Retract. — In the due execution by the wife of a title bond for land, her separate property, with privy acknowledgment and joined by her husband, the rights and liabilities of the parties to the instrument then attached, and they should not be impaired or affected by or made subject to the subsequent retraction by the wife. She had previously exercised and exhausted this right.</p> <p>6. Case Limited.-—Goff v. Jones, 63 Texas, 249, limited to executory contracts for the conveyance of the homestead.</p>

Tried below before Hon. John M. Henderson. On February 14, 1889, appellee, plaintiff below, filed this suit in the District Court of Brazos County, Texas, against Ed. Krall, Frank Stasney, William Franklin, and Y. C. Marek, to foreclose a chattel mortgage on a printing press and attachments described in the pleadings and mortgage. This mortgage was dated April 1, and was recorded April 21,1887.

<p>Appeal from Cameron. Tried below before Hon. James B. Wells, Special District Judge.</p>

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

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

<p>1. Homestead, Rural and Urban.—See facts and discussion thereon resulting in establishing the right of Pridgen and wife to a rural homestead, consisting of 10 acres on which is the residence and balance in cultivation and 190 acres lying three-quarters of a mile distant from the residence. Pridgen carried on a small store in a house owned by his wife in adjoining village of Pleasanton, was postmaster and railway station agent, besides cultivating his farm in part by his own labor.</p> <p>2. Vendor’s Lien—Waiver by Independent Security.—When land is sold on credit and the vendor taires any independent security for the debt the presumption, in the absence of evidence of some agreement to the contrary, is that the lien has been waived. See example.</p> <p>3. Same—Case Adhered to.—Hicks v. Morris, 57 Texas, 658, adhered to. The maker of a vendor’s lien note borrowing money for the purpose of taking up the lien note made a mortgage upon the land and executed his note to secure the loan, the money so obtained being applied to take up the lien note, there was no time in which the lien did not continue upon the land; held, that the vendor’s lien existed to secure • the note executed for the loan.</p> <p>4. Marshaling Securities.—-See decree adjusting homestead rights, and rights of a vendor’s lien and mortgage creditor and of judgment lien creditors in and to the land in litigation.</p>

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

<p>Appeal from Jefferson. Tried below before Hon. W. H. Ford.</p>

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

Tried below before Hon. George McCormick. This is a second appeal. The first is reported in 73 Texas, 277. Verdict and judgment were for $7500, and the defendant appealed. The report in former appeal and in the opinion give a statement.

Tried below before Hon. Geo. McCormick. Fowler and Haynes sued Simpson for two tracts of laud of 640 acres each. Simpson pleaded not guilty and limitation of five years. The case was tried by the court without a jury. Plaintiffs recovered one-lialf interest in the land. Both parties appealed, and in their briefs each party attacks the judgment so far as ad verse to them.

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

<p>1. Defenses in Trespass to Try Title.—The defendant in an action of trespass to try title pleaded not guilty and title under a foreclosure sale under a mortgage by a railway company, of which one Hunt was president; that Hunt had bought the land for the railway company. The plaintiff exhibited a title under Hunt. It was shown that he had paid for the land. Held, that under these defenses the defendant could not es-establish a parol executed sale by Hunt to it.</p> <p>2. Acts of Receiver.—The rights of the true owner of the property could not be prejudiced by any act or admission of a receiver who had it temporarily in charge. Acts of receiver were irrelevant upon the issue of title to the land in litigation.</p> <p>3. Immaterial Error.—As under the testimony no other judgment could have been rendered had the testimony to the acts of the receiver been excluded, the admission was immaterial.</p>

Tried below before Hon. Wm. H. Stewart. Suit was brought by Allen and wife for $2500 damages'for personal injuries negligently inflicted upon the wife while a passenger upon one of the cars of the defendant. The verdict and judgment were only for $12. The plaintiffs appealed. Other facts sufficiently appear in opinion.

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

<p>1. Insurable Interest.—In order to make a valid contract of insurance upon the life of one person for the benefit of another the beneficiary must have an interest in the life insured. When the person for whose benefit the policy is issued has no insurable interest the contract is held illegal upon two grounds; first, because it is against public policy to enforce a contract which malees it to the interest of one person to bring about the death of another; and second, because it is in the nature of a wager.</p> <p>2. Assignment of Policy on Life.—The rule of decision in this court is that if one person procures a policy on his own life for the benefit of a creditor and immediately assigns it to the latter, the creditor can claim under it only a sufficient sum to pay his debt, including any premiums advanced and costs of collection.</p> <p>3. Same.-—This rule applies equally to a case where the assignment was contemporaneous with the delivery of the policy and in pursuance with a previous contract to that effect.</p> <p>4. Case in Judgment.—The widow and children held entitled to such 'balance collected upon such policy by the creditor holding the policy, after paying his debt, advancements, and costs of collection.</p>

<p>Appeal from Tyler. Tried below before Hon. W. H. Ford.</p> <p>This is a second appeal. See 73 Texas, 324. The report in first appeal gives the facts.</p>

<p>Appeal from Trinity. Tried below before Hon. N. G-. Kittrell.</p>

<p>1. Mental Suffering Grounds for Actual Damages.—Action against the telegraph company for damages from delay in transmitting a message, “My child is very sick; come at once,” addressed to a physician; by reason of the delay the physician came too late, and the child died after much suffering. The testimony showed a condition of mental distress from the delay of the doctor to visit the child; i. e., mental anguish produced as the proximate result of the failure of the telegraph company to deliver the message according to the terms of the contract of sending it. Under the facts it was proper to instruct the jury that the defendant would be liable to plaintiff for its failure to use reasonable diligence to deliver the dispatch, for such sum as the jury might believe he should receive as compensation for mental suffering caused him by such failure.</p> <p>2. Same—Case Adhered to.—Stuart v. Telegraph Company, 66 Texas, 580, adhered to.</p> <p>3. Conflict of Evidence. — The testimony to the causal connection between the failure to deliver the dispatch and the failure of the doctor to take the night train which left after he received the dispatch was not clear, but was passed upon by the jury.</p>

<p>1. Costs Adjudged against Administrator in Partition Suit.—By the second paragraph of article 2037, Revised Statutes, "expenses of administration and the expenses incurred in the preservation, safe keeping, and management of the estate” are declared to he claims of the second class and have priority as such. Defending a suit brought for recovery of land, the property of the estate, against the administrator is a duty, and legitimate expenses in such defense are chargeable against the estate.</p> <p>2. Judgment upon Claims against Estates.—Article 2029, Revised Statutes, requiring judgments against administrators upon rejected claims against the estates represented by them to be filed with the clerk of the County Court within thirty days after the rendition, applies only to claims rejected by the administrator and subsequently established by suit. The statute does not apply to a judgment in the District Court for costs against the administrator in a suit affecting the property of the estate.</p>

<p>Error from Tyler. Tried below before Hon. W. H. Ford.</p>

<p>Appeal from Jefferson. Tried below before Hon. A. 0. Bullitt, Special District Judge.</p>

<p>Appeal from Harris. Tried below before Hon. Presley K. JEwing, Special District Judge.</p>

Tried below before Hon. W. H. Burkhart. This was an action for personal injuries, the plaintiff claiming $1999.99. He was a section hand of the Southern Pacific Railway Company. As a section hand the plaintiff was riding upon a hand car going to his work; was thrown from it and injured. Defendant pleaded denial and contributory negligence. Verdict for $1000. Judgment upon verdict. The defendant appealed.

<p>1. Conflicting Testimony—Master and Servant.—The plaintiff sued for personal injuries suffered by his coming in contact with dangerous and exposed machinery in a dark room. Defense was want of proper care by the employe. The evidence with regard to the knowledge by plaintiff of the danger, and with regard to his own negligence, was conflicting. The testimony for the plaintiff, if believed, was sufficient to sustain the verdict for him. Selcl, in such conflict the verdict will not be set aside as against the evidence. So also will the verdict conclude special matters submitted as a defense if found to be true.</p> <p>3. Practice — Examination of Witnesses.—The manner of examining witnesses is greatly under control of the trial judge. The counsel for plaintiff in cross-examination asked a witness a number of questions calculated to affect his credibility, and as if laying a predicate to impeach the witness. Upon objection some were withdrawn. No further effort was made to impeach. Held, that the action of the trial judge will not be revised, and the matter is no ground for reversal.</p> <p>3. Argument of Counsel.—When counsel uses improper argument and objection is made and sustained by the court, upon which the counsel retracts the statements, it will rarely be ground for reversal. See example.</p> <p>4. "Verdict.—See facts supporting a verdict for $9000 damages for personal injury.</p>

Tried below before Hon. Wm. H. Burkhart. This suit was instituted by James Gallaher, plaintiff, against the Hew York, Texas & Mexican Railway Company and the Southern Pacific Company, defendants, on the 24th day of March, 1888, charging defendants with having unlawfully discriminated against said Gallaher in charging and collecting from him the sum of 12-¡- cents per 100 pounds on a car load of lumber shipped by plaintiff over their roads on the 12th day of December, 1887,…