Volume 8 — Texas Civil Appeals Reports

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Carrier — Time Contract. — If a carrier has agreed to carry the goods to their destination and deliver them within a prescribed time, he will be hold to a performance of Ms contract, and no temporary obstruction, or even absolute impossibility, will be a defense to an action for failure to comply with the engagement.</p> <p>2. Receiver — Contract Void. — A receiver has no authority to contract for the shipment of freight over other railroads over which he has no control.</p> <p>3. Carrier — Deviation from Route. — See facts held to excuse a carrier in deviating from its regular and usual route.</p>

<p>Appeal from Presidio. Tried below before Hon. C. N. Buckler.</p>

<p>1. Evidence — Copy of Recorded Deed. — A certified copy of a deed which has been recorded in a county other than the county in which the land is situated, accompanied with an affidavit for the loss of the original deed, is not admissible in evidence. The clerk is only authorized to record in his office deeds concerning the title to lands in his county.</p> <p>2. Continuance — In Discretion of the Court, When. — When an application is not statutory, entitling the applicant to a continuance as a matter of right, but is such an application as is addressed to the sound discretion of the court, it will not be revised unless a very clear abuse of such discretion be shown. See opinion for application.</p> <p>ON MOTION EOR REHEARING.</p> <p>3. Reconvention — Nonsuit.—Appellees pleaded in reconvention to quiet their title, and although they were in possession, they could not be deprived of such right by appellants taking a nonsuit.</p>

Tried below before Hon. E. D. McClellan. The directors of tbe Bonham Hotel Company had no power to issue stock to defendants in payment of the Crockett House premises, for the reason that they at that date had not adopted any by-laws, without which they had no authority to issue stock, and they were prohibited by statutes from disposing of stock for the purchase of premises which the corporation could not hold after such purchase, and as defendants knew these facts, there…

<p>Appeal from Henderson. Tried below before Hon. W. Q. Reeves.</p> <p>The bare contingent possessory right held on the land in controversy by W. M. Sloan and his first wife at the time of her death was not title in esse nor in embryo, and any acquisition of right or title made by W. M. Sloan after his marriage to his second wife, whether by purchase from S. B. Lusk or by limitation, or by buying back in compromise the bare right to prescribe by and under the laws of- limitation, and whether such right has yet ripened into title, the land was not then, is not now, nor ever can be, community property of W. M. Sloan and his first wife. Rev. Stats., arts. 2852, 3215; Grigsby v. Peak, 57 Texas, 147; Hickman v. Withers, 83 Texas, 578: Bledsoe v. Cains, 10 Texas, 455; Craig v. Cartwright, 65 Texas, 421.</p>

Tried below before Hon. John L. Sheppard. 1. The plaintiffs could join all the defendants in the same suit, because all of said defendants participated in the said suit of Martin Read and Eliza Read against the plaintiffs, Finegan and wife, were interested in, and connected with the said suit. 2.

Tried below before Hon. E. P. Gregg. 1. The declarations of the agent made after the message had been transmitted, and not in connection with its acceptance or transmission, are not competent against his principal, the defendant company. Bailway v. Garrett, 52 Texas, 133; Gray’s Com. by Tel., sec. 137; Thomp. on Elec., sec. 458; Abb. Trial Ev., sec. 51; Bank v. Bank, 60 N. Y., 278; Grinnell v. Tel. Co., 113 Mass., 299, 307; Tel.

<p>Appeal from Fannin. Tried below before Hon. B. D. McLellan.</p> <p>1. The beneficiary must have an insurable interest in the life of the insured, and it must affirmatively so appear in bis pleadings. Burton v. Ins. Co., 119 Ind., 207; Ins. Co. v. Hogan, 80 111., 35, 38; Lyleton v. Ins. Co., 66 Mo., 63, 75; Freeman v. Ins. Co., 38 Barb., 247; Cbrisman v. Ins. Co., 16 Ore., 283; Ins. Co. v. Ins. Co., 81 Ala., 328; Warnok v. Davis, 104 H. S., 775; Ins. Co. t. Bunch, 19 S, W. Rep., 25; Whitmore v. Ins. Co., 100 IT. S., 36; Ins. Co. v. Hayard, 41 Ind., 116; Ins. Co. v. Hoyt, 9 N. W. Rep., 497; Brockaway v. Ins. Co., 9 Fed. Rep., 249; Ins. Co. v. Houghton, 13 Ins. L. J., 895.</p> <p>2. The insured expressly warranted that her answers to questions 16, 17, and 18 were true as written down in her application, and she offered said answers as same appear in the application to the defendant as a consideration of the contract, and the policy issued upon said application contained a clause that no agent had power to modify the contract or to bind defendant by making any promise or by receiving any representation or information not contained in the application. Under these circumstances, plaintiff can not avoid the effect of false answers to said questions by showing the insured made such answers through inadvertence, mistake, or by advice of the medical examiner. Fitzmaurice v. Ins. Co., 84 Texas, 61; Ins. Co. v. Hutchins, 53 Texas, 62; Ins. Co. v. Coffee, 61 Texas, 287; Ins. Co. v. Willis, 70 Texas, 12; Wood on Ins., sec. 404; Sternnettv. Ins. Co., 68 Iowa, 674; Boggs v. Ins. Co., 30 Mo., 63; Flynn v. Ins. Co., 67 N. Y., 500; Ins. Co. v. Hazlewood, 75 Texas, 338; Ins. Co. v. Foundry, etc., 15 S. W. Rep., 34; Ins. Co. v..Blum, 76 Texas, 653; Ins. Co. v. Dyches, 56 Texas, 565; Bank v. Ins. Co., 62 Texas, 461; Cohen v. Ins. Co., 67 Texas, 325; Cooke on Life Ins., secs. 20-22; May on Ins., 3 ed., secs. 137, 144f, 144g; Ins. Co. v. Lacroix, 45 Texas, 158; Ins. Co. v. Lewis, 48 Texas, 622; Ins. Co. v. Lyons, 38 Texas, 253; Ins. Co. v. Jacobs, 56 Texas, 366; Ins. Co. v. Davidge, 51 Texas, 244; Ins. Co. v. Fletcher, 117 U. S., 519.</p> <p>3. If Mrs. Downey made the application for insurance on her own life, but did so at plaintiff’s request, and he was to pay the premiums and to receive the policy, and plaintiff and Mrs. Downey confederated to procure the policy, and she did not owe plaintiff a sum reasonably proportioned to the insurance taken out, then the contract was a mere cover to enable plaintiff to speculate on her life, and was void. Ins. Co. v. Hazlewood, 75 Texas, 338; Ins. Co. v. Shaefer, 94H. S., 460.</p> <p>4. Facts of family history, such as births, marriages, and deaths, and the times when these events happened, may be proved by hearsay evidence. Primm v. Stewart, 7 Texas, 178; Campbell v. Wilson, 23 Texas, 252; North Brookfield v. Warren, 16 Gray, 171; Watson v. Brewster, 1 Pa. St., 381; Greenleaf v. Bailway, 30 Iowa, 301; David v. Sittig, 1 Martin (U. S.), 147; same case, 14 Am. Dec., 179; Wilson v. Brownlee, 24 Ark., 586; Collins v. Grantham, 12 Ind., 440; Clements v. Hunt, 1 Jones’ L. (N. C.), 400; Cherry v. The State, 68 Ala., 29; Hunt v. Ins. Co., 64 Mich., 671; Ins. Co. v. Bosenagle, 77 Pa. St., 507; Abb. Trial Ev., 90, et seq.; 1 Greenl. on Ev., secs. 103, 104; 1 Whart. on Ev., sec. 201, et seq.; Curtis v. Patton, 6 S. & B. (Pa.), 134; Bailway v. Coggin, 73 Ga.; Morrill v. Foster, 33 N. H., 379; State v. Cain, 9 W. Ya., 559; Hill v. Eldridge, 126 Mass., 234; Cheever v. Camden, 34 Mich., 296; Yan Sickle v. Gibson, 40 Mich., 170; Arnes v. Middleton, 23 Barb., 571; Chapman v. Chapman, 2 Conn., 347.</p> <p>1. The policy of insurance was executed and delivered to appellee, showing the obligation of the company. It is only necessary to allege the execution of the same for valuable consideration, its breach, and a liability of the company. Wooters v. Bailway, 54 Texas, 294; Yan Norman v. Wheeler, 13 Texas, 316; Ins. Co. v. Dyehes, 56 Texas, 565.</p> <p>2. The amended petition with the exhibit shows the appellee had the right to institute this suit without reference to interest, and appellant could not question the right. Ins. Co. v. Hazlewood, 75 Texas, 338; Lewy v. Gillard, 76 Texas, 400; Goldbaum v. Blum, 79 Texas, 638.</p> <p>3. The answers to questions 16, 17, and 18 contain the opinion of appellant, and she had aright to rely on the opinion of the company’s medical examiner, who had knowledge on the subject about which she was questioned, and about which she was ignorant. Bliss on Ins., 2 ed., secs. 106-109; May on Ins., 3 ed., sec. 296; Holmes v. Ins. Co., 1 Wood, 674, 680; Hazlewood v. Ins. Co., 75 Texas, 338; Ins. Co. v. Chamberlain, 132 H. S., 304, 312; 22 S. W. Bep., 204.</p> <p>4. A suit by a beneficiary in a life insurance policy, taken out by another for plaintiff’s benefit for the amount of the policy, involves no question of pedigree, and in such cases hearsay testimony is not admissible. Ins. Co. v. Swinck, 94 H. S., 593.</p> <p>5. The declarations of Anderson Downey as to the date of his birth, and that his wife was born some years thereafter, were not admissible in evidence, because the law does not permit hearsay evidence to prove a specific fact, collateral from which it is sought to infer some other fact, however closely it is connected with the main subject of the investigation. 1 Dice on Ev., secs. 418, 419; Isenlord v. Clum, 126 N. Y., 552; Abb. Trial Ev., p. 91; Squires’ Ev., sec. 582; Am. and Eng. Encyc. of Law, 257, 258.</p>

Tried below before Hon. T. J. Brown. 1. Tbe conrt erred in.tbe third instruction of its charge to tbe jury, in instructing them that tbe defendants were to be held liable, “if tbe defect was of such a character that it might have been discovered by an inspection and examination of said car with reasonable care.” Thus allowing a recovery if it were possible that reasonable care could have discovered a defect, though the jury should believe that reasonable care in the…

<p>Appeal from Navarro. Tried below before Hon. Rueus Hardy.</p> <p>1. Appellees having intrusted Cherry, Brown & Co.’s agent, to deliver to appellant the drafts in question, were bound by the statements made by Cherry to appellant at the time of and in connection with such delivery, and such statements were admissible: (1) because res gestas of the delivery; (2) because they were declarations made at the time of and within the scope of his agency, and with reference to the subject matter thereof; and (3) because explanatory of Cherry’s possession of said drafts.</p> <p>2. Appellant held the cotton purchased by appellees from Brown & Co. as collateral to secure the indebtedness of Brown & Co. to it. Brown & Co. were insolvent, and their indebtedness to appellant exceeded the value of the cotton. Such being the facts, appellant, by virtue of its lien upon the cotton, had the legal right to hold the same until they received the full market value thereof, or until the account of Brown & Co. should be paid.</p> <p>If Cherry was the agent of Slayden & Clarkson for any purpose, it was simply for the delivery of the two drafts he was the bearer of; the proper application of the funds appellees had already arranged for. Brothers v. Mundel, 60 Texas, 240; 3 Ct. App. C. C., sec. 334; 1 Jones on Liens, secs. 63, 64.</p> <p>Where there is no controversy about the fact proven, we do not understand that it is improper for the court in its charge to assume that the fact is proven. Teal v. Terrell, 58 Texas, 261; 18 Texas, 871; 20 Texas, 294.</p> <p>This testimony was proper, because appellants were shown to be in the bauking business, and there being no express contract between Slayden So Clarkson and appellant that the drafts drawn by them should go to their credit, what was the usual custom among banks under this state of facts became important and relevant in order to show the bank’s duty to its customers. Wooters v. Kauffman & Bunge, 73 Texas, 397, 398; 67 Texas, 492; Meaher v. Lufkin, 21 Texas, 382, 383.</p>

Tried below before Hon. J. M. Hall. 1. The instrument attached to plaintiff’s petition marked “Exhibit A,” and made a part thereof, shows upon its face that it is a deed of trust and not an assignment, and therefore said petition shows no cause of action. Preston v. Carter Bros. & Co., 80 Texas, 388; Watterman y. Silberberg, 67 Texas, 100; Hudson v. Milling and Elevator Co., 79 Texas, 401. 2.

Tried below before Hon. Rufus Hardy. An attorney engaged in the trial of a cause is recognized as an officer of the court, and the law enjoins upon him, in the conduct of his client’s cause, the duty of assisting the court in arriving at such result as comports with justice administered under the rules of law and of the court; and a deviation from such practice is not in harmony with the true administration of justice, and should not be tolerated by the court.

Tried below before Hon. E. W. Terhune. 1. When a passenger is asleep when his point of destination is reached, and he fails to leave the train until the train is in motion, then he can not recover from the railway unless the employes in charge of the train compel him to leave it. 2.

Ebbob from Grayson. Tried below before Hon. P. B. Muse. 1. The mere use of the rents of a tract of land for the support of the family will hot make such tract the homestead. In order to be a homestead, the land must be used for the purpose of a home, or as a place to exercise the calling or business of the head of the family, or must be used in connection with and appurtenant to the land upon which the family actually resides and owns.

Cboss-appeal from Houston. Tried below before Hon. A. B. Watkins. 1. The court erred in admitting the deeds of D. Becton and wife, M. D. Becton, to J. P. Delespine, and by the latter to Hughes, for the reason they do not describe the land in controversy, or any land whatever.

Tried below before Hon. J. C. Bussell. 1. The court erred in sustaining the general demurrer of defendant. Power to erect wharves and fix rates of wharfage: Special Laws 8th Leg., chap. 190, sec. 6, p. 208. Construction of power: McDonnell v. Bailway, 60 Texas, 591. Power to contract and lease: Special charter city of Corpus Christi, -Special Acts 1873, to be treated as public act, secs. 1, 32, 33, 104, 160, 187, 194, 196. As to wharves, etc.: Id., sec. 104.

Tried below before Hon. James T. Polley. 1. Held: that the statute of this State in reference to fellow servants in force at the time of the accident in question did not apply to receivers. 1. The discharge of a receiver shall not work an abatement of the suit against the receiver, nor shall it in any way affect the right of the party to sue the receiver if he sees proper.

<p>Error from Galveston. Tried below before Hon. W. H. Stewart.</p> <p>1. To entitle the plaintiff in execution to recover the penalty prescribed by article 2321, Revised Statutes, he should proceed promptly by motion as soon as practicable after the noncompliance with the bid; and if he allows a term to elapse he should show good cause for so doing, and seek the summary redress authorized by the statute not later than the next term. Scogins v. Perry, 46 Texas, 113; Donley v. Wiggins, 52 Texas, 301.</p> <p>2. The judgment is in favor of George F. Schneider and Charles A. Schneider, composing the firm of Schneider Bros. It is nowhere averred that they were parties to the proceeding. The motion was filed by George Schneider So Co., a firm composed of Charles A. Schneider. The plaintiff in the motion and those named in the judgment are not the same, nor do they even have the same firm name. No other plaintiffs than those mentioned in the pleadings can recover judgment. Dunlap v. Southerlin, 63 Texas, 42.</p>

Tried below before Hon. S. H. Brashear. • 1. The only diligence required of appellant was to deliver these telegrams at the Two Orphans saloon. Tel. Co. v. Young, 13 S. W. Bep., 985. 2. Damage for mental suffering sustained by plaintiff by not seeing his child until decomposition had set in, was too remote and speculative. Hard v. Tel. Co., 22 S. W. Bep., 534.

<p>1. Liability of Purchaser of Railway from a Receiver. — January 18, 1889, the receiver, under order of the United States Circuit Court, convened to Olcott the. Houston & Texas Central Railway, but by virtue of certain restraining orders fiom that Court, retained possession of the road until April 10,1893, when he delivered the same to the Houston & Texas Central Railway Company, which had on the 1st of April, 1890, purchased the road from Olcott. During the time the road was in the hands of the receiver, half a million dollars of its earnings had been expended in betterments. January, 1893, Kelly, a brakeman, was killed in a wreck on said road, and in February, 1893, his widow sued the receiver and the Houston & Texas Central Railway Company for damages. Held, that the following charge should have been given: “The undisputed evidence shows that the defendant, the Houston & Texas Central Railway Company, and all its rights and franchises, were sold to Frederic P. Olcott, and that said orders and decrees in said court (the United States Circuit Court) conveyed said property to the said Olcott without incumbrance and clear of all debts and incumbrances; and it further appearing that said court had exclusive jurisdiction of the case in which said orders were entered, and that all parties having claims against the property or funds in the hands of said court were required to intervene by petition in said cause on or before the 3rd day of October, 1893, and the evidence shows-that plaintiff did not intervene in said cause, and you will find a verdict for the defendant.”</p> <p>2. Effect of a Sale of the Road. — Under the general rules of law as administered in the courts of equity, a railroad corporation is not liable for damages sustained by the negligence of the receiver while operating the road, except when the road is returned without sale to its owner, with improvements made thereon by the receiver out of the earnings of the road while in his possession. If there be a sale of the property under the decree of the court, the purchaser takes it, together with whatever improvements may have been made by the receiver, free from all charges or burdens, except such as may have been imposed by the decree, or such as may have existed prior thereto.</p> <p>3. Jurisdiction of Circuit Court — Plaintiff’s Remedy. — The Circuit Court in which the receivership was pending had exclusive jurisdiction of the property and assets of the railway company. The Act of Congress of 1887-1888 permits a receiver to be sued in any other court without first obtaining permission from the court where the receivership is pending, but provides that the latter court is not to be deprived of or impeded in the exercise of its equity jurisdiction and powers; and that court having provided for the payment of all just claims against either the receiver or the road, or its property, and required all persons having claims to present them to that court within a reasonable time, the plaintiff should have applied there.</p> <p>4. Receivers’ Act of 1889. — The Act of the Legislature of Texas of 1889, known as the “receivers’ act,” has no application to receivers appointed by the federal court.</p> <p>5. Can the Road be Made Liable. — If the plaintiff could by proper pleadings show that the road was not in fact sold to Olcott, that he was only the ostensible purchaser, but was the agent of the company to receive its property from the receiver through the guise of a sale under judicial decree, and betterments made subsequent to the purchase are shown, could it be made liable? The question left undecided.</p>

Tried below before Hon. W. J. Graham., 1. The judgment rendered in the case of Smith et al. v. Dan Briggs, Homer Cadenhead, Perry Liston, and J. F. Reed was a final judgment as rendered on the 23rd day of October, 1891, settling the rights of all the parties adjudicated therein, as to all parties concerned, and after the term elapsed and the minutes were signed, the court could not set it aside without the consent of each party affected thereby; and the judgment rendered at…

<p>1. Insufficient Acknowledgment. — The following acknowledgment is insufficient to a deed signed 1f. M. McKinzie: 1 ‘ This day F. M. McKezie acknowledged that he signed the foregoing instrument for all the purposes and intentions therein contained. The above was acknowledged before me this 7th day of September, 1870. E. Andrews, J. P., beat number 3, A. Co.; ex officio notary public A. Co.”</p> <p>2. Insufficient Description in Private Deed. — A deed which describes the land conveyed as ‘ ‘ 343 acres lying and being situated about six miles northwest of the town of Palestine, in Anderson County, being a part and parcel of a tract of land of 543 acres which included the homestead of McK., being the P. headright survey, and the S. grant conveyed to me by L. 'by deed dated September 23, 1870, to which reference is made, ” is insufficient, when it appears that the deed referred to is as indefinite in description as the deed made.</p> <p>. 3. Defective Description — Supplying Defects by Parol.. — The deed was not sufficient in its description to warrant its admission in evidence in support of the pleas of five and ten years limitation, and it was not competent to supply the defects in the description by parol testimony.</p> <p>4. Ten Years’ Adverse Possession. — Upon proof of ten years’ adverse possession of the 543 acres, defendant would be entitled to recover 160 acres thereof, to include his improvements, or to the extent of his inclosure, if of more than 160 acres.</p>

Tried below before Hon. S. F. Gimmes. 1. When a purchaser of land holds under a deed with a warranty, he can not resist the payment of the purchase money for defects in his title, unless he shows with reasonable certainty that the title has failed either in whole or in part, and that he has been evicted; and if no eviction has occurred, then that he is liable to eviction by a superior outstanding title of which he had no notice at the time of his purchase.

Tried below before Hon. J. C. Russell. 1. In the absence of a statute declaring- that the act complained of is.negligence, the entire question of negligence, the negligence of the defendant and the contributory-negligence of the plaintiff, is a question of fact for the exclusive determination of the jui-y, and in suits for negligence, it is incompetent for the trial judge to decide the issue of negligence, either by sustaining a general demurrer to the plaintiff’s petition…

Tried below before Hon. J. P. Orr. 1. The notes that the suit grew out of stipulate, ‘ ‘ and. if collected by suit or by attorney 10 per cent upon the whole amount then due shall be added to the amount of this note and be collected as attorney’s fees.” This is a conditional contract, with a condition precedent which must happen before that part of the contract is in force and effect, and before the attorney’s fees can be treated as a part of the note. 2.

<p>1. Master and Servant — Assumed Risk. — If the servant, with knowledge of a defect in the master’s premises, and of the danger and risk incident thereto, continues in the service of the master without proper notice to the latter, he assumes the risk incident to the service and growing out of the defect; and this without regard to the degree of care which he may exercise in the performance of his labors.</p> <p>2. Contributory Negligence and Assumed Risk Distinguished.- — The defenses of contributory negligence and of assumed risk are separate and distinct, the doctrines being applicable under different conditions; and it was error in the charge of the court to fail to clearly distinguish between them. See the opinion.</p>

<p>Error from Tarrant. Tried below before Hon. W. D. Harris.</p>

Tried below before Hon. R. E. Beckham. 1. The court erred in not permitting plaintiff to file a trial amendment to bis pleadings, and in not permitting plaintiff to withdraw bis announcement of ready for trial, on tbe ground of surprise. 2.

Tried below before Hon. T. H. Conner. 1. Where claims are such that, although they might be joined, they must be separately stated as separate causes of action, even though they arose at the same time or on the same contract, a judgment on one does'not bar an action on the other. 3 Willson’s C. C., secs. 346, 360, 432. 2. The true test is, whether the same cause of action was litigated • and adjudicated in the former action that is involved in the second suit.

1. The court erred in rendering judgment for the plaintiff upon the conclusion of law as found, that there was no order of confirmation of the County Court of the investment by the guardian, Hattie A. Crisp, of the money of her wards in the lands in controversy, for the reasons: (1) that the court had ordered a sale of the bonds; (2) that said sale had been reported to the County Court; (3) that an investment in said lands had been ordered by the County Court; (4) that the…

<p>Appeal from Brown. Tried below before Hon. F. C. Wilkinson, Special District Judge.</p> <p>The facts are fully given in the opinion.</p> <p>1. Appellant Nora Harbeson being-protected from the operation of the statute of limitation, appellee could not recover her interest in the land in controversy by the plea of the statute of limitations. Beall v. Evans, 20 S. W. Rep., 945; Flanagan v. Pearson, 61 Texas, 302; Church v. Waggoner, 78 Texas, 200; Moody v. Butler, 63 Texas, 210; Cole v. Noble, 63 Texas, 432; Teal v. Terrell, 58 Texas, 257.</p> <p>2. D. Q. Anderson having purchased an undivided interest in the land in controversy, and having put a part of same in cultivation, it is presumed that he expected to take his interest in the whole where his improvements were, and not taking actual possession of the balance until just before the filing of this suit, it is presumed that appellee did not claim adversely to appellants; hence, there being no repudiation of appellants’ claim to the unoccupied part, appellee can not recover of these appellants. Rev. Stats., arts. 3194, 3195; 2 Sayles’ Real Estate Laws, art. 714; McCurdy v. Locker, 20 S. W. Rep., 1109; Norton v. Collins, 20 S. W. Rep., 1113; Bracken v. Jones, 63 Texas, 184; Moody v. Butler, 63 Texas, 210; Sellman v. Hardin, 58 Texas, 86.</p>

Tried below before Hon. J. W. Timmins. The opinion gives a full statement. The facts show that the note sued on was given in part purchase for the three-fourths interest in the irrigating ditch, the title to which had failed, and entitled defendant, he having already paid appellees $3250 on said land, to interpose his plea of failure of consideration of said note, as appellees were beyond the jurisdiction of the court, and had no property in this State.

Tried below before Hon. W. A. Blackburn. The opinion gives a sufficient statement. The court erred in sustaining plaintiff’s general exception to intervenor’s second amended original answer, because said answer showed, and plaintiff’s amended petition admits, that the intervenor has an interest in the subject matter of this suit, and sets up a cause of action entitling him to relief. Ohitty’s Plead., 547; Gould on Plead., chap. 9, sec. 22; Id., chap. 3, sec. 192; Pom.

Tried below before Hon. W. J. Wingate. 1. To constitute a valid mortgage, there must be an acceptance by tbe mortgagee. Without this there is no mortgage, but only a proposition to make one.

Tried below before Hon. L. W. Goodrich. The opinion gives a full statement. 1. The entry on the land with intent to'claim the whole is an ouster of the other cotenants, and an adverse entry. Freem. on Coten., 2 ed., secs. 223, 224; 1 Am. and Eng. Encyc. of Law, 234; Shumway v. Holbrook, 1 Pick., 117; Jackson v. Smith, 13 Johns., 411; Dikeman v. Parrish (Pa.), 47 Am. Dec., 455. 2.

Error from McLennan. Tried below before Hon. L. W. Goodrich. 1. To warrant or authorize a judgment by agreement, the agreement upon which it rests must be in writing and filed in the cause before such judgment can be rendered, and the same must be before the court for inspection, otherwise the presumption will be that the judgment was rendered without such agreement. Rule 47 for the District Courts. 2.

<p>Appeal from Williamson. Tried below before Hon. F. G. Morris.</p> <p>1. The original message as filed for transmission being plainly addressed to Mrs. G. M. May, instead of to Mrs. G. W. May, as alleged in the petition, was improperly admitted in evidence, over defendant’s objection that it varied materially from the message described in plaintiffs’ petition; and when the confessedly correctly transmitted copy thereof was offered, wherein the said variance was rendered manifest beyond legitimate controversy, as the court was then bound in law to judicially know, and as was manifest by inspection of the paper propounded in evidence, the court erred in not sustaining defendant’s objection to the admission of the said transmitted copy, because it varied from the allegations in plaintiffs’ petition, and in refusing to then withdraw the original copy in evidence, over defendant’s objection, because of the now manifest variance. Brown v. Martin, 19 Texas, 343; Bailway v. Hanna, Ct. App. C. C., sec. 495; Shipman v. Fulcrod, 42 Texas, 248.</p> <p>2. The stipulation requiring notice in writing to be filed with the company was not complied with by notice filed with an operator or some officer of the company with authority in that respect; and the Act of the Legislature of Texas, in so far as it seeks to change the rule of law in this respect, is invalid, because it contains more than one subject.</p> <p>As to validity of stipulation, and whether notice to agent is sufficient: Tel. Co. v. Bains, 63 Texas, 27.</p> <p>As to validity of Act of Legislature: Const., art. 3, sec. 35; Acts 22nd Leg., chap 17, Session Acts, p. 20; Giddings v. San Antonio, 47 Texas, 548; Peekv. SanAntonio, 51 Texas, 490; Cool. Const. Lim., 170.</p> <p>3. The charge does not require the jury, in order to find for the plaintiffs, to find that if the message had been delivered with due diligence such delivery would have been in time for plaintiff to take the train, and that she could and would have taken the train and arrived in time to see her mother die.</p> <p>4. The court erred in refusing defendant’s special charge with respect to defendant’s right to establish reasonable rules and regulations fixing office hours for its business with the public. Tel. Co. v. Bruner, 19 S. W. Bep., 149; Tel. Co. v. Merrill, 22 S. W. Bep., 826; Tel. Co. v. Broesche, 72 Texas, 654; Tel. Co. v. Bosentreter, 80 Texas, 406; Tel. Co. v. Harding, 103 Ind., 505; Given v. Tel. Co., 24 Fed. Bep., 123; Gray on Com. by Tel., sec. 13.</p>

Tried below before Hon. A. L. MoLane. 1. An assignee of a part only of an indebtedness not yet due by a third person is not entitled to priority of payment by such third person over a plaintiff in garnishment, where the writ of garnishment is served on said third person before either the plaintiff in garnishment or the said third person had any notice of such assignment. 2.

<p>Appeal from Bexar. Tried below before Hou. W. W. King.</p> <p>1. Probate Courts have no jurisdiction to appoint administrators of their own motion, and their jurisdiction can only be called into exercise by the presentation of a petition showing the existence of such causes as the statute prescribes as authorizing the appointment of an administrator, viz., debts or other obligations of the decedent; and the only cause shown in the petition on which the grant of letters to Stribling was based was not one of said causes. Paul v. Willis, 69 Texas, 264; McNally v. Haynes, 59 Texas, 585; McMahan v. Bice, 16 Texas, 537; Pasture Co. v. Boon, 11 S. W. Bep., 544; Duncan v. Veal, 49 Texas, 603-610; Freem. on Void Jud. Sales, sec. 2; Hart. Dig., art. 1088; Borer on Jud. Sales, 237-242.</p> <p>2. An administrator has no general power to sell the land belonging to an estate, but can only legally do so by authority of a valid petition</p> <p>and order of the Prohate Court, and a sale by him without such petition or order, or of property not authorized by order of court to be sold, or of a different parcel than that which he is directed in such order to sell, is void, and no confirmation can validate it. Trousdale v. Executors, 35 Texas, 759; Finch v. Edmonson, 9 Texas, 512-515; Withers v. Patterson, 27 Texas, 501; Duncan v. Veal, 49 Texas, 603-610; Borer on Jud. Sales, secs. 10, 477.</p> <p>3. If the order of confirmation was admissible (when offered) without an order to sell the property therein described, it was error to consider the same as a basis for the execution of the deed, after the illegality of the appointment of Stribling as administrator had been shown by the record evidence; and that the sole object for which he was appointed was not one prescribed or contemplated by the statute authorizing the granting of letters, and after it had been shown that the land sold was not the land described in the order of sale recited in the deed, as authority for making it. Same authorities as .under last proposition; and also Fisk v. Norvel, 9 Texas, 13; Pryor v. Downing; 50 Cal., 398; Withers v. Patterson, 27 Texas, 497; Stegall v. Huff, 54 Texas, 193.</p> <p>1. The County Court having acquired jurisdiction over the estate of H. W. Karnes, deceased, had authority, upon the death of the administrator Luckie, to appoint an administrator de bonis non, and the order granting such administration reciting the presentation of a petition for such letters, it must be presumed after thirty years, and in the absence of the petition, that the petition alleged legal and sufficient cause therefor. Hart. Dig., art. 1127; Guilford v. Love, 49 Texas, 717; Hurley v. Barnard, 48 Texas, 83; Saul v. Frame, 22 S. W. Bep., 984; 3 Texas Civ. App., 596; Lyne v. Sanford, 82 Texas, 59.</p> <p>2. The confirmation of the administrator’s sale and administrator’s deed thereunder control the order of sale and passed title even without any order of sale. Butler v. Stephens, 77 Texas, 603; Tom v. Sayers, 64 Texas, 341.</p>

<p>Appeal from Webb. Tried below before Hon. A. L. McLane.</p> <p>1. If the money paid by Smith was not by way of a loan, and Anderson had the privilege of refunding it if he pleased within a given time, which would have entitled him to a reconveyance of the shares of stock, it was a conditional sale. De Bruhl v. Maas, 54 Texas, 472; Alstin v. Cundiff, 52 Texas, 461, 462; Hudson v. Wilkinson, 45 Texas, 452; Buffer v. Womack, 30 Texas, 332.</p> <p>2. The court erred in its judgment entitling plaintiff to recover the stock without requiring him to pay the $500 and interest.</p> <p>3. In decreeing a return of the sixty-eight shares by appellant, the court should have provided by the decree the time within which appellee should pay to appellant the $500, together with interest thereon. Kalklosh v. Haney, 23 S. W. Bep., 420.</p> <p>4. Specific performance of a contract respecting personal property will not be enforced in equity, unless an adequate remedy at law can not be had. Taylor v. Gillean, 23 Texas, 517; Eckstein v. Downing, 10 Am. St. Bep., 404-409; Foil’s appeal, 36 Am. Bep., 671-674; Cowles v. Whitman, 25 Am. Dec., 60-63; 22 Am. and Eng. Encyc. of Law, 989, 991-994;' 2 Pom. Eq. Jur., secs. 1402, 1403.</p> <p>1. The petition is not insufficient on the ground urged, viz., that appellee should have asked relief in the alternative for the value of the property in controversy. If the facts alleged in the petition are true, then the relief prayed for should be granted. Bev. Stats., arts. 1122,1187,1195; Trammel v. Watson, 25 Texas Supp., 210; Voigtlander v. Brotze, 59 Texas, 286; Hardy v. De Leon, 5 Texas, 246, 247; Hipp v. Huchett, 4 Texas, 20.</p> <p>2. The statement made by appellee to Denike, to the effect that he had sold the shares of stock to appellant, reserving the right to redeem the same in thirty days, does not in itself evidence a conditional sale, and would not do so if put in writing and signed by appellee; but if it could be construed as a conditional sale, yet the character of the transaction was to be ascertained by the court from all the attendant facts and circumstances, and the question to be determined was one of fact and not of law. Alstin v. Cundiff, 52 Texas, 453; Calhoun v. Lumpkin, 60 Texas, 185; Hubby v. Harris, 68 Texas, 91; Harvey v. Edens, 69 Texas, 420; Miller v. Ytrurria, 69 Texas, 549; Thompson v. Chumney, 8 Texas, 389.</p> <p>3. The court found from the evidence that the shares of stock about which the controversy arose were pledged to appellant; such being the transaction between the parties, the title to said shares remained in appellee, and could not be divested without a sale thereof after notice to appellee. Luckettsv. Townsend, 3 Texas, 119; Jones v. Thurmond, 5 Texas, 318; King v. Ins. Co., 58 Texas, 669; 18 Am. and Eng. Encyc. of Law, 667, 668, 710, 720.</p>

Tried below before Hon. A. L. McLane. 1. The court having elected to present special issues to the jury, committed a reversible error in not so submitting every material question in the case. Frost v. Frost, 45 Texas, 324. 2. General charges upon two issues, and special questions submitting only one of said issues, and a verdict for defendant based upon said special questions, is not a finding upon the issue not submitted in a special question.

<p>1. Jurisdiction — Plea in Abatement — Charge of Court. — Where, at the time of institution of the suit, the defendant has removed to another county, and he pleads in abatement his privilege to be sued in such other county, and the evidence leaves it uncertain whether or not he has removed there permanently, and with no intention of returning, it is proper to charge the jury, that if defendant is residing in such other county with the intention of remaining there, and not with the intention of living there temporarily and then returning to his former home, they should find the plea in abatement to be true, and go no further.</p> <p>2. Same — Domicile—Intention.-—On the question of domicile, when none of the physical facts are in dispute, the person’s intention is the sole issue.</p>

Tried below before Hon. Geo. H. Noonan. 1. A conveyance made in behalf of a corporation, and not authorized by some act or resolution of the corporation or its governing body, and not afterwards ratified by the corporation, is not tíre deed of the corporation nor binding upon it. Such conveyance is invalid except so far as it may be authorized. 2 Dill. Mnn.

Tried below before Hon. R. B. Burke. 1. The charge makes the defendant guarantee the safety of those who ride on its oars.

Error from Dallas. Tried below before Hon. Edward Gray. 1. Tbe court erred in bolding that plaintiff could maintain a suit for tbe collection of its taxes. Bordages v. Higgins, 1 Texas [Civ. App., 43; City of Fort Worth v. Davis, 57 Texas, 237; Allen v. City of Galveston, 51 Texas, 318; Wood v. City of Galveston, 76 Texas, 132; Cool, on Tax., 13, 300, 464; Dill. Mun.

Tried below before Hon. R. E. Burke. 1. Where a judgment was rendered more than a month previous to the making of a motion for a new trial, and is in conformity with the pleading on file at the time, and supported by evidence, a trial court can not set it aside, even at the same term of the eourt, unless it clearly appears that, without any fault on the'part of the party moving to set it aside, it is grossly unjust, and that the party complaining had a good defense which he…

Tried below before Hon. E. D.. McClelland. 1. The testimony of the witness Hancock, to the effect that the defendant McBath had tried to hire him to burn another building besides the one in which he was doing business, tended to prove no issue in the case, was calculated to prejudice the jury, and should have been excluded. 2.

Tried below before Hon. T. F. Nash. 1. Where a suit is brought to foreclose a lien on property, the value of the property determines the jurisdiction of the trial court and the jurisdiction of this court to entertain an appeal. Smith v. Giles, 65 Texas, 341; Marshall v. Taylor, 7 Texas, 233; Fisher v. Bogart, 2 W. & W. O. C., sec. 121; Cotulla v. Goggan, 77 Texas, 32. 2.

Tried before Hon. J. M. Hall. 1. Plaintiff was not a passenger , but merely a licensee, when he went on the train to assist his wife in obtaining a seat.' Being a mere licensee, he assumed the risk of the train’s starting before he could get off, not having notified the conductor of his purpose in going on the train. The defendant is not liable for his injuries, inasmuch as he failed to establish that he notified the conductor of his purpose in going on the train.

Tried below before Hon. E. D. McClelland. 1. The court erred in refusing to charge as follows: “If you believe from the evidence that deceased voluntarily went upon defendant’s track at a place of danger and exposed himself to peril from approaching trains, and that he had the intelligence to appreciate the dangers of the situation, and the discretion to avoid them, then plaintiff can not recover, and you will find for the defendant.” Railway v. Ryon, 70 Texas, 56; Railway…

<p>1. Right of Intervention. — When a suit is brought for the value of certain timber sold to the defendants, and a third party claims the land upon which the timber was grown, and from which it was cut, such third party has no right to intervene in the suit for the recovery of the value of the timber, her claim being for damages for trespass upon her land.</p> <p>2. Same. — Plaintiff sued out an attachment and had it levied upon property belonging to the defendants; but as the intervenor was not claiming title to the property levied upon under the attachment, there was no occasion for her to file a claimant’s bond and affidavit.</p> <p>8. Jurisdiction of the County Court in Trespass on Land. — When the County Court has jurisdiction of a cause of action, and it becomes necessary to inquire incidentally into the title to. land, in order to determine the question of liability, that court has jurisdiction to pass on such question in order to properly decide the cause before it. It thus has jurisdiction of suits to recover damages for trespass upon land.</p> <p>4. Intervenor Must Have an Interest in the Subject Matter of the Suit.-— The suit was to recover upon a contract to which the intervenor was neither a party nor a privy. Her right of action was against both parties for damages for trespass upon her land, and cutting her timber; she was not therefore entitled to intervene.</p> <p>5. Defendant’s Right to Have Intervenor Made a Party. — Plaintiff being insolvent, if he represented himself to defendants to be the owner of the land and timber, but was not, and induced the defendants to buy in the belief that they were getting a good title, and they are likely to be held liable by the true owner of the timber for its value, they would have the right to have plaintiff made a party to any suit brought against them by the intervenor, and she being now before the court may be retained as a party, and the title to the timber tried in this suit.</p> <p>6. Void Grant. — If the grant under which the plaintiff claims the land was issued after the closing of the Land Office, in 1835, it was void.</p> <p>7. Setoff. — If when the timber was sold it was held by plaintiff as his own property, and he gave it to his minor daughter to defeat the claim defendants had against him, then if these facts were found by the jury to be true, defendant’s account against plaintiff would be a good offset.</p> <p>8. Other Claims of Plaintiff. — Before any other account due the plaintiff by the defendants can be used in this ease, it should be regularly pleaded.</p> <p>9. Attachment — Damages.—If the facts stated as the basis for the attachment are found not to be true, then defendants will be entitled to recover such actual damages as they have sustained by reason of the issuance and levy of the attachment, but can not recover exemplary damages unless the writ was sued out maliciously and without probable cause.</p>

<p>Appeal from Victoria. Tried below before Hon. S. F. Gbimes.</p> <p>1. It is only where the cause of action survives to the surviving plaintiff that there is no necessity of making the representatives of a deceased plaintiff parties. 1 Say les’ Civ. Stats., arts. 1246, 1250.</p> <p>2. The right to sue for damages for a tort is a chose in action, and property within the legal sense of the term as used in the statute. Ezell v. Dodson, 60 Texas, 332; Railway v. Freeman, 57 Texas, 158; 2 Bish. on Married Women, sec. 271; Railway v. Dunn, 52 111., 260. .</p> <p>3. A tenant in common must have his action only for his own damage, and must join with his cotenant in order to permit recovery of entire damages to property held in common. One cotenant can not recover entire damages. May v. Slade, 24 Texas, 205; Parks v. Dial, 56 Texas, 264; Wood’s Maxwell on Dam., 541.</p> <p>4. A one-half interest in this right of action for damages to the community property upon the death of the mother was inherited by the children, like the property from injury to which such cause of action sprung. Railway v. Freeman, 57 Texas, 158; Butler v. Railway, 72 Barb., 110; 1 Chit. Plead., 68; Comegys v. Vasse, 1 .Pet., 213.</p> <p>5. If the act of which the injury was the natural sequence was a legal injury, by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff’s right, then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damages resulting from the act, although these may not be fully developed until within a period less than necessary to complete the bar. Waterworks v. Kennedy, 70 Texas, 234; Lyles v. Railway, 73 Texas, 95; Am. State Rep., 176, note 20; 2 Greenl. on Ev., 433, 434; Haisch v. Railway, 71 Iowa, 606; Stodgill v. Railway, 53 Iowa, 341; Troy v. Railway, 23 N. H., 83-102.</p> <p>1. The husband is the only necessary, and is a proper, party plaintiff to suits for recovery of damages to the homestead or to community property, and may prosecute alone suits for the recovery of damages to the separate property of the wife. Railway v. Timmerman, 61 Texas, 660; 3 Willson C. C., sec. 402; Railway v. Medaris, 64 Texas,. 92; Railway v. Jones, 3 Willson’s 0. 0., secs. 15, 21; Collins v. Turner, 1 W. & W. C. C., 517; Carter & Rustv. Con-nor, 60 Texas, 56; Woodley v. Adams, 55 Texas, 526; Railway v. Knapp, 51 Texas, 593-600.</p> <p>2. After the death of the wife the husband occupies the relation of a surviving partner in an ordinary partnership; and it is not necessary to make the legal representatives of the deceased partner parties. Sup. Sayles’ Civ. Stats., art. 2164; Dunman v. Coleman, 59 Texas, 199; ■Ashe v. Yungst, 65 Texas, 631; Moody v. Smoot, 78 Texas, 119; Fagan v. McWhirter, 71 Texas, 567; Watts v. Miller, 76 Texas, 13; Gunter v. Jarvis, 25 Texas, 581.</p> <p>3. Limitation begins to run from the date of the accrual of the right of action, and it is immaterial what the action is, whether for damage, for trespass, or assumpsit, or whatever it may be. Appellant having by purchase and condemnation proceedings acquired the right of way over appellee’s farm, it was no invasion of plaintiff’s right for it to go upon the land and build its road; plaintiff had no cause of action against them for so doing. Sayles’ Civ. Stats., art. 4171, note 1, and cases there cited; Railway v. Donohoo, 59 Texas, 128; 2 Willson’s C. C., secs. 140, 142; Railway v. Helsley, 52 Texas, 593; 4 Willson’s C. C., secs. 219, 220.</p>

<p>1. Title by Limitation — Case in Judgment. — In 1866, Brown bought from Galbraith a quarter of the Ingram league. Galbraith bought it in 1857, and cleared and put in cultivation a field on the southwest end of the tract, which has been in actual use and cultivation by himself and Brown ever since, up to 1883. In 1883 defendants bought 100 acres out of the Edwards'league, which adjoins the Ingram on the southwest, from one S., and had a surveyor run out the league line, and in accordance with this survey moved their fence and .took in ninety-seven acres of the old Galbraith field, and have been in possession of it ever since. March, 1885, Brown sued defendants for the land, describing it as a part of the Ingram league, alleging their ouster by defendants, giving the field notes found in the deed under which he held, and asserting title to it by twenty-five years’ adverse possession and limitation. Defendants by answer claimed under the five years’ limitation, adverse possession beginning in 1883. By amended petition filed in 1891, Brown repleaded title by limitation, and in describing the land, called for distance to the southwest extending beyond the call for southwest boundary of the Ingram league, and going out to the old Galbraith field fence. Held, the amended petition set up a new cause of action, and the title of defendant under his plea of five years’ limitations was good to all of the disputed land within the Edwards league.</p> <p>2. Agreement of Counsel. — When it was agreed between counsel for plaintiff and defendants that there was no conflict of title in the case, but merely a question of boundary, and that each party held their land by valid title, but the agreement also provided that either party might plead and prove the laws of limitation so far as applicable or relevant, there was no error in receiving evidence to show title in plaintiff by limitation.</p> <p>3. Limitation — New Suit. — The description contained in the amended petition, upon which the recovery was had, includes land clearly not included in the original petition, and as to so much of the land described in the amended petition as lay beyond the boundaries given in the original petition, the cause of action was a new one, and the statute of limitation pleaded by the defendants was not interrupted as to that part of the land by the filing of the original petition.</p> <p>ON MOTION ROR- REHEARING-.</p> <p>4. Eile Mark on Pleading’. — When there was no satisfactory evidence that a pleading not marked filed had in fact been filed, the trial court was justified in not considering it as a pleading in the case, although it was in the papers at the time of trial, and had been answered by defendants.</p> <p>5. Limitation of Eive Years — Privity of Title. — Defendants bought the land from S. in 1883, and also one-third of the Edwards league from the heirs of Edwards. In a partition of the Edwards league in 1888 between the Edwards heirs and defendants, the deed from S. to defendants was ignored, but the same tract bought by defendants from S. was allotted to them in the partition. Held, there is privity of title between the S. deed and the partition sufficient .to support title under the five years’ limitation.</p>

Tried below before Hon. Stephen P. West. 1. Tbe court erred in refusing to allow plaintiffs to read in evidence tbe depositions of Mrs. E. Morris, One of tbe defendants in tbis suit, taken herein before B. M. Motbner & Co. were made defendants hereto, in that there being allegations in plaintiffs’ petition to tbe effect that the defendants, E. and M. Morris, colluded and conspired with B. M. Mothner & Co. to procure the writ of attachment in cause number 1249, B. M. Mothner…

<p>Appeal from Cherokee. Tried below before Hon. Jas. T. Polley.</p> <p>1. Property purchased during marriage, whether the conveyance be made to the husband or wife separately, or to them jointly, is presumed to belong to the community. Sayles’ Civ. Stats., art. 2852; Huston v. Curl, 8 Texas, 239; Lovev. Robertson,'7 Texas, 6; Kingv. Gilleland, 60Texas, 274; Chapman v. Allen, 15 Texas, 278; Cooke v. Bremond, 27 Texas, 457; Stiles v. Japhet, 84 Texas, 95; Epperson v. Jones, 65 Texas, 425.</p> <p>2. Whether property acquired by the wife in another State while residing there with her husband is or is'not her separate property depends upon the law of such State; and to charge a party with notice of the wife’s separate estate, the law of such State must be alleged.</p> <p>3. If separate property has undergone mutations, it is indispensable in order to maintain its separate character, that it be clearly and indisputably traced and identified. Chapman v. Allen, 15 Texas, 278.</p> <p>4. The court erred in rendering judgment for said defendants and intervenor for said 230 5-30 acres of land, in this, that the evidence wholly failed to show that B. R. Wheeler, who after the execution of said deed of trust became the owner of the debt it was made to secure, at the time he became the owner of it, had notice of such claim of separate property in said Mrs. Martha Reagan, deceased. Jesson v. Loan Co., 3 Texas Civ. App., 25; Haley v. Manning, 2 Texas Civ. App., 19; 1 Am. and Eng. Encyc. of Law, 344, 351; Story on Agency, sec. 140.</p> <p>5. Money borrowed by the wife during marriage is community property. Sayles’ Civ. Stats., art. 2854; Heidenheimer Bros. v. McKeen, 63 Texas, 229; Epperson v. Jones, 65 Texas, 425.</p> <p>6. When property comes into the hands of one having no notice of prior equities, he obtains a complete jus disponendi, and his want of notice is a protection to all subsequent grantees, though they have notice. Love v. Robertson, 7 Texas, 6; Cooke v. Bremond, 27 Texas, 457; Wallace v. Campbell, 54 Texas, 87; Haley v. Manning, 2 Texas Civ. App., 19; Sanborn v. Schuler, 3 Texas Civ. App., 632; Kirby v. Moody, 84 Texas, 201; Holmes v. Buckner, 67 Texas, 107; Herman v. Gunter, 83 Texas, 66; 16 Am. and Eng. Encyc. of Law, 841.</p> <p>7. When a deed to land purchased during marriage is to the wife, or to the wife and husband jointly, to rebut the presumption of law that the land- is community property, and establish a resulting trust in favor of the wife’s separate estate, by reason of the fact that the purchase money was paid out of her separate means, when the claim of separate means of the wife depends upon the law of another State, as against the purchaser of the legal title,- it must be shown, that by the law of that State the purchase money was her separate property, and that the purchaser of the legal title had notice of such law. Sayles’ Civ. Stats., arts. 2852, 2853; Haley v. Manning, 2 Texas Civ. App., 19; Epperson v. Jones, 65 Texas, 425; Cooke v. Bremond, 27 Texas, 460; French v. Strumberg, 52 Texas, 92; -Crow v. Fiddler, 3 Texas Civ. App., 576.</p>

Tried below before Hon. Jas. T. Polley. 1. The court erred in overruling the general and special demurrers of the defendant to the petition, and in sustaining the demurrer of plaintiffs to the special plea of the defendant in the first amended answer filed in this cause, as amended in his trial amendment.

Tried below before Hon. H. Teichmuller. 1. The measure of damages for the destruction of growing crops by overflow is the value of such crops when destroyed, and not the price of replanting and reducing the land to a state of cultivation after such overflow. Nor does proof that plaintiff reduced his land to a state of cultivation and replanted several, times during the year afford any standard by which to measure the value of the crop destroyed. 2.

Tried below before Hon. S. R. Blake. 1. The court erred in refusing to give, when requested by defendant, its second special charge, as follows: “The defendant is not required to fence its track at depot and adjacent grounds, and if the place of accident was adjacent to depot grounds, and at a place where defendant received and delivered freight, then defendant is not required to fence its track, and would not be liable for failure of fencing its track at said point, and can…

<p>1. Leased Railroad — Liability of Lessor — Bridges.—A railroad company that gives another company permission to run cars over its track must he held to the exercise of ordinary care in the construction and maintenance of bridges along the track, for the protection of the servants of the lessor company as well as its own; and this requires that the bridges be so constructed as to permit the safe operation of ordinary cars through them in the usual way.</p> <p>2. Same — Definition of Ordinary Cars. — By ordinary cars is not meant simply those that are in most common use, but it includes those that have come into such general use upon the different railroads of the country that their presence in trains passing over the track should be anticipated in the regular conduct of the business.</p> <p>3. Same — Liability of Lessee. — If the lessor company construct its bridges of sufficient height to permit the operation of ordinary cars through them in the usual way, and the lessee company receives into its train a car of peculiar construction and unusual height, and fails to give notice thereof to its employes, and one of them is killed on that account while in the ordinary discharge of his duties, the lessor is not liable.</p> <p>4. Railway Company’s Rules — Burden of Proof. — Where the evidence shows an injury to a servant to have occurred through the violation of an established rule of the master, the burden is upon the servant to show that he had no actual knowledge of the rule, and that its existence had been so concealed or defectively published that he could not by the exercise of ordinary care on his part have acquired such knowledge.</p> <p>5. Charge of Court — Assuming Eaot Proved. — Where the evidence so clearly and indisputably establishes a given fact that no issue can properly be raised as to its existence, the court should assume the existence of such fact, and charge accordingly. Stephens, J., dissenting.</p> <p>6. Same — Charge Without Evidence. — The giving of a charge submitting a material issue to the jury to sustain a finding upon which no evidence has been introduced, is error sufficient to require a reversal of the judgment.</p>

Tried below before Hon. Robert G. Johnson. 1. The verdict of the jury for $200 is excessive, in this, that the plaintiff, under the evidence introduced in this cause, could not recover exceeding $2. per acre for 561 acres of land, making in all $113. • 2.

Tried below before Hon. W. E. Newbbough. 1. The defendant was only required to use ordinary care in keeping up the gates erected for plaintiffs benefit, and it was no part of its duty to keep said gates closed.

<p>Appeal from the District Court of Howard. Tried below before Hon. William: Kennedy.</p> <p>1. A judgment rendered on a citation commanding the defendant to appear at a time when the court does not meet, there being no appearance by the defendant, is an absolute nullity, and is open to collateral attack. Sayles’ Civ. Stats., arts. 1215, 1570; Watson v. Miller, 55 Texas, 290; Cavev. City of Houston, 65 Texas, 619; Covington v. Burleson, 28 Texas, 370; 1 Black on Judg., 223, 224; Witt v. Kauffman, 25 Texas Supp., 384; 1 W. & W. C. O., secs. 83, 89, 244, 520 ; 2 Willson’s C. G, sec. 268; Harrington v. Harrington, 16 S. W. Rep., 538; Culver v. Phelps, 130 111., 217; Rice v. Bank, 31 Pac. Rep., 1024.</p> <p>2. In a Justice Court, a suit is not instituted until citation is issued;' its issuance is the bringing of the suit. Keeble v. Bailey, 3 Texas, 492; 2 Willson’s C. G, secs. 554, 555.</p> <p>3. A citation commanding the defendant to appear on the first Monday in October, the time of holding the court being on the fourth Monday, is void, and will not support a judgment by default. Rev. Stats., art. 1568, 1570; Watson v. Miller, 55 Texas, 289; Wright v. Wilmot, 22 Texas, 398: Neil y. Brown, 11 Texas, 17.</p> <p>4. Whatever the record in the case shows to have been done to procure jurisdiction is conclusive on that point; it can not be contradicted except by other parts of the record, or a recital in the judgment itself that service was had. If there is no such recital, and none that the defendant appeared, and if the other parts of the record show affirmatively that the service which was had was not such as to give the court jurisdiction, a judgment so rendered is void. Treadway v. Eastburn, 57 Texas, 213; 1 Black on Judg., sec. 277, and note, citing Hahn v. Kelley, 34 Cal., 391; Id., sec. 278; Freem. on Judg., 125.</p> <p>1. Leniency should be indulged in regard to Justice Court proceedings, and judgments rendered in these courts when acting in the ordinary scope of their powers ought not to be attacked collaterally as being void for the reason that they do not show affirmatively all the facts necessary to give the court jurisdiction. Hence the court was correct in his findings that the presumptions are in favor of the regularity of said proceedings, and that defendant ought to recover. Holmes v. Buckner, 67 Texas, 107; Wilkerson v. Shoonmaker, 77 Texas, 615; 14 S. W. Rep., 223; Williamsv. Haynes, 77 Texas, 283; 13 S. W. Rep., 1029.</p> <p>2. The court erred in concluding that Bicksler had no authority to sell lot number 21, that the defendant had no title to the same, and the plaintiff is entitled to recover it and all costs of suit. Defendants were at least entitled to recover the amount of taxes paid thereon and the value of their improvements. Johnson v. Schumaker, 72 Texas, 334.</p> <p>3. Yendors in a trust conveyance, or their descendants seeking after sale of trust property to recover same, should in their pleadings aver willingness to pay amount for which trust was given, and should be compelled to do so before they are allowed to recover, especially where there was no fraud in the matter of such trust sale. Howard v. North, 5 Texas, 290; Morton v. Welborn, 21 Texas, 772.</p>

Tried below before Hon., E. E. Beckham. 1. ■ The court erred in that portion of its charge wherein it instructed the jury, that defendant would be responsible for the death of W. M. Hudman (other things submitted concurring) if they believed from the evidence “that the bridge where said Hudman was injured was one where passengers or those in charge of stock would ordinarily go while at defendant’s station;” because the doctrine that a railway company is liable for injuries…

Tried below before Hon. Geo. E. Miller. 1. When judgment is rendered on a note it thereby becomes extinguished, and is merged in the judgment and changed into a higher right, a matter of record, and no other judgment can be had thereon between the same parties. 2 Black on Judg., sec. 674; Freem. on Judg., secs. 215, 216; 1 Herm. on Estop., sec. 144. 2.

<p>1. Evidence — Opinion.—Statements of a witness that certain cattle, upon which a range levy of an attachment had been made, were allowed to run at large not cai ecl for, being neglected, and owners not allowed to handle and attend to them, and that the loss therefrom was 10 per cent, are matters of conclusion rather than facts, and inadmissible.</p> <p>2. Attachment — Range Levy on Live Stock — Owner’s Rights. — Where a range levy upon live stock is made under article 2293 of the Revised Statutes, the officer is not required to herd and pen the stock, charging costs therefor; but for the purpose of feeding, branding, and caring for his herd upon the range, the owner is still left in control, and for his negligence in this regard neither the officer nor the plaintiff in the attachment would be liable.</p> <p>3. Same — Void Writ — Effect of Levy. — The mere entry of a levy upon a writ void for want of jurisdiction in the court that issued it, will not place the property in custodia legis, nor ordinarily create liability.</p> <p>4. Same — Levy on Partnership Property. — A levy upon the interest of one partner in the partnership property does not deprive the other partners of their possession and control, and the purchaser at a sale under such levy acquires only the right to demand an accounting.</p> <p>5. Same — Charge of Court — Extent of Recovery. — In an action for damages resulting from a range levy of attachment on cattle, a charge that defendants are liable for cattle lost, strayed, stolen, or perishing from neglect “or otherwise,” was error, in not confining the recovery to damages caused by the wrongful acts of the defendants.</p> <p>6. Same — Excessive Verdict — Remittitur.—Where the damages are not, under the evidence, susceptible of any clear éstimate, and the charge of court submits a wrong measure for their computation, the error, it seems, will not be cured by a remittitur of a part of the damages recovered.</p>

Tried below before Hon. C. P. Wood-BUFF. 1. Attorney fees stipulated for in the face of a promissory note become a part of the amount for which an attachment may be issued, although the note may not be due. Bank v. Still, 84 Texas, 839; 19 S. W.Rep., 479; Martin-Brown Co. v. Perrill, 77 Texas, 200; 13 S. W. Rep., 975; Stansell v. Cleveland, 64 Texas, 660. 2.

Tried below before Hon. Bobert G. Johnson. Tbe bond is properly signed by botb defendants, and tbe failure of the bond in mentioning tbe Missouri, Kansas & Texas Bail-way Company is a clerical error, and does not affect tbe validity of tbe same. Huly v. Huly, 1 W. & W. C. C., sec. 157; Kerr v. Clegg, Id., sec. 791; Mills v. Hucket, Id., sec. 846; Sayles’ Civ. Stats., art. 1639, notes 14, 15.

Error from Wilbarger. Tried below before Hon. G. A. Brown. 1.

Tried below before Hon. W. D. Harris. 1. Mental anguish and suffering and injury to feelings sustained by one person resulting from the tortious treatment inflicted by a second person upon some third person, are not proper elements of actual damages. Railway v. Trott, 86 Texas, 412; Railway v. Levy, 59 Texas, 566; Rowell v. Tel. Co., 75 Texas, 26; Railway v. Sutton, 53 111., 397; 2 Wood on Rys., 1238. 2.

Tried below before Hon. W. D. Harris. Where one clause of a written contract fixes positively the time of performance, it can not be overcome by a subsequent clause in the contract by adding something to the latter clause in order to get at the intention of the parties.

<p>1. Stale Demand — Community Property. — -A headlight certificate for a league and labor of land was granted to W. by special act of Legislature, ten years after the death of bis wife, who had immigrated to Texas with him. The land was patented to W., and soon afterwards was sold and conveyed by him. Thirty-five years later, the great-grandchildren of W. brought suit against subsequent vendees for an interest in the land, claiming that it was originally community property as between W. and the children of his deceased wife. Held, that the claim was a stale demand, there having been, during such time, no assertion of such equitable claim, and no recognition of the trust which such community title would impose.</p> <p>2. Deed of “All Right, Title, and Interest.”' — A conveyance reciting that W., being the owner of a land certificate, has sold, alienated, and transferred all his right, title, and interest therein to the grantee, and containing a covenant of general warranty of title, purports to be and is a transfer of the certificate, and not merely of W.’s interest therein.</p> <p>3. Notice of Repudiation of Trust — Presumption.'—Where a father conveyed his lieadright certificate, his son, who then and for a number of years thereafter lived near him, will be presumed, thirty-five years after such conveyance, and after both the father and son have died, to have had notice of such conveyance as involving a repudiation of any trust in the land in favor of the heirs of W.’s wife, on the ground that the land was community property.</p> <p>4. Deed. — Identity of Parties — Proof by Circumstances. — The identity of parties to deeds may he- shown by circumstantial evidence, for the purpose of enabling defendants in trespass to try title to plead stale demand.</p>

Tried below before Hon. W. D. Harris. 1. A president of a bank bas no authority, by virtue of his official position as president, to employ an attorney to prosecute a suit on behalf of the bank, as plaintiff, nor to place the bank under obligations to convey land.- Mfg. Co. v. Marsh, 1 Cush., 507; Fitzhugh v. Land Co., 81 Texas, 306; Barrett v. Bank, 78 Texas, 222; Terrell v. Teal, 48 Texas, 509. 2.

Tried below before Hon. L. W. Goodrich. 1. The foreclosure sale under a mortgage executed and duly recorded before a contract of lease is made by the mortgagor, cuts off all title and rights of possession in the lessee. 2 Jones on Mort., 3 ed., p. 603, sec. 1696; 1 Jones on Mort., 3 ed., p. 679, sec. 796; McDermet v. Burke, 16 Cal., 580; Russum v. Wanser, 53 Md., 92; Henshaw v. Wells, 9 Humph. (Tenn.), 568; 52 Barb. (N. Y.), 377; 43 N. Y., 462. 2.

<p>1. Agency — Delivery to Express Company. — The frequent exercise by a person of a power, of which the principal may have been presumed to have notice, may be regarded by persons dealing with the principal as sufficient evidence of the authority of such agent. This applies to employes of a railway company receiving packages for an express company.</p> <p>2. Notice. — Notice to an agent of an express CQjnpany receiving a package for shipment, that the package contained medicine for a sick person, was notice to the express company of the importance of the prompt delivery of such package.</p> <p>3. Damages for Delay in Delivery of Package of Medicine. — A package containing medicine for plaintiff’s wife was not promptly delivered by the express com-party. Physical and mental suffering of the wife caused by the delay were proper basis for recovery; mental suffering of husband is too remote.</p> <p>4. Medical Bill. — The verdict allowed an amount for medical attendance. It not appearing how much of the sickness calling for such medical attendance was caused by the delay, the verdict allowing the entire medical bill was not supported by testimony.</p>

Tried below before Hon. M. M. Teague. The opinion states the case. 1. Each and every railroad shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railway company in running over their respective railways. If the company fence in its road, it shall only be liable for want of ordinary care. Bev. Stats., art. 4245. 2.

<p>Error to District Court of Burnet County. Tried below before Hon. W. A. Blackburn.</p> <p>1. The court erred in finding that no fraud had been practiced on plaintiff by the reports furnished the mercantile agency by Burns & Munn; because (1) the evidence shows that said reports were false, in that they gave Burns & Munn a financial standing they were not entitled to; (2) the evidence shows that plaintiff was a subscriber of said mercantile agency, and that on account of said false reports, plaintiff, believing them true, extended credit to Burns & Munn, and that plaintiff would not have done so had it known that said reports were false. Bank v. Bamberger, Bloom & Co., 77 Texas, 51; Wolf v. Lachman & Jacobi, 20 S. W. Bep., 367.</p> <p>2. Plaintiff in error having sold the property in controversy to Burns & Munn by contracts of sale wherein it reserved the title in itself until the purchase money was paid, the purchase money never having been paid, the title of plaintiff in error was superior to the rights or title of any one except creditors who had established a lien against the property by process of law, and subsequent purchasers for value without notice.</p> <p>As to who are creditors under article 3190a: Ayers v. Duprey, 27 Texas, 606; Overstreet v. Manning, 67 Texas, 663.</p> <p>As to who arebona fide purchasers under same: Ayers v. Duprey, 27 Texas, 606; Spurlock v. Sullivan, 36 Texas, 516; McKamey v. Thorp, 61 Texas, 652.</p> <p>Upon the proposition generally that Harrell and preferred creditors can not be permitted to hold the property in controversy against the true unrecompensed owner, plaintiff in error: Haggerty v. Palmer, 6 John. Ch., 438; Wolf v. Lachman, 20 S. W. Bep., 867.</p> <p>Geo. F. Fendexter and G. W. Allen, for defendant in error.</p> <p>1. The reservation of title by plaintiff in error to the property in controversy, in the sale to Burns & Munn, simply operated as a mortgage upon said property, and the plaintiff in error’s remedy was by suit upon the notes given for the purchase money, and to foreclose the lien upon the property therefor. Eev. Stats., art. 3190a.</p> <p>2. When the plaintiff in error sought to rescind the sale of the property in controversy to Burns & Munn, on the ground of fraudulent m isrepresen tations to a commercial agency, it should have made them parties to the suit, and tendered back the notes given by them for the Xiurchase money of said property. Bank v. Thomas & Son, 69 Texas, 237; Coddington v. Wells, 59 Texas, 49; Tomv. Wollhoefer, 61 Texas, 277; Knitted v. Cushing, 57 Texas, 354.</p>

<p>Appeal from Williamson. Tried below before Hon. F. G-. Morris.</p> <p>1. The court erred in permitting plaintiff to testify as to what transpired between him and the alleged agent at Dallas, and as to what was said touching or concerning his rights under the contract and the ticket which it is claimed he possessed. Abram v. Railway, 83 Texas, 65; Ryan v. Railway, 65 Texas, 19; Railway v. Gilbert, 64 Texas, 541; Bank v. Ins. Co., 62 Texas, 463; Harrell v. Zimpelman, 66 Texas, 294; 81 Texas, 147; Moore v. Railway, 49 Texas, 31; Clemmons v. Railway, 55 Texas, 88; Hull v. Railway, 66 Texas, 620; Prince v. Railway, 64 Texas, 145; Dawkins y. Railway, 77 Texas, 288; Railway v. Jones, 95 U. S., 439; Hickey v. Railway, 14 Allen, 429; Miles v. Railway, 13 Am. and Eng. Ry. Cases, 11; Player v. Railway, 12 Am. and Eng. Ry. Cases, 114; Railway v. Boyd, 24 S. W. Rep., 1086, 1089.</p> <p>2. The court erred in permitting the plaintiff and other witnesses to testify as to an alleged custom or practice prevailing among the agents of the defendant, prior to the accident complained of, under which an owner or shipper of a race animal was allowed to ride in the car with the horse.</p> <p>3. The court erred in permitting the plaintiff to testify as to any impairment of his genital or urinary organs, because the damages sought to be recovered are in the nature of special damages which have not been alleged. Railway v. Curry, 64 Texas, 87; Glasscock v. Shell, 57 Texas, 223, 224; Moehring v. Hall, 66 Texas, 240; Suth. on Dam., 426, 428; 5 Am. and Eng. Encyc. of Law, 50; Railway v. Adams, 24 S. W. Rep., 839.</p> <p>4. The court erred in directing the jury to find for plaintiff if certain facts enumerated were found by them, without requiring that the jury should first determine whether the same constituted negligence producing or causing the injury complained of, thereby in effect instructing that such facts, as matter of law, constituted negligence.</p> <p>The court, throughout its charge, erred in instructing the jury to find for the plaintiff if they should find that the conductor did or omitted to do certain enumerated things, thus in effect charging that the doing or the failing to do such things was negligence in law, instead of leaving the question of negligence or not to the decision of the jury. Railway v. Hill, 71 Texas, 451; Railway v. Murphy, 46 Texas, 356; Railway v. Gasscamp, 69 Texas, 547; Brown v. Sullivan, 71 Texas, 475; Calhoun v. Railway, 84 Texas, 229; Railway v. Anderson, 76 Texas, 249; Railway v. Dyer, 76 Texas, 160; Railway v. Porfert, 72 Texas, 351; 70 Texas, 553; 60 Texas, 103; 75 Texas, 271.</p> <p>5. The verdict of the jury is contrary to and against both the law and the evidence; because (1) the proof overwhelmingly shows that the plaintiff and his horse were only entitled to be in the train that was wrecked, under and pursuant to the terms of the contract relied upon, and that it required him to ride in the caboose or take upon himself the risk of personal injury; and further, that had he been in the caboose he would not have been hurt; (2) there was no evidence proving or tending to prove that any one authorized so to do waived or attempted to waive the provision of the contract relied upon; and (3) the evidence does not, if true, prove a waiver. Prince v. Railway, 64 Texas, 145;. Railway v. Moore, 49 Texas, 31; Hull v. Railway, 66 Texas, 620; Railway v. Langdon, 92 Pa. St., 21; Eaton v. Railway, 57 N. Y., 382; Railway v. Hirst, 18 L. A. R., 631; Railway v. Boyd, 24 S. W. Rep., 1086, 1089; 149 Mass., 204; 43 Am. Dec., 365, 366; 12 Am. Rep., 475.</p> <p>1. The facts show that the conversation between appellee and the agent at Dallas, regarding appellee’s right to ride in the car with his horse on the ticket which he held, took place after the contract was signed and delivered, and was a completed transaction; and what was said had no reference to that contract, but related to appellee’s right to ride in the car with his horse on the ticket simply as a quid pro quo. Hull v. Railway, 66 Texas, 620, 621; Railway v. Dickson, 32 N. E, Rep., 380-382; Ins. Co. v. Munger, 30 Pac. Rep., 121, 122; Ins. Co. v. Norton, 96 IJ. S., 234.</p> <p>2. The evidence of impairment of appellee’s genito-urinary organs was admissible under the particular allegations of injuries made in the petition. Railway v. McMannewitz, 70 Texas, 78; Campbell v. Coak, 24 S. W. Rep., 979; So Relie v. Tel. Co., 55 Texas, 311.</p> <p>3. The charge of the court and special instructions given at the request of appellants must be taken as a whole and be construed together in the light of the issues made by the pleadings and evidence, in order to determine whether the charge in the given particular was erroneous or misleading. So taken, the instructions present no error. Railway v. Smith, 65 Texas, 170/171; Railway v. Nix, 23 S. W. Rep., 329, 330; Rost v. Railway, '76 Texas, 172; Freiberg v. Johnson, 71 Texas, 564.</p> <p>4. The facts were undisputed, and showed beyond any reasonable doubt that the collision was the result of negligence on the part of defendants, and no other verdict upon plaintiff’s right to recover could have been justly or legally rendered, and in such ease the alleged error in the court’s charges becomes immaterial, as do any others there may be therein. Railway v. Wallace, 74 Texas, 585; Railway v. Converse, 139 IJ. S., 469, and cases cited; 2 Thomp. on Trials, secs. 2401, 2403; Shearm. & Redf. on Neg., 3 ed., sec. 11; Railway v. Sullivan, 10 H. S. App., 480-482; Railway v. Delahunty, 53 Texas, 209, 210, 212.</p>

Tried below before Hon. L. W. Goodrich. 1. binder tbe laws of Texas, the Probate Court alone has jurisdiction to settle estates and enforce claims for money against decedents. ■ Webster v. Willis, 56 Texas, 469; Cannon v. McDaniel, 46 Texas, 305; Montague Co. v. Jackman, 77 Texas, 622; Solomon v. Skinner, 82 Texas, 345. 2. A vendor retaining a lien, the purchase money not being due, can not maintain trespass to try title.

<p>Appeal from McLennan. Tried below before Hon. L. W. Goodrich.</p> <p>1. The two writings being contemporaneously executed, with reference to the same subject matter, between the same parties, and one being a consideration for the other, constituted one instrument. Wallis v. Beau-champ, 15 Texas, 307; Bank v. Davis, 78 Texas, 366, 367.</p> <p>2. That some short time may have elapsed between the execution of the two instruments, of that the bill of sale may at first have evidenced a complete contract, would not detract from the force of the preceding proposition, in view of the facts that the provisions of the bill of sale had not been fully consummated, and that the second agreement purports to be made in consideration of the sale. Coddington v. Davis, 1 N. Y., 186; Horne v. Chatham, 64 Texas, 41; Marsh v. Dodge, 66 N. Y., 538; Wallis v. Beauchamp, 15 Texas, 307; Bank v. Davis, 78 Texas, 366.</p> <p>3. The two instruments, being the one a conveyance of property, and the other a promise by the grantees in consideration thereof to pay off or settle with the Waco creditors, constituted a trust in favor of such creditors imposed upon the property, with the grantees as trustees. Wallis v. Beauchamp, 15 Texas, 305, 306; Montgomery v. Culton, 18 Texas, 747, 748; Moody v. Paschal, 60 Texas, 483.</p> <p>4. The trust evidenced by said instruments was fraudulent and void, because it was made by insolvent debtors, and authorized the trustees to coerce compromises with and releases from the Waco creditors.</p> <p>As to compromises in trust instruments: Catón v. Mosely, 25 Texas, 379; 2 Bige. on Fraud, pp. 283, 315; Wait on Fraud. Con., sec. 336; McConnell v. Sherwood, 84 N. Y., 528-531.</p> <p>As to releases in trust instruments: Carlton v. Baldwin, 22 Texas, 732; Bayne v. Denny, 4 W. & W. C. C., see. 808; Widgery v. Haskell, 5 Mass., 152; 2 Bige. on Fraud, 280-284, 288, 289.</p> <p>1. A creditor has the right to purchase and receive from a failing debtor property enough to satisfy his debt, and the fact that the creditor at the same time assumes the payment of other bona fide debts of the debtor and receives property enough to satisfy the same, does not invalidate the sale, notwithstanding the transaction may delay and hinder other creditors not provided for. Ellis v. Yalentine, 65 Texas, 532; Elser v. Graber, 69 Texas, 225; Sweeney v. Conley, 71 Texas, 544; Saddle and Harness Co. v. Schoelkopf Co., 71 Texas, 418; Davis v. Beason, 77 Texas, 606.</p> <p>■ 2. The sole issue being one of fact, i. e., the good faith and fairness of the sale to appellees, and this fact having been found in favor of the validity of said sale upon sufficient evidence, the judgment is conclusive of the rights of the parties, and will not be disturbed on appeal, even though there be evidence which would warrant another and different conclusion. Wells v. Yarbrough,'84 Texas, 660; Punchard v. Delk, 77 Texas, 107; Jackson v. Harby, 70 Texas, 416; Hardin v. Abby, 57 Texas, 586; Douglass v. Duncan, 66 Texas, 123. •</p> <p>3. The two instruments, if taken and construed together, can not have the effect to change the character of the transaction from an absolute sale and transfer to that of a partial assignment involving a secret trust; because, as shown by the terms of the same as well as by the oral testimony, appellees cancelled and surrendered their claims, released the land by which same was secured, assumed the payment of other bona fide debts, and there was no condition of defeasance either expressed or implied, nor was there secrecy in the transaction. Saddle and Harness Co. v. Schoelkopf & Co., 71 Texas, 418; Alstin v. Cundiff, 52 Texas, 460; Miller v. Yturria, 69 Texas, 554; Hubby v. Harris, 68 Texas, 95.</p>

<p>1. Guardianship of Minor — Appointment by Will. — By request of the mother of a minor, P. was appointed and qualified as the minor’s guardian. "Afterwards the mother died, leaving a will by which she appointed T. as her executor, and to act as guardian of the child, although P. was still acting as such. Held, that as the mother had lost the right to become herself the guardian of the child, she was incapable of appointing another guardian by will, except as against the contingency of the death or removal of the acting guardian.</p> <p>2. Same. — Where a will contains a provision appointing a guardian of a minor, and there is already at the death of the testator a duly qualified guardian, it is not necessary, to enable him to continue to act as such, that such provision of the will should be annulled.</p>

Tried below before Hon. Geo. H. Noonan. 1. No person shall be deprived of his property without due process of law. 2. Courts are confined in their jurisdiction tó their geographical territorial districts. 1. An authenticated statute will be regarded as the best evidence that the required formalities were observed in its passage, and the courts will not exercise the power of going behind it and inquiring into the manner of its enactment.

<p>Appeal from Presidio. Tried below before Hón. T. A. Falvey,</p> <p>1. All presumptions are in favor of the legality of judgments of courts of general jurisdiction, and it not being shown that this affidavit was the only affidavit made to secure the writ, the lien of which created by levy was foreclosed in Slade v. Thurber & Co., it will be presumed that the writ in that case was based upon a proper affidavit.</p> <p>. 2. By filing his affidavit and claim bond, the appellee precluded himself from making any objection to the process levied upon the property, waived all damages in a case of trespass, and was compelled to try the right of property and establish his right thereto. Boos v. Lewyn & Martin, 23 S. W. Bep., 450; Id., 24 S. W. Bep., 538; Haley v. Villeneuve, 11 Texas, 617; Portis v. Parker, 22 Texas, 707; Seligson v. Staples, 1 W. & W. C. C., sec. 1070; Earle v. Thomas, 14 Texas, 591; The Meador Co. v. Aringdale, 58 Texas, 450; Livingstone v. Wright, 68 Texas, 706; Publishing Co. v. Hitson, 80 Texas, 234, 235; Gilmour v. Heinze, 85 Texas, 76; Webb v. Mallard, 27 Texas, 84, 85; Latham v. Selkirk, 11 Texas, 320.</p> <p>1. The affidavit for the attachment constitutes, together with the bond, the authority for issuing the attachment, and it was therefore competent to prove by this affidavit that the attachment was unlawfully issued, and that the officer, acting under the void writ, was a mere trespasser. Bev. Stats., arts. 4832, 4838, 4839; Publishing Co. v. Hitson, 80 Texas, 234; Peters v. Conway, 4 Bush, 566; Wood v. Garsule, 58 How. Pr., 98.</p> <p>2. The undisputed proof, as well as the return of the officer on the writ of attachment, established the fact that the appellee was in possession of the property, and the appellee had therefore the right to defend his possession in any lawful manner, and as a defense had a right to show that the pretended writ of attachment was absolutely void, and conferred upon the officer no authority to invade the possession of the appellee. See authorities above.</p>

Bexar. Tried, below before Hon. Geo. H. Noonan. An appeal bond has all the requisites of a valid contract, and the beneficiaries in such an appeal bond have the right to bring an independent suit to enforce its conditions when the party executing such bond has failed to prosecute his appeal with effect, as provided in the bond. Trent v. Rhomberg, 66 Texas, 249; Blair v. Sanborn, 82 Texas, 686; Cattle Co. v. Ansley, 24 S. W. Rep., 933.

<p>1. Charge of Court — Special Instructions. — Where principles of law applicable to the case are properly stated in the general charge of the court, it is unnecessary, if not error, to repeat them in special charges requested by one of the parties.</p> <p>2. Same — Contributory Negligence. — A charge, to the effect that if the danger incurred by the deceased at the time of his death was obvious and patent to the observation of a reasonable and prudent man, plaintiff can not recover for such death, and that all persons are presumed to be reasonably cautious and prudent until the contrary is shown, approved.</p> <p>3. Master and. Servant — Vice-Principal.—Where there was evidence tending to show that deceased, at the time of the injury, was working with another employe who had authority to direct him in the performance of the work then in hand, it was a question of fact to be determined by the jury whether or not such other employe was a fellow servant or a vice-principal.</p> <p>4. Practice on Appeal — Assignment of Error. — An assignment of error which complains of a paragraph of the charge of court, without specifying or indicating any error therein, will not be considered.</p> <p>5. Damages — Excessive Verdict. — Deceased was 38 years old at the time of his death, unmarried, and was earning §30 per month, with which he supported his widowed mother, -whose sole support he was, and his expectancy of life was 29.6 years; that of his mother, then 61 years of age, being 13-|- years. JEteld, that a verdict of §6000 in favor of the mother for injuries causing his death was excessive to the amount of §3000.</p>

Tried below before Hon. C. N. Btjokleb. 1. The charge of the court erroneously assumes as a question of fact and of law, that the complaint made and written out by said justice or under his direction, and upon which the justice issued the warrant in question, was the same complaint made and intended to be made by appellant.

Tried below before Jay Good, Esq., Special Judge. 1. If the cattle, prior to plaintiff’s levy, were actually delivered to Swan by any such acts with reference to the property delivered as would constitute a delivery under the circumstances that existed at the time with reference to said cattle, the same would be a valid sale of said cattle, without reference to where they were. See authorities below. 2.

Tried below before Hon. W. W. King. The court erred in finding that plaintiff was not estopped in claiming as a special creditor by reason of his action in proving up his claim before the receiver and allowing himself to be considered as a general creditor, until after the assessment had been levied on each share of stock.

Tried below before Hon. Walker Gillis. 1. The wife is a necessary party to the foreclosure of a lien upon her homestead, no matter whether it be in the form of a vendor’s lien or otherwise. Mexia v. Lewis, 21 S. W. Bep., 1016; 22 S. W. Bep., 397; Campbell v. Elliott, 52 Texas, 151. 2. It is not to be presumed that any man who wishes to purchase land honestly will buy without knowing what are the claims of a person in open possession of it.

Tried below before Hon. F. E. Hunter. The city of Ysletá, as a municipal corporation, has no authority to contract with plaintiff for irrigating his farming lands; nor was it liable in damages to plaintiff for any trespasses committed on his lands, nor for any acts of its officers or agents in depriving him of water for irrigating said lands, and not being originally liable, could not render itself liable to plaintiff by ratifying the alleged trespasses of its officers and…

<p>1. Acknowledgment of Deed — Validation—Notary Public. — Under the Act of January 19, 1839, a notary public was not authorized to take an acknowledgment, and the validating clause in the Act of February 5, 1841, did not cure an acknowledgment defective in this respect; but the Act of February 9,1860, had such effect in cases where the deed had been recorded in the proper county.</p> <p>2. Ancient Instrument — Proper Practice. — Where a deed is over fifty years of age, and has been recorded over forty years, and comes from the proper source, the mere fact of the erasure therein of one name and the insertion of another does not throw such suspicion upon the instrument as necessitates explanation as a prerequisite to its admission in evidence. It should be admitted, and any question raised by the evidence respecting its genuineness should be submitted to the jury.</p> <p>3. Evidence in Proving Common Source. — A certified copy of an instrument of title defectively authenticated is not admissible in evidence merely because it is offered only for the purpose of showing a common source of title.</p>

Tried below before Hon. W. W. King. 1. The judgment of the court was contrary to the evidence, for the reason that the testimony established the fact that defendant had an office and agent, or representative, in Bexar County, upon whom citation herein had been duly served; and the court erred in holding that the party so served was not such agent or representative as contemplated by the statute providing for service upon foreign corporations.

Tried below before Hon. J. L. Sheppard. 1. Unless appellant had notice that appellee was a student at the college, it was immaterial whether it was the duty of the janitor to receive the message, or whether he was accustomed to receive messages addressed to the students of the college, or whether it was the custom of appellant to deliver messages addressed •to the students to the janitor, for appellant was not, without such notice, bound to deliver the message in question to…

Tried below before Hon. Anson Bainey. 1. The policy with its indorsements and the note with its recitals having been executed contemporaneously, will all be looked to in order to determine the contract of the parties.

Tried below before A. S. Lathrop, Esq., Special Judge. 1. If the policy provides that on failure to pay a premium or any note or other obligation taken for it, at maturity, the failure “shall then and thereafter cause this policy to be void, without notice to any party or parties interested herein,” no declaration by the company of the forfeiture, or notice of its claim that the policy has ceased, will be required to give this clause effect. Pendleton v. Ins. Co., 5 Fed.

Tried below before Hon. Felix J. McCord. 1. If plaintiff’s wife got off the train at the time and place in question of her own free will, or at the invitation of some one who was not an agent or servant of defendant, plaintiff would not be entitled to recover, and it was error to qualify the charge by the addition of the sentence, “if an ordinarily prudent person would not have done so under similar circumstances; ’ ’ thereby instructing the jury that even though the causal…

Tried below before Hon. R. E. Burke. ' 1. To require that tbe intention of one to make bis borne upon tbe lot should be unmistakably shown, imposes a greater burden of proof than tbe law requires. Rev. Stats., art. 1317; Baines v. TJ11man, 71 Texas, 529; Railway v. Bartlett, 81 Texas, 42; Emerson v. Mills, 83 Texas, 385. 2.

Tried below'before Hon. B. E. Burke. 1. In order-to secure his lien, it is necessary for' the contractor for materialman to file an itemized account of his claim, supported by affidavit,- with the county clerk; and such itemized account must contain a statement of the time and place when and where the material was furnished or' labor performed, ¡together with' the items of such material or labor.

Tried below before Hon. Chas. F, Tucker. 1. Tbe second exception, a special demurrer, was well taken, and should have been sustained. The contract was not entitled to record, and no lien was fixed thereby. The account and affidavit attached to it were no part of it. Rev. Stats., art. 3167; Ferguson v. Ashbell, 53 Texas, 249; Lee v. O’Brien, 54 Texas, 636. 2. The third exception was well taken, and should have been sustained.

Tried below before Hon. E. E. Burke. Leake, Shepard & Miller, for appellant. 1. The court erred in its charge in giving undue prominence to the averments in plaintiff’s petition, stating in detail the grounds on which plaintiff sought to recover, and by inadvertence not stating in the charge that defendant had made any answer to said averments, or any defense whatever.

Tried below before Hon. Rueus Hardy. 1. The exercising of a discounting privilege by a private corporation created under the laws of this State is an act prohibited by the Constitution, and is therefore illegal and void. Const., art. 16, sec. 16; Anderson v. B. and L. Assn., 16 S. W. Rep., 298; Hunt v. Robinson, 1 Texas, 758; Persons v. Jones, 58 Am. Dec., 476; Davis v. Sitfcig, 65 Texas, 497; 2 Beach Priv. Corp., sees. 438, 439. 2.

Tried below before Hon. E. E. Burke. 1. In order to make a liability for notary fees, there must be some intermediate indorser connected with the bill whose liability is sought to be fastened by the protest. 2 Dan. on Neg. Inst., secs. 932, 933. 2. An amendment which sets up a new cause of action will not relate back to the time of filing the original petition.

Tried below before Hon. Rufus Hardy. • 1. The mechanic's and materialman’s liens are creatures of law, not of contract, and are specific, existing only to secure payment for work and material furnished, and can not be by construction extended to cover other considerations. Const., art. 16, sec. 50; Phil. Meeh. Liens, sec. 36. 2.

Tried below before Hon. E. W. Terhune. 1. It was a violation of one of the conditions of the bond of G. M. Curtis to permit B. B. Lanham, a person then under the age of 21 years, to enter and remain in his saloon, whether Lanham. served as bartender or as porter in the saloon, since either would subject Curtis and his sureties to the penalty of the law authorizing this suit, irrespective of what purpose or in what character Lanham entered and remained in the saloon, or who…

Appeal-from Harris.- Tried below before Hon. S. H. Brashear. 1.

Tried below before Hon. James C. Wilson. The charges asked by the defendant were as follows: “5. Even if you believe from the evidence that passengers were at times carried on freight trains of defendant company, yet you must not find for plaintiffs unless you believe such carriage of passengers on freight trains was habitually permitted without objection by defendant company.

Tried below before Hon. S. H. Brashear. 1. Alexander owed Finnigan & Co. a just debt, and Finnigan & Co. had a right to take a transfer of enough of Alexander’s property to pay their debt, even if Alexander was insolvent, which was not shown. 2.

Tried below before Hon. S. F. Grimes. 1. A recital in a deed which has become an. ancient instrument is onily binding upon the parties thereto and their privies; therefore the recitals in the deed introduced in evidence from S. A. White to Johnson Eosell, that he owned the land, in no way bound the appellant, Bichard Harrison.

<p>1. Telegraph. Company — Mental Anguish — Proximate Result. — Neglect by a telegraph company to use ordinary care in tbe transmission of a message announcing serious illness of a sick relative will render it liable to tbe addressee for mental anguish suffered on account of being thus deprived of the opportunity of attending the funeral of such relative, as the natural and proximate result of such negligence.</p> <p>3. Damages Not Excessive. — A verdict for $750 held not excessive damages in such case.</p> <p>3. Telegraph Company — Notice of Claim for Damages. — Written notice by a married woman of a claim by her for failure to deliver a message addressed to her, given to a telegraph company within the stipulated ninety days, is sufficient to support an action by her husband on such claim. . ,</p> <p>4. Same — Charge of Court- — Negligence.-—A charge of the court, instructing that damages could not be recovered if, after the receipt of the message announcing-sickness, the addressee could have sent a telegram giving notice that she would go to the funeral, if such a message would have caused a postponement of the funeral to await her arrival, was properly refused, as introducing an issue depending solely upon speculation, and as instructing, in effect, that the facts stated would constitute negligence. .</p>

Error from Galveston. Tried below before Hon. William:. H. Stewart. 1. The defendant did not renounce the contract and demand a restoration of the partial payment because of the alleged deficiency, or for any other reason, until after this suit was brought, and he was then estopped by, the sale which had been made.

<p>Appeal from Harris. Tried below before Hon. S. H. Brashear.</p> <p>1. The purchaser of the property and franchises of a railroad corporation at foreclosure sale takes the same free of all liability for its former indebtedness not secured by prior liens; and a claim against the sold out company, reduced to judgment and secured by a lien recognized and foreclosed in the decree of foreclosure, and to satisfy which the sale was made, and which was directed to be paid out of the proceeds of such sale, ceases to be a charge upon the property, and can not be enforced against the purchaser of the property or his assigns. Rev. Stats., art. 4260; Railway v. Newell, 73 Texas, 334; Acres v. Moyne, 59 Texas, 623; Railway v. Shirley, 54 Texas, 125.</p> <p>2. The sale of property upon foreclosure of mortgages thereon, under terms prescribed in the decree of foreclosure, and on stipulated conditions to be complied with by the purchaser, and subject to confirmation by the court after compliance with all the terms of the sale by the purchaser, is not completed until the sale is confirmed and all the conditions upon which the sale is to be made are complied with by the purchaser. Rorer on Jud. Sales, secs. 122,124,134; Dan. Chan. Plead, and Prac., 4 ed., pp. 1274, 1281; Williamson v. Berry, 8 How., 495, 546; Berry v. Hardin, 2B. Mon. (Ky.), 407, 411; Forman v. Hunt, 3 Dana, 622; Campbell v. Johnson, 4 Dana, 186.</p> <p>Under the facts of this case, the defendant, the Houston East and West Texas Railway Company, ratified the act and contract of E. S. Jemison with the several creditors of said company, dated May 26, 1890, and was in duty bound to perform the same according to its terms, and failing in that, must pay the amount of the judgment in this cause, and the property of said company in its hands is subject to such payment. McArthur v. Printing Co., 5 Am. and Eng. Ry. and Corp. Cases, 743; Battelle v. Paving Co., 37 Minn., 89; 21 Neb., 621; 10 N. Y., 550; 81 N. Y., 468; 79 Pa. St., 54; 40 Md., 395; Negley v. Lindsey, 67 Pa. St., 217; Wherry v.Wyman, 101 U. S., 392; 8 Wheat., 363.</p> <p>Upon question of Jemison’s liability: Carmody v. Powers, 60 Mich., 26; Doubleday v. Muskett, 7 Bing., 110.</p>

<p>Appeal from Polk. Tried below before Hon. L. B. Hightower.</p> <p>Facts not given in the opinion will be found in report of brief of appellants.</p> <p>1. The deed from Mardes to Brown is void for want of a grantor, for want of certainty and want of description, and evidence can not aid the deed. Coker V. Roberts, 71 Texas, 601, 602; Cook v. Oliver, 83 Texas, 561, 562; Norris v. Hunt, 51 Texas, 612; Giddings v. Day, 84 Texas, 605; Wright v. Lancaster, 48 Texas, 250.</p> <p>2. This Brown deed purports to havq been executed in 1837, and it was kept off the records until 1886. It shows upon its face different handwritings, made at different times, and the seal made over with different ink, or tampered with at some time. This cast suspicion on it, which defendant who offered it in evidence was required to explain, and he did not do it.</p> <p>George M. Frazier did not explain these alterations in the deed. He is 62 years of age, brother of William Frazier, who was the administrator of David Brown, and married his only child, the mother of Mary B. Frazier. He says he had seen, handled, and read this deed, then in the possession of Mary E. Frazier, then living with him. That he knew Brown in 1837; but he failed to show the condition of this deed when he saw it. J. H. Kirby, to whom Mary E. Frazier delivered the deed in 1881, failed to speak of its condition then and now. Collins v. Ball, Hutchings & Co., 82 Texas, 268; Dewees v. Bluntzer, 70 Texas, 407, 408; 1 Greenl. on Ev., sec. 564.</p> <p>The presumption of law, that alterations were made at the time the deed was executed, does not apply when suspicion is cast on the validity of the instrument, and it has been kept off of the public records nearly fifty years. Bodriguez v. Haynes, 76 Texas, 225; McWhirter v. Allen, 1 Texas Civ. App., 649.</p> <p>3. The trial court erred in this: On the trial, defendants, over the objections of plaintiffs, proved by Frazier, Kirby, and Cooper, by depositions (without showing that they were qualified to read and interpret the Spanish language, and without said witnesses furnishing this court their translated copies of the instrument, the contents of which they testified to), viz: By Frazier, that he had read the Spanish title to the Abner Mardes league in the hands of Mary E. Frazier, and that the Abner Mardes league of land was mentioned in the said Spanish title. By Kirby, that he had in his possession the Spanish title, or testimonio in Spanish, of the grant signed by George Antonio Nixon, commissioner, to Abner Mardes, granting to said Mardes a league of land in Texas, dated in September, 1835. By Cooper, that he had in his possession the said grant from the government to Abner Mardes granting him a league of land. That he first saw the testimonio when delivered to him by Kirby. The court sustained plaintiff’s objections in so far as the witnesses testified as to what the Spanish instrument was or as to what it contained, but allowed the evidence of these witnesses to go to the jury to show that the said witnesses had in their possession an instrument in the Spanish language, and to show from whom said instrument was received, and to show when it was executed, and for no other purpose. Sartor v. Bolinger, 59 Texas, 413, 414.</p> <p>4. The court admitted in evidence, by depositions of Hall, Commissioner of the General Land Office, and X. B. De Bray, Spanish' translator in said office, and Marks,- a photographic artist, an exact reproduction of the signature of A. Mardes, found on the original Spanish title, an archive in the General Land Office. Plaintiffs then proved, by the depositions of Mary E. Baker and Abner G. Mardes, that they were the children of Abner Mardes, deceased, and that the photographic copy then before them was the signature of their father, Abner Mardes, who could only write A. Mardes, and that the signature of Abner Mardes to the original deed or instrument purporting to be from Abner Mardes to David Brown (read in evidence by defendants), then before-said witnesses, was a forgery.</p> <p>Mary E. Baker produced from among the papers of her deceased father, Abner Mardes, in her possession, an original mortgage, signed by him January 1,1838, in favor of F. Beaumont, and an original deed from Abner Mardes to J. Peter Goets, dated November 18,1851, signed by Abner Mardes; both of said original instruments having been acted on by Abner Mardes, executed by him, and recorded in Adams County, Mississippi, immediately after execution.</p> <p>The witnesses Mary E. Baker and Abner G. Mardes, having sworn that the signature signed thus, A. Mardes, to each of said instruments, was the signature of their father, Abner Mardes, deceased, and the same signature as the said photograph, and not the same signature as that to the David Brown deed, and that the signature, Abner Mardes, to the David Brown deed, is a forgery, and was not signed by Abner Mardes, plaintiff then offered said original instruments in evidence, which, on objections by defendants, because not admitted to be genuine, were open to collateral issues, and irrelevant, were excluded by the court; to which plaintiffs excepted and assigns as error the ruling of the court. [A fac-simile of said signatures was produced at the trial.] 1 Greenl. on Ev., sec. 581, note 2; Id., sec. 581a; In re Gordon’s Will, 26 Atl. Rep., 277, 278; In re Rockey’s Estate, appeal of Brown, 26 Atl. Rep., 656, 657; Strother v. Lucas, 6 Pet., 763.</p> <p>5. The court erred in excluding as evidence the transcript of the Probate Court of San Augustine County, Texas, in the succession of the estate of David Brown, deceased. The said transcript showed that Frazier, the administrator of David Brown, deceased, did not inventory the Abner Mardes league of land involved in this suit as the property of David Brown, and that William B. Frazier was in 1857 the administrator of the estate of David Brown, deceased. The estate of David Brown did not claim this land anywhere on the record during the succession.</p> <p>6. Appellee Myers having pleaded specially his title and possession, and set out by field notes the land he claims, by this he abandons his plea of not guilty, and can rely only on his special plea. Hoodless v. Winter, 80 Texas, 640, 641.</p> <p>1. There were no interlineations that required explanation. The deed was filled out on a blank form, and this was customary in those days, as testified to by Colonel Blount and Mr. Johnson, and as recognized by our Supreme Court. Hollis v. Dashiell, 52 Texas, 187.</p> <p>2. The evidence of Frazier, Kirby, and Cooper was admissible to show custody of the Mardes deed, and as a circumstance on the issue of forgery.</p> <p>3. The original deed and mortgage offered for comparison of handwriting were properly excluded. Matlock v. Glover, 63 Texas, 231; Smythe v. Caswell, 67 Texas, 567.</p> <p>4. Appellees having admitted that the inventory of Brown’s estate did not include the Mardes league in controversy, the transcript was properly excluded. It was clearly not admissible except to show this, admitted fact.</p>

Tried below before Hon. T. H. Conner. 1. The correct measure oí damage, where property has been wrongfully sequestrated, is the value of the property at the time of the trial. Watts v. Over-street, 78 Texas, 571. 2.

Tried below before Hon. T. H. Conner. This action was brought by O. H. Edwards against Wood and others, as makers of the note sued on, and the Farmers’ Alliance Co-operative Milling Company, as indorser.

Tried below before Hon. S. P. Greene. Unless tbe defendants knew of tbe variance of tbe charter from tbe original contract of subscription they would not in law, and could not in fact, be called upon to elect whether they would claim a release on account of said variance or not; and without such knowledge of tbe variance, no act of theirs could in law be construed as a ratification of or consent to tbe change or variance.

<p>Appeal from Tarrant. Tried below before Hon. S. P. Greene.</p>

<p>Appeal from Clay. Tried below before Hou. Geo. E. Millee.</p> <p>1. The statements of John Borg, the grantor in the chattel mortgage to C. C. Cook, as to what he had offered to do with Solomon, the plaintiff and grantee, to prove the mortgage made with a fraudulent intent, not being in the presence of the appellant, was the narration of a past event, was not res gestae, and was hearsay and inadmissible. Burgen v. Marble Yard, 72 Texas, 53; 1 Greenl. on Ev., secs. 108, 110, 131, 190; 1 Phil, on Ev., 185, 208.</p> <p>2. A creditor who attacks as fraudulent; because of his debtor’s insolvency, a deed of trust which is valid on its face, has the burden of proving the insolvency. Puckett v. Drug Co., 20 S. W. Bep., 1127.</p> <p>3. The fact that a debt secured in a chattel mortgage is fictitious in whole or in part will not vitiate the instrument as to other debts secured that are honest and bona fide. Simon v. Ash, 20 S. W. Bep., 719; Brasher v. Jamison, 75 Texas, 139; Blair v. Finley, 75 Texas, 210; Jones on Chat. Mort., secs. 92, 336, 345, 351, 356.</p> <p>The negotiations of John Borg, Thomas D. Solomon, and C. C. Cooke was one continuous transaction, lasting through all the day on Saturday, April 18,1891, and all declarations made by either of said parties pending said negotiations, which culminated in the deed of trust in question to Thomas D. Solomon, late on Saturday evening, is a part of the res gestee, and is admissible in evidence. 1 Greenl. on Ev., secs. 108-114; 1 Bice on Ev., 377; 2 Bice on Ev., 951.</p>

Tried below before Hon. W. B. Thompson. 1. Where a railroad company has fenced its track with a good and sufficient fence to turn stock, it is only bound to use ordinary care to keep such fence in good condition, and will not be liable for stock entering through defects in such fence, unless it knew of such defects, or the same had existed for such a length of time as that it ought, in the exercise of ordinary care, to have known of the same. 7 Am. and Eng.

<p>Appeal from Montague.- Tried below before Hon. D. E. Barrett.</p> <p>Where there is uncertainty in the affidavit for attachment as to amount of plaintiff’s claim, the attachment should be abated on motion, and such uncertainty can not be cured by reference to the averments in the petition alleged to be on file, when no such petition was on file, and no such suit pending, and the instrument of writing claimed by the affiant to be such petition appears to be a separate and distinct document from the affidavit which alludes to it, and nothing is in the record to show that said alleged petition was not prepared after the affidavit for attachment was sworn to. Rev. Stats., arts. 184, 212-220; Joiner v. Perkins, 59 Texas, 300; Evans v. Tucker, 59 Texas, 249; Espey v. Heidenheimer Bros., 58 Texas, 662.</p> <p>The petition and affidavit in attachment suits should be construed together, and in reference to each other, and the affidavit may refer to the petition- for the statement of the amount and nature of the indebtedness. Morgan v. Johnson, 15 Texas, 567; Wright v. Ragland, 18 Texas, 289; Gray & Wallace v. Steedman, 63 Texas, 95; Cleveland v. Boden, 63 Texas, 103; Willis v. Mooring, 63 Texas, 341.</p>

Tried below before Hon. Geo. E. Milled. 1. The evidence, the admission of whicb is complained of, was hearsay, was irrelevant, immaterial, and was calculated to prejudice the jury against the appellant’s theory of the case, and its admission was reversible error. Eussell v. Hunicutt, 70 Texas, 657; Titterington v. Trees, 78 Texas, 567-570; Hunicutt v. Peyton, 102 17. S., 333-369; 1 Greenl. on Ev., sec. 145; 1 Eiceon Ev., 408. 2.

<p>Appeal from Denton. Tried below before Hon. D. E. Barrett.</p> <p>The court erred in giving to the jury the instruction in the first paragraph of its charge, such charge being inapplicable and erroneous with reference to the only obligation or duty of defendant involved in the case or made an issue by the evidence, to wit, a supposed duty of defendant to anticipate and prevent an injury to plaintiff wholly caused by the negligence of a fellow passenger. Thompson v. Shannon, 9 Texas, 536; Bailway v. Kirkbride, 79 Texas, 460; Bailway v. Halloren, 53 Texas, 52; Seale v. Bailway, 65 Texas, 275; Putnam v. Bailway, 55 N. Y., 108; 14 Am. Bep., 190; Felton v. Bailway (Iowa), 27 Am. and Eng. By. Cases, 229; Batton v. Bailway, 77 Ala., 591; 23 Am. and Eng. By. Cases, 514; 54 Am. Bep., 80; Mullan v. Bailway, 47 Am. and Eng. By. Cases, 649.</p>

<p>1. Innocent Purchaser — Land Certificate — Heirs of Wife. — The purchaser of a headright certificate from the husband to whom it was issued takes it with constructive notice of the claim of the children of the wife, then deceased. Following Hill v. Moore, 85 Texas, 335.</p> <p>2. Equitable Title — Stale Demand.' — -The doctrine of stale demand does not bar the defendant in trespass to try title from availing himself of an equitable title as a defense, although he may have pleaded such equitable title in a cross-action.</p> <p>3. Trespass to Try Title — Lien for Taxes and Expenses. — Money expended by the holder of the legal title to a land certificate in locating the land and paying taxes thereon, constitutes a lien upon the equitable interests of other parties owning an interest in the certificate.</p>

Tried below before Hon. W. M. Allison. Mrs. Watts paid for the lots with her separate means. The title was taken in the name of W. T. Watts. He executed a mortgage on the lots to secure an antecedent debt owing by him to defendants, for which debt he then executed his note payable in twelve months.

Tried below before Hon. F. G. Morris. 1. Tbe court erred in permitting tbe plaintiff to maintain tbis suit after be bad developed in bis examination tbat be was bolding tbe land on wbicb tbe grass was burned under a verbal lease to extend beyond one year, and tbat tbe title to tbe land was in dispute. 2.

<p>Appeal from Travis. Tried below before Hon. T. B. Cochean.</p> <p>1. In a suit for partition, all parties in anywise interested in tbe lands sought to be partitioned are necessary and indispensable parties; and it appearing from appellees’ petition that the State Penitentiary Board had the legal title to 903 acres of the land sought to be partitioned, the members of that board were necessary parties to this suit. Holloway v. Mcllhenny Co., 77 Texas, 659; Peterson v. Fowler, 73 Texas, 524; McKinney v. Moore, 73 Texas, 471; Johns v. Northcutt, 49 Texas, 455; Ship Channel Co. v. Bruly, 45 Texas, 6; Franks v. Hancock, 1 Posey, 567; 17 Am. and Eng. Encyc. of Law, 717.</p> <p>2. Appellant’s plea of innocent purchaser should not have been stricken out, because said plea shows that appellant and those under whom it claims had in good faith and for full consideration purchased the Walter Campbell land certificate from the widow and surviving daughter of Walter Campbell only after making diligent inquiry as to who in fact were the heirs of Walter Campbell, and after having been informed that the heirs of Walter Campbell were his wife, two sons, and a daughter, and that the two sons had died intestate and unmarried. Hall v. Gwynne, 23 S. W. Rep., 289; Sanburn v. Schuler, 22 S. W. Rep., 119; Hill v. Moore, 19 S. W. Rep., 167; Kirby v. Moody, , 84 Texas, 202; Pouncey v. May, 76 Texas, 565; Edwards v. Brown, 68 Texas, 337; 2 Pom. E<1- Jur., sec. 607; Johnson v. Newman, 43 Texas, 628.</p> <p>3. By virtue of the patents being issued to the heirs of Walter Campbell for the Cherokee County land, and to Walter Campbell for the Coryell County land, these appellees, under no circumstances being the heirs of Walter Campbell, at most only had an equitable title in the lands sought to be partitioned, and hence their demand was stale at the time this action was instituted.</p> <p>The proposition is elementary, but see also following recent Texas cases: Browning v. Pumphery, 81 Texas, 163; Wilson v. Simpson, 80 Texas, 279; Howard v. Stubblefield, 79 Texas, 1; Robertson v. Du Bose, 76 Texas, 10; Chamberlin v. Boon, 74 Texas, .663; 83 Texas, 481. The- patent vested the legal title in the heirs of Walter Campbell, and not in the heirs of John W. and Charles T. Campbell: Reed v. West, 47 Texas, 240; Kircher v. Murray, 54 Fed. Rep., 626; Lindsay v. Freeman, 83 Texas, 267.</p> <p>1. Where one cotenant sells by metes and bounds a portion of a survey, the other cotenants can ratify the sale and treat the same as a partial partition, and in a suit for partition of the remaining portion of the survey, they cau charge the cotenant who sold with their interests in the part sold, and recover for those interests out°of the unsold part. Arnold v. Cauble, 49 Texas, 533; Camoron v. Thurmond, 56 Texas, 22; Gilliam v. Null, 58 Texas, 298; Freem. on Coten. and Part., secs. 199-206.</p> <p>2. Where one cotenant has sold by metes and bounds a part of a survey, and the other cotenants sue for partition of the unsold part of that survey, and in such suit seek to ratify the sale and to charge him in that partition with their interests in the part sold, the purchasers of the part sold are not necessary or proper parties to the suit. Glass-cock v. Hughes, 55 Texas, 461; Battle v. John, 49 Texas, 202; John v. Battle, 58 Texas, 591, 598; Richardson v. Loupe, 80 Cal., 490.</p> <p>3. A purchaser who buys property from the heirs of a party who is dead, is bound at his peril to know who the heirs are, and he can not buy from a part of the heirs and be an innocent purchaser as to the other heirs who do not join in the sale. Ross v. Morrow, 85 Texas, 172; Randolph v. Junker, 21 S. W. Rep., 551; Hillv. Moore, 85 Texas, 335; Mitchell v. Marr, 26 Texas, 329; Trammell v. Neal, 1 Posey, 51, 56.</p> <p>4. Title by inheritance is a legal title, and where a patent issues to a person who is dead, the legal title ipso facto vests in his heirs, and if any of the parties who were heirs at the time descent was cast are dead, the legal title vests in their heirs. Rev. Stats., art. 3961; Acts 1851, 4th Leg., p. 21; Brooks v. Evetts, 33 Texas, 742; 2 Sayles’ Real Estate Law, sec. 772; Bouv. Law Die., title “Heir;” Coke’s Littleton, secs. 7b, 9a.</p> <p>5. The holder of an equitable title can not avail himself of the defense of stale demand against another equitable title, unless he has been in actual possession of the land, or unless he can connect himself with the legal title. Runge v. Schleicher, 21 S. W. Rep., 424; Edwards v. Gill, 23 S. W. Rep., 742; Wilson v. Simpson, 80 Texas, 279; Reed v. West, 47 Texas, 248; Buswell on Lim., sec. 19.</p>

<p>1. Common Carrier — Interstate Shipment — Penalty.—Article 284 of the Revised Statutes, in so far as it provides a penalty for the failure of a common carrier to feed and water live stock during transportation, does not,apply to shipments from a point in this State to a point in another State, notwithstanding the facts of the case may show that the statute was violated in this State. Following Railway v. Gray, 87 Texas, 312.</p> <p>2. Same — Stipulation as to Notice of Damages. — A stipulation in a contract for the shipment of live stock requiring the shipper to give notice of his claim for damages before the stock are removed from the delivering station, etc., is made void by the Act of 1891, which allows the shipper ninety days within which to give such notice.</p> <p>3. Shipment of Live Stock — Contract to Feed and Water — Evidence.—The shipper may testify that he applied to the conductor of the train on which his stock were being shipped under his own charge, stating that he wanted the stock fed at a certain point, and what the conductor said in Teply thereto.</p> <p>4. Same — Variance.—A common carrier can not relieve itself of liability by virtue of a clause in the contract of shipment whereby the shipper undertakes to feed and water the stock en route in a case where it has not afforded him opportunity and facilities for so doing, thereby putting that matter out of his power; and such clause in the contract does not make it variant from the petition, which alleges that the common carrier undertook the duty of watering and feeding the stock.</p> <p>5. Market Value of Live Stock. — The shipioer was qualified to testify as to the market value of his stock at the point of destination in the condition they reached there in, and the difference in value in the condition then and that in which they should have been on arrival there; he having been there for three weeks after their arrival, and having sold some of the stock there, and posted himself as to the market value of such stock by inquiries of buyers and sellers, and by seeing stock sold there on the market.</p>

Tried below before Hon. Eugene Archer. 1. Either party to an agreement based upon a valuable consideration, after he has performed his part of said agreement, can maintain an action for specific performance on part of the other party if he refuses to perform his part, when in the nature of the case such periormance is possible, and damages would not be a full or adequate remedy.

Error from McLennan. Tried below before Hon. L. W. Goodrich. 1. Where plaintiffs claim as tenants in common, a plea of limitation by defendants can not be sustained unless their entry into possession was under claim of right inconsistent with the rights of the true owner, and the occupancy has been visible, distinct, notorious, and hostile to such rights, so as to oust the cotenant.

Tried below before Hon. W. J. Wingate. The opinion contains a statement. 1. (1) It is not within the implied authority of a local agent of a railway company to enter into or bind his company for the transportation of freight or passengers,to points beyond its line of road.

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p> <p>1. An amendment which, changes the title to land originally sued on, as the title of an individual to the title of a firm or partnership, is a change of the cause of action sued upon.</p> <p>2. A deed whereby the grantor conveys “all that certain real and personal property, to wit, my right, title, and interest in and to” a tract of land, with covenant of general warranty for “said premises,” is a quitclaim deed, and does not pass a title afterwards acquired by the grantor. Harrison v. Boring, 44 Texas, 261; Van Rensselaer v. Kearney, 11 How., 297; Loan and Trust Co. v. Maltby, 8 Paige, 366; Hanrick v. Patrick, 119 H. S., 175; Rawle on Cov., 5 ed.,- see. 250, notes 1, 2; 2 Pom. Eq., sec. 658; Jones on Mort., see. 576.</p> <p>3. A conveyance by one having no title can not operate against a subsequent purchaser from the same grantor whose deed is executed after title is obtained by such grantor. Burtners v. Kerans, 24 Gratt., 42; Bige. on Estop., 4 ed., 435; Sedg. Trial of Title, sec. 850.</p> <p>4. A grantee is not bound to take notice of a conveyance made by his grantor before such grantor acquires a title to the land. Sedg. Trial of Title, sec. 850; Rawle on Cov., 5 ed., sec. 406; Bige. on Estop., sec. 432; 1 Dev. on Deeds, sec. 724; Dodd v. Williams, 3 Mo. App., 278; Loan and Trust Co. v. Maltby, 8 Paige, 361; Faircloth v. Jordan, 18 Ga., 350; Page v. Waring, 76 N. Y., 463; Buckingham v. Hanna, 2 Ohio St., 551; Losey v. Simpson, 11 N. J. Eq., 246; Ely v. Wilcox, 20 Wis., 51.</p> <p>5. Purchasers and creditors are only charged by construction with notice of the facts actually exhibited by the record, and not of such as might have been ascertained by such inquiry as an examination of the record might have induced a prudent man to make. Taylor v. Harrison, 47 Texas, 457; McLouth v. Hurt, 51 Texas, 115; 20 Am. and Eng. Encyc. of Law, 559, and cases cited; Webb on Rec. of Title, sec. 147.</p> <p>1. The plaintiff has a right to amend his petition and set up such new matters of fact relative to his cause of action as he sees proper.</p> <p>2. The court did not err in instructing the jury to find a verdict for the plaintiffs for the land in controversy, because the deed from W. T. Lytle to John T. Lytle and James Speed, under which plaintiff claimed, was a general warranty deed, and conveyed not only the title that W. T. Lytle may have had at that time, but conveyed the land itself and all after acquired title. Garrett v. Christopher, 74 Texas, 454; Lewis v. Terrell, 26 S. W. Rep., 754; Lindsay v. Freeman, 83 Texas, 263; Ackerman v. Smiley, 37 Texas, 215; Harrison v. Boring, 44 Texas, 255; 2 Sayles’ Real Est. Law, art. 853; Van Rensselaer v. Kearney, 11 How., 325; Hannon v. Christopher, 34 N. J. Eq., 465; 3 Washb., 75; Doe v. Oliver, 2 Smith’s Lead. Cases, *636.</p> <p>3. A general warranty deed will convey to the grantee all after-acquired title, although the grantor had no title at the time of making the deed. It is not a question of the degree of title that the vendor may have had at the time, but this principle is based upon the idea that the vendor has sold the land and warranted the title, and that he and the parties in privity with him are estopped from denying the fact. Van Rensselaer v. Kearney, 11 How., 325; Hannon v. Christopher, 34 N. J. Eq., 465; Dev. on Deeds, sec. 950; 2 Willard Real Prop., sec. 102; Jackson v. Winslow, 9 Cow., 18; Bige. on Estop., 3 ed., 333.</p> <p>4. A grantee is charged with notice of any prior conveyance from his grantor to the same land, if the first deed of the grantor is properly recorded. Eev. Stats., art. 4342.</p> <p>5. The question as to whether or not the record of a certain deed will operate as notice is purely a question of law, and should not be submitted to the consideration of the jury. Jenkins v. Adams & Wicks, 71 Texas, 1; 2 Sayles’ Eeal Est. Laws, 811; De Cordova v. Hood, 17 Wall., 8; 16 Am. and Eng. Encyc. of Law, 795.</p>

<p>1. Contract — Release—Valuable Consideration. — An agreement with a creditor of a partnership to release one member of the firm from his liability on a partnership debt and accept the other partner as solely liable thereon, must be founded on valuable consideration.</p> <p>2. Setoff — Partnership and Individual Debts. — Partners can not offset a partnership liability with a debt due from a creditor to a member of the firm.</p> <p>3. Partnership and Agency — Authority to Make Contracts of Guaranty..— A member of an ordinary commercial partnership has no implied authority to bind the firm as sureties or guarantors for another; nor is such authority within the apparent scope of the powers of a general agent of the firm.</p>

Tried below before Hon. C. N. Buckler. 1. The court erred in its general charge in submitting to the jury the question as to whether or not Stuart Bros, were interested in the defense of the criminal cases pending in New Mexico, and the question as to whether or not Stuart Bros, agreed to pay their pro rata share for defending said suits, there being no pleading and no evidence warranting the submission of such an issue to the jury; and the court erred in the same paragraph…

Tried below before Hon. F. E. Hunter. 1. No estoppel can arise out of any act forbidden by law, and as the powers and duties of a receiver of a national bank appointed by the Comptroller of the Currency are governed by positive law, and preferences prohibited, an attempt by a receiver to give a preference to a creditor can not be set up as an estoppel. As to transaction being void: Rev. Stats. H. S., secs. 5234, 5236, 5242; Scott v. Armstrong, 146 IT.

Error from Webb. Tried below before Thomas. W. Dodd, Esq., Special Judge. Where a corporation has entered upon the land of another without condemnation, and has made improvements thereon, the owner of such land is not entitled to have the value of these improvements included in the amount of damages payable to him, and it is error for the court to assess the value of such improvements in estimating the amount of compensation due the land owner. 6 Am. and Eng.

<p>1. Contractor’s Bond — Parties—Privity of Contract. — A contractor’s bond with, the owner, obligating the contractor to furnish all the material for a building, will not inure to the benefit of a materialman who sells the contractor such material, since in such case there is no privity of contract between the parties.</p> <p>2. Same — Subrogation.—In such case, if the owner refuses to sue on the contractor’s bond for the benefit oí the materialman, the latter is not on that account subrogated to the owner’s right to bring such suit.</p> <p>3. Same — Fraudulent Representations — Verbal Promise to Pay Debt of Another. — After the sale to a contractor of material for a building, the owner told the seller of the material that when the building was finished there would be sufficient due by him to the contractor to pay all sums owing by the contractor for material, and that he, the owner, would not pay it to the contractor until he had notified such seller. He paid the contractor part of the money, and while holding enough of it to pay such seller, was garnished by another creditor of the contractor. The seller made no effort to fix a mechanic’s lien on the property. Held, that the seller had no cause of action against the owner on the ground of fraudulent representation, and that the verbal promise was obnoxious to the statute of frauds.</p>

Tried below before Eton. W. M. Allison. 1. An abstract of judgment duly issued and recorded, which, is indexed in the proper book and place as to one of the defendants in the judgment, creates a lien on the real estate belonging to such defendant, against whom it is so indexed, lying within the county where such abstract is so recorded. Willis y. Smith, 66 Texas, 31; Anthony v. Taylor, 68 Texas, 405; Bun-nett v. Cockshatt, 2 Texas Civ.

<p>Ebbob from Bexar. Tried below before Hon. W. W. King.</p> <p>1. The United States or its property can not be sued without the consent of the government expressed by Act of Congress. This is in fact a suit against the United States and its property, the defendants named not being individually liable to suit under the facts and circumstances of this case. Cunningham v. Bailway, 109 U. S., 446; Stanley v. Schwalby, 147 U. S., 519.</p> <p>2. The court erred in overruling defendants’ third plea in bar, in holding, that notwithstanding the Governor of the State of Texas had, pursuant to the Act of the Legislature of Texas, ceded exclusive jurisdiction to the United States of America over the land in controversy in this suit, nevertheless the State courts of Texas had jurisdiction to try the title to said land. Const, of U. S., art. 1, sec. 8, clause 17; Bev. Stats, of Texas, arts. 319, 333, 334; Bailway v. Lowe, 114 U. S., 525; United States v. Cornell, 2 Mason, 60; 6 Ops. Atty. Gen., 577; 10 Ops. Atty. Gen., 35.</p> <p>1. No one sued the United States. Mary Schwalby and Joseph Spence, Jr., sued the trespassers whom they found upon their land, and the United States voluntarily made itself a party defendant. The case, therefore, is like the case of the United States v. Lee, 106 United States, 196, known as the Arlington case.</p> <p>2. If the facts which the Governor supposed to exist when he ceded jurisdiction did in fact not exist, the cession is of no effect as against the true owner. The United States government must acquire title first, either by purchase or condemnation.</p> <p>3. The court erred in sustaining the plea of the statute of limitations of ten years interposed by the United States of America as against intervenor, because the said United States is not included in the statutes of limitations of Texas, and the same neither bind nor protect the United States. Bev. Stats., art. 3193; Murphy v. Welder, 58 Texas, 235; Stanley v. Schwalby, 85 Texas, 348; Moore v. City of Waco, 85 Texas, 206.</p> <p>4. The court erred in adjudging to the defendant, the United States of America, the value of improvements claimed to have been made in good faith, because the evidence fails to prove that the United States was such a proprietor in good faith as would entitle it to recover the value of improvements made; for this, that the officers of the government had notice of plaintiffs’ title, and in placing said improvements upon the land in controversy acted negligently and in disregard of appellees’ rights to them known. Armstrong v. Oppenheimer, 84 Texas, 365; Miller v. Brownson, 50 Texas, 583; Johnson v. Schumacher, 72 Texas, 335; House v. Stone, 64 Texas, 678; Sedg. & Wait, sec. 707, p. 536.</p>

Tried below before Hon. Geo. H. Noonan. 1. The court erred in admitting in evidence the field notes of the A. M. Berry survey, because the same was cancelled and void as made under and by virtue of an illegal certificate, and incompetent for any purpose. Wilson v. Stoner, 11 Am. Dec., 664; Improvement Co. v. Munson, 14 Wall. (H. S.), 442. 2.